MANUAL 

FOR 

\, 

i COURTS-MARTIAL,

UNITED STATES 


1984 

EXECUTIVE ORDER 12473 

MANUAL FOR COURTS-MARTIAL, UNITED STATES, 1984 

By virtue of the authority vested in me as President by the Constitution of the United States and by Chapter 

47 of Title 10 of the United States Code (Uniform Code of Military Justice), I hereby prescribe the following 

Manual for Courts-Martial to be designated as "Manual for Courts-Martial, United States, 1984." 

This Manual shall take effect on August 1, 1984, with respect to all court-martial processes taken on and 

after that date: Provided, That nothing contained in this Manual shall be construed to invalidate any restraint, 

investigation, referral of charges, designation or detail of a military judge or counsel, trial in which arraignment 

had been had, or other action begun prior to that date, and any such restraint, investigation, trial, or other action 

may be completed in accordance with applicable laws, Executive orders, and regulations in the same manner 

and with the same effect as if this Manual had not been prescribed; Provided further, That Rules for CourtsMartial 908, 1 103(j), 1 105- 1 107, 1 1 10- 1 1 14, 120 1, and 1203 shall not apply to any case in which the findings 

and sentence were adjudged by a court-martial before August 1, 1984, and the post-trial and appellate review 

of such cases shall be completed in accordance with applicable laws, Executive orders, and regulations in the 

same manner and with the same effect as if this Manual had not been prescribed; Provided further, That nothing 

contained in this Manual shall be construed to make punishable any act done or omitted prior to August 1, 1984, 

which was not punishable when done or omitted; Provided further, That nothing in part 1V of this Manual shall 

be construed to invalidate the prosecution of any offense committed before the effective date of this Manual; 

Provided further, That the maximum punishment for an offense committed prior to August 1, 1984, shall not 

exceed the applicable limit in effect at the time of the commission of such offense; Provided further, That for 

offenses committed prior to August 1, 1984, for which a sentence is adjudged on or after August 1, 1984, if 

the maximum punishment authorized in this Manual is less than that previously authorized, the lesser maximum 

authorized punishment shall apply; Andprovided further. That Part V of this Manual shall not apply to nonjudicial 

punishment proceedings which were initiated before August 1, 1984, and nonjudicial punishment proceedings 

iri such cases shall be completed in accordance with applicable laws, Executive orders, and regulations in the 

same manner and with the same effect as if this Manual had not been prescribed. 

The Manual for Courts-Martial, 1969, United States (Revised edition), prescribed by Executive Order No. 

11476, as amended by Executive Order Nos. 1 1835, 12018, 12198, 12233, 12306, 12340, 12383, and 12460 

is hereby rescinded, effective August I, 1984. 

The Secretary of Defense shall cause this Manual to be revised annually and shall recommend to the President 

any appropriate amendments. 

The Secretary of Defense, on behalf of the President, shall transmit a copy of this Order to the Congress 

of the United States in accord with Section 836 of Title 10 of the United States Code. 

THE WHITE HOUSE 
i 

Contents 

PART I .PREAMBLE 

PART II . RULES FOR COURTS-MARTIAL 

Page

Chapter I.General Provisions 

Rule 101 . Scope. title ................................................................................


(a) In general ..................................................................................... 
 (b) Title .......................................................................................... 


Rule 102 . Purpose and Construction .............................................................. 
 (a) Purpose ................................................................................... 


(b) Construction ............................................................................... 

Rule 103 . Definitions and rules of construction ........................................................ 

Rule 104 . Unlawful command influence ............................................................... 
 (a) General prohibitions ............................................................................ 


(1) Convening authorities and commanders ...................................................... 


(2) All persons subject to the code .............................................................. 
 (3) Exceptions ................................................................................. 


(A) Instructions ........................................................................... 
 (B) Court-martial statements ................................................................ 


(C) Professional supervision ................................................................ 
 (D) Offense ............................................................................... 


(b) Prohibitions concerning evaluations .............................................................. 
 (1) Evaluation of member or defense counsel .................................................... 
 (2) Evaluation of military judge ................................................................. 


(A) General courts-martial .................................................................. 


(B) Special courts-martial .................................................................. 


Rule 105 . Direct communications: convening authorities and staff judge advocates; among staff judge 

advocates ................................................................................. 

(a) Convening authorities and staff judge advocates .................................................. 
 (b) Among staff judge advocates and with the Judge Advocate General ................................ 


Rule 106 . Delivery of military offenders to civilian authorities ........................................ 


Rule 107 	. Dismissed officer's right to request trial by court-martial ................................ 


Rule 108 . Rules of court .............................................................................


Rule 109 . Professional supervision of military judges and counsel ................................. 
 (a) In general ................................................................................. 


(b) Action without further hearing .............................................................. 


Chapter II.Jurisdiction 

Rule 201 . Jurisdiction in general ..................................................................... 
 (a) Nature of courts-martial jurisdiction ............................................................. 


(b) Requisites of court-martial jurisdiction ........................................................... 
 (c) Contempt ............................... ..................................................... 


(d) Exclusive and nonexclusive jurisdiction .......................................................... 
 (e) Reciprocal jurisdiction .......................................................................... 


(f) Types of courts-martial ......................................................................... 


(1) General courts-martial ...................................................................... 


(A) Cases under the code .................................................................. 


(B) Cases under the law of war ............................................................. 


(C) Limitations in judge alone cases ........................................................ 
 (2) Special courts-martial ....................................................................... 
 (A) In general ............................................................................. 


(B) Punishments ........................................................................... 


(C) Capital offenses ....................................................................... 
 (3) Summary courts-martial .................................................................... 


(g) Concurrent jurisdiction of other military tribunals ................................................. 


'This revision supersedes the 1969 edition. 
Rule 202 . Persons subject to the jurisdiction of courts-martial ......................................... 
 (a) In general ..................................................................................... 


(b) Offenses under the law of war .................................................................. 


(c) Attachment of jurisdiction over the person ....................................................... 
 (1) In general ................................................................................. 
 (2) Procedure ................................................................................. 


Rule 203 . Jurisdiction over the offense ............................................................... 


Chapter Ill .Initiation of Charges; Apprehension; Pretrial Restraint; Related Matters 

Rule 301 . Report of offense .......................................................................... 
 (a) Who may report ............................................................................... 


(b) To whom reports conveyed for disposition ....................................................... 


Rule 302 . Apprehension .............................................................................. 
 (a) Definition and scope ........................................................................... 


(1) Definition ................................................................................. 


(2) Scope ..................................................................................... 
 (b) Who may apprehend ........................................................................... 


(1) Military law enforcement officials ........................................................... 
 (2) Commissioned. warrant. petty. and noncommissioned officers ................................. 
 (3) Civilians authorized to apprehend deserters ................................................... 
 (c) Grounds for apprehension ...................................................................... 


(d) How an apprehension may be made ............................................................. 
 (1) In general ................................................................................. 


(2) Warrants .................................................................................. 
 (3) Use of force ............................................................................... 


(e) Where an apprehension may be made ............................................................ 
 (1) In general ................................................................................. 
 (2) Private dwellings ........................................................................... 


Rule 303 . Preliminary inquiry into reported offenses ................................................... 


Rule 304. Pretrial restraint ........................................................................... 


(a) Types of pretrial restraint ....................................................................... 
 (1) Conditions on liberty ....................................................................... 
 (2) Restriction in lieu of arrest .................................................................. 


(3) Arrest ..................................................................................... 
 (4) Confinement ............................................................................... 
 (b) Who may order pretrial restraint ................................................................ 
 (1) Of civilians and officers .................................................................... 


(2) Of enlisted persons ......................................................................... 
 (3) Delegation of authority ..................................................................... 


(4) Authority to withhold ....................................................................... 


(c) When a person may be restrained ............................................................... 


(d) Procedures for ordering pretrial restraint ......................................................... 


(e) Notice of basis for of restraint .................................................................. 
 (f) Punishment prohibited .......................................................................... 
 (g) Release ....................................................................................... 
 (h) Administrative restraint ......................................................................... 


Rule 305 . Pretrial confinement ........................................................................ 


(a) In general ..................................................................................... 


(b) Who may be confined .......................................................................... 


(c) Who may order confinement .................................................................... 
 (d) When a person may be confined ................................................................ 


(e) Advice to the accused upon confinement ......................................................... 
 (f) Military counsel ............................................................................... 


(g) Who may direct release from confinement ....................................................... 
 (h) Notification and action by commander ........................................................... 
 (I) Report .................................................................................... 
 (2) Action by commander ...................................................................... 


(A) Decision .............................................................................. 
 (B) Requirements for confinement .......................................................... 
 (C) Memorandum ......................................................................... 


(i) Procedures for review of pretrial confinement .................................................... 
 (1) In general ................................................................................. 
 (2) By whom made ............................................................................ 


(1) Investigating officer ........................................................................ 
 (2) Defense counsel ............................................................................ 
 (A) Detailed counsel ....................................................................... 
 (B) Individual military counsel ............................................................. 
 (C) Civilian counsel ....................................................................... 
 (3) Others ..................................................................................... 
 (e) Scope of investigation .......................................................................... 
 (f) Rights of the accused .......................................................................... 
 (g) Production of witnesses and evidence; alternatives ................................................ 
 (1) In general ................................................................................. 
 (A) Witnesses ............................................................................. 
 (B) Evidence .............................................................................. 
 (2) Determination of reasonable availability ...................................................... 
 (A) Military witnesses .................................................................... 


(B) Civilian witnesses ..................................................................... 
 (C) Evidence .............................................................................. 
 (D) Action when witness or evidence is not reasonably available .............................. 
 (3) Witness expenses .......................................................................... 
 (4) Alternatives to testimony ................................................................... 
 (5) Alternatives to evidence .................................................................... 
 (h) Procedure ..................................................................................... 
 (1) Presentation of evidence .................................................................... 
 (A) Testimony ............................................................................ 
 (B) Other evidence ........................................................................ 
 (C) Defense evidence ...................................................................... 
 (2) Objections ................................................................................. 
 (3) Access by spectators ....................................................................... 
 (4) Presence of accused ........................................................................ 
 (i) Military Rules of Evidence ..................................................................... 
 (j) Report of investigation ......................................................................... 
 (1) In general ................................................................................. 
 (2) Contents ................................................................................... 
 (3) Distribution of the report ................................................................... 
 (4) Objections ................................................................................. 
 (k) Waiver ........................................................................................ 


Rule 406. Pretrial advice ............................................................................. 
 (a) In general ..................................................................................... 
 (b) Contents ...................................................................................... 
 (c) Distribution ................................................................................... 


Rule 407. Action by commander exercising general court-martial jurisdiction ........................... 
 (a) Disposition .................................................................................... 
 (b) National security matters ....................................................................... 


Chapter V.Court-Martial Composition and Personnel; Convening Courts-Martial 


Rule 501. Composition and personnel of courts-martial ................................................ 
 (a) Composition of courts-martial ................................................................... 
 (1) General courts-martial ...................................................................... 
 (2) Special courts-martial ....................................................................... 


(b) Counsel in general and special courts-martial ..................................................... 
 (c) Other personnel ................................................................................ 


Rule 502. Qualifications and duties of personnel of courts-martial ...................................... 
 (a) Members ...................................................................................... 
 (1) Qualifications .............................................................................. 
 (2) Duties ..................................................................................... 
 (b) President ...................................................................................... 
 (1) Qualifications .............................................................................. 
 (2) Duties ..................................................................................... 
 (c) Qualifications of military judge ................................................................. 
 (d) Counsel ....................................................................................... 
 (1) Certified counsel required ................................................................... 
 (2) Other military counsel ...................................................................... 
 (3) Qualifications of individual military and civilian defense counsel ............................... 
 (4) Disqualifications ........................................................................... 
 (5) Duties of trial and assistant trial counsel ..................................................... 

Page 

(6) Duties of defense and associate or assistant defense counsel ................................... 
 (e) Interpreters. reporters. escorts. bailiffs. clerks. and guards ........................................ 
 (I) Qualifications .............................................................................. 
 (2) Disqualifications ........................................................................... 
 (3) Duties ..................................................................................... 
 (A) Interpreters ............................................................................ 
 (B) Reporters ............................................................................. 
 (C) Others ................................................................................ 


(4) Payment of reporters. interpreters ............................................................ 


(f) Action upon discovery of disqualification or lack of qualification .................................. 


Rule 503 . Detailing members. military judge. and counsel .............................................. 
 (a) Members ...................................................................................... 
 (I) In general ................................................................................. 


(2) Enlisted members .......................................................................... 
 (3) Members from another command or armed force ............................................. 
 (b) Military judge ................................................................................. 
 (1) By whom detailed .......................................................................... 
 (2) Record of detail ............................................................................ 


(3) Military judge from a different armed force .................................................. 
 (c) Counsel ....................................................................................... 
 (1) By whom detailed .......................................................................... 
 (2) Record of detail ............................................................................ 


(3) Counsel from a different armed force ........................................................ 


Rule 504 . Convening courts-martial ................................................................... 
 (a) In general ..................................................................................... 


(b) Who may convene courts-martial ................................................................ 
 (1) General courts-martial ...................................................................... 
 (2) Special courts-martial ....................................................................... 


(A) Definition ............................................................................. 
 (B) Determination ......................................................................... 
 (3) Summary courts-martial .................................................................... 
 (4) Delegation prohibited ....................................................................... 
 (c) Disqualification ................................................................................ 


(1) Accuser ................................................................................... 
 (2) Other ..................................................................................... 


(3) Action when disqualified ................................................................... 
 (d) Convening orders .............................................................................. 
 (1) General and special courts-martial ........................................................... 
 (2) Summary courts-martial .................................................................... 
 (3) Additional matters .......................................................................... 
 (e) Place ......................................................................................... 


Rule 505 . Changes of members. military judge. and counsel ........................................... 
 (a) In general ..................................................................................... 
 (b) Procedure ..................................................................................... 
 (c) Changes of members ........................................................................... 
 (I) Before assembly ........................................................................... 
 (A) By convening authority ................................................................ 


(B) By convening authority's delegate ....................................................... 
 (i) Delegation ........................................................................ 
 (ii) Limitations ....................................................................... 
 (2) After assembly ............................................................................. 
 (A) Excusal ............................................................................... 
 (B) New members ......................................................................... 
 (d) Changes of detailed counsel .................................................................... 
 (1) Trial counsel ............................................................................... 
 (2) Defense counsel ............................................................................ 


(A) Before formation of attorney-client relationship .......................................... 


(B) After formation of attorney-client relationship ............................................ 
 (e) Change of military judge ....................................................................... 
 (1) Before assembly ........................................................................... 
 (2) After assembly ............................................................................. 
 (f) Good cause .................................................................................... 


Rule 506 . Accused's rights to counsel ................................................................ 
 (a) In general ..................................................................................... 

(b) Individual military counsel ...................................................................... 
 (1) Reasonably available ....................................................................... 
 (2) Procedure ................................................................................. 
 (3) Excusal of detailed counsel ................................................................. 
 (c) Excusal or withdrawal .......................................................................... 
 (d) Waiver ........................................................................................ 
 (e) Nonlawyer present ............................................................................. 


Chapter VI . Referral. Service. Amendment. and Withdrawal of Charges 

Rule 601 . Referral .................................................................................. 
 (a) In general ..................................................................................... 
 (b) Who may refer ................................................................................ 
 (c) Disqualification ................................................................................ 


(d) When charges may be referred .................................................................. 
 (1) Basis for referral ........................................................................... 
 (2) General courts-martial ...................................................................... 
 (e) How charges shall be referred ................................................................... 
 (1) Order. instructions ......................................................................... 
 (2) Joinder of offenses ......................................................................... 
 (3) Joinder of accused ......................................................................... 
 (f) Superior convening authorities .................................................................. 


Rule602. Serviceofcharges ......................................................................... 


Rule 603 . Changes to charges and specifications ..................................................... 
 (a) Minor changes defined ......................................................................... 
 (b) Minor changes before arraignment ............................................................... 
 (c) Minor changes after arraignment ................................................................ 
 (d) Major changes ................................................................................. 


Rule 604 . Withdrawal of charges ..................................................................... 
 (a) Withdrawal .................................................................................... 
 (b) Referral of withdrawn charges .................................................................. 


Chapter VII .Pretrial Matters 

Rule 701. Discovery ................................................................................. 
 (a) Disclosure by the trial counsel .................................................................. 
 (1) Papers accompanying charges; convening orders; statements ................................... 
 (2) Documents. tangible objects. reports ......................................................... 
 (3) Witnesses ................................................................................. 
 (4) Prior convictions of accused offered on the merits ............................................ 
 (5) Information to be offered at sentencing ...................................................... 
 (6) Evidence favorable to the defense ........................................................... 


(b) Disclosure by the defense ....................................................................... 
 (1) Notice of alibi ............................................................................. 
 (2) Mental responsibility ....................................................................... 
 (3) Documents and tangible objects ............................................................. 
 (4) Reports of examinations and tests ........................................................... 
 (5) Inadmissibility of withdrawn defense ........................................................ 


(c) Failure to call witness ....................................... ;.................................. 
 (d) Continuing duty to disclose ..................................................................... 
 (e) Access to witnesses and evidence ............................................................... 
 (f) Information not subject to disclosure ............................................................ 
 (g) Regulation of discovery ........................................................................ 
 (1) Time. place. and manner ................................................................... 
 (2) Protective and modifying orders ............................................................. 
 (3) Failure to comply .......................................................................... 
 (h) Inspect ........................................................................................ 


Rule 702 . Depositions ................................................................................ 
 (a) In general ..................................................................................... 
 (b) Who may order ................................................................................ 


(c) Request to take deposition ...................................................................... 
 (1) Submission of request ...................................................................... 
 (2) Contents of request ......................................................................... 
 (3) Action on request .......................................................................... 
 (A) In general ............................................................................. 

(B) Writtendeposition ..................................................................... 
 (C) Notification of decision ................................................................ 
 (D) Waiver ............................................................................... 


(d) Action when request is approved ................................................................ 
 (1) Detail of deposition officer .................................................................. 


(2) Assignment of counsel ...................................................................... 


(3) Instructions ................................................................................ 
 (e) Notice ....................................................................................... 


(f) Duties of the deposition officer ................................................................. 


(g) Procedure ..................................................................................... 


(1) Oral deposition ............................................................................ 
 (A) Rights of accused ...................................................................... 


(B) Examination of witnesses ............................................................... 
 (2) Written depositions ......................................................................... 


(A) Rights of accused ...................................................................... 
 (B) Presence of parties ..................................................................... 
 (C) Submission of interrogatories to opponent ............................................... 
 (D) Examination of witnesses ............................................................... 
 (3) How recorded ................................................................ :............. 


(h) Objections ..................................................................................... 
 (1) In general ................................................................................. 
 (2) Oral depositions ............................................................................ 
 (3) Written depositions ......................................................................... 


(i) Deposition by agreement not precluded .......................................................... 
 (1) Taking deposition .......................................................................... 
 (2) Use of deposition .......................................................................... 


Rule 703. Production of witnesses and evidence ...................................................... 
 (a) In general ..................................................................................... 
 (b) Right to witnesses ............................................................................. 


(1) On the merits or on interlocutory questions ................................................... 
 (2) On sentencing ............................................................................. 
 (3) Unavailable witness ........................................................................ 


(c) Determining which witness will be produced ..................................................... 
 (1) Witnesses for the prosecution ............................................................... 
 (2) Witnesses for the defense ................................................................... 


(A) Request ............................................................................... 
 (B) Contents of request .................................................................... 


(i) Witnesses on merits or interlocutory questions ....................................... 
 (ii) Witnesses on sentencing ........................................................... 
 (C) Time of request ....................................................................... 
 (D) Determination ......................................................................... 
 (d) Employment of expert witnesses ................................................................ 
 (e) Procedures for production of witnesses .......................................................... 
 (1) Military witnesses .......................................................................... 
 (2) Civilian witnesses-subpoena ............................................................... 
 (A) In general ............................................................................. 
 (B) Contents .............................................................................. 


(C) Who may issue ........................................................................ 
 (D) Service ............................................................................... 
 (E) Place of service ....................................................................... 
 (i) In general ........................................................................ 


(ii) Foreign territory .................................................................. 
 (iii) Occupied territory ................................................................. 
 (F) Relief ................................................................................. 


(G) Neglect or refusal to appear ............................................................ 
 (i) Issuance of warrant of attachment .................................................. 
 (ii) Requirements ..................................................................... 
 (iii) Form ............................................................................. 
 (iv) Execution ........................................................................ 
 (v) Definition ........................................................................ 
 (f) Right to evidence .............................................................................. 
 (1) In general ................................................................................ 
 (2) Unavailable evidence ....................................................................... 
 (3) Determining what evidence will be produced ................................................. 
 (4) Procedures for production of evidence ....................................................... 

(A) Evidence under the control of the Government ........................................... 
 (B) Evidence not under the control of the Government ....................................... 
 (C) Relief ................................................................................. 


Rule 704 . Immunity .................................................................................. 
 (a) Types of immunity ............................................................................. 
 (1) Transactional immunity ..................................................................... 
 (2) Testimonial immunity ...................................................................... 
 (b) Scope ......................................................................................... 
 (c) Authority to grant immunity .................................................................... 
 (1) Persons subject to the code ............................................................. 
 (2) Persons not subject to the code .............................................................. 
 (3) Other limitations ........................................................................... 
 (d) Procedure ..................................................................................... 


(e) Decision to grant immunity ..................................................................... 


Rule 705 . Pretrial agreements ........................................................................ 
 (a) In general ..................................................................................... 
 (b) Nature of agreement ........................................................................... 
 (c) Terms and conditions .......................................................................... 
 (1) Prohibited terms or conditions ............................................................... 
 (A) Not voluntary ......................................................................... 
 (B) Deprivation of certain rights ............................................................ 
 (2) Permissible terms or conditions .............................................................. 
 (d) Procedure ..................................................................................... 
 (1) Offer ...................................................................................... 
 (2) Negotiation ................................................................................ 
 (3) Formal submission ......................................................................... 
 (4) Acceptance ................................................................................ 
 (5) Withdrawal ................................................................................ 
 (A) By accused ............................................................................ 
 (B) By convening authority ................................................................ 
 (e) Nondisclosure of existence of agreement ......................................................... 


Rule 706. Inquiry into the mental capacity or mental responsibility of the accused ...................... 
 (a) Initial action ................................................................................... 
 (b) Ordering an inquiry ............................................................................ 
 (1) Before referral ............................................................................. 
 (2) After referral .............................................................................. 
 (c) Inquiry ........................................................................................ 
 (1) By whom conducted ........................................................................ 
 (2) Matters in inquiry .......................................................................... 
 (3) Directions to board ......................................................................... 
 (4) Additional examinations .................................................................... 
 (5) Disclosure to trial counsel .................................................................. 


Rule 707 . Speedy trial ................................................................................ 
 (a) In general ..................................................................................... 
 (b) Accountability ................................................................................. 
 (1) In general ................................................................................. 
 (2) Inception .................................................................................. 
 (3) Termination ............................................................................... 
 (4) Multiple charges ........................................................................... 
 (c) Exclusions .................................................................................... 
 (d) Arrest or confinement .......................................................................... 
 (e) Remedy ....................................................................................... 


Chapter VIII .Trial Procedure Generally 


Rule 801. Military judge's responsibilities; other matters ............................................... 


(a) Responsibilities of military judge ................................................................ 
 (b) Rules of court; contempt ....................................................................... 
 (c) Obtaining evidence ............................................................................. 
 (d) Uncharged offenses ............................................................................ 
 (e) Interlocutory questions and questions of law ..................................................... 
 (1) Rulings by the military judge ............................................................... 
 (A) Finality of rulings ..................................................................... 
 (B) Changing a ruling ..................................................................... 
 (C) Article 39(a) sessions .................................................................. 

Page 

(2) Rulings by the president of a special court-martial without a military judge ..................... 
 (A) Questions of law ...................................................................... 
 (B) Questions of fact ...................................................................... 
 (C) Changing a ruling ..................................................................... 
 (D) Presence of members .................................................................. 
 (3) Procedures for rulings by the president of a special court-martial without a military judge which are 

subject to objection by a member ......................................................... (A) Determination ......................................................................... 
 (B) Instructions ........................................................................... 
 (C) Voting ................................................................................ 
 (D) Consultation ........................................................................... 
 (4) Standard of proof .......................................................................... 
 (5) Scope ..................................................................................... 
 (f) Rulings on record .............................................................................. 


(g) Effect of failure to raise defenses or objections ................................................... 


Rule 802 . Conferences ............................................................................... 
 (a) In general ..................................................................................... 
 (b) Matters on record .............................................................................. 
 (c) Rights of parties ............................................................................... 
 (d) Accused's presence ............................................................................ 
 (e) Admission ..................................................................................... 
 (f) Limitations .................................................................................... 


Rule 803 . Court-martial sessions without members under Article 39(a) ................................. 


Rule 804 . Presence of the accused at trial proceedings ................................................ 
 (a) Presence required .............................................................................. 
 (b) Continued presence not required ................................................................ 
 (c) Appearance and security of accused ............................................................. 
 (1) Appearance ................................................................................ 
 (2) Custody ................................................................................... 
 (3) Restraint .................................................................................. 


Rule 805 . Presence of military judge. members. and counsel ........................................... 
 (a) Military judge ................................................................................. 
 (b) Members ...................................................................................... 
 (c) Counsel ....................................................................................... 
 (d) Effect of replacement of member or military judge ............................................... 
 (1) Members .................................................................................. 
 (2) Military judge ............................................................................. 


Rule 806 . Public trial ................................................................................. 
 (a) In general ..................................................................................... 
 (b) Control of spectators ........................................................................... 
 (c) Photography and broadcasting prohibited ......................................................... 


Rule 807 . Oaths ..................................................................................... 
 (a) Definition ..................................................................................... 
 (b) Oaths in courts-martial ......................................................................... 
 (I) Who must be sworn ........................................................................ 
 (A) Court-martial personnel ................................................................ 
 (B) Witnesses ............................................................................. 
 (2) Procedure for administering oaths ........................................................... 


Rule 808 . Record of trial ............................................................................. 


Rule 809 . Contempt proceedings ..................................................................... 


(a) In general ..................................................................................... 


... (b) Method of dlsposlt~on .......................................................................... 


(1) Summary disposition ....................................................................... 
 (2) Disposition upon notice and hearing ......................................................... 


(c) Procedure; who may punish for contempt ........................................................ 
 (I) Members not present ....................................................................... 
 (2) Members present ........................................................................... 
 (A) Instructions ........................................................................... 
 (B) Findings .............................................................................. 
 (C) Sentence .............................................................................. 
 (D) Announcement ........................................................................ 
 (d) Record; review ................................................................................ 


xiii 

(e) Untimely requests .............................................................................. 


(f) Scope ......................................................................................... 


Rule 904 . Arraignment ............................................................................... 


Rule 905 . Motions generally .......................................................................... 


(a) Definitions and form ........................................................................... 


(b) Pretrial motions ................................................................................ 


(c) Burden of proof ............................................................................... 


(1) Standard ................................................................................... 


(2) Assignment ................................................................................ 


(d) Ruling on motions ............................................................................. 


(e) Effect of failure to raise defenses or objections ................................................... 


(f) Reconsideration ................................................................................ 


(g) Effect of final determinations ................................................................... 
 (h) Written motions ............................................................................... 


(i) Service ........................................................................................ 
 (j) Application to convening authority .............................................................. 


(k) Production of statements on motion to suppress .................................................. 


Rule 906 . Motions tor appropriate relief ............................................................... 


(a) General ....................................................................................... 


(b) Grounds for appropriate relief ................................................................... 


Rule 907 . Motions to dismiss ......................................................................... 


(a) In general ..................................................................................... 


(b) Grounds for dismissal .......................................................................... 
 (1) Nonwaivable grounds ....................................................................... 


(2) Waivable grounds .......................................................................... 
 (3) Permissible grounds ........................................................................ 


Rule 908 . Appeal by the United States ................................................................ 


(a) In general ..................................................................................... 


(b) Procedure ..................................................................................... 


(I) Delay ..................................................................................... 
 (2) Decision to appeal ....................................................................... 
 (3) Notice of appeal ........................................................................... 
 (4) Effect on the court-martial .................................................................. 
 (5) Record ..................................................................................... 
 (6) Forwarding ................................................................................ 
 (7) Appeal filed ............................................................................... 
 (8) Appeal not filed ............................................................................ 


(c) Appellate proceedings .......................................................................... 
 (1) Appellate counsel .......................................................................... 


(2) Court of Military Review ................................................................... 
 (3) Action following decision of Court of Military Review ........................................ 
 (d) Military judge ................................................................................. 


Rule 909 . Capacity of the accused to stand trlal by court-martial ....................................... 
 (a) In general ...................................................................................... 


(b) Presumption of capacity ........................................................................ 


(c) Determination at trial ........................................................................... 


(1) Nature of issue ............................................................................. 
 (2) Standard ................................................................................... 


Rule 910 . Pleas ...................................................................................... 


(a) Alternatives ................................................................................... 


(1) In general .................................................................................. 


(2) Conditional pleas ........................................................................... 


(b) Refusal to plead; irregular plea .................................................................. 


(c) Advice to accused ............................................................................. 


(d) Ensuring that the plea is voluntary .............................................................. 


(e) Determining accuracy of plea ................................................................... 
 (f) Plea agreement inquiry ......................................................................... 


(1) In general ................................................................................. 


(2) Notice ..................................................................................... 


(3) Disclosure ................................................................................. 
 (4) Inquiry .................................................................................... 


(g) Findings ...................................................................................... 
 (h) Later action ................................................................................... 

(1) Withdrawal by the accused .................................................................. 
 (2) Statements by accused inconsistent with plea ................................................. 
 (3) Pretrial agreement inquiry ................................................................... 


(i) Record of proceedings .......................................................................... 
 (j) Waiver ........................................................................................ 


Rule 911 . Assembly of the court-martial .............................................................. 


Rule 912 . Challenge of selection of members; examination and challenges of members ................. 
 (a) Pretrial matters ................................................................................ 
 (1) Questionnaires ............................................................................. 
 (2) Other materials ............................................................................ 


(b) Challenge of selection of members .............................................................. 
 (I) Motion .................................................................................... 
 (2) Procedure ................................................................................. 
 (3) Waiver .................................................................................... 


(c) Stating grounds for challenge ................................................................... 
 (d) Examination of members ....................................................................... 
 (e) Evidence ...................................................................................... 


(f) Challenges and removal for cause ............................................................... 
 (1) Grounds ................................................................................... 


(2) When made ................................................................................ 
 (A) Upon completion of examination ........................................................ 
 (B) Other times ........................................................................... 
 (3) Procedure ................................................................................. 
 (4) Waiver .................................................................................... 
 (g) Peremptory challenges .......................................................................... 
 (1) Procedure ................................................................................. 
 (2) Waiver .................................................................................... 


(h) Special courts-martial without a military judge ................................................... 
 (i) Definitions .................................................................................... 
 (1) Military judge ............................................................................. 
 (2) Witness ................................................................................... 
 (3) Investigating officer ........................................................................ 


Rule 913 . Presentation of the case on the merits ...................................................... 


(a) Preliminary instructions ........................................................................ 
 (b) Opening statements ............................................................................ 
 (c) Presentation of evidence ........................................................................ 
 (1) Order of presentation ....................................................................... 
 (2) Taking testimony ........................................................................... 
 (3) Views and inspections ...................................................................... 
 (4) Evidence subject to exclusion ............................................................... 


(5) Reopening case ............................................................................ 


Rule 914 . Production of statements of witnesses ...................................................... 


(a) Motion for production .......................................................................... 


(b) Production of entire statement ................................................................... 
 (c) Production of excised statement ................................................................. 
 (d) Recess for examination of the statement ......................................................... 
 (e) Remedy for failure to produce statement ......................................................... 
 (f) Definition ..................................................................................... 


Rule 91 5. Mistrial .................................................................................... 
 (a) In general ..................................................................................... 
 (b) Procedure ..................................................................................... 


(c) Effect of declaration of mistrial ................................................................. 
 (1) Withdrawal of charges ...................................................................... 
 (2) Further proceedings ........................................................................ 


Rule 916 . Defenses .................................................................................. 
 (a) In general ..................................................................................... 
 (b) Burden of proof ............................................................................... 
 (c) Justification ................................................................................... 


(d) Obedience to orders ............................................................................ 


(e) Self-defense ................................................................................... 
 (1) Homicide or aggravated assault cases ........................................................ 
 (2) Certain aggravated assault cases ............................................................. 
 (3) Other assaults .............................................................................. 

Page 

(4) Loss of right to self-defense ................................................................. 11- 129 


(5) Defense of another ......................................................................... 11- 129 


(f) Accident ...................................................................................... 11-130 


(g) Entrapment .................................................................................... 11- 130 


(h) Coercion or duress ............................................................................. 11- 130 


(i) Inability ....................................................................................... 11- 130 


Cj) Ignorance or mistake of fact .................................................................... 11- 130 


(k) Lack of mental responsibility ................................................................... 11-131 


(1) General lack of mental responsibility ........................................................ 11-131 


(2) Partial mental responsibility ................................................................. 11-131 


(3) Procedure ................................................................................. 11-131 


(A) Presumption ........................................................................... 11-131 


(B) Inquiry ............................................................................... 11-131 


(C) Determination ......................................................................... 11-131 


(1) Not defenses generally ......................................................................... 11-131 


(I) Ignorance or mistake of law ................................................................. 11- 132 


(2) Voluntary intoxication ...................................................................... 11- 132 


Rule 917 . Motion for a finding of not guilty ............................................................ 11-132 


(a) In general ..................................................................................... 11-132 


(b) Form of motion ................................................................................ 11-132 


(c) Procedure ..................................................................................... 11- 132 


(d) Standard ...................................................................................... 11-1 32 


(e) Motion as to greater offense .................................................................... 11-1 32 


(f) Effect of ruling ................................................................................ 11- 133 


(g) Effect of denial on review ...................................................................... 11-133 


Rule 918 . Findings ................................................................................... 11-133 


(a) General findings ............................................................................... 11-133 


(1) As to a specification ........................................................................ 11-133 


(2) As to a charge ............................................................................. 11- 133 


(b) Special findings ................................................................................ 11-1 33 


(c) Basis of findings ............................................................................... 11- 134 


Rule 919 . Argument by counsel on findings ........................................................... 11-134 


(a) In general ..................................................................................... 11- 134 


(b) Contents ...................................................................................... 11-134 


(c) Waiver of objection to improper argument ....................................................... 11-135 


Rule 920 . Instructions on findings .................................................................... 11-1 35 


(a) In general ..................................................................................... 11-1 35 


(b) When given ................................................................................... 11- 135 


(c) Requests for instructions ........................................................................ 11-135 


(d) How given .................................................................................... 11-135 


(e) Required instructions ........................................................................... 11-130 


(f) Waiver ........................................................................................ 11-136 


Rule 921 . Deliberations and voting on findings ........................................................ 11-136 


(a) In general ..................................................................................... 11-136 


(b) Deliberations .................................................................................. 11-136 


(c) Voting ........................................................................................ 11-137 


(1) Secret ballot ............................................................................... 11-137 


(2) Number of votes required to convict ......................................................... 11-137 


(A) Death penalty mandatory ............................................................... 11-137 


(B) Other offenses ......................................................................... 11- 137 


(3) Acquittal .................................................................................. 11- 137 


(4) Included offenses .......................................................................... 11- 137 


(5) Procedure for voting ........................................................................ 11-137 


(A) Order ................................................................................. 11- 137 


(B) Counting votes ........................................................................ 11- 137 


(d) Action after findings are reached ................................................................ 11- 137 


Rule 922 . Announcement of findings ................................................................. 11-138 


(a) In general ..................................................................................... 11-138 


(b) Findings by members .......................................................................... 11- 138 


(c) Findings by military judge ...................................................................... 11-138 


(d) Erroneous announcement ....................................................................... 11-138 


(e) Polling prohibited .............................................................................. 11- 138 


xvii 

Rule 923 . Impeachment of findings ................................................................... 


Rule 924 . Reconsideration of findings ................................................................ 
 (a) Time for reconsideration ........................................................................ 


(b) Procedure ..................................................................................... 


(c) Military judge sitting alone ..................................................................... 


Chapter X.Sentencing 


Rule 1001 . Presentencing procedure ................................................................. 11-141 


(a) In general ..................................................................................... 11-141 


(1) Procedure ................................................................................. 11-14] 


(2) Adjudging sentence ........................................................................ II- 141 


(3) Advice and inquiry ......................................................................... 11-141 


(b) Matter to be presented by the prosecution ........................................................ 11-14] 


(1) Service data from the charge sheet ........................................................... 11-141 


(2) Personal data and character of prior service of the accused .................................... 11-141 


(3) Evidence of prior convictions of the accused ................................................. 11-142 


(A) In general ............................................................................. 11-142 


(B) Pendency of appeal .................................................................... 11-142 


(C) Method of proof ....................................................................... 11-142 


(4) Evidence of aggravation .................................................................... 11-142 


(5) Evidence of rehabilitative potential .......................................................... 11-142 


(c) Matter to be presented by the defense ........................................................... 11-142 


(1) In general ................................................................................. 11-142 


(A) Matter in extenuation .................................................................. II- 142 


(B) Matter in mitigation .................................................................... II- 142 


(2) Statement by the accused ................................................................... II- 143 


(A) In general ............................................................................. 11-143 


(B) Testimony of the accused .............................................................. 11-143 


(C) Unsworn statement .................................................................... 11-143 


(3) Rules of evidence relaxed ................................................................... 11-143 


(d) Rebuttal and surrebuttal ........................................................................ II- 143 


(e) Production of witnesses ........................................................................ II- 143 


(I) In general ................................................................................. II- 143 


(2) Limitations ................................................................................ II- 143 


(0 Additional matters to be considered ............................................................. 11-14 


(g) Argument ..................................................................................... II- 144 


Rule 1002 . Sentence determination ................................................................... II- 144 


Rule 1003. Punishments ............................................................................. 11-14 


(a) In general ..................................................................................... II- 144 


(b) Authorized punishments ........................................................................ II- 144 


(c) Limits on punishments ......................................................................... II- 147 


(1) Based on offenses .......................................................................... 11-147 


(A) Offenses listed in Part IV .............................................................. 11-147 


(i) Maximum punishment ............................................................. 11-147 


(ii) Other punishments ................................................................ II- 147 


(B) Offenses not listed in Part IV ........................................................... II- 147 


(i) Included or related offenses ........................................................ II- 147 


(ii) Not included or related offenses .................................................... II- 147 


(C) Multiplicity ........................................................................... 11-147 


(2) Based on rank of accused ................................................................... 11-148 


(A) Commissioned or warrant officers, cadets, and midshipmen ............................... 11-148 


(B) Enlisted persons ....................................................................... 11-148 


(3) Based on other rules ........................................................................ 11-148 


(d) Circumstances permitting increased punishments ................................................... 11-148 


(1) Three or more convictions .................................................................. II- 148 


(2) Two or more convictions ................................................................ II- 149 


(3) Two or more offenses ...................................................................... II- 149 


Rule 1004 . Capital cases ............................................................................. 11-149 


(a) In general ..................................................................................... 11-149 


(b) Procedure ..................................................................................... 11-149 


(1) Notice ..................................................................................... 11-149 


(2) Evidence of aggravating circumstances ....................................................... II- 149 


(3) Evidence in extenuation and mitigation ...................................................... 11-149 


(4) Necessary findings ......................................................................... II- 149 

(5) Basis for findings .......................................................................... 


(6) Instructions ................................................................................ 


(7) Voting .................................................................................... 


(8) Announcement ............................................................................. 


(c) Aggravating circumstances ...................................................................... 


(d) Spying ........................................................................................ 


(e) Other penalties ................................................................................ 


Rule 1005 . Instructions on sentence ................................................................... 


(a) In general ..................................................................................... 


(b) When given ................................................................................... 


(c) Requests for instructions ........................................................................ 


(d) How given .................................................................................... 


(e) Required instructions ........................................................................... 


(f) Waiver ........................................................................................ 


Rule 1006 . Deliberations and voting on sentence ...................................................... 


(a) In general ..................................................................................... 


(b) Deliberations .................................................................................. 


(c) Proposal of sentences .......................................................................... 


(d) Voting ........................................................................................ 


(1) Duty of members .......................................................................... 


(2) Secret ballot ............................................................................... 


(3) Procedure ................................................................................. 
 (A) Order .............................:................................................... 


(B) Counting votes ........................................................................ 


(4) Number of votes required ................................................................... 


(A) Death ................................................................................. 


(B) Confinement for life or more than 10 years .............................................. 


(C) Other ................................................................................. 


(5) Mandatory sentence ........................................................................ 


(6) Effect of failure to agree .................................................................... 


(e) Action after a sentence is reached ............................................................... 


Rule 1007 . Announcement of sentence ............................................................... 


(a) In general ..................................................................................... 


(b) Erroneous announcement ....................................................................... 


(c) Polling prohibited .............................................................................. 


Rule 1008 . Impeachment of sentence ................................................................. 


Rule 1009 . Reconsideration of sentence .............................................................. 


(a) Time for reconsideration ........................................................................ 


(b) Limitations .................................................................................... 


(c) Initiation of reconsideration ..................................................................... 


(1) By members ............................................................................... 


(2) By military judge .......................................................................... 


(A) Adjudged by military judge ............................................................. 
 (B) Reached by members .................................................................. 


(3) By convening authority ..................................................................... 
 (d) Procedure with members ....................................................................... 


(I) Instructions ................................................................................ 


(2) Voting .................................................................................... 


(3) Number of votes required ................................................................... 


(A) With a view to increasing .............................................................. 


(B) With a view to decreasing .............................................................. 
 (4) Successful vote ............................................................................ 


Rule 1010 . Advice concerning post-trial and appellate rights ........................................... 


(a) Advice ........................................................................................ 


(b) Inquiry ...................................................................................... 


Rule 101 1 . Adjournment ............................................................................. 


Chapter XI .Post-Trial Procedure 

Rule 1101 . Report of result of trial; post-trial restraint; deferment of confinement ....................... 


(a) Report of the result of trial ..................................................................... 


(b) Post-trial confinement .......................................................................... 


xix 
(1) In general ................................................................................. II- 159 


(2) Who may order confinement ................................................................ 11- 159 


(3) Confinement on other grounds .............................................................. II- 159 


(c) Deferment of confinement ...................................................................... 11-159 


(1) In general ................................................................................. II- 159 


(2) Who may defer ............................................................................ II- 159 


(3) Action on deferment request ................................................................ II- 159 


(4) Orders .................................................................................... II- 160 


(5) Restraint when deferment is granted ......................................................... II- 160 


(6) End of deferment .......................................................................... II- 160 


(7) Rescission of deferment .................................................................... 


(A) Who may rescind ...................................................................... II- 160 


(B) Action ................................................................................ II- 160 


(C) Execution ............................................................................. 11-1 60 


(D) Orders ................................................................................ II- 160 


Rule 1102 . Post-trial sessions ........................................................................ 11-161 


(a) In general ..................................................................................... 11-161 


(b) Purpose ....................................................................................... 11-161 


(1) Proceedings in revision ..................................................................... 11-161 


(2) Article 39(a) sessions ....................................................................... 11-161 


(c) Matters not subject to post-trial sessions ......................................................... 11-161 


(d) When directed ................................................................................. 11-161 


(e) Procedure ..................................................................................... 11-161 


(I) Personnel .................................................................................. 11-161 


(2) Action .................................................................................... II- 162 


(3) Record .................................................................................... II- 162 


Rule 1103 . Preparation of record of trial .............................................................. II- 162 


(a) In general ..................................................................................... II- 162 


(b) General courts-martial .......................................................................... II- 162 


(1) Responsibility for preparation ............................................................... II- 162 


(2) Contents ................................................................................... II- 162 


(A) In general ............................................................................. II- 162 


(B) Verbatim transcript required ............................................................ II- 162 


(C) Verbatim transcript not required ........................................................ II- 162 


(D) Other matters .......................................................................... 11-1 62 


(3) Matters attached to the record ............................................................... II- 163 


(c) Special courts-martial .......................................................................... 11-163 


(1) Involving a bad-conduct discharge ........................................................... II- 163 


(2) Not involving a bad-conduct discharge ....................................................... II- 163 


(d) Summary courts-martial ........................................................................ 11-163 


(e) Acquittal; termination prior to findings .......................................................... II- 163 


(0 Loss of notes or recordings of the proceedings ................................................... II- 164 


(g) Copies of the record of trial .................................................................... II- 164 


(1) General and special courts-martial ........................................................... 11-164 


(A) In general ............................................................................. II- 164 


(B) Additional copies ...................................................................... II- 164 


(2) Summary courts-martial .................................................................... II- 164 


(h) Security classification .......................................................................... II- 164 


(i) Examination and correction before authentication ................................................. II- 164 


(1) General and special courts-martial ........................................................... II- 164 


(A) Examination and correction by trial counsel .............................................. II- 164 


(B) Examination by defense counsel ........................................................ II- 165 


(2) Summary courts-martial .................................................................... II- 165 


(j) Videotape and similar records ................................................................... II- 165 


(1) Recording proceedings ...................................................................... 11-165 


(2) Preparation of written record ................................................................ II- 165 


(3) Military exigency .......................................................................... 11-165 


(4) Further review ............................................................................. II- 165 


(A) Cases reviewed by the Court of Military Review ......................................... II- 165 


(B) Cases not reviewed by the Court of Military Review ..................................... 11-165 


(5) Accused's copy ............................................................................ II- 165 


Rule 1104 . Records of trial: authentication; service; loss; correction; forwarding ........................ 11-166 


(a) Authentication ................................................................................. II- 166 


(1) In general ................................................................................. II- 166 


XX 

(2) General and special courts-martial ........................................................... 
 (A) Authentication by the military judge ..................................................... 


(B) Substitute authentication ................................................................ 
 (3) Summary courts-martial .................................................................... 
 (b) Service ........................................................................................ 


(1) General and special courts-martial ........................................................... 


(A) Service of record of trial on accused .................................................... 


(B) Proof of service of record of trial on accused ............................................ 
 (C) Substitute service ...................................................................... 
 (D) Classified information ................................................................... 


(i) Forwarding to convening authority .................................................. 
 (ii) Responsibility of the convening authority ........................................... 


(iii) Contents of certificate ............................................................. 
 (2) Summary courts-martial .................................................................... 


(c) Loss of record ................................................................................. 


(d) Correction of record after authentication; certificate of correction .................................. 
 (1) In general ................................................................................. 
 (2) Procedure ................................................................................. 


(3) Authentication of certificate of correction; service on the accused .............................. 


(e) Forwarding .................................................................................... 


Rule 1105 . Matters submitted by the accused ......................................................... 
 (a) In general ..................................................................................... 


(b) Matters which may be submitted ................................................................ 
 (c) Time periods .................................................................................. 


(1) General courts-martial and special courts-martial in which a bad-conduct discharge was adjudged 

(2) Other special courts-martial ................................................................. 


(3) Summary courts-martial .................................................................... 
 (4) Post-trial sessions .......................................................................... 
 (5) Good cause ................................................................................ 
 (d) Waiver ........................................................................................ 
 (1) Failure to submit matters ................................................................... 
 (2) Submission of matters ......................................................................
 \ (3) Written waiver ............................................................................. 


(4) Absence of accused ........................................................................ 


Rule 1106 . Recommendation of the staff judge advocate or legal officer ................................ 
 (a) In general ..................................................................................... 
 (b) Disqualification ................................................................................ 


(c) When the convening authority has no staff judge advocate ........................................ 


(1) When the convening authority does not have a staff judge advocate or legal officer or that person 

is disqualified ........................................................................... (2) When the convening authority has a legal officer but wants the recommendation of a staff judge 

advocate ................................................................................ 

(d) Form and content of recommendation ............................................................ 
 (1) In general ................................................................................. 
 (2) Form ...................................................................................... 


(3) Required contents ......................................................................... 
 (4) Legal errors ............................................................................... 
 (5) Optional matters ........................................................................... 
 (6) Effect of error ............................................................................. 


(e) No findings of guilty ........................................................................... 
 (f) Service of recommendation on defense counsel; defense response .................................. 
 (1) Service of recommendation on defense counsel ............................................... 
 (2) Counsel for the accused .................................................................... 
 (3) Record of trial ............................................................................. 
 (4) Response .................................................................................. 
 (5) Time period ............................................................................... 
 (6) Waiver .................................................................................... 
 (7) New matter in addendum to recommendation ................................................. 


Rule 1107 . Action by convening authority ............................................................. 
 (a) Who may take action ........................................................................... 
 (b) General considerations ......................................................................... 
 (1) Discretion of convening authority ............................................................ 
 (2) When action may be taken .................................................................. 


...............................................................................
 (C) Hearing 

(D) Record;recommendation ............................................................... 


(E) Release from confinement .............................................................. 


(2) Action by officer exercising general court-martial jurisdiction over probationer .................. 
 .............................................................................
 (A) In general .............................................................................
 (B) Execution 

(e) Vacation of a suspended special court-martial sentence not including a bad-conduct discharge or of a 

suspended summary court-martial sentence ..................................................... ................................................................................. (1) In general 

(2) Notice to probationer ....................................................................... 
 ...................................................................................
 (3) Hearing ....................................................................
 (4) Record; recommendation 

...................................................................................
 (5) Decision 

Rule 1110 . Waiver or withdrawal of appellate review ................................................... 
 .....................................................................................
 (a) In general ...............................................................................
 (b) Right to counsel 

(1) In general ................................................................................. 


(2) Waiver .................................................................................... 


(A) Counsel who represented the accused at the court-martial ................................. 
 (B) Associate counsel ...................................................................... 


(C) Substitute counsel ..................................................................... 


(3) Withdrawal ................................................................................ 


(A) Appellate defense counsel .............................................................. 


(B) Associate defense counsel .............................................................. 


(C) No counsel ............................................................................ 


(4) Civilian counsel ............................................................................ 


(5) Record of trial ............................................................................. 


(6) Consult .................................................................................... 


(c) Compulsion. coercion. inducement prohibited .................................................... 


(d) Form of waiver or withdrawal ......................... ........................................ 


(e) To whom submitted ............................................................................ 


(1) Waiver .................................................................................... 


(2) Withdrawal ................................................................................ 


(f) Time limit ..................................................................................... 


(1) Waiver .................................................................................... 


(2) Withdrawal ................................................................................ 


(g) Effect of waiver or withdrawal; substantial compliance required ................................... 


(1) In general ................................................................................. 


(2) Waiver .................................................................................... 


(3) Withdrawal ................................................................................ 


(4) Substantial compliance required ............................................................. 


Rule 11 11 . Disposition of the record of trial after action ............................................... 


(a) General courts-martial .......................................................................... 


(1) Cases forwarded to the Judge Advocate General .............................................. 


(2) Cases forwarded to a judge advocate ......................................................... 


(b) Special courts-martial .......................................................................... 


(I) Cases including an approved bad-conduct discharge ........................................... 


(2) Other cases ................................................................................ 


(c) Summary courts-martial ........................................................................ 


Rule 11 12 . Review by a judge advocate ............................................................... 
 .....................................................................................
 (a) In general .....................................................................................
 (b) Exception ................................................................................
 (c) Disqualification 

(d) Form .....................................................................
 and content of review 

(e) Forwarding to officer exercising general court-martial jurisdiction .................................. 


(f) Action by officer exercising general court-martial jurisdiction ...................................... 
 .....................................................
 (g) Forwarding following review under this rule 

(1) Records forwarded to the Judge Advocate General ............................................ 


(2) Sentence including dismissal ................................................................ 
 ..............................................................................
 (3) Other records 

Rule 11 13 . Execution of sentences ................................................................... 


(a) In general ..................................................................................... 


(b) Punishments which the convening authority may order executed in the initial action ................. 

(c) Punishments which the convening authority may not order executed in the initial action ............. 
 (1) Dishonorable or a bad-conduct discharge ..................................................... 


(2) Dismissal of a commissioned officer. cadet. or midshipman ................................... 


(3) Sentences extending to death ................................................................ 


(d) Other considerations concerning the execution of certain sentences ................................. 
 (I) Death ..................................................................................... 
 (2) Confinement ............................................................................... 


(A) Effective date of confinement ........................................................... 
 (B) Nature of the confinement .............................................................. 
 (C) Place of confinement ................................................................... 
 (3) Confinement in lieu of fine ................................................................. 


(4) Restriction; hard labor without confinement .................................................. 


(5) Confinement on bread and water or diminished rations ........................................ 


(6) More than one sentence ..................................................................... 


Rule 11 14 . Promulgating orders ...................................................................... 


(a) In general ..................................................................................... 
 (1) Scope of rule .............................................................................. 


(2) Purpose ................................................................................... 
 (3) Summary courts-martial .................................................................... 


(b) By whom issued ............................................................................... 
 (1) Initial orders ............................................................................... 
 (2) Orders issued after the initial action ......................................................... 


(A) When the President or the Secretary concerned has taken final action ...................... 


(B) Other cases ........................................................................... 


(c) Contents ...................................................................................... 
 (1) In general ................................................................................. 
 (2) Dates ..................................................................................... 
 (3) Order promulgated regardless of the result of trial or nature of the action ....................... 


(d) Orders containing classified information ......................................................... 
 (e) Authentication ................................................................................. 
 (f) Distribution ................................................................................... 


Chapter XI1.Appeals and Review 

Rule 1201 . Action by the Judge Advocate General ..................................................... 


(a) Cases required to be referred to a Court of Military Review ....................................... 
 (b) Cases reviewed by the Judge Advocate General .................................................. 
 (1) Mandatory examination of certain general courts-martial ....................................... 


(2) Mandatory review of cases forwarded under R.C.M. 1 1 12(g)(l) ............................... 
 (3) Review by the Judge Advocate General after final review ..................................... 


(A) In general ............................................................................. 
 (B) Procedure ............................................................................. 
 (C) Time limits on applications ............................................................. 


(4) Rehearing ................................................................................. 


(c) Remission and suspension ...................................................................... 


Rule 1202 . Appellate counsel ......................................................................... 


(a) In general ..................................................................................... 
 (b) Duties ........................................................................................ 
 (1) Appellate Government counsel .............................................................. 


(2) Appellate defense counsel ................................................................... 


Rule 1203 . Review by a Court of Military Review ...................................................... 


(a) In general ..................................................................................... 


(b) Cases reviewed by a Court of Military Review ................................................... 
 (c) Action on cases reviewed by a Court of Military Review .......................................... 
 (1) Forwarding by the Judge Advocate General to the Court of Military Appeals .................... 
 (2) Action when sentence is set aside ........................................................... 


(3) Action when sentence is affirmed in whole or part ............................................ 


(A) Sentence requiring approval by the President ............................................. 
 (B) Other cases ........................................................................... 
 (4) Remission or suspension .................................................................... 


(d) Notification to accused ......................................................................... 
 (1) Notification of decision ..................................................................... 


(2) Notification of right to petition the Court of Military Appeals for review ....................... 


(3) Receipt by the accused-disposition ......................................................... 


(e) Cases not reviewed by the Court of Military Appeals ............................................. 

(f) Scope ......................................................................................... 


Rule 1204 . Review by the Court of Military Appeals .................................................... 


(a) Cases reviewed by the Court of Military Appeals ................................................. 


(b) Petition by the accused for review by the Court of Military Appeals ............................... 


(I) Counsel ................................................................................. 


(2) Forwarding petition ........................................................................ 


(c) Action on decision by the Court of Military Appeals .............................................. 


(1) In general ................................................................................. 


(2) Sentence requiring approval of the President .................................................. 


(3) Sentence requiring approval of the Secretary concerned ....................................... 


(4) Decision subject to review by the Supreme Court ............................................. 


Rule 1205 . Review by the Supreme Court ............................................................. 


(a) Cases subject to review by the Supreme Court ................................................... 


(b) Action by the Supreme Court ................................................................... 


Rule 1206 . Powers and responsibilities of the Secretary ............................................... 


(a) Sentences requiring approval by the Secretary .................................................... 


(b) Remission and suspension ...................................................................... 


(1) In general ................................................................................. 


(2) Substitution of discharge .................................................................... 


(3) Sentence commuted by the President ......................................................... 


Rule 1207 . Sentences requiring approval by the President ............................................. 


Rule 1208 . Restoration ............................................................................... 


(a) New Trial ..................................................................................... 


(b) Other cases .................................................................................... 


Rule 1209 . Finality of courts-martial .................................................................. 


(a) When a conviction is final ...................................................................... 
 (b) Effect of finality ............................................................................... 


Rule 1210 . New trial ................................................................................. 


(a) In general ..................................................................................... 


(b) Who may petition .............................................................................. 


(c) Form of petition ............................................................................... 


(d) Effect of petition ............................................................................... 


(e) Who may act on petition ....................................................................... 


(f) Grounds for new trial .......................................................................... 


(1) In general ................................................................................. 


(2) Newly discovered evidence ................................................................. 
 (3) Fraud on court-martial ...................................................................... 


(g) Action on the petition .......................................................................... 


(1) In general ................................................................................. 


(2) Courts of Military Review; Court of Military Appeals ......................................... 
 (3) The Judge Advocates General ............................................................... 


(h) Action when new trial is granted ................................................................ 
 (1) Forwarding to convening authority ........................................................... 
 (2) Charges at new trial ........................................................................ 


(3) Action by convening authority .............................................................. 


(4) Disposition of record ....................................................................... 


(5) Court-martial orders ........................................................................ 


(6) Action by persons charged with execution of the sentence ..................................... 


Chapter XIII .Summary Courts-Martial 


Rule 1301 . Summary courts-martial generally ......................................................... 


(a) Composition ................................................................................... 


(b) Function ...................................................................................... 


(c) Jurisdiction .................................................................................... 


(d) Punishment .................................................................................... 


(1) Limitations-amount ....................................................................... 


(2) Limitations-pay grade ..................................................................... 


(e) Counsel ....................................................................................... 


(f) Power to obtain witnesses and evidence .......................................................... 
 (g) Secretarial limitations .......................................................................... 


Rule 1302 . Convening a summary courts-martial ...................................................... 


(a) Who may convene summary courts-martial ....................................................... 

Page 

(b) When convening authority is accuser ............................................................ 
 (c) Procedure ..................................................................................... 


Rule 1303 . Right to object to trial by summary court-martial ........................................... 


Rule 1304 . Trial procedure ........................................................................... 
 (a) Pretrial duties .................................................................................. 


(1) Examination of file ......................................................................... 


(2) Report of irregularity ....................................................................... 


(3) Correction and amendment .................................................................. 
 (b) Summary court-martial procedure ............................................................... 


(1) Preliminary proceeding ..................................................................... 


(2) Trial proceeding ........................................................................... 


(A) Objection to trial ...................................................................... 


(B) Arraignment ........................................................................... 


(C) Motions ............................................................................... 


(D) Pleas ................................................................................. 
 (i) Not guilty pleas ................................................................... 


(ii) Guilty pleas ...................................................................... 
 (iii) Rejected guilty pleas .............................................................. 


(iv) No plea .......................................................................... 
 (v) Changed pleas .................................................................... 


(E) Presentation of evidence ................................................................ 


(F) Findings and sentence .................................................................. 


Rule 1305 . Record of trial ............................................................................ 


(a) In general ..................................................................................... 


(b) Contents ...................................................................................... 
 (c) Authentication ................................................................................. 


(d) Medical certificate ............................................................................. 


(e) Forwarding copies of the record ................................................................. 
 (1) Accused's copy ............................................................................ 
 (A) Service ............................................................................... 


(B) Receipt ............................................................................... 


(C) Classified information .................................................................. 


(2) Forwarding to the convening authority ....................................................... 


(3) Further disposition ......................................................................... 


Rule 1306 . Post-trial procedure ....................................................................... 


(a) Matters submitted by the accused ............................................................... 


(b) Convening authority's action .................................................................... 


(1) Who shall act .............................................................................. 


(2) Action .................................................................................... 
 (3) Signature .................................................................................. 
 (4) Subsequent action .......................................................................... 
 (c) Review by ajudge advocate .................................................................... 


(d) Review by the Judge Advocate General .......................................................... 


Part Ill MILITARY RULES OF EVIDENCE 

Section I . GENERAL PROVISIONS .................................................................... 


Rule 101 . Scope ..................................................................................... 
 (a) Applicability .................................................................................. 
 (b) Secondary sources ............................................................................. 
 (c) Rule of construction ............................................................................ 


Rule 102 . Purpose and construction .................................................................. 


Rule 103 . Rulings on evidence ....................................................................... 
 (a) Effect of erroneous ruling ...................................................................... 
 (1) Objection .................................................................................. 


(2) Offer of proof ............................................................................. 


(b) Record of offer and ruling ...................................................................... 
 (c) Hearing of members ........................................................................... 
 (d) Plain error ..................................................................................... 


Rule 104 . Preliminary questions ...................................................................... 


(a) Questions of admissibility generally ............................................................. 


(b) Relevancy conditioned on fact .................................................................. 
 (c) Hearing of members ........................................................................... 

Page 

(d) Testimony by accused .......................................................................... 


(e) Weight and credibility .......................................................................... 


Rule 105 . Limited admissibility ....................................................................... 


Rule 106 . Remainder of or related writings or recorded statements ..................................... 


Section II . JUDICIAL NOTICE ........................................................................ 


Rule 201 . Judicial notice of adjudicative facts ......................................................... 


(a) Scope of rule .................................................................................. 


(b) Kinds of facts ................................................................................. 


(c) When discretionary ............................................................................ 


(d) When mandatory ............................................................................... 
 (e) Opportunity to be heard ........................................................................ 


(f) Time of taking notice .......................................................................... 


(g) Instructing members ............................................................................ 


Rule 201A . Judicial notice of law ..................................................................... 


(a) Domestic law .................................................................................. 


(b) Foreign law ................................................................................... 


Section 111 . EXCLUSIONARY RULES AND RELATED MATTERS CONCERNING SELF.INCRIMINATION. 


SEARCH AND SEIZURE. AND EYEWITNESS IDENTIFICATION ........................................ 


Rule 301 . Privilege concerning compulsory self-incrimination .......................................... 
 (a) General rule ................................................................................... 


(b) Standing ...................................................................................... 


(1) In general ................................................................................. 


(2) Judicial advice ............................................................................. 


(c) Exercise of the privilege ........................................................................ 


(1) Immunity generally ......................................................................... 


(2) Notification of immunity or leniency ......................................................... 
 (d) Waiver by a witness ............................................................................ 


(e) Waiver by the accused .......................................................................... 


(f) Effect of claiming the privilege ................................................................. 


(1) Generally .................................................................................. 
 (2) On cross-examination ....................................................................... 


(3) Pretrial .................................................................................... 


(g) Instructions .................................................................................... 


Rule 302 . Privilege concerning mental examination of an accused ...................................... 
 (a) General rule ................................................................................... 


(b) Exceptions .................................................................................... 


(c) Release of evidence ............................................................................ 


(d) Noncompliance by the accused .................................................................. 


(e) Procedure ..................................................................................... 


Rule 303 . Degrading questions ....................................................................... 


Rule 304 . Confessions and admissions ............................................................... 
 (a) General rule ................................................................................... 


(b) Exception ..................................................................................... 


(c) Definitions .................................................................................... 


(1) Confession ................................................................................ 
 (2) Admission ................................................................................. 
 (3) Involuntary ................................................................................ 
 (d) Procedure ..................................................................................... 


(1) Disclosure ................................................................................. 
 (2) Motions and objections ..................................................................... 
 (3) Specificity ................................................................................. 


(4) Rulings .............................. ..... ................................................. 


(5) Effect of guilty plea ........................................................................ 
 (e) Burden of proof ............................................................................... 


(1) In general ................................................................................. 
 (2) Weight of the evidence ..................................................................... 
 (3) Derivative evidence ........................................................................ 
 (f) Defense evidence .............................................................................. 
 (g) Corroboration .................................................................................. 
 (1) Quantum of evidence needed ................................................................ 


(2) Procedure ................................................................................. 


xxvii 
(h) Miscellaneous ................................................................................. 
 (1) Oral statements ............................................................................ 
 (2) Completedness ............................................................................. 
 (3) Certain admissions by silence ............................................................... 


Rule 305 . Warnings about rights ...................................................................... 
 (a) General rule ................................................................................... 
 (b) Definitions .................................................................................... 
 (1) Persons subject to the code ................................................................. 
 (2) Interrogation ............................................................................... 


(c) Warnings concerning the accusation. right to remain silent. and use of statements ................... 


(d) Counsel rights and warnings .................................................................... 
 (1) General rule ............................................................................... 
 (2) Counsel ................................................................................... 
 (e) Notice to counsel .............................................................................. 
 (f) Exercise of rights .............................................................................. 
 (g) Waiver ........................................................................................ 
 (1) General rule ............................................................................... 
 (2) Counsel ................................................................................... 
 (h) Nonmilitary interrogations ...................................................................... 
 (1) General rule ............................................................................... 
 (2) Foreign interrogations ...................................................................... 


Rule 306. Statements by one of several accused ...................................................... 


Rule 31 1 . Evidence obtained from unlawful searches and seizures ..................................... 
 (a) General rule ................................................................................... 


(1) Objection .................................................................................. 
 (2) Adequate interest ........................................................................... 
 (b) Exception ..................................................................................... 
 (c) Nature of search or seizure ..................................................................... 
 (1) Military personnel .......................................................................... 
 (2) Other officials ............................................................................. 
 (3) Officials of a foreign government ............................................................ 


(d) Motions to suppress and objections .............................................................. 
 (1) Disclosure ................................................................................. 
 (2) Motion or objection ........................................................................ 
 (3) Specificity ................................................................................. 
 (4) Rulings .................................................................................... 
 (e) Burden of proof ............................................................................... 
 (1) In general ................................................................................. 
 (2) Derivative evidence ........................................................................ 
 (3) Specific motions or objections ............................................................... 
 (f) Defense evidence .............................................................................. 
 (g) Scope of motions and objections challenging probable cause ....................................... 
 (1) Generally .................................................................................. 
 (2) False statements ............................................................................ 
 (h) Objections to evidence seized unlawfully ........................................................ 
 (i) Effect of guilty plea ............................................................................. 


Rule 312 . Body views and intrusions ................................................................. 
 (a) General rule ................................................................................... 
 (b) Visual inspections of the body .................................................................. 
 (1) Consensual ................................................................................ 
 (2) Involuntary ................................................................................ 
 (c) Intrusion into body cavities ..................................................................... 
 (1) For purposes of seizure ..................................................................... 
 (2) For purposes of search ...................................................................... 
 (d) Extraction of body fluids ....................................................................... 
 (e) Other intrusive searches ........................................................................ 
 (f) Intrusions for valid medical purposes ............................................................ 
 (g) Medical qualifications .......................................................................... 


Rule 313 . Inspections and inventories in the armed forces ............................................. 
 (a) General rule ................................................................................... 
 (b) Inspections .................................................................................... 
 (c) Inventories .................................................................................... 


xxviii 

Rule 317. Interception of wire and oral communications ............................................... 
 (a) General rule ................................................................................... 
 (b) Authorization for judicial applications in the United States ........................................ 
 (c) Regulations .................................................................................... 


Rule 321. Eyewitness Identification ................................................................... 
 (a) General rule ................................................................................... 
 (1) Admissibility .............................................................................. 
 (2) Exclusionary rule .......................................................................... 
 (b) Definition of "unlawful" ....................................................................... 
 (I) Lineups and other identification processes .................................................... 
 (2) Lineups: right to counsel .................................................................... 


(A) Military lineups ....................................................................... 
 (B) Nonmilitary lineups .................................................................... 
 (c) Motions to suppress and objections .............................................................. 
 (1) Disclosure ................................................................................. 
 (2) Motion or objection ........................................................................ 
 (3) Specificity ................................................................................. 
 (d) Burden of proof ............................................................................... 
 (1) Right to counsel ........................................................................... 
 (2) Unreliable identification .................................................................... 
 (e) Defense evidence .............................................................................. 
 (f) Rulings ....................................................................................... 


(g) Effect of guilty pleas ........................................................................... 


Section IV .RELEVANCY AND ITS LIMITS ............................................................. 


Rule 401. Definition of "relevant evidence" ........................................................... 


Rule 402. Relevant evidence generally admissible; irrelevant evidence inadmissible ..................... 


Rule 403. Exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time .......... 


Rule 404. Character evidence not admissible to prove conduct; exceptions; other crimes ............... 
 (a) Character evidence generally .................................................................... 
 (1) Character of the accused .................................................................... 
 (2) Character of victim ......................................................................... 
 (3) Character of witness ........................................................................ 
 (b) Other crimes. wrongs. or acts ................................................................... 


Rule 405. Methods of proving character ............................................................... 


(a) Reputation or opinion .......................................................................... 


(b) Specific instances of conduct ................................................................... 
 (c) Affidavits ..................................................................................... 
 (d) Definitions .................................................................................... 


Rule 406. Habit; routine practice ...................................................................... 


Rule 407. Subsequent remedial measures ............................................................. 


Rule 408. Compromise and offer to compromise ...................................................... 


Rule 409. Payment of medical and similar expenses ................................................... 


Rule 410. Inadmissibility of pleas, plea discussions, and related statements ............................ 
 (a) In general ..................................................................................... 
 (b) Definitions .................................................................................... 


Rule 41 1 . Liability insurance ......................................................................... 


Rule 412. Nonconsensual sexual offenses; relevance of victim's past behavior ......................... 


Section V . PRIVILEGES .............................................................................. 


Rule 501. General rule ............................................................................... 


Rule 502. Lawyer-client privilege ..................................................................... 
 (a) General rule of privilege ........................................................................ 
 (b) Definitions .................................................................................... 


(c) Who may claim the privilege ................................................................... 
 (d) Exceptions .................................................................................... 
 (1) Crime or fraud ............................................................................. 
 (2) Claimants through same deceased client ...................................................... 
 (3) Breach of duty by lawyer or client .......... ;................................................ 
 (4) Document attested by lawyer ................................................................ 

(5) Joint clients ................................................................................ 


Rule 503 . Communications to clergy .................................................................. 


(a) General rule of privilege ........................................................................ 
 (b) Definitions .................................................................................... 


(c) Who may claim the privilege ................................................................... 


Rule 504 . Husband-wife privilege ..................................................................... 


(a) Spousal incapacity ............................................................................. 
 (b) Confidential communication made during marriage ............................................... 


(1) General rule of privilege .................................................................... 
 (2) Definition ................................................................................. 


(3) Who may claim the privilege ................................................................ 
 (c) Exceptions .................................................................................... 


(1) Spousal incapacity only ..................................................................... 
 (2) Spousal incapacity and confidential communications .......................................... 


Rule 505 . Classified information ...................................................................... 


(a) General rule of privilege ........................................................................ 
 (b) Definitions .................................................................................... 
 (1) Classified information ...................................................................... 


(2) National security ........................................................................... 
 (c) Who may claim the privilege ................................................................... 


(d) Action prior to referral of charges ............................................................... 
 (e) Pretrial session ................................................................................ 


(f) Action after referral of charges .................................................................. 


(g) Disclosure of classified information to the accused ................................................ 
 (1) Protective order ............................................................................ 
 (2) Limited disclosure .......................................................................... 
 (3) Disclosure at trial of certain statements previously made by a witness .......................... 
 (A) Scope ................................................................................. 


(B) Closed session ......................................................................... 
 (4) Record of trial ............................................................................. 


(h) Notice of the accused's intention to disclose classified information ................................. 
 (1) Notice by the accused ...................................................................... 


(2) Continuing duty to notify ................................................................... 


(3) Content of notice ........................................................................... 
 (4) Prohibition against disclosure ............................................................... 


(5) Failure to comply .......................................................................... 


(i) In camera proceedings for cases involving classified information ................................... 
 (1) Definition ................................................................................. 
 (2) Motion for in camera proceeding ............................................................ 


(3) Demonstration of national security nature of the information ................................... 
 (4) In camera proceeding ....................................................................... 
 (A) Procedure ............................................................................. 
 (B) Standard .............................................................................. 


(C) Ruling ................................................................................ 


(D) Alternatives to full disclosure ........................................................... 
 (E) Sanctions ............................................................................. 


(j) Introduction of classified information ............................................................ 
 (1) Classified status ............................................................................ 
 (2) Precautions by the military judge ............................................................ 
 (3) Contents of writing. recording. or photograph ................................................ 
 (4) Taking of testimony ........................................................................ 


(5) Closed session ............................................................................. 


(6) Record of trial ............................................................................. 


(k) 	 Security procedures to safeguard against compromise of classified information disclosed to courtsmartial ...................................................................................... 

Rule 506 . Government information other than classified information .................................... 


(a) General rule of privilege ........................................................................ 
 (b) Scope ......................................................................................... 


(c) Who may claim the privilege ................................................................... 


(d) Action prior to referral of charges ............................................................... 
 (e) Action after referral of charges .................................................................. 
 (f) Pretrial session ................................................................................ 
 (g) Disclosure of government information to the accused ............................................. 


(h) Prohibition against disclosure ................................................................... 

(i) In camera proceedings .......................................................................... 


(1) Definition ................................................................................. 
 (2) Motion for in camera proceeding ............................................................ 


(3) Demonstration of public interest nature of the information ..................................... 
 (4) In camera proceeding ....................................................................... 
 (A) 	Procedure ............................................................................. 


(B) 	Standard .............................................................................. 
 (C) Ruling ................................................................................ 
 (D) 	Sanction .............................................................................. 


(i) Introduction of government information subject to a claim of privilege ............................. 
 (1) Precautions by military judge ............................................................... 


(2) Contents of writing, recording. or photograph ................................................ 
 (3) Taking of testimony ........................................................................ 


(k) Procedures to safeguard against compromise of government information disclosed to courts-martial ... 

Rule 507. Identity of informant ....................................................................... 
 (a) Rule of privilege ............................................................................... 


(b) Who may claim the privilege ................................................................... 
 (c) Exceptions .................................................................................... 


(1) Voluntary disclosures; informant as witness .................................................. 
 (2) Testimony on the issue of guilt or innocence ................................................. 
 (3) Legality of obtaining evidence .............................................................. 
 (d) Procedures .................................................................................... 


Rule 508. Political vote ............................................................................... 


Rule 509. Deliberations of courts and juries ........................................................... 


Rule 510. Waiver of privilege by voluntary disclosure .................................................. 


Rule 511. Privileged matter disclosed under compulsion or without opportunity to claim privilege ....... 


Rule 512. Comment upon or inference from claim of privilege; instruction .............................. 


(a) Comment or inference not permitted ............................................................. 
 (b) Claiming privilege without knowledge of members ............................................... 


(c) Instruction ..................................................................................... 


Section VI. WITNESSES ............................................................................... 


Rule 601. General rule of competency ................................................................ 


Rule 602. Lack of personal knowledge ................................................................ 


Rule 603. Oath or affirmation ......................................................................... 


Rule 604. Interpreters ................................................................................ 


Rule 605. Competency of military judge as witness .................................................... 


Rule 606. Competency of court members as witness .................................................. 
 (a) At the court-martial ............................................................................ 


(b) Inquiry into validity of findings or sentence ...................................................... 


Rule 607. Who may impeach ....................................................................... 


Rule 608. Evidence of character. conduct. and bias of witness ......................................... 


(a) Opinion and reputation evidence of character ..................................................... 
 (b) Specific instances of conduct ................................................................... 
 (c) Evidence of bias ............................................................................... 


Rule 609. Impeachment by evidence of conviction of crime ............................................ 


(a) General rule ................................................................................... 
 (b) 	 Time limit ..................................................................................... 
 (c) 	 Effect of pardon. annulment. or certificate of rehabilitation ....: .................................. 
 (d) 	 Juvenile adjudications ...................................................................... (e) 	 Pendency of appeal ............................................................................ 
 .'i.

(f) 	 Definition ..................................................................................... 


Rule 610. Religious beliefs or opinions ............................................................ 


Rule 61 1 . Mode and order of interrogation and presentation ........................................... 
 (a) Control by the military judge ................................................................... 


(b) Scope by cross-examination ..................................................................... 
 (c) Leading questions .............................................................................. 

Rule 612 . Writing used to refresh memory ............................................................ 


Rule 613 . Prior statements of witnesses .............................................................. 


(a) Examining witness concerning prior statement .................................................... 


(b) Extrinsic evidence of prior inconsistent statement of witness ....................................... 


Rule 614 . Calling and interrogation of witnesses by the court-martial ................................... 


(a) Calling by the court-martial ..................................................................... 


(b) Interrogation by the court-martial ................................................................ 


(c) Objections ..................................................................................... 


Rule 615 . Exclusion of witnesses ..................................................................... 


Section VII . OPINIONS AND EXPERT TESTIMONY ................................................ 


Rule 701 . Opinion testimony by lay witnesses .................................................... 


Rule 702 . Testimony by experts ...................................................................... 


Rule 703 . Bases of opinion testimony by experts ................................................ 


Rule 704 . Opinion on ultimate issue ........................................................... 


Rule 705 . Disclosure of facts or data underlying expert opinion ........................................ 


Rule 706 . Court appointed experts .................................................................... 


(a) Appointment and. compensation ................................................................. 


(b) Disclosure of employment ...................................................................... 


..............................................................
 (c) Accused's experts of own selection 

Section VIII . HEARSAY ............................................................................... 


Rule 801 . Definitions ................................................................................. 


(a) Statement ..................................................................................... 


(b) Declarant ...................................................................................... 


(c) Hearsay ....................................................................................... 


...............................................................
 (d) Statements which are not hearsay 

(1) Prior statement by witness .................................................................. 


(2) Admission by party-opponent ............................................................... 


Rule 802 . Hearsay rule ............................................................................... 


Rule 803 . Hearsay exceptions; availability of declarant immaterial ...................................... 


(1) Present sense impression .................................................................... 


(2) Excited utterance ........................................................................... 


(3) Then existing mental. emotional. or physical condition ........................................ 


(4) Statements for purposes of medical diagnosis or treatment ..................................... 


(5) Recorded recollection ....................................................................... 


(6) Records of regularly conducted activity ...................................................... 


(7) Absence of entry in records kept in accordance with the provisions of paragraph (6) ............. 
 (8) Public records and reports .................................................................. 


(9) Records of vital statistics ................................................................... 


(10) Absence of public record or entry ........................................................... 


(1 1) Records of religious organizations ........................................................... 


(12) Marriage. baptismal. and similar certificates .................................................. 


(13) Family records ............................................................................. 


(14) Records of documents affecting an interest in property ........................................ 


(15) Statements in documents affecting an interest in property ...................................... 


(16) Statements in ancient documents ............................................................ 


(17) Market reports. commercial publications ..................................................... 


(1 8) Learned treatises ........................................................................... 


(19) Reputation concerning personal or family history ............................................. 


(20) Reputation concerning boundaries or general history .......................................... 


(21) Reputation as to character ................................................................... 


(22) Judgment of previous conviction .......................................................... 


(23) Judgment as to personal. family or general history. or boundaries .............................. 
 (24) Other exceptions ........................................................................... 


Rule 804 . Hearsay exceptions; declarant unavailable .................................................. 


(a) Definition of unavailability ..................................................................... 


(b) Hearsay exceptions ............................................................................. 


(1) Former testimony .......................................................................... 


(2) Statement under belief of impending death ................................................... 


(3) Statement against interest ................................................................... 


xxxiii 
(4) Statement of personal or family history ...................................................... 
 (5) Other exceptions ........................................................................... 


Rule 805 . Hearsay within hearsay ..................................................................... 


Rule 806 . Attacking and supporting credibility of declarant ............................................ 


Section IX . AUTHENTICATION AND IDENTIFICATION ................................................ 


Rule 901 . Requirement of authentication or identification .............................................. 
 (a) General provision .............................................................................. 


(b) Illustrations .................................................................................... 
 (I) 	Testimony of witness with knowledge ....................................................... 


(2) Nonexpert opinion on handwriting ........................................................... 
 (3) Comparison by trier or expert witness ........................................................ 
 (4) Distinctive characteristics and the like ...................................................... 
 (5) Voice identification ........................................................................ 


(6) Telephone conversations .................................................................... 
 (7) Public records or reports .................................................................... 
 (8) Ancient documents or data compilation ...................................................... 
 (9) Process or system .......................................................................... 
 (10) Methods provided by statute or rule 	 ......................................................... 

Rule 902 . Self-authentication ......................................................................... 


(1) Domestic public documents under seal ....................................................... 


(2) Domestic public documents not under seal .................................................. 
 (3) Foreign public documents ................................................................... 
 (4) Certified copies of public records ............................................................ 
 (4a)Documents or records of the United States accompanied by attesting certificates ................. 
 (5) Official publications ........................................................................ 
 (6) Newspapers and periodicals ................................................................. 
 (7) Trade inscriptions and the like .............................................................. 
 (8) Acknowledged documents .................................................................. 
 (9) Commercial paper and related documents .................................................... 
 (10) Presumptions under Acts of Congress and regulations 	 ......................................... 

Rule 903 .Subscribing witness' testimony unnecessary ................................................ 


Section X. CONTENTS OF WRITINGS. RECORDINGS. AND PHOTOGRAPHS ........................... 

Rule 1001 . Definitions ................................................................................ 
 (1) Writings and recordings .................................................................... 
 (2) Photographs ............................................................................... 
 (3) Original ................................................................................... 
 (4) Duplicate .................................................................................. 


Rule 1002 . Requirement of an original ................................................................ 


Rule 1003 . Admissibility of duplicates ................................................................ 


Rule 1004 . Admissibility of other evidence of contents ................................................ 
 (1) Originals lost or destroyed .................................................................. 
 (2) Original not obtainable ..................................................................... 
 (3) Original in possession of opponent .......................................................... 


(4) Collateral matters .......................................................................... 


Rule 1005 . Public records ............................................................................ 


Rule 1006 . Summaries ...............................................................................


Rule 1007 . Testimony or written admission of party ...................................................

Rule 1008 . Functions of military judge and members ..................................................

Section XI . MISCELLANEOUS RULES ................................................................. 


Rule 1101 . Applicability of rules ...................................................................... 


(a) Rules applicable ............................................................................... 
 (b) Rules of privilege .............................................................................. 


(c) Rules relaxed .................................................................................. 
 (d) 	 Rules inapplicable ............................................................................. 


Rule 1102 . Amendments .............................................................................


Rule 1103 . Title ...................................................................................... 

Page 

PART IV PUNITIVE ARTICLES 

1. Article 77 -- Principals ............................................................................ IV- 1 


a. Text .......................................................................................... IV-i 


b. Explanation ................................................................................... IV-i 


(1) Purpose ................................................................................... 1v-1 


(2) Who may be liable for an offense ........................................................... IV-I 


(a) Perpetrator ............................................................................ IV-I 


(b) Other parties ...............................,.......................................... 1v-2 


(3) Presence ................................................................................... 1v-2 


(a) Not necessary ......................................................................... 1v-2 


(b) Not sufficient ......................................................................... 1v-2 


(4) Parties whose intent differs from the perpetrator's ............................................. 1v-2 


(5) Responsibility for other crimes .............................................................. 1v-2 


(6) Principals independently liable .............................................................. 1v-2 


(7) Withdrawal ................................................................................ 1v-2 


2. Article 79 -- Conviction of lesser included offenses ............................................. 1v-3 


a. Text ........................................................................................... 1v-3 


b. Explanation ................................................................................... 1v-3 


(1) In general ................................................................................. 1v-3 


(2) Multiple lesser included offenses ............................................................ 1v-3 


(3) Findings of guilty to a lesser included offense ................................................ 1v-3 


(4) Specific lesser included offenses ............................................................. 1v-3 


3. Article 78 -- Accessory after the fact ......................................................... 1v-3 


a. Text .......................................................................................... 1v-3 


b. Elements ...................................................................................... 1v-3 


c. Explanation ................................................................................... 1v-4 


(1) In general ................................................................................. 1v-4 


(2) Failure to report offense .................................................................... 1v-4 


(3) Offense punishable by the code ............................................................. 1v-4 


(4) Status of principal .......................................................................... 1v-4 


(5) Conviction or acquittal of principal .......................................................... 1v-4 


(6) Accessory after the fact not a lesser included offense .......................................... 1v-4 


(7) Actual knowledge .......................................................................... 1v-4 


d. Lesser included offense ......................................................................... 1v-4 


e. Maximum punishment .......................................................................... 1v-4 


f. Sample specification ........................................................................... 1v-4 


4.Article 80 -- Attempts ..................................................................... 1v-4 


a. Text .......................................................................................... 1v-4 


b. Elements ...................................................................................... 1v-5 


c. Explanation ................................................................................... 1v-5 


(1) In general ................................................................................. 1v-5 


(2) More than preparation ...................................................................... 1v-5 


(3) Factual impossibility ....................................................................... 1v-5 


(4) Solicitation ................................................................................ 1v-5 


(5) Attempts not under Article 80 ............................................................... 1v-5 


(6) Regulations ................................................................................ 1v-5 


d. Lesser included offenses ........................................................................ 1v-5 
 e. Maximum punishment .......................................................................... 1v-5 


f. Sample specification ........................................................................... 1v-6 
 I 

5. Article 81 -- Conspiracy .......................................................................... 1v-6 


a. Text .......................................................................................... 1v-6 


b. Elements ...................................................................................... 1v-6 
 c. Explanation ................... ............................................................... 1v-6 


(1) Co-conspirators ............................................................................ 1v-6 


(2) Agreement ................................................................................. 1v-6 


(3) Object of the agreement .................................................................... 1v-6 


(4) Overt act .................................................................................. 1v-6 


(5) Liability for offenses ....................................................................... 1v-7 


(6) Withdrawal ................................................................................ 1v-7 


(7) Factual impossibility ....................................................................... 1v-7 


(8) Conspiracy as a separate offense ............................................................ 1v-7 


(9) Special conspiracies under Article 134 ....................................................... 1v-7 


d. Lesser included offense ......................................................................... 1v-7 

e . Maximum punishment .......................................................................... iv-7 


f. Sample specification ........................................................................... IV-7 - . 


6. Article 82 - Solicitatlon .......................................................................... iv-7 


a. Text .......................................................................................... iv-7 


b. Elements ...................................................................................... 1v-7 


c. Explanation ................................................................................... 1v-8 


(1) Instantaneous offense ....................................................................... 1v-8 


(2) Form of solicitation ........................................................................ 1v-8 


(3) Solications in violation of Article 134 ........................................................ 1v-8 


d. Lesser included offense ......................................................................... 1v-8 


e. Maximum punishment .......................................................................... 1v-8 


f. Sample specifications .......................................................................... 1v-8 


7. Article 83 - Fraudulent enlistment, appointment, or separation ..................................... 1v-8 


a . Text .......................................................................................... 1V-8 


b. Elements ...................................................................................... 1v-9 


c. Explanation ................................................................................... 1v-9 


(I) In general ................................................................................. 1v-9 


(2) Receipt of pay or allowances ................................................................. 1v-9 


(3) One offense ............................................................................... 1v-9 


d. Lesser included offense ......................................................................... 1v-9 


e. Maximum punishment .......................................................................... 1v-9 


f. Sample specifications .......................................................................... 1v-9 


8.Article 84 - Effecting unlawful enlistment, appointment, or separation .............................. IV- 10 


a. Text .......................................................................................... IV-10 


b. Elements ...................................................................................... 1v-10 


c. Explanation ................................................................................... 1v-10 


d. Lesser included offense ......................................................................... 1v-10 


e. Maximum punishment .......................................................................... 1v-10 


f. Sample specification ........................................................................... 1v-10 


9.Article 85 - Desertion ............................................................................ 1v-10 


a. Text .......................................................................................... 1v-10 


b. Elements ...................................................................................... 1v-11 


c. Explanation ................................................................................... 1v-12 


(I) Desertion with intent to remain away permanently ............................................ IV- 12 


(a) In general ............................................................................. 1v-12 


(b) Absence without authority .............................................................. IV- 12 


(c) Intent to remain away permanently ...................................................... IV- 12 


(d) Effect of enlistment or appointment in the same or a different armed force .................. 1v-12 


(2) Quitting unit, organization, or place of duty with intent to avoid hazardous duty or to shirk important 

service .................................................................................. 1v-12 

(a) Hazardous duty or important service .................................................... IV- 13 


(b) Quits ................................................................................. 1v-13 


(c) Actual knowledge ..................................................................... 1v-13 


(3) Attempting to desert ........................................................................ 1v-13 


(4) Prisoner with executed punitive discharge .................................................... IV- 13 


d. Lesser included offense ......................................................................... 1v-13 


e. Maximum punishment .......................................................................... 1v-13 


f. Sample specifications .......................................................................... 1V-13 


10.Article 86 - Absence without leave .............................................................. 1v-14 


a. Text .......................................................................................... 1v-14 


b. Elements ...................................................................................... 1v-14 


c. Explanation .................................................................................... IV- 15 


(1) In general ................................................................................. IV- 15 


(2) Actual knowledge .......................................................................... IV-15 


(3) Intent ..................................................................................... IV- 15 


(4) Aggravated forms of unauthorized absence ................................................... 1v-15 


(5) Control by civilian authorities ............................................................... IV- 15 


(6) Inability to return .......................................................................... 1v-15 


(7) Determining the unit or organization of an accused ........................................... IV- 16 


(8) Duration ................................................................................... IV- 16 


(9) Computation of duration .................................................................... 1v-16 


(10) Termination-methods of return to military control ........................................... 1v-16 


(a) Surrender to military authority .......................................................... 1v-16 


(b) Apprehension by military authority ...................................................... IV- 16 


xxxvi 
(c) Delivery to military authority ........................................................... iv-16 


(d) Apprehension by civilian authorities at the request of the military .......................... IV- 16 


(e) Apprehension by civilian authorities without prior military request ......................... IV-16 


(1 1) Findings of more than one absence under one specification .................................... iv-16 


d. Lesser included offense .......................................................................... 1v-16 


e. Maximum punishment .......................................................................... 1v-16 


f. Sample specifications .......................................................................... IV-17 


11 . Article 87 -- Missing movement .................................................................. 
 IV-17 


a. Text .......................................................................................... IV-17 


b. Elements ...................................................................................... IV-17 
 c. Explanation ................................................................................... 1v-17 


(1) Movement ................................................................................. IV- 17 


(2) Mode of movement ........................................................................ IV- 18 


(a) Unit .................................................................................. IV-18 


(b) Ship. aircraft .......................................................................... IV- 18 


(3) Design .................................................................................... 1v-18 


(4) Neglect ..................................................................................... IV- 18 


(5) Actual knowledge .......................................................................... 1v-18 


(6) Proof of absence ........................................................................... IV-18 


d . Lesser included offenses ........................................................................ 1v-18 


e. Maximum punishment .......................................................................... IV-18 


f. Sample specification ........................................................................... 1v-18 


12 . Article 88 .Contempt toward officials ........................................................... 
 IV- 18 

a. Text .......................................................................................... IV-18 


b. Elements ...................................................................................... IV-19 


c. Explanation ................................................................................... 1v-19 


d. Lesser included offense ......................................................................... 1v-19 


e. Maximum punishment .......................................................................... IV-19 


f. Sample specification ........................................................................... 1v-19 


13 . Article 89 . Disrespect toward a superior commissioned officer ................................... 1v-19


a. Text .......................................................................................... IV-19 


b. Elements ...................................................................................... IV-19 


c. Explanation ................................................................................... 1v-20 


(1) Superior commissioned officer .............................................................. 1v-20 


(a) Accused and victim in same armed force ................................................ 1v-20 


(b) Accused and victim in different armed forces ............................................ 1v-20 


(c) Execution of office .................................................................... 1v-20 


(2) Knowledge ................................................................................ 1v-20 


(3) Disrespect ................................................................................. 1v-20 


(4) Presence ................................................................................... 1v-20 


(5) Special defense-unprotected victim ......................................................... 1v-20 


d. Lesser included offenses ........................................................................ 1v-20 


e. Maximum punishment .......................................................................... 1v-20 


f.. Sample specification ........................................................................... 1v-20 


14.Article 90 -- Assaulting or willfully disobeying superior commissioned officer ...............:...... 1v-21 


a. Text .......................................................................................... 1v-21 


b. Elements ...................................................................................... 1v-21 


c. Explanation ................................................................................... 1v-21 


(1) Striking or assaulting superior commissioned officer .......................................... 1v-21 


(a) Definitions ............................................................................ 1v-21 


(i) Superior commissioned officer ..................................................... 1v-21 


(ii) Strikes ...................................................... r .................... 1v-21 


(iii) Draws or lifts up any weapon against ............................................... 1v-21 


(iv) Offers any violence against ........................................................ 1v-21 


(b) Execution of office .................................................................... 1v-21 


(c) Knowledge ............................................................................ 1v-22 


(d) Defenses .............................................................................. 1v-22 


(2) Disobeying superior commissioned officer .................................................... 1v-22 


(a) Lawfulness of the order ................................................................ 1v-22 


(i) Inference of lawfulness ............................................................ 1v-22 


(ii) Authority of issuing officer ........................................................ 1v-22 


(iii) Relationship to military duty ....................................................... 1v-22 


(iv) Relationship to statutory or constitutional rights ...................................... 1v-22 


(b) Personal nature of the order ............................................................ 1v-22 


xxxvii 
(c) Form and transmission of the order ..................................................... 


(d) Specificity of the order ................................................................. 
 (e) Knowledge ............................................................................ 
 (f) Nature of the disobedience ........................................................... 


(g) Time for compliance ................................................................... 


(3) Civilians and discharged prisoners ........................................................... 
 d. Lesser included offenses ........................................................................ 
 e. Maximum punishment .......................................................................... 
 f. Sample specifications ............................... .......................................... 


15.Article 91 -Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer 

a. Text .......................................................................................... 


b. Elements ...................................................................................... 


c. Explanation ........................................ 
 (1) In general ................................................................................. 


(2) Knowledge ................................................................................ 
 (3) Striking or assaulting a warrant, noncommissioned, or petty officer ............................ 
 (4) Disobeying a warrant. noncommissioned, or petty officer ...................................... 
 (5) 	Treating with contempt or being disrespectful in language or deportment toward a warrant, non- 


commissioned, or petty officer ............................................................ 


d. Lesser included offenses ........................................................................ 
 e. Maximum punishment .......................................................................... 
 f. Sample specifications ........................................................................ 


16.Article 92 - Failure to obey order or regulation ................................................... 
 a. Text .......................................................................................... 


b. Elements ...................................................................................... 


c. Explanation ........................................


(1) Violation of or failure to obey a lawful general order or regulation ............................. 


(a) Authority to issue general orders and regulations ......................................... 
 (b) Effect of change of command on validity of order ........................................ 
 (c) Lawfulness ............................................................................ 


(d) Knowledge ............................................................................ 
 (e) Enforceability ......................................................................... 
 (2) Violation of or failure to obey other lawful order ............................................. 
 (a) Scope ................................................................................. 
 (b) Know ledge ............................................................................ 
 (c) Duty to obey order ................................................................... 
 (i) From a superior ................................................................... 
 (ii) From one not a superior ........................................................... 
 (3) Dereliction in the performance of duties ...................................................... 
 (a) Duty .................................................................................. 
 (b) Knowledge ............................................................................ 
 (c) Derelict ............................................................................... 


(d) Ineptitude ............................................................................. 
 d. Lesser included offense ......................................................................... 
 e. Maximum punishment .......................................................................... 
 f . Sample specifications .......................................................................... 


17.Article 93 - Cruelty and maltreatment ............................................................ 
 a. Text .......................................................................................... 


b. Elements ...................................................................................... 
 c. Explanation ................................................................................... 
 (1) Nature of victim ........................................................................... 


(2) Nature of act .............................................................................. 
 d. Lesser included offense ......................................................................... 
 e. Maximum punishment .......................................................................... 
 f . Sample specification ........................................................................... 


18.Article 94 - Mutiny and sedition ................................................................. 


a. Text .......................................................................................... 
 b. Elements ...................................................................................... 


c. Explanation ........................................


(1) Mutiny .................................................................................... 
 (a) Mutiny by creating violence or disturbance .............................................. 


(b) Mutiny by refusing to obey orders or perform duties ...................................... 
 (2) Sedition ................................................................................... 
 (3) Failure to prevent and suppress a mutiny or sedition .......................................... 


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Page 

(4) Failure to report a mutiny or sedition ........................................................ 

(5) Attempted mutiny .......................................................................... d. Lesser included offenses ........................................................................ e. Maximum punishment .......................................................................... f. Sample specifications .......................................................................... 

19.Altlcle 95 -- Resistance. breach of arrest. and escape ............................................. 


a. Text .......................................................................................... 
 b. Elements ...................................................................................... 
 c. Explanation ................................................................................... 
 (1) Resisting apprehension ..................................................................... 


(a) Apprehension ......................................................................... 


(b) Authority to apprehend ................................................................. 


(c) Nature of the resistance ................................................................ 


(d) Mistake ............................................................................... 
 (e) Illegal apprehension .................................................................... 


(2) Breaking arrest ............................................................................. 
 (a) Arrest ................................................................................ 


(b) Authority to order arrest ................................................................ 


(c) Nature of restraint imposed by arrest .................................................... 
 (d) Breaking .............................................................................. 


(e) Illegal arrest ........................................................................... 


(3) Escape from custody ....................................................................... 


(a) Custody ............................................................................... 


(b) Authority to apprehend ................................................................. 


(c) Escape ................................................................................ 
 (d) Illegal custody ......................................................................... 


(e) Correctional custody .................................................................... 


(4) Escape from confinement ................................................................... 
 (a) Confinement .......................................................................... 


(b) Authority to order confinement ......................................................... 
 (c) Escape ................................................................................ 
 (d) Status when temporarily outside confinement facility ..................................... 


(e) Legality of confinement ............................................... :................ 
 d. Lesser included offenses ........................................................................ 
 e. Maximum punishment .......................................................................... 


f. Sample specifications .......................................................................... 


20.Article 96 -- Releasing prisoner without proper authority .......................................... 
 a. Text .......................................................................................... 


b. Elements ...................................................................................... 


c. Explanation ................................................................................... 
 (1) Releasing a prisoner without proper authority ................................................. 


(a) Prisoner ............................................................................... 


(b) Release ............................................................................... 
 (c) Authority to release .................................................................... 


(d) Committed ............................................................................ 


(2) Suffering a prisoner to escape through neglect ................................................ 


(a) Suffer ................................................................................ 
 (b) Neglect ............................................................................... 


(c) Escape ............................................................................... 


(d) Status of prisoner after escape not a defense ............................................. 
 (3) Suffering a prisoner to escape through design ................................................. 
 d. Lesser included offenses ........................................................................ 


e. Maximum punishment .......................................................................... 


f. Sample specifications .......................................................................... 


21.Article 97 -- Unlawful detention .................................................................. 


a. Text .......................................................................................... 
 b. Elements ...................................................................................... 
 c. Explanation ................................................................................... 
 (1) Scope ..................................................................................... 


(2) No force required .......................................................................... 


(3) Defense ................................................................................... 
 d. Lesser included offense ......................................................................... 


e . Maximum punishment .......................................................................... 
 f. Sample specification ........................................................................... 


xxxix 
22.Article 98 -- Noncompliance with procedural rules ................................................ 
 a. Text .......................................................................................... 


b . Elements ...................................................................................... 


c . Explanation .................................................................................... 
 (I) Unnecessary delay in disposing of case ...................................................... 
 (2) Knowingly and intentionally failing to enforce or comply with provisions of the code ............ 


d . Lesser included offense ......................................................................... 


e . Maximum punishment .......................................................................... 
 f . Sample specifications .......................................................................... 


23.Article 99 - Misbehavior before the enemy ....................................................... 
 a. Text .......................................................................................... 
 b. Elements ...................................................................................... 


c. Explanation ................................................................................... 


(1) Running away ............................................................................. 
 (a) Running away ......................................................................... 


(b) Enemy ................................................................................ 


(c) Before the enemy ...................................................................... 


(2) Shamefully abandoning, surrendering, or delivering up of command ............................ 


(a) Scope ................................................................................. 
 (b) Shameful ............................................................................. 
 (c) Surrender; delivers up .................................................................. 
 (d) Justification ........................................................................... 
 (3) Endangering safety of a command, unit, place, ship, or military property ....................... 


(a) Neglect ............................................................................... 
 (b) Intentional misconduct ................................................................. 


(4) Casting away arms or ammunition ........................................................... 


(5) Cowardly conduct .......................................................................... 


(a) Cowardice ............................................................................ 
 (b) Fear .................................................................................. 


(c) Nature of offense ...................................................................... 
 (d) Defense ............................................................................... 


(6) Quitting place of duty to plunder or pillage ................................................... 
 (a) Place of duty ........................................................................... 


(b) Plunder or pillage ...................................................................... 
 (c) Nature of offense ...................................................................... 


(7) Causing false alarms ....................................................................... 
 (8) Willfully failing to do utmost to encounter enemy ............................................ 


(9) Failing to afford relief and assistance ........................................................ 


(a) All practicable relief and assistance ..................................................... 
 (b) Nature of offense ...................................................................... 
 d. Lesser included offenses ........................................................................ 
 e. Maximum punishment .......................................................................... 
 f. Sample specifications .......................................................................... 


24.Article 100 - Subordinate compelling surrender .................................................. 


a. Text .......................................................................................... 
 b. Elements ...................................................................................... 


c. Explanation ................................................................................... 


(1) Compelling surrender ....................................................................... 
 (a) Nature of offense ...................................................................... 
 (b) Surrender ............................................................................. 
 (c) Acts required .......................................................................... 
 (2) Attempting to compel surrender ............................................................. 
 (3) Striking the colors or flag ................................................................... 
 (a) In general ............................................................................. 
 (b) Nature of offense ...................................................................... 
 (4) Enemy .................................................................................... 
 d. Lesser included offense ......................................................................... 
 e. Maximum punishment .......................................................................... 
 f. Sample specifications .......................................................................... 


25.Article 101 -Improper use of countersign ....................................................... 
 a. Text .......................................................................................... 


b. Elements ...................................................................................... 


c. Explanation ................................................................................... 


(1) Countersign ................................................................................ 

(2) Parole ..................................................................................... 


(3) Who may receive countersign ............................................................... 
 (4) Intent. motive. negligence. mistake. ignorance not defense .................................... 


(5) How accused received countersign or parole .................................................. 


(6) In time of war ............................................................................. 


d. Lesser included offense ......................................................................... 


e. Maximum punishment .......................................................................... 
 ... f. Sample specifications .......................................................................... 


26.Article 102 -- Forcing a safeguard ................................................................ 


a. Text .......................................................................................... 


b. Elements ...................................................................................... 
 c. Explanation ................................................................................... 


(1) Safeguard ................................................................................. 


(2) Forcing a safeguard ........................................................................ 


(3) Nature of offense .......................................................................... 


(4) Knowledge ................................................................................ 


d. Lesser included offense ......................................................................... 


e. Maximum punishment .......................................................................... 


f. Sample specification ........................................................................... 


27.Article 103 -- Captured or abandoned property ................................................... 


a. Text .......................................................................................... 


b. Elements ...................................................................................... 


c. Explanation ................................................................................... 
 (1) Failing to secure public property taken from the enemy ........................ .............. 


(a) Nature of property ..................................................................... 


(b) Nature of duty ......................................................................... 


(2) Failing to report and turn over captured or abandoned property ................................ 


(a) Reports ............................................................................... 


(b) Proper authority ....................................................................... 
 (3) Dealing in captured or abandoned property ................................................... 


(4) Looting or pillaging ........................................................................ 


(5) Enemy .................................................................................... 


d. Lesser included offense ......................................................................... 


e. Maximum punishment .......................................................................... 
 . . f. Sample specifications .......................................................................... 


28.Article 104 -- Aiding the enemy .................................................................. 


a. Text .......................................................................................... 


b. Elements ...................................................................................... 


c. Explanation ................................................................................... 


(1) Scope of Article 104 ....................................................................... 


(2) Enemy .................................................................................... 
 (3) Aiding or attempting to aid the enemy ....................................................... 


(4) Harboring or protecting the enemy ........................................................... 


(a) Nature of offense ...................................................................... 


(b) Knowledge ............................................................................ 
 (5). Giving intelligence to the enemy ............................................................ 


(a) Nature of offense ...................................................................... 


(b) Intelligence ........................................................................... 


(c) Knowledge ............................................................................ 
 (6) Communicating with the enemy ............................................................. 


(a) Nature of the offense .................................................................. 


(b) Knowledge ............................................................................ 


(c) Citizens of neutral powers .............................................................. 
 d. Lesser included offense ......................................................................... 


e. Maximum punishment .......................................................................... 
 f. Sample specifications .......................................................................... 


29.Article 105 -- Misconduct as a prisoner .......................................................... 


a. Text .......................................................................................... 
 b. Elements ...................................................................................... 


xli 
c. Explanation ................................................................................... 


(1) Enemy .......................................

(2) In time of war ............................................................................. (3) Acting without authority to the detriment of another for the purpose of securing favorable 

treatment ................................................................................ 

(a) Nature of offense ...................................................................... (b) Escape ................................................................................ 

(4) Maltreating prisoner while in a position of authority .......................................... 

(a) Authority ............................................................................. 

(b) Maltreatment .......................................................................... 

d. Lesser included offense ......................................................................... e. Maximum punishment .......................................................................... 

f. Sample specifications .......................................................................... 

30 . Article 106 - Spies ..............................................................................
 a. Text .......................................................................................... 
 b. Elements ...................................................................................... 


c. Explanation ................................................................................... 


(1) In time of war ............................................................................. 
 (2) Enemy .................................................................................... 


(3) Scope of offense ........................................................................... 
 (4) Nature of offense .......................................................................... 
 (5) Intent ..................................................................................... 
 (6) Persons not included under "spying" ........................................................ 
 d. Lesser included offenses ........................................................................ 


e. Mandatory punishment ......................................................................... 
 f. Sample specification ........................................................................... 


31.Article 107 - False official statements ........................................................... 


a. Text .......................................................................................... 
 b. Elements ...................................................................................... 


c. Explanation ................................................................................... 


(1) Official documents and statements ........................................................... 
 (2) Status of victim of the deception ............................................................ 


(3) Intent to deceive ........................................................................... 
 (4) Material gain .............................................................................. 
 (5) Knowledge that the document or statement was false .......................................... 
 (6) Statements made during an interrogation ..................................................... 


(a) Person without an independent duty or obligation to speak ................................ 


(b) Person with an independent duty or obligation to speak ................................... 
 d. Lesser included offense ......................................................................... 


e. Maximum punishment .......................................................................... 
 f. Sample specification ........................................................................... 


32.Article 108 .Military property of the United States--sale. loss. damage. destruction. or wrongful 

disposition ....................................................................... a. Text .......................................................................................... 


b. Elements ...................................................................................... 


c. Explanation ................................................................................... 


(I) Military property ........................................................................... 


(2) Suffering military property to be lost . damaged . destroyed . sold, or wrongfully disposed of ...... 

(3) Value and damage ....................................................................... 


d. Lesser included offenses ........................................................................ 


e. Maximum punishment .......................................................................... 


f. Sample specification ....................... ............................................... 


33.Article 109 .Property other than military property of the United States--waste. spoilage. or 

destruction ........................................................................ 

a. Text .......................................................................................... 
 b. Elements ...................................................................................... 


c. Explanation ................................................................................... 
 (1) Wasting or spoiling non-military property ................... .-................................ 
 (2) Destroying or damaging non-military property ................................................ 
 (3) Value and damage ......................................................................... 


d. Lesser included offense ......................................................................... 
 e . Maximum punishment .......................................................................... 


f. Sample specification ........................................................................... 

Page 

34. Article 110 -- Improper hazarding of vessel ....................................................... 
 a. Text .......................................................................................... 


b. Elements ...................................................................................... 


c. Explanation ................................................................................... 
 (1) Hazard .................................................................................... 
 (2) Willfully and wrongfully .................................................................... 
 (3) Negligence ................................................................................ 
 (4) Suffer ..................................................................................... 
 d. Lesser included offenses ........................................................................ 
 e. Maximum punishment .......................................................................... 
 f. Sample specifications .......................................................................... 


35.Article 11 1 - Drunken or reckless driving ........................................................ 
 a. Text .......................................................................................... 


b. Elements ...................................................................................... 


c. Explanation ................................................................................... 


(1) Vehicle .................................................................................... 
 (2) Operating .................................................................................. 
 (3) Drunk ..................................................................................... 
 (4) Reckless ................................................................................... 
 (5) Wanton ................................................................................... 
 (6) Separate offenses ........................................................................... 
 d. Lesser included offenses ........................................................................ 
 e. Maximum punishment .......................................................................... 
 f. Sample specification ........................................................................... 


36. Article 112 - Drunk on duty ..................................................................... 
 a. Text .......................................................................................... 


b. Elements ...................................................................................... 


c. Explanation ................................................................................... 


(1) Drunk ..................................................................................... 
 (2) Duty ...................................................................................... 
 (3) Nature of offense .......................................................................... 
 (4) Defenses .................................................................................. 
 d. Lesser included offense ......................................................................... 
 e. Maximum punishment .......................................................................... 
 f. Sample specification ........................................................................... 


37.Article 112a - Wrongful use, possession, etc., of controlled substances ........................... 
 a. Text .......................................................................................... 
 b . Elements ...................................................................................... 


c. Explanation ................................................................................... 
 (1) Controlled substances ....................................................................... 
 (2) Possess .................................................................................... 
 (3) Distribute .................................................................................. 
 (4) Manufacture ............................................................................... 
 (5) Wrongfulness .............................................................................. 
 (6) Intent to distribute .......................................................................... 
 (7) Certain amount ............................................................................ 
 (8) Missile launch facility ...................................................................... 
 (9) Customs territory of the United States ....................................................... 
 d. Lesser included offenses ........................................................................ 
 e. Maximum punishment .......................................................................... 


f. Sample specifications .......................................................................... 


38. Article 113 - Misbehavior of sentinel or lookout .................................................. 
 a. Text .......................................................................................... 


b. Elements ...................................................................................... 


c. Explanation ................................................................................... 


(1) In general ................................................................................. 
 (2) Post ....................................................................................... 
 (3) On post ................................................................................... 


(4) Sentinel or lookout ......................................................................... 
 (5) Drunk ..................................................................................... 
 (6) Sleeping ................................................................................... 


d . Lesser included offenses ........................................................................ 
 e. Maximum punishment .......................................................................... 
 f. Sample specification ........................................................................... 

34.Article110 .lrnproperhazardingofvessel ....................................................... 


35 . Article 11 1 Drunken or reckless driving 

a. Text .......................................................................................... 

b. Elements ...................................................................................... c. Explanation ................................................................................... (1) Hazard .................................................................................... (2) Willfully and wrongfully .................................................................... 

(3) Negligence ................................................................................ (4) Suffer ..................................................................................... d. Lesser included offenses ........................................................................ e. Maximum punishment .......................................................................... 

f. Sample specifications ......................... ................................................ 

- ........................................................ 


a. Text .......................................................................................... 


b. Elements ...................................................................................... 


c. Explanation ................................................................................... 
 (I) Vehicle .................................................................................... 
 (2) Operating .................................................................................. 


(3) Drunk ..................................................................................... 
 (4) Reckless ................................................................................... 
 (5) Wanton ................................................................................... 
 (6) Separate offenses ........................................................................... 


d. Lesser included offenses ........................................................................ 
 e. Maximum punishment .......................................................................... 
 f. Sample specification ........................................................................... 


36 . Article 112 - Drunk on duty .....................................................................


a. Text .......................................................................................... 


b. Elements ...................................................................................... 
 c. Explanation ................................................................................... 
 (1) Drunk ..................................................................................... 
 (2) Duty ...................................................................................... 


(3) Nature of offense .......................................................................... 
 (4) Defenses .................................................................................. 


d. Lesser included offense ......................................................................... 
 e. Maximum punishment .......................................................................... 
 f . Sample specification ........................................................................... 


37 . Article 112a - Wrongful use, possession, etc., of controlled substances ........................... 


a. Text .......................................................................................... 


b. Elements ...................................................................................... 


c. Explanation ................................................................................... 


(1) Controlled substances ....................................................................... 
 (2) Possess .................................................................................... 
 (3) Distribute .................................................................................. 
 (4) Manufacture ............................................................................... 
 (5) Wrongfulness .............................................................................. 
 (6) Intent to distribute .......................................................................... 
 (7) Certain amount ............................................................................ 
 (8) Missile launch facility ...................................................................... 
 (9) Customs territory of the United States ....................................................... 


d. Lesser included offenses ......................................................................... 
 e . Maximum punishment .......................................................................... 


f. Sample specifications .......................................................................... 


38.Article 113 - Misbehavior of sentinel or lookout .................................................. 
 a. Text .......................................................................................... 
 b. Elements ...................................................................................... 


c. Explanation ................................................................................... 


(1) In general ................................................................................. 


(2) Post ....................................................................................... 
 (3) On post ................................................................................... 


(4) Sentinel or lookout ......................................................................... 
 (5) Drunk ..................................................................................... 


(6) Sleeping .................................................................................. 
 d. Lesser included offenses ........................................................................ 
 e. Maximum punishment .......................................................................... 
 f. Sample specification ........................................................................... 


xliii 
(1) Voluntary manslaughter ..................................................................... 


(a) Nature of offense ...................................................................... 
 (b) Nature of provocation .................................................................. 
 (2) Involuntary manslaughter ................................................................... 
 (a) Culpable negligence ................................................................... 


(i) Nature of culpable negligence ...................................................... 


(ii) Legal duty required ............................................................... 


(b) Offense directly affecting the person .................................................... 
 d. Lesser included offenses ........................................................................ 


e. Maximum punishment .......................................................................... 
 f. Sample specifications .......................................................................... 


45.Article 120 - Rape and carnal knowledge ........................................................ 


a. Text .......................................................................................... 
 b. Elements ...................................................................................... 
 c. Explanation ................................................................................... 


(1) Rape ...................................................................................... 
 (a) Nature of offense ...................................................................... 
 (b) Force and lack of consent .............................................................. 


(c) Character of victim .................................................................... 
 (2) Carnal knowledge .......................................................................... 


d. Lesser included offenses ........................................................................ 
 e. Maximum punishment .......................................................................... 


f. Sample specifications .......................................................................... 


46.Article 121 -- Larceny and wrongful appropriation ................................................ 
 a. Text .......................................................................................... 
 b. Elements ...................................................................................... 


c. Explanation ................................................................................... 
 (1) Larceny ................................................................................... 
 (a) In general ............................................................................. 


(b) Taking. obtaining. or withholding ....................................................... 
 (c) Ownership of the property .............................................................. 
 (i) ln general ........................................................................ 
 (ii) Owner ........................................................................... 
 (iii) Any other person .................................................................. 
 (iv) Person ........................................................................... 


(d) Wrongfulness of the taking. obtaining. or withholding .................................... 
 (e) False pretense ......................................................................... 


(f) Intent ................................................................................. 
 (i) In general ........................................................................ 
 (ii) Inference of intent ................................................................. 
 (iii) Special situations .................................................................. 
 (A) Motive does not negate intent .................................................. 
 (B) Intent to pay for or replace property not a defense ............................... 


(C) Return of property not a defense ............................................... 
 (g) Value ................................................................................. 
 (i) In general ........................................................................ 
 (ii) Government property .............................................................. 
 (iii) Other property .................................................................... 
 (iv) Limited interest in property ........................................................ 
 (h) Miscellaneous considerations ........................................................... 


(i) Lost property ..................................................................... 
 (ii) Multiple article larceny ............................................................ 
 (iii) Special kinds of property which may also be the subject of larceny .................... 
 (iv) Services .......................................................................... 


(v) Mail ............................................................................. 
 (2) Wrongful appropriation ..................................................................... 
 (a) In general ............................................................................. 
 (b) Examples ............................................................................. 
 d. Lesser included offenses ........................................................................ 
 e. Maximum punishment .......................................................................... 
 f. Sample specifications .......................................................................... 


47.Article 122 -- Robbery ........................................................................... 
 a. Text .......................................................................................... 
 b. Elements ...................................................................................... 


xlv 
c. Explanation ................................................................................... 


(1) Taking in the presenceof the victim ......................................................... 
 (2) Force or violence .......................................................................... 
 (3) Fear ....................................................................................... 
 (4) Larceny by taking .......................................................................... 
 (5) Multiple-victim robberies ................................................................... 


d. Lesser included offenses ........................................................................ 
 e . Maximum punishment .......................................................................... 


f. Sample specifications ......................... ............................................... 


48.Article 123 - Forgery ........................................................................... 
 a. Text .......................................................................................... 


b. Elements ...................................................................................... 


c. Explanation ................................................................................... 
 (1) In general .......................... ...................................................... 
 (2) False ..................................................................................... 
 (3) Signatures ................................................................................. 


(4) Nature of writing ........................................................................... 
 (5) Intent to defraud ....................... :................................................... 
 (6) Alteration ................................................................................. 
 (7) Uttering ................................................................................... 
 d. Lesser included offenses ......................................................................... 
 e. Maximum punishment .......................................................................... 


f. Sample specifications .......................................................................... 


49.Article 123a - Making, drawing, or uttering check, draft, or order without sufficient funds .......... 


a. Text .......................................................................................... 
 b. Elements ...................................................................................... 
 c. Explanation ................................................................................... 
 (1) Written instruments ........................................................................ 
 (2) Bank or other depository .................................................................... 


(3) Making or drawing ......................................................................... 
 (4) Uttering or delivering ....................................................................... 
 (5) For the procurement ........................................................................ 
 (6) For the payment ........................................................................... 


(7) For any other purpose ...................................................................... 
 (8) Article or thing of value .................................................................... 
 (9) Past due obligation ......................................................................... 


(10) Knowledge ................................................................................ 
 (1 1) Sufficient funds ............................................................................ 
 (12) Credit ..................................................................................... 


(13) Upon its presentment ....................................................................... 


(14) Intent to defraud ........................................................................... 


(15) Intent to deceive ........................................................................... 


(16) The relationship of time and intent .......................................................... 


(17) Statutory rule of evidence ................................................................... 
 (18) Affirmative defense ........................................................................ 
 d. Lesser included offenses ........................................................................ 
 e. Maximum punishment .......................................................................... 
 f. Sample specifications .......................................................................... 


50.Article 124 - Maiming ........................................................................... 


a. Text .......................................................................................... 


b. Elements ...................................................................................... 


c. Explanation ................................................................................... 


(1) Nature of offense ............................ ............................................. 
 (2) Means of inflicting injury ................................................................... 


(3) Intent ..................................................................................... 
 (4) Defenses .................................................................................. 
 d. Lesser included offenses ........................................................................ 
 e. Maximum punishment .......................................................................... 
 f. Sample specifications .......................................................................... 


51.Article 125 - Sodomy ........................................................................... 


a. Text .......................................................................................... 
 b. Elements ...................................................................................... 
 c. Explanation ................................................................................... 


d. Lesser included offenses ........................................................................ 

.............................................................uueq dppoq sno~ap9 (!!I) 
 ..................................................................... lualu! BU~AOJ~ (!!)
 ........................................................................lelaua8 u1 (!) 
 ............................
palq~u! d1~euo!jualu! s! mleq dl!poq sno~a!l8 q3!q~ U! jInessv (q) ........................................................pal!nba~ lou rOn[u! lo qleaa (A!) 
 .............................................................wleq A[!poq snoAa!q (n!) 
 ..............................................................axoj JO suealu laq1O (!I) 
 ................................................................uodea~ sno~a8uea (!) 
 .........................................................................
 "'Y Ll!poq 

sno~a!l8 lo qjeap ampold 01 d[ay![ a3loj 10 suealu ~aqlo 10 uodaa~ sno~a8uep e q]!~ jlnessv (e) .........................................................................jlnesse pale~e~88~ 
 (p) ..................... ade jo s1eaA 91 lapun ply3 e uodn hraljeq e dq pa~emurnsuo~ llnessv (3)
 ............................................................sagnp 1uaura~lojua ME[ jo 


uognsaxa aql u! uoslad e uodn 10 'd~np jo uo!ln3axa aql u! lnoyool lo lau!luas e uodn 11nessV (q) ................. ~axjjo dljad JO 'pauo!ss!mmo3uou 'luene~ 'pauo~ss!urmo3 e uodn jlnessv (e) 
 ............................ W!I~!A JO S~IB~S uo paseq lualuqs!und pasea~su! Ou!ll!unad 
 sjlnessv (E) .......................................................hralleq 8u!lnl!lsuo3 IOU suo!lenl!S (p) 
 ....................................................................d~alleq jo saldluexq (3) 
 ...................................................................a~oj jo uo!les!lddy (q)
 ............................................................................. 1elaua8 UI (e) 
 ....................................................................................
 dlallea (z) ..................................................................w!)~!AOu!lealla~ (n) 
 ...............................................................sl!ej ~dlualle llnessv (1) 
 ............................................ llnesse 01 sasuajap %u!~nj!~suos IOU suo!jen]!s (p) 
 ..............................................urreq 01 jualu! 8u!je8au sa~uejsurn3.1!~ (n!) 
 ................................................................ SPJOM %u~ua]ea.~q~
 (!I) ..................................................................uo!leleda~d slaw (I) 
 ......................................................
llnesse 01 8u!junolue IOU suo!~en]!s (3) .........................................................................saldluexg (111) 


.................................................................llnesse addl lago (I!) 
 ...............................................................llnesse addl jdluallv (!) 
 ................................. slInesse addl ,,lajjo,, pue ,,~duralle,, uaarnlaq a3ua~ajj!a (q) 
 ...................................................................~[nesse jo uo!l!u!jaa (E) 
 .............................................................................
 qnesse a~dur!~ (I) ...................................................................................uo!leueldxg .2 
 ......................................................................................sluaura13 .q 
 ..........................................................................................1xa.T. 'e 


...........................................................................uo!las!j!3ads a~dlues 'j 
 ..........................................................................
 luaurqs!und lunur~xe~ .a ........................................................................
 sasuajjo papnpu! lassa7 .p .....................................................................dl!unurlu! 10a%elue~pv(9) 
 ................................................................................
 a3uan!nb3v (E) .....................................................................................
 jea1q.L (Z) .................................................................................le.1aua8 ul (I) 
 ...................................................................................uo!leueldxg .3 
 ......................................................................................
 sluawam 

..........................................................................suo!jesgpads aldures 'j 
 ..........................................................................luamqs!und urnm!xem .a 
 ........................................................................sasuajjo papnpu! lassal .p 
 ............................................................................... uosle a~dur!~ (E)
 ........................................................
 duado~d jo d!qs~au~o pue anpA (p) ....................................................................Lpadold 01 a%eluea (3) 
 ..............................................................................
 alnj3mlg (q) .....................................................................
8u!llamp PaJ!qequI (el ..........................................................................
 uosle paleae188~ (z) .................................................................................
 1e~aua8u~ (1) ...................................................................................uo!jeueldx3 .3 
 ......................................................................................
 slualuaIq .q ..........................................................................................lxa.1. 'e 

d. Lesser included offenses ........................................................................ iv-97 
 e. Maximum punishment .......................................................................... iv-97 


f. Sample specifications .......................................................................... iv-98 

55 . Article 129 - Burglary ...........................................................................
 iv-99 a. Text .......................................................................................... 1v-99 


b. Elements ...................................................................................... 1v-99 
 c . Explanation ................................................................................... 1v-99 


(1) In general ................................................................................. 1v-99 


(2) Breaking .................................................................................. 1v-99 


(3) Entry ...................................................................................... IV-100 


(4) Nighttime ................................................................................. IV-100 


(5) Dwelling house of another .................................................................. 1v-100 


(6) Intent to commit offense .................................................................... IV-100 


(7) Separate offense ........................................................................... IV-100 


d. Lesser included offenses ........................................................................ IV-100 
 e . Maximum punishment .......................................................................... IV-100 


f. Sample specification ........................................................................... IV-100 


56 . Article 130 - Housebreaking .................................................................... IV-100 
 a. Text .......................................................................................... IV-100 


b. Elements ...................................................................................... IV-101 
 c. Explanation ................................................................................... 1v-101 


(I ) Scope of offense ........................................................................... IV-101 


(2) Intent ..................................................................................... IV-101 


(3) Criminal offense ........................................................................... IV-101 


(4) Building, structure ......................................................................... IV-I01 


(5) Entry ...................................................................................... IV-I01 


(6) Separate offense ........................................................................... IV-101 


d. Lesser included offenses ........................................................................ IV-101 


e . Maximum punishment .......................................................................... IV-101 


f. Sample specification ........................................................................... IV-101 


57. Article 131 - Perjury ............................................................................ 1v-101 
 a. Text .......................................................................................... IV-101 


b. Elements ...................................................................................... IV-102 
 c. Explanation ................................................................................... IV-102 


(I) In general ................................................................................. IV-102 


(2) Giving false testimony ...................................................................... IV-102 


(a) Nature ................................................................................ IV-102 


(b) Material matter ........................................................................ IV-102 


(c) Proof ................................................................................. IV-102 


(d) Oath .................................................................................. IV-103 


(e) Belief of accused ...................................................................... IV-103 


(3) Subscribing false statement ................................................................. IV- 103 


d. Lesser included offenses ........................................................................ IV-103 


e . Maximum punishment .......................................................................... IV-103 


f. Sample specifications .......................................................................... IV- 103 


58.Article 132 - Frauds against the United States ................................................... IV-103 


a. Text .......................................................................................... IV-103 


b . Elements ...................................................................................... IV-104 
 c . Explanation ................................................................................... IV-105 


(1) Making a false or fraudulent claim .......................................................... 1V-105 


(a) Claim ................................................................................. IV-105 


(b) Making a claim ........................................................................ IV-105 


(c) Knowledge ............................................................................ IV- 105 


(2) Presenting for approval or payment a false or fraudulent claim ................................. 1V-105 


(a) False and fraudulent ................................................................... IV-105 


(b) Presenting a claim ..................................................................... IV-106 


(3) Making or using a false writing or other paper in connection with claims ....................... IV-106 


(4) False oath in connection with claims ......................................................... IV-106 


(5) Forgery of signature in connection with claims ............................................... IV-106 


(6) Delivering less than amount called for by receipt ............................................. 1V-106 


(7) Making or delivering receipt without having full knowledge that it is true ....................... IV-106 


d. Lesser included offenses ........................................................................ IV-106 
 e. Maximum punishment .......................................................................... IV-106 


f. Sample specifications .......................................................................... IV-106 


xlviii 
Page 

59.Article 133 -- Conduct unbecoming an officer and gentlemen ...................................... IV-108 


a. Text .......................................................................................... IV- 108 


b. Elements ...................................................................................... 1V-108 


c . Explanation ................................................................................... IV-108 


(1) Gentleman ................................................................................. IV-108 


(2) Nature of offense .......................................................................... IV- 108 


(3) Examples of offenses ....................................................................... IV- 108 


d. Lesser included offense ......................................................................... IV-108 


e . Maximum punishment .......................................................................... 1V-108 


f. Sample specifications .......................................................................... 1V-108 


60.Article 134 -- General article ..................................................................... IV-109 


a. Text .......................................................................................... IV-109 


b. Elements ...................................................................................... IV-109 


c . Explanation ................................................................................... IV- 109 


(1) In general ................................................................................. IV-109 


(2) Disorders and neglects to the prejudice of good order and discipline in the armed forces 


(clause 1) ............................................................................... IV-109 


(a) To the prejudice of good order and discipline ............................................ IV-109 


(b) Breach of custom of the service ......................................................... IV-109 


(3) Conduct of a nature to bring discredit upon the armed forces (clause 2) ......................... IV-109 


(4) Crimes and offenses not capital (clause 3) .................................................... IV-I 10 


(a) In general ............................................................................. IV-I 10 


(b) Crimes and offenses of unlimited application ............................................. IV-110 


(c) Crimes and offenses of local application ................................................. 1v-110 


(i) In general ........................................................................ IV-110 


(ii) Federal Assimilative Crimes Act (18 U.S.C. 3 13) ................................... IV-110 


(5) Limitations on Article 134 .................................................................. IV-I 10 


(a) Preemption doctrine .................................................................... IV-I 10 


(b) Capital offense ........................................................................ IV-110 


(6) Drafting specifications for Article 134 offenses ............................................... IV-I 10 


(a) In general ............................................................................. IV-I 10 


(b) Specification under clause 3 ............................................................ IV-I 11 


(c) Specifications for clause 1 or 2 offenses not listed ........................................ IV-I 11 


61.Article 134 (Abusing public animal) ............................................................... IV-I 11 


a. Text .......................................................................................... IV-I 11 


b. Elements ...................................................................................... IV-I 11 


c . Explanation ................................................................................... IV-111 


d. Lesser included offense ......................................................................... IV-111 


e . Maximum punishment .......................................................................... IV-l 11 


f. Sample specification ........................................................................... 1v-111 


62.Article 134 (Adultery) ............................................................................. 1v-111 


a . Text .......................................................................................... 1v-11 1 


b. Elements ...................................................................................... IV-I 1 1 


c . Explanation ................................................................................... 1v-111 


d. Lesser included offense ......................................................................... IV-l 1 1 


e. Maximum punishment .......................................................................... IV-I 1 1 


f. Sample specification ........................................................................... IV-Ill 


IV-112 


a. Text .......................................................................................... IV-112 


b. Elements ...................................................................................... IV-112 


c. Explanation ................................................................................... IV-112 


d . Lesser included offenses ........................................................................ IV-112 


e. Maximum punishment .......................................................................... IV-112 


f. Sample specification ........................................................................... IV-112 


64. Article 134 (Assault-with Intent to commit murder. voluntary manslaughter. rape. robbery. sodomy. 

arson. burglary. or housebreaklng) ..................................................... a. Text .......................................................................................... 
 b. Elements ...................................................................................... 
 c . Explanation ................................................................................... 
 (1) In general ................................................................................. 
 (2) Assault with intent to murder ............................................................... 
 (3) Assault with intent to commit voluntary manslaughter ......................................... 


xlix 
Assault with intent to commit rape .......................................................... 
 Assault with intent to rob ................................................................... 
 Assault with intent to commit sodomy ....................................................... 
 d. Lesser included offenses ........................................................................ 
 e. Maximum punishment .......................................................................... 
 f . Sample specification ........................................................................... 


65.Artlcle 134 (Blgamy) .............................................................................. 
 a. Text .......................................................................................... 
 b. Elements ...................................................................................... 
 c. Explanation ................................................................................... 
 d. Lesser included offense ......................................................................... 
 e. Maximum punishment .......................................................................... 
 f . Sample specification ........................................................................... 


66 .Artlcle 134 (Brlbery and graft) ..................................................................... 
 a. Text .......................................................................................... 
 b. Elements ...................................................................................... 
 c. Explanation ................................................................................... 
 d. Lesser included offenses ........................................................................ 
 e. Maximum punishment .......................................................................... 
 f. Sample specifications .......................................................................... 


67.Artlcle 134 (Burnlng wlth Intent to defraud) ........................................................ 
 a. Text .......................................................................................... 
 b. Elements ...................................................................................... 
 c. Explanation ................................................................................... 
 d. Lesser included offense ......................................................................... 
 e. Maximum punishment .......................................................................... 
 f . Sample specification ........................................................................... 


68.Artlcle 134 (Check. worthless. making and uttering-by dlshonorably falling to malntaln funds) ...... a. Text .......................................................................................... 
 b. Elements ...................................................................................... 
 c. Explanation ................................................................................... 
 d. Lesser included offenses ........................................................................ 
 e . Maximum punishment .......................................................................... 
 f . Sample specification ........................................................................... 


69 . Article 134 (Cohabitation. wrongful) ...............................................................
 a. Text .......................................................................................... 
 b. Elements ...................................................................................... 
 c. Explanation ................................................................................... 
 d. Lesser included offense ......................................................................... 
 e. Maximum punishment .......................................................................... 
 f . Sample specification ........................................................................... 


70.Artlcle 134 (Correctlonal custody-offenses agalnst) ............................................... 
 a. Text .......................................................................................... 
 b. Elements ...................................................................................... 
 c. Explanation ................................................................................... 
 (1) Escape from correctional custody ............................................................ 
 (2) Breach of correctional custody .............................................................. 
 (3) Authority to impose correctional custody ..................................................... 
 d. Lesser included offense ......................................................................... 
 e. Maximum punishment .......................................................................... 
 f . Sample specifications .......................................................................... 


7l.Article 134 (Debt. dishonorably falling to pay) ..................................................... 
 a. Text .......................................................................................... 
 b. Elements ...................................................................................... 
 c. Explanation ................................................................................... 
 d. Lesser included offenses ........................................................................ 
 e. Maximum punishment .......................................................................... 
 f. Sample specification ........................................................................... 


72.Article 134 (Disloyal statements) .................................................................. 
 a. Text .......................................................................................... 
 b. Elements ...................................................................................... 
 c. Explanation ................................................................................... 

(1) Nature of offense .......................................................................... IV-124 


(2) Oath ...................................................................................... IV- 124 


d. Lesser included offense ......................................................................... IV-124 


e. Maximum punishment .......................................................................... IV-124 


f. Sample specification ........................................................................... IV- 124 


80.Article 134 (Firearm. discharging-through negligence) ............................................ IV-124 


a. Text .......................................................................................... IV- 124 


b. Elements ...................................................................................... IV-124 


c. Explanation ................................................................................... IV- 125 


d. Lesser included offenses ........................................................................ IV-125 


e. Maximum punishment .......................................................................... IV-125 


f. Sample specification ........................................................................... IV-125 


81 . Article 134 (Flrearm. dlscharglng-willfully. under such clrcumstances as to endanger human life) ... 
 IV- 125 

a. Text .......................................................................................... IV-125 


b. Elements ...................................................................................... IV- 125 


c. Explanation ................................................................................... IV-125 


d. Lesser included offenses ........................................................................ IV-125 


e. Maximum punishment .......................................................................... IV-125 


f. Sample specification ........................................................................... IV-125 


82 . Article 134 (Fleeing scene of accident) ............................................................ IV-125 


a. Text .......................................................................................... IV-125 


b. Elements ...................................................................................... IV-125 


c. Explanation ................................................................................... IV-126 


(1) Nature of offense .......................................................................... IV-126 


(2) Knowledge ................................................................................ IV-126 


(3) Passenger .................................................................................. IV-126 


d. Lesser included offense ......................................................................... IV-126 


e. Maximum punishment .......................................................................... IV-126 


f. Sample specification ........................................................................... IV-126 


83 . Article 134 (Fraternization) ........................................................................
 IV- 126 


a. Text .......................................................................................... IV-126 


b. Elements ...................................................................................... IV-126 


c. Explanation ................................................................................... IV-127 


(1) In general ................................................................................. IV-127 


(2) Regulations ................................................................................ IV-127 


d. Lesser included offense ......................................................................... IV- 127 


e . Maximum punishment .......................................................................... IV-127 


f. Sample specification ........................................................................... IV-127 


84.Artlcle 134 (Gambling wlth subordinate) ........................................................... IV-127 


a. Text .......................................................................................... IV-127 


b. Elements ...................................................................................... IV-127 


c. Explanation ................................................................................... IV-127 


d. Lesser included offense ......................................................................... IV- 127 


e. Maximum punishment .......................................................................... IV-127 


f. Sample specification ........................................................................... IV-127 


85.Artlcie 134 (Homicide. negilgent) .................................................................. IV-128 


a. Text .......................................................................................... IV-128 


b. Elements ...................................................................................... IV-128 


c. Explanation ................................................................................... IV-128 


(1) Nature of offense .......................................................................... IV- 128 


(2) Simple negligence .......................................................................... IV-128 


d. Lesser included offenses ........................................................................ IV-128 


e. Maximum punishment .......................................................................... IV-128 


f. Sample specification ........................................................................... IV-128 


86.Article 134 (impersonating a commissioned. warrant. noncomrnlssioned. or petty officer. or an agent 


or ofticlal) ............................................................................ IV-128 


a. Text .......................................................................................... IV-128 


b. Elements ...................................................................................... IV-128 


c. Explanation ................................................................................... IV-129 


(1) Nature of offense .......................................................................... IV-129 


(2) Willfulness ................................................................................ IV- 129 


(3) Intent to defraud ........................................................................... IV-129 


d. Lesser included offense ......................................................................... IV-129 

Page 


(1) Nature of offense .......................................................................... IV-124 


(2) Oath ...................................................................................... IV-124 . 


d. Lesser included offense ......................................................................... IV-124 


e. Maximum punishment .......................................................................... IV-124 


f. Sample specification ........................................................................... IV-124 


80.Artlcle 134 (Flrearm. discharging-through negligence) ............................................ IV-124 


a. Text .......................................................................................... IV-124 


b. Elements ...................................................................................... IV-124 


c. Explanation ................................................................................... IV-125 


d. Lesser included offenses ........................................................................ IV-125 


e. Maximum punishment .......................................................................... IV-125 


f. Sample specification ........................................................................... IV-125 


81.Artlcle 134 (Flrearm. discharging-willfully. under such circumstances as to endanger human Ilfe) ... IV-125 


a. Text .......................................................................................... IV-125 


b. Elements ...................................................................................... IV-125 


c. Explanation ................................................................................... IV-125 


d. Lesser included offenses ........................................................................ IV-125 


e. Maximum punishment .......................................................................... IV-125 


f. Sample specification ........................................................................... IV-125 


82.Artlcle 134 (Fleeing scene of accident) ............................................................ IV-125 


a. Text .......................................................................................... IV-125 


b. Elements ...................................................................................... IV-125 


c. Explanation ................................................................................... IV-126 


(1) Nature of offense .......................................................................... IV-126 


(2) Knowledge ................................................................................ IV-126 


(3) Passenger .................................................................................. IV-126 


d. Lesser included offense ......................................................................... IV-126 


e. Maximum punishment .......................................................................... IV-126 


f. Sample specification ........................................................................... IV-126 


83.Article 134 (Fraternization) ........................................................................ IV-126 


a. Text .......................................................................................... IV-126 


b. Elements ...................................................................................... IV-126 


c. Explanation ................................................................................... IV-127 


(1) In general ................................................................................. IV-127 


(2) Regulations ................................................................................ IV-127 


d. Lesser included offense ......................................................................... IV-127 


e. Maximum punishment .......................................................................... IV-127 


f. Sample specification ........................................................................... IV-127 


84.Artlcie 134 (Gambling wlth subordinate) ........................................................... IV-127 


a. Text .......................................................................................... IV-127 


b. Elements ...................................................................................... IV-127 


c. Explanation ................................................................................... IV-127 


d. Lesser included offense ......................................................................... IV-127 


e. Maximum punishment .......................................................................... IV-127 


f . Sample specification ........................................................................... IV-127 


85.Article 134 (Homicide. negllgent) .................................................................. IV-128 


a. Text .......................................................................................... IV-128 


b. Elements ...................................................................................... IV-128 


c. Explanation ................................................................................... IV-128 


(1) Nature of offense .......................................................................... IV-128 


(2) Simple negligence .......................................................................... IV-128 


d. Lesser included offenses ........................................................................ IV-128 


e. Maximum punishment .......................................................................... IV-128 


f. Sample specification ........................................................................... IV-128 


86. Article 134 (Impersonatlng a commissioned. warrant. noncornmissloned. or petty offlcer. or an agent 


or officlai) ............................................................................ IV-128 


a. Text .......................................................................................... IV-128 


b. Elements ...................................................................................... IV-128 


c. Explanation ................................................................................... IV-129 


(1) Nature of offense .......................................................................... IV-129 


(2) Willfulness ................................................................................ IV-129 


(3) Intent to defraud ........................................................................... IV-129 


d. Lesser included offense ......................................................................... IV-129 

Page 

e . Maximum punishment .......................................................................... 
 f. Sample specification ........................................................................... 


d. Lesser included offenses ........................................................................ 
 e . Maximum punishment .......................................................................... 
 f. Sample specification ........................................................................... 


d. Lesser included offense ......................................................................... 
 e. Maximum punishment .......................................................................... 
 f. Sample specification ........................................................................... 


d . Lesser included offense ......................................................................... 
 e . Maximum punishment .......................................................................... 
 f. Sample specification ........................................................................... 


d. Lesser included offense ......................................................................... 
 e . Maximum punishment .......................................................................... 
 f . Sample specification ........................................................................... 


d. Lesser included offense ......................................................................... 
 e. Maximum punishment .......................................................................... 
 f. Sample specification ........................................................................... 

d. Lesser included offense ......................................................................... 
 e . Maximum punishment .......................................................................... 
 f. Sample specification ........................................................................... 


93.Article 134 (Mall: taking, openlng, secreting, destroying, or stealing) ................................ 


d. Lesser included offenses ........................................................................ 
 e. Maximum punishment .......................................................................... 


94.Article 134 (Mails: depositing or causing to be deposited obscene matters in) ....................... 
 a. Text .......................................................................................... 
 b. Elements ...................................................................................... 
 c. Explanation ................................................................................... 


87.Article 134 (indecent acts or liberties wlth a child) ................................................. 
 a. Text .......................................................................................... 
 b. Elements ...................................................................................... 
 c. Explanation ................................................................................... 
 (1) Consent ................................................................................... 
 (2) Indecent liberties ........................................................................... 
 (3) Indecent ................................................................................... 


88.Article 134 (Indecent exposure) .................................................................... 
 a. Text .......................................................................................... 
 b. Elements ...................................................................................... 
 c. Explanation ................................................................................... 


89.Article 134 (Indecent language) ................................................................... 
 a. Text .......................................................................................... 
 b. Elements ...................................................................................... 
 c. Explanation ................................................................................... 


90.Article 134 (Indecent acts with another) ........................................................... 
 a. Text .......................................................................................... 
 b. Elements ...................................................................................... 
 c. Explanation ................................................................................... 


91.Article 134 (Jumping from vessel into the water) ................................................... 
 a. Text .......................................................................................... 
 b. Elements ...................................................................................... 
 c. Explanation ................................................................................... 


92 .Article 134 (Kidnapping) .......................................................................... 
 a. Text .......................................................................................... 
 b. Elements ...................................................................................... 
 c. Explanation ................................................................................... 
 (1) Inveigle, decoy .......................................................................... 
 (2) Held ...................................................................................... 
 (3) Against the will ............................................................................ 
 (4) Willfully .................................................................................. 
 (5) Wrongfully ................................................................................ 


a. Text .......................................................................................... 
 b. Elements ...................................................................................... 
 c. Explanation ................................................................................... 


f. Sample specifications .......................................................................... 


IV- 129 


IV-129 


IV-129 


IV-129 


IV- 129 


IV- 130 


IV- 130 


IV- 130 


IV- 130 


IV- 130 


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IV-130 


IV- 130 


IV- 130 


IV- 130 


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IV- 130 


IV-131 


IV-131 


IV-131 


IV-131 


IV-131 


IV-131 


IV-131 


IV-131 


IV-131 


IV-131 


IV-131 


IV-131 


IV-131 


IV-131 


IV-132 


IV- 132 


IV- 132 


1V-132 


IV- 132 


IV-132 


IV- 132 


IV-132 


IV- 132 


IV-132 


IV-132 


IV- 132 


IV- 132 


IV- 132 


IV-132 


IV-133 


IV-133 


IV- 133 


IV- 133 


IV-133 


IV- 133 


IV-133 


IV-133 


IV-133 


IV- 134 


IV- 134 


IV-134 


IV-134 


IV-134 


IV-134 

d. Lesser included offense ......................................................................... IV-134 


e. Maximum punishment .......................................................................... IV-134 


f. Sample specification ........................................................................... IV-134 


95.Article 134 (Misprision of serious offense) ......................................................... IV-134 


a. Text .......................................................................................... IV-134 


b. Elements ...................................................................................... IV-134 


c. Explanation ................................................................................... IV-135 


(1) In general ................................................................................. IV-135 


(2) Serious offense ............................................................................ IV-135 


(3) Positive act of concealment ................................................................. IV-135 


d. Lesser included offense ......................................................................... IV-135 


e. Maximum punishment .......................................................................... IV-135 


f. Sample specification ........................................................................... IV-135 


96.Article 134 (Obstructing justice) ................................................................... IV-135 


a. Text .......................................................................................... IV-135 


b. Elements ...................................................................................... IV-135 


c. Explanation ................................................................................... IV-135 


d. Lesser included offenses ........................................................................ IV-135 


e. Maximum punishment .......................................................................... IV-136 


f. Sample specification ........................................................................... IV-136 


97.Article 134 (Pandering and prostitution) ........................................................... IV-136 


a. Text .......................................................................................... IV-136 


b. Elements ...................................................................................... IV-136 


c. Explanation ................................................................................... IV-136 


d. Lesser included offense ......................................................................... IV-136 


e. Maximum punishment .......................................................................... IV-136 


f. Sample specifications .......................................................................... N-137 


98.Article 134 (Perjury: subornation of) ............................................................... IV-137 


a. Text .......................................................................................... IV-137 


b. Elements ...................................................................................... IV-137 


c. Explanation ................................................................................... IV-137 


d. Lesser included offense ......................................................................... IV-137 


e. Maximum punishment .......................................................................... IV-137 


f. Sample specification ........................................................................... IV-137 


99.Article 134 (Public record: altering, concealing, removing, mutilating, obliterating, or destroying) ..... IV-138 


a. Text .......................................................................................... IV-138 


b. Elements ...................................................................................... IV-138 


c. Explanation ................................................................................... IV-138 


d. Lesser included offense ......................................................................... IV-138 


e. Maximum punishment .......................................................................... IV-138 


f. Sample specification ........................................................................... IV-138 


100.Artlcle 134 (Quarantlne: medical, breaking) ....................................................... IV-138 


a. Text .......................................................................................... IV-138 


b. Elements ...................................................................................... IV-138 


c. Explanation ................................................................................... IV-138 


d. Lesser included offenses ........................................................................ IV-138 


e. Maximum punishment .......................................................................... IV-138 


f. Sample specification ........................................................................... IV-138 


101.Article 134 (Requesting commission of an offense) ............................................... IV-139 


a. Text .......................................................................................... IV-139 


b. Elements ...................................................................................... IV-139 


c. Explanation ................................................................................... IV-139 


d. Lesser included offenses ........................................................................ IV-139 


e. Maximum punishment .......................................................................... IV-139 


f. Sample specification ........................................................................... IV-139 


102.Artlcle 134 (Restriction, breaking) ................................................................ IV-139 


a. Text .......................................................................................... IV-139 


b. Elements ...................................................................................... IV-139 


c. Explanation ................................................................................... IV-139 


d. Lesser included offense ......................................................................... IV-139 


e. Maximum punishment .......................................................................... IV-139 


f. Sample specification ........................................................................... N-139 

103.Article 134 (Seizure: destruction. removal. or disposal of property to prevent) ...................... IV-140 


a. Text .......................................................................................... IV-140 


b. Elements ...................................................................................... IV-140 


c. Explanation ................................................................................... IV-140 


d. Lesser included offense ......................................................................... IV-140 


e. Maximum punishment .......................................................................... IV-140 


f. Sample specification ........................................................................... IV-140 


104. Article 134 (Sentinel or lookout: offenses against or by) ........................................... IV- 140 


a. Text .......................................................................................... IV-140 


b. Elements ...................................................................................... IV- 140 


c. Explanation ................................................................................... IV-141 


(1) Disrespect ................................................................................. IV-141 


(2) Loitering or wrongfully sitting on post ....................................................... IV-141 


(a) In general ............................................................................. IV-141 


(b) Loiter ................................................................................. IV-141 


d. Lesser included offenses ........................................................................ IV-141 


e. Maximum punishment .......................................................................... IV-141 


f. Sample specifications .......................................................................... 1V-141 


105.Article 134 (Soliciting another to commit an offense) .............................................. IV-141 


a. Text .......................................................................................... IV-141 


b. Elements ...................................................................................... IV-141 


c. Explanation ................................................................................... IV-142 


d. Lesser included offenses ........................................................................ IV-142 


e. Maximum punishment .......................................................................... IV-142 


f. Sample specification ........................................................................... IV-142 


106. Article 134 (Stolen property: knowingly receiving, buying, concealing) ............................. IV-142 


a. Text .......................................................................................... IV-142 


b. Elements ...................................................................................... IV- 142 


c. Explanation ................................................................................... IV-142 


(1) In general ................................................................................. IV-142 


(2) Knowledge ................................................................................ IV-142 


(3) Wrongfulness .............................................................................. IV-142 


d. Lesser included offense ......................................................................... IV-142 


e. Maximum punishment .......................................................................... IV-142 


f. Sample specification ........................................................................... IV-142 


107 . Article 134 (Straggling) .......................................................................... IV-143 


a. Text .......................................................................................... IV-143 


b. Elements ...................................................................................... IV-143 


c. Explanation ................................................................................... IV- 143 


d. Lesser included offense ......................................................................... IV- 143 


e. Maximum punishment .......................................................................... IV-143 


f. Sample specification ........................................................................... IV- 143 


108.Article 134 (Testify: wrongful refusal) ............................................................ IV-143 


a. Text .......................................................................................... IV-143 


b . Elements ...................................................................................... IV-143 


c. Explanation ................................................................................... IV-143 


d. Lesser included offenses ........................................................................ IV-143 


e. Maximum punishment .......................................................................... IV-143 


f. Sample specification ....;...................................................................... IV-143 


109. Article 134 (Threat or hoax: bomb) ............................................................... IV-144 


a. Text .......................................................................................... IV-144 


b. Elements ...................................................................................... IV-144 


c. Explanation ................................................................................... IV-144 


(1) Threat ..................................................................................... IV-144 


(2) Malicious .................................................................................. IV-144 


(3) Explosive ................................................................................... IV-144 


d. ~esserincluded offenie?: .r:.~................................................................. IV-144 


e. Maximum punishment .......................................................................... IV-144 


f. Sample specifications .......................................................................... IV-144 


110.Article 134 (Threat, communicating) .............................................................. IV-145 


a. Text .......................................................................................... IV- 145 


b. Elements ...................................................................................... IV- 145 


c. Explanation ................................................................................... IV-145 

d. Lesser included offenses ........................................................................ 
 e. Maximum punishment .......................................................................... 
 f. Sample specification ........................................................................... 


11 1 . Article 134 (Unlawful entry) 
......................................................................
 a. Text .......................................................................................... 
 b. Elements ...................................................................................... 
 c. Explanation ................................................................................... 
 d. Lesser included offense ......................................................................... 
 e. Maximum punishment .......................................................................... 
 f. Sample specification ........................................................................... 


112. Article 134 (Weapon, concealed, carrying) ........................................................ 
 a. Text .......................................................................................... 
 b. Elements ...................................................................................... 
 c . Explanation ................................................................................... 
 (1) Concealed weapon ......................................................................... 
 (2) Dangerous weapon ......................................................................... 
 (3) On or about ............................................................................... 
 d. Lesser included offense ......................................................................... 
 e . Maximum punishment .......................................................................... 
 f. Sample specification ........................................................................... 


113.Article 134 (Wearing unauthorized insignia, decoration, badge, ribbon, device, or lapel button) ...... a. Text .......................................................................................... 
 b. Elements ...................................................................................... 
 c. Explanation ................................................................................... 
 d. Lesser included offense ......................................................................... 
 e . Maximum punishment .......................................................................... 
 f. Sample specification ........................................................................... 


PART V NONJUDlClAL PUNISHMENT 

1. General ........................................................................................... 
 a. Authority ...................................................................................... 
 b . Nature ........................................................................................ 
 c. Purpose ....................................................................................... 
 d . Policy ......................................................................................... 
 (I) Commander's responsibility ................................................................. 
 (2) Commander's discretion .................................................................... 
 (3) Commander's suspension authority .......................................................... 
 e . Minor offenses ................................................................................ 
 f. Limitations on nonjudicial punishment ........................................................... 
 (1) Double punishment prohibited ............................................................... 
 (2) Increase in punishment prohibited ........................................................... 
 (3) Multiple punishment prohibited .............................................................. 
 (4) Statute of limitations ....................................................................... 
 (5) Civilian courts ............................................................................. 


g. Relationship of nonjudicial punishment to administrative corrective measures ....................... 
 f. Effect of errors ................................................................................ 


2. Who may impose nonjudicial punishment .......................................................... 
 a. Commander ................................................................................... 
 b. Officer in charge ............................................................................... 
 c. Principal assistant .............................................................................. 


3. Right to demand trial .............................................................................. 


4. Procedure ........................................................................................ 
 a. Notice ........................................................................................ 
 b . Decision by servicemember ..................................................................... 
 (1) Demand for trial by court-martial ............................................................ 
 (2) No demand for trial by court-martial ......................................................... 
 c. Nonjudicial punishment accepted ................................................................ 
 (1) Personal appearance requested; procedure .................................................... 
 (2) Personal appearance waived; procedure ...................................................... 
 (3) Evidence .................................................................................. 
 (4) Commander's decision ...................................................................... 
 d. Nonjudicial punishment based on record of court of inquiry or other investigative body .............. 


IV-145 


IV- 145 


1V- 145 


IV- 145 


IV- 145 


IV- 145 


IV- 146 


1V- 146 


IV- 146 


IV-146 


IV-146 


IV-146 


IV-146 


IV-146 


IV-146 


1V-146 


IV- 146 


IV- 146 


IV-146 


IV-146 


1V- 146 


IV-146 


IV- 146 


IV- 147 


IV-147 


IV- 147 


IV-147 


Ivi 

Page 

20. WaiverIWithdrawal of Appellate Rights in General Courts-Martial Subject to Examination in the Office of 

the Judge Advocate General .................................................................... A20- 1 

21. Analysis .......................................................................................... A21-I 

22. Analysis of the 1980 Amendments to the Manual for Courts-Martial .................................. A22- I 

INDEX ............................................................................................. Index- 1 
PART l 


PREAMBLE 


1. Sources of military jurisdiction. 

The sources of military jurisdiction include the Constitution and international law. International law includes 

the law of war. 

2. Exercise of military jurisdiction. 

(a) Kinds. Military jurisdiction is exercised by: 

(1) A government in the exercise of that branch of the municipal law which regulates its military establishment. (Military law). 

(2) A government temporarily governing the civil population within its temtory or a portion of its temtory 

through its military forces as necessity may require. (Martial law). 

(3) A belligerent occupying enemy temtory. (Military government). 

(4) A government with respect to offenses against the law of war. 

(b) Agencies. The agencies through which military jurisdiction is exercised include: 

(1) Courts-martial for the trial of offenses against military law and, in the case of general courts-martial, 

of persons who by the law of war are subject to trial by military tribunals. See Parts 11, 111, and IV of this Manual 

for rules governing courts-martial. 

(2) Military commissions and provost courts for the trial of cases within their respective jurisdictions. Subject 

to any applicable rule of international law or to any regulations prescribed by the President or by other competent 

authority, military commissions and provost courts shall be guided by the appropriate principles of law and rules 

of procedure and evidence prescribed for courts-martial. 

(3) Courts of inquiry for the investigation of any matter referred to such court by competent authority. See 

Article 135. The Secretary concerned may prescribe regulations governing courts of inquiry. 

(4) Nonjudicial punishment proceedings of a commander under Article 15. See Part V of this Manual. 

3. Nature and purpose of military law. 

Military law consists of the statutes governing the military establishment and regulations issued thereunder, 

the constitutional powers of the President and regulations issued thereunder, and the inherent authority of military 

commanders. Military law includes jurisdiction exercised by courts-martial and the jurisdiction exercised by 

commanders with respect to nonjudicial punishment. The purpose of military law is to promote justice, to assist 

in maintaining good order and discipline in the armed forces, to promote efficiency and effectiveness in the 

military establishment, and thereby to strengthen the national security of the United States. 

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 Nonjudicial Punishment Procedures (Parts I-V). This Manual shall be 

applied consistent with the purpose of military law. 

Discussion 

The Department of Defense, in conjunction with the De- materials consist of a Discussion (accompanying the Preamble, 

partment of Transportation, has published supplementary ma- the Rules for Courts-Martial, and the Punitive Articles), an 

terials to accompany the Manual for Courts-Martial. These Analysis, and various appendices. These supplementary ma- 
terials do not constitute the official views of the Department of 

Defense, the Department of Transportation, the Department of 

Justice, the military departments, the United States Court of 

Military Appeals, or any other authority of the Government of 

the United States, and they do not constitute rules. Cf., for 

example, 5 U.S.C. 8 551 (1982). The supplementary materials 

do not create rights or responsibilities that are binding on any 

person, party, or other entity (including any authority of the 

Government of the United States whether or not included in the 

definition of "agency" in 5 U.S.C. 9: 55 l(1)). Failure to comply with matter set forth in the supplementary materials does 

not, of itself, constitute error, although these materials may 

refer to requirements in the rules set forth in the Executive 

Order or established by other legal authorities (for example, 

binding judicial precedents applicable to courts-martial) which 

are based on sources of authority independent of the supplementary materials 
Part II 


RULES FOR COURTS-MARTIAL 


CHAPTER I. GENERAL PROVISIONS 

Rule 101. Scope, title. 

(a) In general. These rules govern the procedures and punishments in all courts-martial and, whenever expressly 

provided, preliminary, supplementary, and appellate procedures and activities. 

(b) Title. These rules may be known and cited as the Rules for Courts-Martial (R.C.M.). 

Rule 102. Purpose and construction 

(a) Purpose. These rules are intended to provide for the just determination of every proceeding relating to trial 

by court-martial. 

(b) Construction. These rules shall be construed to secure simplicity in procedure, fairness in administration, 

and the elimination of unjustifiable expense and delay. 

Rule 103. Definitions and rules of construction 

The following definitions and rules of construction apply throughout this Manual, unless otherwise expressly 

provided. 

(1) "Article" refers to articles of the Uniform Code of Military Justice unless the context indicates otherwise. 

(2) "Capital case" means a general court-martial to which a capital offense has been referred without an 

instruction that the case be treated as noncapital, and, in the case of a rehearing or new or other trial, for which 

offense death remains 'an authorized punishment under R.C.M. 810(d). 

(3) "Capital offense" means an offense for which death is an authorized punishment under the code and 

Part IV of this Manual or under the law of war. 

(4) "Code" refers to the Uniform Code of Military Justice, unless the context indicates otherwise. 

Discussion 

The Uniform Code of Military Justice is set forth at Appendix 2. 

(5) "Commander" means a commissioned officer in command or an officer in charge except in Part V or 

unless the context indicates otherwise. 

(6) "Convening authority" includes a commissioned officer in command for the time being and successors 

in command. 

Discussion 

See R.C.M. 504 concerning who may convene courts-martial. 

(7) "Copy" means an accurate reproduction, however made. Whenever necessary and feasible, a copy may 

be made by handwriting. 

(8) "Court-martial" includes, depending on the context: 

(A) The military judge and members of a general or special court-martial; 

(B) 	The military judge when a session of a general or special court-martial is conducted without members 

under Article 39(a); 
R.C.M. 103(8)(C) 

(C) The military judge when a request for trial by military judge alone has been approved under R.C.M. 

903; 

(D) The members of a special court-martial when a military judge has not been detailed; or 

(E) 	The summary court-martial officer. 

(9) "Days." When a period of time is expressed in a number of days, the period shall be in calendar days, 

unless otherwise specified. Unless otherwise specified, the date on which the period begins shall not count, but 

the date on which the period ends shall count as one day. 

(10) "Detail" means to order a person to perform a specific temporary duty, unless the context indicates 

otherwise. 

(11) "Explosive" means gunpowders, powders used for blasting, all forms of high explosives, blasting 

materials, fuzes (other than electrical circuit breakers), detonators, and other detonating agents, smokeless 

powders, any explosive bomb, grenade, missile, or similar device, and any incendiary bomb or grenade, fire 

bomb, or similar device, and any other compound, mixture, or device which is an explosive within the meaning 

of 18 U.S.C. § 232(5) or 844Q). 

(12) "Firearm" means any weapon which is designed to or may be readily converted to expel any projectile 

by the action of an explosive. 

(13) "Joint" in connection with military organization connotes activities, operations, organizations, and 

the like in which elements of more than one military service of the same nation participate. 

(14) "Members." The members of a court-martial are the voting members detailed by the convening 

authority. 

(15) "Military judge" means the presiding officer of a general or special court-martial detailed in accordance 

with Article 26. Except as otherwise expressly provided, in the context of a summary court-martial "military 

judge" includes the summary court-martial officer or in the context of a special court-martial without a military 

judge, the president. Unless otherwise indicated in the context, "the military judge" means the military judge 

detailed to the court-martial to which charges in a case have been referred for trial. 

(16) "Party. " Party, in the context of parties to a court-martial, means: 

(A) The accused and any defense or associate or assistant defense counsel and agents of the defense 

counsel when acting on behalf of the accused with respect to the court-martial in question; and 

(B) 	Any trial or assistant trial coundl representing the United States, and agents of the trial counsel 

when acting on behalf of the trial counsel with respect to the court-martial in question. 

(17) "Staff judge advocate" means a judge advocate so designated in the Army, Air Force, or Marine 

Corps, and means the principal legal advisor of a command in the Navy and Coast Guard who is a judge advocate. 

(18) "Sua sponte" means that the person involved acts on that person's initiative, without the need for a 

request, motion, or appl'ication. 

(19) "War, time of. " For purpose of R.C.M. 1004(c)(6) and of implementing the applicable paragraphs 

of Parts IV and V of this Manual only, "time of war" means a period of war declared by Congress or the factual 

determination by the President that the existence of hostilities warrants a finding that a "time of war" exists for 

purposes of R.C.M. 1004(c)(6) and Parts IV and V of this Manual. 

(20) The definitions and rules of construction in 1 U.S.C. §§ 1 through 5 and in 10 U.S.C. §$ 101 and 

801. 

Discussion 

1 U.S.C. 89 1 through5, 10U.S.C. 9 101,and 10U.S.C. In determining the meaning of any Act of Congress, unless 

§ 801 (Article 1) are set forth below. the context indicates othenvise1 U.S.C. 9 1. Words denoting number, gender, and so words importing the singular include and apply 

forth. to several persons, parties, or things; words importing 

the plural include the singular; 
words importing the masculine gender include 

the feminine as well; 

words used in the present tense include the future 

as well as the present; 

the words "insane" and "insane person" and 

"lunatic" shall include every idiot, lunatic, insane 

person, and person non compos mentis; 

the words "person" and "whoever" include 

corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well 

as individuals; 

"officer" includes any person authorized by law 

to perform the duties of the office; 

"signature" or "subscription" includes a mark 

when the person making the same intended it as such; 

"oath" includes affirmation, and "sworn" includes affirmed; 

"writing" includes printing and typewriting and 

reproductions of visual symbols by photographing, 

multigraphing, mimeographing, manifolding, or otherwise. 

Q 2. "County" as including "parish," and so forth. 

The word "county" includes a parish, or any 

other equivalent subdivision of a State or Territory of 

the United States. 

J 3. "Vessel" as including all means of water transportation. 

The word "vessel" includes every description 

of watercraft or other artificial contrivance used, or 

capable of being used, as a means of transportation 

on water. 

8 4. "Vehicle" as including all means of land transportation. 

The word "vehicle" includes every description 

of carriage or other artificial contrivance used or capable of being used, as a means of transportation on 

land. 

15. "Company" or "association" as including successors 

and assigns. 

The word "company" or "association", when 

used in reference to a corporation, shall be deemed 

to embrace the words "successors and assigns of such 

company or association", in like manner as if these 

last-named words, or words of similar import, were 

expressed. 

10 U.S.C. 8 101. Definitions 

In addition to the definitions in sections 1-5 of title I, the 

following definitions apply in this title: 

(1) "United States", in a geographic sense, means 

the States and the District of Columbia. 

(2) Except as provided in section 101(1) of title 32 

for laws relating to the militia, the National Guard, the Army 

National Guard of the United States, and the Air National Guard 

of the United States, "Territory" means any Territory organized 

after this title is enacted, so long as it remains a Territory. 

(3) "Possessions" includes the Virgin Islands, the 

Canal Zone, Guam, American Samoa, and the guano islands, 

so long as they remain possessions, but does not include any 

Territory or Commonwealth. 

(4) "Armed forces" means the Army, Navy, Air 

Force, Marine Corps, and Coast Guard. 

(5) "Department", when used with respect to a military department, means the executive part of the department 

and all field headquarters, forces, reserve components, installations, activities, and functions under the control or supervision 

R.C.M. 103(20) 

of the Secretary of the department. When used with respect to 

the Department of Defense, it means the executive part of the 

department, including the executive parts of the military departments, and all field headquarters, forces, reserve components, installations, activities, and functions under the control 

or supervision of the Secretary of Defense, including those of 

the military departments. 

(6) "Executive part of the department" means the 

executive part of the Department of the Army, Department of 

the Navy, or Department of the Air Force, as the case may be, 

at the seat of government. 

(7) "Military departments" means the Department of 

the Army, the Department of the Navy, and the Department of 

the Air Force. 

(8) "Secretary concerned" means-

(A) 	 the Secretary of the Army, with respect to 

matters concerning the Army; 

(B) 	 the Secretary of the Navy, with respect to 

matters concerning the Navy, the Marine 

Corps, and the Coast Guard when it is operating as a service in the Navy; 

(C) 	 the Secretary of the Air Force, with respect 

to matters concerning the Air Force; and 

(D) 	 the Secretary of Transportation, with respect to matters concerning the Coast Guard 

when it is not operating as a service in the 

Navy. 

(9) "National Guard" means the Army National Guard 

and the Air National Guard. 

(10) "Army National Guard" means that part of the 

organized militia of the several States and Territories, Puerto 

Rico, and the Canal Zone, and the District of Columbia, active 

and inactive, that- 

(A) 	 is a land force; 

(B) 	 is trained, and has its officers appointed, 

under the sixteenth clause of section 8, article 1, of the Constitution; 

(C) 	 is organized, armed, and equipped wholly 

or partly at Federal expense; and 

(D) 	 is federally recognized. 

(11) "Army National Guard of the United States" 

means the reserve component of the Army all of whose members 

are members of the Army National Guard. 

(12) "Air National Guard" means that part of the 

organized militia of the several States and Territories, Puerto 

Rico, the Canal Zone, and the District of Columbia, active and 

inactive, that- 

(A) 	 is an air force; 

(B) 	 is trained, and has its officers appointed, 

under the sixteenth clause of section 8, article I, of the Constitution; 

(C) 	 is organized, armed, and equipped wholly 

or partly at Federal expense; and 

(D) 	 is federally recognized. 

(13) "Air National Guard of the United States" means 

the reserve component of the Air Force all of whose members 

are members of the Air National Guard. 

(14) "Officer" means commissioned or warrant of- 


ficer. 


(15) "Commissioned officer" includes a commis- 


sioned warrant officer. 


(16) "Warrant officer" means a person who holds a 

commission or warrant in a warrant officer grade. 

(17) "Enlisted member" means a person in an en- 


listed grade. 


(18) "Grade" means a step or degree, in a graduated 
R.C.M. 103(20) 

scale of office or military rank, that is established and designated 

as a grade by law or regulation. 

(19) "Rank" means the name (such as "boatswain's 

mate") prescribed for members of an armed force in an occupational field. "Rate" means the name (such as "chief boatswain's mate") prescribed for members in the same rating or 

other category who are in the same grade (such as chief petty 

officer or seaman apprentice). 

(21) "Authorized strength" means the largest number 

of members authorized to be in an armed force, a component, 

a branch, a grade, or any other category of the armed forces. 

(22) "Active duty" means full-time duty in the active 

military service of the United States. It includes full-time training duty, annual training duty, and attendance, while in the 

active military service, at a school designated as a service school 

by law or by the Secretary of the military department concerned. 

(23) "Active duty for a period of more than 30 days" 

means active duty under a call or order that does not specify a 

period of 30 days or less. 

(24) "Active service" means service on active duty. 

(25) "Active status" means the status of a reserve 

commissioned officer, other than a commissioned warrant officer, who is not in the inactive Army National Guard or inactive 

Air National Guard, on an inactive status list, or in the Retired 

Reserve. 

(26) "Supplies" includes material, equipment, and 

stores of all kinds. 

(27) "Pay" includes basic pay, special pay, retainer 

pay, incentive pay, retired pay, and equivalent pay, but does 

not include allowances. 

(28) "Shall" is used in an imperative sense. 

(29) "May" is used in a permissive sense. The words 

"no person may . . ." mean that no person is required, authorized, or permitted to do the act prescribed. 

(30) "Includes" means "includes but is not limited 

to." 

(31) "Inactive-duty training" means-

(A) 	 duty prescribed for Reserves by the Secretary concerned under section 206 of title 

37 or any other provision of law; and 

(B) 	 special additional duties authorized for Reserves by an authority designated by the 

Secretary concerned and performed by them 

on a voluntary basis in connection with the 

prescribed training or maintenance activities of the units to which they are assigned. 

It includes those duties when performed by Reserves in 

their status as members of the National Guard. 

(32) "Spouse" means husband or wife, as the case 

may be. 

(33) "Regular", with respect to an enlistment, appointment, grade, or office, means enlistment, appointment, 

grade, or office in a regular component of an armed force. 

(34) "Reserve", with respect to an enlistment, appointment, grade. or office, means enlistment, appointment, 

grade, or ofice held as a Reserve of an armed force. 

(35) "Original", with respect to the appointment of 

a member of the armed forces in a regular or reserve component, 

refers to his most recent appointment in that component that is 

neither a promotion nor a demotion. 

(36) Repealed. 

(37) "Active-duty list" means a single list for the 

Army, Navy, Air Force or Marine Corps (required to be maintained under section 620 of this title) which contains the names 

of all officers of that armed force, other than officers described 

in section 641 of this title, who are serving on active duty. 

(38) "Medical officer" means an officer of the Medical Corps of the Army, an officer of the Medical Corps of the 

Navy, or an officer in the Air Force designated as a medical 

officer. 

(39) "Dental officer" means an officer of the Dental 

Corps of the Army, an officer of the Dental Corps of the Navy, 

or an officer of the Air Force designated as a dental officer. 

(40) "General officer" means an officer of the Army, 

Air Force, or Marine Corps serving in or having the grade of 

general, lieutenant general, major general, or brigadier general. 

(41) "Flag officer" means an officer of the Navy or 

Coast Guard serving in or having the grade of admiral, vice 

admiral, rear admiral, or commodore. 

10 U.S.C. 8 801. Article 1. Definitions 


In this chapter: 


(I) "Judge Advocate General" means, severally, the 

Judge Advocates General of the Army, Navy, and Air Force 

and, except when the Coast Guard is operating as a service in 

the Navy, the General Counsel of the Department of Transportation. 

(2)The Navy, the Marine Corps, and the Coast Guard 

when it is operating as a service in the Navy, shall be considered. 

as one armed force. 

(3) "Commanding officer" includes only commissioned officers. 

(4) "Officer in charge" means a member of the Navy, 

the Marine Corps, or the Coast Guard designated as such by 

appropriate authority. 

(5) "Superior commissioned officer" means a commissioned officer superior in rank or command. 

(6) "Cadet" means a cadet of the United States Military Academy, the United States Air Force Academy, or the 

United States Coast Guard Academy. 

(7) "Midshipman" means a midshipman of the United 

States Naval Academy and any other midshipman on active 

duty in the naval service. 

(8) "Military" refers to any or all of the armed forces. 

(9) "Accuser" means a person who signs and swears , to charges, any person who directs that charges nominally be 

signed and sworn to by another, and any other person who has 

an interest other than an official interest in the prosecution of 

the accused. 

(10) "Military judge" means an official of a general 

or special court-martial detailed in accordance with section 826 

of this title (article 26). [See also R.C.M. 103(15).] 

(1 I) "Law specialist" means a commissioned officer 

of the Coast Guard designated for special duty (law). 

(12) "Legal officer" means any commissioned officer 

of the Navy, Marine Corps, or Coast Guard designated to perform legal duties for a command. 

(13) "Judge Advocate" means-

(A) 	 an officer of the Judge Advocate General's 

Corps of the Army or Navy; 

(B) an officer of the Air Force or the Marine 

Corps who is designated as a judge advocate; or 

(C) 	 an officer of the Coast Guard who is designated as a law specialist. 
i 

R.C.M. 104(b)(2)(B) 

Rule 104. Unlawful command influence 

(a) General prohibitions. 

(1) Convening authorities and commanders. No convening authority or commander may censure, reprimand, 

or admonish a court-martial or other military tribunal or any member, military judge, or counsel thereof, with 

respect to the findings or sentence adjudged by the court-martial or tribunal, or with respect to any other exercise 

of the functions of the court-martial or tribunal or such persons in the conduct of the proceedings. 

(2) All persons subject to the code. No person subject to the code may attempt to coerce or, by any 

unauthorized means, influence the action of a court-martial or any other military tribunal or any member thereof, 

in reaching the findings or sentence in any case or the action of any convening, approving, or reviewing authority 

with respect to such authority's judicial acts. 

(3) Exceptions. 

(A) Instructions. Subsections (a)(l) and (2) of the rule do not prohibit general instructional or informational 

courses in military justice if such courses are designed solely for the purpose of instructing personnel 

of a command in the substantive and procedural aspects of courts-martial. 

(B) 	Court-martial statements. Subsections (a)(l) and (2) of this rule do not prohibit statements and 

instructions given in open session by the military judge or counsel. 

(C) Professional supervision. Subsections (a)(l) and (2) of this rule do not prohibit action by the Judge 

Advocate General concerned under R.C.M. 109. 

(D) Offense. Subsections (a)(l) and (2) of this rule do not prohibit appropriate action against a person 

for an offense committed while detailed as a military judge, counsel, or member of a court-martial, 

or while serving as individual counsel. 

(b) Prohibitions concerning evaluations. 

(1) Evaluation of member or defense counsel. In the preparation of an effectiveness, fitness, or efficiency 

report or any other report or document used in whole or in part for the purpose of determining whether a member 

of the armed forces is qualified to be advanced in grade, or in determining the assignment or transfer of a member 

of the armed forces, or in determining whether a member of the armed forces should be retained on active duty, 

no person subject to the code may: 

(A) Consider or evaluate the performance of duty of any such person as a member of a court-martial; or 

(B) Give a less favorable rating or evaluation of any defense counsel because of the zeal with which 

such counsel represented any accused. 

(2) Evaluation of military judge. 

(A) General courts-martial. Unless the general court-martial was convened by the President or the 

Secretary concerned, neither the convening authority nor any member of the convening authority's 

staff may prepare or review any report concerning the effectiveness, fitness, or efficiency of the 

military judge detailed to a general court-martial, which relates to the performance of duty as a 

military judge. 

(B) Special courts-martial. The convening authority may not prepare or review any report concerning 

the effectiveness, fitness, or efficiency of a military judge detailed to a special court-martial which 

relates to the performance of duty as a military judge. When the military judge is normally rated or 

the military judge's report is reviewed by the convening authority, the manner in which such military 

judge will be rated or evaluated upon the performance of duty as a military judge may be as prescribed 

in regulations of the Secretary concerned which shall ensure the absence of any command influence 

in the rating or evaluation of the military judge's judicial performance. 

Discussion 

See paragraph 22 of Part IV concerning prosecuting violations of Article 37 under Article 98. 
R.C.M. 105 

Rule 105. Direct communications: convening authorities and staff judge advocates; among staff ~ .

judge advocates 

(a) Convening authorities and staffjudge advocates. Convening authorities shall at all times communicate directly 

with their staff judge advocates in matters relating to the administration of military justice. 

(b) Among stafjudge advocates and with the Judge Advocate General. The staff judge advocate of any command 

is entitled to communicate directly with the staff judge advocate of a superior or subordinate command, or with 

the Judge Advocate General. 

Discussion 

See R.C.M. 103(17) for a definition of staff judge advocate. 

Rule 106. Delivery of military offenders to civilian authorities 

Under such regulations as the Secretary concerned may prescribe, a member of the armed forces accused of 

an offense against civilian authority may be delivered, upon request, to the civilian authority for trial. A member 

may be placed in restraint by military authorities for this purpose only upon receipt of a duly issued warrant for 

the apprehension of the member or upon receipt of information establishing probable cause that the member 

committed an offense, and upon reasonable belief that such restraint is necessary. Such restraint may continue 

only for such time as is reasonably necessary to effect the delivery. 

Discussion 

See R.C.M.11 13(d)(2)(A)(ii) for the effect of such delivery on the execution of a court-martial sentence. 

Rule 107. Dismissed officer's right to request trial by court-martial 

If a commissioned officer of any armed force is dismissed by order of the President under 10 U.S.C. 

§ 1161(a)(3), that officer may apply for trial by general court-martial within a reasonable time. 

Discussion 

See Article 4 for the procedures to be followed. See also Article 75(c). 

Rule 108. Rules of court 

The Judge Advocate General concerned and persons designated by the Judge Advocate General may make 

rules of court not inconsistent with these rules for the conduct of court-martial proceedings. Such rules shall be 

disseminated in accordance with procedures prescribed by the Judge Advocate General concerned or a person 

to whom this authority has been delegated. Noncompliance with such procedures shall not affect the validity of 

any rule of court with respect to a party who has received actual and timely notice of the rule or who has not 

been prejudiced under Article 59 by the absence of such notice. Copies of all rules of court issued under this 

rule shall be forwarded to the Judge Advocate General concerned. 

Rule 109. Professional supervision of military judges and counsel 

(a) In general. Each Judge Advocate General may prescribe rules not inconsistent with this Manual to govern 

the professional supervision and discipline of military trial and appellate judges, judge advocates, and other 

lawyers who practice in proceedings governed by the code and this Manual. After notice and the opportunity to 

be heard, counsel and military judges may be suspended, for violations of such rules, from practice in courtsmartial and in the Courts of Military Review only by the Judge Advocate General of the armed force of such 

court. The Judge Advocate General concerned may upon good cause shown modify or revoke suspensions, 

(b) Action without further hearing. When a Judge Advocate General suspends a person from practice or the 

Court of Military Appeals disbars a person, any Judge Advocate General may suspend that person from practice 

upon notice and opportunity to respond in writing, but without further hearing. 
CHAPTER II. JURISDICTION. 

Rule 201. Jurisdiction in general 

(a) Nature of courts-martial jurisdiction. 

(1) The jurisdiction of courts-martial is entirely penal or disciplinary. 

Discussion 

"Jurisdiction" means the power to hear a case and to order the return of property, or order a criminal forfeiture of 

render a legally competent decision. A court-martial has no seized property. A summary court-martial appointed under 10 

power to adjudge civil remedies. For example, a court-martial U.S.C. 88 4712 or 9712 to dispose of the effects of a deceased 

may not adjudge the payment of damages, collect private debts, person is not affected by these Rules or this Manual. 

(2) The code applies in all places. 

Discussion 

Except insofar as required by the Constitution, the code, of an offense is often of major importance in the application of 

or the Manual, jurisdiction of courts-martial does not depend this doctrine. See R.C.M. 203 and discussion. Article 2(a)(ll) 

on where the offense was committed. and (12) establishes court-martial jurisdiction only in certain 

The code applies in all places (Article 5). but its application places. See R.C.M. 202. 


may be limited by the service-connection doctrine. The location 


(3) The jurisdiction of a court-martial with respect to offenses under the code is not affected by the place 

where the court-martial sits. The jurisdiction of a court-martial with respect to military government or the law 

of war is not affected by the place where the court-martial sits except as otherwise expressly required by this 

Manual or applicable rule of international law. 

Discussion 

In addition to the power to try persons for offenses under tried by general court-martial for offenses against the law of an 

the code, general courts-martial have power to try certain per- occupied territory, the court-martial normally sits in the country 

sons for violations of the law of war and for crimes or offenses where the offense is committed, and must do so under certain 

against the law of the territory occupied as an incident of war circumstances. See Articles 4, 64, and 66, Geneva Convention 

or belligerency whenever the local civil authority is superseded Relative to the Protection of Civilian Persons in Time of War, 

in whole or part by the military authority of the occupying August 12, 1949, arts. 4, 64, and 66, 6 U.S.T. 3516, 3559- 

power. See R.C.M. 201(f)(l)(B). In cases where a person is 60 T.I.A.S. No. 3365. 

(b) Requisites of court-martial jurisdiction. A court-martial always has jurisdiction to determine whether it has 

jurisdiction. Otherwise for a court-martial to have jurisdiction: 

(1) The court-martial must be convened by an official empowered to convene it; 

Discussion 

See R.C.M. 504; 1302. 

(2) The court-martial must be composed in accordance with these rules with respect to number and qualifications of its personnel. As used here "personnel" includes only the military judge, the members, and the 

summary court-martial; 
R.C.M. 201(b)(3) 

Discussion 

See R.C.M. 501-504; 1301. 

(3) Each charge before the court-martial must be referred to it by competent authority; 

Discussion 

See R.C.M. 601. 

(4) The accused must be a person subject to court;martial jurisdiction; and 

Discussion 

See R.C.M. 202. 

(5) The offense must be subject to court-martial jurisdiction. 

Discussion 

See R.C.M. 203. But see R.C.M. 810(d) concerning the effect of certain decisions 

The judgment of a court-martial without jurisdiction is void by courts-martial without jurisdiction. 

and is entitled to no legal effect. See R.C.M. 907(b)(2)(C)(iv). 

(c) Contempt. A court-martial may punish for contempt any person who uses any menacing word, sign, or gesture 

in its presence, or who disturbs its proceedings by any riot or disorder. The punishment may not exceed 

confinement for 30 days or a fine of $100, or both. 

Discussion 

See R.C.M. 809 for procedures and standards for contempt proceedings. 

(d) Exclusive and nonexclusive jurisdiction. 

(1) Courts-martial have exclusive jurisdiction of purely military offenses. 

(2) An act or omission which violates both the code and local criminal law, foreign or domestic, may be 

tried by a court-martial, or by a proper civilian tribunal, foreign or domestic, or, subject to R.C.M. 907(b)(2)(C) 

and regulations of the Secretary concerned, by both. 

(3) Where an act or omission is subject to trial by court-martial and by one or more civil tribunals, foreign 

or domestic, the determination which nation, state, or agency will exercise jurisdiction is a matter for the nations, 

states, and agencies concerned, and is not a right of the suspect or accused. 

Discussion 

In the case of an act or omission which violates the code trial or has been tried by a State court should not ordinarily be 

and a criminal law of a State, the United States, or both, the tried by court-martial for the same act. Overseas, international 

determination which agency shall exercise jurisdiction should agreements might preclude trial by one state of a person acnormally be made through consultation or prior agreement be- quitted or finally convicted of a given act by the other state. 

tween appropriate military officials (ordinarily the staff judge Under international law, a friendly foreign nation has juadvocate) and appropriate civilian authorities (United States risdiction to punish offenses committed within its borders by 

Attorney, or equivalent). See alsoMemorandum of Understand- members of a visiting force, unless it expressly or impliedly 

ing Between Departments of Justice and Defense Relating to consents to relinquish its jurisdiction to the visiting sovereign. 

the Investigation and Prosecution of Crimes Over Which the The procedures and standards for determining which nation will 

Two Departments Have Concurrent Jurisdiction at Appendix 3. exercise jurisdiction are normally established by treaty. See, for 

Under the Constitution, a person may not be tried for the example, NATO Status of Forces Agreement, June 19, 1951, 

same misconduct by both a court-martial and another federal 4 U.S.T. 1792, T.I.A.S. No. 2846. As a matter of policy, 

court. See R.C.M. 907(b)(2)(C). Although it is constitutionally efforts should be made to maximize the exercise of court-martial 

permissible to try a person by court-martial and by a State court jurisdiction over persons subject to the code to the extent posfor the same act, as a matter of policy a person who is pending sible under applicable agreements. 
R.C.M. 201(9(1)(A)(lii)(a) 

See R.C.M. 106 concerning delivery of offenders to ci- See also R.C.M. 201(g) concerning the jurisdiction of 

vilian authorities. other military tribunals. 

(e) Reciprocal jurisdiction. 

(1) Each armed force has court-martial jurisdiction over all persons subject to the code. 

(2) So much of the'authority vested in the President by Article 22(a)(7) to empower any officer of the armed 

forces who is the commander of a joint command or joint task force to convene a general court-martial for the 

trial of members of any of the armed forces in accordance with Article 17(a) and this rule is delegated to the 

Secretary of Defense. A commander who has been empowered to convene courts-martial under this rule by the 

President or the Secretary of Defense may expressly authorize a commanding officer of a subordinate joint 

command or subordinate joint task force who is authorized to convene special and summary courts-martial to 

convene such courts-martial for the trial of members of other armed forces under regulations which the superior 

commander may prescribe. 

(3) A member of one armed force may be tried by a court-martial convened by a member of another armed 

force when: 

(A) The court-martial is convened by a commander of a joint command or joint task force who has been 

specifically empowered by the President, the Secretary of Defense, or a superior commander under 

the provisions of subsection (e)(2) of this rule to refer such cases for trial by courts-martial; or 

(B) 	The accused cannot be delivered to the armed force of which the accused is a member without 

manifest injury to the armed forces. 

An accused should not ordinarily be tried by a court-martial convened by a member of a different armed force 

except when the circumstances described in (A) or (B) exist. However, failure to comply with this policy does 

not affect an otherwise valid referral. 

(4) Nothing in this rule prohibits detailing to a court-martial a military judge who is a member of an armed 

force different from that of the accused or the convening authority, or both. 

(5) In all cases, departmental review after that by the officer with authority to convene a general courtmartial for the command which held the trial, where that review is required by the code, shall be carried out by 

the department that includes the armed force of which the accused is a member. 

Discussion 

"Manifest injury" does not mean minor inconvenience or accused who is a member of another armed force, see R.C.M. 

expense. Examples of manifest injury include direct and sub- 503(a)(3) Discussion. Cases involving two or more accused who 

stantial effect on morale, discipline, or military operations, are members of different armed forces should not be referred 

substantial expense or delay, or loss of essential witnesses. to a court-martial for a common trial. 

As to the composition of a court-martial for the trial of an 

(f) Types of courts-martial. 

(I) General courts-martial. 

(A)Cases under the code. 

(i) Except as otherwise expressly provided, general courts-martial may try any person subject to the 

code for any offense made punishable under the code. General courts-martial also may try any person for a 

violation of Article 83, 104, or 106. 

(ii) Upon a finding of guilty of an offense made punishable by the code, general courts-martial may, 

within limits prescribed by this Manual, adjudge any punishment authorized under R.C.M.1003. 

(iii) Notwithstanding any other rule, the death penalty may not be adjudged if: 

(a)Not specifically authorized for the offense by the code and Part IV of this Manual; or 
R.C.M. 20l(f)(l)(A)(lli)(b) 

(b) The case has been referred as noncapital. 

(B) Cases under the law of war. 

(i) General courts-martial may try any person who by the law of war is subject to trial by military 

tribunal for any crime or offense against: 

(a) The law of war; or 

(b) The law of the territory occupied as an incident of war or belligerency whenever the local civil 

authority is superseded in whole or part by the military authority of the occupying power. The law of the occupied 

territory includes the local criminal law as adopted or modified by competent authority, and the proclamations, 

ordinances, regulations, or orders promulgated by competent authority of the occupying power. 

Discussion 

Subsection (f)(l)(B)(i)(b) is an exercise of the power of military government. 

(ii) When a general court-martial exercises jurisdiction under the law of war, it may adjudge any 

punishment permitted by the law of war. 

Discussion 

Certain limitations on the discretion of military tribunals tion Relative to the Protection of Civilian Persons in Time of 

to adjudge punishments under the law of war are prescribed in War,Aug. 12, 1949, art. 68, 6 U.S.T. 3516, T.I.A.S. NO. 

international conventions. See, for example, Geneva Conven- 3365. 

(C) Limitations in judge alone cases. A general court-martial composed only of a military judge does 

not have jurisdiction to try any person for any offense for which the death penalty may be adjudged 

unless the case has been referred to trial as noncapital. 

(2) Special courts-martial. 

(A) In general. Except as otherwise expressly provided, special courts-martial may try any person subject 

to the code for any noncapital offense made punishable by the code and, as provided in this rule, 

for capital offenses. 

(B) Punishments. 

(i) Upon a finding of guilty, special courts-martial may adjudge, under limitations prescribed by this 

Manual, any punishment authorized under R.C.M. 1003 except death, dishonorable discharge, dismissal, confinement for more than 6 months, hard labor without confinement for more than 3 months, forfeiture of pay 

exceeding two-thirds pay per month, or any forfeiture of pay for more than 6 months. 

(ii) A bad-conduct discharge may not be adjudged by a special court-martial unless: 

(a) Counsel qualified under Article 27(b) is detailed to represent the accused; and 

(b) A military judge is detailed to the trial, except in a case in which a military judge could not be 

detailed because of physical conditions or military exigencies. Physical conditions or military exigencies, as the 

terms are here used, may exist under rare circumstances, such as on an isolated ship on the high seas or in a 

unit in an inaccessible area, provided compelling reasons exist why trial must be held at that time and at that 

place. Mere inconvenience does not constitute a physical condition or military exigency and does not excuse a 

failure to detail a military judge. If a military judge cannot be detailed because of physical conditions or military 

exigencies, a bad-conduct discharge may be adjudged provided the other conditions have been met. In that event, 

however, the convening authority shall, prior to trial, make a written statement explaining why a military judge 

could not be obtained. This statement shall be appended to the record of trial and shall set forth in detail the 

reasons why a military judge could not be detailed, and why the trial had to be held at that time and place. 
R.C.M. 202(a) 

Discussion 

See R.C.M. 503 concerning detailing the military judge The physical condition or military exigency exception to 

and counsel. the requirement for a military judge does not apply to the reThe requirement for counsel is satisfied when counsel qual- quirement for detailing counsel qualified under Article 27(b). 

ified under Article 27(b), and not otherwise disqualified, has See also R.C.M. 1103(c) concerning the requirements for 

been detailed and made available, even though the accused may a record of ma1 in special courts-martial. 

not choose to cooperate with, or use the services of, such detailed counsel. 

(C) Capital offenses. 

(i) A capital offense for which there is prescribed a mandatory punishment beyond the punitive power 

of a special court-martial shall not be referred to such a court-martial. 

(ii) An officer exercising general court-martial jurisdiction over the command which includes the accused 

may permit any capital offense other than one described in subsection (f)(2)(C)(i) of this rule to be referred to 

a special court-martial for trial. 

(iii) The Secretary concerned may authorize, by regulation, officers exercising special court-martial 

jurisdiction to refer capital offenses, other than those described in subsection (f)(2)(C)(i) of this rule, to trial by 

special court-martial without first obtaining the consent of the officer exercising general court-martial jurisdiction 

over the command. 

Discussion 

See R.C.M. 103(3) for a definition of capital offenses. 

(3)Summary courts-martial. See R.C .M. 1301(c) and (d)( 1). 

(g) Concurrent jurisdiction of other military tribunals. The provisions of the code and this Manual conferring 

jurisdiction upon courts-martial do not deprive military commissions, provost courts, or other military tribunals 

of concurrent jurisdiction with respect to offenders or offenses that by statute or by the law of war may be tried 

by military commissions, provost courts, or other military tribunals. 

Discussion 

See Articles 104 and 106 for some instances of concurrent jurisdiction. 

Rule 202. Persons subject to the jurisdiction of courts-martial 

(a) In general. Courts-martial may try any person when authorized to do so under the code. 

Discussion 

(1) Authority under the code. Article 2 lists classes concerning who may be subject to the contempt powers of a 

of persons who are subject to the code. These include active court-martial. 

duty personnel (Article 2(a)(l)); cadets, aviation cadets, and (2) Active duty personnel. Court-martial jurisdiction 

midshipmen (Article 2(a)(2)); certain retired personnel (Article is most commonly exercised over active duty personnel. In 

2(a)(4) and (5)); members of Reserve components not on active general, a person becomes subject to court-martial jurisdiction 

duty under some circumstances (Article 2(a)(3) and (6));persons upon enlistment in or induction into the armed forces, accepin the custody of the armed forces serving a sentence imposed tance of a commission, or entry onto active duty pursuant to 

by court-martial (Article 2(a)(7)); and, under some circumstan- orders. Court-martial jurisdiction over active duty personnel 

ces, specified categories of civilians (Article 2(a)(8), (9), (lo), ordinarily ends on delivery of a discharge certificate or its equiv- 

(Il), and (12); see subsection (3) and (4) of this discussion). alent to the person concerned issued pursuant to competent 

In addition, certain persons whose status as members of the orders. Orders transferring a person to the inactive reserve are 

armed forces or as persons otherwise subject to the code ap- the equivalent of a discharge certificate for purposes of jurisparently has ended may, nevertheless, be amenable to trial by diction. 

court-martial. See Articles 3, 4, and 73. A person need not be There are several important qualifications and exceptions 

subject to the code to be subject to trial by court-martial under to these general guidelines. 

Articles 83, 104, or 106. See also Article 48 and R.C.M. 809 (A) Inception of court-martial jurisdiction over 

active duty personnel. 
R.C.M. 202(a) 

(i) Enlistment. "The voluntary enlistment or national emergency, or as a result of failure to participate 

of any person who has the capacity to understand the signifi- satisfactorily in unit activities. 

cance of enlisting in the anned forces shall be valid for purposes 

of jurisdiction under [Article 2(a)] and a change of status from 

civilian to member of the armed forces shall be effective upon 

taking the oath of enlistment." Article 2(b). A person who is, 

at the time of enlistment, insane, intoxicated, or under the age 

of -17 does not have the capacity to enlist by law. No courtmartial jurisdiction over such a person may exist as long as the 

incapacity continues. If the incapacity ceases to exist, a "constructive enlistment" may result under Article 2(c). See discussion of "constructive enlistment" below. Similarly, if the 

enlistment was involuntary, court-martial jurisdiction will exist 

only when the coercion is removed and a "constructive enlistment" under Article 2(c) is established. 

Persons age 17 (but not yet 18) may not enlist without 

parental consent. A parent or guardian may, within 90 days of 

its inception, terminate the enlistment of a 17-year-old who 

enlisted without parental consent, if the person has not yet 

reached the age of 18. 10 U.S.C. 8 1170. See also DOD Directive 1332.14 and service regulations for specific rules on 

separation of persons 17 years of age on the basis of a parental 

request. Absent effective action by a parent or guardian to 

terminate such an enlistment, court-martial jurisdiction exists 

over the person. An application by a parent for release does 

not deprive a court-martial of jurisdiction to try a person for 

offenses committed before action is completed on such an application. 

Even if a person lacked capacity to understand the effect 

of enlistment or did not enlist voluntarily, a "constructive enlistment" may be established under Article 2(c), which provides: 

Notwithstanding any other provision of law, a person 

serving with an armed force who- 

(1) submitted voluntarily to military authority; 

(2) met the mental competency and minimum age 

qualifications of sections 504 and 505 of this title at the time 

of voluntary submission to military authority [that is, not insane, 

intoxicated, or under the age of 171; 

(3) received military pay or allowances; and 

(4) performed military duties; 

is subject to [the code] until such person's active service has 

been terminated in accordance with law or regulations promulgated by the Secretary concerned. 

Even if a person never underwent an enlistment or induction proceeding of any kind, court-martial jurisdiction could be 

established under this provision. 

(ii) Induction. Court-martial jurisdiction does 

not extend to a draftee until: the draftee has completed an 

induction ceremony which was in substantial compliance with 

the requirements prescribed by statute and regulations; the draftee by conduct after an apparent induction, has waived objection 

to substantive defects in it; or a "constructive enlistment" under 

Article 2(c) exists. 

The fact that a person was improperly inducted (for example, because of incorrect classification or erroneous denial 

of exemption) does not of itself negate court-martial jurisdiction. When a person has made timely and persistent efforts to 

correct such an error, court-martial jurisdiction may be defeated 

if improper induction is found, depending on all the circumstances of the case. 

(iii) Call ro active duty. A member of a 

reserve component may be called or ordered to active duty for 

a variety of reasons, including training, service in time of war 

. When a person is ordered to active duty for failure to 

satisfactorily participate in unit activities, the order must substantially comply with procedures prescribed by regulations, to 

the extent due process requires, for court-martial jurisdiction to 

exist. Generally, the person must be given notice of the activation and the reasons therefor, and an opportunity to object to 

the activation. A person waives the right to contest involuntary 

activation by failure to exercise this right within a reasonable 

time after notice of the right to do so. 

(B) 	Termination ofjurisdiction over active duty 

personnel. As indicated above, the delivery 

of a valid discharge certificate or its equivalent ordinarilv serves to terminate courtmartial jurisdiction. 

(i) Effect of completion of term of service. 

Completion of an enlistment or term of service does not by 

itself terminate court-martial jurisdiction. An original term of 

enlistment may be adjusted for a variety of reasons, such as 

making up time lost for unauthorized absence. Even after such 

adjustments are considered, court-martial jurisdiction normally 

continues past the time of scheduled separation until a discharge 

certificate or its equivalent is delivered or until the Government 

fails to act within a reasonable time after the person objects to 

continued retention. 

As indicated in subsection (c) of this rule, servicemembers 

may be retained past their scheduled time of separation, over 

protest, by action with a view to trial while they are still subject 

to the code. Thus, if action with a view to trial is initiated before 

discharge or the effective terminal date of self-executing orders, 

a person may be retained beyond the date that the period of 

service would otherwise have expired or the terminal date of 

such orders. 

(ii) Effect of discharge and reenlistment. 

Under Article 3(a), a person who reenlists following a discharge 

may not be tried for offenses committed during the earlier term 

of service unless the offense was punishable by confinement 

for 5 years or more and could not be tried in the courts of the 

United States or of a State, a Tenitory, or the District of Columbia. However, see (iii)(a) below. 

(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: 

(I)The offense is one for which 

a court-martial may adjudge confkement for 5 or more years; 

(2) The person cannot be tried in 

the courts of the United States or of a State, Territory, or the 

District of Columbia; and 

(3)The person is, at the time of 

the court-martial, subject to the code, by reentry into the anned 

forces or otherwise. See Article 3(a). 

(b) A person who was subject to the 

code at the time the offense was committed is subject to trial 

by court-martial despite a later discharge if- 

(I)The discharge was issued before the end of the accused's term of enlistment for the purpose 

of reenlisting; 

(2) The person remains, at the time 

of the court-martial, subject to the code; and 
R.C.M. 203 

(3)The reenlistment occurred af- martial jurisdiction over that person does not end. For example, 

ter 26 July 1982. when an officer holding a commission in a Reserve component 

(c)Persons in the custody of the armed of an armed force is discharged from that commission while 

forces serving a sentence imposed by a court-martial remain on active duty because of acceptance of a commission in a 

subject to the code and court-martial jurisdiction. A prisoner Regular component of that armed force, without an interval 

who has received a discharge and who remains in the custody between the periods of service under the two commissions, that 

of an armed force may be tried for an offense committed while officer's military status does not end. There is merely a change 

a member of the armed forces and before the execution of the in personnel status from temporary to permanent officer, and 

discharge as well as for offenses committed after it. court-martial jurisdiction over an offense committed before the 

(d)A person discharged from the armed discharge is not affected. 

forces who is later charged with having fraudulently obtained (3) Public Health Service and National Oceanic and 

that discharge is, subject to the statute of limitations, subject Atmospheric Administration. Members of the Public Health Serto trial by court-martial on that charge, and is after apprehension vice and the National Oceanic and Atmospheric Administration 

subject to the code while in the custody of the armed forces for become subject to the code when assigned to and serving with 

trial. Upon conviction of that charge such a person is subject the armed forces. 

to trial by court-martial for any offenses under the code com- (4) Limitations on jurisdiction over civilians. Courtmitted before the fraudulent discharge. martial jurisdiction over civilians under the code is limited by 

(e) No person who has deserted from judicial decisions. The exercise of jurisdiction under Article 

the armed forces is relieved from court-martial jurisdiction by 2(a)(ll) in peacetime has been held unconstitutional by the 

a separation from any later period of service. Supreme Court of the United States. Article 2(a)(10) has also 

V) When a person's discharge or other been limited. Before initiating court-martial proceedings against 

separation does not interrupt the status as a person belonging a civilian, relevant statutes and decisions should be carefully 

to the general category of persons subject to the code, court- examined. 

(b) Offenses under the law of war. Nothing in this rule limits the power of general courts-martial to try persons 

under the law of war. See R.C.M. 201 (f)(l)(B). 

(c) Attachment of jurisdiction over the person. 

(1) In general. Court-martial jurisdiction attaches over a person when action with a view to trial of that 

person is taken. Once court-martial jurisdiction over a person attaches, such jurisdiction shall continue for all 

purposes of trial, sentence, and punishment, notwithstanding the expiration of that person's term of service or 

other period in which that person was subject to the code or trial by court-martial. When jurisdiction attaches 

over a servicemember on active duty, that servicemember may be held on active duty over objection pending 

disposition of any offense for which held and shall remain subject to the code during the entire period. 

Discussion 

Court-martial jurisdiction exists to try a person as long as Court-martial jurisdiction attaches over a person upon acthat person occupies a status as a person subject to the code. tion with a view to trial. Once court-martial jurisdiction atSee also Articles 104 and 106. Thus, a servicemember is subject taches, it continues throughout the trial and appellate process, 

to court-martial jurisdiction until lawfully discharged or, when and for purposes of punishment. 

the servicemember's term of service has expired, the govem- If jurisdiction has attached before the effective terminal 

ment fails to act within a reasonable time on objection by the date of self-executing orders, the person may be held for trial 

servicemember to continued retention. by court-martial beyond the effective terminal date. 

(2) Procedure. Actions by which court-martial jurisdiction attaches include: apprehension; imposition of 

restraint, such as restriction, arrest, or confinement; and preferral of charges. 

Rule 203. Jurisdiction over the offense 

To the extent permitted by the Constitution, courts-martial may try any offense under the code and, in the 

case of general courts-martial, the law of war. 

Discussion 

(a) In general. Courts-martial have power to try any of courts-martial was established by the Supreme Court of the 

offense under the code except when prohibited from doing so United States in O'Callahan v. Parker, 395 U.S. 258 (1969), 

by the Constitution. (Jurisdiction over certain offenses and in- which held that an offense under the code may not be tried by 

dividuals may be affected by Article 3; see R.C.M. 202.) The court-martial unless it is "service-connected." Later decisions 

major constitutional limitation on the subject-matter jurisdiction by the Supreme Court, the Court of Military Appeals, and other 
R.C.M. 203 

courts have established standards for applying the service-connection rule, as well as certain exceptions to it. Because each 

case depends on its own facts, and because these rules are 

subject to continuing interpretation, careful attention must be 

paid to service-connection in every case. The remainder of this 

discussion provides guidance concerning service-connection based 

on judicial decisions. 

(b) Pleading andproof. The prosecution should plead 

the facts establishing jurisdiction (see R.C.M. 307(c)(3) Discussion (F)).If the issue is raised, the prosecution must prove 

the disputed facts necessary to establish jurisdiction over the 

offense. See R.C.M. 907(b)(l)(A). Jurisdiction must exist over 

each offense. The fact that some offenses with which the accused is charged are service-connected does not necessarily 

establish jurisdiction over others, even if they are of a similar 

or related nature. However, where related on-base and off-base 

offenses are involved, there is a military interest in having all 

the offenses tried by court-martial, so that they can be disposed 

of together without delay. The existence of this interest helps 

provide a basis for finding service-connection for the off-base 

offenses. 

(c) Determining service-connection. 

(1) In general. In Relford v. Commandant, 401 

U.S. 355 (1971), the Supreme Court identified 12 factors which 

may be considered in deciding service-connection. The factors 

are1. The serviceman's proper absence from the base. 

2. The crime's commission away from the base. 

3. Its commission at a place not under military control. 

4. Its commission within our territorial limits and not 

in an occupied zone of a foreign country. 

5. Its commission in peacetime and its being unrelated 

to authority stemming from the war power. 

6. The absence of any connection between the defendant's military duties and the crime. 

7. The victim's not being engaged in the performance 

of any duty relating to the military. 

8. The presence and availability of a civilian court in 

which the case can be prosecuted. 

9. The absence of any flouting of military authority. 

10. The absence of any threat to a military post. 

11. The absence of any violation of military property. 

12. The offenses being among those traditionally 

prosecuted in civilian courts. 

These factors are not exhaustive. The Supreme Court also 

described nine additional considerations in Relford: 

(1) the essential and obvious interest of the military 

in the security of persons and of property on the military enclave; 

(2) the responsibility of the military commander for maintenance 

of order in the command and the commander's authority to 

maintain that order; (3) the impact and adverse effect that a 

crime committed against a person or property on a military 

base, thus violating the base's very security, has upon the morale, discipline, reputation and integrity of the base itself, upon 

its personnel, and upon the military operation and the military 

mission; (4) Article I, section 8, clause 14 of the Constitution 

of the United States, vesting in Congress the power "To make 

Rules for the Government and Regulation of the land and naval 

Forces," means, in appropriate areas beyond the purely military 

offense, more than the mere power to arrest a servicememberoffender and turn that person over to the civil authorities; (5) 

the distinct possibility that civil courts, particularly nonfederal 

courts, will have less than complete interest, concern, and capacity for all the cases that vindicate the military's disciplinary 

authority within its own community; (6) the presence of factors 

such as geographical and military relationships which have important significance in favor of service-connection; (7) historically, a crime against the person of one associated with the 

post was subject even to the General Article; (8) the misreading 

and undue restriction of O'Callahn if it were interpreted as 

confining the court-martial to the purely military offenses that 

have no counterpart in nonmilitary criminal law; (9)the inability 

appropriately and meaningfully to draw any line between a 

post's strictly military areas and its nonmilitary areas, or between a servicemember's duty and off-duty activities and hours 

on the post. In addition, the effect of the offense on the reputation and morale of the Armed Services is an appropriate 

consideration in determining service-connection. 

The test is not simply a numerical tally of the presence or 

absence of these or other factors. Instead, the factors identify 

circumstances which may tend to weigh for or against serviceconnection, depending on the facts of each case. Thus, certain 

factors will tend to weigh more heavily than others in given 

situations. This balancing test has been described by the Supreme Court: 

[The] issue turns in major part on gauging the impact 

of an offense on military discipline and effectiveness, on determining whether the military interest in deterring the offense 

is distinct from and greater than that of civilian society, and on 

whether the distinct military interest can be vindicated adequately in civilian courts. 

Schlesinger v. Councilman, 420 U.S. 738, 760 (1975). 

(2) Military offemes. Military offenses, such 

as unauthorized absence, disrespect offenses, and disobedience 

of superiors, are always service-connected. 

(3) Offenses on a military installation. Virtually all offenses which occur on a military base, post, or other 

installation are service-connected. Similarly, offenses aboard a 

military vessel or aircraft are service-connected. If an essential 

part of the offense occurs on a military installation, serviceconnection exists even though the remainder of the offense took 

place off base. However, on-base preparation to commit an 

offense or introduction onto a military installation of the fruits 

or instruments of a crime completed off base may not necessarily 

be sufficient to prove service-connection over an off-base offense. An offense which directly threatens the security of an 

installation may be service-connected even though it occurs off 

base. When an offense is committed near a military installation, 

the proximity may support a finding of service-connection, as 

when it injures relationships between the military and civilian 

communities and makes it more difficult for servicemembers 

to receive local support. 

(4) Drug offenses. Almost every involvement of service personnel with the commerce in drugs, including 

use, possession, and distribution, is service-connected, regardless of location. However, examples of situations in which drug 

involvement by a servicemember which after Relford analysis 

might not be service-connected include use of marijuana by a 

servicemember on a lengthy leave away from the military, or 

off-base distribution by a servicemember of a small amount of 

illegal drugs to a civilian for personal use. 

(5) Offenses involving military status and 

theflouting of military authority. The fact that the victim of an 

offense is a servicemember or that the accused used a military 

identification card may establish service-connection, especially 

in conjunction with other facts in a case. If the accused's status, 

either as a servicemember generally, or as the occupant of a 

specific position, is of central importance to the criminal activity, as where it is crucial in enabling the accused to commit 

the crime, service-connection will normally exist. The fact that 
the accused is an officer or military policeman or was in uniform 

when the offense was committed does not necessarily establish 

service-connection, although such circumstances may tend to 

support a finding of service-connection in conjunction with 

other facts. 

(6) During a declared war, or a period of 

hostilities as a result of which Congress is unable to meet, 

virtually all offenses would be service-connected. 

(d) Exceptions to the service-connection requirement. 

(1) The overseas exception. Offenses which 

are committed outside the territorial limits of the United States 

and its possessions, and which are not subject to trial in the 

civilian courts of the United States, need not be service-connected to be tried by court-martial. This exception depends on 

R.C.M. 203 

the location of the commission of the offense, not on the location 

of the trial. Note that the overseas exception does not apply to 

all offenses committed abroad, for some criminal statutes of 

the United States apply to its citizens abroad. The offense must 

be service-connected in this case because the offense may also 

be tried in a civilian court of the United States. The fact that 

the offense occurred overseas may be a factor tending to establish service connection, however, even if potentially subject 

to trial in Federal civilian court. 

(2) The petty offenses exception. Petty offenses may be tried by court-martial whether or not they are 

service-connected. An offense is petty if the maximum confinement which may be adjudged is 6 months or less and no 

punitive discharge is authorized. 
CHAPTER Ill. INITIATION OF CHARGES; APPREHENSION; PRETRIAL RESTRAINT; RELATED 

MATTERS 

Rule 301. Report of offense 

(a) Who may report. Any person may report an offense subject to trial by court-martial. 

(b) To whom reports conveyed for disposition. Ordinarily, any military authority who receives a report of an 

offense shall forward as soon as practicable the report and any accompanying information to the immediate 

commander of the suspect. Competent authority superior to that commander may direct otherwise. 

Discussion 

Any military authority may receive a report of an offense. If the suspect is unidentified, the military authority who 

Typically such reports are made to law enforcement or inves- receives the report should refer it to a law enforcement or 

tigative personnel, or to appropriate persons in the chain of investigative agency. 

command. A report may be made by any means, and no par- Upon receipt of a report, the immediate commander of a 

ticular format is required. When a person who is not a law suspect should refer to R.C.M. 306 (Initial disposition). See 

enforcement official receives a report of an offense, that person also R.C.M. 302 (Apprehension); R.C.M. 303 (Preliminary 

should forward the report to the immediate commander of the inquiry); R.C.M. 304, 305 (Pretrial restraint, confinement). 

suspect unless that person believes it would be more appropriate 

to notify law enforcement or investigative authorities. 

Rule 302. Apprehension 

(a) Definition and scope. 

(1) Definition. Apprehension is the taking of a person into custody. 

Discussion 

Apprehension is the equivalent of "arrest" in civilian ter- proper authority is notified and acts under R.C.M. 304 or 305. 

minology. (In military terminology, "arrest" is a form of re- An investigative detention may be made on less than probable 

straint. See Article 9; R.C.M. 304.) See subsection (c) of this cause (see Mil. R. Evid. 314(f)), and normally involves a relrule concerning the bases for apprehension. An apprehension atively short period of custody. Furthermore, an extensive search 

is not required in every case; the fact that an accused was never of the person is not authorized incident to an investigative deapprehended does not affect the jurisdiction of a court-martial tention, as it is with an apprehension. See Mil. R. Evid. 314(f) 

to try the accused. However, see R.C.M. 202(c) concerning and (g). This rule does not affect any seizure of the person less 

attachment of jurisdiction. severe than apprehension. 

An apprehension is different from detention of a person Evidence obtained as the result of an apprehension which 

for investigative purposes, although each involves the exercise is in violation of this rule may be challenged under Mil. R. 

of government control over the freedom of movement of a Evid. 31 l(c)(l). Evidence obtained as the result of an unlawful 

person. An apprehension must be based on probable cause, and civilian arrest may be challenged under Mil. R. Evid. 31 l(c)(l), 

the custody initiated in an apprehension may continue until (2). 

(2) Scope. This rule applies only to apprehensions made by persons authorized to do so under subsection 

(b) of this rule with respect to offenses subject to trial by court-martial. Nothing in this rule limits the authority 

of federal law enforcement officials to apprehend persons, whether or not subject to trial by court-martial, to 

the extent permitted by applicable enabling statutes and other law. 

Discussion 

R.C.M. 302 does not affect the authority of any official Several federal agencies have broad powers to apprehend 

to detain, arrest, or apprehend persons not subject to trial under persons for violations of federal laws, including the Uniform 

the code. The rule does not apply to actions taken by any person Code of Military Justice. For example, agents of the Federal 

in a private capacity. Bureau of Investigation, United States Marshals, and agents of 
R.C.M. 302(b) 

the Secret Service may apprehend persons for any offenses to which such agencies become involved in the apprehension 

committed in their presence and for felonies. 18 U.S.C. §$ 3052, of persons subject to trial by courts-martial may depend on the 

3053, 3056. Other agencies having apprehension powers in- statutory authority of the agency and the agency's formal or 

clude the General Services Administration, 40 U.S.C. 8 318 informal relationships with the Department of Defense. 

and the Veterans Administration, 38 U.S.C. 1218. The extent 

(b) Who may apprehend. The following officials may apprehend any person subject to trial by court-martial: 

(1) Military law enforcement ofSicials. Security police, military police, master at arms personnel, members 

of the shore patrol, and persons designated by proper authorities to perform military criminal investigative, guard, 

or police duties, whether subject to the code or not, when, in each of the foregoing instances, the official making 

the apprehension is in the execution of law enforcement duties; 

Discussion 

Whenever enlisted persons, including police and guards, to the commissioned officer to whom the apprehending person 

and civilian police and guards apprehend any commissioned or is responsible. 

wmant officer, such persons should make an immediate report 

(2) Commissioned, warrant, petty, and noncommissioned oficers. All commissioned, warrant, petty, and 

noncommissioned officers on active duty; 

Discussion 

Noncommissioned and petty officers not otherwise per- officer or in order to prevent disgrace to the service or the 

forming law enforcement duties should not apprehend a com- escape of one who has committed a serious offense. 

missioned officer unless directed to do so by a commissioned 

(3) Civilians authorized to apprehend deserters. Under Article 8, any civilian officer having authority to 

apprehend offenders under laws of the United States or of a State, Temtory, Commonwealth, or possession, or 

the District of Columbia, when the apprehension is of a deserter from the armed forces. 

Discussion 

The code specifically provides that any civil officer, whether state and local enforcement officers to apprehend persons for 

of a State, Tenitory, district, or of the United States may ap- other violations of the code. See Article 8. 

prehend any deserter. However, this authority does not permit 

(c) Grounds for apprehension. A person subject to the code or trial thereunder may be apprehended for an offense 

triable by court-martial upon probable cause to apprehend. Probable cause to apprehend exists when there are 

reasonable grounds to believe that an offense has been or is being committed and the person to be apprehended 

committed or is committing it. Persons authorized to apprehend under subsection (b)(2) of this rule may also 

apprehend persons subject to the code who take part in quarrels, frays, or disorders, wherever they occur. 

Discussion 

"Reasonable grounds" means that there must be the kind true. A mere suspicion is not enough but proof which would 

of reliable information that a reasonable, prudent person would support a conviction is not necessary. A person who determines 

rely on which makes it more likely than not that something is probable cause may rely on the reports of others. 

(d) How an apprehension may be made. 

(1) In general. An apprehension is made by clearly notifying the person to be apprehended that that person 

is in custody. This notice should be given orally or in writing, but it may be implied by the circumstances. 
R.C.M. 382(e)(2)(D)(ii) 

(2) Warrants. Neither warrants nor any other authorization shall be required for an apprehension under these 

rules except as required in subsection (e)(2) of this rule. 

(3) Use of force. Any person authorized under these rules to make an apprehension may use such force and 

means as reasonably necessary under the circumstances to effect the apprehension. 

Discussion 

In addition to any other action required by law or regulation commander of the person apprehended, or any official higher 

or proper military officials, any person making an apprehension in the chain of command of the person apprehended if it is 

under these rules should: maintain custody of the person ap- impractical to inform the immediate commander. 

prehended; and inform as promptly as possible the immediate 

(e) Where an apprehension may be made. 

(1) In general. An apprehension may be made at any place, except as provided in subsection (e)(2) of this 

rule. 

(2) Private dwellings. A private dwelling includes dwellings, on or off a military installation, such as single 

family houses, duplexes, and apartments. The quarters may be owned, leased, or rented by the residents, or 

assigned, and may be occupied on a temporary or permanent basis. "Private dwelling" does not include the 

following, whether or not subdivided into individual units: living areas in military barracks, vessels, aircraft, 

vehicles, tents, bunkers, field encampments, and similar places. No person may enter a private dwelling for the 

purpose of making an apprehension under these rules unless: 

(A) Pursuant to consent under Mil. R. Evid. 314(e) or 316(d)(2); 

(B) Under exigent circumstances described in Mil. R. Evid. 315(g) or 316(d)(4)(B); 

(C) In the case of a private dwelling which is military property or under military control, or nonmilitary 

property in a foreign country, 

(i) if the person to be apprehended is a resident of the private dwelling, there exists, at the time of the 

entry, reason to believe that the person to be apprehended is present in the dwelling, and the apprehension has 

been authorized by an official listed in Mil. R. Evid. 3 15(d) upon a determination that probable cause to apprehend 

the person exists; or 

(ii) if the person to be apprehended is not a resident of the private dwelling, the entry has been authorized 

by an official listed in Mil. R. Evid. 315(d) upon a determination that probable cause exists to apprehend the 

person and to believe that the person to be apprehended is or will be present at the time of the entry; 

(D) In the case of a private dwelling not included in subsection (e)(2)(C) of this rule, 

(i) if the person to be apprehended is a resident of the private dwelling, there exists at the time of the 

entry, reason to believe that the person to be apprehended is present and the apprehension is authorized by an 

arrest warrant issued by competent civilian authority; or 

(ii) if the person to be apprehended is not a resident of the private dwelling, the apprehension is 

authorized by an arrest warrant and the entry is authorized by a search warrant, each issued by competent civilian 

authority. 

A person who is not a resident of the private dwelling entered may not challenge the legality of an apprehension 

of that person on the basis of failure to secure a warrant or authorization to enter that dwelling, or on the basis 

of the sufficiency of such a warrant or authorization. Nothing in this subsection ((e)(2)) affects the legality of 

an apprehension which is incident to otherwise lawful presence in a private dwelling. 

Discussion 

For example, if law enforcement officials enter a private independent grant of authority to execute civilian arrest or search 

dwelling pursuant to a valid search warrant or search authori- warrants. The authority must derive from an appropriate Federal 

zation, they may apprehend persons therein if grounds for an or state procedure. See e.g. Fed. R. Crim. P. 41 and 28 C.F.R. 

apprehension exist. This subsection is not intended to be an 60.1. 
R.C.M. 303 

Rule 303. Preliminary inquiry into reported offenses 

Upon receipt of information that a member of the command is accused or suspected of committing an offense 

or offenses triable by court-martial, the immediate commander shall make or cause to be made a preliminary 

inquiry into the charges or suspected offenses. 

Discussion 

The preliminary inquiry is usually informal. It may be an If the offense is one for which the Department of Justice 

examination of the charges and an investigative report or other has investigative responsibilities, appropriate coordination should 

summary of expected evidence. In other cases a more extensive be made under the Memorandum of Understanding, see Apinvestigation may be necessary. Although the commander may pendix 3, and any implementing regulations. 

conduct the investigation personally or with members of the If it appears that any witness may not be available for later 

command, in serious or complex cases the commander should proceedings in the case, this should be brought to the attention 

consider whether to seek the assistance of law enforcement of appropriate authorities. See also R.C.M. 702 (depositions). 

personnel in conducting any inquiry or further investigation. A person who is an accuser (see Article l(9)) is disqualified 

The inquiry should gather all reasonably available evidence from convening a general or special court-martial in that case. 

bearing on guilt or innocence and any evidence relating to R.C.M. 504(c)(l). Therefore, when the immediate commander 

aggravation, extenuation, or mitigation. is a general or special court-martial convening authority, the 

The Military Rules of Evidence should be consulted when preliminary inquiry should be conducted by another officer of 

conducting interrogations (see Mil. R. Evid. 301-306), searches the command. That officer may be informed that charges may 

(see Mil. R. Evid. 311-317). and eyewitness identifications be preferred if the officer determines that preferral is warranted. 

(see Mil. R. Evid. 321). 

Rule 304. Pretrial restraint 

(a) Types of pretrial restraint. Pretrial restraint is moral or physical restraint on a person's liberty which is 

imposed before and during disposition of offenses. Pretrial restraint may consist of conditions on liberty, restriction 

in lieu of arrest, arrest, or confinement. 

(1) Conditions on liberty. Conditions on liberty are imposed by orders directing a person to do or refrain 

from doing specified acts. Such conditions may be imposed in conjunction with other forms of restraint or 

separately. 

(2) Restriction in lieu of arrest. Restriction in lieu of arrest is the restraint of a person by oral or written 

orders directing the person to remain within specified limits; a restricted person shall, unless otherwise directed, 

perform full military duties while restricted. 

(3) Arrest. Arrest is the restraint of a person by oral or written order not imposed as punishment, directing 

the person to remain within specified limits; a person in the status of arrest may not be required to perform full 

military duties such as commanding or supervising personnel, serving as guard, or bearing arms. The status of 

arrest automatically ends when the person is placed, by the authority who ordered the arrest or a superior authority, 

on duty inconsistent with the status of arrest, but this shall not prevent requiring the person arrested to do ordinary 

cleaning or policing, or to take part in routine training and duties. 

(4) Confinement. Pretrial confinement is physical restraint, imposed by order of competent authority, 

depriving a person of freedom pending disposition of offenses. See R.C.M. 305. 

Discussion 

Conditions on liberty include orders to report periodically Restriction in lieu of arrest is a less severe restraint on 

to a specified official, orders not to go to a certain place (such liberty than is arrest. Arrest includes suspension from performas the scene of the alleged offense), and orders not to associate ing full military duties and the limits of arrest are normally 

with specified persons (such as the alleged victim or potential narrower than those of restriction in lieu of arrest. The actual 

witnesses). Conditions on liberty must not hinder pretrial prep- nature of the restraint imposed, and not the characterization of 

aration, however. Thus, when such conditions are imposed, it by the officer imposing it, will determine whether it is techthey must be sufficiently flexible to permit pretrial preparation. nically an arrest or restriction in lieu of arrest. 
R.C.M. 304(f) 

Breach of arrest or restriction in lieu of arrest or violation ment or court-martial. See R.C.M. 306. In addition, such a 

of conditions on liberty are offenses under the code. See par- breach or violation may provide a basis for the imposition of 

agraphs 16, 19, and 102, Part IV. When such an offense occurs, a more severe form of restraint. 

it may warrant appropriate action such as nonjudicial punish- 

(b) Who may order pretrial restraint. 

(1) Of civilians and oficers. Only a commanding officer to whose authority the civilian or officer is subject 

may order pretrial restraint of that civilian or officer. 

Discussion 

Civilians may be restrained under these rules only when they are subject to trial by court-martial. See R.C.M. 202. 

(2) Of enlisted persons. Any commissioned officer may order pretrial restraint of any enlisted person. 

(3) Delegation of authority. The authority to order pretrial restraint of civilians and commissioned and 

warrant officers may not be delegated. A commanding officer may delegate to warrant, petty, and noncommissioned officers authority to order pretrial restraint of enlisted persons of the commanding officer's command or 

subject to the authority of that commanding officer. 

(4)Authority to withhold. A superior competent authority may withhold from a subordinate the authority 

to order pretrial restraint. 

(c) When a person may be restrained. No person may be ordered into restraint before trial except for probable 

cause. Probable cause to order pretrial restraint exists when there is a reasonable belief that: 

(1) An offense triable by court-martial has been committed; 

(2) The person to be restrained committed it; and 

(3) The restraint ordered is required by the circumstances. 

Discussion 

The decision whether to impose pretrial restraint, and, if Restraint is not required in every case. The absence of 

so, what type or types, should be made on a case-by-case basis. pretrial restraint does not affect the jurisdiction of a courtThe factors listed in the Discussion of R.C.M. 305(h)(2)(B) martial. However, see R.C.M. 202(c) concerning attachment 

should be considered. The restraint should not be more rigorous of jurisdiction. See R.C.M. 305 concerning the standards and 

than the circumstances require to ensure the presence of the procedures governing pretrial confinement. 

person restrained or to prevent foreseeable serious criminal misconduct. 

(d) Procedures for ordering pretrial restraint. Pretrial restraint other than confinement is imposed by notifying 

the person orally or in writing of the restraint, including its terms or limits. The order to an enlisted person shall 

be delivered personally by the authority who issues it or through other persons subject to the code. The order 

to an officer or a civilian shall be delivered personally by the authority who issues it or by another commissioned 

officer. Pretrial confinement is imposed pursuant to orders by a competent authority by the delivery of a person 

to a place of confinement. 

(e) Notice of basis for restraint. When a person is placed under restraint, the person shall be informed of the 

nature of the offense which is the basis for such restraint. 

Discussion 

See R.C.M. 305(e) concerning additional information which the restraint is not the commander of the person restrained, that 

must be given to a person who is confined. If the person ordering officer should be notified. 

(f)Punishment prohibited. Pretrial restraint is not punishment and shall not be used as such. No person who is 

11-21 
R.C.M. 304(g) 

restrained pending trial may be subjected to punishment or penalty for the offense which is the basis for that 

restraint. Prisoners being held for trial shall not be required to undergo punitive duty hours or training, perform 

punitive labor, or wear special uniforms prescribed only for post-trial prisoners. This rule does not prohibit minor 

punishment during pretrial confinement for infractions of the rules of the place of confinement. Prisoners shall 

be afforded facilities and treatment under regulations of the Secretary concerned. 

Discussion 

Offenses under the code by a person under restraint may be disposed of in the same manner as any other offenses. 

(g) Release. Except as otherwise provided in R.C.M. 305, a person may be released from pretrial restraint by 

a person authorized to impose it. Pretrial restraint shall terminate when a sentence is adjudged, the accused is 

acquitted of all charges, or all charges are dismissed. 

Discussion 

If charges are to be reinstated, pretrial restraint may be reimposed. 

(h)Administrative restraint. Nothing in this rule prohibits limitations on a servicemember imposed for operational 

or other military purposes independent of military justice, including administrative hold or medical reasons. 

Discussion 

See also R.C.M. 306. 

Rule 305. Pretrial confinement. 

(a) In general. Pretrial confinement is physical restraint, imposed by order of competent authority, depriving a 

person of freedom pending disposition of charges. 

Discussion 

No member of the armed forces may be placed in con- of the United States are separated from prisoners of the other 

finement in immediate association with enemy prisoners or other categories mentioned, they may be confined in the same conforeign nationals not members of the anned forces of the United finement facilities. 

States. Article 12. However, if members of the armed forces 

(b) Who may be confined. Any person who is subject to trial by court-martial may be confined if the requirements 

of this rule are met. 

Discussion 

See R.C.M. 201 and 202 and the discussions therein concerning persons who are subject to trial by courts-martial 

(c) Who may order confinement. See R.C.M. 304(b). 

Discussion 

"No provost marshal, commander of a guard, or master when the committing officer furnishes a statement, signed by 

at arms may refuse to receive or keep any prisoner committed him, of the offense charged against the prisoner." Article 1I(a). 

to his charge by a commissioned officer of the armed forces, 

(d) When a person may be confined. No person may be ordered into pretrial confinement except for probable 

cause. Probable cause to order pretrial confinement exists when there is a reasonable belief that: 

(1) An offense triable by court-martial has been committed; 

(2) The person confined committed it; and 
R.C.M. 305(h)(2)(A) 

(3) Confinement is required by the circumstances. 

Discussion 

The person who directs confinement should consider the summary court-martial, [an accused] shall not ordinarily be 

matters discussed under subsection (h)(2)(B) of this rule before placed in confinement." Article 10. 

ordering confinement. However, the person who initially orders Confinement should be distinguished from custody. Cusconfinement is not required to make a detailed analysis of the tody is restraint which is imposed by apprehension and which 

necessity for confinement. It is often not possible to review a may be, but is not necessarily, physical. Custody may be imperson's background and character or even the details of an posed by anyone authorized to apprehend (see R.C.M. 302(b)), 

offense before physically detaining the person. For example, and may continue until a proper authority under R.C.M. 304(B) 

until additional information can be secured, it may be necessary is notified and takes action. Thus, a person who has been apto confine a person apprehended in the course of a violent crime. prehended could be physically restrained, but this would not be 

"[Wlhen charged only with an offense normally tried by 	 pretrial confinement in the sense of this rule until a person 

authorized to do so under R.C.M. 304(b) directed confinement. 

(e) Advice to the accused upon confinement. Each person confined shall be promptly informed of: 

(1) The nature of the offenses for which held; 

(2) The right to remain silent and that any statement made by the person may be used against the person; 

(3) The right to retain civilian counsel at no expense to the United States, and the right to request assignment 

of military counsel; and 

(4) The procedures by which pretrial confinement will be reviewed. 

(f) Militav counsel. If requested by the prisoner, military counsel shall be provided to the prisoner before the 

initial review under subsection (i) of this rule. Counsel may be assigned for the limited purpose of representing 

the accused only during the pretrial confinement proceedings before charges are referred. If assignment is made 

for this limited purpose, the prisoner shall be so informed. Unless otherwise provided by regulations of the 

Secretary concerned, a prisoner does not have a right under this rule to have military counsel of the prisoner's 

own selection. 

(g) Who may direct~eleasefrom confinement. Any commander of a prisoner, an officer appointed under regulations 

of the Secretary cori~med to conduct the review under subsection (i) of this rule, or, once charges have been 

referred, a military judge detailed to the court-martial to which the charges against the accused have been referred 

may direct release from pretrial confinement. For purposes of this subsection, "any commander" iincludes the 

immediate or higher commander of the prisoner and the commander of the installation on which the confinement 

facility is located. 

(h) Notification and action by commander. 

(1) Report. Unless the commander of the prisoner ordered the pretrial confinement, the commissioned, 

warrant, noncommissioned, or petty officer to whose charge the prisoner was committed shall, within 24 hours 

after that commitment, cause to be made a report to the commander which shall contain the name of the prisoner, 

the offenses charged against the prisoner, and the name of the person who ordered or authorized confinement. 

Discussion 

This report may be made by any means. Ordinarily, the is subject, such as the commander of the confinement facility, 

immediate commander of the prisoner should be notified. In may be notified. In the latter case, the commander so notified 

unusual cases any commander to whose authority the prisoner must ensure compliance with subsection (h)(2) of this rule. 

(2) Action by commander. 

(A) Decision. Not later than 72 hours after ordering a prisoner into pretrial confinement, or after receipt 

of a report that a member of the commander's unit or organization has been confined, the commander 

shall decide whether pretrial confinement will continue. 
R.C.M. 305(h)(2)(B) 

(B) Requirements for confinement. The commander shall direct the prisoner's release from pretrial confinement unless the commander believes upon probable cause, that is, upon reasonable grounds, that: 

(i) An offense triable by a court-martial has been committed; 

(ii) The prisoner committed it; and 

(iii) Confinement is necessary because it is foreseeable that: 

(a) The prisoner will not appear at a trial, pretrial hearing, or investigation, or 

(b)The prisoner will engage in serious criminal misconduct; and 

(iv) Less severe forms of restraint are inadequate. 

Serious criminal misconduct includes intimidation of witnesses or other obstruction of justice, seriously 

injuring others, or other offenses which pose a serious threat to the safety of the community or to the effectiveness, 

morale, discipline, readiness, or safety of the command, or to the national security of the United States. As used 

in this rule, "national security" means the national defense and foreign relations of the United States and 

specifically includes: a military or defense advantage over any foreign nation or group of nations; a favorable 

foreign relations position; or a defense posture capable of successfully resisting hostile or destructive action from 

within or without, overt or covert. 

Discussion 

A person should not be confined as a mere matter of con- mit further serious criminal misconduct if allowed to remain at 

venience or expedience. liberty. 

Some of the factors which should be considered under this ~lthough the Military Rules of Evidence are not applisubsection are: cable, the commander should judge the reliability of the infor- 

(1) The nature and circumstances of the offenses charged mation available. Before relying on the reports of others, the 

or suspected, including extenuating circumstances; commander must have a reasonable belief that the information 

(2) The weight of the evidence against the accused; is believable and has a factual basis. The information may be 

(3) The accused's ties to the locale, including family, received orally or in writing. Information need not be received 

off-duty employment, financial resources, and length of resi- under oath, but an oath may add to its reliability. A commander 

dence; may examine the prisoner's personnel records, police records, 

(4) The accused's character and mental condition; and may consider the recommendations of others. 

(5)The accused's service record, including any record Less serious forms of restraint must always be considered 

of previous misconduct; before pretrial confinement may be approved. Thus the com- 

(6) The accused's record of appearance at or flight mander should consider whether the prisoner could be safely 

from other pretrial investigations, trials, and similar proceed- returned to the prisoner's unit, at liberty or under restriction, 

ings; and arrest, or conditions on liberty. See R.C.M.304. 

(7) The likelihood that the accused can and will com- 

(C) Memorandum. If continued pretrial confinement is approved, the commander shall prepare a written 

memorandum which states the reasons for the conclusion that the requirements for confinement in 

subsection (h)(2)(B) of this rule have been met. This memorandum may include hearsay and may 

incorporate by reference other documents, such as witness statements, investigative reports, or official 

records. This memorandum shall be forwarded to the reviewing officer under subsection (i) of this 

rule. If such a memorandum was prepared by the commander before ordering confinement, a second 

memorandum need not be prepared. However, additional information may be added to the memorandum at any time. 

(i) Procedures for review of pretrial confinement. 

(1) In general. A review of the adequacy of probable cause to believe the prisoner has committed an offense 

and of the necessity for continued pretrial confinement shall be made within 7 days of the imposition of 

confinement. 

(2) By whom made. The review under this subsection shall be made by a neutral and detached officer 

appointed in accordance with regulations prescribed by the Secretary concerned. 

(3) Nature of review. 
R.C.M. 305(1) 

(A) Matters considered. The review under this subsection shall include a review of the memorandum 

submitted by the prisoner's commander under subsection (h)(2)(C) of this rule. Additional written 

matters may be considered, including any submitted by the accused. The prisoner, and the prisoner's 

counsel, if any, shall be allowed to appear before the reviewing officer and make a statement, if 

practicable. A representative of command may appear before the reviewing officer to make a statement. 

(B) Rules of evidence. Except for Mil. R. Evid., Section V (Privileges) and Mil. R. Evid. 302 and 305, 

the Military Rules of Evidence shall not apply to the matters considered. 

(C) Standard of proof. The requirements for confinement under subsection (h)(2)(B) of this rule must 

be proved by a preponderance of the evidence. 

(4)Extension of time limit. The reviewing officer may, for good cause, extend the time limit for completion 

of the initial review to 10 days after the imposition of pretrial confinement. 

(5) Action by reviewing officer. Upon completion of review, the reviewing officer shall approve continued 

confinement or order immediate release. 

(6)Memorandum. The reviewing officer's conclusions, including the factual findings on which they are 

based, shall be set forth in a written memorandum. A copy of the memorandum and of all documents considered 

by the reviewing officer shall be maintained in accordance with regulations prescribed by the Secretary concerned 

and provided to the accused or the Government on request. 

(7) Reconsideration of approval of continued confinement. The reviewing officer shall, after notice to the 

parties, reconsider the decision to confine the prisoner upon request based upon any significant information not 

previously considered. 

(j) Review by militaly judge. Once the charges for which the accused has been confined are-referred to trial, the 

military judge shall review the propriety of pre&al confinement upon motion for appropriate relief. 

(1) Release. The military judge shall order release from pretrial confinement only if: 

(A) The reviewing officer's decision was an abuse of discretion, and there is not sufficient information 

presented to the military judge justifying continuation of pretrial confinement under subsection (h)(2)(B) 

of this rule; 

(B) Information not presented to the reviewing officer establishes that the prisoner should be released 

under subsection (h)(2)(B) of this rule; or 

(C) The provisions of subsection (i)(2) or (3) of this rule have not been complied with and information 

presented to the military judge does not establish sufficient grounds for continued confinement under 

subsection (h)(2)(B) of this rule. 

(2) Credit. The military judge shall order administrative credit under subsection (k) of this rule for any 

pretrial confinement served as a result of an abuse of discretion or of failure to comply with the provisions of 

subsection (f), (h), or (i) of this rule. 

(k)Remedy. The remedy for noncompliance with subsection (f), (h), (i), or (j)of this rule shall be an administrative 

credit against the sentence adjudged for any confinement served as the result of such noncompliance. Such credit 

shall be computed at the rate of 1day credit for each day of confinement served as a result of such noncompliance. 

This credit is to be applied in addition to any other credit the accused may be entitled as a result of pretrial 

confinement served. This credit shall be applied first against any confinement adjudged. If no confinement is 

adjudged, or if the confinement adjudged is insufficient to offset all the credit to which the accused is entitled, 

the credit, using the conversion formula under R.C.M. 1003(b)(6) and (7), shall be applied against hard labor 

without confinement, restriction, fine, and forfeiture of pay, in that order, if adjudged. For purposes of this 

subsection, 1 day of confinement shall be equal to 1 day of total forfeiture or a like amount of fine. The credit 

shall not be applied against any other form of punishment. 

(1) Confinement after release. No person whose release from pretrial confinement has been directed by a person 

authorized in subsection (g) of this rule may be confined again before completion of trial except upon the 
R.C.M. 305(m) 

discovery, after the order of release, of evidence or of misconduct which, either alone or in conjunction with 

all other available evidence, justifies confinement. 

Discussion 

See R.C.M.304(b) concerning who may order confinement. 

(m) Exceptions. 

(1) Operational necessity. The Secretary of Defense may suspend application of subsections (e)(2) and (3), 

(f), (h)(2)(A) and (C), and (i) of this rule to specific units or in specified areas when operational requirements 

of such units or in such areas would make application of such provisions impracticable. 

(2)At sea. Subsections (e)(2) and (3), (f), (h)(2)(C), and (i) of this rule shall not apply in the case of a 

person on board a vessel at sea. In such situations, confinement on board the vessel at sea may continue only 

until the person can be transferred to a confinement facility ashore. Such transfer shall be accomplished at the 

earliest opportunity permitted by the operational requirements and mission of the vessel. Upon such transfer the 

memorandum required by subsection (h)(2)(C) of this rule shall be transmitted to the reviewing officer under 

subsection (i) of this rule and shall include an explanation of any delay in the transfer. 

Discussion 

Under this subsection the standards for confinement remain 

the same (although the circumstances giving rise to the exception could bear on the application of those standards). Also, 

pretrial confinement remains subject to judicial review. The 

prisoner's commander still must determine whether confinement 

will continue under subsection (h)(2)(B) of this rule. The suspension of subsection (h)(2)(A) of this rule removes the 72- 

Rule 306. Initial disposition 

hour requirement since in a combat environment, the commander may not be available to comply with it. The commander 

must make the pretrial confinement decision as soon as reasonably possible, however. (This provision is not suspended 

under subsection (2) since the commander of a vessel is always 

available.) 

(a) Who may dispose of offenses. Each commander has discretion to dispose of offenses by members of that 

command. Ordinarily the immediate commander of a person accused or suspected of committing an offense 

triable by court-martial initially determines how to dispose of that offense. A superior commander may withhold 

the authority to dispose of offenses in individual cases, types of cases, or generally. A superior commander may 

not limit the discretion of a subordinate commander to act on cases over which authority has not been withheld. 

Discussion 

Each commander in the chain of command has independent, yet overlapping discretion to dispose of offenses within 

the limits of that officer's authority. Normally, in keeping with 

the policy in subsection (b) of this rule, the initial disposition 

decision is made by the official at the lowest echelon with the 

power to make it. A decision by a commander ordinarily does 

not bar a different disposition by a superior authority. See R.C.M. 

401(c); 601(f). Once charges are referred to a court-martial by 

a convening authority competent to do so, they may be withdrawn from that court-martial only in accordance with R.C.M. 

604. 

See Appendix 3 with respect to offenses for which coordination with the Department of Justice is required. 

(b) Policy. Allegations of offenses should be disposed of in a timely manner at the lowest appropriate level of 

disposition listed in subsection (c) of this rule. 

Discussion 

The disposition decision is one of the most important and 

difficult decisions facing a commander. Many factors must be 

taken into consideration and balanced, including, to the extent 

practicable, the nature of the offenses, any mitigating or extenuating circumstances, the character and military service of 

the accused, any recommendations made by subordinate commanders, the interests of justice, military exigencies, and the 

effect of the decision on the accused and the command. The 

goal should be a disposition that is warranted, appropriate, and 

fair. 

In deciding how an offense should be disposed of, factors 
R.C.M. 306(c)(4) 

the commander should consider, to the extent they are known, (D)possible improper motives of the accuser; 

include: (E) reluctance of the victim or others to testify; 

(A) the character and military service of the (F) cooperation of the accused in the appreaccused; hension or conviction of others; 

(B) the nature of and circumstances surround- (G) availability and likelihood of prosecution 

ing the offense and the extent of the harm of the same or similar and related charges 

caused by the offense, including the of- against the accused by another jurisdiction; 

fense's effect on morale, health, safety, (H) availability and admissibility of evidence; 

welfare, and discipline; (I ) existence of jurisdiction over the accused 

(C) appropriateness of the authorized punish- and the offense; and 

ment to the particular accused or offense; (J ) likely issues. 

(c) How offenses may be disposed of. Within the limits of the commander's authority, a commander may take 

the actions set forth in this subsection to initially dispose of a charge or suspected offense. 

Discussion 

Prompt disposition of charges is essential. See R.C.M. 707 R.C.M. 308, and that the charges are in proper form. See 

(speedy trial requirements). R.C.M. 307. Each commander who forwards or disposes of 

Before determining an appropriate disposition, a com- charges may make minor changes therein. See R.C.M. 603(a) 

mander should ensure that a preliminary inquiry under R.C.M. and (b). If major changes are necessary, the affected charge 

303 has been conducted. If charges have not already been pre- should be preferred anew. See R.C.M. 603(d). 

ferred, the commander may, if appropriate, prefer them and When charges are brought against two or more accused 

dispose of them under this mle. Bur see R.C.M. 601(c) re- with a view to a joint or common trial, see R.C.M. 307 (c)(5); 

garding disqualification of an accuser. 601(e)(3). If it appears that the accused may lack mental caIf charges have been preferred, the commander should pacity to stand trial or may not have been mentally responsible 

ensure that the accused has been notified in accordance with at the times of the offenses, see R.C.M. 706; 909; 916(k). 

(1) No action. A commander may decide to take no action on an offense. If charges have been preferred, 

they may be dismissed. 

Discussion 

A decision to take no action or dismissal of charges at this See R.C.M. 401(a) concerning who may dismiss charges, 

stage does not bar later disposition of the offenses under sub- and R.C.M. 401(c)(l) concerning dismissal of charges. 

sections (c)(2) through (5) of this rule. When a decision is made to take no action, the accused 

should be informed. 

(2)Administrative action. A commander may take or initiate administrative action, in addition to or instead 

of other action taken under this rule, subject to regulations of the Secretary concerned. Administrative actions 

include corrective measures such as counseling, admonition, reprimand, exhortation, disapproval, criticism, 

censure, reproach, rebuke, extra military instruction, or the administrative withholding of privileges, or any 

combination of the above. 

Discussion 

Other administrative measures, which are subject to reg- ministrative reduction for inefficiency; bar to reenlistment; 

ulations of the Secretary concerned, include matters related to personnel reliability program reclassification; security classiefficiency reports, academic reports, and other ratings; reha- fication changes; pecuniary liability for negligence or misconbilitation and reassignment; career field reclassification; ad- duct; and administrative separation. 

(3) Nonjudicial punishment. A commander may consider the matter pursuant to Article 15, nonjudicial 

punishment. See Part V. 

(4)Disposition of charges. Charges may be disposed of in accordance with R.C.M. 401. 
R.C.M. 306(c)(5) 

Discussion 

If charges have not been preferred, they may be preferred. charges may be referred to a general court-martial, compliance 

See R.C.M. 307 concerning preferral of charges. However, see with R.C.M. 405 and 406 is necessary. Therefore, if approR.C.M. 601(c) concerning disqualification of an accuser. priate, an investigation under R.C.M. 405 may be directed. 

Charges may be disposed of by dismissing them, for- Additional guidance on these matters is found in R.C.M. 401- 

warding them to another commander for disposition, or referring 407. 

them to a summary, special, or general court-martial. Before 

(5) Forwarding for disposition. A commander may forward a matter concerning an offense, or charges, to 

a superior or subordinate authority for disposition. 

Discussion 

The immediate commander may lack authority to take ac- authority or otherwise, the disposition decision becomes a mattion which that commander believes is an appropriate dispo- ter within the discretion of the higher authority. 

sition. In such cases, the matter should be forwarded to a superior A matter may be forwarded for other reasons, such as for 

officer with a recommendation as to disposition. See also R.C.M. investi'gation of allegations and preferral of charges, if war401(c)(2) concerning forwarding charges. If allegations are for- ranted (see R.C.M. 303; 307), or so that a subordinate can 

warded to a higher authority for disposition, because of lack of dispose of the matter. 

(d) National security matters. If a commander not authorized to convene general courts-martial finds that an 

offense warrants trial by court-martial, but believes that trial would be detrimental to the prosecution of a war 

or harmful to national security, the matter shall be forwarded to the general court-martial convening authority 

for action under R.C.M. 407(b). 

Rule 307. Preferral of charges 

(a) Who may prefer charges. Any person subject to the code may prefer charges. 

Discussion 

No person may be ordered to prefer charges to which that restrict that person's discretion to act on the case. See R.C.M. 

person is unable to make truthfully the required oath. See Article 104 and 504(c). 

30(a) and subsection (b) of this rule. A person who has been Charges may be preferred against a person subject to trial 

the accuser or nominal accuser (see Article l(9)) may not also by court-martial at any time but should be preferred without 

serve as the convening authority of a general or special court- unnecessary delay. See the statute of limitations prescribed by 

martial to which the charges are later referred. See Articles Article 43. Preferral of charges should not be unnecessarily 

22(b) and 23(b); R.C.M. 601; however, see R.C.M. 1302(b) delayed. When a good reason exists-as when a person is 

(summary court-martial convening authority is not disqualified permitted to continue a course of conduct so that a ringleader 

by being the accuser). A person authorized to dispose of of- or other conspirators may also be discovered or when a susfenses (see R.C.M. 306(a); 401-404 and 407) should not be pected counterfeiter goes uncharged until guilty knowledge beordered to prefer charges when this would disqualify that person comes apparent-a reasonable delay is permissible. However, 

from exercising that person's authority or would improperly see R.C.M. 707 concerning speedy trial requirements. 

(b) How charges are preferred; oath. A person who prefers charges must: 

(1) Sign the charges and specifications under oath before a commissioned officer of the armed forces 

authorized to administer oaths; and 

(2) State that the signer has personal knowledge of or has investigated the matters set forth in the charges 

and specifications and that they are true in fact to the best of that person's knowledge and belief. 

Discussion 

See Article 136 for authority to administer oaths. The fol- foregoing charge(s) and specification(s), and that the same are 

lowing form may be used to administer the oath: true in fact to the best of your knowledge and belief. (So help 

"You (swear) (affirm) that you are a person subject to the you God.)" 

1Tniform Code of Military Justice, that you have personal The accuser's belief may be based upon reports of others 

knowledge of or have investigated the matters set forth in the in whole or in part. 
R.C.M. 307(c)(3) 

(c) How to allege offenses. 

(1) In general. The format of charge and specification is used to allege violations of the code. 

Discussion 

See Appendix 4 for a sample of a Charge Sheet (DD Form 458). 

(2) Charge. A charge states the article of the code, law of war, or local penal law of an occupied temtory 

which the accused is alleged to have violated. 

Discussion 

The particular subdivision of an article of the code (for rated in the trial of the original charges 

example, Article 118(1)) should not be included in the charge. before arraignment. See R.C.M. 601(e)(2). 

When there are numerous infractions of the same article, there (C) Preemption. An offense specifically dewill be only one charge, but several specifications thereunder. fined by Articles 81 through 132'may not 

There may also be several charges, but each must allege a be alleged as a violation of Article 134.See 

violation of a different article of the code. For violations of the paragraph 60c(5)(a) of Part IV. But see sublaw of war, see (D) below. section (d) of this rule. 

(A) 	 Numbering charges. If there is only one (D) Charges under the law of war. In the case 

charge, it is not numbered. When there is of a person subject to trial by general courtmore than one charge, each charge is num- martial for violations of the law of war (see 

bered by a Roman numeral. Article 18), the charge should be: "Vio- 

(B) 	 Additional charges. Charges preferred after lation of the Law of War"; or "Violation 

others have been preferred are labeled "ad- of "refening to the 

ditional charges" and are also numbered local penal law of the occupied temtory. 

with Roman numerals, beginning with "I" See R.C.M. 201(f)(l)(B). But see subsecif there is more than one additional charge. tion (d) of this rule. Ordinarily persons subThese ordiily relate to offenses not known 	 ject to the code should be charged with a 

at the time or committed after the original specific violation of the code rather than a 

charges were preferred. Additional charges violation of the law of war. 

do not require a separate trial if incorpo- 

(3) Specijcation. A specification is a plain, concise, and definite statement of the essential facts constituting 

the offense charged. A specification is sufficient if it alleges every element of the charged offense expressly or 

by necessary implication. No particular format is required. 

Discussion 

How to draft specifications. 	 no such acknowledgment, the name believed to be the true name 

Before drafting should be listed first, followed by all known aliases. For exspecification, the drafter should read the ample: Seaman John P. Smith, U.S. Navy, alias Lt. Robert R. 

pertinent provisions of Part IV, where the Brown, U.S. Navy. 

elements of proof of various offenses and (ii) Military association. The specification 

forms for specifications appear. should state the accused's rank or grade, armed force, and unit 

(A) 	 Sample spec~~cations. a 

(B) 	Numbering specifcations. If there is only or organization. If the rank or grade of the accused has changed 

one specification under a charge it is not since the date of an alleged offense, and the change is pertinent 

numbered. When there is more than one to the offense charged, the accused should be identified by the 

specification under any charge, the speci- present rank or grade followed by the rank or grade on the date 

fications are numbered in Arabic numerals. of the alleged offense. For example: In that Seaman - The term "additional" is not used in con- ,then Seaman Apprentice ,etc. 

nection with the specifications under an ad- (iii) Social security number or service numditional charge. ber. The social security number or service number of an accused 

(C) 	 Name and description of the accused. should not be stated in the specification. 

(i) Name. The specification should state the (iv) Basis of personal jurisdiction. 

accused's full name: first name, middle name or initial, last (a) Military members on active duty. 

name. If the accused is known by more than one name, the The words "on active duty" may be added immediately after 

name acknowledged by the accused should be used. If there is the description of the accused. 
R.C.M. 307(c)(3) 

(b)Persons subject to the code under 

Article 2(a), subsections (3) through (12), or subject to trial 

by court-martial under Articles 3 or 4. The specification should 

describe the accused's position or status which will indicate the 

basis of jurisdiction. For example: John Jones, (Captain, U.S. 

Air Force Reserve, on inactive duty training authorized by written orders which were voluntarily accepted by him, which orders 

specified he was subject to the Uniform Code of Military Justice) (a person convicted of having obtained a fraudulent discharge), etc. 

(D) Date and time of offense. 

(i) In general. The date of the commission 

of the offense charged should be stated in the specification with 

sufficient precision to identify the offense and enable the accused to understand what particular act or omission to defend 

against. 

(ii) Use of "on or about." In alleging the 

date of the offense it is proper to allege it as "on or about" a 

specified day. 

(iii) Hour. The exact hour of the offense is 

ordinarily not alleged except in certain absence offenses. When 

the exact time is alleged, the 24-hour clock should be used. 

The use of "at or about" is proper. 

(iv) Extended periods. When the acts specified extend(s) over a considerable period of time, it is proper 

to allege it (or them) as having occurred, for example, "from 

about 15 June 1983 to about 4 November 1983," or "did on 

diversoccasions between 15 June 1983 and 4 November 1983." 

(E) 	 Place of offense. The place of the commission of the offense charged should be 

stated in the specification with sufficient 

precision to identify the offense and enable 

the accused to understand the particular act 

or omission to defend against. In alleging 

the place of the offense, it is proper to 

allege it as "at or near" a certain place if 

the exact place is uncertain. 

(F) 	 Subject-matter jurisdiction allegations. 

Sufficient facts to establish subject-matter 

jurisdiction should be alleged. See R.C.M. 

203 for a discussion of subject-matter jurisdiction and the concept of service-connection. 

(i) On-base. If the offense occurred on a 

military installation, that factor alone is usually sufficient to 

confer jurisdiction over the offense. 

(ii) Off-base area under military jurisdiction. If the offense occurred in an off-base area under military 

control, such as a housing area, the specification should state 

that such area was under the military jurisdiction of the United 

States. 

(iii) Off-base area not under military jurisdiction. If the offense occurred in an off-base area not under 

military control, other jurisdictional factors should be alleged. 

Every significant fact and circumstance supporting subject-matter jurisdiction should be alleged. Offenses under the following 

articles usually require no additional jurisdictional information: 

82-91, 93, 94, 96, 98-105, 108, 110, 112, 112a, 113, 115, 

and some offenses under 92, 133, and 134. This list is'not 

exclusive, and is only a guide to the kinds of offenses usually 

requiring no additional language to demonstrate subject-matter 

jurisdiction. 

(iv) Overseas. If the offense occurred outside the United States, its territories, and possessions, that factor 

alone is usually sufficient to confer jurisdiction over the offense. 

(G) Description of offense. 

(i) Elements. The elements of the offense 

must be alleged, either expressly or by necessary implication. 

If a specific intent, knowledge, or state of mind is an element 

of the offense, it must be alleged. 

(ii) Words indicating criminality. If the alleged act is not itself an offense but is made an offense either 

by applicable statute (including Articles 133 and 134), or regulation or custom having the effect of law, then words indicating 

criminality such as "wrongfully," "unlawfully," or "without 

authority" (depending upon the nature of the offense) should 

be used to describe the accused's acts. 

(iii) Specificity. The specification should be 

sufficiently specific to inform the accused of the conduct charged, 

to enable the accused to a defense, and to protect-the 

accused against double jeopardy. Only those facts that make 

the accused's conduct criminal ordinarily should be alleged. 

Specific evidence supporting the allegations ordinarily should 

not be included in the specifications. 

(iv) Dupliciousness. One specification should 

not allege more than one offense, either conjunctively (the accused "lost and destroyed") or alternatively (the accused "lost 

or destroyed"). However, if two acts or a series of acts constitute one offense, they may be alleged conjunctively. See 

R.C.M. 906(b)(5). 

(H) 	 Other considerations in drafing specifications. 

(i) Principals. All principals are charged as 

if each was the perpetrator. See paragraph 1 of Part IV for a 

discussion of principals. 

(ii) Victim. In the case of an offense against 

the person or property of a person, the first name, middle initial 

and last name of such person should be alleged, if known. If 

the name of the victim is unknown, a general physical description may be used. If this cannot be done, the victim may be 

described as "a person whose name is unknown." Military 

rank or grade should be alleged, and must be alleged if an 

element of the offense, as in an allegation of disobedience of 

the command of a superior officer. If the person has no military 

position, it may otherwise be necessary to allege the status as 

in an allegation of using provoking words toward a person 

subject to the code. See paragraph 42 of Part IV. 

(iii) Properry. In describing property generic tens should be used, such as "a watch" or "a knife," 

and descriptive details such as make, model, color, and serial 

number should ordinarily be omitted. In some instances, however, details may be essential to the offense, so they must be 

alleged. For example: the length of a knife blade may be important when alleging a violation of a general regulation prohibiting carrying a knife with a blade that exceeds a certain 

length. 

(iv) Value. When the value of property or 

other amount determines the maximum punishment which may 

be adjudged for an offense, the value or amount should be 

alleged, for in such a case increased punishments that are contingent upon value may not be adjudged unless there is an 

allegation, as well as proof, of a value which will support the 

punishment. If several articles of different kinds are the subject 

of the offense, the value of each article should be stated followed 

by a statement of the aggregate value. Exact value should be 

stated, if known. For ease of proof an allegation may be "of 

a value not less than ."If only an approximate 

value is known, it may be alleged as "of a value of about - ." If the value of an item is unknown but obviously minimal, 

the term "of some value" may be used. These principles apply 

to allegations of amount. 

(v)Documents. When documents other than 
regulations or orders must be alleged (for example, bad checks 

in violation of Article 123a), the document may be set forth 

verbatim (including photocopies and similar reproductions) or 

may be described, in which case the description must be sufficient to inform the accused of the offense charged. 

(vi) Orders. 

(a) General orders. A specification alleging a violation of a general order or regulation (Article 92(1)) 

must clearly identify the specific order or regulation allegedly 

violated. The general order or regulation should be cited by its 

identifying title or number, section or paragraph, and date. It 

is not necessary to recite the text of the general order or regulation verbatim. 

(b) Other orders. If the order allegedly 

violated is an "other lawful order" (Article 92(2)), it should 

be set forth verbatim or described in the specification. When 

the order is oral, see (vii) below. 

(c) Negating exceptions. If the order 

contains exceptions, it is not necessary that the specification 

contain a specific allegation negating the exceptions. However, 

words of criminality may be required if the alleged act is not 

necessarily criminal. See subsection (G) (ii) of this discussion. 

(vii) Oral statements. When alleging oral 

statements the phrase "or words to that effect" should be added. 

R.C.M. 307(c)(5) 

(viii) Joint offense. In the case of a joint 

offense each accused may be charged separately as if each 

accused acted alone or all may be charged together in a single 

specification. For example: 

(a) If Doe and Roe are joint perpetrators of an offense and it is intended to charge and try both at 

the same trial, they should be charged in a single specification 

as follows: 

"In that Doe and Roe, acting jointly 

and pursuant to a common intent, did . . . ." 

(b) If it is intended that Roe will be 

tried alone or that Roe will be med with Doe at a common 

trial, Roe may be charged in the same manner as if Roe alone 

had committed the offense. However, to show in the specification that Doe was a joint actor with Roe, even though Doe 

is not to be tried with Roe, Roe may be charged as follows: 

"In that Roe did, in conjunction with 

Doe,. . . ." 

(ix) Matters in aggravation. Aggravating 

circumstances which increase the maximum authorized punishment must be alleged in order to permit the possible increased 

punishment. Other matters in aggravation ordinarily should not 

be alleged in the specification. 

(4)Multiple offenses. Charges and specifications alleging all known offenses by an accused may be preferred 

at the same time. Each specification shall state only one offense. 

Discussion 

What is substantially one transaction should not be made 

the basis for an unreasonable multiplication of charges against 

one person. See R.C.M. 906(b)(12) and 1003(c)(l)(C). For 

example, a person should not be charged with both a failure to 

report for a routine scheduled duty, such as reveille, and with 

absence without leave if the failure to report occurred during 

the period for which the accused is charged with absence without 

leave. There are times, however, when sufficient doubt as to 

the facts or the law exists to warrant making one transaction 

the basis for charging two or more offenses. In no case should 

both an offense and a lesser included offense thereof be separately charged. 

See also R.C.M. 601(e)(2) concerning referral of several 

offenses. 

(5) Multiple offenders. A specification may name more than one person as an accused if each person so 

named is believed by the accuser to be a principal in the offense which is the subject of the specification. 

Discussion 

See also R.C.M. 601 (e)(3) concerning joinder of accused. 

A joint offense is one committed by two or more persons 

acting together with a common intent. Principals may be charged 

jointly with the commission of the same offense, but an accessory after the fact cannot be charged jointly with the principal 

whom the accused is alleged to have received, comforted, or 

assisted. Offenders are properly joined only if there is a common 

unlawful design or purpose; the mere fact that several persons 

happen to have committed the same kinds of offenses at the 

time, although material as tending to show concert of purpose, 

does not necessarily establish this. The fact that several persons 

happen to have absented themselves without leave at about the 

same time will not, in the absence of evidence indicating a joint 

design, purpose, or plan justify joining them in one specification, for they may merely have been availing themselves of 

the same opportunity. In joint offenses the participants may be 

separately or jointly charged. However, if the participants are 

members of different armed forces, they must be charged separately because their trials must be separately reviewed. The 

preparation of joint charges is discussed in subsection (c)(3) 

Discussion (H) (viii) (a) of this rule. The advantage of a joint 

charge is that all accused will be tried at one trial, thereby 

saving time, labor, and expense. This must be weighed against 

the possible unfairness to the accused which may result if their 

defenses are inconsistent or antagonistic. An accused cannot be 

called as a witness except upon that accused's own request. If 

the testimony of an accomplice is necessary, the accomplice 

should not be tried jointly with those against whom the accomplice is expected to testify. See also Mil. R. Evid. 306. 

See R.C.M. 603 concerning amending specifications. 

See R.C.M. 906(b)(5) and (6) concerning motions to amend 

specifications and bills of particulars. 
R.C.M. 307(d) 

(d) Harmless error in citation. Error in or omission of the designation of the article of the code or other statute, 

law of war, or regulation violated shall not be ground for dismissal of a charge or reversal of a conviction if the 

error or omission did not prejudicially mislead the accused. 

Rule 308. Notification to accused of charges 

(a) Immediate commander. The immediate commander of the accused shall cause the accused to be informed of 

the charges preferred against the accused, and the name of the person who preferred the charges and of any 

person who ordered the charges to be preferred, if known, as soon as practicable. 

Discussion 

When notice is given, a certificate to that effect on the Charge Sheet should be completed. See Appendix 4. 

(b)Commanders at higher echelons. When the accused has not been informed of the charges, commanders at 

higher echelons to whom the preferred charges are forwarded shall cause the accused to be informed of the 

matters required under subsection (a) of this rule as soon as practicable. 

(c) Remedy. The sole remedy for violation of this rule is a continuance or recess of sufficient length to permit 

the accused to adequately prepare a defense, and no relief shall be granted upon a failure to comply with this 

rule unless the accused demonstrates that the accused has been hindered in the preparation of a defense. 
CHAPTER IV. FORWARDING AND DISPOSITION OF CHARGES 

Rule 401. Forwarding and disposition of charges in general 

(a) Who may dispose of charges. Only persons authorized to convene courts-martial or to administer nonjudicial 

punishment under Article 15 may dispose of charges. A superior competent authority may withhold the authority 

of a subordinate to dispose of charges in individual cases, types of cases, or generally. 

Discussion 

See R.C.M. 504 as to who may convene courts-martial mander's authority has been withheld by superior competent 

and paragraph 2 of Part V as to who may administer nonjudicial authority. See also R.C.M. 104. 

punishment. If the power to convene courts-martial and to ad- Each commander who forwards or disposes of charges may 

minister nonjudicial punishment has been withheld, a com- make minor changes therein. See R.C.M. 603(a) and (b). If 

mander may not dispose of charges under this rule. major changes are necessary, the affected charge should be 

Ordinarily charges should be forwarded to the accused's preferred anew. See R.C.M. 603(d). If a commander is an 

immediate commander for initial consideration as to disposition. accuser (see Article l(9); 307(a)) that commander is ineligible 

Each commander has independent discretion to determine how to refer such charges to a general or special court-martial. See 

charges will be disposed of, except to the extent that that com- R.C.M. 601(c). However, see R.C.M. 1302(b) (accuser may ' refer charges to a summary courts-martial). 

(b) Prompt determination. When a commander with authority to dispose of charges receives charges, that 

commander shall promptly determine what disposition will be made in the interest of justice and discipline. 

Discussion 

In determining what level of disposition is appropriate, see As to the rules concerning speedy trial, see R.C.M. 707. 

R.C.M. 306(b) and (c). When charges are brought against two See also Articles 10; 30; 33; 98. 


or more accused with a view to a joint or common trial, see Before determining an appropriate disposition, a com-


R.C.M. 307(c)(5); 601(e)(3). If it appears that the accused may mander who receives charges should ensure that: (1) a prelim- 


lack mental capacity to stand trial or may not have been mentally inary inquiry under R.C.M. 303 has been conducted; (2) the 


responsible at the times of the offenses, see R.C.M. 706; 909; accused has been notified in accordance with R.C.M. 308; and 


916(k). (3) the charges are in proper form. 


(c) How charges may be disposed of. Unless the authority to do so has been limited or withheld by superior 

competent authority, a commander may dispose of charges by dismissing any or all of them, forwarding any or 

all of them to another commander for disposition, or referring any or all of them to a court-martial which the 

commander is empowered to convene. Charges should be disposed of in accordance with the policy in R.C.M. 

306(b). 

Discussion 

A commander may dispose of charges individually or col- See Appendix 3 when the charges may involve matters in 

lectively. If charges are referred to a court-martial, ordinarily which the Department of Justice has an interest. 

all known charges should be referred to a single court-martial. 

(1) Dismissal. When a commander dismisses charges further disposition under R.C.M. 306(c) of the offenses 

is not barred. 
R.C.M. 401(c)(2) 

Discussion 

Charges are ordinarily dismissed by lining out and initialing the deleted specifications or otherwise recording that a 

specification is dismissed. When all charges and specifications 

are dismissed, the accuser and the accused ordinarily should be 

informed. 

A charge should be dismissed when it fails to state an 

offense, when it is unsupported by available evidence, or when 

there are other sound reasons why trial by court-martial is not 

appropriate. Before dismissing charges because trial would be 

detrimental to the prosecution of the war or harmful to national 

security, see R.C.M. 401(d); 407(b). 

If the accused has already refused nonjudicial punishment, 

charges should not be dismissed with a view to offering non- 

(2)Forwarding charges. 

judicial punishment unless the accused has indicated willingness 

to accept nonjudicial punishment if again offered. The decision 

whether to dismiss charges in such circumstances is within the 

sole discretion of the commander concerned. 

Charges may be amended in accordance with R.C.M. 603. 

It is appropriate to dismiss a charge and prefer another 

charge anew when, for example, the original charge failed to 

state an offense, or was so defective that a major amendment 

was required (see R.C.M. 603(d)), or did not adequately reflect 

the nature or seriousness of the offense. 

See R.C.M. 907(b)(2)(C) concerning the effect of dismissing charges after the court-martial has begun. 

(A) Forwarding to a superior commander. When charges are forwarded to a superior commander for 

disposition, the forwarding commander shall make a personal recommendation as to disposition. If 

the forwarding commander is disqualified from acting as convening authority in the case, the basis 

for the disqualification shall be noted. 

Discussion 

A commander's recommendation is within that commander's sole discretion. No authority may direct a commander to 

make a specific recommendation as to disposition. 

When charges are forwarded to a superior commander with 

a view to trial by general or special court-martial, they should 

be forwarded by a letter of transmittal or indorsement. To the 

extent practicable without unduly delaying forwarding the charges, 

the letter should include or carry as inclosures: a summary of 

the available evidence relating to each offense; evidence of 

previous convictions and nonjudicial punishments of the accused; an indication that the accused has been offered and refused nonjudicial punishment, if applicable; and any other matters 

required by superior authority or deemed appropriate by the 

forwarding commander. Other matters which may be appropriate include information concerning the accused's background 

and ctiaracter of military service, and a description of any unusual circumstances in the case. The summary of evidence 

should include available witness statements, documentary evidence, and exhibits. When practicable, copies of signed statements of the witnesses should be forwarded, as should copies 

of any investigative or laboratory reports. Forwarding charges 

should not be delayed, however, solely to obtain such statements 

or reports when it otherwise appears that sufficient evidence to 

warrant trial is or will be available in time for trial. If, because 

of the bulk of documents or exhibits, it is impracticable to 

forward them with the letter of transmittal, they should be 

properly preserved and should be referred to in the letter of 

transmittal. 

When it appears that any witness may not be available for 

later proceedings in the case or that a deposition may be appropriate, that matter should be brought to the attention of the 

convening authority promptly and should be noted in the letter 

of transmittal. 

When charges are forwarded with a view to disposition 

other than trial by general or special court-martial, they should 

be accompanied by sufficient information to enable the authority 

receiving them to dispose of them without further investigation. 

(B) Other cases. When charges are forwarded to a commander who is not a superior of the forwarding 

commander, no recommendation as to disposition may be made. 

Discussion 

Except when directed to forward charges, a subordinate to a subordinate commander for compliance with procedural 

commander may not be required to take any specific action to requirements. See, for example, R.C.M. 303 (preliminary indispose of charges. See R.C.M. 104. See also paragraph ld(2) quiry); R.C.M. 308 (notification to accused of charges). 

of Part V. When appropriate, charges may be sent or returned 

(3) Referral of charges. See R.C.M. 403, 404, 407, 601. 

(d) National security matters. If a commander who is not a general court-martial convening authority finds that 

the charges warrant trial by court-martial but believes that trial would probably be detrimental to the prosecution 

of a war or harmful to national security, the charges shall be forwarded to the officer exercising general courtmartial convening authority. 
R.C.M. 403(b)(3) 

Discussion 

See R.C.M. 407(b). 

Rule 402. Action by commander not authorized to convene courts-martial. 

When in receipt of charges, a commander authorized to administer nonjudicial punishment but not authorized 

to convene courts-martial may: 

(1) Dismiss any charges; or 

Discussion 

See R.C.M. 401(c)(l) concerning dismissal of charges, the effect of dismissal, and options for further action. 

(2) Forward them to a superior commander for disposition. 

Discussion 

See R.C.M. 401(c)(2) for additional guidance concerning other duties of the immediate commander when in receipt of 

forwarding charges. See generally R.C.M. 303 (preliminary charges. 

inquiry); 308 (notification to accused of charges) concerning When the immediate commander is authorized to convene 

courts-martial, see R.C.M. 403, 404, or 407, as appropriate. 

Rule 403. Action by commander exercising summary court-martial jurisdiction 

(a) Recording receipt. Immediately upon receipt of sworn charges, an officer exercising summary court-martial 

jurisdiction over the command shall cause the hour and date of receipt to be entered on the charge sheet. 

Discussion 

See Article 24 and R.C.M. 1302(a) concerning who may 907(b)(2)(B). Charges may be preferred and forwarded to an 

exercise summary court-martial jurisdiction. officer exercising summary court-martial jurisdiction over the 

The entry indicating receipt is important because it stops command to stop the running of the statute of limitations even 

the running of the statute of limitations. See Article 43; R.C.M. though the accused is absent without authority. 

(b) Disposition. When in receipt of charges a commander exercising summary court-martial jurisdiction may: 

(1) Dismiss any charges; 

Discussion 

See R.C.M. 401(c)(l) concerning dismissal of charges, the effect of dismissing charges, and options for further action. 

(2) Forward charges (or, after dismissing charges, the matter) to a subordinate commander for disposition; 

Discussion 

See R.C.M. 401(c)(2)(B) concerning forwarding charges to a subordinate even if that subordinate previously considered 

to a subordinate. When appropriate, charges may be forwarded them. 

(3) Forward any charges to a superior commander for disposition; 

Discussion 

See R.C.M. 401(c)(2)(A) for guidance concerning forwarding charges to a superior. 
R.C.M. 403(b)(4) 

(4) Subject to R.C.M. 601(d), refer charges to a summary court-martial for trial; or 

Discussion 

See R.C.M. 1302(c) conceming referral of charges to a summary court-martial. 

(5) Unless otherwise prescribed by the Secretary concerned, direct a pretrial investigation under R.C.M. 

405, and, if appropriate, forward the report of investigation with the charges to a superior commander for 

disposition. 

Discussion 

An investigation should be directed when it appears that tigation of the subject matter already has been conducted, see 

the charges are of such a serious nature that trial by general R.C.M. 405(b). 

court-martial may be warranted. See R.C.M. 405. If an invesRule 404. Action by commander exercising special court-martial jurisdiction 

When in receipt of charges, a commander exercising special court-martial jurisdiction may: 

(a) Dismiss any charges; 

Discussion 

See R.C.M 401(c)(l) concerning dismissal of charges, the effect of dismissing charges, and options for further action. 

(b) Forward charges (or, after dismissing charges, the matter) to a subordinate commander for disposition; 

Discussion 

See R.C.M. 401(c)(2)(B) concerning forwarding charges to a subordinate even if that subordinate previously considered 

to a subordinate. When appropriate, charges may be forwarded them. 

(c) Forward any charges to a superior commander for disposition; 

Discussion 

See R.C.M. 401(c)(2)(A) for guidance concerning forwarding charges to a superior. 

(d) Subject to R.C.M. 601(d), refer charges to a summary court-martial or to a special court-martial for trial; 

or 

Discussion 

See Article 23 and R.C.M. 504(b)(2) concerning who may court-martial.See R.C.M. 1302(c) concerning refed of charges 

convene special courts-martial. to a summary court-martial. 

See R.C.M. 601 concerning referral of charges to a special 

(e) Unless otherwise prescribed by the Secretary concerned, direct a pretrial investigation under R.C.M. 405, 

and, if appropriate, forward the report of investigation with the charges to a superior commander for disposition. 

Discussion 

An investigation should be directed when it appears that tigation of the subject matter already has been conducted, see 

the charges are of such a serious nature that trial by general R.C.M. 405(b). 

court-martial may be warranted. See R.C.M. 405. If an inves- 
R.C.M. 405(d)(2)(B) 

Rule 405. Pretrial investigation 

(a) In general. Except as provided in subsection (k) of this rule, no charge or specification may be referred to 

a general court-martial for trial until a thorough and impartial investigation of all the matters set forth therein 

has been made in substantial compliance with this rule. Failure to comply with this rule shall have no effect if 

the charges are not referred to a general court-martial. 

Discussion 

The primary purpose of the investigation required by Ar- If at any time after an investigation under this rule the 

ticle 32 and this rule is to inquire into the truth of the matters charges are changed to allege a more serious or essentially 

set forth in the charges, the form of the charges, and to secure different offense, further investigation should be directed with 

information on which to determine what disposition should be respect to the new or different matters alleged. 

made of the case: The investigation also serves as a means of Failure to comply substantially with the requirements of 

discovery. The function of the investigation is to ascertain and Article 32, which failure prejudices the accused, may result in 

impartially weigh all available facts in arriving at conclusions delay in disposition of the case or disapproval of the proceedand recommendations, not to perfect a case against the accused. ings. See R.C.M. 905(b)(i) and 906(b)(3) concerning motions 

The investigation should be limited to the issues raised by the for appropriate relief relating to the pretrial investigation. 

charges and necessary to proper disposition of the case. The The accused may waive the pretrial investigation. See subinvestigation is not limited to examination of the witnesses and section (k) of this rule. In such case, no investigation need be 

evidence mentioned in the accompanying allied papers. See held. The commander authorized to direct the investigation may 

subsection (e) of this rule. Recommendations of the investi- direct that it be conducted notwithstanding the waiver. 

gating officer are advisory. 

(b) Earlier investigation. If an investigation of the subject matter of an offense has been conducted before the 

accused is charged with an offense, and the accused was present at the investigation and afforded the rights to 

counsel, cross-examination, and presentation of evidence required by this rule, no further investigation is required 

unless demanded by the accused to recall witnesses for further cross-examination and to offer new evidence. 

Discussion 

An earlier investigation includes courts of inquiry and similar investigations which meet the requirements of this subsection. 

(c) Who may direct investigation. Unless prohibited by regulations of the Secretary concerned, an investigation 

may be directed under this rule by any court-martial convening authority. That authority may also give procedural 

instructions not inconsistent with these rules. 

(d) Personnel. 

(1) Investigating ofJicer. The commander directing an investigation under this rule shall detail a commissioned 

officer not the accuser, as investigating officer, who shall conduct the investigation and make a report of 

conclusions and recommendations. The investigating officer is disqualified to act later in the same case in any 

other capacity. 

Discu'ssion 

The investigating officer should be an officer in the grade cerning the investigating officer's responsibilities from an imof major or lieutenant commander or higher or one with legal partial source, but may not obtain such advice from counsel for 

training. The investigating officer may seek legal advice con- any party. 

(2)Defense counsel. 

(A) Detailed counsel. Except as provided in subsection (d)(2)(B) of this rule, military counsel certified 

in accordance with Article 27(b) shall be detailed to represent the accused. 

(B) Individual military counsel. The accused may request to be represented by individual military counsel. 

Such requests shall be acted on in accordance with R.C.M.506(b). When the accused is represented 

by individual military counsel, counsel detailed to represent the accused shall ordinarily be excused, 

unless the authority who detailed the defense counsel, as a matter of discretion, approves a request 
R.C.M. 405(d)(2)(C) 

by the accused for retention of detailed counsel. The investigating bfficer shall forward any request 

by the accused for individual military counsel to the commander who directed the investigation. That 

commander shall follow the procedures in R.C.M. 506(b). 

(C) Civilian counsel. The accused may be represented by civilian counsel at no expense to the United 

States. Upon request, the accused is entitled to a reasonable time to obtain civilian counsel and to 

have such counsel present for the investigation. However, the investigation shall not be unduly 

delayed for this purpose. Representation by civilian counsel shall not limit the rights to military 

counsel under subsections (d)(2)(A) and (B) of this rule. 

Discussion 

See R.C.M.502(d)(6) concerning the duties of defense counsel. 

(3) Others. The commander who directed the investigation may also, as a matter of discretion, detail or 

request an appropriate authority to detail: 

(A) Counsel to represent the United States; 

(B) A reporter; and 

(C) An interpreter. 

(e) Scope of investigation. The investigating officer shall inquire into the truth and form of the charges, and such 

other matters as may be necessary to make a recommendation as to the disposition of the charges. 

Discussion 

The investigation may properly include such inquiry into to rule on the admissibility of evidence and need not consider 

issues raised directly by the charges as is necessary to make an such matters except as the investigating officer deems necessary 

appropriate recommendation. For example, inquiry into the le- to an informed recommendation. When the investigating officer 

gality of a search or the admissibility of a confession may be is aware that evidence may not be admissible, this should be 

appropriate. However, the investigating officer is not required noted in the report. See also subsection (i) of this rule. 

(f) Rights of the accused. At any pretrial investigation under this rule the accused shall have the right to: 

(1) Be informed of the charges under investigation; 

(2) Be informed of the identity of the accuser; 

(3) Except in circumstances described in R.C.M.804(b)(2), be present throughout the taking of evidence; 

(4)Be represented by counsel; 

(5) Be informed of the witnesses and other evidence then known to the investigating officer; 

(6) Be informed of the purpose of the investigation; 

(7) Be informed of the right against self-incrimination under Article 31; 

(8) Cross-examine witnesses who are produced under subsection (g) of this rule; 

(9) Have witnesses produced as provided for in subsection (g) of this rule; 

(10) Have evidence, including documents or physical evidence, within the control of military authorities 

produced as provided under subsection (g) of this mle; 

(11) Present anything in defense, extenuation, or mitigation for consideration by the investigating officer; 

and 

(12) Make a statement in any form. 

(g) Production of witnesses and evidence; alternatives. 

(1) In general. 
R.C.M. 405(g)(2)(B) 

(A) Witnesses. Except as provided in subsection (g)(4)(A) of this rule, any witness whose testimony 

would be relevant to the investigation and not cumulative, shall be produced if reasonably available. 

This includes witnesses requested by the accused, if the request is timely. A witness is "reasonably 

available" when the significance of the testimony and personal appearance of the witness outweighs 

the difficulty, expense, delay, and effect on military operations of obtaining the witness' appearance. 

A witness who is unavailable under Mil. R. Evid. 804(a)(l) thorugh (6), is not "reasonably available. " 

(B) Evidence. Subject to Mil. R. Evid., Section V, evidence, including documents or physical evidence, 

which is under the control of the Government and which is relevant to the investigation and not 

cumulative shall be produced if reasonably available. Such evidence includes evidence requested by 

the accused, if the request is timely. Evidence is reasonably available if its significance outweighs 

the difficulty, expense, delay, and effect on military operations of obtaining the evidence. 

Discussion 

In preparing for the investigation, the investigating officer ness is reasonably available. That determination is a balancing 

should consider what evidence will be necessary to prepare a test. The more important the testimony of the witness, the 

thorough and impartial investigation. The investigating officer greater the difficulty, expense, delay, or effect on military opshould consider, as to potential witnesses, whether their per- erations must be to permit nonproduction. For example, the 

sonal appearance will be necessary. Generally, personal ap- temporary absence of a witness on leave for 10 days would 

pearance is preferred, but the investigating officer should consider normally justify using an alternative to that witness' personal 

whether, in light of the probable importance of a witness' tes- appearance if the sole reason for the witness' testimony was to 

timony, an alternative to testimony under subsection (g)(4)(A) impeach the credibility of another witness by reputation eviof this rule would be sufficient. dence, or to establish a mitigating character trait of the accused. 

After making a preliminary determination of what wit- On the other hand, if,the same witness was the only eyewitness 

nesses will be produced and other evidence considered, the to the offense, personal appearance would be required if the 

investigating officer should notify the defense and inquire whether defense requested it and the witness is otherwise reasonably 

it requests the production of other witnesses or evidence. In available. The time and place of the investigation may be changed 

addition to witnesses for the defense, the defense may request if reasonably necessary to permit the appearance of a witness. 

production of witnesses whose testimony would favor the pros- Similar considerations apply to the production of evidence. 

ecution. If the production of witnesses or evidence would entail 

Once it is determined what witnesses the investigating substantial costs or delay, the investigating officer should inofficer intends to call it must be determined whether each wit- form the commander who directed the investigation. 

(2)Determination of reasonable availability. 

(A) Military witnesses. The investigating officer shall make an initial determination whether a military 

witness is reasonably available. If the investigating officer decides that the witness is not reasonably 

available, the investigating officer shall inform the parties. Otherwise, the immediate commander of 

the witness shall be requested to make the witness available. A determination by the immediate 

commander that the witness is not reasonably available is not subject to appeal by the accused but 

may be reviewed by the military judge under R.C.M. 906(b)(3). 

Discussion 

The investigating officer may discuss factors affecting rea- determines that the witness is not reasonably available, the 


sonable availability with the immediate commander of the re- reasons for that determination should be provided to the inves- 


quested witness and with others. If the immediate commander tigating officer. 


(B) 	Civilian witnesses. The investigating officer shall decide whether a civilian witness is reasonably 

available to appear as a witness. 

Discussion 

The investigating officer should initially determine whether If the witness refuses to testify, the witness is not reasona civilian witness is reasonably available without regard to whether ably available because civilian witnesses may not be compelled 

the witness is willing to appear. If the investigating officer to attend a pretrial investigation. Under subsection (g)(3) of this 

determines that a civilian witness is apparently reasonably avail- rule, civilian witnesses may be paid for travel and associated 

able, the witness should be invited to attend and, when appro- expenses to testify at a pretrial investigation. 

priate, informed that necessary expenses will be paid. 
R.C.M. 405(g)(2)(C) 

(C) Evidence. The investigating officer shall make an initial determination whether evidence is reasonably 

available. If the investigating officer decides that it is not reasonably available, the investigating 

officer shall inform the parties. Otherwise, the custodian of the evidence shall be requested to provide 

the evidence. A determination by the custodian that the evidence is not reasonably available is not 

subject to appeal by the accused, but may be reviewed by the military judge under R.C.M. 906(b)(3). 

Discussion 

The investigating officer may discuss factors affecting rea- able, the reasons for that determination should be provided to 

sonable availability with the custodian and with others. If the the investigating officer. 

custodian determines that the evidence is not reasonably avail- 

(D) Action when witness or evidence is not reasonably available. If the defense objects to a determination 

that a witness or evidence is not reasonably available, the investigating officer shall include a statement 

of the reasons for the determination in the report of investigation. 

(3) Witness expenses. Transportation expenses and a per diem allowance may be paid to civilians requested 

to testify in connection with an investigation under this rule according to regulations prescribed by the Secretary 

of a Department. 

Discussion 

See Department of Defense Joint Travel Regulations, Vol. 2, paragraphs C3054,C6000. 

(4)Alternatives to testimony. 

(A) 	Unless the defense objects, an investigating officer may consider, regardless of the availability of 

the witness: 

(i) Sworn statements; 

(ii) Statements under oath taken by telephone, radio, or similar means providing each party the' opportunity to question the witness under circumstances by which the investigating officer may reasonably conclude 

that the witness' identity is as claimed; 

(iii) Prior testimony under oath; 

(iv) Depositions; 

(v) Stipulations of fact or expected testimony; 

(vi) Unswom statements; and 

(vii) Offers of proof of expected testimony of that witness 

(B) 	The investigating officer may consider, over objection of the defense, when the witness is not 

reasonably available: 

(i) Sworn statements; 

(ii) Statements under oath taken by telephone, radio, or similar means providing each party the opportunity to question the witness under circumstances by which the investigating officer may reasonably conclude 

that the witness' identity is as claimed; 

(iii) Prior testimony under oath; and 

(iv) Depositions of that witness. 
R.C.M. 405(h)(2) 

(5) Alternatives to evidence. 

(A) Unless the defense objects, an investigating officer may consider, regardless of the availability of 

the evidence: 

(i) Testimony describing the evidence; 

(ii) An authenticated copy, photograph, or reproduction of similar accuracy of the evidence; 

(iii) An alternative to testimony, when permitted under subsection (g)(4)(B) of this rule, in which the . evidence is described; 

(iv) A stipulation of fact, ,document's contents, or expected testimony; 

(v) An unsworn statement describing the evidence; or 

(vi) An offer of proof concerning pertinent characteristics of the evidence. 

(B) The investigating officer may consider, over objection of the defense, when the evidence is not 

reasonably available: 

(i) Testimony describing the evidence; 

(ii) An authenticated copy, photograph, or reproduction of similar accuracy of the evidence; or 

(iii) An alternative to testimony, when permitted under subsection (g)(4)(B) of this rule, in which the 

evidence is described. 

(h) Procedure. 

(1) Presentation of evidence. 

(A) Testimony. All testimony shall be taken under oath, except that the accused may make an unsworn 

statement. The defense shall be given wide latitude in cross-examining witnesses. 

Discussion 

The following oath may be given to witnesses: whole truth, and nothing but the truth (,so help you God)?' If 

"Do you (swear) (affirm) that the evidence you give shall the accused testifies, the investigating officer may invite but 


be the truth, the whole truth, and nothing but the truth (,so help not require the accused to swear to the truth of a summary of 


you God)?" that testimony. If substantially verbatim notes of a testimony 


The investigating officer is required to include in the report or recordings of testimony were taken during the investigation, 


of the investigation a summary of the substance of all testimony. they should be preserved until the end of trial. 


See subsection Q)(2)(B) of this rule. After the heating, the If it appears that material witnesses for either side will not 


investigating officer should, whenever possible, reduce the sub- be available at the time anticipated for trial, the investigating 


stance of the testimony of each witness to writing and, unless officer should notify the commander who directed the inves- 


it would unduly delay completion of the investigation, have tigation so that depositions may be taken if necessary. 


each witness sign and swear to the truth of the respective sum- If during the investigation any witness subject to the code 


maries. The following oath may be given to a witness in such is suspected of an offense under the code, the investigating 


cases: officer should comply with the warning requirements of Mil. 


"You (swear) (affirm) that this statement is the truth, the R. Evid. 305(c), (d), and, if necessary, (e). 


(B) Other evidence. The investigating officer shall inform the parties what other evidence will be considered. The parties shall be permitted to examine all other evidence considered by the investigating 

officer. 

(C) Defense evidence. The defense shall have full opportunity to present any matters in defense, extenuation, or mitigation. 

(2)Objections. Any objection alleging failure to comply with this rule, except subsection (j), shall be made 

to the investigating officer promptly upon discovery of the alleged error. The investigating officer shall not be 

required to rule on any objection. An objection shall be noted in the report of investigation if a party so requests. 

The investigating officer may require a party to file any objection in writing. 
R.C.M. 405(h)(3) 

Discussion 

See also subsection (k) of this rule. 	 If an objection raises a substantial question about a matter 

Although the investigating officer is not required to rule within the authority of the commander who directed the inveson objections, the investigating officer may take corrective ac- tigation (for example, whether the investigating officer was 

tion in response to an objection as to matters relating to the properly appointed) the investigating officer should promptly 

conduct of the proceedings when the investigating officer be- inform the commander who directed the investigation. 

lieves such action is appropriate. 

(3) Access by spectators. Access by spectators to all or part of the proceeding may be restricted or foreclosed 

in the discretion of the commander who directed the investigation or the investigating officer. 

Closure may encourage complete testimony by an embar- Ordinarily the proceedings of a prehial investigation should 

rassed or timid witness. be open to spectators. 

(4) Presence of accused. The further progress of the taking of evidence shall not be prevented and the 

accused shall be considered to have waived the right to be present, whenever the accused: 

(A) After being notified of the time and place of the proceeding is voluntarily absent (whether or not 

informed by the investigating officer of the obligation to be present); or 

(B) 	After being warned by the investigating officer that disruptive conduct will cause removal from the 

proceeding, persists in conduct which is such as to justify exclusion from the proceeding. 

(i) Military Rules of Evidence. The Military Rules of Evidence-other than Mil. R. Evid. 301, 302, 303, 305, 

and Section V-shall not apply in pretrial investigations under this rule. 

Discussion 

The investigating officer should exercise reasonable con- subsection (g)(4) of this rule as to limitations on the ways in 

trol over the scope of the inquiry. See subsection (e) of this which testimony may be presented. 

rule. An investigating officer may consider any evidence, even Certain rules relating to the form of testimony which may 

if that evidence would not be admissible at trial. However, see be considered by the investigating officer appear in subsection 

(g) of this rule. 

(j) Report of investigation. 

(1) In general. The investigating officer shall make a timely written report of the investigation to the 

commander who directed the investigation. 

Discussion 

If practicable, the charges and the report of investigation authority within 8 days after an accused is ordered into arrest 

should be forwarded to the general court-martial convening or confinement. Article 33. 

(2) Contents. The report of investigation shall include: 

(A) A statement of names and organizations or addresses of defense counsel and whether defense counsel 

was present throughout the taking of evidence, or if not present the reason why; 

(B) The substance of the testimony taken on both sides, including any stipulated testimony; 

(C) Any other statements, documents., or matters considered by the investigating officer, or recitals of 

the substance or nature of such evidence; 
R.C.M. 406(a) 

(D) A statement of any reasonable grounds for belief that the accused was not mentally responsible for 

the offense or was not competent to participate in the defense during the investigation; 

Discussion 

See R.C.M. 909 (mental capacity); 916(k) (mental responsibility). 

(E) 	A statement whether the essential witnesses will be available at the time anticipated for trial and the 

reasons why any essential witness may not then be available; 

(F) 	An explanation of any delays in the investigation; 

(G) The investigating officer's conclusion whether the charges and specifications are in proper form; 

(H) The investigating officer's conclusion whether reasonable grounds exist to believe that the accused 

committed the offenses alleged; and 

(I) 	 The recommendations of the investigating officer, including disposition. 

Discussion 

For example, the investigating officer may recommend that See Appendix 5 for a sample of the Investigating Officer's 

the charges and specifications be amended or that additional Report (DD Form 457). 

charges be preferred. See R.C.M. 306 and 401 concerning other 

possible dispositions. 

(3)Distribution of the report. The investigating officer shall cause the report to be delivered to the commander 

who directed the investigation. That commander shall promptly cause a copy of the report to be delivered to 

each accused. 

(4) Objections. Any objection to the report shall be made to the commander who directed the investigation 

within 5 days of its receipt by the accused. This subsection does not prohibit a convening authority from referring 

the charges or taking other action within the 5-day period. 

(k) Waiver. The accused may waive an investigation under this rule. In addition, failure to make a timely 

objection under this rule, including an objection to the report, shall constitute waiver of the objection. Relief 

from the waiver may be granted by the investigating officer, the commander who directed the investigation, the 

convening authority, or the military judge, as appropriate, for good cause shown. 

Discussion 

See also R.C.M. 905(b)(l); 906(b)(3). 	 the investigation be reopened or take other action, as approIf the report fails to include reference to objections which priate. 

were made under subsection (h)(2) of this rule, failure to object Even if the accused made a timely objection to failure to 

to the report will constitute waiver of such objections in the produce a witness, a defense request for a deposition may be 

absence of good cause for relief from the waiver. necessary to preserve the issue for later review. 

The commander who receives an objection may direct that 

Rule 406. Pretrial advice 

(a) In general. Before any charge may be referred for trial by a general court-martial, it shall be referred to the 

staff judge advocate of the convening authority for consideration and advice. 

Discussion 

A pretrial advice need not be prepared in cases referred to ma1 has been declared in a general court-martial (see R.C.M. 

special or summary courts-martial. A convening authority may, 915), supplementary advice is necessary before the charges may 

however, seek the advice of a lawyer before referring charges be referred to another general court-martial. 

to such a court-martial. When charges have been withdrawn The staff judge advocate may make changes in the charges 

from a general court-martial (see R.C.M. 604) or when a mis- and specifications in accordance with R.C.M. 603. 
R.C.M. 406(b) 

(b) Contents. The advice of the staff judge advocate shall include a written and signed statement which sets forth 

that person's: 

(I) Conclusion with respect to whether each specification alleges an offense under the code; 

(2) Conclusion with respect to whether the allegation of each offense is warranted by the evidence indicated 

in the report of investigation (if there is such a report); 

(3) Conclusion with respect to whether a court-martial would have jurisdiction over the accused and the 

offense; and 

(4) Recommendation of the action to be taken by the convening authority. 

Discussion 

The staff judge advocate is personally responsible for the advice should include when appropriate: a brief summary of 

pretrial advice and must make an independent and informed the evidence; discussion of significant aggravating, extenuating, 

appraisal of the charges and evidence in order to render the or mitigating factors; and any previous recommendations, by 

advice. Another person may prepare the advice, but the staff commanders or others who have forwarded the charges, for 

judge advocate is, unless disqualified, responsible for it and disposition of the case. However, there is no legal requirement 

must sign it personally. Grounds for disqualification in a case to include such information and failure to do so is not error. 

include previous action in that case as investigating officer, Whatever matters are included in the advice, whether or 

military judge, trial counsel, defense counsel, or member. not they are required, should be accurate. Information which 

The advice need not set forth the underlying analysis or is incorrect or so incomplete as to be misleading may result in 

rationale for its conclusions. Ordinarily, the charge sheet, for- a determination that the advice is defective, necessitating apwarding letter and indorsements, and report of investigation are propriate relief. See R.C.M. 905(b)(l); 906(b)(3). 

forwarded with the pretrial advice. In addition, the pretrial 

(c) Distribution. A copy of the advice of the staff judge advocate shall be provided to the defense if charges are 

referred to trial by general court-martial. 

Rule 407. Action by commander exercising general court-martial jurisdiction 

(a) Disposition. When in receipt of charges, a commander exercising general court-martial jurisdiction may: 

(1) Dismiss any charges; 

Discussion 

See R.C.M. 401(c)(l) concerning dismissal of charges and the effect of dismissing charges. 

(2) Forward charges (or, after dismissing charges, the matter) to a subordinate commander for disposition; 

Discussion 

See R.C.M. 401(c)(2)(B) concerning forwarding charges be sent or returned to a subordinate commander for compliance 

to a subordinate. with procedural requirements. See, for example, R.C.M. 303 

A subordinate commander may not be required to take any (preliminary inquiry); R.C.M. 308 (notification to accused of 

specific action or to dispose of charges. See R.C.M. 104. See charges). 

also paragraph ld(2) of Part V. When appropriate, charges may 

(3) Forward any charges to a superior commander for disposition; 

Discussion 

See R.C.M. 401 (c)(2)(A) for guidance concerning forwarding charges to a superior. 
R.C.M. 407(b) 

(4) Refer charges to a summary court-martial or a special court-martial for trial; 

Discussion 

See R.C.M. 601; 1302(c). 

(5) Unless otherwise prescribed by the Secretary concerned, direct a pretrial investigation under R.C.M. 

405, after which additional action under this rule may be taken; 

Discussion 

An investigation should be directed when it appears that tigation of the subject matter already has been conducted. See 

the charges are of such a serious nature that trial by general R.C.M. 405(b). 

court-martial may be warranted. See R.C.M. 405. If an inves- 

(6) Subject to R.C.M. 601(d), refer charges to a general court-martial. 

Discussion 

See Article 22 and R.C.M. 504(b)(l) concerning who may See R.C.M. 601 concerning referral of charges. See R.C.M. 

exercise general court-martial jurisdiction. 306 and 401 concerning other dispositions. 

(b) National security matters. When in receipt of charges the trial of which the commander exercising general 

court-martial jurisdiction finds would probably be inimical to the prosecution of a war or harmful to national 

security, that commander, unless otherwise prescribed by regulations of the Secretary concerned, shall determine 

whether trial is warranted and, if so, whether the security considerations involved are paramount to trial. As the 

commander finds appropriate, the commander may dismiss the charges, authorize trial of them., or forward them 

to a superior authority. 

Discussion 

In time of war, charges may be forwarded to the Secretary 43(e), the Secretary may take action suspending the statute of 

concerned for disposition under Article 43(e). Under Article limitations in time of war. 
CHAPTER V. COURT-MARTIAL COMPOSITION AND PERSONNEL; CONVENING COURTS- 


MARTIAL 


Rule 501. Composition and personnel of courts-martial 

(a) Composition of courts-martial. 

(1) General courts-martial. General courts-martial shall consist of: 

(A) A military judge and not less than five members; or 

(B) Except in capital cases, of the military judge alone if requested and approved under R.C.M. 903. 

(2) Special courts-martial. Special courts-martial shall consist of: 

(A) Not less than three members; 

(B) A military judge and not less than three members; or 

(C) A military judge alone if a military judge is detailed and if requested and approved under R.C.M. 

903. 

Discussion 

See R.C.M. 1301(a) concerning composition of summary courts-martial. 

(b) Counsel in general and special courts-martial. Military trial and defense counsel shall be detailed to general 

and special courts-martial. Assistant trial and associate or assistant defense counsel may be detailed. 

(c) Other personnel. Other personnel, such as reporters, interpreters, bailiffs, clerks, escorts, and orderlies, may 

be detailed or employed as appropriate but need not be detailed by the convening authority personally. 

Discussion 

The convening authority may direct that a reporter not be cerned may also require or restrict the use of reporters in special 

used in special courts-martial. Regulations of the Secretary con- courts-martial. 

Rule 502. Qualifications and duties of personnel of courts-martial 

(a) Members. 

(1) Qual$cations. The members detailed to a court-martial shall be those persons who in the opinion of 

the convening authority are best qualified for the duty by reason of their age, education, training, experience, 

length of service, and judicial temperament. Each member shall be on active duty with the armed forces and 

shall be: 

(A) A commissioned officer; 

(B) A warrant officer, except when the accused is a commissioned officer; or 

(C) An enlisted person if the accused is an enlisted person and has made a timely request under R.C.M. 

503(a)(2). 

Discussion 

Retired members of any Regular component and members Members of the National Oceanic and Atmospheric Adof Reserve components of the armed forces are eligible to serve ministration and of the Public Health Service are eligible to 

as members if they are on active duty. serve as members when assigned to and serving with an armed 
R.C.M. 502(a)(2) 

force. The Public Health Service includes both commissioned Administration includes only commissioned officers. 

and warrant officers. The National Oceanic and Atmospheric 

(2) Duties. The members of a court-martial shall determine whether the accused is proved guilty and, if 

necessary, adjudge a proper sentence, based on the evidence and in accordance with the instructions of the 

military judge. Each member has an equal voice and vote with other members in deliberating upon and deciding 

all matters submitted to them, except as otherwise specifically provided in these rules. No member may use rank 

or position to influence another member. No member of a court-martial may have access to or use in any open 

or closed session this Manual, reports of decided cases, or any other reference material, except the president of 

a special court-martial without a military judge may use such materials in open session. 

Discussion 

Members should avoid any conduct or communication with determination. Members should not on their own visit or conthe military judge, witnesses, or other trial personnel during duct a view of the scene of the crime and should not investigate 

the trial which might present an appearance of partiality. Except or gather evidence of the offense. Members should not form 

as provided in these rules, members should not discuss any part an opinion on any matter in connection with a case until that 

of a case with anyone until the matter is submitted to them for matter has been submitted to them for determination. 

(b) President. 

(1) QualiJications.The president of a court-martial shall be the detailed member senior in rank then serving. 

(2) Duties. The president shall have the same duties as the other members and shall also: 

(A) Preside over closed sessions of the members of the court-martial during their deliberations; 

(B) 	Speak for the members of the court-martial when announcing the decision of the members or requesting 

instructions from the military judge; and 

(C) 	In a special court-martial without a military judge, perform the duties assigned by this Manual to 

the military judge except as otherwise expressly provided. 

(c) Qualijications of military judge. A military judge shall be a commissioned officer on active duty in the armed 

forces who is a member of the bar of a Federal court or a member of the bar of the highest court of a State and 

who is certified to be qualified for duty as a military judge by the Judge Advocate General of the armed force 

of which the military judge is a member. In addition, the military judge of a general court-martial shall be 

designated for such duties by the Judge Advocate General or the Judge Advocate General's designee, certified 

to be qualified for duty as a military judge of a general court-martial, and assigned and directly'responsible to 

the Judge Advocate General or the Judge Advocate General's designee. The Secretary concerned may prescribe 

additional qualifications for military judges in special courts-martial. As used in this subsection ''military judge" 

does not include the president of a special court-martial without a military judge. 

Discussion 

See R.C.M. 801 for description of some of the general approved by the Judge Advocate General, or a designee, of the 

duties of the military judge. service of which the military judge is a member. Similar reMilitary judges assigned as general court-martial judges strictions on other duties which a military judge in special co~utsmay perform duties in addition to the primary duty of judge of martial may perform may be prescribed in regulations of the 

a general court-martial only when such duties are assigned or Secretary concerned. 

(d) Counsel. 

(1) Certified counsel required. Only persons certified under Article 27(b) as competent to perform duties 

as counsel in courts-martial by the Judge Advocate General of the armed force of which the counsel is a member 
R.C.M. 502(d)(5) 

may be detailed as defense counsel or associate defense counsel in general or special courts-martial or as trial 

counsel in general courts-martial. 

Discussion 

To be certified by the Judge Advocate General concerned When the accused has individual military or civilian deunder Article 27(b), a person must be a member of the bar of fense counsel, the detailed counsel is "associate counsel" una Federal court or the highest court of a State. The Judge less excused from the case. See R.C.M.506(b)(3). 

Advocate General concerned may establish additional requirements for certification. 

(2) Other military counsel. Any commissioned officer may be detailed as trial counsel in special courtsmartial, or as assistant trial counsel or assistant defense counsel in general or special courts-martial. The Secretary 

concerned may establish additional qualifications for such counsel. 

(3) Qualifications of individual military and civilian defense counsel. Individual military or civilian defense 

counsel who represents an accused in a court-martial shall be: 

(A) A member of the bar of a Federal court or of the bar of the highest court of a State; or 

(B) If not a member of such a bar, a lawyer who is authorized by a recognized licensing authority to 

practice law and is found by the military judge to be qualified to represent the accused upon a showing 

to the satisfaction of the military judge that the counsel has appropriate training and familiarity with 

the general principles of criminal law which apply in a court-martial. 

Discussion 

In making such a determination-particularly in the case (iv) practical alternatives for discipline of 

of civilian defense counsel who are members only of a foreign the counsel in the event of misconduct; 

bar-the military judge also should inquire into: (v) whether foreign witnesses are expected 

(i) the availability of the counsel at times to testify with whom the counsel may more readily communicate 

at which sessions of the court-martial have been scheduled; than might military counsel; and 

(ii) whether the accused wants the counsel (vi) whether ethnic or other similarity beto appear with military defense counsel; tween the accused and the counsel may facilitate communication 

(iii) the familiarity of the counsel with spo- and confidence between the accused and civilian defense counken English; sel. 

(4)Disqualifications. No person shall act as trial counsel or assistant trial counsel or, except when expressly 

requested by the accused, as defense counsel or associate or assistant defense counsel in any case in which that 

person is or has been: 

(A) The accuser; 

(B) An investigating officer; 

(C) A military judge; or 

(D) A member. 

No person who has acted as counsel for a party may serve as counsel for an opposing party in the same case. 

Discussion 

In the absence of evidence to the contrary, it is presumed detailed as counsel for any party to the court-martial to which 

that a person who, between referral and trial of a case, has been the case has been referred, has acted in that capacity. 

(5)Duties of trial and assistant trial counsel. The trial counsel shall prosecute cases on behalf of the United 

States and shall cause the record of trial of such cases to be prepared. Under the supervision of trial counsel an 
R.C.M. 502(d)(6) 

assistant trial counsel may perform any act or duty which trial counsel may perform under law, regulation, or 

custom of the service. 

Discussion 

(A) General duties before trial. Immediately such legal texts as may be available and 

upon receipt of referred charges, trial coun- necessary to sustain the prosecution's consel should cause a copy of the charges to tentions; arrange for the presence of witbe sewed upon accused. See R.C.M. 602. nesses and evidence in accordance with 

Trial counsel should: examine the charge sheet and allied R.C.M. 703; prepare to make an opening 

papers for completeness and correctness; correct (and initial) statement of the prosecution's case (see 

minor errors or obvious mistakes in the charges but may not R.C.M. 913); prepare to conduct the exwithout authority make any substantial changes (see R.C.M. amination and cross-examination of wit603); and assure that the information about the accused on the nesses; and prepare to make final argument 

charge sheet and any evidence of previous convictions are ac- on the findings and, if necessary, on sencurate. tencing (see R.C.M. 919; 1001(g)). 

(B) Relationship with convening authority. Trial (E) Trial. Trial counsel should bring to the atcounsel should: report to the convening au- tention of the inilitary judge any substantial 

thority any substantial irregularity in the irregularity in the proceedings. Trial counconvening orders, charges, or allied pa- sel should not allude to or disclose to the 

pers; report an actual or anticipated reduc- members any evidence not yet admitted or 

tion of the number of members below reasonably expected to be admitted in evquorum to the convening authority; bring idence or intimate, transmit, or purport to 

to the attention of the convening authority transmit to the military judge or members 

any case in which trial counsel finds trial the views of the convening authority or othinadvisable for lack of evidence or other ers as to the guilt or innocence of the acreasons. cused, an appropriate sentence, or any other 

(C) Relations with the accused and defense matter within the discretion of the courtcounsel. Trial counsel must communicate martial. 

with a represented accused only through the (F) Post-trial duties. Trial counsel must 

accused's defense counsel. However, see promptly provide written notice of the findR.C.M. 602. Trial counsel may not attempt ings and sentence adjudged to the convento induce an accused to plead guilty or sur- ing authority or a designee, the accused's 

render other important rights. immediate commander, and (if applicable) 

(D) Preparation for trial. Trial counsel should: the officer in charge of the confinement 

ensure that a suitable room, a reporter (if facility (see R.C.M. 1 101(a)), and superauthorized), and necessary equipment and vise the preparation, authentication, and 

supplies are provided for the court-martial; distribution of copies of the record as reobtain copies of the charges and specifi- quired by these rules and regulations of the 

cations and convening orders for each Secretary concerned (see R.C.M. 1 103; 

member and all personnel of the court-mar- 1104). 

tial; give timely notice to the members, (G) Assistant trial counsel. An assistant trial 

other parties, other personnel of the court- counsel may act in that capacity only under 

martial, and witnesses for the prosecution the supervision of the detailed trial counsel. 

and (if known) defense of the date, time, Responsibility for trial of a case may not 

place, and uniform of the meetings of the devolve to an assistant not qualified to serve 

court-martial; ensure that any person hav- as trial counsel. Unless the contrary aping custody of the accused is also informed; pears, all acts of an assistant trial counsel 

comply with applicable discovery rules (see are presumed to have been done by the 

R.C.M. 701); prepare to make a prompt, direction of the trial counsel. An assistant 

full, and orderly presentation of the evi- trial counsel may not act in the absence of 

dence at trial; consider the elements of proof trial counsel at trial in a general court-marof each offense charged, the burden of proof tial unless the assistant has the qualificaof guilt and the burdens of proof on motions tions required of a trial counsel. See R.C.M. 

which may be anticipated, and the Military 805(c). 

Rules of Evidence; secure for use at trial 

(6)Duties of defense and associate or assistant defense counsel. Defense counsel shall represent the accused 

in matters under the code and these rules arising from the offenses of which the accused is then suspected or 

charged. Under the supervision of the defense counsel an associate or assistant defense counsel may perform 

any act or duty which a defense counsel may perform under law, regulation, or custom of the service. 
R.C.M. 502(d)(6) 

ussion 

(A) 	 Initial advice by military defense counsel. 

Defense counsel should promptly explain 

to the accused the general duties of the 

defense counsel and inform the accused of 

the rights to request individual military 

counsel of the accused's own selection, and 

of the effect of such a request, and to retain 

civilian counsel. If the accused wants to 

request individual military counsel, the defense counsel should immediately inform 

the convening authority through trial counsel and, if the request is approved, serve 

as associate counsel if the accused requests 

and the convening authority permits. Unless the accused directs otherwise, military 

counsel will begin preparation of the defense immediately after being detailed 

without waiting for approval of a request 

for individual military counsel or retention 

of civilian counsel. See R.C.M. 506. 

(B) 	General duties of defense counsel. Defense 

counsel must: guard the interests of the accused zealously within the bounds of the 

law without regard to personal opinion as 

to the guilt of the accused; disclose to the 

accused any interest defense counsel may 

have in connection with the case, any disqualification, and any other matter which 

might influence the accused in the selection 

of counsel; represent the accused with undivided fidelity and may not disclose the 

accused's secrets or confidences except as 

the accused may authorize (see also Mil. 

R. Evid. 502). A defense counsel designated to represent two or more co-accused 

in a joint or common trial or in allied cases 

must be particularly alert to conflicting interests of those accused. Defense counsel 

should bring such matters to the attention 

of the military judge so that the accused's 

understanding and choice may be made a 

matter of record. See R.C.M. 901(d)(4)(D). 

Defense counsel must explain to the accused: the elections 

available as to composition of the court-martial and assist the 

accused to make any request necessary to effect the election 

(see R.C.M. 903); the right to plead guilty or not guilty and 

the meaning and effect of a plea of guilty; the rights to introduce 

evidence, to testify or remain silent, and to-assert any available 

defense; and the rights to present evidence during sentencing 

and the rights of the accused to testify under oath, make an 

unswom statement, and have counsel make a statement on behalf of the accused. These explanations must be made regardless 

of the intentions of the accused as to testifying and pleading. 

Defense counsel should try to obtain complete knowledge 

of the facts of the case before advising the accused, and should 

give the accused a candid opinion of the merits of the case. 

(C) 	 Preparation for trial. Defense counsel may 

have the assistance of trial counsel in obtaining the presence of witnesses and evidence for the defense. See R.C.M. 703. 

Defense counsel should consider the elements of proof of 

the offenses alleged and the pertinent rules of evidence to ensure 

that evidence that the defense plans to introduce is admissible 

and to be prepared to object to inadmissible evidence offered 

by the prosecution. 

Defense counsel should: prepare to make an opening statement of the defense case (see R.C.M. 913(b)); and prepare to 

examine and cross-examine witnesses, and to make final argument on the findings and, if necessary, on sentencing (see 

R.C.M. 919; 1001(g)). 

(D) 	 Trial. Defense counsel should represent and 

protect the interests of the accused at trial. 

When a trial proceeds in the absence of the accused, defense counsel must continue to represent the accused. 

(E) 	 Post-trial duties. 

(i) Deferment of confinement. If the accused 

is sentenced to confinement, the defense counsel must explain 

to the accused the right to request the convening authority to 

defer service of the sentence to confinement and assist the 

accused in making such a request if the accused chooses to 

make one. See R.C.M. 1101(c). 

(ii) Examination of the record; appellate 

brief. The defense counsel should in any case examine the 

record for accuracy and note any errors in it. This notice may 

be forwarded for attachment to the record. See R.C.M. 

1103(b)(3)(C). See also R.C.M. 1103(i)(l)(B). 

(iii) Submission of matters. If the accused 

is convicted, the defense counsel may submit to the convening 

authority matters for the latter's consideration in deciding whether 

to approve the sentence or to disapprove any findings. See 

R.C.M. 1105. Defense counsel should discuss with the accused 

the right to submit matters to the convening authority and the 

powers of the convening authority in taking action on the case. 

Defense counsel may also submit a brief of any matters counsel 

believes should be considered on further review. 

(iv) Appellate rights. Defense counsel must 

explain to the accused the rights to appellate review that apply 

in the case, and advise the accused concerning the exercise of 

those rights. If the case is subject to review by the Court of 

Military Review, defense counsel should explain the powers of 

that court and advise the accused of the right to be represented 

by counsel before it. See R.C.M. 1202 and 1203. Defense 

cbunse~ should also explain the possibility of further review by 

the Court of Military Appeals and the Supreme Court. See 

R.C.M. 1204 and 1205. If the case may be examined in the 

office of the Judge Advocate General under Article 69(a), defense counsel should explain the nature of such review to the 

accused. See R.C.M. 1201(b)(l). Defense counsel must explain 

the consequences of waiver of appellate review, when applicable, and, if the accused elects to waive appellate review, 

defense counsel will assist in preparing the waiver. See R.C.M. 

11 10. If the accused waives appellate review, or if it is not 

available, defense counsel should explain that the case will be 

reviewed by a judge advocate and should submit any appropriate 

matters for consideration by the judge advocate. See R.C.M. 

11 12. The accused should be advised of the right to apply to 

the Judge Advocate General for relief under Article 69(b) when 

such review is available. See R.C.M. 1201(b)(3). 

(v) Examination of post-trial recommendation. When the post-trial recommendation is sewed on defense counsel, defense counsel should examine it and reply 

promptly in writing, noting any errors or omissions. Failure to 

note defects in the recommendation waives them. See R.C.M. 

1106(f). 

(F) Associate or assistant defense counsel. Associate or assistant counsel may act in that 

capacity only under the supervision and by 
R.C.M. 502(e) 

the general direction of the defense coun- to act as defense counsel. Responsibility 

sel. A detailed defense counsel becomes for trial of a case may not devolve upon an 

associate defense counsel when the accused assistant who is not qualified to serve as 

has individual military or civilian counsel defense counsel. An assistant defense 

and detailed counsel is not excused. Al- counsel may not act in the absence of the 

though associate counsel acts under the defense counsel at trial unless the assistant 

general supervision of the defense counsel, has the qualifications required of a defense 

associate defense counsel may act without counsel. See also R.C.M. 805. Unless the 

such supervision when circumstances re- contrary appears, all acts of an assistant or 

quire. See, for example, R.C.M. 805(c). associate defense counsel are presumed to 

An assistant defense counsel may do this have been done under the supervision of 

only if such counsel has the qualifications the defense counsel. 

(e) Interpreters, reporters, escorts, bailiSfs, clerks, and guards. 

(I) Qualifications. The qualifications of interpreters and reporters may be prescribed by the Secretary 

concerned. Any person who is not disqualified under subsection (e)(2) of this rule may serve as escort, bailiff, 

clerk, or orderly, subject to removal by the military judge. 

(2) Disqualifications. In addition to any disqualifications which may be prescribed by the Secretary concerned, no person shall act as interpreter, reporter, escort, bailiff, clerk, or orderly in any case in which that 

person is or has been in the same case: 

(A) The accuser; 

(B) A witness; 

(C) An investigating officer; 

(D) Counsel for any party; or 

(E) A member of the court-martial or of any earlier court-martial of which the trial is a rehearing or new 

or other trial. 

(3)Duties. In addition to such other duties as the Secretary concerned may prescribe, the following persons 

may perform the following duties. 

(A) Interpreters. Interpreters shall interpret for the court-martial or for an accused who does not speak 

or understand English. 

Discussion 

The accused also may retain an unofficial interpreter without expense to the United States. 

(B) Reporters. Reporters shall record the proceedings and testimony and shall transcribe them so as to 

comply with the requirements for the record of trial as prescribed in these rules. 

(C) Others. Other personnel detailed for the assistance of the court-martial shall have such duties as may 

be imposed by the military judge. 

(4)Payment of reporters, interpreters. The Secretary concerned may prescribe regulations for the payment 

of allowances, expenses, per diem, and compensation of reporters and interpreters. 

Discussion 

See R.C.M. 807 regarding oaths for reporters, interpreters, and escorts. 

(f) Action upon discovery of disqualification or lack of qualijkations. Any person who discovers that a person 

detailed to a court-martial is disqualified or lacks the qualifications specified by this rule shall cause a report of 

the matter to be made before the court-martial is first in session to the convening authority or, if discovered 

later, to the military judge. 
R.C.M. 503(b)(2) 

Rule 503. Detailing members, military judge, and counsel 

(a) Members. 

(1) In general. The convening authority shall detail qualified persons as members for courts-martial. 

Discussion 

The following persons are subject to challenge under R.C.M. martial which previously heard the case; any person who is 

912(f) and should not be detailed as members: any person who junior to the accused, unless this is unavoidable; an enlisted 

is, in the same case, an accuser, witness, investigating officer, member from the same unit as the accused; any person who is 

or counsel for any party; any person who, in the case of a new in arrest or confinement. 

trial, other trial, or rehearing, was a member of any court- 

(2) Enlisted members. An enlisted accused may, before assembly, request in writing that enlisted persons 

serve as memb~rs of the general or special court-martial to which that accused's case has been or will be referred. 

If such a request is made, an enlisted accused may not be tried by a court-martial the membership of which does 

not include enlisted members in a number comprising at least one-third of the total number of members unless 

eligible enlisted members cannot be obtained because of physical conditions or military exigencies. If the 

appropriate number of enlisted members cannot be obtained, the court-martial may be assembled, and the trial 

may proceed without them, but the convening authority shall make a detailed written explanation why enlisted 

members could not be obtained which must be appended to the record of trial. 

Discussion 

When such a request is made, the convening authority martial which includes the proper proportion of enlisted memshould: bers; or 

(1) Detail an appropriate number of enlisted members (3) Advise the court-martial before which the charges 

to the court-martial and, if appropriate, relieve an appropriate are then pending to proceed in the absence of enlisted members 

number of commissioned or warrant officers previously de- if eligible enlisted members cannot be detailed because of phystailed; ical conditions or military exigencies. 

(2) Withdraw the charges from the court-martial to See also R.C.M. 1 103(b)(2)(D)(iii). 


which they were originally referred and refer them to a court- 


(3) Members from another command or armed force. A convening authority may detail as members of 

general and special courts-martial persons under that convening authority's command or made available by their 

commander, even if those persons are members of an armed force different from that of the convening authority 

or accused. 

Discussion 

Concurrence of the proper commander may be oral and different armed forces is selected, at least a majority of the 

need not be shown by the record of trial. members should be of the same armed force as the accused 

Members should ordinarily be of the same armed force as unless exigent circumstances make it impractical to do so withthe accused. When a court-martial composed of members of out manifest injury to the service. 

(b)Military judge. 

(I) By whom detailed. The military judge shall be detailed, in accordance with regulations of the Secretary 

concerned, by a person assigned as a military judge and directly responsible to the Judge Advocate General or 

the Judge Advocate General's designee. The authority to detail military judges may be delegated to persons 

assigned as military judges. If authority to detail military judges has been delegated to a military judge, that 

military judge may detail himself or herself as military judge for a court-martial. 

(2) Record of detail. The order detailing a military judge shall be reduced to writing and included in the 

record of trial or announced orally on the record at the court-martial. The writing or announcement shall indicate 
R.C.M. 503(b)(3) 

by whom the military judge was detailed. The Secretary concerned may require that the order be reduced to 

writing. 

(3)Military judge f?om a direrent armed force. A military judge from one armed force may be detailed to 

a court-martial convened in a different armed force when permitted by the Judge Advocate General of the armed 

force of which the military judge is a member. The Judge Advocate General may delegate authority to make 

military judges available for this purpose. 

(c) Counsel. 

(1') By whom detailed. Trial and defense counsel, assistant trial and defense counsel, and associate defense 

counsel shall be detailed in accordance with regulations of the Secretary concerned. If authority to detail counsel 

has been delegated to a person, that person may detail himself or herself as counsel for a court-martial. 

(2) Record of detail. The order detailing a counsel shall be reduced to writing and included in the record 

of trial or announced orally on the record at the court-martial. The writing or .announcement shall indicate by 

whom the counsel was detailed. The Secretary concerned may require that the order be reduced to writing. 

(3) Counsel from a dzfferent armed force. A person from one armed force may be detailed to serve as 

counsel in a court-martial in a different armed force when permitted by the Judge Advocate General of the armed 

force of which the counsel is a member. The Judge Advocate General may delegate authority to make persons 

available for this purpose. 

Rule 504. Convening courts-martial 

(a) In general. A court-martial is created by a convening order of the convening authority 

(b) Who may convene courts-martial. 

(1) General courts-martial. Unless otherwise limited by superior competent authority, general courts-martial 

may be convened by persons occupying positions designated in Article 22(a) and by any commander designated 

by the Secretary concerned or empowered by the President. 

Discussion 

The authority to convene courts-martial is independent of which command devolves are found in regulations of the Secrank and is retained as long as the convening authority remains retary concerned. 

a commander in one of the designated positions. The rules by 

(2)Special courts-martial. Unless otherwise limited by superior competent authority, special courts-martial 

may be convened by persons occupying positions designated in Article 23(a) and by commanders designated by 

the Secretary concerned. 

Discussion 

See the discussion of subsection (b)(l) of this rule. Persons authorized to convene general courts-martial may 

also convene special courts-martial. 

(A) Definition. For purposes of Articles 23 and 24, a command or unit is "separate or detached" when 

isolated or removed from the immediate disciplinary control of a superior in such manner as to make 

its commander the person held by superior commanders primarily responsible for discipline. "Separate 

or detached" is used in a disciplinary sense and not necessarily in a tactical or physical sense. 

Discussion 

The power of a commander of a separate or detached unit may be limited by superior competent authority. 


to convene courts-martial, like that of any other commander, 

R.C.M. 504(d)(2) 

(B) Determination. If a commander is in doubt whether the command is separate or detached, the matter 

shall be determined: 

-(i) In the Army or the Air Force, by the officer exercising general court-martial jurisdiction over the 

command; or 

(ii) In the Naval Service or Coast Guard, by the flag or general officer in command or the senior officer 

present who designated the detachment. 

(3) Summary courts-martial. See R.C.M. 1302(a). 

Discussion 

See the discussion under subsection (b)(l) of this rule. 

(4)Delegation prohibited. The power to convene courts-martial may not be delegated. 

(c)Disqualification. 

(1) Accuser. An accuser may not convene a general or special court-martial for the trial of the person 

accused. 

Discussion 

See also Article l(9); 307(a); 601(c). However, see R.C.M. 1302(b) (accuser may convene a summary court-martial). 

(2) Other. A convening authority junior in rank to an accuser may not convene a general or special courtmartial for the trial of the accused unless that convening authority is superior in command to the accuser. A 

convening authority junior in command to an accuser may not convene a general or special court-martial for the 

trial of the accused. 

(3) Action when disqual$ed. When a commander who would otherwise convene a general or special courtmartial is disqualified in a case, the charges shall be forwarded to a superior competent authority for disposition. 

That authority may personally dispose of the charges or forward the charges to another convening authority who 

is superior in rank to the accuser, or, if in the same chain of command, who is superior in command to the 

accuser. 

Discussion 

See also R.C.M. 401(c). 

(d) Convening orders. 

(1) General and special courts-martial. A convening order for a general or special court-martial shall 

designate the type of court-martial and detail the members and may designate where the court-martial will meet. 

If the convening authority has been designated by the Secretary concerned, the convening order shall so state. 

Discussion 

See Appendix 6 for a suggested format for a convening order. 

(2) Summary courts-martial. A convening order for a summary court-martial shall designate that it is a 

summary court-martial and detail the summary court-martial, and may designate where the court-martial will 

meet. If the convening authority has been designated by the Secretary concerned, the convening order shall so 

state. 

Discussion 

See also R.C.M. 1302(c). 
R.C.M. 504(d)(3) 

(3) Additional matters. Additional matters to be included in convening orders may be prescribed by the 

Secretary concerned. 

(e) Place. The convening authority shall ensure that an appropriate location and facilities for courts-martial are 

provided. 

Rule 505. Changes of members, military judge, and counsel 

(a) In general. Subject to this rule, the members, military judge, and counsel may be changed by an authority 

competent to detail such persons. Members also may be excused as provided in subsections (c)(l)(B)(ii) and 

(c)(2)(A) of this rule. 

Discussion 

Changes of the members of the court-martial should be to withdraw the charges from one court-martial and refer them 

kept to a minimum. If extensive changes are necessary and no to another. See R.C.M.604. 

session of the court-martial has begun, it may be appropriate 

(b) Procedure. When new persons are added as members or counsel or when substitutions are made as to any 

members or counsel or the military judge, such persons shall be detailed in accordance with R.C.M. 503. An 

order changing the members of the court-martial, except one which excuses members without replacement, shall 

be reduced to writing before authentication of the record of trial. 

Discussion 

When members or counsel have been excused and the nounced on the record. A member who has been temporarily 

excusal is not reduced to writing, the excusal should be an- excused need not be formally reappointed to the court-mmial. 

(c) Changes of members. 

(1) Before assembly. 

(A) By convening authority. Before the court-martial is assembled, the convening authority may change 

the members of the court-martial without showing cause. 

(B) By convening authority's delegate. 

(i) Delegation. The convening authority may delegate, under regulations of the Secretary concerned, 

authority to excuse individual members to the staff judge advocate or legal officer or other principal assistant to 

the convening authority. 

(ii) Limitations. Before the court-martial is assembled, the convening authority's delegate may excuse 

members without cause shown; however, no more than one-third of the total number of members detailed by 

the convening authority may be excused by the convening authority's delegate in any one court-martial. After 

assembly the convening authority's delegate may not excuse members. 

(2) Afrer assembly. 

(A) Excusal. After assembly no member may be excused, except: 

(i) By the convening authority for good cause shown on the record; 

(ii) By the military judge for good cause shown on the record; or 

(iii) As a result of challenge under R.C.M. 912. 

(B) New members. New members may be detailed after assembly only when, as a result of excusals 

under subsection (c)(2)(A) of this rule, the nuMber of members of the court-martial is reduced below 

a quorum, or the number of enlisted members, when the accused has made a timely written request 

for enlisted members, is reduced below one-third the total membership. 
R.C.M. 506(b)(l)(E) 

(d) Changes of detailed counsel. 

(1) Trial counsel. An authority competent to detail trial counsel may change the trial counsel and any 

assistant trial counsel at any time without showing cause. 

(2) Defense counsel. 

(A) Before formation of attorney-client relationship. Before an attorney-client relationship has been 

formed between the accused and detailed defense counsel or associate or assistant defense counsel, 

an authority competent to detail defense counsel may excuse or change such counsel without showing 

cause. 

(B) After formation of attorney-client relationship. After an attorney-client relationship has been fonned 

between the accused and detailed defense counsel or associate or assistant defense counsel, an authority 

competent to detail such counsel may excuse or change such counsel only: 

(i) Under R.C.M. 506(b)(3); 

(ii) Upon request of the accused or application for withdrawal by such counsel under R.C.M.506(c); 

or 

(iii) For other good cause shown on the record. 

(e) Change of military judge. 

(1) Before assembly. Before the court-martial is assembled, the military judge may be changed by an 

authority competent to detail the military judge, without cause shown on the record. 

(2) After assembly. After the court-martial is assembled, the military judge may be changed by an authority 

competent to detail the military judge only when, as a result of disqualification under R.C.M. 902 or for good 

cause shown, the previously detailed military judge is unable to proceed. 

(f) Good cause. For purposes of this rule, "good cause" includes physical disability, military exigency, and 

other extraordinary circumstances which render the member, counsel, or military judge unable to proceed with 

the court-martial within a reasonable time. "Good cause" does not include temporary inconveniences which are 

incident to normal conditions of military life. 

Rule 506. Accused's rights to counsel 

(a) In general. The accused has the right to be represented before a general or special court-martial by civilian 

counsel if provided at no expense to the Government, and either by the military counsel detailed under Article 

27 or military counsel of the accused's own selection, if reasonably available. The accused is not entitled to be 

represented by more than one military counsel. 

Discussion 

See R.C.M.502(d)(3) as to qualifications of civilian counsel or individual military counsel. 

(b) Individual military counsel. 

(1) Reasonably available. Subject to this subsection, the Secretary concerned shall define "reasonably 

available." While so assigned, the following persons are not reasonably available to serve as individual military 

counsel because of the nature of their duties or positions: 

(A) A general or flag officer; 

(B) A trial or appellate military judge; 

(C) A trial counsel; 

(D) An appellate defense or government counsel; 

(E) 	A principal legal advisor to a command, organization, or agency and, when such command, organization, or agency has general court-martial jurisdiction, the principal assistant of such an advisor; 
R.C.M. 506(b)(l)(F) 

(F) An instructor or student at a service school or academy; 

(G) A student at a college or university; 

(H) A member of the staff of the Judge Advocate General of the Army, Navy, or Air Force, the Chief 

Counsel of the Coast Guard, or the Director, Judge Advocate Division, Headquarters, Marine Corps. 

The Secretary concerned may determine other persons to be not reasonably available because of the nature or 

responsibilities of their assignments, geographic considerations, exigent circumstances, or military necessity. A 

person who is a member of an armed force different from that of which the accused is a member shall be 

reasonably available to serve as individual military counsel for such accused to the same extent as that person 

is available to serve as individual military counsel for an accused in the same armed force as the person requested. 

The Secretary concerned may prescribe circumstances under which exceptions may be made to the prohibitions 

in this subsection when merited by the existence of an attorney-client relationship regarding matters relating to 

a charge in question. However, if the attorney-client relationship arose solely because the counsel represented 

the accused on review under Article 70, this exception shall not apply. 

(2)Procedure. Subject to this subsection, the Secretary concerned shall prescribe procedures for determining 

whether a requested person is "reasonably available" to act as individual military counsel. Requests for an 

individual military counsel shall be made by the accused or the detailed defense counsel through the trial counsel 

to the convening authority. If the requested person is among those not reasonably available under subsection 

(b)(l) of this rule or under regulations of the Secretary concerned, the convening authority shall deny the request 

and notify the accused, unless the accused asserts that there is an existing attorney-client relationship regarding 

a charge in question or that the person requested will not, at the time of the trial or investigation for which 

requested, be among those so listed as not reasonably available. If the accused's request makes such a claim, 

or if the person is not among those so listed as not reasonably available, the convening authority shall forward 

the request to the commander or head of the organization, activity, or agency to which the requested person is 

assigned. That authority shall make an administrative determination whether the requested person is reasonably 

available in accordance with the procedure prescribed by the Secretary concerned. This determination is a matter 

within the sole discretion of that authority. An adverse determination may be reviewed upon request of the 

accused through that authority to the next higher commander or level of supervision, but no administrative review 

may be made which requires action at the departmental or higher level. 

(3)Excusal of detailed counsel. If the accused is represented by individual military counsel, detailed defense 

counsel shall normally be excused. The authority who detailed the defense counsel, as a matter of discretion, 

may approve a request from the accused that detailed defense counsel shall act as associate counsel. The action 

of the authority who detailed the counsel is subject to review only for abuse of discretion. 

Discussion 

A request under subsection (b)(3) should be considered in defense counsel, complexity of legal or factual issues, and the 

light of the general statutory policy that the accused is not detail of additional trial counsel. 

entitled to be represented by more than one military counsel. See R.C.M. 905(b)(6) and 906(b)(2) as to motions conAmong the factors that may be considered in the exercise of cerning denial of a request for individual military counsel or 

discretion are the seriousness of the case, retention of civilian retention of detailed counsel as associate counsel. 

(c) Excusal or withdrawal. Except as otherwise provided in R.C.M. 505(d)(2) and subsection (b)(3) of this rule, 

defense counsel may be excused only with the express consent of the accused, or by the military judge upon 

application for withdrawal by the defense counsel for good cause shown. 

(d) Waiver. The accused may expressly waive the right to be represented by counsel and may thereafter conduct 

the defense personally. Such waiver shall be accepted by the military judge only if the military judge finds that 

the accused is competent to understand the disadvantages of self-representation and that the waiver is voluntary 

and understanding. The military judge may require that a defense counsel remain present even if the accused 

waives counsel and conducts the defense personally. The right of the accused to conduct the defense personally 

may be revoked if the accused is disruptive or fails to follow basic rules of decorum and procedure. 
R.C.M. 506(e) 

(e) Nonlawyer present. Subject to the discretion of the military judge, the accused may have present and seated 

at the counsel table for purpose of consultation persons not qualified to serve as counsel under R.C.M. 502. 

Discussion 

See also Mil. R. Evid. 615 if the person is a potential witness in the case. 
CHAPTER VI. REFERRAL, SERVICE, AMENDMENT, AND WITHDRAWAL OF CHARGES 

Rule 601. Referral 

(a) In general. Referral is the order of a convening authority that charges against an accused will be tried by a 

specified court-martial. 

Discussion 

Referral of charges requires three elements: a convening IV as to disposition); and a court-martial convened by that 

authority who is authorized to convene the court-martial and is convening authority or a predecessor (see R.C.M. 504). 

not disqualified (see R.C.M. 601(b) and (c)); preferred charges If trial would be warranted but would be detrimental to 

which have been received by the convening authority for dis- the prosecution of a war or inimical to national security, see 

position (see R.C.M. 307 as to preferral of charges and Chapter R.C.M. 401(d) and 407(b). 

(b) Who may refer. Any convening authority may refer charges to a court-martial convened by that convening 

authority or a predecessor, unless the power to do so has been withheld by superior competent authority. 

Discussion 

See R.C.M. 306(a), 403, 404, 407, and 504. the convening authority or otherwise under the convening auThe convening authority may be of any command, in- thority's control to assure the appearance of the accused at trial. 

cluding a command different from that of the accused, but as The convening authority's power over the accused may be based 

a practical matter the accused must be subject to the orders of upon agreements between the commanders concerned. 

(c) Disqualifzcation. An accuser may not refer charges to a general or special court-martial. 

Discussion 

Convening authorities are not disqualified from referring petent authority superior in rank or command. See R.C.M. 

charges by prior participation in the same case except when 401(c) concerning actions which the superior may take. 

they have acted as accuser. For a definition of "accuser," see See R.C.M. 1302 for rules relating to convening summary 

Article l(9). A convening authority who is disqualified may courts-martial. 

forward the charges and allied papers for disposition by com- 

(d) When charges may be referred. 

(1) Basis for referral. If the convening authority finds or is advised by a judge advocate that there are 

reasonable grounds to believe that an offense triable by a court-martial has been committed and that the accused 

committed it, and that the specification alleges an offense, the convening authority may refer it. The finding 

may be based on hearsay in whole or in part. The convening authority or judge advocate may consider information 

from any source and shall not be limited to the information reviewed by any previous authority, but a case may 

not be referred to a general court-martial except in compliance with subsection (d)(2) of this rule. The convening 

authority or judge advocate shall not be required before charges are referred to resolve legal issues, including 

objections to evidence, which may arise at trial. 
R.C.M. 601(d)(2) 

Discussion 

For a discussion of selection among alternative disposi- convening authority should consider the options and considtions, see R.C.M. 306. The convening authority is not obliged erations under R.C.M. 306 in exercising the discretion to refer. 

to refer all charges which the evidence might support. The 

(2) General courts-martial. The convening authority may not refer a specification under a charge to a 

general court-martial unless -

(A) There has been substantial compliance with the pretrial investigation requirements of R.C.M. 405; 

and 

(B) The convening authority has received the advice of the staff judge advocate required under R.C.M. 

406. 

These requirements may be waived by the accused 

Discussion 

See R.C.M. 201(f)(2)(C) concerning limitations on referral See R.C.M. 1301(c) concerning limitations on the referral 

of capital offenses to special courts-martial. See R.C.M. 103(3) of certain cases to summary courts-martial. 

for the definition of a capital offense. 

(e) How charges shall be referred. 

(1) Order, instructions. Referral shall be by the personal order of the convening authority. The convening 

authority may include proper instructions in the order. 

Discussion 

Referral is ordinarily evidenced by an indorsement on the the accused be tried with certain other charges against the accharge sheet. Although the indorsement should be completed cused. See subsection (2) below. 

on all copies of the charge sheet, only the original must be The convening authority may instruct that charges against 

signed. The signature may be that of a person acting by the one accused be referred for joint or common trial with another 

order or direction of the convening authority. In such a case accused. See subsection (3) below. 

the signature element must reflect the signer's authority. Capital offenses may be referred as noncapital if the death 

If, for any reason, charges are referred to a court-martial penalty is not mandatory. When a convening authority has disdifferent from that to which they were originally referred, the cretion to refer a capital case as noncapital, the convening 

new referral is ordinarily made by a new indorsement attached authority should be guided by the criteria for adjudging capital 

to the original charge sheet. The previous indorsement should punishment found at R.C.M. 1004. 

be lined out and initialed by the person signing the new referral. The convening authority may acknowledge by an instrucThe original indorsement should not be obliterated. See also tion that no bad-conduct discharge may be adjudged when the 

R.C.M. 604. 	 prerequisites for a bad-conduct discharge under Article 19 will 

If the only officer present in a command refers the charges not be met. See R.C.M. 201(f)(2)(B)(ii). For example, this 

to a summary court-martial and serves as the summary court- instruction may be given when a court reporter is not detailed. 

martial under R.C.M. 1302, the indorsement should be com- Any special instructions must be stated in the referral inpleted with the additional comment, "only officer present in dorsement. 

the command." When the charges have been referred to a court-martial, 

The convening authority may instruct that the charges against 	 the indorsed charge sheet and allied papers should be promptly 

transmitted to the trial counsel. 

(2)Joinder of offenses. In the discretion of the convening authority, two or more offenses charged against 

an accused may be referred to the same court-martial for trial, whether serious or minor offenses or both, 

regardless whether related. Additional charges may be joined with other charges for a single trial at any time 

before arraignment if all necessary procedural requirements concerning the additional charges have been complied 

with. After arraignment of the accused upon charges, no additional charges may be referred to the same trial 

without consent of the accused. 
R.C.M. 603(b) 

Discussion 

Ordinarily all known charges should be referred to a single court-martial. 

(3) Joinder of accused. Allegations against two or more accused may be referred for joint trial if the accused 

are alleged to have participated in the same act or transaction or in the same series of acts or transactions 

constituting an offense or offenses. Such accused may be charged in one or more specifications together or 

separately, and every accused need not be charged in each specification. Related allegations against two or more 

accused which may be proved by substantially the same evidence may be referred to a common trial. 

Discussion 

A joint offense is one committed by two or more persons arately is essentially the same, even though the offenses were 

acting together with a common intent. Joint offenses may be not jointly committed. See R.C.M. 307(c)(5) Discussion. Conreferred for joint trial, along with all related offenses against vening authorities should consider that joint and common trials 

each of the accused. A common trial may be used when the may be complicated by procedural and evidentiary rules. 

evidence of several offenses committed by several accused sep- 

(f) Superior convening authorities. Except as otherwise provided in these rules, a superior competent authority 

may cause charges, whether or not referred, to be transmitted to that authority for further consideration, including, 

if appropriate, referral. 

Rule 602. Service of charges 

The trial counsel detailed to the court-martial to which charges have been referred for trial shall cause to be 

served upon each accused a copy of the charge sheet. In time of peace,. no person may, over objection, be 

brought to trial-including an Article 39(a) session-before a general court-martial within a period of five days 

after service of charges, or before a special court-martial within a period of three days after service of charges. 

In computing these periods, the date of service of charges and the date of trial are excluded; holidays and Sundays 

are included. 

Discussion 

Trial counsel should comply with this rule immediately Service may be made only upon the accused; substitute 

upon receipt of the charges. Whenever after sewice the charges service upon defense counsel is insufficient. The trial counsel 

are amended or changed the trial counsel must give notice of should promptly inform the defense counsel when charges have 

the changes to the defense counsel. Whenever such amendments been served. 

or changes add a new party, a new offense, or substantially If the accused has questions when sewed with charges, 

new allegations, the charge sheet so amended or changed must the accused should be told to discuss the matter with defense 

be served anew. See also R.C.M. 603. counsel. 

Rule 603. Changes to charges and specifications 

(a) Minor changes defined. Minor changes in charges and specifications are any except those which add a party, 

offense, or substantial matter not fairly included in those previously preferred, or which are likely to mislead 

the accused as to the offenses charged. 

Discussion 

Minor changes include those necessary to correct inartfully riousness of an offense, as when the value of an allegedly stolen 

drafted or redundant specifications; to correct a misnaming of item in a larceny specification is reduced, or when a desertion 

the accused; to allege the proper article; or to correct other slight specification is amended to allege only unauthorized absence. 

errors. Minor changes also include those which reduce the se- 

(b) Minor changes before arraignment. Any person forwarding, acting upon, or prosecuting charges on behalf 

of the United States except an investigating officer appointed under R.C.M. 405 may make minor changes to 

charges or specifications before arraignment. 

11-63 
R.C.M. 603(~) 

Discussion 

Charges forwarded or referred for trial should be free from the person who makes them. A trial counsel acting under this 

defects of form and substance. Minor errors may be corrected provision ordinarily should consult with the conveningauthority 

and the charge may be redrafted without being sworn anew by before making any changes which, even though minor, change 

the accuser. Other changes should be signed and sworn to by the nature or seriousness of the offense. 

an accuser. All changes in the charges should be initialed by 

(c) Minor changes after arraignment. After arraignment the military judge may, upon motion, permit minor 

changes in the charges and specifications at any time before findings are announced if no substantial right of 

the accused is prejudiced. 

(d) Major changes. Changes or amendments to charges or specifications other than minor changes may not be 

made over the objection of the accused unless the charge or specification affected is preferred anew. 

Discussion 

If there has been a major change or amendment over the investigation. If the substance of the charge or specification as 

accused's objection to a charge already referred, a new referral amended or changed has not been referred or, in the case of a 

is necessary. Similarly, in the case of a general court-martial, general court-martial, investigated, a new referral and, if apa new investigation under R.C.M. 405 will be necessary if the propriate, investigation are necessary. When charges are recharge as amended or changed was not covered in the prior referred, they must be sewed anew under R.C.M. 602. 

Rule 604. Withdrawal of charges 

(a) Withdrawal. The convening authority or a superior competent authority may for any reason cause any charges 

or specifications to be withdrawn from a court-martial at any time before findings are announced. 

Discussion 

Charges which are withdrawn from a court-martial should authority or a superior competent authority in the exercise of 

be dismissed (see R.C.M. 401(c)(l)) unless it is intended to that officer's independent judgment. When directed to do so by 

refer them anew promptly or to forward them to another au- the convening authority or a superior competent authority, trial 

thority for disposition. counsel may withdraw charges or specifications by lining out 

Charges should not be withdrawn from a court-martial the affected charges or specifications, renumbering remaining 

arbitrarily or unfairly to an accused. See also subsection (b) of charges or specifications as necessary, and initialing the changes. 

this rule. Charges and specifications withdrawn before commencement 

Some or all charges and specifications may be withdrawn. of trial will not be brought to the attention of the members. 

In a joint or common trial the withdrawal may be limited to When charges or specifications are withdrawn after they have 

charges against one or some of the accused. come to the attention of the members, the military judge must 

Charges which have been properly referred to a court- instruct them that the withdrawn charges or specifications may 

martial may be withdrawn only by the direction of the convening not be considered for any reason. 

(b) Referral of withdrawn charges. Charges which have been withdrawn from a court-martial may be referred 

to another court-martial unless the withdrawal was for an improper reason. Charges withdrawn after the introduction of evidence on the general issue of guilt may be referred to another court-martial only if the withdrawal 

was necessitated by urgent and unforeseen military necessity. 

Discussion 

See also R.C.M. 915 (Mistrial). Improper reasons for withdrawal include an intent to inWhen charges which have been withdrawn from a court- terfere with the free exercise by the accused of constitutional 

martial are referred to another court-martial, the reasons for the or coda1 rights, or with the impartiality of a court-martial. A 

withdrawal and later referral should be included in the record withdrawal is improper if it was not directed personally and 

of the later court-martial, if the later referral is more onerous independently by the convening authority or by a superior comto the accused. Therefore, if further prosecution is contemplated petent authority. 

at the time of the withdrawal, the reasons for the withdrawal Whether the reason for a withdrawal is proper. for purposes 

should be included in or attached to the record of the earlier of the propriety of a later referral, depends in part on the stage 

proceeding. in the proceedings at which the withdrawal takes place. Before 
R.C.M. 604(b) 

arraignment, there are many reasons for a withdrawal which arraignment may be referred to another court-martial under some 

will not preclude another referral. These include receipt of ad- circumstances. For example, it is permissible to refer charges 

ditional charges, absence of the accused, reconsideration by the which were withdrawn pursuant to a pretrial agreement if the 

convening authority or by a superior competent authority of the accused fails to fulfill the terms of the agreement. See R.C.M. 

seriousness of the offenses, questions concerning the mental 705. Charges withdrawn after some evidence on the general 

capacity of the accused, and routine duty rotation of the per- issue of guilt is introduced may be re-referred only under the 

sonnel constituting the court-martial. Charges withdrawn after narrow circumstances described in the rule. 
CHAPTER VII. PRETRIAL MATTERS 

Rule 701. Discovery 

(a) Disclosure by the trial counsel. Except as otherwise provided in subsections (f) and (g)(2) of this rule, the 

trial counsel shall provide the following information or matters to the defense- 

(1) Papers accompanying charges; convening orders; statements. As soon as practicable after service of 

charges under R.C.M. 602, the trial counsel shall provide the defense with copies of, or, if extraordinary 

circumstances make it impracticable to provide copies, permit the defense to inspect: 

(A) Any paper which accompanied the charges when they were referred to the court-martial, including 

papers sent with charges upon a rehearing or new trial; 

(B) The convening order and any amending orders; and 

(C) Any sworn or signed statement relating to an offense charged in the case which is in the possession 

of the trial counsel. 

(2)Documents, tangible objects, reports. After service of charges, upon request of the defense, the Government shall permit the defense to inspect: 

(A) 	Any books, papers, documents, photographs, tangible objects, buildings, or places, or copies or 

portions thereof, which are within the possession, custody, or control of military authorities, and 

which are material to the preparation of the defense or are intended for use by the trial counsel as 

evidence in the prosecution case-in-chief at trial, or were obtained from or belong to the accused; 

and 

(B) 	Any results or reports of physical or mental examinations, and of scientific tests or experiments, or 

copies thereof, which are within the possession, custody, or control of military authorities, the 

existence of which is known, or by the exercise of due diligence may become known, to the trial 

counsel, and which are material to the preparation of the defense or are intended for use by the trial 

counsel as evidence in the prosecution case-in-chief at trial. 

Discussion 

For specific rules concerning certain mental examinations of the accused see R.C.M. 706 and Mil. R. Evid. 302. 

(3) Witnesses. Before the beginning of trial on the merits the trial counsel shall notify the defense of the 

names and addresses of the witnesses the trial counsel intends to call: 

(A) In the prosecution case-in-chief; and 

(B) To rebut a defense of alibi or lack of mental responsibility, when trial counsel has received timely 

notice under subsection (b)(l) or (2) of this rule. 

Discussion 

Such notice should be in writing except when impracticable. 

(4)Prior convictions of accused offered on the merits. Before arraignment the trial counsel shall notify the 

defense of any records of prior civilian or court-martial convictions of the accused of which the trial counsel is 

aware and which the trial counsel may offer on the merits for any purpose, including impeachment, and shall 

permit the defense to inspect such records when they are in the trial counsel's possession. 

(5)Information to be oflered at sentencing. Upon request of the defense the trial counsel shall: 
R.C.M. 701(a)(5)(A) 

(A) Permit the defense to inspect such written material as will be presented by the prosecution at the 

presentencing proceedings; and 

(B) Notify the defense of the names and addresses of the witnesses the trial counsel intends to call at 

the presentencing proceedings under R.C.M. 1001 (b). 

(6)Evidence favorable to the defense. The trial counsel shall, as soon as practicable, disclose to the defense 

the existence of evidence known to the trial counsel which reasonably tends to: 

(A) Negate the guilt of the accused of an offense charged; 

(B) Reduce the degree of guilt of the accused of an offense charged; or 

(C) Reduce the punishment. 

Discussion 

In addition to the matters required to be disclosed under (identity of informants), 612 (memoranda used to refresh recsubsection (a) of this rule, the Government is required to notify ollection), and 613(a) (prior inconsistent statements). 

the defense of or provide to the defense certain information Requirements for notice of intent to use certain evidence 

under other rules. Mil. R. Evid. 506 covers the disclosure of are found in: Mil. R. Evid. 201A(b) (judicial notice of foreign 

unclassified information which is under the control of the Gov- law), 301(c)(2) (immunized witnesses), 304(d)(2) (notice of 

ernment. Mil. R. Evid. 505 covers disclosure of classified in- intent to use undisclosed confessions), 304(f) (testimony of 

formation. accused for limited purpose on confession), 31 1(d)(2)(B) (noOther R.C.M. and Mil. R. Evid. concern disclosure of tice of intent to use undisclosed evidence seized), 31 1(f) (tesother specific matters. See R.C.M. 308 (identification of ac- timony of accused for limited purpose on seizures), 321(c)(2)(B) 

cuser), 405 (report of Article 32 investigation), 706(c)(3)(B) (notice of intent to use undisclosed line-up evidence), 321(e) 

(mental examination of accused), 914 (production of certain (testimony of accused for limited purpose on line-ups), 412(c)(l) 

statements), and 1004(b)(l) (aggravating circumstances in cap- and (2) (intent of defense to use evidence of sexual misconduct 

ital cases); Mil. R. Evid. 301(c)(2) (notice of immunity or by a victim); 505(h) (intent to disclose classified information), 

leniency to witnesses), 302 (mental examination of accused), 506(h) (intent to disclose privileged government information), 

304(d)(l) (statements by accused), 311(d)(l) (evidence seized and 609(b) (intent to impeach with conviction over 10 years 

from accused), 321(c)(l) (evidence based on lineups), 507 old). 

(b) Disclosure by the defense. Except as otherwise provided in subsections (f) and (g)(2) of this rule, the defense 

shall provide the following information to the trial counsel- 

(1) Notice of alibi. The defense shall notify the trial counsel before the beginning of trial on the merits of 

its intent to offer a defense of alibi. Such notice by the defense shall disclose the specific place or places at 

which the defense claims the accused to have been at the time of the alleged offense and the names and addresses 

of the witnesses upon whom the accused intends to rely to establish such alibi. 

Discussion 

If the defense needs more detail as to the time, date, or a bill of particulars. See R.C.M. 906(b)(6). 


place of the offense to comply with this rule, it should request 


(2) Mental responsibility. If the defense intends to rely upon the defense of lack of mental responsibility 

or to introduce expert testimony relating to a mental disease, defect, or other condition bearing upon the guilt 

of the accused, the defense shall, before the beginning of trial on the merits, notify the trial counsel of such 

intention. 

Discussion 

See R.C.M. 916(k) concerning thedefenseof lackof men- accused. See Mil. R. Evid. 302 concerning statements by the 

tat responsibility or partial mental responsibility. See R.C.M. accused during such inquiries. 

706 concerning inquiries into the mental responsibility of the 

(3) Documents and tangible objects. If the defense requests disclosure under subsection (a)(2)(A) of this 

rule, upon compliance with such request by the Government, the defense, on request of the aial counsel, shall 
R.C.M. 701(g)(3) 

permit the trial counsel to inspect books, papers, documents, photographs, tangible objects, or copies or portions 

thereof, which are within the possession, custody, or control of the defense and which the defense intends to 

introduce as evidence in the defense case-in-chief at trial. 

(4)Reports of examination and tests. If the defense requests disclosure under subsection (a)(2)(B) of this 

rule, upon compliance with such request by the Government, the defense, on request of the trial counsel, shall 

(except as provided in R.C.M. 706 and Mil. R. Evid. 302) permit the trial counsel to inspect any results or 

reports of physical or mental examinations and of scientific tests or experiments made in connection with the 

particular case, or copies thereof, which are within the possession, custody, or control of the defense which the 

defense intends to introduce as evidence in the defense case-in-chief at trial or which were prepared by a witness 

whom the defense intends to call at trial when the results or reports relate to that witness' testimony. 

(5) Inadmissibility of withdrawn defense. If an intention to rely upon a defense under subsection (b)(l) or 

(2) of this rule is withdrawn, evidence of such intention and disclosures by the accused or defense counsel made 

in connection with such intention is not admissible in any court-martial against the accused who gave notice of 

the intention. 

Discussion 

In addition to the matters covered in subsection (b) of this (intent to offer evidence of sexual misconduct by a victim), 

rule, defense counsel is required to give notice or disclose 505(h) (intent to disclose classified information), 506(h) (intent 

evidence under certain Military Rules of Evidence: Mil. R. to disclose privileged government information), and 609(b) (inEvid. 201A(b) (judicial notice of foreign law), 304(f) (testimony tent to impeach a witness with a conviction older than 10 years), 

by the accused for a limited purpose in relation to a confession), 612(2) (writing used to refresh recollection), and 613(a) (prior 

31 1(b) (same, search), 321(e) (same, lineup), 412(c)(l) and (2) inconsistent statements). 

(c) Failure to call witness. The fact that a witness' name is on a list of expected or intended witnesses provided 

to an opposing party, whether required by this rule or not, shall not be ground for comment upon a failure to 

call the witness. 

(d) Continuing duty to disclose. If, before or during the court-martial, a party discovers additional evidence or 

material previously requested or required to be produced, which is subject to discovery or inspection under this 

rule, that party shall promptly notify the other party or the military judge of the existence of the additional 

evidence or material. 

(e) Access to witnesses and evidence. Each party shall have adequate opportunity to prepare its case and equal 

opportunity to interview witnesses and inspect evidence. No party may unreasonably impede the access of another 

party to a witness or evidence. 

(f) Information not subject to disclosure. Nothing in this rule shall be construed to require the disclosure of 

information protected from disclosure by the Military Rules of Evidence. Nothing in this rule shall require the 

disclosure or production of notes, memoranda, or similar working papers prepared by counsel and counsel's 

assistants and representatives. 

(g) Regulation of discovery. 

(1) Time, place, and manner. The military judge may, consistent with this rule, specify the time, place, 

and manner of making discovery and may prescribe such terms and conditions as are just. 

(2) Protective and modifying orders. Upon a sufficient showing the military judge may at aiiy time order 

that the discovery or inspection be denied, restricted, or deferred, or make such other order as is appropriate. 

Upon motion by a party, the military judge may permit the party to make such showing, in whole or in part, in 

writing to be inspected only by the military judge. If the military judge grants relief after such an ex parte 

showing, the entire text of the party's statement shall be sealed and attached to the record of trial as an appellate 

exhibit. Such material may be examined by reviewing authorities in closed proceedings for the purpose of 

reviewing the determination of the military judge. 

(3) Failure to comply. If at any time during the court-martial it is brought to the attention of the military 
R.C.M. 701(g)(3)(A) 

judge that a party has failed to comply with this rule, the military judge may take one or more of the following 

actions: 

(A) Order the party to permit discovery; 

(B) Grant a continuance; 

(C) Prohibit the party from introducing evidence or raising a defense not disclosed; and 

(D) Enter such other order as is just under the circumstances. 

This rule shall not limit the right of the accused to testify in the accused's behalf. 

Discussion 

Factors to be considered in determining whether to grant Procedures governing refusal to disclose classified inforan exception to exclusion under subsection (3)(C) include: the mation are in Mil. R. Evid. 505. Procedures governing refusal 

extent of disadvantage that resulted from a failure to disclose; to disclose other government information are in Mil. R. Evid. 

the reason for the failure to disclose; the extent to which later 506. Procedures governing refusal to disclose an informant's 

events mitigated the disadvantage caused by the failure to dis- identity are in Mil. R. Evid. 507. 

close; and any other relevant factors. 

(h) Inspect. As used in this rule "inspect" includes the right to photograph and copy. 

Rule 702. Depositions 

(a) In general. A deposition may be ordered whenever, after preferral of charges, due to exceptional circumstances 

of the case it is in the interest of justice that the testimony of a prospective witness be taken and preserved for 

use at an investigation under Article 32 or a court-martial. 

Discussion 

A deposition is the out-of-court testimony of a witness except that a deposition may be admitted in a capital case only 

under oath in response to questions by the parties, which is upon offer by the defense. See Mil. R. Evid. 804(b)(l). In any 

reduced to writing or recorded on videotape or audiotape or case, a deposition may be used by any party for the purpose of 

similar material. A deposition taken on oral examination is an contradicting or impeaching the testimony of the deponent as 

oral deposition, and a deposition taken on written interrogatories a witness. See Mil. R. Evid. 613. If only a part of a deposition 

is a written deposition. Written interrogatories are questions, is offered in evidence by a party, an adverse party may require 

prepared by the prosecution, defense, or both, which are re- the proponent to offer all which is relevant to the part offered, 

duced to writing before submission to a witness whose testimony and any party may offer other parts. See Mil. R. Evid. 106. 

is to be taken by deposition. The answers, reduced to writing A deposition which is transcribed is ordinarily read to the 

and properly sworn to, constitute the deposition testimony of court-martial by the party offering it. See also subsection (g)(3) 

the witness. of this rule. The transcript of a deposition may not be inspected 

Note that under subsection (i) of this rule a deposition may by the members. Objections may be made to testimony in a 

be taken by agreement of the parties without necessity of an written deposition in the same way that they would be if the 

order. testimony were offered through the personal appearance of a 

A deposition may be taken to preserve the testimony of a witness. 

witness who is likely to be unavailable at the investigation under Part or all of a deposition so far as otherwise admissible 

Article 32 (see R.C.M. 405(g)) or at the time of trial (see under the Military Rules of Evidence may be used in presentR.C.M. 703(b)). Part or all of a deposition, so far as otherwise encing proceedings as substantive evidence as provided in R.C.M. 


admissible under the Military Rules of Evidence, may be used 1001. 


on the merits or on an interlocutory question as substantive DD Form 456 (Interrogatories and Deposition) may be used 


evidence if the witness is unavailable under Mil. R. Evid. 804(a) in conjunction with this rule. 


(b) Who may order. A convening authority who has the charges for disposition or, after referral, the convening 

authority or the military judge may order that a deposition be taken on request of a party. 

(c) Request to take deposition. 

(1) Submission of request. At any time after charges have been preferred, any party may request in writing 

that a deposition be taken. 
R.C.M. 702(d)(2) 

Discussion 

A copy of the request and any accompanying papers ordinarily should be served on the other parties when the request is submitted. 

(2) Contents of request. A request for a deposition shall include: 

(A) The name and address of the person whose deposition is requested, or, if the name of the person is 

unknown, a description of the office or position of the person; 

(B) A statement of the matters on which the person is to be examined; 

(C) A statement of the reasons for taking the deposition; and 

(D) Whether an oral or written deposition is requested. 

(3)Action on request. 

(A) In general. A request for a deposition may be denied only for good cause. 

Discussion 

Good cause for denial includes: failure to state a proper of unusual circumstances, such as improper denial of a witness 

ground for taking a deposition; failure to show the probable request at an Article 32 hearing, unavailability of an essential 

relevance of the witness' testimony, or that the witness' testi- witness at an Article 32 hearing, or when the Government has 

mony would be unnecessary. The fact that the witness is or improperly impeded defense access to a witness. 

will be available for trial is good cause for denial in the absence 

(B) 	Written deposition. A request for a written deposition may not be approved without the consent of 

the opposing party except when the deposition is ordered solely in lieu of producing a witness for 

sentencing under R.C.M. 1001 and the authority ordering the deposition determines that the interests 

of the parties and the court-martial can be adequately served by a written deposition. 

Discussion 


A request for an oral deposition may be approved without the consent of the opposing party. 


(C) Notification of decision. The authority who acts on the request shall promptly inform the requesting 

party of the action on the request and, if the request is denied, the reasons for denial. 

(D) Waiver. Failure to renew before the military judge a request for a deposition denied by a convening 

authority waives further consideration of the request. 

(d) Action when request is approved. 

(1) Detail of deposition officer. When a request for a deposition is approved, the convening authority shall 

detail an officer to serve as deposition officer or request an appropriate civil officer to serve as deposition officer. 

Discussion 

See Article 49(c). command, an appropriate authority may be requested to make 

When a deposition will be at a point distant from the available an officer to serve as deposition officer. 

(2) Assignment of counsel. If charges have not yet been referred to a court-martial when a request to take 

a deposition is approved, the convening authority who directed the taking of the deposition shall ensure that 

counsel qualified as required under R.C.M. 502(d) are assigned to represent each party. 

Discussion 

The counsel who represents the accused at a deposition If the accused has formed an attorney-client relationship 

ordinarily will form an attorney-client relationship with the ac- with military counsel concerning the charges in question, orcused which will continue through a later court-martial. See dinarily that counsel should be appointed to represent the acR.C.M.506. 	 cused. 
(3) Instructions. The convening authority may give instructions not inconsistent with this rule to the deposition 


officer. 


Discussion 

Such instructions may include the time and place for taking the deposition. 

(e) Notice. The party at whose request a deposition is to be taken shall give to every other party reasonable 


written notice of the time and place for taking the deposition and the name and address of each person to be 


examined. On motion of a party upon whom the notice is served the deposition officer may for cause shown 


extend or shorten the time or change the place for taking the deposition, consistent with any instructions from 


the convening authority. 


(f) Duties of the deposition oflcer. In accordance with this rule, and subject to any instructions under subsection 


(d)(3) of this rule, the deposition officer shall: 


(1) Arrange a time and place for taking the deposition and, in the case of an oral deposition, notify the 


party who requested the deposition accordingly; 


(2) Arrange for the presence of any witness whose deposition is to be taken in accordance with the procedures 


for production of witnesses and evidence under R.C.M. 703(e); 


(3) Maintain order during the deposition and protect the parties and witnesses from annoyance, embarrass- 


ment, or oppression; 


(4) Administer the oath to each witness, the reporter, and interpreter, if any; 

(5) In the case of a written deposition, ask the questions submitted by counsel to the witness; 

(6) Cause the proceedings to be recorded so that a verbatim record is made or may be prepared; 

(7) Record, but not rule upon, objections or motions and the testimony to which they relate; 

(8) Authenticate the record of the deposition and forward it to the authority who ordered the deposition; 


and 


(9) Report to the convening authority any substantial irregularity in the proceeding. 

Discussion 

When any unusual problem, such as improper conduct by The authority who ordered the deposition should forward 


counsel or a witness, prevents an orderly and fair proceeding, copies to the parties. 


the deposition officer should adjourn the proceedings and inform 


the convening authority. 


(g) Procedure. 

(1) Oral depositions. 

(A)Rights of accused. At an oral deposition, the accused shall have the rights to: 

(i) Be present except when: (a) the accused, absent good cause shown, fails to appear after notice of 

time and place of the deposition; (b)the accused is disruptive within the meaning of R.C.M. 804(b)(2); or (c) 

the deposition is ordered in lieu of production of a witness on sentencing under R.C.M. 1001 and the authority 

ordering the deposition determines that the interests of the parties and the court-martial can be served adequately 

by an oral deposition without the presence of the accused; and 

I 
R.C.M. 702(h)(2) 

(ii) Be represented by counsel as provided in R.C.M. 506. 

(B) Examimtion of witnesses. Each witness giving an oral deposition shall be examined under oath. The 

scope and manner of examination and cross-examination shall be such as would be allowed in the 

trial itself. The Government shall make available to each accused for examination and use at the 

taking of 'the deposition any statement of the witness which is in the possession of the United States 

and to which the accused would be entitled at the trial. 

Discussion 

As to objections, see subsections (Q(7) and (h) of this rule. "You (swear) (affirm) that the evidence you give shall be 

As to production of prior statements of witnesses, see R.C.M. the truth, the whole truth, and nothing but the truth (so help 

914; Mil. R. Evid. 612, 613. you God)?" 

A sample oath for a deposition follows. 

(2) Written depositions. 

(A) Rights of accused. The accused shall have the right to be represented by counsel as provided in 

R.C.M. 506 for the purpose of taking a written deposition, except when the deposition is taken for 

use at a summary court-martial. 

(B) Presence of parties. No party has a right to be present at a written deposition. 

(C) Submission of interrogatories to opponent. The party requesting a written deposition shall submit to 

opposing counsel a list of written questions to be asked of the witness. Opposing counsel may examine 

the questions and shall be allowed a reasonable time to prepare cross-interrogatories and objections, 

if any. 

Discussion 

The interrogatories and cross-interrogatories should be sent osition. See subsection (h)(3) of this rule concerning objections. 

to the deposition officer by the party who requested the dep- 

(D) Examination of witnesses. The deposition officer shall swear the witness, read each question presented 

by the parties to the witness, and record each response. The testimony of the witness shall be recorded 

on videotape, audiotape, or similar material or shall be transcribed. When the testimony is transcribed, 

the deposition shall, except when impracticable, be submitted to the witness for examination. The 

deposition officer may enter additional matters then stated by the witness under oath. The deposition 

shall be signed by the witness if the witness is available. If the deposition is not signed by the witness, 

the deposition officer shall record the reason. The certificate of authentication shall then be executed. 

(3)How recorded. In the discretion of the authority who ordered the deposition, a deposition may be recorded 

by a reporter or by other means including videotape, audiotape, or sound film. In the discretion of the military 

judge, depositions recorded by videotape, audiotape, or sound film may be played for the court-martial or may 

be transcribed and read to the court-martial. 

Discussion 

A deposition read in evidence or one that is played during the same way as any other testimony. The deposition need not 

a court-martial, is recorded and transcribed by the reporter in be included in the record of trial. 

(h)Objections. 

(1) In general. A failure to object prior to the deposition to the taking of the deposition on grounds which 

may be corrected if the objection is made prior to the deposition waives such objection. 

(2) Oral depositions. Objections to questions, testimony, or evidence at an oral deposition and the grounds 
R.C.M. 702(h)(3) 

for such objection shall be stated at the time of taking such deposition. If an objection relates to a matter which 

could have been corrected if the objection had been made during the deposition, the objection is waived if not 

made at the deposition. 

Discussion 

A party may show that an objection was made during the dence, the transcript of the deposition governs. 


deposition but not recorded, but, in the absence of such evi- 


(3) Written depositions. Objections to any question in written interrogatories shall be served on the party 

who proposed the question before the interrogatories are sent to the deposition officer or the objection is waived. 

Objections to answers in a written deposition may be made at trial. 

(i) Deposition by agreement not precluded. 

(1) Taking deposition. Nothing in this rule shall preclude the taking of a deposition without cost to the 

United States, orally or upon written questions, by agreement of the parties. 

(2) Use of deposition. Subject to Article 49, nothing in this rule shall preclude the use of a deposition at 

the court-martial by agreement of the parties unless the military judge forbids its use for good cause. 

Rule 703. Production of witnesses and evidence 

(a) In general. The prosecution and defense and the court-martial shall have equal opportunity to obtain witnesses 

and evidence, including the benefit of compulsory process. 

Discussion 

See also R.C.M.801(c) concerning the opportunity of the court-martial to obtain witnesses and evidence. 

(b) Right to witnesses. 

(1) On the merits or on interlocutory questions. Each party is entitled to the production of any witness 

whose testimony on a matter in issue on the merits or on an interlocutory question would be relevant and 

necessary. 

Discussion 

See Mil. R. Evid. 401 concerning relevance. case in some positive way on a matter in issue. A matter is not 

Relevant testimony is necessary when it is not cumulative in issue when it is stipulated as a fact. 

and when it would contribute to a party's presentation of the 

(2) On sentencing. Each party is entitled to the production of a witness whose testimony on sentencing is 

required under R. C.M. 1001(e). 

(3) Unavailable witness. Notwithstanding subsections (b)(l) and (2) of this rule, a party is not entitled to 

the presence of a witness who is unavailable within the meaning of Mil. R. Evid. 804(a). However, if the 

testimony of a witness who is unavailable is of such central importance to an issue that it is essential to a fair 

trial, and if there is no adequate substitute for such testimony, the military judge shall grant a continuance or 

other relief in order to attempt to secure the witness' presence or shall abate the proceedings, unless the 

unavailability of the witness is the fault of or could have been prevented by the requesting party. 

(c) Determining which witness will be produced. 

(1) Witnesses for the prosecution. The trial counsel shall obtain the presence of witnesses whose testimony 

the trial counsel considers relevant and necessary for the prosecution. 

(2) Witnesses for the defense. 

11-74 
R.C.M. 703(e)(l) 

(A) Request. The defense shall submit to the trial counsel a written list of witnesses whose production 

by the Government the defense requests. 

(B) Contents of request. 

(i) Witnesses on merits or interlocutory questions. A list of witnesses whose testimony the defense 

considers relevant and necessary on the merits or on an interlocutory question shall include the name, telephone 

number, if known, and address or location of the witness such thhat the witness can be found upon the exercise 

of due diligence and a synopsis of the expected testimony sufficient to show its relevance and necessity. 

(ii) Witnesses on sentencing. A list of witnesses wanted for presentencing proceedings shall include 

the name, telephone number, if known, and address or location of the witness such that the witness can be found 

upon the exercise of due diligence, a synopsis of the testimony that it is expected the witness will give, and the 

reasons why the witness' personal appearance will be necessary under the standards set forth in R.C.M. 1001(e). 

(C) 	Time of request. A list of witnesses under this subsection shall be submitted in time reasonably to 

allow production of each witness on the date when the witness' presence will be necessary. The 

military judge may set a specific date by which such lists must be submitted. Failure to submit the 

name of a witness in a timely manner shall permit denial of a motion for production of the witness, 

but relief from such denial may be granted for good cause shown. 

(D) Determination. The trial counsel shall arrange for the presence of any witness listed by the defense 

unless the trial counsel contends that the witness' production is not required under this rule. If the 

trial counsel contends that the witness' production is not required by this rule, the matter may be 

submitted to the military judge. If the military judge grants a motion for a witness, the trial counsel 

shall produce the witness or the proceedings shall be abated. 

Discussion 

When significant or unusual costs would be involved in pose of the matter by means other than a court-martial. See 

producing witnesses, the trial counsel should inform the con- R.C.M. 906(b)(7). See also R.C.M. 905G). 

vening authority, as the convening authority may elect to dis- 

(d) Employment of expert witnesses. When the employment at Government expense of an expert is considered 

necessary by a party, the party shall, in advance of employment of the expert, and with notice to the opposing 

party, submit a request to the convening authority to authorize the employment and to fix the compensation for 

the expert. The request shall include a complete statement of reasons why employment of the expert is necessary 

and the estimated cost of employment. A request denied by the convening authority may be renewed before the 

military judge who shall determine whether the testimony of the expert is relevant and necessary, and, if so, 

whether the Government has provided or will provide an adequate substitute. If the military judge grants a motion 

for employment of an expert or finds that the Government is required to provide a substitute, the proceedings 

shall be abated if the Government fails to comply with the ruling.. In the absence of advance authorization, an 

expert witness may not be paid fees other than those to which entitled under subsection (e)(2)(D) of this rule. 

Discussion 

See Mil. R. Evid. 702, 706. 

(e) Procedures for production of witnesses. 

(1) Military witnesses. The attendance of a military witness may be obtained by notifying the commander 

of the witness of the time, place, and date the witness' presence is required and requesting the commander to 

issue any necessary orders to the witness. 

Discussion 

When military witnesses are located near the court-martial, near the court-martial and attendance would involve travel at 

their presence can usually be obtained through informal coor- government expense, or if informal coordination is inadequate, 

dination with them and their commander. If the witness is not 
R.C.M. 703(e)(2) 

the appropriate superior should be requested to issue the nec- 48 hours notice before starting to travel to attend the courtessary order. martial. 

If practicable, a request for the attendance of a military The attendance of persons not on active duty should be 

witness should be made so that the witness will have at least obtained in the manner prescribed in subsection (e)(2) of this 

rule. 

(2)Civilian witnesses-subpoena . 

(A) In general. The presence of witnesses not on active duty may be obtained by subpoena. 

Discussion 

A subpoena is not necessary if the witness appears vol- A subpoena may not be used to compel a civilian to travel 

untarily at no expense to the United States. outside the United States and its territories. 

Civilian employees of the Department of Defense may be A witness must be subject to United States jurisdiction to 

directed by appropriate authorities to appear as witnesses in be subject to a subpoena. Foreign nationals in a foreign country 

courts-martial as an incident of their employment. Appropriate are not subject to subpoena. Their presence may be obtained 

travel orders may be issued for this purpose. through cooperation of the host nation. 

(B) Contents. A subpoena shall state the command by which the proceeding is directed, and the title, if 

any, of the proceeding. A subpoena shall command each person to whom it is directed to attend and 

give testimony at the time and place specified therein. A subpoena may also command the person 

to whom it is directed to produce books, papers, documents or other objects designated therein at 

the proceeding or at an earlier time for inspection by the parties. 

Discussion 

A subpoena may not be used to compel a witness to appear duplicate on the official forms. See Appendix 7 for an example 

at an examination or interview before trial, but a subpoena may of a Subpoena with certificate of service (DD Form 453) and 

be used to obtain witnesses for a deposition or a court of inquiry. a Travel Order (DD Form 453-1). 

A subpoena normally is prepared, signed, and issued in 

(C) Who may issue. A subpoena may be issued by the summary court-martial or trial counsel of a special 

or general court-martial to secure witnesses or evidence for that court-martial. A subpoena may also 

be issued by the president of a court of inquiry or by an officer detailed to take a deposition to secure 

witnesses or evidence for those proceedings respectively. 

(D) Service. A subpoena may be served by the person authorized by this rule to issue it, a United States 

marshal, or any other person who is not less than 18 years of age. Service shall be made by delivering 

a copy of the subpoena to the person named and by tendering to the person named travel orders and 

fees as may be prescribed by the Secretary concerned. 

Discussion 

See Department of Defense Pay and Entitlements Manual. mileage will be delivered to the witness promptly on being 

If practicable, a subpoena should be issued in time to discharged from attendance. 

permit service at least 24 hours before the time the witness will Formal service. Formal service is advisable whenever it 

have to travel to comply with the subpoena. is anticipated that the witness will not comply voluntarily with 

Informal service. Unless formal service is advisable, the the subpoena. Appropriate fees and mileage must be paid or 

person who issued the subpoena may mail it to the witness in tendered. See Article 47. If formal service is advisable, the 

duplicate, enclosing a postage-paid envelope bearing a return person who issued the subpoena must assure timely and ecoaddress, with the request that the witness sign the acceptance nomical service. That person may do so by sewing the subpoena 

of service on the copy and return it in the envelope provided. personally when the witness is in the vicinity. When the witness 

The return envelope should be addressed to the person who is not in the vicinity, the subpoena may be sent in duplicate to 

issued the subpoena. The person who issued the subpoena should the commander of a military installation near the witness. Such 

include with it a statement to the effect that the rights of the commanders should give prompt and effective assistance, iswitness to fees and mileage will not be impaired by voluntary suing travel orders for their personnel to serve the subpoena 

compliance with the request and that a voucher for fees and when necessary. 
R.C.M. 703(e)(2)(GMiv) 

Service should ordinarily be made by a person subject to service cannot be made, the person who issued the subpoena 

the code. The duplicate copy of the subpoena must have entered must be informed promptly. A stamped, addressed envelope 

upon it proof of service as indicated on the form and must be should be provided for these purposes. 

promptly returned to the person who issued the subpoena. If 

(E) Place of service. 

(i) In general. A subpoena requiring the attendance of a witness at a deposition, court-martial, or 

court of inquiry may be sewed at any place within the United States, its Territories, Commonwealths, or 

possessions. 

-(ii) Foreign territory. In foreign territory, the attendance of civilian witnesses may be obtained in 

accordance with existing agreements or, in the absence of agreements, with principles of international law. 

(iii) Occupied territory. In occupied enemy territory, the appropriate commander may compel the 

attendance of civilian witnesses located within the occupied territory. 

(F) 	Relief. If a person subpoenaed requests relief on grounds that compliance is unreasonable or oppressive, the convening authority or, after referral, the military judge may direct that the subpoena 

be modified or withdrawn if appropriate. 

(G)Neglect or refusal to appear. 

(i) Issuance of warrant of attachment. The military judge or, if there is no military judge, the convening 

authority may, in accordance with this rule, issue a warrant of attachment to compel the attendance of a witness 

or production of documents. 

Discussion 

A warrant of attachment (DDForm 454) may be used when The different purposes of the warrant of attachment and 

necessary to compel a witness to appear or produce evidence criminal complaint under Article 47 should be borne in mind. 

under this rule. A warrant of attachment is a legal order ad- The warrant of attachment, available without the intervention 

dressed to an official directing that official to have the person of civilian judicial proceedings, has as its purpose the obtaining 

named in the order brought before a court. of the witness' presence, testimony, or documents. The criminal 

Subpoenas issued under R.C.M.703 are Federal process complaint, prosecuted through the civilian Federal courts, has 

and a person not subject to the code may be prosecuted in a as its purpose punishment for failing to comply with process 

Federal civilian court under Article 47 for failure to comply issued by military authority. It serves to vindicate the military 

with a subpoena issued in compliance with this rule and formally interest in obtaining compliance with its lawful process. 

served. 

(iij Requirements. A warrant of attachment may be issued only upon probable cause to believe that 

the witness was duly served with a subpoena, that the subpoena was issued in accordance with these rules, that 

appropriate fees and mileage were tendered to the witness, that the witness is material, that the witness refused 

or willfully neglected to appear at the time and place specified on the subpoena, and that no valid excuse 

reasonably appears for the witness' failure to appear. 

(iii) Form. A warrant of attachment shall be written. All documents in support of the warrant of 

attachment shall be attached to the warrant, together with the charge sheet and convening orders. 

(iv) Execution. A warrant of attachment may be executed by a United States marshal or such other 

person who is not less than 18 years of age as the authority issuing the warrant may direct. Only such nondeadly 

force as may be necessary to bring the witness before the court-martial or other proceeding may be used to 

execute the warrant. A witness attached under this rule shall be brought before the court-martial or proceeding 

without delay and shall testify as soon as practicable and be released. 

Discussion 

In executing a warrant of attachment, no more force than or court of inquiry may be used. 


necessary to bring the witness to the court-martial, deposition, 

R.C.M. 703(e)(2)(G)(v) 

(v) Definition. For purposes of subsection (e)(2)(G) of this rule "military judge" does not include a 

summary court-martial or the president of a special court-martial without a military judge. 

(f) Right to evidence. 

(1) In general. Each party is entitled to the production of evidence which is relevant and necessary. 

Discussion 

See Mil. R. Evid. 401 concerning relevance. case in some positive way on a matter in issue. A matter is not 

Relevant evidence is necessary when it is not cumulative in issue when it is stipulated as a fact. 

and when it would contribute to a party's presentation of the As to the discovery and introduction of classified or other 

government information, see Mil. R. Evid. 505 and 506. 

(2) Unavailable evidence. Notwithstanding subsection (f)(l) of this rule, a party is not entitled to the 

production of evidence which is destroyed, lost, or otherwise not subject to compulsory process. However, if 

such evidence is of such central importance to an issue that it is essential to a fair trial, and if there is no adequate 

substitute for such evidence, the military judge shall grant a continuance or other relief in order to attempt to 

produce the evidence or shall abate the proceedings, unless the unavailability of the evidence is the fault of or 

could have been prevented by the requesting party. 

(3) Determining what evidence will be produced. The procedures in subsection (c) of this rule shall apply 

to a determination of what evidence will be produced, except that any defense request for the production of 

evidence shall list the items of evidence to be produced and shall include a description of each item sufficient 

to show its relevance and necessity, a statement where it can be obtained, and, if known, the name, address, 

and telephone number of the custodian of the evidence. 

(4)Procedures for production of evidence. 

(A) Evidence under the control of the Government. Evidence under the control of the Government may 

be obtained by notifying the custodian of the evidence of the time, place, and date the evidence is 

required and requesting the custodian to send or deliver the evidence. 

(B) Evidence not under the control of the Government. Evidence not under the control of the Government 

may be obtained by subpoena issued in accordance with subsection (e)(2) of this rule. * 

Relief. If the person having custody of evidence requests relief on grounds that compliance with the 

subpoena or order of production is unreasonable or oppressive, the convening authority or, after 

referral, the military judge may direct that the subpoena or order of production be withdrawn or 

modified. Subject to Mil. R. Evid. 505 and 506, the military judge may direct that the evidence be 

submitted to the military judge for an in camera inspection in order to determine whether such relief 

should be granted. 

Rule 704. Immunity 

(a) Types of immunity. Two types of immunity may be granted under this rule. 

(1) Transactional immunity. A person may be granted transactional immunity from trial by court-martial 

for one or more offenses under the code. 

(2)Testimonial immunity. A person may be granted immunity from the use of testimony, statements, and 

any information directly or indirectly derived from such testimony or statements by that person in a later courtmartial. 

Discussion 

"Testimonial" immunity is also called "use" immunity. or provide other information on the basis of the privilege against 

Immunity ordinarily should be granted only when testi- self-incrimination. 

mony or other information from the person is necessary to the Testimonial immunity is preferred because it does not bar 

public interest, including the needs of good order and discipline, prosecution of the person for the offenses about which testimony 

and when the person has refused or is likely to refuse to testify or information is given under the grant of immunity. 
R.C.M. 704(c)(3) 

In any trial of a person granted testimonial immunity after any offense that was the subject of that person's testimony or 

the testimony or information is given, the Government must statements. Therefore, if it is intended to prosecute a person to 

meet a heavy burden to show that it has not used in any way whom testimonial immunity has been or will be granted for 

for the prosecution of that person the person's statements, tes- offenses about which that person may testify or make statetimony, or information derived from them. In many cases this ments, it may be necessary to try that persoqbefore the testiburden makes difficult a later prosecution of such a person for mony or statements are given. 

(b) Scope. Nothing in this rule bars: 

(1) A later court-martial for perjury, false swearing, making a false official statement, or failure to comply 

with an order to testify; or 

(2) Use in a court-martial under subsection (b)(l) of this rule of testimony or statements derived from such 

testimony or statements. 

(c) Authority to grant immunity. Only a general court-martial convening authority may grant immunity, and may 

do so only in accordance with this rule. 

Discussion 

Only general court-martial convening authorities are au- ecution altogether. Persons not authorized to grant immunity 

thorized to grant immunity. However, in some circumstances, should exercise care when dealing with accused or suspects to 

when a person testifies or makes statements pursuant to a prom- avoid inadvertently causing statements to be inadmissible or 

ise of immunity, or a similar promise, by a person with apparent prosecution to be barred. 

authority to make it, such testimony or statements and evidence A convening authority who grants immunity to a prosederived from them may be inadmissible in a later trial. Under cution witness in a court-martial may be disqualified from taking 

some circumstances a promise of immunity by someone other posttrial action in the case under some circumstances. 

than a general court-martial convening authority may bar pros- 

(1) Persons subject to the code. A general court-martial convening authority may grant immunity to any 

person subject to the code. However, a general court-martial convening authority may grant immunity to a person 

subject to the code extending to a prosecution in a United States district court only when specifically authorized 

to do so by the Attorney General of the United States or other authority designated under 18 U.S.C. § 6004. 

Discussion 

When testimony or a statement for which a person subject sought from the Attorney General. A request for such authorto the code may be granted immunity may relate to an offense ization should be forwarded through the office of the Judge 

for which that person could be prosecuted in a United States Advocate General concerned. Service regulations may provide 

district court, immunity should not be granted without prior additional guidance. Even if the Department of Justice expresses 

coordination with the Department of Justice. Ordinarily coor- no interest in the case, authorization by the Attorney General 

dination with the local United States Attorney is appropriate. for the grant of immunity may be necessary to compel the person 

Unless the Department of Justice indicates it has no interest in to testify or make a statement if such testimony or statement 

the case, authorization for the grant of immunity should be would make the person liable for a Federal civilian offense. 

(2) Persons not subject to the code. A general court-martial convening authority may grant immunity to 

persons not subject to the code only when specifically authorized to do so by the Attorney General of the United 

States or other authority designated under 18 U.S.C. Q 6004. 

Discussion 

See the discussion under subsection (c)(l) of this rule con- to the Attorney General. 


cerning forwarding a request for authorization to grant immunity 


(3) Other limitations. The authority to grant immunity under this rule may not be delegated. The authority 

to grant immunity may be limited by superior authority. 

11-79 
R.C.M. 704(d) 

Discussion 

Department of Defense Directive 1355.1 (21 July 1981) to the General Counsel of the Department of Defense for the 

provides: "A proposed grant of immunity in a case involving purpose of consultation with the Department of Justice. The 

espionage, subversion, aiding the enemy, sabotage, spying, or General Counsel shall obtain the view of other appropriate eleviolation of rules or statutes concerning classified information ments of the Department of Defense in futherance of such conor the foreign relations of the United States, shall be forwarded sultation." 

(d) Procedure. A grant of immunity shall be written and signed by the convening authority who issues it. The 

grant shall include a statement of the authority under which it is made and shall identify the matters to which it 

extends. 

Discussion 

A person who has received a valid grant of immunity from a statement on self-incrimination grounds. It does not, however, 

a proper authority may be ordered to testify. In addition, a remove other privileges against disclosure of information. See 

servicemember who has received a valid grant of immunity may Mil. R. Evid., Section V. 

be ordered to answer questions by investigators or counsel pur- An immunity order or grant must not specify the contents 

suant to that grant. See Mil. R. Evid. 301(c). A person who of the testimony it is expected the witness will give. 

refuses to testify despite a valid grant of immunity may be When immunity is granted to a prosecution witness, the 

prosecuted for such refusal. Persons subject to the code may accused must be notified in accordance with Mil. R. Evid. 

be charged under Article 134. See paragraph 108, Part 1V. A 30 1 (c)(2). 

grant of immunity removes the right to refuse to testify or make 

(e) Decision to grant immunity. Unless limited by superior competent authority, the decision whether to grant 

immunity is a matter within the sole discretion of the appropriate general court-martial convening authority. 

However, if a defense request to immunize a witness has been denied, the military judge may, upon motion by 

the defense, grant appropriate relief directing that either an appropriate convening authority grant testimonial 

immunity to a defense witness or, as to the affected charges and specifications, the proceedings against the 

accused be abated, upon findings that: 

(1) The witness' testimony would be of such central importance to the defense case that it is essential to a 

fair trial; and 

(2) The witness intends to invoke the right against self-incrimination to the extent permitted by law if called 

to testify. 

Ru!e 705. Pretrial agreements 

(a) In general. Subject to such limitations as the Secretary concerned may prescribe, an accused and the convening 

authority may enter into a pretrial agreement in accordance with this rule. 

Discussion 

The authority of convening authorities to refer cases to "Memorandum of Understanding Between the Departments of 

trial and approve pretrial agreements extends only to trials by Justice and Defense Relating to the Investigation and Prosecourts-martial. To ensure that such actions do not preclude cution of Crimes Over Which the Two Departments Have Conappropriate action by Federal civilian authorities in cases likely current Jurisdiction" has taken place prior to trial by courtto be prosecuted in the United ~tates'district courts, convening martial or approval of a pretrial agreement in cases where such 

authorities shall ensure that appropriate consultation under the consultation is required. See Appendix 3. 

(b) Nature of agreement. A pretrial agreement may include: 

(1) A promise by the accused to plead guilty to, or to enter a confessional stipulation as to one or more 

charges and specifications, and to fulfill such additional terms or conditions which may be included in the 

agreement and which are not prohibited under this rule; and 

(2) A promise by the convening authority to do one or more of the following: 
R.C.M. 705(c)(2)(E) 

(A) Refer the charges to a certain type of court-martial; 

(B) Refer a capital offense as noncapital; 

(C) Withdraw one or more charges or specifications from the court-martial; 

Discussion 

A convening authority may withdraw certain offenses from dismissal does not bar later reinstitution of the charges by the 

a court-martial and dismiss them if the accused fulfills the same or a different convening authority. Such reinstitution may 

accused's promises in the agreement. Except when jeopardy invalidate the pretrial agreement, however. If the agreement is 

has attached (see R.C.M. 907(b)(2)(C)), such withdrawal and intended to grant immunity to an accused, see R.C.M. 704. 

(D) Have the trial counsel present no evidence as to one or more specifications or portions thereof; and 

(E) Take specified action on the sentence adjudged by the court-martial. 

Discussion 

For example, the convening authority may agree to approve or part of a sentence, to defer confinement, or to mitigate certain 

no sentence in excess of a specified maximum, to suspend all forms of punishment into less severe forms. 

(c) Terms and conditions. 

(1) Prohibited terms or conditions. 

(A) Not voluntary. A term or condition in a pretrial agreement shall not be enforced if the accused did 

not freely and voluntarily agree to it. 

(B) Deprivation of certain rights. A term or condition in a pretrial agreement shall not be enforced if it 

deprives the accused of: the right to counsel; the right to due process; the right to challenge the 

jurisdiction of the court-martial; the right to a speedy trial; the right to complete sentencing proceedings; the complete and effective exercise of posttrial and appellate rights. 

Discussion 

A pretrial agreement provision which prohibits the accused may be improper. 


from making certain pretrial motions (see R.C.M. 905-907) 


(2)Permissible terms or conditions. Subject to subsection (c)(l)(A) of this rule, subsection (c)(l)(B) of this 

rule does not prohibit an accused from offering the following additional conditions with an offer to plead guilty: 

(A) A promise to enter into a stipulation of fact concerning offenses to which a plea of guilty or as to 

which a confessional stipulation will be entered; 

(B) A promise to testify as a witness in the trial of another person; 

Discussion 

See R.C.M. 704(a)(2) concerning testimonial immunity. Only a general court-martial convening authority may grant immunity. 

(C) A promise to provide restitution; 

(D) A promise to conform the accused's conduct to certain conditions of probation before action by the 

convening authority as well as during any period of suspension of the sentence, provided that the 

requirements of R.C.M. 1109 must be complied with before an alleged violation of such terms may 

relieve the convening authority of the obligation to fulfill the agreement; and 

(E) A promise to waive procedural requirements such as the Article 32 investigation, the right to trial 
R.C.M. 705(d) 

by court-martial composed of members or the right to request trial by military judge alone, or the 

opportunity to obtain the personal appearance of witnesses at sentencing proceedings. 

(d) Procedure. 

(1) Offer. An offer to plead guilty or to enter a confessional stipulation must originate with the accused and 

defense counsel, if any. 

(2) Negotiation. Upon the initiation of the defense, the convening authority, the staff judge advocate, or 

the trial counsel may negotiate the terms and conditions of a pretrial agreement with the defense. All negotiations 

shall be with defense counsel unless the accused is not represented. 

(3)Formal submission. After negotiation, if any, under subsection (d)(2) of this rule, if the accused elects 

to propose a pretrial agreement, the defense shall submit a written offer. All terms, conditions, and promises 

between the parties shall be written. The proposed agreement shall be signed by the accused and defense counsel, 

if any. If the agreement contains any specified action on the adjudged sentence, such action shall be set forth 

on a page separate from the other portions of the agreement. 

Discussion 

The first part of the agreement ordinarily contains an offer 32 investigation, this should be stated. The written agreement 

to plead guilty and a description of the offenses to which the should contain a statement by the accused that the accused enters 

offer extends. It must also contain a complete and accurate it freely and voluntarily and may contain a statement that the 

statement of any other agreed,tems or conditions. For example, accused has been advised of certain rights in connection with 

if the convening authority agrees to withdraw certain specifi- the agreement. 

cations, or if the accused agrees to waive the right to an Article 

(4)Acceptance. The convening authority may either accept or reject an offer of the accused to enter into a 

pretrial agreement. The decision is within the sole discretion of the convening authority. When the convening 

authority has accepted a pretrial agreement, the agreement shall be signed by the convening authority or by a 

person, such as the staff judge advocate or trial counsel, who has been authorized by the convening authority 

to sign. 

Discussion 

The convening authority should consult with the staff judge a pretrial agreement. 


advocate or trial counsel before acting on an offer to enter into 


(5) Withdrawal. 

(A) By accused. The accused may withdraw from a pretrial agreement at any time; however, the accused 

may withdraw a plea of guilty or a confessional stipulation entered pursuant to a pretrial agreement 

only as provided in R.C.M. 910(h) or 81 l(d), respectively. 

(B) By convening authority. The convening authority may withdraw from a pretrial agreement at any 

time before the accused begins performance of promises contained in the agreement, upon the failure 

by the accused to fulfill any material promise or condition in the agreement, when inquiry by the 

military judge discloses a disagreement as to a material term in the agreement, or if findings are set 

aside because a plea of guilty entered pursuant to the agreement is held improvident on appellate 

review. 

(e) Nondisclosure of existence of agreement. Except in a special court-martial without a military judge, no 

member of a court-martial shall be informed of the existence of a pretrial agreement. In addition, except as 

provided in Mil. R. Evid. 410, the fact that an accused offered to enter into a pretrial agreement, and any 

statements made by an accused in connection therewith, whether during negotiations or during a providence 

inquiry, shall not be otherwise disclosed to the members. 
R.C.M. 706(c)(3) 

Discussion 

See also R.C.M. 910(f) (plea agreement inquiry). 

Rule 706. Inquiry into the mental capacity or mental responsibility of the accused 

(a)Initial action. If it appears to any commander who considers the disposition of charges, or to any investigating 

officer, trial counsel, defense counsel, military judge, or member that there is reason to believe that the accused 

lacked mental responsibility for any offense charged or lacks capacity to stand trial, that fact and the basis of 

the belief or observation shall be transmitted through appropriate channels to the officer authorized to order an 

inquiry into the mental condition of the accused. The submission may be accompanied by an application for a 

mental examination under this rule. 

Discussion 

See R.C.M. 909 concerning the capacity of the accused bility of the accused. 


to stand trial and R.C.M. 916(k) concerning mental responsi- 


(b) Ordering an inquiry. 

(1) Before referral. Before referral of charges an inquiry into the mental capacity or mental responsibility 

of the accused may be ordered by the convening authority before whom the charges are pending for disposition. 

(2) After referral. After referral of charges, an inquiry into the mental capacity or mental responsibility of 

the accused may be ordered by the military judge. The convening authority may order such an inquiry after 

referral of charges but before beginning of the first session of the court-martial (including any Article 39(a) 

session) when the military judge is not reasonably available. The military judge may order a mental examination 

of the accused regardless of any earlier determination by the convening authority. 

(c) Inquiry. 

(1) By whom conducted. When a mental examination is ordered under subsection (b) of this rule, the matter 

shall be referred to a board of one or more physicians for their observation and report as to the mental capacity 

or mental responsibility, or both, of the accused. Ordinarily at least one member of the board shall be a psychiatrist. 

(2) Matters in inquiry. When a mental examination is ordered under this rule, the order shall contain the 

reasons for doubting the mental capacity or mental responsibility, or both, of the accused, or other reasons for 

requesting the examination. In addition to other requirements, the order shall require the board to make separate 

and distinct findings as to each of the following questions: 

(A) At the time of the alleged criminal conduct did the accused have a mental disease or defect? (The 

terms "mental disease or defect" do not include an abnormality manifested only by repeated criminal 

or otherwise antisocial conduct.) 

(B) 	What is the clinical psychiatric diagnosis? 

(C) 	Did the accused, at the time of the alleged criminal conduct and as a result of such mental disease 

or defect, lack substantial capacity to appreciate the criminality of the accused's conduct? -. 

(D) Did the accused, at the time of the alleged criminal conduct and as a result of such mental disease 

or defect, lack substantial capacity to conform the accused's conduct to the requirements of law? 

(E) 	Does the accused have sufficient mental capacity to understand the nature of the proceedings and to 

conduct or cooperate intelligently in the defense? 

Other appropriate questions may also be included. 

(3) Directions to board. In addition to the requirements specified in subsection (c)(2) of this rule, the order 

of the board shall specify: 
R.C.M. 706(c)(3)(A) 

(A) That upon completion of the board's investigation, a statement consisting only of the board's ultimate 

conclusions as to all questions specifid in the order shall be submitted to the officer ordering the 

examination, the accused's commanding officer, the investigating officer, if any, appointed pursuant 

to Article 32 and to all counsel in the case, the convening authority, and, after referral, to the military 

judge; 

(B) That the full report of the board may be released by the board or other medical personnel only to 

other medical personnel for medical purposes, unless otherwise authorized by the convening authority 

or, after referral of charges, by the military judge, except that a copy of the full report shall be 

furnished to the defense and, upon request, to the commanding officer of the accused; and 

(C) That neither the contents of the full report nor any matter considered by the board during its investigation shall be released by the board or other medical personnel to any person not authorized to 

receive the full report, except pursuant to an order by the military judge. 

Discussion 

Based on the report, further action in the case may be accused from the service or, subject to Mil. R. Evid. 302, the 

suspended, the charges may be dismissed by the convening charges may be tried by court-martial. 

authority, administrative action may be taken to discharge the 

(4)Additional examinations. Additional examinations may be directed under this rule at any stage of the 

proceedings as circumstances may require. 

(5) Disclosure to trial counsel. No person, other than the defense counsel, accused, or, after referral of 

charges, the military judge may disclose to the trial counsel any statement made by the accused to the board or 

any evidence derived from such statement. 

Discussion 

See Mil. R. Evid. 302. 

Rule 707. Speedy trial 

(a) In general. The accused shall be brought to trial within 120 days after notice to the accused of preferral of 

charges under R.C.M. 308 or the imposition of restraint under R.C.M. 304, whichever is earlier. 

Discussion 

Delay from the time of an offense to preferral of charges and may result in dismissal of the charges or other relief. Ofor the imposition of pretrial restraint is not considered for speedy fenses ordinarily should be disposed of promptly to serve the 

trial purposes. However, see Article 43 (statute of limitations). interests of good order and discipline. See R.C.M. 301; 307. 

In some circumstances such delay may prejudice the accused 

(b) Accountability. 

(1) In general. The date on which the accused is notified of the preferral of charges or the date on which 

pretrial restraint is imposed shall not count for purpose of computing the time under subsection (a) of this rule. 

The date on which the accused is brought to trial shall count. 

(2)Inception. If charges are dismissed, if a mistrial is granted, or-when no charges are pending-if the 

accused is released from pretrial restraint for a significant period, the time under this rule shall run only from 

the date on which charges or restraint are reinstituted. 

(3) Termination. An accused is brought to trial within the meaning of this rule when: 

(A) A plea of guilty is entered to an offense; or 

(B) Presentation to the factfinder of evidence on the merits begins. 
R.C.M. 707(d) 

(4) Multiple charges. When charges are preferred at different times, the inception for each shall be determined 

from the date on which the accused was notified of preferral or on which restraint was imposed on the basis of 

that offense. 

(c) Exclusions. The following periods shall be excluded when determining whether the period in subsection (a) 

of this rule has run- 

(1) Any periods of delay resulting from other proceedings in the case, including: 

(A) Any examination into the mental capacity or responsibility of the accused; 

(B) 	Any hearing on the capacity of the accused to stand trial and any time during which the accused 

lacks capacity to stand trial; 

(C) Any session on pretrial motions; 

(D) Any appeal filed under R.C.M. 908 unless it is determined that the appeal was filed solely for the 

purpose of delay with the knowledge that it was totally frivolous and without merit; and 

(E) 	Any petition for extraordinary relief by either party. 

(2) Any period of delay resulting from unavailability of a military judge when the unavailability results 

from extraordinary circumstances. 

(3) Any period of delay resulting from a delay in a proceeding or a continuance in the court-martial granted 

at the request or with the consent of the defense. 

(4) Any period of delay resulting from a failure of the defense to provide notice, make a request, or submit 

any matter in a timely manner as otherwise required by this Manual. 

(5) Any period of delay resulting from a delay in the Article 32 hearing or a continuance in the court-martial 

at the request of the prosecution if: 

(A) The delay or continuance is granted because of unavailability of substantial evidence relevant and 

necessary to the prosecution's case when the Government has exercised due diligence to obtain such 

evidence and there exists at the time of the delay grounds to believe that such evidence would be 

available within a reasonable time; or 

(B) 	The continuance is granted to allow the trial counsel additional time to prepare the prosecution's 

case and additional time is justified because of the exceptional circumstances of the case. 

(6) Any period of delay resulting from the absence or unavailability of the accused. 

(7) Any reasonable period of delay when the accused is joined for trial with a coaccused as to whom the 

time for trial has not yet run and there is no good cause for not granting a severance. 

(8) Any other period of delay for good cause, including unusual operational requirements and military 

exigencies. 

(d) Arrest or confinement. When the accused is in pretrial arrest or confinement under R.C.M. 304 or 305, 

immediate steps shall be taken to bring the accused to trial. No accused shall be held in pretrial arrest or 

confinement in excess of 90 days for the same or related charges. Except for any periods under subsection (c)(7) 

of this rule, the periods described in subsection (c) of this rule shall be excluded for the purpose of computing 

when 90 days has run. The military judge may, upon a showing of extraordinary circumstances, extend the 

period by 10 days. 

Discussion 

Ordinarily priority should be given to trial of persons in been violated. In such cases, unless the prosecution meets a 

arrest or confinement. heavy burden to show that the Government has exercised due 

In addition to the requirements of this rule, judicial de- diligence, the charges will be dismissed. Under some circumcisions have held that when an accused has been in pretrial stances, this standard could result in dismissal of charges, deconfinement for more than 90 days (not counting certain de- spite compliance with this rule. 

ductible periods, see discussion below) a presumption arises Periods of delay specifically requested or caused by the 

that the accused's right to a speedy trial under Article 10 has defense and reasonable delays for examinations into the mental 
R.C.M. 707(e) 

capacity or responsibility ordinarily are not included in the 90- When an accused in pretrial confinement demands imday presumption. Other periods which are deductible under mediate trial, the Government must bring the accused to trial 

R.C.M.707(c) are charged to the Government for purposes of promptly or show adequate cause to excuse the delay. 


the presumption. 


(e) Remedy. Failure to comply with this rule shall result in dismissal of the affected charges upon timely motion 

by the accused. 
CHAPTER VIII. TRIAL PROCEDURE GENERALLY 

Rule 801. Military judge's responsibilities; other matters 

(a) Respot~sibilitiesof military judge. The military judge is the presiding officer in a court-martial. 

Discussion 

The military judge is responsible for ensuring that court- otherwise specified, the president of a special court-martial 

martial proceedings are conducted in a fair and orderly manner, without a military judge has the same authority and responsiwithout unnecessary delay or waste of time or resources. Unless bility as a military judge. See R.C.M. 502(b)(2). 

The military judge shall: 

(1) Determine the time and uniform for each session of a court-martial; 

Discussion 

The military judge should consult with counsel concerning priate. Subject to R.C.M. 504(d)(l), the military judge may 

the scheduling of sessions and the uniform to be worn. The also determine the place of trial. See also R.C.M. 906(b)(l I). 

military judge recesses or adjourns the court-martial as appro- 

(2) Ensure that the dignity and decorum of the proceedings are maintained; 

Discussion 

See also R.C.M. 804 and 806. Courts-martial should be detached deliberation and determination of the issues presented 

conducted in an atmosphere which is conducive to calm and and which reflects the seriousness of the proceedings. 

(3) Subject to the code and this Manual, exercise reasonable control over the proceedings to promote the 

purposes of these rules and this Manual; 

Discussion 

See R.C.M. 102. The military judge may. within the the parties may argue on a motion or objection; and the time 

framework established by the code and this Manual, prescribe limits for argument (see R.C.M. 905; 919; 1001(g)). 

the manner and order in which the proceedings may take place. The military judge should prevent unnecessary waste of 

Thus, the military judge may determine: when, and in what time and promote the ascertainment of truth, but must avoid 

order, motions will be litigated (see R.C.M. 905); the manner undue interference with the parties' presentations or the apin which voir dire will be conducted and challenges made (see pearance of partiality. The parties are entitled to a reasonable 

R.C.M. 902(d) and 912); the order in which witnesses may opportunity to properly present and support their contentions 

testify (see R.C.M. 913; Mil. R. Evid. 61 1); the order in which on any relevant matter. 

(4) Subject to subsection (e) of this rule, rule on all interlocutory questions and all questions of law raised 

during the court-martial; and 

(5) Instruct the members on questions of law and procedure which may arise. 

Discussion 

The military judge instructs the members concerning find- priate. See R.C.M. 913. Other instructions (for example, inings (see R.C.M. 920) and sentence (see R.C.M. 1005). and structions on the limited purpose for which evidence has been 

when otherwise appropriate. For example, preliminary instruc- introduced, see Mil. R. Evid. 105) may be given whenever the 

tions to the members concerning their duties and the duties of need arises. 

other trial participants and other matters are normally appro- 
R.C.M. 801(b) 

(b) Rules of court; contempt. The military judge may: 

(1) Subject to R.C.M. 108, promulgate and enforce rules of court. 

(2) Subject to R.C.M. 809, exercise contempt power. 

(c) Obtaining evidence. The court-martial may act to obtain evidence in addition to that presented by the parties. 

The right of the members to have additional evidence obtained is subject to an interlocutory ruling by the military 

judge. 

Discussion 

The members may request and the military judge may certain lines to discover and produce additional evidence. See 

require that a witness be recalled, or that a new witness be also Mil. R. Evid. 614. In taking such action, the court-martial 

summoned, or other evidence produced. The members or mil- must not depart from an impartial role. 

itary judge may direct trial counsel to make an inquiry along 

(d) Uncharged offenses. If during the trial there is evidence that the accused may be guilty of an untried offense 

not alleged in any specification before the court-martial, the court-martial shall proceed with the trial of the 

offense charged. 

Discussion 

A report of the matter may be made to the convening should sit in any later trial. Such a member would ordinarily 

authority after trial. If charges are preferred for an offense be subject to a challenge for cause. See R.C.M. 912. See also 

indicated by the evidence referred to in this subsection, no Mi1.R. Evid. 105 concerning instructing the members on evimember of the court-martial who participated in the first trial dence of uncharged misconduct. 

(e) Interlocutory questions and questions of law. For purposes of this subsection "military judge" does not 

include the president of a special court-martial without a military judge. 

(1) Rulings by the military judge. 

(A) Finality of rulings. Any ruling by the military judge upon a question of law, including a motion for 

a finding of not guilty, or upon any interlocutory question is final. 

(B) Changing a ruling. The military judge may change a ruling made by that or another military judge 

in the case except a previously granted motion for a finding of not guilty, at any time during the 

trial. 

(C) Article 39(a) sessions. When required by this Manual or otherwise deemed appropriate by the military 

judge, interlocutory questions or questions of law shall be presented and decided at sessions held 

without members under R.C.M. 803. 

Discussion 

Sessions without members are appropriate for interlocutory extent possible consistent with the orderly, expeditious progress 

questions, questions of law, and instructions. See also Mil. R. of the proceedings. 

Evid. 103; 304; 311; 321. Such sessions should be used to the 

(2) Rulings by the president of a special court-martial without a military judge. 

(A) Questions of law. Any ruling by the president of a special court-martial without a military judge on 

any question of law other than a motion for a finding of not guilty is final. 
R.C.M. 801(e)(5) 

(B) Questions of fact. Any ruling by the president of a special court-martial without a military judge on 

any interlocutory question of fact, including a factual issue of mental capacity of the accused, or on 

a motion for a finding of not guilty, is final unless objected to by a member. 

(C) Changing a ruling. The president of a special court-martial without a military judge may change a 

ruling made by that or another president in the case except a previously granted motion for a finding 

of not guilty, at any time during the trial. 

(D) Presence of members. Except as provided in R.C.M. 505 and 912, all members will be present at 

all sessions of a special court-martial without a military judge, including sessions at which questions 

of law or interlocutory questions are litigated. However, the president of a special court-martial 

without a military judge may examine an offered item of real or documentary evidence before ruling 

on its admissibility without exposing it to other members. 

(3) Procedures for rulings by the president of a special court-martial without a military judge which are 

subject to objection by a member. 

(A) Determination. The president of a special court-martial without a military judge shall determine 

whether a ruling is subject to objection. 

(B) Instructions. When a ruling by the president of a special court-martial without a military judge is 

subject to objection, the president shall so advise the members and shall give such instructions on 

the issue as may be necessary to enable the members to understand the issue and the legal standards 

by which they will determine it if objection is made. 

(C) 	Voting. When a member objects to a ruling by the president of a special court-martial without a 

military judge which is subject to objection, the court-martial shall be closed, and the members shall 

vote orally, beginning with the junior in rank, and the question shall be decided by a majority vote. 

A tie vote on a motion for a finding of not guilty is a determination against the accused. A tie vote 

on any other question is a determination in favor of the accused. 

(D) Consultation. The president of a special court-martial without a military judge may close the courtmartial and consult with other members before ruling on a matter, when such ruling is subject to the 

objection of any member. 

(4)Standard of proof. Questions of fact in an interlocutory question shall be determined by a preponderance 

of the evidence, unless otherwise stated in this Manual. In the absence of a rule in this Manual assigning the 

burden of persuasion, the party making the motion or raising the objection shall bear the burden of persuasion. 

Discussion 

A ruling on an interlocutory question should be preceded may vary with the issue. Some issues may be raised by a timely 

by any necessary inquiry into the pertinent facts and law. For motion or objection. See, for example, Mil. R. Evid. 304(e). 

example, the party making the objection, motion, or request Others may not be raised until the defense has made an offer 

may be required to furnish evidence or legal authority in support of proof or presented evidence in support of its position. See, 

of the contention. An interlocutory issue may have a different for example, Mil. R. Evid. 31 1(g)(2). The rules in this Manual 

standard of proof. See, for example, Mil. R. Evid. 314(e)(5), and relevant decisions should be consulted when a question 

which requires consent for a search to be proved by clear and arises as to whether an issue is raised, as well as which side 

convincing evidence. has the burden of persuasion. The military judge or president 

Most of the common motions are discussed in specific of a special court-martial may require a party to clarify a motion 

rules in this Manual, and the burden of persuasion is assigned or objection or to make an offer of proof, regardless of the 

therein. The prosecution usually bears the burden of persuasion burden of persuasion, when it appears that the motion or ob- 

(see Mil. R. Evid. 304(e); 31 1(e); see also R.C.M. 905 through jection is vague, inapposite, irrelevant, or spurious. 

907) once an issue has been raised. What "raises" an issue 

(5) Scope. Subsection (e) of this rule applies to the disposition of questions of law and interlocutory questions 

arising during trial except the question whether a challenge should be sustained. 

Discussion 

Questions of law and interlocutory questions include all issues which arise during trial other than the findings (that is, 
R.C.M. 801(f) 

guilty or not guilty), sentence, and administrative matters such 

as declaring recesses and adjournments. A question may be 

both interlocutory and a question of law. Challenges are specifically covered in R.C.M. 902 and 912. 

Questions of the applicability of a rule of law to an undisputed set of facts are normally questions of law. Similarly. 

the legality of an act is normally a question of law. For example. 

the legality of an order when disobedience of an order is charged. 

the legality of restraint when there is a prosecution for breach 

of arrest, or the sufficiency of warnings before interrogation 

are normally questions of law. It is possible. however. for such 

questions to be decided solely upon some factual issue. in which 

case they would be questions of fact. For example. the question 

of what warnings, if any, were given by an interrogator to a 

suspect would be a factual question. 

A question is interlocutory unless the ruling on it would 

finally decide whether the accused is guilty. Questions which 

may determine the ultimate issue of guilt are not interlocutory. 

An issue may arise as both an interlocutory question and a 

question which may determine the ultimate issue of guilt. An 

issue is not purely interlocutory if an accused raises a defense 

or objection and the disputed facts involved determine the ultimate question of guilt. For example. if during a trial for desertion the accused moves to dismiss for lack of jurisdiction 

and presents some evidence that the: accused is not a member 

of an armed force. the accused's status as a military person may 

determine the ultimate question of guilt because status is an 

element of the offense. If the motion is denied, the disputed 

facts must be resolved by each member in deliberation upon 

the findings. (The accused's status as a servicemember would 

have to be proved by a preponderance of the evidence to uphold 

jurisdiction. see R.C.M. 907. but beyond a reasonable doubt 

to permit a finding of guilty.) If, on the other hand, the accused 

was charged with larceny and presented the same evidence as 

to military status. the evidence would bear only upon amenability to trial and the issue would be disposed of solely as an 

interlocutory question. 

Interlocutory questions may be questions of fact or questions of law. This distinction is important because the president 

of a special court-martial without a military judge rules finally 

on interlocutory questions of law, but not on interlocutory questions of fact. On interlocutory questions of fact the president 

of a special court-martial without a military judge rules subject 

to the objection of any other member. On mixed questions of 

fact and law, rulings by the president are subject to objection 

by any member to the extent that the issue of fact can be isolated 

and considered separately. 

(f) Rulings on record. All sessions involving rulings or instructions made or given by the military judge or the 

president of a special court-martial without a military judge shall be made a part of the record. All rulings and 

instructions shall be made or given in open session in the presence of the parties and the members, except as 

otherwise may be determined in the discretion of the military judge. For purposes of this subsection [R.C.M. 

801(f)] "military judge" does not include the president of a special court-martial without a military judge. 

Discussion 

See R.C.M. 808 and 1103 concerning preparation of the record of trial. 

(g) Effect of failure to raise defenses or objections. Failure by a party to raise defenses or objections or to make 

requests or motions which must be made at the time set by this Manual or by the military judge under authority 

of this Manual, or prior to any extension thereof made by the military judge, shall constitute waiver thereof, but 

the military judge for good cause shown may grant relief from the waiver. 

Rule 802. Conferences 

(a) In general. After referral, the military judge may, upon request of any party or sua sponte, order one or 

more conferences with the parties to consider such matters as will promote a fair and expeditious trial. 

Discussion 

Conferences between the military judge and counsel may 

be held when necessary before or during trial. The purpose of 

such conference is to inform the military judge of anticipated 

issues and to expeditiously resolve matters on which the parties 

can agree, not to litigate or decide contested issues. See subsection (c) below. No party may be compelled to resolve any 

matter at a conference. 

A conference may be appropriate in order to resolve scheduling difficulties, so that witnesses and members are not unnecessarily inconvenienced. Matters which will ultimately be 

in the military judge's discretion, such as conduct of voir dire, 

seating arrangements in the courtroom. or procedures when 

there are multiple accused may be resolved at a conference. 

Conferences may be used to advise the military judge of issues 

or problems. such as unusual motions or objections, which are 

likely to arise during trial. 

Occasionally it may be appropriate to resolve certain issues. in addition to routine or administrative matters, if this can 

be done with the consent of the parties. For example, a request 

for a witness which, if litigated and approved at trial, would 

delay the proceedings and cause expense or inconvenience, 

might be resolved at a conference. Note, however, that this 

could only be done by an agreement of the parties and not by 

a binding ruling of the military judge. Such a resolution must 

be included in the record. See subsection (b) below. 

A military judge may not participate in negotiations relating to pleas. See R.C.M. 705 and Mil. R. Evid. 410. 

No place or method is prescribed for conducting a conference. A conference may be conducted by radio or telephone. 

R.C.M. 804(b)(l) 

(1) Is voluntarily absent after arraignment (whether or not informed by the military judge of the obligation 

to remain during the trial); or 

(2) After being warned by the military judge that disruptive conduct will cause the accused to be removed 

from the courtroom, persists in conduct which is such as to justify exclusion from the courtroom. 

Discussion 

Express waiver. The accused may expressly waive the right 

to be present at trial proceedings. There is no right to be absent, 

however, and the accused may be required to be present over 

objection. Thus, an accused cannot frustrate efforts to identify 

the accused at trial by waiving the right to be present. The right 

to be present is so fundamental, and the Government's interest 

in the attendance of the accused so substantial, that the accused 

should be permitted to waive the right to be present only for 

good cause, and only after the military judge explains to the 

accused the right, and the consequences of foregoing it, and 

secures the accused's personal consent to proceeding without 

the accused. 

Voluntary absence. In any case the accused may forfeit 

the right to be present by being voluntarily absent after arraignment. 

"Voluntary absence" means voluntary absence from trial. 

For an absence from court-martial proceedings to be voluntary, 

the accused must have known of the scheduled proceedings and 

intentionally missed them. For example, although an accused 

servicemember might voluntarily be absent without authority, 

this would not justify proceeding with a court-martial in the 

accused's absence unless the accused was aware that the courtmartial would be held during the period of the absence. 

An accused who is in military custody or otherwise subject 

to military control at the time of trial or other proceeding may 

not properly be absent from the trial or proceeding without 

securing the permission of the military judge on the record. 

The prosecution has the burden to establish by a preponderance of the evidence that the accused's absence from trial 

is voluntary. Voluntariness may not be presumed, but it may 

be inferred, depending on the circumstances. For example, it 

may be inferred, in the absence of evidence to the contrary, 

that an accused who was present when the trial recessed and 

who knew when the proceedings were scheduled to resume, but 

who nonetheless is not present when court reconvenes at the 

designated time, is absent voluntarily. 

Where there is some evidence that an accused who is absent 

for a hearing or trial may lack mental capacity to stand trial, 

capacity to voluntarily waive the right to be present for trial 

must be shown. See R.C.M. 909. 

Subsection (1) authorizes but does not require trial to proceed in the absence of the accused upon the accused's voluntary 

(c) Appearance and security of accused. 

absence. When an accused is absent from trial after arraignment, 

a continuance or a recess may be appropriate, depending on all 

the circumstances. 

Removal for disruption. Trial may proceed without the 

presence of an accused who has disrupted the proceedings, but 

only after at least one warning by the military judge that such 

behavior may result in removal from the courtroom. In order 

to justify removal from the proceedings, the accused's behavior 

should be of such a nature as to materially interfere with the 

conduct of the proceedings. 

The military judge should consider alternatives to removal 

of a disruptive accused. Such alternatives include physical restraint (such as binding, shackling, and gagging) of the accused, 

or physically segregating the accused in the courtroom. Such 

alternatives need not be tried before removing a disruptive accused under subsection (2).Removal may be preferable to such 

an alternative as binding and gagging, which can be an affront 

to the dignity and decorum of the proceedings. 

Disruptive behavior of the accused may also constitute 

contempt. See R.C.M. 809. When the accused is removed from 

the courtroom for disruptive behavior, the military judge should- 

(A) 	 Afford the accused and defense counsel 

ample opportunity to consult throughout the 

proceedings. To this end, the accused should 

be held or otherwise required to remain in 

the vicinity of the trial, and frequent recesses permitted to allow counsel to confer 

with the accused. 

(B) 	 Take such additional steps as may be reasonably practicable to enable the accused 

to be informed about the proceedings. Although not required, technological aids, such 

as closed-circuit television or audio transmissions, may be used for this purpose. 

(C) Afford the accused a continuing opportunity to return to the courtroom upon assurance of good behavior. To this end, the 

accused should be brought to the courtroom 

at appropriate intervals, and offered the opportunity to remain upon good behavior. 

(D) 	 Ensure that the reasons for removal appear 

in the record. 

(1) Appearance. The accused shall be properly attired in the uniform or dress prescribed by the military 

judge. An accused servicemember shall wear the insignia of grade and may wear any decorations, emblems, or 

ribbons to which entitled. The accused and defense counsel are responsible for ensuring 'that the accused is 

properly attired; however, upon request, the accused's commander shall render such assistance as may be 

reasonably necessary to ensure that the accused is properly attired. 

Discussion 

This subsection recognizes the right, as well as the obli- present a proper military appearance before a court-martial may 

gation, of an accused servicemember to present a good military be compelled to do so. 

appearance at trial. An accused servicemember who refuses to 

.- -
R.C.M. 805(d)(2) 

(2) Custody. Responsibility for maintaining custody or control of an accused before and during trial may 

be assigned, subject to R.C.M. 304 and 305, and subsection (c)(3) of this rule, under such regulations as the 

Secretary concerned may prescribe. 

(3) Restraint. Physical restraint shall not be imposed on the accused during open sessions of the courtmartial unless prescribed by the military judge. 

Rule 805. Presence of military judge, members, and counsel 

(a) Military judge. No court-martial proceeding, except the deliberations of the members, may take place in the 

absence of the military judge, if detailed. 

(b) Members. Unless trial is by military judge alone pursuant to a request by the accused, no court-martial 

proceeding may take place in the absence of any detailed member except: Article 39(a) sessions under R.C.M. 

803; examination of members under R.C.M. 91 1(d); when the member has been excused under R.C.M. 505 or 

91 l(f); or as otherwise provided in R.C.M. 1102. No general court-martial proceeding requiring the presence 

of members may be conducted unless at least 5 members are present and, except as provided in R.C.M. 91 l(h), 

no special court-martial proceeding requiring the presence of members may be conducted unless at least 3 

members are present. Except as provided in R.C.M. 503(b), when an enlisted accused has requested enlisted 

members, no proceeding requiring the presence of members may be conducted unless at least one-third of the 

members actually sitting on the court-martial are enlisted persons. 

(c) Counsel. As long as at least one qualified counsel for each party is present, other counsel for each party may 

be absent from a court-martial session. An assistant counsel who lacks the qualifications necessary to serve as 

counsel for a party may not act at a session in the absence of such qualified counsel. 

Discussion 

See R.C.M. 504(d) concerning qualifications of counsel. finds that, under the circumstances, a continuance is not warOrdinarily, no court-martial proceeding should take place ranted and that the accused's right to be adequately represented 

if any defense or assistant defense counsel is absent unless the would not be impaired. 

accused expressly consents to the absence. The military judge See R.C.M. 502(d)(6) and 505(d)(2) concerning withmay, however, proceed in the absence of one or more defense drawal or substitution of counsel. See R.C.M. 506(d) concerncounsel, without the consent of the accused, if the military judge ing the right of the accused to proceed without counsel. 

(d) Effect of replacement of member or military judge. 

(1) Members. When after the presentation of evidence on the merits has begun, a new member is detailed 

under R.C.M. 505(c)(2)(B), trial may not proceed unless the testimony and evidence previously admitted on the 

merits, if recorded verbatim, is read to the new member, or, if not recorded verbatim, and in the absence of a 

stipulation as to such testimony and evidence, the trial proceeds as if no evidence has been presented. 

Discussion 

When a new member is detailed, the military judge should When the court-martial has been reduced below a quorum, 

give such instructions as may be appropriate. See also R.C.M. a mistrial may be appropriate. See R.C.M. 915. 

912 concerning voir dire and challenges. 

(2) Military judge. When, after the presentation of evidence on the merits has begun in trial before military 

judge alone, a new military judge is detailed under R.C.M. 505(e)(2) trial may not proceed unless the accused 

requests, and the military judge approves, trial by military judge alone, and a verbatim record of the testimony 

and evidence or a stipulation thereof is read to the military judge, or the trial proceeds as if no evidence had 

been presented. 
R.C.M. 806 

Rule 806. Public trial 

(a) In general. Except as otherwise provided in this rule, courts-martial shall be open to the public. For purposes 

of this rule, "public" includes members of both the military and civilian communities. 

Discussion 

Because of the requirement for public trials, courts-martial 

must be conducted in facilities which can accomodate a reasonable number of spectators. Military exigencies may occasionally make attendance at courts-martial difficult or 

impracticable, as, for example, when a court-martial is conducted on a ship at sea or in a unit in a combat zone. This does 

not violate this rule. However, such exigencies should not be 

manipulated to prevent attendance at a court-martial. The requirements of this rule may be met even though only servicemembers are able to attend a court-martial. Although not required, 

sewicemembers should be encouraged to attend courts-martial. 

When public access to a court-martial is limited for some 

reason, including lack of space, special care must be taken to 

avoid arbitrary exclusion of specific groups or persons. This 

may include allocating a reasonable number of seats to members 

of the press and to relatives of the accused, and establishing 

procedures for entering and exiting from the courtroom. See 

also subsection (b) below. There is no requirement that there 

actually be spectators at a court-martial. 

The fact that a trial is conducted with members does not 

make it a public trial. 

(b) Control of spectators. In order to maintain the dignity and decorum of the proceedings or for other good 

cause, the military judge may reasonably limit the number of spectators in, and the means of access to, the 

courtroom, exclude specific persons from the courtroom, and close a session; however, a session may be closed 

over the objection of the accused only when expressly authorized by another provision of this Manual. 

Discussion 

The military judge is responsible for protecting both the 

accused's right to and the public's interest in a public trial. The 

military judge must also ensure that the dignity and decorum 

of the proceedings are maintained and that the other rights and 

interests of the parties and society are protected. Public access 

to a session may be limited, and certain persons excluded from 

the courtroom, and, under unusual circumstances, a session may 

be closed. 

A court-martial session is "closed" when no member of 

the public is permitted to attend. A court-martial is not "closed" 

merely because the exclusion of certain individuals results in 

there being no spectators present, so long as the exclusion is 

not so broad as to effectively bar everyone who might attend 

the sessions and is for a proper purpose. Note, however, that 

exclusion of specific individuals, if unreasonable under the circumstances, may violate the accused's right to a public trial, 

even though other spectators remain. 

Whenever a session is closed, or some of the public is 

excluded, closure or exclusion must be limited in time and scope 

to the minimum necessary to achieve the purpose for which it 

is authorized. Prevention of overcrowding or noise may justify 

limiting access to the courtroom. Disruptive or distracting appearance or conduct may justify excluding certain spectators. 

Certain spectators may be excluded when necessary to protect 

witnesses from harm or intimidation. Access may be reduced 

when no other means is available to relieve inability to testify 

due to embarrassment or extreme nervousness. 

Under some circumstances, it may be necessary to conduct 

an evidentiary hearing to justify exclusion of some spectators 

(for example, where harm to or intimidation of a witness is the 

reason for the exclusion). 

A session may be closed without the consent of the accused 

only under Mil. R. Evid. 412(c), 505(i) and (j), or 506(i). 

Witnesses will ordinarily be excluded from the courtroom 

so that they cannot hear the testimony of other witnesses. See 

Mil. R. Evid. 615. In addition, witnesses may be instructed not 

to discuss their testimony or prospective testimony with anyone 

except counsel, counsel's agent, or the accused in the case. 

The accused may waive the right to a public trial. The fact 

that the prosecution and defense jointly seek to have some 

sessions closed does not, however, automatically justify closure, for the public has an interest in attending courts-martial. 

Opening courts-martial to public scrutiny reduces the chance 

of arbitrary or capricious decisions and enhances public confidence in the court-martial process. Absent an overriding interest articulated in findings, a court-martial must be open to 

the public. 

The most likely reason for a defense request to close courtmartial proceedings is to minimize the potentially adverse effect 

of publicity on the trial. Thus, for example, a pretrial Article 

39(a) hearing at which the admissibility of a confession will be 

litigated may, under some circumstances, be closed in order to 

prevent disclosure to the public (and hence to potential members) of the very evidence that may be excluded. When such 

publicity may be a problem a session should be closed only as 

a last resort. 

There are other methods of protecting the proceeaings from 

harmful effects of publicity, including a thorough voir dire (see 

R.C.M. 912), and, if necessary, a continuance to allow the 

harmful effects of publicity to dissipate. See R.C.M. 906(b)(l). 

Other methods whch may occasionally be appropriate and which 

are usually preferable to closing a session include: directing 

members not to read, listen to, or watch any accounts concerning the case; directing counsel, witnesses, and other personnel connected with the case not to discuss the case with 

certain persons (see R.C.M. 801); and selecting members from 

recent arrivals in the command, or from outside the immediate 

area (see R.C.M. 503(a)(3)). In more extreme cases, the place 

of trial may be changed (see R.C.M. 906(b)(ll)) or members 

may be sequestered. 

Occasionally the defense and prosecution may agree to 

request a closed session to enable a witness to testify without 

fear of intimidation or acute embarrassment, or to testify about 
R.C.M. 807(b)(2) 

a matter which, while not classified, is of a sensitive or private and weigh them against the public's interest in attending courtsnature. Closure may be appropriate in such cases, but the mil- martial. Excluding only part of the public may be more approitary judge must carefully examine the reasons for the request priate in some cases. 

(c) Photography and broadcasting prohibited. Video and audio recording and the taking of photographs-except 

for the purpose of preparing the record of trial-in the courtroom during the proceedings and radio or television 

broadcasting of proceedings from the courtroom shall not be permitted. However, the military judge may, as a 

matter of discretion permit contemporaneous closed-circuit video or audio transmission to permit viewing or 

hearing by an accused removed under R.C.M. 804 or by spectators when courtroom facilities are inadequate to 

accommodate a reasonable number of spectators. 

Rule 807. Oaths 

(a) Definition. "Oath" includes "affirmation." 

Discussion 

An affirmation is the same,as an oath, except in an affirmation the words "so help you God" are omitted. 

(b) Oaths in courts-martial. 

(1) Who must be sworn. 

(A) Court-martial personnel. The military judge, members of a general or special court-martial, trial 

counsel, assistant trial counsel, defense counsel, associate defense counsel, assistant defense counsel, 

reporter, interpreter, and escort shall take an oath to perform their duties faithfully. For purposes of 

this rule, "defense counsel," "associate defense counsel," and "assistant defense counsel," include 

detailed and individual military and civilian counsel. 

Discussion 

Article 42(a) provides that regulations of the Secretary regulations may provide for the administration of an oath on a 

concerned shall prescribe: the form of the oath; the time and one-time basis. See also R.C.M. 813 and 901 concerning the 

place of the taking thereof; the manner of recording it; and point in the proceedings at which it is ordinarily determined 

whether the oath shall be taken for all cases in which the duties whether the required oaths have been taken or are then adminare to be performed or in each case separately. In the case of istered. 

certified legal personnel (Article 26(b); Article 27(b)) these 

(B) Witnesses. Each witness before a court-martial shall be examined on oath. 

Discussion 

See R.C.M. 307 concerning the requirement for an oath An accused making an unsworn statement is not a "witin preferral of charges. See R.C.M. 405 and 702 concerning ness." See R.C.M. 1001(c)(2)(C). 

the requirements for an oath in Article 32 investigations and 

depositions. 

(2) Procedure for administering oaths. Any procedure which appeals to the conscience of the person to 

whom the oath is administered and which binds that person to speak the truth, or, in the case of one other than 

a witness, properly to perform certain duties, is sufficient. 

Discussion 

When the oath is administered in a session to the military Unless otherwise prescribed by the Secretary concerned 

judge, members, or any counsel, all persons in the courtroom the forms below may be used, as appropriate, to administer an 

should stand. In those rare circumstances in which the trial oath. 

counsel testifies as a witness, the military judge administers the (A) Oathfor military judge. When the military 

oath. judge is not previously sworn, the trial 
R.C.M. 808 

counsel will administer the following oath porter of a court-martial who has not been 

to the military judge: previously sworn: - ~ 

"Do you (swear) (affirm) that you will faithfully and 

impartially perform, according to your conscience and the laws 

applicable to trial by court-martial, all the duties incumbent 

upon you as military judge of this court-martial (, so help you 

God)?" 

(B) 	Oarh for members. The following oath, as 

appropriate, will be administered to the 

members by the trial counsel: 

"Do you (swear) (affirm) that you will answer truthfully the questions concerning whether you should serve as a 

member of this court-martial; that you will faithfully and impartially try, according to the evidence, your conscience, and 

the laws applicable to trial by court-martial, the case of the 

accused now before this court; and that you will not disclose 

or discover the vote or opinion of any particular member of the 

court (upon a challenge or) upon the findinss or sentence unless 

required to do so in due course of law (, so help you God)?" 

(C) 	 Oaths for coutzsel. When counsel for either 

side, including any associate or assistant, 

is not previously sworn the following oath, 

as appropriate, will be administered by the 

military judge: 

"Do you (swear) (affirm) that you will faithfully perform all the duties of (trial) (assistant trial) (defense) (associate 

defense) (assistant defense) counsel in the case now in hearing 

(, so help you God)?" 

(D) 	 Oarh for reporter. The trial counsel will 

administer the following oath to every reRule 808. Record of trial 

"Do you (swear) (affirm) that you will faithfully perform the duties of reporter to this court-martial (, so help you 

God)?" 

(E) 	 Oorh for interpreter. The trial counsel or 

the summary court-martial shall administer 

the following oath to every interpreter in 

the trial of any case before a court-martial: 

"Do you (swear) (affirm) that in the case now in 

hearing you will interpret truly the testimony you are called 

upon to interpret (, so help you God)?" 

(F) 	 Oath for wittlesses. The trial counsel or the 

summary court-martial will administer the 

following oath to each witness before the 

witness first testifies in a case: 

"Do you (swear) (affirm) that the evidence you shall 

give in the case now in hearing shall be the truth, the whole 

truth, and nothing but the truth (,so help you God)?" 

(G) 	 Oath for escort. The escort on views or 

inspections by the court-martial will, before serving, take the following oath, which 

will be administered by the trial counsel: 

"Do you (swear) (affirm) that you will escort the 

court-martial and will well and truly point out to them (the place 

in which the offense charged in this case is alledged to have 

been committed) ( ); and that you will not 

speak to the members concerning (the alleged offense) 

( ), except to describe (the place aforesaid) 

( ) (,so help you God)?" 

See Article 136 concerning persons authorized to administer oaths. 

The trial counsel of a general or special court-martial shall take such action as may be necessary to ensure 

that a record which will meet the requirements of R.C.M. 1103 can be prepared. 

Discussion 

Except in a special court-martial not authorized to adjudge 

a bad-conduct discharge (that is, when no qualified reporter is 

detailed or, absent exigency, military judge is detailed), the 

trial counsel should ensure that a qualified court reporter is 

detailed to the court-martial. Trial counsel should also ensure 

that all exhibits and other documents relating to the case are 

properly maintained for later inclusion in the record. See also 

R.C.M. 1 103(j) as to the use of videotapes. audiotapes, and 

similar recordings for the record of trial. Because of the potential 

requirement for a verbatim transcript, all proceedings, including 

sidebar conferences, arguments, and rulings and instructions by 

the military judge, should be recorded. 

Rule 809. Contempt proceedings 

Where there is recorder failure or loss of court reporter's 

notes, the record should be reconstructed as completely as possible. See also R.C.M. 1 103(f). If the intemption is discovered 

during trial, the military judge should summarize or reconstruct 

the portion of the proceedings which has not been recorded and 

then proceed anew and repeat the proceedings from the point 

where the interruption began. 

See R.C.M. 1305 concerning the record of trial in summary 

courts-martial. 

See DD Forms 490 (Record of Trial). 491 (Summarized 

Record of Trial), and 491-1 (Summarized Record of TrialArticle 39(a) Session). 

(a) In general. Courts-martial may exercise contempt power under Article 48. 

Discussion 

Article 48 provides: "A court-martial, provost, court, or uses any menacing word, sign, or gesture in its presence, or 

military commission may punish for contempt any person who who disturbs its proceedings by any riot or disorder. The pun- 
R.C.M. 809(d) 

ishment may not exceed confinement for 30 days or a fine of Each contempt may be separately punished. 


$100, or both." A person subject to the code who commits contempt may 


Article 48 makes punishable "direct" contempt, that is, be tried by coun-martial or otherwise disciplined for such miscontempt which is committed in the presence of the court- conduct in addition to or instead of punishment for contempt. 

martial or its immediate proximity. "Presence" includes those The military judge may order the offender removed whether or 

places outside the courtroom itself, such as waiting areas, de- not contempt proceedings are held. In some cases it may be 

liberation room, and other places set aside for the use of the appropriate to warn a person whose conduct is improper,that 

court-martial while it is in session. A "direct" contempt may persistence therein may result in removal or punishment for 

be actually seen or heard by the court-martial, in which case it contempt. See R.C.M. 804, 806. 

may be punished summarily. See subsection (b)(l) below. A The military judge may issue orders when appropriate to 

"direct" contempt may also be a contempt not actually observed ensure the orderly progress of the trial. Violation of such orders 

by the court-martial, for example, when an unseen person makes is not punishable under Article 48, but may be prosecuted as 

loud noises, whether inside or outside the courtroom, which a violation of Article 90 or 92. See also Article 98. 

impede the orderly progress of the proceedings. In such a case Refusal to appear or to testify is not punishable under 

the procedures for punishing for contempt are more extensive. Article 48. Persons not subject to military law having been duly 

See subsection (b)(2) below. subpoenaed, may be prosecuted in Federal civilian court under 

The words "any person," as used in Article 48, include Article 47 for neglect or refusal to appear or refusal to qualify 

all persons, whether or not subject to military law, except the as a witness or to testify or to produce evidence. Persons subject 

military judge, members, and foreign nationals outside the ter- to the code may be punished under Article 134 for such offenses. 

ritorial limits of the United States who are not subject to the See paragraph 108, Part IV. 

code. A summary court-martial may punish for contempt. 

(b) Method of disposition. 

(1) Summary disposition. When conduct constituting contempt is directly witnessed by the court-martial, 

the conduct may be punished summarily. In such cases, the regular proceedings shall be suspended while the 

contempt is disposed of. 

(2) Disposition upon notice and hearing. When the conduct apparently constituting contempt is not directly 

witnessed by the court-martial, the alleged offender shall be brought before the court-martial and informed orally 

or in writing of the alleged contempt. The alleged offender shall be given a reasonable opportunity to present 

evidence, including calling witnesses. The alleged offender shall have the right to be represented by counsel and 

shall be so advised. The contempt must be proved beyond a reasonable doubt before it may be punished. 

(c) Procedure; who may punish for contempt. 

(1) Members not present. When the conduct allegedly constituting contempt occurs during a session when 

the members are not present, the military judge shall determine whether to punish for contempt, and, if so, what 

the punishment shall be. The military judge may punish summarily under subsection (b) (1)only if the military 

judge recites the facts for the record and states that they were directly witnessed by the military judge in the 

actual presence of the court-martial. 

(2) Members present. When the conduct allegedly constituting contempt occurs during a session when the 

members are present, contempt proceedings may be initiated by the military judge or upon motion of any member, 

unless the military judge rules that as a matter of law, contempt has not been committed. If contempt proceedings 

are initiated the following procedures apply. 

(A) Instructions. The military judge shall instruct the members so that they can properly decide the 

questions presented. 

(B) Findings. The members shall decide in a closed session, upon vote by secret written ballot whether 

to hold an alleged offender in contempt. At least two-thirds of the members must concur in a finding 

of contempt to convict unless that member directly witnessed the conduct in question in the presence 

of the court-martial and finds it to be contemptuous. 

(C) Sentence. If the members find the offender in contempt, they shall, without reopening the courtmartial determine the punishment in accordance with the procedures in R.C.M. 1006. 

(D) Announcement. After reaching findings, and, if necessary, a sentence, the court-martial shall be 

reopened and the results announced by the president. 

(d) Record; review. A record of the contempt proceedings shall be part of the record of the court-martial during 
R.C.M. 809(e) 

which it occurred. If the person was held in contempt, then a separate record of the contempt proceedings shall be 

prepared and forwarded to the convening authority for review. The convening authority may approve or disapprove 

all or part of the sentence. The action of the convening authority is not subject to further review or appeal. 

(e) Sentence. A sentence of confinement pursuant to a finding of contempt shall begin to run when it is adjudged 

unless deferred, suspended, or disapproved by the convening authority. The place of confinement for a civilian 

or military person who is held in contempt and is to be punished by confinement shall be designated by the 

convening authority. A fine does not become effective until ordered executed by the convening authority. The 

military judge may delay announcing the sentence after a finding of contempt to permit the person involved to 

continue to participate in the proceedings. 

Discussion 

The immediate commander of the person held in contempt, notified immediately so that the necessary action on the sentence 

or, in the case of a civilian, the convening authority should be may be taken. See R.C.M. 1101. 

(f) Informing person held in contempt. The person held in contempt shall be informed by the convening authority 

in writing of the holding and sentence, if any, of the court-martial and of the action of the convening authority 

upon the sentence. 

Discussion 

Copies of this communication should be furnished to such ment. A copy shall be included with the record of both the trial 

other persons including the immediate commander of the of- and the contempt proceeding. 

fender as may be concerned with the execution of the punishRule 810. Procedures for rehearings, new trials, and other trials 

(a) In general. 

(1) Rehearings in full and new or other trials. In rehearings which require findings on all charges and 

specifications referred to a court-martial and in new or other trials, the procedure shall be the same as in an 

original trial except as otherwise provided in this rule. 

(2)Rehearings on sentence only. In a rehearing on sentence only, the procedure shall be the same as in an 

original trial, except that the portion of the procedure which ordinarily occurs after challenges and through and 

including the findings is omitted, and except as otherwise provided in this rule. 

(A) Contents of the record. The contents of the record of the original trial consisting of evidence properly 

admitted on the merits relating to each offense of which the accused stands convicted but not sentenced 

may be established by any party whether or not testimony so read is otherwise admissible under Mil. 

R. Evid. 804(b) (1) and whether or not it was given through an interpreter. 

Discussion 

Matters excluded from the record of the original trial on brought to the attention of the members as a part of the original 

the merits or improperly admitted on the merits must not be record of trial. 

(B) Plea. The accused at a rehearing only on sentence may not withdraw any plea of guilty upon which 

findings of guilty are based. However, if such a plea is found to be improvident, the rehearing shall 

be suspended and the matter reported to the authority ordering the rehearing. 

(3) Combined rehearings. When a rehearing on sentence is combined with a trial on the merits of one or 

more specifications referred to the court-martial, whether or not such specifications are being tried for the first 

time or reheard, the trial will proceed first on the merits, without reference to the offenses being reheard on 

sentence only. After findings on the merits are announced, the members, if any, shall be advised of the offenses 
R.C.M. 810(d)(2) 

on which the rehearing on sentence has been directed. Additional challenges for cause may be permitted, and 

the sentencing procedure shall be the same as at an original trial, except as otherwise provided in this rule. A 

single sentence shall be adjudged for all offenses. 

(b) Composition. 

(1) Members. No member of the court-martial which previously heard the case may sit as a member of the 

court-martial at any rehearing, new trial, or other trial of the same case. 

(2) Military judge. The military judge at a rehearing may be the same military judge who presided over a 

previous trial of the same case. The existence or absence of a request for trial by military judge alone at a 

previous hearing shall have no effect on the composition of a court-martial on rehearing. 

(3) Accused's election. The accused at a rehearing or new or other trial shall have the same right to request 

enlisted members or trial by military judge alone as the accused would have at an original trial. 

Discussion 

See R.C.M. 902; 903. 

(c) Examination of record of former proceedings. No member may, upon a rehearing or upon a new or other 

trial, examine the record of any former proceedings in the same case except: 

(1) When permitted to do so by the military judge after such matters have been received in evidence; or 

(2) That the president of a special court-martial without a military judge may examine that part of the record 

of former proceedings which relates to errors committed at the former proceedings when necessary to decide the 

admissibility of offered evidence or other questions of law, and such a part of the record may be read to the 

members when necessary for them to consider a matter subject to objection by any member. 

Discussion 

See R.C.M. 801(e)(2). documents, and any decision or review relating to the case, as 

When a rehearing is ordered, the trial counsel should be well as a statement of the reason for the rehearing. 

provided a record of the. former proceedings, accompanying 

(d) Sentence limitations. 

(1) In general. 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 punishment in excess of or more severe than 

the legal sentence adjudged at the previous trial or hearing, as ultimately reduced by the convening or higher 

authority, unless the sentence prescribed for the offense is mandatory. When a rehearing on sentencing is combined 

with trial on new charges, the maximum punishment shall be the maximum punishment 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. 

Discussion 

In adjudging a sentence not in excess of one more severe See R.C.M. 201(f)(2)(C); 1301(c). 

than one imposed previously, a court-martial is not limited to See R.C.M. 103(2) and (3) as to when a rehearing may 

adjudging the same or a lesser amount of the same type of be a capital case. 

punishment formerly adjudged. An appropriate sentence on a The members should not be advised of the basis for the 

retired or reheard offense should be adjudged without regard to sentence limitation under this rule. 

any credit to which the accused may be entitled. 

(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 
R.C.M. 810(e) 

enter a plea of guilty or otherwise, the sentence as to the affected charges and specifications may include any 

otherwise lawful punishment not in excess of or more severe than that lawfully adjudged at the earlier courtmartial. 

(e) Definition. "Other trial" means another trial of a case in which the original proceedings were declared invalid 

because of lack of jurisdiction or failure of a charge to state an offense. 

Rule 811. Stipulations 

(a) In general. The parties may make an oral or written stipulation to any fact, the contents of a document, or 

the expected testimony of a witness. 

(b)Authority to reject. The military judge may, in the interest of justice, decline to accept a stipulation. 

Discussion 

Although the decision to stipulate should ordinarily be left to a complete defense to any offense charged should not be 

to the parties, the military judge should not accept a stipulation accepted nor, if a plea of not guilty is outstanding, should one 

if there is any doubt of the accused's or any other party's which practically amounts to a confession, except as described 

understanding of the nature and effect of the stipulation. The in the discussion under subsection (c) of this rule. If a stipulation 

military judge should also refuse to accept a stipulation which is rejected, the parties may be entitled to a continuance. 

is unclear or ambiguous. A stipulation of fact which amounts 

(c) Requirements. Before accepting a stipulation in evidence, the military judge must be satisfied that the parties 

consent to its admission. 

Discussion 

Ordinarily, before accepting any stipulation the military directly or by reasonable inference, every element of a charged 

judge should inquire to ensure that the accused understands the offense and when the defense does not present evidence to 

right not to stipulate, understands the stipulation, and consents contest any potential remaining issue on the merits. Thus, a 

to it. stipulation which tends to establish, by reasonable inference, 

If the stipulation practically amounts to a confession to an every element of a charged offense does not practically amount 

offense to which a not guilty plea is outstanding, it may not be to a confession if the defense contests an issue going to guilt 

accepted unless the military judge ascertains: (A) from the ac- which is not foreclosed by the stipulation. For example, a stipcused that the accused understands the right not to stipulate and ulation of fact that contraband drugs were discovered in a vethat the stipulation will not be accepted without the accused's hicle owned by the accused would normally practically amount 

consent; that the accused understands the contents and effect to a confession if no other evidence were presented on the issue, 

of the stipulation; that a factual basis exists for the stipulation; but would not if the defense presented evidence to show that 

and that the accused, after consulting with counsel, consents to the accused was unaware of the presence of the drugs. Whenever 

the stipulation; and (B) from the accused and counsel for each a stipulation establishes the elements of a charged offense, the 

party whether there are any agreements between the parties in military judge should conduct an inquiry as described above. 

connection with the stipulation, and, if so, what the terms of If, during an inquiry into a confessional stipulation the 

such agreements are. military judge discovers that there is a pretrial agreement, the 

A stipulation practically amounts to a confession when it military judge must conduct an inquiry into the pretrial agreeis the equivalent of a guilty plea, that is, when it establishes, ment. See R.C.M. 910(f). See also R.C.M. 705. 

(d) Withdrawal. A party may withdraw from an agreement to stipulate or from a stipulation at any time before 

a stipulation is accepted; the stipulation may not then be accepted. After a stipulation has been accepted a party 

may withdraw from it only if permitted to do so in the discretion of the military judge. 

Discussion 

If a party withdraws from an agreement to stipulate or from If a party is permitted to withdraw from a stipulation prea stipulation, before or after it has been accepted, the opposing viously accepted, the stipulation must be disregarded by the 

party may be entitled to a continuance to obtain proof of the court-martial, and an instruction to that effect should be given. 

matters which were to have been stipulated. 

(e)Effect of stipulations. Unless properly withdrawn or ordered stricken from the record, a stipulation of fact 
R.C.M. 813(c) 

that has been accepted is binding on the court-martial and may not be contradicted by the parties thereto. The 

contents of a stipulation of expected testimony or of a document's contents may be attacked, contradicted, or 

explained in the same way as if the witness had actually so testified or the document had been actually admitted. 

The fact that the parties so stipulated does not admit the truth of the indicated testimony or document's contents, 

nor does it add anything to the evidentiary nature of the testimony or document. The Military Rules of Evidence 

apply to the contents of stipulations. 

(f) Procedure. When offered, a written stipulation shall be presented to the military judge and shall be included 

in the record whether accepted or not. Once accepted, a written stipulation of expected testimony shall be read 

to the members, if any, but shall not be presented to them; a written stipulation of fact or of a document's 

contents may be read to the members, if any, presented to them, or both. Once accepted, an oral stipulation 

shall be announced to the members, if any. 

Rule 812. Joint and common trials 

In joint trials and in common trials, each accused shall be accorded the rights and privileges as if tried 

separately. 

Discussion 

See R.C.M. 307(c)(5) concerning preparing charges and essary. Thus, if one coaccused elects to be tried by a courtspecifications for joint trials. See R.C.M. 601(e)(3) concerning martial composed of officers, and a second requests that enlisted 

referral of charges for joint or common trials, and the distinction members be detailed to the court, and a third submits a request 

between the two. See R.C.M. 906(b)(9) concerning motions to for trial by military judge alone, which request is approved, 

sever and other appropriate motions in joint or common trials. three separate trials must be conducted. 

In a joint or common trial, each accused may be repre- In a joint or common trial, evidence which is admissible 

sented by separate counsel, make challenges for cause, make against only one or some of the joint or several accused may 

peremptory challenges (see R.C.M. 912), cross-examine wit- be considered only against the accused concerned. For example, 

nesses, elect whether to testify, introduce evidence, request that when a stipulation is accepted which was made by only one or 

the membership of the court include enlisted persons, if an some of the accused, the stipulation does not apply to those 

enlisted accused, and, if a military judge has been detailed, accused who did not join it. See also Mil. R. Evid. 306. In 

request trial by military judge alone. such instances the members must be instructed that the stipuWhere different elections are made (and, when necessary, lation or evidence may be considered only with respect to the 

approved) as to court-martial composition a severance is nec- accused with respect to whom it is accepted. 

Rule 813. Announcing personnel of the court-martial and accused 

(a) Opening sessions. When the court-martial is called to order for the first time in a case, the military judge 

shall ensure that the following is announced: 

(1) The order, including any amendment, by which the court-martial is convened; 

(2) The name, rank, and unit or address of the accused; 

(3) The name and rank of the military judge, if one has been detailed; 

(4) The names and ranks of the members, if any, who are present; 

(5) the names and ranks of members who are absent, if presence of members is required; 

(6) The names and ranks (if any) of counsel who are present; and 

(7) The names and ranks (if any) of counsel who are absent; 

(8) The name and rank (if any) of any detailed court reporter. 

(b) Later proceedings. When the court-martial is called to order after a recess or adjournment or after it has been 

closed for any reason, the military judge shall ensure that the record reflects whether all parties and members 

who were present at the time of the adjournment or recess, or at the time the court-martial closed, are present. 

(c) Additions, replacement, and absences of personnel. Whenever there is a replacement of the military judge, 

any member, or counsel, either through the appearance of new personnel or personnel previously absent or 

through the absence of personnel previously present, the military judge shall ensure the record reflects the change 

and the reason for it. 

11-101 
CHAPTER IX. TRIAL PROCEDURE THROUGH FINDINGS 

Rule 901. Opening session 

(a) Call to order. A court-martial is in session when the military judge so declares. 

Discussion 

The military judge should examine the charge sheet, con- The period is three days for a special court-martial. In comvening order, and any amending orders before calling the initial puting these periods, the date of service and the date of the 

session to order. proceedings are excluded. Holidays and Sundays are not exArticle 35 provides that in time of peace, no proceedings, cluded. Failure to object waives the right to the waiting period, 

including Article 39(a) sessions, may be conducted over the but if it appears that the waiting period has not elapsed, the 

accused's objection until five days have elapsed from the service military judge should bring this to the attention of the defense 

of charges on the accused in the case of a general court-martial. and secure an affirmative waiver on the record. 

(b) Announcement of parties. After the court-martial is called to order, the presence or absence of the parties, 

military judge, and members shall be announced. 

Discussion 

If the orders detailing the military judge and counsel have detailing is required. See R.C.M.503(b) and (c). 


not been reduced to writing, an oral announcement of such 


(c) Swearing reporter and interpreter. After the personnel have been accounted for as required in subsection (b) 

of this rule, the trial counsel shall announce whether the reporter and interpreter, if any is present, have been 

properly sworn. If not sworn, the reporter and interpreter, if any, shall be sworn. 

Discussion 

See R.C.M. 807 concerning the oath to be administered replaced at any time during trial, this should be noted for the 

to a court reporter or interpreter. If a reporter or interpreter is record, and the procedures in this subsection should be repeated. 

(d) Counsel. 

(1) Trial counsel. The trial counsel shall announce the legal qualifications and status as to oaths of the 

members of the prosecution and whether any member of the prosecution has acted in any manner which might 

tend to disqualify that counsel. 

(2)Defense counsel. The detailed defense counsel shall announce the legal qualifications and status as to 

oaths of the detailed members of the defense and whether any member of the defense has acted in any manner 

which might tend to disqualify that counsel. Any defense counsel not detailed shall state that counsel's legal 

qualifications, and whether that counsel has acted in any manner which might tend to disqualify that counsel. 

(3) Disqualification. If it appears that any counsel may be disqualified, the military judge shall decide the 

matter and take appropriate action. 

Discussion 

Counsel may be disqualified because of lack of necessary If it appears that any counsel may be disqualified, the 

qualifications, or because of duties or actions which are incon- military judge should conduct an inquiry or hearing. If any 

sistent with the role of counsel. See R.C.M. 502(d) concerning detailed counsel is disqualified, the appropriate authority should 

qualifications of counsel. 
R.C.M. 901(d)(4) 

be informed. If any defense counsel is disqualified, the accused ensure that the accused is not prejudiced by any actions of the 

should be so informed. disqualified counsel or any break in representation of the acIf the disqualification of trial or defense counsel is one cused. 

which the accused may waive, the accused should be so in- Disqualification of counsel is not a jurisdictional defect; 

formed by the military judge, and given the opportunity to such error must be tested for prejudice. 

decide whether to waive the disqualification. In the case of If the membership of the prosecution or defense changes 

defense counsel, if the disqualification is not waivable or if the at any time during the proceedings, the procedures in this subacccused elects not to waive the disqualification, the accused section should be repeated as to the new counsel. In addition, 

should be informed of the choices available and given the op- the military judge should ascertain on the record whether the 

portunity to exercise such options. accused objects to a change of defense counsel. See R.C.M. 

If any counsel is disqualified, the military judge should 505(d)(2) and 506(c). 

(4) Inquiry. The military judge shall, in open session: 

(A) Inform the accused of the rights to be represented by military counsel detailed to the defense; or by 

individual military counsel requested by the accused, if such military counsel is reasonably available; 

and by civilian counsel, either alone or in association with military counsel, if such civilian counsel 

is provided at no expense to the United States; 

(B) 	Inform the accused that, if afforded individual military counsel, the accused may request retention 

of detailed counsel as associate counsel, which request may be granted or denied in the sole discretion 

of the authority who detailed the counsel; 

(C) Ascertain from the accused whether the accused understands these rights; 

(D) Promptly inquire, whenever two or more accused in a joint or common trial are represented by the 

same detailed or individual military or civilian counsel, or by civilian counsel who are associated in 

the practice of law, with respect to such joint representation and shall personally advise each accused 

of the right to effective assistance of counsel, including separate representation. Unless it appears 

that there is good cause to believe no conflict of interest is likely to arise, the military judge shall 

take appropriate measures to protect each accused's right to counsel; and 

Discussion 

Whenever it appears that any defense counsel may face a counsel should discuss the matter with the accused. If the acconflict of interest, the military judge should inquire into the cused elects to waive such conflict, counsel should inform the 

matter, advise the accused of the right to effective assistance military judge of the matter at an Article 39(a) session so that 

of counsel, and ascertain the accused's choice of counsel. When an appropriate record can be made. 

defense counsel is aware of a potential conflict of interest, 

(E) Ascertain from the accused by whom the accused chooses to be represented. 

(5) Unsworn counsel. The military judge shall administer the oath to any counsel not sworn. 

Discussion 

See R.C.M. 807. 

(e) Presence of members. In cases in which a military judge has been detailed, the procedures described in 

R.C.M. 901 through 903, 904 when authorized by the Secretary concerned, and 905 through 910 shall be 

conducted without members present in accordance with R.C.M. 803. 

Rule 902. Disqualification of military judge 

(a) In general. Except as provided in subsection (e) of this rule, a military judge shall disqualify himself or 

herself in any proceeding in which that military judge's impartiality might reasonably be questioned. 

(b) SpeciJic grounds. A military judge shall also disqualify himself or herself in the following circumstances: 
R.C.M. 902(d)(3) 

(1) Where the military judge has a personal bias or prejudice concerning a party or personal knowledge of 

disputed evidentiary facts concerning the proceeding. 

(2) Where the military judge has acted as counsel, investigating officer, legal officer, staff judge advocate, 

or convening authority as to any offense charged or in the same case generally. 

(3) Where the military judge has been or will be a witness in the same case, is the accuser, has forwarded 

charges in the case with a personal recommendation as to disposition, or, except in the performance of duties 

as military judge in a previous trial of the same or a related case, has expressed an opinion concerning the guilt 

or innocence of the accused. 

(4) Where the military judge is not eligible to act because the military judge is not qualified under R.C.M. 

502(c) or not detailed under R.C.M. 503(b). 

(5)Where the military judge, the military judge's spouse, or a person within the third degree of relationship 

to either of them or a spouse of such person: 

(A) Is a party to the proceeding; 

(B) 	Is known by the military judge to have an interest, financial or otherwise, that could be substantially 

affected by the outcome of the proceeding; or 

(C) Is to the military judge's knowledge likely to be a material witness in the proceeding. 

Discussion 

A military judge should inform himself or herself about inform himself or herself about the financial interests of his or 

his or her financial interests, and make a reasonable effort to her spouse and minor children living in his or her household. 

(c) Definitions. For the purposes of this rule the following words or phrases shall have the meaning indicated- 

(1) "Proceeding" includes pretrial, trial, posttrial, appellate review, or other stages of litigation. 

(2) The "degree of relationship" is calculated according to the civil law system. 

Discussion 

Relatives within the third degree of relationship are chil- ents, great grandparents, brothers, sisters, uncles, aunts, nephdren, grandchildren, great grandchildren, parents, grandpar- ews, and nieces. 

(3) "Military judge" does not include the president of a special court-martial without a military judge. 

(d) Procedure. 

(1) The military judge shall, upon motion of any party or sua sponte, decide whether the military judge is 

disqualified. 

Discussion 

There is no peremptory challenge against a military judge. Possible grounds for disqualification should be raised at 

A military judge should carefully consider whether any of the the earliest reasonable opportunity. They may be raised at any 

grounds for disqualification in this rule exist in each case. The time, and an earlier adverse ruling does not bar later considmilitary judge should broadly construe grounds for challenge eration of the same issue, as, for example, when additional 

but should not step down from a case unnecessarily. evidence is discovered. 

(2) Each party shall be permitted to question the military judge and to present evidence regarding a possible 

ground for disqualification before the military judge decides the matter. 

(3) Except as provided under subsection (e) of this rule, if the military judge rules that the military judge 

is disqualified, the military judge shall recuse himself or herself. 
R.C.M. 902(e) 

(e) Waiver. No military judge shall accept from the parties to the proceeding a waiver of any ground for 

disqualification enumerated in subsection (b) of this rule. Where the ground for disqualification arises only under 

subsection (a) of this rule, waiver may be accepted provided it is preceded by a full disclosure on the record of 

the basis for disqualification. 

Rule 903. Accused's elections on composition of court-martial 

(a) Time of elections. 

(1) Request for enlisted members. Before the end of the initial Article 39(a) session or, in the absence of 

such a session, before assembly, the military judge shall ascertain, as applicable, whether an enlisted accused 

elects to be tried by a court-martial including enlisted members. The military judge may, as a matter of discretion, 

permit the accused to defer requesting enlisted members until any time before assembly, which time may be 

determined by the military judge. 

(2)Request for trial by military judge alone. Before the end of the initial Article 39(a) session, or, in the 

absence of such a session, before assembly, the military judge shall ascertain, as applicable, whether in a 

noncapital case, the accused requests trial by the military judge alone. The accused may defer requesting trial 

by military judge alone until any time before assembly. 

Discussion 

Only an enlisted accused may request that enlisted mem- in special courts-martial in which no military judge has been 

bers be detailed to a court-martial. Trial by military judge alone detailed. 

is not permitted in capital cases (see R.C.M. 201(f)(I)(C)) or 

(b) Form of election 

(1) Request for enlisted members. A request for the membership of the court-martial to include enlisted 

persons shall be in writing and signed by the accused. 

(2)Request for trial by military judge alone. A request for trial by military judge alone shall be in writing 

and signed by the accused or shall be made orally on the record. 

(c) Action on election. 

(1) Request for enlisted members. Upon receipt of a timely written request for enlisted members by an 

enlisted accused the convening authority shall detail enlisted members to the court-martial in accordance with 

R.C.M. 503 or prepare a detailed written statement explaining why physical conditions or military exigencies 

prevented this. The trial of the general issue shall not proceed until this is done. 

(2) Request for military judge alone. Upon receipt of a timely request for trial by military judge alone the 

military judge shall: 

(A) Ascertain whether the accused has consulted with defense counsel and has been informed of the 

identity of the military judge and of the right to trial by members; and 

Discussion 

Ordinarily the military judge should inquire personally of DD Form 1722 (Request for Trial Before Military Judge 

the accused to ensure that the accused's waiver of the right to Alone (Art. 16, UCMJ)) should normally be used for the purtrial by members is knowing and understanding. Failure to do pose of requesting trial by military judge alone under this rule. 

so is not error, however, where such knowledge and under- if a written request is used. 

standing otherwise appear on the record. 

(B) Approve or disapprove the request, in the military judge's discretion. 

Discussion 

A timely request for trial by military judge alone should be granted unless there is substantial reason why, in the interest 
R.C.M. 905(a) 

of justice, the military judge should not sit as factfinder. The on the request. The basis for denial of a request must be made 

military judge may hear arguments from counsel before acting a matter of record. 

(3) Other. In the absence of a written request for enlisted members or for trial by military judge alone, trial 

shall be by a court-martial composed of officers. 

Discussion 

Ordinarily if no request for enlisted members or trial by (a)(l) of this rule) unless these elections are not available to 

military judge alone is submitted, the military judge should the accused. 

inquire whether such a request will be made (see subsection 

-

(d) Right to withdraw request. 

(1) Enlisted members. A request for enlisted members may be withdrawn by the accused as a matter of 

right any time before the end of the initial Article 39(a) session, or, in the absence of such a session, before 

assembly. 

(2)Military judge. A request for trial by military judge alone may be withdrawn by the accused as a matter 

of right any time before it is approved, or, even after approval, if there is a change of the military judge. 

Discussion 

Withdrawal of a request for enlisted members or trial by military judge alone should be shown in the record. 

(e) Untimely requests. Failure to request, or failure to withdraw a request for enlisted members or trial by military 

judge alone in a timely manner shall waive the right to submit or to withdraw such a request. However, the 

military judge may until the beginning of the introduction of evidence on the merits, as a matter of discretion, 

approve an untimely request or withdrawal of a request. 

Discussion 

In exercising discretion whether to approve an untimely a mere change of tactics or results from a substantial change 

request or withdrawal of a request, the military judge should of circumstances) against any expense, delay, or inconvenience 

balance the reason for the request (for example, whether it is which would result from granting the request. 

(f) Scope. For purposes of this rule, "military judge" does not include the president of a special court-martial 

without a military judge. 

Rule 904. Arraignment 

Arraignment shall be conducted in a court-martial session and shall consist of reading the charges and specifications to the accused and calling on the accused to plead. The accused may waive the reading. 

Discussion 

Arraignment is complete when the accused is called upon Once the accused has been arraigned, no additional charges 

to plead; the entry of pleas is not part of the arraignment. against that accused may be referred to that court-martial for 

When authorized by regulations of the Secretary con- trial with the previously referred charges. See R.C.M. 601(e)(2). 

cerned, the arraignment should be conducted at an Article 39(a) The defense should be asked whether it has any motions 

session when a military judge has been detailed. The accused to make before pleas are entered. Some motions ordinarily must 

may not be arraigned at a conference under R.C.M. 802. be made before a plea is entered. See R.C.M. 905(b). 

Rule 905. Motions generally 

(a) Definitions and form. A motion is an application to the military judge for particular relief. Motions may be 
R.C.M. 905(b) 

oral or, at the discretion of the military judge, written. A motion shall state the grounds upon which it is made 

and shall set forth the ruling or relief sought. The substance of a motion, not its form or designation, shall 

control. 

Discussion 

Motions may be motions to suppress [see R.C.M. 905(b)(3)]; dismiss (see R.C.M. 907); or motions for findings of not guilty 

motions for appropriate relief (see R.C.M. 906); motions to (sye R.C.M. 917). 

(b) Pretrial motions. Any defense, objection, or request which is capable of determination without the trial of 

the general issue of guilt may be raised before trial. The following must be raised before a plea is entered: 

(1) Defenses or objections based on defects (other than jurisdictional defects) in the preferral, forwarding, 

investigation, or referral of charges; 

Discussion 

Such nonjurisdictional defects include unsworn charges, vice. See R.C.M. 307; 401-407; 601-604. 


inadequate Article 32 investigation, and inadequate pretrial ad- 


(2) Defenses or objections based on defects in the charges and specifications (other than any failure to show 

jurisdiction or to charge an offense, which objections shall be resolved by the military judge at any time during 

the pendency of the proceedings); 

Discussion 

See R.C.M. 307; 906(b)(3). 

(3) Motions to suppress evidence; 

Discussion 

Mil. R. Evid. 304(d), 311(d), and 321(c) deal with the evidence on other grounds may be raised by objection at trial 

admissibility of confessions and admissions, evidence obtained or by motions in limine. See R.C.M. 906(b)(13); Mil. R. Evid. 

from unlawful searches and seizures, and eyewitness identifi- 103(c); 104(a) and (c). 

cation, respectively. Questions concerning the admissibility of 

(4) Motions for discovery under R.C.M. 701 or for production of witnesses or evidence; 

Discussion 

See also R.C.M. 703; 1001(e). 

(5) Motions for severance of charges or accused; or 

Discussion 

See R.C.M. 812; 906(b)(9) and (10) 

(6) Objections based on denial of request for individual military counsel or for retention of detailed defense 

counsel when individual military counsel has been granted. 

Discussion 

See R.C.M. 506(b); 906(b)(2). 
R.C.M. 905(g) 

(c) Burden of proof. 

(1) Standard. Unless otherwise provided in this Manual, the burden of proof on any factual issue the 

resolution of which is necessary to decide a motion shall be by a preponderance of the evidence. 

Discussion 

See Mil. R. Evid. 104(a) concerning the applicability of the Military Rules of Evidence to certain preliminary questions. 

(2)Assignment. 

(A) Except as otherwise provided in this Manual the burden of persuasion on any factual issue the 

resolution of which is necessary to decide a motion shall be on the moving party. 

Discussion 

See, for example, subsection (c)(2)(B) of this rule, R.C.M. specifically assigning the burden of proof. 


908 and Mil. R. Evid. 304(e), 31 1(e), and 321(d) for provisions 


(B) In the case of a motion to dismiss for lack of jurisdiction, denial of the right to speedy trial under 

R.C.M. 707, or the running of the statute of limitations, the burden of persuasion shall be upon the 

prosecution. 

(d) Ruling on motions. A motion made before pleas are entered shall be determined before pleas are entered 

unless, if otherwise not prohibited by this Manual, the military judge for good cause orders that determination 

be deferred until trial of the general issue or after findings, but no such determination shall be deferred if a 

party's right to review or appeal is adversely affected. Where factual issues are involved in determining a motion, 

the military judge shall state the essential findings on the record. 

Discussion 

When trial cannot proceed further as the result of dismissal as one or more charge and specification remain. The promulor other rulings on motions, the court-martial should adjourn gating orders should reflect the action taken by the court-martial 

and a record of the proceedings should be prepared for the on each charge and specification, including any which were 

convening authority. Notwithstanding the dismissal of some dismissed by the military judge on a motion. See R.C.M. 11 14. 

specifications, trial may proceed in the normal manner as long 

(e) Effect of failure to raise defenses or objections. Failure by a party to raise defenses or objections or to make 

requests which must be made before pleas are entered under subsection (b) of this rule shall constitute waiver. 

The military judge for good cause shown may grant relief from the waiver. Other requests, defenses, or objections, 

except lack of jurisdiction or failure of a charge to allege an offense, must be raised before the court-martial is 

finally adjourned for that case and, unless otherwise provided in this Manual, failure to do so shall constitute 

waiver. 

Discussion 

See also R.C.M. 910(j) concerning matters waived by a plea of guilty. 

(f) Reconsideration. On request of any party or sua sponte, the military judge may reconsider any ruling, other 

than one amounting to a finding of not guilty, made by the military judge. 

(g) Effect offinal determinations. Any matter put in issue and finally determined by a court-martial, reviewing 

authority, or appellate court which had jurisdiction to determine the matter may not be disputed by the United 

States in any other court-martial of the same accused, except that, when the offenses charged at one court-martial 

did not arise out of the same transaction as those charged at the court-martial at which the determination was 

made, a determination of law and the application of law to the facts may be disputed by the United States. This 
R.C.M. 905(h) 

rule also shall apply to matters which were put in issue and finally determined in any other judicial proceeding 

in which the accused and the United States or a Federal governmental unit were parties. 

Discussion 

See also R.C.M. 907(b)(2)(C). Whether a matter has been different offense, the determination in the first case would refinally determined in another judicial proceeding with jurisdic- quire dismissal of the new charge unless the prosecution could 

tion to decide it, and whether such determination binds the show that since that determination the accused had effected a 

United States in another proceeding are interlocutory questions. valid enlistment or constructive enlistment. See R.C.M. 202. 

See R.C.M. 801(e). It does not matter whether the earlier pro- Note, however, that if the initial ruling had been based on an 

ceeding ended in an acquittal, conviction, or otherwise, as long error of law (for example, if the military judge had ruled the 

as the determination is final. Except for a ruling which is, or enlistment invalid because the accused was 18 at the time of 

amounts to, a finding of not guilty, a ruling ordinarily is not enlistment) this would not require dismissal in the second courtfinal until action on the court-martial is completed. See Article martial for a different offense. 

76; R.C.M. 1209. The accused is not bound in a court-martial (2) The accused was tried in United States district 

by rulings in another court-martial. But see Article 3(b); R.C.M. court for assault on a Federal officer. The accused defended 

202. solely on the basis of alibi and was acquitted. The accused is 

The determination must have been made by a court-martial, then charged in acourt-martial with assault on a different person 

reviewing authority, or appellate court, or by another judicial at the same time and place as the assault on a Federal officer 

body, such as a United States court. A pretrial determination was alleged to have occurred. The acquittal of the accused in 

by a convening authority is not a final determination under this Federal district court would bar conviction of the accused in 

rule, although some decisions by a convening authority may the court-martial. In cases of this nature, the facts of the first 

bid the Government under other rules. See, for example, R.C.M. trial must be examined to determine whether the finding of the 

601, 604, 704, 705. first trial is logically inconsistent with guilt in the second case. 

The United States is bound by a final determination by a (3) At a court-martial for larceny, the military judge 

court of competent jurisdiction even if the earlier determination excluded evidence of a statement made by the accused relating 

is erroneous, except when the offenses charged at the second to the larceny and other uncharged offenses because the stateproceeding arose out of a different transaction from those charged ment was obtained by coercion. At a second court-martial for 

at the first and the ruling at the first proceeding was based on an unrelated offense, the statement excluded at the first trial 

an incorrect determination of law. would be inadmissible, based on the earlier ruling, if the first 

A final determination in one case may be the basis for a case had become final. If the earlier ruling had been based on 

motion to dismiss or a motion for appropriate relief in another an incorrect interpretation of law, however, the issue of adcase, depending on the circumstances. The nature of the earlier missibility could be litigated anew at the second proceeding. 

determination and the grounds for it will determine its effect in (4) At a court-martial for absence without authority, 

other proceedings. the charge and specification were dismissed for failure to state 

Examples: an offense. At a later court-martial for the same offense, the 

(1) The military judge dismissed a charge for lack of earlier dismissal would be grounds for dismissing the same 

personal jurisdiction, on grounds that the accused was only 16 charge and specification, but would not bar further proceedings 

years old at the time of enlistment and when the offenses oc- on a new specification not containing the same defect as the 

curred. At a second court-martial of the same accused for a original specification. 

(h) Written motions. Written motions may be submitted to the military judge after referral and when appropriate 

they may be supported by affidavits, with service and opportunity to reply to the opposing party. Such motions 

may be disposed of before arraignment and without a session. Upon request, either party is entitled to an Article 

39(a) session to present oral argument or have an evidentiary hearing concerning the disposition of written 

motions. 

(i) Service. Written motions shall be served on all other parties. Unless otherwise directed by the military judge, 

the service shall be made upon counsel for each party. 

6) Application to convening authority. Except as otherwise provided in this Manual, any matters which may be 

resolved upon motion without trial of the general issue of guilt may be submitted by a party to the convening 

authority before trial for decision. Submission of such matter to the convening authority is not, except as otherwise 

provided in this Manual, required, and is, in any event, without prejudice to the renewal of the issue by timely 

motion before the military judge. 

(k) Production of statements on motion to suppress. Except as provided in this subsection, R.C.M. 914 shall 

apply at a hearing on a motion to suppress evidence under subsection (b)(3) of this rule. For purposes of this 

subsection, a law enforcement officer shall be deemed a witness called by the Government, and upon a claim 

of privilege the military judge shall excise portions of the statement containing privileged matter. 
i 

R.C.M. 906(b)(5) 

Rule 906. Motions for appropriate relief 

(a) In general. A motion for appropriate relief is a request for a ruling to cure a defect which deprives a party 

of a right or hinders a party from preparing for trial or presenting its case. 

(b) Grounds for appropriate relief. The following may be requested by motion for appropriate relief. This list 

is not exclusive. 

(1) Continuances. A continuance may be granted only by the military judge. 

Discussion 

The military judge should, upon a showing of reasonable to prepare for trial; unavailability of an essential witness; the 

cause, grant a continuance to any party for as long and as often interest of Government in the order of trial of related cases; and 

as is just. Article 40. Whether a request for a continuance should illness of an accused, counsel, military judge, or member. See 

be granted is a matter within the discretion of the military judge. also R.C.M. 602; 803. 

Reasons for a continuance may include: insufficient opportunity 

(2) Record of denial of individual military counsel or of denial of request to retain detailed counsel when 

a request for individual military counsel was granted. If a request for military counsel was denied, which denial 

was upheld on appeal (if available) or if a request to retain detailed counsel was denied when the accused is 

represented by individual military counsel, and if the accused so requests, the military judge shall ensure that a 

record of the matter is included in the record of trial, and may make findings. The trial counsel may request a 

continuance to inform the convening authority of those findings. The military judge may not dismiss the charges 

or otherwise effectively prevent further proceedings based oq,this issue. However, the military judge may grant 

reasonable continuances until the requested military counsel can be made available if the unavailability results 

from temporary conditions or if the decision of unavailability is in the process of review in administrative 

channels. 

(3) Correction of defects in the Article 32 investigation or pretrial advice. 

Discussion 

See R.C.M. 405; 406.If the motion is granted, the military judge should ordinarily grant a continuance so the defect may be corrected. 

(4) Amendment of charges or specifications. A charge or specification may not be amended over the accused's 

objection unless the amendment is minor within the meaning of R.C.M. 603(a). 

Discussion 

See also R.C.M. 307. accused has entered a plea to it, the accused should be asked 

An amendment may be appropriate when a specification to plead anew to the amended specification. A bill of particulars 

is unclear, redundant, inartfully drafted, misnames an accused, (see subsection (b)(6) of this rule) may also be used when a 

or is laid under the wrong article. A specification may be amended specification is indefinite or ambiguous. 

by striking surplusage, or substituting or adding new language. If a specification, although stating an offense, is so deSurplusage may include irrelevant or redundant details or ag- fective that the accused appears to have been misled, the accused 

gravating circumstances which are not necessary to enhance the should be given a continuance upon request, or, in an appromaximum authorized punishment or to explain the essential priate case (see R.C.M. 907(b)(3)), the specification may be 

facts of the offense. When a specification is amended after the dismissed. 

(5) Severance of a duplicious specification into two or more specifications. 

Discussion 

Each specification may state only one offense. R.C.M. specifications, each of which alleges a separate offense con307(c)(4). A duplicious specification is one which alleges two tained in the duplicious specification. However, if the duplior more separate offenses. Lesser included offenses (see Part ciousness is combined with or results in other defects, such as 

IV, paragraph 2) are not separate, nor is a continuing offense misleading the accused, other remedies may be appropriate. See 

involving several separate acts. The sole remedy for a duplicious subsection (b)(3) of this rule. See also R.C.M. 907(b)(3). 

specification is severance of the specification into two or more 
R.C.M. 906(b)(6) 

(6) Bill of particulars. A bill of particulars may be amended at any time, subject to such conditions as 

justice permits. 

Discussion 

The purposes of a bill of particulars are to inform the A bill of particulars should not be used to conduct disaccused of the nature of the charge with sufficient precision to covery of the Government's theory of a case, to force detailed 

enable the accused to prepare for trial, to avoid or minimize disclosure of acts underlying a charge, or to restrict the Govthe danger of surprise at the time of trial, and to enable the ernment's proof at trial. 

accused to plead the acquittal or conviction in bar of another A bill of particulars need not be sworn because it 1s not 

prosecution for the same offense when the specification itself part of the specification. A bill of particulars cannot be used 

is too vague and indefinite for such purposes. to repair a specification which is otherwise not legally sufficient. 

(7) Discovery and production of evidence and witnesses. 

Discussion 

See R.C.M. 701 concerning discovery. See R.C.M. 703, 914 and 1001(e) concerning production of evidence and witnesses. 

(8) Relief from pretrial confinement in violation of R.C.M. 305. 

isc cuss ion 

See R.C.M. 305(j). 

(9) Severance of multiple accused, if it appears that an accused or the Government is prejudiced by a joint 

or common trial. In a common trial, a severance shall be granted whenever any accused, other than the moving 

accused, faces charges unrelated to those charged against the moving accused. 

Discussion 

A motion for severance is a request that one or more or evidence as to any other accused will improperly prejudice 

accused against whom charges have been referred to a joint or the moving accused. 

common trial be tried separately. Such a request should be If a severance is granted by the military judge, the military 

liberally considered in a common trial, and should be granted judge will decide which accused will be tried first. See R.C.M. 

if good cause is shown. For example, a severance is ordinarily 801(a)(l). In the case of joint charges, the military judge will 

appropriate when: the moving party wishes to use the testimony direct an appropriate amendment of the charges and specifiof one or more of the coaccused or the spouse of a coaccused; cations. 

a defense of a coaccused is antagonistic to the moving party; See also R.C.M. 307(c)(5); 601(e)(3); 604; 812. 

(10) Severance of offenses, but only to prevent manifest injustice. 

Discussion 

Ordinarily, all known charges should be tried at a single ses. For example, when an essential witness as to one offense 

court-martial. Joinder of minor and major offenses, or of un- is unavailable, it might be appropriate to sever that offense to 

related offenses is not alone a sufficient ground to sever offen- prevent violation of the accused's right to a speedy trial. 

(11) Change of place of trial. The place of trial may be changed when necessary to prevent prejudice to 

the rights of the accused or for the convenience of the Government if the rights of the accused are not prejudiced 

thereby. 
R.C.M. 907(b)(l)(B) 

Discussion 

A change of the place of trial may be necessary when there When it is necessary to change the place of trial, the choice 

exists in the place where the court-martial is pending so great of places to which the court-martial will be transferred will be 

a prejudice against the accused that the accused cannot obtain left to the convening authority, as long as the choice is not 

a fair and impartial trial there, or to obtain compulsory process inconsistent with the ruling of the military judge. 

over an essential witness. 

(12) Determination of multiplicity of offenses for sentencing purposes. 

Discussion 

See R.C.M. 1003 concerning determination of the maxi- A ruling on this motion ordinarily should be deferred until 

mum punishment. See also R.C.M. 907(b)(3)(B) concerning after findings are entered. 

dismissal of charges on grounds of mulitplicity. 

(13) Preliminary ruling on admissibility of evidence. 

Discussion 

See Mil. R. Evid. 104(c). avoid the prejudice which may result from bringing inadmissible 

A request for a preliminary ruling on admissibility is a matters to the attention of court members. 

request that certain matters which are ordinarily decided during Whether to rule on an evidentiary question before it arises 

trial of the general issue be resolved before they arise, outside during trial on the general issue is a matter within the discretion 

the presence of members. The purpose of such a motion is to of the military judge. But see R.C.M. 905(b)(3) and (d); and 

Mil. R. Evid. 304(e)(2); 31 1(e)(2); 321 (d)(2). 

(14) Motions relating to mental capacity or responsibility of the accused. 

Discussion 

See R.C.M. 706, 909, and 916(k) regarding procedures of the accused. 


and standards concerning the mental capacity or responsibility 


Rule 907. Motions to dismiss 

(a) In general. A motion to dismiss is a request to terminate further proceedings as to one or more charges and 

specifications on grounds capable of resolution without trial of the general issue of guilt. 

Discussion 

Dismissal of a specification terminates the proceeding with court-martial for the same offense if the grounds for dismissal 

respect to that specification unless the decision to dismiss is no longer exist. See also R.C.M. 905(g) and subsection (b)(2) 

reconsidered and reversed by the military judge. See R.C.M. below. 

905(f). Dismissal of a specification on grounds stated in sub- See R.C.M. 9 16 concerning defenses. 

section (b)(l) or (b)(3)(A) below does not ordinarily bar a later 

(b) Grounds for dismissal. Grounds for dismissal include the following- 

(1) Nonwaivable grounds. A charge or specification shall be dismissed at any stage of the proceedings if: 

(A) The court-martial lacks jurisdiction to try the accused for the offense; or 

Discussion 

See R.C.M. 201-203. 

(B) The specification fails to state an offense. 
- - 

R.C.M. 907(b)(2) 

Discussion 

See R.C.M. 307(c). 

(2) Waivablegrounds. A charge or specification shall be dismissed upon motion made by the accused before 

the final adjournment of the court-martial in that case if: 

(A) Dismissal is requried under R.C.M. 707; 

(B) The statute of limitations (Article 43) has run, provided that, if it appears that the accused is unaware 

of the right to assert the statute of limitations in bar of trial, the military judge shall inform the 

accused of this right; 

Discussion 

Except for certain offenses for which there is no limitation If sworn charges have been received by an officer exeras to time, see Article 43(a), a person charged with an offense cising summary court-martial jurisdiction over the command 

under the code may not be tried by court-martial over objection within the period of the statute, minor amendments (see R.C.M. 

if sworn charges have not been received by the officer exercising 603(a)) may be made in the specifications after the statute of 

summary court-martial jurisdiction over the command within limitations has run. However, if new charges are drafted or a 

the period of time prescribed-either two or three years de- major amendment made (see R.C.M. 603 (d)) after the statute 

pending on the offense. See Article 43(b) and (c). This period of limitations has run, prosecution is barred. 

may be tolled (Article 43(d)), extended (Article 43(e)), or sus- In some cases, the issue whether the statute of limitations 

pended (Article 43(f)) under certain circumstances. The pros- has run will depend on the findings on the general issue of 

ecution bears the burden of proving that the statute of limitations guilt. For example, if the accused is charged with desertion 

has been tolled, extended, or suspended if it appears that it has alleged to have occurred two and one-half years before receipt 

run. of charges by the officer exercising summary court-martial juSome offenses (for example, wrongful cohabitation) are risdiction, a finding of guilty of the lesser included offense of 

continuing offenses and any period of the offense occurring absence without leave would be subject to dismissal because 

within the statute of limitations is not barred. Absence without the statute of limitations had run as to that offense. Also, where 

leave, desertion, and fraudulent enlistment are not continuing the date of an offense is in dispute, a finding by the courtoffenses and are committed, respectively, on the day the person martial that the offense occurred at an earlier time may affect 

goes absent, deserts, or first receives pay or allowances under a determination as to the running of the statute of limitations. 

the enlistment. 

(C) The accused has previously been tried by court-martial or federal civilian court for the same offense, 

provided that: 

(i) No court-martial proceeding is a trial in the sense of this rule unless presentation of evidence on 

the general issue of guilt has begun; 

(ii) No court-martial proceeding which has been terminated under R.C.M. 604(b) or R.C.M. 915 shall 

bar later prosecution for the same offense or offenses, if so provided in those rules; 

(iii) No court-martial proceeding in which an accused has been found guilty of any charge or specification 

is a trial in the sense of this rule until the finding of guilty has become final after review of the case has been 

fully completed; and 

(iv) No court-martial proceeding which lacked jurisdiction to try the accused for the offense is a trial 

in the sense of this rule. 

(D) Prosecution is barred by: 

(i) A pardon issued by the President; 

Discussion 

A pardon may grant individual or general amnesty. 

(ii) Immunity from prosecution granted by a person authorized to do so; 

11-114 
R.C.M. 908(b)(4) 

Discussion 

See R.C.M. 704. 

(iii) Constructive condonation of desertion established by unconditional restoration to duty without trial 

of a deserter by a general court-martial convening authority who knew of the desertion; or 

(iv) Prior punishment under Articles 13 or 15 for the same offense, if that offense was minor. 

Discussion 

See Articles 13 and 15(f). See paragraph le of Part V for a definition of "minor" offenses. 

(3) Permissible grounds. A specification may be dismissed upon timely motion by the accused if: 

(A) 	The specification is so defective that it substantially misled the accused, and the military judge finds 

that, in the interest of justice, trial should proceed on remaining charges and specifications without 

undue delay; or 

(B) 	The specification is multiplicious with another specification, is unnecessary to enable the prosection 

to meet the exigencies of proof through trial, review, and appellate action, and should be dismissed 

in the interest of justice. 

Discussion 

A specification is multiplicious with another if it alleges multiplicity before trial unless it clearly alleges the same ofthe same offense, or an offense necessarily included in the other. fense, or one necessarily included therein, as is alleged in anA specification may also be multiplicious with another if they other specification. It may be appropriate to dismiss the less 

describe substantially the same misconduct in two different serious of any multiplicious specifications after findings have 

ways. For example, assault and disorderly conduct may be been reached. Due consideration must be given, however, to 

multiplicious if the disorderly conduct consists soley of the possible post-trial or appellate action with regard to the reassault. See also R.C.M. 1003(c)(l)(C). maining specification. 

Ordinarily, a specification should not be dismissed for 

Rule 908. Appeal by the United States 

(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 which excludes evidence that is substantial proof of a fact material in the proceedings. 

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. 

(b) Procedure. 

(1) Delay. After an order or ruling which may be subject to an appeal by the United States, the court-martial 

may not proceed, except as to matters unaffected by the ruling or order, if the trial counsel requests a delay to 

determine whether to file notice of appeal under this rule. Trial counsel is entitled to no more than 72 hours 

under this subsection. 

(2)Decision to appeal. The decision whether to file notice of appeal under this rule shall be made within 

72 hours of the ruling or order to be appealed. If the Secretary concerned so prescribes, the trial counsel shall 

not file notice of appeal unless authorized to do so by a person designated by the Secretary concerned. 

(3) Notice of appeal. If the United States elects to appeal, the trial counsel shall provide the military judge 

with written notice to this effect not later than 72 hours after the ruling or order. Such notice shall identify the 

ruling or order to be appealed and the charges and specifications affected. Trial counsel shall certify that the 

appeal is not taken for the purpose of delay and (if the order or ruling appealed is one which excludes evidence) 

that the evidence excluded is substantial proof of a fact material in the proceeding. 

(4) Effect on the court-martial. Upon written notice to the military judge under subsection (b)(3) of this 
R.C.M. 908(b)(4)(A) 

rule, no session of the court-martial may proceed pending disposition by the Court of Military Review of the 

appeal, except that solely as to charges and specifications not affected by the ruling or order: 

(A) Motions may be litigated, in the discretion of the military judge, at any point in the proceedings; 

(B) When trial on the merits has not begun, 

(i) a severance may be granted upon request of all the parties; 

(ii) a severance may be granted upon request of the accused and when appropriate under R.C.M. 

906(b)(10); or 

(C) When trial on the merits has begun but has not been completed, a party may, on that party's request 

and in the discretion of the military judge, present further evidence on the merits. 

(5)Record. Upon written notice to the military judge under subsection (b)(3) of this rule, trial counsel shall 

cause a record of the proceedings to be prepared. Such record shall be verbatim and complete to the extent 

necessary to resolve the issues appealed. R.C.M. 1103(g), (h), and (i) shall apply and the record shall be 

authenticated in accordance with R.C.M. 1104(a). The military judge or the Court of Military Review may direct 

that additional parts of the proceeding be included in the record; R.C.M. 1 104(d) shall not apply to such additions. 

(6) Forwarding. Upon written notice to the military judge under subsection (b)(3) of this rule, trial counsel 

shall promptly and by expeditious means forward the appeal to a representative of the Government designated 

by the Judge Advocate General. The matter forwarded shall include: a statement of the issues appealed; the 

record of the proceedings or, if preparation of the record has not been completed, a summary of the evidence; 

and such other matters as the Secretary concerned may prescribe. The person designated by the Judge Advocate 

General shall promptly decide whether to file the appeal with the Court of Military Review and notify the trial 

counsel of that decision. 

(7)Appeal filed. If the United States elects to file an appeal, it shall be filed directly with the Court of 

Military Review, in accordance with the rules of that court. 

(8) Appeal notfiled. If the United States elects not to file an appeal, trial counsel promptly shall notify the 

military judge and the other parties. 

(c) Appellate proceedings. 

(1) Appellate counsel. The parties shall be represented before appellate courts in proceedings under this 

rule as provided in R.C.M. 1202. Appellate Government counsel shall diligently prosecute an appeal under this 

rule. 

(2) Court of Military Review. An appeal under Article 62 shall, whenever practicable, have priority over 

all other proceedings before the Court of Military Review. In determining an appeal under Article 62, the Court 

of Military Review may take action only with respect to matters of law. 

(3) Action following decision of Court of Military Review. After the Court of Military Review has decided 

any appeal under Article 62, the accused may petition for review by the Court of Military Appeals, or the Judge 

Advocate General may certify a question to the Court of Military Appeals. The parties shall be notified of the 

decision of the Court of Military Review promptly. If the decision is adverse to the accused, the accused shall 

be notified of the decision and of the right to petition the Court of Military Appeals for review within 60 days 

orally on the record at the court-martial or in accordance with R.C.M. 1203(d). If the accused is notified orally 

on the record, trial counsel shall forward by expeditious means a certificate that the accused was so notified to 

the Judge Advocate General, who shall forward a copy to the clerk of the Court of Military Appeals when 

required by the Court. If the decision by the Court of Military Review permits it, the court-martial may proceed 

as to the affected charges and specifications pending further review by the Court of Military Appeals or the 

Supreme Court, unless either court orders the proceedings stayed. Unless the case is reviewed by the Court of 

Military Appeals, it shall be returned to the military judge or the convening authority for appropriate action in 

accordance with the decision of the Court of Military Review. If the case is reviewed by the Court of Military 

Appeals, R.C.M. 1204 and 1205 shall apply. 

(d) Military judge. For purposes of this rule, "military judge" does not include the president of a special courtmartial without a military judge. 
R.C.M. 9lO(b) 

Rule 909. Capacity of the accused to stand trial by court-martial 

(a) In general. No person may be brought to trial by court-martial unless that person possesses sufficient mental 

capacity to understand the nature of the proceedings against that person and to conduct or cooperate intelligently 

in the defense of the case. 

Discussion 

See also R.C.M. 916(k). 

(b) Presumption of capacity. A person is presumed to have the capacity to stand trial unless the contrary appears. 

(c) Determination at trial. 

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

Discussion 

The military judge rules finally on the mental capacity of military judge rules on the matter subject to objection by any 

the accused. The president of a special court-martial without a member. See R.C.M. 801(e). 

(2) Standard. When the issue of the accused's capacity to stand trial is raised, trial may not proceed unless 

it is established by a preponderance of the evidence that the accused possesses sufficient mental capacity to 

understand the nature of the proceedings against the accused and to conduct or cooperate intelligently in the 

defense of the case. 

Discussion 

If the accused is not found to possess sufficient mental dismissed. When appropriate, administrative action may be taken 

capacity to stand trial, the proceedings should be suspended. to discharge the accused from the service on grounds of mental 

Depending on the nature and potential duration of the accused's disability. Additional mental examinations may be directed at 

incapacity, the case may be continued or charges withdrawn or any stage of the proceedings as circumstances may require. 

Rule 910. Pleas 

(a) Alternatives. 

(1) In general. An accused may plead not guilty or guilty. An accused may plead, by exceptions or by 

exceptions and substitutions, not guilty to an offense as charged, but guilty to an offense included in that offense. 

A plea of guilty may not be received as to an offense for which the death penalty may be adjudged by the courtmartial. 

Discussion 

See paragraph 2, Part IV concerning lesser included of- A plea of guilty does not prevent the introduction of evfenses. A plea of guilty to a lesser included offense does not idence, either in support of the factual basis for the plea, or, 

bar the prosecution from proceeding on the offense as charged. after findings are entered, in aggravation. See R.C.M. 1001(b)(4). 

See also subsection (g) of this rule. 

(2) Conditional pleas. With the approval of the military judge and the consent of the Government, an 

accused may enter a conditional plea of guilty, resewing in writing the right, on further review or appeal, to 

review of the adverse determination of any specified pretrial motion. If the accused prevails on further review 

or appeal, the accused shall be allowed to withdraw the plea of guilty. The Secretary concerned may prescribe 

who may consent for the Government; unless otherwise prescribed by the Secretary concerned, the trial counsel 

may consent on behalf of the Government. 

(b) Refusal to plead; irregular plea. If an accused fails or refuses to plead, or makes an irregular, plea, the 

military judge shall enter a plea of not guilty for the accused. 
R.C.M. 9lO(c) 

Discussion 

An irregular plea includes pleas such as guilty without cations thereunder. When a plea is ambiguous, the military 

criminality or guilty to a charge but not guilty to all specifi- judge should have it clarified before proceeding further. 

(c) Advice to accused. Before accepting a plea of guilty, the military judge shall address the accused personally 

and inform the accused of, and determine that the accused understands, the following: 

(1) The nature of the offense to which the plea is offered, the mandatory minimum penalty, if any, provided 

by law, and the maximum possible penalty provided by law; 

Discussion 

The elements of each offense to which the accused has subsection (e) of this rule. 


pleaded guilty should be described to the accused. See also 


(2) In a general or special court-martial, if the accused is not represented by counsel, that the accused has 

the right to be represented by counsel at every stage of the proceedings; 

Discussion 

In a general or special court-martial, if the accused is not represented by counsel, a plea of guilty should not be accepted. 

(3) That the accused has the right to plead not guilty or to persist in that plea if already made, and that the 

accused has the right to be tried by a court-martial, and that at such trial the accused has the right to confront 

and cross-examine witnesses against the accused, and the right against self-incrimination; 

(4) That if the accused pleads guilty, there will not be a trial of any kind as to those offenses to which the 

accused has so pleaded, so that by pleading guilty the accused waives the rights described in subsection (c)(3) 

of this rule; and 

(5) That if the accused pleads guilty, the military judge will question the accused about the offenses to 

which the accused has pleaded guilty, and, if the accused answers these questions under oath, on the record, 

and in the presence of counsel, the accused's answers may later be used against the accused in a prosecution 

for perjury or false statement. 

Discussion 

The advice in subsection (5) is inapplicable in courts-martial in which the accused is not represented by counsel. 

(d) Ensuring that the plea is voluntary. The military judge shall not accept a plea of guilty without first, by 

addressing the accused personally, determining that the plea is voluntary and not the result of force or threats 

or of promises apart from a plea agreement under R.C.M. 705. The military judge shall also inquire whether 

the accused's willingness to plead guilty results from prior discussions between the convening authority, a 

representative of the convening authority, or trial counsel, and the accused or defense counsel. 

(e) Determining accuracy of plea. The military judge shall not accept a plea of guilty without making such 

inquiry of the accused as shall satisfy the military judge that there is a factual basis for the plea. The accused 

shall be questioned under oath about the offenses. 

Discussion 

A plea of guilty must be in accord with the truth. Before should explain such a defense to the accused and should not 

the plea is accepted, the accused must admit every element of accept the plea unless the accused admits facts which negate 

the offense(s) to which the accused pleaded guilty. Ordinarily, the defense. If the statute of limitations would otherwise bar 

the elements should be explained to the accused. If any potential trial for the offense, the military judge should not accept a plea 

defense is raised by the accused's account of the offense or by of guilty to it without an affirmative waiver by the accused. 

other matters presented to the military judge, the military judge See R.C.M. 907(b)(2)(B). 
R.C.M. 910(h)(l) 

The accused need not describe from personal recollection an offense, but may still be able to adequately describe the 

all the circumstances necessary to establish a factual basis for offense based on witness statements or similar sources which 

the plea. Nevertheless the accused must be convinced of, and the accused believes to be true. 

able to describe all the facts necessary to establish guilt. For The accused should remain at the counsel table during 

example, an accused may be unable to recall certain events in questioning by the military judge. 

(f) Plea agreement inquiry. 

(1) In general. A plea agreement may not be accepted if it does not comply with R.C.M. 705. 

(2) Notice. The parties shall inform the military judge if a plea agreement exists. 

Discussion 

The military judge should ask whether a plea agreement have an obligation to bring any agreements or understandings 

exists. See subsection (d) of this rule. Even if the military judge in connection with the plea to the attention of the military judge. 

fails to so inquire or the accused answers incorrectly, counsel 

(3) Disclosure. If a plea agreement exists, the military judge shall require disclosure of the entire agreement 

before the plea is accepted, provided that in trial before military judge alone the military judge ordinarily shall 

not examine any sentence limitation contained in the agreement until after the sentence of the court-martial has 

been announced. 

(4)Inquiry. The military judge shall inquire to ensure: 

(A) That the accused understands the agreement; and 

(B) That the parties agree to the terms of the agreement. 

Discussion 

If the plea agreement contains any unclear or ambiguous any terms in the agreement, the military judge should explain 

terms, the military judge should obtain clarification from the those terms to the accused. 

parties. If there is doubt about the accused's understanding of 

(g) Findings. Findings based on a plea of guilty may be entered immediately upon acceptance of the plea at an 

Article 39(a) session unless: 

(1) Such action is not permitted by regulations of the Secretary concerned; 

(2) The plea is to a lesser included offense and the prosecution intends to proceed to trial on the offense 

as charged; or 

(3) Trial is by a special court-martial without a military judge, in which case the president of the courtmartial may enter findings based on the pleas without a formal vote except when subsection (g)(2) of this rule 

applies. 

Discussion 

If the accused has pleaded guilty to some specifications appropriate to defer informing the members of the specifications 

but not others, the military judge should consider, and solicit to which the accused has pleaded guilty until after findings on 

the views of the parties, whether to inform the members of the the remaining specifications are entered. 

offenses to which the accused has pleaded guilty. It is ordinarily 

(h) Later action. 

(1) Withdrawal by the accused. If after acceptance of the plea but before the sentence is announced the 

11-119 
R.C.M. 910(h)(2) 

accused requests to withdraw a plea of guilty and substitute a plea of not guilty or a plea of guilty to a lesser 

included offense, the military judge may as a matter of discretion permit the accused to do so. 

(2) Statements by accused inconsistent with plea. If after findings but before the sentence is announced the 

accused makes a statement to the court-martial, in testimony or otherwise, or presents evidence which is 

inconsistent with a plea of guilty on which a finding is based, the military judge shall inquire into the providence 

of the plea. If, following such inquiry, it appears that the accused entered the plea improvidently or through 

lack of understanding of its meaning and effect a plea of not guilty shall be entered as to the affected charges 

and specifications. 

Discussion 

When the accused withdraws a previously accepted plea of the request for trial by military judge alone will ordinarily 

for guilty or a plea of guilty is set aside, counsel should be be necessary when a plea is rejected or withdrawn after findings; 

given a reasonable time to prepare to proceed. In a trial by in trial with members, a mistrial will ordinarily be necessary. 

military judge alone, recusal of the military judge or disapproval 

(3) Pretrial agreement inquiry. After sentence is announced the military judge shall inquire into any parts 

of a pretrial agreement which were not previously examined by the military judge. If the military judge determines 

that the accused does not understand the material terms of the agreement, or that the parties disagree as to such 

terms, the military judge shall conform, with the consent of the Government, the agreement to the accused's 

understanding or permit the accused to withdraw the plea. 

Discussion 

See subsection (f)(3) of this rule. 

(i) Record of proceedings. A verbatim record of the guilty plea proceedings shall be made in cases in which a 

verbatim record is required under R.C.M. 1103. In other special courts-martial, a summary of the explanation 

and replies shall be included in the record of trial. As to summary courts-martial, see R.C.M. 1305. 

(i)Waiver. Except as provided in subsection (a)(2) of this rule, a plea of guilty which results in a finding of 

guilty waives any objection, whether or not previously raised, insofar as the objection relates to the factual issue 

of guilt of the offense(s) to which the plea was made. 

Rule 911. Assembly of the court-martial 

The military judge shall announce the assembly of the court-martial. 

Discussion 

When trial is by a court-martial with members, the court- ordinarily assembled immediately following approval of the 

martial is ordinarily assembled immediately after the members request for trial by military judge alone. 

are sworn. The members are ordinarily sworn at the first session Assembly of the court-martial is significant because it marks 

at which they appear, as soon as all parties and personnel have the point after which: substitution of the members and military 

been announced. The members are seated with the president, judge may no longer take place without good cause (see Article 

who is the senior member, in the center, and the other members 29; R.C.M. 505; 902; 912); the accused may no longer, as a 

alternately to the president's right and left according to rank. matter of right, request trial by military judge alone or withdraw 

If the rank of a member is changed, or if the membership of such a request previously approved (see Article 16; R.C.M. 

the court-martial changes, the members should be reseated ac- 903(a)(Z),(d)); and the accused may no longer request, even 

cordingly. with the permission of the military judge, or withdraw from a 

When trial is by military judge alone, the court-martial is 	 request for, enlisted members (see Article 25(c)(l); R.C.M. 

903(a)(l),(d)). 

Rule 912. Challenge of selection of members; examination and challenges of members 

(a) Pretrial matters. 

11-120 
R.C.M. 912(b)(2) 

(1) Questionnaires. Before trial the trial counsel may, and shall upon request of the defense counsel, submit 

to each member written questions requesting the following information: 

(A) Date of birth; 

(B) 	Sex; 

(C) Race; 

(D) Marital status and sex, age, and number of dependents; 

(E) 	Home of record; 

(F) 	Civilian and military education, including, when available, major areas of study, name of school or 

institution, years of education, and degrees received; 

(G) Current unit to which assigned; 

(H) Past duty assignments; 

(I) 	Awards and decorations received; 

(J) 	 Date of rank; and 

(K) Whether the member has acted as accuser, counsel, investigating officer, convening authority, or 

legal officer or staff judge advocate for the convening authority in the case, or has forwarded the 

charges with a recommendation as to disposition. 

Additional information may be requested with the approval of the military judge. Each member's responses to 

the questions shall be written and signed by the member. 

Discussion 

Using questionnaires before trial may expedite voir dire the court-martial it must be attached to or included in the record 

and may permit more informed exercise of challenges. of trial. See R.C.M. 1103(b)(2)(D)(iv) and (b)(3)(B). 

If the questionnaire is marked or admitted as an exhibit at 

(2)Other materials. A copy of any written materials considered by the convening authority in selecting the 

members detailed to the court-martial shall be provided to any party upon request, except that such materials 

pertaining solely to persons who were not selected for detail as members need not be provided unless the military 

judge, for good cause, so directs. 

(b) Challenge of selection ofmembers. 

(1) Motion. Before the examination of members under subsection (d) of this rule begins, or at the next 

session after a party discovered or could have discovered by the exercise of diligence, the grounds therefor, 

whichever is earlier, that party may move to stay the proceedings on the ground that members were selected 

improperly. 

Discussion 

See R.C.M. 502(a) and 503(a) concerning selection of ample, a certain group or class is arbitrarily excluded from 

members. Members are also improperly selected when, for ex- consideration as members. 

(2)Procedure. Upon a motion under subsection (b)(l) of this rule containing an offer of proof of matters 

which, if true, would constitute improper selection of members, the moving party shall be entitled to present 

evidence, including any written materials considered by the convening authority in selecting the members. Any 

other party may also present evidence on the matter. If the military judge determines that the members have 

been selected improperly, the military judge shall stay any proceedings requiring the presence of members until 

members are properly selected. 
R.C.M. 912(b)(3) 

(3) Waiver. Failure to make a timely motion under this subsection shall waive the improper selection unless 

it constitutes a violation of R.C.M.501(a), 502(a)(l), or 503(a)(2). 

(c) Stating grounds for challenge. The trial counsel shall state any ground for challenge for cause against any 

member of which the trial counsel is aware. 

(d) Examination of members. The military judge may permit the parties to conduct the examination of members 

or may personally conduct the examination. In the latter event the military judge shall permit the parties to 

supplement the examination by such further inquiry as the military judge deems proper or the military judge 

shall submit to the members such additional questions by the parties as the military judge deems proper. A 

member may be questioned outside the presence of other members when the military judge so directs. 

Discussion 

Examination of the members is called "voir dire." If the defense. Whether trial counsel will question all the members 

members have not already been placed under oath for the pur- before the defense begins or whether some other procedure will 

pose of voir dire (see R.C.M.807(b)(2) Discussion (B)), they be followed depends on the circumstances. For example, when 

should be sworn before they are questioned. members are questioned individually outside the presence of 

The opportunity for voir dire should be used to obtain other members, each party would ordinarily complete quesinformation for the intelligent exercise of challenges; counsel tioning that member before another member is questioned. The 

should not purposely use voir dire to present factual matter military judge and each party may conduct additional queswhich will not be admissible or to argue the case. tioning, after initial questioning by a party, as necessary. 

The nature and scope of the examination of members is Ordinarily the members should be asked whether they are 

within the discretioh of the military judge. Members may be aware of any ground for challenge against them. This may 

questioned individually or collectively. Ordinarily, the military expedite further questioning. The members should be cautioned, 

judge should permit counsel to personally question the mem- however, not to disclose information in the presence of other 

bers. Trial counsel ordinarily conducts an inquiry before the members which might disqualify them. 

(e) Evidence. Any party may present evidence relating to whether grounds for challenge exist against a member. 

(f) Challenges and removal for cause. 

(1) Grounds. A member shall be excused for cause whenever it appears that the member: 

(A) Is not competent to serve as a member under Article 25(a), (b), or (c); 

(B) Has not been properly detailed as a member of the court-martial; 

(C) Is an accuser as to any offense charged; 

(D) Will be a witness in the court-martial; 

(E) Has acted as counsel for any party as to any offense charged; 

(F) 	Has been an investigating officer as to any offense charged; 

(G) Has acted in the same case as convening authority or as the legal officer or staff judge advocate to 

, the convening authority; 

(H) Will act in the same case as reviewing authority or as the legal officer or staff judge advocate to the 

reviewing authority; 

(I) 	 Has forwarded charges in the case with a personal recommendation as to disposition; 

(J) 	 Upon a rehearing or new or other trial of the case, was a member of the court-martial which heard 

the case before; 

(K) Is junior to the accused in grade or rank, unless it is established that this could not be avoided; 

(L) Is in arrest or confinement; 

(M) Has informed or expressed a definite opinion as to the guilt or innocence of the accused as to any 

offense charged; 
R.C.M. 912(g)(2) 

(N) Should not sit as a member in the interest of having the court-martial free from substantial doubt as 

to legality, fairness, and impartiality. 

Discussion 

Examples of matters which may be grounds for challenge or counsel in the trial of a closely related case; has a decidely 

under subsection (N) are that the member: has a direct personal friendly or hostile attitude toward a party; or has an inelastic 

interest in the result of the trial; is closely related to the accused, opinion concerning an appropriate sentence for the offenses 

a counsel, or a witness in the case; has participated as a member charged. 

(2) When made. 

(A) Upon completion of examination. Upon completion of any examination under subsection (d) of this 

rule and the presentation of evidence, if any, on the matter, each party shall state any challenges for 

cause it elects to make. 

(B) Other times. A challenge for cause may be made at any other time during trial when it becomes 

apparent that a ground for challenge may exist. Such examination of the member and presentation 

of evidence as may be necessary may be made in order to resolve the matter. 

(3) Procedure. Each party shall be permitted to make challenges outside the presence of the members. The 

party making a challenge shall state the grounds for it. Ordinarily the trial counsel shall enter any challenges for 

cause before the defense counsel. The military judge shall rule finally on each challenge. When a challenge for 

cause is granted, the member concerned shall be excused. The burden of establishing that grounds for a challenge 

exist is upon the party making the challenge. A member successfully challenged shall be excused. 

(4) Waiver. The grounds for challenge in subsection (f)(l)(A) of this rule may not be waived except that 

membership of enlisted members in the same unit as the accused may be waived. Membership of enlisted members 

in the same unit as the accused and any other ground for challenge is waived if the party knew of or could have 

discovered by the exercise of diligence the ground for challenge and failed to raise it in a timely manner. 

Notwithstanding the absence of a challenge or waiver of a challenge by the parties, the military judge may, in 

the interest of justice, excuse a member against whom a challenge for cause would lie. When a challenge for 

cause has been denied, failure by the challenging party to exercise a peremptory challenge against any member 

shall constitute waiver of further consideration of the challenge upon later review. However, when a challenge 

for cause is denied, a peremptory challenge by the challenging party against any member shall preserve the issue 

for later review, provided that when the member who was unsuccessfully challenged for cause is peremptorily 

challenged by the same party, that party must state that it would have exercised its peremptory challenge against 

another member if the challenge for cause had been granted. 

Discussion 

See also Mil. R. Evid. 606(b) when a member may be a witness. 

(g) Peremptory challenges. 

(1) Procedure. Each party may challenge one member peremptorily. Any member so challenged shall be 

excused. No party may be required to exercise a peremptory challenge before the examination of members and 

determination of any challenges for cause has been completed. Ordinarily the trial counsel shall enter any 

peremptory challenge before the defense. 

Discussion 

No reason is necessary for a peremptory challenge. 

(2) Waiver. Failure to exercise a peremptory challenge when properly called upon to do so shall waive the 

right to make such a challenge. The military judge may, for good cause shown, grant relief from the waiver, 

but a peremptory challenge may not be made after the presentation of evidence before the members has begun. 

However, nothing in this subsection shall bar the exercise of a previously unexercised peremptory challenge 
R.C.M. 912(h) 

against a member newly detailed under R.C.M. 505(c)(2)(B), even if presentation of evidence on the merits has 

begun. 

Discussion 

When the membership of the court-martial has been re- adjourned and the convening authority notified so that new 

duced below a quorum (see R.C.M. 501) or, when enlisted members may be detailed. See R.C.M. 505. See also R.C.M. 

members have been requested, the fraction of enlisted members 805(d) concerning other procedures when new members are 

has been reduced below one-third, the proceedings should be detailed. 

(h) Special courts-martial without a militaly judge. In a special court-martial without a military judge, the 

procedures in this rule shall apply, except that challenges shall be made in the presence of the members and a 

ruling on any challenge for cause shall be decided by a majority vote of the members upon secret written ballot 

in closed session. The challenged member shall not be present at the closed session at which the challenge is 

decided. A tie vote on a challenge disqualifies the member challenged. Before closing, the president shall give 

such instructions as may be necessary to resolve the challenge. Each challenge shall be decided separately, and 

all unexcused members except the challenged member shall participate. When only three members are present 

and one is challenged, the remaining two may decide the challenge. When the president is challenged, the next 

senior member shall act as president for purposes of deciding the challenge. 

(i) Definitions. 

(1) Military judge. For purpose of this rule, "military judge" does not include the president of a special 

court-martial without a military judge. 

(2) Witness. For purposes of this rule, "witness" includes one who testifies at a court-martial and anyone 

whose declaration is received in evidence for any purpose, including written declarations made by affidavit or 

otherwise. 

Discussion 

For example, a person who by certificate has attested or troduced in evidence is a witness. 


otherwise authenticated an official record or other writing in- 


(3) Investigating ofSicer. For purposes of this rule, "investigating officer" includes any person who has 

investigated charges under R.C.M. 405 and any person who as counsel for a member of a court of inquiry, or 

otherwise personally has conducted an investigation of the general matter involving the offenses charged. 

Rule 913. Presentation of the case on the merits 

(a) Preliminary instructions. The military judge may give such preliminary instructions as may be appropriate. 

Discussion 

Preliminary instructions may include a description of the martial, and other appropriate matters. 


duties of members, procedures to be followed in the court- 


(b) Opening statements. Each party may make one opening statement to the court-martial before presentation of 

evidence has begun. The defense may elect to make its statement after the prosecution has rested, before the 

presentation of evidence for the defense. The military judge may, as a matter of discretion, permit the parties 

to address the court-martial at other times. 

Discussion 

Counsel should confine their remarks to evidence they available and admissible and a brief statement of the issues in 

expect to be offered which they believe in good faith will be the case. 
R.C.M. 913(c)(4) 

(c) Presentation of evidence. Each party shall have full opportunity to present evidence. 

(1) Order of presentation. Ordinarily the following sequence shall be followed: 

(A) Presentation of evidence for the prosecution; 

(B) Presentation of evidence for the defense; 

(C) Presentation of prosecution evidence in rebuttal; 

(D) Presentation of defense evidence in surrebuttal; 

(E) Additional rebuttal evidence in the discretion of the military judge; and 

(F) Presentation of evidence requested by the military judge or members. 

Discussion 

See R.C.M. 801(a) and Mil. R. Evid. 61 1 concerning control by the military judge over the order of proceedings. 

(2) Taking testimony. The testimony of witnesses shall be taken orally in open session, unless otherwise 

provided in this Manual. 

Discussion 

Each witness must testify under oath. See R.C.M. objects, such as clothing, weapons, and marks or wounds on a 

807(b)(l)(B); Mil. R. Evid. 603. After a witness is sworn, the person's body. If it is impracticable to attach an item of real 

witness should be identified for the record (full name, rank, evidence to the record, the item should be clearly and accurately 

and unit, if military, or full name and address, if civilian). The described by testimony, photographs, or other means so that it 

party calling the witness conducts direct examination of the may be considered on review. Similarly, when documentary 

witness, followed by cross-examination of the witness by the evidence is used, if the document cannot be attached to the 

opposing party. Redirect and re-cross-examination are con- record (as in the case of an original official record or a large 

ducted as necessary, followed by any questioning by the military map), a legible copy or accurate extract should be included in 

judge and members. See Mil. R. Evid. 61 1; 614. the record. When a witness points to or otherwise refers to 

All documentary and real evidence (except marks or wounds certain parts of a map, photograph, diagram, chart, or other 

on a person's body) should be marked for identification when exhibit, the place to which the witness pointed or referred should 

first referred to in the proceedings and should be included in be clearly identified for the record, either by marking the exhibit 

the record of trial whether admitted in evidence or not. See or by an accurate description of the witness' actions with regard 

R.C.M. 1 103(b)(2)(C), (c). "Real evidence" includes physical to the exhibit. 

(3) Views and inspections. The military judge may, as a matter of discretion, permit the court-martial to 

view or inspect premises or a place or an article or object. Such a view or inspection shall take place only in 

the presence of all parties, the members (if any), and the military judge. A person familiar with the scene may 

be designated by the military judge to escort the court-martial. Such person shall perform the duties of escort 

under oath. The escort shall not testify, but may point out particular features prescribed by the military judge. 

Any statement made at the view or inspection by the escort, a party, the military judge. or any member shall 

be made part of the record. 

Discussion 

A view or inspection should be permitted only in extraor- evidence of photographs, diagrams, maps, or sketches of the 

dinary circumstances. The fact that a view or inspection has place or item viewed, if these are otherwise admissible. 

been made does not necessarily preclude the introduction in 

(4) Evidence subject to exclusion. When offered evidence would be subject to exclusion upon objection, 

11-1 25 
R.C.M. 913(c)(5) 

the military judge may, as a matter of discretion, bring the matter to the attention of the parties and may, in the 

interest of justice, exclude the evidence without an objection by a party. 

Discussion 

The military judge should not exclude evidence which is evidence without unnecessary interference by the military judge. 

not objected to by aparty except in extraordinary circumstances. See also Mil. R. Evid. 103. 

Counsel should be permitted to try the case and present the 

(5) Reopening case. The military judge may, as a matter of discretion, permit a party to reopen its case 

after it has rested. 

Rule 914. Production of statements of witnesses 

(a) Motion for production. After a witness other than the accused has testified on direct examination, the military 

judge, on motion of a party who did not call the witness, shall order the party who called the witness to produce, 

for examination and use by the moving party, any statement of the witness that relates to the subject matter 

concerning which the witness has testified, and that is: 

(1) In the case of a witness called by the trial counsel, in the possession of the United States; or 

(2) In the case of a witness called by the defense, in the possession of the accused or defense counsel. 

Discussion 

See also R.C.M. 701 (Discovery). This rule does not apply to investigations under Article 32. 

Counsel should anticipate legitimate demands for state- As to procedures for certain government information as to 

ments under this and similar rules and avoid delays in the which a privilege is asserted, see Mil. R. Evid. 505; 506. 

proceedings by voluntary disclosure before arraignment. 

(b) Production of entire statement. If the entire contents of the statement relate to the subject matter concerning 

which the witness has testified, the military judge shall order that the statement be delivered to the moving party. 

(c) Production of excised statement. If the party who called the witness claims that the statement contains matter 

that does not relate to the subject matter concerning which the witness has testified, the military judge shall 

order that it be delivered to the military judge. Upon inspection, the military judge shall excise the portions of 

the statement that do not relate to the subject matter concerning which the witness has testified, and shall order 

that the statement, with such material excised, be delivered to the moving party. Any portion of a statement that 

is withheld from an accused over objection shall be prese~ed by the trial counsel, and, in the event of a 

conviction, shall be made available to the reviewing authorities for the purpose of determining the correctness 

of the decision to excise the portion of the statement. 

(d) Recess for examination of the statement. Upon delivery of the statement to the moving party, the military 

judge may recess the trial for the examination of the statement and preparation for its use in the trial. 

(el Remedy for failure to produce statement. If the other party elects not to comply with an order to deliver a 

statement to the moving party, the military judge shall order that the testimony of the witness be disregarded by 

the trier of fact and that the trial proceed, or, if it is the trial counsel who elects not to comply, shall declare a 

mistrial if required in the interest of justice. 

(f) Definition. As used in this rule, a "statement" of a witness means: 

(1) A written statement made by the witness that is signed or otherwise adopted or approved by the witness; 

(2) A substantially verbatim recital of an oral statement made by the witness that is recorded contemporaneously with the making of the oral statement and contained in a stenographic, mechanical, electrical, or other 

recording or a transcription thereof; or 
R.C.M. 916(a) 

(3) A statement, however taken or recorded, or a transcription thereof, made by the witness to a Federal 

grand jury. 

Rule 915. Mistrial 

(a) In general. The military judge may, as a matter of discretion, declare a mistrial when such action is manifestly 

necessary in the interest of justice because of circumstances arising during the proceedings which cast substantial 

doubt upon the fairness of the proceedings. A mistrial may be declared as to some or all charges, and as to the 

entire proceedings or as to only the proceedings after findings. 

Discussion 

The power to grant a mistrial should be used with great trial is appropriate when the proceedings must be terminated 

caution, under urgent circumstances, and for plain and obvious because of a legal defect, such as a jurisdictional defect, which 

reasons. As examples, a mistrial may be appropriate when in- can be cured; for example, when the referral is jurisdictionally 

admissible matters so prejudicial that a curative instruction would defective. See also R.C.M. 905(g) concerning the effect of 

be inadequate are brought to the attention of the members or rulings in one proceeding on later proceedings. 

when members engage in prejudicial misconduct. Also a mis-

(b) Procedure. On motion for a mistrial or when it otherwise appears that grounds for a mistrial may exist, the 

military judge shall inquire into the views of the parties on the matter and then decide the matter as an interlocutory 

question. 

Discussion 

Except in a special court-martial without a military judge, of the members. 


the hearing on a mistrial should be conducted out of the presence 


(c) Effect of declaration of mistrial. 

(1) Withdrawal of charges. A declaration of a mistrial shall have the effect of withdrawing the affected 

charges and specifications from the court-martial. 

Discussion 

Upon declaration of a mistrial, the affected charges are or otherwise dispose of them. See R.C.M. 401-407. 


returned to the convening authority who may refer them anew 


(2)Further proceedings. A declaration of a mistrial shall not prevent trial by another court-martial on the 

affected charges and specifications except when the mistrial was declared after jeopardy attached and before 

findings, and the declaration was: 

(A) An abuse of discretion and without the consent of the defense; or 

(B) The direct result of intentional prosecutorial misconduct designed to necessitate a mistrial. 

Rule 916. Defenses 

(a) In general. As used in this rule, "defenses" includes any special defense which, although not denying that 

the accused committed the objective acts constituting the offense charged, denies, wholly or partially, criminal 

responsibility for those acts. 

Discussion 

Special defenses are also called "affirmative defenses." of the acts constituting the offense. As to evidence of the ac- 

"Alibi" and "good character" are not special defenses, cused's good character, see Mil. R. Evid. 404(a)(l). See R.C.M. 

as they operate to deny that the accused committed one or more 701(b)(l) concerning notice of alibi. 
R.C.M. 916(b) 

(b) Burden of proof. Once a defense under this rule is placed in issue by some evidence, the prosecution shall 

have the burden of proving beyond a reasonable doubt that the defense did not exist. 

Discussion 

A defense may be raised by evidence presented by the More than one defense may be raised as to a particular 

defense, the prosecution, or the court-martial. For example, in offense. The defenses need not necessarily be consistent. 

a prosecution for assault, testimony by prosecution witnesses See R.C.M. 920(e)(3) concerning instructions on defenses. 

that the victim brandished a weapon toward the accused may 

raise a defense of self-defense. See subsection (e) below. 

(c) JustiJication. A death, injury, or other act caused or done in the proper performance of a legal duty is justified 

and not unlawful. 

Discussion 

The duty may be imposed by statute, regulation, or order. apprehension is justified because the duty to apprehend is imFor example, the use of force by a law enforcement officer posed by lawful authority. Also, killing an enemy combatant 

when reasonably necessary in the proper execution of a lawful in battle is justified. 

(d) Obedience to orders. It is a defense to any offense that the accused was acting pursuant to orders unless the 

accused knew the orders to be unlawful or a person of ordinary sense and understanding would have known the 

orders to be unlawful. 

Discussion 

Ordinarily the lawfulness of an order is finally decided by See subsection (c) of this rule. An act performed pursuant to 

the military judge. See R.C.M. 801(e). An exception might an unlawful order is excused unless the accused knew it to be 

exist when the sole issue is whether the person who gave the unlawful or a person of ordinary sense and understanding would 

order in fact occupied a certain position at the time. have known it to be unlawful. 

An act performed pursuant to a lawful order is justified. 

(e) Self-defense. 

(1) Homicide or aggravated assault cases. It is a defense to a homicide or assault in which the accused 

intended to kill or inflict grievous bodily harm that the accused: 

(A) Apprehended, on reasonable grounds, that death or grievous bodily harm was about to be inflicted 

wrongfully on the accused; and 

(B) Believed that the force the accused used was necessary for protection against death or grievous bodily 

harrn. 

Discussion 

The test for the first element of self-defense is objective. in determining the reasonableness of the apprehension of death 

Thus, the accused's apprehension of death or grievous bodily or grievous bodily harm. 

harm must have been one which a reasonable, prudent person The test for the second element is entirely subjective. The 

would have held under the circumstances. Because this test is accused is not objectively limited to the use of reasonable force. 

objective, such matters as intoxication or emotional instability Accordingly, such matters as the accused's emotional control, 

of the accused are irrelevant. On the other hand, such matters education, and intelligence are relevant in determining the acas the relative height, weight, and general build of the accused cused's actual belief as to the force necessary to repel the attack. 

and the alleged victim, and the possibility of safe retreat are See also Mil. R. Evid. 404(a)(2) as to evidence concerning 

ordinarily among the circumstances which should be considered the character of the victim. 

(2) Certain aggravated assault cases. It is a defense to assault with a dangerous weapon or means likely 

to produce death or grievous bodily harm that the accused: 
R.C.M. 916(e)(5) 

(A) Apprehended, on reasonable grounds, that bodily harm was about to be inflicted wrongfully on the 

accused; and 

(B) In order to deter the assailant, offered but did not actually apply or attempt to apply such means or 

force as would be likely to cause death or grievous bodily harm. 

Discussion 

The principles in the discussion of subsection (e)(l) of this 

rule concerning reasonableness of the apprehension of bodily 

harm apply here. 

If, as a result of the accused's offer of a means or force 

likely to produce grievous bodily harm, the victim was killed 

or injured unintentionally by the accused, this aspect of selfdefense may operate in conjunction with the defense of accident 

(see subsection (f) of this rule) to excuse the accused's acts. 

The death or injury must have been an unintended and unexpected result of the accused's exercise of the right of selfdefense. 

(3) Other assaults. It is a defense to any assault punishable under Article 90, 91, or 128 and not listed in 

subsections (c)(l) or (2) of this rule that the accused: 

(A) Apprehended, upon reasonable grounds, that bodily harm was about to be inflicted wrongfully on 

the accused; and 

(B) 	Believed that the force the accused used was necessary for protection against bodily harm, provided 

that the force used by the accused was less than force reasonably likely to produce death or grievous 

bodily harm. 

Discussion 

The principles in the discussion under subsection (e)(l) 

apply here. 

If, in using only such force as the accused was entitled to 

use under this aspect of self-defense, death or serious injury to 

the victim results, this aspect of self-defense may operate in 

conjunction with the defense of accident (see subsection (f)of 

this rule) to excuse the accused's acts. The death or serious 

injury must have been an unintended and unexpected result of 

the accused's proper exercise of the right of self-defense. 

(4)Loss of right to self-defense. The right to self-defense is lost and the defenses described in subsections 

(e)(l), (2), and (3) of this rule shall not apply if the accused was an aggressor, engaged in mutual combat, or 

provoked the attack which gave rise to the apprehension, unless the accused had withdrawn in good faith after 

the aggression, combat, or provocation and before the offense alleged occurred. 

Discussion 

A person does not become an aggressor or provocator 

merely because that person approaches another to seek an interview, even if the approach is not made in a friendly manner. 

For example, one may approach another and demand an explanation of offensive words or redress of a complaint. If the 

approach is made in a nonviolent manner, the right to selfdefense is not lost. 

Failure to retreat, when retreat is possible, does not deprive 

the accused of the right to self-defense if the accused was 

lawfully present. The availability of avenues of retreat is one 

factor which may be considered in addressing the reasonableness of the accused's apprehension of bodily ham and the 

sincerity of the accused's belief that the force used was necessary for self-protection. 

(5)Defense of another. The principles of self-defense under subsections (e)(l) through (4) of this rule apply 

to defense of another. It is a defense to homicide, attempted homicide, assault with intent to kill, or any assault 

under Article 90, 91, or 128 that the accused acted in defense of another, provided that the accused may not 

use more force than the person defended was lawfully entitled to use under the circumstances. 

Discussion 

The accused acts at the accused's peril when defending commits on the apparent assailant if, unbeknownst to the acanother. Thus, if the accused goes to the aid of an apparent cused, the apparent victim was in fact the aggressor and not 

assault victim, the accused is guilty of any assault the accused entitled to use self-defense. 
R.C.M. 916(f) 

(f) Accident. A death, injury, or other event which occurs as the unintentional and unexpected result of doing 

a lawful act in a lawful manner is an accident and excusable. 

Discussion 

The defense of accident is not available when the act which caused the death, injury, or event was a negligent act. 

(g) Entrapment. It is a defense that the criminal design or suggestion to commit the offense originated in the 

Government and the accused had no predisposition to commit the offense. 

Discussion 

The "Government" includes agents of the Government the criminal conduct is the product of the creative activity of 

and persons cooperating with them (for example, informants). law enforcement officials. 

The fact that persons acting for the Government merely afford When the defense of entrapment is raised, evidence of 

opportunities or facilities for the commission of the offense uncharged misconduct by the accused of a nature similar to that 

does not constitute entrapment. Entrapment occurs only when charged is admissible to show predisposition. See Mil. R. Evid. 

404(b). 

(h) Coercion or duress. It is a defense to any offense except killing an innocent person that the accused's 

participation in the offense was caused by a reasonable apprehension that the accused or another innocent person 

would be immediately killed or would immediately suffer serious bodily injury if the accused did not commit 

the act. The apprehension must reasonably continue throughout the commission of the act. If the accused has 

any reasonable opportunity to avoid committing the act without subjecting the accused or another innocent person 

to the harm threatened, this defense shall not apply. 

Discussion 

The immediacy of the harm necessary may vary with the contact law enforcement officials or otherwise protect the incircumstances. For example, a threat to kill a person's wife the tended victim or avoid committing the offense before then. 

next day may be immediate if the person has no opportunity to 

(i) Inability. It is a defense to refusal or failure to perform a duty that the accused was, through no fault of the 

accused, not physically or financially able to perform the duty. 

Discussion 

The test of inability is objective in nature. The accused's through the accused's own fault or design, it is not a defense. 

opinion that a physical impairment prevented performance of For example, if the accused, having knowledge of an order to 

the duty will not suffice unless the opinion is reasonable under get a haircut, spends money on other nonessential items, the 

all the circumstances. accused's inability to pay for the haircut would not be a defense. 

If the physical or financial inability of the accused occurred 

(j) Ignorance or mistake of fact. Except as otherwise provided in this subsection, it is a defense to an offense 

that the accused held, as a result of ignorance or mistake, an incorrect belief of the true circumstances such that, 

if the circumstances were as the accused believed them, the accused would not be guilty of the offense. If the 

ignorance or mistake goes to an element requiring premeditation, specific intent, willfulness, or knowledge of 

a particular fact, the ignorance or mistake need only have existed in the mind of the accused. If the ignorance 

or mistake goes to any other element requiring only general intent or knowledge, the ignorance or mistake must 

have existed in the mind of the accused and must have been reasonable under all the circumstances. However, 

if the accused's knowledge or intent is immaterial as to an element, then ignorance or mistake is not a defense. 
R.C.M. 916(1) 

Discussion 

Examples of ignorance or mistake which need only exist orable failure to maintain sufficient funds); the element of reain fact include: ignorance of the fact that the person assaulted sonableness must be applied in accordance with the standards 

was an officer; belief that property allegedly stolen belonged imposed by such offenses. 

to the accused; belief that a controlled substance was really Examples of offenses in which the accused's intent or 

sugar. knowledge is immaterial include: carnal knowledge (accused's 

Examples of ignorance or mistake which must be reason- knowledge of age of victim immaterial); improper use of countable as well as actual include: belief that the accused charged ersign (mistake as to authority of person to whom disclosed not 

with unauthorized absence had permission to go; belief that the a defense). Such ignorance or mistake may be relevant in exaccused had a medical "profile" excusing shaving as otherwise tenuation and mitigation, however. 

required by regulation. Some offenses require special standards See subsection ([)(I) of this rule concerning ignorance or 

of conduct (see, for example, paragraph 68, Part IV, Dishon- mistake of law. 

(k) Lack of mental responsibility. 

(1) General lack of mental responsibility. It is a defense to any offense that the accused was not mentally 

responsible for it. A person is not responsible for criminal conduct if at the time of such conduct as a result of 

mental disease or defect the person lacks substantial capacity to appreciate the criminality of that person's conduct 

or to conform that person's conduct to the requirements of law. As used in this rule, the terms "mental disease 

or defect" do not include an abnormality manifested only by repeated criminal or otherwise antisocial behavior. 

Discussion 

See R.C.M. 706 concerning sanity inquiries. See also R.C.M. 909 concerning the capacity of the accused to stand trial. 

(2)Partial mental responsibility. A mental condition not amounting to a general lack of mental responsibility 

under subsection (k)(l) of this rule but which produces a lack of mental ability at the time of the offense to 

possess actual knowledge or to entertain a specific intent or a premeditated design to kill is a defense to an 

offense having one of these states of mind as an element. 

(3) Procedure. 

(A) Presumption. The accused is presumed to have been mentally responsible at the time of the alleged 

offense. This presumption continues until some evidence to the contrary is admitted. 

Discussion 

Once some evidence of lack of mental responsibility is Once the issue of lack of mental responsibility is raised, 

admitted, the presumption disappears, although an inference of the prosecution has the burden of proving, beyond a reasonable 

mental responsibility based on the experience that most persons doubt, that the accused did not lack mental responsibility for 

are mentally responsible may remain. The weight of this in- the offense. See subsection (b) of this rule. 

ference will depend on the circumstances in the case. 

(B) Inquiry. If a question is raised concerning the mental responsibility of the accused, the military judge 

shall rule finally whether to direct an inquiry under R.C.M. 706. In a special court-martial without 

a military judge, the president shall rule finally except to the extent that the question is one of fact, 

in which case the president rules subject to objection by any member. 

Discussion 

See R.C.M. 801(e)(3) for the procedures for voting on If an inquiry is directed, priority should be given to it. 

rulings of the president of a special court-martial without a 

military judge. 

(C) Determination. The issue of mental responsibility shall not be considered as an interlocutory question. 

(1) Not defenses generally. 
R.C.M. 916(1)(1) 

(1) Ignorance or mistake of law. Ignorance or mistake of law, including general orders or regulations, 

ordinarily is not a defense. 

Discussion 

For example, ignorance that it is a crime to possess mar- the accused's mistake was as to the order itself, and not as to 

ijuana is not a defense to wrongful possession of marijuana. a separate nonpenal law. Also, mistake of law may be a defense 

Ignorance or mistake of law may be a defense in some when the mistake results from reliance on the decision or pronlimited circumstances. If the accused, because of a mistake as ouncement of an authorized public official or agency. For exto a separate nonpenal law, lacks the criminal intent or state of ample, if an accused, acting on the advice of an official responsible 

mind necessary to establish guilt, this may be a defense. For for administering benefits that the accused is entitled to those 

example, if the accused, under mistaken belief that the accused benefits, applies for and receives those benefits, the accused 

is entitled to take an item under property law, takes an item, may have a defense even though the accused was not legally 

this mistake of law (as to the accused's legal right) would, if eligible for the benefits. On the other hand, reliance on the 

genuine, be a defense to Larceny. On the other hand, if the advice of counsel that a certain course of conduct is legal is 

accused disobeyed an order, under the actual but mistaken belief not, of itself, a defense. 

that the order was unlawful, this would not be a defense because 

(2) Voluntary intoxication. Voluntary intoxication, whether caused by alcohol or drugs, is not a defense. 

However, evidence of any degree of voluntary intoxication may be introduced for the purpose of raising a 

reasonable doubt as to the existence of actual knowledge, specific intent, willfulness, or a premeditated design 

to kill, if actual knowledge, specific intent, willfulness, or premeditated design to kill is an element of the 

offense. 

Discussion 

Voluntary intoxication may reduce premeditated murder Although voluntary intoxication is not a defense, evidence 

to unpremeditated murder, but it will not reduce murder to of voluntary intoxication may be admitted in extenuation. 

manslaughter or any other lesser offense. See paragraph 43c(2)(c), 

Part IV. 

Rule 917. Motion for a finding of not guilty 

(a) In general. The military judge, on motion by the accused or sua sponte, shall enter a finding of not guilty 

of one or more offenses charged after the evidence on either side is closed and before findings on the general 

issue of guilt are announced if the evidence is insufficient to sustain a conviction of the offense affected. If a 

motion for a finding of not guilty at the close of the prosecution's case is denied, the defense may offer evidence 

on that offense without having reserved the right to do so. 

(b) Form of motion. The motion shall specifically indicate wherein the evidence is insufficient. 

(c) Procedure. Before ruling on a motion for a finding of not guilty, whether made by counsel or sua sponte, 

the military judge shall give each party an opportunity to be heard on the matter. 

Discussion 

The military judge ordinarily should permit the trial coun- See R.C.M. 801(e)(2) and (3) for additional procedures to 

sel to reopen the case as to the insufficiency specified in the be followed in a special court-martial without a military judge. 

motion. 

(d) Standard. A motion for a finding of not guilty shall be granted only in the absence of some evidence which, 

together with all reasonable inferences and applicable presumptions, could reasonably tend to establish every 

essential element of an offense charged. The evidence shall be viewed in the light most favorable to the prosecution, 

without an evaluation of the credibility of witnesses. 

(e) Motion as to greater offense. A motion for a finding of not guilty may be granted as to part of a specification 

and, if appropriate, the corresponding charge, as long as a lesser offense charged is alleged in the portion of the 
R.C.M. 918(b) 

specification as to which the motion is not granted. In such cases, the military judge shall announce that a finding 

of not guilty has been granted as to specified language in the specification and, if appropriate, corresponding 

charge. In cases before members, the military judge shall instruct the members accordingly, so that any findings 

later announced will not be inconsistent with the granting of the motion. 

(f) Effect of ruling. A ruling granting a motion for a finding of not guilty is final when announced and may not 

be reconsidered. Such a ruling is a finding of not guilty of the affected specification, or affected portion thereof, 

and, when appropriate, of the corresponding charge. A ruling denying a motion for a finding of not guilty may 

be reconsidered at any time before findings on the general issue of guilt are announced. 

(g) Effect of denial on review. If all the evidence admitted before findings, regardless by whom offered, is 

sufficient to sustain findings of guilty, the findings need not be set aside upon review solely because the motion 

for finding of not guilty should have been granted upon the state of the evidence when it was made. 

Rule 918. Findings 

(a) Generalfindings. The general findings of a court-martial state whether the accused is guilty of each offense 

charged. If two or more accused are tried together, separate findings as to each shall be made. 

(1) As to a specification. General findings as to a specification may be: guilty; guilty with exceptions, with 

or without substitutions, not guilty of the exceptions but guilty of any substitutions; or not guilty. Exceptions 

and substitutions may not be used to substantially change the nature of the offense or to increase the seriousness 

of the offense or the maximum punishment for it. 

Discussion 

Exceptions and substitutions. One or more words or figures offense charged but does prove an offense necessarily included 

may be excepted from a specification and, when necessary, in the offense charged, the factfinder may by exceptions and 

others substituted, if the remaining language of the specifica- substitutions find the accused not guilty of the offense charged 

tion, with or without substitutions, states an offense by the but guilty of a lesser offense, which is included in the offense 

accused which is punishable by court-martial. Changing the charged. Ordinarily an attempt is a lesser included offense even 

date or place of the offense may, but does not necessarily, if the evidence establishes that the offense charged was conchange the nature or identity of an offense. summated. See Part IV concerning lesser included offenses. 

If A and B are joint accused and A is convicted but B is Offenses arising from the same act or transaction. The 

acquitted of the offense charged, A should be found guilty by accused may be found guilty of two or more offenses arising 

excepting the name of B from the specification as well as any from the same act or transaction, whether or not the offenses 

other words indicating the offense was a joint one. are separately punishable. But see R.C.M. 906(b)(12); 

Lesser included offenses. If the evidence fails to prove the 907(b)(3)(B); 1003(c)(l)(C). 

(2)As to a charge. General findings as to a charge may be: guilty; not guilty, but guilty of a violation of 

Article -;or not guilty. 

Discussion 

Where there are two or more specifications under one An attempt should be found as a violation of Article 80 

charge, conviction of any of those specifications requires a unless the attempt is punishable under Articles 85, 94, 100, 

finding of guilty of the corresponding charge. Under such cir- 104, or 128, in which case it should be found as a violation of 

cumstances any findings of not guilty as to the other specifi- that Article. 

cations do not affect that charge. If the accused is found guilty A court-martial may not find an offense as a violation of 

of one specification and of a lesser included offense prohibited an article under which it was not charged solely for the purpose 

by a different Article as to another specification under the same of increasing the authorized punishment or for the purpose of 

charge, the findings as to the corresponding charge should be: adjudging less than the prescribed mandatory punishment. 

Of the Charge as to specification 1: Guilty; as to specification 

2: not guilty, but guilty of a violation of Article -

(b) Specialfindings. In a trial by court-martial composed of military judge alone, the military judge shall make 

special findings upon request by any party. Special findings may be requested only as to matters of fact reasonably 

in issue as to an offense and need be made only as to offenses of which the accused was found guilty. Special 

findings may be requested at any time before general findings are announced. Only one set of special findings 
R.C.M. 918(~) 

may be requested by a party in a case. If the request is for findings on specific matters, the military judge may 

require that the request be written. Special findings may be entered orally on the record at the court-martial or 

in writing during or after the court-martial, but in any event shall be made before authentication and included 

in the record of trial. 

Discussion 

Special findings ordinarily include findings as to the ele- 321(f) concerning other findings to be made by the military 

ments of the offenses of which the accused has been found judge. 

guilty, and any affirmative defense relating thereto. Members may not make special findings. 

See also R.C.M. 905(d); Mil. R. Evid. 304(d)(4); 3 11(d)(4); 

(c) Basis offindings. Findings may be based on direct or circumstantial evidence. Only matters properly before 

the court-martial on the merits of the case may be considered. A finding of guilty of any offense may be reached 

only when the factfinder is satisfied that guilt has been proved beyond a reasonable doubt. 

Discussion 

Direct evidence is evidence which tends directly to prove 

or disprove a fact in issue (for example, an element of the 

offense charged). Circumstantial evidence is evidence which 

tends directly to prove not a fact in issue but some other fact 

or circumstance from which, either alone or together with other 

facts or circumstances, one may reasonably infer the existence 

or nonexistence of a fact in issue. There is no general rule for 

determining or comparing the weight to be given to direct or 

circumstantial evidence. 

A reasonable doubt is a doubt based on reason and common 

sense. A reasonable doubt is not mere conjecture; it is an honest, 

conscientious doubt suggested by the evidence, or lack of it, 

in the case. An absolute or mathematical certainty is not required. The rule as to reasonable doubt extends to every element 

of the offense. It is not necessary that each particular fact adRule 919. Argument by counsel on findings 

vanced by the prosecution which is not an element be proved 

beyond a reasonable doubt. 

The factfinder should consider the inherent probability or 

improbability of the evidence, using common sense and knowledge of human nature, and should weigh the credibility of 

witnesses. A factfinder may properly believe one witness and 

disbelieve others whose testimony conflicts with that of the one. 

A factfinder may believe part of the testimony of a witness and 

disbelieve other parts. 

Findings of guilty may not be based solely on the testimony 

of a witness other than the accused which is self-contradictory, 

unless the contradiction is adequately explained by the witness. 

Even if apparently credible and corroborated, the testimony of 

an accomplice should be considered with great caution. 

(a) In general. After the closing of evidence, trial counsel shall be permitted to open the argument. The defense 

counsel shall be permitted to reply. Trial counsel shall then be permitted to reply in rebuttal. 

(b) Contents. Arguments may properly include reasonable comment on the evidence in the case, including 

inferences to be drawn therefrom, in support of a party's theory of the case. 

Discussion 

The military judge may exercise reasonable control over 

argument. See R.C.M. 801(a)(3). 

Argument may include comment about the testimony, conduct, motives, interests, and biases of witnesses to the extent 

supported by the evidence. Counsel should not express a personal belief or opinion as to the truth or falsity of any testimony 

or evidence or the guilt or innocence of the accused, nor should 

counsel make arguments calculated to inflame passions or prejudices. In argument counsel may treat the testimony of witnesses as conclusively establishing the facts related by the 

witnesses. Counsel may not cite legal authorities or the facts 

of other cases when arguing to members on findings. 

Trial counsel may not comment on the accused's exercise 

of the right against self-incrimination or the right to counsel. 

See Mil. R. Evid. 512. Trial counsel may not argue that the 

prosecution's evidence is unrebutted if the only rebuttal could 

come from the accused. When the accused is on trial for several 

offenses and testifies only as to some of the offenses, trial 

counsel may not comment on the accused's failure to testify as 

to the others. When the accused testifies on the merits regarding 

an offense charged, trial counsel may comment on the accused's 

failure in that testimony to deny or explain specific incriminating 

facts that the evidence for the prosecution tends to establish 

regarding that offense. 

Trial counsel may not comment on the failure of the defense to call witnesses or of the accused to testify at the Article 

32 investigation or upon the probable effect of the court-martial's findings on relations between the military and civilian 

communities. 

The rebuttal argument of trial counsel is generally limited 

to matters argued by the defense. If trial counsel is permitted 

to introduce new matter in closing argument. the defense should 

be allowed to reply in rebuttal. However, this will not preclude 

trial counsel from presenting a final argument. 
R.C.M. 920(d) 

(c) Waiver of objection to improper argument. Failure to object to improper argument before the military judge 

begins to instruct the members on findings shall constitute waiver of the objection. 

Discussion 

If an objection that an argument is improper is sustained, extraordinary cases improper argument may require a mistrial. 

the military judge should immediately instruct the members that See R.C.M.915. The military judge should be alert to improper 

the argument was improper and that they must disregard it. In argument and take appropriate action when necessary. 

Rule 920. Instructions on findings 

(a) In general. The military judge shall give the members appropriate instructions on findings. 

Discussion 

Instructions consist of a statement of the issues in the case structions should be tailored to fit the circumstances of the case, 

and an explanation of the legal standards and procedural re- and should fairly and adequately cover the issues presented. 

quirements by which the members will determine findings. In- 

(b) When given. Instructions on findings shall be given after arguments by counsel and before the members close 

to deliberate on findings, but the military judge may, upon request of the members, any party, or sua sponte, 

give additional instructions at a later time. 

Discussion 

After members have reached a finding on a specification, finding is illegal. This is true even if the finding has not been 

instructions may not be given on an offense included therein announced. 

which was not described in an earlier instruction unless the 

(c) Requests for instructions. At the close of the evidence or at such other time as the military judge may permit, 

any party may request that the military judge instruct the members on the law as set forth in the request. The 

military judge may require the requested instruction to be written. Each party shall be given the opportunity to 

be heard on any proposed instruction on findings before it is given. The military judge shall inform the parties 

of the proposed action on such requests before their closing arguments. 

Discussion 

Requests for and objections to instructions should be re- by counsel, however, as long as the issue is adequately covered 

solved at an Article 39(a) session. But see R.C.M.801(e)(3); in the instructions. 

803. The military judge should not identify the source of any 

If an issue has been raised, ordinarily the military judge instruction when addressing the members. 

must instruct on the issue when requested to do so. The military All written requests for instructions should be marked as 

judge is not required to give the specific instruction requested appellate exhibits, whether or not they are given. 

(d) How given. Instructions on findings shall be given orally on the record in the presence of all parties and the 

members. Written copies of the instructions, or, unless a party objects, portions of them, may also be given to 

the members for their use during deliberations. 

Discussion 

A copy of any written instructions delivered to the members should be marked as an appellate exhibit. 
R.C.M. 920(e) 

(e) Required instructions. Instructions on findings shall include: 

(1) A description of the elements of each offense charged, unless findings on such offenses are unnecessary 

because they have been entered pursuant to a plea of guilty; 

(2) A description of the elements of each lesser included offense in issue; 

(3) A description of any special defense under R.C.M. 916 in issue; 

(4) A direction that only matters properly before the court-martial may be considered; 

(5) A charge that- 

(A) The accused must be presumed to be innocent until the accused's guilt is established by legal and 

competent evidence beyond reasonable doubt; 

(B) 	In the case being considered, if there is a reasonable doubt as to the guilt of the accused, the doubt 

must be resolved in favor of the accused and the accused must be acquitted; 

(C) If, when a lesser included offense is in issue, there is a reasonable doubt as to the degree of guilt 

of the accused, the finding must be in a lower degree as to which there is no reasonable doubt; and 

(D) The burden of proof to establish the guilt of the accused is upon the Government; 

(6) Directions on the procedures under R.C.M. 921 for deliberations and voting; and 

(7) Such other explanations, descriptions, or directions as may be necessary and which are properly requested 

by a party or which the military judge determines, sua sponte, should be given. 

Discussion 

A matter is "in issue" when some evidence, without regard (see R.C.M. 8 11); that, when a guilty plea to a lesser included 

to its source or credibility, has been admitted upon which mem- offense has been accepted, the members should accept as proved 

bers might rely if they choose. An instruction on a lesser in- the matters admitted by the plea, but must determine whether 

cluded offense is proper when an element from the charged the remaining elements are established; that a plea of guilty to 

offense which distinguishes that offense from the lesser offense one offense may not be the basis for infemng the existence of 

is in dispute. a fact or element of another offense; the absence of the accused 

See R.C.M. 918(c) and discussion as to reasonable doubt from trial should not be held against the accused; and that no 

and other matters relating to the basis for findings which may adverse inferences may be drawn from an accused's failure to 

be the subject of an instruction. testify (see Mil. R. Evid. 301(g)). 

Other matters which may be the subject of instruction in The military judge may summarize and comment upon 

appropriate cases include: inferences (see the explanations in evidence in the case in instructions. In doing so, the military 

Part IV concerning inferences relating to specific offenses); the judge should: present an accurate, fair, and dispassionate statelimited purpose for which evidence was admitted (regardless ment of what the evidence shows; not depart from an impartial 

whether such evidence was offered by the prosecution or de- role; not assume as true the existence or nonexistence of a fact 

fense) (see Mil. R. Evid. 105); the effect of character evidence in issue when the evidence is conflicting or disputed, or when 

(see Mil. R. Evid. 404; 405); the effect of judicial notice (see there is no evidence to support the matter; and make clear that 

Mil. R. Evid. 201, 201A); the weight to be given a pretrial the members must exercise their independent judgment as to 

statement (see Mil. R. Evid. 304(e)); the effect of stipulations the facts. 

(f) Waiver. Failure to object to an instruction or to omission of an instruction before the members close to 

deliberate constitutes waiver of the objection in the absence of plain error. The military judge may require the 

party objecting to specify in what respect the instructions given were improper. The parties shall be given the 

opportunity to be heard on any objection outside the presence of the members. 

Rule 921. Deliberations and voting on findings 

(a) In general. After the military judge instructs the members on findings, the members shall deliberate and vote 

in a closed session. Only the members shall be present during deliberations and voting. Superiority in rank shall 

not be used in any manner in an attempt to control the independence of members in the exercise of their judgment. 

(b) Deliberations. Deliberations properly include full and free discussion of the merits of the case. Unless 

otherwise directed by the milita~y judge, members may take with them in deliberations their notes, if any, any 
R.C.M. 921(d) 

exhibits admitted in evidence, and any written instructions. Members may request that the court-martial be 

reopened and that portions of the record be read to them or additional evidence introduced. The military judge 

may, in the exercise of discretion, grant such request. 

(c) Voting. 

(1) Secret ballot. Voting on the findings for each charge and specification shall be by secret written ballot. 

All members present shall vote. 

(2)Number of votes required to convict. 

(A) Death penalty mandatory. A finding of guilty of an offense for which the death penalty is mandatory 

results only if all members present vote for a finding of guilty. 

Discussion 

Article 106 is the only offense under the code for which the death penalty is mandato~y. 

(B) Other offenses. As to any offense for which the death penalty is not mandatory, a finding of guilty 

results only if at least two-thirds of the members present vote for a finding of guilty. 

Discussion 

In computing the number of votes required to convict, any four would be required to convict. The military judge should 

fraction of a vote is rounded up to the next whole number. For instruct the members on the specific number of votes required 

example, if there are five members, the concurrence of at least to convict. 

(3) Acquittal. If fewer than two-thirds of the members present vote for a finding of guilty-or, when the 

death penalty is mandatory, if fewer than all the members present vote for a finding of guilty-a finding of not 

guilty has resulted as to the charge or specification on which the vote was taken. 

(4) Included offenses. Members shall not vote on a lesser included offense unless a finding of not guilty of 

the offense charged has been reached. If a finding of not guilty of an offense charged has been reached the 

members shall vote on each included offense on which they have been instructed, in order of severity beginning 

with the most severe. The members shall continue to vote on each included offense on which they have been 

instructed until a finding of guilty results or findings of not guilty have been reached as to each such offense. 

(5) Procedure for voting. 

(A) Order. Each specification shall be voted on separately before the corresponding charge. The order 

of voting on several specifications under a charge or on several charges shall be determined by the 

president unless a majority of the members object. 

(B) Counting votes. The junior member shall collect the ballots and count the votes. The president shall 

check the count and inform the other members of the result. 

Discussion 

Once findings have been reached, they may be reconsidered only in accordance with R.C.M.924. 

(d) Action aferflndings are reached. After the members have reached findings on each charge and specification 

before them, the court-martial shall be opened and the president shall inform the military judge that findings 

have been reached. The military judge may, in the presence of the parties, examine any writing which the 

president intends to read to announce the sentence and may assist the members in putting the findings in proper 

form. Neither that writing nor any oral or written clarification or discussion concerning it shall constitute 

announcement of the findings. 
R.C.M. 922 

Discussion 

Ordinarily a findings worksheet should be provided to the session and counsel should be given the opportunity to examine 

members as an aid to putting the findings in proper form. See such a writing and to be heard on any instructions the military 

Appendix 10 for a format for findings. If the military judge judge may give. See Article 39(b). 

examines any writing by the members or otherwise assists them The president should not disclose any specific number of 

to put findings in proper form, this must be done in an open votes for or against any finding. 

Rule 922. Announcement of findings 

(a) In general. Findings shall be announced in the presence of all parties promptly after they have been determined. 

Discussion 

See Appendix 10. A finding of an offense about which no instructions were given is not proper. 

(b) Findings by members. The president shall announce the findings by the members. If a finding is based on 

a plea of guilty, the president shall so state. 

Discussion 

If the findings announced are ambiguous the military judge should seek clarification. See also R.C.M. 924. 

(c) Findings by military judge. The military judge shall announce the findings when trial is by military judge 

alone or when findings may be entered under R.C.M. 910(g). 

(d) Erroneous announcement. If an error was made in the announcement of the findings of the court-martial, 

the error may be corrected by a new announcement in accordance with this rule. The error must be discovered 

and the new announcement made before the final adjournment of the court-martial in the case. 

Discussion 

See R.C.M. 1102 concerning the action to be taken if the error in the announcement is discovered after final adjournment. 

(e) Polling prohibited. Except as provided in Mil. R. Evid. 606, members may not be questioned about their 

deliberations and voting. 

Rule 923. Impeachment of findings 

Findings which are proper on their face may be impeached only when extraneous prejudicial information was 

improperly brought to the attention of a member, outside influence was improperly brought to bear upon any 

member, or unlawful command influence was brought to bear upon any member. 

Discussion 

Deliberations of the members ordinarily are not subject to has been made, members may be questioned about such a ground. 

disclosure. See Mil. R. Evid. 606. Unsound reasoning by a The military judge determines, as an interlocutory matter, whether 

member, misconception of the evidence, or misapplication of such an inquiry will be conducted and whether a finding has 

the law is not a proper basis for challenging the findings. How- been impeached. 

ever, when a showing of a ground for impeaching the verdict 

Rule 924. Reconsideration of findings 

(a) Time for reconsideration. Members may reconsider any finding reached by them before such finding is 

announced in open session. Members may reconsider any finding of guilty reached by them at any time before 

announcement of the sentence. 

(b) Procedure. Any member may propose that a finding be reconsidered. If such a proposal is made in a timely 
R.C.M. 924(c) 

manner the question whether to reconsider shall be determine in closed session by secret written ballot. Any 

finding of not guilty shall be reconsidered if a majority vote for reconsideration. Any finding of guilty shall be 

reconsidered if more than one-third of the members vote for reconsideration. When the death penalty is mandatory, 

a request by any member for reconsideration of a guilty finding requires reconsideration. If a vote to reconsider 

a finding succeeds, the procedures in R.C.M.921 shall apply. 

Discussion 

After the initial secret ballot vote on a finding in closed vote to reconsider succeeds. 


session, no other vote may be taken on that finding unless a 


(c) Military judge sitting alone. In trial by military judge alone, the military judge may reconsider any finding 

of guilty at any time before announcement of sentence. 
CHAPTER X. SENTENCING 

Rule 1001. Presentencing procedure 

(a) In general. 

(1) Procedure. After findings of guilty have been announced, the prosecution and defense may present 

matter pursuant to this rule to aid the court-martial in determining an appropriate sentence. Such matter shall 

ordinarily be presented in the following sequence- 

(A) Presentation by trial counsel of: 

(i) service data relating to the accused taken from the charge sheet; 

(ii) personal data relating to the accused and of the character of the accused's prior service as reflected 

in the personnel records of the accused; 

(iii) evidence of prior convictions, military or civilian; 

(iv) evidence of aggravation; and 

(v) evidence of rehabilitative potential. 

(B) Presentation by the defense of evidence in extenuation or mitigation or both. 

(C) Rebuttal. 

(D) Argument by the trial counsel on sentence. 

(E) Argument by the defense counsel on sentence. 

(F) Rebuttal arguments in the discretion of the military judge. 

(2) Adjudging sentence. A sentence shall be adjudged in all cases without unreasonable delay. 

(3) Advice and inquiry. The military judge shall personally inform the accused of the right to present matters 

in extenuation and mitigation, including the right to make a sworn or unswom statement or to remain silent, 

and shall ask whether the accused chooses to exercise those rights. 

(b) Matter to be presented by the prosecution. 

(1) Service data from the charge sheet. Trial counsel shall inform the court-martial of the data on the charge 

sheet relating to the age, pay, and service of the accused and the duration and nature of any pretrial restraint. 

In the discretion of the- military judge, this may be done by reading the material from the charge sheet or by 

giving the co~rt~martial a written statement of such matter. If the defense objects to the data as being materially 

inaccurate or incomplete, or containing specified objectionable matter, the military judge shall determine the 

issue. Objections not asserted are waived. 

(2) Personal data and character of prior service of the accused. Under.regulations of the Secretary concerned, 

trial counsel may obtain and introduce from the personnel records of the accused evidence of the accused's 

marital status; number of dependents, if any; and character of prior service. Such evidence includes copies of 

reports reflecting the past military efficiency, conduct, performance, and history of the accused and evidence of 

any disciplinary actions including punishments under Article 15. 

"Personnel records of the accused" includes all those records made or maintained in accordance with departmental 

regulations that reflect the past military efficiency, conduct, performance, and history of the accused. If the 

accused objects to a particular document as inaccurate or incomplete in a specified respect, or as containing 

matter that is not admissible under the Military Rules of Evidence, the matter shall be determined by the military 

judge. Objections not asserted are waived. 
R.C.M. 1001(b)(3) 

(3)Evidence of prior convictions of the accused. 

(A) In general. The trial counsel may introduce evidence of military or civilian convictions of the accused. 

For purposes of this rule, there is a "conviction" in a court-martial case when a sentence has been 

adjudged. 

Discussion 

A vacation of a suspended sentence (see R.C.M. 1109) is admissible under subsection (b)(2) of this rule as reflective of 

not a conviction and is not admissible as such, but may be the character of the prior service of the accused. 

(B) Pendency of appeal. The pendency of an appeal therefrom does not render evidence of a conviction 

inadmissible except that a conviction by summary court-martial or special court-martial without a 

military judge may not be used for purposes of this rule until review has been completed pursuant 

to Article 65(c) or Article 66, if applicable. Evidence of the pendency of an appeal is admissible. 

(C) Method of proof. Previous convictions may be proved by any evidence admissible under the Military 

Rules of Evidence. 

Discussion 

Normally, previous convictions may be proved by use of Form 453 (Extract of Military Records of Previous Convicthe personnel records of the accused, by the record of the con- tions). 

viction, or by the order promulgating the result of trial. See DD 

(4) Evidence in aggravation. The trial counsel may present evidence as to any aggravating circumstances 

directly relating to or resulting from the offenses of which the accused has been found guilty. Except in capital 

cases a written or oral deposition taken in accordance with R.C.M. 702 is admissible in aggravation. 

Discussion 

Evidence in aggravation may include evidence of financial, the mission, discipline, or efficiency of the command directly 

social, psychological, and medical impact on or cost to any and immediately resulting from the accused's offense. 

person or entity who was the victim of an offense committed See also R.C.M. 1004 concerning aggravating circumby the accused and evidence of significant adverse impact on stances in capital cases. 

(5) Evidence of rehabilitative potential. The trial counsel may present, by testimony or oral deposition in 

accordance with R.C.M. 702(g)(l), evidence, in the form of opinion, concerning the accused's previous performance as a servicemember and potential for rehabilitation. On cross-examination, inquiry is allowable into 

relevant and specific instances of conduct. 

(c) Matter to be presented by the defense. 

(1) In general. The defense may present matters in rebuttal of any material presented by the prosecution 

and may present matters in extenuation and mitigation regardless whether the defense offered evidence before 

findings. 

(A) Matter in extenuation. Matter in extenuation of an offense serves to explain the circumstances 

surrounding the commission of an offense, including those reasons for committing the offense which 

do not constitute a legal justification or excuse. 

(B) Matter in mitigation. Matter in mitigation of an offense is introduced to lessen the punishment to be 

adjudged by the court-martial, or to furnish grounds for a recommendation of clemency. It includes 

the fact that nonjudicial punishment under Article 15 has been imposed for an offense growing out 

of the same act or omission that constitutes the offense of which the accused has been found guilty, 

particular acts of good conduct or bravery, and evidence of the reputation or record of the accused 

in the service for efficiency, fidelity, subordination, temperance, courage, or any other trait that is 

desirable in a servicemember. 
R.C.M. 1001(e)(2)(E) 

(2) Statement by the accused. 

(A) In general. The accused may testify, make an unsworn statement, or both in extenuation, in mitigation, 

or to rebut matters presented by the prosecution, or for all three purposes whether or not the accused 

testified prior to findings. The accused may limit such testimony or statement to any one or more 

of the specifications of which the accused has been found guilty. This subsection does not permit 

the filing of an affidavit of the accused. 

(B) Testimony of the accused. The accused may give sworn oral testimony under this paragraph and shall 

be subject to cross-examination concerning it by the trial counsel or examination on it by the courtmartial, or both. 

(C) 	Unsworn statement. The accused may make an unsworn statement and may not be cross-examined 

by the trial counsel upon it by the court-martial. The prosecution may, however, rebut any statements 

of facts therein. The unsworn statement may be oral, written, or both, and may be made by the 

accused, by counsel, or both. 

Discussion 

An unsworn statement ordinarily should not include what cused when personally making an oral statement normally should 

is properly argument, but inclusion of such matter by the ac- not be grounds for stopping the statement. 

(3) Rules of evidence relaxed. The military judge may, with respect to matters in extenuation or mitigation 

or both, relax the rules of evidence. This may include admitting letters, affidavits, certificates of military and 

civil officers, and other writings of similar authenticity and reliability. 

(d) Rebuttal and surrebuttal. The prosecution may rebut matters presented by the defense. The defense in 

surrebuttal may then rebut any rebuttal offered by the prosecution. Rebuttal and surrebuttal may continue, in the 

discretion of the military judge. If the Military Rules of Evidence were relaxed under subsection (c)(3) of this 

rule, they may be relaxed during rebuttal and surrebuttal to the same degree. 

(e) Production of witnesses. 

(1) In general. During the presentence proceedings, there shall be much greater latitude than on the merits 

to receive information by means other than testimony presented through the personal appearance of witnesses. 

Whether a witness shall be produced to testify during presentence proceedings is a matter within the discretion 

of the military judge, subject to the limitations in subsection (e)(2) of this rule. 

Discussion 

See R.C.M.703 concerning the procedures for production of witnesses. 

(2) Limitations. A witness may be produced to testify during presentence proceedings through a subpoena 

or travel orders at Government expense only if- 

(A) The testimony expected to be offered by the witness is necessary for consideration of a matter of 

substantial significance to a determination of an appropriate sentence, including evidence necessary 

to resolve an alleged inaccuracy or dispute as to a material fact; 

(B) The weight or credibility of the testimony is of substantial significance to the determination of an 

appropriate sentence; 

(C) The other party refuses to enter into a stipulation of fact containing the matters to which the witness 

is expected to testify, except in an extraordinary case when such a stipulation of fact would be an 

insufficient substitute for the testimony; 

(D) Other forms of evidence, such as oral depositions, written interrogatories, or former testimony would 

not be sufficient to meet the needs of the court-martial in the determination of an appropriate sentence; 

and 

(E) 	The significance of the personal appearance of the witness to the determination of an appropriate 
R.C.M. 1001(f) 

sentence, when balanced against the practical difficulties of producing the witness, favors production 

of the witness. Factors to be considered include the costs of producing the witness, the timing of the 

request for production of the witness, the potential delay in the presentencing proceeding that may 

be caused by the production of the witness, and the likelihood of significant interference with military 

operational deployment, mission accomplishment, or essential training. 

(f) Additional matters to be considered. In addition to matters introduced under this rule, the court-martial may 

consider-

(1) That a plea of guilty is a mitigating factor; and 

(2) Any evidence properly introduced on the merits before findings, including: 

(A) Evidence of other offenses or acts of misconduct even if introduced for a limited purpose; and 

(B) Evidence relating to any mental impairment or deficiency of the accused. 

Discussion 

The fact that the accused is of low intelligence or that, On the other hand, in determining the severity of a sentence, 

because of a mental or neurological condition the accused's the court-martial may consider evidence tending to show that 

ability to adhere to the right is diminished, may be extenuating. an accused has little regard for the rights of others. 

(g) Argument. After introduction of matters relating to sentence under this rule, counsel for the prosecution and 

defense may argue for an appropriate sentence. Trial counsel may not in argument purport to speak for the 

convening authority or any higher authority, or refer to the views of such authorities or any policy directive 

relative to punishment or to any punishment or quantum of punishment greater than that court-martial may 

adjudge. Trial counsel may, however, recommend a specific lawful sentence and may also refer to generally 

accepted sentencing philosophies, including rehabilitation of the accused, general deterrence, specific deterrence 

of misconduct by the accused, and social retribution. Failure to object to improper argument before the military 

judge begins to instruct the members on sentencing shall constitute waiver of the objection. 

Rule 1002. Sentence determination 

Subject to limitations in this Manual, the sentence to be adjudged is a matter within the discretion of the courtmartial; except when a mandatory minimum sentence is prescribed by the code, a court-martial may adjudge 

any punishment authorized in this Manual, including the maximum punishment or any lesser punishment, or 

may adjudge a sentence of no punishment. 

Discussion 

See R.C.M. 1003 concerning authorized punishments and limitations on punishments. See also R.C.M. 1004 in capital cases. 

Rule 1003. Punishments 

(a) In general. Subject to the limitations in this Manual, the punishments authorized in this rule may be adjudged 

in the case of any person found guilty of an offense by a court-martial. 

Discussion 

"Any person" includes officers, enlisted persons, persons a court-martial, and, insofar as the punishments are applicable, 

in custody of the armed forces sewing a sentence imposed by any other person subject to the code. See R.C.M. 202. 

(b) Authorized punishments. Subject to the limitations in this Manual, a court-martial may adjudge only the 

following punishments: 

(1) Reprimand. A court-martial shall not specify the terms or wording of a reprimand. A reprimand, if 

approved, shall be issued, in writing, by the convening authority; 
R.C.M. 1003(b)(6) 


Discussion 

A reprimand adjudged by a court-martial is a punitive censure. 

(2) Forfeiture of pay and allowances. Unless a total forfeiture is adjudged, a sentence to forfeiture shall 

state the exact amount in whole dollars to be forfeited each month and the number of months the forfeitures will 

last. Allowances shall be subject to forfeiture only when the sentence includes forfeiture of all pay and allowances. 

The maximum authorized amount of a partial forfeiture shall be determined by using the basic pay authorized 

by the cumulative years of service of the accused, and, if no confinement is adjudged, any sea or foreign duty 

pay. If the sentence also includes reduction in grade, expressly or by operation of law, the maximum forfeiture 

shall be based on the grade to which the accused is reduced; 

Discussion 

A forfeiture deprives the accused of the amount of pay "Basic pay" does not include pay for special qualifica- 

(and allowances) specified as it accrues. Forfeitures accrue to tions, such as diving pay, or incentive pay such as flying, 

the United States. parachuting, or duty on board a submarine. 

(3) Fine. Any court-martial may adjudge a fine instead of forfeitures. General courts-martial may also 

adjudge a fine in addition to forfeitures. Special and summary courts-martial may not adjudge any fine in excess 

of the total amount of forfeitures which may be adjudged in that case. In order to enforce collection, a fine may 

be accompanied by a provision in the sentence that, in the event the fine is not paid, the person fined shall, in 

addition to any period of confinement adjudged, be further confined until a fixed period considered an equivalent 

punishment to the fine has expired. The total period of confinement so adjudged shall not exceed the jurisdictional 

limitations of the court-martial; 

Discussion 

A fine is in the nature of a judgment and, when ordered result of the offense of which convicted. Ordinarily, a fine, 

executed, makes the accused immediately liable to the United rather than a forfeiture, is the proper monetary penalty to be 

States for the entire amount of money specified in the sentence. adjudged against a civilian subject to military law. 

A fine normally should not be adjudged against a member of See R.C.M. 11 13(d)(3) concerning imposition of confinethe armed forces unless the accused was unjustly enriched as a ment when the accused fails to pay a fine. 

(4)Loss of numbers, lineal position, or seniority. These punishments are authorized only in cases of Navy, 

Marine Corps, and Coast Guard officers; 

Discussion 

All losses of numbers will be numbers in the appropriate lineal list. 

(5)Reduction in pay grade. Except as provided in R.C.M. 1301(d), a court-martial may sentence an enlisted 

member to be reduced to the lowest or any intermediate pay grade; 

Discussion 

Reduction under Article 58a is not a part of the sentence but is an administrative result thereof. 

(6)Restriction to specified limits. Restriction may be adjudged for no more than 2 months for each month 

of authorized confinement and in no case for more than 2 months. Confinement and restriction may be adjudged 

in the same case, but they may not together exceed the maximum authorized period of confinement, calculating 

the equivalency at the rate specified in this subsection; 

Discussion 

Restriction does not exempt the person on whom it is they do not exceed the maximum limits for each. See subsection 

imposed from any military duty. Restriction and hard labor (c)(l)(A)(ii) of this rule. See also R.C.M. 1113(d)(5). The 

without confinement may be adjudged in the same case provided sentence adjudged should specify the limits of the restriction. 
R.C.M. 1003(b)(7) 

(7) Hard labor without confinement. Hard labor without confinement may be adjudged for no more than 

1-112 months for each month of authorized confinement and in no case for more than three months. Hard labor 

without confinement may be adjudged only in the cases of enlisted members. The court-martial shall not specify 

the hard labor to be performed. Confinement and hard labor without confinement may be adjudged in the same 

case, but they may not together exceed the maximum authorized period of confinement, calculating the equivalency 

at the rate specified in this subsection. 

Discussion 

Hard labor without confinement is performed in addition assignment. the accused should be permitted to take leave or 

to other regular duties and does not excuse or relieve a person liberty to which entitled. 

from performing regular duties. Ordinarily, the immediate com- See R.C.M. 1301(d) concerning limitations on hard labor 

mander of the accused will designate the amount and character without confinement in summary courts-martial. 

of the labor to be performed. Upon completion of the daily 

(8) Confinement. The place of confinement shall not be designated by the court-martial. A court-martial 

shall not adjudge a sentence to solitary confinement or to confinement without hard labor; 

Discussion 

The authority executing a sentence to confinement may uniformity, the words "at hard labor" should be omitted in a 

require hard labor whether or not the words "at hard labor" sentence to confinement. 

are included in the sentence. See Article 58(b). To promote 

(9)Confinement on bread and water or diminished rations. Confinement on bread and water or diminished 

rations may be adjudged only in cases of enlisted members attached to or embarked in a vessel and for no more 

than 3 days. The categories of enlisted personnel upon whom this type of punishment may be imposed may be 

further limited by regulations of the Secretary concerned. If adjudged in the same sentence with confinement, 

hard labor without confinement, or restriction, confinement on bread and water or diminished rations for 1 day 

shall be treated as the equivalent of confinement for 2 days; 

Discussion 

A sentence to confinement on bread and water or dimin- of bread and water unless that punishment was specifically 

ished rations may be served in a place where the prisoner can adjudged. A medical officer's approval must be obtained before 

communicate only with authorized personnel. The ration to be the punishment may be executed. See R.C.M.11 13(d)(5); 

furnished is that specified by the authority charged with the 1305(d). 

administration of the punishment, but may not consist solely 

(10) Punitive separation. A court-martial may not adjudge an administrative separation from the service. 

There are three types of punitive separation. 

(A) Dismissal. Dismissal applies only to commissioned officers, commissioned warrant officers, cadets, 

and midshipmen and may be adjudged only by a general court-martial. Regardless of the maximum 

punishment specified for an offense in Part IV of this Manual, a dismissal may be adjudged for any 

offense of which a commissioned officer, commissioned warrant officer, cadet, or midshipman has 

been found guilty; 

(B) Dishonorable discharge. A dishonorable discharge applies only to enlisted persons and warrant 

officers who are not commissioned and may be adjudged only by a general court-martial. A dishonorable discharge should be reserved for those who should be separated under conditions of dishonor, 
R.C.M. 1003(c)(l)(C) 

after having been convicted of offenses usually recognized in civilian jurisdictions as felonies, or of 

offenses of a military nature requiring severe punishment; and 

Discussion 

See also subsection (d)(l) of this rule regarding when a dishonorable discharge is authorized as an additonal punishment. 

(C) Bad-conduct discharge. A bad-conduct discharge applies only to enlisted persons and may be adjudged 

by a general court-martial and by a special court-martial which has met the requirements of R.C.M. 

201(0(2)(B). A bad-conduct discharge is less severe than a dishonorable discharge and is designed 

as a punishment for bad-conduct rather than as a punishment for serious offenses of either a civilian 

or military nature. It is also appropriate for an accused who has been convicted repeatedly of minor 

offenses and whose punitive separation appears to be necessary; 

Discussion 

See also subsections (d)(2) and (3) of this rule regarding when a bad-conduct discharge is authorized as an additional punishment. 

(11) Death. Death may be adjudged only in accordance with R.C.M. 1004; and 

(12) Punishments under the law of war. In cases tried under the law of war, a general court-martial may 

adjudge any punishment not prohibited by the law of war. 

(c) Limits on punishments. 

(1) Based on offenses. 

(A) Offenses listed in Part IV. 

(i) Maximum punishment. The maximum limits for the authorized punishments of confinement, forfeitures, and punitive discharge (if any) are set forth for each offense listed in Part IV of this Manual. These 

limitations are for each separate offense, not for each charge. When a dishonorable discharge is authorized, a 

bad-conduct discharge is also authorized. 

(ii) Other punishments. Except as otherwise specifically provided in this Manual, the types of punishments listed in subsections (b)(l), (3), (4), (3,(6),and (7) of this rule may be adjudged in addition to or instead 

of confinement, forfeitures, a punitive discharge (if authorized), and death (if authorized). 

(B) Offenses not listed in Part IV. 

(i) Included or related offenses. For an offense not listed in Part IV of this Manual which is included 

in or closely related to an offense listed therein the maximum punishment shall be that of the offense listed; 

however, if an offense not listed is included in a listed offense and is closely related to another, or is equally 

closely related to two or more listed offenses, the maximum punishment shall be the same as the least severe 

of the listed offenses. 

(ii) Not inciuded or related offenses. An offense not listed in Part IV and not included in or closely 

related to any offense listed therein is punishable as authorized by the United States Code, or as authorized by 

the custom of the service. When the United States Code provides for confinement for a specified period or not 

more than a specified period, the maximum punishment by court-martial shall include confinement for that 

period. If the period is 1 year or longer, the maximum punishment by court-martial also includes a dishonorable 

discharge and forfeiture of all pay and allowances; if 6 months or more, a bad-conduct discharge and forfeiture 

of all pay and allowances; if less than 6 months, forfeiture of two-thirds pay per month for the authorized period 

of confinement. 

(C) Multiplicity. When the accused is found guilty of two or more offenses, the maximum authorized 

punishment may be imposed for each separate offense. Except as provided in paragraph 5 of Part 

IV, offenses are not separate if each does not require proof of an element not required to prove the 

other. If the offenses are not separate, the maximum punishment for those offenses shall be the 

maximum authorized punishment for the offense canying the greatest maximum punishment. 
R.C.M. 1003(c)(2) 

Discussion 

See also R.C.M. 906(b)(12); 907(b)(3)(B). been found guilty of unauthorized absence instead of desertion, 

The basis of the concept of multiplicity in sentencing is the offense would not be separate because unauthorized absence 

that an accused may not be punished twice for what is, in effect, does not require proof of any element not also required to prove 

one offense. Offenses arising out of the same act or transaction escape. 

may be multiplicious for sentencing depending on the evidence. Even if each offense requires proof of an element not 

No single test or formula has been developed which will resolve required to prove the other, they may not be separately punthe question of multiplicity. ishable if the offenses were committed as the result of a'single 

The following tests have been used for determining whether impulse or intent. For example, if an accused found guilty of 

offenses are separate. Offenses are not separate if one is in- larceny (see paragraph 46, Part IV) and of unlawfully opening 

cluded in the other or unless each requires proof of an element mail matter (see paragraph 93, Part IV) opened the mail bag 

not required to prove the other. For example, if an accused is for the purpose of stealing money in a letter in the bag, the 

found guilty of escape from confinement (see paragraph 19, offenses would not be separately punishable. Also, if there was 

Part IV) and desertion (see paragraph 9, Part IV) which both a unity of time and the existence of aconnected chain of events, 

arose out of the same act or transaction, the offenses would be the offenses may not be separately punishable, depending on 

separate because intent to remain permanently absent is not an all the circumstances, even if each required proof of a different 

element of escape from confinement and a freeing from restraint element. 

is not an element of desertion. However, if the accused had 

(2)Based on rank of accused. 

(A) Commissioned or warrant oflcers, cadets, and midshipmen. 

(i) A commissioned or warrant officer or a cadet, or midshipman may not be reduced in grade by any 

court-martial. However, in time of war or national emergency the Secretary concerned, or such Under Secretary 

or Assistant Secretary as may be designated by the Secretary concerned, may commute a sentence of dismissal 

to reduction to any enlisted grade. 

(ii) Only a general court-martial may sentence a commissioned or warrant officer or a cadet, or 

midshipman to confinement. 

(iii) A commissioned or warrant officer or a cadet or midshipman may not be sentenced to hard labor 

without confinement. 

(iv) Only a general court-martial, upon conviction of any offense in violation of the Code, may sentence 

a commissioned or warrant officer or a cadet or midshipman to be separated from the service with a punitive 

separation. In the case of commissioned officers, cadets, midshipmen, and commissioned warrant officers, the 

separation shall be by dismissal. In the case of all other warrant officers, the separation shall be by dishonorable 

discharge. 

(B) Enlisted persons. See subsection (b)(9) of this rule and R.C.M. 1301(d). 

(3) Based on other rules. The maximum limits on punishments in this rule may be further limited by other 

Rules of Courts-Martial. 

Discussion 

The maximum punishment may be limited by: the juris- and by instructions by a convening authority (see R.C.M. 

dictional limits of the court-martial (see R.C.M. 201(f) and 601(e)(l)). See also R.C.M. 1 107(d)(3) concerning limits on 

1301(d)); the nature of the proceeding (see R.C.M. 810(d) the maximum punishment which may be approved depending 

(sentence limitations in rehearings, new trials, and other trials)); on the nature of the record. 

(d) circumstances permitting increased punishments. 

(1) Three or more convictions. If an accused is found guilty of an offense or offenses for none of which a 

dishonorable discharge is otherwise authorized, proof of three or more previous convictions adjudged by a courtmartial during the year next preceding the commission of any offense of which the accused stands convicted 

shall authorize a dishonorable discharge and forfeiture of all pay and allowances and, if the confinement otherwise 

authorized is less than 1 year, confinement for 1 year. In computing the 1-year period preceding the commission 
R.C.M. 1004(b)(4)(A) 

of any offense, periods of unauthorized absence shall be excluded. For purposes of this subsection, the courtmartial convictions must be final. 

(2) Two or more convictions. If an accused is found guilty of an offense or offenses for none of which a 

dishonorable or bad-conduct discharge is otherwise authorized, proof of two or more previous convictions adjudged 

by a court-martial during the 3 years next preceding the commission of any offense of which the accused stands 

convicted shall authorize a bad-conduct discharge and forfeiture of all pay and allowances and, if the confinement 

otherwise authorized is less than 3 months, confinement for 3 months. In computing the 3 year period preceding 

the commission of any offense, periods of unauthorized absence shall be excluded. For purposes of this subsection 

the court-martial convictions must be final. 

(3) Two or more offenses. If an accused is found guilty of two or more offenses for none of which a 

dishonorable or bad-conduct discharge is otherwise authorized, the fact that the authorized confinement for these 

offenses totals 6 months or more shall, in addition, authorize a bad-conduct discharge and forfeiture of all pay 

and allowances. 

Discussion 

All of these increased punishments are subject to all other 'crease the maximum punishment under this rule. However, they 

limitations on punishments set forth elsewhere in this rule. may be admitted and considered under R.C.M. 1001. 

Convictions by summary court-martial may not be used to inRule 1004. Capital cases 

(a) In general. Death may be adjudged only when: 

(1) Death is expressly authorized under Part 1V of this Manual for an offense of which the accused has 

been found guilty or is authorized under the law of war for an offense of which the accused has been found 

guilty under the law of war; and 

(2) The requirements of subsections (b) and (c) of this rule have been met. 

(b) Procedure. In addition to the provisions in R.C.M.1001, the following procedures shall apply in capital 

cases-

(1) Notice. Before arraignment, trial counsel shall give the defense written notice of which aggravating 

circumstances under subsection (c) of this rule the prosecution intends to prove. Failure to provide timely notice 

under this subsection of any aggravating circumstances under subsection (c) of this rule shall not bar later notice 

and proof of such additional aggravating circumstances unless the accused demonstrates specific prejudice from 

such failure and that a continuance or a recess is not an adequate remedy. 

(2)Evidence of aggravating circumstances. Trial counsel may present evidence in accordance with R.C.M. 

1001(b)(4) tending to establish one or more of the aggravating circumstances in subsection (c) of this rule. 

Discussion 

See also subsection (b)(5) of this rule. 

(3) Evidence in extenuation and mitigation. The accused shall be given broad latitude to present evidence 

in extenuation and mitigation. 

Discussion 

See R.C.M. 1001(c). 

(4) Necessaryfindings. Death may not be adjudged unless the members find: 

(A) 	Beyond a reasonable doubt that one or more of the aggravating circumstances under subsection (c) 

of this rule existed; and 
R.C.M. 1004(b)(4)(B) 

(B) 	That any extenuating or mitigating circumstances are substantially outweighed by any aggravating 

circumstances including such circumstances under subsection (c) of this rule as the members have 

found existed. 

(5) Basis forfindings. The findings in subsection (b)(4) of this rule may be based on evidence introduced 

before or after findings under R.C.M. 921, or both. 

(6) Instructions. In addition to the instructions required under R.C.M. 1005, the military judge shall instruct 

the members on such aggravating circumstances under subsection (c) of this rule as may be in issue in the case, 

and on the requirements and procedures under subsections (b)(4), (9,(7), and (8) of this rule. The military 

judge shall instruct the members that they must consider all evidence in extenuation and mitigation before they 

may adjudge death. 

(7) Voting. In closed session, before voting on a sentence, the members shall vote by secret written ballot 

separately on each aggravating circumstance under subsection Qc) of this rule on which they have been instructed. 

Death may not be adjudged unless all members concur in a finding of the existence of at least one such aggravating 

circumstance. After voting on all the aggravating circumstances on which they have been instructed, the members 

shall vote on a sentence in accordance with R.C.M. 1006. 

(8) Announcement. If death is adjudged, the president shall, in addition to complying with R.C.M. 1007, 

announce which aggravating circumstances under subsection (c) of this rule were found by the members. 

(c) Aggravating circumstances. Death may be adjudged only if the members find, beyond a reasonable doubt, 

one or more of the following aggravating circumstances: 

(1) That the offense was committed before or in the presence of the enemy, except that this circumstance 

shall not apply in the case of a violation of Article 118 or 120; 

Discussion 

See paragraph 23, Part IV, for a definition of "before or in the presence of the enemy." 

(2) That in committing the offense the accused intended to: 

(A) Cause substantial damage to the national security of the United States; or 

(B) Cause substantial damage to a mission, system, or function of the United States, provided that this 

subsection shall apply only if substantial damage to the national security of the United States would 

have resulted had the intended damage been effected; 

(3) That the offense caused substantial damage to the national security of the United States, whether or not 

the accused intended such damage, except that this circumstance shall not apply in the case of a violation of 

Article 118 or 120; 

(4) That the offense was committed in such a way or under circumstances that the lives of persons other 

than the victim, if any, were unlawfully and substantially endangered, except that this circumstance shall not 

apply to a violation of Article 120; 

(5) That the accused committed the offense with the intent to avoid hazardous duty; 

(6) That, only in the case of a violation of Article 118 or 120, the offense was committed in time of war 

and in territory in which the United States or an ally of the United States was then an occupying power or in 

which the armed forces of the United States were then engaged in active hostilities; 

(7) That, only in the case of a violation of Article 118(1): 

(A) 	The accused was serving a sentence of confinement for 30 years or more or for life at the time of 

the murder; 

(B) 	The murder was committed while the accused was engaged in the commission or attempted commission of any robbery, rape, aggravated arson, sodomy, burglary, kidnapping, mutiny, sedition, or 

piracy of an aircraft or vessel, or was engaged in flight or attempted flight after the commission or 

attempted commission of any such offense; 
R.C.M. 100qe) 

(C) The murder was committed for the purpose of receiving money or a thing of value; 

(D) The accused procured another by means of compulsion, coercion, or a promise of an advantage, a 

service, or a thing of value to commit the murder; 

(E) The murder was committed with the intent to avoid or to prevent lawful apprehension or effect an 

escape from custody or confinement; 

(F) 	The victim was the President of the United States, the President-elect, the Vice President, or, if there 

was no Vice President, the officer next in the order of succession to the office of President of the 

United States, the Vice-President-elect, or any individual who is acting as President under the 

Constitution and laws of the United States, any Member of Congress or Member-of-Congress elect, 

or any judge of the United States; 

(G) The accused then knew that the victim was any of the following persons in the execution of office: 

a commissioned, warrant, noncommissioned, or petty officer of the armed services of the United 

States; a member of any law enforcement or security activity or agency, military or civilian, including 

correctional custody personnel; or any firefighter; 

(H) The murder was committed with intent to obstruct justice; 

(I) 	The murder was preceded by the intentional infliction of substantial physical harm or prolonged, 

substantial mental or physical pain and suffering to the victim; 

(J) 	 The accused has been found guilty in the same case of another violation of Article 118; 

(8) That only in the case of a violation of Article 118(4), the accused was the actual perpetrator of the 

killing; 

(9) That, only in the case of a violation of Article 120: 

(A) The victim was under the age of 12; or 

(B) The accused maimed or attempted to kill the victim; or 

(10) That, only in the case of a violation of the law of war, death is authorized under the law of war for 

the offense. 

For purposes of this rule, "national security" means the national defense and foreign relations of the United 

States and specifically includes: a military or defense advantage over any foreign nation or group of nations; a 

favorable foreign relations position; or a defense posture capable of successfully resisting hostile or destructive 

action from within or without. 

Discussion 

Examples of substantial damage to the national security of U.S.C. 5 310(a)); and disclosing military plans, capabilities, 

the United States include: impeding the performance of a combat or intelligence such as to jeopardize any combat mission or 

mission or operation; impeding the performance of an important operation of the armed services of the United States or its allies 

mission in a hostile fire or imminent danger pay -area (see 37 or to materially aid an enemy of the United States. 

(d) Spying. If the accused has been found guilty of spying under Article 106, subsections (a)(2), (b), and (c) of 

this rule and R.C.M. 1006 and 1007 shall not apply. Sentencing proceedings in accordance with R.C.M. 1001 

shall be conducted, but the military judge shall announce that by operation of law a sentence of death has been 

adjudged. 

(e) Other penalties. Except for a violation of Article 106, when death is an authorized punishment for an offense, 

all other punishments authorized under R.C.M. 1003 are also authorized for that offense, including confinement 

for life, and may be adjudged in lieu of the death penalty, subject to limitations specifically prescribed in this 

Manual. A sentence of death includes a dishonorable discharge or dismissal, as appropriate. Confinement is a 

necessary incident of a sentence of death but not a part of it. 
R.C.M. 1005 

Discussion 

A sentence of death may not be ordered executed until out in the manner prescribed by the Secretary concerned. See 

approved by the Resident. See R.C.M. 1207. A sentence to R.C.M. 11 13(d)(l). 

death which has been finally ordered executed will be carried 

Rule 1005. Instructions on sentence 

(a) In general. The military judge shall give the members appropriate instructions on sentence. 

Discussion 

Instructions should be tailored to the facts and circumstances of the individual case. 

(b) When given. Instructions on sentence shall be given after arguments by counsel and before the members 

close to deliberate on sentence, but the military judge may, upon request of the members, any party, or sua 

sponte, give additional instructions at a later time. 

(c) Requests for instructions. After presentation of matters relating to sentence or at such other time as the 

military judge may permit, any party may request that the military judge instruct the members on the law as set 

forth in the request. The military judge may require the requested instruction to be written. Each party shall be 

given the opportunity to be heard on any proposed instruction on sentence before it is given. The military judge 

shall inform the parties of the proposed action on such requests before their closing arguments on sentence. 

Discussion 

Requests for and objections to instructions should be re- The military judge should not identify the source of any 

solved at an Article 39(a) session. But see R.C.M. 801(e)(l)(c); instruction when addressing the members. 

803. All written request for instructions should be marked as 

The military judge is not required to give the specific appellate exhibits, whether or not they are given. 


instruction requested by counsel if the matter is adequately 


covered in the instructions. 


(d) How given. Instructions on sentence shall be given orally on the record in the presence of all parties and the 

members. Written copies of the instructions, or unless a party objects, portions of them, may also be given to 

the members for their use during deliberations. 

Discussion 

A copy of any written instructions delivered to the members should be marked as an appellate exhibit. 

(e) Required instructions. Instructions on sentence shall include: 

(1) A statement of the maximum authorized punishment which may be adjudged and of the mandatory 

minimum punishment, if any; 

Discussion 

The maximum punishment is the lowest of: the total per- otherwise appropriate insbct on lesser punishments. See R.C.M. 

mitted by the applicable paragraph(s) in Part IV for each sep- 1003. The'members should not be informed of the basis for the 

arate offense of which the accused was convicted (see also sentence limitation or of any sentence which might be imposed 

R.C.M. 1003 concerning additional limits on punishments and for the offense if not limited as set forth above. If an additional 

additional punishments which may be adjudged); the jurisdic- punishment is authorized under R.C.M. 1003(d), the members 

tional limit of the court-martial (see R.C.M. 201(f) and 1301(d)); must be informed of the basis for the increased permissible 

or in a rehearing or new or other tial the punishment adjudged punishment. 

by a prior court-martial or approved on review, supplemented A carefully drafted sentence worksheet ordinarily should 

by the total permitted by any charges not tried previously (see be used and should include reference to all authorized punishR.C.M. 810(d)). The military judge may upon request or when ments in the case. 
R.C.M. 1006(d)(3) 

(2) A statement of the procedures for deliberation and voting on the sentence set out in R.C.M. 1006; 

Discussion 

See also R.C.M. 1004 concerning additional instructions required in capital cases. 

(3) A statement informing the members that they are solely responsible for selecting an appropriate sentence 

and may not rely on the possibility of any mitigating action by the convening or higher authority; and 

Discussion 

See also R.C.M. 1002. 

(4) A statement that the members should consider all matters in extenuation, mitigation, and aggravation, 

whether introduced before or after findings, and matters introduced under R.C.M. 1001(b)(l), (2), (3) and (5). 

Discussion 

For example, tailored instructions on sentencing should or other traits of good character, and any pretrial restraint imbring attention to the reputation or record of the accused in the posed on the accused. 

service for good conduct, efficiency, fidelity, courage, bravery, 

(f) Waiver. Failure to object to an instruction or to omission of an instruction before the members close to 

deliberate on the sentence constitutes waiver of the objection in the absence of plain error. The military judge 

may require the party objecting to specify in what respect the instructions were improper. The parties shall be 

given the opportunity to be heard on any objection outside the presence of the members. 

Rule 1006. Deliberations and voting on sentence 

(a) In general. The members shall deliberate and vote after the military judge instructs the members on sentence. 

Only the members shall be present during deliberations and voting. Superiority in rank shall not be used in any 

manner to control the independence of members in the exercise of their judgment. 

(b) Deliberations. Deliberations may properly include full and free discussion of the sentence to be imposed in 

the case. Unless otherwise directed by the military judge, members may take with them in deliberations their 

notes, if any, any exhibits admitted in evidence, and any written instructions. Members may request that the 

court-martial be reopened and that portions of the record be read to them or additional evidence introduced. The 

military judge may, in the exercise of discretion, grant such requests. 

(c) Proposal of sentences. Any member may propose a sentence. Each proposal shall be in writing and shall 

contain the complete sentence proposed. The junior member shall collect the proposed sentences and submit 

them to the president. 

Discussion 

A proposal should state completely each kind and, when member. See R.C.M. 1003(b) 


appropriate, amount of authorized punishment proposed by that 


(d) Voting. 

(1) Duty of members. Each member has the duty to vote for a proper sentence for the offenses of which 

the court-martial found the accused guilty, regardless of the member's vote or opinion as to the guilt of the 

accused. 

(2) Secret ballot. Proposed sentences shall be voted on by secret written ballot. 

(3) Procedure. 
R.C.M. 1006(d)(3)(A) 

(A) Order. All members shall vote on each proposed sentence in its entirety beginning with the least 

severe and continuing, as necessary, with the next least severe, until a sentence is adopted by the 

concurrence of the number of members required under subsection (d)(4) of this rule. The process of 

proposing sentences and voting on them may be repeated as necessary until a sentence is adopted. 

(B) 	Counting votes. The junior member shall collect the ballots and count the votes. The president shall 

check the count and inform the other members of the result. 

Discussion 

A sentence adopted by the required number of members may be reconsidered only in accordance with R.C.M. 1009. 

(4)Number of votes required. 

(A) Death. A sentence which includes death may be adjudged only if all members present vote for that 

sentence. 

Discussion 

See R.C.M. 1004. 

(B) Confinement for life or more than I0 years. A sentence which includes confinement for life or more 

than 10 years may be adjudged only if at least three-fourths of the members present vote for that 

sentence. 

(C) Other. A sentence other than those described in subsection (d)(4)(A) or (B) of this rule may be 

adjudged only if at least two-thirds of the members present vote for that sentence. 

Discussion 

In computing the number of votes required to adopt a would have to concur to impose a sentence requiring a threesentence, any fraction of a vote is rounded up to the next whole fourths vote, while at least five would have to concur to impose 

number. For example, if there are seven members, at least six a sentence requiring a two-thirds vote. 

(5) Mandatory sentence. When a mandatory minimum is prescribed under Article 118 the members shall 

vote on a sentence in accordance with this rule. 

(6)Effect offailure to agree. If the required number of members do not agree on a sentence after a reasonable 

effort to do so, a mistrial may be declared as to the sentence and the case shall be returned to the convening 

authority, who may order a rehearing on sentence only or order that a sentence of no punishment be imposed. 

(e) Action after a sentence is reached. After the members have agreed upon a sentence, the court-martial shall 

be opened and the president shall inform the military judge that a sentence has been reached. The military judge 

may, in the presence of the parties, examine any writing which the president intends to read to announce the 

sentence and may assist the members in putting the sentence in proper form. Neither that writing nor any oral 

or written clarification or discussion concerning it shall constitute announcement of the sentence. 

Discussion 

Ordinarily a sentence worksheet should be provided to the counsel should be permitted to examine the worksheet and to 

members as an aid to putting the sentence in proper form. See be heard on any instructions the military judge may give. 

Appendix 11 for a format for forms of sentences. If a sentence The president should not disclose any specific number of 

worksheet has been provided, the military judge shouldexamine votes for or against any sentence. 

it before the president announces the sentence. If the military If the sentence is ambiguous or apparently illegal, see 

judge intends to instruct the members after such examination, R.C.M. 1009. 
R.C.M. 1009(c)(2)(B) 

Rule 1007. Announcement of sentence 

(a) In general. The sentence shall be announced by the president or, in a court-martial composed of a military 

judge alone, by the military judge, in the presence of all parties promptly after it has been determined. 

Discussion 

See Appendix 11. which no instructions were given and which is not listed on a 

An element of a sentence adjudged by members about sentence worksheet is not proper. 

(b) Erroneous announcement. If the announced sentence is not the one actually determined by the court-martial, 

the error may be corrected by a new announcement made before the record of trial is authenticated and forwarded 

to the convening authority. This action shall not constitute reconsideration of the sentence. If the court-martial 

has been adjourned before the error is discovered, the military judge may call the court-martial into session to 

correct the announcement. 

Discussion 

For procedures governing reconsideration of the sentence, the record is authenticated and forwarded to the convening 

see R.C.M. 1009. See also R.C.M. 1102 concerning the action authority. 

to be taken if the error in the announcement is discovered after 

(c) Polling prohibited. Except as provided in Mil. R. Evid. 606, members may not otherwise be questioned 

about their deliberations and voting. 

Rule 1008. Impeachment of sentence 

A sentence which is proper on its face may be impeached only when extraneous prejudicial information was 

improperly brought to the attention of a member, outside influence was improperly brought to bear upon any 

member, or unlawful command influence was brought to bear upon any member. 

Discussion 

See R.C.M. 923 Discussion concerning impeachment of findings. 

Rule 1009. Reconsideration of sentence 

(a) Time for reconsideration. Subject to this rule, a sentence may be reconsidered by the members or the military 

judge who reached it at any time before the record of trial is authenticated. 

(b) Limitations. After a sentence has been announced, it may not be increased upon reconsideration unless the 

sentence announced was less than the mandatory minimum prescribed for an offense of which the accused has 

been found guilty. 

(c)Initiation of reconsideration. 

(1) By members. Any member may propose that a sentence reached by the members be reconsidered. 

(2) By military judge. 

(A) Adjudged by military judge. The military judge may initiate reconsideration of a sentence adjudged 

by that military judge. 

(B) Reached by members. When a sentence reached by members is ambiguous or apparently illegal, 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 reconsideration and proceed in accordance with subsection (d) of this rule, or may 

bring the matter to the attention of the convening authority. 
R.C.M. 1009(c)(3) 

Discussion 

If the ambiguity or illegality is discovered before the sen- see R.C.M. 1007(b). See R.C.M. 804 and 805 concerning 

tence is announced, see also R.C.M. 1006. If the ambiguity or persons required to be present. 

apparent illegality is the result of an erroneous announcement, 

(3) By convening authority. When a sentence adjudged by the court-martial is ambiguous or apparently 

illegal, the convening authority may return the matter to the court-martial for clarification or may approve a 

sentence no more severe than the legal, unambiguous portions of the adjudged sentence. 

(d) Procedure with members. 

(1) Instructions. When a sentence has been reached by members and reconsideration has been initiated 

under subsection (c) of this rule, 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. 

(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 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 

Discussion 

After a sentence has been adopted by secret ballot vote in to increase it; four would have to vote to reconsider in order 

closed session, no other vote may be taken on the sentence to decrease it. If seven of nine (three-fourths) members is reunless a vote to reconsider succeeds. quired to adopt a sentence, a vote of at least five would be 

For example if six of nine (two-thirds) members adopt a necessary to reconsider to increase it, while three would be 

sentence, a vote of at least five would be necessary to reconsider necessary to reconsider to decrease it. 

(4) Successful vote. If a vote to reconsider a sentence succeeds, the procedures in R.C.M. 1006shall apply. 

Rule 1010. Advice concerning post-trial and appellate rights 

(a) Advice. In each general and special court-martial, after the sentence is announced and before the court-martial 

is adjourned, the military judge shall inform the accused of: 

(1) The right to submit matters to the convening authority to consider before taking action; 

(2) The right to appellate review, as applicable, and the effect of waiver or withdrawal of such rights; 

(3) The right to apply for relief from the Judge Advocate General if the case is not reviewed by a Court of 

Military Review; and 

(4) The right to the advice and assistance of counsel in the exercise of the foregoing rights or any decision 

to waive them. 

(b) Inquiry. After compliance with subsection (a) of this rule, the military judge shall inquire of the accused to 

ensure that the accused understands the advice. 
R.C.M. iOll 

Rule 1011. Adjournment 

The military judge may adjourn the court-martial at the end of the trial of an accused or proceed to trial of 

other cases referred to that court-martial. Such an adjournment may be for a definite or indefinite period. 

Discussion 

A court-martial and its personnel have certain powers and 502(d)(5) Discussion (F); 502(d)(6) Discussion (E); 808; 1007; 

responsibilities following the trial. See, for example, R.C.M. 1009; Chapter XI. 
CHAPTER XI. POST-TRIAL PROCEDURE 

Rule 1101. Report of result of trial; post-trial restraint; deferment of confinement 

(a) Report of the result of trial. After final adjournment of the court-martial in a case, the trial counsel shall 

promptly notify the accused's immediate commander, the convening authority or the convening authority's 

designee, and, if appropriate, the officer in charge of the confinement facility of the findings and sentence. 

(b)Post-trial confinement. 

(1) In general. An accused may be placed in post-trial confinement if the sentence adjudged by the courtmartial includes death or confinement. 

(2) Who may order confinement. Unless limited by superior authority, a commander of the accused may 

order the accused into post-trial confinement when post-trial confinement is authorized under subsection (b)(l) 

of this rule. A commander authorized to order post-trial confinement under this subsection may delegate this 

authority to the trial counsel. 

Discussion 

The commander may release the accused, order confine- finement begins to run on the date it is adjudged unless it is 

ment, or order other appropriate restraint. Regardless whether deferred under subsection (c) of this rule. See Article 57. 

the accused is ordered into confinement, a sentence to con- 

(3) Confinement on other grounds. Nothing in this rule shall prohibit confinement of a person after a courtmartial on proper grounds other than the offenses for which the accused was tried at that court-martial. 

Discussion 

See R.C.M.304, 305, and paragraph 5b(2), Part V, for other grounds for confinement. 

(c) Deferment of confnement. 

(1) In general. Deferment of a sentence to confinement is a postponement of the service and of the running 

of the sentence. 

Discussion 

Deferment is not suspension of the sentence or a form of clemency. 

(2) Who may defer. The convening authority or, if the accused is no longer in the convening authority's 

jurisdiction, the officer exercising general court-martial jurisdiction over the command to which the accused is 

assigned, may, upon written application of the accused, at any time after the adjournment of the court-martial, 

defer the accused's service of a sentence to confinement which has not been ordered executed. 

(3) Action on deferment request. The authority acting on the deferment request may, in that authority's 

discretion, defer service of a sentence to confinement. The accused shall have the burden to show that the 

interests of the accused and the community in release outweigh the community's interests in confinement. Factors 

that the authority acting on a deferment request may consider in determining whether to grant the deferment 

request include: the probability of the accused's flight; the probability of the accused's commission of other 

offenses, intimidation of witnesses, or interference with the administration of justice; the nature of the offenses 

(including the effect on the victim) of which the accused was convicted; the sentence adjudged; the command's 

immediate need for the accused; the effect of deferment on good order and discipline in the command; and the 

accused's character, mental condition, family situation, and service record. The decision of the authority acting 
R.C.M. 1101(c)(4) 

on the deferment shall be subject to judicial review only for abuse of discretion. The action of the convening 

authority shall be written and a copy shall be provided to the accused. 

Discussion 

The deferment request and the action on the request must be attached to the record of trial. See R.C.M. 1103(b)(3)(D). 

(4) Orders. The action granting deferment shall be reported in the convening authority's action under R.C.M. 

1107(f)(4)(E) and shall include the date of the action on the request when it occurs prior to or concurrently with 

the action. Action granting deferment after the convening authority's action under R.C.M. 1107 shall be reported 

in orders under R.C.M. 1 1 14 and included in the record of trial. 

(5) Restraint when deferment is granted. When deferment of confinement is granted, no form of restraint 

or other limitation on the accused's liberty may be ordered as a substitute form of punishment. An accused may, 

however, be restricted to specified limits or conditions may be placed on the accused's liberty during the period 

of deferment for any other proper reason, including a ground for restraint under R.C.M. 304. 

(6) End of deferment. Deferment of a sentence to confinement ends when: 

(A) The convening authority takes action under R.C.M. 1107, unless the convening authority specifies 

in the action that service of confinement after the action is deferred; 

(B) The confinement is suspended; 

(C) The deferment expires by its own terms; or 

(D) The deferment is otherwise rescinded in accordance with subsection (c)(7) of this rule. 

Deferment of confinement may not continue after the conviction is final under R.C.M. 1209. 

Discussion 

A sentence to confinement which has been ordered exe- as appropriate. When the convening authority has specified in 

cuted may not be deferred. When the sentence is ordered ex- the action that confinement will be deferred after the action, 

ecuted, the confinement may be suspended but may not be the deferment may not be terminated, except under subsections 

further deferred. Deferment and suspension of confinement can- (6)(B), (C), or (D),until the conviction is final under R.C.M. 

not exist concurrently. When deferment of confinement ends, 1209. 

the sentence to confinement begins to run or resumes running, 

(7) Rescission of deferment. 

(A) Who may rescind. The authority who granted the deferment or, if the accused is no longer within 

that authority's jurisdiction, the officer exercising general court-martial jurisdiction over the command 

to which the accused is assigned, may rescind the deferment. 

(B) Action. Deferment of confinement may be rescinded when additional information is presented to a 

proper authority which, when considered with all other information in the case, that authority finds, 

in that authority's discretion, is grounds for denial of deferment under subsection (c)(3) of this rule. 

The accused shall promptly be informed of the basis for the rescission and of the right to submit 

written matters in the accused's behalf and to request that the rescission be reconsidered. However, 

the accused may be required to serve the sentence to confinement pending this action. 

(C) Execution. When deferment is rescinded after the convening authority's action under R.C.M. 1107, 

the confinement may be ordered executed. However, no such order may be issued within 7 days of 

notice of the rescission to the accused under subsection (c)(7)(B) of this rule, to afford the accused 

an opportunity to respond. The authority rescinding the deferment may extend this period for good 

cause shown. The accused shall be credited with any confinement actually served during this period. 

(D) Orders. Rescission of a deferment before or concurrently with the initial action in the case shall be 

reported in the action under R.C.M. 1 107(f)(4)(E), which action shall include the dates of the granting 

of the deferment and the rescission. Rescission of a deferment after the convening authority's action 
R.C.M. 11OP(e)(l)(A)(i) 

shall be reported in supplementary orders in accordance with R.C.M. 1114 and shall state whether 

the approved period of confinement is to be executed or whether all or part of it is to be suspended. 

Discussion 

See Appendix 16 for forms. 

Rule 1102. Post-trial sessions. 

(a) In general. Post-trial sessions may be proceedings in revision or Article 39(a) sessions. Such sessions may 

be directed by the military judge or the convening authority in accordance with this rule. 

(b)Purpose. 

(1) Proceedings in revision. Proceedings in revision may be directed to correct an apparent error, omission, 

or improper or inconsistent action by the court-martial, which can be rectified by reopening the proceedings 

without material prejudice to the accused. 

Discussion 

Because the action at a proceeding in revision is corrective, by the court-martial; inquiry into the terms of a pretrial agreea proceeding in revision may not be conducted for the purpose ment; and inquiry to establish the accused's awareness of certain 

of presenting additional evidence. rights. 

Examples when a proceeding in revision is appropriate See also R.C.M.1104(d) concerning correction of the 

include: correction of an ambiguous or apparently illegal action record by certificate of correction. 

(2)Article 39(a)sessions. An Article 39(a) session under this rule may be called for the purpose of inquiring 

into, and, when appropriate, resolving any matter which arises after trial and which substantially affects the legal 

sufficiency of any findings of guilty or the sentence. 

Discussion 

For example, an Article 39(a) session may be called to examine allegations of misconduct by a member or by counsel 

(c) Matters not subject to post-trial sessions. Post-trial sessions may not be directed: 

(1) For reconsideration of a finding of not guilty of any specification, or a ruling which amounts to a finding 

of not guilty; 

(2) For reconsideration of a finding of not guilty of any charge, unless the record shows a finding of guilty 

under a specification laid under that charge, which sufficiently alleges a violation of some article of the code; 

or 

(3) For increasing the severity of the sentence unless the sentence prescribed for the offense is mandatory. 

(d) When directed. The military judge may direct a post-trial session any time before the record is authenticated. 

The convening authority may direct a post-trial session any time before the convening authority takes initial 

action on the case or at such later time as the convening authority is authorized to do so by a reviewing authority, 

except that no proceeding in revision may be held when any part of the sentence has been ordered executed. 

(e) Procedure. 

(1) Personnel. The requirements of R.C.M. 505 and 805 shall apply at post-trial sessions except that- 

(A) For a proceeding in revision, if trial was before members and the matter subject to the proceeding 

in revision requires the presence of members: 

(i) The absence of any members does not invalidate the proceedings if, in the case of a general courtmartial, at least five members are present, or, in the case of a special court-martial, at least three members are 

present; and 
R.C.M. 1lOP(e)(l)(A)(II) 

(ii) A different military judge may be detailed, subject to R.C.M. 502(c) and 902, if the military judge 

who presided at the earlier proceedings is not reasonably available. 

(B) 	For an Article 39(a) session, a different military judge may be detailed, subject to R.C.M. 502(c) 

and 902, for good cause. 

(2) Action. The military judge shall take such action as may be appropriate, including appropriate instructions 

when members are present. The members may deliberate in closed session, if necessary, to determine what 

corrective action, if any, to take. 

(3) Record. All post-trial sessions, except any deliberations by the members, shall be held in open session. 

The record of the post-trial sessions shall be prepared, authenticated, and served in accordance with R.C.M. 

1103 and 1104 and shall be included in the record of the prior proceedings. 

Rule 1103. Preparation of record of trial 

(a) In general. Each general, special, and summary court-martial shall keep a separate record of the proceedings 

in each case brought before it. 

(b)General courts-martial. 

(1) Responsibility for preparation. The trial counsel shall: 

(A) Under the direction of the military judge, cause the record of trial to be prepared; and 

(B) Under regulations prescribed by the Secretary concerned, cause to be retained stenographic or other 

notes or mechanical or electronic recordings from which the record of trial was prepared. 

(2) Contents. 

(A) In general. The record of trial in each general court-martial shall be separate, complete, and independent of any other document. 

(B) 	Verbatim transcript required. Except as otherwise provided in subsection (j) of this rule, the record 

of trial shall include a verbatim written transcript of all sessions except sessions closed for deliberations 

and voting when: 

(i) Any part of the sentence adjudged exceeds that which may be adjudged by a special court-martial; 

or 

(ii) A bad-conduct discharge has been adjudged. 

Discussion 

A verbatim transcript includes: all proceedings including Conferences under R.C.M. 802 need not be recorded, but 

sidebar conferences, arguments of counsel, and rulings and matters agreed upon at such conferences must be included in 


instructions by the military judge; matter which the military the record. 


judge orders stricken from the record or disregarded; and when If testimony is given through an interpreter, a verbatim 


a record is amended in revision proceedings (see R.C.M.1102). transcript must so reflect. 


the part of the original record changed and the changes made, 


without physical alteration of the original record. 


(C) Verbatim transcript not required. If a verbatim transcript is not required under subsection (b)(2)(B) 

of this rule, a summarized report of the proceedings may be prepared instead of a verbatim transcript. 

Discussion 

See also R.C.M. 910(i) concerning guilty plea inquiries. 

(D) Other matters. In addition to the matter required under subsection (b)(2)(B) or (b)(2)(C) of this rule, 

a complete record shall include: 

(i) The original charge sheet or a duplicate; 
R.C.M. 11 03(e) 

(ii) A copy of the convening order and any amending order(s); 

(iii) The request, if any, for trial by military judge alone, or that the membership of the court-martial 

include enlisted persons, and, when applicable, any statement by the convening authority required under R.C.M. 

201(f)(2)(B)(ii) or 503(a)(2); and 

(iv) Exhibits, or, with the permission of the military judge, copies, photographs, or descriptions of 

any exhibits which were received in evidence and any appellate exhibits. 

(3) Matters attached to the record. The following matters shall be attached to the record: 

(A) If not used as exhibits- 

(i) The report of investigation under Article 32, if any; 

(ii) The staff judge advocate's pretrial advice under Article 34, if any; and 

(iii) If the trial was a rehearing or new or other trial of the case, the record of the former hearing@); 

(iv) Written special findings, if any, by the military judge; 

(B) Exhibits or, with the permission of the military judge, copies, photographs, or descriptions of any 

exhibits which were marked for and referred to on the record but not received in evidence; 

(C) Any matter filed by the accused under R.C.M. 1105, or any written waiver of the right to submit 

such matter; 

(D) Any deferment request and the action on it; 

(E) Explanation for any substitute authentication under R.C.M. 1104(a)(2)(B); 

(F) Explanation for any,failure to serve the record of trial on the accused under R.C.M. 1104(b); 

(G) The post-trial recommendation of the staff judge advocate or legal officer and proof of service on 

defense counsel in accordance with R.C.M. 1 106(f)(l); 

(H) Any response by defense counsel to the post-trial review; 

(I) Recommendations and other papers relative to clemency; 

(J) Any statement why it is impracticable for the convening authority to act; 

(K) Conditions of suspension, if any, and proof of service on probationer under R.C.M. 1108; 

(L) The certificate of a medical officer concerning the physical condition of an accused sentenced to 

confinement on bread and water or diminished rations; 

(M) Any waiver or withdrawal of appellate review under R.C.M. 11 10; and 

(N) Records of any proceedings in connection with vacation of suspension under R.C.M. 1109. 

(c) Special courts-martial. 

(1) Involving a bad-conduct discharge. The requirements of subsections (b)(l), (b)(2)(A), (b)(2)(B), (b)(2)(D), 

and (b)(3) of this rule shall apply in a special court-martial in which a bad-conduct discharge has been adjudged. 

(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)(l), (b)(2)(C), (b)(2)(D), and 

(b)(3)(A)-(F) and (I)-(N) of this rule shall apply. 

(d) Summary courts-martial. The summary court-martial record of trial shall be prepared as prescribed in R.C.M. 

1305. 

(e) Acquittal; termination prior to findings. Notwithstanding subsections (b), (c) and (d) of this rule, if the 

proceedings resulted in an acquittal of all charges and specifications or the proceedings were terminated by 

withdrawal, mistrial, or dismissal before findings, the record may consist of the original charge sheet, a copy 

of the convening order and amending orders (if any), and sufficient information to establish jurisdiction over 

the accused and the offenses (if not shown on the charge sheet). 
R.C.M. 1103(1) 

Discussions 

The notes or recordings of court-martial proceedings de- be necessary for the trial of another accused in a related case. 

scribed in this subsection should be retained if reinstitution and See R.C.M. 905(g) and 914. 

re-referral of the affected charges is likely or when they may 

(f) Loss of notes or recordings of the proceedings. If, because of loss of recordings or notes, or other reasons, 

a verbatim transcript cannot be prepared when required by subsection (b)(2)(B) or (c)(l) of this rule, a record 

which meets the requirements of subsection (b)(2)(C) of this rule shall be prepared, and the convening authority 

may: 

(1) Approve only so much of the sentence which could be adjudged by a special court-martial, except that 

no bad-conduct discharge may be approved; or 

(2) Direct a rehearing as: to any offense of which the accused was found guilty if the finding is supported 

by the summary of the evidence contained in the record, provided that the court-martial in a rehearing may not 

adjudge any sentence in excess of that adjudged by the earlier court-martial. 

(g) Copies of the record of trial. 

(1) General and special courts-martial. 

(A) In general. In general and special courts-martial which require a verbatim transcript under subsections 

(b) or (c) of this rule, the trial counsel shall cause to be prepared an original and four copies of the 

record of trial. In all other general and special courts-martial the trial counsel shall cause to be 

prepared an original and one copy of the record of trial. 

Discussion 

In a joint or common trial an additional copy of the record must be prepared for each accused. See R.C.M. 1104(b). 

(B) Additional copies. The convening or higher authority may direct that additional copies of the record 

of trial of any general or special court-martial be prepared. 

(2) Summary courts-martial. Copies of the summary court-martial record of trial shall be prepared as 

prescribed in R.C.M. 1305(b). 

(h) Securiry classz~cation. If the record of trial contains matter which must be classified under applicable security 

regulations, the trial counsel shall cause a proper security classification to be assigned to the record of trial and 

on each page thereof on which classified material appears. 

Discussion 

See R.C.M. 1104(b)(I)(D)concerning the disposition of records of trial requiring security protection. 

(i) Examination and correction before authentication. 

(1) General and special courts-martial. 

(A) Examination and correction by trial counsel. In general and special courts-martial, the trial counsel 

shall examine the record of trial before authentication and cause those changes to be made which 

are necessary to report the proceedings accurately. The trial counsel shall not change the record after 

authentication. 

Discussion 

The trial counsel may personally correct and initial the The trial counsel must ensure that the reporter makes a 

necessary changes or, if major changes are necessary, direct true, complete, and accurate record of the proceedings such 

the reporter to rewrite the entire record or the portion of the that the record will meet the applicable requirements of this 

record which is defective. rule. 
R.C.M. 1103(j)(5)(B) 

(B) Examination by defense counsel. Except when unreasonable delay will result, the trial counsel shall 

permit the defense counsel to examine the record before authentication. 

Discussion 

If the defense counsel discovers errors or omissions in the The defense counsel should be granted reasonable access 

record, the defense counsel may suggest to the trial counsel to the reporter's notes and tapes to facilitate the examination 

appropriate changes to make the record accurate, forward for of the record. 

attachment to the record under Article 38(c) any objections to A suitable notation that the defense counsel has examined 

the record, or bring any suggestions for correction of the record the record should be made on the authentication page. See 

to the attention of the person who authenticates the record. Appendix 13 or 14 for sample forms. 

(2) Summary courts-martial. The summary court-martial shall examine and correct the summary courtmartial record of trial as prescribed in R.C.M. 1305(a). 

(j) Videotape and similar records. 

(1) Recording proceedings. If authorized by regulations of the Secretary concerned, general and special 

courts-martial may be recorded by videotape, audiotape, or similar material from which sound or sound and 

visual images may be reproduced to accurately depict the entire court-martial. Such means of recording may be 

used in lieu of recording by a qualified court reporter, when one is required, subject to this rule. 

(2) Preparation of written record. When the court-martial, or any part of it, is recorded by videotape, 

audiotape, or similar material under subsection (j)(l) of this rule, a written transcript or summary as required in 

subsection (b)(2)(A), (b)(2)(B), (b)(2)(C), or (c) of this rule, as appropriate, shall be prepared in accordance 

with this rule and R.C.M. 1104 before the record is forwarded under R.C.M. 1104(e), unless military exigencies 

prevent transcription. 

(3) Military exigency. If military exigency prevents preparation of a written transcript or summary, as 

required, and when the court-martial has been recorded by videotape, audiotape, or similar material under 

subsection (j)(l)of this rule, the videotape, audiotape, or similar material, together with the matters in subsections 

(b)(2)(D) and (b)(3) of this rule shall be authenticated and forwarded in accordance with R.C.M. 1104, provided 

that in such case the convening au~hority shall cause to be attached to the record a statement of the reasons why 

a written record could not be prepared, and provided further that in such case the defense counsel shall be given 

reasonable opportunity to listen to or to view and listen to the recording whenever defense counsel is otherwise 

entitled to examine the record under these rules. Subsection (g) of this rule shall not apply in case of military 

exigency under this subsection. 

(4) Further review. 

(A) Cases reviewed by the Court of Military Review. Before review, if any, by a Court of Military 

Review of a case in which the record includes an authenticated recording prepared under subsection 

(j)(3) of this rule, a complete written transcript shall be prepared and certified as accurate in accordance 

with regulations of the Secretary concerned. The authenticated recording shall be retained for examination by appellate authorities. 

(B) Cases not reviewed by the Court of Military Review. In cases in which the record includes an 

authenticated recording prepared under subsection (j)(3) of this rule, a written record shall be prepared 

under such circumstances as the Secretary concerned may prescribe. 

(5)Accused's copy. When a record includes an authenticated recording under subsection (j)(3) of this rule, 

the Government shall, in order to comply with R.C.M. 1 104(b): 

(A) 	Provide the accused with a duplicate copy of the videotape, audiotape, or similar matter and copies 

of any written contents of and attachments to the record, and give the accused reasonable opportunity 

to use such viewing equipment as is necessary to listen to or view and listen to the recording; qr 

(B) With the written consent of the accused, defer service of the record until a written record is prepared 

under subsection (4) of this rule. 
R.C.M. 1104 

Rule 1104. Records of trial: Authentication; service; loss; correction; forwarding 

(a) Authentication. 

(1) In general. A record is authenticated by the signature of a person specified in this rule who thereby 

declares that the record accurately reports the proceedings. No person may be required to authenticate a record 

of trial if that person is not satisfied that it accurately reports the proceedings. 

(2)General and special courts-martial. 

(A) Authentication by the military judge. In special courts-martial in which a bad-conduct discharge has 

been adjudged and in general courts-martial, except as provided in subsection (a)(2)(B) of this rule, 

the military judge present at the end of the proceedings shall authenticate the record of trial, or that 

portion over which the military judge presided. If more than one military judge presided over the 

proceedings, each military judge shall authenticate the record of the proceedings over which that 

military judge presided, except as provided in subsection (a)(2)(B) of this rule. The record of trial 

of special courts-martial in which no bad-conduct discharge was adjudged shall be authenticated in 

accordance with regulations of the Secretary concerned. 

(B) 	Substitute authentication. If the military judge cannot authenticate the record of trial because of the 

military judge's death, disability, or absence, the trial counsel present at the end of the proceedings 

shall authenticate the record of trial. If the trial counsel cannot authenticate the record of trial because 

of the trial counsel's death, disability, or absence, a member shall authenticate the record of trial. 

In a court-martial composed of a military judge alone, or as to sessions without members, the court 

reporter shall authenticate the record of trial when this duty would fall upon a member under this 

subsection. A person authorized to authenticate a record under this subsection may authenticate the 

record only as to those proceedings at which that person was present. 

Discussion 

See Appendix 13 or 14 for sample forms. 	 manent change of station, ordinarily justifies substitute authenSubstitute authentication is authorized only in emergen- tication. 

cies. A brief, temporary absence of the military judge from the The person who authenticates the record of trial instead of 

situs of the preparation of the record of trial does not justify a the military judge should attach to the record of trial an explasubstitute authentication. Prolonged absence, including per- nation for the substitute authentication. See R.C.M.1103(b)(3)(E). 

(3) Summary courts-martial. The summary court-martial shall authenticate the summary court-martial record 

of trial as prescribed in R.C.M. 1305(a). 

(b) Service. 

(1) General and special courts-martial. 

(A) Service of record of trial on accused. In each general and special court-martial, except as provided 

in subsection (b)(l)(C) or (D) of this rule, the trial counsel shall cause a copy of the record of trial 

to be served on the accused as soon as the record of trial is authenticated. 

(B) Proof of service of record of trial on accused. The trial counsel shall cause the accused's receipt for 

the copy of the record of trial to be attached to the original record of trial. If it is impracticable to 

secure a receipt from the accused before the original record of trial is forwarded to the convening 

authority, the trial counsel shall prepare a certificate indicating that a copy of the record of trial has 

been transmitted to the accused, including the means of transmission and the address, and cause the 

certificate to be attached to the original record of trial. In such a case the accused's receipt shall be 

forwarded to the convening authority as soon as it is obtained. 

(C) 	Substitute service. If it is impracticable to serve the record of trial on the accused because of the 

transfer of the accused to a distant place, the unauthorized absence of the accused, or military exigency, 

or if the accused so requests on the record at the court-martial or in writing, the accused's copy of 

the record shall be forwarded to the accused's defense counsel, if any. Trial counsel shall attach a 

statement to the record explaining why the accused was not served personally. If the accused has 
R.C.M. 1104(d)(l) 

more than one counsel, R.C.M. 1106(f)(2) shall apply. If the accused has no counsel and if the 

accused is absent without authority, the trial counsel shall prepare an explanation for the failure to 

serve the record. The explanation and the accused's copy of the record shall be forwarded with the 

original record. The accused shall be provided with a copy of the record as soon as practicable. 

Discussion 

See Appendix 13 or 14 for sample forms. 

(D) Classified information. 

(i) Forwarding to convening authority. If the copy of the record of trial prepared for the accused 

contains classified information, the trial counsel, unless directed otherwise by the convening authority, shall 

forward the accused's copy to the convening authority, before it is served on the accused. 

(ii) Responsibility of the convening authority. The convening authority shall: 

(a) cause any classified information to be deleted or withdrawn from the accused's copy of the record 

of trial; 

(b) cause a certificate indicating that classified information has been deleted or withdrawn to be 

attached to the record of trial; and 

(c) cause the expurgated copy of the record of trial and the attached certificate regarding classified 

information to be served on the accused as provided in subsections (b)(l)(A) and (B) of this rule except that the 

accused's receipt shall show that the accused has received an expurgated copy of the record of trial. 

(iii) Contents of certiJicate. The certificate regarding deleted or withdrawn classified information shall 

indicate: 

(a) that the original record of trial may be inspected in the Office of the Judge Advocate General 

concerned under such regulations as the Secretary concerned may prescribe; 

(b) the pages of the record of trial from which matter has been deleted; 

(c) the pages of the record of trial which have been entirely deleted; and 

(6)the exhibits which have been withdrawn. 

Discussion 

See R.C.M.1 103(h) concerning classified information. 

(2) Summary courts-martial. The summary court-martial record of trial shall be disposed of as provided in 

R.C.M. 1305(e). Subsection (b) (l)(D) of this rule shall apply if classified information is included in the record 

of trial of a summary court-martial. 

(c) LOSS of record. If the authenticated record of trial is lost or destroyed, the trial counsel shall, if practicable, 

cause another record of trial to be prepared for authentication. The new record of trial shall become the record 

of trial in the case if the requirements of R.C.M. 1103 and this n~le are met. 

(d) Correction of record after authentication; certificate of correction. 

(1) In general. A record of trial found to be incomplete or defective after authentication may be corrected 

to make it accurate. A record of trial may be returned to the convening authority by superior competent authority 

for correction under this rule. 

Discussion 

The record of trial is corrected with a certificate of cor- record of trial correspond to the actual proceedings. If the memrection. See Appendix 13 or 14 for a form for a certificate of bers were not sworn, for example, the error cannot be cured 

correction. by a certificate of correction. If the members were sworn but 

A certificate of correction may be used only to make the the record did not so reflect, the record could be corrected. 
R.C.M. 1104(d)(2) 

(2) Procedure. An authenticated record of trial believed to be incomplete or defective may be returned to 

the military judge or summary court-martial for a certificate of correction. The military judge or summary courtmartial shall give notice of the proposed correction to all parties and permit them to examine and respond to the 

proposed correction before authenticating the certificate of correction. All parties shall be given reasonable access 

to any original reporter's notes or tapes of the proceedings. 

Discussion 

The type of opportunity to respond depends on the nature conference telephone call among the authenticating person, the 

and scope of the proposed correction. In many instances an parties, and the reporter. In other instances, an evidentiary 

adequate opportunity can be provided by allowing the respective hearing with witnesses may be required. 

parties to present affidavits and other documentary evidence to The accused need not be present at any hearing on a certhe person authenticating the certificate of correction or by a tificate of correction. 

(3) Authentication of cert9cate of correction; service on the accused. The certificate of correction shall be 

authenticated as provided in subsection (a) of this rule and a copy served on the accused as provided in subsection 

(b) of this rule. The certificate of correction and the accused's receipt for the certificate of correction shall be 

attached to each copy of the record of trial required to be prepared under R.C.M. 1103(g). 

(e) Forwarding. After every court-martial, including a rehearing and new and other trials, the authenticated 

record shall be forwarded to the convening authority for initial review and action, provided that in case of a 

special court-martial in which a bad-conduct discharge was adjudged or a general court-martial, the convening 

authority shall refer the record to the staff judge advocate or legal officer for a recommendation under R.C.M. 

1106 before the convening authority takes action. 

Rule 1105. Matters submitted by the accused 

(a) In general. After a sentence is adjudged in any court-martial, the accused may submit matters to the convening 

authority in accordance with this rule. 

(b) Matters which may be submitted. The accused may submit to the convening authority any written matters 

which may reasonably tend to affect the convening authority's decision whether to disapprove any findings of 

guilty or to approve the sentence. Such matters are not subject to the Military Rules of Evidence and may include: 

(1) Allegations of errors affecting the legality of the findings or sentence; 

(2) Portions or summaries of the record and copies of documentary evidence offered or introduced at trial; 

(3) Matters in mitigation which were not available for consideration at the court-martial; and 

Discussion 

For example, post-trial conduct of the accused, such as providing restitution to the victim or exemplary behavior, might be appropriate. 

(4) Clemency recommendations by any member, the military judge, or any other person. The defense may 

ask any person for such a recommendation. 

Discussion 

A clemency recommendation should state reasons for the close the vote or opinion of any member expressed in delibrecommendation and should specifically indicate the amount erations. Except as provided in R.C.M. 923 and 1008 and Mil. 

and character of the clemency recommended. R. Evid. 606(b), a clemency recommendation does not impeach 

A clemency recommendation by a member should not dis- the findings or the sentence. 

(c) Time periods. 
R.C.M. 1106(b) 

(1) General courts-martial and special courts-martial in which a bad-conduct discharge was adjudged. 

After a general court-martial or after a special court-martial in which a bad-conduct discharge was adjudged, 

the accused may submit matters under this rule within 30 days after the sentence was announced or within 7 

days after a copy of the record of trial is served on the accused under R.C.M. 1104(b)(l), whichever is later. 

The convening authority may, for good cause, extend the 30-day period for not more than 20 additional days 

or the 7-day period for not more than 10 additional days. 

(2) Other special courts-martial. After a special court-martial in which a bad-conduct discharge was not 

adjudged, the accused may submit matters under this rule within 20 days after the sentence is announced or 

within 7 days after a copy of the record of trial is served on the accused under R.C.M. 1104(b)(l), whichever 

is later. The convening authority may, for good cause, extend either period for not more than 10 additional days. 

(3) Summary courts-martial. After a summary court-martial the accused may submit matters under this rule 

within 7 days after the sentence is announced. The convening authority, for good cause, may extend this period 

for not more than 10 additional days. 

(4) Post-trial sessions. A post-trial session under R.C.M. 1102 shall have no effect on the running of any 

time period in this rule, except when such session results in the announcement of a new sentence, in which case 

the period shall run from that announcement. 

(5) Good cause. For purposes of this rule, good cause for an extension ordinarily does not include the need 

for securing matters which could reasonably have been presented at the court-martial. 

(d) Waiver. 

(1) Failure to submit matters. Failure to submit matters with the time presecribed by this rule shall be 

deemed a waiver of the right to submit such matters. 

(2) Submission of matters. Submission of any matters under this rule shall be deemed a waiver of the right 

to submit additional matters unless the right to submit additional matters within the prescribed time limits is 

expressly reserved in writing. 

(3) Written waiver. The accused may expressly waive, in writing, the right to submit matters under this 

rule. Once filed, such waiver may not be revoked. 

(4) Absence of accused. If, as a result of the unauthorized absence of the accused, the record cannot be 

served on the accused in accordance with R.C.M. 1104(b)(l) and if the accused has no counsel to receive the 

record, the accused shall be deemed to have waived the right to submit matters under this rule within the time 

limit which begins upon service on the accused of the record of trial. 

Discussion 

The accused is not required to raise objections to the trial proceedings in order to preserve them for later review. 

Rule 1106. Recommendation of the staff judge advocate or legal officer 

(a) In general. Before the convening authority takes action under R.C.M. 1107 on a record of trial by general 

court-martial or a record of trial by special court-martial which includes a sentence to a bad-conduct discharge, 

that convening authority's staff judge advocate or legal officer shall, except as provided in subsection (c) of this 

rule, forward to the convening authority a recommendation under this rule. 

(b) Disqualification. No person who has acted as member, military judge, trial counsel, assistant trial counsel, 

defense counsel, associate or assistant defense counsel, or investigating officer in any case may later act as a 

staff judge advocate or legal officer or any reviewing or convening authority in the same case. 

Discussion 

The staff judge advocate or legal officer may also be in- case; or must review that officer's own pretrial action (such as 

eligible when, for example, the staff judge advocate or legal the pretrial advice under Article 34; see R.C.M. 406) when the 

officer: served as the defense counsel in a companion case; sufficiency or correctness of the earlier action has been placed 

testified as to a contested matter (unless the testimony is clearly in issue. 

uncontroverted); has other than an official interest in the same 
R.C.M. 1106(c) 

(c) When the convening authority has no staff judge advocate. 

(1) When the convening authority does not have a staff judge advocate or legal ofJicer or that person is 

disqualiJied. If the convening authority does not have a staff judge advocate or legal officer, or if the person 

serving in that capacity is disqualified under subsection (b) of this rule or otherwise, the convening authority 

shall: 

(A) Request the assignment of another staff judge advocate or legal officer to prepare a recommendation 

under this rule; or 

(B) 	Forward the record for action to any officer exercising general court-martial jurisdiction as provided 

in R.C.M. 1107(a). 

(2) When the convening authority has a legal ofJicer but wants the recommendation of a staffjudge advocate. 

If the convening authority has a legal officer but no staff judge advocate, the convening authority may, as a 

matter of discretion, request designation of a staff judge advocate to prepare the recommendation. 

(d) Form and content of recommendation. 

(1) In general. The purpose of the recommendation of the staff judge advocate or legal officer is to assist 

the convening authority to decide what action to take on the sentence in the exercise of command prerogative. 

The staff judge advocate or legal officer shall use the record of trial in the preparation of the recommendation. 

(2) Form. The recommendation of the staff judge advocate or legal officer shall be a concise written 

communication. 

(3) Required contents. Except as provided in subsection (e) of this rule, the recommendation of the staff 

judge advocate or legal officer shall include concise information as to: 

(A) The findings and sentence adjudged by the court-martial; 

(B) 	A summary of the accused's service record, to include length and character of service, awards and 

decorations received, and any records of nonjudicial punishment and previous convictions; 

(C) A statement of the nature and duration of any pretrial restraint; 

(D) If there is a pretrial agreement, a statement of any action the convening authority is obligated to take 

under the agreement or a statement of the reasons why the convening authority is not obligated to 

take specific action under the agreement; and 

(E) 	A specific recommendation as to the action to be taken by the convening authority on the sentence. 

(4)Legal errors. The staff judge advocate or legal officer is not required to examine the record for legal 

errors. However, when the recommendation is prepared by a staff judge advocate, the staff judge advocate shall 

state whether, in the staff judge advocate's opinion, corrective action on the findings or sentence should be taken 

when an allegation of legal error is raised in matters submitted under R.C.M.1105 or when otherwise deemed 

appropriate by the staff judge advocate. The response may consist of a statement of agreement or disagreement 

with the matter raised by the accused. An analysis or rationale for the staff judge advocate's statement, if any, 

concerning legal errors is not required. 

(5) Optional matters. The recommendation of the staff judge advocate or legal officer may include, in 

addition to matters included under subsections (d)(3) and (4) of this rule, any additional matters deemed appropriate 

by the staff judge advocate or legal officer. Such matters may include matters outside the record. 

Discussion 

See R.C.M.1107(b)(3)(B)(iii) if matters adverse to the accused from outside the record are included. 

(6)Effect of error. In case of error in the recommendation not otherwise waived under subsection (f)(6) of 
R.C.M. 1106(f)(7) 

this rule, appropriate corrective action shall be taken by appellate authorities without returning the case for further 

action by a convening authority. 

(e) Nofindings of guilty. If the proceedings resulted in an acquittal of all charges and specifications or if, after 

the trial began, the proceedings were terminated without findings and no further action is contemplated, a 

recommendation under this rule is not required. 

(f) Service of recommendation on defense counsel; defense response. 

(1) Service of recommendation on defense counsel. Before forwarding the recommendation and the record 

of trial to the convening authority for action under R.C.M. 1107, the staff judge advocate or legal officer shall 

cause a copy of the recommendation to be served on counsel for the accused. 

Discussion 

The method of service and the form of the proof of service R.C.M.1103(b)(3)(G). 


are not prescribed and may be by any appropriate means. See 


(2) Counsel for the accused. The accused may, at trial or in writing to the staff judge advocate or legal 

officer before the recommendation has been served under this rule, designate which counsel (detailed, individual 

military, or civilian) will be served with the recommendation. In the absence of such designation, the staff judge 

advocate or legal officer shall cause the recommendation to be served in the following order of precedence, as 

applicable, on: (I) civilian counsel; (2) individual military counsel; or (3) detailed defense counsel. If the accused 

has not retained civilian counsel and the detailed defense counsel and individual military counsel, if any, have 

been relieved or are not reasonably available to represent the accused, substitute military counsel to represent 

the accused shall be detailed by an appropriate authority. Substitute counsel shall enter into an attorney-client 

relationship with the accused before examining the recommendation and preparing any response. 

Discussion 

When the accused is represented by more than one counsel, before the end of the court-martial as to who will act for the 

the military judge should inquire of the accused and counsel accused under this rule. 

(3) Record of trial. The staff judge advocate or legal officer shall, upon request of counsel for the accused 

served with the recommendation, provide that counsel with a copy of the record of trial for use while preparing 

the response to the recommendation. 

(4)Response. Counsel for the accused may submit, in writing, corrections or rebuttal to any matter in the 

recommendation believed to be erroneous, inadequate, or misleading, and may comment on any other matter. 

Discussion 

See also R.C.M. 1105. 

(5) Time period. Counsel for the accused shall be given 5 days from receipt in which to submit comments 

on the recommendation. The convening authority may, for good cause, extend the period in which comments 

may be submitted for up to 20 additional days. 

(6)Waiver. Failure of counsel for the accused to comment on any matter in the recommendation or matters 

attached to the recommendation in a timely manner shall waive later claim of error with regard to such matter 

in the absence of plain error. 

Discussion 

The accused is not required to raise objections to the trial proceedings in order to preserve them for later review. 

(7)New matter in addendum to recommendation. The staff judge advocate or legal officer may supplement 

the recommendation after counsel for the accused has been served with the recommendation and given an 

opportunity to comment. When new matter is introduced after counsel for the accused has examined the rec- 
R.C.M. 1107 

ommendation, however, counsel for the accused must be served with the new matter and given a further opportunity 

to comment. 

Discussion 

"New matter" includes discussion of the effect of new does not ordinarily include any discussion by the staff judge 

decisions on issues in the case, matter from outside the record advocate or legal officer of the correctness of the initial defense 

of trial, and issues not previously discussed. "New matter" comments on the recommendation. 

Rule 1107. Action by convening authority 

(a) Who may take action. The convening authority shall take action on the sentence and, in the discretion of the 

convening authority, the findings, unless it is impracticable. If it is impracticable for the convening authority to 

act, the convening authority shall, in accordance with such regulations as the Secretary concerned may prescribe, 

forward the case to an officer exercising general court-martial jurisdiction who may take action under this rule. 

Discussion 

The convening authority may not delegate the function of seas movement; or when the convening authority is disqualified 

taking action on the findings or sentence. The convening au- because the convening authority has other than an official inthority who convened the court-martial may take action on the terest in the case or because a member of the court-martial 

case regardless whether the accused is a member of or present which tried the accused later became the convening authority. 

in the convening authority's command. If the convening authority fonvards the case to an officer 

It would be impracticable for the convening authority to exercising general court-martial jurisdiction for initial review 

take initial action when, for example, a command has been and action, the record should include a statement of the reasons 

decommissioned or inactivated before the convening authority's why the convening authority did not act. 

action; when a command has been alerted for immediate over- 

(b) General considerations. 

(1) Discretion of convening authority. The action to be taken on the findings and sentence is within the 

sole discretion of the convening authority. Determining what action to take on the findings and sentence of a 

court-martial is a matter of command prerogative. The convening authority is not required to review the case 

for legal errors or factual sufficiency. 

Discussion 

The action is taken in the interests of justice, discipline, If errors are noticed by the convening authority, the convening 

mission requirements, clemency, and other appropriate reasons. authority may take corrective action under this rule. 

(2) When action may be taken. The convening authority may take action only after the applicable time 

periods under R.C.M. 1105(c) have expired or the accused has waived the right to present matters under R.C.M. 

1105(d), whichever is earlier, subject to regulations of the Secretary concerned. 

(3) Matters considered. 

(A)Required matters. Before taking action, the convening authority shall consider: 

(i) The result of trial; 

Discussion 

See R.C.M. 1101(a). 

(ii) The recommendation of the staff judge advocate or legal officer under R.C.M. 1106, if applicable; 

and 

(iii) Any matters submitted by the accused under R.C.M. 1105 or, if applicable, R.C.M. 1106(f). 
R.C.M. 1107(d)(1) 

(B) Additional matters. Before taking action the convening authority may consider: 

(i) The record of trial; 

(ii) The personnel records of the accused; and 

(iii) Such other matters as the convening authority deems appropriate. However, if the convening 

authority considers matters adverse to the accused from outside the record, with knowledge of which the accused 

is not chargeable, the accused shall be notified and given an opportunity to rebut. 

(4) When proceedings resulted in finding of not guilty or there was a ruling amounting to a jinding of not 

guilty. The convening authority shall not take any action approving or disapproving a finding of not guilty or a 

ruling amounting to a finding of not guilty. 

(5)Action when accused lacks mental capacity. The convening authority may not approve a sentence while 

the accused lacks mental capacity to understand and to conduct or cooperate intelligently in the post-trial 

proceedings. If a question is raised as to the requisite mental capacity of the accused, the convening authority 

must be satisfied by a preponderance of evidence-including matters outside the record of trial-that the accused 

has the requisite mental capacity before approving the sentence. The convening authority may direct an examination of the accused in accordance with R.C.M.706 before deciding whether the accused lacks mental capacity. 

Nothing in this subsection shall prohibit the convening authority from disapproving the findings of guilty and 

sentence. 

(c) Action on findings. Action on the findings is not required. However, the convening authority may, in the 

convening authority's sole discretion: 

(1) Change a finding of guilty to a charge or specification to a finding of guilty to an offense that is a lesser 

included offense of the offense stated in the charge or specification; or 

(2) Set aside any finding of guilty and- 

(A) Dismiss the specification and, if appropriate, the charge, or 

(B) Direct a rehearing in accordance with subsection (e) of this rule. 

Discussion 

The convening authority may for any reason or no reason a rehearing, except as provided in subsection (e) of this rule. 

disapprove a finding of guilty or approve a finding of guilty The power to order a rehearing, or to take other corrective 

only of a lesser offense. However, see subsection (e) of this action on the findings, is designed solely to provide an experule if a rehearing is ordered. The convening authority is not ditious means to correct errors that are identified in the course 

required to review the findings for legal or factual sufficiency of exercising discretion under the rule. 

and is not required to explain a decision to order or not to order 

(d) Action on the sentence. 

(1) In general. The convening authority may for any or no reason disapprove a legal sentence in whole or 

in part, mitigate the sentence, and change a punishment to one of a different nature as long as the severity of 

the punishment is not increased. The convening or higher authority may not increase the punishment imposed 

by a court-martial. The approval or disapproval shall be explicitly stated. 

Discussion 

A sentence adjudged by a court-martial may be approved vening authority should use the equivalencies at R.C.M. 

if it was within the jurisdiction of the court-martial to adjudge 1003(b)(6), (7),and (9),as appropriate. One form of punish- 

(see R.C.M. 201(f)) and did not exceed the maximum limits ment may be changed to a less severe punishment of a different 

prescribed in Part IV and Chapter X of this Part for the offense(s) nature, as long as the changed punishement is one which the 

of which the accused legally has been found guilty. court-martial could have adjudged. For example, a bad-conduct 

When mitigating forfeitures, the duration and amounts of discharge adjudged by a special court-martial could be changed 

forfeiture may be changed as long as the total amount forfeited to confinement for 6 months (but not vice versa). A pretrial 

is not increased and neither the amount nor duration of the agreement may also affect what punishments may be changed 

forfeitures exceeds the jurisdiction of the court-martial. When by the convening authority. 

mitigating confinement on bread and water or diminished ra- See also R.C.M. 810(d) concerning sentence limitations 

tions, confinement, or hard labor without confinement, the con- upon a rehearing or new or other trial. 
R.C.M. 1107(d)(2) 

(2) Determining what sentence should be approved. The convening authority shall approve that sentence 

which is warranted by the circumstances of the offense and appropriate for the accused. When the court-martial , 

has adjudged a mandatory punishment, the convening authority may nevertheless approve a lesser sentence. 

Discussion 

In determining what sentence should be approved the con- When an accused is not serving confinement, the accused 

vening authority should consider all relevant factors including should not be deprived of more than two-thirds pay for any 

the possibility of rehabilitation, the deterrent effect of the sen- month as a result of one or more sentences by court-martial and 

tence, and all matters relating to clemency. such as pretrial other stoppages or involuntary deductions, unless requested by 

confinement. See also R.C.M. 1001 through 1004. the accused. 

(3) Limitations on sentence based on record of trial. If the record of trial does not meet the requirements 

of R.C.M. 1103(b)(2)(B) or (c)(l), the convening authority may not approve a sentence in excess of that which 

may be adjudged by a special court-martial, or one which includes a bad-conduct discharge. 

Discussion 

See also R.C.M. 1103(f). 

(e) Ordering rehearing or other trial. 

(I) Rehearing. 

(A) In general. Subject to subsections (e)(l)(B) through (e)(l)(E) of this rule, the convening authority 

may in the convening authority's discretion order a rehearing. A rehearing may be ordered as to 

some or all offenses of which findings of guilty were entered and the sentence, or as to sentence 

only. 

Discussion 

A rehearing may be appropriate when an error substantially the sentence prescribed for the offense is mandatory. See R.C.M. 

affecting the findings or sentence is noticed by the convening 810(d). If the accused is placed under restraint pending a reauthority. The severity of the findings or the sentence of the hearing, see R.C.M. 304; 305. 

original court-martial may not be increased at a rehearing unless 

(B) When the convening authority may order a rehearing. The convening authority may order a rehearing: 

(i) When taking action on the court-martial under this rule; 

(ii) In cases subject to review by the Court of Military Review, before the case-is forwarded under 

R.C.M. I 1 1 1(a)(l) or (b)(l), but only as to any sentence u'hich was approved or findings of guilty which were 

not disapproved in any earlier action. In such a case, a supplemental action disapproving the sentence and some 

or all of the findings, as appropriate, shall be taken; or 

(iii) When authorized to do so by superior competent authority. If the convening authority finds a 

rehearing as to any offenses impracticable, the convening authority may dismiss those specifications and, when 

appropriate, charges. 

Discussion 

If a superior authority has approved some findings of guilty rected, reassess the sentence based on the approved findings of 


and has authorized a rehearing as to other offenses and the guilty and dismiss the remaining charges. 


sentence, the convening authority may, unless otherwise di- 

R.C.M. 1107(f)(3) 

(C) Limitations. 

(i) Sentence approved. A rehearing shall not be ordered if, in the same action, a sentence is approved. 

(ii) Lack of sufJicient evidence. A rehearing may not be ordered as to findings of guilty when there is 

a lack of sufficient evidence in the record to support the findings of guilty of the offense charged or of any lesser 

included offense. A rehearing may be ordered, however, if the proof of guilt consisted of inadmissible evidence 

for which there is available an admissible substitute. A rehearing may be ordered as to any lesser offense included 

in an offense of which the accused was found guilty, provided there is sufficient evidence in the record to support 

the lesser included offense. 

Discussion 

For example, if proof of absence without leave was by mentary evidence or other admissible evidence of guilt will be 

improperly authenticated documentary evidence admitted over available at the rehearing. On the other hand, if no proof of 

the objection of the defense, the convening authority may dis- unauthorized absence was introduced at trial, a rehearing may 

approve the findings of guilty and sentence and order a rehearing not be ordered. 

if there is reason to believe that properly authenticated docu- 

(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. 

(D) Additional charges. Additional charges may be referred for trial together with charges as to which 

a rehearing has been directed. 

(E) Lesser included offenses. If at a previous trial the accused was convicted of a lesser included offense, 

a rehearing may be ordered only as to that included offense or as to an offense included in that found. 

If, however, a rehearing is ordered improperly on the original offense charged and the accused is 

convicted of that offense at the rehearing, the finding as to the lesser included offense of which the 

accused was convicted at the original trial may nevertheless be approved. 

(2) "Other" trial. The convening or higher authority may order an "other" trial if the original proceedings 

were invalid because of lack of jurisdiction or failure of a specification to state an offense. The authority ordering 

an "other" trial shall state in the action the basis for declaring the proceedings invalid. 

(f) Contents of action and related matters. 

(1) In general. The convening authority shall state in writing the convening authority's decision as to the 

sentence, whether any findings of guilty are disapproved, and orders as to further disposition. The action shall 

be signed personally by the convening authority. The convening authority's authority to sign shall appear below 

the signature. 

Discussion 

See Appendix 16 for forms. 

(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. 

In addition, in any special court-martial not involving a bad-conduct discharge or any summary 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. 11 12, 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, or 67, or examination of the record of trial under 

Article 69. The convening authority shall personally sign any supplementary or corrective action. 

(3) Findings of guilty. If any findings of guilty are disapproved, the action shall so state. If a rehearing is 

not ordered, the affected charges and specifications shal1,be dismissed by the convening authority in the action. 

If a rehearing or other trial is directed, the reasons for the disapproval shall be set forth in the action. 
R.C.M. 1107(f)(4) 

Discussion 

If a rehearing or other trial is not directed, the reasons for lack of mental responsibility of the accused or the running of 

disapproval need not be stated in the action, but they may be the statute of limitations. 

when appropriate. It may be appropriate to state them when the No express action is necessary to approve fmdings of guilty. 

reasons may affect administrative disposition of the accused; See subsection (c) of this rule. 

for example, when the finding is disapproved because of the 

(4)Action on sentence. 

(A) In general. The action shall state whether the sentence adjudged by the court-martial is approved. 

If only part of the sentence is approved, the action shall state which parts are approved. A rehearing 

may not be directed if any sentence is approved. 

Discussion 

See Appendix 16 for forms. See R.C.M. 1 113 concerning execution of sentences. 

See R.C.M. 1108 concerning suspension of sentences. 

(B) Execution; suspension. The action shall indicate, when appropriate, whether an approved sentence 

is to be executed or whether the execution of all or any part of the sentence is to be suspended. No 

reasons need be stated. 

(C) Place of confinement. If the convening authority orders a sentence of confinement into execution, 

the convening authority shall designate the place of confinement in the action, unless otherwise 

prescribed by the Secretary concerned. If a sentence of confinement is ordered into execution after 

the initial action of the convening authority, the authority ordering the execution shall designate the 

place of confinement unless othewise prescribed by the Secretary concerned.. 

Discussion 

See R.C.M. 11 13(d)(2)(C) concerning the place of confinement. 

(D) Custody or confinement pending appellate review; capital cases. When a record of trial involves an 

approved sentence to death, the convening authority shall, unless any approved sentence of confinement has been ordered into execution and a place of confinement designated, provide in the action 

for the temporary custody or confinement of the accused pending final disposition of the case on 

appellate review. 

(E) Deferment of service of sentence to confinement. Whenever the service of the sentence to confinement 

is deferred by the convening authority under R.C.M. 1101(c) before or concurrently with the initial 

action in the case, the action shall include the date on which the deferment became effective. The 

reason for the deferment need not be stated in the action. 

(F) 	Credit for illegal pretrial confinement. When the military judge has directed that the accused receive 

credit under R.C.M. 305(k), the convening authority shall so direct in the action. 

(G)Reprimand. The convening authority shall include in the action any reprimand which the convening 

authority has ordered executed. 

Discussion 

See R.C.M. 1003(b)(l) concerning reprimands. 

(5) Action on rehearing or new or other trial. 

(A) Rehearing or other trial. In acting on a rehearing or other trial the convening authority shall be 

subject to the sentence limitations prescribed in R.C.M. 810(d). Except when a rehearing or other 
R.C.M. 1108(b) 

trial is combined with a trial on additional offenses and except as otherwise provided in R.C.M. 

810(d), if any part of the original sentence was suspended and the suspension was not properly 

vacated before the order directing the rehearing, the convening authority shall take the necessary 

suspension action to prevent an increase in the same type of punishment as was previously suspended. 

The convening authority may approve a sentence adjudged upon a rehearing or other trial regardless 

whether any kind or amount of the punishment adjudged at the former trial has been served or 

executed. However, in computing the term or amount of punishment to be actually served or executed 

under the new sentence, the accused shall be credited with any kind or amount of the former sentence 

included within the new sentence that was served or executed before the time it was disapproved or 

set aside. The convening authority shall, if any part of a sentence adjudged upon a rehearing or other 

trial is approved, direct in the action that any part or amount of the former sentence served or executed 

between the date it was adjudged and the date it was disapproved or set aside shall be credited to 

the accused. If, in the action on the record of a rehearing, the convening authority disapproves the 

findings of guilty of all charges and specifications which were tried at the former hearing and that 

part of the sentence which was based on these findings, the convening authority shall, unless a further 

rehearing is ordered, provide in the action that all rights, privileges, and property affected by any 

executed portion of the sentence adjudged at the former hearing shall be restored. The convening 

authority shall take the same restorative action if a court-martial at a rehearing acquits the accused 

of all charges and specifications which were tried at the former hearing. 

(B) New trial. The action of the convening authority on a new trial shall, insofar as practicable, conform 

to the rules prescribed for rehearings and other trials in subsection (f)(5)(A) of this rule. 

Discussion 

See R.C.M. 810 for procedures at other trials. 

(g) Incomplete, ambiguous, or erroneous action. When the action of the convening or of a higher authority is 

incomplete, ambiguous, or contains clerical error, the authority who took the incomplete, ambiguous, or erroneous 

action may be instructed by an authority acting under Article 64, 66, 67, or 69 to withdraw the original action 

and substitute a corrected action. 

(h) Service on accused. A copy of the convening authority's action shall be served on the accused or on defense 

counsel. If the action is sewed on defense counsel, defense counsel shall, by expeditious means, provide the 

accused with a copy. 

Discussion 

If the promulgating order is prepared promptly, service of it will satisfy subsection (h). 

Rule 1108. Suspension of execution of sentence; remission 

(a) In general. Suspension of a sentence grants the accused a probationary period during which the suspended 

part of an approved sentence is not executed, and upon the accused's successful completion of which the suspended 

part of the sentence shall be remitted. Remission cancels the unexecuted part of a sentence to which it applies. 

(b)Whomay 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 officer exercising 

general court-martial jurisdiction over the command to which the accused is assigned 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 courtmartial 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. 
R.C.M. 1lOB(c) 

Discussion 

See R.C.M. 11 13 (execution of sentences); R.C.M. 1201 The military judge and members of courts-martial may not 

(action by the Judge Advocate General); R.C.M. 1206 (powers suspend sentences. 

and responsibilities of the Secretary). 

(c) Conditions of suspension. The authority who suspends the execution of the sentence of a court-martial shall: 

(1) Specify in writing the conditions of the suspension; 

' (2) Cause a copy of the conditions of the suspension to be served on the probationer; and 

(3) Cause a receipt to be secured from the probationer for service of the conditions of the suspension. 

Unless otherwise stated, an action suspending a sentence includes as a condition that the probationer not violate 

any punitive article of the code. 

(d) Limitations on suspension. Suspension shall be for a stated period or until the occurrence of an anticipated 

future event. The period shall not be unreasonably long. The Secretary concerned may further limit by regulations 

the period for which the execution of a sentence may be suspended. The convening authority shall provide in 

the action that unless the suspension is sooner vacated, the expiration of the period of suspension shall remit the 

suspended portion of the sentence. An appropriate authority may, before the expiration of the period of suspension, 

remit any part of the sentence, including a part which has been suspended; reduce the period of suspension; or, 

subject to R.C.M. 1109, vacate the suspension in whole or in part. 

(e) Termination of suspension by remission. Expiration of the period provided in the action suspending a sentence 

or part of a sentence shall remit the suspended portion unless the suspension is sooner vacated. Death or separation 

which terminates status as a person subject to the code shall result in remission of the suspended portion of the 

sentence. 

Discussion 

See R.C.M. 1109(b)(4) concerning interruption of the period of suspension. 

Rule 1109. Vacation of suspension of sentence 

(a) In general. Suspension of execution of the sentence of a court-martial may be vacated for violation of the 

conditions of the suspension as provided in this rule. 

(b) Timeliness. 

(1) Violation of conditions. Vacation shall be based on a violation of the conditions of suspension which 

occurs within the period of suspension. 

(2)Vacation proceedings. Vacation proceedings under this rule shall be completed within a reasonable time. 

(3) Order vacating the suspension. The order vacating the suspension shall be issued before the expiration 

of the period of suspension. 

Discussion 

The order vacating a suspended sentence must be issued sentence until the completion of appellate review or action by 

before the end of suspension even though, in certain cases, it the President or the Secretary concerned. See R.C.M.1113 

may not be effective as an order of execution of the suspended concerning execution of sentences. 

(4)Interruptions to the period of suspension. Unauthorized absence of the probationer or the commencement 

of proceedings under this rule to vacate suspension interrupts the running of the period of suspension. 

(c) Confinement of probationer pending vacation proceedings. 
I 

R.C.M. 1109(d)(l)(A) 

(1) In general. A probationer under a suspended sentence to confinement may be confined pending action 

under subsection (d)(2) of this rule in accordance with the procedures in subsection (c) of this rule. 

(2) Who may order confinement. Any person who may order confinement under R.C.M. 304(b) may order 

confinement of a probationer under a suspended sentence to confinement. 

(3) Basis for confinement. A probationer under a suspended sentence to confinement may be ordered into 

confinement upon probable cause to believe the probationer violated any conditions of the probation. 

A determination that confinement is necessary to ensure under the code for which trial by court-martial is considered, 

the presence of the probationer or to prevent further misconduct an appropriate form of pretrial restraint may be imposed as an 

is not required. alternative to confinement under this rule. See R.C.M. 304 and 

If the violation of the conditions also constitutes an offense 305. 

(4) Review of confinement. Unless proceedings under subsection (d)(l) or (e) of this rule are completed 

within 7 days of imposition of confinement of the probationer (not including any delays requested by probationer), 

a preliminary hearing shall be conducted by a neutral and detached officer appointed in accordance with regulations 

of the Secretary concerned. 

(A) Rights of accused. Before the preliminary hearing the accused shall be notified of: 

(i) The time, place, and purpose of the hearing, including the alleged violation(s) of the conditions of 

suspension; 

(ii) The right to be present at the hearing; 

(iii) The right to be represented at the hearing by civilian counsel provided by the probationer or, upon 

request, by military counsel detailed for this purpose; and \ 

(iv) The opportunity to be heard, to present witnesses who are reasonably available and other evidence, 

and the right to confront and cross-examine adverse witnesses unless the hearing officer determines that this 

would subject these witnesses to risk or harm. For purposes of this subsection, a witness is not reasonably 

available if the witness requires reimbursement by the United States for any cost incurred in appearing, cannot 

appear without unduly delaying the proceedings, or, if a military witness, cannot be excused from other important 

duties. 

(B) Rules of evidence. Except for Mil. R. Evid. Section V (Privileges) and Mil. R. Evid. 302 and 305, 

the Military Rules of Evidence shall not apply to matters considered at the preliminary hearing under 

this rule. 

(C) Decision. The hearing officer shall determine whether there is probable cause to believe that the 

probationer violated the conditions of the probationer's suspension. If the hearing officer determines 

that probable cause is lacking, the hearing officer shall, in writing, order the probationer released 

from confinement. If the hearing officer determines that there is probable cause to believe that the 

probationer violated the conditions of suspension, the hearing officer shall set forth in a written 

memorandum the decision, the reasons for the decision, and the information relied on. The hearing 

officer shall forward the original memorandum or release order to the probationer's commander and 

forward a copy to the probationer and the officer in charge of the confinement facility. 

(d) Vacation of suspended general court-martial sentence or of a suspended special court-martial sentence 

including a bad-conduct discharge. 

(1) Action by officer having special court-martial jurisdiction over probationer 

(A) In general. Before vacation of the suspension of any general court-martial sentence, or of a special 

court-martial sentence which, as approved, includes a bad-conduct discharge, the officer having 

special court-martial jurisdiction over the probationer shall personally hold a hearing on the alleged 

violation of the conditions of probation. If there is no officer having special court-martial jurisdiction 

over the accused who is subordinate to the officer having general court-martial jurisdiction over the 
R.C.M. 1109(d)(l)(B) 

accused, the officer exercising general court-martial jurisdiction over the accused shall personally 

hold the hearing under subsection (d)(l) of this rule. In such cases subsection (d)(l)(D) of this rule 

shall not apply. 

(B) Notice to probationer. Before the hearing the authority conducting the hearing shall cause the probationer to be notified of: 

(i) The time, place, and purpose of the hearing; 

(ii) The right to be present at the hearing; 

(iii) The alleged violations of the conditions of probation and the evidence expected to be relied on; 

(iv) The right to be represented at the hearing by civilian counsel provided by the probationer or, upon 

request, by military counsel detailed for this purpose; and 

(v) The opportunity to be heard, to present witnesses and other evidence, and the right to confront and 

cross-examine adverse witnesses unless the hearing officer determines that there is good cause for not allowing 

confrontation and cross-examination. 

Discussion 

The notice should be provided sufficiently in advance of the hearing to permit adequate preparation. 

(C) Hearing. The procedure for the vacation hearing shall follow that prescribed in R.C.M. 405(g), 

(h)(l), and (0. 

(D) Record; recommendation. The officer who conducts the vacation proceeding shall make a summarized 

record of the proceeding and forward the record and that officer's recommendation concerning vacation 

to the officer exercising general court-martial jurisdiction over the probationer. 

(E) 	Release from confinement. If the special court-martial convening authority finds there is not probable 

cause to believe that the probationer violated the conditions of the suspension, the special courtmartial convening authority shall order the release of the probationer from any confinement ordered 

under subsection (c) of this rule. The special court-martial convening authority shall, in any event, 

forward the record and recommendation under subsection (d)(l)(D) of this rule. 

Discussion 

See Appendix 18 for a sample of a Report of Proceedings Discharge under Article 72, UCMJ, and R.C.M. 1109 (DD 

to Vacate Suspension of a General Court-Martial Sentence or Form 455). 

of a Special Court-Martial Sentence Including a Bad-Conduct 

(2)Action by officer exercising general court-martial jurisdiction over probationer. 

(A) In general. The officer exercising general court-martial jurisdiction over the probationer shall, based 

upon the record produced by and the recommendation of the officer exercising special court-martial 

jurisdiction over the probationer, decide whether the probationer violated a condition of suspension, 

and, if so, whether to vacate the suspended sentence. If the officer exercising general court-martial 

jurisdiction decides to vacate, that officer shall prepare a written statement of the evidence relied on 

and the reasons for vacating. 

(B) Execution. Any unexecuted part of a suspended sentence ordered vacated under this rule shall, subject 

to R.C.M. 1 1 13(c), be ordered executed. 

(e) Vacation of a suspended special court-martial sentence not including a bad-conduct discharge or of a 

suspended summary court-martial sentence. 

(1) In general. Before vacation of the suspension of a special court-martial sentence not including a badconduct discharge or of a summary court-martial sentence, the officer having authority to convene for the command 
R.C.M. 1110(b)(3)(A) 

in which the probationer is sewing or assigned the same kind of court-martial which imposed the sentence shall 

cause a hearing to be held on the alleged violation(s) of the conditions of suspension. 

(2) Notice to probationer. The person conducting the hearing shall notify the probationer before the hearing 

of the rights specified in subsections (d)(l)(B)(i), (ii), (iii), and (v) of this rule. The authority conducting the 

hearing shall also notify the probationer that the probationer has the right to civilian counsel provided by the 

probationer or, upon request, counsel detailed for that purpose, if the probationer was entitled to such counsel 

under R.C.M. 506(a) at the court-martial which imposed the sentence. 

(3) Hearing. The procedure for the vacation hearing shall follow that prescribed in R.C.M. 405(g), (h)(l), 

and (i). 

(4) Record; recommendation. If the hearing is not held by the commander with authority to vacate the 

suspension, the person who conducts the vacation proceeding shall make a summarized record of the proceeding 

and forward the record and that officer's recommendation concerning vacation to the commander with authority 

to vacate the suspension. 

(5) Decision. If the appropriate authority decides that the probationer violated a condition of probation, and 

to vacate, that person shall prepare a record of the hearing and a written statement indicating the decision, the 

reasons for the decision, and the evidence relied on. 

Rule 1110. Waiver or withdrawal of appellate review 

(a) In general. After any general court-martial, except one in which the approved sentence includes death, and 

after any special court-martial in which the approved sentence includes a bad-conduct discharge, the accused 

may waive or withdraw appellate review. 

Discussion 

Appellate review is not available for special courts-martial are reviewed by a judge advocate under R.C.M. 11 12. Such 

in which a bad-conduct discharge was not adjudged or approved cases may also be submitted to the Judge Advocate General for 

or for summary courts-martial. Cases not subject to appellate review. See R.C.M. 1201(b)(3). Appellate review is mandatory 

review, or in which appellate review is waived or withdrawn, when the approved sentence includes death. 

(b) Right to counsel. 

(1) In general. The accused shall have the right to consult with counsel qualified under R.C.M. 502(d)(l) 

before submitting a waiver or withdrawal of appellate review. 

(2) Waiver. 

(A) Counsel who represented the accused at the court-martial. The accused shall have the right to consult 

with any civilian, individual military, or detailed counsel who represented the accused at the courtmartial concerning whether to waive appellate review unless such counsel has been excused under 

R.C.M. 505(d)(2)(B). 

(B) Associate counsel. If counsel who represented the accused at the court-martial has not been excused 

but is not immediately available to consult with the accused, because of physical separation or other 

reasons, associate defense counsel shall be detailed to the accused upon request by the accused. Such 

counsel shall communicate with counsel who represented the accused at the court-martial, and shall 

advise the accused concerning whether to waive appellate review. 

(C) Substitute counsel. If counsel who represented the accused at the court-martial has been excused 

under R.C.M. 505(d)(2)(B), substitute defense counsel shall be detailed to advise the accused concerning waiver of appellate rights. 

(3) Withdrawal. 

(A) Appellate defense counsel. If the accused is represented by appellate defense counsel, the accused 

shall have the right to consult with such counsel concerning whether to withdraw the appeal. 
R.C.M.1 llO(b)(B)(B) 


(B) Associate defense counsel. If the accused is represented by appellate defense counsel, and such 

counsel is not immediately available to consult with the accused, because of physical separation or 

other reasons, associate defense counsel shall be detailed to the accused, upon request by the accused. 

Such counsel shall communicate with appellate defense counsel and shall advise the accused whether 

to withdraw the appeal. 

(C) No counsel. If appellate defense counsel has not been assigned to the accused, defense counsel shall 

be detailed for the accused. Such counsel shall advise the accused concerning whether to withdraw 

the appeal. If practicable, counsel who represented the accused at the court-martial shall be detailed. 

(4) Civilian counsel. Whether or not the accused was represented by civilian counsel at the court-martial, 

the accused may consult with civilian counsel, at no expense to the United States, concerning whether to waive 

or withdraw appellate review. 

(5) Record of trial. Any defense counsel with whom the accused consults under this rule shall be given 

reasonable opportunity to examine the record of trial. 

Discussion 

Ordinarily counsel may use the accused's copy of the re- are physically separated, another copy should be made available 

cord. If this is not possible, as when the accused and counsel to counsel. 

(6) Consult. The right to consult with counsel, as used in this rule, does not require communication in the 

presence of one another. 

(c) Compulsion, coercion, inducement prohibited. No person may compel, coerce, or induce an accused by 

force, promises of clemency, or otherwise to waive or withdraw appellate review. 

(d) Form of waiver or withdrawal. A waiver or withdrawal of appellate review shall: 

(1) Be written; 

(2) State that the accused and defense counsel have discussed the accused's right to appellate review and 

the effect of waiver or withdrawal of appellate review and that the accused understands these matters; 

(3) State that the waiver or withdrawal is submitted voluntarily; and 

(4) Be signed by the accused and by defense counsel. 

Discussion 

See Appendix 19 (DDForm 2330) or Appendix 20 (DDForm 2331) for samples of forms. 

(e) To whom submitted. 

(1) Waiver. A waiver of appellate review shall be filed with the convening authority. The waiver shall be 

attached to the record of trial. 

(2) Withdrawal. A withdrawal of appellate review may be filed with the authority exercising general courtmartial jurisdiction over the accused, who shall promptly forward it to the Judge Advocate General, or directly 

with the Judge Advocate General. 

(f) Time limit. 

(1) Waiver. The accused may file a waiver of appellate review only within 10 days after the accused or 

defense counsel is served with a copy of the action under R.C.M. 1107(h). Upon written application of the 

accused, the convening authority may extend this period for good cause, for not more than 30 days. 

(2) Withdrawal. The accused may file withdrawal from appellate review at any time before such review is 

completed. 

(g) Eflect of waiver or withdrawal; substantial compliance required. 
R.C.M. Ill l(c) 

(1) In general. A waiver or withdrawal of appellate review under this rule shall bar review by the Judge 

Advocate General under R.C.M. 1201(b)(l) and by the Court of Military Review. Once submitted, a waiver or 

withdrawal in compliance with this rule may not be revoked. 

(2) Waiver. If the accused files a timely waiver of appellate review in accordance with this rule, the record 

shall be forwarded for review by a judge advocate under R.C.M. 1 1 12. 

(3) Withdrawal. Action on a withdrawal of appellate review shall be carried out in accordance with procedures 

established by the Judge Advocate General, or if the case is pending before a Court of Military Review, in 

accordance with the rules of such court. If the appeal is withdrawn, the Judge Advocate General shall forward 

the record to an appropriate authority for compliance with R.C.M. 1 1 12. 

(4) Substantial compliance required. A purported waiver or withdrawal of an appeal which does not 

substantially comply with this rule shall have no effect. 

Rule 1111. Disposition of the record of trial after action 

(a) General courts-martial. 

(1) Cases forwarded to the Judge Advocate General. A record of trial by general court-martial and the 

convening authority's action shall be sent directly to the Judge Advocate General concerned if the approved 

sentence includes death or if the accused has not waived review under R.C.M. 1110. Unless otherwise prescribed 

by regulations of the Secretary concerned, 10 copies of the order promulgating the result of trial as to each 

accused shall be forwarded with the original record of trial. Two additional copies of the record of trial shall 

accompany the original record if the approved sentence includes death or if it includes dismissal of an officer, 

cadet, or midshipman, dishonorable or bad-conduct discharge, or confinement for one year or more and the 

accused has not waived appellate review. 

(2) Cases forwarded to a judge advocate. A record of trial by general court-martial and the convening 

authority's action shall be sent directly to a judge advocate for review under R.C.M. 11 12 if the sentence does 

not include death and if the accused has waived appellate review under R.C.M. 11 10. Unless otherwise prescribed 

by the Secretary concerned, 4 copies of the order promulgating the result of trial shall be forwarded with the 

original record of trial. 

(b) Special courts-martial. 

(1) Cases including an approved bad-conduct discharge. If the approved sentence of a special court-martial 

includes a bad-conduct discharge, the record shall be disposed of as provided in subsection (a) of this rule for 

records of trial by general court-martial. 

(2) Other cases. The record of trial by a special court-martial in which the approved sentence does not 

include a bad-conduct discharge shall be forwarded directly to a judge advocate for review under R.C.M. 11 12. 

Four copies of the order promulgating the result of trial shall be forwarded with the record of trial, unless 

otherwise prescribed by regulations of the Secretary concerned. 

(c) Summary courts-martial. The convening authority shall dispose of a record of trial by summary court-martial 

as provided in R.C.M. 1306. 

Discussion 

See DD Form 494 (Court-Martial Data Sheet). 
R.C.M. 1112 

Rule 1112. Review by a judge advocate 

(a) In general. Except as provided in subsection (b) of this rule, under regulations of the Secretary concemed, 

a judge advocate shall review: 

(1) Each general court-martial in which the accused has waived or withdrawn appellate review under R.C.M. 

11 10. 

(2)Each special court-martial in which the accused has waived or withdrawn appellate review under R.C.M. 

1110 or in which the approved sentence does not include a bad-conduct discharge; and 

(3) Each summary court-martial. 

(b) Exception. If the accused was not found guilty of any offense or if the convening authority disapproved all 

findings of guilty, no review under this rule is required. 

(c) Disqualification. No person may review a case under this rule if that person has acted in the same case as 

an accuser, investigating officer, member of the court-martial, military judge,'or counsel, or has otherwise acted 

on behalf of the prosecution or defense. 

(d) Form and content of review. The judge advocate's review shall be in writing and shall contain the following: 

(1) Conclusions as to whether- 

(A) The court-martial had jurisdiction over the accused and each offense as to which there is a finding 

of guilty which has not been disapproved; 

(B) Each specification as to which there is a finding of guilty which has not been disapproved stated an 

offense; and 

(C) The sentence was legal; 

(2) A response to each allegation of error made in writing by the accused. Such allegations may be filed 

under R.C.M. 1105, 1 106(f), or directly with the judge advocate who reviews the. case; and 

(3) If the case is sent for action to the officer exercising general court-martial jurisdiction under subsection 

(e) of this rule, a recommendation as to the appropriate action to be taken and an opinion as to whether corrective 

action is required as a matter of law. 

(e) Forwarding to ofJicer exercising general court-martial jurisdiction. In cases reviewed under subsection (a) 

of this rule, the record of trial shall be sent for action to the officer exercising general court-martial convening 

authority over the accused at the time the court-martial was held (or to that officer's successor) when: 

(1) The judge advocate who reviewed the case recommends corrective action; 

(2) The sentence approved by the convening authority includes dismissal, a dishonorable or bad-conduct 

discharge, or confinement for more than 6 months; or 

(3) Such action is otherwise required by regulations of the Secretary concemed. 

If the judge advocate's review is not forwarded under this subsection, it shall be attached to the original record 

of trial and a copy forwarded to the accused. 

(f) Action by oficer exercising general court-martial jurisdiction. 

(1) Action. The officer exercising general court-martial jurisdiction who receives a record under subsection 

(e) of this rule may- 

(A) Disapprove or approve the findings or sentence in whole or in part; 

(B) Remit, commute, or suspend the sentence in whole or in part; 

(C) Except where the evidence was insufficient at the trial to support the findings, order a rehearing on 

the findings, on the sentence, or on both; or 

(D) Dismiss the charges. 
R.C.M. 11 13(c)(l)(B) 

Discussion 

See R.C.M. 11 13 concerning when the officer exercising the action of the officer exercising general court-martial jurisgeneral court-martial jurisdiction may order parts of the sentence diction.Seealso Appendix 16 (Forms for actions) and Appendix 

executed. See R.C.M. 1114 concerning orders promulgating 17 (Forms for court-martial orders). 

(2)Rehearing. If the officer exercising general court-martial jurisdiction orders a rehearing, but the convening 

authority finds a rehearing impracticable, the convening authority shall dismiss the charges. 

(3)Notijkation.After the officer exercising general court-martial jurisdiction has taken action, the accused 

shall be notified of that action and the accused shall be provided with a copy of the judge advocate's review. 

(g) Forwarding following review under this rule. 

(1) Records forwarded to the Judge Advocate General. If the judge advocate who reviews the case under 

this rule states that corrective action is required as a matter of law, and the officer exercising general courtmartial jurisdiction does not take action that is at least as favorable to the accused as that recommended by the 

judge advocate, the record of trial and the action thereon shall be forwarded to the Judge Advocate General 

concerned for review under R.C .M. 120 1(b)(2). 

(2) Sentence including dismissal. If the approved sentence includes dismissal, the record shall be forwarded 

to the Secretary concerned. 

Discussion 

A dismissal may not be ordered executed until approved by the Secretary or the Secretary's designee. See R.C.M. 1206. 

(3) Other records. Records reviewed under this rule which are not forwarded under subsection (g)(l) of 

this rule shall be disposed of as prescribed by the Secretary concerned. I,

i Discussion 

A dismissal may not be ordered executed until approved by the Secretary or the Secretary's designee under R.C.M. 1206. 

Rule 1113. Execution of sentences 

(a) In general. No sentence of a court-martial may be executed unless it has been approved by the convening 

authority. 

Discussion 

An order executing the sentence directs that the sentence of this rule, no part of a sentence may be carried out until it is 

be carried out. Except as provided in subsection (d)(2) and (3) ordered executed. 

(b) Punishments which the convening authority may order executed in the initial action. Except as provided in 

subsection (c) of this rule, the convening authority may order all or part of the sentence of a court-martial 

executed when the convening authority takes initial action under R.C.M. 1107. 

(c) Punishments which the convening authority may not order executed in the initial action. 

(1) Dishonorable or a bad-conduct discharge. Except as may otherwise be prescribed by the Secretary 

concerned, a dishonorable or a bad-conduct discharge may be ordered executed only by: 

(A) The officer who reviews the case under R.C.M. 11 12(f), as part of the action approving the sentence, 

except when that action must be forwarded under R.C.M. 11 12(g)(l); or 

(B) The officer then exercising general court-martial jurisdiction over the accused. 

A dishonorable or a bad-conduct discharge may be ordered executed only after a final judgment within the 

meaning of R.C.M. 1209 has been rendered in the case. If more than 6 months have elapsed since approval of 
R.C.M. 1113(c)(2) 

the sentence by the convening authority, before a dishonorable or a bad-conduct discharge may be executed, the 

officer exercising general court-martial jurisdiction over the accused shall consider the advice of that officer's 

staff judge advocate as to whether retention of the servicemember would be in the best interest of the service. 

Such advice shall include: the findings and sentence as finally approved; whether the servicemember has been 

on active duty since the court-martial, and if so, the nature and character of that duty; and a recommendation 

whether the discharge should be executed. 

(2)Dismissal of a commissioned officer, cadet, or midshipman. Dismissal of a commissioned officer, cadet, 

or midshipman may be approved and ordered executed only by the Secretary concerned or such Under Secretary 

or Assistant Secretary as the Secretary concerned may designate. 

Discussion 

See R.C.M.1206(a) concerning approval by the Secretary. 

(3) Sentences extending to death. A punishment of death may be ordered executed only by the President. 

Discussion 

See R.C.M. 1207 concerning approval by the President. 

(d) Other considerations concerning the execution of certain sentences. 

(1) Death. A sentence to death which has been finally ordered executed shall be carried out in the manner 

prescribed by the Secretary concerned. 

(2) Confinement. 

(A) Efective date of conjinement. Any period of confinement included in the sentence of a court-martial 

begins to run from the date the sentence is adjudged by the court-martial, but the following shall be 

excluded in computing the service of the term of confinement: 

(i) Periods during which the sentence to confinement is suspended or deferred; 

(ii) Periods during which the accused is in custody of civilian authorities under Article 14 from the 

time of the delivery to the return to military custody, if the accused was convicted in the civilian court; 

(iii) Periods during which the accused has escaped or is absent without authority, or is absent under a 

parole which proper authority has later revoked, or is erroneously released from confinement through misrepresentation or fraud on the part of the prisoner, or is erroneously released from confinement upon the prisoner's 

petition for a writ of habeas corpus under a court order which is later reversed; and 

(iv) Periods during which another sentence by court-martial to confinement is being served. When a 

prisoner serving a court-martial sentence to confinement is later convicted by a court-martial of another offense 

and sentenced to confinement, the later sentence interrupts the running of the earlier sentence. Any unremitted 

remaining portion of the earlier sentence will be served after the later sentence is fully executed. 

(B) Nature of the confinement. The omission of "hard labor" from any sentence of a court-martial which 

has adjudged confinement shall not prohibit the authority who orders the sentence executed from 

requiring hard labor as part of the punishment. 

(C) Place of confinement. The authority who orders a sentence to confinement into execution shall 

designate the place of confinement under regulations prescribed by the Secretary concerned, unless 

otherwise prescribed by the Secretary concerned. Under such regulations as the Secretary concerned 

may prescribe, a sentence to confinement adjudged by a court-martial or other military tribunal, 

regardless whether the sentence includes a punitive discharge or dismissal and regardless whether 

the punitive discharge or dismissal has been executed, may be ordered to be served in any place of 

confinement under the control of any of the armed forces or in any penal or correctional institution 

under the control of the United States or which the United States may be allowed to use. Persons so 

confined in a penal or correctional institution not under the control of one of the armed forces are 

subject to the same discipline and treatment as persons confined or committed by the courts of the 
R.C.M. 11 14(b)(2)(A) 

United States or of the State, Territory, District of Columbia, or place in which the institution is 

situated. When the service of a sentence to confinement has been deferred and the deferment is later 

rescinded, the convening authority shall designate the place of confinement in the initial action on 

the sentence or in the order rescinding the deferment. No member of the armed forces may be placed 

in confinement in immediate association with enemy prisoners or other foreign nationals not members 

of the armed forces. The Secretary concerned may prescribe regulations governing the place and 

conditions of confinement. 

Discussion 

See R.C.M. 1 101(c) concerning deferment of a sentence to confinement. 

(3) Confinement in lieu offine. Confinement may not be executed for failure to pay a fine if the accused 

demonstrates that the accused has made good faith efforts to pay but cannot because of indigency, unless the 

authority considering imposition of confinement determines, after giving the accused notice and opportunity to 

be heard, that there is no other punishment adequate to meet the Government's interest in appropriate punishment. 

(4)Restriction; hard labor without confinement. When restriction and hard labor without confinement are 

included in the same sentence, they shall, unless one is suspended, be executed concurrently. 

(5) Confinement on bread and water of diminished rations. A sentence to confinement on bread and water 

or diminished rations may be executed only if a medical officer examines the accused and the place of confinement 

and certifies in writing that service of such a sentence will not, in that officer's opinion, produce serious injury 

to the health of the accused. A sentence of confinement on bread and water or diminished rations may be executed 

in a place where the accused can communicate only with authorized personnel. 

(6) More than one sentence. If at the time forfeitures may be ordered executed, the accused is already 

serving a sentence to forfeitures by another court-martial, the authority taking action may order that the later 

forfeitures will be executed when the earlier sentence to forfeitures is completed. 

Rule 1114. Promulgating orders 

(a) In general. 

(1) Scope of rule. Unless otherwise prescribed by the Secretary concerned, orders promulgating the result 

of trial and the actions of the convening or higher authorities on the record shall be prepared, issued, and 

distributed as prescribed in this rule. 

(2) Purpose. A promulgating order publishes the result of the court-martial and the convening authority's 

action and any later action taken on the case. 

(3)Summary courts-martial. An order promulgating the result of a trial by summary court-martial need not 

be issued. 

Discussion 

See R.C.M. 1306(b)(2) concerning summary courts-martial. 

(b) By whom issued. 

(1) Initial orders. The order promulgating the result of trial and the initial action of the convening authority 

shall be issued by the convening authority. 

(2) Orders issued after the initial action. Any action taken on the case subsequent to the initial action shall 

be promulgated in supplementary orders. 

(A) When the President or the Secretary concerned has taken final action. General court-martial orders 

publishing the final result in cases in which the President or the Secretary concerned has taken final 

action shall be promulgated as prescribed by regulations of the Secretary concerned. 
R.C.M. 1114(b)(2)(B) 

(B) Other cases. In cases other than those in subsection (b)(2)(A) of this rule, the final action may be 

promulgated by an appropriate convening authority. 

(c) Contents. 

(1) In general. The order promulgating the initial action shall set forth: the type of court-martial and the 

command by which it was convened; the charges and specifications, or a summary thereof, on which the accused 

was arraigned; the accused's pleas; the findings or other disposition of each charge and specification; the sentence, 

if any; and, verbatim, the action of the convening authority. Subsequent actions shall recite, verbatim, the action 

or order of the appropriate authority. 

(2) Dates. A promulgating order shall bear the date of the initial action, if any, of the convening authority. 

An order promulgating an acquittal, a court-martial terminated before findings, or action on the findings or 

sentence taken after the initial action of the convening authority shall bear the date of its publication. A 

promulgating order shall state the date the sentence was adjudged, the date on which the acquittal was announced, 

or the date on which the proceedings were otherwise terminated. 

Discussion 

See Appendix 17 for sample forms for promulgating orders. 

(3) Order promulgated regardless of the result of trial or nature of the action. An order promulgating the 

result of trial by general or special court-martial shall be issued regardless of the result and regardless of the 

action of the convening or higher authorities. 

(d) Orders containing classified information. When an order contains information which must be classified, only 

the order retained in the unit files and those copies which accompany the record of trial shall be complete and 

contain the classified information. The order shall be assigned the appropriate security classification. Asterisks 

shall be substituted for the classified information in the other copies of the order. 

(e) Authentication. The promulgating order shall be authenticated by the signature of the convening or other 

competent authority acting on the case, or a person acting under the direction of such authority. A promulgating 

order prepared in compliance with this rule shall be presumed authentic. 

(f) Distribution. Promulgating orders shall be distributed as provided in regulations of the Secretary concerned. 
CHAPTER XII. APPEALS AND REVIEW 

Rule 1201. Action by the Judge Advocate General 

(a) Cases required to be referred to a Court of Military Review. The Judge Advocate General shall refer to a 

Court of Military Review the record in each trial by court-martial: 

(1) In which the sentence, as approved, extends to death; or 

(2) In which- 

(A) The sentence, as approved, extends to dismissal of a commissioned officer, cadet, or midshipman, 

dishonorable or bad-conduct discharge, or confinement for 1 year or longer; and 

(B) 	The accused has not waived or withdrawn appellate review. 

Discussion 

See R.C.M. 11 10 concerning waiver.or withdrawal of ap- See R.C.M. 1203 concerning review by the Court of Milpellate review. itary Review and the powers and responsibilities of the Judge 

See also subsection (b)(l) of. this rule concerning cases Advocate General after such review. See R.C.M. 1202 conreviewed by the Judge Advocate General which may be referred cerning appellate counsel. 

to a Court of Military Review. 

(b) Cases reviewed by the Judge Advocate General. 

(1) Mandatory examination of certain general courts-martial. Except when the accused has waived the right 

to appellate review or withdrawn such review, the record of trial by a general court-martial in which there has 

been a finding of guilty and a sentence, the appellate review of which is not provided for in subsection (a) of 

this rule, shall be examined in the office of the Judge Advocate General. If any part of the findings or sentence 

is found unsupported in law, or if reassessment of the sentence is appropriate, the Judge Advocate General may 

modify or set aside the findings or sentence or both. If the Judge Advocate General so directs, the record shall 

be reviewed by a Court of Military Review in accordance with R.C.M. 1203. If the case is forwarded to a Court 

of Military Review, the accused shall be informed and shall have the rights under R.C.M. 1202(b)(2). 

Discussion 

When a case is forwarded to a Court of Military Review Court of Military Appeals, except when forwarded by the Judge 

under this subsection, it is not subject to further review by the Advocate General under R.C.M. 1203(c)(l). 

(2) Mandatory review of cases forwarded under R.C.M. 1112(g)(l). The Judge Advocate General shall 

review each case forwarded under R.C.M. 1 1 12(g)(l). On such review, the Judge Advocate General may vacate 

or modify, in whole or part, the findings or sentence, or both, of a court-martial 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. 

(3) Review by the Judge Advocate General after final review. 

(A) 	In general. Notwithstanding R.C.M. 1209, the Judge Advocate General may, sua sponte or 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 which has been finally reviewed, 

but has not been reviewed by a Court of Military Review, 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. 
R.C.M. 1201(b)(3)(B) 

Discussion 

See R.C.M. 1210 concerning petition for new trial. subsection is not part of appellate review within the meaning 

Review of a case by a Judge Advocate General under this of Article 76 or R.C.M. 1209. 

. /

(B) Procedure. Each Judge Advocate General shall provide procedures for considering all cases properly 

submitted under subsection (b)(3) of this rule and may prescribe the manner by which an application 

for relief under subsection (b)(3) of this rule may be made and, if submitted by a person other than 

the accused, may require that the applicant show authority to act on behalf of the accused. 

Discussion 

See R.C.M. 1114 concerning orders promulgating action under this rule. 

(C) Time limits on applications. Any application for review by the Judge Advocate General under Article 

69 must be made on or before the last day of the two year period beginning on the date the sentence 

is approved by the convening authority, unless the accused establishes good cause for failure to file 

within that time. 

(4) Rehearing. If the Judge Advocate General sets aside the findings or sentence, the Judge Advocate 

General may, except when the setting aside is based on lack of sufficient evidence in the record to support the 

findings, order a rehearing. If the Judge Advocate General sets aside the findings and sentence and does not 

order a rehearing, the Judge Advocate General shall order that the charges be dismissed. If the Judge Advocate 

General orders a rehearing but the convening authority finds a rehearing impractical, the convening authority 

shall dismiss the charges. 

(c) Remission and suspension. The Judge Advocate General may, when so authorized by the Secretary concerned 

under Article 74, at any time remit or suspend the unexecuted part of any sentence, other than a sentence approved 

by the President. 

Rule 1202. Appellate counsel 

(a) In general. The Judge Advocate General concerned shall detail one or more commissioned officers as appellate 

Government counsel and one or more commissioned officers as appellate defense counsel who are qualified 

under Article 27(b)(l). 

(b) Duties. 

(1) Appellate Government counsel. Appellate Government counsel shall represent the United States before 

the Court of Military Review or the United States Court of Military Appeals when directed to do so by the Judge 

Advocate General concerned. Appellate Government counsel may represent the United States before the United 

States Supreme Court when requested to do so by the Attorney General. 

(2) Appellate defense counsel. Appellate defense counsel shall represent the accused before the Court of 

Military Review, the Court of Military Appeals, or the Supreme Court when the accused is a party in the case 

before such court and: 

(A) The accused requests to be represented by appellate defense counsel; 

(B) The United States is represented by counsel; or 

(C) The Judge Advocate General has sent the case to the United States Court of Military Appeals. 

Appellate defense counsel is authorized to communicate directly with the accused. The accused is a party in 

the case when named as a party in pleadings before the court or, even if not so named, when the military judge 

is named as respondent in a petition by the Government for extraordinary relief from a ruling in favor of the 

accused at trial. cI 


Discussion 

For a discussion of the duties of the trial defense counsel concerning post-trial and appellate matters, see R.C.M. 502(d)(6) 
R.C.M. 1203(c)(l) 

Discussion (E). Appellate defense counsel may communicate 

with trial defense counsel concerning the case. See also Mil. 

R. Evid. 502 (privileges). 

If all or part of the findings and sentence are affirmed by 

the Court of Military Review, appellate defense counsel should 

advise the accused whether the accused should petition for further review in the United States Court of Military Appeals and 

concerning which issues should be raised. 

The accused may be represented by civilian counsel before 

the Court of Military Review, the Court of Military Appeals, 

and the Supreme Court. Such counsel will not be provided at 

the expense of the United States. Civilian counsel may represent 

the accused before these courts in addition to or instead of 

military counsel. 

If, after any decision of the Court of Military Appeals, the 

accused may apply for a writ of certiorari (see R.C.M. 1205), 

appellate defense counsel should advise the accused whether to 

apply for review by the Supreme Court and which issues might 

be raised. If authorized to do so by the accused, appellate 

defense counsel may prepare and file a petition for a writ of 

certiorari on behalf of the accused. 

The accused has. no right to select appellate defense counsel. Under some circumstances, however, the accused may be 

entitled to request that the detailed appellate defense counsel 

be replaced by another appellate defense counsel. 

See also R.C.M. 1204(b)(l) concerning detailing counsel 

with respect to the right to petition the Court of Military Appeals 

for review. 

Rule 1203. Review by a Court of Military Review 

(a) In general. Each Judge Advocate General shall establish a Court of Military Review composed of appellate 

military judges. 

Discussion 

See Article 66 concerning the composition of the Courts official relationship of the members of the court to other memof Military Review, the qualifications of appellate military judges, bers. Uniform rules of court for the Courts of Military Review 

the grounds for their ineligibility, and restrictions upon the are prescribed by the Judge Advocates General. 

(b) Cases reviewed by a Court of Military Review. A Court of Military Review shall review cases referred to it 

by the Judge Advocate General under R.C.M. 1201(a) or (b)(l). 

Discussion 

See R.C.M. 11 10 concerning withdrawal of a case pending 

before a Court of Military Review. 

See R.C.M. 908 concerning procedures for interlocutory 

appeals by the Government. 

In cases referred to it under R.C.M. 1201, a Court of 

Military Review may act only with respect to the findings and 

sentence as approved by proper authority. It may affirm only 

such findings of guilty or such part of a finding of guilty as 

includes an included offense, as it finds correct in law and fact 

and determines on the basis of the entire record should be 

approved. A Court of Military Review has generally the same 

powers as the convening authority to modify a sentence (see 

R.C.M. 1107), but it may not suspend all or part of a sentence. 

However, it may reduce the period of a suspension prescribed 

by a convening authority. It may not defer service of a sentence 

to confinement. (See R.C.M. 1101(c)). It may, however, review 

a decision by a convening authority concerning deferral, to 

determine whether that decision was an abuse of the convening 

authority's discretion. 

In considering the record of a case referred to it under 

R.M.C. 1201, a Court of Military Review may weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact, recognizing that the court-martial 

saw and heard the evidence. A finding or sentence of a courtmartial may not be held incorrect on the ground of an error of 

law unless the error materially prejudices the substantial rights 

of the accused. Article 59(a). 

If a Court of Military Review sets aside any findings of 

guilty or the sentence, it may, except as to findings set aside 

for lack of sufficient evidence in the record to support the 

findings, order an appropriate type of rehearing or reassess the 

sentence as appropriate. See R. C.M. 810 concerning rehearings. If the Court of Military Review sets aside all the findings 

and the sentence and does not order a rehearing, it must order 

the charges dismissed. See Articles 59(a) and 66. 

A Court of Military Review may on petition for extraordinary relief issue all writs necessary or appropriate in aid of 

its jurisdiction and agreeable to the usages and principles of 

law. Any party may petition a Court of Military Review for 

extraordinary relief. L 


(c) Action on cases reviewed by a Court of Military Review. 

(1) Forwarding by the Judge Advocate General to the Court of Military Appeals. The Judge Advocate 

General may forward the decision of the Court of Military Review to the Court of Military Appeals for reveiw 

with respect to any matter of law. In such a case, the Judge Advocate General shall cause a copy of the decision 
R.C.M. 1203(~)(2) 

of the Court of Military Review and the order forwarding the case to be served on the accused and on appellate 

defense counsel. 

(2) Action when sentence is set aside. In a case reviewed by it under this rule in which the Court of Military 

Review has set aside the sentence and which is not forwarded to the Court of Military Appeals under subsection 

(c)(l) of this rule, the Judge Advocate General shall instruct an appropriate convening authority to take action 

in accordance with the decision of the Court of Military Review. If the Court of Military Review has ordered a 

rehearing, the record shall be sent to an appropriate convening authority. If that convening authority finds a 

rehearing impracticable that convening authority may dismiss the charges. 

Discussion 

If charges are dismissed, see R.C.M. 1208 concerning concerning promulgating orders. 


restoration of rights, privileges, and property. See R.C.M. 11 14 


(3) Action when sentence is afirmed in whole or part. 

(A)Sentence requiring approval by the President. If the Court of Military Review affirms any sentence 

which includes death, the Judge Advocate General shall transmit the record of trial and the decision 

of the Court of Military Review directly to the Court of Military Appeals when any period for 

reconsideration provided by the rules of the Courts of Military Review has expired. 

(B) Other cases. If the Court of Military Review affirms any sentence other than one which includes 

death, the Judge Advocate General shall cause a copy of the decision of the Court of Military Review 

to be served on the accused in accordance with subsection (d) of this rule. 

(4)Remission or suspension. If the Judge Advocate General believes that a sentence as affirmed by the 

Court of Military Review, other than one which includes death, should be remitted or suspended in whole or 

part, the Judge Advocate General may, before taking action under subsections (c)(l) or (3) of this rule, transmit 

the record of trial and the decision of the Court of Military Review to the Secretary concerned with a recommendation for action under Article 74 or may take such action as may be authorized by the Secretary concerned 

under Article 74(a). 

Discussion 

See R.C.M. 1201(c); 1206. 

(d) Notification to accused. 

(1) Notification of decision. The accused shall be notified of the decision of the Court of Military Review 

in accordance with regulations of the Secretary concerned. 

Discussion 

The accused may be notified personally, or a copy of the provided by the accused, at the latest address listed for the 

decision may be sent, after service on appellate counsel of accused in the accused's official service record. 

record, if any, by first class certified mail to the accused at an If the Judge ~dvocate General has forwarded the case to 

address provided by the accused or, if no such address has been the Court of Military Appeals, the accused should be so notified. 

See subsection (c)(l) of this rule. 

(2) Notification of right to petition the Court of Military Appeals for review. If the accused has the right to 

petition the Court of Military Appeals for review, the accused shall be provided with a copy of the decision of 

the Court of Military Review bearing an endorsement notifying the accused of this right. The endorsement shall 

inform the accused that such a petition: 

(A) May be filed only within 60 days from the time the accused was in fact notified of the decision of 
R.C.M. 1204(a)(3) 

the Court of Military Review or the mailed copy of the decision was postmarked, whichever is earlier; 

and 

(B) 	May be forwarded through the officer immediately exercising general court-martial jurisdiction over 

the accused and through the appropriate Judge Advocate General or filed directly with the Court of 

Military Appeals. 

Discussion 

See Article 67(c). sentence includes death (because review by the Court of Military 

See also R.C.M. 1204(b). Appeals is mandatory). 

The accused may petition the Court of Military Appeals The placing of a petition for review in proper military 

for review, as to any matter of law, of any decision of the Court channels divests the Court of Military Review of jurisdiction 

of Military Review except: (1) a case which was referred to the over the case, and jurisdiction is thereby conferred on the Court 

Court of Military Review by the Judge Advocate General under of Military Appeals. See R.C.M. 11 13 concerning action to be 

R.C.M. 1201(b)(l); (2) a case in which the Court of Military taken if the accused does not file or the Court of Military 

Review has set aside the sentence; and (3) a case in which the Appeals denies a petition for review. 

(3) Receipt by the accused-disposition. When the accused has the right to petition the Court of Military 

Appeals for review, the receipt of the accused for the copy of the decision of the Court of Military Review, a 

certificate of service on the accused, or the postal receipt for delivery of certified mail shall be transmitted in 

duplicate by expeditious means to the appropriate Judge Advocate General. If the accused is personally served, 

the receipt or certificate of service shall show the date of service. The Judge Advocate General shall forward 

one copy of the receipt, certificate, or postal receipt to the clerk of the Court of Military Appeals when required 

by the court. 

(e) Cases not reviewed by the Court of Military Appeals. If the decision of the Court of Military Review is not 

subject to review by the Court of Military Appeals, or if the Judge Advocate General has not forwarded the case 

to the Court of Military Appeals and the accused has not filed or the Court of Military Appeals has denied a 

petition for review, the Judge Advocate General shall- 

(1) If the sentence affirmed by the Court of Military Review includes a dismissal, transmit the record, the 

decision of the Court of Military Review, and the Judge Advocate General's recommendation to the Secretary 

concerned for action under R.C.M. 1206; or 

(2) If the sentence affirmed by the Court of Military Review does not include a dismissal, notify the 

convening authority, the officer exercising general court-martial jurisdiction over the accused, or the Secretary 

concerned, as appropriate, who, subject to R.C.M. 1 1 13(c)(l), may order into execution any unexecuted sentence 

affirmed by the Court of Military Review or take other action, as authorized. 

Discussion 

See R.C.M. 11 13, 1206, and Article 74(a) concerning the authority of the Secretary and others to take action 

(f) Scope. Except as otherwise expressly provided in this rule, this rule does not apply to appeals by the Govemment 

under R.C.M. 908. 

Rule 1204. Review by the Court of Military Appeals 

(a) Cases reviewed by the Court of Military Appeals. Under such rules as it may prescribe, the Court of Military 

Appeals shall review the record in all cases: 

(1) In which the sentence, as affirmed by a Court of Military Review, extends to death; 

(2) Reviewed by a Court of Military Review which the Judge Advocate General orders sent to the Court 

of Military Appeals for review; and 

(3) Reviewed by a Court of Military Review, except those referred to it by the Judge Advocate General 

under R.C.M. 1201(b)(l), in which, upon petition by the accused and on good cause shown, the Court of 

Military Appeals has granted a review. 
R.C.M. 1204(b) 

Discussion 

See Article 67(a) concerning the composition of the Court extraordinary relief and may issue all writs necessary or apof Military Appeals. In any case reviewed by it, the Court of propriate in aid of its jurisdiction and agreeable to the usages 

Military Appeals may act only with respect to the findings and and principles of law. Any party may petition the Court of 

sentence as approved by the convening authority and as affirmed Military Appeals for extraordinary relief. However, in the inor set aside as incorrect in law by the Court of Military Review. terest of judicial economy, such petitions usually should be 

See Article 67(d) and (e). The rules of practice and procedure filed with and adjudicated before the appropriate Court of Milbefore the Court of Military Appeals are published in the Mil- itary Review prior to submission to the Court of Military Apitary Justice Reporter. peals. 

The Court of Military Appeals may entertain petitions for 

(b) Petition by the accused for review by the Court of Military Appeals. 

(1) Counsel. When the accused is notified of the right to forward a petition for review by the Court of 

Military Appeals, if requested by the accused, associate counsel qualified under R.C.M. 502(d)(l) shall be 

detailed to advise and assist the accused in connection with preparing a petition for further appellate review. 

Discussion 

If reasonably available, the counsel who conducted the to represent the accused should communicate with the appellate 

defense at ma1 may perform these duties. The counsel detailed defense counsel representing the accused. See R.C.M. 1202. 

(2)Forwarding petition. The accused shall file any petition for review by the Court of Military Appeals 

under subsection (a)(3) of this rule directly with the Court of Military Appeals. 

Discussion 

See Article 67(c) and R.C.M. 1203(d)(2) concerning no- See also the rules of the Court of Military Appeals concerning 

tifying the accused of the right to petition the Court of Military when the time for filing a petition begins to run and when a 

Appeals for review and the time limits for submitting a petition. petition is now timely. 

(c)Action on decision by the Court of Military Appeals. 

(1) In general. After it has acted on a case, the Court of Military Appeals may direct the Judge Advocate 

General to return the record to the Court of Military Review for further proceedings in accordance with the 

decision of the court. Otherwise, unless the decision is subject to review by the Supreme Court, or there is to 

be further action by the President or the Secretary concerned, the Judge Advocate General shall instruct the 

convening authority to take action in accordance with that decision. If the Court has ordered a rehearing, but 

the convening authority to whom the record is transmitted finds a rehearing impracticable, the convening authority 

may dismiss the charges. L 

Discussion 

See R.C.M. 11 14 concerning final orders in the case. See also R.C.M. 1206 and Article 74(a). 

(2) Sentence requiring approval of the President. If the Court of Military Appeals has affirmed a sentence 

which must be approved by the President before it may be executed, the Judge Advocate General shall transmit 

the record of trial, the decision of the Court of Military Review, the decision of the Court of Military Appeals, 

and the recommendation of the Judge Advocate General to the Secretary concerned for the action of the President. 

Discussion 

See Article 71(a) and R.C.M. 1207. 

(3)Sentence requiring approval of the Secretary concerned. If the Court of Military Appeals has affirmed 

11-194 
R.C.M. 1206(b)(3) 

a sentence which requires approval of the Secretary concerned before it may be executed, the Judge Advocate 

General shall follow the procedure in R. C .M. 1203(e)(l). 

Discussion 

See Article 71(b) and R.C.M. 1206. 

(4) Decision subject to review by the Supreme Court. If the decision of the Court of Military Appeals is 

subject to review by the Supreme Court, the Judge Advocate General shall take no action under subsections 

(c)(l), (2), or (3) of this rule until: (A) the time for filing a petition for a writ of certiorari with the Supreme 

Court has expired; or (B) the Supreme Court has denied any petitions for writ of certiorari filed in the case. 

After (A) or (B) has occurred, the Judge Advocate General shall take action under subsection (c)(l), (2), or (3). 

If the Supreme Court grants a writ of certiorari, the Judge Advocate General shall take action under R.C.M. 

1205 (b) . 

Rule 1205. Review by the Supreme Court 

(a) Cases subject to review by the Supreme Court. Under 28 U.S.C. § 1259 and Article 67(h), decisions of the 

Court of Military Appeals may be reviewed by the Supreme Court by writ of certiorari in the following cases: 

(1) Cases reviewed by the Court of Military Appeals under Article 67(b)(l); 

(2) Cases certified to the Court of Military Appeals by the Judge Advocate General under Article 67(b)(2); 

(3) Cases in which the Court of Military Appeals granted a petition for review under Article 67(b)(3); and 

(4) Cases other than those described in subsections (a)(l), (2), and (3) of this rule in which the Court of 

Military Appeals granted relief. 

The Supreme Court may not review by writ of certiorari any action of the Court of Military Appeals in refusing 

to grant a petition for review. 

(b) Action by the Supreme Court. After the Supreme Court has taken action, other than denial of a petition for 

writ of certiorari, in any case, the Judge Advocate General shall, unless the case is returned to the Court of 

Military Appeals for further proceedings, forward the case to the President or the Secretary concerned in 

accordance with R.C.M. 1204(c)(2) or (3) when appropriate, or instruct the convening authority to take action 

in accordance with the decision. 

Rule 1206. Powers and responsibilities of the Secretary 

(a) Sentences requiring approval by the Secretary. No part of a sentence extending to dismissal of a commissioned 

officer, cadet, or midshipman may be executed until approved by the Secretary concerned or such Under Secretary 

or Assistant Secretary as may be designated by the Secretary. 

Discussion 

See Article 71(b). 

(b) Remission and suspension 

(1) In general. The Secretary concerned and, when designated by the Secretary concerned, any Under 

Secretary, Assistant Secretary, Judge Advocate General, or commander may remit or suspend any part or amount 

of the unexecuted part of any sentence, including all uncollected forfeitures, other than a sentence approved by 

the President. 

(2) Substitution of discharge. The Secretary concerned may, for good cause, substitute an administrative 

discharge for a discharge or dismissal executed in accordance with the sentence of a court-martial. 

(3) Sentence commuted by the President. When the President has commuted a death sentence to a lesser 

punishment, the Secretary concerned may remit or suspend any remaining part or amount of the unexecuted 

portion of the sentence of a person convicted by a military tribunal under the Secretary's jurisdiction. 
R.C.M. 1207 

Rule 1207. Sentences requiring approval by the President 

No part of a court-martial sentence extending to death may be executed until approved by the President. 

Discussion 

See-Article 71(a). See also R.C.M. 1203 and 1204 con- Military Appeals ,in capital cases. 


cerning review by the Court of Military Review and Court of 


Rule 1208. Restoration 

(a) New trial. All rights, privileges, and property affected by an executed portion of a court-martial sentenceexcept an executed dismissal or discharge-which has not again been adjudged upon a new trial or which, after 

the new trial, has not been sustained upon the action of any reviewing authority, shall be restored. So much of 

the findings and so much of the sentence adjudged at the earlier trial shall be set aside as may be required by 

the findings and sentence at the new trial. Ordinarily, action taken under this subsection shall be announced in 

the court-martial order promulgating the final results of the proceedings. 

Discussion 

See Article 75(b) and (c) concerning the action to be taken on an executed dismissal or discharge which is not imposed at a new trial. 

(b) Other cases. In cases other than those in subsection (a) of this rule, all rights, privileges, and property affected 

by an executed part of a court-martial sentence which has been set aside or ,disapproved by any competent 

authority shall be restored unless a new trial, other trial, or rehearing is ordered and such executed part is included 

in a sentence imposed at the new trial, other trial, or rehearing. Ordinarily, any restoration shall be announced 

in the court-martial order promulgating the final results of the proceedings. 

Discussion 

See R.C.M. 11 14 concerning promulgating orders. 

Rule 1209. Finality of courts-martial 

(a) When a conviction isfinal. A court-martial conviction is final when: 

(1) Review is completed by a Court of Military Review and- 

(A) The accused does not file a timely petition for review by the Court of Military Appeals and the case 

is not otherwise under review by that court; 

(B) A petition for review is denied or otherwise rejected by the Court of Military Appeals; or 

(C) Review is completed in accordance with the judgment of the Court of Military Appeals and- 

(i) A petition for a writ of certiorari is not filed within the time limits prescribed by the Supreme 

Court, 

(ii) A petition for writ of certiorari is denied or otherwise rejected by the Supreme Court, or 

(iii) Review is otherwise completed in accordance with the judgment of the Supreme Court; or 

Discussion 

See R.C.M. 1201, 1203, 1204, and 1205 concerning cases Military Appeals, and the Supreme Court. See also R.C.M. 

subject to review by a Court of Military Review, the Court of 11 10. 

(2) In cases not reviewed by a Court of Military Review- 

(A) The findings and sentence have been found legally sufficient by a judge advocate and, when action 
R.C.M. 1210Q 

by such officer is required, have been approved by the officer exercising general court-martial 

jurisdiction over the accused at the time the court-martial was convened (or that officer's successor); 

or 

(B) The findings and sentence have been affirmed by the Judge Advocate General when review by the 

Judge Advocate General is required under R.C.M. 11 12 (g)(l) or 1201(b)(l). 

(b) Effect of finality. The appellate review of records .of trial provided by the code, the proceedings, findings, 

and sentences of courts-martial as approved, reviewed, or affirmed as required by the code, and all dismissals 

and discharges carried into execution under sentences by courts-martial following approval, review, or affirmation 

as required by the code, are final and conclusive. Orders publishing the proceedings of courts-martial and all 

action taken pursuant to those proceedings are binding upon all departments, courts, agencies, and officers of 

the United States, subject only to action upon a petition for a new trial under Article 73, to action by the Judge 

Advocate General under Article 69(b), to action by the Secretary concerned as provided in Article 74, and the 

authority of the President. 

Rule 1210. New trial 

(a) In general. At any time within 2 years after approval by the convening authority of a court-martial sentence, 

the accused may petition the Judge Advocate General for a new trial on the ground of newly discovered evidence 

or fraud on the court-martial. A petition may not be submitted after the death of the accused. 

(b) Who may petition. A petition for a new trial may be submitted by the accused personally, or by accused's 

counsel, regardless whether the accused has been separated from the service. 

(c) Form of petition. A petition for a new trial shall be written and shall be signed under oath or affirmation by 

the accused, by a person possessing the power of attorney of the accused for that purpose, or by a person with 

the authorization of an appropriate court to sign the petition as the representative of the accused. The petition 

shall contain the following information, or an explanation why such matters are not included: 

(1) The name, service number, and current address of the accused; 

(2) The date and location of the trial; 

(3) The type of court-martial and the title or position of the convening authority; 

(4) The request for the new trial; 

(5) The sentence or a description thereof as approved or affirmed, with any later reduction thereof by 

clemency or otherwise; 

(6) A brief description of any finding or sentence believed to be unjust; 

(7) A full statement of the newly discovered evidence or fraud on the court-martial which is relied upon 

for the remedy sought; 

(8) Affidavits pertinent to the matters in subsection (c)(6) of this rule; and 

(9) The affidavit of each person whom the accused expects to present as a witness in the event of a new 

trial. Each such affidavit should set forth briefly the relevant facts within the personal knowledge of the witness. 

(d) Effect of petition. The submission of a petition for a new trial does not stay the execution of a sentence. 

(e) Who may act on petition. If the accused's case is pending before a Court of Military Review or the Court 

of Military Appeals, the Judge Advocate General shall refer the petition to the appropriate court for action. 

Otherwise, the Judge Advocate General of the armed force which reviewed the previous trial shall act on the 

petition, except that petitions submitted by ~iions who, at the time of trial and sentence from which the petitioner - seeks relief, were members of the Coast Guard, and who are members of the Coast Guard at the time the petition 

is submitted, shall be acted on in the Department in which the Coast Guard is serving at the time the petition 

is so submitted. 

(f) Grounds for new trial. 
R.C.M. 1210(f)(l) 

(1) In general. A new trial may be granted only on grounds of newly discovered evidence or fraud on the 

court-martial. 

(2) Newly discovered evidence. A new trial shall not be granted on the grounds of newly discovered evidence 

unless the petition shows that: 

(A) The evidence was discovered after the trial; 

(B) 	The evidence is not such that it would have been discovered by the petitioner at the time of trial in 

the exercise of due diligence; and 

(C) The newly discovered evidence, if considered by a court-martial in the light of all other pertinent 

evidence, would probably produce a substantially more favorable result for the accused. 

(3) Fraud on court-martial. No fraud on the court-martial warrants a new trial unless it had a substantial 

contributing effect on a finding of guilty or the sentence adjudged. 

Discussion 

Examples of fraud on a court-martial which may warrant to the court-martial, would probably have resulted in a finding 

granting a new trial are: confessed or proved perjury in testi- of not guilty; and willful concealment of a material ground for 

mony or forgery of documentary evidence which clearly had a challenge of the military judge or any member or of the dissubstantial contributing effect on a finding of guilty and without qualification of counsel or the convening authority, when the 

which there probably would not have been a finding of guilty basis for challenge or disqualification was not known to the 

of the offense; willful concealment by the prosecution from the defense at the time of trial (see R.C.M.912). 

defense of evidence favorable to the defense which, if presented 

(g) Action on the petition. 

(1) In general. The authority considering the petition may cause such additional investigation to be made 

and such additional information to be secured as that authority believes appropriate. Upon written request, and 

in its discretion, the authority considering the petition may permit oral argument on the matter. 

(2)Courts of Military Review; Court of Military Appeals. The Courts of Military Review and the Court of 

Military Appeals shall act on a petition for a new trial in accordance with their respective rules. 

(3) The Judge Advocates General. When a petition is considered by the Judge Advocate General, any 

hearing may be before the Judge Advocate General or before an officer or officers designated by the Judge 

Advocate General. If the Judge Advocate General believes meritorious grounds for relief under Article 74 have 

been established but that a new trial is not appropriate, the Judge Advocate General may act under Article 74 

if authorized to do so, or transmit the petition and related papers to the Secretary concerned with a recommendation. 

The Judge Advocate General may also, in cases which have been finally reviewed but have not been reviewed 

by a Court of Military Review, act under Article 69. 

Discussion 

See also R.C.M. 1201(b)(3). 

(h) Action when new trial is granted. 

(1) Forwarding to convening authority. When a petition for a new trial is granted, the Judge Advocate 

General shall select and forward the case to a convening authority for disposition. 

(2)Charges at new trial. At a new trial, the accused may not be tried for any offense of which the accused 

was found not guilty or upon which the accused was not tried at the earlier court-martial. 
R.C.M. 1210(h)(6) 

Discussion 

See also R.C.M.810 concerning additional special rules conducted like any other court-martial. 


which apply at a new trial. In other respects a new trial is 


(3)Action by convening authority. The convening authority's action on the record of a new trial is the same 

as in other courts-martial. 

(4) Disposition of record. The disposition of the record of a new trial is the same as for other courts-martial. 

(5) Court-martial orders. Court-martial orders promulgating the final action taken as a result of a new trial, 

including any restoration of rights, privileges, and property, shall be promulgated in accordance with R.C.M. 

11 14. 

Discussion 

See Article 75 and R.C.M.1208 concerning restoration of in a new trial or action following it. 


rights when the executed portion of a sentence is not sustained 


(6)Action by persons charged with execution of the sentence. Persons charged with the administrative duty 

of executing a sentence adjudged upon a new trial after it has been ordered executed shall credit the accused 

with any executed portion or amount of the original sentence included in the new sentence in computing the 

term or amount of punishment actually to be executed pursuant to the sentence. 
CHAPTER XIII. SUMMARY COURTS-MARTIAL 

Rule 1301. Summary courts-martial generally 

(a) Composition. A summary court-martial is composed of one commissioned officer on active duty. Unless 

otherwise prescribed by the Secretary concerned a summary court-martial shall be of the same armed force as 

the accused. Whenever practicable, a summary court-martial should be an officer whose grade is not below 

lieutenant of the Navy or Coast Guard or captain of the Army, Air Force, or Marine Corps. When only one 

commissioned officer is present with a command or detachment, that officer shall be the summary court-martial 

of that command or detachment. When more than one commissioned officer is present with a command or 

detachment, the convening authority may not be the summary court-martial of that command or detachment. 

(b) Function. The function of the summary court-martial is to promptly adjudicate minor offenses under a simple 

procedure. The summary court-martial shall thoroughly and impartially inquire into both sides of the matter and 

shall ensure that the interests of both the Government and the accused are safeguarded and that justice is done. 

A summary court-martial may seek advice from a judge advocate or legal officer on questions of law, but the 

summary court-martial may not seek advice from any person on factual conclusions which should be drawn from 

evidence or the sentence which should be imposed, as the summary court-martial has the independent duty to 

make these determinations. 

Discussion 

For a definition of "minor offenses," see paragraph le, Part V. 

(c) Jurisdiction. Subject to Chapter 11, summary courts-martial have the power to try persons subject to the code, 

except commissioned officers, warrant officers, cadets, aviation cadets, and midshipmen, for any noncapital 

offense made punishable by the code. 

Discussion 

See R.C.M. 103(3)for a definition of capital offenses. 

(d) Punishments. 

(1) Limitations-amount. Subject to R.C.M. 1003, summary courts-martial may adjudge any punishment 

not forbidden by the code except death, dismissal, dishonorable or bad-conduct discharge, confinement for more 

than 1 month, hard labor without confinement for more than 45 days, restriction to specified limits for more 

than 2 months, or forfeiture of more than two-thirds of 1 month's pay. 

Discussion 

The maximum penalty which can be adjudged in a sum- A summary court-martial may not suspend all or part of a 

mary court-martial if the accused is not attached to or embarked sentence, although the summary court-martial may recommend 

in a vessel is confinement for 30 days, forfeiture of two-thirds to the convening authority that all or part of a sentence be 

pay per month for one month, and reduction to the lowest pay suspended. If a sentence includes both reduction in grade and 

grade. If the accused is attached to or embarked in a vessel, forfeitures, the maximum forfeiture is calculated at the grade 

the maximum penalty is confinement for 3 days on bread and to which reduced. See also R.C.M. 1003 concerning other 

water or diminished rations, confinement for 24 days (30 days punishments which may be adjudged, the effects of certain types 

if no confinement on bread and water or diminished rations is of punishment, and combination of certain types of punishment. 

adjudged), forfeiture of two-thirds pay per month for one month, The summary court-martial should ascertain the effect of Article 

and reduction to the lowest pay grade. See subsection (2) below 58a in that armed force. 

for additional limits on enlisted persons serving in pay grades 

above the fourth enlisted pay grade. 

(2) Limitations-pay grade. In the case of enlisted members above the fourth enlisted pay grade, summary 
R.C.M. 1301(e) 

courts-martial may not adjudge confinement, hard labor without confinement, or reduction except to the next 

pay grade. 

Discussion 

The provisions of this subsection apply to an accused in pay grade by the summary court-martial. 


the fifth enlisted pay grade who is reduced to the fourth enlisted 


(e) Counsel. The accused at a summary court-martial does not have the right to counsel. If the accused has 

civilian counsel provided by the accused and qualified under R.C.M. 502(d)(3), that counsel shall be permitted 

to represent the accused at the summary court-martial if such appearance will not unreasonably delay the 

proceedings and if military exigencies do not preclude it. 

Discussion 

Neither the Constitution nor any statute establishes any counsel is not prohibited. The convening authority may, as a 

right to counsel at summary courts-martial. Therefore, it is not matter of discretion, detail, or otherwise make available, a 

,error to deny an accused the opportunity to be represented by military attorney to represent the accused at a summary courtcounsel at a summary court-martial. However, appearance of martial. 

(f) Power to obtain witnesses and evidence. A summary court-martial may obtain evidence pursuant to R.C.M. 

703. 

Discussion 

The summary court-martial must obtain witnesses for the accused for witnesses or evidence in accordance with the proprosecution and the defense pursuant to the standards in R.C.M. cedure in R.C.M. 703(c) and (f). 

703. The summary court-martial rules on any request by the 

(g) Secretarial limitations. The Secretary concerned may prescribe procedural or other rules for summary courtsmartial not inconsistent with this Manual or the code. 

Rule 1302. Convening a summary court-martial 

(a) Who may convene summary courts-martial. Unless limited by competent authority summary courts-martial 

may be convened by: 

(1) Any person who may convene a general or special court-martial; 

(2) The commander of a detached company or other detachment of the Army; 

(3) The commander of a detached squadron or other detachment of the Air Force; 

(4) The commander or officer in charge of any other command when empowered by the Secretary concerned; 

or 

(5) A superior competent authority to any of the above. 

(b) When convening authority is accuser. If the convening authority or the summary court-martial is the accuser, 

it is discretionary with the convening authority whether to forward the charges to a superior authority with a 

recommendation to convene the summary court-martial. If the convening authority or the summary court-martial 

is the accuser, the jurisdiction of the summary court-martial is not affected. 

(c) Procedure. After the requirements of Chapters I11 and IV of this Part have been satisfied, summary courtsmartial shall be convened in accordance with R.C.M. 504(d)(2). The convening order may be by notation signed 

by the convening authority on the charge sheet. Charges shall be referred to summary courts-martial in accordance 

with R.C.M. 601. 
R.C.M. 1304(b)(l)(B) 

Discussion 

When the convening authority is the summary court-mar- officer present with the command or detachment, see R.C.M. 

tial because the convening authority is the only commissioned 1301(a), that fact should be noted on the charge sheet. 

Rule 1303. Right to object to trial by summary court-martial 

No person who objects thereto before arraignment may be tried by summary court-martial even if that person 

also refused punishment under Article 15 and demanded trial by court-martial for the same offenses. 

Discussion 

If the accused objects to trial by summary court-martial, with R.C.M. 401. 


the convening authority may dispose of the case in accordance 


Rule 1304. Trial procedure 

(a) Pretrial duties. 

(1) Examination offile. The summary court-martial shall carefully examine the charge sheet, allied papers, 

and immediately available personnel records of the accused before trial. 

Discussion 

"Personnel records" are those personnel records of the vening orders, investigative reports, correspondence relating to 

accused which are maintained locally and are immediately avail- the case, and witness statements. 

able. "Allied papers" in a summary court-martial include con- 

(2)Report of irregularity. The summary court-martial shall report to the convening authority any substantial 

irregularity in the charge sheet, allied papers, or personnel records. 

Discussion 

The summary court-martial should examine the charge sheet, in the charges and specifications must be reported to the conallied papers, and personnel records to ensure that they are vening authority, since such defects cannot be corrected except 

complete and free from errors or omissions which might affect by preferring and refening the affected charge and specification 

admissibility. The summary court-martial should check the charges anew in proper form. A defect or error is substantial if correcting 

and specifications to ensure that each alleges personal jurisdic- it would state an offense not otherwise stated, or include an 

tion over the accused (see R.C. 202) and an offense under the offense, person, or matter not fairly included in the specification 

code (see R.C.M. 203 and Part IV). Substantial defects or errors as preferred. See subsection (3) below concerning minor errors. 

(3) Correction and amendment. The summary court-martial may, subject to R.C.M. 603, correct errors on 

the charge sheet and amend charges and specifications. Any such corrections or amendments shall be initialed. 

(b) Summary court-martial procedure. 

Discussion 

A sample guide is at Appendix 9. The summary court-martial should review and become familiar with the guide used before proceeding. 

(1) Preliminary proceeding. After complying with R.C.M. 1304(a), the summary court-martial shall hold 

a preliminary proceeding during which the accused shall be given a copy of the charge sheet and informed of 

the following: 

(A) The general nature of the charges; 

(B) 	The fact that the charges have been referred to a summary court-martial for trial and the date of 

referral; 
R.C.M.1304(b)(l)(C) 


(C) The identity of the convening authority; 

(D) The name(s) of the accuser(s); 

(E) 	The names of the witnesses who could be called to testify and any documents or physical evidence 

which the summary court-martial expects to introduce into evidence; 

(F) The accused's right to inspect the allied papers and immediately available personnel records; 

(G) That during the trial the summary court-martial will not consider any matters, including statements 

previously made by the accused to the officer detailed as summary court-martial unless admitted in 

accordance with the Military Rules of Evidence; 

(H) The accused's right to plead not guilty or guilty; 

(I) 	 The accused's right to cross-examine witnesses and have the summary court-martial cross-examine 

witnesses on behalf of the accused; 

(J) 	 The accused's right to call witnesses and produce evidence with the assistance of the summary courtmartial as necessary; 

(K) The accused's right to testify on the merits, or to remain silent with the assurance that no adverse 

inference will be drawn by the summary court-martial from such silence; 

(L) If any findings of guilty are announced, the accused's rights to remain silent, to make an unsworn 

statement, oral or written or both, and to testify, and to introduce evidence in extenuation or mitigation; 

(M) The maximum sentence which the summary court-martial may adjudge if the accused is found guilty 

of the offense or offenses alleged; and 

(N) The accused's right to object to trial by summary court-martial. 

(2) Trial proceeding. 

(A) Objection to trial. The summary court-martial shall give the accused a reasonable period of time to 

decide whether to object to trial by summary court-martial. The summary court-martial shall thereafter 

record the response. If the accused objects to trial by summary court-martial, the summary courtmartial shall return the charge sheet, allied papers, and personnel records to the convening authority. 

If the accused fails to object to trial by summary court-martial, trial shall proceed. 

(B) Arraignment. After complying with R.C.M. 1304(b)(l) and (2)(A), the summary court-martial shall 

read and show the charges and specifications to the accused and, if necessary, explain them. The 

accused may waive the reading of the charges. The summary court-martial shall then ask the accused 

to plead to each specification and charge. 

(C) Motions. Before receiving pleas the summary court-martial shall allow the accused to make motions 

to dismiss or for other relief. The summary court-martial shall take action on behalf of the accused, 

if requested by the accused, or if it appears necessary in the interests of justice. 

(D) Pleas. 

(i) Not guilty pleas. When a not guilty plea is entered, the summary court-martial shall proceed to 

trial. 

(ii) Guilty pleas. If the accused pleads guilty to any offense, the summary court-martial shall comply 

with R.C.M. 910. 

(iii) Rejected guilty pleas. If the summary court-martial is in doubt that the accused's pleas of guilty 

are voluntarily and understandingly made, or if at any time during the trial any matter inconsistent with pleas 

of guilty arises, which inconsistency cannot be resolved, the summary court-martial shall enter not guilty pleas 

as to the affected charges and specifications. 

(iv) No plea. If the accused refuses to plead, the summary court-martial shall enter not guilty pleas. 
R.C.M. 1305(a) 

(v) Changed pleas. The accused may change any plea at any time before findings are announced. The 

accused may change pleas from guilty to not guilty after findings are announced only for good cause. 

(E) Presentation of evidence. 

(i) The Military Rules of Evidence (Part 111) apply to summary courts-martial. 

(ii) The summary court-martial shall arrange for the attendance of necessary witnesses for the prosecution and defense, including those requested by the accused. 

Discussion 

See R.C.M. 703. Ordinarily witnesses should be excluded from the courtroom until called to testify. See Mil. R. Evid. 615. 

(iii) Witnesses for the prosecution shall be called first and examined under oath. The accused shall be 

permitted to cross-examine these witnesses. The summary court-martial shall aid the accused in cross-examination 

if such assistance is requested or appears necessary in the interests of justice. The witnesses for the accused shall 

then be called and similarly examined under oath. 

(iv) The summary court-martial shall obtain evidence which tends to disprove the accused's guilt or 

establishes extenuating circumstances. 

Discussion 

See R.C.M. 703 and 1001. 

(F) Findings and sentence. 

(i) The summary court-martial shall apply the principles in R.C.M. 918 in determining the findings. 

The summary court-martial shall announce the findings to the accused in open session. 

(ii) The summary court-martial shall follow the procedures in R.C.M. 1001 and apply the principles 

in the remainder of Chapter X in determining a sentence. The summary court-martial shall announce the sentence 

to the accused in open session. 

(iii) If the sentence includes confinement, the summary court-martial shall advise the accused of the 

right to apply to the convening authority for deferment of the service of the confinement. 

(iv) If the accused is found guilty, the summary court-martial shall advise the accused of the rights 

under R.C.M. 1306(a) and (d) after the sentence is announced. 

(v) The summary court-martial shall, as soon as practicable, inform the convening authority of the 

findings, sentence, recommendations, if any, for suspension of the sentence, and any deferment request. 

(vi) If the sentence includes confinement, the summary court-martial shall cause the delivery of the 

accused to the accused's commanding officer or the commanding officer's designee. 

Discussion 

If the accused's immediate commanding officer is not the ings, sentence, and any recommendations pertaining thereto. 

convening authority, the summary court-martial should ensure See R.C.M. 1 101 concerning post-trial confinement. 

that the immediate commanding officer is informed of the findRule 1305. Record of trial 

(a) In general. The record of trial of a summary court-martial shall be prepared as prescribed in subsection (b) 

of this rule. The convening or higher authority may prescribe additional requirements for the record of trial. 

Discussion 

See Appendix 15 for a sample of a Record of Trial by Any petition submitted under R.C.M. 1306(a) should be 

Summary Court-Martial (DD Form 2329). appended to the record of trial. 
R.C.M. 1305(b) 

(b) Contents. The summary court-martial shall prepare an original and at least two copies of the record of trial, 

which shall include: 

(1) The pleas, findings, and sentence, and if the accused was represented by counsel at the summary courtmartial, a notation to that effect; 

(2) The number of previous convictions considered and the fact that the accused was advised of the matters 

set forth in R.C.M. 1304(b)(l); 

(3) If the summary court-martial is the convening authority, a notation to that effect. 

(c) Authentication. The summary court-martial shall authenticate the record by signing each copy. 

Discussion 

"Authentication" means attesting that the record accurately reports the proceedings. See R.C.M.1104(a). 

(d) Medical certificate. If the sentence ordered executed includes confinement on bread and water or diminished 

rations, the convening authority shall cause the medical certificate required by R.C.M. 11 13(d)(5) to be attached 

to the original copy of the record of trial. 

(e) Forwarding copies of the record. 

(1) Accused's copy. 

(A) Service. The summary court-martial shall cause a copy of the record of trial to be served on the 

accused as soon as it is authenticated. 

Receipt. The summary court-martial shall cause the accused's receipt for the copy of the record of 

trial to be obtained and attached to the original record of trial or shall attach to the original record 

of trial a certificate that the accused was served a copy of the record. If the record of trial was not 

served on the accused personally, the summary court-martial shall attach a statement explaining how 

and when such service was accomplished. If the accused was represented by counsel, such counsel 

may be served with the record of trial. 

(C) Classified information. If classified information is included in the record of trial of a summary courtmartial, R.C.M. 1 104(b)(l)(D) shall apply. 

(2) Forwarding to the convening authority. The origi~~al , and one copy of the record of trial shall be forwarded 

to the convening authority after compliance with subsection (e)(l) of this rule. 

(3) Further disposition. After compliance with R.C.M. 1306(b) and (c), the record of trial shall be disposed 

of under regulations prescribed by the Secretary concerned. 

Rule 1306. Post-trial procedure 

(a) Matters submitted by the accused. After a sentence is adjudged, the accused may submit written matters to 

the convening authority in accordance with R.C.M. 1105. 

(b) Convening authority's action. 

(1) Who shall act. Except as provided herein, the convening authority shall take action in accordance with 

R.C.M. 1107. The convening authority shall not take action before the period prescribed in R.C.M. 1105(c)(3) 

has expired, unless the right to submit matters has been waived under R.C.M. 1105(d). 

(2) Action. The action of the convening authority shall be shown on all copies of the record of trial except 

that provided the accused if the accused has retained that copy. An order promulgating the result of a trial by 

summary court-martial need not be issued. A copy of the action shall be forwarded to the accused. 

(3) Signature. The action on the original record of trial shall be signed by the convening authority. The 
R.C.M. 1306(d) 

convening authority's action on other copies of the record of trial shall either be signed by the convening authority 

or be prepared and certified as true copies of the original. 

(4) Subsequent action. Any action taken on a summary court-martial after the initial action by the convening 

authority shall be in writing, signed by the authority taking the action, and promulgated in appropriate orders. 

Discussion 

See R.C.M. 1114 concerning promulgating orders. 

(c) Review by a judge advocate. Unless otherwise prescribed by regulations of the Secretary concerned, the 

original record of the summary court-martial shall be reviewed by a judge advocate in accordance with R.C.M. 

11 12. 

(d) Review by the Judge Advocate General. The accused may request review of a final conviction by summary 

court-martial by the Judge Advocate General in accordance with R.C.M. 1201(b)(3). 
PART Ill 


MILITARY RULES OF EVIDENCE 


Section I. GENERAL PROVISIONS 

Rule 101. Scope 

(a) Applicability. These rules are applicable in courts-martial, including summary courts-martial, to the extent 

and with the exceptions stated in Mil. R. Evid. 1101. 

(b) Secondary Sources. If not otherwise prescribed in this Manual or these rules, and insofar as practicable and 

not inconsistent with or contrary to the code or this Manual, courts-martial shall apply: 

(1) First, the rules of evidence generally recognized in the trial of criminal cases in the United States district 

courts; and 

(2) Second, when not inconsistent with subdivision (b)(l), the rules of evidence at common law. 

(c) Rule of construction. Except as otherwise provided in these rules, the term "military judge" includes the 

president of a special court-martial without a military judge and a summary court-martial officer. 

Rule 102. Purpose and construction 

These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and 

delay, and promotion of growth and development of the law of evidence to the end that the truth may be 

ascertained and proceedings justly determined. 

Rule 103. Rulings on evidence 

(a) Effect of erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence 

unless the ruling materially prejudices a substantial right of a party, and 

(1) Objection..In case the ruling is one admitting evidence, a timely objection or motion to strike appears 

of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or 

(2) Offer of proof. In case the ruling is one excluding evidence, the substance of the evidence was made 

known to the military judge by offer or was apparent from the context within which questions were asked. 

The standard provided in this subdivision does not apply to errors involving requirements imposed by the 

Constitution of the United States as applied to members of the armed forces except insofar as the error arises 

under these rules and this subdivision provides a standard that is more advantageous to the accused than the 

constitutional standard. 

(b)Record of offer and ruling. The military judge may add any other or further statement which shows the 

character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. The 

military judge may direct the making of an offer in question and answer form. 

(c) Hearing of members. In a court-martial composed of a military judge and members, proceedings shall be 

conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the members 

by any means, such as making statements or offers of proof or asking questions in the hearing of the members. 

(d) Plain error. Nothing in this rule precludes taking notice of plain errors that materially prejudice substantial 

rights although they were not brought to the attention of the military judge. 

Rule 104. Preliminary questions 

(a) Questions of admissibility generally. Preliminary questions concerning the qualification of a person to be a 
M.R.E. 104(b) 

witness, the existence of a privilege, the admissibility of evidence, an application for a continuance, or the 

availability of a witness shall be determined by the military judge. In making these determinations the military 

judge is not bound by the rules of evidence except those with respect to privileges. 

(b) Relevancy conditioned on fact. When the relevancy of evidence depends upon the fulfillment of a condition 

of fact, the military judge shall admit it upon, or subject to, the introduction of evidence sufficient to support a 

finding of the fulfillment of the condition. A ruling on the sufficiency of evidence to support a finding of 

fulfillment of a condition of fact is the sole responsibility of the military judge, except where these rules or this 

Manual provide expressly to the contrary. 

(c) Hearing of members. Except in cases tried before a special court-martial without a military judge, hearings 

on the admissibility of statements of an accused under Mil. R. Evid. 301-306 shall in all cases be conducted 

out of the hearing of the members. Hearings on other preliminary matters shall be so conducted when the interests 

of justice require or, when an accused is a witness, if the accused so requests. 

(d) Testimony by accused. The accused does not, by testifying upon a preliminary matter, become subject to 

cross-examination as to other issues in the case. 

(e) Weight and credibility. This rule does not limit the right of a party to introduce before the members evidence 

relevant to weight or credibility. 

Rule 105. Limited admissibility 

When evidence which is admissible as to one party or for one purpose but not admissible as to another party 

or for another purpose is admitted, the military judge, upon request, shall restrict the evidence to its proper scope 

and instruct the members accordingly. 

Rule 106. Remainder of or related writings or recorded statements 

When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require 

that party at that time to introduce any other part or any other writing or recorded statement which ought in 

fairness to be considered contemporaneously with it. 

Section II. JUDICIAL NOTICE 

Rule 201. Judicial notice of adjudicative facts 

(a) Scope of rule. This rule governs only judicial notice of adjudicative facts. 

(b)Kinds of facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) 

generally known universally, locally, or in the area pertinent to the event or (2) capable of accurate and ready 

determination by resort to sources whose accuracy cannot reasonably be questioned. 

(c) When discretionary. The military judge may take judicial notice, whether requested or not. The parties shall 

be informed in open court when, without being requested, the military judge takes judicial notice of an adjudicative 

fact essential to establishing an element of the case. 

(d) When mandatory. The military judge shall take judicial notice if requested by a party and supplied with the 

necessary information. 

(e) Opportunity to be heard. A party is entitled upon timely request to an opportunity to be heard as to the 

propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the 

request may be made after judicial notice has been taken. 

(f) Time of taking notice. Judicial notice may be taken at any stage of the proceeding. 

(g) Instructing members. The military judge shall instruct the members that they may, but are not required to, 

accept as conclusive any matter judicially noticed. 

Rule 201A. Judicial notice of law 

(a) Domestic law. The military judge may take judicial notice of domestic law. Insofar as a domestic law is a 
M.R.E. 301(e) 

fact that is of consequence to the determination of the action, the procedural requirements of Mil. R. Evid. 

20 1-except Mil. R. Evid. 201 &)-apply. 

(b) Foreign law. A party who intends to raise an issue concerning the law of a foreign country shall give 

reasonable written notice. The military judge, in determining foreign law, may consider any relevant material 

or source including testimony whether or not submitted by a party or admissible under these rules. Such a 

determination shall be treated as a ruling on a question of law. 

Section 111. EXCLUSIONARY RULES AND RELATED MATTERS CONCERNING SELF-INCRIMINATION, 


SEARCH AND SEIZURE, AND EYEWITNESS IDENTIFICATION 


Rule 301. Privilege concerning compulsory self-incrimination 

(a) General rule. The privileges against self-incrimination provided by the Fifth Amendment to the Constitution 

of the United States and Article 31 are applicable only to evidence of a testimonial or communicative nature. 

The privilege most beneficial to the individual asserting the privilege shall be applied. 

(b) Standing. 

(1) In general. The privilege of a witness to refuse to respond to a question the answer to which may tend 

to incriminate the witness is a personal one that the witness may exercise or waive at the discretion of the witness. 

(2) Judicial advice. If a witness who is apparently uninformed of the privileges under this rule appears 

likely to incriminate himself or herself, the military judge should advise the witness of the right to decline to 

make any answer that might tend to incriminate the witness and that any self-incriminating answer the witness 

might make can later be used as evidence against the witness. Counsel for any party or for the witness may 

request the military judge to so advise a witness provided that such a request is made out of the hearing of the 

witness and, except in a special court-martial without a military judge, the members. Failure to so advise a 

witness does not make the testimony of the witness inadmissible. 

(c) Exercise of the privilege. If a witness states that the answer to a question may tend to incriminate him or 

her, the witness may not be required to answer unless facts and circumstances are such that no answer the witness 

might make to the question could have the effect of tending to incriminate the witness or that the witness has, 

with respect to the question, waived the privilege against self-incrimination. A witness may not assert the privilege 

if the witness is not subject to criminal penalty as a result of an answer by reason of immunity, running of the 

statute of limitations, or similar reason. 

(1) Immunity generally. The minimum grant of immunity adequate to overcome the privilege is that which 

under either R.C.M. 704 or other proper authority provides that neither the testimony of the witness nor any 

evidence obtained from that testimony may be used against the witness at any subsequent trial other than in a 

prosecution for perjury, false swearing, the malung of a false official statement, or failure to comply with an 

order to testify after the military judge has ruled that the privilege may not be asserted by reason of immunity. 

(2) NotiJication of immunity or leniency. When a prosecution witness before a court-martial has been granted 

immunity or leniency in exchange for testimony, the grant shall be reduced to writing and shall be served on 

the accused prior to arraignment or within a reasonable time before the witness testifies. If notification is not 

made as required by this rule, the military judge may grant a continuance until notification is made, prohibit or 

strike the testimony of the witness, or enter such other order as may be required. 

(d) Waiver by a witness. A witness who answers a question without having asserted the privilege against selfincrimination and thereby admits a self-incriminating fact may be required to disclose all information relevant 

to that fact except when there is a real danger of further self-incrimination. This limited waiver of the privilege 

applies only at the trial in which the answer is given, does not extend to a rehearing or new or other trial, and 

is subject to Mil. R. Evid. 608(b). 

(e) Waiver by the accused. When an accused testifies voluntarily as a witness, the accused thereby waives the 

privilege against self-incrimination with respect to the matters concerning which he or she so testifies. If the 

accused is on trial for two or more offenses and on direct examination testifies concerning the issue of guilt or 

innocence as to only one or some of the offenses, the accused may not be cross-examined as to guilt or innocence 
M.R.E. 301(f) 

with respect to the other offenses unless the cross-examination is relevant to an offense concerning which the 

accused has testified. This waiver is subject to Mil. R. Evid. 608(b). 

(f) EfSect of claiming the privilege. 

(1) Generally. The fact that a witness has asserted the privilege against self-incrimination in refusing to 

answer a question cannot be considered as raising any inference unfavorable to either the accused or the 

government. 

(2) On cross-examination. If a witness asserts the privilege against self-incrimination on cross-examination, 

the military judge, upon motion, may strike the direct testimony of the witness in whole or in part, unless the 

matters to which the witness refuses to testify are purely collateral. 

(3) Pretrial. The fact that the accused during official questioning and in exercise of rights under the Fifth 

Amendment to the Constitution of the United States or Article 31, remained silent, refused to answer a certain 

question, requested counsel, or requested that the questioning be terminated is inadmissible against the accused. 

(g) Instructions. When the accused does not testify at trial, defense counsel may request that the members of 

the court be instructed to disregard that fact and not to draw any adverse inference from it. Defense counsel may 

request that the members not be so instructed. Defense counsel's election shall be binding upon the military 

judge except that the military judge may give the instruction when the instruction is necessary in the interests 

of justice. 

Rule 302. Privilege concerning mental examination of an accused 

(a) General rule. The accused has a privilege to prevent any statement made by the accused at a mental examination 

ordered under R.C.M. 706 and any derivative evidence obtained through use of such a statement from being 

received into evidence against the accused on the issue of guilt or innocence or during sentencing proceedings. 

This privilege may be claimed by the accused notwithstanding the fact that the accused may have been warned 

of the rights provided by Mil. R. Evid. 305 at the examination. 

(b) Exceptions. 

(1) There is no privilege under this rule when the accused first introduces into evidence such statements or 

derivative evidence. 

(2) An expert witness for the prosecution may testify as to the reasons for the expert's conclusions and the 

reasons therefor as to the mental state of the accused if expert testimony offered by the defense as to the mental 

condition of the accused has been received in evidence, but such testimony may not extend to statements of the 

accused except as provided in (1). 

(c) Release of evidence. If the defense offers expert testimony concerning the mental condition of the accused, 

the military judge, upon motion, shall order the release to the prosecution of the full contents, other than any 

statements made by the accused, of any report prepared pursuant to R.C.M. 706. If the defense offers statements 

made by the accused at such examination, the military judge may upon motion order the disclosure of such 

statements made by the accused and contained in the report as may be necessary in the interests of justice. 

(d) Noncompliance by the accused. The military judge may prohibit an accused who refuses to cooperate in a 

mental examination authorized under R.C.M. 706 from presenting any expert medical testimony as to any issue 

that would have been the subject of the mental examination. 

(e) Procedure. The privilege in this rule may be claimed by the accused only under the procedure set forth in 

Mil. R. Evid. 304 for an objection or a motion to suppress. 

Rule 303. Degrading questions 

No person may be compelled to make a statement or produce evidence before any military tribunal if the 

statement or evidence is not material to the issue and may tend to degrade that person. 

Rule 304. Confessions and admissions 

(a) General rule. An involuntary statement or any derivative evidence therefrom may not be received in evidence 
M.R.E. 304(e) 

against an accused who made the statement if the accused makes a timely motion to suppress or an objection to 

the evidence under this rule. 

(b) Exception. Where the statement is involuntary only in terms of noncompliance with the requirements concerning counsel under Mil. R. Evid. 305(d), 305(e), and 305(g), this rule does not prohibit use of the statement 

to impeach by contradiction the in-court testimony of the accused or the use of such statement in a later prosecution 

against the accused for perjury, false swearing, or the making of a false official statement. 

(c) Definitions. As used in these rules: 

(1) Confession. A "confession" is an acknowledgment of guilt. 

(2) Admission. An "admission" is a self-incriminating statement falling short of an acknowledgment of 

guilt, even if it was intended by its maker to be exculpatory. 

(3) Involuntary. A statement is "involuntary" if it is obtained in violation of the self-incrimination privilege 

or due process clause of the Fifth Amendment to the Constitution of the United States, Article 31, or through 

the use of coercion, unlawful influence, or unlawful inducement. 

(d) Procedure. 

(1) Disclosure. Prior to arraignment, the prosecution shall disclose to the defense the contents of all 

statements, oral or written, made by the accused that are relevant to the case, known to the trial counsel, and 

within the control of the armed forces. 

(2)Motions and objections. 

(A) Motions to suppress or objections under this rule or Mil. R. Evid. 302 or 305 to statements that have 

been disclosed shall be made by the defense prior to submission of a plea. In the absence of such 

motion or objection, the defense may not raise the issue at a later time except as permitted by the 

military judge for good cause shown. Failure to so move or object constitutes a waiver of the objection. 

(B) If the prosecution intends to offer against the accused a statement made by the accused that was not 

disclosed prior to arraignment, the prosecution shall provide timely notice to the military judge and 

to counsel for the accused. The defense may enter an objection at that time and the military judge 

may make such orders as are required in the interests of justice. 

(C) If evidence is disclosed as derivative evidence under this subdivision prior to arraignment, any motion 

to suppress or objection under this rule or Mil. R. Evid. 302 or 305 shall be made in accordance 

with the procedure for challenging a statement under (A). If such evidence has not been so disclosed 

prior to arraignment, the requirements of (B) apply. 

(3) Specificity. The military judge may require the defense to specify the grounds upon which the defense 

moves to suppress or object to evidence. If defense counsel, despite the exercise of due diligence, has been 

unable to interview adequately those persons involved in the taking of a statement, the military judge may make 

any order required in the interests of justice, including authorization for the defense to make a general motion 

to suppress or general objection. 

(4)Rulings. A motion to suppress or an objection to evidence made prior to plea shall be ruled upon prior 

to plea unless the military judge, for good cause, orders that it be deferred for determination at trial, but no such 

determination shall be deferred if a party's right to appeal the ruling is affected adversely. Where factual issues 

are involved in ruling upon such motion or objection, the military judge shall state essential findings of fact on 

the record. 

(5) EfSect of guilty plea. Except as otherwise expressly provided in R.C.M. 910(a)(2), a plea of guilty to 

an offense that results in a finding of guilty waives all privileges against self-incrimination and all motions and 

objections under this rule with respect to that offense regardless of whether raised prior to plea. 

(e) Burden of proof. When an appropriate motion or objection has been made by the defense under this rule, 

the prosecution has the burden of establishing the admissibility of the evidence. When a specific motion or 

objection has been required under subdivision (d)(3), the burden on the prosecution extends only to the grounds 

upon which the defense moved to suppress or object to the evidence. 
M.R.E. 304(e)(I) 

(I) In general. The military judge must find by a preponderance of the evidence that a statement by the 

accused was made voluntarily before it may be received into evidence. When trial is by a special court-martial 

without a military judge, a determination by the president of the court that a statement was made voluntarily is 

subject to objection by any member of the court. When such objection is made, it shall be resolved pursuant to 

R.C.M. 801(e)(3)(C). 

(2) Weight of the evidence. If a statement is admitted into evidence, the military judge shall permit the 

defense to present relevant evidence with respect to the voluntariness of the statement and shall instruct the 

members to give such weight to the statement as it deserves under all the circumstances. When trial is by military 

judge without members, the military judge shall determine the appropriate weight to give the statement. 

(3) Derivative evidence. Evidence that is challenged under this rule as derivative evidence may be admitted 

against the accused if the military judge finds by a preponderance of the evidence either that the statement was 

made voluntarily or that the evidence was not obtained by use of the statement. 

(f) Defense evidence. The defense may present evidence relevant to the admissibility of evidence as to which 

there has been an objection or motion to suppress under this rule. An accused may testify for the limited purpose 

of denying that the accused made the statement or that the statement was made voluntarily. Prior to the introduction 

of such testimony by the accused, the defense shall inform the military judge that the testimony is offered under 

this subdivision. When the accused testifies under this subdivision, the accused may be cross-examined only as 

to the matter on which he or she testifies. Nothing said by the accused on either direct or cross-examination may 

be used against the accused for any purpose other than in a prosecution for perjury, false swearing, or the making 

of a false official statement. 

(g) Corroboration. An admission or a confession of the accused may be considered as evidence against the 

accused on the question of guilt or innocence only if independent evidence, either direct or circumstantial, has 

been introduced that coroborates the essential facts admitted to justify sufficiently an inference of their truth. 

Other uncorroborated confessions or admissions of the accused that would themselves require corroboration may 

not be used to supply this independent evidence. If the independent evidence raises an inference of the truth of 

some but not all of the essential facts admitted, then the confession or admission may be considered as evidence 

against the accused only with respect to those essential facts stated in the confession or admission that are 

corroborated by the independent evidence. Corroboration is not required for a statement made by the accused 

before the court by which the accused is being tried, for statements made prior to or contemporaneously with 

the act, or for statements offered under a rule of evidence other than that pertaining to the admissibility of 

admissions or confessions. 

(1) Quantum of evidence needed. The independent evidence necessary to establish corroboration need not 

be sufficient of itself to establish beyond a reasonable doubt the truth of facts stated in the admission or confession. 

The independent evidence need raise only an inference of the truth of the essential facts admitted. The amount 

and type of evidence introduced as corroboration is a factor to be considered by the trier of fact in determining 

the weight, if any, to be given to the admission or confession. 

(2)Procedure. The military judge alone shall determine when adequate evidence of corroboration has been 

received. Corroborating evidence usually is to be introduced before the admission or confession is introduced 

but the military judge may admit evidence subject to later corroboration. 

(h) Miscellaneous. 

(1) Oral statements. A voluntary oral confession or admission of the accused may be proved by the testimony 

of anyone who heard the accused make it, even if it was reduced to writing and the writing is not accounted 

for. 

(2) Completeness. If only part of an alleged admission or confession is introduced against the accused, the 

defense, by cross-examination or otherwise, may introduce the remaining portions of the statement. 

(3) Certain admissions by silence. A person's failure to deny an accusation of wrongdoing concerning an 

offense for which at the time of the alleged failure the person was under official investigation or was in 

confinement, arrest, or custody does not support an inference of an admission of the truth of the accusation. 
M.R.E. 305(g)(1) 

Rule 305. Warnings about rights 

(a) General rule. A statement obtained in violation of this rule is involuntary and shall be treated under Mil. R. 

Evid. 304. 

(b)Dejnitions. As used in this rule: 

(1) Person subject to the code. A "person subject to the code" includes a person acting as a knowing agent 

of a military unit or of a person subject to the code. 

(2) Interrogation. "Interrogation" includes any formal or informal questioning in which an incriminating 

response either is sought or is a reasonable consequence of such questioning. 

(c) Warnings concerning the accusation, right to remain silent, and use of statements. A person subject to the 

code who is required to give warnings under Article 31 may not interrogate or request any statement from an 

accused or a person suspected of an offense without first: 

(1) informing the accused or suspect of the nature of the accusation; 

(2) advising the accused or suspect that the accused or suspect has the right to remain silent; and 

(3) advising the accused or suspect that any statement made may be used as evidence against the accused 

or suspect in a trial by court-martial. 

(d) Counsel rights and warnings. 

(1) General rule. When evidence of a testimonial or communicative nature within the meaning of the Fifth 

Amendment to the constitution of the United States either is sought or is a reasonable consequence of an 

interrogation, an accused or a person suspected of an offense is entitled to consult with counsel as provided by 

paragraph (2) of this subdivision, to have such counsel present at the interrogation, and to be warned of these 

rights prior to the interrogation if- 

\ (A) The interrogation is conducted by a person subject to the code who is required to give warnings 

under Article 31 and the accused or suspect is in custody, could reasonably believe himself or herself 

to be in custody, or is otherwise deprived of his or her freedom of action in any significant way; or 

(B) 	The interrogation is conducted by a person subject to the code acting in a law enforcement capacity, 

or an agent of such a person, the interrogation is conducted subsequent to preferral of charges or the 

imposition of pretrial restraint under R.C.M. 304, and the interrogation concerns the offenses or 

matters that were the subject of the preferral of charges or were the cause of the imposition of pretrial 

restraint. 

(2) Counsel. When a person entitled to counsel under this rule requests counsel, a judge advocate or an 

individual certified in accordance with Article 27(b) shall be provided by the United States at no expense to the 

person and without regard to the person's indigency or lack thereof before the interrogation 'may proceed. In 

addition to counsel supplied by the United States, the person may retain civilian counsel at no expense to the 

United States. Unless otherwise provided by regulations of the Secretary concerned, an accused or suspect does 

not have a right under this rule to have military counsel of his or her own selection. 

(e) Notice to Counsel. When a person subject to the code who is required to give warnings under subdivision 

(c) intends to question an accused or person suspected of an offense and knows or relibonably should know that 

counsel either has been appointed for or retained by the accused or suspect with respect to that offense, the 

counsel must be notified of the intended interrogation and given a reasonable time in which to attend before the 

interrogation may proceed. 

(f) Exercise of rights. If a person chooses to exercise the privilege against self-incrimination or the right to 

counsel under this rule, questioning must cease immediately. 

(g) Waiver. 

(1) General rule. After receiving applicable warnings under this rule, a person may waive the rights described 

therein and in Mil. R. Evid. 301 and make a statement. The waiver must be made freely, knowingly, and 

intelligently. A written waiver is not required. The accused or suspect must acknowledge affirmatively that he 
M.R.E. 305(g)(2) 

or she understands the rights involved, affirmatively decline the right to counsel and affirmatively consent to 

making a statement. 

(2) Counsel. If the right to counsel in subdivision (d) is applicable and the accused or suspect does not 

decline affirmatively the right to counsel, the prosecution must demonstrate by a preponderance of the evidence 

that the individual waived the right to counsel. In addition, if the notice to counsel in subdivision (e) is applicable, 

a waiver of the right to counsel is not effective unless the prosecution demonstrates by a preponderance of the 

evidence that reasonable efforts to notify the counsel were unavailing or that the counsel did not attend an 

interrogation scheduled within a reasonable period of time after the required notice was given. 

(h) Nonmilitary interrogations. 

(1) General rule. When a person subject to the code is interrogated by an official or agent of the United 

States, of the District of Columbia, or of a State, Commonwealth, or possession of the United States, or any 

political subdivision of such a State, Commonwealth, or possession, and such official or agent is not required 

to give warnings under subdivision (c), the person's entitlement to rights warnings and the validity of any waiver 

of applicable rights shall be determined by the principles of law generally recognized in the trial of criminal 

cases in the United States district courts involving similar interrogations. 

(2) Foreign interrogations. Neither warnings under subdivisions (c) or (d), nor notice to counsel under 

subdivision (e) are required during an interrogation conducted abroad by officials of a foreign government or 

their agents unless such interrogation is conducted, instigated, or participated in by military personnel or their 

agents or by those officials or agents listed in subdivision (h)(l). A statement obtained during such an interrogation 

is involuntary within the meaning of Mil. R. Evid. 304(b)(3) if it is obtained through the use of coercion, 

unlawful influence, or unlawful inducement. An interrogation is not "participated in" by military personnel or 

their agents or by the officials or agents listed in subdivision (h)(l) merely because such a person was present 

at an interrogation conducted in a foreign nation by officials of a foreign government or their agents, or because 

such a person acted as an interpreter or took steps to mitigate damage to property or physical harm during the 

foreign interrogation. 

Rule 306. Statements by one of several accused 

When two or more accused are tried at the same trial, evidence of a statement made by one of them which 

is admissible only against him or her or only against some but not all of the accused may not be received in 

evidence unless all references inculpating an accused against whom the statement is inadmissible are deleted 

effectively or the maker of the statement is subject to cross-examination. 

Rule 31 1. Evidence obtained from unlawful searches and seizures 

(a) General rule. Evidence obtained as a result of an unlawful search or seizure made by a person acting in a 

governmental capacity is inadmissible against the accused if: 

(1) Objection. The accused makes a timely motion to suppress or an objection to the evidence under this 

rule; and 

(2)Adequate interest. The accused had a reasonable expectation of privacy in the person, place or property 

searched; the accused had a legitimate interest in the property or evidence seized when challenging a seizure; or 

the accused would otherwise have grounds to object to the search or seizure under the Constitution of the United 

States as applied to members of the armed forces. 

(b) Exception. Evidence that was obtained as a result of an unlawful search or seizure may be used to impeach 

by contradiction the in-court testimony of the accused. 

(c) Nature of search or seizure. A search or seizure is "unlawful" if it was conducted, instigated, or participated 

in by: 

(1) Military personnel. Military personnel or their agents and was in violation of the Constitution of the 

United States as applied to members of the armed forces, an Act of Congress applicable to trials by court-martial 

that requires exclusion of evidence obtained in violation thereof, or Mil. R. Evid. 312-317; 
M.R.E. 311(e)(3) 

(2) Other oficials. Other officials or agents of the United States, of'the District of Columbia, or of a State, 

Commonwealth, or possession of the United States or any political subdivision of such a State, Commonwealth, 

or possession and was in violation of the Constitution of the United States, or is unlawful under the principles 

of law generally applied in the trial of criminal cases in the United States district courts involving a similar 

search or seizure; or 

(3) Oficials of a foreign government. Officials of a foreign government or their agents and was obtained 

as a result of a foreign search or seizure which subjected the accused to gross and brutal maltreatment. 

A search or seizure is not "participated in" merely because a person is present at a search or seizure conducted 

in a foreign nation by officials of a foreign government or their agents, or because a person acted as an interpreter 

or took steps to mitigate damage to property or physical harm during the foreign search or seizure. 

(d) Motions to suppress and objections. 

(1) Disclosure. Prior to arraignment, the prosecution shall disclose to the defense all evidence seized from 

the person or property of the accused, or believed to be owned by the accused, that it intends to offer into 

evidence against the accused at trial. 

(2) Motion or objection. 

(A) When evidence has been disclosed under subdivision (d)(l), any motion to suppress or objection 

under this rule shall be made by the defense prior to submission of a plea. In the absence of such 

motion or objection, the defense may not raise the issue at a later time except as permitted by the 

military judge for good cause shown. Failure to so move or object constitutes a waiver of the motion 

or objection. 

(B) 	If the prosecution intends to offer evidence seized from the person or property of the accused that 

was not disclosed prior to arraignment, the prosecution shall provide timely notice to the military 

judge and to counsel for the accused. The defense may enter an objection at that time and the military 

judge may make such orders as are required in the interest of justice. 

(C) If evidence is disclosed as derivative evidence under this subdivision prior to arraignment, any motion 

to suppress or objection under this rule shall be made in accordance with the procedure for challenging 

evidence under (A). If such evidence has not been so disclosed prior to arraignment, the requirements 

of (B) apply. 

(3) Specificity. The military judge may require the defense to specify the grounds upon which the defense 

moves to suppress or object to evidence. If defense counsel, despite the exercise of due diligence, has been 

unable to interview adequately those persons involved in the search or seizure, the military judge may enter any 

order required by the interests of justice, including authorization for the defense to make a general motion to 

suppress or a general objection. 

(4)Rulings. A motion to suppress or an objection to evidence made prior to plea shall be ruled upon prior 

to plea unless the military judge, for good cause, orders that it be deferred for determination at the trial of the 

general issue or until after findings, but no such determination shall be deferred if a party's right to appeal the 

ruling is affected adversely. Where factual issues are involved in ruling upon such motion or objection, the 

military judge shall state essential findings of fact on the record. 

(e) Burden of proof. 

(1) In general. When a appropriate motion or objection has been made by the defense under subdivision 

(d), the prosecution has the burden of proving by a preponderance of the evidence that the evidence was not 

obtained as a result of an unlawful search or seizure. 

(2)Derivative evidence. Evidence that is challenged under this rule as derivative evidence may be admitted 

against the accused if the military judge finds by a preponderance of the evidence that the evidence was not 

obtained as a result of an unlawful search or seizure. 

(3) Specific motions or objections. When a specific motion or objection has been required under subdivision 

(d)(3), the burden on the prosecution extends only to the grounds upon which the defense moved to suppress or 

object to the evidence. 
M.R.E. 3ll(f) 

(f) Defense evidence. The defense may present evidence relevant to the admissibility of evidence as to which 

there has been an appropriate motion or objection under this rule. An accused may testify for the limited purpose 

of contesting the legality of the search or seizure giving rise to the challenged evidence. Prior to the introduction 

of such testimony by the accused, the defense shall inform the military judge that the testimony is offered under 

this subdivision. When the accused testifies under this subdivision, the accused may be cross-examined only as 

to the matter on which he or she testifies. Nothing said by the accused on either direct or cross-examination may 

be used against the accused for any purpose other than in a prosecution for perjury, false swearing, or the making 

of a false official statement. 

(g) Scope of motions and objections challenging probable cause. 

(1) Generally. If the defense challenges evidence seized pursuant to a search warrant or search authorization 

on the grounds that the warrant or authorization was not based upon probable cause, the evidence relevant to 

the motion is limited to evidence concerning the information actually presented to or otherwise known by the 

authorizing officer, except as provided in paragraph (2). 

(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 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. 

(h) Objections to evidence seized unlawfully. If a defense motion or objection under this rule is sustained in 

whole or in part, the members may not be informed of that fact except insofar as the military judge must instruct 

the members to disregard evidence. 

(i) EfSect of guilty plea. Except as otherwise expressly provided in R.C.M. 910(a)(2), a plea of guilty to an 

offense that results in a finding of guilty waives all issues under the Fourth Amendment to the Constitution of 

the United States and Mil. R. Evid. 311-317 with respect to that offense whether or not raised prior to plea. 

Rule 312. Body views and intrusions 

(a) General rule. Evidence obtained from body views and intrusions conducted in accordance with this rule is 

admissible at trial when relevant and not otherwise inadmissible under these rules. 

(b) Visual examination of the body. 

(1) Consensual. Visual examination of the unclothed body may be made with the consent of the individual 

subject to the inspection in accordance with Mil. R. Evid. 314(e). 

(2) Involuntary. An involuntary display of the unclothed body, including a visual examination of body 

cavities, may be required only if conducted in reasonable fashion and authorized under the following provisions 

of the Military Rules of Evidence: inspections and inventories under Mil. R. Evid. 313; searches under Mil. R. 

Evid. 314(b) and 314(c) if there is a reasonable suspicion that weapons, contraband, or evidence of crime is 

concealed on the body of the person to be searched; searches within jails and similar facilities under Mil. R. 

Evid. 314(h) if reasonably necessq to maintain the security of the institution or its personnel; searches incident 

to lawful apprehension under Mil. R. Evid. 314(g); emergency searches under Mil. R. Evid. 3 14(i); and probable 

cause searches under Mil. R. Evid. 315. An exhination of the unclothed body under this rule should be 

conducted whenever practicable by a person of the same sex as that of the person being examined; provided, 

however, that failure to comply with this requirement does not make an examination an unlawful search within 

the meaning of Mil. R. Evid. 31 1. 

(c) Intrusion into body cavities. A reasonable nonconsensual physical intrusion into the mouth, nose, and ears 

may be made when a visual examination of the body under subdivision (b) is permissible. Nonconsensual 

intrusions into other body cavities may be made: 
M.R.E. 313(b) 

(1) For purposes of seizure. When there is a clear indication that weapons, contraband, or other evidence 

of crime is present, to remove weapons, contraband, or evidence of crime discovered under subdivisions (b) and 

(c)(2) of this rule or under Mil. R. Evid. 316(d)(4)(C) if such intrusion is made in a reasonable fashion by a 

person with appropriate medical qualifications; or 

(2) For purposes of search. To search for weapons, contraband, or evidence of crime if authorized by a 

search warrant or search authorization under Mil. R. Evid. 315 and conducted by a person with appropriate 

medical qualifications. 

Notwithstanding this rule, a search under Mil. R. Evid. 314(h) may be made without a search warrant or 

authorization if such search is based on a reasonable suspicion that the individual is concealing weapons, 

contraband, or evidence of crime. 

(d) Extraction of body fluids. Nonconsensual extraction of body fluids, including blood and urine, may be made 

from the body of an individual pursuant to a search warrant or a search authorization under Mil. R. Evid. 315. 

Nonconsensual extraction of body fluids may be made without such warrant or authorization, notwithstanding 

Mil. R. Evid. 315(g), only when there is clear indication that evidence of crime will be found and that there is 

reason to believe that the delay that would result if a warrant or authorization were sought could result in the 

destruction of the evidence. Involuntary extraction of body fluids under this rule must be done in a reasonable 

fashion by a person with appropriate medical qualifications. 

(e) Other intrusive searches. Nonconsensual intrusive searches of the body made to locate or obtain weapons, 

contraband, or evidence of crime and not within the scope of subdivisions (b) or (c) may be made only upon 

search warrant or search authorization under Mil. R. Evid. 315 and only if such search is conducted in a 

reasonable fashion by a person with appropriate medical qualifications and does not endanger the health of the 

person to be searched. Compelling a person to ingest substances for the purposes of locating the property described 

above or to compel the bodily elimination of such property is a search within the meaning of this section. 

Notwithstanding this rule, a person who is neither a suspect nor an accused may not be compelled to submit to 

an intrusive search of the body for the sole purpose of obtaining evidence of crime. 

(f) Intrusions for valid medical purposes. Nothing in this rule shall be deemed to interfere with the lawful 

authority of .the armed forces to take whatever action may be necessary to preserve the health of a servicemember. 

Evidence or contraband obtained from an examination or intrusion conducted for a valid medical purpose may 

be seized and is not evidence obtained from an unlawful search or seizure within the meaning of Mil. R. Evid. 

311. 

(g) Medical qualijlcations. The Secretary concerned may prescribe appropriate medical qualifications for persons 

who conduct searches and seizures under this rule. 

Rule 313. Inspections and inventories in the armed forces 

(a) General rule. Evidence obtained from inspections and inventories in the armed forces conducted in accordance 

with this rule is admissible at trial when relevant and not otherwise inadmissible under these rules. 

(b) Inspections. An "inspection" is an examination of the whole or part of a unit, organization, installation, 

vessel, aircraft, or vehicle, including an examination conducted at entrance and exit points, conducted as an 

incident of command the primary purpose of which is to determine and to ensure the security, military fitness, 

or good order and discipline of the unit, organization, installation, vessel, aircraft, or vehicle. An inspection 

may include but is not limited to an examination to determine and to ensure that any or all of the following 

requirements are met: that the command is properly equipped, functioning properly, maintaining proper standards 

of readiness, sea or airworthiness, sanitation and cleanliness, and that personnel are present, fit, and ready for 

duty. An inspection also includes an examination to locate and confiscate unlawful weapons and other contraband. 

An order to produce body fluids, such as urine, is permissible in accordance with this rule. An examination 

made for the primary purpose of obtaining evidence for use in a trial by court-martial or in other disciplinary 

proceedings is not an inspection within the meaning of this rule. If a purpose of an examination is to locate 

weapons or contraband, and if: (1) the examination was directed immediately following a report of a specific 

offense in the unit, organization, installation, vessel, aircraft, or vehicle and was not .previously scheduled; (2) 

specific individuals are selected for examination; or (3) persons examined are subjected to substantially different 

intrusions during the same examination, the prosecution must prove by clear and convincing evidence that the 
M.R.E. 313(c) 

examination was an inspection within the meaning of this rule. Inspections shall be conducted in a reasonable 

fashion and shall comply with Mil. R. Evid. 312, if applicable. Inspections may utilize any reasonable natural 

or technological aid and may be conducted with or without notice to those inspected. Unlawful weapons, 

contraband, or other evidence of crime located during an inspection may be seized. 

(c) Inventories. Unlawful weapons, contraband, or other evidence of crime discovered in the process of an 

inventory, the primary purpose of which is administrative in nature, may be seized. Inventories shall be conducted 

in a reasonable fashion and shall comply with Mil. R. Evid. 312, if applicable. An examination made for the 

primary purpose of obtaining evidence for use in a trial by court-martial or in other disciplinary proceedings is 

not an inventory within the meaning of this rule. 

Rule 314. Searches not requiring probable cause 

(a) General rule. Evidence obtained from reasonable searches not requiring probable cause conducted pursuant 

to this rule is admissible at trial when relevant and not otherwise inadmissible under these rules. 

(b) Border searches. Border searches for customs or immigration purposes may be conducted when authorized 

by Act of Congress. 

(c) Searches upon entry to or exit from United States installations, aircraft, and vessels abroad. In addition to 

the authority to conduct inspections under Mil. R. Evid. 313(b), a commander of a United States military 

installation, enclave, or aircraft on foreign soil, or in foreign or international airspace, or a United States vessel 

in foreign or international waters, may authorize appropriate personnel to search persons or the property of such 

persons upon entry to or exit from the installation, enclave, aircraft, or vessel to ensure the security, military 

fitness, or good order and discipline of the command. Such searches may not be conducted at a time or in a 

manner contrary to an express provision of a treaty or agreement to which the United States is a party. Failure 

to comply with a treaty or agreement, however, does not render a search unlawful within the meaning of Mil. 

R. Evid. 31 1. A search made for the primary purpose of obtaining evidence for use in a trial by court-martial 

or other disciplinary proceeding is not authorized by this subdivision. 

(d) Searches of government property. Government property may be searched under this .rule unless the person to 

whom the property is issued or assigned has a reasonable expectation of privacy therein at the time of the search. 

Under normal circumstances, a person does not have a reasonable expectation of privacy in government property 

that is not issued for personal use. Wall or floor lockers in living quarters issued for the purpose of storing personal 

possessions normally are issued for personal use; but the determination as to whether a person has a reasonable 

expectation of privacy in government property issued for personal use depends on the facts and circumstances at the 

time of the search. 

(e) Consent searches. 

(1) General rule. Searches may be conducted of any person or property with lawful consent. 

(2) Who may consent. A person may consent to a search of his or her person or property, or both, unless 

control over such property has been given to another. A person may grant consent to search property when the 

person exercises control over that property. 

(3) Scope of consent. Consent may be limited in any way by the person granting consent, including limitations 

in terms of time, place, or property and may be withdrawn at any time. 

(4)Voluntariness. To be valid, consent must be given voluntarily. Voluntariness is a question to be determined 

from all the circumstances. Although a person's knowledge of the right to refuse to give consent is a factor to 

be considered in determining voluntariness, the prosecution is not required to demonstrate such knowledge as a 

prerequisite to establishing a voluntary consent. Mere submission to the color of authority of personnel performing 

law enforcement duties or acquiescence in an announced or indicated purpose to search is not a voluntary consent. 

(5) Burden of proof. Consent must be shown by clear and convincing evidence. The fact that a person was 

in custody while granting consent is a factor to be considered in determining the voluntariness of the consent, 

but it does not affect the burden of proof. 

(f) Searches incident to a lawful stop. 

(1) Stops. A person authorized to apprehend under R.C.M. 302(b) and others performing law enforcement 
M.R.E. 31 5(c)(l) 


duties may stop another person temporarily when the person making the stop has information or observes unusual 

conduct that leads him or her reasonably to conclude in light of his or her experience that criminal activity may 

be afoot. The purpose of the stop must be investigatory in nature. 

(2) Frisks. When a lawful stop is performed, the person stopped may be frisked for weapons when that 

person is reasonably believed to be armed and presently dangerous. Contraband or evidence located in the process 

of a lawful frisk may be seized. 

(3) Motor vehicles. When a person lawfully stopped is the driver or a passenger in a motor vehicle, the 

passenger compartment of the vehicle may be searched for weapons if the official who made the stop has a 

reasonable belief that the person stopped is dangerous and that the person stopped may gain immediate control 

of a weapon. 

(g) Searches incident to a lawful apprehension. 

(1) General rule. A person who has been lawfully apprehended may be searched. 

(2) Search for weapons and destructible evidence. A search may be conducted for weapons or destructible 

evidence in the area within the immediate control of a person who has been apprehended. The area within the 

person's "immediate control" is the area which the individual searching could reasonably believe that the person 

apprehended could reach with a sudden movement to obtain such property; provided, that the passenger compartment of an automobile, and containers within the passenger compartment may be searched as a contemporaneous incident of the apprehension of an occupant of the automobile, regardless whether the person apprehended 

has been removed from the vehicle. 

(3) Examination for other persons. When an apprehension takes place at a location in which other persons 

reasonably might be present who might interfere with the apprehension or endanger those apprehending, a 

reasonable examination may be made of the general area in which such other persons might be located. 

(h) Searches within jails, confinement facilities, or similar facilities. Searches within jails, confinement facilities, 

or similar facilities may be authorized by persons with authority over the institution. 

(i) Emergency searches to save life or for related purposes. In emergency circumstances to save life or for a 

related purpose, a search may be conducted of persons or property in a good faith effort to render immediate 

medical aid, to obtain information that will assist in the rendering of such aid, or to prevent immediate or ongoing 

personal injury. 

(j)Searches of open fields or woodlands. A search of open fields or woodlands is not an unlawful search within 

the meaning of Mil. R. Evid. 3 1 1. 

(k) Other searches. A search of a type not otherwise included in this rule and not requiring probable cause under 

Mil. R. Evid. 315 may be conducted when permissible under the Constitution of the United States as applied 

to members of the armed forces. 

Rule 315. Probable cause searches 

(a) General rule. Evidence obtained from searches requiring probable cause conducted in accordance with this 

rule is admissible at trial when relevant and not otherwise inadmissible under these rules. 

(b) Definitions. As used in these rules: 

(1) Authorization to search. An "authorization to search" is an express permission, written or oral, issued 

by competent military authority to search a person or an area for specified property or evidence or for a specific 

person and to seize such property, evidence, or person. It may contain an order directing subordinate personnel 

to conduct a search in a specified manner. 

(2) Search warrant. A "search warrant" is an express permission to search and seize issued by competent 

civilian authority. 

(c) Scope of authorization. A search authorization may be issued under this rule for a search of: 

(1) Persons. The person of anyone subject to military law or the law of war wherever found; 
M.R.E. 315(c)(2) 

(2) Military property. Military property of the United States or of nonappropriated fund activities of an 

armed force of the United States wherever located; 

(3) Persons andproperty within military control. Persons or property situated on or in a military installation, 

encampment, vessel, aircraft, vehicle, or any other location under military control, wherever located; or 

(4) Nonmilitary property within a foreign country. 

(A) Property owned, used, occupied by, or in the possession of an agency of the United States other 

than the Department of Defense when situated in a foreign country. A search of such property may 

not be conducted without the concurrence of an appropriate representative of the agency concerned. 

Failure to obtain such concurrence, however, does not render a search unlawful within the meaning 

of Mil. R. Evid. 311. 

(B) Other property situated in a foreign country. If the United States is a party to a treaty or agreement 

that governs a search in a foreign country, the search shall be conducted in accordance with the 

treaty or agreement. If there is no treaty or agreement, concurrence should be obtained from an 

appropriate representative of the foreign country with respect to a search under paragraph (4)(B) of 

this subdivision. Failure to obtain such concurrence or noncompliance with a treaty or agreement, 

however, does not render a search unlawful within the meaning of Mil. R. Evid. 3 11. 

(d) Power to authorize. Authorization to search pursuant to this rule may be granted by an impartial individual 

in the following categories: 

(1) Commander. A commander or other person serving in a position designated by the Secretary concerned 

as either a position analogous to an officer in charge or a position of command, who has control over the place 

where the property or person to be searched is situated or found, or, if that place is not under military control, 

having control over persons subject to military law or the law of war; or 

(2) Military judge. A military judge or magistrate if authorized under regulations prescribed by the Secretary 

of Defense or the Secretary concerned. 

An otherwise impartial authorizing official does not lose that character merely because he or she is present at 

the scene of a search or is otherwise readily available to persons who may seek the issuance of a search 

authorization; nor does such an official lose impartial character merely because the official previously and 

impartially authorized investigative activities when such previous authorization is similar in intent or function 

to a pretrial authorization made by the United States district courts. 

(e) Power to search. Any commissioned officer, warrant officer, petty officer, noncommissioned officer, and, 

when in the execution of guard or police duties, any criminal investigator, member of the Air Force security 

police, military police, or shore patrol, or person designated by proper authority to perform guard or police 

duties, or any agent of any such person, may conduct or authorize a search when a search authorization has been 

granted under this rule or a search would otherwise be proper under subdivision (g). 

(f) Basis for Search authorizations. 

(1) Probable cause requirement. A search authorization issued under this rule must be based upon probable 

cause. 

(2) Probable cause determination. Probable cause to search exists when there is a reasonable belief that 

the person, property, or evidence sought is located in the place or on the person to be searched. A search 

authorization may be based upon hearsay evidence in whole or in part. A determination of probable cause under 

this rule shall be based upon any or all of the following: 

(A) Written statements communicated to the authorizing officer; 

(B) Oral statements communicated to the authorizing official in person, via telephone, or by other 

appropriate means of communication; or 

(C) Such information as may be known by the authorizing official that would not preclude the officer 

from acting in an impartial fashion. 

The Secretary of Defense or the Secretary concerned may prescribe additional requirements. 
M.R.E. 316(d)(l) 

(g) Exigencies. A search warrant or search authorization is not required under this rule for a search based on 

probable cause when: 

(1) Insufficient time. There is a reasonable belief that the delay necessary to obtain a search warrant or 

search authorization would result in the removal, destruction, or concealment of the property or evidence sought; 

(2) Lack of communications. There is a reasonable military operational necessity that is reasonably believed 

to prohibit or prevent communication with a person empowered to grant a search warrant or authorization and 

there is a reasonable belief that the delay necessary to obtain a search warrant or search authorization would 

result in the removal, destruction, or concealment of the property or evidence sought; 

(3) Search of operable vehicle. An operable vehicle is to be searched, except in the circumstances where 

a search warrant or authorization is required by the Constitution of the United States, this Manual, or these rules; 

or 

(4) Not required by the Constitution. A search warrant or authorization is not otherwise required by the 

Constitution of the United States as applied to members of the armed forces. 

For purpose of this rule, a vehicle is "operable" unless a reasonable person would have known at the time 

of search that the vehicle was not functional for purposes of transportation. 

(h) Execution. 

(1) Notice. If the person whose property is to be searched is present during a search conducted pursuant to 

a search authorization granted under this rule, the person conducting the search should when possible notify him 

or her of the act of authorization and the general substance of the authorization. Such notice may be made prior 

to or contemporaneously with the search. Failure to provide such notice does not make a search unlawful within 

the meaning of Mil. R. Evid. 31 1. 

(2) Inventory. Under regulations prescribed by the Secretary concerned, and with such exceptions as may 

be authorized by the Secretary, an inventory of the property seized shall be made at the time of a seizure under 

this rule or as soon as practicable thereafter. At an appropriate time, a copy of the inventory shall be given to 

a person from whose possession or premises the property was taken. Failure to make an inventory, furnish a 

copy thereof, or otherwise comply with this paragraph does not render a search or seizure unlawful within the 

meaning of Mil. R. Evid. 3 11. 

(3) Foreign searches. Execution of a search authorization outside the United States and within the jurisdiction 

of a foreign nation should be in conformity with existing agreements between the United States and the foreign 

nation. Noncompliance with such an agreement does not make an otherwise lawful search unlawful. 

(4) Search warrants. Any civilian or military criminal investigator authorized to request search warrants 

pursuant to applicable law or regulation is authorized to serve and execute search warrants. The execution of a 

search warrant affects admissibility only insofar as exclusion of evidence is required by the Constitution of the 

United States or an applicable Act of Congress. 

Rule 316. Seizures 

(a) General rule. Evidence obtained from seizures conducted in accordance with this rule is admissible at trial 

if the evidence was not obtained as a result of an unlawful search and if the evidence is relevant and not otherwise 

inadmissible under these rules. 

(b) Seizure of property. Probable cause to seize property or evidence exists when there is a reasonable belief 

that the property or evidence is an unlawful weapon, contraband, evidence of crime, or might be used to resist 

apprehension or to escape. 

(c) Apprehension. Apprehension is governed by R.C .M. 302. 

(d) Seizure of property or evidence. 

(1) Abandoned property. Abandoned property may be seized without probable cause and without a search 

warrant or search authorization. Such seizure may be made by any person. 
M.R.E. 316(d)(2) 

(2) Consent. Property or evidence may be seized with consent consistent with the requirements applicable 

to consensual searches under Mil. R. Evid. 314. 

(3) Government property. Government property may be seized without probable cause and without a search 

warrant or search authorization by any person listed in subdivision (e), unless the person to whom the property 

is issued or assigned has a reasonable expectation of privacy therein, as provided in Mil. R. Evid. 314(d), at 

the time of the seizure. 

(4)Other property. Property or evidence not included in paragraph (1)-(3) may be seized for use in evidence 

by any person listed in subdivision (e) if: 

(A) Authorization. The person is authorized to seize the property or evidence by a search warrant or a 

search authorization under Mil. R. Evid. 315; 

(B) Exigent circumstances. The person has probable cause to seize the property or evidence and under 

Mil. R. Evid. 315(g) a search warrant or search authorization is not required; or 

(C) Plain view. The person while in the course of otherwise lawful activity observes in a reasonable 

fashion property or evidence that the the person has probable cause to seize. 

(5) Temporary detention. Nothing in this rule shall prohibit temporary detention of property on less than 

probable cause when authorized under the Constitution of the United States. 

(e) Power to seize. Any commissioned officer, warrant officer, petty officer, noncommissioned officer, and, 

when in the execution of guard or police duties, any criminal investigator, member of the Air Force security 

police, military police, or shore patrol, or individual designated by proper authority to perform guard or police 

duties, or any agent of any such person, may seize property pursuant to this rule. 

(0Other seizures. A seizure of a type not otherwise included in this rule may be made when permissible under 

the Constitution of the United States as applied to members of the armed forces. 

Rule 317. Interception of wire and oral communications 

(a) General rule. Wire or oral communications constitute evidence obtained as a result of an unlawful search or 

seizure within the meaning of Mil. R. Evid. 311 when such evidence must be excluded under the Fourth 

Amendment to the Constitution of the United States as applied to members of the armed forces or if such evidence 

must be excluded under a statute applicable to members of the armed forces. 

(b) Authorization for judicial applications in the United States. Under 18 U .S. C. $ 25 16(1), the Attorney General, 

or any Assistant Attorney General specially designated by the Attorney General may authorize an application to 

a federal judge of competent jurisdiction for, and such judge may grant in conformity with 18 U.S.C. § 2518, 

an order authorizing or approving the interception of wire or oral communications by the Department of Defense, 

the Department of Transportation, or any Military Department for purposes of obtaining evidence concerning 

the offenses enumerated in 18 U.S.C. 8 2516(1), to the extent such offenses are punishable under the Uniform 

Code of Military Justice. 

(c) Regulations. Notwithstanding any other provision of these rules, members of the armed forces or their agents 

may not intercept wire or oral communications for law enforcement purposes unless such interception: 

(1) takes place in the United States and is authorized under subdivision (b); 

(2) takes place outside the United States and is authorized under regulations issued by the Secretary of 

Defense or the Secretary concerned; or 

(3) is authorized under regulations issued by the Secretary of Defense or the Secretary concerned and is not 

unlawful under 18 U.S.C. § 251 1. 

Rule 321. Eyewitness identification 

(a) General rule. 

(1) Admissibility. Testimony concerning a relevant out of court identification by any person is admissible, 

subject to an appropriate objection under this rule, if such testimony is otherwise admissible under these rules. 
M.R.E. 321 (c)(2)(B) 

The witness making the identification and any person who has observed the previous identification may testify 

concerning it. When in testimony a witness identifies the accused as being, or not being, a participant in an 

offense or makes any other relevant identification concerning a person in the courtroom, evidence that on a 

previous occasion the witness made a similar identification is admissible to corroborate the witness' testimony 

as to identity even if the credibility of the witness has not been attacked directly, subject to appropriate objection 

under this rule. 

(2) Exclusionary rule. An identification of the accused as being a participant in an offense, whether such 

identification is made at the trial or otherwise, is inadmissible against the accused if: 

(A) The accused makes a timely motion to suppress or an objection to the evidence under this rule and 

if the identification is the result of an unlawful lineup or other unlawful identification process conducted 

by the United States or other domestic authorities; or 

(B) Exclusion of the evidence is required by the due process clause of the Fifth Amendment to the 

Constitution of the United States as applied to members of the armed forces. Evidence other than 

an identification of the accused that is obtained as a result of the unlawful lineup or unlawful 

identification process is inadmissible against the accused if the accused makes a timely motion to 

suppress or an objection to the evidence under this rule and if exclusion of the evidence is required 

under the Constitution of the United States as applied to members of the armed forces. 

(b) Definition of ''unlawful''. 

(1) Lineups and other identification processes. A lineup or other identification process is "unlawful" if the 

identification is unreliable. An identification is unreliable if the lineup or other identification process, under the 

circumstances, is so suggestive as to create a substantial likelihood of misidentification. 

(2) Lineups: right to counsel. A lineup is "unlawful" if it is conducted in violation of the following rights 

to counsel: 

(A)Military lineups. An accused or suspect is entitled to counsel if, after preferral of charges or imposition 

of pretrial restraint under R.C.M. 304 for the offense under investigation, the accused is subjected 

by persons subject to the code or their agents to a lineup for the purpose of identification. When a 

person entitled to counsel under this rule requests counsel, a judge advocate or a person certified in 

accordance with Article 27(b) shall be provided by the United States at no expense to the accused 

or suspect and without regard to indigency or lack thereof before the lineup may proceed. The accused 

or suspect may waive the rights provided in this rule if the waiver is freely, knowingly, and intelligently 

made. 

(B) Nonmilitary lineups. When a person subject to the code is subjected to a lineup for purposes of 

identification by an official or agent of the United States, of the District of Columbia, or of a State, 

Commonwealth, or possession of the United States, or any political subdivision of such a State, 

Commonwealth, or possession, and the provisions of paragraph (A) do not apply, the person's 

entitlement to counsel and the validity of any waiver of applicable rights shall be determined by the 

principles of law generally recognized in the trial of criminal cases in the United States district courts 

involving similar lineups. 

(c)Motions to suppress and objections. 

(1) Disclosure. Prior to arraignment, the prosecution shall disclose to the defense all evidence of a prior 

identification of the accused as a lineup or other identification process that it intends to offer into evidence 

against the accused at trial. 

(2)Motion or objection. 

(A) When such evidence has been disclosed, any motion to suppress or objection under this rule shall 

be made by the defense prior to submission of a plea. In the absence of such motion or objection, 

the defense may not raise the issue at a later time except as permitted by the military judge for good 

cause shown. Failure to so move constitutes a waiver of the motion or objection. 

(B) If the prosecution intends to offer such evidence and the evidence was not disclosed prior to arraign- 
M.R.E. 321(c)(2)(C) 

ment, the prosecution shall provide timely notice to the military judge and counsel for the accused. 

The defense may enter an objection at that time and the military judge may make such orders as are 

required in the interests of justice. 

(C) If evidence is disclosed as derivative evidence under this subdivision prior to arraignment, any motion 

to suppress or objection under this rule shall be made in accordance with the procedure for challenging 

evidence under (A). If such evidence has not been so disclosed prior to arraignment, the requirements 

of (B) apply. 

(3) Spec$city. The military judge may require the defense to specify the grounds upon which the defense 

moves to suppress or object to evidence. If defense counsel, despite the exercise of due diligence, has been 

unable to interview adequately those persons involved in the lineup or other identification process, the military 

judge may enter any order required by the interests of justice, including authorization for the defense to make 

a general motion to suppress or a general objection. 

(d) Burden of proof. When a specific motion or objection has been required under subdivision (c)(3), the burden 

on the prosecution extends only to the grounds upon which the defense moved to suppress or object to the 

evidence. When an appropriate objection under this rule has been made by the defense, the issue shall be 

determined by the military judge as follows: 

(1) Right to counsel. When an objection raises the right to presence of counsel under this rule, the prosecution 

must prove by a preponderance of the evidence that counsel was present at the lineup or that the accused, having 

been advised of the right to the presence of counsel, voluntarily and intelligently waived that right prior to the 

lineup. When the military judge determines that an identification is the result of a lineup conducted without the 

presence of counsel or an appropriate waiver, any later identification by one present at such unlawful lineup is 

also a result thereof unless the military judge determines that the contrary has been shown by clear and convincing 

evidence. 

(2) Unreliable ident$cation. When an objection raises the issue of an unreliable identification, the prosecution must prove by a preponderance of the evidence that the identification was reliable under the circumstances; 

provided, however, that if the military judge finds the evidence of identification inadmissible under this subdivision, a later identification may be admitted if the prosecution proves by clear and convincing evidence that 

the later identification is not the result of the inadmissible identification. 

(e) Defense evidence. The defense may present evidence relevant to the issue of the admissibility of evidence 

as to which there has been an appropriate motion or objection under this rule. An accused may testify for the 

limited purpose of contesting the legality of the lineup or identification process giving rise to the challenged 

evidence. Prior to the introduction of such testimony by the accused, the defense shall inform the military judge 

that the testimony is offered under this subdivision. When the accused testifies under this subdivision, the accused 

may be cross-examined only as to the matter on which he or she testifies. Nothing said by the accused on either 

direct or cross-examination may be used against the accused for any purpose other than in a prosecution for 

perjury, false swearing, or the making of a false official statement. 

(f) Rulings. A motion to suppress or an objection to evidence made prior to plea under this rule shall be ruled 

upon prior to plea unless the military judge, for good cause, orders that it be deferred for determination at the 

trial of the general issue or until after findings, but no such determination shall be deferred if a party's right to 

appeal the ruling is affected adversely. Where factual issues are involved in ruling upon such motion or objection, 

the military judge shall state his or her essential findings of fact on the record. 

(g) EfSect of guilty pleas. Except as otherwise expressly provided in R.C.M. 910(a)(2), a plea of guilty to an 

offense that results in a finding of guilty waives all issues under this rule with respect to that offense whether 

or not raised prior to the plea. 

Section IV. RELEVANCY AND ITS LIMITS 

Rule 401. Definition of "relevant evidence" 

"Relevant evidence" means evidence having any tendency to make the existence of any fact that is of 
M.R.E. 406 

consequence to the determination of the action more probable or less probable than it would be without the 

evidence. 

Rule 402. Relevant evidence generally admissible; irrelevant evidence inadmissible 

All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States as 

applied to members of the armed forces, the code, these rules, this Manual, or any Act of Congress applicable 

to members of the armed forces. Evidence which is not relevant is not admissible. 

Rule 403. Exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time 

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger 

of unfair prejudice, confusion of the issues, or misleading the members, or by considerations of undue delay, 

waste of time, or needless presentation of cumulative evidence. 

Rule 404. Character evidence not admissible to prove conduct; exceptions; other crimes 

(a) Character evidence generally. Evidence of a person's character or a trait of a person's character is not 

admissible for the purpose of proving that the person acted in conformity therewith on a particular occasion, 

except: 

(1) Character of the accused. Evidence of a pertinent trait of the character of the accused offered by an 

accused, or by the prosecution to rebut the same; 

(2) Character of victim. Evidence of a pertinent trait of character of the victim of the crime offered by an 

accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim 

offered by the prosecution in a homicide or assault case to rebut evidence that the victim was an aggressor; 

(3) Character of witness. Evidence of the character of a witness, as provided in Mil. R. Evid. 607, 608, 

and 609. 

(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs or acts is not admissible to prove the 

character of a person in order to show that the person acted in conformity therewith. It may, however, be 

admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, 

or absence of mistake or accident. 

Rule 405. Methods of proving character 

(a) Reputation or opinion. In all cases in which evidence of character or a trait of character of a person is 

admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On 

cross-examination, inquiry is allowable into relevant specific instances of conduct. 

(b) Specific instances of conduct. In cases in which character or a trait of character of a person is an essential 

element of an offense or defense, proof may also be made of specific instances of the person's conduct. 

(c) AfJidavits. The defense may introduce affidavits or other written statements of persons other than the accused 

concerning the character of the accused. If the defense introduces affidavits or other written statements under 

this subdivision, the prosecution may, in rebuttal, also introduce affidavits or other written statements regarding 

the character of the accused. Evidence of this type may be introduced by the defense or prosecution only if, 

aside from being contained in an affidavit or other written statement, it would otherwise be admissible under 

these rules. 

(d) Definitions. "Reputation" means the estimation in which a person generally is held in the community in 

which the person lives or pursues a business or profession. "Community" in the armed forces includes a post, 

camp, ship, station, or other military organization regardless of size. 

Rule 406. Habit; routine practice 

Evidence of the habit of a person or of the routine practice of an organization, whether comoborated or not 

and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization 

on a particular occasion was in conformity with the habit or routine practice. 
M.R.E. 407 

Rule 407. Subsequent remedial measures 

When, after an event, measures are taken which, if taken previously, would have made the event less likely 

to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in 

connection with the event. This rule does not require the exclusion of evidence of subsequent measures when 

offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if 

controverted, or impeachment. 

Rule 408. Compromise and offer to compromise 

Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to 

accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as 

to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. 

Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does 

not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of 

compromise negotiations. This rule also does not require exclusion when the evidence is offered for another 

purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an 

effort to obstruct a criminal investigation or prosecution. 

Rule 409. Payment of medical and similar expenses 

Evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by 

an injury is not admissible to prove liability for the injury. 

Rule 410. Inadmissibility of pleas, plea discussions, and related statements 

(a) In general. Except as otherwise provided in this rule, evidence of the following is not admissible in any 

court-martial proceeding against the accused who made the plea or was a participant in the plea discussions: 

(1) a plea of guilty which was later withdrawn; 

(2) a plea of nolo contendere; 

(3) any statement made in the course of any judicial inquiry regarding either of the foregoing pleas; or 

(4) any statement made in the course of plea discussions with the convening authority, staff judge advocate, 

trial counsel or other counsel for the Government which do not result in a plea of guilty or which result in a 

plea of guilty later withdrawn. 

However, such a statement is admissible (i) in any proceeding wherein another statement made in the course of 

the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it, or (ii) in a court-martial proceeding for perjury or false statement if the statement was 

made by the accused under oath, on the record and in the presence of counsel. 

(b) Definitions.A "statement made in the course of plea discussions" includes a statement made by the accused 

solely for the purpose of requesting disposition under an authorized procedure for administrative action in lieu 

of trial by court-martial; "on the record" includes the written statement submitted by the accused in furtherance 

of such request. 

Rule 411. Liability insurance 

Evidence that a person was or was not insured against liability is not admissible upon the issue whether the 

person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance 

against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or 

prejudice of a witness. 

Rule 412. Nonconsensual sexual offenses; relevance of victim's past behavior 

(a) Notwithstanding any other provision of these rules or this Manual, in a case in which a person is accused 

of a nonconsensual sexual offense, reputation or opinion evidence of the past sexual behavior of an alleged 

victim of such nonconsensual sexual offense is not admissible. 
M.R.E. 501(b)(3) 

(b) Notwithstanding any other provision of these rules or this Manual, in a case in which a person is accused 

of a nonconsensual sexual offense, evidence of a victim's past sexual behavior other than reputation or opinion 

evidence is also not admissible, unless such evidence other than reputation or opinion evidence is- 

(1) admitted in accordance with subdivisions (c)(l) and (c)(2) and is constitutionally required to be admitted; 

or 

(2) admitted in accordance with subdivision (c) and is evidence of- 

(A) past sexual behavior with persons other than the accused, offered by the accused upon the issue of 

whether the accused was or was not, with respect to the alleged victim, the source of semen or injury; 

or 

(B) 	past sexual behavior with the accused and is offered by the accused upon the issue of whether the 

alleged victim consented to the sexual behavior with respect to which the nonconsensual sexual 

offense is alleged. 

(c)(l) If the person accused of committing a nonconsensual sexual offense intends to offer under subdivision (b) 

evidence of specific instances of the alleged victim's past sexual behavior, the accused shall serve notice thereof 

on the military judge and the trial counsel. 

(2) The notice described in paragraph (1) shall be accompanied by an offer of proof. If the military judge 

determines that the offer of proof contains evidence described in subdivision (b), the military judge shall conduct 

a hearing, which may be closed, to determine if such evidence is admissible. At such hearings the parties may 

call witnesses, including the alleged victim, and offer relevant evidence. In a case before a court-martial composed 

of a military judge and members, the military judge shall conduct such hearings outside the presence of the 

members pursuant to Article 39(a). 

(3) If the military judge determines on the basis of the hearing described in paragraph (2) that the evidence 

which the accused seeks to offer is relevant and that the probative value of such evidence outweighs the danger of 

unfair prejudice, such evidence shall be admissible in the trial to the extent an order made by the military judge 

specifies evidence which may be offered and areas with respect to which the alleged victim may be examined or 

cross-examined. 

(d) For purposes of this rule, the term "past sexual behavior" means sexual behavior other than the sexual 

behavior with respect to which a nonconsensual sexual offense is alleged. 

(e) A "nonconsensual sexual offense" is a sexual offense in which consent by the victim is an affirmative defense 

or in which the lack of consent is an element of the offense. This term includes rape, forcible sodomy, assault 

with intent to commit rape or forcible sodomy, indecent assault, and attempt to commit such offenses. 

Section V. PRIVILEGES 

Rule 501. General rule 

(a) A person may not claim a privilege with respect to any matter except as required by or provided for in: 

(1) The Constitution of the United States as applied to members of the armed forces; 

(2) An Act of Congress applicable to trials by courts-martial; 

(3) These rules or this Manual; or 

(4) The principles of common law generally recognized in the trial of criminal cases in the United States 

district courts pursuant to rule 501 of the Federal Rules of Evidence insofar as the application of such principles 

in trials by courts-martial is practicable and not contrary to or inconsistent with the code, these rules, or this 

Manual. 

(b) A claim of privilege includes, but is not limited to, the assertion by any person of a privilege to: 

(1) Refuse to be a witness; 

(2) Refuse to disclose any matter; 

(3) Refuse to produce any object or writing; or 
M.R.E. 501(b)(4) 

(4) Prevent another from being a witness or disclosing any matter or producing any object or writing. 

(c) The term "person" includes an appropriate representative of the Federal Government, a State, or political 

subdivision thereof, or any other entity claiming to be the holder of a privilege. 

(d) Notwithstanding any other provision of these rules, information not otherwise privileged does not become 

privileged on the basis that it was acquired by a medical officer or civilian physician in a professional capacity. 

Rule 502. Lawyer-client privilege 

(a) General rule of privilege. A client has a privilege to refuse to disclose and to prevent any other person from 

disclosing confidential communications made for the purpose of facilitating the rendition of professional legal 

services to the client, (1) between the client or the client's representative and the lawyer or the lawyer's 

representative, (2) between the lawyer and the lawyer's representative, (3) by the client or the client's lawyer 

to a lawyer representing another in a matter of common interest, (4) between representatives of the client or 

between the client and a representative of the client, or (5) between lawyers representing the client. 

(b) Definitions. As used in this rule: 

(1) A "client" is a person, public officer, corporation, association, organization, or other entity, either 

public or private, who receives professional legal services from a lawyer, or who consults a lawyer with a view 

to obtaining professional legal services from the lawyer. 

(2) A "lawyer" is a person authorized, or reasonably believed by the client to be authorized, to practice 

law; or a member of the armed forces detailed, assigned, or otherwise provided to represent a person in a courtmartial case or in any military investigation or proceeding. The term "lawyer" does not include a member of 

the armed forces serving in a capacity other than as a judge advocate, legal officer, or law specialist as defined 

in Article 1, unless the member: (a) is detailed, assigned, or otherwise provided to represent a person in a courtmartial case or in any military investigation or proceeding; (b) is authorized by the armed forces, or reasonably 

believed by the client to be authorized, to render professional legal services to members of the armed forces; or 

(c) is authorized to practice law and renders professional legal services during off-duty employment. 

(3) A "representative" of a lawyer is a person employed by or assigned to assist a lawyer in providing 

professional legal services. 

(4) A communication is "confidential7' if not intended to be disclosed to third persons other than those to 

whom disclosure is in furtherance of the rendition of professional legal services to the client or those reasonably 

necessary for the transmission of the communication. 

(c) Who may claim the privilege. The privilege may be claimed by the client, the guardian or conservator of the 

client, the personal representative of a deceased client, or the successor, trustee, or similar representative of a 

corporation, association, or other organization, whether or not in existence. The lawyer or the lawyer's representative who received the communication may claim the privilege on behalf of the client. The authority of the 

lawyer to do so is presumed in the absence of evidence to the contrary. 

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

(1) Crime or fraud. If the communication clearly contemplated the future commission of a fraud or crime 

or if services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what 

the client knew or reasonably should have known to be a crime or fraud; 

(2) Claimants through same deceased client. As to a communication relevant to an issue between parties 

who claim through the same deceased client, regardless of whether the claims are by testate or intestate succession 

or by inter vivos transaction; 

(3) Breach of duty by lawyer or client. As to a communication relevant to an issue of breach of duty by 

the lawyer to the client or by the client to the lawyer; 

(4)Document attested by lawyer. As to a communication relevant to an issue concerning an attested document 

to which the lawyer is an attesting witness; or 

(5) Joint clients. As to a communication relevant to a matter of common interest between two or more 
M.R.E. 504(c)(2)(B) 

clients if the communication was made by any of them to a lawyer retained or consulted in common, when 

offered in an action between any of the clients. 

Rule 503. Communications to clergy 

(a) General rule of privilege. A person has a privilege to refuse to disclose and to prevent another from disclosing 

a confidential communication by the person to a clergyman or to a clergyman's assistant, if such communication 

is made either as a formal act of religion or as a matter of conscience. 

(b) Definitions. As used in this rule: 

(1) A "clergyman" is a minister, priest, rabbi, chaplain, or other similar functionary of a religious organization, or an individual reasonably believed to be so by the person consulting the clergyman. 

(2) A communication is "confidential" if made to a clergyman in the clergyman's capacity as a spiritual 

adviser or to a clergyman's assistant in the assistant's official capacity and is not intended to be disclosed to 

third persons other than those to whom disclosure is in furtherance of the purpose of the communication or to 

those reasonably necessary for the transmission of the communication. 

(c) Who may claim the privilege. The privilege may be claimed by the person, by the guardian, or conservator, 

or by a personal representative if the person is deceased. The clergyman or clergyman's assistant who received 

the communication may claim the privilege on behalf of the person. The authority of the clergyman or clergyman's 

assistant to do so is presumed in the absence of evidence to the contrary. 

Rule 504. Husband-wife privilege 

(a) Spousal incapacity. A person has a privilege to refuse to testify against his or her spouse. 

(b) Confidential communication made during marriage. 

(1) General rule of privilege. A person has a privilege during and after the marital relationship to refuse to 

disclose, and to prevent another from disclosing, any confidential communication made to the spouse of the 

person while they were husband and wife and not separated as provided by law. 

(2) Definition. A communication is "confidential" if made privately by any person to the spouse of the 

person and is not intended to be disclosed to third persons other than those reasonably necessary for transmission 

of the communication. 

(3)Who may claim the privilege. The privilege may be claimed by the spouse who made the communication 

or by the other spouse on his or her behalf. The authority of the latter spouse to do so is presumed in the absence 

of evidence of a waiver. The privilege will not prevent disclosure of the communication at the request of the 

spouse to whom the communication was made if that spouse is an accused regardless of whether the spouse who 

made the communication objects to its disclosure. 

(c) Exceptions. 

(I) Spousal incapacity only. There is no privilege under subdivision (a) when, at the time the testimony of 

one of the parties to the marriage is to be introduced in evidence against the other party, the parties are divorced 

or the marriage has been annulled. 

(2) Spousal incapacity and confidential communications. There is no privilege under subdivisions (a) or 

(b): 

(A) In proceedings in which one spouse is charged with a crime against the person or property of the 

other spouse or a child of either, or with a crime against the person or property of a third person 

committed in the course of committing a crime against the other spouse; 

(B) 	When the marital relationship was entered into with no intention of the parties to live together as 

spouses, but only for the purpose of using the purported marital relationship as a sham, and with 

respect to the privilege in subdivision (a), the relationship remains a sham at the time the testimony 

or statement of one of the parties is to be introduced against the other; or with respect to the privilege 

in subdivision (b), the relationship was a sham at the time of the communication; or 
M.R.E. 504(~)(2)(C) 

(C) 	In proceedings in which a spouse is charged, in accordance with Articles 133 or 134, with importing 

the other spouse as an alien for prostitution or other immoral purpose in violation of 8 U.S.C. § 1328; 

with transporting the other spouse in interstate commerce for immoral purposes or other offense in 

violation of 18 U.S.C. §§ 2421-2424; or with violation of such other similar statutes under which such 

privilege may not be claimed in the trial of criminal cases in the United States district courts. 

Rule 505. Classified information 

(a) General rule of privilege. Classified information is privileged from disclosure if disclosure would be detrimental 

to the national security. 

(b) Definitions. As used in this rule: 

(1) Classified information. "Classified information" means any information or material that has been 

determined by the United States Government pursuant to an executive order, statute, or regulation, to require 

protection against unauthorized disclosure for reasons of national security, and any restricted data, as defined in 

42 U.S.C. § 2014(y). 

(2) National security. "National security" means the national defense and foreign relations of the United 

States. 

(c) Who may claim the privilege. The privilege may be claimed by the head of the executive or military department 

or government agency concerned based on a finding that the information is properly classified and that disclosure 

would be detrimental to the national security. A person who may claim the privilege may authorize a witness 

or trial counsel to claim the privilege on his or her behalf. The authority of the witness or trial counsel to do so 

is presumed in the absence of evidence to the contrary. 

(d) Action prior to referral of charges. Prior to referral of charges, the convening authority shall respond in 

writing to a request by the accused for classified information if the privilege in this rule is claimed for such 

information. The convening authority may: 

(1) Delete specified items of classified information from documents made available to the accused; 

(2) Substitute a portion or summary of the information for such classified documents; 

(3) Substitute a statement admitting relevant facts that the classified information would tend to prove; 

(4) Provide the document subject to conditions that will guard against the compromise of the information 

disclosed to the accused; or 

(5) Withhold disclosure if actions under (1) through (4) cannot be taken without causing identifiable damage 

to the national security. 

Any objection by the accused to withholding of information or to the conditions of disclosure shall be raised 

through a motion for appropriate relief at a pretrial session. 

(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 classified information that may arise in connection 

with the trial. Following such motion or sua sponte, the military judge promptly shall hold a session under 

Article 39(a) to establish the timing of requests for discovery, the provision of notice under subdivision (h), and 

the initiation of the procedure under subdivision (i). In addition, the military judge may consider any other 

matters that relate to classified information or that may promote a fair and expeditious trial. 

(f)Action after referral of charges. If a claim of privilege has been made under this rule with respect to classified 

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 the court-martial proceeding, the matter 

shall be reported to the convening authority. The convening authority may: 

(1) institute action to obtain the classified information for the use by the military judge in making a 

determination under subdivision (i); 

(2) dismiss the charges; 
M.R.E. 505(g)(4) 

(3) dismiss the charges or specifications or both to which the information relates; or 

(4) take such 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 in circumstances where 

proceeding with the case without such information would materially prejudice a substantial right of the accused, 

the military judge shall dismiss the charges or specifications or both to which the classified information relates. 

(g) Disclosure of classified information to the accused. 

(1) Protective order. If the Government agrees to disclose classified information to the accused, the military 

judge, at the request of the Government, shall enter an appropriate protective order to guard against the compromise 

of the information disclosed to the accused. The terms of any such protective order may include provisions: 

(A) Prohibiting the disclosure of the information except as authorized by the military judge; 

(B) Requiring storage of material in a manner appropriate for the level of classification assigned to the 

documents to be disclosed; 

(C) Requiring controlled access to the material during normal business hours and at other times upon 

reasonable notice; 

(D) Requiring appropriate security clearances for persons having a need to examine the information in 

connection with the preparation of the defense; 

(E) 	Requiring the maintenance of logs regarding access by all persons authorized by the military judge 

to have access to the classified information in connection with the preparation of the defense; 

(F) Regulating the making and handling of notes taken from material containing classified information; 

or 

(G) Requesting the convening authority to authorize the assignment of government security personnel 

and the provision of government storage facilities. 

(2)Limited disclosure. The military judge, upon motion of the Government, shall authorized (A) the deletion 

of specified items of classified information from documents to be made available to the defendant, (B) the 

substitution of a portion or summary of the information for such classified documents, or (C) the substitution of 

a statement admitting relevant facts that the classified information would tend to prove, unless the military judge 

determines that disclosure of the classified information itself is necessary to enable the accused to prepqe for 

trial. The Government's motion and any materials submitted in support thereof shall, upon request of the 

Government, be considered by the military judge in camera and shall not be disclosed to the accused. 

(3) Disclosure at trial of certain statements previously made by a witness. 

(A) Scope. After a witness called by the Government has testified on direct examination, the military 

judge, on motion of the accused, may order production of statements in the possession of the United 

States under R.C.M. 914. This provision does not preclude discovery or assertion of a privilege 

otherwise authorized under these rules or this Manual. 

(B) Closed session. If the privilege in this rule is invoked during consideration of a motion under R.C.M. 

914, the Government may deliver such statement for the inspection only by the military judge in 

camera and may provide the military judge with an affidavit identifying the portions of the statement 

that are classified and the basis for the classification assigned. If the military judge finds that disclosure 

of any portion of the statement identified by the Government as classified could reasonably be expected 

to cause damage to the national security in the degree required to warrant classification under the 

applicable executive order, statute, or regulation and that such portion of the statement is consistent 

with the witness' testimony, the military judge shall excise the portion from the statement. With such 

material excised, the military judge shall then direct delivery of such statement to the accused for 

use by the accused. If the military judge finds that such portion of the statement is inconsistent with 

the witness' testimony, the Government may move for a proceeding under subdivision (i). 

(4) Record of trial. If, under this subdivision, any information is withheld from the accused, the accused 
M.R.E. 505(h) 

objects to such withholding, and the trial is continued to an adjudication of guilt of the accused, the entire 

unaltered text of the relevant documents as well as the Government's motion and any materials submitted in 

support thereof shall be sealed and attached to the record of trial as an appellate exhibit. Such material shall be 

made available to reviewing authorities in closed proceedings for the purpose of reviewing the determination of 

the military judge. 

(h) Notice of the accused's intention to disclose classified information. 

(I) Notice by the accused. If the accused reasonably expects to disclose or to cause the disclosure of classified 

information in any manner in connection with a court-martial proceeding, the accused shall notify the trial counsel 

in writing of such intention and file a copy of such notice with the military judge. Such notice shall be given 

within the time specified by the military judge under subdivision (e) or, if no time has been specified, prior to 

arraignment of the accused. 

(2) Continuing duty to notify. Whenever the accused learns of classified information not covered by a notice 

under (1) that the accused reasonably expects to disclose at any such proceeding, the accused shall notify the 

trial counsel and the military judge in writing as soon as possible thereafter. 

(3) Content of notice. The notice required by this subdivision shall include a brief description of the classified 

information. 

(4)Prohibition against disclosure. The accused may not disclose any information known or believed to be 

classified until notice has been given under this subdivision and until the Government has been afforded a 

reasonable opportunity to seek a determination under subdivision (i). 

(5)Failure to comply. If the accused fails to comply with the requirements of this subdivision, the military 

judge may preclude disclosure of any classified information not made the subject of notification and may prohibit 

the examination by the accused of any witness with respect to any such information. 

(i) In camera proceedings for cases involving classified information. 

(1) Definition. For purposes of this subdivision, 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 classified information. Thereafter, either prior to or during trial, the military judge for good 

cause shown or otherwise upon a claim of privilege under this rule may grant the Government leave to move 

for an in camera proceeding concerning the use of additional classified information. 

(3) Demonstration of national security nature of the information. In order to obtain an in camera proceeding 

under this rule, the Government shall submit the classified information for examination only by the military 

judge and shall demonstrate by affidavit that disclosure of the information reasonably could be expected to cause 

damage to the national security in the degree required to warrant classification under the applicable executive 

order, statute, or regulation. 

(4)In camera proceeding. 

(A)Procedure. Upon finding that the Government has met the standard set forth in subdivision (i)(3) 

with respect to some or all of the classified information at issue, the military judge shall conduct an 

in camera proceeding. Prior to the in camera proceeding, the Government shall provide the accused 

with notice of the information that will be at issue. This notice shall identify the classified information 

that will be at issue whenever that information previously has been made available to the accused in 

connection with proceedings in the same case. The Government may describe the information by 

generic category, in such form as the military judge may approve, rather than identifying the classified 

information when the Government has not previously made the information available to the accused 

in connection with pretrial proceedings. Following briefing and argument by the parties in the in 

camera proceeding the military judge shall determine whether the information may be disclosed at 

the court-martial proceeding. Where the Government's motion under this subdivision is filed prior 

to the proceeding at which disclosure is sought, the military judge shall rule prior to the commencement 

of the relevant proceeding. 
M.R.E. 505(j)(6) 

(B) Standard. Classified information is not subject to disclosure under this subdivision unless the information is relevant and necessary to an element of the offense or a legally cognizable defense and is 

otherwise admissible in evidence. 

(C) Ruling. Unless the military judge makes a written determination that the information meets the standard 

set forth in (B), the information may not be disclosed or otherwise elicited at a court-martial proceeding. 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. 

(D) Alternatives to full disclosure. If the military judge makes a determination under this subdivision 

that would permit disclosure of the information or if the Government elects not to contest the relevance, 

necessity, and admissibility of any classified information, the Government may proffer a statement 

admitting for purposes of the proceeding any relevant facts such information would tend to prove or 

may submit a portion of summary to be used in lieu of the information. The military judge shall 

order that such statement, portion, or summary be used by the accused in place of the classified 

information unless the military judge finds that use of the classified information itself is necessary 

to afford the accused a fair trial. 

(E) 	Sanctions. If the military judge determines that alternatives to full disclosure may not be used and 

the Government continues to object to disclosure of the information, the military judge shall issue 

any order that the interests of justice require. Such an order may include an order: 

(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 

material to the defense; 

(iv) dismissing the charges, with or without prejudice; or 

(v) dismissing the charges or specifications or both which the information relates. 

Any such order shall permit the Government to avoid the sanction for nondisclosure by permitting the accused 

to disclose the information at the pertinent court-martial proceeding. 

(j)Introduction of class$ed information. 

(1) Class$cation status. Writings, recordings, and photographs containing classified information may be 

admitted into evidence without change in their classification status. 

(2)Precautions by the military judge. In order to prevent unnecessary disclosure of classified information, 

the military judge may order admission into evidence of only part of a writing, recording, or photograph or may 

order admission into evidence of the whole writing, recording, or photograph with excision of some or all of 

the classified information contained therein. 

(3) Contents of writing, recording, or photograph. The military judge may permit proof of the contents of 

a writing, recording, or photograph that contains classified information without requiring introduction into 

evidence of the original or a duplicate. 

(4) Taking of testimony. During the examination of a witness, the Government may object to any question 

or line of inquiry that may require the witness to disclose classified information not previously found to be 

relevant and necessary to the defense. Following such an objection, the military judge shall take such suitable 

action to determine whether the response is admissible as will safeguard against the compromise of any classified 

information. Such action may include requiring the Government to provide the military judge with a proffer of 

the witness' response to the question or line of inquiry and requiring the accused to provide the military judge 

with a proffer of the nature of the information the accused seeks to elicit. 

(5) Closed session. If counsel for all parties, the military judge, and the members have received appropriate 

security clearances, the military judge may exclude the public during that portion of the testimony of a witness 

that discloses classified information. 

(6)Record of trial. The record of trial with respect to any classified matter will be prepared under R.C.M. 

1103(h) and 1104(b)(l)(D). i 
M.R.E. 505(k) 

(k)Security procedures to safeguard against compromise of classified information disclosed to courts-martial. 

The Secretary of Defense may prescribe security procedures for protection against the compromise of classified 

information submitted to courts-martial and appellate authorities. 

Rule 506. Government information other than classified information 

(a) General rule of privilege. Except where disclosure is required by an Act of Congress, government information 

is privileged from disclosure if disclosure would be detrimental to the public interest. 

(b) Scope. "Government information" includes official communication and documents and other information 

within the custody or control of the Federal Government. This rule does not apply to classified information (Mil. 

R. Evid. 505) or to the identity of an informant (Mil. R. Evid. 507). 

(c) Who may claim the privilege. The privilege may be claimed by the head of the executive or military department 

or government agency concerned. The privilege for investigations of the Inspectors General may be claimed by 

the authority ordering the investigation or any superior authority. A person. who may claim the privilege may 

authorize a witness or the trial counsel to claim the privilege on his or her behalf. The authority of a witness or 

the trial counsel to do so is presumed in the absence of evidence to the contrary. 

(d) Action prior to referral of charges. Prior to referral of charges, the Government shall respond in writing to 

a request for government information if the privilege in this rule is claimed for such information. The Government 

shall: 

(1) delete specified items of government information claimed to be privileged from documents made available 

to the accused; 

(2) substitute a portion or summary of the information for such documents; 

(3) substitute a statement admitting relevant facts that the government information would tend to prove; 

(4) provide the document subject to conditions similar to those set forth in subdivision (g) of this rule; or 

(5)withhold disclosure if actions under (1) through (4) cannot be taken without causing identifiable damage 

to the public interest. 

(e) Action after referral of charges. After referral of charges, if a claim of privilege has been made under this 

rule with respect to government 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 the courtmartial proceeding, the matter shall be reported to the convening authority. .The convening authority may: 

(I) 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. 

(f) 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 subdivision 

(h), and the initiation of the procedure under subdivision (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. 

(g) Disclosure of government information to the accused. If the Government agrees to disclose government 

information to the accused subsequent to a claim of privilege under this rule, the military judge, at the request 

of the Government,, shall enter an appropriate protective order to guard against the compromise of the information 

disclosed to the accused. The terms of any such protective order may include provisions: 

(1) Prohibiting the disclosure of the information except as authorized by the military judge; 
M.R.E. 506(j) 

(2) Requiring storage of the material in a manner appropriate for the nature of the material to be disclosed; 

upon reasonable notice; 

(3) Requiring controlled access to the material during normal business hours and at other times upon 

reasonable notice; 

(4) Requiring the maintenance of logs recording access by persons authorized by the military judge to have 

access to the government information in connection with the preparation of the defense; 

(5) Regulating the making and handling of notes taken from material containing government information; or 

(6) Requesting the convening authority to authorize the assignment of government security personnel and 

the provision of government storage facilities. 

(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 until the Government has been afforded a reasonable opportunity to seek 

a determination under subdivision (i). 

(i) In camera proceedings. 

(1) Definition. For the purpose of this subdivision, an "in camera proceeding" is a closed session under 

Article 39(a). 

(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 submission of affidavits and the 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. 

(4) In camera proceeding 

(A)Procedure. Upon finding that the disclosure of some or all of the information submitted by the Government 

under subsection (1) reasonably could be expected to cause identifiable damage to the public interest, 

the military judge shall conduct an in camera proceeding. Prior to the in camera proceeding, the Government shall provide the accused with notice of the mformation that will be at issue. This notice shall 

identify the information that will be at issue whenever that information previously has been made available 

to the accused in connection with proceedings in the same case. The Govenunent may describe the 

information by generic category, in such form as the military judge may approve, rather than identifying 

the specific information of concern to the Government when the Government has not previously made 

the mformation available to the accused in connection with pretrial proceedings. Following briefing and 

argument by the parties in the in camera proceeding, the military judge shall determine whether the 

mformation may be disclosed at the court-martial proceeding. When the Government's motion under this 

subdivision is filed prior to the proceeding at which disclosure is sought, the military judge shall rule 

prior to commencement of the relevant proceeding. 

(B) Standard. Government information is subject to disclosure under the subdivision if the party making the 

request demonstrates a specific need for information containing evidence that is relevant to the guilt or 

innocence of the accused and otherwise admissible in the court-martial proceeding. 

(C) Ruling. Unless the military judge makes a written determination that the information is not subject to 

disclosure under the standard set forth in (B), the information may be disclosed at the court-martial 

proceeding. 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. 

(D) Sanction. If the military judge makes a determination under this subdivision that permits disclosure of 

the information and the Government continues to object to disclosure of the information, the military 

judge shall dismiss the charges or specifications or both to which the information relates. 

(j)Introduction of government information subject to a claim of privilege. 
M.R.E. 506(j)(l) 

(1) Precautions by military judge. In order to prevent unnecessary disclosure of government information 

after there has been a claim of privilege under this rule, the military judge may order admission into evidence 

of only part of a writing, recording, or photograph or may order admission into evidence of the whole writing, 

recording, or photograph with excision of some or all of the government information contained therein. 

(2) Contents of writing, recording, or photograph. The military judge may permit proof of the contents of 

a writing, recording, or photograph that contains government information that is the subject of a claim of privilege 

under this rule without requiring introduction into evidence of the original or a duplicate. 

(3) Taking of testimony. During examination of a witness, the prosecution may object to any question or 

line of inquiry that may require the witness to disclose government information not previously found relevant 

and necessary to the defense if such information has been or is reasonably likely to be the subject of a claim of 

privilege under this rule. Following such an objection, the military judge shall take such suitable action to 

determine whether the response is admissible as will safeguard against the compromise of any government 

information. Such action may include requiring the Government to provide the military judge with a proffer of 

the witness' response to the question or line of inquiry and requiring the accused to provide the military judge 

with a proffer of the nature of the information the accused seeks to elicit. 

(k)Procedures to safeguard against compromise of government information disclosed to courts-martial. The 

Secretary of Defense may prescribe procedures for protection against the compromise of government information 

submitted to courts-martial and appellate authorities after a claim of privilege. 

Rule 507. Identity of informant. 

(a) Rule of privilege. The United States or a State or subdivision thereof has a privilege to refuse to disclose the 

identity of an informant. An "informant" is a person who has furnished information relating to or assisting in 

an investigation of a possible violation of law to a person whose official duties include the discovery, investigation, 

or prosecution of crime. Unless otherwise privileged under these rules, the communications of an informant are 

not privileged except to the extent necessary to prevent the disclosure of the informant's identity. 

(b) Who may claim the privilege. The privilege may be claimed by an appropriate representative of the United 

States, regardless of whether information was furnished to an officer of the United States or a State or subdivision 

thereof. The privilege may be claimed by an appropriate representative of a State or subdivision if the information 

was furnished to an officer thereof, except the privilege shall not be allowed if the prosecution objects. 

(c) Exceptions. 

(1) Voluntary disclosures; informant as witness. No privilege exists under this rule: (A) if the identify o'f 

the informant has been disclosed to those who would have cause to resent the communication by a holder of the 

privilege or by the informant's own action; or (B) if the informant appears as a witness for the prosecution. 

(2) Testimony on the issue of guilt or innocence. If a claim of privilege has been made under this rule, the 

military judge shall, upon motion by the accused, determine whether disclosure of the identity of the informant 

is necessary to the accused's defense on the issue of guilt or innocence. Whether such a necessity exists will 

depend on the particular circumstances of each case, taking into consideration the offense charged, the possible 

defense, the possible significance of the informant's testimony, and other relevant factors. If it appears from the 

evidence in the case or from other showing by a party that an informant may be able to give testimony necessary 

to the accused's defense on the issue of guilt or innocence, the military judge may make any order required by 

the interests of justice. 

(3) Legality of obtaining evidence. If a claim of privilege has been made under this rule with respect to a 

motion under Mil. R. Evid. 311, the military judge shall, upon motion of the accused, determine whether 

disclosure of the identity of the informant is required by the Constitution of the United States as applied to 

members of the armed forces. In making this determination, the military judge may make any order required by 

the interests of justice. 

(d) Procedures. If a claim of privilege has been made under this rule, the military judge may make any order 

required by the interests of justice. If the military judge determines that disclosure of the identity of the informant 

is required under the standards set forth in this rule, and the prosecution elects not to disclose the 
M.R.E. 512(c) 

identity of the informant, the matter shall be reported to the convening authority. The convening authority may 

institute action to secure disclosure of the identity of the informant, terminate the proceedings, or take such other 

action as may be appropriate under the circumstances. If, after a reasonable period of time disclosure is not 

made, the military judge, sua sponte or upon motion of either counsel and after a hearing if requested by either 

party, may dismiss the charge or specifications or both to which the information regarding the informant would 

relate if the military judge determines that further proceedings would materially prejudice a substantial right of 

the accused. 

Rule 508. Political vote 

A person has a privilege to refuse to disclose the tenor of the person's vote at a political election conducted 

by secret ballot unless the vote was cast illegally. 

Rule 509. Deliberations of courts and juries 

Except as provided in Mil. R. Evid. 606, the deliberations of courts and grand and petit juries are privileged 

to the extent that such matters are privileged in trial of criminal cases in the United States district courts, but 

the results of the deliberations are not privileged. 

Rule 510. Waiver of privilege by voluntary disclosure 

(a) A person upon whom these rules confer a privilege against disclosure of a confidential matter or communication 

waives the privilege if the person or the person's predecessor while holder of the privilege voluntarily discloses 

or consents to disclosure of any significant part of the matter or communication under such circumstances that 

it would be inappropriate to allow the claim of privilege. This rule does not apply if the disclosure is itself a 

privileged communication. 

(b) Unless testifying voluntarily concerning a privileged matter or communication, an accused who testifies in 

his or her own behalf or a person who testifies under a grant or promise of immunity does not, merely by reason 

of testifying, waive a privilege to which he or she may be entitled pertaining to the confidential matter or 

communication. 

Rule 511. Privileged matter disclosed under compulsion or without opportunity to claim privilege 

(a) Evidence of a statement or other disclosure of privileged matter is not admissible against the holder of the 

privilege if disclosure was compelled erroneously or was made without an opportunity for the holder of the 

privilege to claim the privilege. 

(b) The telephonic transmission of information otherwise privileged under these rules does not affect its privileged 

character. Use of electronic means of communication other than the telephone for transmission of information 

otherwise privileged under these rules does not affect the privileged character of such information if use of such 

means of communication is necessary and in furtherance of the communication. 

Rule 512. Comment upon or inference from claim of privilege; instruction 

(a) Comment or inference not permitted. 

(1) The claim of a privilege by the accused whether in the present proceeding or upon a prior occasion is 

not a proper subject of comment by the military judge or counsel for any party. No inference may be drawn 

therefrom. 

(2) The claim of a privilege by a person other than the accused whether in the present proceeding or upon 

a prior occasion normally is not a proper subject of comment by the military judge or counsel for any party. An 

adverse inference may not be drawn therefrom except when determined by the military judge to be required by 

the interests of justice. 

(b)Claimingprivilege without knowledge of members. In a trial before a court-martial with members, proceedings 

shall be conducted, to the extent practicable, so as to facilitate the making of claims of privilege without the 

knowledge of the members. This subdivision does not apply to a special court-martial without a military judge. 

(c) Instruction. Upon request, any party against whom the members might draw an adverse inference from a 
M.R.E. 601 

claim of privilege is entitled to an instruction that no inference may be drawn therefrom except as provided in 

subdivision (a)(2). 

Section VI. WITNESSES 

Rule 601. General rule of competency 

Every person is competent to be a witness except as otherwise provided in these rules. 

Rule 602. Lack of personal knowledge 

A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the 

witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist 

of the testimony of the witness. This rule is subject to the provisions of Mil. R. Evid. 703, relating to opinion 

testimony by expert witnesses. 

Rule 603. Oath or affirmation 

Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or 

affirmation administered in a form calculated to awaken the witness's conscience and impress the witness's mind 

with the duty to do so. 

Rule 604. Interpreters 

An interpreter is subject to the provisions of these rules relating to qualifications as an expert and the 

administration of an oath or affirmation that the interpreter will make a true translation. 

Rule 605. Competency of military judge as witness 

(a) The military judge presiding at the court-martial may not testify in that court-martial as a witness. No objection 

need be made to preserve the point. 

(b) This rule does not preclude the military judge from placing on the record matters concerning docketing of 

the case. 

Rule 606. Competency of court member as witness 

(a) At the court-martial. A member of the court-martial may not testify as a witness before the other members 

in the trial of the case in which the member is sitting. If the member is called to testify, the opposing party, 

except in a special court-martial without a military judge, shall be afforded an opportunity to object out of the 

presence of the members. 

(b) Inquiry into validity offindings or sentence. Upon an inquiry into the validity of the findings or sentence, a 

member may not testify as to any matter of statement occumng during the course of the deliberations of the 

members of the court-martial or, to the effect of anything upon the member's or any other member's mind or 

emotions as influencing the member to assent to or dissent from the findings or sentence or concerning the 

member's mental process in connection therewith, except that a member may testify on the question 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. Nor may the member's affidavit or evidence of any statement by the member concerning 

a matter about which the member would be precluded from testifying be received for these purposes: 

Rule 607. Who may impeach 

The credibility of a witness may be attacked by any party, including the party calling the witness. 

Rule 608. Evidence of character, conduct, and bias of witness 

(a) Opinion and reputation evidence of character. The credibility of a witness may be attacked or supported by 

evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only 
M.R.E. 610 

to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the 

character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise. 

(b) SpeciJic instances of conduct. Specific instances of conduct of a witness, for the purpose of attacking or 

supporting the credibility of the witness, other than conviction of crime as provided in Mil. R. Evid. 609, may 

not be proved by extrinsic evidence. .They may, however, in the discretion of the military judge, if probative of 

truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning character of 

the witness for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness 

of another witness as to which character the witness being cross-examined has testified. The giving of testimony, 

whether by an accused or by another witness, does not operate as a waiver of the privilege against self-incrimination 

when examined with respect to matters which relate only to credibility. 

(c) Evidence of bias. Bias, prejudice, or any motive to misrepresent may be shown to impeach the witness either 

by examination of the witness or by evidence otherwise adduced. 

Rule 609. Impeachment by evidence of conviction of crime 

(a) General rule. For the purpose of attacking the credibility of a witness, evidence that the witness has been 

convicted of a crime shall be admitted if elicited from the witness or established by public record during crossexamination but only if the crime (1) was punishable by death, dishonorable discharge, or imprisonment in excess 

of one year under the law under which the witness was convicted, and the military judge determines that the 

probative value of admitting this evidence outweighs its prejudicial effect to the accused, or (2) involved dishonesty 

or false statement, regardless of the punishment. In determining whether a crime tried by court-martial was 

punishable by death, dishonorable discharge, or imprisonment in excess of one year, the maximum punishment 

prescribed by the President under Article 56 at the time of the conviction applies without regard to whether the 

case was tried by general, special, o; summary court-martial. 

(b)Time limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has 

elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that 

conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative 

value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial 

effect. However, evidence of a conviction more than ten years old as calculated herein, is not admissible unless 

the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide 

the adverse party with a fair opportunity to contest the use of such evidence. 

(c) Effect of pardon, annulment, or certijicate of rehabilitation. Evidence of a conviction is not admissible under 

this rule if (1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other 

equivalent procedure based on a finding of the rehabilitation of the person convicted, and that person has not 

been convicted of a subsequent crime which was punishable by death, dishonorable discharge, or imprisonment 

in excess of one year, or (2) the conviction has been the subject of a pardon, annulment, or other equivalent 

procedure based on a finding of innocence. 

(d) Juvenile adjudications. Evidence of juvenile adjudications is generally not admissible under this rule. The military 

judge, however, may allow evidence of a juvenile adjudication of a witness other than the accused if conviction of 

the offense would be admissible to attack the credibility of an adult and the military judge is satisfied that admission 

in evidence is necessary for a fair determination of the issue of guilt or innocence. 

(e) Pendency of appeal. The pendency of an appeal therefrom does not render evidence of a conviction inadmissible 

except that a conviction by summary court-martial or special court-martial without a military judge may not be 

used for purposes of impeachment until review has been completed pursuant to Article 65(c) or Article 66 if 

applicable. Evidence of the pendency of an appeal is admissible. 

(f) Definition. For purposes of this rule, there is a "conviction" in a court-martial case when a sentence has 

been adjudged. 

Rule 610. Religious beliefs or opinions 

Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of 

showing that by reason of their nature the credibility of the witness is impaired or enhanced. 
M.R.E. 6ll(a) 

Rule 61 1. Mode and order of interrogation and presentation 

(a) Control by the military judge. The military judge shall exercise reasonable control over the mode and order 

of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective 

for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from 

harassment or undue embarrassment. 

(b) Scope of cross-examination. Cross-examination should be limited to the subject matter of the direct examination 

and matters affecting the credibility of the witness. The military judge may, in the exercise of discretion, permit 

inquiry into additional matters as if on direct examination. 

(c) Leading questions. Leading questions should not be used on the direct examination of a witness except as 

may be necessary to develop the testimony of the witness. Ordinarily leading questions should be permitted on 

cross-examination. When a party calls a hostile witness or a witness identified with an adverse party, interrogation 

may be by leading questions. 

Rule 612. Writing used to refresh memory 

If a witness uses a writing to refresh his or her memory for the purpose of testifying, either 

(1) while testifying, or 

(2) before testifying, if the military judge determines it is necessary in the interests of justice, 

an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness 

thereon, and to introduce in evidence those portions which relate to the testimony of the witness. If it is claimed 

that the writing contains privileged information or matters not related to the subject matter of the testimony, the 

military judge shall examine the writing in camera, excise any privileged 'information or portions not so related, 

and order delivery of the remainder to the party entitled thereto. Any portion withheld over objections shall be 

attached to the record of trial as an appellate exhibit. If a writing is not produced or delivered pursuant to order 

under this rule, the military judge shall make any order justice requires, except that when the prosecution elects 

not to comply, the order shall be one striking the testimony or, if in discretion of the military judge it is determined 

that the interests of justice so require, declaring a mistrial. This rule does not preclude disclosure of information 

required to be disclosed under other provisions of these rules or this Manual. 

Rule 613. Prior statements of witnesses 

(a) Examining witness concerning prior statement. In examining a witness concerning a prior statement made 

by the witness, whether written or not, the statement need not be shown nor its contents disclosed to opposing 

counsel. 

(b) Extrinsic evidence ofprior inconsistent statement of witness. Extrinsic evidence of a prior inconsistent statement 

by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the 

opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise 

require. This provision does not apply to admissions of a party-opponent as defined in Mil. R. Evid. 801(d)(2). 

Rule 614. Calling and interrogation of witnesses by the court-martial 

(a) Calling by the court-martial. The military judge may, sua sponte, or at the request of the members or the 

suggestion of a party, call witnesses, and all parties are entitled to cross-examine witnesses thus called. When 

the members wish to call or recall a witness, the military judge shall determine whether it is appropriate to do 

so under these rules or this Manual. 

(b) Interrogation by the court-martial. The military judge or members may interrogate witnesses, whether called 

by the military judge, the members, or a party. Members shall submit their questions to the military judge in 

writing so that a ruling may be made on the propriety of the questions or the course of questioning and so that 

questions may be asked on behalf of the court by the military judge in a form acceptable to the military judge. 

When a witness who has not testified previously is called by the military judge or the members, the military 

judge may conduct the direct examination or may assign the responsibility to counsel for any party. 

(c) Objections. Objections to the calling of witnesses by the military judge or the members or to the interrogation 
M.R.E. 801(d) 

by the military judge or the members may be made at the time or at the next available opportunity when the 

members are not present. 

Rule 615. Exclusion of witnesses 

At the request of the prosecution or 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. 

Section VII. OPINIONS AND EXPERT TESTIMONY 

Rule 701. Opinion testimony by lay witnesses 

If the witness is not testifying as an expert, the testimony of the witness in the form of opinions or inference 

is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) 

helpful to a clear understanding of the testimony of the witness of the determination of a fact in issue. 

Rule 702. Testimony by experts 

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence 

or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or 

education, may testify thereto in the form of an opinion or otherwise. 

Rule 703. Bases of opinion testimony by experts 

The facts or data in the particular case upon which an expert bases an opinion or inference may be those 

perceived by or made known to the expert, at or before the hearing. If of a type reasonably relied upon by 

experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be 

admissible in evidence. 

Rule 704. Opinion on ultimate issue 

Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces 

an ultimate issue to be decided by the trier of fact. 

Rule 705. Disclosure of facts or data underlying expert opinion 

The expert may testify in terms of opinion or inference and give the expert's reasons therefore without prior 

disclosure of the underlying facts or data, unless the military judge requires otherwise. The expert may in any 

event be required to disclose the underlying facts or data on cross-examination. 

Rule 706. Court appointed experts 

(a) Appointment and compensation. The trial counsel, the defense counsel, and the court-martial have equal 

opportunity to obtain expert witnesses under Article 46. The employment and compensation of expert witnesses 

is governed by R.C.M. 703. 

(b) Disclosure of employment. In the exercise of discretion, the military judge may authorize disclosure to the 

members of the fact that the military judge called an expert witness. 

(c) Accused's experts of own selection. Nothing in this rule limits the accused in calling expert witnesses of the 

accused's own selection and at the accused's own expense. 

Section VIII. HEARSAY 

Rule 801. Definitions 

The following definitions apply under this section: 

(a) Statement. A "statement" is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is 

intended by the person as a assertion. 

(b) Declarant. A "declarant" is a person who makes a statement. 

(c) Hearsay. "Hearsay" is a statement, other than the one made by the declarant while testifying at the trial or 

hearing, offered in evidence to prove the truth of the matter asserted. 

(d) Statements which are not hearsay. A statement is not hearsay if: 
M.R.E. 801(d)(l) 

(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination 

concerning the statement, and the statement is (A) inconsistent with the declarant's testimony, and was given 

under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (B) 

consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant 

of recent fabrication or improper influence or motive, or (C) one of identification of a person made after perceiving 

the person; or 

(2) Admission by party-opponent. The statement is offered against a party and is (A) the party's own 

statement in either the party's individual or representative capacity, or (B) a statement of which the party has 

manifested the party's adoption or belief in its truth, or (C) a statement by a person authorized by the party to 

make a statement concerning the subject, or (D) a statement by the party's agent or servant concerning a matter 

within the scope of the agency or employment of the agent or servant, made during the existence of the relationship, 

or (E) a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy, 

Rule 802. Hearsay rule 

Hearsay is not admissible except as provided by these rules or by any Act of Congress applicable in trials by 

court-martial. 

Rule 803. Hearsay exceptions; availability of declarant immaterial 

The following are not excluded by the hearsay rule, even though the declarant is available as a witness: 

(1) Present sense impression. A statement describing or explaining an event or condition made while declarant 

was perceiving the event or condition or immediately thereafter. 

(2)Excited utterance. A statement relating to a startling event or condition made while the declarant was 

under the stress of excitement caused by the event or condition. 

(3) Then existing mental, emotional, or physical condition. A statement of the declarant's then existing 

state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, 

pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or 

believed unless it relates to the execution, revocation, identification, or terms of declarant's will. 

(4)Statements for purposes of medical diagnosis or treatment. Statements made for purposes of medical 

diagnosis or treatment and described medical history, or past or present symptoms, pain, or sensation, or the 

inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis 

or treatment. 

(5)Recorded recollection. A memorandum or record concerning a matter about which a witness once had 

knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to 

have been made or adopted by the witness when the matter was fresh in the witness's memory and to reflect 

that knowledge correctly. If admitted, the memorandum or record may be read into evidence, but may not itself 

be received as an exhibit unless offered by an adverse party. 

(6)Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any 

form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information , transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and 

if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, 

all as shown by the testimony of the custodian or other qualified witness, unless the source of information or 

the method or circumstances of preparation indicate lack of trustworthiness. The term "business" as used in 

this paragraph includes the armed forces, a business, institution, association, profession, occupation, and calling 

of every kind, whether or not conducted for profit. Among those memoranda, reports, records, or data compilations 

normally admissible pursuant to this paragraph are enlistment papers, physical examination papers, outline-figure 

and fingerprint cards, forensic laboratory reports, chain of custody documents, morning reports and other 
M.R.E. 803(17) 

personnel accountability documents, service records, officer and enlisted qualification records, logs, unit personnel 

diaries, individual equipment records, daily strength records of prisoners, and rosters of prisoners. 

(7) Absence of entry in records kept in accordance with the provisions of paragraph (6).Evidence that a 

matter is not included in the memoranda, reports, records, or data compilations, in any form, kept in accordance 

with the provisions of paragraph (6), to prove the nonoccurrence or nonexistence of the matter, if the matter 

was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, 

unless the sources of information or other circumstances indicate lack of trustworthiness. 

(8) Public records and reports. Records, reports, statements, or data compilations, in any form, of public 

office or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to 

duty imposed by law as to which matters there was a duty to report, excluding, however, matters observed by 

police officers and other personnel acting in a law enforcement capacity, or (C) against the government, factual 

findings resulting from an investigation made pursuant to authority granted by law, unless the sources of 

information or other circumstances indicate lack of trustworthiness. Notwithstanding (B), the following are 

admissible under this paragraph as a record of a fact or event if made by a person within the scope of the person's 

official duties and those duties included a duty to know or to ascertain through appropriate and trustworthy 

channels of information the truth of the fact or event and to record such fact or event: enlistment papers, physical 

examination papers, outline figure and fingerprint cards, forensic laboratory reports, chain of custody documents, 

morning reports and other personnel accountability documents, service records, officer and enlisted qualification 

records, records of court-martial convictions, logs, unit personnel diaries, individual equipment records, guard 

reports, daily strength records of prisoners, and rosters of prisoners. 

(9) Records of vital statistics. Records or data compilations, in any form, of births, fetal deaths, deaths, or 

marriages, if the report thereof was made to a public office pursuant to requirements of law. 

(10) Absence of public record or entry. To prove the absence of a record, report, statement, or data 

compilation in any form, or the nonoccurrence or nonexistence of a matter of which a record, report, statement, 

or data compilation, in any form, was regularly made and preserved by a public office or agency, evidence in 

the form of a certification in accordance with Mil. R. Evid. 902, or testimony, that diligent search failed to 

disclose the record, report, statement, or data compilation, or entry. 

(11) Records of religious organizations. Statements of births, marriages, divorces, deaths, legitimacy, 

ancestry, relationship by blood or marriage, or other similar facts of personal or family history contained in a 

regularly kept record of a religious organization. 

(12) Marriage, baptismal, and similar certijkates. Statements of fact obtained in a certificate that the maker 

performed a marriage or other ceremony or administered a sacrament, made by a clergyman, public official, or 

other person authorized by the rules or practices of a religious organization or by law to perform the act certified, 

and purporting to have been issued at the time of the act or within a time thereafter. 

(13) Family records. Statements of facts concerning personal or family history contained in family Bibles, 

genealogies, charts, engravings on rings, inscription on family portraits, engravings on urns, crypts, or tombstones, 

or the like. 

(14) Records of documents affecting an interest in property. The record of a document purporting to establish 

or affect an interest in property, as proof of the content of the original recorded document and its execution and 

delivery by each person by whom it purports to have been executed, if the record is a record of a public office 

and an applicable statute authorizes the recording of documents of that kind in that office. 

(15) Statements in documents aflecting an interest in property. A statement contained in a document 

purporting to establish or affect an interest in property if the matter stated was relevant to the purpose of the 

document, unless dealings with the property since the document was made have been inconsistent with the truth 

of the statement or the purport of the document. 

(16) Statements in ancient documents. Statements in a document in existence twenty years or more the 

authenticity of which is established. 

(17) Market reports, commercial publications. Market quotations, tabulations, directories, lists (including 
M.R.E. 803(18) 

government price lists), or other published compilations generally used and relied upon by the public or by 

persons in particular occupations. 

(18) Learned treatises. To the extent called to the attention of an expert witness upon cross-examination or 

relied upon by the expert in direct examination, statements contained in published treatises, periodicals, or 

pamphlets on a subject of history, medicine or other science or art, established as a reliable authority by the 

testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements 

may be read into evidence but may not be received as exhibits. 

(19) Reputation concerning personal or family history. Reputation among members of the person's family 

by blood, adoption, or marriage, or among the person's associates, or in the community, concerning the person's 

birth, adoption, marriage, divorce, death, legitimacy, relationship by blood, adoption, or marriage, ancestry, or 

other similar fact of the person's personal or family history. 

(20) Reputation concerning boundaries or general history. Reputation in a community, arising before the 

controversy, as to boundaries of or customs affecting lands in the community, and reputation as to events of 

general history important to the community or State or nation in which located. 

(21) Reputation as to character. Reputation of a person's character among the person's associates or in the 

community. 

(22)Judgment of previous conviction. Evidence of a final judgment, entered after a trial or upon a plea of 

guilty (but not upon a plea of nolo contendere), adjudging a person guilty of a crime punishable by death, 

dishonorable discharge, or imprisonment in excess of one year, to prove any fact essential to sustain the judgment, 

but not including, when offered by the Government for purposes other than impeachment, judgments against 

persons other than the accused. The pendency of an appeal may be shown but does not affect admissibility. In 

determining whether a crime tried by court-martial was punishable by death, dishonorable discharge, or imprisonment in excess of one year, the maximum punishment prescribed by the President under Article 56 at the time 

of the conviction applies without regard to whether the case was tried by general, special, or summary courtmartial. 

(23) Judgment as to personal, family or general history, or boundaries. Judgments as proof of matters of 

personal, family, or general history, or boundaries essential to the judgment, if the same would be provable by 

evidence of reputation. 

(24) Other exceptions. A statement not specifically covered by any of the foregoing exceptions but having 

equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered 

as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any 

other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these 

rules and the interests of justice will best be served by admission of the statement into evidence. However, a 

statement may not be admitted under this exception unless the proponent of it makes known to the adverse party 

sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to 

meet it, the intention to offer the statement and the particulars of it, including the name and address of the 

declarant. 

Rule 804. Hearsay exceptions; declarant unavailable 

(a) Defnitions of unavailability. "Unavailability as a witness" includes situations in which the declarant- 

(1) is exempted by ruling of the military judge on the ground of privilege from testifying concerning the 

subject matter of the declarant's statement; or 

(2) persists in refusing to testify concerning the subject matter of the declarant's statement despite an order 

of the military judge to do so; or 

(3) testifies to a lack of memory of the subject matter of the declarant's statement; or 

(4) is unable to be present or to testify at the hearing because of death or then existing physical or mental 

illness or infirmity; or 

(5) is absent from the hearing and the proponent of the declarant's statement has been unable to procure 

the declarant's attendence (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), the declarant's 

attendance or testimony) by process or other reasonable means; or 
M.R.E. 806 

(6)is unavailable within the meaning of Article 49(d)(2). 

A declarant is not unavailable as a witness if the declarant's exemption, refusal, claim or lack of memory, 

inability, or absence is due to the procurement or wrongdoing of the proponent of the declarant's statement of 

the purpose of preventing the witness from attending or testifying. 

(b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a 

witness. 

(1) Former testimony. Testimony given as a witness at another hearing of the same or different proceeding, 

or in a depositon taken in compliance with law in the course of the same or another proceeding, if the party 

against whom the testimony is now offered had an opportunity and similar motive to develop the testimony by 

direct, cross, or redirect examination. A record of testimony given before courts-martial, courts of inquiry, 

military commissions, other military tribunals, and before proceedings pursuant to or equivalent to those required 

by Article 32 is admissible under this subdivision if such a record is a verbatim record. This paragraph is subject 

to the limitations set forth in Articles 49 and 50. 

(2) Statement under belief of impending death. In a prosecution for homicide or for any offense resulting 

in the death of the alleged victim, a statement made by a declarant while believing that the declarant's death 

was imminent, concerning the cause or circumstances of what the declarant believed to be the declarant's 

impending death. 

(3) Statement against interest. A statement which was at the time of its making so far contrary to the 

declarant's pecuniary or propriety interest, or so far tended to subject the declarant to civil or criminal liability, 

or to render invalid a claim by the declarant against another, that a reasonable person in the position of the 

declarant would not have made the statement unless the person believed it to be true. A statement tending to 

expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating 

circumstances clearly indicate the trustworthiness of the statement. 

(4)Statement of personal or family history. (A) A statement concerning the declarant's own birth, adoption, 

marriage, divorce, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of 

personal or family history, even though declarant had no means of acquiring personal knowledge of the matter 

stated; or (B) a statement concerning the foregoing matters, and death also, of another person, if the declarant 

was related to the other by blood, adoption, or marriage was so intimately associated with the other's family as 

to be likely to have accurate information concerning the matter declared. 

(5) Other exceptions. A statement not specifically covered by any of the foregoing exceptions but having 

equivalent circumstantial guarantees of trustworthiness, if the military judge determines that (A) the statement 

is offered as evidence of a material fact; (B) the statement is more probative of the point for which it is offered 

than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes 

of these rules and the interest of justice will best be served by admission of the statement into evidence. However, 

a statement may not be admitted under this exception unless the proponent of its makes known to the adverse 

party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare 

to meet it, the intention to offer the statement and the particulars of it, including the name and address of the 

declarant. 

Rule 805. Hearsay within hearsay 

Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements 

conforms with an exception to the hearsay rule provided in these rules. 

Rule 806. Attacking and supporting credibility of declarant 

When a hearsay statement, or a statement defined in Mil. R. Evid. 801(d)(2)(C), (D), or (E), has been admitted 

in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence 

which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement 

or conduct by the declarant at any time, inconsistent with the declarant's hearsay statement, is not subject to 

any requirement that the declarant may have been afforded an opportunity to deny or explain. If the party against 

whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine 

the declarant on the statement as if under cross-examination. 
M.R.E. 901 

Section IX. AUTHENTICATION AND IDENTIFICATION 

Rule 901. Requirement of authentication or identification 

(a) General provision. The requirement of authentication or identification as a condition precedent to admissibility 

is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. 

(b) Illustrations. By way of illustration only, and not by way of limitation, the following are examples of 

authentication or identification conforming with the requirements of this rule: 

(1) Testimony of witness with knowledge. Testimony that a matter is what it is claimed to be. 

(2) Nonexpert opinion on handwriting. Nonexpert opinion as to the genuineness of handwriting, based upon 

familiarity not acquired for purposes of the litigation. 

(3) Comparison by trier or expert witness. Comparison by the trier of fact or by expert witnesses with 

specimens which have been authenticated. 

(4) Distinctive characteristics and the like. Appearance, contents, substance, internal patterns, or other 

distinctive characteristics, taken in conjunction with circumstances. 

(5) Voice identication. Identification of a voice, whether heard firsthand or through mechanical or electronic 

transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it 

with the alleged speaker. 

(6) Telephone conversations. Telephone conversations, by evidence that a call was made to the number 

assigned at the time by the telephone company to a particular persons or business, if (A) in the case of a person, 

circumstances, including self-identification, show the person answering to be the one called, or (B) in the case 

of a business, the call was made to a place of business and the conversation related to business reasonably 

transacted over the telephone. 

(7)Public records or reports. Evidence that a writing authorized by law to be recorded or filed and in fact 

recorded or filed in a public office, or a purported public record, report, statement, or data compilation, in any 

form, is from the public office where items of this nature are kept. 

(8) Ancient documents or data compilation. Evidence that a document or data compilation, in any form, 

(A) is in such condition as to create no suspicion concerning its authenticity, (B) was in place where it, if 

authentic, would likely be, and (C) has been in existence 20 years or more at the time it is offered. 

(9)Process or system. Evidence describing a process or system used to produce a result and showing that 

the process or system produces an accurate result. 

(10) Methods provided by statute or rule. Any method of authentication or identification provided by Act 

of Congress, by rules prescribed by the Supreme Court pursuant to statutory authority, or by applicable regulations 

prescribed pursuant to statutory authority. 

Rule 902. Self-authentication 

Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the 

following: 

(I) Domestic public documents under seal. A document bearing a seal purporting to be that of the United 

States, or any State, district, Commonwealth, territory, or insular possession thereof, or the Panama Canal Zone, 

or the Trust Territory of the Pacific Islands, or of a political subdivision, department, officer, or agency thereof, 

and a signature purporting to be an attestation or exception. 

(2) Domestic public documents not under seal. A document purporting to bear the signature in the official 

capacity of an officer or employee of any entity included in paragraph (1) hereof, having no seal, if a public 

officer having a seal and having official duties in the district or political subdivision of the officer or employee 

certifies under seal that the signer has the official capacity and that the signature is genuine. 

(3) Foreign public documents. A document purporting to be executed or attested in an official capacity by 

a person authorized by the laws of a foreign country to make the execution or attestation, and accompanied by 

a final certification as to the genuineness of the signature and official position (A) of the executing or attesting 

person, or (B) of any foreign official whose certificate of genuineness of signature and official position relates 

to the execution or attestation or is in a chain of certificates of genuineness of signature and official position 
M.R.E. 1001(4) 

relating to the execution of attestation. A final certification may be made by a secretary of embassy or legation, 

counsul general, consul, vice consul, or consular agent of the United States, or a diplomatic or consular official 

of the foreign country assigned or accredited to the United States. If reasonable opportunity has been given to 

all parties to investigate the authenticity and accuracy of official documents, the court may, for good cause 

shown, order that they be treated as presumptively authentic without final certification or permit them to be 

evidenced by an attested summary with or without final certification. 

(4) Certified copies of public records. A copy of an official record or report of entry therein, or of a 

document authorized by law to be recorded or filed and actually recorded or filed in a public office, including 

data compilations in any form, certified as correct by the custodian or other person authorized to make the 

certification, by certificate complying with paragraphs (I), (2), or (3) of this rule or complying with any Act of 

Congress, rule prescribed by the Supreme Court pursuant to statutory authority, or an applicable regulation 

prescribed pursuant to statutory authority. 

(4a) Documents or records of the United States accompanied by attesting certificates. Documents or records 

kept under the authority of the United States by any department, bureau, agency, office, or court thereof when 

attached to or accompanied by an attesting certificate of the custodian of the document or record without further 

authentication. 

(5)Official publications. Books, pamphlets, or other publications purporting to be issued by public authority. 

(6)Newspapers and periodicals. Printed materials purporting to be newspapers or periodicals. 

(7)Trade inscriptions and the like. Inscriptions, signs, tags or labels purporting to have been affixed in the 

course of business and indicating ownership, control, or origin. 

(8) Acknowledged documents. Documents accompanied by a certificate of acknowledgement executed in 

the manner provided by law by a notary public or other officer authorized by law to take acknowledgements. 

(9)Commercial paper and related documents. Commercial paper, signatures thereon, and documents relating 

thereto to the extent provided by general commercial law. 

(10) Presumptions under Acts of Congress and regulations. Any signature, document, or other matter 

declared by Act of Congress or by applicable regulation prescribed pursuant to statutory authority to be presumptively or prima facie genuine or authentic. 

Rule 903. Subscribing witness' testimony unnecessary 

The testimony of a subscribing witness is not necessary to authenticate a writing unless required by the laws 

of the jurisdiction whose laws govern the validity of the writing. 

Section X. CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS 

Rule 1001. Definitions 

For purposes of this section the following definitions are applicable: 

(1) Writings and recordings. "Writings" and "recordings" consist of letters, words, or numbers, or their 

equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, 

mechanical or electronic recording, or other form of data compilation. 

(2)Photographs. "Photographs" include still photographs, X-ray films, video tapes, and motion pictures. 

(3) Original. An "original" of a writing or recording is the writing or recording itself or any counterpart 

intended to have the same effect by a person executing or issuing it. An "original" of a photograph includes 

the negative or any print therefrom. If data are stored in a computer or similar device, any printout or other 

output readable by sight, shown to reflect the data accurately, is an "original." 

(4) Duplicate. A "duplicate" is a counterpart produced by the same impression as the original, or from the 

same matrix, or by means of photography, including enlargements and miniatures, or by mechanical or electronic 

rerecording, or by chemical reproduction, or by other equivalent techniques which accurately reproduce the original. 
M.R.E. 1002 

Rule 1002. Requirement of an original 

To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is 

required, except as otherwise provided in these rules, this Manual, or by Act of Congress. 

Rule 1003. Admissibility of duplicates 

A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the 

authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the 

original. 

Rule 1004. Admissibility of other evidence of contents 

The original is not required, and other evidence of the contents of a writing, recording, or photograph is 

admissible if: 

(1) Originals lost or destroyed. All originals are lost or have been destroyed, unless the proponent lost or 

destroyed them in bad faith; or 

(2) Original not obtainable. No original can be obtained by any available judicial process or procedure; or 

(3) Original in possession of opponent. At a time when an original was under the control of the party against 

whom offered, the party was put on notice, by the pleadings or otherwise, that the contents would be a subject 

of proof at the hearing, and the party does not produce the original at the hearing; or 

(4) Collateral matters. The writing, recording, or photograph is not closely related to a controlling issue. 

Rule 1005. Public records 

The contents of an official record, or of a document authorized to be recorded or filed and actually recorded 

or filed, including data compilations in any form, if otherwise admissible, may be proved by copy, certified as 

correct or attested to in accorance with Mil. R. Evid. 902 or testified to be correct by a witness who has compared 

it with the original. If a copy which complies with the foregoing ,cannot be obtained by the exercise of reasonable 

diligence, then other evidence of the contents may be given. 

Rule 1006. Summaries 

The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in 

court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be 

made available for examination or copying, or both, by other parties at reasonable time and place. The military 

judge may order that they be produced in court. 

Rule 1007. Testimony or written admission of party 

Contents of writings, recordings, or photographs may be proved by the testimony or deposition of the party 

against whom offered or by the party's written admission, without accounting for the nonproduction of the 

original. 

Rule 1008. Functions of military judge and members 

When the admissibility of other evidence of contents of writings, recordings, or photographs under these rules 

depends upon the fulfillment of a condition of fact, the question whether the condition has been fulfilled is 

ordinarily for the military judge to determine in accordance with the provisions of Mil. R. Evid. 104. However, 

when an issue is raised (a) whether the asserted writing ever existed, or (b) whether another writing, recording, 

or photograph produced at trial is the original, or (c) whether other evidence of contents correctly reflects the 

contents, the issue is for the trier of fact to determine as in the case of other issues of fact. 
M.R.E. 1103 

Section XI. MISCELLANEOUS RULES 

Rule 1101. Applicability of rules 

(a) Rules applicable. Except as otherwise provided in this Manual, these rules apply generally to all courtsmartial, including summary courts-martial; to proceedings pursuant to Article 39(a); to limited factfinding proceedings ordered on review; to proceedings in revision; and to contempt proceedings except those in which the 

judge may act summarily. 

(b) Rules of privilege. The rules with respect to privileges in Section 111and V apply at all stages of all actions, 

cases, and proceedings. 

(c) Rules relaxed. The application of these rules may be relaxed in sentencing proceedings as provided under 

R.C.M. 1001 and otherwise as provided in this Manual. 

(d) Rules inapplicable. These rules (other than with respect to privileges) do not apply in investigative hearings 

pursuant to Article 32; proceedings for vacation of suspension of sentence pursuant to Article 72; proceedings 

for search authorizations; proceedings involving pretrial restraint; and in other proceedings authorized under the 

code or this Manual and not listed in subdivision (a). 

Rule 11 02. Amendments 

Amendments to the Federal Rules of Evidence shall apply to the Military Rules of Evidence 180 days after 

the effective date of such amendments unless action to the col?trary is taken by the President. 

Rule 1103. Title 

These rules may be known and cited as the Military Rules of Evidence. 
PART IV 


PUNITIVE ARTICLES 


Introductory Discussion 

Paragraphs 1 and 2 discuss the two articles of the code that are located in the punitive article subchapter 

of the code, but which are not punitive as such: Article 77, principals; and Article 79, lesser included offenses. 

R.C.M. 307 prescribes rules for preferral of charges. The discussion under that rule explains how to allege 

violations under the code using the format of charge and specification. 

Beginning with paragraph 3, the punitive articles of the code are discussed using the following sequence: 

a. Text of the article 

b. Elements of the offense or offenses 

c. Explanation 

d. Lesser included offenses 

e. Maximum punishment 

f. Sample specifications 

The prescriptions of maximum punishments in subparagraph e of each paragraph of this part must be read 

in conjunction with R.C.M. 1003, which prescribes additional punishments that may be available and additional 

limitations on punishments. The sample specifications provided in subparagraph f of each paragraph in this part 

are guides. The specifications may be varied in form and content as necessary. See R.C.M. 307 for additional 

guidance. 

1. Article 77-Principals 

a. Text. 


"Any person punishable under this chapter who- 


(1) commits an offense punishable by this chapter, or aids, abets, counsels, commands, or procures 

its commission; or 

(2) causes an act to be done which if directly performed by him would be punishable by this chapter; 

is a principal. " 

b. Explanation. 

(1) Purpose. Article 77 does not define an offense. Its purpose is to make clear that a person need not 

personally perform the acts necessary to constitute an offense to be guilty of it. A person who aids, abets, 

counsels, commands, or procures the commission of an offense, or who causes an act to be done which, if done 

by that person directly, would be an offense is equally guilty of the offense as one who commits it directly, and 

may be punished to the same extent. 

Article 77 eliminates the common law distinctions between principal in the first degree ("perpetrator"); 

principal in the second degree (one who aids, counsels, commands, or encourages the commission of an offense 

and who is present at the scene of the crime-commonly known as an "aider and abettor"); and accessory 

before the fact (one who aids, counsels, commands, or encourages the commission of an offense and who is not 

present at the scene of the crime). All of these are now "principals." 

(2) Who may be liable for an offense. 

(a) Perpetrator. A perpetrator is one who actually commits the offense, either by the perpetrator's 
own hand, or by causing an offense to be committed by knowingly or intentionally inducing or setting in motion 

acts by an animate or inanimate agency or instrumentality which result in the commission of an offense. For 

example, a person who knowingly conceals contraband drugs in an automobile, and then induces another person, 

who is unaware and has no reason to know of the presence of drugs, to drive the automobile onto a military 

installation, is, although not present in the automobile, guilty of wrongful introduction of drugs onto a military 

installation. (On these facts, the driver would be guilty of no crime.) Similarly, if, upon orders of a superior, a 

soldier shot a person who appeared to the soldier to be an enemy, but was known to the superior as a friend, 

the superior would be guilty of murder (but the soldier would be guilty of no offense). 

(b) Other Parties. If one is not a perpetrator, to be guilty of an offense committed by the perpetrator, 

the person must: 

(i) Assist, encourage, advise, instigate, counsel, command, or procure another to commit, 

or assist, encourage, advise, counsel, or command another in the commission of the offense; and 

(ii) Share in the criminal purpose or design. 

One who, without knowledge of the criminal venture or plan, unwittingly encourages or renders assistance 

to another in the commission of an offense is not guilty of a crime. See the parentheticals in the examples in 

paragraph lb(2)(a) above. In some circumstances, inaction may make one liable as a party, where there is a 

duty to act. If a person (for example, a security guard) has a duty to interfere in the commission of an offense, 

but does not interfere, that person is a party to the crime if such noninterference is intended to and does operate 

as an aid or encouragement to the actual perpetrator. 

(3) Presence 

(a) Not necessary. Presence at the scene of the crime is not necessary to make one a party to the 

crime and liable as a principal. For example, one who, knowing that a person intends to shoot another person 

and intending that such an assault be carried out, provides the person with a pistol, is guilty of assault when the 

offense is committed, even though not present at the scene. 

(b) Not sufficient. Mere presence at the scene of a crime does not make one a principal unless 

the requirements of paragraph lb(2)(a) or (b) have been met. 

(4) Parties whose intent difSers from the perpetrator's. When an offense charged requires proof of a 

specific intent or particular state of mind as an element, the evidence must prove that the accused had that intent 

or state of mind, whether the accused is charged as a perpetrator or an "other party" to the crime. It is possible 

for a party to have a state of mind more or less culpable than the perpetrator of the offense. In such a case, the 

party may be guilty of a more or less serious offense than that committed by the perpetrator. For example, when 

a homicide is committed, the perpetrator may act in the heat of sudden passion caused by adequate provocation 

and be guilty of manslaughter, while the party who, without such passion, hands the perpetrator a weapon and 

encourages the perpetrator to kill the victim, would be guilty of murder. On the other hand, if a party assists a 

perpetrator in an assault on a person who, known only to the perpetrator, is an officer, the party would be guilty 

only of assault, while the perpetrator would be guilty of assault on an officer. 

(5) Responsibility for other crimes. A principal may be convicted of crimes committed by another 

principal if such crimes are likely to result as a natural and probable consequence of the criminal venture or 

design. For example, the accused who is a party to a burglary is guilty as a principal not only of the offense of 

burglary, but also, if the perpetrator kills an occupant in the course of the burglary, of murder. (See also paragraph 

5 concerning liability for offenses committed by co-conspirators.) 

(6) Principals independently liable. One may be a principal, even if the perpetrator is not identified 

or prosecuted, or is acquitted. 

(7) Withdrawal. A person may withdraw from a common venture or design and avoid liability for any 

offenses committed after the withdrawal. To be effective, the withdrawal must meet the following requirements: 

(a) It must occur before the offense is committed; 

(b) The assistance, encouragement, advice, instigation, counsel, command, or procurement given 

by the person must be effectively countermanded or negated; and 
(c) The withdrawal must be clearly communicated to the would-be perpetrators or to appropriate 

law enforcement authorities in time for the perpetrators to abandon the plan or for law enforcement authorities 

to prevent the offense. 

2. Article 79-Conviction of lesser included offenses 

a. Text. 

"An accused may be found guilty of an offense necessarily included in the offense charged or of an attempt 

to commit either the offense charged or an offense necessarily included therein." 

b. Explanation. 

(1) In general. A lesser offense is included in a charged offense when the specification contains 

allegations which either expressly or by fair implication put the accused on notice to be prepared to defend 

against it in addition to the offense specifically charged. This requirement of notice may be met when: 

(a) All of the elements of the lesser offense are included in the greater offense, and the common 

elements are identical (for example, larceny as a lesser included offense of robbery); 

(b) All of the elements of the lesser offense are included in the greater offense, but one or more 

elements is legally less serious (for example, housebreaking as lesser included offense of burglary); or 

(c) All of the elements of the lesser offense are included and necessary parts of the greater offense, 

but the mental element is legally less serious (for example, wrongful appropriation as a lesser included offense 

of larceny). 

The notice requirement may also be met, depending on the allegations in the specification, even though an 

included offense requires proof of an element not required in the offense charged. For example, assault with a 

dangerous weapon may be included in a robbery. 

(2) Multiple lesser included offenses. When the offense charged is a compound offense comprising 

two or more included offenses, an accused may be found guilty of any or all of the offenses included in the 

offense charged. For example, robbery includes both larceny and assault. Therefore, in a proper case, a courtmartial may find an accused not guilty of robbery, but guilty of wrongful appropriation and assault. 

(3) Findings of guilty to a lesser included offense. A court-martial may find an accused not guilty of 

the offense charged, but guilty of a lesser included offense by the process of exception and substitution. The 

court-martial may except (that is, delete) the words in the specification that pertain to the offense charged and, 

if necessary, substitute language appropriate to the lesser included offense. For example, the accused is charged 

with murder in violation of Article 118, but found guilty of voluntary manslaughter in violation of Article 119. 

Such a finding may be worded as follows: 

Of the Specification: Guilty, except the word "murder," substituting therefor the words "willfully 

and unlawfully kill"; of the excepted word, not guilty, of the substituted 

words, guilty. 

Of the Charge: Not guilty, but guilty of a violation of Article 119. 

If a court-martial finds an accused guilty of a lesser included offense, the finding as to the charge shall state a 

violation of the specific punitive article violated and not a violation of Article 79. 

(4) Spec$c lesser included offenses. Specific lesser included offenses, if any, are listed for each offense 

discussed in this Part, but the lists are not all-inclusive. 

3. Article 78-Accessory after the fact 

a. Text. 

"Any person subject to this chapter who, knowing that an offense punishable by this chapter has been 

committed, receives, comforts, or assists the offender in order to hinder or prevent his apprehension, trial, or 

punishment shall be punished as a court-martial may direct." 

b. Elements. 

IV-3 
(1) That an offense punishable by the code was committed by a certain person; 

(2) That the accused knew that this person had committed such offense; 

(3) That thereafter the accused received, comforted, or assisted the offender; and 

(4) That the accused did so for the purpose of hindering or preventing the apprehension, trial, or 

punishment of the offender. 

c. Explanation. 

(1) In general. The assistance given a principal by an accessory after the fact is not limited to assistance 

designed to effect the escape or concealment of the principal, but also includes acts performed to conceal the 

commission of the offense by the principal (for example, by concealing evidence of the offense). 

(2)Failure to report offense. The mere failure to report a known offense will not make one an accessory 

after the fact. Such failure may violate a general order or regulation, however, and thus constitute an offense 

under Article 92. See paragraph 16. If the offense involved is a serious offense, failure to report it may constitute 

the offense of misprision of a serious offense, under Article 134. See paragraph 95. 

(3) Offense punishable by the code. The term "offense punishable by this chapter" in the text of the 

article means any offense described in the code. 

(4) Status of principal. The principal who committed the offense in question need not be subject to 

the code, but the offense committed must be punishable by the code. 

(5) Conviction or acquittal of principal. The prosecution must prove that a principal committed the 

offense to which the accused is allegedly an accessory after the fact. However, evidence of the conviction or 

acquittal of the principal in a separate trial is not admissible to show that the principal did or did not commit 

the offense. Furthermore, an accused may be convicted as an accessory after the fact despite the acquittal in a 

separate trial of the principal whom the accused allegedly comforted, received, or assisted. 

(6) Accessory ajier the fact not a lesser included offense. The offense of being an accessory after the 

fact is not a lesser included offense of the primary offense. 

(7)Actual knowledge. Actual knowledge is required but may be proved by circumstantial evidence. 

d. Lesser included offense. Article 80-attempts 

e. Maximum punishment. Any person subject to the code who is found guilty as an accessory after the fact 

to an offense punishable by the code shall be subject to the maximum punishment authorized for the principal 

offense, except that in no case shall the death penalty nor more than one-half of the maximum confinement 

authorized for that offense be adjudged, nor shall the period of confinement exceed 10years in any case, including 

offenses for which life imprisonment may be adjudged. 

f. Sample specijkation. 

In that (personal jurisdiction data), knowing that (atlon board-location), on or about 

19 -,h a d committed an offense punishable by the Uniform Code of Military 

Justice, to wit: ,did, (atlon board-location) (subject-matter jurisdiction data, if required), on 

or about 19 -, in order to (hinder) (prevent) the (apprehension) (trial) (punishment) of the 

said , (receive) (comfort) (assist) the said by 

4. Article 80-Attempts 

a. Text. 

"(a) An act, done with specific intent to commit an offense under this chapter, amounting to more than 

mere preparation and tending, even though failing, to effect its commission, is an attempt to commit that 

offense. 

(b) Any person subject to this chapter who attempts to commit any offense punishable by this chapter shall 

be punished as a court-martial may direct, unless otherwise specifically prescribed. 
(c) Any person subject to this chapter may be convicted of an attempt to commit an offense although it 

appears on the trial that the offense was consummated." 

b. Elements. 

(1) That the accused did a certain overt act; 

(2) That the act was done with the specific intent to commit a certain offense under the code; 

(3) That the act amounted to more than mere preparation; and 

(4) That the act apparently tended to effect the commission of the intended offense. 

c. Explanation. 

(1) In general. To constitute an attempt there must be a specific intent to commit the offense accompanied 

by an overt act which directly tends to accomplish the unlawful purpose. 

(2) More than preparation. Preparation consists of devising or arranging the means or measures 

necessary for the commission of the offense. The overt act required goes beyond preparatory steps and is a direct 

movement toward the commission of the offense. For example, a purchase of matches with the intent to bum a 

haystack is not an attempt to commit arson, but it is an attempt to commit arson to apply a burning match to a 

haystack, even if no fire results. The overt act need not be the last act essential to the consummation of the 

offense. For example, an accused could commit an overt act, and then voluntarily decide not to go through with 

the intended offense. An attempt would nevertheless have been committed, for the combination of a specific 

intent to commit an offense, plus the commission of an overt act directly tending to accomplish it, constitutes 

the offense of attempt. Failure to complete the offense, whatever the cause, is not a defense. 

(3) Factual impossibility. A person who purposely engages in conduct which would constitute the 

offense if the attendant circumstances were as that person believed them to be is guilty of an attempt. For 

example, if A, without justification or excuse and with intent to kill B, points a gun at B and pulls the trigger, 

A is guilty of attempt to murder, even though, unknown to A, the gun is defective and will not fire. Similarly, 

a person who reaches into the pocket of another with the intent to steal that person's billfold is guilty of an 

attempt to commit larceny, even though the pocket is empty. 

(4) Solicitation. Soliciting another to commit an offense does not constitute an attempt. See paragraph 

6 for a discussion of Article 82, solicitation. 

(5)Attempts not under Article 80. While most attempts should be charged under Article 80, the following 

attempts are specifically addressed by some other article, and should be charged accordingly: 

(a) Article 85-desertion 

(b) Article 94-mutiny or sedition 

(c) Article 100-subordinate compelling 

(d) Article 104-aiding the enemy 

(e) Article 128-assault 

(6) Regulations. An attempt to commit conduct which would violate a lawful general order or regulation 

under Article 92 (see paragraph 16) should be charged under Article 80. It is not necessary in such cases to 

prove that the accused intended to violate the order or regulation, but it must be proved that the accused intended 

to commit the prohibited conduct. 

d. Lesser included offenses. If the accused is charged with an attempt under Article 80, and the offense 

attempted has a lesser included offense, then the offense of attempting to commit the lesser included offense 

would ordinarily be a lesser included offense to the charge of attempt. For example, if an accused was charged 

with attempted larceny, the offense of attempted wrongful appropriation would be a lesser included offense, 

although it, like the attempted larceny, would be a violation of Article 80. 

e. Maximum punishment. Any person subject to the code who is found guilty of an attempt under Article 

80 to commit any offense punishable by the code shall be subject to the same maximum punishment authorized 
for the commission of the offense attempted, except that in no case shall the death penalty or confinement 

exceeding 20 years be adjudged. 

f. Sample specification. 

In that (personal jurisdiction data) did, (atlon board-location) (subject-matter jurisdiction data, if required), on or about 19 -, attempt to (describe offense with sufficient detail 

to include expressly or by necessary implication every element). 

5. Article 81-Conspiracy 

a. Text. 

"Any person subject to this chapter who conspires with any other person to commit an offense under this 

chapter shall, if one or more of the conspirators does an act to effect the object of the conspiracy, be punished 

as a court-martial may direct." 

b. Elements. 

(1) That the accused entered into an agreement with one or more persons to commit an offense under 

the code; and 

(2) That, while the agreement continued to exist, and while the accused remained a party to the 

agreement, the accused or at least one of the co-conspirators performed an overt act for the purpose of bringing 

about the object of the conspiracy. 

C. Explanation. 

(1) Co-conspirators. Two or more persons are required in order to have a conspiracy. Knowledge of 

the identity of co-conspirators and their particular connection with the criminal purpose need not be established. 

The accused must be subject to the code, but the other co-conspirators need not be. A person may be guilty of 

conspiracy although incapable of committing the intended offense. For example, a bedridden conspirator may 

knowingly furnish the car to be used in a robbery. The joining of another conspirator after the conspiracy has 

been established does not create a new conspiracy or affect the status of the other conspirators. However, the 

conspirator who joined an existing conspiracy can be convicted of this offense only if, at or after the time of 

joining the conspiracy, an overt act in furtherance of the object of the agreement is committed. 

(2)Agreement. The agreement in a conspiracy need not be in any particular form or manifested in any 

formal words. It is sufficient if the minds of the parties arrive at a common understanding to accomplish the 

object of the conspiracy, and this may be shown by the conduct of the parties. The agreement need not state 

the means by which the conspiracy is to be accomplished or what part each conspirator is to play. 

(3) Object of the agreement. The object of the agreement must, at least in part, involve the commission 

of one or more offenses under the code. An agreement to commit several offenses is ordinarily but a single 

conspiracy. Some offenses require two or more culpable actors acting in concert. There can be no conspiracy 

where the agreement exists only between the persons necessary to commit such an offense. Examples include 

dueling, bigamy, incest, adultery, and bribery. 

(4) Overt act. 

(a) The overt act must be independent of the agreement to commit the offense; must take place 

at the time of or after the agreement; must be done by one or more of the conspirators, but not necessarily the 

accused; and must be done to effectuate the object of the agreement. 

(b) The overt act need not be in itself criminal, but it must be a manifestation that the agreement 

is being executed. Although committing the intended offense may constitute the overt act, it is not essential that 

the object offense be committed. Any overt act is enough, no matter how preliminary or preparatory in nature, 

as long as it is a manifestation that the agreement is being executed. 

(c) An overt act by one conspirator becomes the act of all without any new agreement specifically 

directed to that act and each conspirator is equally guilty even though each does not participate in, or have 

knowledge of, all of the details of the execution of the conspiracy. 
(5)Liability for offenses. Each conspirator is liable for all offenses committed pursuant to the conspiracy 

by any of the co-conspirators while the conspiracy continues and the person remains a party to it. 

(6) Withdrawal. A party to the conspiracy who abandons or withdraws from the agreement to commit 

the offense before the commission of an overt act by any conspirator is not guilty of conspiracy. An effective 

withdrawal or abandonment must consist of affirmative conduct which is wholly inconsistent with adherence to 

the unlawful agreement and which shows that the party has severed all connection with the conspiracy. A 

conspirator who effectively abandons or withdraws from the conspiracy after the performance of an overt act by 

one of the conspirators remains guilty of conspiracy and of any offenses committed pursuant to the conspiracy 

up to the time of the abandonment or withdrawal. However, a person who has abandoned or withdrawn from 

the conspiracy is not liable for offenses committed thereafter by the remaining conspirators. The withdrawal of 

a conspirator from the conspiracy does not affect the status of the remaining members. 

(7) Factual impossibility. It is not a defense that the means adopted by the conspirators to achieve their 

object, if apparently adapted to that end, were actually not capable of success, or that the conspirators were not 

physically able to accomplish their intended object. 

(8) Conspiracy as a separate offense. A conspiracy to commit an offense is a separate and distinct 

offense from the offense which is the object of the conspiracy, and both the conspiracy and the consummated 

offense which was its object may be charged, tried, and punished. The commission of the intended offense may 

also constitute the overt act which is an element of the conspiracy to commit that offense. 

(9) Special conspiracies under Article 134. The United States Code prohibits conspiracies to commit 

certain specific offenses which do not require an overt act. These conspiracies should be charged under Article 

134. Examples include conspiracies to impede or injure any Federal officer in the discharge of duties under 18 

U.S.C. $ 372, conspiracies against civil rights under 18 U.S.C. 241, and certain drug conspiracies under 21 

U.S.C. § 846. See paragraph 60c(4)(c)(ii). 

d. Lesser included offense. Article 80-attempts 

e. Maximum punishment. Any person subject to the code who is found guilty of conspiracy shall be subject 

to the maximum punishment authorized for the offense which is the object of the conspiracy, except that in no 

case shall the death penalty be imposed. 

f. Sample specification. 

In that (personal jurisdiction data), did, (atlon board-location) (subject-matter jurisdiction data, if required), on or about 19 -, conspire with (and 1 

to commit an offense under the Uniform Code of Military Justice, to wit: (larceny of ,of a value of 

(about) $ ,the property of ), and in order to effect the object of the conspiracy the 

said (and ) did 

6. Article 82-Solicitation 

a. Text. 

"(a) Any person subject to this chapter who solicits or advises another or others to desert in violation of 

section 885 of this title (Article 85) or mutiny in violation of section 894 of this title (Article 94) shall, if the 

offense solicited or advised is attempted or committed, be punished with the punishment provided for the 

commission of the offense, but, if the offense solicited or advised is not committed or attempted, he shall be 

punished as a court-martial may direct. 

(b) Any person subject to this chapter who solicits or advises another or others to commit an act of misbehavior 

before the enemy in violation of section 899 of this title (Article 99) or sedition in violation of section 894 of 

this title (Article 94) shall, if the offense solicited or advised is committed, be punished with the punishment 

provided for the commission of the offense, but, if the offense solicited or advised is not committed, he shall 

be punished as a court-martial may direct." 

b. Elements. 

(1) That the accused solicited or advised a certain person or persons to commit any of the four offenses 

named in Article 82; and 

(2) That the accused did so with the intent that the offense actually be committed. 

[Note: If the offense solicited or advised was attempted or committed, add the following element] 
(3) That the offense solicited or advised was (committed) (attempted) as the proximate result of the 

solicitation. 

c. Explanation. 

(1) Instantaneous offense. The offense is complete when a solicitation is made or advice is given with 

the specific wrongful intent to influence another or others to commit any of the four offenses named in Article 

82. It is not necessary that the person or persons solicited or advised agree to or act upon the solicitation or 

advice. 

(2) Form of solicitation. Solicitation may be by means other than word of mouth or writing. Any act 

or conduct which reasonably may be construed as a serious request or advice to commit one of the four offenses 

named in Article 82 may constitute solicitation. It is not necessary that the accused act alone in the solicitation 

or in the advising; the accused may act through other persons in committing this offense. 

(3) Solicitations in violation of Article 134. Solicitation to commit offenses other than violations of 

the four offense named in Article 82 may be charged as violations of Article 134. See paragraph 105. However, 

some offenses require, as an element of proof, some act of solicitation by the accused. These offenses are 

separate and distinct from solicitations under Articles 82 and 134. When the accused's act of solicitation 

constitutes, by itself, a separate offense, the accused should be charged with that separate, distinct offense-for 

example, pandering (see paragraph 97) and obstruction of justice (see paragraph 96) in violation of Article 134. 

d. Lesser included offense. Article 80-attempts 

e. Maximum punishment. If the offense solicited or advised is committed or (in the case of soliciting desertion 

or mutiny) attempted, then the accused shall be punished with the punishment provided for the commission of 

the offense solicited or advised. If the offense solicited or advised is not committed or (in the case of soliciting 

desertion or mutiny) attempted, then the following punishment may be imposed: 

(1) To desert-Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 3 

years. 

(2) To mutiny-Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 10 

years. 

(3) To commit an act of misbehavior before the enemy-Dishonorable discharge, forfeiture of all pay 

and allowances, and confinement for 10 years. 

(4) To commit an act of sedition-Dishonorable discharge, forfeiture of all pay and allowances, and 

confinement for 10 years. 

f. Sample specifications. 

(1) For soliciting desertion (Article 85) or mutiny (Article 94). 

In that (personal jurisdiction data), did, (at/on board-location), on or about - 19 -, (a time of war) by (here state the manner and form of solicitation or advice), (solicit) (advise) -

(and ) to (desert in violation of Article 85) (mutiny in violation of Article 94) [Note:If the offense 

solicited or advised is attempted or committed, add the following at the end of the specification:] and, as a result 

of such (solicitation) (advice), the offense (solicited) (advised) was, on or about , 19-, 

(at/on board-location), (attempted) (committed) by (and ). 

(2)For soliciting an act of misbehavior before the enemy (Article 99) or sedition (Article 94). 

In that (personal jurisdiction data) did, (at/on board-location), on or about 

19 -, (a time of war) by (here state the manner and form of solicitation or advice), (solicit) (advise), 

(and ) to commit (an act of misbehavior before the enemy in violation of Article 99) 

(sedition in violation of Article 94) [Note:If the offense solicited or advised is committed, add the following at the 

end of the speci$cation:] and, as a result of such (solicitation) (advice), the offense (solicited) (advised) was, on or 

about 19 -,(atlon board-location), committed by (and 1. 

7. Article 83-Fraudulent enlistment, appointment, or separation 

a. Text. 


"Any person who- 


(1) procures his own enlistment or appointment in the armed forces by knowingly false representation 
or deliberate concealment as to his qualifications for that enlistment or appointment and receives pay or allowances 

thereunder; or 

(2) procures his own separation from the armed forces by knowingly false representation or deliberate 

concealment as to his eligibility for that separation; 

shall be punished as a court-martial may direct." 

b. Elements. 

(1) Fraudulent enlistment or appointment. 

(a) That the accused was enlisted or appointed in an armed force; 

(b) That the accused knowingly misrepresented or deliberately concealed a certain material fact 

or facts regarding qualifications of the accused for enlistment or appointment; 

(c) That the accused's enlistment or appointment was obtained or procured by that knowingly 

false representation or deliberate concealment; and 

(d) That under this enlistment or appointment the accused received pay or allowances or both. 

(2) Fraudulent separation. 

(a) That the accused was separated from an armed force; 

(b) That the accused knowingly misrepresented or deliberately concealed a certain material fact 

or facts about the accused's eligibility for separation; and 

(c) That the accused's separation was obtained or procured by that knowingly false representation 

or deliberate concealment. 

c. Explanation. 

(1)In general. A fraudulent enlistment, appointment, or separation is one procured by either a knowingly 

false representation as to any of the qualifications or disqualifications prescribed by law, regulation, or orders 

for the specific enlistment, appointment, or separation, or a deliberate concealment as to any of those disqualifications. Matters that may be material to an enlistment, appointment, or separation include any information 

used by the recruiting, appointing, or separating officer in reaching a decision as to enlistment, appointment, or 

separation in any particular case, and any information that normally would have been so considered had it been 

provided to that officer. 

(2)Receipt of pay or allowances. A member of the armed forces who enlists or accepts an appointment 

without being regularly separated from a prior enlistment or appointment should be charged under Article 83 

only if that member has received pay or allowances under the fraudulent enlistment or appointment. Acceptance 

of food, clothing, shelter, or transportation from the government constitutes receipt of allowances. However, 

whatever is furnished the accused while in custody, confinement, arrest, or other restraint pending trial for 

fraudulent enlistment or appointment is not considered an allowance. The receipt of pay or allowances may be 

proved by circumstantial evidence. 

(3) One offense. One who procures one's own enlistment, appointment, or separation by several 

misrepresentations or concealments as to qualifications for the one enlistment, appointment, or separation so 

procured, commits only one offense under Article 83. 

d. Lesser included offense. Article 80-attempts 

e. Maximum punishment. 

(1) Fraudulent enlistment or appointment. Dishonorable discharge, forfeiture of all pay and allowances, 

and confinement for 2 years. 

(2) Fraudulent separation. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years. 

f. Sample specifications. 
(1) For fraudulent enlistment or appointment. 

In that (personal jurisdiction data), did, (at/on board-location), on or about -

19 -,by means of [knowingly false representations that (here state the fact or facts material to qualification 

for enlistment or appointment which were represented), when in fact (here state the true fact or facts)] [deliberate 

concealment of the fact that (here state the fact or facts disqualifying the accused for enlistment or appointment 

which were concealed)], procure himselflherself to be (enlisted as a ) (appointed as a ) 

in the (here state the armed force in which the accused procured the enlistment or appointment), and did thereafter, 

(atlon board-location), receive (pay) (allowances) (pay and allowances) under the (enlistment) (appointment) 

so procured. 

(2) For fraudulent separcrtion. 

In that (personal jurisdiction data), did, (atfon board-location), on or about -

19 -,by means of [knowingly false representations that (here state the fact or facts material to eligibility 

for separation which were represented), when in fact (here state the true fact or facts)] [deliberate concealment 

of the fact that (here state the fact or facts concealed which made the accused ineligible for separation)], procure 

himselflherself to be separated from the (here state the armed force from which the accused procured hislher 

separation). 

8. Article 84-Effecting unlawful enlistment, appointment, or separation 

a. Text. 

"Any person subject to this chapter who effects an enlistment or appointment in or a separation from the 

armed forces of any person who is known to him to be ineligible for that enlistment, appointment, or separation 

because it is prohibited by law, regulation, or order shall be punished as a court-martial may direct." 

b. Elements. 

(1) That the accused effected the enlistment, appointment, or separation of the person named; 

(2) That this person was ineligible for this enlistment, appointment, or separation because it was 

prohibited by law, regulation, or order; and 

(3) That the accused knew of the ineligibility at the time of the enlistment, appointment, or separation. 

c. Explanation. It must be proved that the enlistment, appointment, or separation was prohibited by law, 

regulation, or order when effected and that the accused then knew that the person enlisted, appointed, or separated 

was ineligible for the enlistment, appointment, or separation. 

d. Lesser included offense. Article 80-attempts 

e. Maximum punishment. 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), on or about -

19 -, effect [the (enlistment) (appointment) of as a in (here state the 

armed force in which the person was enlisted or appointed)] [the separation of f r o m (herestate 

the armed force from which the person was separated)], then well knowing that the said was 

ineligible for such (enlistment) (appointment) (separation) because (here state facts whereby the enlistment, 

appointment, or separation was prohibited by law, regulation, or order). 

9. Article 85-Desertion 

a. Text. 

"(a) Any member of the armed forces who- 

(1) without authority goes or remains absent from his unit, organization, or place of duty with intent 

to remain away therefrom permanently; 

(2) quits his unit, organization, or place of duty with intent to avoid hazardous duty or to shirk important 

service; or 
(3) without being regularly separated from one of the armed forces enlists or accepts an appointment 

in the same or another one of the armed forces without fully disclosing the fact that he has not been regularly 

separated, or enters any foreign armed service except when authorized by the United States [Note: This provision 

has been held not to state a separate offense by the United States Court of Military Appeds in United States v. 

Huff, 7 U.S.C.M.A. 247, 22 C.M.R. 37 (1956)l; 

is guilty of desertion. 

(b) Any commissioned officer of the armed forces who, after tender of his resignation and before 

notice of its acceptance, quits his post or proper duties without leave and with intent to remain away therefrom 

permanently is guilty of desertion. 

(c) Any person found guilty of desertion or attempt to desert shall be punished, if the offense is 

committed in time of war, by death or such other punishment as a court-martial may direct, but if the desertion 

or attempt to desert occurs at any other time, by such punishment, other than death, as a court-martial may 

direct.' ' 

b. Elements. 

(1) Desertion with intent to remain away permanently. 

(a) That the accused absented himself or herself from his or her unit, organization, or place of 

duty; 

(b) That such absence was without authority; 

(c) That the accused, at the time the absence began or at some time during the absence, intended 

to remain away from his or her unit, organization, or place of duty permanently; and 

(d) That the accused remained absent until the date alleged. 


[Note: If the absence was terminated by apprehension, add the following element] 


(e) That the accused's absence was terminated by apprehension. 

(2) Desertion with intent to avoid hazardous duty or to shirk important service. 

(a) That the accused quit his or her unit, organization, or other place of duty; 

(b) That the accused did so with the intent to avoid a certain duty or shirk a certain service; 

(c) That the duty to be performed was hazardous or the service important; 

(d) That the accused knew that he or she would be required for such duty or service; and 

(e) That the accused remained absent until the date alleged. 

(3) Desertion before notice of acceptance of resignation. 

(a) That the accused was a commissioned officer of an armed force of the United States, and had 

tendered his or her resignation; 

(b) That before he or she received notice of the acceptance of the resignation, the accused quit 

his or her post or proper duties; 

(c) That the accused did so with the intent to remain away permanently from his or her post or 

proper duties; and 

(d) That the accused remained absent until the date alleged. 


[Note: If the absence was terminated by apprehension, add the following element] 


(e) That the accused's absence was terminated by apprehension. 

(4)Attempted desertion. 

(a) That the accused did a certain overt act; 
(b) That the act was done with the specific intent to desert; 

(c) That the act amounted to more than mere preparation; and 

(d) That the act apparently tended to effect the commission of the offense of desertion. 

c. Explanation. 

(1) Desertion with intent to remain away permanently. 

(a) In general. Desertion with intent to remain away permanently is complete when the person 

absents himself or herself without authority from his or her unit, organization, or place of duty, with the intent 

to remain away therefrom permanently. A prompt repentence and return, while material in extenuation, is no 

defense. It is not necessary that the person be absent entirely from military jurisdiction and control. 

(b) Absence without authority-inception, duration, termination. See paragraph 10c. 

(c) Intent to remain away permanently. 

(i) The intent to remain away permanently from the unit, organization, or place of duty may 

be formed any time during the unauthorized absence. The intent need not exist throughout the absence, or for 

any particular period of time, as long as it exists at some time during the absence. 

(ii) The accused must have intended to remain away permanently from the unit, organization, 

or place of duty. When the accused had such an intent, it is no defense that the accused also intended to report 

for duty elsewhere, or to enlist or accept an appointment in the same or a different armed force. 

(iii) The intent to remain away permanently may be established by circumstanth evidence. 

Among the circumstances from which an inference may be drawn that an accused intended to remain absent 

permanently or: that the period of absence was lengthy; that the accused attempted to, or did, dispose of uniforms 

or other military property; that the accused purchased a ticket for a distant point or was arrested, apprehended, or 

surrendered a considerable distance from the accused's station; that the accused could have conveniently surrendered 

to military control but did not; that the accused was dissatisfied with the accused's unit, ship, or with military service; 

that the accused made remarks indicating an intention to desert; that the accused was under charges or had escaped 

from confinement at the time of the absence; that the accused made preparations indicative of an intent not to return 

(for example, financial arrangements); or that the accused enlisted or accepted an appointment in the same or another 

armed force without disclosing the fact that the accused had not been regularly seperated, or entered any foreign 

armed service without being authorized by the United States. On the other hand, the following are included in the 

circumstances which may tend to negate an inference that the accused intended to remain away permanently: previous 

long and excellent service; that the accused left valuable personal property in the unit or on the ship; or that the 

accused was under the influence of alcohol or drugs during the absence. These lists are illustrative only. 

(iv) Entries on documents, such as personnel accountability records, which administratively 

refer to an accused as a "deserter" are not evidence of intent to desert. 

(v) Proof of, or a plea of guilty to, and unauthorized absence, even of extended duration, 

does not, without more, prove guilt of desertation. 

(d) EfSeect of enlistment or appointment in the same or a different armed force. Article 85a(3) does 

not state a separate offense. Rather, it is a rule of evidence by which the prosecution may prove intent to remain 

away permanently. Proof of an enlistment or acceptance of an appointment in a service without disclosing a 

preexisting duty status in the same or a different service provides the basis from which an inference of intent to 

permanently remain away from the earlier unit, organization, or place of duty may be drawn. Furthennore, if a 

person, without being regularly separated from one of the armed forces, enlists or accepts an appointment in the 

same or another armed force, the person's presence in the military service under such an enlistment or appointment 

is not a return to military control and does not terminate any desertion or absence without authority from the 

earlier unit or organization, unless the facts of the earlier period of service are known to military authorities. If 

a person, while in desertion, enlists or accepts an appointment in the same or another armed force, and deserts 

while serving that enlistment or appointment, the person may be tried and convicted for each desertion. 

(2)Quitting unit, organization, orplace of duty with intent to avoid hazardous duty or to shirk important 

service. 
(a) Hazardous duty or important service. "Hazardous duty" or "important service" may include 

service such as duty in a combat or other dangerous area; embarkation for certain foreign or sea duty; movement 

to a port of embarkation for that purpose; entrainment for duty on the border or coast in time of war or threatened 

invasion or other disturbances; strike or riot duty; or employment in aid of the civil power, in, for example, 

protecting property, or quelling or preventing disorder in times of great public disaster. Such services as drill, 

target hractice, maneuvers, and practice marches are not ordinarily "hazardous duty or important service." 

Whether a duty is hazardous or a ~ervice is important depends upon the circumstances of the particular case, 

and is a question of fact for the court-martial to decide. 

(b) Quits. "Quits" in Article 85 means "goes absent without authority." 

(c) Actual knowlege. Article 85a(2) requires proof that the accused actually knew of the hazardous 

duty or important service. Actual knowledge may be proved by circumstantial evidence. 

(3) Attempting to desert. Once the attempt is made, the fact that the person desists, voluntarily or 

otherwise, does not cancel the offense. The offense is complete, for example, if the person, intending to desert, 

hides in an empty freight car on a military reservation, intending to escape by being taken away in the car. 

Entering the car with the intent to desert is the overt act. For a more detailed discussion of attempts, see paragraph 

4. For an explanation concerning intent to remain away permanently, see subparagraph 9c(l)(c). 

(4) Prisoner with executed punitive discharge. A prisoner whose dismissal or dishonorable or badconduct discharge has been executed is not a "member of the armed forces" within the meaning of Articles 85 

or 86, although the prisoner may still be subject to military law under Article 2(a)(7). If the facts warrant, such 

a prisoner could be charged with escape from confinement under Article 95 or an offense under Article 134. 

d. Lesser included ofense. Article 86-absence without leave 

e. Maximum punishment. 

(1) Completed or attempted desertion with intent to avoid hazardous duty or to shirk important service. 

Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years. 

(2) Other cases of completed or attempted desertion. 

(a) Terminated by apprehension. Dishonorable discharge, forfeiture of all pay and allowances, 

and confinement for 3 years. 

(b) Terminated otherwise. Dishonorable discharge, forfeiture of all pay and allowances, and 

confinement for 2 years. 

(3) In time of war. Death or such other punishment as a court-martial may direct. 

f. Sample speciJications. 

(1) Desertion with intent to remain away permanently. 

In that (personal jurisdiction data), did, on or about 19 -,(a time of 

war) without authority and with intent to remain away therefrom pewhently, absent himselftherself from his/ 

her (unit) (organization) (place of duty), to wit: 

absent in desertion until (hetshe was apprehended) on or about 

,located at ( 

1 9 . 

), and did remain so 

(2) Desertion with intent to avoid hazardous duty or shirk important service. 

In that (personal jurisdiction data), did, on or about 

war) with intent to (avoid hazardous duty) (shirk important service), namely: 

(unit) (organization) (place of duty), to wit: , located at ( 

so absent in desertion until on or about 19 -. 

19 -,(a time of 

, quit histher 

), and did remain 

(3) Desertion prior to acceptance of resignation. 

In that (personal jurisdiction data) having tendered histher resignation and prior to due ' notice of the acceptance of the same, did, on or about 19 -, (a time of war) without leave and 

with intent to remain away therefrom permanently, quit histher (post) (proper duties), to wit: , 

and did remain so absent in desertion until (hetshe was apprehended) on or about 19 -. 
(4) Attempted desertion. 

In that (personal jurisdiction data), did (atton board-location), on or about 

19 -,(a time of war) attempt to [absent himselflherself from hislher (unit) (organization) (place of duty) 

to wit: , without authority and with intent to remain away therefrom permanently] [quit his1 

her (unit) (organization) (place of duty), to wit: 

(avoid hazardous duty) (shirk important service) namely 

, located at 

1 [ 

,with intent to 

1. 

10. Article 86-Absence without leave 

a. Text. 

"Any member of the armed forces who, without authority- 

(1) fails to go to his appointed place of duty at the time prescribed; 

(2) goes from that place; or 

(3) absents himself or remains absent from his unit, organization, or place of duty at which he is 

required to be at the time prescribed; 

shall be punished as a court-martial may direct." 

b. Elements. 

(1) Failure to go to appointed place of duty. 

(a) That a certain authority appointed a certain time and place of duty for the accused; 

(b) That the accused knew of that time and place; and 

(c) That the accused, without authority, failed to go to the appointed place of duty at the time 

prescribed. 

(2) Going from appointed place of duty. 

(a) That a certain authority appointed a certain time and place of duty for the accused; 

(b) That the accused knew of that time and place; and 

(c) That the accused, without authority, went from the appointed place of duty after having reported 

at such place. 

(3) Absence from unit, organization, or place of duty. 

(a) That the accused absented himself or herself from his or her unit, organization, or place of 

duty at which he or she was required to be; 

(b) That the absence was without authority from anyone competent to give him or her leave; and 

(c) That the absence was for a certain period of time. 

[Note: if the absence was terminated by apprehension, add the following element] 

(d) That the absence was terminated by apprehension. 

(4) Abandoning watch or guard. 

(a) That the accused was a member of a guard, watch, or duty; 

(b) That the accused absented himself or herself from his or her guard, watch, or duty section; 

(c) That the absence of the accused was without authority; and 

(d) That the accused intended to abandon his or her guard, watch, or duty section. 

(5)Absence from unit, organization, or place of duty with intent to avoid maneuvers orfield exercises. 
(a) That the accused absented himself or herself from his or her unit, organization, or place of 

duty at which he or she was required to be; 

(b) That the absence of the accused was without authority; 

(c) That the absence was for a certain period of time; 

(d) That the accused knew that the absence would occur during a part of a period of maneuvers 

or field exercises; and 

(e) That the accused intended to avoid all or part of a period of maneuvers or field exercises. 

c. Explanation. 

(1) In general. This article is designed to cover every case not elsewhere provided for in which any 

member of the armed forces is through the member's own fault not at the place where the member is required 

to be at a prescribed time. It is not necessary that the person be absent entirely from military jurisdiction add 

control. The first part of this article-relating to the appointed place of duty-applies whether the place is 

appointed as a rendezvous for several or for one only. 

(2)Actual knowledge. The offenses of failure to go to and going from appointed place of duty require 

proof that the accused actually knew of the appointed time and place of duty. The offense of absence from unit, 

organization, or place of duty with intent to avoid maneuvers or field exercises requires proof that the accused 

actually knew that the absence would occur during a part of a period of maneuvers or field exercises. Actual 

knowledge may be proved by circumstantial evidence. 

(3) Intent. Specific intent is not an element of unauthorized absence. Specific intent is an element for 

certain aggravated unauthorized absences. 

(4) Aggravated forms of unauthorized absence. There are variations of unauthorized absence under 

Article 86(3) which are more serious because of aggravating circumstances such as duration of the absence, a 

special type of duty from which the accused absents himself or herself, and a particular specific intent which 

accompanies the absence. These circumstances are not essential elements of a violation of Article 86. They 

simply constitute special matters in aggravation. The following are aggravated unauthorized absences: 

(a) Unauthorized absence for more than 3 days (duration). 

(b) Unauthorized absence for more than 30 days (duration). 

(c) Unauthorized absence from a guard, watch, or duty (special type of duty). 

(d) Unauthorized absence from guard, watch, or duty section with the intent to abandon it (special 

type of duty and specific intent). 

(e) Unauthorized absence with the intent to avoid maneuvers or field exercises (special type of 

duty and specific intent). 

(5) Control by civilian authorities. A member of the armed forces turned over to the civilian authorities 

upon request under Article 14 (see R.C.M. 106) is not absent without leave while held by them under that 

delivery. When a member of the armed forces, being absent with leave, or absent without leave, is held, uied, 

and acquitted by civilian authorities, the member's status as absent with leave, or absent without leave, is not 

thereby changed, regardless how long held. The fact that a member of the armed forces is convicted by the 

civilian authorities, or adjudicated to be a juvenile offender, or the case is "diverted" out of the regular criminal 

process for a probationary period does not excuse any unauthorized absence, because the member's inability to 

return was the result of willful misconduct. If a member is released by the civilian authorities without trial, and 

was on authorized leave at the time of arrest or detention, the member may be found guilty of unauthorized 

absence only if it is proved that the member actually committed the offense for which detained, thus establishing 

that the absence was the result of the member's own misconduct. 

(6) Inability to return. The status of absence without leave is not changed by an inability to return 

through sickness, lack of transportation facilities, or other disabilities. But the fact that all or part of a period 

of unauthorized absence was in a sense enforced or involuntary is a factor in extenuation and should be given 

due weight when considering the initial disposition of the offense. When, however, a person on authorized leave, 
without fault, is unable to return at the expiration thereof, that person has not committed the offense of absence 

without leave. 

(7) Determining the unit or organization of an accused. A person undergoing transfer between activities 

is ordinarily considered to be attached to the activity to which ordered to report. A person on temporary additional 

duty continues as a member of the regularly assigned unit and if the person is absent from the temporary duty 

assignment, the person becomes absent without leave from both units, and may be charged with being absent 

without leave from either unit. 

(8) Duration. Unauthorized absence under Article 86(3) is an instantaneous offense. It is complete at 

the instant an accused absents himself or herself without authority. Duration of the absence is a matter in 

aggravation for the purpose of increasing the maximum punishment authorized for the offense. Even if the 

duration of the absence is not over 3 days, it is ordinarily alleged in an Article 86(3) specification. If the duration 

is not alleged or if alleged but not proved, an accused can be convicted of and punished for only 1 day of 

unauthorized absence. 

(9)Computation of duration. In computing the duration of an unauthorized absence, any one continuous 

period of absence found that totals not more than 24 hours is counted as 1 day; any such period that totals more 

than 24 hours and not more than 48 hours is counted as 2 days, and so on. The hours of departure on different 

dates are assumed to be the same if not alleged and proved. For example, if an accused is found guilty of 

unauthorized absence from 0600 hours, 4 April, to 1000 hours, 7 April of the same year (76 hours) the maximum 

punishment would be based on absence of 4 days. However, if the accused is found guilty simply of unauthorized 

absence from 4 April to 7 April, the maximum punishment would be based on an absence of 3 days. 

(10) Termination-methods of return to military control. 

(a) Surrender to military authority. A surrender occurs when a person presents himself or herself 

to any military authority, whether or not a member of the same armed force, notifies that authority of his or her 

unauthorized absence status, and submits or demonstrates a willingness to submit to military control. Such a 

surrender terminates the unauthorized absence. 

(b) Apprehension by military authority. Apprehension by military authority of a known absentee 

terminates an unauthorized absence. 

(c) Delivery to military authority. Delivery of a known absentee by anyone to military authority 

terminates the unauthorized absence. 

(d) Apprehension by civilian authorities at the request of the military. When an absentee is taken 

into custody by civilian authorities at the request of military authorities, the absence is terminated. 

(e) Apprehension by civilian authorities without prior military request. When an absentee is in 

the hands of civilian authorities for other reasons and these authorities make the absentee available for return to 

military control, the absence is terminated when the military authorities are informed of the absentee's availability. 

(11) Findings of more than one absence under one specification. An accused may properly be found 

guilty of two or more separate unauthorized absences under one specification, provided that each absence is 

included within the period alleged in the specification and provided that the accused was not misled. If an accused 

is found guilty of two or more unauthorized absences under a single specification, the maximum authorized 

punishment shall not exceed that authorized if the accused had been found guilty as charged in the specification. 

d. Lesser included offense. Article 80-attempts 

e. Maximum punishment. 

(1) Failing to go to, or going from, the appointedplace of duty. Confinement for 1 month and forfeiture 

of two-thirds pay per month for 1 month. 

(2) Absence from unit, organization, or other place of duty. 

(a) For not more than 3 days. Confinement for 1month and forfeiture of two-thirds pay per month 

for 1 month. 
(b) For more than 3 days but not more than 30 days. Confinement for 6 months and forfeiture of 

two-thirds pay per month for 6 months. 

(c) For more than 30 days. Dishonorable discharge, forfeiture of all pay and allowances, and 

confinement for 1 year. 

(d) For more than 30 days and terminated by apprehension. Dishonorable discharge, forfeiture of 

a1.l pay and allowances, and confinement for 18 months. 

(3) From guard or watch. Confinement for 3 months and forfeiture of two-thirds pay per month for 3 

months. 

(4) From guard or watch with intent to abandon. Bad-conduct discharge, forfeiture of all pay and 

allowances, and confinement for 6 months. 

(5) With intent to avoid maneuvers orfield exercises. Bad-conduct discharge, forfeiture of all pay and 

allowances, and confinement for 6 months. 

f. Sample specifications. 

(1) Failing to go or leaving place of duty. 

In that (personal jurisdiction data), did (atton board-location), on or about 

19 -,without authority, (fail to go at the time prescribed to) (go from) histher appointed place 

of duty, to wit: (here set forth the appointed place of duty). 

(2) Absence from unit, organization, or place of duty. 

In that (personal jurisdiction data), did, on or about 19 -, without 

authority, absent himselftherself from histher (unit) (organization) (place of duty at which hetshe was required 

to be), to wit: , located at , and did remain so absent until (helshe was 

apprehended) on or about 19 -. 

(3) Absencefrom unit, organization, or place of duty with intent to avoid maneuvers orfield exercises. 

In that (personal jurisdiction data), did, on or about 19 -, without 

authority and with intent to avoid (maneuvers) (field exercises), absent hirnselftherself from hislher (unit) (organization) (place of duty at which hetshe was required to be), to wit: Located at 

( ), and did remain so absent until on or about 1 9 . 

(4) Abandoning watch or guard. 

In that (personal jurisdiction data), being a member of the (guard) (watch) 

(duty section), did, (atton board-location), on or about 19 -,without authority, go from his/ 

her (guard) (watch) (duty section) with intent to abandon the same. 

11. Article 87-Missing movement 

a. Text. 

"Any person subject to this chapter who through neglect or design misses the movement of a ship, aircraft, 

or unit with which he is required in the course of duty to move shall be punished as a court-martial may direct." 

b. Elements. 

(1) That the accused was required in the course of duty to move with a ship, aircraft or unit; 

(2) That the accused knew of the prospective movement of the ship, aircraft or unit; 

(3) That the accused missed the movement of the ship, aircraft or unit; and 

(4) That the accused missed the movement through design or neglect. 

c. Explanation. 

(1) Movement. "Movement" as used in Article 87 includes a move, transfer, or shift of a ship, aircraft, 

or unit involving a substantial distance and period of time. Whether a particular movement is substantial is a question 
to be determined by the court-martial considering all the circumstances. Changes which do not constitute a 

"movement" include practice marches of a short duration with a return to the point of departure, and minor 

changes in location of ships, aircraft, or units, as when a ship is shifted from one berth to another in the same 

shipyard or harbor or when a unit is moved from one barracks to another on the same post. 

(2) Mode of movement. 

(a) Unit. If a person is required in the course of duty to move with a unit, the mode of travel is 

not important, whether it be military or commercial, and includes travel by ship, train, aircraft, truck, bus, or 

walking. The word "unit" is not limited to any specific technical category such as those listed in a table of 

organization and equipment, but also includes units which are created before the movement with the intention 

that they have organizational continuity upon arrival at their destination regardless of their technical designation, 

and units intended to be disbanded upon arrival at their destination. 

(b) Ship, aircraft. If a person is assigned as a crew member or is ordered to move as a passenger 

aboard a particular ship or aircraft, military or chartered, then missing the particular sailing or flight is essential 

to establish the offense of missing movement. 

(3) Design. "Design" means on purpose, intentionally, or according to plan and requires specific intent 

to miss the movement. 

(4)Neglect. "Neglect" means the omission to take such measures as are appropriate under the circumstances to assure presence with a ship, aircraft, or unit at the time of a scheduled movement, or doing some 

act without giving attention to its probable consequences in connection with the prospective movement, such as 

a departure from the vicinity of the prospective movement to such a distance as would make it likely that one 

could not return in time for the movement. 

(5) Actual knowledge. In order to be guilty of the offense, the accused must have actually known of 

the prospective movement that was missed. Knowledge of the exact hour or even of the exact date of the scheduled 

movement is not required. It is sufficient if the approximate date was known by the accused as long as there is 

a causal connection between the conduct of the accused and the missing of the scheduled movement. Knowledge 

may be proved by circumstantial evidence. 

(6) Proof of absence. That the accused actually missed the movement may be proved by documentary 

evidence, as by a proper entry in a log or a morning report. This fact may also be proved by the testimony of 

personnel of the ship, aircraft, or unit (or by other evidence) that the movement occurred at a certain time, 

together with evidence that the accused was physically elsewhere at that time. 

d. Lesser included offenses. 

(1) Design. 

(a) Article 87-missing movement through neglect 

(b) Article 86-absence without authority 

(c) Article 80-attempts 

(2) Neglect. Article 86-absence without authority 

e. Maximum punishment. 

(1) Design. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 2 years. 

(2) Neglect. Bad-conduct discharge, forfeiture of all pay and allowances, and confinement for 1 year. 

f. Sample specification. 

In that (personal jurisdiction data), did, (atton board-location), on or about -

19 -,through (neglect) (design) miss the movement of (Aircraft No. 

USS ) (Company A, 1st Battalion, 7th Infantry) ( 

the course of duty to move. 

) (Flight 

) with which hetshe was 

(the 

required in 

12. Article 88-Contempt toward officials 

a. Text. 
"Any commissioned officer who uses contemptuous words against the President, the Vice President, 

Congress, the Secretary of Defense, the Secretary of a military department, the Secretary of Transportation, or 

the Governor or legislature of any State, Territory, Commonwealth, or possession in which he is on duty or 

present shall be punished as a court-martial may direct." 

b. Elements. 

(1) That the accused was a commissioned officer of the United States armed forces; 

(2) That the accused used certain words against an official or legislature named in the article; 

(3) That by an act of the accused these words came to the knowledge of a person other than the accused; 

and 

(4) That the words used were contemptuous, either in themselves or by virtue of the circumstances 

under which they were used. 

[Note: If the words were against a Governor or legislature, add the following element] 

(5) That the accused was then present in the State, Territory, Commonwealth, or possession of the 

Governor or legislature concerned. 

c. Explanation. The official or legislature against whom the words are used must be occupying one of the 

offices or be one of the legislatures named in Article 88 at the time of the offense. Neither "Congress" nor 

"legislature" includes its members individually. "Governor" does not include "lieutenant governor." It is 

immaterial whether the words are used against the official in an official or private capacity. If not personally 

contemptuous, adverse criticism of one of the officials or legislatures named in the article in the course of a 

political discussion, even though emphatically expressed, may not be charged as a violation of the article. 

Similarly, expressions of opinion made in a purely private conversation should not ordinarily be charged. Giving 

broad circulation to a written publication containing contemptuous words of the kind made punishable by this 

article, or the utterance of contemptuous words of this kind in the presence of military subordinates, aggravates 

the offense. The truth or falsity of the statements is immaterial. 

d. Lesser included offense. Article 80-attempts 

e. Maximum punishment. Dismissal, forfeiture of all pay and allowances, and confinement for 1 year. 

f. Sample specijkation. 

In that (personal jurisdiction data), did, (atton board-location), on or about -

19 -, [use (orally and publicly) ( ) the following contemptuous words] [in a contemptuous 

manner, use (orally and publicly) ( ) the following words] against the [(President) (Vice President) 

(Congress) (Secretary of )] [(Governor) (legislature) of the (State of ) (Territory of 

) ( ), a (State) (Territory) ( ) in which helshe, the said ,was 

then (on duty), (present)], to wit: " ," or words to that effect. 

13. Article 89-Disrespect toward a superior commissioned officer 

a. Text. 

"Any person subject to this chapter who behaves with disrespect toward his superior commissioned officer 

shall be punished as a court-martial may direct." 

b. Elements. 

(1) That the accused did or omitted certain acts or used certain language to or concerning a certain 

commissioned officer; 

(2) That such behavior or language was directed toward that officer; 

(3) That the officer toward whom the acts, omissions, or words were directed was the superior 

commissioned officer of the accused; 
(4) That the accused then knew that the commissioned officer toward whom the acts, omissions, or 

words were directed was the accused's superior commissioned officer; and 

(5) That, under the circumstances, the behavior or language was disrespectful to that commissioned 

officer. 

c. Explanation. 

(1) Superior commissioned ofJicer. 

(a) Accused and victim in same armed force. If the accused and the victim are in the same armed 

force, the victim is a "superior commissioned officer" of the accused when either superior in rank or command 

to the accused; however, the victim is not a "superior commissioned officer" of the accused if the victim is 

inferior in command, even though superior in rank. 

(b) Accused and victim in different armed forces. If the accused and the victim are in different 

armed forces, the victim is a "superior commissioned officer" of the accused when the victim is a commissioned 

officer and superior in the chain of command over the accused or when the victim, not a medical officer or a 

chaplain, is senior in grade to the accused and both are detained by a hostile entity so that recourse to the normal 

chain of command is prevented. The victim is not a "superior commissioned officer" of the accused merely 

because the victim is superior in grade to the accused. 

(c) Execution of ofice. It is not necessary that the "superior commissioned officer" be in the 

execution of office at the time of the disrespectful behavior. 

(2) Knowledge. If the accused did not know that the person against whom the acts or words were 

directed was the accused's superior commissioned officer, the accused may not be convicted of a violation of 

this article. Knowledge may be proved by circumstantial evidence. 

(3) Disrespect. Disrespectful behavior is that which detracts from the respect due the authority and 

person of a superior commissioned officer. It may consist of acts or language, however expressed, and it is 

immaterial whether they refer to the superior as an officer or as a private individual. Disrespect by words may 

be conveyed by abusive epithets or other contemptuous or denunciatory language. Truth is no defense. Disrespect 

by acts includes neglecting the customary salute, or showing a marked disdain, indifference, insolence, impertinence, undue familiarity, or other rudeness in the presence of the superior officer. 

(4)Presence. It is not essential that the disrespectful behavior be in the presence of the superior, but 

ordinarily one should not be held accountable under this article for what was said or done in a purely private 

conversation. 

(5) Special defense-unprotected victim. A superior commissioned officer whose conduct in relation 

to the accused under all the circumstances departs substantially from the required standards appropriate to that 

officer's rank or position under similar circumstances loses the protection of this article. That accused may not 

be convicted of being disrespectful to the officer who has so lost the entitlement to respect protected by Article 

89. 

d. Lesser included offenses. 

(1) Article 117-provoking speeches or gestures 

(2) Article 80-attempts 

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

for 1 year: 

f. Sample specification. 

In that (personal jurisdiction data), did, (atlon board-location), on or about -

19 -, behave himselftherself with disrespect toward , hislher superior commissioned 

officer, then known by the said to be histher superior commissioned officer, by (saying to him/ 

her " ," or words to that effect) (contemptuously turning from and leaving hidher while hetshe, 

the said ,was talking to hidher, the said 1 ( ). 
i 

14. Article 90-Assaulting or willfully disobeying superior commissioned officer 

a. Text. 


"Any person subject to this chapter who- 


(1) strikes his superior commissioned officer or draws or lifts up any weapon or offers any violence 

against him while he is in the execution of his office; or 

(2) willfully disobeys a lawful command of his superior commissioned officer; 

shall be punished, if the offense is committed in time of war, by death or such other punishment as a courtmartial may direct, and if the offense is committed at any other time, but such punishment, other than death, 

as a court-martial may direct. " 

b. Elements. 

(1) Striking or assaulting superior commissioned oficer. 

(a) That the accused struck, drew, or lifted up a weapon against, or offered violence against, a 

certain commissioned officer; 

(b) That the officer was the superior commissioned officer of the accused; 

(c) That the accused then knew that the officer was the accused's superior commissioned officer; 

and 

(d) That the superior commissioned officer was then in the execution of office. 

(2) Disobeying superior commissioned oficer 

(a) That the accused received a lawful command from a certain commissioned officer; 

(b) That this officer was the superior commissioned officer of the accused; 

(c) That the accused then knew that this officer was the accused's superior commissioned officer; 

and 

(d) That the accused willfully disobeyed the lawful command. 

c. Explanation. 

(1) Striking or assaulting superior commissioned oficer. 

(a) Definitions. 

(i) Superior commissioned oficer. The definitions in paragraph 13c(l)(a) and (b) apply here 

and in subparagraph c(2). 

(ii) Strikes. "Strikes" means an intentional blow, and includes any offensive touching of the 

person of an officer, however slight. 

(iii)Draws or lifs up any weapon against. The phrase "draws or lifts up any weapon against" 

covers any simple assault committed in the manner stated. The drawing of any weapon in an aggressive manner 

or the raising or brandishing of the same in a threatening manner in the presence of and at the superior is the 

sort of act proscribed. The raising in a threatening manner of a firearm, whether or not loaded, of a club, or of 

anything by which a serious blow or injury could be given is included in "lifts up." 

(iv) Offers any violence against. The phrase "offers any violence against" includes any form 

of battery or of mere assault not embraced in the preceding more specific terms "strikes" and "draws or lifts 

up." If not executed, the violence must be physically attempted or menaced. A mere threatening in words is 

not an offering of violence in the sense of this article. 

(b) Execution of office. An officer is in the execution of office when engaged in any act or service 

required or authorized by treaty, statute, regulation, the order of a superior, or military usage. In general, any 

striking or use of violence against any superior officer by a person over whom it is the duty of that officer to 

maintain discipline at the time, would be .:triking or using violence against the officer in the execution of office. 
The commanding officer on board a ship or the commanding officer of a unit in the field is generally considered 

to be on duty at all times. 

(c) Knowledge. If the accused did not know the officer was the accused's superior commissioned 

officer, the accused may not be convicted of this offense. Knowledge may be proved by circumstantial evidence. 

(d) Defenses. In a prosecution for striking or assaulting a superior commissioned officer in violation 

of this article, it is a defense that the accused acted in the proper discharge of some duty, or that the victim 

behaved in a manner toward the accused such as to lose the protection of this article (see paragraph 13c(5)). For 

example, if the victim initiated an unlawful attack on the accused, this would deprive the victim of the protection 

of this article, and, in addition, could excuse any lesser included offense of assault as done in self-defense, 

depending on the circumstances (see paragraph 54c; R.C.M. 916(e)). 

(2)Disobeying superior commissioned oficer. 

(a) Lawfulness of the order. 

(i) Inference of lawfulness. An order requiring the performance of a military duty or act may 

be inferred to be lawful and it is disobeyed at the peril of the subordinate. This inference does not apply to a 

patently illegal order, such as one that directs the commission of a crime. 

(ii)Authority of issuing oficer. The commissioned officer issuing the order must have authority 

to give such an order. Authorization may be based on law, regulation, or custom of the service. 

(iii) Relationship to military duty. The order must relate to military duty, which includes all 

activities reasonably necessary to accomplish a military mission, or safeguard or promote the morale, discipline, 

and usefulness of members of a command and directly connected with the maintenance of good order in the 

service. The order may not, without such a valid military purpose, interfere with private rights or personal affairs. 

However, the dictates of a person's conscience, religion, or personal philosophy cannot justify or excuse the 

disobedience of an otherwise lawful order. Disobedience of an order which has for its sole object the attainment 

of some private end, or which is given for the sole purpose of increasing the penalty for an offense which it is 

expected the accused may commit, is not punishable under this article. 

(iv) Relationship to statutory or constitutional rights. The order must not conflict with the 

statutory or constitutional rights of the person receiving the order. 

(b) Personal nature of the order. The order must be directed specifically to the subordinate. 

Violations of regulations, standing orders or directives, or failure to perform previously established duties are 

not punishable under this article, but may violate Article 92. 

(c) Form and transmission of the order. As long as the order is understandable, the form of the 

order is immaterial, as is the method by which it is transmitted to the accused. 

(d) Specificity of the order. The order must be a specific mandate to do or not to do a specific 

act. An exhortation to "obey the law" or to perform one's military duty does not constitute an order under this 

article. 

(e) Knowledge. The accused must have actual knowledge of the order and of the fact that the 

person issuing the order was the accused's superior commissioned officer. Actual knowledge may be proved by 

circumstantial evidence. 

(f) Nature of the disobedience. "Willful disobedience" is an intentional defiance of authority. 

Failure to comply with an order through heedlessness, remissness, or forgetfulness is not a violation of this 

article but may violate Article 92. 

(g) Time for compliance. When an order requires immediate compliance, an accused's declared 

intent not to obey and the failure to make any move to comply constitutes disobedience. If an order does not 

indicate the time within which it is to be complied with, either expressly or by implication, then a reasonable 

delay in compliance does not violate this article. If an order requires performance in the future, an accused's 

present statement of intention to disobey the order does not constitute disobedience of that order, although 

carrying out that intention may. 
(3) Civilians and discharged prisoners. A discharged prisoner or other civilian subject to military law 

(see Article 2) and under the command of a commissioned officer is subject to the provisions of this article. 

d. Lesser included offenses. 

(1) Striking superior commissioned officer in execution of office. 

(a) Article 90-drawing or lifting up a weapon or offering violence to superior commissioned 

officer in execution of office 

(b) Article 128-assault; assault consummated by a battery; assault with a dangerous weapon 

(c) Article 128-assault or assault consummated by a battery upon commissioned officer not in 

the execution of office 

(d) Article 80-attempts 

(2) Drawing or lifting up a weapon or offering violence to superior commissioned officer in execution 

of ofice. 

(a) Article 128-assault, assault with dangerous weapon 

(b) Article 128-assault upon a commissioned officer not in the execution of office 

(c) Article 80-attempts 

(3) Willfully disobeying lawful order of superior commissioned officer. 

(a) Article 92-failure to obey lawful order 

(b) Article 89-disrespect to superior commissioned officer 

(c) Article 80-attempts 

e. Maximum punishment. 

(1) Striking, drawing, or lifting up any weapon or offering any violence to superior commissioned 

oficer in the execution of ofJice. Dishonorable discharge, forfeiture of all pay and allowances, and confinement 

for 10 years. 

(2) Willfully disobeying a lawful order of superior commissioned oficer. Dishonorable discharge, 

forfeiture of all pay and allowances, and confinement for 5 years. 

(3) In time of war. Death or such other punishment as a court-martial may direct. 

f. Sample specijkations. 

(1) Striking superior commissioned officer 

In that (personal jurisdiction data), did, (atton board-location) (subject-matter jurisdiction data, if required), on or about - 19 -, (a time of war) strike , 

histher superior commissioned officer, then known by the said to be histher superior commissioned officer, who was then in the execution of histher office, (in) (on) the with (a) (histher) 

(2) Drawing or lifting up a weapon against superior commissioned officer. 

In that (personal jurisdiction data), did, (atton board-location) (subject-matter jurisdiction data, if required), on or about 19 -, (a time of war) (draw) (lift up) a weapon, to wit: 

a ,against , histher superior commissioned officer, then known by the said -

to be histher superior commissioned officer, who was then in the execution of histher office. 

(3) Offering violence to superior commissioned officer. 

In that (personal jurisdiction data), did, (atton board-location) (subject-matter jurisdiction data, if required), on or about 19 -, (a time of war) offer violence against , 
hislher superior commissioned officer, then known by the said to be histher superior cornmissioned officer, who was then in the execution of hislher office, by 

(4) Willful disobediente of superior commissioned officer. 

In that (personal jurisdiction data), having received a lawful command from -, 

hislher superior commissioned officer, then known by the said to be histher superior cornmissioned officer, to , or words to that effect, did, (atlon board-location), on or about - 19 -, willfully disobey the same. 

15. Article 91-Insubordinate conduct toward warrant officer, noncommissioned officer, or petty 

officer 

a. Text. 


"Any warrant officer or enlisted member who- 


(1) strikes or assaults a warrant officer, noncommissioned officer, or petty officer, while that officer 

is in the execution of his office; 

(2) willfully disobeys the lawful order of a wamt officer, noncommissioned offlcer, or petty officer; or 

(3) treats with contempt or is disrespectful in language or deportment toward a warrant officer, noncommissioned officer, or petty officer while that officer is in the execution of his office; 

shall be punished as a court-martial may direct." 

b. Elements. 

(1) Striking or assaulting warrant, noncommissioned, or petty oficer. 

(a) That the accused was a warrant officer or enlisted member; 

(b) That the accused struck or assaulted a certain warrant, noncommissioned, or petty officer; 

(c) That the striking or assault was committed while the victim was in the execution of office; and 

(d) That the accused then knew that the person struck or assaulted was a warrant, noncommissioned, 

or petty officer. 

[Note: If the victim was the superior noncommissioned or petty officer of the accused, add the following 

elements] 

(e) That the victim was the superior noncommissioned, or petty officer of the accused; and 

(f) That the accused then knew that the person struck or assaulted was the accused's superior 

noncommissioned, or petty officer. 

(2) Disobeying a warrant, noncommissioned, or petty oficer. 

(a) That the accused was a warrant officer or enlisted member; 

(b) That the accused received a certain lawful order from a certain warrant, noncommissioned, 

or petty officer; 

(c) That the accused then knew that the person giving the order was a warrant, noncommissioned, 

or petty officer; 

(d) That the accused had a duty to obey the order; and 

(e) That the accused willfully disobeyed the order. 

(3) Treating with contempt or being disrespectjiul in language or deportment toward a warrant, noncommissioned, or petty oficer. 

(a) That the accused was a warrant officer or enlisted member; 

(b) That the accused did or omitted certain acts, or used certain langauge; 
(c) That such behavior or language was used toward and within sight or hearing of a certain 

warrant, noncommissioned, or petty officer; 

(d) That the accused then knew that the person toward whom the behavior or language was directed 

was a warrant, noncommissioned, or petty officer; 

(e) That the victim was then in the execution of office; and 

(f) That under the circumstances the accused, by such behavior or language, treated with contempt 

or was disrespectful to said warrant, noncommissioned, or petty officer. 

[Note: If the victim was the superior noncommissioned, or petty officer of the accused, add the following 

elements] 

(g) That the victim was the superior noncommissioned, or petty officer of the accused; and 

(h) That the accused then knew that the person toward whom the behavior or language was directed 

was the accused's superior noncommissioned, or petty officer. 

c. Explanation. 

(1) In general. Article 91 has the same general objects with respect to warrant, noncommissioned, and 

petty officers as Articles 89 and 90 have with respect to commissioned officers, namely, to ensure obedience to 

their lawful orders, and to protect them from violence, insult, or disrespect. Unlike Articles 89 and 90, however, 

this article does not require a superior-subordinate relationship as an element of any of the offenses denounced. 

This article does not protect an acting noncommissioned officer or acting petty officer, nor does it protect military 

police or members of the shore patrol who are not warrant, noncommissioned, or petty officers. 

(2) Knowledge. All of the offenses prohibited by Article 91 require that the accused have actual 

knowledge that the victim was a warrant, noncommissioned, or petty officer. Actual knowledge may be proved 

by circumstantial evidence. 

(3) Striking or assaulting a warrant, noncommissioned, or petty oficer. For a discussion of "strikes" 

and "in the execution of office," see paragraph 14c. For a discussion of "assault," see paragraph 54c. An 

assault by a prisoner who has been discharged from the service, or by any other civilian subject to military law, 

upon a warrant, noncommissioned, or petty officer should be charged under Article 128 or 134. 

(4) Disobeying a warrant, noncommissioned, or petty oficer. See paragraph 14c(2) for a discussion 

of lawfulness, personal nature, form, transmission, and specificity of the order, nature of the disobedience, and 

time for compliance with the order. 

(5) Treating with contempt or being disrespectful in language or deportment toward a warrant, noncommissioned, orpetty officer. "Toward" requires that the behavior and language be within the sight or hearing 

of the warrant, noncommissioned, or petty officer concerned. For a discussion of "in the execution of his office," 

see paragraph 14c. For a discussion of disrespect, see paragraph 13c. 

d. Lesser included offenses. 

(1) Striking or assaulting warrant, noncommissioned, or petty oficer in the execution of ofice. 

(a) Article 128-assault; assault consummated by a battery; assault with a dangerous weapon 

(b) Article 128-assault upon warrant, noncommissioned, or petty officer not in the execution of 

office 

(c) Article 80-attempts 

(2) Disobeying a warrant, noncommissioned, or petty oficer. 

(a) Article 92-failure to obey a lawful order 

(b) Article 80-attempts 

(3) Treating with contempt or being disrespectful in language or deportment toward warrant, noncommissioned, or petty officer in the execution of office. 

(a) Article 117-using provoking or reproachful speech 
(b) Article 80-attempts 

e. Maximum punishment. 

(1) Striking or assaulting warrant officer. Dishonorable discharge, forfeiture of all pay and allowances, 

and confinement for 5 years. 

(2) Striking or assaulting superior noncommissioned or petty officer. Dishonorable discharge, forfeiture 

of all pay and allowances, and confinement for 3 years. 

(3) Striking or assaulting other noncommissioned or petty officer. Dishonorable discharge, forfeiture 

of all pay and allowances, and confinement for 1 year. 

(4) Willfully disobeying the lawful order of a warrant officer. Dishonorable discharge, forfeiture of 

all pay and allowances, and confinement for 2 years. 

(5) Willfully disobeying the lawful order of a noncommissioned or petty officer. Badconduct discharge, forfeiture of all pay and allowances, and confinement for 1 year. 

(6)Contempt or disrespect to warrant officer. Bad-conduct discharge, forfeiture of all pay and allowances, and confinement for 9 months. 

(7) Contempt or disrespect to superior noncommissioned or petty officer. Bad-conduct discharge, 

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

(8) Contempt or disrespect to other noncommissioned or petty officer. Forfeiture of two-thirds pay per 

month for 3 months, and confinement for 3 months. 

f. Sample speciJications. 

(1) Striking or assaulting warrant, noncommissioned, or petty officer. 

In that (personal jurisdiction data), did, (at/on board-location) (subject-matter jurisdiction data, if required), on or about 19 -,(strike) (assault) ,a 

officer, then known to the said to be a (superior) officer who was then in the 

execution of hislher office, by h i d h e r (in) (on) (the ) with (a) 

(hislher) 

(2) Willful disobedience of warrant, noncommissioned, or petty officer. 

In that (personal jurisdiction data), having received a lawful order from , a officer, then known by the said to be a officer, to -, 

an order which it was hislher duty to obey, did (at/on board-location), on or about 1 9 , 

willfully disobey the same. 

(3) Contempt or disrespect toward warrant, noncommissioned, or petty oficer. 

In that (personal jurisdiction data) (at/on board-location), on or about 

19 -, [did treat with contempt] [was disrespectful in (language) (deportment) toward] , 

a officer, then known by the said to be a (superior) officer, 

who was then in the execution of hislher office, by (saying to himther, " ," or words to that 

effect) (spitting at hislher feet) ( 1. 

16. Article 92-Failure to obey order or regulation 

a. Text. 


"Any person subject to this chapter who- 


(1) violates or fails to obey any lawful general order or regulation; 

(2) having knowledge of any other lawful order issued by a member of the armed forces, which it is 

his duty to obey, fails to obey the order; or 

(3) is derelict in the performance of his duties; 
shall be punished as a court-martial may direct." 

b. Elements. 

(1) Violation of or failure to obey a lawful general order or regulation. 

(a) That there was in effect a certain lawful general order or regulation. 

(b) That the accused had a duty to obey it; and 

(c) That the accused violated or failed to obey the order or regulation. 

(2) Failure to obey other lawful order. 

(a) That a member of the armed forces issued a certain lawful order; 

(b) That the accused had knowledge of the order; 

(c) That the accused had a duty to obey the order; and 

(d) That the accused failed to obey the order. 

(3) Dereliction in the pe$ormance of duties. 

(a) That the accused had certain duties; 

(b) That the accused had knowledge of the duties; and 

(c) That the accused was (willfully) (through neglect or culpable inefficiency) derelict in the 

performance of those duties. 

c. Explanation. 

(1) Violation of or failure to obey a lawful general order or regulation. 

(a) Authority to issue general orders and regulations. General orders or regulations are those 

orders or regulations generally applicable to an armed force which are properly published by the President or 

the Secretary of Defense, of Transportation, or of a military department, and those orders or regulations generally 

applicable to the command of the officer issuing them throughout the command or a particular subdivision thereof 

which are issued by: 

(i) an officer having general court-martial jurisdiction; 

(ii) a general or flag officer in command; or 

(iii) a commander superior to (i) or (ii). 

(b) Effect of change of command on validity of order. A general order or regulation issued by a 

commander with authority under Article 92(1) retains its character as a general order or regulation when another 

officer takes command, until it expires by its own terms or is rescinded by separate action, even if it is issued 

by an officer who is a general or flag officer in command and command is assumed by another officer who is 

not a general or flag officer. 

(c) Lawfulness. A general order or regulation is lawful unless it is contrary to the Constitution, 

the laws of the United States, or lawful superior orders or for some other reason is beyond the authority of the 

official issuing it. See the discussion of lawfulness in paragraph 14c(2)(a). 

(d) Knowledge. Knowledge of a general order or regulation need not be alleged or proved, as 

knowledge is not an element of this offense and a lack of knowledge does not constitute a defense. 

(e) Enforceability. Not all provisions in general orders or regulations can be enforced under Article 

92(1). Regulations which only supply general guidelines or advice for conducting military functions may not be 

enforceable under Article 92(1). 

(2) Violation of or failure to obey other lawful order. 

(a) Scope. Article 92(2) includes all other lawful orders which may be issued by a member of the 
armed forces, violations of which are not chargeable under Article 90, 91, or 92(1). It includes the violation of 

written regulations which are not general regulations. See also subparagraph (l)(e) above as applicable. 

(b) Knowledge. In order to be guilty of this offense, a person must have had actual knowledge 

of the order or regulation. Knowledge of the order may be proved by circumstantial evidence. 

(c) Duty to obey order. 

(i) From a superior. A member of one armed force who is senior in rank to a member of 

another armed force is the superior of that member with authority to issue orders which that member has a duty 

to obey under the same circumstances as a commissioned officer of one armed force is the superior commissioned 

officer of a member of another armed force for the purposes of Articles 89 and 90. See paragraph 13c(l). 

(ii) From one not a superior. Failure to obey the lawful order of one not a superior is an 

offense under Article 92(2), provided the accused had a duty to obey the order, such as one issued by a sentinel 

or a member of the armed forces police. See paragraph 15b(2) if the order was issued by a warrant, noncommissioned, or petty officer in the execution of office. 

(3) Dereliction in the performance of duties. 

(a) Duty. A duty may be imposed by treaty, statute, regulation, lawful order, standard operating 

procedure, or custom of the service. 

(b) Knowledge. In order to be guilty of this offense, a person must have had actual knowledge 

of the duties. Knowledge of the duties may be proved by circumstantial evidence. 

(c) Derelict. A person is derelict in the performance of duties when that person willfully or 

negligently fails to perform that person's duties or when that person performs them in a culpably inefficient 

manner. "Willfully" means intentionally. It refers to the doing of an act knowingly and purposely, specifically 

intending the natural and probably consequences of the act. "Negligently" means an act or omission of a person 

who is under a duty to use due care which exhibits a lack of that degree of care which a reasonably prudent 

person would have exercised under the same or similar circumstances. "Culpable inefficiency" is inefficiency 

for which there is no reasonable or just excuse. 

(d) Ineptitude. A person is not derelict in the performance of duties if the failure to perform those 

duties is caused by ineptitude rather than by willfulness, negligence, or culpable inefficiency, and may not be charged 

under this article, or otherwise punished. For example, a recruit who has tried earnestly during rifle training and 

throughout record firing is not derelict in the performance of duties if the recruit fails to qualify with the weapon. 

d. Lesser included offense. Article 80-attempts 

e. Maximum punishment. 

(1) Violation or failure to obey lawful general order or regulation. Dishonorable discharge, forfeiture 

of all pay and allowances, and confinement for 2 years. 

(2) Violation or failure to obey other lawful order. Bad-conduct discharge, forfeiture of all pay and 

allowances, and confinement for 6 months. 

[Note: For (1) and (2), above, the punishment set forth does not apply in the following cases: if in the absence 

of the order or regulation which was violated or not obeyed the accused would on the same facts be subject to 

conviction for another specific offense for which a lesser punishment is prescribed; or if the violation or failure to 

obey is a breach of restraint imposed as a result of an order. In these instances, the maximum punishment is that 

specifically prescribed elsewhere for that particular offense.] 

(3) Dereliction in the pel3cormance of duties. 

(A) Through neglect or culpable inefficiency. Forfeiture of two-thirds pay per month 

for 3 months and confinement for 3 months. 

(B) Willful. Bad-conduct discharge, forfeiture of all pay and allowances, and confinement for 6 months. 

f. Sample specifications. 
(1) Violation or failure to obey lawful general order or regulation. 

In that (personal jurisdiction data), did, (atlon board-location) (subject-matter jurisdiction data, if required), on or about 19 -, (violate) (fail to obey) a lawful general (order) 

(regulation), to wit: [paragraph , (Army) (Air Force) Regulation , 

dated 19 -] [Article ,U. S .Navy Regulations, dated 19 -] [General 

Order No. , U.S. Navy, dated 19 -1 [ 1, by (wrongfully) 

(2) Violation or failure to obey other lawful written order. 

In that (personal jurisdiction data), having knowledge of a lawful order issued by 

,to wit: [paragraph , ( the Combat Group Regulation No. 1 

(USS ,Instruction ), dated 1 [ 1, an order which it was his1 

her duty to obey, did, (atlon board-location) (subject-matter jurisdiction data, if required), on or about -

19 -,fail to obey the same by (wrongfully) 

(3) Failure to obey other lawful order. 

In that , (personal jurisdiction data) having knowledge of a lawful order issued by 

(to submit to certain medical treatment) (to ) (not to 1 

( ), an order which it was hislher duty to obey, did (atlon board-location) (subject-matter 

jurisdiction data, if required), on or about 19 -, fail to obey the same [by (wrongfully) 

(4)Dereliction in the pegormance of duties. 

In that , (personal jurisdiction data), (atton board-location) (subject-matter jurisdiction data, if required), (on or about 19 -) (from about 19 -to about -

19 -), having knowledge of hislher duties, was derelict in the performance of those duties in that helshe 

(negligently) (willfully) (by culpable inefficiency) failed to , as it was hislher duty to do. 

17. Article 93-Cruelty and maltreatment 

a. Text. 

"Any person subject to this chapter who is guilty of cruelty toward, or oppression or maltreatment of, any 

person subject to his orders shall be punished as a court-martial may direct." 

b. Elements. 

(1) That a certain person was subject to the orders of the accused; and 

(2) That the accused was cruel toward, or oppressed, or maltreated that person. 

c. Explanation. 

(1) Nature of victim. "Any person subject to his orders" means not only those persons under the direct 

or immediate command of the accused but extends to all persons, subject to the code or not, who by reason of 

some duty are required to obey the lawful orders of the accused, regardless whether the accused is in the direct 

chain of command over the person. 

(2) Nature of act. The cruelty, oppression, or maltreatment, although not necessarily physical, must 

be measured by an objective standard. Assault, improper punishment, and sexual harassment may constitute this 

offense. Sexual harassment includes influencing, offering to influence, or threatening the career, pay, or job of 

another person in exchange for sexual favors, and deliberate or repeated offensive comments or gestures of a 

sexual nature. The imposition of necessary or proper duties and the exaction of their performance does not 

constitute this offense even though the duties are arduous or hazardous or both. 

d. Lesser included oflense. Article 80-attempts 

e. Maxim punishment. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 1 year. 

f. Sample specification. 

In that (personal jurisdiction data), (atlon board-location) (subject-matter jurisdiction 
data, 9 if required), on or about 19 -, [was cruel toward] [did (oppress) (maltreat)] 


a person subject to hislher orders, by (kicking himlher in the stomach) (confining hirnlher for twenty-four hours 


without water) ( 1. 

18.Article 94-Mutiny and sedition 

a. Text. 

"(a) Any person subject to this chapter who- 

(1) with intent to usurp or override lawful military authority, refuses, in concert with any other person, 

to obey orders or otherwise do his duty or creates any violence or disturbance is guilty of mutiny; 

(2) with intent to cause the overthrow or destruction of lawful civil authority, creates, in concert with 

any other person, revolt, violence, or other disturbance against that authority is guilty of sedition; 

(3) fails to do his utmost to prevent and suppress a mutiny or sedition being committed in his presence, 

or fails to take all reasonable means to inform his superior commissioned officer or commanding officer of a 

mutiny or sedition which he knows or has reason to believe is taking place, is guilty of a failure to suppress or 

report a mutiny or sedition. 

(b) A person who is found guilty of attempted mutiny, mutiny, sedition, or failure to suppress or report a 

mutiny or sedition shall be punished by death or such other punishment as a court-martial may direct." 

b. Elements. 

(1) Mutiny by creating violence or disturbance. 

(a) That the accused created violence or a disturbance; and 

(b) That the accused created this violence or disturbance with intent to usurp or ovemde lawful 

military authority. 

(2) Mutiny by refusing to obey orders or to perform duty. 

(a) That the accused refused to obey orders or otherwise do the accused's duty; 

(b) That the accused in refusing to obey orders or perform duty acted in concert with another 

person or persons; and 

(c) That the accused did so with intent to usurp or ovemde lawful military authority. 

(3) Sedition. 

(a) That the accused created revolt, violence, or disturbance against lawful civil authority; 

(b) That the accused acted in concert with another person or persons; and 

(c) That the accused did so with the intent to cause the overthrow or destruction of that authority. 

(4)Failure to prevent and suppress a mutiny or sedition. 

(a) That an offense of mutiny or sedition was committed in the presence of the accused; and 

(b) That the accused failed to do the accused's utmost to prevent and suppress the mutiny or 

sedition. 

(5) Failure to report a mutiny or sedition. 

(a) That an offense of mutiny or sedition occurred; 

(b) That the accused knew or had reason to believe that the offense was taking place; and 

(c) That the accused failed to take all reasonable means to inform the accused's superior commissioned officer or commander of the offense. 

(6)Attempted mutiny. 
(a) That the accused committed a certain overt act; 

(b) That the act was done with specific intent to commit the offense of mutiny; 

(c) That the act amounted to more than mere preparation; and 

(d) That the act apparently tended to effect the commission of the offense of mutiny. 

c. Explanation. 

(1) Mutiny. Article 94(a)(l) defines two types of mutiny, both requiring an intent to usurp or override 

military authority. 

(a) Mutiny by creating violence or disturbance. Mutiny by creating violence or disturbance may 

be committed by one person acting alone or by more than one acting together. 

(b) Mutiny by refusing to obey orders or perform duties. Mutiny by refusing to obey orders or 

perform duties requires collective insubordination and necessarily includes some combination of two or more 

persons in resisting lawful military authority. This concert of insubordination need not be preconceived, nor is 

it necessary that the insubordination be active or violent. It may consist simply of a persistent and concerted 

refusal or omission to obey orders, or to do duty, with an insubordinate intent, that is, with an intent to usurp 

or ovenide lawful military authority. The intent may be declared in words or inferred from acts, omissions, or 

surrounding circumstances. 

(2) Sedition. ,Sedition requires a concert of action in resistance to civil authority. This differs from 

mutiny by creating violence or disturbance. See subparagraph c(l)(a) above. 

(3) Failure to prevent and suppress a mutiny or sedition. "Utmost" means taking those measures to 

prevent and suppress a mutiny or sedition which may properly be called for by the circumstances, including the 

rank, responsibilities, or employment of the person concerned. ''Utmost" includes the use of such force, including 

deadly force, as may be reasonably necessary under the circumstances to prevent and suppress a mutiny or 

sedition. 

(4) Failure to report a mutiny or sedition. Failure to "take all reasonable means to inform" includes 

failure to take the most expeditious means available. When the circumstances known to the accused would have 

caused a reasonable person in similar circumstances to believe that a mutiny or sedition was occurring, this may 

establish that the accused had such "reason to believe" that mutiny or sedition was occurring. Failure to report 

an impending mutiny or sedition is not an offense in violation of Article 94. But see paragraph 16c(3) (dereliction 

of duty). 

(5)Attempted mutiny. For a discussion of attempts, see paragraph 4. 

d. Lesser included offenses. 

(1) Mutiny by creating violence or disturbance. 

(a) Article 90-assault on commissioned officer 

(b) Article 91-assault on warrant, noncommissioned, or petty officer 

(c) Article 94-attempted mutiny 

(d) Article 116-riot; breach of peace 

(e) Article 128-assault 

(f) Article 134-disorderly conduct 

(2) Mutiny by refusing to obey orders or perform duties. 

(a) Article 90-willful disobedience of commissioned officer 

(b) Article 91-willful disobedience of warrant, noncommissioned, or petty officer 

(c) Article 92-failure to obey lawful order 

(d) Article 94-attempted mutiny 
(3)Sedition. 

(a) Article 1 16-riot; breach of peace 

(b) Article 128-assault 

(c) Article 134-disorderly conduct 

(d) Article 80-attempts 

e. Maximum punishment. For all offenses under Article 94, death or such other punishment as a court- & martial may direct. 

f. Sample specifications. 

(1) Mutiny by creating violence or disturbance. 

In that (personal jurisdiction data), with intent to (usurp) (override) (usurp and ovemde) 

lawful military authority, did, (aUon board-location) (subject-matter jurisdiction data, if required), on or about 

19 -,create (violence) (a disturbance) by (attacking the officers of the said ship) (barricading 

himselflherself in Barracks T7, firing hislher rifle at ,and exhorting other persons to join him1 

her in defiance of 1( 1. 

(2) Mutiny by refusing to obey orders or perform duties. 

In that (personal jurisdiction data), with intent to (usurp) (ovemde) (usurp and override) 

lawful military authority, did, (aVon board-location) on or about 19 -, refuse, 

in concert with (and ) (others whose names are unknown), to (obey the orders 

of to ) (perform histher duty as 1. 

(3) Sedition. 

In that (personal jurisdiction data), with intent to cause the (overthrow) (destruction) 

(overthrow and destruction) of lawful civil authority, to wit: , did, (atlon board-location) 

(subject-matter jurisdiction data, if required), on or about 19 -,in concert with ( 1 

and ( ) (others whose names are unknown), create (revolt) (violence) (a disturbance) against 

such authority by (entering the Town Hall of and destroying property and records therein) 

(marching upon and compelling the surrender of the police of . )( ). 

(4) Failure to prevent and suppress a mutiny or sedition. 

In that (personal jurisdiction data), did, (atlon board-location) (subject-matter jurisdiction data, if required), on or about 19 -,fail to do hislher utmost to prevent and suppress a 

(mutiny) (sedition) among the (soldiers) (sailors) (airmen) (marines) ( of , which (mutiny) (sedition) was being committed in histher presence, in that (helshe took no means to compel the 

dispersal of the assembly) (helshe made no effort to assist who was attempting to quell the 

mutiny) ( ). 

(5) Failure to report a mutiny or sedition. 

In that (personal jurisdiction data), did, (at/on board-location) (subject-matter jurisdiction data, if required), on or about 19 -,fail to take all reasonable means to inform hislher 

superior commissioned officer or hislher commander of a (mutiny) (sedition) among the (soldiers) (sailors) 

(airmen) (marines) ( of , which (mutiny) (sedition) helshe, the said 

(knew) (had reason to believe) was taking place. 

(6)Attempted mutiny. 

In that (personal jurisdiction data), with intent to (usurp) (ovemde) (usurp and ovemde) 

lawful military authority, did, (aVon board-location) (subject-matter jurisdiction data, if required), on or about 

19 -,attempt to [create (violence) (a disturbance) by I [ I. 
19. Article 95-Resistance, breach of arrest, and escape 

a. Text. 

"Any person subject to this chapter who resists apprehension or breaks arrest or who escapes from custody 

or confinement shall be punished as a court-martial may direct." 

b. Elements. 

(1) Resisting apprehension. 

(a) That a certain person attempted to apprehend the accused; 

(b) That said person was authorized to apprehend the accused; and 

(c) That the accused actively resisted the apprehension. 

(2) Breaking arrest. 

(a) That a certain person ordered the accused into arrest; 

(b) That said person was authorized to order the accused into arrest; and 

(c) That the accused went beyond the limits of arrest before being released from that arrest by 

proper authority. 

(3) Escape from custody. 

(a) That a certain person apprehended the accused; 

(b) That said person was authorized to apprehend the accused; and 

(c) That the accused freed himself or herself from custody before being released by proper authority. 

(4)Escape from confinement. 

(a) That a certain person ordered the accused into confinement; 

(b) That said person was authorized to order the accused into confinement; and 

(c) That the accused freed himself or herself from confinement before being released by proper 

authority. 

c. Explanation. 

(1) Resisting apprehension. 

(a) Apprehension. Apprehension is the taking of a person into custody. See R.C.M. 302. 

(b) Authority to apprehend. See R.C.M. 302(b) concerning who may apprehend. Whether the 

status of a person authorized that person to apprehend the accused is a question of law to be decided by the 

military judge. Whether the person who attempted to make an apprehension had such a status is a question of 

fact to be decided by the factfinder. 

(c) Nature of the resistance. The resistance must be active, such as assaulting the person attempting 

to apprehend or flight. Mere words of opposition, argument, or abuse, and attempts to escape from custody after 

the apprehension is complete, do not constitute the offense of resisting apprehension although they may constitute 

other offenses. 

(d) Mistake. It is a defense that the accused held a reasonable belief that the person attempting 

to apprehend did not have authority to do so. However, the accused's belief at the time that no basis exists for 

the apprehension is not a defense. 

(e) Illegal apprehension. A person may not be convicted of resisting apprehension if the attempted 

apprehension is illegal, but may be convicted of other offenses, such as assault, depending on all the circumstances. 

An attempted apprehension by a person authorized to apprehend is presumed to be legal in the absence of evidence 

to the contrary. Ordinarily the legality of an apprehension is a question of law to be decided by the military 

judge. 
(2) Breaking arrest. 

(a) Arrest. There are two types of arrest: pretrial arrest under Article 9 (see R.C.M. 304) and 

arrest under Article 15 (see paragraph 5c(3), Part V). This article prohibits breaking any arrest. 

(b) Authority to order arrest. See R.C.M. 304(b) and paragraphs 2 and 5b, Part V concerning 

authority to order arrest. 

(c) Nature of restraint imposed by arrest. In arrest, the restraint is moral restraint imposed by 

orders fixing the limits of arrest. 

(d) Breaking. Breaking arrest is committed when the person in arrest infringes the limits set by 

orders. The reason for the infringement is immaterial. For example, innocence of the offense with respect to 

which an arrest may have been imposed is not a defense. 

(e) Illegal arrest. A person may not be convicted of breaking arrest if the arrest is illegal. An 

arrest ordered by one authorized to do so is presumed to be legal in the absence of some evidence to the contrary. 

Ordinarily, the legality of an arrest is a question of law to be decided by the military judge. 

(3) Escape from custody. 

(a) Custody. "Custody" is restraint of free locomotion imposed by lawful apprehension. The 

restraint may be physical or, once there has been a submission to apprehension or a forcible taking into custody, 

it may consist of control exercised in the presence of the prisoner by official acts or orders. Custody is temporary 

restraint intended to continue until other restraint (arrest, restriction, confinement) is imposed or the person is 

released. 

(b) Authority to apprehend. See subparagraph (l)(b) above. 

(c) Escape. For a discussion of escape, see subparagraph c(4)(c), below. 

(d) Illegal custody. A person may not be convicted of this offense if the custody was illegal. An 

apprehension effected by one authorized to apprehend is presumed to be lawful in the absence of evidence to 

the contrary. Ordinarily, the legality of an apprehension is a question of law to be decided by the military judge. 

(e) Correctional custody. See paragraph 70. 

(4) Escape from confinement. 

(a) Confinement. Confinement is physical restraint imposed under R.C.M. 305; 1101; or paragraph 

5b, Part V. 

(b) Authority to order confinement. See R.C.M. 304(b); 1101; and paragraphs 2 and 5b, Part V 

concerning who may order confinement. 

(c) Escape. An escape may be either with or without force or artifice, and either with or without 

the consent of the custodian. However, where a prisoner is released by one with apparent authority to do so, 

the prisoner may not be convicted of escape from confinement. See also paragraph 20c(l)(b). Any completed 

casting off of the restraint of confinement, before release by proper authority, is an escape, and lack of effectiveness 

of the restraint imposed is immaterial. An escape is not complete until the prisoner is momentarily free from 

the restraint. If the movement toward escape is opposed, or before it is completed, an immediate pursuit follows, 

there is no escape until opposition is overcome or pursuit is shaken off. 

(d) Status when temporarily outside confinement facility. A prisoner who is temporarily escorted 

outside a confinement facility for a work detail or other reason by a guard, who has both the duty and means 

to prevent that prisoner from escaping, remains in confinement. 

(e) Legality of confinement. A person may not be convicted of escape from confinement if the 

confinement is illegal. Confinement ordered by one authorized to do so is presumed to be lawful in the absence 

of evidence to the contrary. Ordinarily, the legality of confinement is a question of law to be decided by the 

military judge. 

d. Lesser included offenses. 
(1) Resisting apprehension. Article 128-assault; assault consummated by a battery 

(2) Breaking arrest. 

(a) Article 13.4-breaking restriction 

(b) Article 80-attempts 

(3) Escape from custody. Article 80-attempts 

(4) Escape from confinement. Article 80-attempts 

e. Maximum punishment. 

(1) Resisting apprehension. Bad-conduct discharge, forfeiture of all pay and allowances, and confinement for 1 year. 

(2) Breaking arrest. Bad-conduct discharge, forfeiture of all pay and allowances, and confinement for 

6 months. 

(3) Escape from custody or confinement. Dishonorable discharge, forfeiture of all pay and allowances, 

and confinement for 1 year. 

f. Sample spec$ications. 

(1) Resisting apprehension. 

In that (personal jurisdiction data), did, (at/on board-location) (subject-matter jurisdiction data, if required), on or about 19 -,resist being apprehended by , 

(an armed force policeman) ( ), a person authorized to apprehend the accused. 

(2) Breaking arrest. 

In that (personal jurisdiction data), having been placed in arrest (in quarters) (in his/ 

her company area) ( ) by a person authorized to order the accused into arrest, did, (at/on boardlocation) on or about 19 -, break said arrest. 

(3) Escape from custody. 

In that (personal jurisdiction data), did, (at/on board-location) (subjectmatter jurisdiction data, if required), on or about 19 -,escape from the custody of , 

a person authorized to apprehend the accused. 

(4) Escape from confinement. 

In that (personal jurisdiction data), having been placed in confinement in (place of 

confinement), by a person authorized to order the accused into confinement did, (at/on board-location) (subjectmatter jurisdiction data, if required), on or about 19 -,escape from confinement. 

20. Article 96-Releasing prisoner without proper authority 

a. Text. 

"Any person subject to this chapter who, without proper authority, releases any prisoner committed to his 

charge, or who through neglect or design suffers any such prisoner to escape, shall be punished as a courtmartial may direct, whether or not the prisoner was committed in strict compliance with law." 

b. Elements. 

(1) Releasing a prisoner without proper authority. 

(a) That a certain prisoner was committed to the charge of the accused; and 

(b) That the accused released the prisoner without proper authority. 

(2) Suffering a prisoner to escape through neglect. 

(a) That a certain prisoner was committed to the charge of the accused; 
(b) That the prisoner escaped; 

(c) That the accused did not take such care to prevent the escape as a reasonably careful person, 

acting in the capacity in which the accused was acting, would have taken in the same or similar circumstances; 

and 

(d) That the escape was the proximate result of the accused's neglect. 

(3) Suffering a prisoner to escape through design. 

(a) That a certain prisoner was committed to the charge of the accused; 

(b) That the design of the accused was to suffer the escape of that prisoner; and 

(c) That the prisoner escaped as a result of the carrying out'of the design of the accused. 

c. Explanation. 

(1) Releasing a prisoner without proper authority. 

(a) Prisoner. "Prisoner" includes a civilian or military person who has been confined. 

(b) Release. The release of a prisoner is removal of restraint by the custodian rather than by the 

prisoner. 

(c) Authority to release. See R.C.M. 305(g) as to who may release pretrial prisoners. Normally, 

the lowest authority competent to order release of a post-trial prisoner is the commander who convened the courtmartial which sentenced the prisoner or the officer exercising general court-martial jurisdiction over the prisoner. 

See also R.C.M. 1101. 

(d) Committed. Once a prisoner has been confined, the prisoner has been "committed" in the 

sense of Article 96, and only a competent authority (see subparagraph (c)) may order release, regardless of 

failure to follow procedures prescribed by the code, this Manual, or other law. 

(2) Suffering a prisoner to escape through neglect. 

(a) Suffer. "Suffer" means to allow or permit; not to forbid or hinder. 

(b) Neglect. "Neglect" is a relative term. It is the absence of conduct which would have been 

taken by a reasonably careful person in the same or similar circumstances. 

(c) Escape. Escape is defined in paragraph 19c(4)(c). 

(d) Status of prisoner after escape not a defense. After escape, the fact that a prisoner returns, is 

captured, killed, or otherwise dies is not a defense. 

(3) Suffering a prisoner to escape through design. An escape is suffered through design when it is 

intended. Such intent may be inferred from conduct so wantonly devoid of care that the only reasonable inference 

which may be drawn is that the escape was contemplated as a probable result. 

d. Lesser included offenses. 

(1) Releasing a prisoner without proper authority. Article 80-attempts 

(2) Suffering a prisoner to escape through neglect. None 

(3) Suffering a prisoner to escape through design. 

(a) Article 96-suffering a prisoner to escape through neglect 

(b) Article 80-attempts 

e. Maximum punishment. 
(1) Releasing a prisoner without proper authority. Dishonorable discharge, forfeiture of all pay and 

allowances, and confinement for 2 years. 

(2) Suffering a prisoner to escape through neglect. Bad-conduct discharge, forfeiture of all pay and 

allowances, and confinement for 1 year. 

(3) Suffering a prisoner to escape through design. Dishonorable discharge, forfeiture of all pay and 

allowances, and confinement for 2 years. 

f. Sample specifications. 

(1) Releasing a prisoner without proper authority. 

In that (personal jurisdiction data), did, (at/on board-location), on or about -

19 -, without proper authority, release ,a prisoner committed to hislher charge. 

(2) Suffering a prisoner to escape through neglect or design. 

In that (personal jurisdiction data), did, (at/on board-location), on or about -

19 -,through (neglect) (design), suffer ,a prisoner committed to hislher charge, to escape. 

21. Article 97-Unlawful detention 

a. Text. 

"Any person subject to this chapter who, except as provided by law, apprehends, arrests, or confines any 

person shall be punished as a court-martial may direct." 

b. Elements. 

(1) That the accused apprehended, arrested, or confined a certain person; and 

(2) That the accused unlawfully exercised the accused's authority to do so. 

c. Explanation. 

(1) Scope. This article prohibits improper acts by those empowered by the code to arrest, apprehend, 

or confine. See Articles 7 and 9; R.C.M. 302, 304, 305, and 1 101, and paragraphs 2 and 5b, Part V. It does 

not apply to private acts of false imprisonment or unlawful restraint of another's freedom of movement by one 

not acting under such a delegation of authority under the code. 

(2) No force required. The apprehension, arrest, or confinement must be against the will of the person 

restrained, but force is not required. 

(3) Defense. A reasonable belief held by the person imposing restraint that it is lawful is a defense. 

d. Lesser included offense. Article 80-attempts 

e. Maximum punishment. Dishonorable discharge, forfeiture of all pay and allowances, and confinement 

for 3 years. 

f. Sample specification. 

In that (personal jurisdiction data), did, (at/on board-location), on or about -

19 -, unlawfully (apprehend (place in arrest) (confine 

in 1. 

22. Article 98-Noncompliance with procedural rules 

a. Text. 


"Any person subject to this chapter who- 


(1) is responsible for unnecessary delay in the disposition of any case of a person accused of an offense 

under this chapter; or 
(2) Knowingly and intentionally fails to enforce or comply with any provision of this chapter regulating 

the proceedings before, during, or after trial of an accused; 

shall be punished as a court-martial may direct." 

b. Elements. 

(1) Unnecessary delay in disposing of case. 

(a) That the accused was charged with a certain duty in connection with the disposition of a case 

of a person accused of an offense under the code; 

(b) That the accused knew that the accused was charged with this duty; 

(c) That delay occurred in the disposition of the case; 

(d) That the accused was responsible for the delay; and 

(e) That, under the circumstances, the delay was unnecessary. 

(2) Knowingly and intentionally failing to enforce or comply with provisions of the code. 

(a) That the accused failed to enforce or comply with a certain provision of the code regulating 

a proceeding before, during, or after a trial; 

(b) That the accused had the duty of enforcing or complying with that provision of the code; 

(c) That the accused knew that the accused was charged with this duty; and 

(d) That the accused's failure to enforce or comply with that provision was intentional. 

c. Explanation. 

(1) Unnecessary delay in disposing of case. The purpose of section (1) of Article 98 is to ensure exwtious 

disposition of cases of persons accused of offenses under the code. A person may be responsible for delay in the 

disposition of a case only when that person's duties require action with respect to the disposition of that case. 

(2)Knowingly and intentionally failing to enforce or comply with provisions of the code. Section (2) 

of Article 98 does not apply to errors made in good faith before, during, or after trial. It is designed to punish 

intentional failure to enforce or comply with the provisions of the code regulating the proceedings before, during, 

and after trial. Unlawful command influence under Article 37 may be prosecuted under this Article. See also 

Article 31 and R.C.M. 104. 

d. Lesser included offense. Article 80-attempts 

e. Maximum punishment. 

(I) 'Unnecessary delay in disposing of case. Bad-conduct discharge, forfeiture of all pay and allowances, 

and confinement for 6 months. 

(2) Knowingly and intentionally failing to enforce or comply with provisions of the code. Dishonorable 

discharge, forfeiture of all pay and allowances, and confinement for 5 years. 

f. Sample specijkations. 

(1) Unnecessary delay in disposing of case. 

In that (personal jurisdiction data), being charged with the duty of [(investigating) 

(taking immediate steps to determine the proper disposition of) charges preferred against , 

a person accused of an offense under the Uniform Code of Military Justice] [ 1, was, (atJon 

board-location), on or about 19 -,responsible for unnecessary delay in (investigating said 

charges) (determining the proper disposition of said charges ( 1, 

in that hetshe (did ) (failed to ) ( ). 

(2) Knowingly and intentionally failing to enforce or comply with provisions of the code. 

In that (personal jurisdiction data), being charged with the duty of , 

did, (atJon board-location), on or about 19 -,knowingly and intentionally fail to (enforce) 

(comply with) Article ,Uniform Code of Military Justice, in that hetshe 
23. Article 99-Misbehavior before the enemy 

a. Text. 


"Any member of the armed forces who before or in the presence of the enemy- 


(1) runs away; 

(2) shamefully abandons, surrenders, or delivers up any command, unit, place, or military property 

which it is his duty to defend; 

(3) through disobedience, neglect, or intentional misconduct endangers the safety of any such command, 

unit, place, or military property; 

(4) casts away his arms or ammunition; 

(5) is guilty of cowardly conduct; 

(6) quits his place of duty to plunder or pillage; 

(7) causes false alarms in any command, unit, or place under control of the armed forces; 

(8) willfully fails to do his utmost to encounter, engage, capture, or destroy any enemy troops, 

combatants, vessels, aircraft, or any other thing, which it is his duty so to encounter, engage, capture, or destroy; 

or 

(9) does not afford all practicable relief and assistance to any troops, combatants, vessels, or aircraft 

of the armed forces belonging to the United States or their allies when engaged in battle; 

shall be punished by death or such other punishment as a court-martial may direct." 

b. Elements. 

(1) Running away. 

(a) That the accused was before or in the presence of the enemy; 

(b) That the accused misbehaved by running away; and 

(c) That the accused intended to avoid actual or impending combat with the enemy by running 

away. 

(2) Shamefully abandoning, surrendering, or delivering up command. 

(a) That the accused was charged by orders or circumstances with the duty to defend a certain 

command, unit, place, ship, or military property; 

(b) That, without justification, the accused shamefully abandoned, surrendered, or delivered up 

that command, unit, place, ship, or military property; and 

(c) That this act occurred while the accused was before or in the presence of the enemy. 

(3) Endangering safety of a command, unit, place, ship, or military property. 

(a) That it was the duty of the accused to defend a certain command, unit, place, ship, or certain 

military property; 

(b) That the accused committed certain disobedience, neglect, or intentional misconduct; 

(c) That the accused thereby endangered the safety of the command, unit, place, ship, or military 

property; and 

(d) That this act occurred while the accused was before or in the presence of the enemy. 

(4) Casting away arms or ammunition. 

(a) That the accused was before or in the presence of the enemy; and 

(b) That the accused cast away certain arms or ammunition. 
(5) Cowardly conduct. 

(a) That the accused committed an act of cowardice; 

(b) That this conduct occurred while the accused was before or in the,presence of the enemy; and 

(c) That this conduct was the result of fear. 

(6) Quitting place of duty to plunder or pillage. 

(a) That the accused was before or in the presence of the enemy; 

(b) That the accused quit the accused's place of duty; and 

(c) That the accused's intention in quitting was to plunder or pillage public or private property. 

(7)Causing false alarms. 

(a) That an alarm was caused in a certain command, unit, or place under control of the armed 

forces of the United States; 

(b) That the accused caused the alarm; 

(c) That the alarm was caused without any reasonable or sufficient justification or excuse; and 

(d) That this act occurred while the accused was before or in the presence of the enemy. 

(8) Willfully failing to do utmost to encounter enemy. 

I 

(a) That the accused was serving before or in the presence of the enemy; 

(b) That the accused had a duty to encounter, engage, capture, or destroy certain enemy troops, 

combatants, vessels, aircraft, or a certain other thing; and 

(c) That the accused willfully failed to do the utmost to perform that duty. 

(9)Failing to aflord relief and assistance. 

(a) That certain troops, combatants, vessels, or aircraft of the armed forces belonging to the United 

States or an ally of the United States were engaged in battle and required relief and assistance; 

(b) That the accused was in a position and able to render relief and assistance to these troops, 

combatants, vessels, or aircraft, without jeopardy to the accused's mission; 

(c) That the accused failed to afford all practicable relief and assistance; and 

(d) That, at the time, the accused was before or in the presence of the enemy. 

c. Explanation. 

(1) Running away. 

(a) Running away. "Running away" means an unauthorized departure to avoid actual or impending 

combat. It need not, however, be the result of fear, and there is no requirement that the accused literally run. 

(b) Enemy. "Enemy" includes organized forces of the enemy in time of war, any hostile body 

that our forces may be opposing, such as a rebellious mob or a band of renegades, and includes civilians as well 

as members of military organizations. "Enemy" is not restricted to the enemy government or its armed forces. 

All the citizens of one belligerent are enemies of the government and all the citizens of the other. 

(c) Before the enemy. Whether a person is "before the enemy" is a question of tactical relation, 

not distance. For example, a member of an antiaircraft gun crew charged with opposing anticipated attack from 

the air, or a member of a unit about to move into combat may be before the enemy although miles from the 

enemy lines. On the other hand, an organization some distance from the front or immediate area of combat 

which is not a part of a tactical operation then going on or in immediate prospect is not "before or in the presence 

of the enemy" within the meaning of this article. 

(2)Shamefully abandoning, surrendering, or delivering up of command. 
(a) Scope. This provision concerns primarily commanders chargeable with responsibility for defending a command, unit, place, ship or military property. Abandonment by a subordinate would ordinarily be 

charged as running away. 

(b) Shameful. Surrender or abandonment without justification is shameful within the meaning of 

this article. 

(c) Surrender; delivers up. "Surrenders" and "delivers up" are synonymous for the purposes of 

this article. 

(d) Justification. Surrender or abandonment of a command, unit, place, ship, or military property 

by a person charged with its defense can be justified only by the utmost necessity or extremity. 

(3) Endangering safety of a command, unit, place, ship, or military property. 

(a) Neglect. "Neglect" is the absence of conduct which would have been taken by a reasonably 

careful person in the same or similar circumstances. 

(b) Intentional misconduct. "Intentional misconduct" does not include a mere error in judgment. 

(4) Casting away arms or ammunition. Self-explanatory. 

(5) Cowardly conduct. 

(a) Cowardice. "Cowardice" is misbehavior motivated by fear. 

(b) Fear. Fear is a natural feeling of apprehension when going into battle. The mere display of 

apprehension does not constitute this offense. 

(c) Nature of offense. Refusal or abandonment of a performance of duty before or in the presence 

of the enemy as a result of fex constitutes this offense. 

(d) Defense. Genuine and extreme illness, not generated by cowardice, is a defense. 

(6) Quitting place of duty to plunder or pillage. 

(a) Place of duty. "Place of duty" includes any place of duty, whether permanent or temporary, 

fixed or mobile. 

(b) Plunder or pillage. "Plunder or pillage" means to seize or appropriate public or private 

property unlawfully. 

(c) Nature of offense. The essence of this offense is quitting the place of duty with intent to plunder 

or pillage. Merely quitting with that purpose is sufficient, even if the intended misconduct is not done. 

(7) Causing false alarms. This provision covers spreading of false or disturbing rumors or reports, as 

well as the false giving of established alarm signals. 

(8) Willfully failing to do utmost to encounter enemy. Willfully refusing a lawful order to go on a 

combat patrol may violate this provision. 

(9)Failing to afford relief and assistance. 

(a) All practicable relief and assistance. "All practicable relief and assistance" means all relief 

and assistance which should be afforded within the limitations imposed upon a person by reason of that person's 

own specific tasks or mission. 

(b) Nature of offense. This offense is limited to a failure to afford relief and assistance to forces 

"engaged in battle. " 

d. Lesser included offenses. 

(1) Running away. 

(a) Article 85-desertion with intent to avoid hazardous or important service 

(b) Article 86-absence without authority; going from appointed place of duty 
(c) Article 80-attempts 

(2) Shamefully abandoning, surrendering, or delivering up command. Article 80-attempts 

(3) Endangering safety of a command, unit, place, ship, or military properry. 

(a) Through disobedience of order. Article 92-failure to obey lawful order 

(b) Article 80-attempts 

(4) Casting away arms or ammunition. 

(a) Article 108-military property of the United States-loss, damage, destruction, or wrongful 

disposition 

(b) Article 80-attempts 

(5) Cowardly conduct. 

(a) Article 85-desertion with intent to avoid hazardous duty or important service 

(b) Article 86-absence without authority 

(c) Article 99-running away 

(d) Article 80-attempts 

(6) Quitting place of duty to plunder or pillage. 

(a) Article 86(2)-going from appointed place of duty 

(b) Article 80-attempts 

(7)Causing false alarms. Article 80-attempts 

(8) Willfully failing to do utmost to encounter enemy. Article 80-attempts 

(9) Failing to afSord relief and assistance. Article 80-attempts 

e. Maximum punishment. All offenses under Article 99. Death or such other punishment as a court-martial 

may direct. 

f. Sample specifications. 

(1) Running away. 

In that (personal jurisdiction data), did, (at/on board-location), on or about 

19 -,(before) (in the presence of) the enemy, run away (from histher company) (and hide) ( ), 

(and did not return until after the engagement had been concluded) ( ). 

(2) Shamefully abandoning, surrendering, or delivering up command. 

In that (personal jurisdiction data), did, (at/on board-location), on or about - 19 -, (before) (in the presence of) the enemy, shamefully (abandon) (surrender) (deliver up) 

, which it was hislher duty to defend. 

(3) Endangering safety of a command, unit, place, ship, or military property. 

In that (personal jurisdiction data), did, (at/on board-location), on or about -

19 -, (before) (in the presence of) the enemy, endanger the safety of , 

which it was hislher duty to defend, by (disobeying an order from to engage the enemy) 

(neglecting hislher duty as a sentinel by engaging in a card game while on hislher post) (intentional misconduct 

in that helshe became drunk and fired flares, thus revealing the location of hislher unit) ( ). 

(4) Casting away arms or ammunition. 

In that (personal jurisdiction data), did, (at/onboard-location), on or about 

19 -,(before) (in the presence of) the enemy, cast away histher (rifle) (ammunition) ( 1. 
(5) Cowardly conduct. 

In that (personal jurisdiction data), (atton board-location), on or about 

19 -, (before) (in the presence of) the enemy, was guilty of cowardly conduct as a result of fear, in 

that 

(6)Quitting place of duty to plunder or pillage. 

In that (personal jurisdiction data), did, (atton board-location), on or about -

19 -, (before) (in the presence of) the enemy, quit histher place of duty for the purpose of (plundering) 

(pillaging) (plundering and pillaging). 

(7) Causing false alarms. 

In that (personal jurisdiction data), did, (atton board-location), on or about -

19 -, (before) (in the presence of) the enemy, cause a false alarm in (Fort ) (the said 

ship) (the camp) ( ) by [needlessly and without authority (causing the call to arms to be sounded) 

(sounding the general alarm)] [ I. 

(8) Willfully failing to do utmost to encounter enemy. 

In that (personal jurisdiction data), being (before) (in the presence of) the enemy, did, 

(atton board-location), on or about 19 -, by, (ordering hislher troops to halt their advance) 

( ), willfully fail to do histher utmost to (encounter) (engage) (capture) (destroy), as it was his/ 

her duty to do, (certain enemy troops which were in retreat) ( 1. 

(9) Failing to afSord relief and assistance. 

In that (personal jurisdiction data), did, (atton board-location), on or about -

19 -,(before) (in the presence of) the enemy, fail to afford all practicable relief and assistance to (the USS 

, which was engaged in battle and had run aground, in that hetshe failed to take her in tow) 

(certain troops of the ground forces of , which were engaged in battle and were pinned down 

by enemy fire, in that hetshe failed to furnish air cover) ( ) as helshe properly should have 

done. 

24. Article 100-Subordinate compelling surrender 

a. Text. 

"Any person subject to this chapter who compels or attempts to compel the commander of any place, vessel, 

aircraft, or other military property, or of any body of members of the armed forces, to give it up to an enemy 

or to abandon it, or who strikes the colors or flag to an enemy without proper authority, shall be punished by 

death or such other punishment as a court-martial may direct." 

b. Elements. 

(1) Compelling surrender. 

(a) That a certain person was in command of a certain place, vessel, aircraft, or other military 

property or of a body of members of the armed forces; 

(b) That the accused did an overt act which was intended to and did compel that commander to 

give it up to the enemy or abandon it; and 

(c) That the place, vessel, aircraft, or other military property or body of members of the armed 

forces was actually given up to the enemy or abandoned. 

(2)Attempting to compel surrender. 

(a) That a certain person was in command of a certain place, vessel, aircraft, or other military 

property or of a body of members of the armed forces; 

(b) That the accused did a certain overt act; 
(c) That the act was done with the intent to compel that commander to give up to the enemy or 

abandon the place, vessel, aircraft, or other military property or body of members of the armed forces; 

(d) That the act amounted to more than mere preparation; and 

(e) That the act apparently tended to bring about the compelling of surrender or abandonment. 

(3) Striking the colors or flag. 

(a) That there was an offer of surrender to an enemy; 

(b) That this offer was made by striking the colors or flag to the enemy or in some other manner; 

(c) That the accused made or was responsible for the offer; and 

(d) hat the accused did not have proper authority to make the offer. 

c. Explanation. 

(1) Compelling surrender. 

(a) Nature of offense. The offenses under this article are similar to mutiny or attempted munity 

designed to bring about surrender or abandonment. Unlike some cases of mutiny, however, concert of action is 

not an essential element of the offenses under this article. The offense is not complete until the place, military 

property, or command is actually abandoned or given up to the enemy. 

(b) Surrender. "Surrender" and "to give it up to an enemy" are synonymous. 

(c) Acts required. The surrender or abandonment must be compelled or attempted to be compelled 

by acts rather than words. 

(2)Attempting to compel surrender. The offense of attempting to compel a surrender or abandonment 

does not require actual abandonment or surrender, but there must be some act done with this purpose in view, 

even if it does not accomplish the purpose. 

(3) Striking the colors or flag. 

(a) In general. To "strike the colors or flag" is to haul down the colors or flag in the face of the 

enemy or to make any other offer of surrender. It is traditional wording for an act of surrender. 

(b) Nature of ofense. The offense is committed when one assumes the authority to surrender a 

military force or position when not authorized to do so either by competent authority or by the necessities of 

battle. If continued battle has become fruitless and it is impossible to communicate with higher authority, those 

facts will constitute proper authority to surrender. The offense may be committed whenever there is sufficient 

contact with the enemy to give the opportunity of malung an offer of surrender and it is not necessary that an 

engagement with the enemy be in progress. It is unnecessary to prove that the offer was received by the enemy 

or that it was rejected or accepted. The sending of an emissary charged with making the offer of surrender is 

an act sufficient to prove the offer, even though the emissary does not reach the enemy. 

(4)Enemy. For a discussion of "enemy," see paragraph 23c(l)(b). 

d. Lesser included offense. Striking the colors or flag. Article 80-attempts 

e. Maximum punishment. All offenses under Article 100. Death or such other punishment as a court-martial 

may direct. 

f. Sample specijkations. 

(1) Compelling surrender or attempting to compel surrender. 

In that (personal jurisdiction data), did, (at/on-board location), on or about -

19 -,(attempt to) compel ,the commander of ,(to give up to the enemy) 

(to abandon) said 9 by

(2)Striking the colors or flag. 

In that (personal jurisdiction data), did, (at/on board-location), on or about -
19 -, without proper authority, offer to surrender to the enemy by [striking the (colors)(flag)] [ -1. 

25. Article 101-Improper use of countersign 

a. Text. 

"Any person subject to this chapter who in time of war discloses the parole or countersign to any person 

not entitled to receive it or who gives to another who is entitled to receive and use the parole or countersign a 

different parole or countersign from that which, to his knowledge, he was authorized and required to give, shall 

be punished by death or such other punishment as a court-martial may direct." 

b. Elements. 

(1) Disclosing the parole or countersign to one not entitled to receive it. 

(a) That, in time of war, the accused disclosed the parole or countersign to a person, identified 

or unidentified; and 

(b) That this person was not entitled to receive it. 

(2) Giving a parole or countersign differentfrom that authorized. 

(a) That, in time of war, the accused knew that the accused was authorized and required to give 

a certain parole or countersign; and 

(b) That the accused gave to a person entitled to receive and use this parole or countersign a 

different parole or countersign from that which the accused was authorized and required to give. 

c. Explanation. 

(1) Countersign. A countersign is a word, signal, or procedure given from the principal headquarters 

of a command to aid guards and sentinels in their scrutiny of persons who apply to pass the lines. It consists of 

a secret challenge and a password, signal, or procedure. 

(2) Parole. A parole is a word used as a check on the countersign; it is given only to those who are 

entitled to inspect guards and to commanders of guards. 

(3) Who may receive countersign. The class of persons entitled to receive the countersign or parole 

will expand and contract under the varying circumstances of war. Who these persons are will be determined 

largely, in any particular case, by the general or special orders under which the accused was acting. Before 

disclosing such a word, a person subject to military law must determine at that person's peril that the recipient 

is a person authorized to receive it. 

(4) Intent, motive, negligence, mistake, ignorance not defense. The accused's intent or motive in 

disclosing the countersign or parole is immaterial to the issue of guilt, as is the fact that the disclosure was 

negligent or inadvertent. It is no defense that the accused did not know that the person to whom the countersign 

or parole was given was not entitled to receive it. 

(5) How accused received countersign or parole. It is immaterial whether the accused had received 

the countersign or parole in the regular course of duty or whether it was obtained in some other way. 

(6)In time of war. See R.C.M. 103(19). 

d. Lesser included offense. Article 80-attempts 

e. Maximum punishment. Death or such other punishment as a court-martial may direct. 

f. Sample specifications. 

(1) Disclosing the parole or countersign to one not entitled to receive it. 

In that (personal jurisdiction data), did, (atton board-location), on or about -

1 9 , a time of war, disclose the (parole) (countersign), to wit: , to 

,a person who was not entitled to receive it. 
(2) Giving a parole or countersign different from that authorized. 

In that (personal jurisdiction data), did, (at/on board-location), on or about - 19 -,a time of war, give to ,a person entitled to receive and use the (parole) (countersign), 

a (parole) (countersign), namely: w h i c h was different from that which, to histher knowledge, 

helshe was authorized and required to give, to wit: 

26. Article 102-Forcing a safeguard 

a. Text. 

"Any person subject to this chapter who forces a safeguard shall suffer death or such other punishment as 

a court-martial may direct. " 

b. Elements. 

(1) That a safeguard had been issued or posted for the protection of a certain person or persons, place, 

or property; 

(2) That the accused knew or should have known of the safeguard; and 

(3) That the accused forced the safeguard. 

c. Explanation. 

(1) Safeguard. A safeguard is a detachment, guard, or detail posted by a commander for the protection 

of persons, places, or property of the enemy, or of a neutral affected by the relationship of belligerent forces in 

their prosecution of war or during circumstances amounting to a state of belligerency. The term also includes a 

written order left by a commander with an enemy subject or posted upon enemy property for the protection of 

that person or property. A safeguard is not a device adopted by a belligerent to protect its own property or 

nationals or to ensure order within its own forces, even if those forces are in a theater of combat operations, 

and the posting of guards or of off-limits signs does not establish a safeguard unless a commander takes those 

actions to protect enemy or neutral persons or property. The effect of a safeguard is to pledge the honor of the 

nation that the person or property shall be respected by the national armed forces. 

(2) Forcing a safeguard. "Forcing a safeguard" means to perform an act or acts in violation of the 

protection of the safeguard. 

(3) Nature of offense. Any trespass on the protection of the safeguard will constitute an offense under 

this article, whether the safeguard was imposed in time of war or in circumstances amounting to a state of 

belligerency short of a formal state of war. 

(4)Knowledge. Actual knowledge of the safeguard is not required. It is sufficient if an accused should 

have known of the existence of the safeguard. 

d. Lesser included offense. Article 80-attempts 

e. Maximum punishment. Death or such other punishment as a court-martial may direct. 

f. Sample specification. 

In that (personal jurisdiction data), did, (at/on board-location), on or about - 19 -, force a safeguard, [known by hidher to have been placed over the premises occupied by 

at by (overwhelming the guard posted for the protection of the same) ( )I 

27. Article 103-Captured or abandoned property 

a. Text. 

"(a) All persons subject to this chapter shall secure all public property taken from the enemy for the service 

of the United States, and shall give notice and turn over to the proper authority without delay all captured or 

abandoned property in their possession, custody, or control. 
(b) Any person subject to this chapter who- 

(1) fails to carry out the duties prescribed in subsection (a); 

(2) buys, sells, trades, or in any way deals in or disposes of captured or abandoned property, whereby 

he receives or expects any profit, benefit, or advantage to himself or another directly or indirectly connected 

with himself; or 

(3) engages in looting or pillaging; 


shall be punished as a court-martial may direct." 


b. Elements. 

(1) Failing to secure public property taken from the enemy. 

(a) That certain public property was taken from the enemy; 

(b) That this property was of a certain value; and 

(c) That the accused failed to do what was reasonable under the circumstances to secure this 

property for the service of the United States. 

(2)Failing to report and turn over captured or abandoned property. 

(a) That certain captured or abandoned public or private property came into the possession, custody, 

or control of the accused; 

(b) That this property was of a certain value; and 

(c) That the accused failed to give notice of its receipt and failed to turn over to proper authority, 

without delay, the captured or abandoned public or private property. 

(3) Dealing in captured or abandoned property. 

(a) That the accused bought, sold, traded, or otherwise dealt in or disposed of certain public or 

private captured or abandoned property; 

(b) That this property was of certain value; and 

(c) That by so doing the accused received or expected some profit, benefit, or advantage to the 

accused or to a certain person or persons connected directly or indirectly with the accused. 

(4)Looting or pillaging. 

(a) That the accused engaged in looting, pillaging, or looting and pillaging by unlawfully seizing 

or appropriating certain public or private property; 

(b) That this property was located in enemy or occupied temtory, or that it was on board a seized 

or captured vessel; and 

(c) That this property was: 

(i) left behind, owned by, or in the custody of the enemy, an occupied state, an inhabitant 

of an occupied state, or a person under the protection of the enemy or occupied state, or who, immediately prior 

to the occupation of the place where the act occurred, was under the protection of the enemy or occupied state; 

or 

(ii) part of the equipment of a seized or captured vessel; or 

(iii) owned by, or in the custody of the officers, crew, or passengers on board a seized or 

captured vessel. 

c. Explanation. 

(1) Failing to secure public property taken from the enemy. 

(a) Nature of property. Unlike the remaining offenses under this article, failing to secure public 

property taken from the enemy involves only public property. Immediately upon its capture from the enemy, 
public property becomes the property of the United States. Neither the person who takes it nor any other person 

has any private right in this property. 

(b) Nature of duty. Every person subject to military law has an immediate duty to take such steps 

as are reasonably within that person's power to secure public property for the service of the United States and 

to protect it from destruction or loss. 

(2) Failing to report and turn over captured or abandoned property. 

(a) Reports. Reports of receipt of captured or abandoned property are to be made directly or 

through such channels as are required by current regulations, orders, or the customs of the service. 

(b) Proper authority. "Proper authority" is any authority competent to order disposition of the 

property in question. 

(3) Dealing in captured or abandoned property. "Disposed of" includes destruction or abandonment. 

(4) Looting or pillaging. "Looting or pillaging" means unlawfully seizing or appropriating property 

which is located in enemy or occupied temtory. 

(5) Enemy. For a discussion of "enemy," see paragraph 23c(l)(b). 

d. Lesser included offense. Article 80-attempts 

e. Maximum punishment. 

(1) Failing to secure public property taken from the enemy; failing to secure, give notice and turn over, 

selling, or otherwise wrongfully dealing in or disposing of captured or abandoned property: 

(a) of a value of $100.00 or less. Bad-conduct discharge, forfeiture of all pay and allowances, 

and confinement for 6 months. 

(b) of a value of more than $100.00. Dishonorable discharge, forfeiture of all pay and allowances, 

and confinement for 5 years. 

(2) Looting or pillaging. Any punishment, other than death, that a court-martial may direct. See R.C.M. 

1003. 

f. Sample specijications. 

(1) Failing to secure public property taken from the enemy. 

In that (personal jurisdiction data), did, (affon board-location), on or about 

19 -,fail to secure for the service of the United States certain public property taken from the enemy, to 

wit: ,of a value of (about) $ 

(2) Failing to report and turn over captured or abandoned property. 

In that (personal jurisdiction data), did, (affon board-location), on or about - 19 -, fail to give notice and turn over to proper authority without delay certain (captured) (abandoned) 

property which had come into hislher (possession) (custody) (control), to wit: , of 

a value of (about), $ 

(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: ,of a value of (about) $ ,thereby (receiving) (expecting) a (profit) (benefit) 

(advantage) to (himselflherself) ( , his/her accomplice) ( , hislher brother) 

(4) Looting or pillaging. 

In that (personal jurisdiction data), did, (affon board-location), on or about 

19 -, engage in (looting) (pillaging) (looting and pillaging) by unlawfully (seizing) (appropriating) , 

[property which had been left behind] [the property of , (an inhab-

'itant of 1 ( )I. 
28. Article 104-Aiding the enemy 

a. Text. 


"Any person who- 


(1) aids, or attempts to aid, the enemy with arms, ammunition, supplies, money, or other things; or 

(2) without proper authority, knowingly harbors or protects or gives intelligence to or communicates 

or corresponds with or holds any intercourse with the enemy, either directly or indirectly; 

shall suffer death or such other punishment as a court-martial or military commission may direct." 

b. Elements. 

(1) Aiding the enemy. 

(a) That the accused aided the enemy; and 

(b) That the accused did so with certain arms, ammunition, supplies, money, or other things. 

(2) Attempting to aid the enemy. 

(a) That the accused did a certain overt act; 

(b) That the act was done with the intent to aid the enemy with certain arms, ammunition, supplies, 

money, or other things; 

(c) That the act amounted to more than mere preparation; and 

(d) That the act apparently tended to bring about the offense of aiding the enemy with certain 

arms, ammunition, supplies, money, or other things. 

(3) Harboring or protecting the enemy. 

(a) That the accused, without proper authority, harbored or protected a person; 

(b) That the person so harbored or protected was the enemy; and 

(c) That the accused knew that the person so harbored or protected was an enemy. 

(4) Giving intelligence to the enemy. 

(a) That the accused, without proper authority, knowingly gave intelligence information to the 

enemy; and 

(b) That the intelligence information was true, or implied the truth, at least in part. 

(5) Communicating with the enemy. 

(a) That the accused, without proper authority, communicated, corresponded, or held intercourse 

with the enemy, and; 

(b) That the accused knew that the accused was communicating, corresponding, or holding intercourse with the enemy. 

c. Explanation. 

(1) Scope ofArticle 104. This article denounces offenses by all persons whether or not otherwise subject 

to military law. Offenders may be tried by court-martial or by military commission. 

(2) Enemy. For a discussion of "enemy," see paragraph 23c(l)(b). 

(3) Aiding or attempting to aid the enemy. It is not a violation of this article to furnish prisoners of 

war subsistence, quarters, and other comforts or aid to which they are lawfully entitled. 

(4) Harboring or protecting the enemy. 

(a) Nature of offense. An enemy is harbored or protected when, without proper authority, that 
enemy is shielded, either physically or by use of any artifice, aid, or representation from any injury or misfortune 

which in the chance of war may occur. 

(b) Knowledge. Actual knowledge is required, but may be proved by circumstantial evidence. 

(5) Giving intelligence to the enemy. 

(a) Nature of oflense. Giving intelligence to the enemy is a particular case of corresponding with 

the enemy made more serious by the fact that the communication contains intelligence that may be useful to the 

enemy for any of the many reasons that make information valuable to belligerents. This intelligence may be 

conveyed by direct or indirect means. 

(b) Intelligence. "Intelligence" imports that the information conveyed is true or implies the truth, 

at least in part. 

(c) Knowledge. Actual knowledge is required but may be proved by circumstantial evidence. 

(6) Communicating with the enemy. 

(a) Nature of the offense. No unauthorized communication, correspondence, or intercourse with 

the enemy is permissible. The intent, content, and method of the communication, correspondence, or intercourse 

are immaterial. No response or receipt by the enemy is required. The offense is completesthe moment the 

communication, correspondence, or intercourse issues from the accused. The communication, correspondence, 

or intercourse may be conveyed directly or indirectly. A prisoner of war may violate this Article by engaging 

in unauthorized communications with the enemy. See also paragraph 29c(3). 

(b) Knowledge. Actual knowledge is required but may be proved by circumstantial evidence. 

(c) Citizens of neutralpowers. Citizens of neutral powers resident in or visiting invaded or occupied 

temtory can claim no immunity from the customary laws of war relating to communication with the enemy. 

d. Lesser included ofense. For harboring or protecting the enemy, giving intelligence to the enemy, or 

communicating with the enemy. Article 80-attempts 

e. Maximum punishment. Death or such other punishment as a court-martial or military commission may 

direct. 

f. Sample specifications. 

(1) Aiding or attempting to aid the enemy. 

In that (personal jurisdiction data), did, (atlon board-location), on or about - 19 -, (attempt to) aid the enemy with (arms) (ammunition) (supplies) (money) ( ), by 

(furnishing and delivering to , members of the enemy's armed forces 1 

(2)Harboring or protecting the enemy. 

In that (personal jurisdiction data), did, (atlon board-location), on or about - 19 -, without proper authority, knowingly (harbor) (protect) , an enemy, 

by (concealing the said in hisiher house) ( ). 

(3) Giving intelligence to the enemy. 

In that (personal jurisdiction data), did, (atlon board-location), on or about - 19 -, without proper authority, knowingly give intelligence to the enemy, by (informing a patrol of the 

enemy's forces of the whereabouts of a military patrol of the United States forces) ( 1. 

(4)Communicating with the enemy. 

In that (personal jurisdiction data), did, (ation board-location), on or about - 19 -, without proper authority, knowingly (communicate with) (correspond with) (hold intercourse with) 

the enemy [by writing and transmitting secretly through the lines to one ,whom heishe, the 

said ,knew to be (an officer of the enemy's armed forces) () a communication 

in words and figures substantially as follows, to wit: )I [(indirectly by publishing in , 
a newspaper published at , a communication in words and figures as follows, to wit: , 

which communication was intended to reach the enemy)] [( 11. 

29. Article 105-Misconduct as a prisoner 

a. Text. 


"Any person subject to this chapter who, while in the hands of the enemy in time of war- 


(1) for the purpose of securing favorable treatment by his captors acts without proper authority in a 

manner contrary to law, custom, or regulation, to the detriment of others of whatever nationality held by the 

enemy as civilian or military prisoners; or 

(2) while in a position of authority over such persons maltreats them without justifiable cause; 

shall be punished as a court-martial may direct." 

b. Elements. 

(1) Acting without authority to the detriment of another for the purpose of securing favorable treatment. 

(a) That without proper authority the accused acted in a manner contrary to law, custom, or 

regulation; 

(b) That the act was committed while the accused was in the hands of the enemy in time of war; 

(c) That the act was done for the purpose of securing favorable treatment of the accused by the 

captors; and 

(d) That other prisoners held by the enemy, either military or civilian, suffered some detriment 

because of the accused's act. 

(2) Maltreating prisoners while in a position of authority. 

(a) That the accused maltreated a prisoner held by the enemy; 

(b) That the act occurred while the accused was in the hands of the enemy in time of war; 

(c) That the accused held a position of authority over the person maltreated; and 

(d) That the act was without justifiable cause. 

c. Explanation. 

(1) Enemy. For a discussion of "enemy," see paragraph 23c(l)(b). 

(2) In time of war. See R.C.M. 103(19). 

(3) Acting without authority to the detriment of another for the purpose of securing favorable treatment. 

(a) Nature of offense. Unauthorized conduct by a prisoner of war must be intended to result in 

improvement by the enemy of the accused's condition and must operate to the detriment of other prisoners either 

by way of closer confinement, reduced rations, physical punishment, or other harm. Examples of this conduct 

include reporting plans of escape being prepared by others or reporting secret food caches, equipment, or arms. 

The conduct of the prisoner must be contrary to law, custom, or regulation. 

(b) Escape. Escape from the enemy is authorized by custom. An escape or escape attempt which 

results in closer confinement or other measures against fellow prisoners still in the hands of the enemy is not an 

offense under this article. 

(4)Maltreating prisoners while in a position of authority. 

(a) Authority. The source of authority is not material. It may arise from the military rank of the 

accused or-despite service regulations or customs to the contrary-designation by the captor authorities, or 

voluntary election or selection by other prisoners for their self-government. 
(b) Maltreatment. The maltreatment must be real, although not necessarily physical, and it must 

be without justifiable cause. Abuse of an inferior by inflammatory and derogatory words may, through mental 

anguish, constitute this offense. 

d. Lesser included offense. Article 80-attempts 

e. Maximum punishment. Any punishment other than death that a court-martial may direct. See R.C.M. 

1003. 

f. Sample specifications. 

(1) Acting without authority to the detriment of another for the purpose of securing favorable treatment. 

In that (personal jurisdiction data), while in the hands of the enemy, did, (atlon boardlocation) on or about 19 -, a time of war, without proper authority and for the purpose of 

securing favorable treatment by hislher captors, (report to the commander of Ca'mp the preparations 

was placed 

by 

in solitary confinement) 

,a prisoner 

( 

at said camp, to escape, as a result of which report the said -

). 

(2)Maltreating prisoner while in a position of authority. 

In that (personal jurisdiction data), did, (at/on board-location), on or about -

19 -,a time of war, while in the hands of the enemy and in a position of authority over , 

a prisoner at , as (officer in charge of prisoners at 1 ( 1, 

maltreat the said by (depriving himlher of 1( ), without justifiable 

cause. 

30.Article 106-Spies 

a. Text. 

"Any person who in time of war is found lurking as a spy or acting as a spy in or about any place, vessel, 

or aircraft, within the control or jurisdiction of any of the med forces, or in or about any shipyard, any 

manufacturing or industrial plant, or any other place or institution engaged in work in aid of the prosecution of 

the war by the United States, or elsewhere, shall be tried by a general court-martial or by a military commission 

and on conviction shall be punished by death." 

b. Elements. 

(1) That the accused was found in, about, or in and about a certain place, vessel, or aircraft within 

the control or jurisdiction of an armed force of the United States, or a shipyard, manufacturing or industrial 

plant, or other place or institution engaged in work in aid of the prosecution of the war by the United States, 

or elsewhere; 

(2) That the accused was lurking, acting clandestinely or under false pretenses; 

(3) That the accused was collecting or attempting to collect certain information; 

(4) That the accused did so with the intent to convey this information to the enemy; and 

(5) That this was done in time of war. 

c. Explanation. 

(1) In time of war. See R.C.M. 103(19). 

(2) Enemy. For a discussion of "enemy," see paragraph 23c(l)(b). 

(3) Scope of oflease. The words "any'person" bring within the jurisdiction of general courts-martial 

and military commissions all persons of whatever nationality or status who commit spying. 

(4)Nature of offense. A person can be a spy only when, acting clandestinely or under false pretenses, 

that person obtains or seeks to obtain information with the intent to convey it to a hostile party. It is not essential 
that the accused obtain the information sought or that it be communicated. The offense is complete with lurking 

or acting clandestinely or under false pretenses with intent to accomplish these objects. 

(5) Intent. It is necessary to prove to intent to convey information to the enemy. This intent may be 

inferred from evidence of a deceptive insinuation of the accused among our forces, but evidence that the person 

had come within the lines for a comparatively innocent purpose, as to visit family or to reach friendly lines by 

assuming a disguise, is admissible to rebut this inference. 

(6)Persons not included under "spying". 

(a) Members of a military organization not wearing a disguise, dispatch drivers, whether members 

of a military organization or civilians, and persons in ships or aircraft who carry out their missions openly and 

who have penetrated enemy lines are not spies because, while they may have resorted to concealment, they have 

not acted under false pretenses. 

(b) A spy who, after rejoining the armed forces to which the spy belongs, is later captured by the 

enemy incurs no responsibility for previous acts of espionage. 

(c) A person living in occupied territory who, without lurking, or acting clandestinely or under 

false pretenses, merely reports what is seen or heard through agents to the enemy may be charged under Article 

104 with giving intelligence to or communicating with the enemy, but may not be charged under this article as 

being a spy. 

d. Lesser included offenses. None 

e. Mandatory punishment. Death 

f. Sample specijkation. 

In that (personal jurisdiction data), was, (at/on board-location), on or about -

19 -, a time of war, found (lurking) (acting) as a spy (in) (about) (in and about) , 

[a (fortification) (port) (base) (vessel) (aircraft) ( ) within the (control) (jurisdiction) (control 

and jurisdiction) of an armed force of the United States, to wit: ] [a (shipyard) (manufacturing 

plant) (industrial plant) ( ) engaged in work in aid of the prosecution of the war by the United 

States] [ 1, for the purpose of (collecting) (attempting to collect) information in regard to the 

[(numbers) (resources) (operations) ( ) of the armed forces of the United States] [(military 

production) ( ) of the United States] [ 1, with intent to impart the same to the 

enemy. 

31. Article 107-False official statements 

a. Text. 

"Any person subject to this chapter who, with intent to deceive, signs any false record, return, regulation, 

order, or other official document, knowing it to be false, or makes any other false official statement knowing 

it to be false, shall be punished as a court-martial may direct." 

b. Elements. 

(1) That the accused signed a certain official document or made a certain official statement; 

(2) That the document or statement was false in certain particulars; 

(3) That the accused knew it to be false at the time of signing it or making it; and 

(4) That the false document or statement was made with the intent to deceive. 

c. Explanation. 

(1) OfJicial documents and statements. Official documents and official statements include all documents 

and statements made in the line of duty. 

(2)Status of victim of the deception. The rank of any person intended to be deceived is immaterial if 
that person was authorized in the execution of a particular duty to require or receive the statement or document 

from the accused. The government may be the victim of this offense. 

(3)Intent to deceive. The false representation must be made with the intent to deceive. It is not necessary 

that the false statement be material to the issue under inquiry. If, however, the falsity is in respect to a material 

matter, it may be considered as some evidence of the intent to deceive, while immateriality may tend to show 

an absence of this intent. 

(4)Material gain. The expectation of material gain is not an element of this offense. Such expectation 

or lack of it, however, is circumstantial evidence bearing on the element of intent to deceive. 

(5) Knowledge that the document or statement was false. The false representation must be one which 

the accused actually knew was false. Actual knowledge may be proved by circumstantial evidence. An honest, 

although erroneous, belief that a statement made is true, is a defense. 

(6)Statements made during an interrogation. 

(a) Person without an independent duty or obligation to speak. A statement made by an accused 

or suspect during an interrogation is not an official statement within the meaning of the article if that person did 

not have an independent duty or obligation to speak. But see paragraph 79 (false swearing). 

(b) Person with an independent duty or obligation to speak. If a suspect or accused does have an 

independent duty or obligation to speak, as in the case of a custodian who is required to account for property, 

a statement made by that person during an interrogation into the matter is official. While the person could remain 

silent (Article 31(b)), if the person chooses to speak, the person must do so truthfully. 

d. Lesser included ofSense. Article 80-attempts 

e. Maximum punishment. Dishonorable discharge, forfeiture of all pay and allowances, and confinement 

for 5 years. 

f. Sample specification. 

In that (personal jurisdiction data), did, (atlon board-location), (subjectmatter jurisdiction data, if required), on or about 19 -,with intent to deceive, [sign an official 

(record) (return) ( ), to wit: ] [make to , 

an official statement, to wit: 1, which (record) (return) (statement) ( 1, 

was (totally false) (false in that ), and was then known by the said to be so 

false. 

32. Article 108-Military property of the United States-sale, loss, damage, destruction, or wrongful disposition 

a. Text. 


"Any person subject to this chapter who, without proper authority- 


(1) sells or otherwise disposes of; 

(2) willfully or through neglect damages, destroys, or loses; or 

(3) willfully or through neglect suffers to be lost, damaged, destroyed, sold, or wrongfully disposed 

of; 

any military property of the United States, shall be punished as a court-martial may direct." 

b. Elements. 

(1) Selling or otherwise disposing of military property. 

(a) That the accused sold or otherwise disposed of certain property (which was a firearm or 

explosive); 

(b) That the sale or disposition was without proper authority; 
(c) That the property was military property of the United States; and 

(d) That the property was of a certain value. 

(2) Damaging, destroying, or losing military property. 

(a) That the accused, without proper authority, damaged or destroyed certain property in a certain 

way, or lost certain property; 

(b) That the property was military property of the United States; 

(c) That the damage, destruction, or loss was willfully caused by the accused or was the result 

of neglect by the accused; and 

(d) That the property was of a certain value or the damage was of a certain amount. 

(3) Suffering military property to be lost, damaged, destroyed, sold, or wrongfully disposed of. 

(a) That certain property (which was a firearm or explosive) was lost, damaged, destroyed, sold, 

or wrongfully disposed of; 

(b) That the property was military property of the United States; 

(c) That the loss, damage, destruction, sale, or wrongful disposition was suffered by the accused, 

without proper authority, through a certain omission of duty by the accused; 

(d) That this omission was willful or negligent; and 

(e) That the property was of a certain value or the damage was of a certain amount. 

c. Explanation. 

(1) Military property. Military property is all property, real or personal, owned, held, or used by one 

of the military departments of the United States. It is immaterial whether the property sold, disposed of, destroyed, 

lost, or damaged had been issued to the accused, to someone else, or even issued at all. If it is proved by either 

direct or circumstantial evidence that items of individual issue were issued to the accused, it may be inferred, 

depending on all the evidence, that the damage, destruction, or loss proved was due to the neglect of the accused. 

Retail merchandise of service exchange stores is not military property under this Article. 

(2) Suffering military property to be lost, damaged, destroyed, sold, or wrongfully disposed of. "TO 

suffer" means to allow or permit. The willful or negligent sufferance specified by this article includes: deliberate 

violation or intentional disregard of some specific law, regulation, or order; reckless or unwarranted personal 

use of the property; causing or allowing it to remain exposed to the weather, insecurely housed, or not guarded; 

permitting it to be consumed, wasted, or injured by other persons; or loaning it to a person, known to be 

irresponsible, by whom it is damaged. 

(3) Value and damage. In the case of loss, destruction, sale, or wrongful disposition, the value of the 

property controls the maximum punishment which may be adjudged. In the case of damage, the amount of 

damage controls. As a general rule, the amount of damage is the estimated or actual cost of repair by the 

government agency normally employed in such work, or the cost of replacement, as shown by government price 

lists or otherwise, whichever is less. 

d. Lesser included offenses. 

(1) Sale or disposition of military property. Article 80-attempts 

(2) Willfully damaging military property. 

(a) Article 108-damaging military property through neglect 

(b) Article 80-attempts 

(3) Willfully suffering military property to be damaged. 

(a) Article 108-through neglect suffering military property to be damaged 

(b) Article 80-attempts 
(4)Willfully destroying military property. 

(a) Article 108-through neglect destroying military property 

(b) Article 108-willfully damaging military property 

(c) Article 108-through neglect damaging military property 

(d) Article 80-attempts 

(5) Willfully suffering military property to be destroyed. 

(a) Article 108-through neglect suffering military property to be destroyed 

(b) Article 108-willfully suffering military property to be damaged 

(c) Article 108-through neglect suffering military property to be damaged 

(d) Article 80-attempts 

(6)Willfully losing military property. 

(a) Article 108-through neglect, losing military property 

(b) Article 80-attempts 

(7)Willfully suffering military property to be lost. 

(a) Article 108-through neglect, suffering military property to be lost 

(b) Article 80-attempts 

(8) Willjiully suffering military property to be sold. 

(a) Article 108-through neglect, suffering military property to be sold 

(b) Article 80-attempts 

(9) Willfully suffering military property to be wrongfully disposed of. 

(a) Article 108-through neglect, suffering military property to be wrongfully disposed of in the 

manner alleged 

(b) Article 80-attempts 

e. Maximum punishment. 

(1) Selling or otherwise disposing of military property. 

(a) Of a value of $100.00 or less. Bad-conduct discharge, forfeiture of all pay and allowances, 

and confinement for 1 year. 

(b) Of a value of more than $100.00 or of any firearm or explosive. Dishonorable discharge, 

forfeiture of all pay and allowances, and confinement for 10 years. 

(2)Through neglect damaging, destroying, or losing, or through neglect suffering to be lost, damaged, 

destroyed, sold, or wrongfully disposed of, military property. 

(a) Of a value or damage of $100.00 or less. Confinement for 6 months, and forfeiture of twothirds pay per month for 6 months. 

(b) Of a value or damage of more than $100.00. Bad-conduct discharge, forfeiture of all pay and 

allowances, and confinement for 1 year. 

(3) Willjiully damaging, destroying, or losing, or willfully suffering to be lost, damaged, destroyed, 

sold, or wrongfully disposed of, military property. 

(a) Of a value or damage of $100.00 or less. Bad-conduct discharge, forfeiture of all pay and 

allowances, and confinement for 1 year. 
(b) Of a value or damage of more than $100.00, or of any firearm or explosive. Dishonorable 

discharge, forfeiture of all pay and allowances, and confinement for 10 years. 

f. Sample specifications. 

(1) Selling or disposing of military property. 

In that (personal jurisdiction data), did, (atton board-location) (subject-matter jurisdiction data, if required), on or about 19 -,without proper authority, (sell to ) 

(dispose of by 1 , [(a firearm) (an explosive)] of a value of (about) $ -, 

military property of the United States. 

(2) Damaging, destroying, or losing military property. 

In that (personal jurisdiction data), did, (atlon board-location) (subject-matter jurisdiction data, if required), on or about 19 -, without proper authority, [(willfully) (through 

neglect)] [(damage by ) (destroy by ) (lose)] [of a value of 

(about) $ ,] military property of the United States [the amount of said damage being in the sum of 

(about) $ 1. 

(3) Suffering military property to be lost, damaged, destroyed, sold, or wrongfully disposed of. 

In that (personal jurisdiction data), did, (at/on board-location) (subject-matter jurisdiction data, if required), on or about 19 -,without proper authority, (willfully) (through neglect) 

suffer , [(a firearm) (an explosive)] [of a value of (about) $ ] military property of 

the United States, to be (lost) (damaged by ) (destroyed by ) (sold to 

) (wrongfully disposed of by ) [the amount of said damage being in the sum 

of (about) $ 1. 

33. Article 109-Property other than military property of the United States-waste, spoilage, or 

destruction 

a. Text. 

"Any person subject to this chapter who willfully or recklessly wastes, spoils, or otherwise willfully and 

wrongfully destroys or damages any property other than military property of the United States shall be punished 

as a court-martial may direct." 

b. Elements. 

(1) Wasting or spoiling of non-military property. 

(a) That the accused willfully or recklessly wasted or spoiled certain real property in a certain 

manner; 

(b) That the property was that of another person; and 

(c) That the property was of a certain value. 

(2)Destroying or damaging non-military property. 

(a) That the accused willfully and wrongfully destroyed or damaged certain personal property in 

a certain manner; 

(b) That the property was that of another person; and 

(c) That the property was of a certain value or the damage was of a certain amount. 

c. Explanation. 

(1) Wasting or spoiling non-military property. This portion of Article 109 proscribes willful or reckless 

waste or spoilation of the real property of another. The terms "wastes" and "spoils" as used in this article refer 

to such wrongful acts of voluntary destruction of or permanent damage to real property as burning down buildings, 

burning piers, tearing down fences, or cutting down trees. This destruction is punishable whether done willfully, 
that is intentionally, or recklessly, that is through a culpable disregard of the foreseeable consequences of some 

voluntary act. 

(2) Destroying or damaging non-military property. This portion of Article 109 proscribes the willful 

and wrongful destruction or damage of the personal property of another. To be destroyed, the property need not 

be completely demolished or annihilated, but must be sufficiently injured to be useless for its intended purpose. 

Damage consists of any physical injury to the property. To constitute an offense under this section, the destruction 

or damage of the property must have been willful and wrongful. As used in this section "willfully" means 

intentionally and "wrongfully'' means contrary to law, regulation, lawful order, or custom. Willfulness may be 

proved by circumstantial evidence, such as the manner in which the acts were done. 

(3) Value and damage. In the case of destruction, the value of the property destroyed controls the 

maximum punishment which may be adjudged. In the case of damage, the amount of the damage controls. As 

a general rule, the amount of damage is the estimated or actual cost of repair by artisans employed in this work 

who are available to the community wherein the owner resides, or the replacement cost, whichever is less. See 

also paragraph 46c(l)(g). 

d. Lesser included ofSense. Article 80-attempts 

e. Maximum punishment. Wasting, spoiling, destroying, or damaging any property other than military 

property of the United States of a value or damage. 

(1) Of $100.00 or less. Bad-conduct discharge, forfeiture of all pay and allowances, and confinement 

for 1 year. 

(2) Of more than $100.00.Dishonorable discharge, forfeiture of all pay and allowances, and confinement 

for 5 years. 

f. Sample specification. 

In that (personal jurisdiction data), did, (atlon board-location) (subject-matter jurisdiction data, if required), on or about 19 -, [(willfully) (recklessly) waste] [(willfully) (recklessly) spoil] [willfully and wrongfully (destroy) (damage) by 1 ,[of a value 

of (about) $ ] [the amount of said damage being in the sum of (about) $ 1, the property 

34. Article 110-Improper hazarding of vessel 

a. Text. 

"(a) Any person subject to this chapter who willfully and wrongfully hazards or suffers to be hazarded any 

vessel of the armed forces shall suffer death or such other punishment as a court-martial may direct. 

(b) Any person subject to this chapter who negligently hazards or suffers to be hazarded any vessel of the 

armed forces shall be punished as a court-martial may direct." 

b. Elements. 

(1) That a vessel of the armed forces was hazarded in a certain manner; and 

(2) That the accused by certain acts or omissions, willfully and wrongfully, or negligently, caused or 

suffered the vessel to be hazarded. 

c. Explanation. 

(1) Hazard. "Hazard" means to put in danger of loss or injury. Actual damage to, or loss of, a vessel 

of the armed forces by collision, stranding, running upon a shoal or a rock, or by any other cause, is conclusive 

evidence that the vessel was hazarded but not of the fact of culpability on the part of any particular person. 

"Stranded" means run aground so that the vessel is fast for a time. If the vessel "touches and goes," she is 

not stranded; if she "touches and sticks," she is. A shoal is a sand, mud, or gravel bank or bar that makes the 

water shallow. 
(2) Willfully and wrongfully. As used in this article, "willfully" means intentionally and "wrongfully" 

means contrary to law, regulation, lawful order, or custom. 

(3)Negligence. "Negligence" as used in this article means the failure to exercise the care, prudence, 

or attention to duties, which the interests of the government require a prudent and reasonable person to exercise 

under the circumstances. This negligence may consist of the omission to do something the prudent and reasonable 

person would have done, or the doing of something which such a person would not have done under the 

circumstances. No person is relieved of culpability who fails to perform such duties as are imposed by the general 

responsibilities of that person's grade or rank, or by the customs of the service for the safety and protection of 

vessels of the armed forces, simply because these duties are not specifically enumerated in a regulation or order. 

However, a mere error in judgment that a reasonably able person might have committed under the same 

circumstances does not constitute an offense under this article. 

(4) Suffer. "To suffer" means to allow or permit. A ship is willfully suffered to be hazarded by one 

who, although not in direct control of the vessel, knows a danger to be imminent but takes no steps to prevent 

it, as by a plotting officer of a ship under way who fails to report to the officer of the deck a radar target which 

is observed to be on a collision course with, and dangerously close to, the ship. A suffering through neglect 

implies an omission to take such measures as were appropriate under the circumstances to prevent a foreseeable 

danger. 

d. Lesser included offenses. 

(1) Willfully and wrongfully hazarding a vessel. 

(a) Article 1 10-negligently hazarding a vessel 

(b) Article 80-attempts 

(2) Willfully and wrongfully suffering a vessel to be hazarded. 

(a) Article 110-negligently suffering a vessel to be hazarded 

(b) Article 80-attempts 

e. Maximum punishment. Hazarding or suffering to be hazarded any vessel of the armed forces: 

(1) Willfully and wrongfully. Death or such other punishment as a court-martial may direct. 

(2) Negligently. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 2 

years. 

f. Sample specijications. 

(1) Hazarding or suffering to be hazarded any vessel, willfully and wrongfully. 

In that (personal jurisdiction data), did, on 19 -,while serving as 

aboard the in the vicinity of , willfully and wrongfully 

(hazard the said vessel) (suffer the said vessel to be hazarded) by (causing the said vessel to cohde with ) 

(allowing the said vessel to run aground) ( 1. 

(2) Hazarding of vessel, negligently. 

(a) Example 1. 

In that (personal jurisdiction data), on 19 -,while serving in command of the , making entrance to (Boston Harbor), did negligently hazard the said vessel by 

failing and neglecting to maintain or cause to be maintained an accurate running plot of the true position of said 

vessel while making said approach, as a result of which neglect the said , at or 

about ,hours on the day aforesaid, became stranded in the vicinity of (Channel Buoy Number 

Three). 

(b) Example 2. 

In that (personal jurisdiction data), on 19 -,while serving as navigator 

of the , cruising on special service in the ocean off the coast of , 
notwithstanding the fact that at about midnight, 19 -, the northeast point 

of ----island bore abeam and was about six miles distant, the said ship being then under way and 

making a speed of about ten knots, and well knowing the position of the said ship at the time stated, and that 

the charts of the locality were unreliable and the currents thereabouts uncertain, did then and there negligently 

hazard the said vessel by failing and neglecting to exercise proper care and attention in navigating said ship 

while approaching Lsland, in that helshe neglected and failed to lay a course that would carry 

said ship clear of the last aforesaid island, and to change the course in due time to avoid disaster; and the said 

ship, as a result of said negligence on the part of said ,ran upon a rock off the southwest coast 

of Island, at about hours, ,19, in consequence of which the 

said was lost. 

(c) Example 3. 

In that (personal jurisdiction data), on 19 -, while serving as navigator 

of the and well knowing that at about sunset of said day the said ship had nearly run her estimated 

distance from the position, obtained and plotted by hirnlher, to the position of 

, and well knowing the difficulty of sighting ,from a safe distance after sunset, 

did then and there negligently hazard the said vessel by failing and neglecting to advise hislher commanding officer 

to lay a safe course for said ship to the northward before continuing on a westerly course, as it was the duty of said 

to do; in consequence of which the said ship was, at about h o u r s on the day 

above mentioned, run upon b a n k in the s e a , about latitude degrees, 

minutes, north, and longitude . degrees, minutes west, and seriously 

injured. 

(3) SufSering a vessel to be hazarded, negligently. 

In that (personal jurisdiction data), while serving as combat intelligence center officer 

on board the ,making passage from Boston to Philadelphia, and having, between 

and h o u r s on , 19 -, been duly informed of decreasing radar ranges and 

constant radar bearing indicating that the said was upon a collision course approaching a radar 

target, did then and there negligently suffer the said vessel to be hazarded by failing and neglecting to report 

said collision course with said radar target to the officer of the deck, as it was hislher duty to do, and helshe, 

the said ,through negligence, did cause the said to collide with the -

at or about h o u r s on said date, with resultant damage to both vessels. 

35. Article I 1I-Drunken or reckless driving 

a. Text. 

"Any person subject to this chapter who operates any vehicle while drunk, or in a reckless or wanton 

manner, shall be punished as a court-martial may direct." 

b. Elements. 

(1) That the accused was operating a vehicle; and 

(2) That the accused was drunk while operating the vehicle; or that the accused operated the vehicle 

in a reckless or wanton manner. 

[Note: If injury resulted add the following element] 

(3) That the accused thereby caused the vehicle to injure a person. 

c. Explanation. 

(1) Vehicle. See 1. U.S.C. § 4. Drunken or reckless operation of water and air transportation may be 

alleged under other articles of the code, as appropriate. 

(2) Operating. Operating a vehicle includes not only driving or guiding it while in motion, either in 

person or through the agency of another, but also the setting of its motive power in action or the manipulation 

of its controls so as to cause the particular vehicle to move. 
(3) Drunk. "Drunk" means any intoxication which is sufficient sensibly to impair the rational and full 

exercise of the mental or physical faculties. Whether the drunkeness was caused by liquor or drugs is immaterial. 

(4) Reckless. The operation of a vehicle 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 of the vehicle 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 driving with such a high degree of negligence that if death were caused, the accused would have committed 

involuntary manslaughter, at least. The condition of the surface on which the vehicle is operated, the time of 

day or night, the traffic, and the condition of the vehicle 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. 

(5) Wanton. "Wanton" includes "reckless," but in describing the operation of a vehicle, it may, in 

a proper case, connote willfulness, or a disregard of probable consequences, and thus describe a more aggravated 

offense. 

(6) Separate offenses. While the same course of conduct may constitute both drunken and reckless 

driving, this article proscribes these as separate offenses, and both offenses may be charged. However, as 

recklessness is a relative matter, evidence of all the surrounding circumstances which made the operation 

dangerous, whether alleged or not, may be admissible. Thus, on a charge of reckless driving, 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 offenses. Drunken driving. 

(1) Article 112-dmnk on duty 

(2) 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/on board-location) (subject-matter jurisdiction data, if required), on or about 19 -,(in the motor pool area) (near the Officer's Club) 

(on Street between and Avenues) ( > OPerate a vehicle, to wit: (a truck) (a passenger car) ( ), [while drunk] [in a (reckless) (wanton) 

manner by (attempting to pass another vehicle on a sharp curve) (driving at a speed in excess of 50 miles per 

hour on the sidewalk and wrong side of said street) ( )] (and did thereby cause said vehicle to 

(strike and) injure ). 

36. Article 112-Drunk on duty 

a. Text. 

"Any person subject to this chapter other than a sentinel or look-out, who is found drunk on duty, shall 

be punished as a court-martial may direct." 

b. Elements. 

(1) That the accused was on a certain duty; and 

(2) That the accused was found drunk while on this duty. 
c. Explanation. 

(1) Drunk. See paragraph 35c(3). 

(2) Dury. "Duty" as used in this article means military duty. Every duty which an officer or enlisted 

person may legally be required by superior authority to execute is necessarily a military duty. Within the meaning 

of this article, when in the actual exercise of command, the commander of a post, or of a command, or of a 

detachment in the field is constantly on duty, as is the commanding officer on board a ship. In the case of other 

officers or enlisted persons, "on duty" relates to duties of routine or detail, in gamson, at a station, or in the 

field, and does not relate to those periods when, no duty being required of them by orders or regulations, officers 

and enlisted persons occupy the status of leisure known as "off duty" or "on liberty." In a region of active 

hostilities, the circumstances are often such that all members of a command may properly be considered as being 

continuously on duty within the meaning of this article. So also, an officer of the day and members of the guard, 

or of the watch, are on duty during their entire tour within the meaning of this article. 

(3)Nature of offense. It is necessary that the accused be found drunk while actually on the duty alleged, 

and the fact the accused became drunk before going on duty, although material in extenuation, does not affect 

the question of guilt. If, however, the accused does not undertake the responsibility or enter upon the duty at 

all, the accused's conduct does not fall within the terms of this article, nor does that of a person who absents 

himself or herself from duty and is found drunk while so absent. Included within the article is drunkenness while on duty of an anticipatory nature such as that of an aircraft crew ordered to stand by for flight duty, 

or of an enlisted person ordered to stand by for guard duty. 

(4)Defenses. If the accused is known by superior authorities to be drunk at the time a duty is assigned, 

and the accused is thereafter allowed to assume that duty anyway, or if the drunkenness resulted from an accidental 

overdosage administered for medicinal purposes, the accused will have a defense to this offense. But see paragraph 

76 (incapacitation for duty). 

d. Lesser included offense. Article 134-drunk on station 

e. Maximum punishment. Bad-conduct discharge, forfeiture of all pay and allowances, and confinement for 

9 months. 

f. Sample specification. 

In that (personal jurisdiction data), was, (atlon board-location), on or about -

19 -, found drunk while on duty as 

37. Article 112a-Wrongful use, possession, etc., of controlled substances 

a. Text. 

"(a) Any person subject to this chapter who wrongfully uses, possesses, manufactures, distributes, imports 

into the customs territory of the United States, exports from the United States, or introduces into an installation, 

vessel, vehicle, or aircraft used by or under the control of the armed forces a substance described in subsection 

(b) shall be punished as a court-martial may direct. 

(b) The substances referred to in subsection (a) are the following: 

(1) opium, heroin, cocaine, amphetamine, lysergic acid diethylamide, methamphetamine, phencyclidine, barbituric acid, and marijuana, and any compound or derivative of any such substance. 

(2) Any substance not specified in clause (1) that is listed on a schedule of controlled substances 

prescribed by the President for the purposes of this article. 

(3) Any other substance not specified in clause (1) or contained on a list prescribed by the President 

under clause (2) that is listed in Schedules I through V of section 202 of the Controlled Substances Act (21 

U.S.C. 812)." 

b. Elements. 

(1) Wrongful possession of controlled substance. 
(a) That the accused possessed a certain amount of a controlled substance; and 

(b) That the possession by the accused was wrongful. 

(2) Wrongful use of controlled substance. 

(a) That the accused used a controlled substance; and 

(b) That the use by the accused was wrongful. 

(3) Wrongful distribution of controlled substance. 

(a) That the accused distributed a certain amount of a controlled substance; and 

(b) That the distribution by the accused was wrongful. 

(4) Wrongful introduction of a controlled substance. 

(a) That the accused introduced onto a vessel, aircraft, vehicle, or installation used by the armed 

forces or under the control of the armed forces a certain amount of a controlled substance; and 

(b) That the introduction was wrongful. 

(5) Wrongful manufacture of a controlled substance. 

(a) That the accused manufactured a certain amount of a controlled substance; and 

(b) That the manufacture was wrongful. 

(6)Wrongful possession, manufacture, or introduction of a controlled substance with intent to distribute. 

(a) That the accused (possessed) (manufactured) (introduced) a certain amount of a controlled substance; 

@) That the (possession) (manufacture) (introduction) was wrongful; and 

(c) That the (possession) (manufacture) (introduction) was with the intent to distribute. 

(7)Wrongful importation or exportation of a controlled substance. 

(a) That the accused (imported into the customs territory of) (exported from) the United States a 

certain amount of a controlled substance; and 

(b) That the .(importation) (exportation) was wrongful. 

[Note: When any of the aggravating circumstances listed in subparagraph e is alleged, it must be listed as an element.] 

c. Explanation. 

(1) Controlled substance. "Controlled substance" means amphetamine, cocaine, heroin, lysergic acid 

dietylamide, marijuana, methamphetamine, opium, phencyclidine, and barbituric acid, including phenobarbital 

and secobarbital. "Controlled substance" also means any substance which is included in Schedules I through 

V established by the Controlled Substances Act of 1970 (21 U.S.C. 812). 

(2) Possess. "POSS~SS"means to exercise control of something. Possession may be direct physical 

custody like holding an item is one's hand, or it may be constructive, as in the case of a person who hides an 

item in a locker or car to which that person may return to retrieve it. Possession must be knowing and conscious. 

Possession inherently includes the power or authority to preclude control by others. It is possible, however, for 

more than one person to possess an item simultaneously, as when several people share control of an item. An 

accused may not be convicted of possession of a controlled substance if the accused did not know that the 

substance was present under the accused's control. Awareness of the presence of a controlled substance may be 

inferred from circumstantial evidence. 

(3) Distribute. "Distribute" means to deliver to the possession of another. "Deliver" means the actual, 

constructive, or attempted transfer of an item, whether or not there exists an agency relationship. 

(4)Manufacture. "Manufacture" means the production, preparation, propagation, compounding, or 

processing of a drug or other substance, either directly or indirectly or by extraction from substances of natural 
origin, or independently by means of chemical synthesis or by a combination of extraction and chemical synthesis, 

and includes any packaging or repackaging of such substance or labeling or relabeling of its container. "Production," as used in this subparagraph, includes the planting, cultivating, growing, or harvesting of a drug or 

other substance. 

(5) Wrongfulness. To be punishable under Article 112a, possession, use, distribution, introduction, or 

manufacture of a controlled substance must be wrongful. Possession, use, distribution, introduction, or manufacture of a controlled substance is wrongful if it is without legal justification or authorization. Possession, use, 

distribution, introduction, or manufacture of a controlled substance is not wrongful if such act or acts are: (A) 

done pursuant to legitimate law enforcement activities (for example, an informant who receives drugs as part of 

an undercover operation is not in wrongful possession); (B) done by authorized personnel in the performance of 

medical duties; or (C) without knowledge of the contraband nature of the substance (for example, a person who 

possesses cocaine,.but actually believes it to be sugar, is not guilty of wrongful possession of cocaine). Possession, 

use, distribution, introduction, or manufacture of a controlled substance may be inferred to be wrongful in the 

absence of evidence to the contrary. The burden of going forward with evidence with respect to any such exception 

in any court-martial or other proceeding under the code shall be upon the person claiming its benefit. If such an 

issue is raised by the evidence presented, then the burden of proof is upon the United States to establish that 

the use, possession, distribution, manufacture, or introduction was wrongful. 

(6) Intent to distribute. Intent to distribute may be inferred from circumstantial evidence. Examples of 

evidence which may tend to support an inference of intent to distribute are: possession of a quantity of substance 

in excess of that which one would be likely to have for personal use; market value of the substance; the manner 

in which the substance is packaged; and that the accused is not a user of the substance. On the other hand, 

evidence that the accused is addicted to or is a heavy user of the substance may tend to negate an inference of 

intent to distribute. 

(7)Certain amount. When a specific amount of a controlled substance is believed to have been possessed, 

distributed, introduced, or manufactured by an accused, the specific amount should ordinarily be alleged in the 

specification. It is not necessary to allege a specific amount, however, and a specification is sufficient if it alleges 

that an accused possessed, distributed, introduced, or manufactured "some," "traces of," or "an unknown 

quantity of" a controlled substance. 

(8) Missile launch facility. A "missile launch facility" includes the place from which missiles are fired 

and launch control facilities from which the launch of a missile is initiated or controlled after launch. 

(9)Customs territory of the United States. "Customs territory of the United States" includes only the 

States, the District of Columbia, and Puerto Rico. 

d. Lesser included offenses. 

(1) Wrongful possession of controlled substance. Article 80-attempts 

(2) Wrongful use of controlled substance. 

(a) Article 112a-wrongful possession of controlled substance 

(b) Article 80-attempts 

(3) Wrongful distribution of controlled substance. Article 80-attempts 

(4)Wrongful manufacture of controlled substance. 

(a) Article 112a-wrongful possession of controlled substance 

(b) Article 80-attempts 

(5) Wrongful introduction of controlled substance. 

(a) Article 112a-wrongful possession of controlled substance 

(b) Article 80-attempts 

(6) Wrongfulpossession, manufacture, or introduction of a controlled substance with intent to distribute. 
(a) Article 112a-wrongful possession, manufacture, or introduction of controlled substance 

(b) Article 80-attempts 

(7) Wrongful importation or exportation of a controlled substance. Article 80-attempts 

e. Maximum punishments. 

(1) Wrongful use, possession, rnanufacture, or introduction of controlled substance. 

(a) Amphetamine, cocaine, heroin, lysergic acid diethylamide, marijuana (except possession of 

less than 30 grams or use of marijuana), methamphetamine, opium, phencyclidine, secobarbital, and Schedule 

I,II, and III controlled substances. Dishonorable discharge, forfeiture of all pay and allowances, and confinement 

for 5 years. 

(b) Marijuana (possession of less than 30 grams or use), phenobarbital, and Schedule IV and V 

controlled substances. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 2 years. 

(2) Wrongful distribution, possession, rnanufacture, or introduction of controlled substance with intent 

to distribute, or wrongful importation or exportation of a controlled substance. 

(a) Amphetamine, cocaine, heroin, lysergic acid diethylamide, marijuana, methamphetamine, 

opium, phencyclidine, secobarbital, and Schedule I, II, and III controlled substances. Dishonorable discharge, 

forfeiture of all pay and allowances, and confinement for 15 years. 

(b) Phenobarbital and Schedule IV and V controlled substances. Dishonorable discharge, forfeiture 

of all pay and allowances, and confinement for 10 years. 

When any offense under paragraph 37 is committed; while the accused is on duty as a sentinel or lookout; on 

board a vessel or aircraft used by or under the control of the armed forces; in or at a missile launch facility used 

by or under the control of the armed forces; while receiving special pay under 37 U.S.C. § 310; or in time of 

war, the maximum period of confinement authorized for such offense shall be increased by 5 years. 

f. Sample speciJications. 

(1) Wrongful possession, manufacture, or distribution of controlled substance. 

In that (personal jurisdiction data) did, (at/on board-location) (subject-matter jurisdiction data, if required), on or about , 19 -,wrongfully (possess) (distribute) (manufacture) 

(grams) (ounces) (pounds) ( of [a schedule ( ) controlled substance], [with the intent to distribute the said controlled substance] [while on duty as a sentinel or 

lookout] [while (on board a vessellaircraft) (in or at a missile launch facility) used by the armed forces or under 

the control of the armed forces, to wit: ] [while receiving special pay under 37 U.S.C. § 3 101 

[during time of war]. 

(2) Wrongful use of controlled substance. 

In that (personal jurisdiction data), did, (at/on board-location) (subject-matter jurisdiction data, if required), on or about , 19 -, wrongfully use [a schedule 

) controlled substance] [while on duty as a sentinel or lookout] [while (on board a vessel/ 

aircraft) (in or at a missile launch facility) used by the armed forces or under the control of the armed forces, 

to wit: ] [while receiving special pay under 37 U.S.C. § 3101 [during time of war]. 

(3) Wrongful introduction of controlled substance. 

In that (personal jurisdiction data) did, (at/on board-location) on or about -, 

19 -, wrongfully introduce (grams) (ounces) (pounds) ( ) of [a 

schedule ( ) controlled substance] onto a vessel, aircraft, vehicle, or installation used by the 

armed forces or under control of the armed forces, to wit: [with the intent to distribute the said 

controlled substance] [while on duty as a sentinel or lookout] [while receiving special pay under 37 U.S.C. 

§ 3101 [during a time of war]. 

(4) Wrongful importation or exportation of controlled substance. 

In that (personal jurisdiction data) did, (at/on board-location) on or about -, 
19 -, wrongfully (import) (export) (grams) (ounces) (pounds) ( ) of 

[a schedule ( ) controlled substance] (into the customs territory of) (from) the United States 

[while on board a vessellaircraft used by the armed forces or under the control of the armed forces, to wit: 

] [during time of war]. 

38. Article 113-Misbehavior of sentinel or lookout 

a. Text. 

"Any sentinel or look-out who is found drunk or sleeping upon his post, or leaves it before he is regularly 

relieved, shall be punished, if the offense is committed in time of war, by death or such other punishment as a 

court-martial may direct, but if the offense is committed at any other time, by such punishment other than death 

as a court-martial may direct." 

b. Elements. 

(I) That the accused was posted or on post as a sentinel or lookout; 

(2) That the accused was found drunk while on post, was found sleeping while on post, or left post 

before being regularly relieved. 

[Note: If the offense was committed in time of war or while the accused was receiving special pay 

under 37 U.S.C. § 310, add the following element] 

(3) That the offense was committed (in time of war) (while the accused was receiving special pay 

under 37 U.S.C. § 310). 

c.Explanation. 

(1) In general. Tius article defines three kinds of misbehavior committed by sentinels or lookouts: being 

found drunk or sleeping upon post, or leaving it before being regularly relieved. This article does not include an 

officer or enlisted person of the guard, or of a ship's watch, not posted or performing the duties of a sentinel or 

lookout, nor does it include a person whose duties as a watchman or attendant do not require constant alertness. 

(2) Post. "Post" is the area where the sentinel or lookout is required to be for the performance of 

duties. It is not limited by an imaginary line, but includes, according to orders or circumstances, such surrounding 

area as may be necessary for the proper performance of the duties for which the sentinel or lookout was posted. 

The offense of leaving post is not committed when a sentinel or lookout goes an immaterial distance from the 

post, unless it is such a distance that the ability to fully perform the duty for which posted is impaired. 

(3) On post. A sentinel or lookout becomes "on post" after having been given a lawful order to go 

"on post" as a sentinel or lookout and being formally or informally posted. The fact that a sentinel or lookout 

is not posted in the regular way is not a defense. It is sufficient, for example, if the sentinel or lookout has taken 

the post in accordance with proper instruction, whether or not formally given. A sentinel or lookout is on post 

within the meaning of the article not only when at a post physically defined, as is ordinarily the case in garrison 

or aboard ship, but also, for example, when stationed in observation against the appproach of an enemy, or 

detailed to use any equipment designed to locate friend, foe, or possible danger, or at a designated place to 

maintain internal discipline, or to guard stores, or to guard prisoners while in confinement or at work. 

(4) Sentinel or lookout. A sentinel or a lookout is a person whose duties include the requirement to 

maintain constant alertness, be vigilant, and remain awake, in order to observe for the possible approach of the 

enemy, or to guard persons, property, or a place and to sound the alert, if necessary. 

(5)Drunk. For an explanation of "drunk," see paragraph 35c(3). 

(6) Sleeping. As used in this article, "sleeping" is that condition of insentience which is sufficient 

sensibly to impair the full exercise of the mental and physical faculties of a sentinel or lookout. It is not necessary 

to show that the accused was in a wholly comatose condition. The fact that the accused's sleeping resulted from 

a physical incapacity caused by disease or accident is an affirmative defense. See R.C.M. 916(i). 

d. Lesser included ofSenses. 
(1) Drunk on post. 

(a) Article 112-drunk on duty 

(b) Article 92-dereliction of duty 

(c) Article 134-drunk on station 

(d) Article 134-drunk in uniform in a public place 

(2) Sleeping on post. 

(a) Article 92-dereliction of duty 

(b) Article 134-loitering or wrongfully sitting down on post 

(3) Leaving post. 

(a) Article 92-dereliction of duty 

(b) Article 86-going from appointed place of duty 

e. Maximum punishment. 

(1) In time of war. Death or such other punishment as a court-martial may direct. 

(2) While receiving special pay under 37 U.S.C. § 310. Dishonorable discharge, forfeiture of all pay 

and allowances, and confinement for 10 years. 

(3) In all other places. Dishonorable discharge, forfeiture of all pay and allowances, and confinement 

for 1 year. 

f. Sample specification. 

In that (personal jurisdiction data), on or about (a time of war) (at1 

on board-location), (while receiving special pay under 37 U.S.C. § 3 lo), being (posted) (on post) as a (sentinel) 

(lookout) at (warehouse no. 7) (post no. 11) (for radar observation) ( ) [was found (drunk) 

(sleeping) upon hislher post] [did leave hislher post before helshe was regularly relieved]. 

39. Article 114-Dueling 

a. Text. 

"Any person subject to this chapter who fights or promotes, or is concerned in or connives at fighting a 

duel, or who, having knowledge of a challenge sent or about to be sent, fails to report the fact promptly to the 

proper authority, shall be punished as a court-martial may direct." 

b. Elements. 

(1) Dueling. 

(a) That the accused fought another person with deadly weapons; 

(b) That the combat was for private reasons; and 

(c) That the combat was by prior agreement. 

(2) Promoting a duel. 

(a) That the accused promoted a duel between certain persons; and 

(b) That the accused did so in a certain manner. 

(3) Conniving atfighting a duel. 

(a) That certain persons intended to and were about to engage in a duel; 

(b) That the accused had knowledge of the planned duel; and 

(c) That the accused connived at the fighting of the duel in a certain manner. 
(4)Failure to report a duel. 

(a) That a challenge to fight a duel had been sent or was about to be sent; 

(b) That the accused had knowledge of this challenge; and 

(c) That the accused failed to report this fact promptly to proper authority. 

c. Explanation. 

(I) Duel. A duel is combat between two persons for private reasons fought with deadly weapons by 

prior agreement. 

(2)Promoting a duel. Urging or taunting another to challenge or to accept a challenge to duel, acting 

as a second or as carrier of a challenge or acceptance, or otherwise furthering or contributing to the fighting of 

a duel are examples of promoting a duel. 

(3) Conniving atfighting a duel. Anyone who has knowledge that steps are being taken or have been 

taken toward arranging or fighting a duel and who fails to take reasonable preventive action thereby connives 

at the fighting of a duel. 

d. Lesser included offense. Article 80-attempts 

e. Maximum punishment. For all Article 114 offenses: dishonorable discharge, forfeiture of all pay and 

allowances, and confinement for 1 year. 

f. Sample specifications. 

(1) Dueling. 

In that (personal jurisdiction data) (and ), did, (aiYon board-location) (subject-matter jurisdiction data, if required), on or about 19 -,fight a duel (with 

), using as weapons therefor (pistols) (swords) ( ). 

(2) Promoting a duel. 

In that (personal jurisdiction data), did, (atlon board-location) (subject-matter jurisdiction data, if required), on or about 19 -, promote a duel between and 

by (telling said h e l s h e would be a coward if helshe failed to challenge said 

to a duel) (knowingly carrying from said to said a challenge 

to fight a duel). 

(3) Conniving at fighting a duel. 

In that (personal jurisdiction data), having knowledge that 

and were about to engage in a duel, did (at/on board-location) (subject-matter jurisdiction 

data, if required), on or about 19 -, connive at the fighting of said duel by (failing to take 

reasonable preventive action) ( ). 

(4)Failure to report a duel. 

In that (personal jurisdiction data), having knowledge that a challenge to fight a duel (had 

been sent) (was about to be sent) by to ,did, (atlon board-location) (subject-matter 

jurisdiction data, if required), on or about 19 -fail to report that fact promptly to the proper authority. 

40. Article 115-Malingering 

a. Text. 


"Any person subject to this chapter who for the purpose of avoiding work, duty, or service- 


(I) feigns illness, physical disablement, mental lapse or derangement; or 

(2) intentionally inflicts self-injury; shall be punished as a court-martial may direct." 

b. Elements. 
(1) That the accused was assigned to, or was aware of prospective assignment to, or availability for, 

the performance of work, duty, or service; 

(2) That the accused feigned illness, physical disablement, mental lapse or derangement, or intentionally 

inflicted injury upon himself or herself; and 

(3) That the accused's purpose or intent in doing so was to avoid the work, duty, or service. 


[Note: If the offense was committed in time of war or in a hostile fire pay zone, add the following element] 


(4) That the offense was committed (in time of war) (in a hostile fire pay zone). 

c. Explanation. 

(1) Nature of offense. The essence of this offense is the design to avoid performance of any work, 

duty, or service which may properly or normally be expected of one in the military service. Whether to avoid 

all duty, or only a particular job, it is the purpose to shirk which characterizes this offense. Hence, the nature 

or permanency of a self-inflicted injury is not material on the question of guilt, nor is the seriousness of a physical 

or mental disability which is a sham. Evidence of the extent of the self-inflicted injury or feigned disability may, 

however, be relevant as a factor indicating the presence or absence of the purpose. 

(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 which produces, prolongs, or aggravates any sickness or disability. 

Thus, voluntary starvation which results in debility is a self-inflicted injury and when done for the purpose of 

avoiding work, duty, or service constitutes a violation of this article. 

d. Lesser included offenses. 

(1) Article 134-self-injury without intent to avoid service 

(2) Article 80-attempts 

e. Maximum punishment. 

(1) Feigning illness, physical disablement, mental lapse, or derangement. Dishonorable discharge, 

forfeiture of all pay and allowances, and confinement for 1 year. 

(2)Feigning illness, physical disablement, mental lapse, or derangement in a hostile fire pay zone or 

in time of war. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 3 years. 

(3) Intentional self-inflicted injury. Dishonorable discharge, forfeiture of all pay and allowances, and 

confinement for 5 years. 

(4) Intentional self-inflicted injury in a hostilefire pay zone or in time of war. Dishonorable discharge, 

forfeiture of all pay and allowances, and confinement for 10 years. 

f. Sample specijication. 

In that (personal jurisdiction data), did, (at/on board-location) (in a hostile fire pay 

zone) (subject-matter jurisdiction data, if required) (on or about 19 -) (from about 

19 -to about 19 -), (a timt of war) for the purpose of avoiding (hislher duty as officer 

of the day) (lusher duty as aimaft mechanic) (work in the mess hall) (service as an enlisted person) ( 

[feign (a headache) (a sore back) (illness) (mental lapse) (mental derangement) ( )I [intentionally 

injure himselflherself by 1. 

41. Article 116-Riot or breach of peace 

a. Text. 

"Any person subject to this chapter who causes or participates in any riot or breach of the peace shall be 

punished as a court-martial may direct." 

b. Elements. 

(1) Riot. 

1 
(a) That the accused was a member of an assembly of three or more persons; 

(b) That the accused and at least two other members of this group mutually intended to assist one 

another against anyone who might oppose them in doing an act for some private purpose; 

(c) That the group or some of its members, in furtherance of such purpose, unlawfully committed 

a tumultuous disturbance of the peace in a violent or turbulent manner; and 

(d) That these acts terrorized the public in general in that they caused or were intended to cause 

public alarm or terror. 

(2) Breach of the peace. 

(a) That the accused caused or participated in a certain act of a violent or turbulent nature; and 

(b) That the peace was thereby unlawfully disturbed. 

c. Explanation. 

(1) Riot. "Riot" is a tumultuous disturbance of the peace by three or more persons assembled together 

in furtherance of a common purpose to execute some enterprise of a private nature by concerted action against 

anyone who might oppose them, committed in such a violent and turbulent manner as to cause or be calculated 

to cause public terror. The gravamen of the offense of riot is terrorization of the public. It is immaterial whether 

the act intended was lawful. Furthermore, it is not necessary that the common purpose be determined before the 

assembly. It is sufficient if the assembly begins to execute in a tumultuous manner a common purpose formed 

after it assembled. 

(2) Breach of the peace. A "breach of the peace" is an unlawful disturbance of the peace by an outward 

demonstration of a violent or turbulent nature. The acts or conduct contemplated by this article are those which 

disturb the public tranquility or impinge upon the peace and good order to which the community is entitled. 

Engaging in an affray and unlawful discharge of firearms in a public street are examples of conduct which may 

constitute a breach of the peace. Loud speech and unruly conduct may also constitute a breach of the peace by 

the speaker. A speaker may also be guilty of causing a breach of the peace if the speaker uses language which 

can reasonably be expected to produce a violent or turbulent response and a breach of the peace results. The 

fact that the words are true or used under provocation is not a defense, nor is tumultuous conduct excusable 

because incited by others. 

(3) Communiv and public. "Community" and "public" include a military organization, post, camp, 

ship, aircraft, or station. 

d. Lesser included offenses. 

(I) Riot. 

(a) Article 116-breach of the peace 

(b) Article 134-disorderly conduct 

(c) Article 80-attempts 

(2) Breach of the peace. 

(a) Article 134-disorderly conduct 

(b) Article 80-attempts 

e. Maximum punishment. 

(I) Riot. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 10 years. 

(2) Breach of the peace. Confinement for 6 months and forfeiture of two-thirds pay per month for 6 

months. 

f. Sample specijications. 

(1) Riot. 
In that (personal jurisdiction data), did, (atlon board-location) (subject-matter jurisdiction data, if required), on or about 19 -,(cause) (participate in) a riot by unlawfully assembling with (and ) (and) (others to the number of about whose 

names are unknown) for the purpose of (resisting the police of ) (assaulting passers-by) ( - ), and in furtherance of said purpose did (fight with said police) (assault certain persons, to wit: 

1 ( ), to the terror and disturbance of 

(2) Breach of the peace. 

In that (personal jurisdiction data), did, (atlon board-location) (subject-matter jurisdiction data, if required), on or about 19 -,(cause) (participate in) a breach of the peace by 

[wrongfully engaging in a fist fight in the dayroom with ] [using the following provoking 

language (toward ), to wit: " ,"or words to that effect] [wrongfully shouting 

and singing in a public place, to wit: 1 [ 1. 

42. Article 117-Provoking speeches or gestures 

a. Text. 

"Any person subject to this chapter who uses provoking or reproachful words or gestures towards any other 

person subject to this chapter shall be punished as a court-martial may direct." 

b. Elements. 

(1) That the accused wrongfully used words or gestures toward a certain person; 

(2) That the words or gestures used were provoking or reproachful; and 

(3) That the person toward whom the words or gestures were used was a person subject to the code. 

c. Explanation. 

(1) In general. As used in this article, "provoking" and "reproachful'' describe those words or gestures 

which are used in the presence of the person to whom they are directed and which a reasonable person would 

expect to induce a breach of the peace under the circumstances. These words and gestures do not include 

reprimands, censures, reproofs and the like which may properly be administered in the interests of training, 

efficiency, or discipline in the armed forces. 

(2) Knowledge. It is not necessary that the accused have knowledge that the person toward whom the 

words or gestures are directed is a person subject to the code. 

d. Lesser included offenses. 

(1) Article 134-indecent language 

(2) Article 80-attempts 

e. Maximum punishment. Confinement for 6 months and forfeiture of two-thirds pay per month for 6 months. 

f. Sample specijication. 

In that (personal jurisdiction data), did, (atlon board-location) (subject-matter jurisdiction data, if required), on or about 19 -, wrongfully use (provoking) (reproachful) (words, 

to wit; " :" or words to that effect) (and) (gestures, to wit: ) towards (Sergeant 

, U.S. Air Force) ( 1. 

43. Article 118-Murder 

a. Text. 

"Any person subject to this chapter who, without justification or excuse, unlawfully kills a human being, 

when he- 

(1) has a premeditated design to kill; 
(2) intends to kill or inflict great bodily harm; 

(3) is engaged in an act which is inherently dangerous to others and evinces a wanton disregard of 

human life; or 

(4) is engaged in the perpetration or attempted perpetration of burglary, sodomy, rape, robbery, or 

aggravated arson; 

is guilty of murder, and shall suffer such punishment as a court-martial may direct, except that if found guilty 

under clause (1) or (4), he shall suffer death or imprisonment for life as a court-martial may direct." 

b. Elements. 

(1) Premeditated murder 

(a) That a certain named or described person is dead; 

(b) That the death resulted from the act or omission of the accused; 

(c) That the killing was unlawful; and 

(d) That, at the time of the killing, the accused had a premeditated design to kill. 

(2) Intent to kill or inflict great bodily harm. 

(a) That a certain named or described person is dead; 

(b) That the death resulted from the act or omission of the accused; 

(c) That the killing was unlawful; and 

(d) That, at the time of the killing, the accused had the intent to kill or inflict great bodily harm 

upon a person. 

(3) Act inherently dangerous to others. 

(a) That a certain named or described person is dead; 

(b) That the death resulted from the intentional act of the accused; 

(c) That this act was inherently dangerous to others and showed a wanton disregard for human 

life; 

(d) That the accused knew that death or great bodily harm was a probable consequence of the act; 

and 

(e) That the killing was unlawful. 

(4)During certain offenses. 

(a) That a certain named or described person is dead; 

(b) That the death resulted from the act or omission of the accused; 

(c) That the killing was unlawful; and 

(d) That, at the time of the killing, the accused was engaged in the perpetration or attempted 

perpetration of burglary, sodomy, rape, robbery, or aggravated arson. 

c. Explanation. 

(1) In general. Killing a human being is unlawful when done without justification or excuse. See 

R.C.M. 916. Whether an unlawful killing constitutes murder or a lesser offense depends upon the circumstances. 

The offense is committed at the place of the act or omission although the victim may have died elsewhere. 

Whether death occurs at the time of the accused's act or omission, or at some time thereafter, it must have 

followed from an injury received by the victim which resulted from the act or omission. 

(2) Premeditated murder. 
(a) Premeditation. A murder is not premeditated unless the thought of taking life was consciously 

conceived and the act or omission by which it was taken was intended. Premeditated murder is murder committed 

after the formation of a specific intent to kill someone and consideration of the act intended. It is not necessary 

that the intention to kill have been entertained for any particular or considerable length of time. When a fixed 

purpose to kill has been deliberately formed, it is immaterial how soon afterwards it is put into execution. The 

existence of premeditation may be inferred from the circumstances. 

(b) Transferred premeditation. When an accused with a premeditated design attempted to unlawfully kill a certain person, but, by mistake or inadvertence, killed another person, the accused is still criminally 

responsible for a premeditated murder, because the premeditated design to kill is transferred from the intended 

victim to the actual victim. 

(c) Intoxication. Voluntary intoxication (see R.C.M. 916(1)(2)) not amounting to legal insanity 

may reduce premeditated murder (Article 118(1)) to unpremeditated murder (Article 118(2) or (3)) but it does 

not reduce either premeditated murder or unpremeditated murder to manslaughter (Article 119) or any other 

lesser offense. 

(3) Intent to kill or injlict great bodily harm 

(a) Intent. An unlawful killing without premeditation is also murder when the accused had either 

an intent to kill or inflict great bodily harm. It may be inferred that a person intends the natural and probable 

consequences of an act purposely done. Hence, if a person does an intentional act likely to result in death or 

great bodily injury, it may be inferred that death or great bodily injury was intended. The intent need not be 

directed toward the person killed, or exist for any particular time before commission of the act, or have previously 

existed at all. It is sufficient that it existed at the time of the act or omission (except if death is inflicted in the 

heat of a sudden passion caused by adequate provocation-see paragraph 44). For example, a person committing 

housebreaking who strikes and kills the householder attempting to prevent flight can be guilty of murder even 

if the householder was not seen until the moment before striking the fatal blow. 

(b) Great bodily harm. "Great bodily harm" means serious injury; it does not include minor 

injuries such as a black eye or a bloody nose, but it does include fractured or dislocated bones, deep cuts, tom 

members of the body, serious damage to internal organs, and other serious bodily injuries. It is synonomous 

with the term "grievous bodily harm." 

(c) Intoxication. Voluntary intoxication not amounting to legal insanity does not reduce unpremeditated murder to manslaughter (Article 119) or any other lesser offense. 

(4) Act inherently dangerous to others. 

(a) Wanton disregard of human life. Intentionally engaging in an act inherently dangerous to 

others-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 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 

others in jest or flying an aircraft very low over a crowd to make it scatter. 

(b)Knowledge. The accused must know that death or great bodily harm was a probable consequence 

of the inherently dangerous act. Such knowledge may be proved by circumstantial evidence. 

(5) During certain offenses. 

(a) In general. The commission or attempted commission of any of the offenses listed in Article 

118(4) is likely to result in homicide, and when an unlawful killing occurs as a consequence of the perpetration 

or attempted perpetration of one of these offenses, the killing is murder. Under these circumstances it is not a 

defense that the killing was unintended or accidental. 

(b) Separate offenses. The perpetration or attempted perpetration of the burglary, sodomy, rape, 

robbery, or aggravated arson may be charged separately from the homicide. 

d. Lesser included offenses. 

(1) Premeditated murder and murder during certain offenses. Article 118(2) and (3)-murder 
(2) All murders under Article 118. 

(a) Article 119-voluntary or involuntary manslaughter 

(b) Article 128-assault; assault consummated by a battery; aggravated assault 

(c) Article 134-assault with intent to commit murder 

(d) Article 134-assault with intent to commit voluntary manslaughter 

(e) Article 134-negligent homicide 

(3) Murder as defined in Article 118(1), (2), and (4).Article 80-attempts 

e. Maximum punishment. 

(1) Article 118(1) or (4)-death. Mandatory minimum-imprisonment for life. 

(2) Article 118(2) or (3)-such punishment other than death as a court-martial may direct. 

f. Sample specification. 

In that (personal jurisdiction data), did, (atJon board-location) (subject-matter jurisdiction data, if required), on ur about 19 -,[with premeditation] [while (perpetrating) (attempting 

to perpetrate) ]murder by means of (shooting hirnlher with a rifle) ( -). 

44. Article 119-Manslaughter 

a. Text. 

"(a) Any person subject to this chapter who, with an intent to kill or inflict great bodily hm, unlawfully 

kills a human being in the heat of sudden passion caused by adequate provocation is guilty of voluntary 

manslaughter and shall be punished as a court-martial may direct. 

(b) Any person subject to this chapter who, without an intent to lull or inflict great bodily harm, unlawfully 

kills a human being- 

(1) by culpable negligence; or 

(2) while perpetrating or attempting to perpetrate an offense, other than those named in clause (4) of 

section 918 of this title (article 118), directly affecting the person; is guilty of involuntary manslaughter and 

shall be punished as a court-martial may direct." 

b. Elements. 

(1) Voluntary manslaughter. 

(a) That a certain named or described person is dead; 

(b) That the death resulted from the act or omission of the accused; 

(c) That the killing was unlawful; and 

(d) That, at the time of the killing, the accused had the intent to kill or inflict great bodily harm 

upon the person killed. 

(2) Involuntary manslaughter 

(a) That a certain named or described person is dead; 

(b) That the death resulted from the act or omission of the accused; 

(c) That the killing was unlawful; and 

(d) That this act or omission of the accused constituted culpable negligence, or occurred while 

the accused was perpetrating or attempting to perpetrate an offense directly affecting the person other than 

burglary, sodomy, rape, robbery, or aggravated arson. 
c. Explanation. 

(1) Voluntary manslaughter. 

(a) Nature of offense. An unlawful killing, although done with an intent to kill or inflict great 

bodily harm, is not murder but voluntary manslaughter if committed in the heat of sudden passion caused by 

adequate provocation. Heat of passion may result from fear or rage. A person may be provoked to such an extent 

that in the heat of sudden passion caused by the provocation, although not in necessary defense of life or to 

prevent bodily harm, a fatal blow may be struck before self-control has returned. Although adequate provocation 

does not excuse the homicide, it does preclude conviction of murder. 

(b) Nature of provocation. The provocation must be adequate to excite uncontrollable passion in 

a reasonable person, and the act of killing must be committed under and because of the passion. However, the 

provocation must not be sought or induced as an excuse for killing or doing harm. If, judged by the standard 

of a reasonable person, sufficient cooling time elapses between the provocation and the killing, the offense is 

murder, even if the accused's passion persists. Examples of acts which may, depending on the circumstances, constitute adequate provocation are the unlawful infliction of great bodily harm, unlawful imprisonment, 

and the sight by one spouse of an act of adultery committed by the other spouse. Insulting or abusive words or 

gestures, a slight blow with the hand or fist, and trespass or other injury to property are not, standing alone, 

adequate provocation. 

(2) Involuntary manslaughter. 

(a) Culpable negligence. 

(i) Nature of culpable negligence. Culpable negligence is a degree of carelessness greater 

than simple negligence. It is a negligent act or omission accompanied by a culpable disregard for the foreseeable 

consequences to others of that act or omission. Thus, the basis of a charge of involuntary manslaughter may be 

a negligent act or omission which, when viewed in the light of human experience, might foreseeably result in 

the death of another, even though death would not necessarily be a natural and probable consequence of the act 

or omission. Acts which may amount to culpable negligence include negligently conducting target practice so 

that the bullets go in the direction of an inhabited house within range; pointing a pistol in jest at another and 

pulling the trigger, believing, but without taking reasonable precautions to ascertain, that it would not be 

dangerous; and carelessly leaving poisons or dangerous drugs where they may endanger life. 

(ii) Legal duty required. When there is no legal duty to act there can be no neglect. Thus, 

when a stranger makes no effort to save a drowning person, or a person allows a beggar to freeze or starve to 

death, no crime is committed. 

(b) Offense directly affecting the person. An "offense directly affecting the person" means one 

affecting some particular person as distinguished from an offense affecting society in general. Among offenses 

directly affecting the person are the various types of assault, battery, false imprisonment, voluntary engagement 

in an affray, and maiming. 

d. Lesser included offenses. 

(1) Voluntary manslaughter. 

(a) Article 1 19-involuntary manslaughter 

(b) Article 128-assault; assault consummated by a battery; aggravated assault 

(c) Article 134-assault with intent to commit voluntary manslaughter 

(d) Article 134-negligent homicide 

(e) Article 80-attempts 

(2)-Involuntary manslaughter 

(a) Article 128-assault; assault consummated by a battery 

(b) Article 134-negligent homicide 
e. Maximum punishment. 

(1) Voluntary manslaughter. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 10 years. 

(2) Involuntary manslaughter. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 3 years. 

f. Sample specljications. 

(1) Voluntary manslaughter. 

In that (personal jurisdiction data), did, (at/on board-location) (subject-matter jurisdiction data, if required), on or about 19 -,willfully and unlawfully kill 

by h i d h e r (in) (on) the with a 

(2) Involuntary manslaughter. 

In that (personal jurisdiction data), did, (at/on board-location) (subject-matter jurisdiction data, if required), on or about 19 -, [by culpable negligence] [while (perpetrating) 

(attempting to perpetrate) an offense directly affecting the person of ,to wit: (maiming) (a 

battery) ( )] unlawfully kill by h i d h e r (in) (on) the - with a 

45. Article 120-Rape and carnal knowledge 

a. Text. 

"(a) Any person subject to this chapter who commits an act of sexual intercourse with a female not his 

wife, by force and without her consent, is guilty of rape and shall be punished by death or such other punishment 

as a court-martial may direct. 

(b) Any person subject to this chapter who, under circumstances not amounting to rape, commits an act of 

sexual intercourse with a female not his wife who has not attained the age of sixteen years, is guilty of carnal 

knowledge and shall be punished as a court-martial may direct. 

(c) Penetration, however slight, is sufficient to complete either of these offenses." 

b. Elements. 

(1) Rape. 

(a) That the accused committed an act of sexual intercourse with a certain female; 

(b) That the female was not the accused's wife; and 

(c) That the act of sexual intercourse was done by force and without her consent. 

(2) Carnal knowledge. 

(a) That the accused committed an act of sexual intercourse with a certain female; 

(b) That the female was not the accused's wife; and 

(c) That at the time of the sexual intercourse the female was under 16 years of age. 

c. Explanation. 

(1) Rape. 

(a) Nature of ojfense. Rape is sexual intercourse by a person with a female not his wife, by force 

and without her consent. It may be committed on a female 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 female consents to the act, it is not rape. The lack of consent required, however, is more than mere lack of 

acquiescence. -If a woman in possession of her mental and physical faculties fails to make her lack of consent 
reasonably manifest by taking such measures of resistance as are called for by the circumstances, the inference 

may be drawn that she 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 female 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 woman 

gave her consent, or whether 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 woman is of unsound mind or unconscious to an extent rendering her incapable of giving consent, 

the act is rape. Likewise, the acquiescence of a child of such tender years that she is incapable of understanding 

the nature of the act is not consent. 

(c) Character of victim. See Mil. R. Evid. 412 concerning rules of evidence relating to an alleged 

rape victim's character. 

(2) Carnal knowledge. "Carnal knowledge" is sexual intercourse under circumstances not amounting 

to rape, with a female who is not the accused's wife and who has not attained the age of 16 years. Any penetration, 

however slight, is sufficient to complete the offense. It is no defense that the accused is ignorant or misinformed 

as to the true age of the female, or that she was of prior unchaste character; it is the fact of the girl's age and 

not his knowledge or belief which fixes his criminal responsibility. Evidence of these matters should, however, 

be considered in determining an appropriate sentence. 

d. Lesser included offenses. 

(1) Rape. 

(a) Article 128-assault; assault consummated by a battery 

(b) Article 134-assault with intent to commit rape 

(c) Article 134-indecent assault 

(d) Article 80-attempts 

(2) Carnal knowledge. 

(a) Article 134-indecent acts or liberties with a person under 16 

(b) Article 80-attempts 

e. Maximum punishment. 

(1) Rape. Death or such other punishment as a court-martial may direct. 

(2)Carnal knowledge. Dishonorable discharge, forfeiture of all pay and allowances, and confinement 

for 15 years. 

f. Sample specijkations. 

(1) Rape. 

In that (personal jurisdiction data), did, (aVon board-location) (subject-matter jurisdiction data, if required), on or about 19 -, rape 

(2) Carnal knowledge. 

in that (personal jurisdiction data), did, (aVon board-location) (subject-matter jurisdiction 

data, if required), on or about 19 -,commit the offense of carnal knowledge with 

46. Article 121-Larceny and wrongful appropriation 

a. Text. 


"(a) Any person subject to this chapter who wrongfully takes, obtains, or withholds, by any means, 

from the possession of the owner or of any other person any money, personal property, or article of value of 

any kind- 

(1) with intent permanently to deprive or defraud another person of the use and benefit of property or 

to appropriate it to his own use or the use of any person other than the owner, steals that property and is guilty 

of larceny; or 

(2) with intent temporarily to deprive or defraud another person of the use and benefit of property or 

to appropriate it to his own use or the use of any person other than the owner, is guilty of wrongful appropriation. 

(b) Any person found guilty of larceny or wrongful appropriation shall be punished as a court-martial may 

direct.'' 

b. Elements. 

(1) Larceny. 

(a) That the .accused wrongfully took, obtained, or withheld certain property from the possession 

of the owner or of any other person; 

(b) That the property belonged to a certain person; 

(c) That the property was of a certain value, or of some value; and 

(d) That the taking, obtaining, or withholding by the accused was with the intent permanently to 

deprive or defraud another person of the use and benefit of the property or permanently to appropriate the property 

for the use of the accused or for any person other than the owner. 

(2)Wrongful appropriation. 

(a) That the accused wrongfully took, obtained, or withheld certain property from the possession 

of the owner or of any other person; 

(b) That the property belonged to a certain person; 

(c) That the property was of a certain value, or of some value; and 

(d) That the taking, obtaining, or withholding by the accused was with the intent temporarily to 

deprive or defraud another person of the use and benefit of the property or temporarily to appropriate the property 

for the use of the accused or for any person other than the owner. 

C.Explanation. 

(1) Larceny. 

(a) In general. A wrongful taking with intent permanently to deprive includes the common law 

offense of larceny; a wrongful obtaining with intent permanently to defraud includes the offense formerly known 

as obtaining by false pretense; and a wrongful withholding with intent permanently to appropriate includes the 

offense formerly known as embezzlement. Any of the various types of larceny under Article 121may be charged 

and proved under a specification alleging that the accused "did steal" the property in question. 

(b) Taking, obtaining, or withholding. There must be a taking, obtaining, or withholding of the 

property by the thief. For instance, there is no taking if the property is connected to a building by a chain and 

the property has not been disconnected from the building; property is not "obtained" by merely acquiring title 

thereto without exercising some possessory control over it. As a general rule, however, any movement of the 

property or any exercise of dominion over it is sufficient if accompanied by the requisite intent. Thus, if an 

accused enticed another's horse into the accused's stable without touching the animal, or procured a railroad 

company to deliver another's trunk by changing the check on it, or obtained the delivery of another's goods to 

a person or place designated by the accused, or had the funds of another transferred to the accused's bank 

account, the accused is guilty of larceny if the other elements of the offense have been proved. A person may 

"obtain" the property of another by acquiring possession without title, and one who already has possession of 

the property of another may "obtain" it by later acquiring title to it. A "withholding" may arise as a result of 

a failure to return, account for, or deliver property to its owner when a return, accounting, or delivery is due, 

even if the owner has made no demand for the property, or it may arise as a result of devoting property to a 
use not authorized by its owner. Generally, this is so whether the person withholding the property acquired it 

lawfully or unlawfully. See subparagraph c(l)(f) below. However, acts which constitute the offense of unlawfully 

receiving, buying, or concealing stolen property or of being an accessory after the fact are not included within 

the meaning of "withholds." Therefore, neither a receiver of stolen property nor an accessory after the fact can 

be convicted of larceny on that basis alone. The taking, obtaining, or withholding must be of specific property. 

A debtor does not withhold specific property from the possession of a creditor by failing or refusing to pay a 

debt, for the relationship of debtor and creditor does not give the creditor a possessory right in any specific 

money or other property of the debtor. 

(c) Ownership of the property. 

(i) In general. Article 121 requires that the taking, obtaining, or withholding be from the 

possession of the owner or of any other person. Care, custody, management, and control are among the definitions 

of possession. 

(ii) Owner. "Owner" refers to the person who, at the time of the taking, obtaining, or 

withholding, had the superior right to possession of the property in the light of all conflicting interests therein 

which may be involved in the particular case. For instance, an organization is the true owner of its funds as 

against the custodian of the funds charged with the larceny thereof. 

(iii) Any other person. "Any other person" means any person-even a person who has stolen 

the property-who has possession or a greater right to possession than the accused. In pleading a violation of 

this article, the ownership of the property may be alleged to have been in any person, other than the accused, 

who at the time of the theft was a general owner or a special owner thereof. A general owner of property is a 

person who has title to it, whether or not that person has possession of it; a special owner, such as a borrower 

or hirer, is one who does not have title but who does have possession, or the right of possession, of the property. 

(iv) Person. "Person," as used in refemng to one from whose possession property has been 

taken, obtained, or withheld, and to my owner of property, includes (in addition to a natural person) a government, 

a corporation, an association, an organization, and an estate. Such a person need not be a legal entity. 

(d) Wrongfulness of the taking, obtaining, or withholding. The taking, obtaining, or withholding 

of the property must be wrongful. As a general rule, a taking or withholding of property from the possession 

of another is wrongful if done without the consent of the other, and an obtaining of property from the possession 

of another is wrongful if the obtaining is by false pretense. However, such an act is not wrongful if it is authorized 

by law or apparently lawful superior orders, or, generally, if done by a person who has a right to the possession 

of the property either equal to or greater than the right of one from whose possession the property is taken, 

obtained, or withheld. An owner of property who takes or withholds it from the possession of another, without 

the consent of the other, or who obtains it therefrom by false pretense, does so wrongfully if the other has a 

superior right-such as a lien-to possession of the property. A person who takes, obtains, or withholds property 

as the agent of another has the same rights and liabilities as does the printipal, but may not be charged with a 

guilty knowledge or intent of the principal which that person does not share. 

(e) False pretense. With respect to obtaining property by false pretense, the false pretense may 

be made by means of any act, word, symbol, or token. The pretense must be in fact false when made and when 

the property is obtained, and it must be knowingly false in the sense that it is made without a belief in its truth. 

A false pretense is a false representation of past or existing fact. In addition to other kinds of facts, the fact 

falsely represented by a person may be that person's or another's power, authority, or intention. Thus, a false 

representation by a person that that person presently intends to perform a certain act in the future is a false 

representation of an existing fact-the intention-and thus a false pretense. Although the pretense need not be 

the sole cause inducing the owner to part with the property, it must be an effective and intentional cause of the 

obtaining. A false representation made after the property was obtained will not result in a violation of Article 

121. A larceny is committed when a person obtains the property of another by false pretense and with intent to 

steal, even though the owner neither intended nor was requested to part with title to the property. Thus, a person 

who gets another's watch by pretending that it will be borrowed briefly and then returned, but who really intends 

to sell it, is guilty of larceny. 

(f) Intent. 
(i) In general. The offense of larceny requires that the taking, obtaining, or withholding by 

the thief be accompanied by an intent permanently to deprive or defraud another of the use and benefit of property 

or permanently to appropriate the property to the thief's own use or the use of any person other than the owner. 

These intents are collectively called an intent to steal. Although a person gets property by a taking or obtaining 

which was not wrongful or which was without a concurrent intent to steal, a larceny is nevertheless committed 

if an intent to steal is formed after the taking or obtaining and the property is wrongfully withheld with that 

intent. For example, if a person rents another's vehicle, later decides to keep it permanently, and then either 

fails to return it at the appointed time or uses it for a purpose not authorized by the terms of the rental, larceny 

has been committed, even though at the time the vehicle was rented, the person intended to return it after using 

it according to the agreement. 

(ii) lnference of intent. An intent to steal may be proved by circumstantial evidence. Thus, 

if a person secretly takes property, hides it, and denies knowing anything about it, an intent to steal may be 

inferred; if the property was taken openly and returned, this would tend to negate such an intent. Proof of sale 

of the property may show an intent to steal, and therefore, evidence of such a sale may be introduced to support 

a charge of larceny. An intent to steal may be inferred from a wrongful and intentional dealing with the property 

of another in a manner likely to cause that person to suffer a permanent loss thereof. 

(iii) Special situations. 

(A)Motive does not negate intent. The accused's purpose in taking an item ordinarily 

is irrelevant to the accused's guilt as long as the accused had the intent required 

under subparagraph c(l)(f)(i) above. For example, if the accused wrongfully took 

property as a "joke" or "to teach the owner a lesson" this would not be a defense, 

although if the accused intended to return the property, the accused would be guilty 

of wrongful appropriation, not larceny. When a person takes property intending 

only to return it to its lawful owner, as when stolen property is taken from a thief 

in order to return it to its owner, larceny or wrongful appropriation is not committed. 

(B) Intent to pay for or replace property not a defense. An intent to pay for or replace 

the stolen property is not a defense, even if that intent existed at the time of the 

theft. If, however, the accused takes money or a negotiable instrument having no 

special value above its face value, with the intent to return an equivalent amount 

of money, the offense of larceny is not committed although wrongful appropriation 

may be. 

(C) Return of property not a defense. Once a larceny is committed, a return of the 

property or payment for it is no defense. See subparagraph c(2) below when the 

taking, obtaining, or withholding is with the intent to return. 

(g) Value. 

(i) In general. Value is a question of fact to be detennined on the basis of all of the evidence 

admitted. 

(ii) Government property. When the stolen property is an item issued or procured from 

Government sources, the price listed in an official publication for that property at the time of the theft is admissible 

as evidence of its value. See Mil. R. Evid. 803(17). However, the stolen item must be shown to have been, at 

the time of the theft, in the condition upon which the value indicated in the offical price list is based. The price 

listed in the official publication is not conclusive as to the value of the item, and other evidence may be admitted 

on the question of its condition and value. 

(iii) Other property. As a general rule, the value of other stolen property is its legitimate 

market value at the time and place of the theft. If this property, because of its character or the place where it 

was stolen, had no legitimate market value at the time and place of the theft or if that value cannot readily be 

ascertained, its value may be determined by its legitimate market value in the United States at the time of the 

theft, or by its replacement cost at that time, whichever is less. Market value may be established by proof of 

the recent purchase price paid for the article in the legitimate market involved or by testimony or other admissible 

evidence from any person who is familiar through training or experience with the market value in question. The 
owner of the property may testify as to its market value if familiar with its quality and condition. The fact that 

the owner is not an expert on the market value of the property goes only to the weight to be given that testimony, 

and not to its admissibility. See Mil. R. Evid. 701. When the character of the property clearly appears in 

evidence-for instance, when it is exhibited to the court-martial-the court-martial, from its own experience, 

may infer that it has some value. If as a matter of common knowledge the property is obviously of a value 

substantially in excess of $100.00, the court-martial may find a value of more than $100.00. Writings representing 

value may be considered to have the value-even though contingent-which they represented at the time of the 

theft. 

(iv) Limited interest in property. If an owner of property or someone acting in the owner's 

behalf steals it from a person who has a superior, but limited, interest in the property, such as a lien, the value 

for punishment purposes shall be that of the limited interest. 

(h) Miscellaneous considerations. 

(i) Lost property. A taking or withholding of lost property by the finder is larceny if accompanied by an intent to steal and if a clue to the identity of the general or special owner, or through which such 

identity may be traced, is furnished by the character, location, or marketing of the property, or by other 

circumstances. 

(ii) Multiple article larceny. When a larceny of several articles is committed at substantially 

the same time and place, it is a single larceny even though the articles belong to different persons. Thus, if a 

thief steals a suitcase containing the property of several persons or goes into a room and takes property belonging 

to various persons, there is but one larceny, which should be alleged in but one specification. 

(iii) Special kinds of property which may also be the subject of larceny. Included in property 

which may be the subject of larceny is property which is taken, obtained, or withheld by severing it from real 

estate and writings which represent value such as commercial paper. 

(iv) Services. Theft of services may not be charged under this paragraph, but see paragraph 

78. 

(v) Mail. As to larceny of mail, see also paragraph 93. 

(2) Wrongful appropriation. 

(a) In general. Wrongful appropriation requires an intent to temporarily-as opposed to permanently-deprive the owner of the use and benefit of, or appropriate to the use of another, the property wrongfully 

taken, withheld, or obtained. In all other respects wrongful appropriation and larceny are identical. 

(b) Examples. Wrongful appropriation includes: taking another's automobile without permission 

or lawful authority with intent to drive it a short distance and then return it or cause it to be returned to the 

owner; obtaining a service weapon by falsely pretending to be about to go on guard duty with intent to use it 

on a hunting trip and later return it; and while driving a government vehicle on a mission to deliver supplies, 

withholding the vehicle from government service by deviating from the assigned route without authority, to visit 

a friend in a nearby town and later restore the vehicle to its lawful use. An inadvertent exercise of control over 

the property of another will not result in wrongful appropriation. For example, a person who fails to return a 

borrowed boat at the time agreed upon because the boat inadvertently went aground is not guilty of this offense. 

d. Lesser included offenses. 

(1) Larceny. 

(a) Article 12 1-wrongful appropriation 

(b) Article 80-attempts 

(2) Wrongful appropriation. Article 80-attempts 

e. Maximum punishment. 

(1) Larceny. 
(a) Of a value of $100.00 or less. Bad-conduct discharge, forfeiture of all pay and allowances, 

and confinement for 6 months. 

(b) Of a value of more than $100.00 or any motor vehicle, aircraft, vessel, firearm, or explosive. 

Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years. 

(2) Wrongful appropriation. 

(a) Of a value of $100.00 or less. Confinement for 3 months, and forfeiture of two-thirds pay per 

month for 3 months. 

(b)Of a value of more than $100.00. Bad-conduct discharge, forfeiture of all pay and allowances, 

and confinement for 6 months. 

(c) Of any motor vehicle, aircraft, vessel, firearm, or explosive. Dishonorable discharge, forfeiture 

of all pay and allowances, and confinement for 2 years. 

f. Sample speczjkations. 

(1) Larceny. 

In that (personal jurisdiction data), did, (at/on board-location) (subject-matter jurisdiction data, if required), on or about 19 -, steal , of a value of (about) 

$ ,the property of 

(2) Wrongful appropriation. 

In that (personal jurisdiction data), did, (at/on board-location) (subject-matter jurisdiction data, if required), on or about 19 -, wrongfully appropriate 

of a value of (about) $ , the property of 

47. Article 122-Robbery 

"Any person subject to this chapter who with intent to steal takes anything of value from the person or in 

the presence of another, against his will, by means of force or violence or fear of immediate or future injury to 

his person or property or to the person or property of a relative or member of his family or of anyone in his 

company at the time of the robbery, is guilty of robbery and shall be punished as a court-martial may direct." 

b. Elements. 

(I) That the accused wrongfully took certain property from the person or from the possession and in 

the presence of a person named or described; 

(2) That the taking was against the will of that person; 

(3) That the taking was by means of force, violence, or force and violence, or putting the person in 

fear of immediate or future injury to that person, a relative, a member of the person's family, anyone accompanying 

the person at the time of the robbery, the person's property, or the property of a relative, family member, or 

anyone accompanying the person at the time of the robbery; 

(4) That the property belonged to a person named or described; 

(5) That the property was of a-certain or of some value; and 

(6) That the taking of the property by the accused was with the intent permanently to deprive the person 

robbed of the use and benefit of the property. 

[Note: If the robbery was committed with a firearm, add the following element] 

(7) That the means of force or violence or of putting the person in fear was a firearm. 

C.Explanation. 

9 
(1) Taking in the presence of the victim. It is not necessary that the property taken be located within 

any certain distance of the victim. If persons enter a house and force the owner by threats to disclose the hiding 

place of valuables in an adjoining room, and, leaving the owner tied, go into that room and steal the valuables, 

they have committed robbery. 

(2) Force or violence. For a robbery to be committed by force or violence, there must be actual force 

or violence to the person, preceding or accompanying the taking against the person's will, and it is immaterial 

that there is no fear engendered in the victim. Any amount of force is enough to constitute robbery if the force 

overcomes the actual resistance of the 'person robbed, puts the person in such a position that no resistance is 

made, or suffices to overcome the resistance offered by a chain or other fastening by which the article is attached 

to the person. The offense is not robbery if an article is merely snatched from the hand of another or a pocket 

is picked by stealth, no other force is used, and the owner is not put in fear. But if resistance is overcome in 

snatching the article, there is sufficient violence, as when an earring is tom from a person's ear. There is sufficient 

violence when a person's attention is diverted by being jostled by a confederate of a pickpocket, who is thus 

enabled to steal the person's watch, even though the person had no knowledge of the act; or when a person is 

knocked insensible and that person's pockets rifled; or when a guard steals property from the person of a prisoner 

in the guard's charge after handcuffing the prisoner on the pretext of preventing escape. 

(3) Fear. For a robbery to be committed by putting the victim in fear, there need be no actual force 

or violence, but there must be a demonstration of force or menance by which the victim is placed in such fear 

that the victim is warranted in making no resistance. The fear must be a reasonable apprehension of present or 

future injury, and the taking must occur while the apprehension exists. The injury apprehended may be death 

or bodily injury to the person or to a relative or family member, or to anyone in the person's company at the 

time, or it may be the destruction of the person's habitation or other property or that of a relative or family 

member or anyone in the person's company at the time of sufficient gravity to warrant giving up the property 

demanded by the assailant. 

(4) Larceny by taking. Robbery includes "taking with intent to steal"; hence, a larceny by taking is 

an integral part of a charge of robbery and must be proved at the trial. See paragraph 46c(l). 

(5) Multiple-victim robberies. Robberies of different persons at the same time and place are separate 

offenses and each such robbery should be alleged in a separate specification. 

d. Lesser included offenses. 

(1) Article 121-larceny 

(2) Article 121-wrongful appropriation 

(3) Article 128-assault; assault consummated by a battery 

(4) A~ticle 128-assault with a dangerous weapon 

(5) Article 128-assault intentionally inflicting grievous bodily harm 

(6) Article 134-assault with intent to rob 

(7) Article 80-attempts 

[Note: More than one lesser included offense may be found in an appropriate case because robbery is a compound 

offense. For example, a person may be found not guilty of robbery but guilty of wrongful appropriation and assault.] 

e. Maximum punishment. 

(1) When committed with afirearm. Dishonorable discharge, forfeiture of all pay and allowances, and 

confinement for 15 years. 

(2) Other cases. Dishonorable discharge, xfeiture of all pay and allowances, and confinement for 10 years. 

f. Sample specifications. 

In that (personal jurisdiction data), did, (atlon board-location) (subject-matter juris- 
diction data, if requkd), on or about 19 -,by means of (force) (violence) 

(force and violence) (and) (putting hirnlher in fear) (with a firearm) steal from the @enon) (presence) of , 

against hisher will, (a watch) ( ) of value of (about) $ ,the property of 

48. Article 123-Forgery 

a. Text. 

"Any person subject to this chapter who, with intent to defraud- 

(1) falsely makes or alters any signature to, or any part of, any writing which would, if genuine, 

apparently impose a legal liability on another or change his legal right or liability to his prejudice; or 

(2) utters, offers, issues, or transfers such a writing, known by him to be so made or altered; is guilty 

of forgery and shall be punished as a court-martial may direct." 

b. Elements. 

(1) Forgery-making or altering. 

(a) That the accused falsely made or altered a certain signature or writing; 

(b) That the signature or writing was of a nature which would, if genuine, apparently impose a 

legal liability on another or change another's legal rights or liabilities to that person's prejudice; and 

(c) That the false making or altering was with the intent to defraud. 

(a) That a certain signature or writing was falsely made or altered; 

(b) That the signature or writing was of a nature which would, if genuine, apparently impose a 

legal liability on another or change another's legal rights or liabilities to that person's prejudice; 

(c) That the accused uttered, offered, issued, or transferred the signature or writing; 

(d) That at such time the accused knew that the signature or writing had been falsely made or 

altered; and 

(e) That the uttering, offering, issuing or transferring was with intent to defraud. 

C. Explanation. 

(1) In general. Forgery may be committed either by falsely making a writing or by knowingly uttering 

a falsely made writing. There are three elements common to both aspects of forgery: a writing falsely made or 

altered; an apparent capability of the writing as falsely made or altered to impose a legal liability on another or 

to change another's legal rights or liabilities to that person's prejudice; and an intent to defraud. 

(2) False. "False" refers not to the contents of the writing or to the facts stated therein but to the 

making or altering of it. Hence, forgery is not committed by the genuine making of a false instrument even 

when made with intent to defraud. A person who, with intent to defraud, signs that person's own signature as 

the maker of a check drawn on a bank in which that person does not have money or credit does not commit 

forgery. Although the check falsely represents the existence of the account, it is what it purports to be, a check 

drawn by the actual maker, and therefore it is not falsely made. See, however, paragraph 49. Likewise, if a 

person makes a false signature of another to an instrument, but adds the word "by" with that person's own 

signature thus indicating authority to sign, the offense is not forgery even if no such authority exists. False 

recitals of fact in a genuine document, as an aircraft flight report which is "padded" by the one preparing it, 

do not make the writing a forgery. But see paragraph 31 concerning false official statements. 

(3) Signatures. Signing the name of another to an instrument 'having apparent legal efficacy without 

authority and with intent to defraud is forgery as the signature is falsely made. The distinction is that in this 

case the falsely made signature purports to be the act of one other than the actual signer. Likewise, a forgery 

may be committed by a person signing that person's own name to an instrument. For example, when a check 
payable to the order of a certain person comes into the hands of another of the same name, forgery is committed 

if, knowing the check to be another's, that person indorses it with that person's own name intending to defraud. 

Forgery may also be committed by signing a fictitious name, as when Roe makes a check payable to Roe and 

signs it with a fictitious name-Doe-as drawer. 

(4) Nature of writing. The writing must be one which would, if genuine, apparently impose a legal 

liability on another, as a check or promissory note, or change that person's legal rights or liabilities to that 

person's prejudice, as a receipt. Some other instruments which may be the subject of forgery are orders for the 

delivery of money or goods, railroad tickets, and military orders directing travel. A writing falsely "made" 

includes an instrument that may be partially or entirely printed, engraved, written with a pencil, or made by 

photography or other device. A writing may be falsely "made" by materially altering an existing writing, by 

filling in a paper signed in blank, or by signing an instrument already written. With respect to the apparent legal 

efficacy of the writing falsely made or altered, the writing must appear either on its face or from extrinsic facts 

to impose a legal liability on another, or to change a legal right or liability to the prejudice of another. If under 

all the circumstances the instrumeht has neither real nor apparent legal efficacy, there is no forgery. Thus, the 

false making with intent to defraud of an instrument affirmatively invalid on its face is not forgery nor is the 

false making or altering, with intent to defraud, of a writing which could not impose a legal liability, as a mere 

letter of introduction. However, the false making of another's signature on an instrument with intent to defraud 

is forgery, even if there is no resemblance to the genuine signature and the name is misspelled. 

(5) Intent to defraud. See paragraph 49c(14). The intent to defraud need not be directed toward anyone in 

particular nor be for the advantage of the offender. It is immaterial that nobody was actually defrauded, or that no 

further step was made toward canying out the intent to defraud other than the false making or altering of a writing. 

(6)Alteration. The alteration must effect a material change in the legal tenor of the writing. Thus, an 

alteration which apparently increases, diminishes, or discharges any obligation is material. Examples of material 

alterations in the case of a promissory note are changing the date, amount, or place of payment. If a genuine 

writing has been delivered to the accused and while in the accused's possession is later found to be altered, it 

may be inferred that the writing was altered by the accused. 

(7) Uttering. See paragraph 49c(4). 

d. Lesser included offense. Article 80-attempts 

e. Maximum punishment. Dishonorable discharge, forfeiture of all pay and allowances, and confinement 

for 5 years. 

f. Sample specijications. 

(1) Forgery-making or altering. 

In that (personal jurisdiction data), did, (at/on board-location) (subject-matter jurisdiction data, if required), on or about 19 -,with intent to defraud, falsely [make (in its entirety) 

(the signature of as an indorsement to) (the signature of to) ( 1 

a certain (check) (writing) ( ) in the following words and figures, to wit: 

[alter a certain (check) (writing) ( ) in the following words and figures, to wit: , 

by (adding thereto 1 ( )], which said (check) (writing) ( 1 

would, if genuine, apparently operate to the legal harm of another [*and which (could be) 

(was) used to the legal harm of , 

in that 1. 

*[Note: This allegation should be used when the document specified is not one which by its nature would clearly 

operate to the legal prejudice of another-for example, an insurance application. The manner in which the document 

could be or was used to prejudice the legal rights of another should be alleged in the last blank.] 

In that (personal jurisdiction data), did, (at/on board-location) (subject-matter jurisdiction data, if required), on or about 19 -,with intent to defraud, (utter) (offer) (issue) (transfer) 

a certain (check) (writing) ( ) in the following words and figures, to wit: ,a 
I 

writing which would, if genuine, apparently operate to the legal harm of another, [which said (check) (writing) 


( )] [the signature to which said (check) (writing) ( 11 [ 


was, as helshe, the said , then well knew, falsely (made) (altered) [*and which 


(could be) (was) used to the legal harm of ,in that 1. 


"[Note: See the note following (I), above] 

49. Article 123a-Making, drawing, or uttering check, draft, or order without sufficient funds 

"Any person subject to this chapter who- 

(1) for the procurement of any article or thing of value, with intent to defraud; or 

(2) for the payment of any past due obligation, or for any other purpose, with intent to deceive; 

makes, draws, utters, or delivers any check, draft, or order for the payment of money upon any bank or other 

depository, knowing at the time that the maker or drawer has not or will not have sufficient funds in, or credit with, 

the bank or other depository for the payment of that check, draft, or order in full upon its presentment, shall be 

punished as a court-martial may direct. The making, drawing, uttering, or delivering by a maker or drawer of a 

check, draft, or order, payment of which is refused by the drawee. because of insufficient funds of the maker or 

drawer in the drawee's possession or control, is prima facie evidence of his intent to defraud or deceive and of his 

knowledge of insufficient funds in, or credit with, that bank or other depository, unless the maker or drawer pays 

the holder the amount due within five days after receiving notice, orally or in writing, that the check, draft, or order 

was not paid on presentment. In this section, the word 'credit' means an arrangement or understanding, express or 

implied, with the bank or other depository for the payment of that check, draft, or order." 

b. Elements. 

(1) For the procurement of any article or thing of value, with intent to defraud. 

(a) That the accused made, drew, uttered, or delivered a check, draft, or order for the payment 

of money payable to a named person or organization; 

(b) That the accused did so for the purpose of procuring an article or thing of value; 

(c) That the act was committed with intent to defraud; and 

(d) That at the time of making, drawing, uttering, or delivering of the instrument the accused 

knew that the accused or the maker or drawer had not or would not have sufficient funds in, or credit with, the 

bank or other depository for the payment thereof upon presentment. 

(2)For the payment of any past due obligation, or for any other purpose, with intent to deceive. 

(a) That the accused made, drew, uttered, or delivered a check, draft, or order for the payment 

of money payable to a named person or organization; 

(b) That the accused did so for the purpose or purported purpose of effecting the payment of a 

past due obligation or for some other purpose; 

(c) That the act was committed with intent to deceive; and 

(d) That at the time of making, drawing, uttering, or delivering of the instrument, the accused 

knew that the accused or the maker or drawer had not or would not have sufficient funds in, or credit with, the 

bank or other depository for the payment thereof upon presentment. 

c. Explanation. 

(1) Written instruments. The written instruments covered by this article include any check, draft (including 

share drafts), or order for the payment of money drawn upon any bank or other depository, whether or not the drawer 

bank or depository is actually in existence. It may be inferred that every check, draft, or order carries with it a 

representation that the instrument will be paid in full by the bank or other depository upon presentment by a holder 

when due. 
(2) Bank or other depository. "Bank or other depository" includes any business regularly but not 

necessarily exclusively engaged in public banking activities. 

(3) Making or drawing. "Making" and "drawing" are synonymous and refer to the act of writing 

and signing the instrument. ' 

(4) Uttering or delivering. "Uttering" and "delivering" have similar meanings. Both mean transferring 

the instrument to another, but "uttering" has the additional meaning of offering to transfer. A person need not 

personally be the maker or drawer of an instrument in order to violate this article if that person utters or delivers 

it. For example, if a person holds a check which that person knows is worthless, and utters or delivers the check 

to another, that person may be guilty of an offense under this article despite the fact that the person did not 

personally draw the check. 

(5) For the procurement. "For the procurement" means for the purpose of obtaining any article or 

thing of value. It is not necessary that an article or thing of value actually be obtained, and the purpose of the 

obtaining may be for the accused's own use or benefit or for the use or benefit of another. 

(6) For the payment. "For the payment" means for the purpose or purported purpose of satisfying in 

.whole or in part any past due obligation. Payment need not be legally effected. 

(7)For any other purpose. "For any other purpose" includes all purposes other than the payment of 

a past due obligation or the procurement of any article or thing of value. For example, it includes paying or 

purporting to pay an obligation which is not yet past due. The check, draft, or order, whether made or negotiated 

for the procurement of an article or thing of value or for the payment of a past due obligation or for some other 

purpose, need not be intended or represented as payable immediately. For example, the making of a postdated 

check, delivered at the time of entering into an installment purchase contract and intended as payment for a 

future installment, would, if made with the requisite intent and knowledge, be a violation of this article. 

(8) Article or thing of value. "Article or thing of value" extends to every kind of right or interest in 

property, or derived from contract, including interests and rights which are intangible or contingent or which 

mature in the future. 

(9)Past due obligatiari. A "past due obligation" is an obligation to pay money, which obligation has 

legally matured before making, drawing, uttering, or delivering the instrument. 

(10) Knowledge. The accused must have knowledge, at the time the accused makes, draws, utters, or 

delivers the instrument, that the maker or drawer, whether the accused or another, has not or will not have 

sufficient funds in, or credit with, the bank or other depository for the payment of the instrument in full upon 

its presentment. Such knowledge may be proved by circumstantial evidence. 

(11) SufJicient funds. "Sufficient funds" refers to a condition in which the account balance of the 

maker or drawer in the bank or other depository at the time of the presentment of the instrument for payment 

is not less than the face amount of the instrument and has not been rendered unavailable for payment by 

garnishment, attachment, or other legal procedures. 

(12) Credit. "Credit" means an arrangement or understanding, express or implied, with the bank or 

other depository for the payment of the check, draft, or order. An absence of credit includes those situations in 

which an accused writes a check on a nonexistent bank or on a bank in which the accused has no account. 

(13) Upon its presentment. "Upon its presentment" refers to the time the demand,for payment is made 

upon presentation of the instrument to the bank or other depository on which it was drawn. 

(14) lntent to defraud. "Intent to defraud" means an intent to obtain, through a misrepresentation, an 

article or thing of value and to apply it to one's own use and benefit or to the use and benefit of another, either 

permanently or temporarily. 

(15) Intent to deceive. "Intent to deceive" means an intent to mislead, cheat, or trick another by means 

of a misrepresentation made for the purpose of gaining an advantage for oneself or for a third person, or of 

bringing about a disadvantage to the interests of the person to whom the representation was made or to interests 

represented by that person. 

(16) The relationship of time and intent. Under this article, two times are involved: (a) when the 
accused makes, draws, utters, or delivers the instrument; and (b) when the instrument is presented to the bank 

or other depository for payment. With respect to (a), the accused must possess the requisite intent and must 

know that the maker or drawer does not have or will not have sufficient funds in, or credit with, the bank or 

the depository for payment of the instrument in full upon its presentment when due. With respect to (b), if it 

can otherwise be shown that the accused possessed the requisite intent and knowledge at the time the accused 

made, drew, uttered, or delivered the instrument, neither proof of presentment nor refusal of payment is necessary, 

as when the instrument is one drawn on a nonexistent bank. 

(17) Statutory rule of evidence. The provision of this article with respect to establishing prima facie 

evidence of knowledge and intent by proof of notice and nonpayment within 5 days is a statutory rule of evidence. 

The failure of an accused who is a maker or drawer to pay the holder the amount due within 5 days after receiving 

either oral or written notice from the holder of a check, draft, or order, or from any other person having knowledge 

that such check, draft, or order was returned unpaid because of insufficient funds, is prima facie evidence (a) 

that the accused had the intent to defraud or deceive as alleged; and (b) that the accused knew at the time the 

accused made, drew, uttered, or delivered the check, draft, or order that the accused did not have or would not 

have sufficient funds in, or credit with, the bank or other depository for the payment of such check, draft, or 

order upon its presentment for payment. Prima facie evidence is that evidence from which the accused's intent 

to defraud or deceive and the accused's knowledge of insufficient funds in, or credit with the bank or other 

depository may be inferred, depending on all the circumstances. The failure to give notice referred to in the 

article, or payment by the accused, maker, or drawer to the holder of the amount due within 5 days after such 

notice has been given, precludes the prosecution from using the statutory rule of evidence but does not preclude 

conviction of this offense if all the elements are otherwise proved. 

(18) Afirmative defense. Honest mistake'is an affirmative defense to offenses under this article. See 

R.C.M. 9160'). 

d. Lesser included ofSenses. 

(1) Article 134-making, drawing, uttering or delivering a check, draft, or order, and thereafter 

wrongfully and dishonorably failing to maintain sufficient funds 

(2) Article 80-attempts 

e. Maximum punishment. 

(1) For the procurement of any article or thing of value, with intent to defraud, in the face amount 

of: 

(a) $100.00 or less. Bad-conduct discharge, forfeiture of all pay and allowances, and confinement 

for 6 months. 

(b) More than $100.00. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years. 

(2) For the payment of any past due obligation, or for any other purpose, with intent to deceive. Badconduct discharge, forfeiture of all pay and allowances, and confinement for 6 months. 

f. Sample specificQtions . 

(1) For the procurement of any article or thing of value, with intent to defraud. 

In that (personal jurisdiction data), did, (at/on board-location) (subject-matter jurisdiction data, if required), on or about 19 -,with intent to defraud and for the procurement of 

[lawful currency] (and) [ (an article) (a thing) of value], wrongfully and unlawfully [(make 

(draw)] [(utter) (deliver) to ,] a certain (check) (draft) (money order) upon the ( 

Bank) ( depository) in words and figures as follows, to wit: , then knowing that (helshe) ( ),the (maker) (drawer) thereof, did not or would not have sufficient 

funds in or credit with such (bank) (depository) for the payment of the said (check) (draft) (order) in full upon 

its presentment. 

(2)For the payment of any past due obligation, or for any other purpose, with intent to deceive. 

In that (personal jurisdiction data), did, (at/on board-location) (subject-matter juris- 
diction data, if required), on or about 19 -, with intent to deceive and for the payment of a 

past due obligation, to wit: ) (for the purpose of ) wrongfully and unlawfully 

[(make) (draw)] [(utter) (deliver) to ,I a certain (check) (draft) (money order) for the payment 

of money upon ( Bank) ( depository), in words and figures as follows, to 

wit: ,then knowing that (helshe) ( ), the (maker) (drawer) thereof, did not 

or would not have sufficient funds in or credit with such (bank) (depository) for the payment of the said (check) 

(draft) (order) in full upon its presentment. 

50. Article 124-Maiming 

a. Text. 

"Any person subject to this chapter who, with intent to injure, disfigure, or disable, inflicts upon the person 

of another an injury which- 

(1) seriously disfigures his person by any mutilation thereof; 

(2) destroys or disables any member or organ of his body; 01 

(3) seriously diminishes his physical vigor by the injury of any member or organ; 

is guilty of maiming and shall be punished as a court-martial may direct." 

b. Elements. 

(1) That the accused inflicted a certain injury upon a certain person; 

(2) That this injury seriously disfigured the person's body, destroyed or disabled an organ or member, 

or seriously diminished the person's physical vigor by the injury to an organ or member; and 

(3) That the accused inflicted this injury with an intent to cause some injury to a person. 

c. Explanation. 

(1) Nature of offense. It is maiming to put out a person's eye, to cut off a hand, foot, or finger, or to 

knock out a tooth, as these injuries destroy or disable those members or organs. It is also maiming to injure an 

internal organ so as to seriously diminish the physical vigor of a person. Likewise, it is maiming to cut off an 

ear or to scar a face with acid, as these injuries seriously disfigure a person. A disfigurement need not multilate 

any entire member to come within the article, or be of any particular type, but must be such as to impair 

perceptibly and materially the victim's comeliness. The disfigurement, diminishment of vigor, or destruction or 

disablement of any member or organ must be a serious injury of a substantially permanent nature. However, the 

offense is complete if such an injury is inflicted even though there is a possibility that the victim may eventually 

recover the use of the member or organ, or that the disfigurement may be cured by surgery. 

(2) Means of inflicting injury. To prove the offense it is not necessary to prove the specific means by 

which the injury was inflicted. However, such evidence may be considered on the question of intent. 

(3) Intent. Maiming requires a specific intent to injure generally but not a specific intent to maim. 

Thus, one commits the offense who intends only a slight injury, if in fact there is infliction of an injury of the 

type specified in this article. Infliction of the type of injuries specified in this article upon the person of another 

may support an inference of the intent to injure, disfigure, or disable. 

(4) Defenses. If the injury is done under circumstances which would justify or excuse homicide, the 

offense of maiming is not committed. See R.C.M. 916. 

d. Lesser included offenses. 

(1) Article 128-assault; assault consummated by a battery 

(2) Article 128-assault with a dangerous weapon 

(3) Article 128-assault intentionally inflicting grievous bodily harm 

(4) Article 80-attempts 
e. Maximum punishment. Dishonorable discharge, forfeiture of all .pay and allowances, and confinement 

for 7 years. 

f. Sample specification. 

In that (personal jurisdiction data), did, (atton board-location) (subject-matter jurisdiction data, if required) on or about 19 -, maim by (crushing hisfher foot 

with a sledge hammer) ( >. 

51. Article 125-Sodomy 

a. Text. 

"(a) Any person subject to this chapter who engages in unnatural carnal copulation with another person of 

the same or opposite sex or with an animal is guilty of sodomy. Penetration, however slight, is sufficient to 

complete the offense. 

(b) Any person found guilty of sodomy shall be punished as a court-martial may direct." 

b. Elements. 

(1) That the accused engaged in unnatural carnal copulation with a certain other person or with 

an animal. 

[Note: Add either or both of the following elements, if applicable] 

(2) That the act was done with a child under the age of 16. 

(3) That the act was done by force and without the consent of the other person. 

c. Explanation. It is unnatural carnal copulation for a person to take into that person's mouth or anus the 

sexual organ of another person or of an animal; or to place that person's sexual organ in the mouth or anus of 

another person or of an animal; or to have carnal copulation in any opening of the body, except the sexual parts, 

with another person; or to have carnal copulation with an animal. 

(d). Lesser included oflenses. 

(1) With a child under the age of 16. 

(a) Article 125-forcible sodomy (and offenses included therein; see subparagraph (2) below) 

(b) Article 134-indecent acts with a child under 16 

(c) Article 80-attempts 

(2) Forcible sodomy. 

(a) Article 125-sodomy (and offenses included therein; see subparagraph (3) below) 

(b) Article 134-assault with intent to commit sodomy 

(c) Article 134-indecent assault 

(d) Article 80-attempts 

(3) Sodomy. 

(a) Article 134-indecent acts with another 

(b) Article 80-attempts 

e. Maximum punishment. 

(1) By force and without consent. Dishonorable discharge, forfeiture of all pay and allowances, and 

confinement for 20 years. 

(2) With a child under the age of 16 years. Dishonorable discharge, forfeiture of all pay and allowances, 

and confinement for 20 years. 
(3) Other cases. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 

years. 

f. Sample specification. 

In that (personal jurisdiction data), did, (atlon board-location) 

diction data, if required), on or about 19 -, commit sodomy with 

under the age of 16 years) (by force and without the consent of the said 

(subject-matter juris- 

(a child 

). 

52. Article 126-Arson 

a. Text. 

"(a) Any person subject to this chapter who willfully and maliciously burns or sets on fire an inhabited 

dwelling, or any other structure, movable or immovable, wherein to the knowledge of the offender there is at 

the time a human being, is guilty of aggravated arson and shall be punished as a court-martial may direct. 

(b) Any person subject to this chapter who willfully and maliciously bums or sets fire to the property of 

another, except as provided in subsection (a), is guilty of simple arson and shall be punished as a court-martial 

may direct. " 

b. Elements. 

(1) Aggravated arson. 

(a) Inhabited dwelling. 

(i) That the accused burned or set on fire an inhabited dwelling; 

(ii) That this dwelling belonged to a certain person and was of a certain value; and 

(iii) That the act was willful and malicious. 

(b) Structure. 

(i) That the accused burned or set on fire a certain structure; 

(ii) That the act was willful and malicious; 

(iii) That there was a human being in the structure at the time; 

(iv) That the accused knew that there was a human being in the structure at the time; and 

(v) That this structure belonged to a certain person and was of a certain value. 

(2) Simple arson. 

(a) That the accused burned or set fire to certain property of another; 

(b) That the property was of a certain value; and 

(c) That the act was willful and malicious. 

c. Explanation. 

(1) In general. In aggravated arson, danger to human life is the essential element; in simple arson, it 

is injury to the property of another. In either case, it is immaterial that no one is, in fact, injured. It must be 

shown that the accused set the fire willfully and maliciously, that is, not merely by negligence or accident. 

(2)Aggravated arson. 

(a)Inhabited dwelling. An inhabited dwelling includes the outbuildings that form part of the cluster 

of buildings used as a residence. A shop or store is not an inhabited dwelling unless occupied as such, nor is a 

house that has never been occupied or which has been temporarily abandoned. A person may be guilty of 

aggravated arson of that person's dwelling, whether as owner or tenant. 

(b) Structure. Aggravated arson may also be committed by burning or setting on fire any other 
structure, movable or immovable, such as a theater, church, boat, trailer, tent, auditorium, or any other sort of 

shelter or edifice, whether public or private, when the offender knows that there is a human being inside at the 

time. It may be inferred that the offender had this knowledge when the nature of the structure-as a department 

store or theater during hours of business, or other circumstances-are shown to have been such that a reasonable 

person would have known that a human being was inside at the time. 

(c)Damage to property. It is not necessary that the dwelling or structure be consumed or materially 

injured; it is enough if fire is actually communicated to any part thereof. Any actual burning or charring is 

sufficient, but a mere scorching or discoloration by heat is not. 

(d) Value and ownership of property. For the offense of aggravated arson, the value and ownership 

of the dwelling or other structure are immaterial, but should ordinarily be alleged and proved to permit the 

finding in an appropriate case of the included offense of simple arson. 

(3) Simple arson. "Simple arson" is the willful and malicious burning or setting fire to the property 

of another under circumstances not amounting to aggravated arson. The offense includes burning or setting fire 

to real or personal property of someone other than the offender. See also paragraph 67 (Burning with intent to 

defraud). 

d. Lesser included offenses. 

(1) Aggravated arson. 

(a) Article 126-simple arson 

(b) Article 80-attempts 

(2) Simple arson. Article 80-attempts 

e. Maximum punishment. 

(1) Aggravated arson. Dishonorable discharge, forfeiture of all pay and allowances, and confinement 

for 20 years. 

(2) Simple arson, where the property is- 

(a) Of a value of $100.00 or less. Dishonorable discharge, forfeiture of all pay and allowances, 

and confinement for 1 year. 

(b) Of a value of more than $100.00.Dishonorable discharge, forfeiture of all pay and allowances, 

and confinement for 5 years. 

f. Sample speciJications. 

(1) Aggravated arson. 

(a) Inhabited dwelling. 

In that (personal jurisdiction data), did, (at/on board-location) (subject-matter jurisdiction data, if required), on or about 19 -,willfully and maliciously (bum) (set on fire) an 

inhabited dwelling, to wit: (the residence of 1 ( 1, 

the property of ) of a value of (about) $ 

(b) Structure. 

In that (personal jurisdiction data), did, (atlon board-location) (subject-matter jurisdiction data, if required), on or about 19 -, willfully and maliciously (bum) (set on fire), 


knowing that a human being was therein at the time, (the Post Theater) ( 


the property of ), of a value of (about) $ 


(2)Simple arson. 

In that (personal jurisdiction data), did, (at/on board-location) (subject-matter jurisdiction data, if required), on or about 19 -, willfully and maliciously (bum) (set fire to) (an 

automobile) ( ), the property of , of a value of (about) $ 

I 
53. Article 127-Extortion 

a. Text. 

"Any person subject to this chapter who communicates threats to another person with the intention thereby 

to obtain anything of value or any acquittance, advantage, or immunity is guilty of extortion and shall be punished 

as a court-martial may direct." 

b. Elements. 

(1) That the accused communicated a certain threat to another; and 

(2) That the accused intended to unlawfully obtain something of value, or any acquittance, advantage, 

or immunity. 

c. Explanation. 

(1) In general. Extortion is complete upon communication of the threat with the requisite intent. The 

actual or probable success of the extortion need not be proved. 

(2) Threat. A threat may be communicated by any means but must be received by the intended victim. 

The threat may be: a threat to do any unlawful injury to the person or property of the person threatened or to 

any member of that person's family or any other person held dear to that person; a threat to accuse the person 

threatened, or any member of that person's family or any other person held dear to that person, of any crime; 

a threat to expose or impute any deformity o; disgrace to the person threatened or to any member of that person's 

family or any other person held dear to that person; a threat to expose any secret affecting the person threatened 

or any member of that person's family or any other person held dear to that person; or a threat to do any other 

harm. 

(3) Acquittance. An "acquittance" is a release or discharge from an obligation. 

(4) Advantage or immunity. Unless it is clear from the circumstances, the advantage or immunity 

sought should be described in the specification. An intent to make a person do an act against that person's will 

is not, by itself, sufficient to constitute extortion. 

d. Lesser included offenses. 

(1) Article 134-communicating a threat 

(2) Article 80-attempts 

e. Maximum punishment. Dishonorable discharge, forfeiture of all pay and allowances, and confinement 

for 3 years. 

f. Sample specification. 

In that (personal jurisdiction data), did, (atton board-location) (subject-matter jurisdiction data, if required), on or about 19 -, with intent unlawfully to obtain (something of 

value) (an acquittance) (an advantage, to wit ) (an immunity, to wit ), communicate to a threat to (here describe the threat). 

54. Article 128-Assault 

a. Text. 

"(a) Any person subject to this chapter who attempts or offers with unlawful force or violence to do bodily 

harm to another person, whether or not the attempt or offer is consummated, is guilty of assault and shall be 

punished as a court-martial may direct. 

(b) Any person subject to this chapter who- 

(1) commits an assault with a dangerous weapon or other means or force likely to produce death or 

grievous bodily harm; or 

(2) commits an assault and intentionally inflicts grievous bodily harm with or without a weapon; 
is guilty of aggravated assault and shall be punished as a court-martial may direct." 

b. Elements. 

(1) Simple assault. 

(a) That the accused attempted or offered to do bodily harm to a certain person; and 

(b) That the attempt or offer was done with unlawful force or violence. 

(2)Assault consummated by a battery. 

(a) That the accused did bodily harm to a certain person; and 

(b) That the bodily harm was done with unlawful force or violence. 

(3) Assaults permitting increased punishment based on status of victim. 

(a) Assault upon a commissioned, warrant, noncommissioned, or petty oflcer. 

(i) That the accused attempted to do, offered to do, or did bodily harm to a certain person; 

(ii) That the attempt, offer, or bodily harm was done with unlawful force or violence; 

(iii) That the person was a commissioned, warrant, noncommissioned, or petty officer; and 

(iv) That the accused then knew that the person was a commissioned, warrant, noncommissioned, or petty officer. 

(b) Assault upon a sentinel or lookout in the execution of duty, or upon a person in the execution 

of law enforcement duties. 

(i) That the accused attempted to do, offered to do, or did bodily harm to a certain person; 

(ii) That the attempt, offer, or bodily harm was done with unlawful force or violence; 

(iii) That the person was a sentinel or lookout in the execution of duty or was a person who 

then had and was in the execution of security police, military police, shore patrol, master at arms, or other 

military or civilian law enforcement duties; and 

(iv) That the accused then knew that the person was a sentinel or lookout in the execution 

of duty or was a person who then had and was in the execution of security police, military police, shore patrol, 

master at arms, or other military or civilian law enforcement duties. 

(c) Assault consummated by a battery upon a child under 16 years. 

(i) That the accused did bodily harm to a certain person; 

(ii) That the bodily harm was done with unlawful force or violence; and 

(iii) That the person was then a child under the age of 16 years. 

(4)Aggravated assault. 

(a) Assault with a dangerous weapon or other means or force likely to produce death or grievous 

bodily harm. 

(i) That the accused attempted to do, offered to do, or did bodily harm to a certain person; 

(ii) That the accused did so with a certain weapon, means, or force; 

(iii) That the attempt, offer, or bodily harm was done with unlawful force or violence; and 

(iv) That the weapon, means, or force was used in a manner likely to produce death or 

grievous bodily harm. 

[Note: When a loaded firearm was used, add the following element] 
(v) That the weapon was a loaded firearm. 

(b) Assault in which grievous bodily harm is intentionally inflicted. 

(i) That the accused assaulted a certain person; 

(ii) That grievous bodily harm was thereby inflicted upon such person; 

(iii) That the grievous bodily harm was done with unlawful force or violence; and 

(iv) That the accused, at the time, had the specific intent to inflict grievous bodily harm. 

[Note: When a loaded firearm was used, add the following element] 

(v) That the injury was inflicted with a loaded firearm. 

c. Explanation. 

(I) Simple assault. 

(a) Definition of assault. An "assault" is an attempt or offer with unlawful force or violence to 

do bodily harm to another, whether or not the attempt or offer is consummated. It must be done without legal 

justification or excuse and without the lawful consent of the person affected. "Bodily harm" means any offensive 

touching of another, however slight. 

(b)DlfSerence between "attempt" and ''offer' ' type assaults. 

(i) Attempt type assault. An "attempt" type assault requires a specific intent to inflict bodily 

harm, and an overt act-that is, an act that amounts to more than mere preparation and apparently tends to 

effect the intended bodily harm. An attempt type assault may be committed even though the victim had no 

knowledge of the incident at the time. 

(ii) Offer type assault. An "offer" type assault is an unlawful demonstration of violence, 

either by an intentional or by a culpably negligent act or omission, which creates in the mind of another a 

reasonable apprehension of receiving immediate bodily harm. Specific intent to inflict bodily harm is not required. 

(iii) Examples. 

(A) If Doe swings a fist at Roe's head intending to hit Roe but misses, Doe has committed 

an attempt type assault, whether or not Roe is aware of the attempt. 

(B) 	If Doe swings a fist in the direct of Roe's head either intentionally or as a result of 

culpable negligence, and Roe sees the blow coming and is thereby put in apprehension of being struck, Doe has committed an offer type assault whether or not 

Doe intended to hit Roe. 

(C) If Doe swings at Roe's head, intending to hit it, and Roe sees the blow coming and 

is thereby put in apprehension of being struck, Doe has committed both on offer 

and an attempt type assault. 

(D) If Doe swings at Roe's head simply to frighten Roe, not intending to hit Roe, and 

Roe does not see the blow and is not placed in fear, then no assault of any type 

has been committed. 

(c) Situations not amounting to assault. 

(i) Mere preparation. Preparation not amounting to an overt act, such as picking up a stone 

without any attempt or offer to throw it, does not constitute an assault. 

(ii) Threatening words. The use of threatening words alone does not constitute an assault. 

However, if the threatening words are accompanied by a menacing act or gesture, there may be an assault, since 

the combination constitutes a demonstration of violence. 

(iii) Circumstances negating intent to harm. If the circumstances known to the person menaced 

clearly negate an intent to do bodily harm there is no assault. Thus, if a person accompanies an apparent attempt 

to strike another by an unequivocal announcement in some form of an intention not to strike, 'there is no assault. 
For example, if Doe raises a stick and shakes it at Roe within striking distance saying, "If you weren't an old 

man, I would knock you down," Doe has committed no assault. However, an offer to inflict bodily injury upon 

another instantly if that person does not comply with a demand which the assailant has no lawful right to make 

is an assault. Thus, if Doe points a pistol at Roe and says, "If you don't hand over your watch, I will shoot 

you," Doe has committed an assault upon Roe. See also paragraph 47 (robbery) of this part. 

(d) Situations not constituting defenses to assault. 

(i) Assault attempt fails. It is not a defense to a charge of assault that for some reason unknown 

to the assailant, an assault attempt was bound to fail. Thus, if a person loads a rifle with what is believed to be 

a good cartridge and, pointing it at another, pulls the trigger, that person may be guilty of assault although the 

cartridge was defective and did not fire. Likewise, if a person in a house shoots through the roof at a place 

where a policeman is believed to be, that person may be guilty of assault even though the policeman is at another 

place on the roof. 

(ii) Retreating victim. An assault is complete if there is a demonstration of violence and an 

apparent ability to inflict bodily injury causing the person at whom it was directed to reasonably apprehend that 

unless the person retreats bodily harm will be inflicted. This is true even though the victim retreated and was 

never within actual striking distance of the assailant. There must, however, be an apparent present ability to 

inflict the injury. Thus, to aim a pistol at a person at such a distance that it clearly could not injure would not 

be an assault. 

(2) Battery. 

(a) In general. A "battery" is an assault in which the attempt or offer to do bodily harm is 

consummated by the infliction of that harm. 

(b) Application of force. The force applied in a battery may have been directly or indirectly applied. 

Thus, a battery can be committed by inflicting bodily injury on a person through striking the horse on which 

the person is mounted causing the horse to throw the person, as well as by striking the person directly. 

(c) Examples of battery. It may be a battery to spit on another, push a third person against another, 

set a dog at another which bites the person, cut another's clothes while the person is wearing them though 

without touching or intending to touch the person, shoot a person, cause a person to take poison, or drive an 

automobile into a person. A person who, although excused in using force, uses more force than is required, 

commits a battery. Throwing an object into a crowd may be a battery on anyone whom the object hits. 

(d) Situations not constituting battery. If bodily harm is inflicted unintentionally and without 

culpable negligence, there is no battery. It is also not a battery to touch another to attract the other's attention 

or to prevent injury. 

(3) Assaults permitting increased punishment based on status of victims. 

(a) Assault upon a commissioned, warrant, noncommissioned, or petty oficer. The maximum 

punishment is increased when assault is committed upon a commissioned officer of the armed forces of the 

United States, or of a friendly foreign power, or upon a warrant, noncommissioned, or petty officer of the armed 

forces of the United States. Knowledge of the status of the victim is an essential element of the offense and may 

be proved by circumstantial evidence. It is not necessary that the victim be superior in rank or command to the 

accused, that the victim be in the same armed force, or that the victim be in the execution of office at the time 

of the assault. 

(b) Assault upon a sentinel or lookout in the execution of duty, or upon a person in the execution 

of law enforcement duties. The maximum punishment is increased when assault is committed upon a sentinel or 

lookout in the execution of duty or upon a person who was then performing security police, military police, 

shore patrol, master at arms, or other military or civilian law enforcement duties. Knowledge of the status of 

the victim is an essential element of this offense and may be proved by circumstantial evidence. See paragraph 

38c(4) for the definition of "sentinel or lookout." 

(c) Assault consummated by a battery upon a child under 16 years of age. The maximum punishment is increased when assault consummated by a battery is committed upon. a child under 16 years of age. 

Knowledge that the person assaulted was under 16 years of age is not an element of this offense. 
(4) Aggravated assault. 

(a) Assault with a dangerous weapon or other means or force likely to produce death or grievous 

bodily harm. 

(i) Dangerous weapon. A weapon is dangerous when used in a manner likely to produce 

death or grievous bodily harm. 

(ii) Other means or force. The phrase "other means or force" may include any means or 

instrumentality not normally considered a weapon. When the natural and probable consequence of a particular 

use of any means or force would be death or grievous bodily harm, it may be inferred that the means or force 

is "likely" to produce that result. The use to which a certain kind of instrument is ordinarily put is irrelevant 

to the question of its method of employment in a particular case. Thus, a bottle, beer glass, a rock, a bunk 

adaptor, a piece of pipe, a piece of wood, boiling water, drugs, or a rifle butt may be used in a manner likely 

to inflict death or grievous bodily harm. On the other hand, an unloaded pistol, when presented as a firearm 

and not as a bludgeon, is not a dangerous weapon or a means or force likely to produce grievous bodily harm, 

whether or not the assailant knew it was unloaded. 

(iii) 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, tom members of the body, serious damage to internal organs, and other serious bodily injuries. 

(iv) Death or injury not required. It is not necessary that death or grievous bodily harm be 

actually inflicted to prove assault with a dangerous weapon or means likely to produce grievous bodily harm. 

(b) Assault in which grievous bodily harm is intentionally inflicted. 

(i) In general. It must be proved that the accused specifically intended to and did inflict 

grievous bodily harm. Culpable negligence will not suffice. 

(ii) Proving intent. Specific intent may be proved by circumstantial evidence. When grievous 

bodily harm has been inflicted by means of intentionally using force in a manner likely to achieve that result, 

it may be inferred that grievous bodily harm was intended. On the other hand, that inference might not be drawn 

if a person struck another with a fist in a sidewalk fight even if the victim fell so that the victim's head hit the 

curbstone and a skull fracture resulted. It is possible, however, to commit this kind of aggravated assault with 

the fists, as when the victim is held by one of several assailants while the others beat the victim with their fists 

and break a nose, jaw, or rib. 

(iii) Grievous bodily harm. See subparagraph (4)(a)(iii). 

d. Lesser included offenses. 

(1) Simple assault. None 

(2) Assault consummated by a battery. Article 128-simple assault 

(3) Assault upon a commissioned, warrant, noncommissioned, or petty officer. Article 128-simple 

assault; assault consummated by a battery 

(4)Assault upon a sentinel or lookout in the execution of duty, or upon a person in the execution of 

police duties. Article 128-simple assault; assault consummated by a battery 

(5)Assault consummated by a battery upon a child under 16 years. Article 128-simple assault; assault 

consummated by a battery 

(6)Assault with a dangerous weapon or other means or force likely to produce death or grievous 

bodily harm. Article 128-simple assault; assault consummated by a battery 

(7)Assault in which grievous bodily harm is intentionally inflicted. Article 128-assault with a dangerous weapon; simple assault; assault consummated by a battery 

e. Maximum punishment. 

(1) Simple assault. Confinement for 3 months and forfeiture of two-thirds pay per month for 3 months. 
(2) Assault consummated by a battery. Bad conduct discharge, forfeiture of all pay and allowances, 

and confinement for 6 months. 

(3)Assault upon a commissioned officer of the armed forces of the United States or of a friendly foreign 

power, not in the execution ofofice. Dishonorable discharge, forfeiture of all pay and allowances, and confinement 

for 3 years. 

(4) Assault upon a warrant oficer, not in the execution of office. Dishonorable discharge, forfeiture 

of all pay and allowances, and confinement for 18 months. 

(5) Assault upon a noncommissioned or petty officer, not in the execution of office. Bad-conduct 

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

(6)Assault upon a sentinel or lookout in the execution of duty, or upon any person who, in the execution 

of office, is performing security police, military police, shore patrol, master at arms, or other military or civilian 

law enforcement duties. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 3 

years. 

(7)Assault consummated by a battery upon a child under 16 years. Dishonorable discharge, forfeiture 

of all pay and allowances, and confinement for 2 years. 

(8) Assault with a dangerous weapon or other means or force likely to produce death or grievous 

bodily harm. 

(a) When committed with a loaded firearm. Dishonorable discharge, forfeiture of all pay and 

allowances, and confinement for 8 years. 

(b) Other cases. Dishonorable discharge, forfeiture of all pay and allowances, and confinement 

for 3 years. 

(9)Assault in which grievous bodily harm is intentionally inflicted. 

(a) When the injury is inflicted with a loaded firearm. Dishonorable discharge, forfeiture of all 

pay and allowances, and confinement for 10 years. 

(b) Other cases. Dishonorable discharge, forfeiture of all pay and allowances, and confinement 

for 5 years. 

f. Sample specifications. 

(1) Simple assault. 

In that (personal jurisdiction data), did, (at/on board-location), (subject-matterjurisdiction'data, if required), on or about 19 -, assault by (striking at hidher 

with a 1 ( ). 

(2) Assault consummated by a battery. 

In that (personal jurisdiction data), did, (at/on board-location) (subject-matter jurisdiction data, if required), on or about 19 -, unlawfully (strike) ( 1 

(on) (in) the with 

(3) Assault upon a commissioned oficer. 

In that (personal jurisdiction data), did, (atlon board-location) (subject-matter jurisdiction data, if required), on or about 19 -, assault ,who then was and was 

then known by the accused to be a commissioned officer of [ ,a friendly foreign power] [the 

United States (Army) (Navy) (Marine Corps) (Air Force) (Coast Guard)] by 

(4) Assault upon a warrant, noncommissioned, or petty officer. 

In that (personal jurisdiction data), did, (at/on board-location) (subject-matter jurisdiction data, if required), on or about 19 -,assault , who then was and was 

then known by the accused to be a (warrant) (noncommissioned) (petty) officer of the United States (Army) 

(Navy) (Marine Corps) (Air Force) (Coast Guard), by 
(5) Assault upon a sentinel or lookout. 

In that (personal jurisdiction data), did, (at/on board-location) (subject-matter jurisdiction data, if required), on or about 19 -,assault , who then was and was 

then known by the accused to be a (sentinel) (lookout) in the execution of hislher duty, [(in) (on) the -1 

by 

(6)Assault upon a person in the execution of law enforcement duties. 

In that (personal jurisdiction data), did, (at/on board-location) (subject-matter jurisdiction data, if required), on or about 19 -, assault , who then was and was 

then known by the accused to be a person then having and in the execution of (Air Force security police) (military 

police) (shore patrol) (master at arms) [(military) (civilian) law enforcement] duties, by 

(7)Assault consummated by a battery upon a child under 16 years. 

In that (personal jurisdiction data), did, (atton board-location) (subject-matter jurisdiction data, if required), on or about 1 9 -, unlawfully (strike) ( 1 

a child under the age of 16 years, (in) (on) the - with 

(8) Assault, aggravated-with a dangerous weapon, means, or force. 

In that (personal jurisdiction data), did, (atlon board-location) (subject-matter jurisdiction data, if required), on or about 19 -,commit an assault upon by (shooting) (pointing) (striking) (cutting) ( ) (at himlher) (hidher) (in) (on) (the 1 

with [a dangerous weapon] [a (means) (force) likely to produce death or grievous bodily harm], to wit: a (loaded 

firearm) (pickax) (bayonet) (club) ( 1. 

(9) Assault, aggravated-inflicting grievous bodily harm. 

In that (personal jurisdiction data), did, (at/on board-location) (subject-matter jurisdiction data, if required), on or about 19 -,commit an assault upon b y (shooting) (striking) (cutting) ( ) (himlher) (on) the with a (loaded firearm) (club) 

(rock) (brick) ( ) and did thereby intentionally inflict grievous bodily harm upon himlher, to 

wit: a (broken leg) (deep cut) (fractured skull) ( 1. 

55. Article 129-Burglary 

a. Text. 

"Any person subject to this chapter who, with intent to commit an offense punishable under sections 918- 

928 of this title (articles 118-128), breaks and enters, in the nighttime, the dwelling house of another, is guilty 

of burglary and shall be punished as a court-martial may direct." 

b. Elements. 

(1) That the accused unlawfully broke and entered the dwelling house of another; 

(2) That both, the breaking and entering were done in the nighttime; and 

(3) That the breaking and entering were done with the intent to commit an offense punishable under 

Articles 118 through 128, except Article 123a. 

c. Explanation. 

(1) In general. "Burglary" is the breaking and entering in the nighttime of the dwelling house of 

another, with intent to commit an offense punishable under Articles 118 through 128, except 123a. In addition, 

an intent to commit an offense which, although not covered by Articles 118 through 128, necessarily includes 

an offense within one of these articles, satisfies the intent element of this article. This includes, for example, 

assaults punishable under Article 134 which necessarily include simple assault under Article 128. 

(2) Breaking. There must be a breaking, actual or constructive. Merely to enter through a hole left in 

the wall or roof or through an open window or door will not constitute a breaking; but if a person moves any 

obstruction to entry of the house without which movement the person could not have entered, the person has 
committed a "breaking." Opening a closed door or window or other similar fixture, opening wider a door or 

window already partly open but insufficient for the entry, or cutting out the glass of a window or the netting of 

a screen is a sufficient breaking. The breaking of an inner door by one who has entered the house without 

breaking, or by a person lawfully within the house who has no authority to enter the particular room, is a 

sufficient breaking, but unless such a breaking is followed by an entry into the particular room with the requisite 

intent, burglary is not committed. There is a constructive breaking when the entry is gained by a trick, such as 

conceiling oneself in a box; under false pretense, such as impersonating a gas or telephone inspector; by 

intimidating the occupants through violence or threats into opening the door; through collusion with a confederate, 

an occupant of the house; or by descending a chimney, even if only a partial descent is made and no room is 

entered. 

(3) Entry. An entry must be effected before the offense is complete, but the entry of any part of the 

body, even a finger, is sufficient. Insertion into the house of a tool or other instrument is also a sufficient entry, 

unless the insertion is solely to facilitate the breaking or entry. 

(4)Nighttime. Both the breaking and entry must be in the nighttime. "Nighttime" is the period between 

sunset and sunrise when there is not sufficient daylight to discern a person's face. 

(5)Dwelling house of another. To constitute burglary the house must be the dwelling house of another. 

"Dwelling house" includes outbuildings within the common inclosure, farmyard, or cluster of buildings used 

as a residence. Such an area is the "curtilage." A store is not a dwelling house unless part of, or also used as, 

a dwelling house, as when the occupant uses another part of the same building as a dwelling, or when the store 

is habitually slept in by family members or employees. The house must be used as a dwelling at the time of the 

breaking and entering. It is not necessary that anyone actually be in it at the time of the breaking and entering, 

but if the house has never been occupied at all or has been left without any intention of returning, it is not a 

dwelling house. Separate dwellings within the same building, such as a barracks room, apartment, or a room in 

a hotel, are subjects of burglary by other residents or guests, and in general by the owner of the building. A 

tent is not a subject of burglary. 

(6)Intent to commit offense Both the breaking and entry must be done with the intent to commit in 

the house an offense punishable under Articles 1 18 through 128, except 123a. If, after the breaking and entering, 

the accused commits one or more of these offenses, it may be inferred that the accused intended to commit the 

offense or offenses at the time of the breaking and entering. If the evidence warrants, the intended offense may 

be separately charged. It is immaterial whether the offense intended is committed or even attempted. If the 

offense is intended, it is no defense that its commission was impossible. 

(7)Separate offense. If the evidence warrants, the intended offense in the burglary specification may 

be separately charged. 

d. Lesser included offenses. 

(1) Article 130-housebreaking 

(2) Article 134-unlawful entry 

(3) Article 80-attempts 

e. Maximum punishment. Dishonorable discharge, forfeiture of all pay and allowances, and confinement 

for 10 years. 

f. Sample spec@cation. 

In that (personal jurisdiction data), did, at ,(subject-matter jurisdiction data, if required), on or about 19 -, in the nighttime, unlawfully break and enter the 

(dwelling house) ( within the curtilage) of , with intent to commit (murder) 

(larceny) ( ) therein. 

56. Article 130-Housebreaking 

a. Text. 

"Any person subject to this chapter who unlawfully enters the building or structure of another with intent 
to commit a criminal offense therein is guilty of housebreaking and shall be punished as a court-martial may 

direct." 

b. Elements. 

(1) That the accused unlawfully entered a certain building or structure of a certain other person; and 

(2) That the unlawful entry was made with the intent to commit a criminal offense therein. 

c. Explanation. 

(1) Scope of offense. The offense of housebreaking is broader than burglary in that the place entered 

is not required to be a dwelling house; it is not necessary that the place be occupied; it is not essential that there 

be a breaking; the entry may be either in the night or in the daytime; and the intent need not be to commit one 

of the offenses made punishable under Articles 118 through 128. 

(2) Intent. The intent to commit some criminal offense is an essential element of housebreaking and 

must be alleged and proved to support a conviction of this offense. If, after the entry the accused committed a 

criminal offense inside the building or structure, it may be inferred that the accused intended to commit that 

offense at the time of the entry. 

(3) Criminal offense. Any act or omission which is punishable by courts-martial, except an act or 

omission constituting a purely military offense, is a "criminal offense." 

(4) Building, structure. "Building" includes a room, shop, store, office, or apartment in a building. 

"Structure" refers only to those structures which are in the nature of a building or dwelling. Examples of these 

structures are a stateroom, hold, or other compartment of a vessel, an inhabitable trailer, an inclosed truck or 

freight car, a tent, and a houseboat. It is not necessary that the building or structure be in use at the time of the 

entry. 

(5) Entry. See paragraph 55c(3). 

(6)Separate offense. If the evidence warrants, the intended offense in the housebreaking specification 

may be separately charged. 

d. Lesser included offenses. 

(1) Article 134-unlawful entry 

(2) Article 80-attempts 

e. Maximum punishment. Dishonorable discharge, forfeiture of all pay and allowances, and confinement 

for 5 years. 

f. Sample specification. 

In that , (personal jurisdiction data), did, (aVon board-location) (subject-matter jurisdiction data, if required), on or about 19 -, unlawfully enter a (dwelling) (room) (bank) 

(store) (warehouse) (shop) (tent) (stateroom) ( ), the property of , 

with intent to commit a criminal offense, to wit: ,therein. 

57. Article 131-Perjury 

a. Text. 

"Any person subject to this chapter who in a judicial proceeding or in a course of justice willfully and 

comptly-

(1) upon a lawful oath or in any form allowed by law to be substituted for an oath, gives any false 

testimony material to the issue or matter of inquiry; or 

(2) in any declaration, certificate, verification, or statement under penalty of perjury as permitted under 

section 1746 of title 28, United States Code, subscribes any false statement material to the issue or matter of 

inquiry; is guilty of perjury and shall be punished as a court-martial may direct." 
b. Elements. 

(1) Giving false testimony. 

(a) That the accused took an oath or affirmation in a certain judicial proceeding or course of 

justice; 

(b) That the oath or affirmation was administered to the accused in a matter in which an oath or 

affirmation was required or authorized by law; 

(c) That the oath or affirmation was administered by a person having authority to do so; 

(d) That upon the oath or affirmation the accused willfully gave certain testimony; 

(e) That the testimony was material; 

(f) That the testimony was false; and 

(g) That the accused did not then believe the testimony to be true. 

(2) Subscribing false statement. 

(a) That the accused subscribed a certain statement in a judicial proceeding or course of justice; 

(b) That in the declaration, certification, verification, or statement under penalty of perjury, the 

accused declared, certified, verified, or stated the truth of that certain statement; 

(c) That the accused willfully subscribed the statement; 

(d) That the statement was material; 

(e) That the statement was false; and 

(f) That the accused did not then believe the statement to be true. 

c. Explanation. 

(1) In general. "Judicial proceeding" includes a trial by court-martial and "course of justice" includes 

an investigation conducted under Article 32. If the accused is charged with having committed perjury before a 

court-martial, it must be shown that the court-martial was duly constituted. 

(2) Giving false testimony. 

(a) Nature. The testimony must be false and must be willfully and corruptly given; that is, it must 

be proved that the accused gave the false testimony willfully and did not believe it to be true. A witness may 

commit perjury by testifying to the truth of a matter when in fact the witness knows nothing about it at all or 

is not sure about it, whether the thing is true or false in fact. A witness may also commit perjury in testifying 

falsely as to a belief, remembrance, or impression, or as to a judgment or opinion. It is no defense that the 

witness voluntarily appeared, that the witness was incompetent as a witness, or that the testimony was given in 

response to questions that the witness could have declined to answer. 

(b) Material matter. The false testimony must be with respect to a material matter, but that matter 

need not be the main issue in the case. Thus, perjury may be committed by giving false testimony with respect 

to the credibility of a material witness or in an affidavit in support of a request for a continuance, as well as by 

giving false testimony with respect to a fact from which a legitimate inference may be drawn as to the existence 

or nonexistence of a fact in issue. Whether the allegedly false testimony was with respect to a material matter 

is a question of law to be determined as an interlocutory question. 

(c) Proof. The falsity of the allegedly perjured statement cannot be proved by circumstantial 

evidence alone, except with respect to matters which by their nature are not susceptible of direct proof. The 

falsity of the statement cannot be proved by the testimony of a single witness unless that testimony directly 

contradicts the statement and is corroborated by other evidence, either direct or circumstantial, tending to prove 

the falsity of the statement. However, documentary evidence directly disproving the truth of the statement charged 

to have been perjured need not be corroborated if: the document is an official record shown to have been well 
known to the accused at the time the oath was taken; or the documentary evidence originated from the accusedor had in any manner been recognized by the accused as containing the truth-before the allegedly perjured 

statement was made. 

(d) Oath. The oath must be one recognized or authorized by law and must be duly administered 

by one authorized to administer it. When a form of oath has been prescribed, a literal following of that form is 

not essential; it is sufficient if the oath administered conforms in substance to the prescribed form. "Oath" 

includes an affirmation when the latter is authorized in lieu of an oath. 

(e) Belief of accused. The fact that the accused did not believe the statement to be true may be 

proved by testimony of one witness without corroboration or by circumstantial evidence. 

(3) Subscribing false statement. See subparagraphs (1) and (2), above, as applicable. Section 1746 of 

title 28, United States Code, provides for subscribing to the truth of a document by signing it expressly subject 

to the penalty for perjury. The signing must take place in a judicial proceeding or course of justice-for example, 

if a witness signs under penalty of perjury summarized testimony given at an Article 32 investigation. It is not 

required that the document be sworn before a third party. Section 1746 does not change the requirement that a 

deposition be given under oath or alter the situation where an oath is required to be taken before a specific 

person. 

d. Lesser included offenses. 

(1) Article 134-false swearing 

(2) Article 80-attempts 

e. Maximum punishment. Dishonorable discharge, forfeiture of all pay and allowances, and confinement 

for 5 years. 

f. Sample specifications. 

(1) Giving false testimony. 

In that (personal jurisdiction data), having taken a lawful (oath) (affirmation) in a (trial 

by 

of 

court-martial of ) (trial by a court of competent jurisdiction, to wit: -

) (deposition for use in a trial by of > ( 1 

that helshe would (testify) (depose) truly, did, (at/on board-location) (subject-matter jurisdiction data, if required), on or about 19 -,willfully, corruptly, and contrary to such (oath) (affirmation), (testify) 

(depose) falsely in substance that ,which (testimony) (deposition) was upon a material matter 

and which helshe did not then believe to be true. 

(2) Subscribing false statement. 

In that (personal jurisdiction data), did (at/on board-location) (subject-matter jurisdiction data, if required), on or about 19 -, in a (judicial proceeding) (course of justice), and 

in a (declaration) (certification) (verification) (statement) under penalty of perjury pursuant to section 1746 of 

title 28, United States Code, willfully and corruptly subscribe a false statement material to the (issue) (matter 

of inquiry), to wit: ,which statement was false in that , and which statement 

helshe did not then believe to be true. 

58. Article 132-Frauds against the United States 

a. Text. 

"Any person subject to this chapter- + 

(1) who, knowing it to be false or fraudulent- 

(a) makes any claim against the United States or any officer thereof; or 

(b) presents to any person in the civil or military service thereof, for approval or payment, any 

claim against the United States or any officer thereof; 
(2) who, for the purpose of obtaining the approval, allowance, or payment of any claim against the 

United States or any officer thereof- 

(a) makes or uses any writing or other paper knowing it to contain any false or fraudulent statements; 

(b) makes any oath to any fact or to any writing or other paper knowing the oath to be false; or 

(c) forges or counterfeits any signature upon any writing or other paper, or uses any such signature 

knowing it to be forged or counterfeited; 

(3) who, having charge, possession, custody, or control of any money, or other property of the United 

States, furnished or intended for the armed forces thereof, knowingly delivers to any person having authority to 

receive it, any amount thereof less than that for which he receives a certificate or receipt; or 

(4) who, being authorized to make or deliver any paper certifying the receipt of any property of the 

United States furnished or intended for the armed forces thereof, makes or delivers to any person such writing 

without having full knowledge of the truth of the statements therein contained and with intent to defraud the 

United States; 

shall, upon conviction, be punished as a court-martial may direct." 

b. Elements. 

(1) Making a false or fraudulent claim. 

(a) That the accused made a certain claim against the United States or an officer thereof; 

(b) That the claim was false or fraudulent in certain particulars; and 

(c) That the accused then knew that the claim was false or fraudulent in these particulars. 

(2)Presenting for approval or payment a false or fraudulent claim. 

(a) That the accused presented for approval or payment to a certain person in the civil or military 

service of the United States having authority to approve or pay it a certain claim against the United States or an 

officer thereof; 

(b) That the claim was false or fraudulent in certain particulars; and 

(c) That the accused then knew that the claim was false or fraudulent in these particulars. 

(3)Making or using a false writing or other paper in connection with claims. 

(a) That the accused made or used a certain writing or other paper; 

(b) That certain material statements in the writing or other paper were false or fraudulent; 

(c) That the accused then knew the statements were false or fraudulent; and 

(d) That the act of the accused was for the purpose of obtaining the approval, allowance, or 

payment of a certain claim or claims against the United States or an officer thereof. 

(4) False oath in connection with claims. 

(a) That the accused made an oath to a certain fact or to a certain writing or other paper; 

(b) That the oath was false in certain particulars; 

(c) That the accused then knew it was false; and 

s
 (d) That the act was for the purpose of obtaining the approval, allowance, or payment of a certain 

claim or claims against the United States or an officer thereof. 

(5) Forgery of signature in connection with claims. 

(a) That the accused forged or counterfeited the signature of a certain person on a certain writing 

or other paper; and 
(b) That the act was for the purpose of obtaining the approval, allowance, or payment of a certain 

claim against the United States or an officer thereof. 

(6) Using forged signature in connection with claims. 

(a) That the accused used the forged or counterfeited signature of a certain person; 

(b) That the accused then knew that the signature was forged or counterfeited; and 

(c) That the act was for the purpose of obtaining the approval, allowance, or payment of a certain 

claim against the United States or an officer therof. 

(7)Delivering less than amount called for by receipt. 

(a) That the accused had charge, possession, custody, or control of certain money or property of 

the United States furnished or intended for the armed forces thereof; 

(b) That the accused obtained a certificate or receipt for a certain amount or quantity of that money 

or property; 

(c) That for the certificate or receipt the accused knowingly delivered to a certain person having 

authority to receive it an amount or quantity of money or property less than the amount or quantity thereof 

specified in the certificate or receipt; and 

(d) That the undelivered money or property was of a certain value. 

(8) Making or delivering receipt without having full knowledge that it is true. 

(a) That the accused was authorized to make or deliver a paper certifying the receipt from a certain 

person of certain property of the United States furnished or intended for the armed forces thereof; 

(b) That the accused made or delivered to that person a certificate or receipt; 

(c) That the accused made or delivered the certificate without having full knowledge of the ,truth 

of a certain material statement or statements therein; 

(d) That the act was done with intent to defraud the United States; and 

(e) That the property certified as being received was of a certain value. 

c. Explanation. 

(1) Making a false or fraudulent claim. 

(a) Claim. A "claim" is a demand for a transfer of ownership of money or property and does 

not include requisitions for the mere use of property. This article applies only to claims against the United States 

or any officer thereof as such, and not to claims against an officer.of the United States in that officer's private 

capacity. 

(b) Making a claim. Making a claim is a distinct act from presenting it. A claim may be made 

in one place and presented in another. The mere writing of a paper in the form of a claim, without any further 

act to cause the paper to become a demand against the United States or an officer thereof, does not constitute 

making a claim. However, any act placing the claim in official channels constitutes making a claim, even if that 

act does not amount to presenting a claim. It is not necessary that the claim be allowed or paid or that it be 

made by the person to be benefited by the allowance or payment. See also subparagraph (2), below. 

(c) Knowledge. The claim must be made with knowledge of its fictitious or dishonest character. 

This article does not proscribe claims, however groundless they may be, that the maker believes to be valid, or 

claims that are merely made negligently or without ordinary prudence. 

(2) Presenting for approval or payment a false or fraudulent claim. 

(a) False and fraudulent. False and fraudulent claims include not only those containing some 

material false statement, but also claims which the claimant knows to have been paid or for some other reason 

the claimant knows the claimant is not authorized to present or upon which the claimant knows the claimant has 

no right to collect. 
(b) Presenting a claim. The claim must be presented, directly or indirectly, to some person having 

authority to pay it. The person to whom the claim is presented may be identified by position or authority to 

approve the claim, and need not be identified by name in the specification. A false claim may be tacitly presented, 

as when a person who knows that there is no entitlement to certain pay accepts it nevertheless without disclosing 

a disqualification, even though the person may not have made any representation of entitlement to the pay. For 

example, a person cashing a pay check which includes an amount for a dependency allowance, knowing at the 

time that the entitlement no longer exists because of a change in that dependency status, has tacitly presented a 

false claim. See also subparagraph (I), above. 

(3) Making or using a false writing or other paper in connection with claims. The false or fraudulent 

statement must be material, that is, it must have a tendency to mislead governmental officials in their consideration 

or investigation of the claim. The offense of making a writing or other paper known to contain a false or fraudulent 

statement for the purpose of obtaining the approval, allowance, or payment of a claim is complete when the 

writing or paper is made for that purpose, whether or not any use of the paper has been attempted and whether 

or not the claim has been presented. See also the explanation in subparagraph (1) and (2), above. 

(4)False oath in connection with claims. See subparagraphs (1) and (2), above. 

(5) Forgery of signature in connection with claims. Any fraudulent making of the signature of another 

is forging or counterfeiting, whether or not an attempt is made to imitate the handwriting. See paragraph 48(c) 

and subparagraphs (1) and (2), above. 

(6)Delivering less than amount calledfor by receipt. It is immaterial by what means-whether deceit, 

collusion, or otherwise-the accused effected the transaction, or what was the accused's purpose. 

(7)Making or delivering receipt without having full knowledge that it is true. When an officer or other 

person subject to military law is authorized to make or deliver any paper certifying the receipt of any property 

of the United States furnished or intended for the armed forces thereof, and a receipt or other paper is presented 

for signature stating that a certain amount of supplies has been furnished by a certain contractor, it is that person's 

duty before signing the paper to know that the full amount of supplies therein stated to have been furnished has 

in fact been furnished, and that the statements contained in the paper are true. If the person signs the paper with 

intent to defraud the United States and without that knowledge, that person is guilty of a violation of this section 

of the article. If the person signs the paper with knowledge that the full amount was not received, it may be 

inferred that the person intended to defraud the United States. 

d. Lesser included offense. Article 80-attempts 

e. Maximum punishment. 

(1) Article 132(1) and (2). Dishonorable discharge, forfeiture of all pay and allowances, and confinement 

for 5 years. 

(2)Article 132(3) and (4). 

(a) When amount is $100.00 or less. Bad-conduct discharge, forfeiture of all pay and allowances, 

and confinement for 6 months. 

(b) When amount is over $100.00. Dishonorable discharge, forfeiture of all pay and allowances, 

and confinement for 5 years. 

f. Sample specifications. 

(I) Making false claim. 

In that (personal jurisdiction data), did, (aWon board-location) (subject-matter jurisdiction data, if required), on or about 19 -, [by preparing (a voucher) ( ) for 

presentment for approval or payment] [ I, make a claim against the (United States) (finance 

officer at 1 ( ) in the amount of $ for [private property alleged to 

have been (lost) (destroyed) in the military service] [ 1, 

which claim was (false) (fraudulent) (false and fraudulent) in the amount of $ in that 

and was then known by the said to be (false) (fraudulent) (false and fraudulent). 
(2)Presenting false claim. 

In that (personal jurisdiction data), did, (adon board-location) (subject-matter jurisdiction data, if required), on or about 19 -, by presenting (a voucher) ( ) 

to ,an officer of the United States duly authorized to (approve) (pay) (approve and pay) such 

claim, present for (approval) (payment) (approval and payment) a claim against the (United States) (finance 

officer at > ( )in the amount of $ for (services alleged to have 

been rendered to the United States by during ) ( ), which 

claim was (false) (fruadulent) (false and fraudulent) in the amount of $ in that , 

and was then known by the said to be (false) (fraudulent) (false and fraudulent). 

(3) Making or using false writing. 

In that (personal jurisdiction data), for the purpose of obtaining the (approval) (allowance) (payment) (approval, allowance, and payment) of a claim against the United States in the amount of 

$ , did (adon board-location) (subject-matter jurisdiction data, if required), on or about 

19 -,(make) (use) (make and use) a certain (writing) (paper), to w i t : , which said (writing) 

(paper), as hetshe, the said , then knew, contained a statement that . ,which 

statement was (false) (fraudulent) (false and fraudulent) in that , and was then known by the 

said to be (false) (fraudulent) (false and fraudulent). 

(4)Making false oath. 

In that (personal jurisdiction data), for the purpose of obtaining the (approval) (allowance) (payment) (approval, allowance, and payment) of a claim against the United States, did, (adon boardlocation) (subject-matter jurisdiction data, if required), on or about 19 -,make an oath [to the 

fact that ] [to a certain (writing) (paper), to wit: , 

to the effect that 1, which said oath was false in that ,and was then known 

by the said to be false. 

(5) Forging or countetfeiting signature. 

In that (personal jurisdiction data), for the purpose of obtaining the (approval) (allowance) (payment) (approval, allowance, and payment) of a claim against the United States, did (at/on boardlocation) (subject-matter jurisdiction data, if required), on or about 19 -, (forge) (counterfeit) 

(forge and counterfeit) the signature of upon a in words and figures as follows: 

(6) Using forged signature. 

In that , for the purpose of obtaining the (approval) (allowance) (payment) (approval, 

allowance, and payment) of a claim against the United States, did, (at/on boardlocation) (subject-matter jurisdiction data, if required), on or about 19 -, use the signature 

of on a certain (writing) (paper), to wit: ,then knowing such signature to be 

(forged) (counterfeited) (forged and counterfeited). 

(7)Paying amount less than called for by receipt. 

In that (personal jurisdiction data), having (charge) (possession) (custody) (control) of 

(money) ( ) of the United States, (furnished) (intended) (furnished and intended) for the armed 

forces thereof, did, (adon board-location) (subject-matter jurisdiction data, if required), on or about -

19 -, knowingly deliver to , the said L a v i n g authority to receive the 

same, (an amount) ( ), which, as hefshe, ,then knew, was ($ ) 

( ) less than the (amount) ( ) for which hetshe received a (certificate) (receipt) 

from the said 

(8) Making receipt without knowledge of the facts. 

In that (personal jurisdiction data), being authorized to (make) (deliver) (make and 

deliver) a paper certifying the receipt of property of the United States (furnished) (intended) (furnished and 

intended) for the armed forces thereof, did, (adon board-location) (subject-matter jurisdiction data, if required), 
on or about 19 -, without having full knowledge of the statement therein contained and with 

intent to defraud the United States, (make) (deliver) (make and deliver) to , such a writing, in 

words and figures as follows: , the property therein certified as received being of a value of 

(about) $ 

59. Article 133-Conduct unbecoming an officer and gentleman 

a. Text. 

"Any commissioned officer, cadet, or midshipman who is convicted of conduct unbecoming an officer and 

a gentleman shall be punished as a court-martial may direct." 

b. Elements. 

(1) That the accused did or omitted to do certain acts; and 

(2) that, under the circumstances, these acts or omissions constituted conduct unbecoming an officer 

and gentleman. 

c. Explanation. 

(1) Gentleman. As used in this article, "gentleman" includes both male and female commissioned 

officers, cadets, and midshipmen. 

(2) Nature of offense. Conduct violative of this article is action or behavior in an official capacity 

which, in dishonoring or disgracing the person as an officer, seriously compromises the officer's character as a 

gentleman, or action or behavior in an unofficial or private capacity which, in dishonoring or disgracing the 

officer personally, seriously compromises the person's standing as an officer. There are certain moral attributes 

common to the ideal officer and the perfect gentleman, a lack of which is indicated by acts of dishonesty, unfair 

dealing, indecency, indecorum, lawlessness, injustice, or cruelty. Not everyone is or can be expected to meet 

unrealistically high moral standards, but there is a limit of tolerance based on customs of the service and military 

necessity below which the personal standards of an officer, cadet, or midshipman cannot fall without seriously 

compromising the person's standing as an officer, cadet, or midshipman or the person's character as a gentleman. 

This article prohibits conduct by a commissioned officer, cadet, or midshipman which, taking all the circumstances 

into consideration, is thus compromising. This article includes acts made punishable by any other article, provided 

these acts amount to conduct unbecoming an officer and a gentleman. Thus, a commissioned officer who steals 

property violates both this article and Article 121. Whenever the offense charged is the same as a specific offense 

set forth in this Manual, the elements of proof are the same as those set forth in the paragraph which treats that 

specific offense, with the additional requirement that the act or omission constitutes conduct unbecoming an 

officer and gentleman. 

(3)Examples of offenses. Instances of violation of this article include knowingly making a false official 

statement; dishonorable failure to pay a debt; cheating on an exam; opening and reading a letter of another with 

authority; using insulting or defamatory language to another officer in that officer's presence or about that officer 

to other military persons; being drunk and disorderly in a public place; public association with known prostitutes; 

committing or attempting to commit a crime involving moral turpitude; and failing without good cause to support 

the officer's family. 

d. Lesser included offense. Article 80-attempts 

e. Maximum punishment. Dismissal, forfeiture of all pay and allowances, and confinement for a period not 

in excess of that authorized for the most analogous offense for which a punishment is prescribed in this Manual, 

or, if none is prescribed, for 1 year. 

f. Sample specifications. 

(1) Copying or using examination paper. 

In that (personal jurisdiction data), did, (at/on board-location), on or about -

19 -, while undergoing a written examination on the subject of , wrongfully and dishonorably (receive) (request) unauthorized aid by [(using) (copying) the examination paper of 

I [ I. 
(2) Drunk or disorderly. 

In that (personal jurisdiction data), was, (at/on board-location), on or about - 19 -, in a public place, to wit: , (drunk) (disorderly) (drunk and disorderly) while in 

uniform, to the disgrace of the armed forces. 

60. Article 134-General article 

a. Text. 

"Though not specifically mentioned in this chapter, all disorders and neglects to the prejudice of good order 

and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes 

and offenses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance of 

by a general, special, or summary court-martial, according to the nature and degree of the offense, and shall be 

punished at the discretion of that court." 

b. Elements. The proof required for conviction of an offense under Article 134 depends upon the nature of 

the misconduct charged. If the conduct is punished as a crime or offense not capital, the proof must establish 

every element of the crime or offense as required by the applicable law. If the conduct is punished as a disorder 

or neglect to the prejudice of good order and discipline in the armed forces, or of a nature to bring discredit 

upon the armed forces, then the following proof is required: 

(1) That the accused did or failed to do certain acts; and 

(2) That, under the circumstances, the accused's conduct 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. Article 134 makes punishable acts in three categories of offenses not specifically covered 

in any other article of the code. These are referred to as "clauses 1, 2, and 3" of Article 134. Clause 1offenses 

involved disorders and neglects to the prejudice of good order and discipline in the armed forces. Clause 2 

offenses involve conduct of a nature to bring discredit upon the armed forces. Clause 3 offenses involve noncapital 

crimes or offenses which violate Federal law including law made applicable through the Federal Assimilative 

Crimes Act, see subsection (4) below. If any conduct of this nature is specifically made punishable by another 

article of the code, it must be charged as a violation of that article. See subparagraph (5)(a) below. However, 

see paragraph 59c for offenses committed by commissioned officers, cadets, and midshipmen. 

(2) Disorders and neglects to the prejudice of good order and discipline in the armed forces (clause 

1). 

(a) To the prejudice of good order and discipline. "To the prejudice of good order and discipline" 

refers only to acts directly prejudicial to good order and discipline and not to acts which are prejudicial only in 

a remote or indirect sense. Almost any irregular or improper act on the part of a member of the military service 

could be regarded as prejudicial in some indirect or remote sense; however, this article does not include these 

distant effects. It is confined to cases in which the prejudice is reasonably direct and palpable. An act in violation 

of a local civil law or of a foreign law may be punished if it constitutes a disorder or neglect to the prejudice 

of good order and discipline in the armed forces. However, see R.C.M. 203 concerning subject-matter jurisdiction. 

(b) Breach of custom of the sewice. A breach of a custom of the service may result in a violation 

of clause 1 of Article 134. In its legal sense, "custom" means more than a method of procedure or a mode of 

conduct or behavior which is merely of frequent or usual occurrence. Custom arises out of long established 

practices which by common usage have attained the force of law in the military or other community affected by 

them. No custom may be contrary to existing law or regulation. A custom which has not been adopted by existing 

statute or regulation ceases to exist when its observance has been generally abandoned. Many customs of the 

service are now set forth in regulations of the various armed forces. Violations of these customs should be 

charged under Article 92 as violations of the regulations in which they appear if the regulation is punitive. See 

paragraph 16c. 

(3) Conduct of a nature to bring discredit upon the armed forces (clause 2). "Discredit" means to 

injure the reputation of. This clause of Article 134 makes punishable conduct which has a tendency to bring the 
service into disrepute or which tends to lower it in public esteem. Acts in violation of a local civil law or a 

foreign law may be punished if they are of a nature to bring discredit upon the armed forces. However, see 

R.C.M. 203 concerning subject-matter jurisdiction. 

(4) Crimes and offenses not capital (clause 3). 

(a) In general. State and foreign laws are not included within the crimes and offenses not capital 

referred to in this clause of Article 134 and violations thereof may not be prosecuted as such except when State 

law becomes Federal law of local application under section 13 of title 18 of the United States Code (Federal 

Assimilative Crimes Act-see subparagraph (4)(c) below). For the purpose of court-martial jurisdiction, the laws 

which may be applied under clause 3 of Article 134 are divided into two groups: crimes and offenses of unlimited 

application (crimes which are punishable regardless where they may be committed), and crimes and offenses of 

local application (crimes which are punishable only if committed in areas of federal jurisdiction). 

(b) Crimes and offenses of unlimited application. Certain noncapital crimes and offenses prohibited 

by the United States Code are made applicable under clause 3 of Article 134 to all persons subject to the code 

regardless where the wrongful act or omission occurred. Examples include: counterfeiting (18 U.S.C. 5 471), 

and various frauds against the Government not covered by Article 132. 

(c) Crimes and offenses of local application. 

(i) In general. A person subject to the code may not be punished under clause 3 of Article 

134 for an offense that occurred in a place where the law in question did not apply. For example, a person may 

not be punished under clause 3 of Article 134 when the act occurred in a foreign country merely because that 

act would have been an offense under the United States Code had the act occurred in the United States. Regardless 

where committed, such an act might be punishable under clauses 1 or 2 of Article 134. There are two types of 

congressional enactments of local application: specific federal statutes (defining particular crimes), and a general 

federal statute, the Federal Assimilative Crimes Act (which adopts certain state criminal laws). 

is an adoption by Congress of state criminal laws for areas of exclusive or concurrent federal jurisdiction, provided 

federal criminal law, including the UCMJ, has not defined an applicable offense for the misconduct committed. 

The Act applies to state laws validly existing at the time of the offense without regard to when these laws were 

enacted, whether before or after passage of the Act, and whether before or after the acquisition of the land where 

the offense was committed. For example, if a person committed an act on a military installation in the United 

States at a certain location over which the United States had either exclusive or concurrent jurisdiction, and it 

was not an offense specifically defined by federal law (including the UCMJ), that person could be punished for 

that act by a court-martial if it was a violation of a noncapital offense under the law of the State where the 

military installation was located. This is possible because the Act adopts the criminal law of the state wherein 

the military installation is located and applies it as though it were federal law. The text of the Act is as follows: 

Whoever within or upon any of the places now existing or hereafter reserved or acquired as provided in 

section 7 of this title, is guilty of any act or omission which, although not made punishable by any enactment 

of Congress, would be punishable if committed or omitted within the jurisdiction of the State, Temtory, 

Possession, or District in which such place is situated, by the laws thereof in force at the time of such act or 

omission, shall be guilty of a like offense and subject to a like punishment. 

(5)Limitations on Article 134. 

(a) Preemption doctrine. The preemption doctrine prohibits application of Article 134 to conduct 

covered by Articles 80 through 132. For example, larceny is covered in Article 121, and if an element of that 

offense is lacking-for example, intent-there can be no larceny or larceny-type offense, either under Article 

121 or, because of preemption, under Article 134. Article 134 cannot be used to create a new kind of larceny 

offense, one without the required intent, where Congress has already set the minimum requirements for such an 

offense in Article 121. 

(b) Capital offense. A capital offense may not be tried under Article 134. 

(6)Drafting specifications for Article 134 offenses. 

(a) In general. A specification alleging a violation of Article 134 need not expressly allege that 

(ii) Federal Assimilative Crimes Act (18 U.S.C. ,$ 13). The Federal Assimilative Crimes Act 
the conduct was "a disorder or neglect," that it was "of a nature to bring discredit upon the armed forces," or 

that it constituted "a crime or offense not capital." The same conduct may constitute a disorder or neglect to 

the prejudice of good order and discipline in the armed forces and at the same time be of a nature to bring 

discredit upon the armed forces. 

(b) Specifications under clause 3. When alleging a clause 3 violation, each element of the federal 

or assimilated statute must be alleged expressly or by necessary implication. In addition, the federal or assimilated 

statute should be identified. 

(c) Specifications for clause I or 2 offenses not listed. If conduct by an accused does not fall 

under any of the listed offenses for violations of Article 134 in this Manual (paragraphs 61 through 113 of this 

Part)a specification not listed in this Manual may be used to allege the offense. 

61. Article 134 (Abusing public animal) 

a. Text. See paragraph 60. 

b. Elements. 

(1) That the accused wrongfully abused a certain public animal; and 

(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. 

c. Explanation. A public animal is any animal owned or used by the United States; any animal owned or 

used by a local or State government in the United States, its temtories or possessions; or any wild animal located 

on any public lands in the United States, its territories or possessions. This would include, for example, drug 

detector dogs used by the government. 

d. Lesser included offense. Article 80-attempts 

e. Maximum punishment. Confinement for 3 months and forfeiture of two-thirds pay per month for 3 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 (kick a public drug detector dog in the 

nose) ( 1. 

62. Article 134 (Adultery) 

a. Text. See paragraph 60. 

b. Elements. 

(1) That the accused wrongfully had sexual intercourse with a certain person; 

(2) That, at the time, the accused or the other person was married to someone else; and 

(3) 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. Adultery is not a lesser included offense of rape. 

d. Lesser included offense. Article 80-attempts 

e. Maximum punishment. Dishonorable discharge, forfeiture of all pay and allowances, and confinement 

for 1 year. 

f. Sample specification. 

In that (personal jurisdiction data), (a married manla married woman), did, (at/on 

board-location) (subject-matter jurisdiction data, if required), on or about 19 -, wrongfully 

have sexual intercourse with ,a (married) (womanlman) not (his wife) (her husband). 
63. Article 134 (Assault-indecent) 

a. Text. See paragraph 60. 

b. Elements. 

(1) That the accused assaulted a certain person not the spouse of the accused in a certain manner; 

(2) That the acts were done with the intent to gratify the lust or sexual desires of the accused; and 

(3) 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. See paragraph 54c for a discussion of assault. Specific intent is an element of this offense. 

For a definition of "indecent", see paragraph 90c. 

d. Lesser included offenses. 

(1) Article 128-assault consummated by a battery; assault 

(2) Article 134-indecent acts 

(3) Article 80-attempts 

e. Maximum punishment. Dishonorable discharge, forfeiture of all pay and allowances, and confinement 

for 5 years. 

f. Sample specification. 

In that (personal jurisdiction data), did (atlon board-location), (subject-matter jurisdiction data, if required), on or about 19 -,commit an indecent assault upon 

a person not hislher wifelhusband by , with intent to gratify histher (lust) (sexual desires). 

64. Article 134 (Assault-with intent to commit murder, voluntary manslaughter, rape, robbery, 

sodomy, arson, burglary, or housebreaking) 

a. Text. See paragraph 60. 

b. Elements. 

(I) That the accused assaulted a certain person; 

(2) That, at the time of the assault, the accused intended to kill (as required for murder or voluntary 

manslaughter) or intended to commit rape, robbery, sodomy, arson, burglary, or housebreaking; and 

(3) 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. An assault with intent to commit any of the offenses mentioned above is not necessarily 

the equivalent of an attempt to commit the intended offense, for an assault can be committed with intent to 

commit an offense without achieving that proximity to consummation of an intended offense which is essential 

to an attempt. See paragraph 4. 

(2) Assault with intent to murder. Assault with intent to commit murder is assault with specific intent 

to kill. Actual infliction of injury is not necessary. To constitute an assault with intent to murder with a firearm, 

it is not necessary that the weapon be discharged. When the intent to kill exists, the fact that for some unknown 

reason the actual consummation of the murder by the means employed is impossible is not a defense if the means 

are apparently adapted to the end in view. The intent to kill need not be directed against the person assaulted if 

the assault is committed with intent to kill some person. For example, if a person, intending to kill Jones, shoots 

Smith, mistaking Smith for Jones, that person is guilty of assaulting Smith with intent to murder. If a person 

fires into a group with intent to kill anyone in the group, that person is guilty of an assault with intent to murder 

each member of the group. 

(3) Assault with intent to commit voluntary manslaughter. Assault with intent to commit voluntary 
manslaughter is an assault committed with a specific intent to kill under such circumstances that, if death resulted 

therefrom, the offense of voluntary manslaughter would have been committed. There can be no assault with 

intent to commit involuntary manslaughter, for it is not a crime capable of being intentionally committed. 

(4) Assault with intent to commit rape. In assault with intent to commit rape, the accused must have 

intended to overcome any resistance by force, and to complete the offense. Any lesser intent will not suffice. 

No actual touching is necessary, but indecent advances and importunities, however earnest, not accompanied 

by such an intent, do not constitute this offense, nor do mere preparations to rape not amounting to an assault. 

Once an assault with intent to commit rape is made, it is no defense that the accused voluntarily desisted. 

(5) Assault with intent to rob. For assault with intent to rob, the fact that the accused intended to take 

money and that the person the accused intended to rob had none is not a defense. 

(6)Assault with intent to commit sodomy. Assault with intent to commit sodomy is an assault against 

a human being and must be committed with a specific intent to commit sodomy. Any lesser intent, or different 

intent, will not suffice. 

d. Lesser included offenses. 

(1) Assault with intent to murder. 

(a) Article 128-assault; assault consummated by a battery; assault with a dangerous weapon; 

assault intentionally inflicting grievous bodily harm 

(b) Article 134-assault with intent to commit voluntary manslaughter; willful or careless discharge 

of a firearm 

(2) Assault with intent to commit voluntary manslaughter. 

(a) Article 128-assault; assault consummated by a battery; assault with a dangerous weapon; 

assault intentionally inflicting grievous bodily harm 

(b) Article 134-willful or careless discharge of a firearm 

(3) Assault with intent to commit rape or sodomy. 

(a) Article 128-assault; assault consummated by a battery; assault with a dangerous weapon 

(b) Article 134-indecent assault 

(4) Assault with intent to commit burglary. 

(a) Article 128-assault; assault consummated by a battery; assault with a dangerous weapon 

(b) Article 134-assault with intent to commit housebreaking 

(5) Assault with intent to commit robbery, arson, or housebreaking. Article 128-

assault; assault consummated by a battery; assault with a dangerous weapon 

e. Maximum punishment. 

(1) Assault with intent to commit murder or rape. Dishonorable discharge, forfeiture of all pay and 

allowances, and confinement for 20 years. 

(2) Assault with intent to commit voluntary manslaughter, robbery, sodomy, arson, or burglary. 

Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 10 years. 

(3) Assault with intent to commit housebreaking. Dishonorable discharge, forfeiture of all pay and 

allowances, and confinement for 5 years. 

f. Sample specijkation. 

In that (personal jurisdiction data), did, (atlon board-location) (subject-matter jurisdiction data, if required), on or about 19 -,with intent to commit (murder) (voluntary man- 
slaughter) (rape) (robbery) (sodomy) (arson) (burglary) (housebreaking), commit an assault upon 

by 

65. Article 134 (Bigamy) 

a. Text. See paragraph 60. 

b. Elements. 

(1) That the accused had a living lawful spouse; 

(2) That while having such spouse the accused wrongfully married another person; and 

(3) 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. Bigamy is contracting another marriage by one who already has a living lawful spouse. If 

a prior marriage was void, it will have created no status of "lawful spouse." However, if it was only voidable 

and has not been voided by a competent court, this is no defense. A belief that a prior marriage has been 

terminated by divorce, death of the other spouse, or otherwise, constitutes a defense only if the belief was 

reasonable. See R.C.M. 915(1)(1). 

d. Lesser included offense. Article 80-attempts 

e. Maximum punishment. Dishonorable discharge, forfeiture of all pay and allowances, and confinement 

for 2 years. 

f. Sample specification. 

In that (personal jurisdiction data), did, at ,(subject-matter jurisdiction data, if required), on or about 19 -, wrongfully marry , having 

at the time of his/her said maniage to Rlawful wifehusband then living, to wit: 

66. Article 134 (Bribery and graft) 

a. Text. See paragraph 60. 

b. Elements. 

(1) Asking, accepting, or receiving. 

(a) That the accused wrongfully asked, accepted, or received a thing of value from a certain person 

or organization; 

(b) That the accused then occupied a certain official position or had certain official duties; 

(c) That the accused asked, accepted, or received this thing of value (with the intent to have the 

accused's decision or action influenced with respect to a certain matter)" (as compensation for or in recognition 

of services rendered, to be rendered, or both, by the accused in relation to a certain matter)**; 

(d) That this certain matter was an official matter in which the United States was and is interested; 

and 

(e) 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: This element is required for bribery.] 


[**Note: This element is required for graft.] 


(2) Promising, offering, or giving. 

(a) That the accused wrongfully promised, offered, or gave a thing of value to a certain person; 

(b) That this person then occupied a certain official position or had certain official duties; 
(c) That this thing of value was promised, offered, or given (with the intent to influence the 

decision or action of this person)* (as compensation for or in recognition of services rendered, to be rendered, 

or both, by this person in relation to a certain matter)**; 

(d) That this matter was an official matter in which the United States was and is interested; and 

(e) 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: This element is required for bribery.] 


[**Note: This element is required for graft.] 


c. Explanation. Bribery requires an intent to influence or be influenced in an official matter; graft does not. 

Graft involves compensation for services performed in an official matter when no compensation is due. 

d. Lesser included offenses. 

(1) Bribery. Article 134-graft 

(2) Bribery and graft. Article 80-attempts 

e. Maximum punishment. 

(1) Bribery. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years. 

(2) Graft. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 3 years. 

f. Sample specifications. 

(1) Asking, accepting, or receiving. 

In that (personal jurisdiction data), being at the time (a contracting officer for -) 

(the personnel officer of ) ( ), did atlon board-location) (subject-matter 

jurisdiction data, if required), on or about 19 -, wrongfully (ask) (accept) (receive) from 

, (a contracting company) engaged in ( ), (the sum of 

$ [ ,of a value of (about) $ 1( ), [with intent to have 

hislher (decision) (action) influenced with respect to*] [(as compensation for) (in recognition of) service (rendered) 

(to be rendered) (rendered and to be rendered) by hirnlher the said in relation to**] an official 

matter in which the United States was and is interested, to wit: (the purchasing of military supplies from -) 

(the transfer of to duty with 1 ( ). 

[ *Note: This language should be used to allege bribery.] 

[**Note: This language should be used to allege graft.] 

(2) Promising, offering, or giving. 

In that (personal jurisdiction data), did (atlon board-location) (subject-matter jurisdiction data, if required), on or about 19 -,wrongfully (promise) (offer) (give) to , 

(hislher commanding officer) (the claims officer of 1 ( 1, 

(the sum of $ [ ,of a value of (about) $ 1 ( , [with 

intent to influence the (decision) (action) of the said with respect to*] [(as compensation for) 

(in recognition of) services (rendered) (to be rendered) (rendered and to be rendered) by the said 

in relation to**] an official matter in which the United States was and is interested, to wit: (the granting of leave 

to ) (the processing of a claim against the United States in favor of 

( ). 

[ *Note: This language should be used to allege bribery.] 

[**Note: This language should be used to allege graft.] 

67. Article 134 (Burning with intent to defraud) 

a. Text. See paragraph 60. 

1 
b. Elements. 

(1) That the accused willfully and maliciously burned or set fire to certain property owned by a certain 

person or organization; 

(2) That such burning or setting on fire was with the intent to defraud a certain person or organization; 

and 

(3) 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. See paragraph 49c(14) for a discussion of "intent to defraud." 

d. Lesser included ofSense. Article 80-attempts 

e. Maximum punishment. Dishonorable discharge, forfeiture of all pay and allowances, and confinement 

for 10 years. 

f. Sample specification. 

In that (personal jurisdiction data), did, (at/on board-location) (subject-matter jurisdiction data, if required), on or about 1 9 -, willfully and maliciously (bum) (set fire to) (a 

dwelling) (a barn) (an automobile), the property of ,with intent to defraud (the insurer thereof, 

to wit: 1 ( 1. 

68. Article 134(Check, worthless, making and uttering-by dishonorably failing to maintain funds) 

a. Text. See paragraph 60. 

b. Elements. 

(1) That the accused made and uttered a certain check; 

(2) That the check was made and uttered for the purchase of a certain thing, in payment of a debt, or 

for a certain purpose; 

(3) That the accused subsequently failed to place or maintain sufficient funds in or credit with the 

drawee bank for payment of the check in full upon its presentment for payment; 

(4) That this failure was dishonorable; and 

(5) 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. This offense differs from an Article 123a offense (paragraph 49) in that there need be no 

intent to defraud or deceive at the time of making, drawing, uttering, or delivery, and that the accused need not 

know at that time that the accused did not or would not have sufficient funds for payment. The gist of the offense 

lies in the conduct of the accused after uttering the instrument. Mere negligence in maintaining one's bank 

balance is insufficient for this offense, for the accused's conduct must reflect bad faith or gross indifference in 

this regard. As in the offense of dishonorable failure to pay debts (see paragraph 71), dishonorable conduct of 

the accused is necessary, and the other principles discussed in paragraph 71 also apply here. 

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 -,make and utter to a certain check, 

in words and figures as follows, to wit: , (for the purchase of ) (in payment 

of a debt) (for the purpose of ), and did thereafter dishonorably fail to (place) (maintain) 

sufficient funds in the Bank for payment of such check in full upon its presentment for payment. 
69. Article 134 (Cohabitation, wrongful) 

a. Text. See paragraph 60. 

b. Elements. 

(1) That, during a certain period of time, the accused and another person openly and publicly lived 

together as husband and wife, holding themselves out as such; 

(2) That the other person was not the spouse of the accused; 

(3) 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. This offense differs from adultery (see paragraph 62) in that it is not necessary to prove 

that one of the partners was manied or that sexual intercourse took place. Public knowledge of the wrongfulness 

of the relationship is not required, but the partners must behave in a manner, as exhibited by conduct or language, 

that leads others to believe that a marital relationship exists. 

d. Lesser included oflense. Article 80-attempts 

e. Maximum punishment. Confinement for 4 months and forfeiture of two-thirds pay per month for 4 months. 

f. Sample specification. 

In that (personal jurisdiction data), did, (atton board-location) (subject-matter jurisdiction data, if required), from about 19 -, to about 19 -,wrongfully cohabit with 

,(a woman not his wife) (a man not her husband). 

70. Article 134 (Correctional custody-offenses against) 

a. Text. See paragraph 60. 

b. Elements. 

(1) Escape from correctional custody. 

(a) That the accused was placed in correctional custody by a person authorized to do so; 

(b) That, while in such correctional custody, the accused was under physical restraint; 

(c) That the accused freed himself or herself from the physical restraint of this correctional custody 

before being released therefrom by proper authority; and 

(d) 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. 

(2) Breach of correctional custody. 

(a) That the accused was placed in correctional custody by a person authorized to do so; 

(b) That, while in correctional custody, a certain restraint was imposed upon the accused; 

(c) That the accused went beyond the limits of the restraint imposed before having been released 

from the correctional custody or relieved of the restraint by proper authority; and 

(d) 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) Escape from correctional custody. Escape from correctional custody is the act of a person undergoing 

the punishment of correctional custody pursuant to Article 15, who, before being set at liberty by proper authority, 

casts off any physical restraint imposed by the custodian or by the place or conditions of custody. 

(2) Breach of correctional custody. Breach of restraint during correctional custody is the act of a person 
undergoing the punishment who, in the absence of physical restraint imposed by a custodian or by the place or 

conditions of custody, breaches any form of restraint imposed during this period. 

(3) Authority to impose correctional custody. See Part V concerning who may impose correctional 

custody. Whether the status of a person authorized that person to impose correctional custody is a question of 

law to be decided by the military judge. Whether the person who imposed correctional custody had such a status 

is a question of fact to be decided by the factfinder. 

d. Lesser included offense. Article 80-attempts 

e. Maximum punishment. 

(1) Escape from correctional custody. Dishonorable discharge, forfeiture of all pay and allowances, 

and confinement for 1 year. 

(2) Breach of correctional custody. Bad-conduct discharge, forfeiture of all pay and allowances, and 

confinement for 6 months. 

f. Sample specifications. 

(1) Escape from correctional custody. 

In that (personal jurisdiction data), while undergoing the punishment of correctional 

custody imposed by a person authorized to do so, did, (atlon board-location), on or about 

19 -,escape from correctional custody. 

(2)Breach of correctional custody. 

In that (personal jurisdiction data), while duly undergoing the punishment of correctional custody imposed by a person authorized to do so, did, (atlon board-location), on or about 

19 -,breach the restraint imposed thereunder by 

71. Article 134 (Debt, dishonorably failing to pay) 

a. Text. See paragraph 60. 

b. Elements. 

(1) That the accused was indebted to a certain person or entity in a certain sum; 

(2) That this debt became due and payable on or about a certain date; 

(3) That while the debt was still due and payable the accused dishonorably failed to pay this debt; and 

(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. More than negligence in nonpayment is necessary. The failure to pay must be characterized 

by deceit, evasion, false promises, or other distinctly culpable circumstances indicating a deliberate nonpayment 

or grossly indifferent attitude toward one's just obligations. For a debt to form the basis of this offense, the 

accused must not have had a defense, or an equivalent offset or counterclaim, either in fact or according to the 

accused's belief, at the time alleged. The offense should not be charged if there was a genuine dispute between 

the parties as to the facts or law relating to the debt which would affect the obligation of the accused to pay. 

The offense is not committed if the creditor or creditors involved are satisfied with the conduct of the debtor 

with respect to payment. The length of the period of nonpayment and any denial of indebtedness which the 

accused may have made may tend to prove that the accused's conduct was dishonorable, but the court-martial 

may convict only if it finds from all of the evidence that the conduct was in fact dishonorable. 

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), being indebted to in the sum of 
$ for ,which amount became due and payable (on) (about) (on or about) -

19 -,did (at/on board-location) (subject-matter jurisdiction data, if required), from 19-, 

to 19 -,dishonorably fail to pay said debt. 

72. Article 134 (Disloyal statements) 

a. Text. See paragraph 60. 

b. Elements. 

(1) That the accused made a certain statement; 

(2) That the statement was communicated to another person; 

(3) That the statement was disloyal to the United States; 

(4) That the statement was made with the intent to promote disloyalty or disaffection toward the United 

States by any member of the armed forces or to interfere with or impair the loyalty to the United States or good 

order and discipline of any member of the armed forces; and 

(5) 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. Certain disloyal statements by military personnel may not constitute an offense under 18 

U.S.C. 90 2385, 2387, and 2388, but may, under the circumstances, be punishable under this article. Examples 

include praising the enemy, attacking the war aims of the United States, or denouncing our form of government 

with the intent to promote disloyalty or disaffection among members of the armed services. A declaration of 

personal belief can amount to a disloyal statement if it disavows allegiance owed to the United States by the 

declarant. The disloyalty involved for this offense must be to the United States as a political entity and not 

merely to a department or other agency that is a part of its administration. 

d. Lesser included offense. Article 80-attempts 

e. Maximum punishment. Dishonorable discharge, forfeiture of all pay and allowances, and confinement 

for 3 years. 

f. Sample specijication. 

In that (personal jurisdiction data), did, (at/on board-location), on or about -

19 -, with intent to [promote (disloyalty) (disaffection) (disloyalty and disaffection)] [(interfere with) 

(impair) the (loyalty) (good order and discipline)] of any member of the armed forces of the United States 

communicate to ,the following statement, to wit: " ,"or words to that effect, 

which statement was disloyal to the United States. 

73. Article 134 (Disorderly conduct, drunkenness) 

a. Text. See paragraph 60. 

b. Elements. 

(1) That the accused was drunk, disorderly, or drunk and disorderly on board ship or in some other 

place; and 

(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. 

c. Explanation. 

(1) Drunkenness. See paragraph 35c(3) for a discussion of intoxication. 

(2) Disorderly. Disorderly conduct is conduct of such a nature as to affect the peace and quiet of 

persons who may witness it and who may be disturbed or provoked to resentment thereby. It includes conduct 

that endangers public morals or outrages public decency and any disturbance of a contentious or turbulent 

character. 
(3) Service discrediting. Unlike most offenses under Article 134, 'kconduct of a nature to bring discredit 

upon the armed forces" must be included in the specification and proved in order to authorize the higher maximum 

punishment when the offense is service discrediting. 

d. Lesser included oftiense. Article 80-attempts 

e. Maximum punishment. 

(1) Disorderly conduct. 

(a) Under such circumstances as to bring discredit upon the military service. Confinement for 4 

months and forfeiture of two-thirds pay per month for 4 months. 

(b) Other cases. Confinement for 1 month and forfeiture of two-thirds pay per month for 1 month. 

(2) Drunkenness. 

(a) Aboard ship or under such circumstances as to bring discredit upon the military service. 

Confinement for 3 months and forfeiture of two-thirds pay per month for 3 months. 

(b) Other cases. Confinement for 1 month and forfeiture of two-thirds pay per month for 1 month. 

(3) Drunk and disorderly. 

(a) Aboard ship. Bad-conduct discharge, forfeiture of all pay and allowances, and confinement 

for 6 months. 

(b) Under such circumstances as to bring discredit upon the military service. Confinement for 6 

months and forfeiture of two-thirds pay per month for 6 months. 

(c) Other cases. Confinement for 3 months and forfeiture of two-thirds pay per month for 3 

months. 

f. Sample specification. 

In that (personal jurisdiction data), was, (atJon board-location) (subject-matter jurisdiction data, if required), on or about 19 -,(drunk) (disorderly) (drunk and disorderly) [which 

conduct was of a nature to bring discredit upon the armed forces]. 

74. Article 134 (Drinking liquor with prisoner) 

a. Text. See paragraph 60. 

b. Elements. 

(1) That the accused was a sentinel or in another assignment in charge of a prisoner; 

(2) That, while in such capacity, the accused unlawfully drank intoxicating liquor with a prisoner; 

(3) That the prisoner was under the charge of the accused; 

(4) That the accused knew that the prisoner was a prisoner under the accused's charge; and 

(5) 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) Prisoner. A "prisoner" is a person who is in confinement or custody imposed under R.C.M. 302, 

304, or 305, or under sentence of a court-martial who has not been set free by proper authority. 

(2)Liquor. For the purposes of this offense, "liquor" includes any alcoholic beverage. 

d. Lesser included offense. Article 80-attempts 

e. Maximum punishment. Confinement for 3 months and forfeiture of two-thirds pay per month for 3 months. 

f. Sample specijication. 

In that (personal jurisdiction data), a (sentinel) ( ) in charge of 
prisoners, did, (atlon board-location), on or about 19 -, unlawfully drink intoxicating liquor 

with , a prisoner under hislher charge. 

75. Article 134 (Drunk prisoner) 

a. Text. See paragraph 60. 

b. Elements. 

(1) That the accused was a prisoner; 

(2) That while in such status the accused was found drunk; and 

(3) 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) Prisoner. See paragraph 74c(l). 

(2) Drunk. See paragraph 35c(3) for a discussion of intoxication. 

d. Lesser included oflenses. None. 

e. Maximum punishment. Confinement for 3 months and forfeiture of two-thirds pay per month for 3 months. 

f. Sample spec$cation. 

In that (personal jurisdiction data), a prisoner, was (atlon board-location), on or 

about 19 -, found drunk. 

76. Article 134 (Drunkenness-incapacitation for performance of duties through prior wrongful 

indulgence in intoxicating liquor or any drug) 

a. Text. See paragraph 60. 

b. Elements. 

(1) That the accused had certain duties to perform; 

(2) That the accused was incapacitated for the groper performance of such duties; 

(3) That such incapacitation was the result of previous wrongful indulgence in intoxicating liquor or 

any drug; and 

(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 of bring discredit upon the armed forces. 

c. Explanation. 

(1) Liquor. See paragraph 74c(2). 

(2) Incapacitated. Incapacitated means unfit or unable to perform properly. A person is "unfit" to 

perform duties if at the time the duties are to commence, the person is drunk, even though physically able to 

perform the duties. Illness resulting from previous overindulgence is an example of being "unable" to perform 

duties. For a discussion of "drunk" see paragraph 35c(3). 

(3)AfJirmative defense. The accused's lack of knowledge of the duties assigned is an affirmative defense 

to this offense. 

d. Lesser included offense. Article 80-attempts 

e. Maximum punishment. Confinement for 3 months and forfeiture of two-thirds pay per month for 3 months. 

f. Sample specijication. 

In that (personal jurisdiction data), was, (atton board-location), on or about- 
19 -,as a result of wrongful previous overindulgence in intoxicating liquor or drugs, incapacitated for the 

proper performance of histher duties. 

77. Article 134 (False or unauthorized pass offenses) 

a. Text. See paragraph 60. 

b. Elements. 

(1) Wrongful making, altering, counterfeiting, or tampering with a military or oficial pass, permit, 

discharge certificate, or identification card. 

(a) That the accused wrongfully and falsely made, altered, counterfeited, or tampered with a 

certain military or official pass, permit, discharge certificate, or identification card; and 

(b) 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. 

(2) Wrongful sale, gift, loan, or disposition of a military or oficial pass, permit, discharge certificate, 

or identification card. 

(a) That the accused wrongfully sold, gave, loaned, or disposed of a certain military or official 

pass, permit, discharge certificate, or identification card; 

(b) That the pass, permit, discharge certificate, or identification card was false or unauthorized; 

(c) That the accused then knew that the pass, permit, discharge certificate, or identification card 

was false or unauthorized; and 

(d) 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. 

(3) Wrongful use or possession of a false or unauthorized military or oficial pass, permit, discharge 

certijicate, or identification card. 

(a) That the accused wrongfully used or possessed a certain military or official pass, permit, 

discharge certificate, or identification card; 

(b) That the pass, permit, discharge certificate, or identification card was false or unauthorized; 

(c) That the accused then knew that the pass, permit, discharge certificate, or identification card 

was false or unauthorized; and 

(d) 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: When there is intent to defraud or deceive, add the following element after (c) above: That the accused 

used or possessed the pass, permit, discharge certificate, or identification card with an intent to defraud or deceive.] 

c. Explanation. 

(1) In general. "Military or official pass, permit, discharge certificate, or identification card" includes, 

as well as the more usual forms of these documents, all documents issued by any governmental agency for the 

purpose of identification and copies thereof. 

(2) Intent to defraud or deceive. See paragraph 49c(14) and (15). 

d. Lesser included offenses. 

(1) Wrongful use or possession of false or unauthorized military or oficial pass, permit, discharge 

certificate, or identijkation card, with the intent to defraud or deceive. Article 134-same offenses, except 

without the intent to defraud or deceive 

(2) All false or unauthorized pass offenses. Article 80-attempts 

e. Maximum punishment. 
(1) Possessing or using with intent to defraud or deceive, or making, altering, counterfeiting, tampering 

with, or selling. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 3 years. 

(2) All other cases. Bad-conduct discharge, forfeiture of all pay and allowances, and confinement for 

6 months. 

f. Sample specifications 

(1) Wrongful making, altering, counterfeiting, or tampering with military or ofSicial pass, permit, 

discharge certificate, or identification card. 

In that (personal jurisdiction data), did, (at!on board-location) (subject-matter jurisdiction data, if required), on or about 19 -, wrongfully and falsely (make) (forge) (alter by 

) (counterfeit) (tamper with by ) (a certain instrument purporting to be), (a) 

(an) (another's) (naval) (military) (official) (pass) (permit) (discharge certificate) (identification card) 

( ) in words and figures as follows: 

(2) Wrongful sale, gift, loan, or disposition of a military or oficial pass, permit, discharge certijicate, 

or identificatio card. 

In that (personal jurisdiction data), did, (atlon board-location) (subject-matter jurisdiction data, if required), on or about 19 -, wrongfully (sell to ) (give to 

) (loan to ) (dispose of by ) (a certain instrument purporting 

to be) (a) (an) (another's) (naval) (military) (official) (pass) (permit) (discharge certificate) (identification card) 

( ) in words and figures as follows: ,helshe, the said ,then 

well knowing the same to be (false) (unauthorized). 

(3) Wrongful use or possession of a false or unauthorized military or official pass, permit, discharge 

certificate, or identification card. 

In that (personal jurisdiction data), did (at/on board-location) (subject-matter jurisdiction data, if required), on or about 19 -,wrongfully (use) (possess) [with intent to (defraud) 

(deceive)] (a certain instrument purporting to be) (a) (an) (another's) (naval) (military) (official) (pass) (permit) 

(discharge certificate) (identification card) ( ), helshe, the said , then well 

knowing the same to be (false) (unauthorized). 

78. Article 134 (False pretenses, obtaining services under) 

a. Text. See paragraph 60. 

b. Elements. 

(1) That the accused wrongfully obtained certain services; 

(2) That the obtaining was done by using false pretenses; 

(3) That the accused then knew of the falsity of the pretenses; 

(4) That the obtaining was with intent to defraud; 

(5) That the services were of a certain value; and 

(6) 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. This offense is similar to the offenses of larceny and wrongful appropriation by false 

pretenses, except that the object of the obtaining is services (for example, telephone service) rather than money, 

personal property, or articles of value of any kind as under Article 121. See paragraph 46c. See paragraph 49c(14) 

for a definition of "intent to defraud." 

d. Lesser included offense. Article 80-attempts 

e. Maximum punishment. Obtaining services under false pretenses. 
(1) Of a value of $100.00 or less. Bad-conduct discharge, forfeiture of all pay and allowances, and 

confinement for 6 months. 

(2) Of a value of more than $100.00. 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) (subject-matter jurisdiction data, if required), on or about 19 -, with intent to defraud, falsely pretend to -

that , then knowing that the pretenses were false, and by means thereof did wrongfully obtain 

from services, of a value of (about) $ ,to wit: 

79. Article 134 (False swearing) 

a. Text. See paragraph 60. 

b. Elements. 

(1) That the accused took an oath or equivalent; 

(2) That the oath or equivalent was administered to the accused in a matter in which such oath or 

equivalent was required or authorized by law; 

(3) That the oath or equivalent was administered by a person having having authority to do so; 

(4) That upor! this oath or equivalent the accused made or subscribed a certain statement; 

(5) That the statement was false; 

(6) That the accused did not then believe the statement to be true; and 

(7) 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) Nature of offense. False swearing is the making under a lawful oath or equivalent of any false 

statement, oral or written, not believing the statement to be true. It does not include such statements made in a 

judicial proceeding or course of justice, as these are under Article 131, perjury (see paragraph 57). Unlike a 

false official statement under Article 107 (see paragraph 31) there is no requirement that the statement be made 

with an intent to deceive or that the statement be official. See paragraphs 57c(l), c(2)(c), and c(2)(e) concerning 

"judicial proceeding or course of justice," proof of the falsity, and the belief of the accused, respectively. 

(2) Oath. See Article 136 and R.C.M. 807 as to the authority to administer oaths, and see Section IX 

of Part 111 (Military Rules of Evidence) concerning proof of the signatures of persons authorized to administer 

oaths. An oath includes an affirmation when authorized in lieu of an oath. 

d. Lesser included offense. Article 80-attempts 

e. Maximum punishment. Dishonorable discharge, forfeiture of all pay and allowances, and confinement 

for 3 years. 

f. Sample specijication. 

In that (personal jurisdiction data), did, (at/on board-location) (subject-matter jurisdiction data, if required), on or about 19 -, (in an affidavit) (in ), 

wrongfully and unlawfully (make) (subscribe) under lawful (oath) (affirmation) a false statement in substance 

as follows: , which statement helshe did not then believe to be true. 

80. Article 134 (Firearm, discharging-through negligence) 

a. Text. See paragraph 60. 

b. Elements. 
(1) That the accused discharged a firearm; 

(2) That such discharge was caused by the negligence of the accused; and 

(3) 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. For a discussion of negligence, see paragraph 85c(2). 

d. Lesser included offenses. None 

e. Maximum punishment. Confinement for 3 months and forfeiture of two-thirds pay per month for 3 months. 

f. Sample speclj?cation. 

In that (personal jurisdiction data), did, (at!on board-location) (subject-matter jurisdiction data, if required), on or about 1 9 -,through negligence, discharge a (service rifle) 

( ) in the (squadron) (tent) (barracks) ( ) of 

81. Article 134 (Firearm, discharging-willfully, under such circumstances as to endanger human 

life) I 

a. Text. See paragraph 60. 

b. Elements. 

(1) That the accused discharged a firearm; 

(2) That the discharge was willful and wrongful; 

(3) That the discharge was under circumstances such as to endanger human life; and 

(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. "Under circumstances such as to endanger human life" refers to a reasonable potentiality 

for harm to human beings in general. The test is not whether the life was in fact endangered but whether, 

considering the circumstances surrounding the wrongful discharge of the weapon, the act was unsafe to human 

life in general. 

d. Lesser included offenses. 

(1) Article 134-firearm, discharging-through negligence 

(2) Article 80-attempts 

e. Maximum punishment. Dishonorable discharge, forfeiture of all pay and allowances, and confinement 

for 1 year. 

f. Sample specification. 

In that (personal jurisdiction data), did, (avon board-location) (subject-matter jurisdiction data, if required), on or about 19 -, wrongfully and willfully discharge a firearm, to 

wit: ,(in the mess hall of ) ( -), under circumstances such as to endanger 

human life. 

82. Article 134 (Fleeing scene of accident) 

a. Text. See paragraph 60. 

b. Elements. 

(1) Driver. 

(a) That the accused was the driver of a vehicle; 

(b) That while the accused was driving the vehicle was involved in an accident; 

c 
(c) That the accused knew that the vehicle had been in an accident; 

(d) That the accused left the scene of the accident without [providing assistance to the victim who 

had been struck (and injured) by the said vehicle] (or) [providing identification]; 

(e) That such leaving was wrongful; and 

(f) 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. 

(2) Senior passenger. 

(a) That the accused was a passenger in a vehicle which was involved in an accident; 

(b) That the accused knew that said vehicle had been in an accident; 

(c) That the accused was the superior commissioned or noncommissioned officer of the driver, 

or commander of the vehicle, and wrongfully and unlawfully ordered, caused, or permitted the driver to leave 

the scene of the accident without [providing assistance to the victim who had been struck (and injured) by the 

said vehicle] (or) [providing identification]; and 

(d) 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) Nature of offense. This offense covers "hit and run" situations where there is damage to property 

other than the driver's vehicle or injury to someone other than the driver or a passenger in the driver's vehicle. 

It also covers accidents caused by the accused, even if the accused's vehicle does not contact other people, 

vehicles, or property. 

(2) Knowledge. Actual knowledge that an accident has occurred is an essential element of this offense. 

Actual knowledge may be proved by circumstantial evidence. 

(3) Passenger. A passenger other than a senior passenger may also be liable under this paragraph. See 

paragraph 1 of this Part. 

d. Lesser included offense. Article 80-attempts 

e. Maximum punishment. Bad-conduct discharge, forfeiture of all pay and allowances, and confinement for 

6 months. 

f. Sample specij7cation. 

In that (personal jurisdiction data), (the driver of) (a passenger in*) (the senior officer/ 

noncommissioned officer in) ( in) a vehicle at the time of an accident in which said vehicle 

was involved, and having knowledge of said accident, did, at (subject-matter jurisdiction data, 

if required), on or about 19 -(wrongfully leave) (by , assist 

the driver of the said vehicle in wrongfully leaving*) (wrongfully order, cause, or permit the driver to leave) 

the scene of the accident without [providing assistance to ,who had been struck (and injured) 

by the said vehicle] [making histher (the driver's) identity known]. 

[*Note: This language should be used when the accused was a passenger and is charged as a principal. See 

paragraph 1 of this part.] 

83. Article 134 (Fraternization) 

a. Text. See paragraph 60. 

b. Elements. 

(1) That the accused was a commissioned or warrant officer; 

(2)That the accused fraternized on terms of military equality with one or more certain enlisted member(s) 

in a certain manner; 

(3) That the accused then knew the person(s) to be (an) enlisted member(s); 
(4) That such fraternization violated the custom of the accused's service that officers shall not fraternize 

with enlisted members on terms of military equality; and 

(5) 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. The gist of this offense is a violation of the custom of the armed forces against 

fraternization. Not all contact or association between officers and enlisted persons is an offense. Whether the 

contact or association in question is an offense depends on the surrounding circumstances. Factors to be considered 

include whether the conduct has compromised the chain of command, resulted in the appearance of partiality, 

or otherwise undermined good order, discipline, authority, or morale. The acts and circumstances must be such 

as to lead a reasonable person experienced in the problems of military leadership to conclude that the good order 

and discipline of the armed forces has been prejudiced by their tendency to compromise the respect of enlisted 

persons for the professionalism, .integrity, and obligations of an officer. 

(2) Regulations. Regulations, directives, and orders may also govern conduct between officer and 

enlisted personnel on both a service-wide and a local basis. Relationships between enlisted persons of different 

ranks, or between officers of different ranks may by similarly covered. Violations of such regulations, directives, 

or orders may be punishable under Article 92. See paragraph 16. 

d. Lesser included offense. Article 80-attempts 

e. Maximum punishment. Dismissal, forfeiture of all pay and allowances, and confinement for 2 years. 

f. Sample specijkation. 

In that (personal jurisdiction data), did, (at!on board-location), on or about 

,knowingly fraternize with ,an enlisted person, on terms of military equality, 

to wit: ,in violation of the custom of (the Naval Service of the United States) (the United 

States Army) (the United States Air Force) (the United States Coast Guard) that officers shall not fraternize with 

enlisted persons on terms of military equality. 

84. Article 134 (Gambling with subordinate) 

a. Text. See paragraph 60. 

b. Elements 

(1) That the accused gambled with a certain servicemember; 

(2) That the accused was then a noncommissioned or petty officer; 

(3) That the servicemember was not then a noncommissioned or petty officer and was subordinate to 

the accused; 

(4) That the accused knew that the servicemember was not then a noncommissioned or petty officer 

and was subordinate to the accused; and 

(5) 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. This offense can only be committed by a noncommissioned or petty officer gambling with 

an enlisted person of less than noncommissioned or petty officer rank. Gambling by an officer with an enlisted 

person may be a violation of Article 133. See also paragraph 83. 

d. Lesser included offense. Article 80-attempts 

e. Maximum punishment. Confinement for 3 months and forfeiture of two-thirds pay per month for 3 months. 

f. Sample specification. 

In that (personal jurisdiction data), did (avon board-location) (subject-matter jurisdiction data, if required), on or about 19 -, gamble with , then knowing 
that the said was not a noncommissioned or petty officer and was subordinate to the said 

85. Article 134 (Homicide, negligent) 

a. Text. See paragraph 60. 

b. Elements. 

(1) That a certain person is dead; 

(2) That this death resulted from the act or failure to act of the accused; 

(3) That the killing by the accused was unlawful; 

(4) That the act or failure to act of the accused which caused the death amounted to simple negligence; 

and 

(5) 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) Nature of offense. Negligent homicide is any unlawful homicide which is the result of simple 

negligence. An intent to kill or injure is not required. 

(2) Simple negligence. Simple negligence is the absence of due care, that is, an act or omission of a 

person who is under a duty to use due care which exhibits a lack of that degree of care of the safety of others 

which a reasonably careful person would have exercised under the same or similar circumstances. Simple 

negligence is a lesser degree of carelessness than culpable negligence. See paragraph 44c(2)(a). 

d. Lesser included offenses. None 

e. Maximum punishment. Bad-conduct discharge, forfeiture of all pay and allowances, and confinement for 

1 year. 

f. Sample specijkation. 

In that (personal jurisdiction data), did, (aVon board-location) (subject-matter jurisdiction data, if required), on or about 19 -, unlawfully kill , 

[by negligently the said (in) (on) the with a 1 

[by driving a (motor vehicle) ( ) against the said - i n a negligent manner] 

86. Article 134 (Impersonating a commissioned, warrant, noncommissioned, or petty officer, or 

an agent or official) 

a. Text. See paragraph 60. I 

b. Elements. 

(1) That the accused impersonated a commissioned, warrant, noncommissioned, or petty officer, or 

an agent of superior authority of one of the armed forces of the United States, or an official of a certain 

government, in a certain manner; 

(2) That the impersonation was wrongful and willful; and 

(3) 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 1: If intent to defraud is in issue, add the following additional element after (2), above: That the accused 

did so with the intent to defraud a certain person or organization in a certain manner;]. 

[Note 2: If the accused is charged with impersonating an official of a certain government without an intent to 

defraud, use the following additional element after (2) above: That the accused committed one or more acts which 

exercised or asserted the authority of the office the accused claimed to have;]. 
c. Explanation. 

(1) Nature of offense. Impersonation does not depend upon the accused deriving a benefit from the 

deception or upon some third party being misled, although this is an aggravating factor. 

(2) Willfulness. "Willful" means with the knowledge that one is falsely holding one's self out as such. 

(3) Intent to defraud. See paragraph 49c(14). 

d. Lesser included offense. Article 80-attempts 

e. Maximum punishment. Impersonating a commissioned, warrant, noncommissioned, or petty officer, or 

an agent or official. 

(1) With intent to defraud. Dishonorable discharge, forfeiture of all pay and allowances, and confinement 

for 3 years. 

(2) All other cases. Bad-conduct discharge, forfeiture of all pay and allowances, and confinement for 

6 months. 

f. Sample specification. 

In that (personal jurisdiction data), did, (atlon board-location) (subject-matter jurisdiction data, if required), on or about 19 -, wrongfully and willfully impersonate [a (commissioned officer) (warrant officer) (noncommissioned officer) (petty officer) (agent of superior authority) of the 

(Army) (Navy) (Marine Corps) (Air Force) (Coast Guard)] [an official of the Government of 1 

by [publicly wearing the uniform and insignia of rank of a (lieutenant of the 

[showing the credentials of 1 [ ] (with intent to defraud 

[and (exercised) (asserted) the authority of by **I. 

1( 

by 

)I 

*) 

[ *See subsection b note 1.1 

[**See subsection b note 2.1 

87. Article 134 (Indecent acts or liberties with a child) 

a. Text. See paragraph 60. 

b. Elements. 

(1) Physical contact. 

(a) That the accused committed a certain act upon or with the body of a certain person; 

(b) That the person was under 16 years of age and not the spouse of the accused; 

(c) That the act of the accused was indecent; 

(d) That the accused committed the act with intent to arouse, appeal to, or gratify the lust, passions, 

or sexual desires of the accused, the victim, or both; and 

(e) 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. 

(2)No physical contact. 

(a) That the accused committed a certain act; 

(b) That the act amounted to the taking of indecent liberties with a certain person; 

(c) That the accused committed the act in the presence of this person; 

(d) That this person was under 16 years of age and not the spouse of the accused; 

(e) That the accused committed the act with the intent to arouse, appeal to, or gratify the lust, 

passions, or sexual desires of the accused, the victim, or both; and 
(f) 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) Consent. Lack of consent by the child to the act or conduct is not essential to this offense; consent 

is not a defense. 

(2) Indecent liberties. When a person is charged with taking indecent liberties, the liberties must be 

taken in the physical presence of the child, but physical contact is not required. Thus, one who with the requisite 

intent exposes one's private parts to a child under 16 years of age may be found guilty of this offense. An 

indecent liberty may consist of communication of indecent language as long as the communication is made in 

the physical presence of the child. 

(3) Indecent. See paragraphs 89c and 90c. 

d. Lesser included offenses. 

(1) Article 134-indecent acts with another 

(2) Article 128-assault; assault consummated by a battery 

(3) Article 80-attempts 

e. Maximum punishment. Dishonorable discharge, forfeiture of all pay and allowances, and confinement 

for 7 years. 

f. Sample spec$cation. 

In that (personal jurisdiction data), did, (atJon board-location) (subject-matter jurisdiction data, if required), on or about 19 -, [take (indecent) liberties with] [commit 

an indecent act (upon) (with) the body of] , a (female) (male) under 16 years of age, not the (wife) (husband) of the said , 

by [fondling (her) (him) and placing histher hands upon (her) (his) leg and private parts] [ 1, 

with intent to (arouse) (appeal to) (gratify) the (lust) (passion) (sexual desires) of the said (and 

88. Article 134 (Indecent exposure) 

a. Text. See paragraph 60. 

b. Elements. 

(1)That the accused exposed a certain part of the accused's body to public view in an indecent manner; 

(2) That the exposure was willful and wrongful; and 

(3) That, under the circumstances, the accused's conduct 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. "Willful" means an intentional exposure to public view. Negligent indecent exposure is 

not punishable as a violation of the code. See paragraph 90c concerning "indecent." 

d. Lesser included offense. Article 80-attempts 

e. Maximum punishment. Bad-conduct discharge, forfeiture of all pay and allowances, and confinement for 

6 months. 

f. Sample specijkation. 

In that (personal jurisdiction data), did (atton board-location) (subject-matter jurisdiction data, if required), on or about 19 -, while (at a barracks window) ( 

willfully and wrongfully expose in an indecent matter to public view his or her 

1 
89. Article 134 (Indecent language) 

a. Text. See paragraph 60. 

b. Elements. 

(1) That the accused orally or in writing communicated to another person certain language; 

(2) That such language was indecent; and 

(3) That, under the circumstances, the conduct of the accused was to the prejudice of good order and 

discipline in the med forces or was of a nature to bring discredit upon the armed forces. 

[Note: In approprite cases add the following element after element (1):That the person to whom the language 

was communicated was a child under the age of 16;]. 

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. The language must violate community standards. See paragraph 87 if the communication was made in 

the physical presence of a child. 

d. Lesser included offense. Article 80-attempts 

e. Maximum punishment. Indecent or insulting language. 

(1) Communicated to any child under the age of 16 years. Dishonorable discharge, forfeiture of all 

pay and allowances, and confinement for 2 years. 

(2) Other cases. 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 -,.(orally) (in writing). communicate to , 

(a child under the age of 16 years), certain indecent language, to wit: 

90. Article 134 (Indecent acts with another) 

a. Text. See paragraph 60. 

b. Elements. 

(1) That the accused committed a certain wrongful act with a certain person; 

(2) That the act was indecent; and 

(3) 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. "Indecent" signifies that form of immorality relating to sexual impurity which is not only 

grossly vulgar, obscene, and repugnant to common propriety, but tends to excite lust and deprave the morals ' with respect to sexual relations. 

d. Lesser included offense. Article 80-attempts 

e. Maximum punishment. Dishonorable discharge, forfeiture of all pay and allowances, and confinement 

for 5 years. 

f. Sample specification. 

In that (personal jurisdiction data), did (atton board-location) (subject-matter jurisdiction data, if required), on or about 19 -,wrongfully commit an indecent act with -

by 
91. Article 134 (Jumping from vessel into the water) 

a. Text. See paragraph 60. 

b. Elements. 

(1) That the accused jumped from a vessel in use by the armed forces into the water; 

' (2) That such act by the accused was wrongful and intentional; and 

(3) 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. "In use by" means any vessel operated by or under the control of the armed forces. This 

offense may be committed at sea, at anchor, or in port. 

d. Lesser included offense. Article 80-attempts 

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, on board 

or about 19 -,wrongfully and intentionally jump from 

armed forces, into the (sea) (lake) (river). 

,at (location), on 

,a vessel in use by the 

92. Article 134 (Kidnapping) 

a. Text. See paragraph 60. 

b. Elements. 

(1) That the accused seized, confined, inveigled, decoyed, or carried away a certain person; 

(2) That the accused then held such person against that person's will; 

(3) That the accused did so willfully and wrongfully; and 

(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) Inveigle, decoy. "Inveigle" means to lure, lead astray, or entice by false representations or other 

deceitful means. For example, a person who entices another to ride in a c& with a false promise to take the 

person to a certain destination has inveigled the passenger into the car. "Decoy" means to entice or lure by 

means of some fraud, trick, or temptation. For example, one who lures a child into a trap with candy has decoyed 

the child. 

(2)Held. "Held" means detained. The holding must be more than a momentary or incidental detention. 

For example, a robber who holds the victim at gunpoint while the victim hands over a wallet, or a rapist who 

throws his victim to the ground, does not, by such acts, commit kidnapping. On the other hand if, before or 

after such robbery or rape, the victim is involuntarily transported some substantial distance, as from a housing 

area to a remote area of the base or post, this may be kidnapping, in addition to robbery or rape. 

(3) Against the will. "Against that person's will" means that the victim was held involuntarily. The involuntary nature of- the detention may result from force, mental or physical coercion, or from 

other means, including false representations. If the victim is incapable of having a recognizable will, as in the 

case of a very young child or a mentally incompetent person, the holding must be against the will of the victim's 

parents or legal guardian. Evidence of the availability or nonavailability to the victim of means of exit or escape 

is relevant to the voluntariness of the detention, as is evidence of threats or force, or lack thereof, by the accused 

to detain the victim. 

(4) Willfully. The accused must have specifically intended to hold the victim against the victim's will 
to be guilty of kidnapping. An accidental detention will not suffice. The holding need not have been for financial 

or personal gain or for any other particular purpose. It may be an aggravating circumstance that the kidnapping 

was for ransom, however. See R.C.M. 1001(b)(4). 

(5) Wrongfully. "Wrongfully" means without justification or excuse. For example, a law enforcement 

official may justifiably apprehend and detain, by force if necessary (see R.C.M. 302(d)(3)), a person reasonably 

believed to have committed an offense. An official who unlawfully uses that official's authority to apprehend 

someone is not guilty of kidnapping, but may be guilty of unlawful detention. See paragraph 21. It is not wrongful 

under this paragraph and therefore.not kidnapping for a parent or legal guardian to seize and hold that parent's 

or legal guardian's minor child. 

d. Lesser included offense. Article 80-attempts 

e. Maximum punishment. Dishonorable discharge, forfeiture of all pay and allowances, and confinement 

for life. 

f. Sample specification. 

In that , (personal jurisdiction data), did, (at/on board-location) (subject-matter jurisdiction data, if required), on or about 19 -, willfully and wrongfully (seize) (confine) (inveigle) (decoy) (carry away) and hold [a minor whose parent or legal guardian the accused was 

not] [a person not a minor] against hislher will. 

93. Article 134 (Mail: taking, opening, secreting, destroying, or stealing) 

a. Text. See paragraph 60. 

b. Elements. 

(1) Taking. 

(a) That the accused took certain mail matter; 

(b) That such taking was wrongful; 

(c) That the mail matter was taken by the accused before it was delivered to or received by the 

addressee; 

(d) That such taking was with the intent to obstruct the correspondence or pry into the business 

or secrets of any person or organization; and 

(e) 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. 

(2) Opening, secreting, destroying, or stealing. 

(a) That the accused opened, secreted, destroyed, or stole certain mail matter; 

(b) That such opening, secreting, destroying, or stealing was wrongful; 

(c) That the mail matter was opened, secreted, destroyed, or stolen by the accused before it was 

delivered to or received by the addressee; and 

(d) 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. These offenses are intended to protect the mail and mail system. "Mail matter" means any 

matter deposited in a postal system of any government or any authorized depository thereof or in official mail 

channels of the United States or an agency thereof including the armed forces. The value of the mail matter is 

not an element. See paragraph 46c(l) concerning "steal." 

d. Lesser included offenses. 

(1) Article 12 1-larceny ; wrongful appropriation 

(2) Article 80-attempts 
e. Maximum punishment. Dishonorable discharge, forfeiture of all pay and allowances, and confinement 

for 5 years. 

f. Sample specifications. 

(1) Taking. 

In that (personal jurisdiction data), did, (atlon board-location) (subject-matter jurisdiction data, if required), on or about 19 -, wrongfully take certain mail matter, to wit: (a) 

[letter(s)] [postal card(s)] [package(s)] , addressed to , [out of the ( P o s t 

Office ) (orderly room of ) (unit mail box of ) ( )I 

[from 3 before (it) (they) (was) (were) (delivered) (actually received) (to) (by) the [addressee] 

with intent to [obstruct the correspondence] [pry into the (business) (secrets)] of 

(2) Opening, secreting, destroying, or stealing. 

In that (personal jurisdiction data), did, (aVon board-location) (subject-matter jurisdiction data, if required), on or about 19 -,[wrongfully (open) (secret) (destroy)] [steal] certain 

mail matter, to wit: (a) [letter(s)] [postal card(s)] [package(s)] addressed to ,which said [letter(s)] 

of 

] (was) (were) then [in the ( L 

) (unit mail box of 

o s t Office 

) (custody of 1 ( 

) (orderly room 

11 

[had previously been committed to ,(a representative of ,) (an official agency 

for the transmission of communications)] before said [letter($] [ 1 (was) (were) (delivered) 

(actually received) (to) (by) the [addressee]. 

94. Article 134 (Mails: depositing or causing to be deposited obscene matters in) 

a. Text. See paragraph 60. 

b. Elements. 

(1) That the accused deposited or caused to be deposited in the mails certain matter for mailing and 

delivery; 

(2) That the act was done wrongfully and knowingly; 

(3) That the matter was obscene; and 

(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. Whether something is obscene is a question of fact. "Obscene" is synonymous with 

"indecent" as the latter is defined in paragraph 89c. The matter must violate community standards of decency 

or obscenity and must go beyond customary limits of expression. "Knowingly" means the accused deposited 

the material with knowledge of its nature. 

d. Lesser included offense. Article 80-attempts 

e. Maximum punishment. Dishonorable discharge, forfeiture of all pay and allowances, and confinement 

for 5 years. 

f. Sample speclfcation. 

In that (personal jurisdiction data), did, (aVon board-location) (subject-matter jurisdiction data, if required), on or about 19 -, wrongfully and knowingly (deposit) (cause to be 

deposited) in the (United States) ( ) mails, for mailing and delivery a (letter) (picture) 

( ) (containing) (portraying) (suggesting) ( ) certain obscene matters, to wit: 

95. Article 134 (Misprision of serious offense) 

a. Text. See paragraph 60. 

b. Elements. 
(1) That a certain serious offense was committed by a certain person; 

(2) That the accused knew that the said person had committed the serious offense; 

(3) That, thereafter, the accused concealed the serious offense and failed to make -it known to civilian 

or military authorities as soon as possible; 

(4) That the concealing was wrongful; and 

(5) 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. Misprision of a serious offense is the offense of concealing a serious offense committed 

by another but without such previous concert with or subsequent assistance to the principal as would make the 

accused an accessory. See paragraph 3. An intent to benefit the principal is not necessary to this offense. 

(2) Serious offense. For purposes of this paragraph, a "serious offense" is any offense punishable 

under the authority of the code by death or by confinement for a term exceeding 1 year. 

(3) Positive act of concealment. A mere failure or refusal to disclose the serious offense without some 

positive act of concealment does not make one guilty of this offense. Making a false entry in an account book 

for the purpose of concealing a theft committed by another is an example of a positive act of concealment. 

d. Lesser included offense. Article 80-attempts 

e. Maximum punishment. Dishonorable discharge, forfeiture of all pay and allowances, and confinement 

for 3 years. 

f. Sample spec@cation. 

In that (personal jurisdiction data), having knowledge that h a d actually committed a serious offense to wit: (the murder of ) ( 1, 

did, (atlon board-location) (subject-matter jurisdiction data, if required) from about 19 -,to 

about 19 -, wrongfully conceal such serious offense by and fail to make the 

same known to the civil or military authorities as soon as possible. 

96. Article 134 (Obstructing justice) 

a. Text. See paragraph 60. 

b. Elements. 

(1) That the accused wrongfully did a certain act; 

(2) That the accused did so in the case of a certain person against whom the accused had reason to 

believe there were or would be criminal proceedings pending; 

(3) That the act was done with the intent to influence, impede, or otherwise obstruct the due administration of justice; and 

(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. This offense may be based on conduct that occurred before preferral of charges. Actual 

obstruction of justice is not an element of this offense. For purposes of this paragraph "criminal proceedings" 

includes nonjudicial punishment proceedings under Part V of this Manual. Examples of obstruction of justice 

include wrongfully influencing, intimidating, impeding, or injuring a witness, a person acting on charges under 

this chapter, an investigating officer under R.C.M. 406, or a party; and by means of bribery, intimidation, 

misrepresentation, or force or threat of force delaying or preventing communication of information relating to a 

violation of any criminal statute of the United States to a person authorized by a department, agency, or armed 

force of the United States to conduct or engage in investigations or prosecutions of such offenses; or endeavoring 

to do so. See also paragraph 22 and Article 37. 

d. Lesser included offenses. None. 
e. Maximum punishment. Dishonorable discharge, forfeiture of all pay and allowances, and confinement 

for 5 years. 

f. Sample specification. 

In that (personal jurisdiction data), did, (atton board-location) (subject-matter jurisdiction data, if required), on or about 19 -,(wrongfully endeavor to) [impede (a trial by courtmartial) (an investigation) ( )] [influence the actions of , (a trial counsel of 

the court-martial) (a defense counsel of the court-martial) (an officer responsible for making a recommendation 

1 [ 

concerning disposition of charges) ( )] [(influence) (alter) the testimony of 

as a witness before (a court-martial) (an investigating officer) ( )] in the case of , by [(promising) (offering) (giving) to the said , (the sum of $ 1 

( , of a value of about $ )] [communicating to the said a threat 

to 1, (if) (unless) hefshe, the said , would [recommend 

dismissal of the charges against said 1 [(wrongfully refuse to testify) (testify falsely concerning -) 

( )] [(at such trial) (before such investigating officer)] [ I. 

97. Article 134 (Pandering and prostitution) 

a. Text. See paragraph 60. 

b. Elements. 

(1) Prostitution. 

(a) That the accused had sexual intercourse with another person not the accused's spouse; 

(b) That the accused did so for the purpose of receiving money or other compensation; 

(c) That this act was wrongful; and 

(d) 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. 

(2)Pandering by compelling, inducing, enticing, or procuring act of prostitution. 

(a) That the accused compelled, induced, enticed, or procured a certain person to engage in an 

act of sexual intercourse for hire and reward with a person to be directed to said person by the accused; 

(b) That this compelling, inducing, enticing, or procuring was wrongful; and 

(c) 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. 

(3) Pandering by arranging or receiving consideration for arranging for sexual intercourse or sodomy. 

(a) That the accused arranged for, or received valuable consideration for arranging for, a certain 

person to engage in sexual intercourse or sodomy with another person; 

(b) That the arranging (and receipt of consideration) was wrongful; and 

(c) 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. Prostitution may be committed by males or females. Sodomy for money or compensation 

is not included in subparagraph b(1). Sodomy may be charged under paragraph 51. Evidence that sodomy was 

for money or compensation may be a matter in aggravation. See R.C.M. 1001(b)(4). 

d. Lesser included offense. Article 80-attempts 

e. Maximium punishment. 

(1) Prostitution. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 1 

year. 
(2)Pandering. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 

years. 

f. Sample specijications. 

(1) Prostitution. 

In that (personal jurisdiction data), did, (atlon board-location) (subject-matter jurisdiction data, if required), on or about 19 -, wrongfully engage in (an act) (acts) of sexual 

intercourse with , a person not hislher spouse, for the purpose of receiving (money) 

(2) Compelling, inducing, enticing, or procuring act of prostitution. 

In that (personal jurisdiction data), did, (at/on board-location) (subject-matter jurisdiction data, if required), on or about 19 -, wrongfully (compel) (induce) (entice) (procure) 

to engage in (an act) (acts) of (sexual intercourse for hire and reward) with persons to be 

directed to himlher by the said 

(3) Arranging, or receiving consideration for arranging for sexual intercourse or sodomy. 

In that (personal jurisdiction data), did, (atlon board-location) (subject-matter jurisdiction data, if required), on or about 19 -, wrongfully [arrange for] [receive valuable consideration, to wit: on account of arranging for] to engage in (an act) (acts) of 

(sexual intercourse) (sodomy) with 

98. Article 134 (Perjury: subornation of) 

a. Text. See paragraph 60. 

b. Elements. 

(1) That the accused induced and procured a certain person to take an oath or its equivalent and to 

falsely testify, depose, or state upon such oath or its equivalent concerning a certain matter; 

(2) That the oath or its equivalent was administered to said person in a matter in which an oath or its 

equivalent was required or authorized by law; 

(3) That the oath or its equivalent was administered by a person having authority to do so; 

(4) That upon the oath or its equivalent said person willfully made or subscribed a certain statement; 

(5) That the statement was material; 

(6) That the statement was false; 

(7) That the accused and the said person did not then believe that the statement was true; and 

(8) 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. See paragraph 57c for applicable principles. "Induce and procure" means to influence, 

persuade, or cause. 

d. Lesser included offense. Article 80-attempts 

e. Maximum punishment. 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) (subject-matter jurisdiction data, if required), on or about 19 -, procure to commit perjury by 

inducing himlher, the said , to take a lawful (oath) (affirmation) in a (trial by court-martial of -) 

(trial by a court of competent jurisdiction, to wit: of ) (deposition for use in 

a trial by of ) ( ) that helshe, the said , 
would 1 (testify) (depose) ( ) truly, and to (testify) (depose) ( 

willfully, corruptly, and contrary to such (oath) (affirmation) in substance that ,which (testimony) (deposition) ( ) was upon a material matter and which the accused and the said 

did not then believe to be true. 

99. Article 134 (Public record: altering, concealing, removing, mutilating, obliterating, or destroying) 

a. Text. See paragraph 60. 

b. Elements. 

(1) That the accused altered, concealed, removed, mutilated, obliterated, destroyed, or took with the 

inte~lto alter, conceal, remove, mutilate, obliterate, or destroy, a certain public record; 

(2) That the act of the accused was willful and unlawful; and 

(3) 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 med forces. 

c. Explanation. "Public records" include records, reports, statements, or data compilations, in any form, 

of public offices or agencies, setting forth the activities of the office or agency, or matters observed pursuant to 

duty imposed by law as to which matters there was a duty to report. "Public records" includes classified matters. 

d. Lesser included ofSense. Article 80-attempts 

e. Maximum punishment. Dishonorable discharge, forfeiture of all pay and allowances, and confinement 

for 3 years. 

f. Sample specijication. 

In that (personal jurisdiction data), did, (atlon board-location) (subject-matter jurisdiction data, if required), on or about 19 -,willfully and unlawfully [(alter) (conceal) (remove) 

(mutilate) (obliterate) (destroy)] [take with intent to (alter) (conceal) (remove) (mutilate) (obliterate) (destroy)] 

a public record, to wit: 

100. Article 134 (Quarantine: medical, breaking) 

a. Text. See paragraph 60. 

b. Elements. 

(1) That a certain person ordered the accused into medical quarantine; 

(2) That the person was authorized to order the accused into medical quarantine; 

(3) That the accused knew of this medical quarantine and the limits thereof; 

(4) That the accused went beyond the limits of the medical quarantine before being released therefrom 

by proper authority; and 

(5) 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. None. 

d. Lesser included oflenses. 

(1) Article 134-breaking restriction 

(2) Article 80-attempts 

e. Maximum punishment. Confinement for 6 months and forfeiture of two-thirds pay per month for 6 months. 

f. Sample spec$cation. 

In that (personal jurisdiction data) having been placed in medical quarantine by a 
person authorized to order the accused into medical quarantine, did, (at/on boardlocation) (subject-matter jurisdiction data, if required), on or about 19 -, break said medical 

quarantine. 

101. Article 134 (Requesting commission of an offense) 

a. Text. See paragraph 60. 

b. Elements. 

(1) That the accused communicated certain language; 

(2) That the language advised, directed, requested, or suggested to certain person(s) to commit an 

offense under the code; 

(3) That the communication was wrongful; and 

(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. This offense differs from solicitation to commit an offense (see paragraphs 6 and 105) in 

that for this offense the accused need not have specifically intended that the offense advised, directed, requested, 

or suggested be committed. Advice or a direction, request, or suggestion is wrongful if it is made in a manner 

or under circumstances which the accused could reasonably expect the persons to whom it was made to take 

seriously and act upon. 

d. Lesser included offenses. None. 

e. Maximum punishment. Confinement for 4 months and forfeiture of two-thirds pay per month for 4 months. 

f. Sample specification. 

In that did (personal jurisdiction data), (atlon board-location) (subject-matter jurisdiction data, if required), on or about 19 -,wrongfully communicate certain language, to wit: 

to , which language (advised) (directed) (requested) (suggested to) the said , 

to commit , an offense under the code. 

102. Article 134 (Restriction, breaking) 

a. Text. See paragraph 60. 

b. Elements. 

(1) That a certain person ordered the accused to be restricted to certain limits; 

(2) That said person was authorized to order said restriction; 

(3) That the accused knew of the restriction and the limits thereof; 

(4) That the accused went beyond the limits of the restriction before being released therefrom by proper 

authority; and 

(5) 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. Restriction is the moral restraint of a person imposed by an order directing a person to 

remain within certain specified limits. "Restriction" includes restriction under R.C.M. 304(a)(2), restriction 

resulting from imposition of either nonjudicial punishment (see Part V) or the sentence of a court-martial (see 

R.C.M. 1003(b)(6)), and administrative restriction in the interest of training, operations, security, or safety. 

d. Lesser included ofSense. Article 80-attempts 

e. Maximum punishment. Confinement for 1 month and forfeiture of two-thirds pay per month for 1 month. 

f. Sample specification. 
7 In that (personal jurisdiction data), having been restricted to the limits of 

by a person authorized to do so, did, (at/on board-location), on or about 19 -, break said 

restriction. 

103. Article 134 (Seizure: destruction, removal, or disposal of property to prevent) 

a. Text. See paragraph 60. 

b. Elements. 

(1) That one or more persons authorized to make searches and seizures were seizing, about to seize, 

or endeavoring to seize certain property; 

(2) That the accused destroyed, removed, or otherwise disposed of that property with intent to prevent 

the seizure thereof; 

(3) That the accused then knew that person(s) authorized to make searches were seizing, about to seize, 

or endeavoring to seize the property; and 

(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. See Mil. R. Evid. 316(e) concerning military personnel who may make seizures. It is not 

a defense that a search or seizure was technically defective. 

d. Lesser included oflense. Article 80-attempts 

e. Maximum punishment. Dishonorable discharge, forfeiture of all pay and allowances, and confinement 

for 1 year. 

f. Sample specijkation. 

In that (personal jurisdiction data), did, (at/on board-location) (subject matter jurisdiction data, if required), on or about 19 -,with intent to prevent its seizure, (destroy) (remove) 

(dispose of) ,property which, as then knew, (a) person(s) authorized to make 

searches and seizures were (seizing) (about to seize) (endeavoring to seize). 

104. Article 134 (Sentinel or lookout: offenses against or by) 

a. Text. See paragraph 60. 

b. Elements. 

(1) Disrespect to a sentinel or lookout. 

(a) That a certain person was a sentinel or lookout; 

(b) That the accused knew that said person was a sentinel or lookout; 

(c) That the accused used certain disrespectful language or behaved in a certain disrespectful 

manner; 

(d) That such language or behavior was wrongful; 

(e) That such language or behavior was directed toward and within the sight or hearing of the 

sentinel or lookout; 

(f)'~hat said person was at the time in the execution of duties as a sentinel or lookout; and 

(g) 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. 

(2) Loitering or wrongfully sitting on post by a sentinel or lookout. 

(a) That the accused was posted as a sentinel or lookout; 

(b) That while so posted, the accused loitered or wrongfully sat down on post; and 
(c) 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 while the accused was receiving special pay under 37 

U.S.C. § 310, add the following element after element (a):That the accused was so posted (in time of war) (while 

receiving special pay under 37 U.S.C. § 3 lo)] 

c. Explanation. 

(1) Disrespect. For a discussion of "disrespect," see paragraph 13c(3). 

(2) Loitering or wrongfully sitting on post. 

(a) In general. The discussion set forth in paragraph 38c applies to loitering or sitting down while 

posted as a sentinel or lookout as well. 

(b) Loiter. "Loiter" means to stand around, to move about slowly, to linger, or to lay behind 

when that conduct is in violation of known instructions or accompanied by a failure to give complete attention 

to duty. 

d. Lesser included offenses. 

(1) Disrespect to a sentinel or lookout. Article 80-attempts 

(2) Loitering or wrongfully sitting on post by a sentinel or lookout. Article 80-attempts 

e. Maximum punishment. 

(1) Disrespect to a sentinel or lookout. Confinement for 3 months and forfeiture of two-thirds pay per 

month for 3 months. 

(2) Loitering or wrongfully sitting on post by a sentinel or lookout. 

/ 	 (a) In time of war or while receiving specialpay under 37 U.S.C. 310. Dishonorable discharge, 

forfeiture of all pay and allowances, and confinement for 2 years. 

(b) Other cases. Bad-conduct discharge, forfeiture of all pay and allowances, and confinement 

for 6 months. 

f. Sample specifications. 

(1) Disrespect to a sentinel or lookout. 

In that (personal jurisdiction data), did, (at/on board-location), on or about - 19 -,then knowing that was a sentinel or lookout, [wrongfully use the following disrespectful language " ," or words to that effect, to wrongfully behave in a 

disrespectful manner toward by ] a (sentinel) (lookout) in the execution of 

histher duty. 

(2) Loitering or wrongfully sitting down on post by a sentinel or lookout. 

In that (personal jurisdiction data), while posted as a (sentinel) (lookout), did, (ation 

board-location) (while receiving special pay under 37 U.S.C. 8 310) on or about 1 9 , (a 

time of war) (loiter) (wrongfully sit down) on hislher post. 

105. Article 134 (Soliciting another to commit an offense) 

a. Text. See paragraph 60. 

b. Elements. 

(1) That the accused solicited or advised a certain person or persons to commit a certain offense under 

the code other than one of the four offenses named in Article 82; 

(2) That the accused did so with the intent that the offense actually be committed; and 

(3) 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. See paragraph 6c. If the offense solicited was actually committed, see also paragraph I 

d . Lesser included oflenses. 

(1) Article 134-Requesting another to commit an offense, wrongful communication of language 

(2) Article 80-attempts 

e. Maximum punishment. Any person subject to the code who is found gui!ty of soliciting or advising 

another person to commit an offense which, if committed by one subject to the code, would be punishable under 

the code, shall be subject to the maximum punishment authorized for the offense solicited or advised, except 

that in no case shall the death penalty be imposed nor shall the period of confinement in any case, including 

offenses for which life imprisonment may be adjudged, exceed 5 years. 

f. Sample specification. 

In that (personal jurisdiction data), did (atJon board-location) (subject-matter jurisdiction data, if required), on or about 19 -,wrongfully (solicit) (advise) (to 

disobey a general regulation, to wit: ) (to steal , 

of a value of (about) $ , the property of ) (to 1, by 

106. Article 134 (Stolen property: knowingly receiving, buying, concealing) 

a. Text. See paragraph 60. 

b. Elements. 

(1) That the accused wrongfully received, bought, or concealed certain property of some value; 

(2) That the property belonged to another person; 

(3) That the property had been stolen; 

(4) That the accused then knew that the property had been stolen; and 

(5) 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. The actual thief is not criminally liable for receiving the property stolen; however a 

principle to the larceny (see paragraph l), when not the actual thief, may be found guilty of knowingly receiving 

the stolen property but may not be found guilty of both the larceny and receiving the property. 

(2)Knowledge. Actual knowledge that the property was stolen is required. Knowledge may be proved 

by circumstantial evidence. 

(3) Wrongfulness. Receiving stolen property is wrongful if it is without justification or excuse. For 

example, it would not be wrongful for a person to receive stolen property for the purpose of returning it to its 

rightful owner, or for a law enforcement officer to seize it as evidence. 

d. Lesser included oflense. Article 80-attempts 

e. Maximum punishment. Stolen property, knowingly receiving, buying, or concealing. 

(1) Of a value of $100.00 or less. Bad-conduct discharge, forfeiture of all pay and allowances, and 

confinement for 6 months. 

(2) Of a value of more than $100.00.Dishonorable discharge, forfeiture of all pay and allowances, 

and confinement for 3 years. 

f. Sample specification. 

In that (personal jurisdiction data), did, (atlon board-location) (subject-matter jurisdiction data, if required), on or about 19 -,wrongfully (receive) (buy) (conceal) 7 
of a value of (about) $ , the property of , which property, as helshe, the 

said ,then knew, had been stolen. 

107. Article 134 (Straggling) 

a. Text. See paragraph 60. 

b. Elements. 

(1)That the accused, while accompanying the accused's organization on a march, maneuvers, or similar 

exercise, straggled; 

(2) That the straggling was wrongful; and 

(3) 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. "Straggle" means to wander away, to stray, to become separated from, or to lag or linger 

behind. 

d. Lesser included offense. Article 80-attempts 

e. Maximum punishment. Confinement for 3 months and forfeiture of two-thirds pay per month for 3 months. 

f. Sample specification. 

In that (personal jurisdiction data), did, at ,on or about 

19 -, while accompanying hislher organization on (a march) (maneuvers) ( ), 

wrongfully straggle. 

108. Article 134 (Testify: wrongful refusal) 

a. Text. See paragraph 60. 

b. Elements. 

(1) That the accused was in the presence of a court-martial, board of officer(s), military commission, 

court of inquiry, an officer conducting an investigation under Article 32, or an officer taking a deposition, of 

or for the United States, at which a certain person was presiding; 

(2) That the said person presiding directed the accused to qualify as a witness or, having so qualified, 

to answer a certain question; 

(3) That the accused refused to qualify as a witness or answer said question; 

(4) That the refusal was wrongful; and 

(5) 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. To "qualify as a witness" means that the witness declares that the witness will testify 

truthfully. See R.C.M. 807; Mil. R. Evid. 603. A good faith but legally mistaken belief in the right to remain 

silent does not constitute a defense to a charge of wrongful refusal to testify. See also Mil. R. Evid. 301 and 

Section V. 

d. Lesser included offenses. None. 

e. Maximum punishment. Dishonorable discharge, forfeiture of all pay and allowances, and confinement 

for 5 years. 

f. Sample specification. 

In that (personal jurisdiction data), being in the presence of (a) (an) [(general) (special) 

(summary) court-martial] [board of officer(s)] [military commission] [court of inquiry] [officer conducting an 

investigation under Article 32, Uniform Code of Military Justice] [officer taking a deposition] [ 

(of) (for) the United States, of which was (military judge) (president), ( 1, 

1 
(and having been directed by the said to qualify as a witness) (and having qualified as a witness 

and having been directed by the said to answer the following question(s) put to hkher as a 

witness, " "), did, (aVon board-location), on or about 1 9 , 

wrongfully refuse (to qualify as a witness) [to answer said question(s)]. 

109. Article 134 (Threat or hoax: bomb) 

a. Text. See paragraph 60. 

b. Elements. 

(1) Bomb threat. 

(a) That the accused communicated certain language; 

(b) That the language communicated amounted to a threat; 

(c) That the harm threatened was to be done by means of an explosive; 

(d) That the communication was wrongful; and 

(e) 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. 

(2) Bomb hoax. 

(a) That the accused communicated or conveyed certain information; 

(b) That the language or information concerned an attempt being made or to be made by means 

of an explosive to unlawfully kill, injure, or intimidate a person or to unlawfully damage or destroy certain 

property; 

(c) That the information communicated by the accused was false and that the accused then knew 

it was false; 

(d) That the communication of the information by the accused was malicious; and 

(e) 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) Threat. A "threat" is an expressed present determination or intent to kill, injure, or intimidate a 

person or to damage or destroy certain property presently or in the future. Proof that the accused actually intended 

to kill, injure, intimidate, damage, or destroy is not required. See also paragraph 110. 

(2) Malicious. A communication is "malicious" if the accused believed that the information would 

probably interfere with the peaceful use of the building, vehicle, aircraft, or other property concerned, or would 

cause fear or concern to one or more persons. 

(3) Explosive. See R.C.M. 103(11). 

d. Lesser included offenses. 

(1) Bomb threat. 

(a) Article 134-communicating a threat 

(b) Article 80-attempts 

(2)Bomb hoax. Article 80-attempts 

e. Maximum punishment. Bomb threat and bomb hoax: Dishonorable discharge, forfeiture of all pay and 

allowances, and confinement for 5 years. 

f. Sample specifications. 

(1) Bomb threat. 
-- 

1 

In that (personal jurisdiction data) did, (at/on board-location) (subject-matter ju-risdiction data, if required) on or about 19 -, wrongfully communicate certain language, to wit: 

which language constituted a threat to harm a person or property by means of an explosive. 

(2) Bomb hoax. 

In that (personal jurisdiction data) did, (at/on board-location) (subject-matter jurisdiction data, if required) on or about 19 -, maliciously (communicate) (convey) certain information concerning an attempt being made or to be made to unlawfully [(kill) (injure) (intimidate) 

[(damage) (destroy) ] by means of an explosive, to wit: , which information 

was false and which then knew to be false. 

110. Article 134 (Threat, communicating) 

a. Text. See paragraph 60. 

b. Elements. 

(1) That the accused communicated certain language expressing a present determination or intent to 

wrongfully injure the person, property, or reputation of another person, presently or in the future; 

(2) Thatthe communication was made known to that person or to a -third person; 

(3) That the communication was wrongful; and 

(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. To establish the threat it is not necessary that the accused actually intended to do the injury 

threatened. However, a declaration made under circumstances which reveal it to be in jest or for an innocent or 

legitimate purpose, or which contradict the expressed intent to commit the act, does not constitute this offense. 

Nor is the offense committed by the mere statement of intent to commit an unlawful act not involving injury to 

another. See also paragraph 109 concerning bomb threat. 

d. Lesser included offenses. 

(1) Article 117-provoking speeches or gestures 

(2) Article 80-attempts 

e. Maximum punishment. Dishonorable discharge, forfeiture of all pay and allowances, and confinement 

for 3 years. 

f. Sample specification. 

In that (personal jurisdiction data), did, (at/on board-location) (subject-matter jurisdiction data, if required), on or about 19 -, wrongfully communicate to a 

threat to (injure by ) (accuse of having committed the offense 

of ) ( 1. 

111. Artfcle 134 (Unlawful entry) 

a. Text. See paragraph 60. 


b, Elements. 


(1) That the accused entered the real property of another or certain personal property of another which 

amounts to a structure usually used for habitation or storage; 

(2) That such entry was unlawful; and 

(3) 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. See paragraph 55 for a discussion of "entry." An entry is "unlawful" if made without the 

consent of any person authorized to consent to entry or without other lawful authority. No specific intent or 

breaking is required for this offense. See paragraph 56 for a discussion of housebreaking. The property protected 

against unlawful entry includes real property and the sort of personal property which amounts to a structure 

usually used for habitation or storage. It would usually not include an aircraft, automobile, tracked vehicle, or 

a person's locker, even though used for storage purposes. However, depending on the circumstances, an intrusion 

into such property may be prejudicial to good order and discipline. 

d. Lesser included oflense. Article 80-attempts 

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 -, unlawfully enter the (dwelling house) (garage) 

(warehouse) (tent) (vegetable garden) (orchard) (stateroom) ( ) 

112. Article 134 (Weapon: concealed, carrying) 

a. Text. See paragraph 60. 

b. Elements. 

(1) That the accused carried a certain weapon concealed on or about the accused's person; 

(2) That the carrying was unlawful; 

(3) That the weapon was a dangerous weapon; and 

(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) Concealed weapon. A weapon is concealed when it is carried by a person and intentionally covered 

or kept from sight. 

(2)Dangerous weapon. For purposes of this paragraph, a weapon is dangerous if it was specifically 

designed for the purpose of doing grievous bodily harm, or it was used or intended to be used by the accused 

to do grievous bodily harm. 

(3) On or about. "On or about" means the weapon was carried on the accused's person or was within 

the immediate reach of the accused. 

d. Lesser included offense. Article 80-attempts 

e. Maximum punishment. Bad-conduct discharge, forfeiture of all pay and allowances, and confinement for 

1 year. 

f. Sample specijkation. 

In that (personal jurisdiction data), did, (at'on board-location) (subject-matter jurisdiction data, if required), on or about 19 -, unlawfully carry on or about hislher person a 

concealed weapon, to wit: a 

113. Article 134 (Wearing unauthorized insignia, decoration, badge, ribbon, device, or lapel button) 

a. Text. See paragraph 60. 

b. Elements 
(1) That the accused wore a certain insignia, decoration, badge, ribbon, device, or lapel button upon 

the accused's uniform or civilian clothing; 

(2) That the accused was not authorized to wear the item; 

(3) That the wearing was wrongful; and 

(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. None. 

d. Lesser included offense. Article 80-attempts 

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, (atlon board-location), on or about -

19 -,wrongfully and without authority wear upon histher (uniform) (civilian clothing) [the insignia of grade 

of a (master sergeant of ) (chief gunner's mate of )] [Combat Infantryman 

Badge] [The Distinguished Service Cross] [the ribbon representing the Silver Star] [the lapel button representing 

the Legion of Merit] [ 1. 
Part V 


NONJUDlClAL PUNISHMENT PROCEDURE 


1. General 

a. Authority. Nonjudicial punishment in the United States Armed Forces is authorized by Article 15. 

b. Nature. Nonjudicial punishment is a disciplinary measure more serious than the administrative corrective 

measures discussed in paragraph lg, but less serious than trial by court-martial. 

c. Purpose. Nonjudicial punishment provides commanders with an essential and prompt means of maintaining 

good order and discipline and also promotes positive behavior changes in servicemembers without the stigma of 

a court-martial conviction. 

d. Policy. 

(1) Commander's responsibility. Commanders are responsible for good order and discipline in their 

commands. Generally, discipline can be maintained through effective leadership including, when necessary, 

administrative corrective measures. Nonjudicial punishment is ordinarily appropriate when administrative corrective measures are inadequate due to the nature of the minor offense or the record of the servicemember, unless 

it is clear that only trial by court-martial will meet the needs of justice and discipline. Nonjudicial punishment 

shall be considered on an individual basis. Commanders considering nonjudicial punishment should consider the 

nature of the offense, the record of the servicemember, the needs for good order and discipline, and the effect 

of nonjudicial punishment on the servicemember and the servicemember's record. 

(2) Commander's discretion. A commander who is considering a case for disposition under Article 15 

will exercise personal discretion in evaluating each case, both as to whether nonjudicial punishment is appropriate, 

and, if so, as to the nature and amount of punishment appropriate. No superior may direct that a subordinate 

authority impose nonjudicial punishment in a particular case, issue regulations, orders, or "guides" which 

suggest to subordinate authorities that certain categories of minor offenses be disposed of by nonjudicial punishment instead of by court-martial or administrative corrective measures, or that predetermined kinds or amounts 

of punishments be imposed for certain classifications of offenses that the subordinate considers appropriate for 

disposition by nonjudicial punishment. 

(3) Commander's suspension authority. Commanders should consider suspending all or part of any 

punishment selected under Article 15, particularly in the case of first offenders or when significant extenuating 

or mitigating matters are present. Suspension provides an incentive to the offender and gives an opportunity to 

the commander to evaluate the offender during the period of suspension. 

e. Minor offenses. Nonjudicial punishment may be imposed for acts or omissions that are minor offenses 

under the punitive articles (see Part IV). Whether an offense is minor depends on several factors: the nature of 

the offense and the circumstances surrounding its commission; the offender's age, rank, duty assignment, record, 

and experience; and the maximum sentence imposable for the offense if tried by general court-martial. Ordinarily, 

a minor offense is an offense for which the maximum sentence imposable would not include a dishonorable 

discharge or confinement for longer than 1 year if tried by general court-martial. The decision whether an offense 

is "minor" is a matter of discretion for the commander imposing nonjudicial punishment, but nonjudicial 

punishment for an offense other than a minor offense (even though thought by the commander to be minor) is 

not a bar to trial by court-martial for the same offense. See R.C.M. 907(b)(2)(D)(iv). However, the accused 

niay show at trial that nonjudicial punishment was imposed, and if the accused does so, this fact must be 

considered in determining an appropriate sentence. See Article 15(f); R.C .M. 100 1 (c)(l)(B). 

f. Limitations on nonjudicial punishment. 

(1) Double punishment prohibited. When nonjudicial punishment has been imposed for an offense, 
punishment may not again be imposed for the same offense under Article 15. But see paragraph le concerning 

trial by court-martial. 

(2) Increase in punishment prohibited. Once nonjudicial punishment has been imposed, it may not be 

increased, upon appeal or otherwise. 

(3) Multiple punishment prohibited. When a commander determines that nonjudicial punishment is 

appropriate for a particular servicemember, all known offenses determined to be appropriate for disposition by 

nonjudicial punishment and ready to be considered at that time, including all such offenses arising from a single 

incident or course of conduct, shall ordinarily be considered together, and not made the basis for multiple 

punishments. 

(4) Statute of limitations. Except as provided in Article 43(d), nonjudicial punishment may not be 

imposed for offenses which were committed more than 2 years before the date of imposition. See Article 43(c). 

(5) Civilian courts. Nonjudicial punishment may not be imposed for an offense tried by a court which 

derives its authority from the United States. Nonjudicial punishment may not be imposed for an offense tried 

by a State or foreign court unless authorized by regulations of the Secretary concerned. 

g. Relationship of nonjudicial punishment to administrative corrective measures. Article 15 and Part V of 

this Manual do not apply to, include, or limit use of administrative corrective measures that promote efficiency 

and good order and discipline such as counseling, admonitions, reprimands, exhortations, disapprovals, criticisms, 

censures, reproofs, rebukes, extra military instruction, and administrative withholding of privileges. See also 

R.C.M. 306. Administrative corrective measures are not punishment, and they may be used for acts or omissions 

which are not offenses under the code and for acts or omissions which are offenses under the code. 

h. Effect of errors. Failure to comply with any of the procedural provisions of Part V of this Manual shall 

not invalidate a punishment imposed under Article 15, unless the error materially prejudiced a substantial right 

of the servicemember on whom the punishment was imposed. 

2. Who may impose nonjudicial punishment 

a. Commander. Unless otherwise provided by regulations of the Secretary concerned, a commander may 

impose nonjudicial punishment upon any military personnel of that command. "Commander" means a commissioned or warrant officer who, by virtue of rank and assignment, exercises primary command authority over 

a military organization or prescribed territorial area, which under pertinent official directives is recognized as a 

"command." Subject to subparagraph ld(2) and any regulations of the Secretary concerned, the authority of a 

commander to impose nonjudicial punishment as to certain types of offenses, certain categories of persons, or 

in specific cases, or to impose certain types of punishment, may be limited or withheld by a superior commander 

or by the Secretary concerned. 

b. Officer in charge. If authorized by regulations of the Secretary concerned, an officer in charge may 

impose nonjudicial punishment upon enlisted persons assigned to that unit. 

c. Principal assistant. If authorized by regulations of the Secretary concerned, a commander exercising 

general court-martial jurisdiction or an officer of general or flag rank in command may delegate that commander's 

powers under Article 15 to a principal assistant. The Secretary concerned may define "principal assistant." 

3. Right to demand trial 

Except in the case of a person attached to or embarked in a vessel, punishment may not be imposed under 

Article 15 upon any member of the armed forces who has, before the imposition of nonjudicial punishment, 

demanded trial by court-martial in lieu of nonjudicial punishment. This right may also be granted to a person 

attached to or embarked in a vessel if so authorized by regulations of the Secretary concerned. A person is 

"attached to" or "embarked in7' a vessel if, at the time nonjudicial punishment is imposed, that person is 

assigned or attached to the vessel, is on board for passage, or is assigned or attached to an embarked staff, unit, 

detachment, squadron, team, air group, or other regularly organized body. 
4. Procedure 

a. Notice. If, after a preliminary inquiry (see R.C.M. 303), the commander determines that disposition by 

nonjudicial punishment proceedings is appropriate (see R.C.M. 306; paragraph 1 of this Part), the commander 

shall cause the servicemember to be notified. The notice shall include: 

(1) a statement that the commander is considering the imposition of nonjudicial punishment; 

(2) a statement describing the alleged offenses-including the article of the code-which the member 

is alleged to have committed; 

(3) a brief summary of the information upon which the allegations are based or a statement that the 

member may, upon request, examine available statements and evidence; 

(4) a statement of the rights that will be accorded to the servicemember under subparagraphs 4c(l) and 

(2) of this Part; 

(5) unless the right to demand trial is not applicable (see paragraph 3 of this Part), a statement that 

the member may demand trial by court-martial in lieu of nonjudicial punishment, a statement of the maximum 

punishment which the commander may impose by nonjudicial punishment; a statement that, if trial by courtmartial is demanded, charges could be referred for trial by summary, special, or general court-martial; that the 

member may not be tried by summary court-martial over the member's objection; and that at a special or general 

court-martial the member has the right to be represented by counsel. 

b. Decision by sewicemember. 

(1) Demand for trial by court-martial. If the servicemember demands trial by court-martial (when this 

right is applicable), the nonjudicial proceedings shall be terminated. It is within the discretion of the commander 

whether to forward or refer charges for trial by court-martial (see R.C.M. 306; 307; 401-407) in such a case, 

but in no event may nonjudicial punishment be imposed for the offenses affected unless the demand is voluntarily 

withdrawn. 

(2) No demand for trial by court-martial. If the sewicemember does not demand trial by court-martial 

within a reasonable time after notice under paragraph 4a of this Part, or if the right to demand trial by courtmartial is not applicable, the commander may proceed under paragraph 4c of this Part. 

c. Nonjudicial punishment accepted. 

(1) Personal appearance requested; procedure. Before nonjudicial punishment may be imposed, the 

servicemember shall be entitled to appear personally before the commander-or the commander's delegee (see 

paragraph 2c of this Part)-who offered nonjudicial punishment, except when appearance is prevented by the 

unavailability of the commander or by extraordinary circumstances, in which case the servicemember shall be 

entitled to appear before a person designated by the commander who shall prepare a written summary of any 

proceedings before that person and forward it and any written matter submitted by the servicemember to the 

commander. If the servicemember requests personal appearance, the servicemember shall be entitled to: 

(A) Be informed in accordance with Article 31(b); 

(B) Be accompanied by a spokesperson provided or arranged for by the member unless the punishment 

to be imposed will not exceed extra duty for 14 days, restriction for 14 days, and an oral 

reprimand. Such a spokesperson need not be qualified under R.C.M: 502(d); such spokesperson 

is not entitled to travel or similar expenses, and the proceedings need not be delayed to permit 

the presence of a spokesperson; the spokesperson may speak for the servicemember, but may 

not question witnesses except as the commander may allow as a matter of discretion; 

(C) Be informed orally or in writing of the information against the servicemember and relating to 

the offenses alleged; 

(D) Be allowed to examine documents or physical objects against the member which the commander 

has examined in connection with the case and on which the commander intends to rely in 

deciding whether and how much nonjudicial punishment to impose; 

(E) Present matters in defense, extenuation, and mitigation orally, or in writing, or both; 
(F) Have present witnesses, including those adverse to the servicemember, upon request if their 

statements will be relevant and they are reasonably available. For purposes of this subparagraph, 

a witness is not reasonably available if the witness requires reimbursement by the United States 

for any cost incurred in appearing, cannot appear without unduly delaying the proceedings, or, 

if a military witness, cannot be excused from other important duties; 

(G) Have the proceeding open to the public unless the commander determines that the proceeding 

should be closed for good cause, such as military exigencies or security interests, or unless the 

punishment to be imposed will not exceed extra duty for 14 days, restriction for 14 days, and 

an oral reprimand; however, nothing in this subparagraph requires special arrangements to be 

made to facilitate access to the proceeding. 

(2)Personal appearance waived; procedure. If the servicemember waives the right to appear personally 

under subparagraph 4c(l) of this Part, the servicemember may submit written matters for consideration by the 

commander before the commander's decision under subparagraph 4c(4) of this Part. The servicemember shall 

be informed of the right to remain silent and that matters submitted may be used against the member in a trial 

by court-martial. 

(3) Evidence. The Military Rules of Evidence (Part III), other than with respect to privileges, do not 

apply at nonjudicial punishment proceedings. Any relevant matter may be considered, after compliance with 

subparagraphs 4c(l)(C) and (D) of this Part. 

(4) Commander's decision. After considering all relevant matters presented, if the commander- 

(A) Does not conclude that the servicemember committed the offenses alleged, the commander shall 

so inform the member and terminate the proceedings; 

(B) 	Concludes that the servicemember committed one or more of the offenses alleged, the commander 

shall: 

(i) so inform the servicemember; 

(ii) inform the servicemember of the punishment imposed; and 

(iii) inform the servicemember of the right to appeal (see paragraph 7 of this Part). 

d. Nonjudicial punishment based on record of court of inquiry or other investigative body. Nonjudicial 

punishment may be based on the record of a court of inquiry or other investigative body, in which proceeding 

the member was accorded the rights of a party. No additional proceeding under subparagraph 4c(l) of this Part 

is required. The servicemember shall be informed in writing that nonjudicial punishment is being considered 

based on the record of the proceedings in question, and given the opportunity, if applicable, to refuse nonjudicial 

punishment. If the servicemember does not demand trial by court-martial or has no option, the servicemember 

may submit, in writing, any matter in defense, extenuation, or mitigation, to the officer considering imposing 

nonjudicial punishment, for consideration by that officer to determine whether the member committed the offenses 

in question, and, if so, to determine an appropriate punishment. 

5. Punishments 

a. General limitations. The Secretary concerned may limit the power granted by Article 15 with respect to 

the kind and amount of the punishment authorized. Subject to paragraphs 1 and 4 of this Part and to regulations 

of the Secretary concerned, the kinds and amounts of punishment authorized by Article 15(b) may be imposed 

upon servicemembers as provided in this paragraph. 

b. Authorized maximum punishments. In addition to or in lieu of admonition or reprimand, the following 

disciplinary punishments may, subject to the limitations of paragraph 5d of this Part, be imposed by the following 

commanders upon servicemembers: 

(1) Upon commissioned officers and warrant officers- 

(A) By any commanding officer-restriction 	 to specified limits, with or without suspension from 

duty, for not more than 30 consecutive days; 
(B) If imposed by an officer exercising general court-martial jurisdiction or an officer of general or 

flag rank in command- 

(i) arrest in quarters for not more than 30 consecutive days; 

(ii) forfeiture of not more than one-half of 1 month's pay per month for 2 months; 

(iii) restriction to specified limits, with or without suspension from duty, for not more than 

60 consecutive days; 

(2) Upon other military personnel of the command- 

(A) By any commander- 

(i) if imposed upon a person attached to or embarked in a vessel, confinement on bread and 

water or diminished rations for not more than 3 consecutive days; 

(ii) correctional custody for not more than 7 consecutive days; 

(iii) forfeiture of not more than 7 days' pay; 

(iv) reduction to the next inferior grade, if the grade from which demoted is within the 

promotion authority of the officer imposing the reduction or any officer subordinate to the one who imposes the 

reduction; 

(v) extra duties, including fatigue or other duties, for not more than 14 consecutive days; 

(vi) restriction to specified limits, with or without suspension from duty, for not more than 

14 consecutive days; 

(B) If imposed by a commanding officer of the grade of major or lieutenant commander or above- 

(i) if imposed upon a person attached to or embarked in a vessel, confinement on bread and 

water or diminished rations for not more than 3 consecutive days; 

(ii) correctional custody for not more than 30 consecutive days; 

(iii) forfeiture of not more than one-half of 1 month's pay per month for 2 months; 

(iv) reduction to the lowest or any intermediate pay grade, if the grade from which demoted 

is within the promotion authority of the officer imposing the reduction or any officer subordinate to the one who 

imposes the reduction, but enlisted members in pay grades above E-4 may not be reduced more than one pay 

grade, except that during time of war or national emergency this category of persons may be reduced two grades 

if the Secretary concerned determines that circumstances require the removal of this limitation; 

(v) extra duties, including fatigue or other duties, for not more than 45 consecutive days; 

(vi) restriction to specified limits, with or without suspension from duty, for not more than 

60 consecutive days. 

c. Nature of punishments. 

(1) Admonition and reprimand. Admonition and reprimand are two forms of censure intended to express 

adverse reflection upon or criticism of a person's conduct. A reprimand is a more severe form of censure than 

an admonition. When imposed as nonjudicial punishment, the admonition or reprimand is considered to be 

punitive, unlike the nonpunitive admonition and reprimand provided for in paragraph If of this Part. In the case 

of commissioned officers and warrant officers, admonitions and reprimands given as nonjudicial punishment 

must be administered in writing. In other cases, unless otherwise prescribed by the Secretary concerned, they 

may be administered either orally or in writing. 

(2) Restriction. Restriction is the least severe form of deprivation of liberty. Restriction involves moral 

rather than physical restraint. The severity of this type of restraint depends on its duration and the geographical 

limits specified when the punishment is imposed. A person undergoing restriction may be required to report to 

a designated place at specified times if reasonably necessary to ensure that the punishment is being properly 
executed. Unless otherwise specified by the commander imposing this form of punishment, a person in restriction 

may be required to perform any military duty. 

(3)Arrest in quarters. As in the case of restriction, the restraint involved in arrest in quarters is enforced 

by a moral obligation rather than by physical means. This punishment may be imposed only on officers. An 

officer undergoing this punishment may be required to perform those duties prescribed by the Secretary concerned. 

However, an officer so punished is required to remain within that officer's quarters during the period of punishment 

unless the limits of arrest are otherwise extended by appropriate authority. The quarters of an officer may consist 

of a military residence, whether a tent, stateroom, or other quarters assigned, or a private residence when 

government quarters have not been provided. 

(4) Correctional custody. Correctional custody is the physical restraint of a person during duty or 

nonduty hours, or both, imposed as a punishment under Article 15, and may include extra duties, fatigue duties, 

or hard labor as an incident of correctional custody. A person may be required to serve correctional custody in 

a confinement facility, but, if practicable, not in immediate association with persons awaiting trial or held in 

confinement pursuant to trial by court-martial. A person undergoing correctional custody may be required to 

perform those regular military duties, extra duties, fatigue duties, and hard labor which may be assigned by the 

authority charged with the administration of the punishment. The conditions under which correctional custody 

is served shall be prescribed by the Secretary concerned. In addition, the Secretary concerned may limit the 

categories of enlisted members upon whom correctional custody may be imposed. The authority competent to 

order the release of a person from correctional custody shall be as designated by the Secretary concerned. 

(5) Confinement on bread and water or diminished rations. Confinement on bread and water or 

diminished rations involves confinement in places where the person so confined may communicate only with 

authorized personnel. The ration to be furnished a person undergoing a punishment of confinement on bread and 

water or diminished rations is that specified by the authority charged with the administration of the punishment, 

but the ration may not consist solely of bread and water unless this punishment has been specifically imposed. 

When punishment of confinement on bread and water or diminished rations is imposed, a signed certificate of 

a medical officer containing an opinion that no serious injury to the health of the person to be confined will be 

caused by that punishment, must be obtained before the punishment is executed. The categories of enlisted 

personnel upon whom this type of punishment may be imposed may be limited by the Secretary concerned. 

(6)Extra duties. Extra duties involve the performance of duties in addition to those normally assigned 

to the person undergoing the punishment. Extra duties may include fatigue duties. Military duties of any kind 

may be assigned as extra duty. However, no extra duty may be imposed which constitutes a known safety or 

health hazard to the member or which constitutes cruel or unusual punishment or which is not sanctioned by 

customs of the service concerned. Extra duties assigned as punishment of noncommissioned officers, petty 

officers, or any other enlisted persons of equivalent grades or positions designated by the Secretary concerned, 

should not be of a kind which demeans their grades or positions. 

(7)Reduction in grade. Reduction in grade is one of the most severe forms of nonjudicial punishment 

and it should be used with discretion. As used in Article 15, the phrase "if the grade from which demoted is 

within the promotion authority of the officer imposing the reduction or any officer subordinate to the one who 

imposes the reduction" does not refer to the authority to promote the person concerned but to the general authority 

to promote to the grade held by the person to be punished. 

(8) Foqeiture of pay. Forfeiture means a permanent loss of entitlement to the pay forfeited. "Pay," 

as used with respect to forfeiture of pay under Article 15, refers only to the basic pay of the person plus any 

sea or foreign duty pay. "Basic pay" includes no element of pay other than the basic pay fixed by statute for 

the grade and length of service of the person concerned and does not include special pay for a special qualification, 

incentive pay for the performance of hazardous duties, proficiency pay, subsistence and quarters allowances, 

and similar types of compensation. If the punishment includes both reduction, whether or not suspended, and 

forfeiture of pay, the forfeiture must be based on the grade to which reduced. The amount to be forfeited will 

be expressed in whole dollar amounts only and not in a number of day's pay or fractions of monthly pay. If the 

forfeiture is to be applied for more than 1 month, the amount to be forfeited per month and the number of months 

should be stated. Forfeiture of pay may not extend to any pay accrued before the date of its imposition. 

d. Limitations on combinations of punishment. 
(1) Arrest in quarters may not be imposed in combination with restriction; 

(2) Confinement on bread and water or diminished rations may not be imposed in combination with 

correctional custody, extra duties, or restriction; 

(3) Correctional custody may not be imposed in combination with restriction or extra duties; 

(4) Restriction and extra duties may be combined to run concurrently, but the combination may not 

exceed the maximum imposable for extra duties. 

(5) Subject to the limits in subparagraphs d(1) through (4) all authorized punishments may be imposed 

in a single case in the maximum amounts. 

e. Effective date and execution of punishments. Reduction and forfeiture of pay, if unsuspended, take effect 

on the date the commander imposes the punishments. Other punishments, if unsuspended, will take effect and 

be carried into execution as prescribed by the Secretary concerned. 

6. Suspension, mitigation, remission, and setting aside 

a. Suspension. The commander who imposes nonjudicial punishment, or a successor in command over the 

person punished, may, at any time, suspend any part or amount of the unexecuted punishment imposed and may 

suspend a reduction in grade or a forfeiture, whether or not executed, subject to the following rules: 

(1) An executed punishment of reduction or forfeiture of pay may be suspended only within a period 

of 4 months after the date of execution. 

(2) Suspension of a punishment may not be for a period longer than 6 months from the date of the 

suspension, and the expiration of the current enlistment or term of service of the servicemember involved 

automatically terminates the period of suspension. 

(3) Unless the suspension is sooner vacated, suspended portions of the punishment are remitted, without I 


I, further action, upon the termination of the period of suspension. 


(4) A suspension may be vacated by any commander competent to impose upon the offender concerned 

punishment of the kind and amount involved in the vacation of suspension. Vacation of suspension may only 

be based on an offense under the code committed during the period of suspension. Before a suspension may be 

vacated, the servicemember ordinarily shall be notified and given an opportunity to respond. Although a hearing 

is not required to vacate a suspension, if the punishment suspended is of the kind set forth in Article 15(e)(l)- 

(7) the servicemember should, unless impracticable, be given an opportunity to appear before the officer authorized 

to vacate suspension of the punishment to present any matters in defense, extenuation or mitigation of the offense 

on which the vacation action is to be based. Vacation of a suspended nonjudicial punishment is not itself 

nonjudicial punishment, and additional action to impose nonjudicial punishment for the offense upon which the 

vacation action is based is not precluded thereby. 

b. Mitigation. Mitigation is a reduction in either the quantity or quality of a punishment, its general nature 

remaining the same. Mitigation is appropriate when the offender's later good conduct merits a reduction in the 

punishment, or'when it is determined that the punishment imposed was disproportionate. The commander who 

imposes nonjudicial punishment or a successor in command may, at any time, mitigate.any part or amount of 

the unexecuted portion of the punishment imposed. The commander may also mitigate reduction in grade, whether 

executed or unexecuted, to forfeiture of pay, but the amount of the forfeiture may not be greater than the amount 

that could have been imposed by the officer who initially imposed the nonjudicial punishment. Reduction in 

grade may be mitigated to forfeiture of pay only within 4 months after the date of execution. 

When mitigating- 

(1) Arrest in quarters to restriction; 

(2) Confinement on bread and water or diminished rations to correctional custody; 

(3) Correctional custody or confinement on bread and water or diminished rations to extra duties or 

restriction, or both; or 

(4) Extra duties to restriction, 
the mitigated punishment may not be for a greater period than the punishment mitigated. As restriction is the 

least severe form of deprivation of liberty, it may not be mitigated to a lesser period of another form of deprivation 

of liberty, as that would mean an increase in the quality of the punishment. 

c. Remission. Remission is an action whereby any portion of the unexecuted punishment is cancelled. 

Remission is appropriate under the same circumstances as mitigation. The commander who imposes nonjudicial 

punishment or a successor in command may, at any time, remit any part or amount of the unexecuted portion 

of the punishment imposed. The expiration of the current enlistment or term of service of the servicemember 

automatically remits any unexecuted punishment imposed under Article 15. 

d. Setting aside. Setting aside is an action whereby the punishment or any part or amount thereof, whether 

executed or unexecuted, is set aside and any property, privileges, or rights affected by the portion of the punishment 

set aside are restored. The commander who imposes nonjudicial punishment or a successor in command may 

set aside punishment. The power to set aside punishments and restore rights, privileges, and property affected 

by the executed portion of a punishment should ordinarily be exercised only when the authority considering the 

case believes that, under all the circumstances of the case, the punishment has resulted in a clear injustice. Also, 

the power to set aside an executed punishment should ordinarily be exercised only within a reasonable time after 

the punishment has been executed. In this connection, 4 months is a reasonable time in the absence of unusual 

circumstances. 

7. Appeals 

a. In general. Any servicemember punished under Article 15 who considers the punishment to be unjust 

or disproportionate to the offense may appeal through the proper channels to the next superior authority. 

b. Who may act on appeal. A "superior authority," as prescribed by the Secretary concerned, may act on 

an appeal. When punishment has been imposed under delegation of a commander's authority to administer 

nonjudicial punishment (see paragraph 2c of this Part), the appeal may not be directed to the commander who 

delegated the authority. 

c. Format of appeal. Appeals shall be in writing and may include the appellant's reasons for regarding the 

punishment as unjust or disproportionate. 

d. Time limit. An appeal shall be submitted within 5 days of imposition of punishment, or the right to 

appeal shall be waived in the absence of good cause shown. A servicemember who has appealed may be required 

to undergo any punishment imposed while the appeal is pending, except that if action is not taken on the appeal 

within 5 days after the appeal was submitted, and if the servicemember so requests, any unexecuted punishment 

involving restraint or extra duty shall be stayed until action on the appeal is taken. 

e. Legal review. Before acting on an appeal from any punishment of the kind set forth in Article 15(e)(l)- 

(7), the authority who is to act on the appeal shall refer the case to a judge advocate or to a lawyer of the 

Department of Transportation for consideration and advice, and may so refer the case upon appeal from any 

punishment imposed under Article 15. When the case is referred, the judge advocate or lawyer is not limited to 

an examination of any written matter comprising the record of proceedings and may make any inquiries and 

examine any additional matter deemed necessary. 

f. Action by superior authority. 

(1) In general. In acting on an appeal, the superior authority may exercise the same power with respect 

to the punishment imposed as may be exercised under Article 15(d) and paragraph 6 or this Part by the officer 

who imposed the punishment. The superior authority may take such action even if no appeal has been filed. 

(2)Matters considered. When reviewing the action of an officer who imposed nonjudicial punishment, 

the superior authority may consider the record of the proceedings, any matters submitted by the servicemember, 

any matters considered during the legal review, if any, and any other appropriate matters. 

(3) Additional proceedings. If the superior authority sets aside a nonjudicial punishment due to a 

procedural error, that authority may authorize additional proceedings under Article 15, to be conducted by the 

officer who imposed the nonjudicial punishment, or a successor in command, for the same offenses involved in 
the original proceedings. Any punishment imposed as a result of these additional proceedings may be no more 

severe than that originally imposed. 

(4)Notification. Upon completion of action by the superior authority, the servicemember upon whom 

punishment was imposed shall be promptly notified of the result. 

(5)Delegation to principal assistant. If authorized by regulations of the Secretary concerned a superior 

authority who is a commander exercising general court-martial jurisdiction, or is an officer of general or flag 

rank in command, may delegate the power under Article 15(e) and this paragraph to a principal assistant. 

8. Records of nonjudicial punishment 

The. content, format, use, and disposition of records of nonjudicial punishment may be prescribed by 

regulations of the Secretary concerned. 
APPENDIX 1 


CONSTITUTION 


OF THE UNITED STATES 


We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common 

defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this 

Constitution for the United States of America. 

ARTICLE I 

Sectlon1. All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House 

of Representatives. 

Section2. The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and 

the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature. 

No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United 

States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen. 

'Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their 

respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of 

Years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three Years after the first 

Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The 

Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; and until such 

enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode-Island and Providence 

Plantations one, Connecticut five, New York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina 

five, South Carolina five, and Georgia three. 

When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such 

Vacancies. 

The House of Representatives shall chuse their Speaker and other officers; and shall have the sole Power of Impeachment. 

2Section3. The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six 

Years; and each Senator shall have one Vote. 

Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes. 

The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth 

Year, and of the third Class at the Expiration of the sixth Year, so that one third may be chosen every second Year; and, if Vacancies happen by 

Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the 

next Meeting of the Legislature, which shall then fill such Vacancies. 

No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and 

who shall not, when elected, be an Inhabitant of that State for which he shall be chosen. 

The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided. 

The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise 

the Office of President of the United States. 

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpise, they shall be an Oath or Affirmation. When the 

.President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of 

the Members present. 

Judgment in Cases of Impeachment shall not extend further than to removal from Oflice, and disqualification to hold and enjoy any Office of 

honor, Trust or Profit under the United States; but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and 

Punishment, according to Law. 

Section4. The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the 

Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators. 

'This clause has been affected by the 14th and 16th amendments. 


This section has been affected by the 17th amendment. 

Art. 1, 9 5 APPENDIX 1 

The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by 

Law appoint a different Day. 

Section 5. Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall 

constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of 

absent Members, in such Manner, and under such Penalties as each House may provide. 

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two 

thirds, expel a Member. 

Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment 

require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered 

on the Journal. 

Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other 

Place than that in which the two Houses shall be sitting. 

Section6. The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the 

Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their 

Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, 

they shall not be questioned in any other Place. 

No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the 

United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any 

Office under the United States, shall be a Member of either House during his Continuance in Office. 

Section 7. All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with 

Amendments as on other Bills. 

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it becomes a Law, be presented to the President 

of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, 

who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall 

agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved 

by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by Yeas and Nays, and the 

Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by 

the Resident within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had 

signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law. 

Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a 

question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, 

or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations 

prescribed in the Case of a Bill. 

Sectlon 8. The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the 

common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States; 

To borrow Money on the credit of the United States; 

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; 

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States; 

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures; 

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States; 

To establish Post Offices and post Roads; 

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their 

respective Writings and Discoveries; 

To constitute Tribunals inferior to the supreme Court; 

To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations; 

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; 

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; 

To provide and maintain a Navy; 

To make Rules for the Government and Regulation of the land and naval Forces; 

This clguse has been affected by the 20th amendment. 
CONSTITUTION AH. 11, 5 1 

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; 

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the 

United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the 

discipline prescribed by Congress; 

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular 

States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places 

purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, 

and other needful Buildings;-And 

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this 

Constitution in the Government of the United States, or in any Department or Officer thereof. 

Sectlon9. The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited 

by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten 

dollars for each Person. 

The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may 

require it. 

No Bill of Attainder or ex post facto Law shall be passed. 

No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken. 

No Tax or Duty shall be laid on Articles exported from any State. 

No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels 

bound to, or from, one State, be obliged to enter, clear, or pay Duties in another. 

No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the 

Receipts and Expenditures of all public Money shall be published from time to time. 

No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the 

Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State. 

Sectlon 10.No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills 

of Credit; make any Thing but gold and silver Coin a Tender in Fayment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing 

the Obligation of Contracts, or grant any Title of Nobility. 

No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely 

necessary for executing its inspection Laws; and the net Produce of all Duties and Imports, laid by any State on Imports or Exports shall be for the 

Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress. 

No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any 

Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will 

not admit of delay. 

ARTICLE II 

SectIan 1. The executive Power shall be vested in a President of the United States of Americi. He shall hold his Office during the Term of 

four Years, and, together with the Vice Resident, chosen for the same Term, be elected, as follows 

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators 

and Representatives to which the State may be entitled in the Congress; but no Senator or Representative, or Person holding an Oflice of Trust or 

FMit under the United States, shall be appointed an Elector. 

4The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the 

same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign 

and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the 

Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person 

having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there 

be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by 

Ballot one of them for Resident; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse 

the President. But in chusing the Resident, the Votes shall be taken by States, the Representation from each State having one Vote; a quorum for 

this Purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all States shall be necessary to a Choice. In 

every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if 

there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President. 

The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same 

throughout the United States. 

'This clause has been affected by the 12th amendment. 
Art. 11, 9 2 APPENDIX 1 

No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to 

the Office of Resident; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been 

fourteen Years a Resident within the United States. 

In the Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the 

said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or 

Inability,.both of the President and Vice President; declaring what Officer shall then act as President, and such Officer shall act accordingly, until 

the Disability be removed, or a President shall be elected. 

The Resident shall, at stated Times, receive for his Services, a Compensation, which shall neither be encreased nor diminished during the 

Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of 

them. 

Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:-"I do solemnly swear (or affirm) that I will 

faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of 

the United States." 

Sectlon 2. The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, 

when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive 

Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for 

Offences against the United States, except in Cases of Impeachment. 

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; 

and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, 

Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which 

shall be established by Law; but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President 

alone, in the Courts of Law, or in the Heads of Departments. 

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall 

expire at the End of their next Session. 

Sectlon 3. He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration 

such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in 

Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he 

shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the 

Officers of the United States. 

Sedlon 4. The Resident, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and 

Conviction of, 'Reason, Bribery, or other high Crimes and Misdemeanors. 

ARTICLE Ill 

Section 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may 

from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and 

shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office. 

Sectlon2. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, 

and Treaties made, or which shall be made, under their Authority;-to all Cases affecting Ambassadors, other public Ministers and Consuls;-to 

all Cases of admiralty and maritime Jurisdiction;-to Controversies to which the United States shall be a Party;-to Controversies between two or 

more States;-between a State and Citizens of another State;-between Citizens of different States;-between Citizens of the same State claiming 

Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. 

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall 

have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, 

with such Exceptions, and under such Regulations as the Congress shall make. 

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall 

have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have 

directed. 

Section3.Treason against the United States, shall consist only in levying War against them, or in adhe~g to their Enemies, giving them 

Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in 

open Court. 

The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Cormption of Blood, or 

Forfeiture except during the Life of the Person attainted. 

ARTICLE IV 

Section1. Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And 

the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof. 
CONSTITUTION 

Sectlon 2. The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States. 

A.Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on 

Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime. 

No Person held to Service or Labor in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or 

Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Farty to whom such Service or Labour 

may be due. 

Sectlon 3. New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction 

of any other State; nor any State be formed by the Junction of two or more States, or Farts of States, without the Consent of the Legislatures of the 

States concerned as well as of the Congress. 

The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging 

to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular 

State. 

Section4. The United States shall guarantee to every State in this Union a Republican Form of Govenunent, and shall protect each of them 

against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence. 

ARTICLE V 

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the 

Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall 

be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by 

Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment 

which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth 

Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate. 

ARTICLE VI 

All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under 

this Constitution, as under the Confederation. 

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, 

under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in 

the Constitution or Laws of any State to the Contrary notwithstanding. 

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial 

Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious 

Test shall ever be required as a Qualification to any Office or public Trust under the United States. 

ARTICLE VII 

The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying 

the Same. 

Articles in Addition to, and Amendment 4 the Consititution of the United States of America, Proposed by Congress, and Rat.$ed by the 

Legislatures of the Several States Pursuant to the Fifth Article of the Original Constitution 

AMENDMENT l 

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of 

speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. 

AMENDMENT ll 

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. 

AMENDMENT Ill 

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be 

prescribed by law. 
Amdt. IV APPENDIX 1 

AMENDMENT lV 

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be 

violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be 

searched, and the persons or things to be seized. 

AMENDMENT V 

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in 

cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for 

the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be 

deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. 

AMENDMENT Vl 

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein 

the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of 

the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the 

Assistance of Counsel for his defence. 

AMENDMENT VII 

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact 

tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law. 

AMENDMENT Vlll 

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. 

AMENDMENT IX 

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. 

AMENDMENT X 

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or 

to the people. 

AMENDMENT XI 

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of 

the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. 

AMENDMENT XI1 

The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an 

inhabitant of the same state with themselves; they shall name in their ballots the person voted for as Resident, and in distinct ballots the person 

voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, 

and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, 

directed to the President of the Senate;-The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the 

certificates and the votes shall then be counted;-The person having the greatest number of votes for President, shall be the President, if such 

number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest 

numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the 

President. But in choosing the Resident, the votes shall be taken by states, the representation from each state having one vote; a quorum for this 

purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if 

the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March 

next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President.-The 

person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of 

Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a 

quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a 

choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-Resident of the United States. 
Amdt. XVIII, 5 2 

AMENDMENT Xlll 

Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, 

shall exist within the United States, or any place subject to their jurisdiction. 

Section 2. Congress shall have power to enforce this article by appropriate legislation. 

AMENDMENT XIV 

Section1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of 

the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United 

States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction 

the equal protection of the laws. 

Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole 

number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and 

Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature 

thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way 

abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the 

number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State. 

Section3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or 

military, under the United States, or under any State, who, having previously taken an oath, as a Member of Congress, or as an officer of the 

United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United 

States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote 

of two-thirds of each House, remove such disability. 

Sectlon4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and 

bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or 

pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any 

slave; but all such debts, obligations and claims shall be held illegal and void. 

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article. 

AMENDMENT XV 

Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of 

race, color, or previous condition of servitude. 

Section 2. The Congress shall have power to enforce this article by appropriate legislation. 

AMENDMENT XVI 

The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several 

States, and without regard to any census or enumeration. 

AMENDMENT XVll 

The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each 

Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State 

legislature. 

When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill 

such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people 

fill the vacancies by election as the legislature may direct. 

This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the 

Constitution. 

Section 1. After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the 

importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes 

is hereby prohibited. 

Section 2. The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation. 

This article was repealed by the 21st amendment. 

A1-7 
Amdt. XVIII, 9 3 APPENDIX 1 

Section3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the 

several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress. 

AMENDMENT XIX 

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex. 

Congress shall have power to enforce this article by appropriate legislation. 

AMENDMENT XX 

Section 1. The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of Senators and 

Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the 

terms of their successors shall then begin. 

Section2. The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January, unless 

they shall by law appoint a different day. 

Section3. If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice Resident elect shall 

become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have 

failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for 

the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as Resident, or the manner in 

which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified. 

Sectlon 4. The Congress may by law provide for the case of the death of any of the persons from whom the House of Representatives may 

choose a Resident whenever the right of choice shall have devolved upon them, and for the case of the death of any of the persons from whom the 

Senate may choose a Vice President whenever the right of choice shall have devolved upon them. 

Section 5. Sections 1 and 2 shall take effect on the 15th day of October following the ratification of this article. 

Section6. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of threefourths of the several States within seven years from the date of its submission. 

AMENDMENT XXI 

Section 1. The eighteenth article of amendment to the Constitution of the United States is hereby repealed. 

Section 2. The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of 

intoxicating liquors,. in violation of the laws thereof, is hereby prohibited. 

Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the 

several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress. 

AMENDMENT XXll 

Sectbn 1. No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or 

acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President 

more than once. But this Article shall not apply to any person holding the office of President when this Article was proposed by the Congress, and 

shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this Article becomes 

operative from holding the office of President or acting as President during the remainder of such term. 

Section2. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of threefourths of the several States within seven years from the date of its submission to the States by the Congress. 

AMENDMENT XXlll 

Section 1.The District constituting the seat of Government of the United States shall appoint in such manner as the Congress may direct: 

A number of electors of President and Vice Resident equal to the whole number of Senators and Representatives in Congress to which the 

District would be entitled if it were a State, but in no event more than the least populous State; they shall be in addition to those appointed by the 

States, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a State; and they 

shall meet in the District and perform such duties as provided by the twelfth article of amendment. 

Section 2. The Congress shall have power to enforce this article by appropriate legislation. 
CONSTITUTION Amdt. XXVI, Q 2 

AMENDMENT XXlV 

Section 1. The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for 

President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by 

reason of failure to pay any poll tax or other tax. 

Section 2. The Congress shall have power to enforce this article by appropriate legislation. 

AMENDMENT XXV 

Section 1. In case of the removal of the President from office or of his death or resignation, the Vice Resident shall become President. 

Section 2. Whenever there is a vacancy in the office of the Vice Resident, the President shall nominate a Vice President who shall take 

office upon confirmation by a majority vote of both Houses of Congress. 

Section3. Whenever the President transmits to the Resident pro tempore of the Senate and the Speaker of the House of Representatives his 

written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the 

contrary, such powers and duties shall be discharged by the Vice President as Acting President. 

Sectlon4. Whenever the Vice President and a majority of either the principal officers of the Executive departments or of such other body as 

Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written 

declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers 

and duties of the office as Acting Resident. 

Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his , 

written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the 

principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the Resident pro 

tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers 

and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the 

Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after 

Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of 

his office, the Vice Resident shall continue to discharge the same as Acting President; otherwise, the Resident shall resume the powers and duties 

of his office. 

AMENDMENT XXVl 

SeOtion 1. The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the 

United States or by any State on account of age. 

Section 2. The Congress shall have power to enforce this article by appropriate legislation. 
APPENDIX 2 

UNIFORM CODE OF MILITARY JUSTICE 

Chapter 47. UNIFORM CODE OF MILITARY JUSTICE 

Subchapter Sec. Art. 

I. General Provisions. ............................................................................. .801 1 


11. Apprehension and Restraint ...................................................................... ,807 7 


ID. Non-Judicial Punishment. ........................................................................ .815 15 


N. Court-MartialJurisdiction......................................................................... 816 16 


V. Composition of Courts-Martial. ................................................................... .822 22 


VI. Re-Trial Procedure ............................................................................. ,830 30 


W. Trial Procedure. ................................................................................ .836 36 


wI. Sentences.. ................................................................................... ,855 55 


IX. Post-'Rial Procedure and Review of Courts-Martial ................................................... ,859 59 


X. Punitive Articles ................................................................................ 877 77 


XI. Miscellaneous Provisions ........................................................................ ,935 135 


Subchapter 1. GENERAL PROVISIONS 

Sec. Art. 

801. 1. Definitions. 

802. 2. Persons subject to this chapter. 

803. 3. Jurisdiction to try certain personnel. 

804. 4. Dismissed officer's right to trial by court-martial. 

805. 5. Territorial applicability of this chapter. 

806. 6. Judge advocates and legal officers. 

g 801. Art. 1. Definitions 

In this chapter: 

(1) "Judge Advocate General" means, severally, the Judge Advocates General of the Army, Navy, and Air Force and, except when the 

Coast Guard is operating as a service in the Navy, the General Counsel of the Department of 'Itansportation. 

(2) The Navy, the Marine Corps, and the Coast Guard when it is operating as a service in the Navy, shall be considered as one armed 

force. 

(3) "Commanding officer" includes only commissioned officers. 

(4) "Officer in charge" means a member of the Navy, the Marine Corps, or the Coast Guard designated as such by appropriate 

authority. 

(5) "Superior commissioned officer" means a commissioned officer superior in rank or command. 

(6) "Cadet" means a cadet of the United States Military Academy, the United States Air Force Academy, or the United States Coast 

Guard Academy. 

(7) "Midshipman" means a midshipman of the United States Naval Academy and any other midshipman on active duty in the naval 

service. 

(8) "Military" refers to any or all of the armed forces. 

(9) "Accuser" means a person who signs and swears to charges, any person who directs that charges nominally be signed and sworn to 

by another, and any other person who has an interest other than an official interest in the prosecution of the accused. 

(10) "Military judge" means an official of a general or special court-martial detailed in accordance with section 826 of this title 

(article 26). 

(11) "Law specialist" means a commissioned officer of the Coast Guard designated for special duty (law). 

(12) "Legal officer" means any commissioned officer of the Navy, Marine Corps, or Coast Guard designated to perform legal duties for 

a command. 
5 801. Art. l(13) 	 APPENDIX 2 

(13) "Judge Advocate" means-

(A) an officer of the Judge Advocate General's Corps of the Amy or the Navy; 

(B) an officer of the Air Force or the Marine Corps who is designated as a judge advocate; or 

(C) an officer of the Coast Guard who is designated as a law specialist. 

(14) "Record", when used in connection with the proceedings of a court-martial, means- 

(A) an official written transcript, written summary, or other writing relating to the proceedings; or 

(B) 	an official audiotape, videotape, or similar material from which sound, or sound and visual images, depicting the proceedings 

may be reproduced. 

9 802. Art. 2. Persons subject to thls chapter 

(a) The following persons are subject to this chapter: 

(1) Members of a regular component of the armed forces, including those awaiting discharge after expiration of their terms of 

enlistment; volunteers from the time of their muster or acceptance into the armed forces; inductees from the time of their actual induction into the 

armed forces; and other persons lawfully called or ordered into, or to duty in or for training in, the armed forces, from the dates when they are 

required by the terms of the call or order to obey it. 

(2) Cadets, aviation cadets, and midshipmen. 

(3) Members of a reserve component while they are on inactive duty training authorized by written orders which are voluntarily 

accepted by them and which specify that they are subject to this chapter. 

(4) Retired members of a regular component of the armed forces who are entitled to pay. 

(5) Retired members of a reserve component who are receiving hospitalization from an armed force. 

(6) Members of the Fleet Reserve and Fleet Marine Corps Reserve. 

(7) Persons in custody of the armed forces serving a sentence imposed by a court-martial. 

(8) Members of the National Oceanic and Atmospheric Administration, Public Health Service, and other organizations, when 

assigned to and serving with the armed forces. 

(9) Prisoners of war in custody of the armed forces. 

(10) In time of war, persons serving with or accompanying an armed force in the field. 

(11) Subject to any treaty or agreement to which the United States is or may be a party or to any accepted rule of international law, 

persons serving with, employed by, or accompanying the armed forces outside the United States and outside the Canal Zone, the Commonwealth 

of Puerto Rico, Guam, and the Virgin Islands. 

(12) Subject to any treaty or agreement to which the United States is or may be a party or to any accepted rule of international law, 

persons within an area leased by or otherwise reserved or acquired for the use of the United States which is under the control of the Secretary 

concerned and which is outside the United States and outside the Canal Zone, the Commonwealth of Puerto Rico, Guam, and the Virgin Islands. 

(b) The voluntary enlistment of any person who has the capacity to understand the significance of enlisting in the armed forces shall be valid 

for purposes of jurisdiction under subsection (a) and a change of status from civilian to member of the armed forces shall be effective upon the 

taking of the oath of enlistment. 

(c) Notwithstanding any other provision of law, a person serving with an armed force who- 

(1) submitted voluntarily to military authority; 

(2) met the mental competency and minimum age qualifications of sections 504 and 505of this title at the time of voluntary submission 

to militaxy authority; 

(3) received military pay or allowances; and 

(4) performed military duties; 

is subject to this chapter until such person's active service has been terminated in accordance with law or regulations promulgated by the Secretary 

concerned. 

5 803. Art. 3. Jurlsdlctlon to try certaln personnel 

(a) Subject to section 843 of this title (article 43), no person charged with having committed, while in a status in which he was subject to this 

chapter, an offense against this chapter, punishable by confinement for five years or more and for which the person cannot be med in the courts of 

the United States or of a State, a Tenitory, or the District of Columbia, may be relieved from amenability to trial by court-mdal by reason of the 

termination of that status. 
UNIFORM CODE OF MILITARY JUSTICE Q 807. Art. 7(c) 

(b) Each person discharged from the armed forces who is later charged with having fraudulently obtained his discharge is, subject to section 

843 of this title (article 43). subject to trial by court-martial on that charge and is after apprehension subject to this chapter while in the custody of 

the anned forces for that trial. Upon conviction of that charge he is subject to trial by court-martial for all offenses under this chapter committed 

before the fraudulent discharge. 

(c) No person who has deserted from the armed forces may be relieved from amenability to the jurisdiction of this chapter by virtue of a 

separation from any later period of service. 

Q 804. Art. 4. Dismissed officer's right to trial by court-martial 

(a) If any commissioned officer, dismissed by order of the Resident, makes a written application for trial by court-martial setting forth, under 

oath, that he has been wrongfully dismissed, the President, as soon as practicable, shall convene a general court-martial to try that officer on the 

charges on which he was dismissed. A court-martial so convened has jurisdiction to try the dismissed officer on those charges, and he shall be 

considered to have waived the right to plead any statute of limitations applicable to any offense with whch he is charged. The court-martial may, as 

part of its sentence, adjudge the affirmance of the dismissal, but if the court-martial acquits the accused or if the sentence adjudged, as finally 

approved or afhed, does not include dismissal or death, the Secretary concerned shall substitute for the dismissal ordered by the President a 

form of discharge authorized for administrative issue. 

(b) If the Resident fails to convene a general court-martial within six months from the presentation of an application for trial under this 

article, the Secretary concerned shall substitute for the dismissal order by the Resident a form of discharge authorized for administrative issue. 

(c) If a discharge is substituted for a dismissal under this article, the President alone may reappoint the officer to such commissioned grade 

and with such rank as, in the opinion of the Resident, that former officer would have attained had he not been dismissed. The reappointment of 

such a former officer shall be without regard to the existence of a vacancy and shall affect the promotion status of other officers only insofar as the 

President may direct. All time between the dismissal and the reappointment shall be considered as actual service for all purposes, including the 

right to pay and allowances. 

(d) If an officer is discharged from any armed force by administrative action or is dropped from the rolls by order of the Resident, he has no 

right to trial under this article. 

Q 805. Art. 5. Territorlal applicability of this chapter 

This chapter applies in all places. 

Q 806. Art. 6. Judge Advocates and legal officers 

(a) The assignment for duty of judge advocates of the Army, Navy, Air Force, and Coast Guard shall be made upon the recommendation of 

the Judge Advocate General of the armed force of which they are members. The assignment for duty of judge advocates of the Marine Corps shall 

be made by direction of the Commandant of the Marine Corps. The Judge Advocate General or senior members of his staff shall make frequent 

inspection in the field in supervision of the administration of military justice. 

(b) Convening authorities shall at all times communicate directly with their staff judge advocates or legal officers in matters relating to the 

administration of military justice; and the staff judge advocate or legal officer of any command is entitled to communicate directly with the staff 

judge advocate or legal officer of a superior or subordinate command, or with the Judge Advocate General. 

(c) No person who has acted as member, military judge, trial counsel, assistant trial counsel, defense counsel, assistant defense counsel, or 

investigating officer in any case may later act as a staff judge advocate or legal officer to any reviewing authority upon the same case. 

Subchapter II. APPREHENSION AND RESTRAINT 

Sec. Art. 

807. 7. Apprehension. 

808. 8. Apprehension of deserters. 

809. 9. Imposition of restraint. 

810. 10. Restraint of persons charged with offenses. 

811. 11. Reports and receiving of prisoners. 

812. 12. Confinement with enemy prisoners prohibited. 

813. 13. Punishment prohibited before trial. 

814. 14. Delivery of offenders to civil authorities. 

Q 807. Art. 7. Apprehension 

(a) Apprehension is the taking of a person into custody. 

(b) Any person authorized under regulations governing the armed forces to apprehend persons subject to this chapter or to trial thereunder 

may do so upon reasonable belief that an offense has been committed and that the person apprehended committed it. 

(c) Commissioned officers, warrant officers, petty officers, and noncommissioned officers have authority to quell quarrels, frays and 

disorders among persons subject to this chapter and to apprehend persons subject to this chapter who take part therein. 
g 808. Art. 8 APPENDIX 2 

5 808. Art. 8. Apprehension of deserters 

Any civil officer having authority to apprehend offenders under the laws of the United States or of a State, Territory, Commonwealth, or 

possession, or the District of Columbia may summarily apprehend a deserter from the armed forces and deliver him into the custody of those 

forces. 

9 809. Art. 9. lmposltlon of restralnt 

(a) Arrest is the restraint of a person by an order, not imposed as a punishment for an offense, directing him to remain within certain specified 

limits. Confinement is the physical restraint of a person. 

(b) An enlisted member may be ordered into arrest or confinement by any commissioned officer by an order, oral or written, delivered in 

person or through other persons subject to this chapter. A commanding officer may authorize warrant officers, petty officers, or noncommissioned 

officers to order enlisted members of his command or subject to his authority into arrest or confinement. 

(c) A commissioned officer, a warrant officer, or a civilian subject to this chapter or to ha1 thereunder may be ordered into arrest or 

confinement only by a commanding officer to whose authority he is subject, by an order, oral or written, delivered in person or by another 

commissioned officer. The authority to order such persons into arrest or confinement may not be delegated. 

(d) No person may be ordered into arrest or confinement except for probable cause. 

(e) Nothing in this article limits the authority of persons authorized to apprehend offenders to secure the custody of an alleged offender until 

proper authority may be notified. 

§ 810. Art. 10 Restralnt of persons charged wlth offenses 

Any person subject to this chapter charged with an offense under this chapter shall be ordered into arrest or confinement, as circumstances 

may require; but when charged only with an offense normally tried by a summary court-martial, he shall not ordinarily be placed in confinement. 

When any person subject to this chapter is placed in arrest or confinement prior to trial, immediate steps shall be taken to inform him of the specific 

wrong of which he is accused and to try him or to dismiss the charges and release him. 

5 81 1. Art. 11. Reports and receivlng of prisoners 

(a) No provost marshal, commander of a guard, or master at arms may refuse to receive or keep any prisoner committed to his charge by a 

commissioned officer of the armed forces, when the committing officer furnishes a statement, signed by him, of the offense charged against the 

prisoner. 

(b) Every commander of a guard or master at arms to whose charge a prisoner is committed shall, within twenty-four hours after that 

commitment or as soon as he is relieved from guard, report to the commanding officer the name of the prisoner, the offense charged against him, 

and the name of the person who ordered or authorized the commitment. 

g 812. Art. 12. Confinement with enemy prisoners prohibited 

No member of the armed forces may be placed in confinement in immediate association with enemy prisoners or other foreign nationals not 

members of the armed forces. 

5 813. Art. 13. Punishment prohibited before trial 

No person, while being held for trial, may be subjected to punishment or penalty other than arrest or confinement upon the charges pending 

against him, nor shall the arrest or confinement imposed upon him be any more rigorous than the circumstances required to insure his presence, 

but he may be subjected to minor punishment during that period for infractions of discipline. 

g 814. Art. 14. Dellvery of offenders to civil authorities 

(a) Under such regulations as the Secretary concerned may prescribe, a member of the anned forces accused of an offense against civil 

authority may be delivered, upon request, to the civil authority for trial. 

(b) When delivery under this article is made to any civil authority of a person undergoing sentence of a court-martial, the delivery, if followed 

by conviction in a civil tribunal, interrupts the execution of the sentence of the court-martial, and the offender after having answered to the civil 

authorities for his offense shall, upon the request of competent military authority, be returned to military custody for the completion of his 

sentence. 

Subchapter Ill. NON-JUDICIAL PUNISHMENT 

5 815. Art. 15. Commandlng Officer's non-judiclal punishment 

(a) Under such regulations as the President may prescribe, and under such additional regulations as may be prescribed by the Secretary 

concerned, limitations may be placed on the powers granted by this article with respect to the kind and amount of punishment authorized, the 

categories of commanding officers and warrant officers exercising command authorized to exercise those powers, the applicability of this article to 

an accused who demands trial by court-martial, and the kinds of courts-martial to which the case may be referred upon such a demand. However, 

except in the case of a member attached to or embarked in a vessel, punishment may not be imposed upon any member of the armed forces under 
UNIFORM CODE OF MILITARY JUSTICE 	 g 815. Art. 15(d)(l) 

this article if the member has, before the imposition of such punishment, demanded trial by court-martial in lieu of such punishment. Under 

similar regulations, rules may be prescribed with respect to the suspension of punishments authorized hereunder. If authorized by regulations of 

the Secretary concemed, a commanding officer exercising general court-martial jurisdiction or an officer of general or flag rank in command may 

delegate his powers under this article to a principal assistant. 

(b) Subject to subsection (a) any commanding officer may, in addition to or in lieu of admonition or reprimand, impose one or more of the 

following disciplinary punishments for minor offenses without the intervention of a court-martial- 

(1) upon officers of his command- 

(A) restriction to certain specified limits, with or without suspension from duty, for not more than 30 consecutive days; 

(B) if imposed by an officer exercising general court-martial jurisdiction or an officer of general or flag rank in command- 

(i) arrest in quarters for not more than 30 consecutive days; 

(ii) forfeiture of not more than one-half of one month's pay per month for two months; 

(iii) restriction to certain specified limits, with or without suspension from duty, for not more than 60 consecutive days; 

(iv) 	detention of not more than one-half of one month's pay per month for three months; 

(2) upon other personnel of his command- 

(A) if imposed upon a person attached to or embarked in a vessel, confinement on bread and water or diminished rations for not 

more than three consecutive days; 

(B) correctional custody for not more than seven consecutive days; 

(C) forfeiture of not more than seven days' pay; 

(D) 	reduction to the next inferior pay grade, if the grade from which demoted is within the promotion authority of the officer 

imposing the reduction or any officer subordinate to the one who imposes the reduction; 

(E) extra duties, including fatigue or other duties, for not more than 14 consecutive days; 


(FJ restriction to certain specified limits, with or without suspension from duty, for not more than 14 consecutive days; 


(G) detention of not more than 14 days' pay; 

(H) if imposed by an officer of the grade of major or lieutenant commander, or above- 

(i) 	 the punishment authorized under clause (A); 

(ii) correctional custody for not more than 30 consecutive days; 

(iii) forfeiture of not more than one-half of one month's pay per month for two months; 

(iv) reduction to the lowest or any intermediate pay grade, if the grade from which demoted is within the promotion authority 

of the officer imposing the reduction or any officer subordinate to the one who imposes the reduction, but an enlisted member in a pay grade above 

EA may not be reduced more than two pay grades; 

(v) extra duties, including fatigue or other duties, for not more than 45 consecutive days; 

(vi) 	restriction to certain specified limits, with or without suspension from duty, for not more than 60 consecutive days; 

(vii) detention of not more than one-half of one month's pay per month for three months. 

Detention of pay shall be for a stated period of not more than one year but if the offender's term of service expires earlier, the detention shall 

terminate upon that expiration. No two or more of the punishments of arrest in quarters, confinement on bread and water or diminished rations, 

correctional custody, extra duties, and restriction may be combined to run consecutively in the maximum amount imposable for each. Whenever 

any of those punishments are combined to run consecutively, there must be an apportionment. In addition, forfeiture of pay may not be combined 

with detention of pay without an apportionment. For the purpose of this subsection, "correctional custody" is the physical restraint of a person 

during duty or nonduty hours and may include extra duties, fatigue duties, or hard labor. If practicable, correctional custody will not be served in 

immediate association with persons awaiting trial or held in confinement pursuant to trial by court-martial. 

(c) An officer in charge may impose upon enlisted members assigned to the unit of which he is in charge such of the punishment authorized 

under subsection (b)(2)(A)-(G) as the Secretary concemed may specifically prescribe by regulation. 

(d) The officer who imposes the punishment authorized in subsection (b), or his successor in command, may, at any time, suspend 

probationally any part or amount of the unexecuted punishment imposed and may suspend probationally a reduction in grade or a forfeiture 

imposed under subsection (b), whether or not executed. In addition, he may, at any time, remit or mitigate any part or amount of the unexecuted 

punishment imposed and may set aside in whole or in part the punishment, whether executed or unexecuted, and restore all rights, privileges and 

property affected. He may also mitigate reduction in grade to forfeiture or detention of pay. When mitigating- 

(1) arrest in quarters to restriction; 
5 815. Art. 15(d)(2) 	 APPENDIX 2 

(2) confinement on bread and water or diminished rations to correctional custody; 

(3) correctional custody or confinement on bread and water or diminished rations to extra duties or restriction, or both; or 

(4) extra duties to restriction; 

the mitigated punishment shall not be for a greater period than the punishment mitigated. When mitigating forfeiture of pay to detention of pay, the 

amount of the detention shall not be greater than the amount of the forfeiture. When mitigating reduction in grade to forfeiture or detention of pay, 

the amount of the forfeiture or detention shall not be greater than the amount that could have been imposed initially under this article by the officer 

who imposed the punishment mitigated. 

(e) A person punished under this article who considers his punishment unjust or disproportionate to the offense may, through the proper 

channel, appeal to the next superior authority. The appeal shall be promptly forwarded and decided, but the person punished may in the meantime 

be required to undergo the punishment adjudged. The superior authority may exercise the same powers with respect to the punishment imposed as 

may be exercised under subsection (d) by the officer who imposed the punishment. Before acting on an appeal from a punishment of- 

(1) arrest in quarters for more than seven days; 

(2) correctional custody for more than seven days; 

(3) forfeiture of more than seven days' pay; 

(4) reduction of one or more pay grades from the fourth or a higher pay grade; 

(5) extra duties for more than 14 days; 

(6) restriction for more than 14 days; or 

(7) detention of more than 14 days' pay; 

the authority who is to act on the appeal shall refer the case to a judge advocate or a lawyer of the Department of Transportation for consideration 

and advice, and may so refer the case upon appeal from any punishment imposed under subsection (b). 

(f) The imposition and enforcement of disciplinary punishment under this article for any act or omission is not a bar to trial by court-martial 

for a serious crime or offense growing out of the same act or omission, and not properly punishable under this article; but the fact that a disciplinary 

punishment has been enforced may be shown by the accused upon trial, and when so shown shall be considered in determining the measure of 

punishment to be adjudged in the event of a finding of guilty. 

(g) The Secretary concerned may, by regulation, prescribe the form of records to be kept of proceedings under this article and may also 

prescribe that certain categories of those proceedings shall be in writing. 

Subchapter IV. COURT-MARTIAL JURISDICTION 

Sec. Art. 

816. 16. Courts-martial classified. 

817. 17. Jurisdiction of courts-martial in general. 

818. 18. Jurisdiction of general courts-martial. 

819. 19. Jurisdiction of special courts-martial. 

820. 20. Jurisdiction of summary courts-martial. 

821. 21. Jurisdiction of courts-martial not exclusive. 

5 816. Art. 16. Courts-martial ciasslfied 

The three kinds of courts-martial in each of the armed forces are-

(1) general courts-martial, consisting of- 

(A) a military judge and not less than five members; or 

(B)only a military judge, if before the court is assembled the accused, knowing the identity of the military judge and after 

consultation with defense counsel, requests orally on the record or in writing a court composed only of a miliary judge and the 

military judge approves; 

(2) special courts-martial, consisting of-

(A) not less than three members; or 

(B)a military judge and not less than three members; or 

(C) 	only a military judge, if one has been detailed to the court, and the accused under the same conditions as those prescribed in 

clause (1) (B) so requests; and 

(3) summary courts-martial, consisting of one commissioned officer. 
UNIFORM CODE OF MILITARY JUSTICE Q 822. Art. 22(a)(3) 

Q 817. Art. 17. Jurlsdlctlon of courts-martlal In general 

(a) Each armed force has court-martial jurisdiction over all persons subject to this chapter. The exercise of jurisdiction by one armed force 

over personnel of another armed force shall be in accordance with regulations prescribed by the President. 

(b) In all cases, departmental review after that by the officer with authority to convene a general court-martial for the command which held 

the trial, where that review is required under this chapter, shall be carried out by the department that includes the armed force of which the accused 

is a member. 

5 818. Art. 18. Jurlsdlctlon of general courts-martlal 

Subject to section 817 of this title (article 17), general courts-martial have jurisdiction to try persons subject to this chapter for any offense 

made punishable by this chapter and may, under such limitations as the Resident may prescribe, adjudge any punishment not forbidden by this 

chapter, including the penalty of death when specifically authorized by this chapter. General courts-martial also have jurisdiction to try any person 

who by the law of war is subject to trial by a military tribunal and may adjudge any punishment permitted by the law of war. However, a general 

court-martial of the kind specified in section 816(1)(B) of this title (article 16(1) (B)) shall not have jurisdiction to try any person for any offense 

for which the death penalty may be adjudged unless the case has been previously referred to trial as a noncapital case. 

Q 819. Art. 19. Jurlsdlctlon of special courts-martial 

Subject to section 817 of this title (article 17), special courts-martial have jurisdiction to trypersons subject to this chapter for any noncapital 

offense made punishable by this chapter and, under such regulations as the President may prescribe, for capital offenses. Special courts-martial 

may, under such limitations as the President may prescribe, adjudge any punishment not forbidden by this chapter except death, dishonorable 

discharge, dismissal, confinement for more than six months, hard labor without confinement for more than three months, forfeiture of pay 

exceeding two-thirds pay per month, or forfeiture of pay for more than six months. A bad-conduct discharge may not be adjudged unless a 

complete record of the proceedings and testimony has been made, counsel having the qualifications prescribed under section 827(b) of this title 

(article 27(b)) was detailed to represent the accused, and a military judge was detailed to the trial, except in any case in which a military judge 

could not be detailed to the trial because of physical conditions or military exigencies. In any such case in which a military judge was not detailed 

to the trial, the convening authority shall make a detailed written statement, to be appended to the record, stating the reason or reasons a military 

judge could not be detailed. 

Q 820. Art. 20. Jurlsdlctlon of summary courts-martlal 

Subject to section 817 of this title (article 17), summary courts-martial have jurisdiction to try persons subject to this chapter, except officers, 

cadets, aviation cadets, and midshipmen, for any noncapital offense made punishable by this chapter. No person with respect to whom summary 

courts-martial have jurisdiction may be brought to trial before a summary court-martial if he objects thereto. If objection to trial by summary 

court-martial is made by an accused, trial may be ordered by special or general court-martial as may be appropriate. Summary courts-martial may, 

under such limitations as the President may prescribe, adjudge any punishment not forbidden by this chapter except death, dismissal, 

dishonorable or bad-conduct discharge, confinement for more than one month, hard labor without confinement for more than 45 days, restriction 

to specified limits for more than two months, or forfeiture of more than two-thirds of one month's pay. 

Q 821. Art. 21. Jurisdictlon of courts-martial not exclusive 

The provisions of this chapter conferring jurisdiction upon courts-martial do not deprive military commissions, provost courts, or other 

military tribunals of concurrent jurisdiction with respect to offenders or offenses that by statute or by the law of war may be tried by military 

commissions, provost courts, or other military tribunals. 

Subchapter V. COMPOSITION OF COURTS-MARTIAL 

Art. 

22. Who may convene general courts-martial. 

23. Who may convene special courts-martial. 

24. Who may convene summary courts-martial. 

25. Who may serve on courts-madial. 

26. Military judge of a general or special court-martial. 

27. Detail of trial counsel and defense counsel. 

28. Detail or employment of reporters and interpreters. 

29. Absent and additional members. 

Q 822. Art. 22. Who may convene general courts-martial 

(a) General courts-martial may be convened by- 

(1) the President of the United States; 

(2) the Secretary concerned; 

(3) the commanding officer of a Territorial Department, an Army Group, an Army, an Army Corps, a division, a separate brigade, or a 

corresponding unit of the Army or Marine Corps; 
g 822. Art. 22(a)(4) APPENDIX 2 

(4) the commander in chief of a fleet; the commanding officer of a naval station or larger shore activity of the Navy beyond the United 

States; 

(5) the commanding officer of an air command, an air force, an air division, or a separate wing of the Air Force or Marine Corps; 

(6) any other commanding officer designated by the Secretary concerned; or 

(7) any other commanding officer in any of the armed forces when empowered by the President. 

(b) If any such commanding officer is an accuser, the court shall be convened by superior competent authority, and may in any case be 

convened by such authority if considered desirable by him. 

g 823. Art. 23. Who may convene speclal courts-martial 

(a) Special courts-martial may be convened by- 

(1) any person who may convene a general court-martial; 

(2) the commanding officer of a district, garrison, fort, camp, station, Air Force base, auxiliary air field, or other place where members 

of the Army or the Au Force are on duty; 

(3) the commanding officer of a brigade, regiment, detached battalion, or corresponding unit of the Army; 

(4) the commanding officer of a wing, group, or separate squadron of the Air Force; 

(5) the commanding officer of any naval or Coast Guard vessel, shipyard, base, or station; the commanding officer of any Marine 

brigade, regiment, detached battalion, or corresponding unit; the commanding officer of any Marine barracks, wing, group, separate squadron, 

station, base, auxiliary air field, or other place where members of the Marine Corps are on duty; 

(6)the commanding officer of any separate or detached command or group of detached units of any of the armed forces placed under a 

single commander for this purpose; or 

(7) the commanding officer or officer in charge of any other command when empowered by the Secretary concerned. 

(b) If any such officer is an accuser, the court shall be convened by superior competent authority, and may in any case be convened by such 

authority if considered advisable by him. 

O 824. Art. 24. Who may convene summary courts-martial 

(a) Summary courts-martial may be convened by- 

(1) any person who may convene a general or special court-martial; 

(2) the commanding officer of a detached company or other detachment of the Army; 

(3) the commanding officer of a detached squadron or other detachment of the Air Force; or 

(4) the commanding officer or officer in charge of any other command when empowered by the Secretary concerned. 

(b) When only one commissioned officer is present with a command or detachment he shall be the summary court-martial of that command or 

detachment and shall hear and determine all summary court-martial cases brought before him. Summary courts-martial may, however, be 

convened in any case by superior competent authority when considered desirable by him. 

§ 825. Art. 25. Who may serve on courts-martial 

(a) Any commissioned officer on active duty is eligible to serve on all courts-martial for the trial of any person who may lawfully be brought 

before such courts for trial. 

(b) Any warrant officer on active duty is eligible to serve on general and special courts-martial for the trial of any person, other than a 

commissioned officer, who may lawfully be brought before such courts for trial. 

(c) (1) Any enlisted member of an armed force on active duty who is not a member of the same unit as the accused is eligible to serve on 

general and special courts-martial for the trial of any enlisted member of an armed force who may lawfully be brought before such courts for trial, 

but he shall serve as a member of a court only if, before the conclusion of a session called by the military judge under section 839(a) of this title 

(article 39(a)) prior to trial or, in the absence of such a session, before the court is assembled for the trial of the accused, the accused personally has 

requested in writing that enlisted members serve on it. After such a request, the accused may not be tried by a general or special court-martial the 

membership of which does not include enlisted members in a number comprising at least, one-third of the total membership of the court, unless 

eligible enlisted members cannot be obtained on account of physical conditions or military exigencies. If such members cannot be obtained, the 

court may be assembled and the trial held without them, but the convening authority shall make a detailed written statement, to be appended to the 

record, stating why they could not be obtained. 

(2) In this article, "unit" means any regularly organized body as defined by the Secretary concerned, but in no case may it be a body 

larger than a company, squadron, ship's crew, or body corresponding to one of them. 
UNIFORM CODE OF MILITARY JUSTICE 5 827. Art. 27(c)(3) 

(d) (1) When it can be avoided, no member of an armed force may be tried by a court-martial any member of which is junior to him in rank 

or grade. 

(2) When convening a court-martial, the convening authority shall detail as members thereof such members of the armed forces as, in 

his opinion, are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament. No 

member of an armed force is eligible to serve as a member of a general or special court-martial when he is the accuser or a witness for the 

prosecution or has acted as investigating officer or as counsel in the same case. 

(e) Before a court-martial is assembled for the trial of a case, the convening authority may excuse a member of the court from participating in 

the case. Under such regulations as the Secfetary concerned may prescribe, the convening authority may delegate his authority under this 

subsection to his staff judge advocate or legal officer or to any other principal assistant. 

5 826. Art. 26. Milltary judge of a general or special court-martial 

(a) A military judge shall be detailed to each general court-martial. Subject to regulations of the Secretary concerned, a military judge may be 

detailed to any special court-martial. The Secretary concerned shall prescribe regulations providing for the manner in which military judges are 

detailed for such courts-martial and for the persons who are authorized to detail military judges for such courts-martial. The military judge shall 

preside over each open session of the court-martial to which he has been detailed. 

(b) A military judge shall be a commissioned officer of the armed forces who is a member of the bar of a Federal court or a member of the bar 

of the highest court of a State and who is certified to be qualified for duty as a military judge by the Judge Advocate General of the armed force of 

which such military judge is a member. 

(c) The military judge of a general court-martial shall be designated by the Judge Advocate General, or his designee, of the armed force of 

which the military judge is a member for detail in accordance with regulations prescribed under subsection (a). Unless the court-martial was 

convened by the President or the Secretary concerned, neither the convening authority nor any member of his staff shall prepare or review any 

report concerning the effectiveness, fitness, or efficiency of the military judge so detailed, which relates to his performance of duty as a military 

judge. A commissioned officer who is certified to be qualified for duty as a military judge of a general court-martial may perform such duties only 

when he is assigned and directly responsible to the Judge Advocate General, or his designee, of the armed force of which the military judge is a 

member and may perform duties of a judicial or nonjudicial nature other than those relating to his primary duty as a military judge of a general 

court-martial when such duties are assigned to him by or with the approval of that Judge Advocate General or his designee. 

(d) No person is eligible to act as military judge in a case if he is the accuser or a witness for the prosecution or has acted as investigating 

officer or a counsel in the same case. 

(e) The military judge of a court-martial may not consult with the members of the court except in the presence of the accused, trial counsel, 

and defense counsel, nor may he vote with the members of the court. 

5 827. Art. 27. Detail of trlal counsel and defense counsel 

(a) (1) Trial counsel and defense counsel shall be detailed for each general and special court-martial. Assistant trial counsel and assistant 

and associate defense counsel may be detailed for each general and special court-martial. The Secretary concerned shall prescribe regulations 

providing for the manner in which counsel are detailed for such courts-martial and for the persons who are authorized to detail counsel for such 

courts-martial. 

(2) No person who has acted as investigating officer, military judge, or court member in any case may act later as trial counsel, assistant 

trial counsel, or, unless expressly requested by the accused, as defense counsel or assistant or associate defense counsel in the same case. No 

person who has acted for the prosecution my act later in the same case for the defense, nor may any person who has acted for the defense act later in 

the same case for the prosecution. 

(b) Trial counsel or defense counsel detailed for a general court-martial- 

(1) must be a judge advocate who is a graduate of an accredited law school or is a member of the bar of a Federal court or of the highest 

court of a State; or must be a member of the bar of a Federal court or of the highest court of a State; and 

(2) must be certified as competent to perform such duties by the Judge Advocate General of the armed force of which he is a member. 

(c) In the case of a special court-martial- 

(1) the accused shall be afforded the opportunity to be represented at the trial by counsel having the qualifications prescribed under 

section 827(b) of this title (article 27 (b)) unless counsel having such qualifications cannot be obtained on account of physical conditions or 

military exigencies. If counsel having such qualifications cannot be obtained, the court may be convened and the trial held but the convening 

authority shall make a detailed written statement, to be appended to the record, stating why counsel with such qualifications could not be obtained; 

(2) if the trial counsel is qualified to act as counsel before a general court-martial, the defense counsel detailed by the convening 

authority must be a person similarly qualified; and 

(3) if the trial counsel is a judge advocate or a member of the bar of a Federal court or the highest court of a State, the defense counsel 

detailed by the convening authority must be one of the foregoing. 
Q 828. Art. 28 APPENDIX 2 

Q 828. Art. 28. Detall or employment of reporters and Interpreters 

Under such regulations as the Secretary concerned may prescribe, the convening authority of a court-martial, military commission, or court 

of inquiry shall detail or employ qualified court reporters, who shall record the proceedings of and testimony taken before that court or 

commission. Under like regulations the convening authority of a court-martial, military commission, or court of inquiry may detail or employ 

interpreters who shall interpret for the court or commission. 

5 829. Art. 29. Absent and addltlonal members 

(a) No member of a general or special court-martial may be absent or excused after the court has been assembled for the trial of the accused 

unless excused as a result of a challenge, excused by the military judge for physical disability or other good cause, or excused by order of the 

convening authority for good cause. 

@) Whenever a general court-martial, other than a general court-martial composed of a military judge only, is reduced below five members, 

the trial may not proceed unless the convening authority details new members sufficient in number to provide not less than five members. The trial 

may proceed with the new members present after the recorded evidence previously introduced before the members of the court has been read to the 

court in the presence of the military judge, the accused, and counsel for both sides. 

(c) Whenever a special court-martial, other than a special court-martial composed of a military judge only, is reduced below three members, 

the trial may not proceed unless the convening authority details new members sufficient in number to provide not less than three members. The 

trial shall proceed with the new members present as if no evidence had previously been introduced at the trial, unless a verbatim record of the 

evidence previously introduced before the members of the court or a stipulation thereof is read to the court in the presence of the military judge, if 

any, the accused and counsel for both sides. 

(d) If the military judge of a court-martial composed of a military judge only is unable to proceed with the trial because of physical disability, 

as a result of a challenge, or for other good cause, the trial shall proceed, subject to any applicable conditions of section 816(1)(B) or (2)(C) of this 

title (article 16(1)(B) or (2)(C)), after the detail of a new military judge as if no evidence had previously been introduced, unless averbatim record 

of the evidence previously introduced or a stipulation thereof is read in court in the presence of the new military judge, the accused, and counsel for 

both sides. 

Subchapter VI. PRE-TRIAL PROCEDURE 

Sec. Art. 

830. 30. Charges and specifications. 

831. 31. Compulsory self-incrimination prohibited. 

832. 32. Investigation. 

833. 33. Forwarding of charges. 

834. 34. Advice of staff judge advocate and reference for trial. 

835. 35. Service of charges. 

Q 830. Art. 30. Charges and apecificatlons 

(a)Charges and specifications shall be signed by a person subject to this chapter under oath before acommissioned officer of the armed forces 

authorized to administer oaths and shall state- 

(1) that the signer has personal knowledge of, or has investigated, the matters set forth therein; and 

(2) that they are true in fact to the best of his knowledge and belief. 

(b) Upon the prefening of charges, the proper authority shall take immediate steps to determine what disposition should be made thereof in 

the interest of justice and discipline, and the person accused shall be informed of the charges against him as soon as practicable. 

Q 831. Art. 31. Compulsory self-lncrlmlnation prohlblted 

(a)No person subject to this chapter may compel my person to incriminate himself or to answer any question the answer to which may tend to 

incriminate him. 

(b) No person subject to this chapter may interrogate, or request any statement from an accused or a person suspected of an offense without 

first informing him of the nature of the accusation and advising him that he does not have to make any statement regarding the offense of which he 

is accused or suspected and that any statement made by him may be used as evidence against him in a mal by court-martial. 

(c) No person subject to this chapter may compel any person to make a statement or produce evidence before any military tribunal if the 

statement or evidence is not material to the issue and may tend to degrade him. 

(d) No statement obtained from any person in violation of this article, or through the use of coercion, unlawful influence, or unlawful 

inducement may be received in evidence against him in a trial by court-martial. 
UNIFORM CODE OF MILITARY JUSTICE Q 835. Art. 35 

5 832. Art. 32. lnvestlgatlon 

(a) No charge or specification may be referred to a general court-martial for trial until a thorough and impartial investigation of all the matters 

set forth therein has been made. This investigation shall include inquiry as to the truth of the matter set forth in the charges, consideration of the 

form of charges, and a recommendation as to the disposition which should be made of the case in the interest of justice and discipline. 

(b) The accused shall be advised of the charges against him and of his right to be represented at that investigation by counsel. The accused has 

the right to be represented at that investigation as provided in section 838 of this title (article 38) and in regulations prescribed under that section. 

At that investigation full opportunity shall be given to the accused to cross-examine witnesses against him if they are available and to present 

anything he may desire in his own behalf, either in defense or mitigation, and the investigation officer shall examine available witnesses requested 

by the accused. If the charges are forwarded after the investigation, they shall be accompanied by a statement of the substance of the testimony 

taken on both sides and a copy thereof shall be given to the accused. 

(c)If an investigation of the subject matter of an offense has been conducted before the accused is charged with the offense, and if the accused 

was present at the investigation and afforded the opportunities for representation, cross-examination, and presentation prescribed in subsection 

(b), no further investigation of that charge is necessary under this article unless it is demanded by the accused after he is informed of the charge. A 

demand for further investigation entitles the accused to recall witnesses for further cross-examination and to offer any new evidence in his own 

behalf. 

(d) The requirements of this article are binding on all persons administering this chapter but failure to follow them does not constitute 

jurisdictional error. 

Q 833. Art. 33. Fomardlng of charges 

When a person is held for trial by general court-martial the commanding officer shall, within eight days after the accused is ordered into 

arrest or confinement, if practicable, forward the charges, together with the investigation and allied papers, to the officer exercising general courtmartial jurisdiction. If that is not practicable, he shall report in writing to that officer the reasons for delay. 

Q 834. Art. 34. Advice of staff judge advocate and reference for trlal 

(a) Before directing the trial of any charge by general court-martial, the convening authority shall refer it to his staff judge advocate for 

consideration and advice. The convening authority may not refer a specification under a charge to a general court-martial for trial unless he has 

been advised in writing by the staff judge advocate that- 

(1) the specification alleges an offense under this chapter; 

(2) the specification is warranted by the evidence indicated in the report of investigation under section 832 of this title (article 32) (if 

there is such a report); and 

(3) a court-martial would have jurisdiction over the accused and the offense. 

(b) The advice of the staffjudge advocate under subsection (a) with respect to a specification under a charge shall include a written and signed 

statement by the staff judge advocate- 

(1) expressing his conclusions with respect to each matter set forth in subsection (a); and 

(2) recommending action that the convening authority take regarding the specification. 

If the specification is referred for trial, the recommendation of the staff judge advocate shall accompany the specification. 

(c) If the charges or specifications are not formally correct or do not conform to the substance of the evidence contained in the report of the 

investigating officer, formal corrections, and such changes in the charges and specifications as are needed to make them conform to the evidence, 

may be made. 

Q 835. Art. 35. Sewlce of charges 

The trial counsel to whom court-martial charges are referred for trial shall cause to be served upon the accused a copy of the charges upon 

which trial is to be had. In time of peace no person may, against his objection, be brought to trial or be required to participate by himself or counsel 

in a session called by the military judge under section 839(a) of this title (article 39(a)), in a general court-martial case within a period of five days 

after the service of charges upon him or in a special court-martial within a period of three days after the service of the charges upon him. 

Subchapter VII. TRIAL PROCEDURE 

Art. 

36. President may prescribe rules. 

37. Unlawfully influencing action of court. 

38. Duties of trial counsel and defense counsel. 

39. Sessions. 

40. Continuances. 

41. Challenges. 
5 836. Art. 36(a) 	 APPENDIX 2 

Sec. Art. 

842. 42. Oaths. 

843. 43. Statute of limitations. 

844. 44. Former jeopardy. 

845. 45. Pleas of the accused. 

846. 46. Opportunity to obtain witnesses and other evidence. 

847. 47. Refusal to appear or testify. 

848. 48. Contempts. 

849. 49. Depositions. 

850. 50. Admissibility of records of courts of inquiry. 

851. 51. Voting and rulings. 

852. 52. Number of votes required. 

853. 53. Court to announce action. 

854. 54. Record of trial. 

5 836. Art. 36. Presldent may prescribe rules 

(a) Pretrial, trial, and post-trial procedures, including modes of proof, for cases arising under this chapter triable in courts-martial, military 

commissions and other military tribunals, and procedures for courts of inquiry, may be prescribed by the President by regulations which shall, so 

far as he considers practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United 

States district courts, but which may not be contrary to or inconsistent with this chapter. 

(b) All rules and regulations made under this article shall be uniform insofar as practicable and shall be reported to Congress. 

5 837. Art. 37. Unlawfully influencing actlon of court 

(a) No authority convening a general, special, or summary court-martial, nor any other commariding officer, may censure, reprimand, or 

admonish the court or any member, military judge, or counsel thereof, with respect to the findings or sentence adjudged by the court, or with 

respect to any other exercises of its or his functions in the conduct of the proceedings. No person subject to this chapter may attempt to coerce or, 

by any unauthorized means, influence the action of a court-martial or any other military tribunal or any member thereof, in reaching the findings or 

sentence in any case, or the action of any convening, approving, or reviewing authority with respect to his judicid acts. The foregoing provisions 

of the subsection shall not apply with respect to (1) general instructional or informational courses in military justice if such courses are designed 

solely for the purpose of instructing members of a command in the substantive and procedural aspects of courts-martial, or (2) to statements and 

instructions given in open court by the military judge, president of a special court-martial, or counsel. 

(b) In the preparation of an effectiveness, fitness, or efficiency report or any other report or document used in whole or in part for the purpose 

of determining whether a member of the anned forces is qualified to be advanced, in grade, or in determining the assignment or transfer of a 

member of the armed forces or in determining whether a member of the armed forces should be retained on active duty, no person subject to this 

chapter may, in preparing any such report (1)consider or evaluate the performance of duty of any such member of a court-martial, or (2) give a less 

favorable rating or evaluation of any member of the armed forces because of the zeal with which such member, as counsel, represented any accused 

before a court-martial. 

5 838. Art. 38. Dutles of trlal counsel and defense counsel 

(a) The.trial counsel of a general or special court-martial shall prosecute in the name of the United States, and shall, under the direction ofthe 

court, prepare the record of the proceedings. 

(b) (1) The accused has the right to be represented in his defense before a general or special court-martial or at an investigation under 

section 832 of this title (article 32) as provided in this subsection. 

(2) The accused may be represented by civilian counsel if provided by him. 

(3) The accused may be represented- 

(A) by military counsel detailed under section 827 of this title (article 27); or 

(B) by military counsel of his own selection if that counsel is reasonably available (as determined under regulations prescribed 

under paragraph (7)). 

(4) If the accused is represented by civilian counsel, military counsel detailed or selected under paragraph (3) shall act as associate 

counsel unless excused at the request of the accused. 

(5) Except as provided under paragraph (6), if the accused is represented by military counsel of his own selection under paragraph 

(3)(B), any military counsel detailed under paragraph (3)(A) shall be excused. 

(6) The accused is not entitled to be represented by more than one military counsel. However, the person authorized under regulations 

prescribed under section 827 of this title (article 27) to detail counsel in his sole discretion- 

(A) may detail additional military counsel as assistant defense counsel; and 

(B) 	if the accused is represented by military counsel of his own selection under paragraph (3)(B), may approve a request from the 

accused that military counsel detailed under paragraph (3) (A) act as associate defense counsel. 
UNIFORM CODE OF MILITARY JUSTICE 5 842. Art. 42(a) 

(7) The Secretary concerned shall, by regulation, define "reasonably available" for the purpose of paragraph (3)(B) and establish 

procedures for determining whether the military counsel selected by an accused under that paragraph is reasonably available. Such regulations 

may not prescribe any limitation based on the reasonable availability of counsel solely on the grounds that the counsel selected by the accused is 

from an armed force other than the armed force of which the accused is a member. To the maximum extent practicable, such regulations shall 

establish uniform policies among the armed forces while recognizing the differences in the circumstances and needs of the various armed forces. 

The Secretary concerned shall submit copies of regulations prescribed under this paragraph to the Committees on Armed Services of the Senate 

and House of Representatives. 

(c) In any court-martial proceeding resulting in a conviction, the defense counsel- 

(1) may forward for attachment to the record of proceedings a brief of such matters as he determines should be considered in behalf of the 

accused on review (including any objection to the contents of the record which he considers appropriate); 

(2) may assist the accused in the submission of any matter under section 860 of this title (article 60); and 

(3) may take other action authorized by this chapter. 

(d) An assistant trial counsel of a general court-martial may, under the direction of the trial counsel or when he is qualified to be a trial counsel 

as required by section 827 of this title (article 27), perform any duty imposed by law, regulation, or the custom of the service upon the trial counsel 

of the court. An assistant trial counsel of a special court-martial may perform any duty of the trial counsel. 

(e) An assistant defense counsel of a general or special court-martial may, under the direction of the defense counsel or when he is qualified to 

be the defense counsel as required by section 827 of this title (article 27), perform any duty imposed by law, regulation, or the custom of the service 

upon counsel for the accused. 

5 839. Art. 39. Sesslons 

(a) At any time after the service of charges which have been referred for trial to a court-martial composed of a military judge and members, 

the military judge may, subject to section 835 of this title (article 33, call the court into session without the presence of the members for the 

purpose of- 

(1)hearing and determining motions raising defenses or objections which are capable of determination without trial of the issues raised 

by a plea of not guilty; 

(2) hearing and ruling upon any matter which may be ruled upon by the military judge under th'is.chapter, whether or not the matter is 

appropriate for later consideration or decision by the members of the court; 

(3) if permitted by regulations of the Secretary concerned, holding the arraignment and receiving the pleas of the accused; and 

(4) performing any other procedural function which may be performed by the military judge under this chapter or under rules prescribed 

pursuant to section 836 of this title (article 36) and which does not require the presence of the members of the court. 

These proceedings shall be conducted in the presence of the accused, the defense counsel, and the trial counsel and shall be made a part of the 

record. 

(b) When the members of a court-martial deliberate or vote, only the members may be present. All other proceedings, including any other 

consultation of the members of the court with counsel or the military judge, shall be made a part of the record and shall be in the presence of the 

accused, the defense counsel, the trial counsel, and in cases in which a military judge has been detailed to the court, the military judge. 

Q 840. Art. 40. Contlnuances 

The military judge or a cow-martial without a military judge may, for reasonable cause, grant a continuance to any party for such time, and 

as often, as may appear to be just. 

5 841. Art. 41. Challenges 

(a) The military judge and members of a general or special court-martial may be challenged by the accused or the trial counsel for cause stated 

to the court. The military judge, or, if none, the court, shall determine the relevance and validity of challenges for cause, and may not receive a 

challenge to more than one person at a time. Challenges by the trial counsel shall ordinarily be presented and decided before those by the accused 

are offered. 

(b) Each accused and the trial counsel is entitled to one peremptory challenge, but the military judge may not be challenged except for cause. 

5 842. Art. 42. Oaths 

(a) Before performing their respective duties, military judges, members of general and special courts-martial, trial counsel, assistant trial 

counsel, defense counsel, assistant or associate defense counsel, reporters, and interpreters shall take an oath to perform their duties faithfully. 

The form of the oath, the time and place of the taking thereof, the manner of recording the same, and whether the oath shall be taken for all cases in 

which these duties are to be performed or for a particular case, shall be as prescribed in regulations of the Secretary concerned. These regulations 

may provide that an oath to perform faithfully duties as a military judge, trial counsel, assistant trial counsel, defense counsel, or assistant or 

associate defense counsel may be taken at any time by any judge advocate or other person certified to be qualified or competent for the duty, and if 

such an oath is taken it need not again be taken at the time the judge advocate, or other person is detailed to that duty. 
842. Art. 42(b) APPENDIX 2 

(b) Each witness before a court-martial shall be examined on oath. 

Q 843. Art. 43. Statute of llmltatlons 

(a) A person charged with desertion or absence without leave in time of war, or with aiding the enemy, mutiny, or murder, may be tried and 

punished at any time without limitation. 

(b) Except as otherwise provided in this article, a person charged with desertion in time of peace or any of the offenses punishable under 

sections 919-932 of this title (articles 119-132) is not liable to be tried by court-martial if the offense was committed more than three years before 

the receipt of sworn charges and specifications by an officer exercising summary court-martial jurisdiction over the command. 

(c) Except as otherwise provided in this article, a person charged with an offense is not liable to be tried by court-martial or punished under 

section 815 of this title (article 15)if the offense was committed more than two years before the receipt of sworn charges and specifications by an 

officer exercising summary court-martial jurisdiction over the command or before the imposition of punishment under section 815 of this title 

(article 15). 

(d) Periods in which the accused was absent from temtory in which the United States has the authority to apprehend him, or in the custody of 

civil authorities, or in the hands of the enemy, shall be excluded in computing the period of limitation prescribed in this article. 

(e)For an offense the trial of which in time of war is certified to the President by the Secretary concerned to be detrimental to the prosecution 

of the war or inimical to the national security, the period of limitation prescribed in this article is extended to six months after the termination of 

hostilities as proclaimed by the Resident or by a joint resolution of Congress. 

(f) When the United States is at war, the running of any statute of limitations applicable to any offense under this chapter- 

(1) involving fraud or attempted fraud against the United States or any agency thereof in any manner, whether by conspiracy or not; 

(2) committed in connection with the acquisition, care, handling, custody, control, or disposition of any real or personal property of the 

United States; or 

(3) committed in connection with the negotiation, procurement, award, performance, payment, interim financing, cancellation, or 

other termination or settlement, of any contract, subcontract, or purchase order which is connected with or related to the prosecution of the war, or 

with any disposition of termination inventory by any war contractor or Government agency; 

is suspended until three years after the termination of hostilities as proclaimed by the President or by a joint resolution of Congress. 

Q 844. Art. 44. Former jeopardy 

(a) No person may, without his consent, be tried a second time for the same offense. 

(b) No proceeding in which an accused has been found guilty by court-martial upon any charge or specification is a trial in the sense of this 

article until the finding of guilty has become final after review of the case has been fully completed. 

(c) A proceeding which, after the introduction of evidence but before a finding, is dismissed or terminated by the convening authority or on 

motion of the prosecution for failure of available evidence or witnesses without any fault of the accused is a trial in the sense of this article. 

§ 845. Art. 45. Pleas of the accused 

(a) If an accused after arraignment makes an irregular pleading, or after a plea of guilty sets up matter inconsistent with the plea, or if it 

appears that he has entered the plea of guilty improvidently or through lack of understanding of its meaning and effect, or if he fails or refuses to 

plead, a plea of not guilty shall be entered in the record, and the court shall proceed as though he had pleaded not guilty. 

(b) A plea of guilty by the accused may not be received to any charge or specification alleging an offense for which the death penalty may be 

adjudged. With respect to any other charge or specification to which a plea of guilty has been made by the accused and accepted by the military 

judge or by a court-martial without a military judge, a finding of guilty of the charge or specification may, if permitted by regulations of the 

Secretary concerned, be entered immediately without vote. This finding shall constitute the finding of the court unless the plea of guilty is 

withdrawn prior to announcement of the sentence, in which event the proceedings shall continue as though the accused had pleaded not guilty. 

Q 846. Art. 46. Opportunity to obtaln witnesses and other evldence 

The trial counsel, the defense counsel, and the court-martial shall have equal opportunity to obtain witnesses and other evidence in 

accordance with such regulations as the President may prescribe. Process issued in court-martial cases to compel witnesses to appear and testify 

and to compel the production of other evidence shall be similar to that which courts of the United States having criminal jurisdiction may lawfully 

issue and shall run to any part of the United States, or the Temtories, Commonwealths, and possessions. 

5 847. Art. 47. Refusal to appear or testify 

(a) Any person not subject to this chapter wh- 

(1) has been duly subpoenaed to appear as a witness before a court-martial, military commission, court of inquiry, or any other military 

court or board, or before any military or civil officer designated to take a deposition to be read in evidence before such a court, commission, or 

board; 
UNIFORM CODE OF MILITARY JUSTICE 5 851. Art. 51(b) 

(2) has been duly paid or tendered the fees and mileage of a witness at the rates allowed to witnesses attending the courts of the United 

States; and 

(3) willfully neglects or refuses to appear, or refuses to qualify as a witness or to testify or to produce any evidence which that person 

may have been legally subpoenaed to produce; is guilty of an offense against the United States. 

(b) Any person who commits an offense named in subsection (a) shall be tried on information in a United States district court or in a court of 

original criminal jurisdiction in any of the Territories, Commonwealths, or possessions of the United States, and jurisdiction is conferred upon 

those courts for that purpose. Upon conviction, such a person shall be punished by a fine of not more than $500, or imprisonment for not more than 

six months, or both. 

(c)The United States attorney or the officer prosecuting for the United States in any such court of original criminal jurisdiction shall, upon the 

certification of the facts to him by the military court, commission, court of inquiry, or board, file an information against and prosecute any person 

violating this article. 

(d) The fees and mileage of witnesses shall be advanced or paid out of the appropriations for the compensation of witnesses. 

5 848. Art. 48. Contempts 

A court-martial, provost court, or military commission may punish for contempt any person who uses any menacing word, sign, or gesture 

in its presence, or who disturbs its proceedings by any riot or disorder. The punishment may not exceed confinement for 30 days or a fine of $100, 

or both. 

5 849. Art. 49. Depositions 

(a) At any time after charges have been signed as provided in section 830 of this title (article 30), any party may take oral or written 

depositions unless the military judge or court-martial without a military judge hearing the case or, if the case is not being heard, an authority 

competent to convene a court-martial for the trial of those charges forbids it for good cause. If a deposition is to be taken before charges are 

referred for trial, such an authority may designate commissioned officers to represent the prosecution and the defense and may authorize those 

officers to take the deposition of any witness. 

(b) The party at whose instance a deposition is to be taken shall give to every other party reasonable written notice of the time and place for 

taking the deposition. 

(c) Depositions may be taken before and authenticated by any military or civil officer authorized by the laws of the United States or by the 

laws of the place where the deposition is taken to administer oaths. 

(d) A duly authenticated deposition taken upon reasonable notice to the other parties, so far as otherwise admissible under the rules of 

evidence, may be read in evidence or, in the case of audiotape, videotape, or similar material, may be played in evidence before any military court 

or commission in any case not capital, or in any proceeding before a court of inquiry or military board, if it appears- 

(1)that the witness resides or is beyond the State, Territory, Commonwealth, or District of Columbia in which the court, commission, or 

board is ordered to sit, or beyond 100 miles from the place of trial or hearing; 

(2) that the witness by reason of death; age, sickness, bodily infirmity, imprisonment, military necessity, nonamenability to process, or 

other reasonable cause, is unable or refuses to appear and testify in person at the place of trial or hearing; or 

(3) that the present whereabouts of the witness is unknown. 

(e) Subject to subsection (d), testimony by deposition may be presented by the defense in capital cases. 

(f) Subject to subsection (d), a deposition may be read in evidence or, in the case of audiotape, videotape, or similar material, may be played 

in evidence in any case in which the death penalty is authorized but is not mandatory, whenever the convening authority directs that the case be 

treated as not capital, and in such a case a sentence of death may not be adjudged by the court-martial. 

5 850. Art. 50. Admlsslblllty of records of courts of Inquiry 

(a) In any case not capital and not extending to the dismissal of a commissioned officer, the sworn testimony, contained in the duly 

authenticated record of proceedings of a court of inquiry, of a person whose oral testimony cannot be obtained, may, if otherwise admissible under 

the rules of evidence, be read in evidence by any party before a court-martial or military commission if the accused was a party before the court of 

inquiry and if the same issue was involved or if the accused consents to the introduction of such evidence. 

(b)Such testimony may be read in evidence only by the defense in capital cases or cases extending to the dismissal of a commissioned officer. 

(c) Such testimony may also be read in evidence before a court of inquiry or a military board. 

5 851. Art. 51. Voting and rulings 

(a) Voting by members of a general or special court-martial on the findings and on the sentence, and by members of a court-martial without a 

military judge upon questions of challenge, shall be by secret written ballot. The junior member of the court shall count the votes. The count shall 

be checked by the president, who shall forthwith announce the result of the ballot to the members of the court. 

(b)The military judge and, except for questions of challenge, the president of a court-martial without a military judge shall rule upon all 
g 851. Art. 51(c) APPENDIX 2 

questions of law and all interlocutory questions arising during the proceedings. Any such ruling made by the military judge upon any question of 

law or any interlocutory question other than the factual issue of mental responsibility of the accused, or by the president of a court-martial without 

a military judge upon any question of law other than a motion for a finding of not guilty, is final and constitutes the ruling of the court. However, the 

military judge or the president of a court-martial without a military judge may change his ruling at any time during the trial. Unless the ruling is 

final, if any member objects thereto, the court shall be cleared and closed and the question decided by a voice vote as provided in section 852 of 

this title (article 52), beginning with the junior in rank. 

(c) Before a vote is taken on the findings, the military judge or the president of a court-martial without a military judge shall, in the presence 

of the accused and counsel, instruct the members of the court as to the elements of the offense and charge them- 

(1) that the accused must be presumed to be innocent until his guilt is established by legal and competent evidence beyond reasonable 

doubt; 

(2) that in the case being considered, if there is areasonable doubt as to the guilt of the accused, the doubt must be resolved in favor of the 

accused and he must be acquitted; 

(3)that, if there is a reasonable doubt as to the degree of guilt, the finding must be in a lower degree as to which there is no reasonable 

doubt; and 

(4) that the burden of proof to establish the guilt of the accused beyond reasonable doubt is upon the United States. 

(d) Subsections (a), (b), and (c) do not apply to a court-martial composed of a military judge only. The military judge of such a court-martial 

shalldetermine all questions of law and fact arising during the proceedings and, if the accused is convicted, adjudge an appropriate sentence. The 

military judge of such a court-martial shall make a general finding and shall in addition on request find the facts specially. If an opinion or 

memorandum of decision is filed, it will be sufficient if the findings of fact appear therein. 

J 852. Art. 52. Number of votes requlred 

(a) (1)No person may be convicted of an offense for which the death penalty is made mandatory by law, except by the concurrence of all the 

members of the court-martial present at the time the vote is taken. 

(2) No person may be convicted of any other offense, except as provided in section 845(b) of this title (article 45(b)) or by the 

concurrence of two-thirds of the members present at the time the vote is taken. 

(b) (1) No person may be sentenced to suffer death, except by the concurrence of all the members of the court-martial present at the time the 

vote is taken and for an offense in this chapter expressly made punishable by death. 

(2) No person may be sentenced to life imprisonment or to confinement for more than ten years, except by the concurrence of threefourths of the members present at the time the vote is taken. 

(3) All other sentences shall be determined by the concurrence of two-thirds of the members present at the time the vote is taken. 

(c) All other questions to be decided by the members of a general or special court-martial shall be determined by a majority vote, but a 

determination to reconsider a finding of guilty or to reconsider a sentence, with a view toward decreasing it, may be made by any lesser vote which 

indicates that the reconsideration is not opposed by the number of votes required for that finding or sentence. A tie vote on a challenge disqualifies 

the member challenged. A tie vote on a motion for a finding of not guilty or on a motion relating to the question of the accused's sanity is a 

determination against the accused. A tie vote on any other question is a determination in favor of the accused. 

$ 853. Art. 53. Court to announce action 

A court-martial shall announce its findings and sentence to the parties as soon as determined. 

0 854. Art. 54. Record of trial 

(a) Each general court-martial shall keep a separate record of the proceedings in each case brought before it, and the record shall be 

authenticated by the signature of the military judge. If the record cannot be authenticated by the military judge by reason of his death, disability, or 

absence, it shall be authenticated by the signature of the trial counsel or by that of a member if the trial counsel is unable to authenticate it by reason 

of his death, disability, or absence. In a court-martial consisting of only a military judge the record shall be authenticated by the court reporter 

under the same conditions which would impose such a duty on a member under this subsection. 

(b)Each special and summary court-martial shall keep a separate record of the proceedings in each case, and the record shall be authenticated 

in the manner required by such regulations as the President may prescribe. 

(c) (1) A complete record of the proceedings and testimony shall be prepared- 

(A) in each general court-martial case in which the sentence adjudged includes death, a dismissal, a discharge, or (if the sentence 

adjudged does not include a discharge) any other punishment which exceeds that which may otherwise be adjudged by a 

special court-martial; and 

(B) in each special court-martial case in which the sentence adjudged includes a bad-conduct discharge. 

(2) In all other court-martial cases, the record shall contain such matters as may be prescribed by regulations of the President. 
UNIFORM CODE OF MILITARY JUSTICE Q 858a. Art. 58a(b) 

(d) A copy of the record of the proceedings of each general and special court-martial shall be given to the accused as soon as it is 

authenticated. 

Subchapter VIII. SENTENCES 

Sec. Art. 

855. 55. Cruel and unusual punishments prohibited. 

856. 56. Maximum limits. 

857. 57. Effective date of sentences. 

858. 58. Execution of confinement. 


858a. 58a. Sentences: reduction in enlisted grade upon approval. 


5 855. Art. 55. Cruel and unusual punishments prohibited 

Punishment by flogging, or by branding, marking, or tattooing on the body, or any other cruel or unusual punishment, may not be adjudged 

by a court-martial or inflicted upon any person subject to this chapter. The use of irons, single or double, except for the purpose of safe custody, is 

prohibited. 

6 856. Art. 56. Maximum llmlts 

The punishment which a court-martial may direct for an offense may not exceed such limits as the President may prescribe for that offense. 

6 857. Art. 57. Effective date of sentences 

(a) No forfeiture may extend to any pay or allowances accrued before the date on which the sentence is approved by the person acting under 

section 860(c) of this title (article 60(c)). 

(b) Any period of confinement included in a sentence of a court-martial begins to run from the date the sentence is adjudged by the courtmartial, but periods during which the sentence to confinement is suspended or deferred shall be excluded in computing the service of the term of 

confinement. 

(c) All other sentences of courts-martial are effective on the date ordered executed. 

(d) On application by an accused who is under sentence to confinement that has not been ordered executed, the convening authority or, if the 

accused is no longer under his jurisdiction, the officer exercising general court-martial jurisdiction over the command to which the accused is 

currently assigned, may in his sole discretion defer service of the sentence to confinement. The deferment shall terminate when the sentence is 

ordered executed. The deferment may be rescinded at any time by the officer who granted it or, if the accused is no longerunder his jurisdiction, by 

the officer exercising general court-martial jurisdiction over the command to which the accused is currently assigned. 

Q 858. Art. 58. Execution of confinement 

(a) Under such instructions as the Secretary concerned may prescribe, a sentence of confinement adjudged by a court-martial or other 

military tribunal, whether or not the sentence includes discharge or dismissal, and whether or not the discharge or dismissal has been executed, 

may be carried into execution by confinement in any place of confinement under the control of any of the armed forces or in any penal or 

correctional institution under the control of the United States, or which the United States may be allowed to use. Persons so confined in a penal or 

correctional institution not under the control of one of the armed forces are subject to the same discipline and treatment as persons confined or 

committed by the courts of the United States or of the State, Territory, District of Columbia, or place in which the institution is situated. 

(b) The omission of the words "hard labor" from any sentence of a court-martial adjudging confinement does not deprive the authority 

executing that sentence of the power to require hard labor as a part of the punishment. 

Q 858a. Art. 58a. Sentences: reduction in enlisted grade upon approval 

(a) Unless otherwise provided in regulations to be prescribed by the Secretary concerned, a court-martial sentence of an enlisted member in a 

pay grade above E-1 , as approved by the convening authority, that includes- 

(1) a dishonorable or bad-conduct discharge; 

(2) confinement; or 

(3) hard labor without confinement; 

reduces that member to pay grade E-I, effective on the date of that approval. 

(b) If the sentence of a member who is reduced in pay grade under subsection (a) is set aside or disapproved, or, as finally approved, does not 

include any punishment named in subsection (a)(l), (2), or (3), the rights and privileges of which he was deprived because of that reduction shall 

be restored to him and he is entitled to the pay and.allowances to which he would have been entitled for the period the reduction was in effect, had 

he not been so reduced. 
Q 859. Art. 59(a) 	 APPENDIX 2 

Subchapter IX. POST-TRIAL PROCEDURE 

AND REVIEW OF COURTS-MARTIAL 

Sec. Art. 

859. 59. Error of law; lesser included offense. 

860. 60. Action by the convening authority. 

861. 61. Waiver or withdrawal of appeal. 

862. 62. Appeal by the United States. 

863. 63. Rehearings. 

864. 64. Review by a judge advocate. 

865. 65. Disposition of records. 

866. 66. Review by Court of Military Review. 

867. 67. Review by the Court of Military Appeals. 

868. 68. Branch offices. 

869. 69. Review in the office of the Judge Advocate General. 

870. 70. Appellate counsel. 

871. 71. Execution of sentence; suspension of sentence. 

872. 72. Vacation of suspension. 

873. 73. Petition for a new trial. 

874. 74. Remission and suspension. 

875. 75. Restoration. 

876. 76. Finality of proceedings, findings, and sentences. 

876a. 76a. Leave required to be taken pending review of certain court-martial convictions. 

Q 859. Art. 59. Error of law; lesser Included offense 

(a) A finding or sentence of a court-martial may not be held incorrect on the ground of an error of law unless the error materially prejudices the 

substantial rights of the accused. 

(b) Any reviewing authority with the power to approve or affirm a finding of guilty may approve or affirm, instead, so much of the finding as 

includes a lesser included offense. 

9 860. Art. 60. Actlon by the convenlng authority 

(a) The findings and sentence of a court-martial shall be reported promptly to the convening authority after the announcement of the 

sentence. 

(b) (1) Within 30 days after the sentence of a general court-martial or of a special court-martial which has adjudged a bad-conduct discharge 

has been announced, the accused may submit to the convening authority matters for consideration by the convening authority with respect to the 

findings and the sentence. In the case of all other special courts-martial, the accused may make such a submission to the convening authority 

within 20 days after the sentence is announced. In the case of all summary courts-martial the accused may make such a submission to the 

convening authority within seven days after the sentence is announced. If the accused shows that additional time is required for the accused to 

submit such matters, the convening authority or other person taking action under this section, for good cause, may extend the period- 

(A) 	in the case of a general court-martial or a special court-martial which has adjudged a bad-conduct discharge, for not more than 

an additional 20 days; and 

(B)in the case of all other courts-martial, for not more than an additional 10 days. 

(2) In a summary court-martial case the accused shall be promptly provided acopy of therecord of trial for use in preparing a submission 

authorized by paragraph (1). 

(3)In no event shall the accused in any general or special court-martial case have less than a seven-day period after the day on which a 

copy of the authenticated record of trial has been given to him within which to make a submission under paragraph (1). The convening authority or 

other person taking action on the case, for good cause, may extend this period for up to an additional 10 days. 

(4) The accused may waive his right to make a submission to the convening authority under paragraph (I). Such a waiver must be made 

in writing and may not be revoked. For the purposes of subsection (c)(2), the time within which the accused may make a submission under this 

subsection shall be deemed to have expired upon the submission of such a waiver to the convening authority. 

(c) (1)The authority under this section to modify the findings and sentence of a court-martial is a matter of command prerogative involving 

the sole discretion of the convening authority. Under regulations of the Secretary concerned, a commissioned officer commanding for the time 

being, a successor in command, or any person exercising general court-martial jurisdiction may act under this section in place of the convening 

authority. 

(2) Action on the sentence of a court-martial shall be taken by the convening authority or by another person authorized to act under this 

section. Spbject to regulations of the Secretary concerned, such action may be taken only after consideration of any matters submitted by the 

accused under subsection (b) and, if applicable, under subsection (d), or after the time for submitting such matters expires, whichever is earlier. 

The convening authority or other person taking such action, in his sole discretion, may approve, disapprove, commute, or suspend the sentence in 

whole or in part. 
UNIFORM CODE OF MILITARY JUSTICE 	 5 862. Art. 62(c) 

(3) Action on the findings of a court-martial by the convening authority or other person acting on the sentence is not required. However, 

such person, in his sole discretion, may- 

(A) dismiss any charge or specification by setting aside a finding of guilty thereto; or 

(B) 	change a finding of guilty to a charge or specification to a finding of guilty to an offense that is a lesser included offense of the 

offense stated in the charge or specification. 

(d) Before acting under this section on any general court-martial case or any special court-martial case that includes a bad-conduct discharge, 

the convening authority or other person taking action under this section shall obtain and consider the written recommendation of the staff judge 

advocate or legal officer. The convening authority or other person taking action under this section shall refer the record of trial to his staff judge 

advocate or legal officer, and the staff judge advocate or legal officer shall use such record in the preparation of his recommendation. The 

recommendation of the staff judge advocate or legal officer shall include such matters as the President may prescribe by regulation and shall be 

served on the accused, who shall have five days from the date of receipt in which to submit any matter in response. The convening authority or 

other person taking action under this section, for good cause, may extend that period for up to an additional 20 days. Failure to object in the 

response to the recommendation or to any matter attached to the recommendation waives the right to object thereto. 

(e) (1)The convening authority or other person taking action under this section, in his sole discretion, may order aproceeding in revision or 

a rehearing. 

(2) A proceeding in revision may be ordered if there is an apparent error or omission in the record or if the record shows improper or 

inconsistent action by a court-martial with respect to the findings or sentence that can be rectified without material prejudice to the substantial 

rights of the accused. In no case, however, may a proceeding in revision- 

(A) reconsider a finding of not guilty of any specification or a ruling which amounts to a finding of not guilty; 

(B) 	reconsider a finding of not guilty of any charge, unless there has been a finding of guilty under a specification laid under that 

charge, which sufficiently alleges a violation of some article of this chapter; or 

(C) increase the severity of some article of the sentence unless the sentence prescribed for the offense is mandatory. 

(3) A rehearing may be ordered by the convening authority or other person taking action under this section if he disapproves the findings 

and sentence and states the reasons for disapproval of the findings. If such person disapproves the findings and sentence and does not order a 

rehearing, he shall dismiss the charges. A rehearing as to the findings may not be ordered where there is a lack of sufficient evidence in the record 

to support the findings. A rehearing as to the sentence may be ordered if the convening authority or other person taking action under this 

subsection disapproves the sentence. 

5 861. Art. 61. Waiver or withdrawal of appeal 

(a) In each case subject to appellate review under section 866 or 869(a) of this title (article 66 or 69(a)), except a case in which the sentence as 

approved under section 860(c) of this title (article 60(c)) includes death, the accused may file with the convening authority a statement expressly 

waiving the right of the accused to such review. Such a waiver shall be signed by both the accused and by defense counsel and must be filed within 

10days after the action under section 860(c) of this title (article 60(c)) is served on the accused or on defense counsel. The convening authority or 

other person taking such action, for good cause, may extend the period for such filing by not more than 30 days. 

(b) Except in a case in which the sentence as approved under section 860(c) of this title (article 60(c)) includes death, the accused may 

withdraw an appeal at any time. 

(c) A waiver of the right to appellate review or the withdrawal of an appeal under this section bars review under section 866 or 869(a) of this 

title (article 66 or 69(a)). 

5 862. Art. 62. Appeal by the United States 

(a) (1)In a trial by court-martial in which a military judge presides and in which a punitive discharge may be adjudged, the United States 

may appeal an order or ruling of the military judge which terminates the proceedings with respect to a charge or specification or which excludes 

evidence that is substantial proof of a fact material in the proceeding. However, the United States may not appeal an order or ruling that is, or that 

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

(2) An appeal of an order or ruling may not be taken unless the trial counsel provides the military judge with written notice of appeal 

from the order or ruling within 72 hours of the order or ruling. Such notice shall include a certification by the trial counsel that the appeal is not 

taken for the purpose of delay and (if the order or ruling appealed is one which excludes evidence) that the evidence excluded is substantial proof of 

a fact material in the proceeding. 

(3) An appeal under this section shall be diligently prosecuted by appellate Government counsel. 

(b) An appeal under this section shall be forwarded by a means prescribed under regulations of the President directly to the Court of Military 

Review and shall, whenever practicable, have priority over all other proceedings before that court. In ruling on an appeal under this section, the 

Court of Military Review may act only with respect to matters of law, notwithstanding section 866(c) of this title (article 66(c)). 

(c) Any period of delay resulting from an appeal under this section shall be excluded in deciding any issue regarding denial of a speedy trial 

unless an appropriate authority determines that the appeal was filed solely for the purpose of delay with the knowledge that it was totally frivolous 

and without merit. 
Q 863. Art. 63 APPENDIX 2 

5 863. Art. 63. Rehearings 

Each rehearing under this chapter shall take place before a court-martial composed of members not members of the court-martial which first 

heard the case. Upon a rehearing the accused may not be tried for any offense of which he was found not guilty by the first court-martial, and no 

sentence in excess of or more severe than the original sentence may be imposed, unless the sentence is based upon a finding of guilty of an offense 

not considered upon the merits in the original proceedings, or unless the sentence prescribed for the offense is mandatory. If the sentence approved 

after the first court-martial was in accordance with a pretrial agreement and the accused at the rehearing changes his plea with respect to the 

charges or specifications upon which the pretrial agreement was based, or otherwise does not comply with the pretrial agreement, the sentence as 

to those charges or specifications may include any punishment not in excess of that lawfully adjudged at the first court-martial. 

Q 864. Art. 64. Review by a Judge advocate 

(a) Each case in which there has been a finding of guilty that is not reviewed under section 866 or 869(a) of this title (article 66 or 69(a)) shall 

be reviewed by a judge advocate under regulations of the Secretary concerned. A judge advocate may not review a case under this subsection if he 

has acted in the same case as an accuser, investigating officer, member of the court, military judge, or counsel or has otherwise acted on behalf of 

the prosecution or defense. The judge advocate's review shall be in writing and shall contain the following: 

(1) Conclusions as to whether- 

(A) the court had jurisdiction over the accused and the offense; 

(B) the charge and specification stated an offense; and 

(C) the sentence was within the limits prescribed as a matter of law. 

(2) A response to each allegation of error made in writing by the accused. 

(3) If the case is sent for action under subsection (b), a recommendation as to the appropriate action to be taken and an opinion as to 

whether corrective action is required as a matter of law. 

(b) The record of trial and related documents in each case reviewed under subsection (a) shall be sent for action to the person exercising 

general court-martial jurisdiction over the accused at the time the court was convened (or to that person's successor in command) if- 

(1) the judge advocate who reviewed the case recommends corrective action; 

(2)the sentence approved under section 860(c) of this title (article 60(c)) extends to dismissal, a bad-conduct or dishonorable discharge, 

or confinement for more than six months; or 

(3) such action is otherwise required by regulations of the Secretary concerned. 

(c) (1) The person to whom the record of trial and related documents are sent under subsection (b) may- 

(A) disapprove or approve the findings or sentence, in whole or in part; 

(B) remit, commute, or suspend the sentence in whole or in part; 

(C) except where the evidence was insufficient at the trial to support the findings, order a rehearing on the findings, on the 

sentence, or on both; or 

(D) dismiss the charges. 

(2) If a rehearing is ordered but the convening authority finds a rehearing impracticable, he shall dismiss the charges. 

(3) If the opinion of the judge advocate in the judge advocate's review under subsection (a) is that corrective action is required as amatter 

of law and if the person required to take action under subsection (b) does not take action that is at least as favorable to the accused as that 

recommended by the judge advocate, the record of trial and action thereon shall be sent to the Judge Advocate General for review under section 

869(b) of this title (article 69(b)). 

Q 865. Art. 65. Disposltlonof records 

(a) In a case subject to appellate review under section 866 or 869(a) of this title (article 66 or 69(a)) in which the right to such review is not 

waived, or an appeal is not withdrawn, under section 861 of this title (article 61), the record of trial and action thereon shall be transmitted to the 

Judge Advocate General for appropriate action. 

(b) Except as otherwise required by this chapter, all other records of trial and related documents shall be transmitted and disposed of as the 

Secretary concerned may prescribe by regulation. 

Q 866. Art. 66. Review by Court of Mllitary Revlew 

(a) Each Judge Advocate General shall establish a Court of Military Review which shall be composed of one or more panels, and each such 

panel shall be composed of not less than three appellate military judges. For the purpose of reviewing court-martial cases, the court may sit in 

panels or as a whole in accordance with rules prescribed under subsection (0.Any decision of a panel may be reconsidered by the court sitting as a 

whole in accordance with such rules. Appellate military judges who are assigned to a Court of Military Review may be commissioned officers or 

civilians, each of whom must be a member of a bar of a-Federal court or the highest court of a State. The Judge Advocate General shall designate as 
UNIFORM CODE OF MILITARY JUSTICE 5 867. Art. 67(b)(2) 

chief judge on the appellate military judges of the Court of Military Review established by him. The chief judge shall determine on which panels 

of the court the appellate judges assigned to the court will serve and which military judge assigned to the court will act as the senior judge on each 

panel. 

(b) The Judge Advocate General shall refer to a Court of Military Review the record in each case of trial by court-martial- 

(1) in which the sentence, as approved, extends to death, dismissal of a commissioned officer, cadet, or midshipman, dishonorable or 

bad-conduct discharge, or confinement for one year or more; and 

(2) except in the case of a sentence extending to death, the right to appellate review has not been waived or an appeal has not been 

withdrawn under section 861 of this title (article 61). 

(c) In a case referred to it, the Court of Military Review may act only with respect to the findings and sentence as approved by the convening 

authority. It may affirm only such findings of guilty and the sentence or such part or amount of the sentence, as it finds correct in law and fact and 

determines, on the basis of the entire record, should be approved. In considering the record, it may weigh the evidence, judge the credibility of 

witnesses, and determine controverted questions of fact, recognizing that the trial court saw and heard the witnesses. 

(d) If the Court of Military Review sets aside the findings and sentence, it may, except where the setting aside is based on lack of sufficient 

evidence in the record to support the findings, order a rehearing. If it sets aside the findings and sentence and does not order a rehearing, it shall 

order that the charges be dismissed. 

(e) The Judge Advocate General shall, unless there is to be further action by the President, the Secretary concerned, the Court of Military 

Appeals, or the Supreme Court, instruct the convening authority to take action in accordance with the decision of the Court of Military Review. If 

the Court of Military Review has ordered a rehearing but the convening authority finds a rehearing impracticable, he may dismiss the charges. 

(f) The Judge Advocates General shall prescribe uniform rules of procedure for Courts of Military Review and shall meet periodically to 

formulate policies and procedure in regard to review of court-martial cases in the office of the Judge Advocates General and by Courts of Military 

Review. 

(g) No member of a Court of Military Review shall be required, or on his own initiative be permitted, to prepare, approve, disapprove, 

review, or submit, with respect to any other member of the same or another Court of Military Review, an effectiveness, fitness, or efficiency 

report, or any other report documents used in whole or in part for the purpose of determining whether a member of the armed forces is qualified to 

be advanced in grade, or in determining the assignment or transfer of a member of the armed forces, or in determining whether a member of the 

armed forces shall be retained on active duty. 

(h)No member of a Court of Military Review shall be eligible to review the record of any trial if such member served as investigating officer 

in the case or served as a member of the court-martial before which such trial was conducted, or served as military judge, trial or defense counsel, 

or reviewing officer of such trial. 

5 867. Art. 67. Review by the Court of Military Appeals 

(a) (1) There is a United States Court of Military Appeals established under Article I of the Constitution of the United States and located for 

administrative purposes only in the Department of Defense. The court consists of three judges appointed from civil life by the President, by and 

with the advice and consent of the Senate, for a term of fifteen years. Not more than two of the judges of the court may be appointed from the same 

political party, nor is any person eligible for appointment to the court who is not a member of the bar of a Federal court or the highest court of the 

State. Each judge is entitled to the same salary and travel allowances as are, and from time to time may be provided for judges of the United States 

Court of Appeals, and is eligible for reappointment. The President shall designate from time to time one of the judges to act as chief judge. The 

chief judge of the court shall have precedence and preside at any session which he attends. The other judges shall have precedence and preside 

according to the seniority of their commissions. Judges whose commissions bear the same date shall be precedence according to seniority in age. 

The court may prescribe its own rules of procedure and determine the number of judges required to constitute a quorum. A vacancy in the court 

does not impair the right of the remaining judges to exercise the powers of the court. 

(2) Judges of the United States Court of Military Appeals may be removed by the President, upon notice and hearing, for neglect of duty 

or malfeasance in office or for mental or physical disability, but for no other cause. 

(3) If a judge of the United States Court of Military Appeals is temporarily unable to perform his duties because of illness or other 

disability, the President may designate a judge of the United States Court of Appeals for the District of Columbia Circuit to fill the office for the 

period of disability. 

(4) Any judge of the United States Court of Military Appeals who is receiving retired pay may become a senior judge, may occupy 

offices in a Federal building, may be provided with a staff assistant whose compensation shall not exceed the rate prescribed for GS-9 in the 

General Schedule under section 5332of title 5, and, with his consent, may be called upon by the chief judge of said court to perform judicial duties 

with said court for any period or periods specified by such chief judge. A senior judge who is performing judicial duties persuant to this subsection 

shall be paid the same compensation (in lieu of retired pay) and allowances for travel and other expenses as a judge. 

(b) The Court of Military Appeals shall review the record in- 

(1) all cases in which the sentence, as affirmed by a Court of Military Review, extends to death; 

(2) all cases reviewed by a Court of Military Review which the Judge Advocate General orders sent to the Court of Military Appeals for 

review; and 
0 867. Art. 67(b)(3) APPENDIX 2 

(3) all cases reviewed by a Court of Military Review in which, upon petition of the accused and on good cause shown, the Court of 

Military Appeals has granted a review. 

(c) the accused may petition the Court of Military Appeals for review of a decision of a Court of Military Review within 60 days from the 

earlier of- 

(1) the date on which the accused is notified of the decision of the Court of Military Review; or 

(2) the date on which a copy of the decision of the Court of Military Review, after being served on appellate counsel of record for the 

accused (if any), is deposited in the United States mails for delivery by first class certified mail to the accused at an address provided by the accused 

or, if no such address has been provided by the accused, at the latest address listed for the accused in his official service record. The Court of 

Military Appeals shall act upon such a petition promptly in accordance with the rules of the court. 

(d) In any case reviewed by it, the Court of Military Appeals may act only with respect to the findings and sentence as approved by the 

convening authority and as affirmed or set aside as incorrect in law by the board of review. In a case which the Judge Advocate General orders sent 

to the Court of Military Appeals, that action need be taken only with respect to the issues raised by him. In a case reviewed upon petition of the 

accused, that action need be taken only with respect to issues specified in the grant of review. The Court of Military Appeals shall take action only 

with respect to matters of law. 

(e) If the Court of Military Appeals sets aside the findings and sentence, it may, except where the setting aside is based on lack of sufficient 

evidence in the record to support the findings, order a rehearing. If it sets aside the findings and sentence and does not order a rehearing, it shall 

order that the charges be dismissed. 

(f) After it has acted on a case, the Court of Military Appeals may direct the Judge Advocate General to return the record to the Court of 

Military Review for further review in accordance with the decision of the Court. Otherwise, unless there is to be further action by the President or 

the Secretary concerned, the Judge Advocate General shall instruct the convening authority to take action in accordance with that decision. If the 

court has ordered a rehearing, but the convening authority finds a rehearing impracticable, he may dismiss the charges. 

(g) (1) A committee consisting of the judges of the Court of Military Appeals, the Judge Advocates General of the Army, Navy, and Air 

Force, the Chief Counsel of the Coast Guard, the Director, Judge Advocate Division, Headquarters, United States Marine Corps, and two 

members of the public appointed by the Secretary of Defense shall meet at least annually. The committee shall make an annual comprehensive 

survey of the operation of this chapter. After each such survey, the committee shall report to the Committees on Armed Services of the Senate and 

of the House of ~e~resentatives id to the Secretary of Defense, the Secretaries of the military departments, and the Secretary of Transportation, 

the number and status of pending cases and any recommendations relating to uniformity of policies as to sentences, amendments to this chapter, 

and any other matters considered appropriate. 

(2) Each member of the committee appointed by the Secretary of Defense shall be a recognized authority in military justice or criminal 

law. Each such member shall be appointed for a term of three years. 

(3) The Federal Advisory Committee Act (5 U.S.C. App. I) shall not apply to the committee. 

(h) (1) Decisions of the Court of Military Appeals are subject to review by the Supreme Court by writ of certiorari as provided in section 

1259 of title 28. The Supreme Court may not review by a writ of sertiorari under such section any action of the Court of Military Appeals in 

refusing to grant a petition for review. 

(2) The accused may petition the Supreme Court for a writ of certiorari without prepayment of fees and costs or security therefor and 

without filing the affidavit required by section 1915(a) of title 28. 

5 868. Art. 68. Branch offices 

The Secretary concerned may direct the Judge Advocate General to establish a branch office with any command. The branch office shall be 

under an Assistant Judge Advocate General who, with the consent of the Judge Advocate General, may establish a Court of Military Review with 

one or more panels. That Assistant Judge Advocate General and any Court of Military Review established by him may perform for that command 

under the general supervision of the Judge Advocate General, the respective duties which the Judge Advocate General and a Court of Military 

Review established by the Judge Advocate General would otherwise be required to perform as to all cases involving sentences not requiring 

approval by the President. 

§ 869. Art. 69. Revlew In the office of the Judge Advocate General 

(a) The record of trial in each general court-martial that is not otherwise reviewed under section 866 of this title (article 66) shall be examined 

in the office of the Judge Advocate General if there is a finding of guilty and the accused does not waive or withdraw his right to appellate review 

under section 861 of this title (article 61). If any part of the findings or sentence is found to be unsupported isentence 

is appmpnate, the Judge Advocate General may modify or set aside the findings or sentence or both. If the Judge Advocate General so directs, the 

record shall be reviewed by a Court of Military Review under section 866 of this title (article 661, but in that event there may be no further review 

by the Court of Military Appeals except under section 867(b)(2) of this title (article 67(b)(2)). 

(b)The findings or sentence, or both, in a court-martial case not reviewed under subsection (a) or under section 866 of this title (article 66) 

may be modified or set aside, in whole or in part, by the Judge Advocate General on the ground of newly discovered evidence, fraud on the court, 

lack of jurisdiction over the accused or the offense, error prejudicial to the substantial rights of the accused, or the appropriateness of the sentence. 

If such a case is considered upon application of the accused, the application must be filed in the office of the Judge Advocate General by the 
- - 

UNIFORM CODE OF MILITARY JUSTICE 5 871. Art. 71 (d) 

accused on or before the last day of the two-year period beginning on the date the sentence is approved under section 860(c) of this title (article 

60(c)), unless the accused establishes good cause for failure to file within that time. 

(c) If the Judge Advocate General sets aside the findings or sentence, he may, except when the setting aside is based on lack of sufficient 

evidence in the record to support the findings, order a rehearing. If he sets aside the findings and sentence and does not order a rehearing, he shall 

order that the charges be dismissed. If the Judge Advocate General orders a rehearing but the convening authority finds a rehearing impractical, 

the convening authority shall dismiss the charges. 

5 870. Art. 70. Appellate counsel 

(a) The Judge Advocate General shall detail in his office one or more commissioned officers as appellate Government counsel, and one or 

more commissioned officers as appellate defense counsel, who are qualified under section 827(b)(1) of this title (article 27(b)(l)). 

(b) Appellate Government counsel shall represent the United States before the Court of Military Review or the Court of Military Appeals 

when directed to do so by the Judge Advocate General. Appellate Government counsel may represent the United States before the Supreme Court 

in cases arising under this chapter when requested to do so by the Attorney General. 

(c) Appellate defense counsel shall represent the accused before the Court of Military Review, the Court of Military Appeals, or the Supreme 

Court-

(1) when requested by the accused; 

(2) when the United States is represented by counsel; or 

(3) when the Judge Advocate General has sent the case to 

the cow of Military Appeals. 

(d) The accused has the right to be represented before the Court of Military Review, the Court of Military Appeals, or the Supreme Court by 

civilian counsel if provided by him. 

(e) Military appellate counsel shall also perform such other functions in connection with the review of court-martial cases as the Judge 

Advocate directs. 

5 871. Art. 71. Execution of sentence; suspension of sentence 

(a) If the sentence of the court-martial extends to death, that part of the sentence providing for death may not be executed until approved by 

the President. In such a case, the President may commute, remit, or suspend the sentence, or any part thereof, as he sees fit. That part of the 

sentence providig for death may not be suspended. 

(b) If in the case of a commissioned officer, cadet, or midshipman, the sentence of a court-martial extends to dismissal, that part of the 

sentence providig for dismissal may not be executed ti approved b y Secretary concerned or such Under Secretary or Assistant Secretary as 

may be designated by the Secretary concerned. In such a case, the Secretary, Under Secretary or Assistant Secretary, as the case may be, may 

commute, remit, or suspend the sentence, or any part of the sentence, as he sees fit. In time of war or national emergency he may commute a 

sentence of dismissal to reduction to any enlisted grade. A person so reduced may be required to serve for the duration of the war or emergency and 

six months thereafter. 

(c) (1) If a sentence extends to death, dismissal, or a dishonorable or bad-conduct discharge and if the right of the accused to appellate 

review is not waived, and an appeal is not withdrawn, under section 861 of this title (article 61), that part of the sentence extending to death, 

dismissal, or a dishonorable or bad-conduct discharge may not be executed until there is a final judgment as to the legality of the proceedings (and 

with respect to death or dismissal, approval under subsection (a) or (b), as appropriate). A judgment as to legality of the proceedings is final in such 

cases when review is completed by a Court of Military Review and- 

(A) the time for the accused to file a petition for review by the Court of Military Appeals has expired and the accused has not filed a 

timely petition for such review and the case is not otherwise under review by that Court; 

(B) such a petition is rejected by the Court of Military Appeals; or 

(C) review is completed in accordance with the judgment of the Court of Military Appeals and- 

(i) a petition for a writ of certiorari is not filed within the time limits prescribed by the Supreme Court; 

(ii) such a petition is rejected by the Supreme Court; or 

(iii) review is otherwise completed in accordance with the judgment of the Supreme Court. 

(2) If a sentence extends to dismissal or a dishonorable or bad-conduct discharge and if the right of the accused to appellate review is 

waived, or an appeal is withdrawn, under section 861 of this title (article 61), that part of the sentence extending to dismissal or a bad-conduct or 

dishonorable discharge may not be executed until review of the case by a judge advocate (and any action on that review) under section 864 of this 

title (article 64) is completed. Any other part of a court-martial sentence may be ordered executed by the convening authority or other person 

acting on the case under section 860 of this title (article 60) when approved by him under that section. 

(d) The convening authority or other person acting on the case under section 860 of this title (article 60) may suspend the execution of any 

sentence or part thereof, except a death sentence. 
9 872. Art. 72(a) APPENDIX 2 

3 872. Art. 72. Vacatlon of suspenslon 

(a) Before the vacation of the suspension of a special court-martial sentence which as approved includes a bad-conduct discharge, or of any 

general court-martial sentence, the officer having special court-martial jurisdiction over the probationer shall hold a hearing on the alleged 

violation of probation. The probationer shall be represented at the hearing by counsel if he so desires. 

(b) The record of the hearing and the recommendation of the officer having special court-martial jurisdiction shall be sent for action to the 

officer exercising general court-martial jurisdiction over the probationer. If he vacates the suspension, any unexecuted part of the sentence, except 

a dismissal, shall be executed, subject to applicable restrictions in section 871(c) of this title (article 71(c)). The vacation of the suspension of a 

dismissal is not effective until approved by the Secretary concerned. 

(c) The suspension of any other sentence may be vacated by any authority competent to convene, for the command in which the accused is 

serving or assigned, a court of the kind that imposed the sentence. 

5 873. Art. 73. Petltlon for a new trlal 

At any time within two years after approval by the convening authority of a court-martial sentence, the accused may petition the Judge 

Advocate General for a new trial on the grounds of newly discovered evidence or fraud on the court. If the accused's case is pending before a Court 

of Military Review or before the Court of Military Appeals, the Judge Advocate General shall refer the petition to the appropriate court for action. 

Otherwise the Judge Advocate General shall act upon the petition. 

§ 874. Art. 74. Remlsslon and suspenslon 

(a) The Secretary concerned and, when designated by him, any Under Secretary, Assistant Secretary, Judge Advocate General, or 

commanding officer may remit or suspend any part or amount of the unexecuted part of any sentence, including all uncollected forfeitures other 

than a sentence approved by the President. 

(b) The Secretary concerned may, for good cause, substitute an administrative form of discharge for a discharge or dismissal executed in 

accordance with the sentence of a court-martial. 

§ 875. Art. 75. Restoration 

(a) Under such regulations as the Resident may prescribe, all rights, privileges, and property affected by an executed part of a court-martial 

sentence which has been set aside or disapproved, except an executed dismissal or discharge, shall be restored unless a new trial or rehearing is 

ordered and such executed part is included in a sentence imposed upon the new trial or rehearing. 

(b) If a previously executed sentence of dishonorable or bad-conduct discharge is not imposed on a new trial, the Secretary concerned shall 

substitute therefor a form of discharge authorized for administrative issuance unless the accused is to serve out the remainder of this enlistment. 

(c) If a previously executed sentence of dismissal is not imposed on a new trial, the Secretary concerned shall substitute therefor a form of 

discharge authorized for administrative issue, and the commissioned officer dismissed by the sentence may be reappointed by the Resident alone 

to such commissioned grade and with such rank as in the opinion of the Resident that former officer would have attained had he not been 

dismissed. The reappointment of such a former officer shall be without regard to the existence of a vacancy and shall affect the promotion status of 

other officers only insofar as the Resident may direct. All time between the dismissal and the reappointment shall be considered as actual service 

for all purposes, including the right to pay and allowances. 

5 876. Art. 76. Flnallty of proceedlngs, findlngs, and sentences 

The appellate review of records of trial provided by this chapter, the proceedings, findings, and sentences of courts-martial as approved, 

reviewed, or affirmed as required by this chapter, and all dismissals and discharges carried into execution under sentences by courts-martial 

following approval, review, or affirmation as required by this chapter, are final and conclusive. Orders publishing the proceedings of courtsmartial and all action taken pursuant to those proceedings are binding upon all departments, courts, agencies, and officers of the United States, 

subject only to action upon a petition for a new trial as provided in section 873 of this title (article 73) and to action by the Secretary concerned as 

provided in section 874 of this title (article 74), and the authority of the President. 

5 876a. Art. 76a. Leave requlred to be taken pendlng review of certain court-martlal convldlons 

Under regulations prescribed by the Secretary concerned, an accused who has been sentenced by a court-martial may be required to take 

leave pending completion of action under this subchapter if the sentence, as approved under section 860 of this title (article 60),includes an 

unsuspended dismissal or an unsuspended dishonorable or bad-conduct discharge. The accused may be required to begin such leave on the date on 

which the sentence is approved under section 860 of this title (article 60) or at any time after such date, and such leave may be continued until the 

date which action under this subchapter is completed or may be terminated at any earlier time. 

Subchapter X. PUNITIVE ARTICLES 

Sec. Art. 

877. 77. Principals. 

878. 78. Accessory after the fact. 

879. 79. Conviction of lesser included offense. 

880. 80. Attempts. 

Q 879. Art. 79 APPENDIX 2 

Q 879. Art. 79. Convlctlon of lesser Included offense 

An accused may be found guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense 

charged or an offense necessarily included therein. 

Q 880. Art. 80. Attempts 

(a) An act, done with specific intent to commit an offense under this chapter, amounting to more than mere preparation and tending, even 

though failing, to effect its commission, is an attempt to commit that offense. 

@) Any person subject to this chapter who attempts to commit any offense punishable by this chapter shall be punished as a court-martial 

may direct, unless otherwise specifically prescribed. 

(c) Any person subject to this chapter may be convicted of an attempt to commit an offense although it appears on the trial that the offense was 

consummated. 

§ 881. Art. 81. Consplracy 

Any person subject to this chapter who conspires with any other person to commit an offense under this chapter shall, if one or more of the 

conspirators does an act to effect the object of the conspiracy, be punished as a court-martial may direct. 

Q 882. Art. 82. Solicltatlon 

(a) Any person subject to this chapter who solicits or advises another or others to desert in violation of section 885 of this title (article 85) or 

mutiny in violation of section 894 of this title (article 94) shall, if the offense solicited or advised is attempted or committed, be punished with the 

punishment provided for the commission of the offense, but, if the offense solicited or advised is not committed or attempted, he shall be punished 

as a court-martial may direct. 

(b)Any person subject to this chapter who solicits or advises another or others to commit an act of misbehavior before the enemy in violation 

of section 899 of this title (article 99) or sedition in violation of section 894 of this title (article 94) shall, if the offense solicited or advised is 

committed, be punished with the punishment provided for the commission of the offense, but, if the offense solicited or advised is not committed, 

he shall be punished as a court-martial may direct. 

Q 883. Art. 83. Fraudulent enllstrnent, appolntment, or separatlon 

Any person who- 

(1) procures his own enlistment or appointment in the armed forces by knowingly false representation or deliberate concealment as to 

his qualifications for the enlistment or appointment and receives pay or allowances thereunder; or 

(2) procures his own separation from the armed forces by knowingly false representation or deliberate concealment as to his eligibility 

for that separation; 

shall be punished as a court-martial may direct. 

Q 884. Art. 84. Unlawful enllstment, appointment, or separation 

Any person subject to this chapter who effects an enlistment or appointment in or a separation from the armed forces of any person who is 

known to him to be ineligible for that enlistment, appointment, or separation because it is prohibited by law, regulation, or order shall be punished 

as a court-martial may direct. 

Q 885. Art. 85. Desertlon 

(a) Any member of the armed forces who- 

(1) without authority goes or remains absent from his unit, organization, or place of duty with intent to remain away therefrom 

permanently; 

(2) quits his unit, organization, or place of duty with intent to avoid hazardous duty or to shirk important service; or 

(3) without being regularly separated from one of the armed forces enlists or accepts an appointment in the same or another one of the 

armed forces without fully disclosing the fact that he has not been regularly separated, or enters any foreign armed service except when authorized 

by the United States; is guilty of desertion. 

(b) Any commissioned officer of the armed forces who, after tender of his resignation and before notice of its acceptance, quits his post or 

proper duties without leave and with intent to remain away therefrom permanently is guilty of desertion. 

(c) Any person found guilty of desertion or attempt to desert shall be punished, if the offense is committed in time of war, by death or such 

other punishment as a court-martial may direct, but if the desertion or attempt to desert occurs at any other time, by such punishment, other than 

death, as a court-martial may direct. 

Q 886. Art. 86 Absence wlthout leave 

Any member of the armed forces who, without authority- 
UNIFORM CODE OF MILITARY JUSTICE g 894. Art. 94(a)(1) 

(1) fails to go to his appointed place of duty at the time prescribed; 

(2) goes from that place; or 

(3) absents himself or remains absent from his unit, organization, or place of duty at which he is required to be at the time 

shall be punished as a court-martial may direct. 

g 887. Art. 87. Mlsslng movement 

Any person subject to this chapter who through neglect or design misses the movement of a ship, aircraft, or unit with which he is required in 

the course of duty to move shall be punished as a court-martial may direct. 

g 888. Art. 88. Contempt toward officials 

Any commissioned officer who uses contemptuous words against the President, the Vice President, Congress, the Secretary of Defense, the 

Secretary of a military department, the Secretary of Transportation, or the Governor or legislature of any State, Temtory, Commonwealth, or 

possession in which he is on duty or present shall be punished as a court-martial may direct. 

g 889. Art. 89 Disrespect toward superlor commlssloned officer 

Any person subject to this chapter who behaves with disrespect toward his superior commissioned officer shall be punished as a court-martial 

may direct. 

g 890. Art. 90. Assaulting or willfully disobeying superior commissioned officer 

Any person subject to this chapter who- 

(1) strikes his superior commissioned officer or draws or lifts up any weapon or offers any violence against him while he is in the 

execution of his office; or 

(2) willfully disobeys a lawful command of his superior commissioned officer; 

shall be punished, if the offense is committed in time of war, by death or such other punishment as a court-martial may direct, and if the offense is 

committed at any other time, by such punishment, other than death, as a court-martial may direct. 

g 891. Art. 91. lnsubordlnate conduct toward warrant officer, noncommissioned officer, or petty officer 

Any warrant officer or enlisted member who- 

(1) strikes or assaults a warrant officer, noncommissioned officer, or petty officer, while that officer is in the execution of his office; 

(2) willfully disobeys the lawful order of a warrant officer, noncommissioned officer, or petty officer; or 

(3)treats with contempt or is disrespectful in language or deportment toward a warrant officer, noncommissioned officer, or petty officer 

while that officer is in the execution of his office; 

shall be punished as a court-martial may direct. 

g 892. Art. 92. Fallure to obey order or regulatlon 

Any person subject to this chapter who- 

(1) violates or fails to obey any lawful general order or regulation; 

(2) having knowledge of any other lawful order issued by a member of the armed forces, which it is his duty to obey, fails to obey the 

order; or 

(3) is derelict in the performance of his duties; 

shall be punished as a court-martial may direct. 

g 893. Art. 93. Cruelty and maltreatment 

Any person subject to this chapter who is guilty of cruelty toward, or oppression or maltreatment of, any person subject to his orders shall be 

punished as a court-martial may direct. 

g 894. Art. 94. Mutlny or seditlon 

(a) Any person subject to this chapter who- 

(1)with intent to usurp or ovemde lawful military authority, refuses, in concert with any other person, to obey orders or otherwise do his 

duty or creates any violence or disturbance is guilty of mutiny; 
Q 894. Art. 94(a)(2) APPENDIX 2 

(2) with intent to cause the overthrow or destruction of lawful civil authority, creates, in concert with any other person, revolt, violence, 

or other disturbance against that authority is guilty of sedition; 

(3) fails to do his utmost to prevent and suppress a mutiny or sedition being committed in his presence, or fails to take all reasonable 

means to inform his superior commissioned officer or commanding officer of a mutiny or sedition which he knows or has reason to believe is 

taking place, is guilty of a failure to suppress or report a mutiny or sedition. 

(b) A person who is found guilty of attempted mutiny, mutiny, sedition, or failure to suppress or report a mutiny or sedition shall be punished 

by death or such other punishment as a court-martial may direct. 

Q 895. Art. 95. Resistance, breach of arrest, and escape 

Any person subject to this chapter who resists apprehension or breaks arrest or who escapes from custody or confinement shall be punished 

as a court-martial may direct. 

§ 896. Art. 96. Releasing prisoner without proper authority 

Any person subject to this chapter who, without proper authority, releases any prisoner committed to his charge, or who through neglect or 

design suffers any such prisoner to escape, shall be punished as a court-martial may direct, whether or not the prisoner was committed in strict 

compliance with law. 

Q 897. Art. 97. Unlawful detention 

Any person subject to this chapter who, except as provided by law, apprehends, arrests, or confines any person shall be punished as a courtmartial may direct. 

Q 898. Art. 98. Noncompliance with procedural rules 

Any person subject to this chapter whc- 

(1) is responsible for unnecessary delay in the disposition of any case of a person accused of an offense under this chapter; or 

(2)knowingly and intentionally fails to enforce or comply with any provision of this chapter regulating the proceedings before, during, 

or after trial of an accused; 

shall be punished as a court-martial may direct. 

Q 899. Art. 99. Misbehavior before the enemy 

Any person subject to this chapter who before or in the presence of the enemy- 

(1) runs away; 

(2) shamefully abandons, surrenders, or delivers up any command, unit, place, or military property which it is his duty to defend; 

(3) through disobedience, neglect, or intentional misconduct endangers the safety of any such command, unit, place, or military 

property; 

(4) casts away his arms or ammunition; 

(5) is guilty of cowardly conduct; 

(6) quits his place of duty to plunder or pillage; 

(7) causes false alanns in any command, unit, or place under control of the armed forces; 

(8) willfully fails to do his utmost to encounter, engage, capture, or destroy any enemy troops, combatants, vessels, aircraft, or any 

other thing, which it is his duty so to encounter, engage, capture, or destroy; or 

(9) does not afford all practicable relief and assistance to any troops, combatants, vessels, or aircraft of the anned forces belonging to 

the United States or their allies when engaged in battle; 

shall be punished by death or such other punishment as a court-martial may direct. 

900. Art. 100. Subordinate compelling surrender 

Any person subject to this chapter who compels or attempts to compel the commander of any place, vessel, aircraft, or other military 

property, or of any body of members of the armed forces, to give it up to an enemy or to abandon it, or who strikes the colors or flag to any enemy 

without proper authority, shall be punished by death or such other punishment as a court-martial may direct. 
UNIFORM CODE OF MILITARY JUSTICE Q M8. Art. 108(3) 

g 901. Art. 101. Improper use of countersign 

Any person subject to this chapter who in time of war discloses the parole or countersign to any person not entitled to receive it or who gives 

to another who is entitled to receive and use the parole or countersign a different parole or countersign from that which, to his knowledge, he was 

authorized and required to give, shall be punished by death or such other punishment as a court-martial may direct. 

5 902. Art. 102. Forcing a safeguard 

Any person subject to this chapter who forces a safeguard shall suffer death or such other punishment as a court-martial may direct. 

5 903. Art. 103. Captured or abandoned property 

(a)All persons subject to this chapter shall secure all public property taken from the enemy for the service of the United States, and shall give 

notice and turn over to the proper authority without delay all captured or abandoned property in their possession, custody, or control. 

(b) Any person subject to this chapter who- 

(1) fails to carry out the duties prescribed in subsection (a); 

(2) buys, sells, trades, or in any way deals in or disposes of captured or abandoned property, whereby he receives or expects any profit, 

benefit, or advantage to himself or another directly or indirectly connected with himself; or 

(3) engages in looting or pillaging; 

shall be punished as a court-martial may direct. 

g 904. Art. 104. Aldlng the enemy 

Any person who- 

(1) aids, or attempts to aid, the enemy with arms, ammunition, supplies, money, or other things; or 

(2) without proper authority, knowingly harbors or protects or gives intelligence to or communicates or corresponds with or holds any 

intercourse with the enemy, either directly or indirectly; 

shall suffer death or such other punishment as a court-martial or military commission may direct. 

5 905. Art. 105. Mlsconduct as prisoner 

Any person subject to this chapter who, while in the hands of the enemy in time of war- 

(1) for the purpose of securing favorable treatment by his captors acts without proper authority in a manner contrary to law, custom, or 

regulation, to the detriment of others of whatever nationality held by the enemy as civilian or military prisoners; or 

(2) while in a position of authority over such persons maltreat them without justifiable cause; 

shall be punished as a court-martial may direct. 

5 906. Art. 106. Spies 

Any person who in time of war is found lurking as a spy or acting as a spy in or about any place, vessel, or aircraft, within the control or 

jurisdiction of any of the armed forces, or in or about any shipyard, any manufacturing or industrial plant, or any other place of institution engaged 

in work in aid of the prosecution of the war by the United States, or elsewhere, shall be tried by a general court-martial or by a military commission 

and on conviction shall be punished by death. 

5 907. Art. 107. False official statements 

Any person subject to this chapter who, with intent to deceive, signs any false record, return,'regulation, order, or other official document, 

knowing it to be false, or makes any other false official statement knowing it to be false, shall be punished as a court-martial may direct. 

5 908. Art. 108. Milltary property of Unlted States-Loss, damage, destructlon, or wrongful dlsposltlon 

Any person subject to this chapter who, without proper authority- 

(1) sells or otherwise disposes of; 

(2) willfully or through neglect damages, destroys, or loses; or 

(3) willfully or through neglect suffers to be lost, damaged, destroyed, sold, or wrongfully disposed of; 

any military property of the United States, shall be punished as a court-martial may direct. 
Q 909. Art. 109 APPENDIX 2 

Q 909. Art. 109. Property other than milltary property of United States--Waste, spoilage, or destructlon 

Any person subject to this chapter who willfully or recklessly wastes, spoils, or otherwise willfully and wrongfully destroys or damages any 

property other than military property of the United States shall be punished as a court-martial may direct. 

Q 910. Art. 110. Improper hazarding of vessel 

(a) Any person subject to this chapter who willfully and wrongfully hazards or suffers to be hazarded any vessel of the armed forces shall 

suffer death or such punishment as a court-martial may direct. 

(b)Any person subject to this chapter who negligently hazards or suffers to be hazarded any vessel of the armed forces shall be punished as a 

court-martial may direc:. 

Q 91 1. Art. 11 1. Drunken or reckless drlving 

Any person subject to this chapter who operates any vehicle while drunk,or in a reckless or wanton manner, shall be punished as a courtmartial may direct. 

Q 912. Art. 112. Drunk on duty 

Any person subject to this chapter other than a sentinel or look-out, who is found drunk on duty, shall be punished as a court-martial may 

direct. 

Q 912a. Art. 112a. Wrongful use, possession, etc., of controlled substances 

(a) Any person subject to this chapter who wrongfully uses, possesses, manufactures, distributes, imports into the customs territory of the 

United States, exports from the United States, or introduces into an installation, vessel, vehicle, or aircraft used by or under the control of the 

armed forces a substance described in subsection (b) shall be punished as a court-martial may direct. 

(b) The substances refemed to in subsection (a) are the following: 

(1) Opium, heroin, cocaine, amphetamine, lysergic acid diethylamide, methamphetamine, phencyclidine, barbituric acid, and 

marijuana and any compound or derivative of any such substance. 

(2) Any substance not specified in clause (1) that is listed on a schedule of conaolled substances prescribed by the President for the 

purposes of this article. 

(3) Any other substance not specified in clause (1) or contained on a list prescribed by the President under clause (2) that is listed in 

schedules I through V of section 202 of the Controlled Substances Act (21 U.S.C.812). 

Q 913. Art. 113. Misbehavior of sentlnel 

Any sentinel or look-out who is found drunk or sleeping upon his post, or leaves it before he is regularly relieved, shall be punished, if the 

offense is committed in time of war, by death or such other punishment as a court-martial may direct, but if the offense is committed at any other 

time, by such punishment other than death as a court-martial may direct. 

Q 914. Art. 114. Dueling 

Any person subject to this chapter who fights or promotes, or is concerned in or connives at fighting a duel, or who, having knowledge of a 

challenge sent or about to be sent, fails to report the fact promptly to the proper authority, shall be punished as a court-martial may direct. 

5 915. Art. 115. Mallngerlng 

Any person subject to this chapter who for the purpose of avoiding work, duty, or service- 

(1) feigns illness, physical disablement, mental lapse or derangement; or 

(2) intentionally inflicts self-injury; 

shall be punished as a court-martial may direct. 

Q 916. Art. 116. Rlot or breach of peace 

Any person subject to this chapter who causes or participates in any riot or breach of the peace shall be punished as a court-martial may direct. 

Q 917. Art. 117. Provoking speeches or gestures 

Any person subject to this chapter who uses provoking or reproachful words or gestures towards any other person subject to this chapter shall 

be punished as a court-martial may direct. 

5 91 8. Art. 1 18. Murder 

Any person subject to this chapter who, without justification or excuse, unlawfully kills a human being, when he- 
UNIFORM CODE OF MILITARY JUSTICE 5 923a. Art. 123a(2) 

(1) has a premeditated design to kill; 

(2) intends to kill or inflict great bodily harm; 

(3) is engaged in an act which is inherently dangerous to others and evinces a wanton disregard of human life; or 

(4) is engaged in the perpetration or attempted perpetration of burglary, sodomy, rape, robbery, or aggravated arson; 

is guilty of murder, and shall suffer such punishment as a court-martial may direct, except that if found guilty under clause (1) or (4), he shall suffer 

death or imprisonment for life as a court-martial may direct. 

5 919. Art. 119. Manslaughter 

(a) Any person subject to this chapter who, with an intent to kill or inflict great bodily harm, unlawfully kills a human being in the heat of 

sudden passion caused by adequate provocation is guilty of voluntary manslaughter and shall be punished as a court-martial may direct. 

(b) Any person subject to this chapter who, without an intent to kill or inflict great bodily harm, unlawfully kills a human being- 

(1) by culpable negligence; or 

(2) while perpetrating or attempting to perpetrate an offense, other than those named in clause (4) of section 918 of this title (article 1 18), 

directly affecting the person; 

is guilty of involuntary manslaughter and shall be punished as a court-martial may direct. 

5 920. Art. 120. Rape and carnal knowledge 

(a) Any person subject to this chapter who commits an act of sexual intercourse with a female not his wife, by force and without her consent, 

is guilty of rape and shall be punished by death or such other punishment as a court-martial may direct. 

(b) Any person subject to this chapter who, under circumstances not amounting to rape, commits an act of sexual intercourse with a female 

not his wife who has not attained the age of sixteen years, is guilty of carnal knowledge and shall be punished as a court-martial may direct. 

(c) Penetration, however slight, is sufficient to complete either of these offenses. 

9 921. Art. 121. Larceny and wrongful appropriation 

(a) Any person subject to this chapter who wrongfully takes, obtains, or withholds, by any means, from the possession of the owner or of any 

other person any money, personal property, or article of value of any kind- 

(1) with intent permanently to deprive or defraud another person of the use and benefit of property or to appropriate it to his own use or 

the use of any person other than the owner, steals that property and is guilty of larceny; or 

(2) with intent temporarily to deprive or defraud another person of the use and benefit of property or to appropriate it to his own use or the 

use of any person other than the owner, is guilty of wrongful appropriation. 

(b) Any person found guilty of larceny or wrongful appropriation shall be punished as a court-martial may direct. 

5 922. Art. 122. Robbery 

Any person subject to this chapter who with intent to steal takes anything of value from the person or in the presence of another, against his 

will, by means of force or violence or fear of immediate or future injury to his person or property or to the person or property of a relative or 

member of his family or of anyone in his company at the time of the robbery, is guilty of robbery and shall be punished as a court-martial may 

direct. 

§ 923. Art. 123. Forgery 

Any person subject to this chapter who, with intent to defraud- 

(1) falsely makes or alters any signature, to, or any part of, any writing which would, if genuine, apparently impose a legal liability on 

another or change his legal right or liability to his prejudice; or 

(2) utters, offers, issues, or transfers such a writing, known by him to be so made or altered; 

is guilty of forgery and shall be punished as a court-martial may direct. 

5 923a. Art. 123a. Maklng, drawing, or utterlng check, draft, or order wlthout sufficient funds 

Any person subject to this chapter who- 

(1) for the procurement of any article or thing of value, with intent to defraud; or 

(2) for the payment of any past due obligation, or for any other purpose, with intent to deceive; 

makes, draws, utters, or delivers any check, draft, or order for the payment of money upon any bank or other depository, knowing at the time that 

the maker or drawer has not or will not have sufficient funds in, or credit with, the bank or other depository for the payment of that check, draft, or 
8 924. Art. 124(1) APPENDIX 2 

order in full upon its presentment, shall be punished as a court-martial may direct. 'The making, drawing, uttering, or delivering by a maker or 

drawer of a check, draft or order, payment of which is refused by the drawee because of insufficient funds of the maker or drawer in the drawee's 

possession or control, is prima facie evidence of his intent to defraud or deceive and of his knowledge of insufficient funds in, or credit with, that 

bank or other depository, unless the maker or drawer pays the holder the amount due within five days after receiving notice, orally or in writing, 

that the check, draft, or order was not paid on presentment. In this section, the word "credit" means an arrangement or understanding, express or 

implied, with the bank or other depository for the payment of that check, draft, or order. 

Q 924. Art. 124. Malmlng 

Any person subject to this chapter who, with intent to injure, disfigure, or disable, inflicts upon the person of another an injury which- 

(1) seriously disfigures his person by a mutilation thereof; 

(2) destroys or disables any member or organ of his body; or 

(3) seriously diminishes his physical vigor by the injury of any member or organ; 

is guilty of maiming and shall be punished as a court-martial may direct. 

0 925. Art. 125. Sodomy 

(a) Any person subject to this chapter who engages in unnatural carnal copulation with another person of the same or opposite sex or with an 

animal is guilty of sodomy. Penetration, however slight, is sufficient to complete the offense. 

(b) Any person found guilty of sodomy shall be punished as a court-martial may direct. 

1 926. Art. 126. Arson 

(a) Any person subject to this chapter who willfully and maliciously burns or sets on fire an inhabited dwelling, or any other structure, 

movable or immovable, wherein to the knowledge of the offender there is at the time a human being, is guilty of aggravated arson and shall be 

punished as court-martial may direct. 

@) Any person subject to this chapter who willfully and maliciously burns or sets fire to the property of another, except as provided in 

subsection (a), is guilty of simple arson and shall be punished as a court-martial may direct. 

Q 927. Art. 127. Extortion 

Any person subject to this chapter who communicates threats to another person with the intention thereby to obtain anything of value or any 

acquittance, advantage, or immunity is guilty of extortion and shall be punished as a court-martial may direct. 

Q 928. Art. 128. Assault 

(a) Any person subject to this chapter who attempts or offers with unlawful fone or violence to do bodily harm to another person, whether or 

not the attempt or offer is consummated, is guilty of assault and shall be punished as a court-martial may direct. 

(b) Any person subject to this chapter who- 

(1) commits an assault with a dangerous weapon or other means or force likely to produce death or grievous bodily harm; or 

(2) commits an assault and intentionally inflicts grievous bodily harm with or without a weapon; 

is guilty of aggravated assault and shall be punished as a court-martial may direct. 

g 929. Art. 129. Burglary 

Any person subject to this chapter who, with intent to commit an offense punishable under section 918-928 of this title (article 118-128), 

breaks and enters, in the nighttime, the dwelling house of another, is guilty of burglary and shall be punished as a court-martial may direct. 

Q 930. Art. 130. Hous%breaklng 

Any person subject to this chapter who unlawfully enters the building or structure of another with intent to commit a criminal offense therein 

is guilty of housebreaking and shall be punished as a court-martial may direct. 

5 931. Art. 131. Perjury 

Any person subject to this chapter who in a judicial proceeding or in a course of justice willfully and comptly- 

(1) upon a lawful oath or in any form allowed by law to be substituted for an oath, gives any false testimony material to the issue or 

matter of inquiry; or 

(2) in any declaration, certificate, verification, or statement under penalty or perjury as permitted under section 1746of title 28, United 

States Code, subscribes any false statement material to the issue or matter of inquiry; 

is guilty of pe jury and shall be punished as a court-martial may direct. 
UNIFORM CODE OF MILITARY JUSTICE § 935. Art. 135(g) 

9 932. Art. 132. Frauds against the United States 

Any person subject to this chapter- 

(1) who, knowing it to be false or fraudulent- 

(A) makes any claim against the United States or any officer thereof; or 

(B) presents to any person in the civil or military service thereof, for approval or payment, any claim against the United States or 

any officer thereof; 

(2) who, for the purpose of obtaining the approval, allowance, or payment of any claim against the United States or any officer thereof- 

(A) makes or uses any writing or other paper knowing it to contain any false or fraudulent statements; 

(B) makes any oath to any fact or to any writing or other paper knowing the oath to be false; or 

(C) forges or counterfeits any signature upon any writing or other paper, or uses any such signature knowing it to be forged or 

counterfeited; 

(3) who, having charge, possession, custody, or control of any money, or other property or the United States, furnished or intended for 

the armed forces thereof, knowingly delivers to any person having authority to receive it, any amount thereof less than that for which he receives a 

certificate or receipt; or 

(4) who, being authorized to make or deliver any paper certifying the receipt of any property of the United States furnished or intended 

for the armed forces thereof, makes or delivers to any person such writing without having full knowledge of the truth of the statements therein 

contained and with intent to defraud the United States; 

shall, upon conviction, be punished as a court-martial may diect. 

9 933. Art. 133. Conduct unbecoming an officer and a gentleman 

Any commissioned officer, cadet, or midshipman who is convicted of conduct unbecoming an officer and a gentleman shall be punished as a 

court-martial may diect. 

5 934. Art. 134. General article 

Though not specifically mentioned in this chapter, all disorders and neglects to the prejudice of good order and discipline in the armed forces, 

all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which persons subject to this chapter may 

be guilty, shall be taken cognizance of by a general, special or summary court-martial, according to the nature and degree of the offense, and shall 

be punished at the discretion of that court. 

Subchapter XI. MISCELLANEOUS PROVISIONS 

Sec. Art. 

935. 135. Courts of inquiry. 

936. 136. Authority to administer oaths and to act as notary. 

937. 137. Articles to be explained. 

938. 138. Complaints of wrongs. 

939. 139. Redress of injuries to property. 

940. 140. Delegation by the Resident. 

9 935. Art. 135. Courts of Inquiry 

(a) Courts of inquiry to investigate any matter may be convened by any person authorized to convene a general court-martial or by any other 

person designated by the Secretary concerned for that purpose, whether or not the persons involved have requested such an inquiry. 

(b) A court of inquiry consists of three or more commissioned officers. For each court of inquiry the convening authority shall also appoint 

counsel for the court. 

(c)Any person subject to this chapter whose conduct is subject to inquiry shall be designated as a party. Any person subject to this chapter or 

employed by the Department of Defense who has a direct interest in the subject of inquiry has the right to be designated as aparty upon request to 

the court. Any person designated as a party shall be given due notice and has the right to be present, to be represented by counsel, to cross-examine 

witnesses, and to introduce evidence. 

(d) Members of a court of inquiry may be challenged by a party, but only for cause stated to the court. 

(e) The members, counsel, the reporter, and interpreters of courts of inquiry shall take an oath to faithfully perform their duties. 

(f) Witnesses may be summoned to appear and testify and be examined before courts of inquiry, as provided for courts-martial. 

(g) Courts of inquiry shall make findings of fact but may not express opinions or make recommendations unless required to do so by the 

convening authority. 
§ 936. Art. 136(a) APPENDIX 2 

(h) Each coutt of inquiry shall keep arecord of its proceedings, which shall be authenticated by the signatures of the president and counsel for 

the court and forwarded to the convening authority. If the record cannot be authenticated by the president, it shall be signed by a member in lieu of 

the president. If the record cannot be authenticated by the counsel for the court, it shall be signed by a member in lieu of the counsel. 

Q 936. Art. 136. Authorlty to administer oaths and to act as notary 

(a) The following persons on active duty may administer oaths for the purposes of military administration, including military justice, and 

have the general powers of a notary public and of aconsul of the United States, in the performance of all notarial acts to be executed by members of 

any of the armed forces, wherever they may be, by persons serving with, employed by, or accompanying the armed forces outside the United 

States and outside the Canal Zone, Puerto Rico, Guam, and the Virgin Islands, and by other persons subject to this chapter outside of the United 

States: 

(1) All judge advocates. 

(2) All summary courts-martial. 

(3) All adjutants, assistant adjutants, acting adjutants, and personnel adjutants. 

(4) All commanding officers of the Navy, Marine Corps, and Coast Guard. 

(5) All staff judge advocates and legal officers, and acting or assistant staff judge advocates and legal officers. 

(6) All other persons designated by regulations of the armed forces or by statute. 

(b) The following persons on active duty may administer oaths necessary in the performance of their duties: 

(1) The president, military judge, trial counsel, and assistant trial counsel for all general and special courts-martial. 

(2) The president and the counsel for the court of any court of inquiry. 

(3) All officers designated to take a deposition. 

(4) All persons detailed to conduct an investigation. 

(5) All recruiting officers. 

(6) All other persons designated by regulations of the armed forces or by statute. 

(c) No fee may be paid to or received by any person for the performance of any notarial act herein authorized. 

(d) The signature without seal of any such person acting as notary, together with the title of his office, is prima facie evidence of his authority. 

5 937. Art. 137. Artlcles to be explalned 

Sections 802,803,807-815,825,827,831,837,838,855,877-934, and937-939 (articles2,3,7-15,25,27,31,37,38,55,77-134 and 

137-139) of this chapter shall be carefully explained to each enlisted member at the time of his entrance on active duty, or within six days 

thereafter. They shall be explained again after he has completed six months of active duty, and again at the time when he reenlists. A complete text 

of the Uniform Code of Military Justice and of the regulations prescribed by the President thereunder shall be made available to any person on 

active duty upon his request, for his personal examination. 

Q 938. Art. 138. Complaints of wrongs 

Any member of the armed forces who believes himself wronged by his commanding officer, and who, upon due application to that 

commanding officer, is refused redress, may complain to any superior commissioned officer, who shall forward the complaint to the officer 

exercising general court-martial jurisdiction over the officer against whom it is made. The officer exercising general court-martial jurisdiction 

shall examine into the complaint and take proper measures for redressing the wrong complained of; and he shall, as soon as possible, send to the 

Secretary concemed a true statement of that complaint, with the proceedings had thereon. 

Q 939. Art. 139. Redress of lnjuries to property 

(a) Whenever complaint is made to any commandiig officer that willful damage has been done to the property of any person or that his 

property has been wrongfully taken by members of the armed forces, he may, under such regulations as the Secretary concerned may prescribe, 

convene a board to investigate the complaint. The board shall consist of from one to three commissioned officers and, for the purpose of that 

investigation, it has power to summon witnesses and examine them upon oath, to receive depositions or other documentary evidence, and to 

assess the damages sustained against the responsible parties. The assessment of damages made by the board is subject to the approval of the 

commanding officer, and in the amount approved by him shall be charged against the pay of the offenders. The order of the commanding officer 

directing charges herein authorized is conclusive on any disbursing officer for the payment by him to the injured parties of the damages as assessed 

and approved. 

(b)If the offenders cannot be ascertained, but the organization or detachment to which they belong is known, charges totaling the amount of 

damages assessed and approved may be made in such proportion as may be considered just upon the individual members thereof who are shown to 

have been present at the scene at the time the damages complained of were inflicted, as determined by the approved findings of the board. 

Q 940. Art. 140. Deiegatlon by the President 

The President may delegate any authority vested in him under this chapter, and provide for the subdelegation of any such authority. 
MEMORANDUM OF UNDERSTANDING BETWEEN THE DEPARTMENTS OF JUSTICE AND 


DEFENSE RELATING TO THE INVESTIGATION AND PROSECUTION OF CRIMES OVER WHICH 


THE TWO DEPARTMENTS HAVE CONCURRENT JURISDICTION 


Whereas,certain crimes committed by individuals subject to the Uniform Code of Military Justice may be prosecuted by military tribunals 

under that Code or by civilian authorities in the Federal Courts; and 

Whereas,it is recognized that although the administration and discipline of the armed services require that certain types of crimes committed 

by their personnel be investigated by those services and prosecuted before military tribunals other types of crimes committed by military 

personnel should be investigated by civil authorities and prosecuted before civil tribunals; and 

Whereas,it is recognized that it is not feasible to impose inflexible rules to determine the respective responsibility of the civilian and military 

authorities as to each crime over which they may have concurrent jurisdiction and that informal arrangements and agreements may be necessary 

with respect to specific crimes or investigations; and 

Whereas,agreement between the Department of Justice and the Department of Defense as to the general areas in which they will investigate 

and prosecute crimes to which both civil and military jurisdiction attach will, nevertheless, tend to make the investigation and prosecution of 

crimes more expeditious and efficient and give appropriate effect to the policies of civil government and the requirements of the armed forces: 

It is hereby agreed and understood between the Department of Justice and the Department of Defense as follows: 

1. Crimes committed on military installations. Except as hereinafter indicated, all crimes committed on a military installation by 

individuals subject to the Uniform Code of Military Justice shall be investigated and prosecuted by the military department concerned if such 

department makes a determination that there is a reasonable likelihood that only individuals subject to the Uniform Code of Military Justice are 

involved in such crime as principals or accessories, and, except in extraordinary cases, that there is no victim other than persons who are subject to 

the Uniform Code of Military Justice or who are bona fide dependents or members of a household of military or civilian personnel residing on the 

installation. Unless such a determination is made, the military department concerned shall promptly advise the Federal Bureau of Investigation of 

any crime committed on a military installation if such crime is within the investigative authority of the FBI. The FBI shall investigate any serious 

crime of which is has been so advised for the purpose of prosecution in the civil courts unless the Department of Justice determines that 

investigation and prosecution may be conducted more efficiently and expeditiously by the military department concerned. Even if the 

determination provided for in the first sentence of this paragraph is made by the military department concerned, it shall promptly advise the FBI of 

any crime committed on a military installation in which there is a victim who is not subject to the Uniform Code of Military Justice or a bomfide 

dependent or member of the household of military or civilian personnel residing on the installation and that such department is investigating the 

crime because it has been determined to be extraordinary. The military department concerned shall promptly advise the Federal Bureau of 

Investigation whenever the crime, except in minor offenses, involves fraud against the govenunent, misappropriation, robbery, or theft of 

government property or funds, or is of a similar nature. All such crimes shall be investigated by the military department concerned unless it 

receives prompt advice that the Department of Justice has determined that the crime should be investigated by the FBI and that the FBI will 

undertake the investigation for the purpose of prosecution in the civil courts. 

2. Crimes committed outside of military installations. Exgept as hereinafter indicated, all crimes committed outside of military 

installations, which fall within the investigative jurisdiction of the FBI and in which there is involved as a suspect an individual subject to the 

Uniform Code of Military Justice, shall be investigated by the FBI for the purpose of prosecution in civil courts, unless the Department of Justice 

determines that investigation and prosecution may be conducted more efficiently and expeditiously by other authorities. All such crimes which 

come first to the attention of military authorities shall be referred promptly by them to the FBI, unless relieved of this requirement by the FBI as to 

particular types or classes of crimes. However, whenever military personnel are engaged in scheduled military activities outside of military 

installations such as organized maneuvers or organized movement, the provisions of paragraph 1 above shall apply, unless persons not subject to 

the Uniform Code of Military Justice are involved as principals, accessories or victims. 

If, however, there is involved as a suspect or as an accused in any crime committed outside of a military installation and falling within the 

investigative authority of the FBI an individual who is subject to the Uniform Code of Military Justice and if the military authorities believe that 

the crime involves special factors relating to the administration and discipline of the armed forces which would justify investigation by them for 

the purpose of prosecution before a military tribunal, they shall promptly advise the FBI of the crime and indicate their views on the matter. 

Investigation of such a crime may be undertaken by the military authorities if the Department of Justice agrees. 

3. 'Ikansfer of investigative authority. Any investigative body which has initiated an investigation pursuant to paragraphs 1 and 2 hereof 

shall have exclusive investigative authority and may proceed therewith to prosecution. If, however, any investigative body comes to the view that 

effectuation of those paragraphs requires the transfer of investigative authority over a crime, investigation of which has already been initiated by 

that or by any investigative body, it shall promptly advise the other interested investigative body of its views. By agreement between the 

Departments of Justice and Defense, investigative authority may then be transferred. 
Para. 4 APPENDIX 3 

4. Administrative action. Exercise of exclusive investigative authority by the FBI pursuant to this agreement shall not preclude the military 

authorities from making inquiries for the purpose of administrative action related to the crime being investigated. The FBI will make the results of 

its investigations available to the military authorities for use in connection with such action. 

Whenever possible, decisions with respect to the application in particular cases of the provisions of this Memorandum of Understanding will 

be made at the local level, that is, between the Special Agent in Charge of the local office of the Federal Bureau of Investigation and the local 

military commander. 

5. Surrenderof suspects. To the extend of the legal authority conferred upon them, the Department of Justice and the military authorities 

will each deliver to the other promptly suspects and accused individuals if authority to investigate the crimes in which such accused individuals 

and suspects we involved is lodged in the other by paragraphs 1 and 2 hereof. 

Nothing in this memorandum shall prevent a military department from prompt arrest and detention of any person subject to the Uniform 

Code of Military Justice whenever there is knowledge or reasonable basis to believe that such a person has committed an offense in violation of 

such Code and detaining such person until he is delivered to the Federal Bureau of Investigation is such action is required pursuant to this 

memorandum. 

6. Exception. This agreement shall not affect investigative authority now fixed by the Delimitations Agreement between the FBI, Ofice of 

Naval Intelligence, Intelligence Division of the Army and the Office of Special Investigations, Inspector General, United States Air Force. 

APPROVED: 

Is1 Is1 

HERBERT BROWNELL, JR. CHARLES E. WnSON 

Attorney General Secretary of Defense 

Date: Date: July 19, 1955 

I 
APPENDIX 4 


CHARGE SHEET 

I. PERSONAL DATA 

. NAME OF ACCUSED (Last. Firat. MI) 

James, Reiben J. 

2. SSN 

111-11-1111 

3. GRADE OR RANK 

PFC 4. PAY GRADE 

E-3 

1. UNIT OR ORGANIZATION 6. CURRENT SERVICE 

a. INITIAL DATE b. TERM 

Co A, 1st Battalion, 61st Inf Bde, Fort Blank, MO 1 April 1983 3 years 

'. PAY PER MONTH a. NATURE OF RESTRAINTOF ACCUSED 9. DATEIS) IMPOSE0 

a. BASIC b. SEA/FOREIGN DUTY c. TOTAL 

$500 None $500 Restriction 1 August 1984 

II. CHARGES AND SPECIFICATIONS 

0. CHARGE: 1 VIOLATION OF THE UCMJ, ARTICLE 86 

SPECIFICATION: In that Private Firt Class Reuben J. James, U.S. Army, Company A, 61st 

Battalion, 1st Infantry Brigade, Fort Blank, Missouri, on active duty, did, on or about 

15 July 1984, without authority, absent himself from his unit, to wit: Company A, 1st 

Battalion, 61st Infantry Brigade, located at Fort Blank, Missouri, and did remain so absent until on or about 30 July 1984. 

Charge 11: Violation of the UCMJ, Article 112a 

Specification: In that Private First Class Reuben J. James, U.S. Army, Company A, 1st 

Battalion, 1st Infantry Brigade, Fort Blank, Missouri, on active duty, did at Fort Blank, 

Missouri, on or about 12 July 1984, wrongfully possess 10 grams of marijuana. 

Ill. PREFERRAL 

la. NAME OF ACCUSER (Last. First. . MI1. 

Richards, Jonathan E. 

Ib. GRADE 1 captain Ic. ORGANIZATION OF ACCUSER ICO A, 1st Bn, 61st Inf Bde 

, SIGNATURE OF ACCUSER e. DATE 

\\%A 

AFFIDAVIT: Before me, the ndersigned, authorized y law to administer aths in cases of this character, personally appeared the 

above named accum this _l$i day of , 18 A,and signed the foregoing ch- and specifications 

under oath that he* is a person subject to the iform Code of Military Justice and that he* either has personal knowlrdge of 

or has investigated the matters set forth therein and that the same are true to the best of his* knowledge and belief. 

Will M. Wilson 61st Bn, 1st Inf Bde 

Typed Name of Officer Orsanization of Officer 

Captain Adjutant 

Grade Official Capaeity to Adminuter Oath 

(See R.C.M.3Oifbl-murt be commfsrioned officer) 

Signature 

458 EDITION OF OCT 69 IS OBSOLETE. D84 AUG 
APPENDIX 4 

On 2 August , 19 %, the accused was informed of the charges against him* and of the nameCs) of 

the accuser@) known to me (See R.C.M. 308 (a)). (See R.C.M. 308 if notification cannot be made.) I

Jonathan E. Richards 	 Co A, 1st Rn, 61st Inf Bde 

Typed Name of Immediate Commander 	 Organization of Immediate Commander 

Captain I Grade I 

Signature 

IV. RECEIPT BY SUMMARY COURT.MARTIAL CONVENING AUTHORITY 

13. 

1100 	 2 August The sworn charges were received at hours, 	 1984at 1st Battalion, 1st Inf Brigade 

Derignation of Command or 

' Officer Exercising Summon, Court-Martini JurLdiction (See R.C.M. 403) 

FOR THEl COMMANDFR 


Will M. Wilson 	 Adjutant 

Typed Name of Officer 	 Official Capacity Of Officer Signing 

Captain 

Grade 

Signature 

V. REFERRAL;SERVlCE OF CHARGES 

14a. DESIGNATION OF COMMAND OF CONVENING AUTHORITY b. PLACE c. DATE 

1st Infantry Brigade Fort Blank, Missouri 7 August 1984 

Referred for trial to the court-martial convened by CMCO number 12 dated 

, 1 August 19 &, subject to the following instructions:' None 

aw 
 Command or Order fl 

Carl E. Nevins 	 Commander, 1st Inf Brigade 

Typed Name of Officer 	 Official Capacitr of Officer Signing 

Colonel 

Grade 

CanP f.r\Sb+ 

Signature 

15. 

8 August On , 19 --,8 4 Ikcaused to bgserved a copy hereof on@aL£+the above named accused. 

Hamilton Burger 	 Captain, JAGC 

Typed Name of Trial Counsel 	 Grade or Rank of Trial Counsel 

FOOTNOTES: 	 I -When an appropriate commander signs personally, inapplicable words are sGicken. 

2 -See R.C.M. 601(e) concerning instructions. If none. so state. 

I 
APPENDIX 5 

INVESTIGATING OFFICER'S REPORT 


(Of Chorges UnderArticle 32, UCMJandR.C.M. 405, Manualfor Courts-Martial) 


la. FROM: (Name ofInvestl#aifng OflTcer- b. GRADE c. ORGANIZATION . DATE OF REPOR' 

bst. Ffnt. MI) 

Adamson, Adam A. /Major 1 lst in, 6lst lnf Bde 	 1 Sep 1984

2a. 	TO: (Name of Officer who directed the b. TITLE c. ORGANIZATION 

Investlention -Last, First. MI) I 

Harrison, Harry A. Commanding Officer 1st Bn, 61st Inf, Fort Cutts, Texas 

30. NAME OF ACCUSED (Last. First. MI) b. GRADE c. SSN d. ORGANIZATION 8. DATE OF CHARGE 

Benson, Ben B. ~PVT 1111-11-1111 ICOA, 1st Bn, 61st Inf 1 24 Aug 1934 

(Check appropriate answer) I YES 1 NO 

4. 	 IN ACCORDANCE WITH ARTICLE 32. UCMJ. AND R.C.M. 405, MANUAL FOR COURTS-MARTIAL, 

IHAVE INVESTIGATED THE CHARGES APPENDED HERETO (Exhlblt 1) x 5. 	 THE ACCUSED WAS REPRES~NTED BY COUNSEL (If not, Me9 below) 1x1 6. COUNSEL WHO REPRESENTED THE ACCUSED WAS QUALIFIED UNDER R.C.M. 405(d)(2), 502(d) 1x1 7s. NAME OF DEFENSE COUNSEL (kt. First. MI) Ib. GRADE 1~s.NAME OF ASSISTANT DEFENSE COUNSEL (1f . . 	any) .. Ib. GRADE

Carlson, Carl C. 	 1 CPT 

c. 	 DRGANIZATION (If appropriate) c. ORGANIZATION (If appropriate) 

TDS w/duty 

Fort cutti, Texas 

d. ADDRESS (If appropriate) 	 d. ADDRESS (If appropriate) 

I 

9. (To be signed by accused if accused waives counsel. If accused doer not rign. Inuertigating officer will explain In detail in Item 21.) 

a. PLACE 	 b. DATE I 

I 

I HAVE BEEN INFORMED OF MY RlGHT TO BE REPRESENTED IN THlS INVESTIGATION BY COUNSEL, INCLUDING MY RlGHT TO 

CIVILIAN OR MILITARY COUNSEL OF MY CHOICE IF REASONABLY AVAILABLE. I WAIVE MY RlGHT TO COUNSEL IN THlS INVESTIGATION. 

c. SIGNATURE OF ACCUSED 

10. AT THE BEGINNING OF THE INVESTIGATION IINFORMED THE ACCUSED OF: (Check appropr*rte answer) 	 YES NO 

a. 	 THE CHARGE(S) UNDER INVESTIGATION X b. 	 THE IDENTITY OF THE ACCUSER X c. 	 THE RlGHT AGAINST SELF-INCRIMINATION UNDER ARTICLE 31 X d. 	 THE PURPOSE OF THE INVESTIGATION X a. THE RIGHT TO BE PRESENT THROUGHOUT THE TAKING OF EVIDENCE v 

. THE WITNESSES AND OTHER EVIDENCE KNOWN TO ME WHICH IEXPECTED TO PRESENT X p. 	 THE RIGHT TO CROSS-EXAMINE WITNESSES x h. 	 THE RIGHT TO HAVE AVAILABLE WITNESSES AND EVIDENCE PRESENTED x I. 	 THE RIGHT TO PRESENT ANYTHING IN DEFENSE, EXTENUATION, OR MITIGATION x 

I. 	 THE RlGHT TO MAKE ASWORN OR UNSWORN STATEMENT, ORALLY OR IN WRITING X 110. 	THE ACCUSED AND ACCUSED'S COUNSEL WERE PRESENT THROUGHOUT THE PRESENTATION OF EVIDENCE (If the accued 

or counsel were absent during any part of the presentaifon of evidence, complete b below.) x b. STATE THE CIRCUMSTANCES AND DESCRIBE THE PROCEEDINGS CONDUCTED IN THE ABSENCE OF ACCUSED OR COUNSEL 

NOTE: If additional space k requid for any item, antar the additional material in Itam 21 or on a separate sheet. Identify such material with the proper 

numarial and, if approprim, Iatmd heading (Example: "7c".) Securely attach any additional shwo to the form and add a note in the appropriata item 

of the form: "'Smadditional sheet." 

EDITION OF OCT 69 IS OBSOLETE. 
APPENDIX 5 

. 

12a. THE FOLLOWING WITNESSES TESTIFIED UNDER OATH: (Check appropriate aruwer) 

NAME (Loat. Fimt, MI) 

Dodson, Dodd D. 

Evanson, Evan E. 

Fordson, Ford F. 

GRADE (If any) 

Captain 

Sergeant 

Sergeant 

b. EACH ITEM CONSIDERED, OR A COPY OR RECITAL OF THE SUBSTANCE OR NATURE THEREOF, IS ATTACHED 

14. THERE ARE GROUNDS TO BELIEVE THAT THE ACCUSED WAS NOT MENTALLY RESPONSIBLE FOR THE OFFENSE~I 

OR NOT COMPETENT TO PARTICIPATE IN THE DEFENSE. (See R.C.M. 909, 916(k).) 

15. THE DEFENSE DID REQUEST OBJECTIONS TO BE NOTED IN THIS REPORT (If Yes, specih in Item 21 below.) 

16. ALL ESSENTIAL WITNESSES WILL BE AVAILABLE IN THE EVENT OF TRIAL 

17. THE CHARGES AND SPECIFICATIONS ARE IN PROPER FORM 

18. REASONABLE GROUNDS EXIST TO BELIEVE THAT THE ACCUSED COMMITTED THE OFFENSE(S) ALLEGED 

.19. -1 AM NOT AWARE OF ANY GROUNDSWHICH WOULD DISQUALIFY ME FROM ACTING AS INVESTIGATING OFFICER. 

(See R.C.M. 406(d)(ll. 

x 

X 

X 

X 

X 

X 

x 

ORGANIZATION/ADDRESS (Whicheuer is oppro~riotel N O

Co A, 1st Bn, 61st Inf 

Co A, 1st Bn, 61st Inf 

400th MP CO. 

YES 

X 

X 

X 

20. I RECOMMEND: 

a. TRIAL BY SUMMARY b SPECIAL aGENERAL COURT-MARTIAL 

b. OTHER (Specify in Item 21 below) I 

21. REMARKS (Include. as neceuary, expldn for any dehyr in the inve8tigotion. and expianation for any "n0"aruwen above.)

Examples of other matters which may be discussed here are: 

1. Discussion of evidence, credibility of witnesses, and sufficiency of proof. 2. Recommendations to dismiss or change any specification. 

3. Statement of any anticipated offenses or of any anticipated difficulties in proving 

any specification on which trial is recommended. 

4. Any other matter which should be known to the convening authority or subsequent reviewing authorities. 

22e. TYPED NAME OF INVESTIGATING OFFICER 

Adam A. Adamson 

d. SIGNATURE OF INVESTIGATING OFFICER a. DATE 

Qc. Q.h&m. 

b. GRADE 

Major 

c. ORGANIZATION 

1st Bn, 61st Inf 
APPENDIX 6 

FORMS FOR ORDERS CONVENING COURTS-MARTIAL 

a. General and special court-martial convening orders 

(1) Convening orders. 

[Note 1. See R.C.M. 504(d)] 

(Date) 

(Designation of command of officer convening court-martial) 

[Pursuant to authority contained in (para. General Order No. ) Department of the 

,I9 (SECNAV ltr ser of 19 )a] (A) (general) (special) 

court-martial is hereby convened. It may try such persons as may properly be brought before it (,and shall meet at 

,unless otherwise directed). The court-martial will be constituted as follows: 

MEMBERS 

(Captain) (Colonel) 


(Commander) (Lieutenant Colonel) 


(Lieutenant Commander) (Major) 


(Lieutenant) (Captain) 


(Lieutenant, j .g .) (First Lieutenant) 


[Note 2. The name, rank, and position of the convening authority should be shown. The order may be 

authenticated by the signature of the convening authority or a person acting under the direction of the convening 

authority.] 

[Note 3. The language in brackets or parentheses in the foregoing samples should be used when 

appropriate. The Secretary concerned may prescribe additional requirements for convening orders. See R.C.M. 

504(d)(3). Service regulations should be consulted when preparing convening orders.] 

[Note4. When a new court-martial is convened to replace one in existence, the following should be added 

below the names of the personnel of the court-martial and before the authentication line:] 

All cases referred to the (general) (special) court-martial convened by order no. this 

(headquarters) (ship) ( ), dated 1 9 , in which the proceedings have 

not begun, will be brought to trial before the court-martial hereby convened. 

(2) Order amending convening orders. 

[Note 5. The same heading and authentication used on convening order should be used on amending 

orders. ] 

[Note6. A succession of amending orders may result in error. Care should be used in amending convening 

orders.] 

(a)Adding members. 

[Note 7. Members may be added in specific cases or for all cases.] 

The following members are detailed to the (general) (special) court-martial convened by order no. 

,this (headquarters) (ship) ( ), dated 19-(for the trial of 

only). 
App. 6, Note 8 APPENDIX 6 

(b)Replacing members. 

[Note 8. Members may be replaced in specific cases or for all cases.] 

(Captain) (Colonel) , is detailed as a member of the (general) (special) courtmartial convened by order no. , this (headquarters) (ship) ( ), dated 

19 , vice (Captain) (Colonel) , relieved (for the case of 

only). 

b. Summary court-martial convening orders 


(Date) 


(Designation of command of officer convening court-martial) 

[Pursuant to authority contained in (para. ,General Order No. ,Department of the 19 , ) (SECNAV Itr ser of 19 

, ) I (Lieutenant Commander) (Major) is detailed a summary court-martial (and shall 

sit at , unless otherwise directed). 

[Note 9. The name, rank, and position of the convening authority should be shown. The order may be 

authenticated by the signature of the convening authority or a person acting under the direction of the convening 

authority.] 

[Note 10. The summary court-martial convening order may be a separate page or a notation the charge 

sheet. See R.C.M. 504(d)(2) and 1302(c).] 
APPENDIX 7 


SUBPOENA 

Mr. James E. Pinelli The President of the United States, to 
 (Name and Title of Person being Subpoenaed) 


You are hereby summoned and re uired to ap ear on the day of October 

Bldg 13, ifm 4, u.!. Naval ,l9'4,at 


o~clock A .M.,at Station, Oakton, FL ,wm x 


~iW&iW?i~E)cpa

(Place of Roceedinpl 

general 

( 

court-martial of the United States~ZWdkXLCirMtlaWK appointed 

by General Court-Martial Convening Order No. 10 ,dated 1 September 

(Identification of Convening Order or Convening Authority) 

19, 

84 to testify as a witness in the matter of United States v. Roberts 

(Name of Ca8e) 

w~~~~-YYYYYYYYYYYYYYYYY

x

(Specific Identificatfon of Document# or Other Evidence) 

Failure to appear and testify is punishable by a fine of not more than $500 or imprisonment for a period not more than six months, 


or both. 10 U.S.C.8 847. Failure to appear may also result in your being taken into custody and brought before the court-martial 


@YYYYXX-XXxxXQunder a Wmant of Attachment (DD Form 464). Manual for Courts-Martial R.C.M.703(e)(2)(G). 


Bring this subpoena with you and do not depart from the proceeding without proper permission. 

at Naval Station, Oakton, FL 1st day of September 1984. 

b (Signahr$ ? m (See ~ R.C. w . 709 e)(Z)(C)) ~ h l

The witness is requested to sign one copy of this subpoena and to return the signed copy to the person serving the subpoena. 


I hereby accept service of the above subpoena. 


Slgnahrre of Wltneu 

.NOTE: If the witness does not sign, complete the following: 

Personally appeared before me, the undersigned authority, 

who, being fvst duly sworn according to law, deposes and says that at ,on 

19, he personally delivered to in person a duplicate of this subpoena. 

Grade Sipnature 

Subscribed and sworn to before me at ,this -day of 

Grade 

Officlol Statw Sisnature 

D :,,"%453 EDITION OF OCT 69 IS OBSOLETE. 
APPENDIX 7 

TRAVEL ORDER 

Payment of travel allowances is authorized pursuant to 10 U.S.C. 5 847 and 28 U.S.C. 5 1821. You should travel from 

Smithburg. Georgia in sufficient time to arrive at US Naval Stat ion-fkktnn, Fl 

on the date and at the time specified. You will be paid fees and expenses for attendance at the specified hearing and travel directly 

to and from that place. You may travel by rail, commercial or military aircraft, bus, or privately owned automobile. 

You have -have not been given a "Government Transportation Request" to exchange for commercial tickets. No mileage will 

be paid for any transportation provided by the Government in kind or by Government Transportation Request. If a Government Transportation Request is not given to you and you travel by commercial carrier at personal expense, reimbursement for your cost of transportation will be limited to: 

a. The least costly regularly scheduled air service between the points involved; or 

b. The cost of the rail fare and a lower berth, or the lowest first-class rail accommodation available at the time reservations 

were made; or 

c. Actual cost of commercial bus fare. 

If you travel by private automobile, you will be reimbursed at the rate of Jtwenty cents 6.204 1/1a mile, plus the 

cost of necessary parking fees, bridge, ferry, and other highway tolb incurred while traveling under this travel order. The total reimbursement will be limited to the cost of travel by the usual mode of common carrier, including per diem. Receipts and ticket stubs will 

be required to support your claim for cost of transportation and subsistence for each item in excess of j 6 l s . 0 0 ) . ~

0 You will be traveling to a high-cost area. 

The travel regulations designate certain cities as high cost areas. Because your attendance requires travel to one of these cities, you 

will be authorized an actual expense allowance instead of a per diem allowance. You will be reimbursed for the actual expenses incurred, not to exceed the maximum amount prescribed for the city involved. The expenses may include lodgings; meals, tips to waiters, 

bellboys. maids, porters; personal laundry, pressing and dry-cleaning;local transportation (including usual tipsi between places of lodging 

and duty; and other necessary expenses. You must itemize your daily actual expenses on your claim and receipts for lodging and any 

items over (sls.oo)/// are required. 

You will not be traveling to a high-cost area. 

Because you are not traveling to a high-cost area, you will be entitled to a per diem allowance to cover your expenses for lodging, 

meals, and incidentals. While traveling and attending the specified hearing within the continental United States, you will be authorized 

a per diem equal to the daily average you pay for lodging, plus fs23.00JA per day for meals and incidentals, rounded off 

to the next dollar. If the resulting amount is more than the maximum per diem allowable, which is f s s o . 0 0 ~ then ~ .

you will be reimbursed only the maximum per diem authorized. You are required to state on your reimbursement claim that the per 

diem claimed is based on the average cost to you for lodging while on required travel within the continental United States during the 

period covered by the claim. Receipts are required for lodging. The per diem allowance for travel overseas is based on rates set by the 

Department of State or by the Department of Defense, and you will be reimbursed the amount specified for the particular overseas 

area involved. 

You are entitled to an attendance fee of f230.00)- per day under 28 U.S.C. 5 1821. 

Address any inquiries regarding the matter to: Lieutenant R . -oa 1 Servi re s Off ir .-

Building 13. Naval S-flnk Fl TDU r111.1111 111 

This is travel order number 84-7 ,dated 20 September 1984 

issued by (headquarters) US Naval Station, Oaktm F1 

TDN. Accounting Citation XX1111122211-XX-0 

FOR THE COMMANDER 

R. Mueller Lt JAGC USN T ' LPa-eR- SC- YP d Name-of Aufh-" o Off~r~r 

Signature of Approving Official 

DD,:",",", 453-1 
APPENDIX 8 

GUIDE FOR GENERAL AND SPECIAL COURTS-MARTIAL 

[Note 1. This guide outlines the sequence of events ordinarily followed in general and special courtsmartial, and suggests ways to conduct various procedures prescribed in the Rules for Courts-Martial. The 

guide is not mandatory; it is intended solely as an aid to users of the Manual for Courts-Martial.] 

Section I. Opening Session Through Pleas 

[Note 2. See R.C.M. 901-911.1 

[Note 3. When a military judge has been detailed, the proceedings outlined in this section will be conducted 

at an Article 39(a) session. See R.C.M. 901(e). In special courts-martial without a military judge, these 

procedures should be followed in general; the president of a special court-martial without a military judge 

should also carefully examine pertinent Rules for Courts-Martial.] 

Session called to order MJ: 	 This Article 39(a) session is called to order. (Be seated.) 

Convening orders and referral of TC: 	 The court-martial is convened by (general) (special) court-martial concharges 	 vening order(s) number , (HQ 1 

(USS > ( ), (as amended by 

,) copies of which have been furnished the military judge, 

counsel, and the accused, (and to the reporter for insertion at this point in 

the record) (and which will be inserted at this point in the record). (Copies 

of any written orders detailing the military judge and counsel will be 

inserted at this point in the record.) 

[Note 4. When detailed, the reporter records all proceedings verbatim. See R.C.M. 502(e)(3)(B), 808, and 

1103. The reporter should account for the parties to the trial and keep a record of the hour and date of each 

opening and closing of the session, whether a recess, adjournment, or otherwise, for insertion in the record. 

See R.C.M. 813(b) and 1103. See also Appendices 13 and 14.1 

[Note 5. The military judge should examine the convening order and any amending orders.] 

TC: 	 The charges have been properly referred to this court-martial for trial and 

were served on the accused on 

[Note 6. In time of peace, if less than 5 days have elapsed since service of the charges in a general courtmartial (3 days in case of a special court-martial), the military judge should inquire whether the accused 

objects to proceeding. If the accused objects, the military judge must grant a continuance. See R.C.M. 

901(a).] 

TC: 	 (The following corrections are noted in the convening orders: 

.> 

[Note 7. Only minor changes, such as typographical errors or changes of grade due to promotion, may be 

made. Any correction which affects the identity of the individual concerned must be made by an amending 

or correcting order.] 

Accounting for parties [Note 8. See R.C.M. 813.1 

TC: 	 The accused and the following persons detailed to this court-martial are 

present: . The members and the following persons deReporter detailed [Note 9. When a reporter is detailed, the following announcement will be made. See R.C.M. 813(a)(8).] 

TC: has been detailed reporter for this court-martial 

and (has previously been sworn) (will now be sworn). 

tailed to this court-martial orders are absent: -. 
App. 8, Note 10 	 APPENDIX 8 

[Note 10. See R.C.M. 807(b)(2) Discussion (D) concerning the oath to be administered the reporter.] 

Detail of trial counsel TC: 	 ((I) (All members of the prosecution) have been detailed to this courtmartial by .> 

Qualifications of prosecution x: 	(I am) (All members of the prosection are) qualified and certified under 

Article 27(b) and sworn under Article 42(a). ( .1 

TC: 	 (I have not) (No member of the prosecution has) acted in any manner 

which might tend to disqualify (me) (him) (or) (her) in this court-martial 

Detail of defense counsel DC: 	 ((I) (All detailed members of the defense) have been detailed to this courtmartial by .) 

Qualifications of defense counsel DC: 	 (All detailed members of the defense are) (I am) qualified and certified 

under Article 27(b) and sworn under Article 42(a). ( .) 

DC: 	 (I have not) (No member of the defense has) acted in any manner which 

might tend to disqualify (me) (him) (or) (her) in this court-martial. 

Qualifications of individual IDC: My qualifications are . I have not acted in any counsel when present manner which might tend to disqualify me in this court-martial. 

[Note 11. If it appears that any counsel may be disqualified, the military judge must decide the matter and 

take appropriate action. See R.C.M. 901(d)(3).] 

Rights to counsel [Note 12. See R.C.M. 506.1 

MJ: ,you have the right to be represented in this courtmartial by (and ), your detailed defense counsel, or you may be represented by military counsel of 

your own selection, if the counsel you request is reasonably available. If 

you are represented by military counsel of your own selection, you would 

lose the right to have (and Your 

detailed counsel continue to help in your defense. However, you may 

request that (and, or one of them), your detailed 

counsel, continue to act as associate counsel with the military counsel 

you select, and , the convening authority, may approve 

such a request. Do you understand? 

ACC: 

MJ: 	 In addition, you have the right to be represented by civilian counsel, at no 

expense to the United States. Civilian counsel may represent you alone or 

along with your military counsel. Do you understand? 

[Note 13. If two or more accused in a joint or common trial are represented by the same counsel, or by 

civilian counsel who are associated in the practice of law, the military judge must inquire into the matter. See 

R.C.M. 901(d)(4)(D).] 

MJ: 	 Do you have any questions about your rights to counsel? 

ACC: 

MJ: 	 Whom do you want to represent you? 

[Note 14. If appropriate, the court-martial should be continued to permit the accused to obtain individual 

military or civilian counsel.] 
GUIDE FOR GENERAL AND SPECIAL COURTS-MARTIAL App. 8, Note 20 

MJ: Counsel for the parties have the necessary qualifications, and have been 

sworn (except , who will now be sworn.) 

MJ: I have been detailed to this court-martial by 

[Note 15. See R.C.M. 807(b)(2) Discussion (C) concerning the oath to be administered to counsel.] 

General nature of charges 

Challenge of military judge 

TC: The general nature of the charge(s) in this case is 

The charges were preferred by ,forwarded with 

recommendations as to disposition by (, and investigated 

by 1. ( is also an accuser in this case.) 

[Note 16. See R.C.M. 902.1 

TC: Your honor, are you aware of any matter which may be a ground for 

challenge against you? 

MJ: (I am aware of none.) ( .1 

TC: (The Government has no challenge for cause against the military judge.) 

DC: (The defense has no challenge for cause against the military judge.) 

Accused's elections on 

composition of court-martial 

[Note 17. See R.C.M. 903. See also R.C.M. 501(a) and 503(b).] 

MJ: ,do you understand that you have the right to be tried by a 

court-martial composed of members (including, if you request in writing, 

at least one-third enlisted persons) and that, if you are found guilty of any 

offense, those members would determine a sentence? 

ACC: 

MJ: Do you also understand that you may request in writing or orally here in 

the court-martial trial before me alone, and that if I approve such a 

request, there will be no members and I alone will decide whether you are 

guilty and, if I find you guilty, determine a sentence? 

ACC: 

MJ: Have you discussed these choices with your counsel? 

ACC: 

MJ: By which type of court-martial do you choose to be tried? 

ACC: 

[Note 18. See R.C.M. 903(a) concerning whether the accused may defer a decision on composition of 

court-martial.] 

[Note 19. If the accused chooses trial by court-martial composed of members proceed to arraignment 

below. Any request for enlisted members will be marked as an Appellate Exhibit and inserted in the record 

of trial. See R.C.M. 1103(b)(2)(D)(iii).In a special court-martial without a military judge, the members 

-should be sworn, and the challenge procedure conducted at this point. See Notes 38-47 below.] 

Election to be tried by military 

judge alone 

[Note 20. A request for trial by military judge alone must be written and signed by the accused and should 

identify the military judge by name or it may be made orally on the record. A written request will be marked 

as an Appellate Exhibit and inserted in the record of trial. See R.C.M. 1103(b)(2)(D)(iii).] 

MJ: (I have Appellate Exhibit, a request for trial before me alone.) 

(I am (Colonel) (Captain) ( 1 , 
App. 8, Note 21 	 APPENDIX 8 

have you discussed this request and the rights I just described with your 

counsel? 

ACC: 

MJ: 	 If I approve your request for trial by me alone you give up your right to 

trial by a court-martial composed of members (including, if you requested, enlisted members). Do you wish to request trial before me 

alone? 

ACC: 

MJ: 	 (Your request is approved. The court-martial is assembled.) (Your request is disapproved because .> 

[Note 21. See R.C.M. 903(c)(2)(B) concerning approval or disapproval. See R.C.M. 911 concerning 

assembly of the court-martial.] 

Arraignment 	 [Note 22. See R.C.M. 904.1 

MJ: 	 The accused will now be arraigned. 

TC: 	 All parties and the military judge have been furnished a copy of the 

charges and specifications. Does the accused want them read? 

DC: 	 The accused (waives reading of the charges) (wants the charges read). 

MJ: 	 (The reading may be omitted.) 

Tc: 	 ( .I 

TC: 	 The charges are signed by ,a person subject to the code, 

as accuser; are properly sworn to before a commissioned officer of the 

armed forces authorized to administer oaths, and are properly referred to 

this court-martial for trial by ,the convening authority. 

MJ: ,how do you plead? Before receiving your pleas, I advise 

you that any motions to dismiss any charge or to grant other relief should 

be made at this time. 

[Note 23. See R.C.M. 801(e), 905-907 concerning motions. See R.C.M. 908 if the Government elects to 

appeal a ruling adverse to it.] 

DC: 	 The defense has (no) (the following) motion(s). ( .1 

[Note 24. After any motions are disposed of pleas are ordinarily entered. See R.C.M. 910.1 

DC: 	 pleads 

[Note 25. If the accused enters any pleas of guilty proceed with the remainder of section I. If no pleas of 

guilty are entered, proceed to section II if trial is before members, or section III if trial is before military 

judge alone.] 

[Note26. If hial is before members in a contested case, the military judge should examine the copy of the 

charge(s) to be provided the members, discuss any preliminary instructions with the parties, and determine 

whether other matters should be addressed before the Article 39(a) session is ended.] 

Guilty plea inquiry 	 [Note 27. See R.C.M. 910(c), (d), (e), and (f). If a conditional guilty plea is entered, see R.C.M. 

91O(a)(2).1 

Introduction MJ: , your plea of guilty will not be accepted unless you 

understand its meaning and effect. I am going to discuss your plea of 

guilty with you now. If you have any questions, please say so. Do you 

understand? 
GUIDE FOR GENERAL AND SPECIAL COURTS-MARTIAL App. 8, Note 28 

Waiver of rights 

Maximum penalty 

ACC: 

MJ: 	 A plea of guilty is the strongest form of proof known to the law. On your 

plea alone, without receiving any evidence, this court-martial could find 

you guilty of the offense(s) to which you are pleading guilty. Your plea 

will not be accepted unless you understand that by pleading guilty you 

admit every element of each offense and you are pleading guilty because 

you really are guilty. If you do not believe that you are guilty, you should 

not plead guilty for any reason. Do you understand that? 

ACC: 

MJ: 	 By your plea of guilty you waive, or in other words, you give up certain 

important rights. (You give up these rights only as to the offense(s) to 

which you have pleaded guilty. You keep them as to the offense(s) to 

which you have pleaded not guilty). The rights you give up are: First, the 

right against self-incrimination, that is the right to say nothing at all about 

(this) (these) offense(s). Second, the right to a trial of the facts by the 

court-martial, that is, the right to have this court-martial decide whether 

or not you are guilty based on evidence presented by the prosection and, if -

you chose to do so, by the defense. Third, the right to be confronted by 

the witnesses against you, that is to see and hear the witnesses against you 

here in the court-martial and to have them cross-examined, and to call 

witnesses in your behalf. Do you understand these rights? 

ACC: 

MJ: 	 If you plead guilty, there will not be a trial of any kind as to the offense(s) 

to which you are pleading guilty, so by pleading guilty you give up the 

rights I have just described. Do you understand that? 

ACC: 

MJ: 	 Defense counsel, what advice have you given as to the maximum punishment for the offense(s) to which the accused pleaded guilty? 

DC: 

MJ: 	 Trial counsel, do you agree with that? 

TC: 

[Note 28. If there is a question as to the maximum punishment, the military judge must resolve it. If the 

maximum punishment may be subject to further dispute, the military judge should advise the accused of the 

alternative possibilities and determine whether this affects the accused's decision to plead guilty.] 

MJ: ,by your plea of guilty this court-martial could sentence 

you to the maximum authorized punishment, which is 

Do you understand that? 

MJ: Do you feel you have had enough time to discuss your case with your 

counsel ? 

ACC: 

MJ: ,do you feel that you have had enough time to discuss the 

case with your client? 

DC: 
App. 8, Note 29 APPENDIX 8 

MJ: , are you satisfied with (and 

), your defense counsel, and do you believe (his) 

(her) (their) advice has been in your best interest? 

ACC: 

MJ: Are you pleading guilty voluntarily? 

ACC: 

MJ: Has anyone tried to force you to plead guilty? 

ACC: 

Factual basis for plea [Note 29. The accused will be placed under oath at this point. See R.C.M. 910(e). The military judge may 

inquire whether there is a stipulation in connection with the plea, and may inquire into the stipulation at this 

point. See R.C.M. 811.1 

TC: Do you (swear) (affirm)that the statements you are about to make shall be 

the truth, the whole truth, and nothing but the truth (so help you God)? 

ACC: 

MJ: I am going to explain the elements of the offense(s) to which you have 

entered pleas of guilty. By "elements" I mean the facts which the 

Government would have to prove by evidence beyond a reasonable doubt 

before you could be found guilty if you pleaded not guilty. When I state 

each of these elements ask yourself if it is true, and whether you want to 

admit that its true. Then be ready to talk about these facts with me. 

MJ: Please look at your copy of the charges and specifications. You have 

pleaded guilty to Charge ,Specification ,a 

violation of Article of the Uniform Code of Military 

Justice. The elements of that offense are 

[Note 30. See subparagraph b of the appropriate paragraph in Part IV. The description of the elements 

should be tailored to the allegations in the specification. Legal terms should be explained.] 

MJ: Do you understand those elements? 

ACC: 

MJ: Do the elements correctly describe what you did? 

ACC: 

Accused's description of 

offense(s) 

[Note 31. The military judge should elicit from the accused facts supporting the guilty plea by questioning 

the accused about the offense(s). The questioning should develop the accused's description of the offense(s) 

and establish the existence of each element of the offense(s). The military judge should be alert to 

discrepancies in the accused's description, or between the accused's description and any stipulation. If the 

accused's discussion or other information discloses a possible defense, the military judge must inquire into 

the matter, and may not accept the plea if a possible defense exists. The military judge should explain to the 

accused the elements of a defense when the accused's description raises the possibility of one. The 

foregoing inquiry should be repeated as to each offense to which the accused has pleaded guilty.] 

Identification of accused MJ: Do you admit that you are ,the accused in this case? 

ACC: 

Jurisdiction MJ: On (date of earliest offense ), 19 -, were you a member of the 

United States (Army) (Navy) (Air Force) (Marine Corps) (Coast Guard) 

on active duty, and have you remained on active duty since then? 

ACC: 
GUIDE FOR GENERAL AND SPECIAL COURTS-MARTIAL App. 8, Note 37 

[Note 32. The military judge should determine whether jurisdiction might be affected by a post-offense 

reenlistment.] 

Pretrial agreement MJ; Is there a pretrial agreement in this case? 

TC or DC: 

[Note 33. If the answer is yes proceed to note 35; if the answer is no, proceed as follows.] 

MJ: are you pleading guilty because of any promise by 

the Government that you will receive a sentence reduction or other benefit 

from the Government if you plea! guilty? 

ACC: 

[Note 34. If the answer is no, proceed to acceptance of the plea. If the answer is yes, the military judge 

should determine from the accused and counsel whether any agreement exists. If so, the plea agreement 

inquiry should continue. If not, then the military judge should clarify any misunderstanding the accused 

may have, and ascertain whether the accused still wants to plead guilty. Once any issue is resolved, if the 

accused maintains the plea of guilty, proceed to acceptance of the plea.] 

[Note 35. If there is a pretrial agreement, the military judge must: (1) ensure that the entire agreement is 

presented, provided that in trial by military judge alone the military judge ordinarily will not examine any 

sentence limitation at this point; (2) ensure that the agreement complies with R.C.M. 705; and (3) inquire to 

ensure that the accused understands the agreement and that the parties agree to it. See R.C.M. 910(f). If the 

agreement contains any ambiguous or unclear terms, the military judge should obtain clarification from the 

parties.] 

[Note 36. The agreement should be marked as an Appellate Exhibit. If the agreement contains a sentence 

limitation and trial is before military judge alone, the sentence limitation should be marked as a separate 

Appellate Exhibit, if possible.] 

[Note 37. The language below is generally appropriate when trial is before military judge alone. It should 

be modified when trial is before members.] 

MJ: 	 , I have here Appellate Exhibit, which is part of a pretrial 

agreement between you and , the convening authority. Is this 

(

your 

)

signature 

, and did 

which 

you 

appears 

read this 

(on 

part 

the 

of the 

bottom 

agreement? 

of page -

ACC: 

MJ: 	 Did you also read and sign Appellate Exhibit , which is the 

second part of the agreement? 

ACC: 

MJ: 	 Do you believe that you fully understand the agreement? 

ACC: 

MJ: 	 I don't know, and I don't want to know at this time the sentence limitation 

you have agreed to. However, I want you to read that part of the agreement 

over to yourself once again. 

MJ: 	 [After accused has done so.] 

Without saying what it is, do you understand the maximum punishment 

the convening authority may approve? 

ACC: 

MJ: 	 In a pretrial agreement, you agree to enter a plea of guilty to (some of) the 

charge(s) and specification(s), and, in return, the convening authority 

agrees to (approve no sentence greater than that listed in Appellate 
App. 8, Note 38 	 APPENDIX 8 

Exhibit, which you have just read) ( ). [In addition, (you have agreed to testify against 1 

( ) (the convening authority has agreed to withdraw 

Charge -and its specification) ( ). Do you 

understand that? 

ACC: 

MJ: 	 If the sentence adjudged by this court-martial is greater than the one 

provided in the agreement, the convening authority would have to reduce 

the sentence to one no more severe than the one in your agreement. On the 

other hand, if the sentence adjudged by this court-martial is less than the 

one in your agreement, the convening authority cannot increase the 

sentence adjudged. Do you understand that? 

ACC: 

[Note 38. The military judge should discuss the agreement with the accused, and explain any terms which 

the accused may not understand. If the accused does not understand a term, or if the parties disagree as to a 

term, the agreement should not be accepted unless the matter is clarified to the satisfaction of the parties. If 

there are any illegal terms, the agreement must be modified in accordance with R.C.M.705. The trial 

counsel should be granted a recess on request to secure the assent of the convening authority to any material 

modification in the agreement.] 

MJ: 	 i s this agreement, Appellate Exhibit(s) -(and -1 

the entire agreement between you and the convening authority? In other 

words, is it correct that there are no other agreements or promises in this 

case? 

ACC: 


MJ: Do counsel agree? 


TC: 


DC: 


MJ: ,do you understand your pretrial agreement? 


ACC: 


MJ: Do counsel disagree with my explanation or interpretation of the agree- 


ment in any respect? 

TC: 


DC: 


MJ: ( To DC ), did the offer to make a pretrial agreement originate with the 


defense? 

DC: 

MJ: , are you entering this agreement freely and voluntarily? 

AC: 

MJ: Has anyone tried to force you to enter this agreement? 

ACC: 

MJ: Have you fully discussed this agreement with your counsel, and are you 

satisfied that (his) (her) advice is in your best interest? 
GUIDE FOR GENERAL AND SPECIAL COURTS-MARTIAL App. 8, Note 42 

ACC: 

MJ: ,although you believe you are guilty, you have a legal and 

a moral right to plead not guilty and to require the Goverment to prove its 

case against you, if it can, by legal and competent evidence beyond a 

reasonable doubt. If you were to plead not guilty, then you would be 

presumed under the law to be not guilty, and only by introducing evidence 

and proving your guilt beyond a reasonable doubt can the Government 

overcome that presumption. Do you understand? 

ACC: 

MJ: 	 Do you have any questions about your plea of guilty, your pretrial 

agreement, or anything we have discussed? 

ACC: 

Acceptance of guilty plea MJ: Do you still want to plead guilty? 

ACC: 

MJ: 	 I find that the accused has knowingly, intelligently, and consciously 

waived (his) (her) rights against self-incrimination, to a trial of the facts 

by a court-martial, and to be confronted by the witnesses against (him) 

(her); that the accused is, in fact guilty; and (his) (her) plea of guilty is 

accepted. 

MJ: ,you may request to withdraw your plea of guilty any time 

before the sentence is announced in your case and if you have a good 

reason for your request, I will grant it. Do you understand? 

ACC: 

Announcement of findings based [Note 39. Findings of guilty may, and ordinarily should, be entered at this point except when: (1) not 

on guilty plea permitted by regulations of the Secretary concerned; or (2) the plea is to a lesser included offense and the 

prosecution intends to proceed to trial on the offense as charged. See R.C.M. 910(g)(l) and (2). See also 

R.C.M. 910(g)(3) in special courts-martial without a military judge. In trials before military judge alone, 

when some offenses are to be contested, the military judge may elect to defer entry of any findings until the 

end of trial on the merits.] 

[Note 40. See R.C.M. 922 and Appendix 10 concerning forms of findings.] 

MJ: ,in accordance with your plea(s) of guilty, this courtmartial finds you (of all charges and specifications) (of Specification 

-of Charge and Charge ) : Guilty. 

[Note 41. If trial is before members, and no offenses remain to be contested on the merits, this may be an 

appropriate point for the military judge to inform the accused of the rights to allocution under R.C.M. 

1001(a)(3). See Note 88 below. In addition, other issues relating to the information or evidence to be 

introduced on sentencing should ordinarily be resolved at this point. If other offenses remain to be 

contested, the military judge should consider, and solicit the views of the parties, whether to inform the 

members only of the offenses to which the accused pleaded not guilty. The copy of the charges presented to 

the members should reflect this decision. See also Note 26.1 

Section II. Trial With Members; Preliminary Session 

[Note 42. The following procedure is suggested for a trial with members after completion of the Article 

39(a) session. 

Before calling the court-martial to order, the military judge should examine the covening order and 

any amending orders and ensure that all members required to be present are present. Witnesses should be 

excluded from the courtroom except when they testify. 
App. 8, Note 43 	 APPENDIX 8 

Oath of members 

Assemblylpreliminary 

instructions 

General nature of charges 

Challenges 

When the court-martial is ready to proceed the military judge should direct the bailiff, if any, or the 

trial counsel to call the members. Whenever the members enter the courtroom, all persons present except 

the military judge and reporter should rise. 

The members are seated alternatively to the right and left of the president according to rank.] 

MJ: The court-martial will come to order. You may be seated. 

TC: This court-martial is convened by (general) (special) court-martial convening order number -(HQ -) (uss 1 

( ) , as amended by ----), a copy of which has been furnished 

to each member. 

TC: The accused and the following persons named in the convening orders are 

present: 

TC: The following persons named in the convening orders are absent: 

[Note 43. Persons who have been relieved (viced) by written orders need not be mentioned. The reason for 

any other absences should be stated.] 

TC: 	 The prosecution is ready to proceed with the trial in the case of United 

States v. (who is present). 

MJ: 	 The members will now be sworn. 

TC: 	 All persons please rise. 

"Do you [name(s) of rnember(s)] (swear) (affirm) that you will 

answer truthfully the questions concerning whether you should serve as a 

member of this court-martial; that you will faithfully and impartially try, 

according to the evidence, your conscience, and the laws applicable to 

trials by court-martial, the case of the accused now before this court; and 

that you will not disclose or discover the vote or opinion of any particular 

member of the court-martial (upon a challenge or) upon the findings or 

sentence unless required to do so in due course of law, (so help you 

God)?" 

Each member: I do. 

MJ: 	 Be seated please. The court-martial is assembled. 

[Note 44. See R.C.M. 911 concerning assembly.] 

[Note 45. At this point, the military judge may give the members preliminary instructions. These may 

include instructions on the general nature of the member's duties (see R.C.M. 502(a)(2) and Discussion, 

922,1006), the duties of the military judge (see R.C.M. 801,920,1005; Mil. R. Evid. 103), and the duties 

of counsel (see R.C.M. 502(d)(5) and (6));on voir dire and possible grounds for challenge (see R.C.M. 

912); on the procedures for questioning witnesses (see Mil. R. Evid. 61 1,614); on taking notes; and such 

other matters as may be appropriate. The military judge may elect to defer giving instructions on some of 

these matters until after voir dire, or until another appropriate point in the proceedings.] 

[Note 46. Trial counsel should distribute copies of the charges and specifications to the members.] 

TC: 	 The general nature of the charge(s) in this case (is) (are) 

The charge(s) were preferred by ; forwarded with recommendations as to disposition by (; and investigated by 

TC: 	 The records of this case disclose (no grounds for challenge) (grounds for 

challenge of , on the following grounds .) 
GUIDE FOR GENERAL AND SPECIAL COURTS-MARTIAL App. 8, Note 56 

TC: 	 If any member is aware of any matter which may be a ground for 

challenge by any party, the member should so state. 

[Note 47. In case of a negative response, trial counsel should announce "Apparently not."] 

[Note 48. The military judge and, if permitted by the military judge, counsel may examine the members on 

voir dire. See R.C.M. 912(d) and Discussion. The parties may present evidence relating to challenges for 

cause. See R.C.M. 912(e). Upon completion of voir dire and taking evidence, if any, the parties will be 

called upon to enter challenges for cause. Ordinarily trial counsel enters challenges for cause before defense 

counsel. After any challenges for cause, the parties may be called upon to enter peremptory challenges. 

Ordinarily trial counsel enters a peremptory challenge before the defense. The parties must be permitted to 

enter challenges outside the presence of members. See R.C.M. 912(f) and (g). In special courts-martial 

without a military judge, see R.C.M. 912(h).] 

[Note 49. If any members are successfully challenged, they should be excused in open session in the 

presence of the parties. The record should indicate that they withdrew from the courtroom. The me~bers 

who remain after challenges should be reseated according to rank, as necessary.] 

[Note 50. The military judge should ensure that a quorum remains, and, if the court-martial is composed 

with enlisted persons, that at least one-third of the remaining members are enlisted persons. See R.C.M. 

912(g)(2) Discussion.] 

[Note 51. If the members have not yet been informed of the plea(s), this should now be done.] 

MJ: 	 Members of the court-martial, at an earlier session the accused was 

arraigned and entered the following pleas: 

[Note 52. In a special court-martial without a military judge, the accused should now be arraigned. See 

Notes 22-39.] 

[Note 53. If the military judge entered findings based on pleas of guilty and no offenses remain to be 

contested, the military judge should give the following instruction and proceed to SECTION IV, below.] 

MJ: 	 I accepted the accused's pleas of guilty and entered findings of guilty as to 

(the) (all) Charge(s) ( ) and Specification(s) ( ) and 

( ). Therefore we will now proceed to determine a sentence 

in the case. 

[Note 54. If the accused pleaded guilty to some offenses, but others remain to be contested, and the 

members have been informed of the offenses to which the accused pleaded guilty, the military judge should 

instruct as follows.] 

MJ: 	 Members, you will not be required to reach findings regarding Charge 

( ) and Specification(s) ( > (and ) 

(and ). Findings will be required, however, as to Charge . . ( ) and Specification(s) ( ) (and 1 

(and ) , to which the accused has pleaded not guilty. You may not 

consider the fact that the accused pleaded guilty to (one) (some) offense(~) in any way in deciding whether the accused is guilty of the 

offense(s) to which (he) (she) has pleaded not guilty. 

[Note 55. If the accused has pleaded guilty to a lesser included offense and the prosecution intends to prove 

the greater offense, the military judge should instruct as follows.] 

MJ: 	 The accused's plea of guilty to the lesser included offense of 

admits some of the elements of the offense charged in (the) Specification 

( ) of (the) Charge ( ). These elements are therefore established by the accused's plea without need of further proof. 

However, the accused's plea of guilty to this lesser included offense 

provides no basis for a finding of guilty as charged, because there still 

remains in issue the elements of . No inference of guilt of 

such remaining elements may be drawn from the accused's plea. Before 

the accused may be found guilty of the offense charged, the prosecution 

must prove the remaining element(s) beyond a reasonable doubt. 

[Note 56. The military judge may give such additional preliminary instructions as may be appropriate at this 

point.] 
App. 8, Note 57 	 APPENDIX 8 

SECTION Ill. TRIAL 

[Note 57. See R.C.M. 913.1 

MJ: Will the prosecution make an opening statement? 

TC: (No) (Yes. .1 

MJ: Will the defense make an opening statement? 

DC: (No) (The defense will make its statement after the prosecution has 

rested.) 

(Yes. .) 

TC: The prosecution calls as its first witness 

Oath of witness [Note 58. See R.C.M. 807.1 

TC: 	 Do you (swear) (affirm) that the evidence you give in the case now in 

hearing shall be the truth, the whole truth, and nothing but the truth (, so 

help you God)? 

WIT: 

Preliminary questions TC: (Are you (state name, grade, organization, station, and armed force) 

(state name and address, if civilian)?) (Please state your name (grade, 

organization, station, and armed force) (and address). 

[Note 59. The address of witnesses should be omitted in appropriate cases, as where it might endanger the 


witness.] 


[Note 60. Except when an identification is inappropriate (e.g. when the witness is a laboratory technician) 


or where a foundation must be laid, Trial Counsel ordinarily should ask the witness to identify the accused.] 


TC: 	 Do you know the accused? 

WIT: 


[Note 61. If the witness answers affirmatively:] 


TC: Please point to the accused and state (his) (her) name. 


WIT: 


TC: Let the record show that the witness pointed to the accused when stating 


(his) (her) name. 

Testimony [Note 62. Trial counsel should now conduct direct examination of the witness. See Mil. R. Evid. 61 I.] 

TC: No further questions. 


MJ: , you may cross-examine. 


[Note 63. Defense counsel may cross-examine the witness.] 


DC: No (further) questions. 

[Note 64. The parties should be permitted to conduct such redirect and recross-examination as may 

reasonably be necessary. See Mil. R. Evid. 611. After the parties have completed their questioning, the 

military judge and members may ask additional questions. See Mi1.R. Evid. 614. The members should be 

instructed on the procedures for questioning. Each member's questions will be collected by the bailiff, if 

any, or trial counsel, marked as an Appellate Exhibit, examined by counsel for each side, and given to the 

military judge. If there are any objections, they should be raised at an Article 39(a) session or at a side-bar 

conference.] 
GUIDE FOR GENERAL AND SPECIAL COURTS-MARTIAL App. 8, Note 76 

[Note 65. After questioning of a witness is completed, the military judge should determine whether the 

witness will be excused temporarily or permanently. The military judge should advise the witness as 

follows.] 

MJ: , thank you. You are (temporarily) excused. 

(Please wait (in the waiting room) ( )). (You are 

free to go.) As long as this trial continues, do not discuss your testimony 

or knowledge of the case with anyone except counsel. If anyone else tries 

to talk to you about the case, stop them and report the matter to one of the 

counsel. 

[Note 66. The witness will withdraw from the courtroom. See Mil. R. Evid. 615.1 

TC: The prosecution calls as its next witness 

[Note 67. Trial counsel continues to present the prosecution case. If exhibits were admitted at an Article 

39(a) session, trial counsel may, with the permission of the military judge, read or present the evidence to 

the court-martial.] 

Recess, adjournment, or Article 

39(a) session 

[Note 68. In the event of a recess, continuance, adjournment, or Article 39(a) session the military judge 

should announce when the court-martial will reconvene, and should instruct or remind the members not to 

discuss the case with anyone, not to consult legal references, and to avoid exposure to matters relating to the 

case.] 

Reopening [Note 69. When the court-martial is reopened, the following announcement is appropriate.] 

MJ: The court-martial will come to order. 

TC: The members, the parties, and the military judge are all present. 

Rosecution rests TC: The prosecution rests. 

[Note 70. A motion for a finding of not guilty may be raised at this point. See R.C.M. 917. Any such motion 

should be made outside the presence of the members. If a motion is made in the presence of members, and is 

denied, the military judge should instruct the members that the military judge applies a different standard in 

ruling on the motion than they must apply in reaching their findings, and that the denial must have no effect 

on their deliberations and findings.] 

Presentation of evidence by 

defense 

[Note 71. Defense counsel may make an opening statement if one was not made previously.] 

DC: The defense calls as its first witness 

[Note 72. Trial counsel administers the oath to each witness. Defense counsel conducts direct examination, 

and trial counsel cross-examination of each witnesses. Redirect and recross-examination may be conducted 

as appropriate. The military judge and members may question each witness. See note 64.1 

[Note 73. Defense counsel continues to present the defense case. If exhibits were admitted at an Article 

39(a) session, defense counsel may, with the permission of the military judge, read or present the evidence 

to the court-martial.] 

DC: The defense rests. 

Rebuttal and surrebuttal [Note 74. The parties may present evidence in rebuttal and surrebuttal. See R.C.M. 913(c)(l). After the 

parties complete their presentations, additional evidence may be presented when the military judge so 

directs. See R.C.M. 801(c), 913(c)(l)(F).] 

[Note 75. When a witness is recalled, the following is appropriate.] 

TC: Are you the same 

martial? 

who testified earlier in this courtWIT: I am. 

TC: You are reminded that you are still under oath. 

[Note 76. If trial is by military judge alone, counsel should be permitted to make closing arguments. See 

R.C.M. 9 19. After arguments, proceed to announcement of findings.] 
App. 8, Note 77 APPENDIX 8 

Out of court hearing on findings 

instructions 

[Note 77. Ordinarily the military judge will conduct an Article 39(a) session to discuss findings instructions 

and examine the findings worksheet. See R.C.M. 920, 921(d). If such instructions are discussed at a 

conference, see R.C.M. 802.1 

Closing arguments [Note 78. See R.C.M. 919.1 

TC: 

DC: 

TC: 

[Note 79. See R.C.M. 920.1 

MJ: 

MJ: Does any member have any questions concerning these instructions? 

MEMBERS: 

MJ: Do counsel have any objections to these instructions not previously 

raised? 

TC: 

DC: 

[Note 80. See R.C.M. 920(f).] 

[Note 81. Any exhibits which the members are to consider should be given to the president before the courtmartial closes.] 

Closing MJ: The court-martial is closed. 

[Note 82. While the members are deliberating, the military judge may take up certain matters which may 

arise if the accused is found guilty of any offense. The admissibility of evidence during sentencing 

proceedings and advice to the accused about allocution rights may be considered at an Article 39(a) session 

at this point. See R.C.M. 1001. See Note 88 below concerning allocution advice.] 

After findings reached MJ: The court-martial will come to order. 

TC: All parties and members and the military judge are present. 

MJ: (To president) have the members reached findings? 

PRES: 

MJ: Are the findings on Appellate Exhibit -. 7 

PRES: Yes. 

MJ: Would, (the bailiff) (trial counsel), without examining it please bring me 

Appellate Exhibit -7. 

MJ: I have examined Appellate Exhibit. It appears to be in proper 

form. Please return it to the president. 

[Note 83. See R.C.M. 921(d) concerning a findings worksheet, and the procedure to be followed if any 

problems are indicated. See R.C.M. 924 if reconsideration of a finding may be necessary.] 

Announcement of findings MJ: , would you and your counsel stand up please (and 

approach the president). 

MJ: , announce the findings please. 

PRES: , this court-martial finds you 
GUIDE FOR GENERAL AND SPECIAL COURTS-MARTIAL App. 8, Note 92 

MJ: 	 Please be seated. 

[Note 84. If the accused is found not guilty of all charges and specifications, the court-martial is ordinarily 

adjourned at this point.] 

SECTION IV. PRESENTENCING PROCEDURE 

[Note 85. If the accused pleaded guilty to some specifications and the members have not yet been informed 

of these, the members should now be given copies of these specifications and be informed of the accused's 

plea to them. See text following Note 51 .] 

Data from charge sheet 	 [Note 86. See R.C.M. 1001(b)(l).] 

MJ: 	 The court-martial will now hear the data concerning the accused shown 

on the charge sheet. 

TC: 


Matters presented by MJ: Does the prosecution have other matters to present? 

prosecution 

[Note 87. The prosecution may present certain matters from the accused's personnel records, evidence of 

previous convictions, evidence in aggravation, and evidence of rehabilitative potential. See R.C.M. 

1001(b)(2) through (5).] 

TC: 	 The prosecution has nothing further. 

Matters presented by defense 	 [Note 88. If the accused has not previously been advised in accordance with R.C.M. 1001(a)(3), such 

advice should now be given. In trial before members, this advice should be given at an Article 39(a) 

session.] 

MJ: ,you have the right to present matters in extenuation and 

mitigation, that is, matters about the offense(s) or yourself which you 

want the court-martial to consider in deciding a sentence. Included in 

your right to present evidence are the rights you have to testify under oath, 

to make an unsworn statement, or to remain silent. If you testify, you may 

be cross-examined by the trial counsel and questioned by me (and the 

members). If you decide to make an unsworn statement you may not be 

cross-examined by trial counsel or questioned by me (or the members). 

You may make an unsworn statement orally or in writing, personally, or 

through your counsel, or you may use a combination of these ways. If you 

decide to exercise your right to remain silent, that cannot be held against 

you in any way. Do you understand your rights? 

ACC: 

MJ: 	 Which of these rights do you want to exercise? 

ACC: 

[Note 89. The defense may present matters in rebuttal and extenuation and mitigation. See R.C.M. 

1001(c).] 

DC: 	 The defense has nothing further. 

Rebuttal 	 [Note 90. The parties may present additional matters in rebuttal, as appropriate. See R.C.M. 

1001(a)(l)(C).l 

Out of court hearing on [Note 91. If trial is by military judge alone, counsel should be permitted to make arguments on sentencing. 

sentencing instructions. After arguments proceed to announcement of the sentence.] 

[Note 92. Ordinarily the military judge will conduct an Article 39(a) session to discuss sentencing 

instructions and examine the sentence worksheet. See R.C.M. 1005. If such instructions are discussed at a 

conference, see R.C.M. 802.1 
App. 8, Note 93 APPENDIX 8 

Closing arguments [Note 93. See R.C.M. 1001(g).] 

IT: 


DC: 

Instructions [Note 94. See R.C.M. 1005.1 

MJ: 

MJ: Does any member have any questions concerning these instructions? 

MEMBERS: 

MJ: Do counsel have any objections concerning these instructions not previously raised? 

DC: 


[Note 95. See R.C.M. 1005(f).] 


[Note 96. Any exhibits which the members are to consider should be given to the president before the court- 


martial closes.] 

Closing MJ: The court-martial is closed. 

After sentence reached MJ: The court-martial will come to order. 

TC: All parties and members and the military judge are present. 

MJ: (To president) -, have the members reached a sentence? 

PRES: 

MJ: Is the sentence on Appellate Exhibit ? 

PRES: Yes. 

MJ: Would (the bailiff) (trial counsel), without examining it, please bring me 

Appellate Exhibit -7. 

MJ: I have examined Appellate Exhibit. It appears to be in proper 

form. Please return it to the president. 

[Note 97. See R.C.M. 1006(e) concerning a sentence worksheet, and the procedure to be followed if any 

problems are indicated. See R.C.M. 1009 if reconsideration of the sentence may be necessary.] 

Announcement of sentence MJ: , would you and your counsel stand up please (and approach the president). 

MJ: , would you announce the sentence please. 

PRES: , this court-martial sentences you to: 

MJ: Please be seated. 

[Note 98. In trial before members, ordinarily the members should be excused at this point. If no other 

matters remain to be considered, the court-martial should be adjourned. If there areadditional matters tobe 

considered (e.g., punishment limitation in a pretrial agreement in a trial,by military judge alone, see 

R.C.M. 910(f)(3) or, if the accused was represented by more than one counsel, which counsel will prepare 

any response to the post-trial review) these matters should be addressed before the court-martial is 

adjourned.] 
GUIDE FOR GENERAL AND SPECIAL COURTS-MARTIAL App. 8, Note 101 

Advice of post-trial and [Note 99. The military judge must advise the accused of the accused's post-trial and appellate rights. See 

appellate rights R.C.M. 11 10.1 

MJ: I will explain to you your post-trial and appellate 

rights. 

MJ: 	 After the record of trial is prepared in your case, the 

convening authority will act on your case. The convening authority can 

approve the sentence (adjudged) (provided in your pretrial agreement), or 

(he) (she) can approve a lesser sentence or disapprove the sentence 

entirely. The convening authority cannot increase the sentence. The 

convening authority can also disapprove (some or all of) the findings of 

guilty. The convening authority is not required to review the case for legal 

errors, but may take action to correct legal errors. Do you understand? 

ACC: 

Advice in GCMs and SPCMs .in [Note 100. In general courts-martial and in special court-martial in which a BCD has been adjudged, the 

which BCD adjudged following advice should be given. In other cases, proceed to Note 104.1 

MJ: 	 You have the right to submit matters to the convening authority before 

(he) (she) takes action on your case. These matters must be submitted to 

the convening authority within 30 days of today or within 7 days after you 

or your counsel receive a copy of the record of trial, whichever is later. 

The convening authority may extend these periods for good cause. Do 

you understand? 

ACC: 

MJ: 	 Before the convening authority takes action, the (staff judge advocate) 

(legal officer) will submit a recommendation to the convening authority. 

This recommendation will be sent to. your defense counsel before the 

convening authority takes action, and you may submit matters in response to the recommendation within 5 days of receiving it. The convening authority may extend this period for good cause. Do you understand? 

ACC: 

[Note 101. Use the following in cases subject to review by a Court of Military Review. Otherwise proceed to 

Note 102.1 

MJ: 	 After the convening authority takes action, unless you waive appellate 

review, your case will be reviewed by the Court of 

Military Review. You are entitled to be represented by counsel before 

such court. Military counsel will be appointed to represent you at no cost 

to you, and if you so choose, you may be represented by civilian counsel 

at no expense to the United States. Do you understand? 

ACC: 

MJ: 	 The Court of Military Review will review your case for any legal errors, 

and for factual sufficiency. It will also consider whether the sentence is 

appropriate. Do you understand? 

ACC: 

MJ: 	 After the Court of Military Review completes its review, your case could 

be reviewed, on your request or otherwise by the Court of Military 

Appeals, and, if it were reviewed by the Court of Military Appeals, by the 
App. 8, Note 102 	 APPENDIX 8 

Supreme Court. You would have the same rights to counsel before those 

courts as you have before the Court of Military Review. Do you understand? , 

ACC: 

[Note 102. Use the following in general courts-martial which are subject to examination by the Judge 

Advocate General under Article 69(a).] 

MJ: After the convening authority takes action, unless you waive further 

review, your case will be forwarded to the Judge Advocate General for 

examination. The record will be examined in the office of the Judge 

Advocate General for any legal errors and concerning the appropriateness 

of the sentence, and the Judge Advocate General may take corrective 

action, if appropriate. Do you understand? 

ACC: 

[Note 103. Use the following in all general courts-martial and all special courts-martial in which a badconduct discharge has been adjudged.] 

MJ: 	 If you waive appellate review, you give up the rights I have just described. 

Do you understand? 

ACC: 

MJ: 	 If you do not waive appellate review, you may withdraw your case from 

appellate review at a later time, before such review is completed. Do you 

understand? 

ACC: 

MJ: 	 If you do waive, or later withdraw your case from, appellate review, you 

cannot change your mind later. Once you file a waiver or withdrawal, your 

decision is final and appellate review is barred. Do you understand? 

ACC: 

MJ: 	 If you waive or withdraw appellate review, your case will be reviewed by 

a judge advocate for legal error. You may suggest, in writing, possible 

errors for the judge advocate to consider. The judge advocate's conclusions will be sent to the general court-martial convening authority for 

final action in your case. Do you understand? 

ACC: 

MJ: 	 After review by the judge advocate and action by the general courtmartial convening authority is completed, you may request the Judge 

Advocate General to take corrective action in your case. Such a request 

must be filed within two years after the convening authority takes action 

unless you can show good cause for filing later. Do you understand? 

ACC: 

MJ: 	 You have the right to the advice and assistance of counsel in exercising 

your post-trial and appellate rights and in making any decision to waive 

them. Do you understand? 

ACC: 

MJ: 	 Do you understand your post-trial and appellate rights? 

C 
GUIDE FOR GENERAL AND SPECIAL COURTS-MARTIAL App. 8, Note 104 

ACC: 


MJ: The court-martial is adjourned. 


[Note 104. In special courts-martial in which a bad-conduct discharge was not adjudged, the following 


advice should be given.] 


MJ: You have the right to submit matters to the convening authority before 

(he) (she) takes action on your case. These matters must be submitted to 

the convening authority within 20 days of today or within 7 days after you 

or your counsel receive a copy of the record, whichever is later. The 

convening authority may extend these periods for good cause. Do you 

understand? 

ACC: 

MJ: After the convening authority takes action, your case will be reviewed by 

a judge advocate for certain legal errors. You may submit, in writing, 

suggestions of legal error for consideration by the judge advocate and he 

or she must file a written response to each. Do you understand? 

ACC: 

MJ: After review by the judge advocate, and completion of any action by the 

general court-martial convening authority, if required, you may request 

the Judge Advocate General to take corrective action in your case. Such a ~ 

request must be filed within two years after the convening authority takes 

action unless you can show good cause for filing later. Do you understand? 

ACC: 

MJ: You have the right to the advice and assistance of counsel in the exercise 

of your post-trial rights. Do you understand? 

ACC: 

MJ: Do you understand your post-trial rights? 

ACC: 

MJ: The court-martial is adjourned. 
APPENDIX /

9 

GUIDE FOR SUMMARY COURTS-MARTIAL 

[General Note to SCM: It is not the purpose of this guide to answer all questions which may arise during a 

trial. When this guide, chapter 13 of the Rules for Courts-Martial, and other legal materials available fail to 

provide sufficient information concerning law or procedure, the summary court-martial should seek advice 

on these matters from a judge advocate. See R.C.M. 1301(b). If the accused has obtained, or wishes to 

obtain, defense counsel, see R.C.M. 1301(e). The SCM should examine the format for record of trial at 

appendix 15. It may be useful as a checklist during the proceedings to ensure proper preparation after trial. 

The SCM should become familiar with this guide before using it. Instructions for the SCM are contained in 

brackets, and should not be read aloud. Language in parentheses reflects optional or alternative language. 

The SCM should read the appropriate language aloud.] 

Preliminary Proceeding 

Identity of SCM SCM: 	 Iam . I have been detailed to conduct a summary courtmartial (by Summary Court-Martial Convening Order (Number 

) , Headquarters, ,dated [see convening order]). 

Referral of charges to trial 	 Charges against you have been referred to me for trial by summary courtmartial by ([name and title $convening authority]) on ([date ofreferral]) 

[see block IV on page 2 of charge sheet]. 

[Note 1. Hand copy of charge sheet to the accused.] 

Providing the accused with 	 I suggest that you keep this copy of the charge sheet and refer to it during 

charge sheet 	 the trial. The charges are signed by [see first name at top of page 2 of 

charge sheet], a person subject to the Uniform Code of Military Justice, 

as accuser, and are properly sworn to before a commissioned officer of the 

armed forces authorized to administer oaths. ( ordered the 

charges to be preferred.) The charges allege, in general, violation of 

Article, in that you -(and Article, in that you 

) . I am now going to tell you about certain rights you have in this 

trial. You should carefully consider each explanation because you will 

soon have to decide whether to object to trial by summary court-martial. 

Until I have completed my explanation, do not say anything except to 

answer the specific questions which I ask you. Do you understand that? 

ACC: 

Duties of SCM SCM: 	 As summary court-martial it is my duty to obtain and examine all the 

evidence concerning any offense(s) to which you plead not guilty, and to 

thoroughly and impartially inquire into both sides of the matter. I will call 

witnesses for the prosecution and question them, and I will help you in 

cross-examining those witnesses. I will help you obtain evidence and 

present the defense. This means that one of my duties is to help you 

present your side of the case. You may also represent yourself, and if you 

do, it is my duty to help you. You are presumed to be innocent until your 

guilt has been proved by legal and competent evidence beyond a reasonable doubt. If you are found guilty of an offense, it is also my duty to 

consider matters which might affect the sentence, and then to adjudge an 

appropriate sentence. Do you understand that? 

ACC: 
App. 9, Note 2 

Right to object to SCM SCM: 

ACC: 

Right to inspect allied papers SCM: 

and personnel records 

Witnesseslother evidence for the SCM: 

government 

Right to cross-examine 

ACC: 

Right to present evidence SCM: 

ACC: 

Evidence to be considered SCM: 

ACC: 

Right to remain silent SCM: 

Right to testify concerning the 

offense($) 

[Note 2. Use 

If one specification 

APPENDIX 9 

You have the absolute right to object to trial by summary court-martial. If 

you object the appropriate authority will decide how to dispose of the 

case. The charges may be referred to a special or general court-martial, or 

they may be dismissed, or the offenses charged may be disposed of by 

(nonjudicial punishment [if not previously offered and refused] or) administrative measures. [See R.C.M. 306.1 Do you understand that? 

You may inspect the allied papers and personnel records. [Hand those 

documents which are available to the accused for examination in your 

presence.] (You may also inpsect [identify personnel records or other 

documents which are not present] which are located at 

You may have time to examine these if you wish.) 

The following witnesses will probably appear and testify against you: 

.The following documents and physical evidence 

will probably be introduced: 

After these witnesses have testified in response to my questions, you may 

cross-examine them. If you prefer, I will do this for you after you inform 

me of the matters about which you want the witness to be questioned. Do 

you understand that? 

You also have the right to call witnesses and present other evidence. This 

evidence may concern any or all of the charges. (I have arranged to have 

the following witnesses for you present at the trial.) I will arrange for the 

attendance of other witnesses and the production of other evidence 

requested by you. I will help you in any way possible. Do you understand 

that? 

In deciding this case, I will consider only evidence introduced during the 

trial. I will not consider any other information, including any statements 

you have made to me, which is not introduced in accordance with the 

Military Rules of Evidence during the court-martial. Do you understand 

that? 

You have the absolute right during this trial to choose not to testify and to 

say nothing at all about the offense(s) with which you are charged. If you 

do not testify, I will not hold it against you in any way. I will not consider 

it as an admission that you are guilty. If you remain silent, I am not 

permitted to question you about the offense(s). 

However, if you choose, you may be sworn and testify as a witness 

concerning the offense@) charged against you. If you do that, I will 

consider your testimony just like the testimony of any other witness. 

the following if there is only one specification.] 

If you decide to testify concerning the offense, you can be questioned by 

me about the whole subject of the offense. Do you understand that? 

ACC: 


A9-2 
GUIDE FOR SUMMARY COURTS-MARTIAL 	 App. 9, Note 5 

[Note 3. Use the following if there is more than one specification.] 

If more than one specification SCM: If YOU decide to testify, you may limit your testimony to any particular 

offense charged against you and not testify concerning any other offense(~) charged against you. If you do this, I may question you about the 

whole subject of the offense about which you testify, but I may not 

question you about any offense(s) concerning which you do not testify. 

Do you understand that? 

ACC: 

Right to testify, remain silent or 

make an unsworn statement in 

extenuation and mitigation 

SCM: In addition, if you are found guilty of an offense, you will have the right to 

testify under oath concerning matters regarding an appropriate sentence. 

You may, however, remain silent, and I will not hold your silence against 

you in any way. You may, if you wish, make an unswom statement about 

such matters. This statement may be oral, in writing, or both. If you ' 

testify, I may cross-examine you. If you make an unsworn statement, 

however, I am not permitted to question you about it, but I may receive 

evidence to contradict anything contained in the statement. Do you 

understand that? 

ACC: 

Maximum punishment SCM: If I find you guilty (of the offense) (of any of the offenses charged), the 

maximum sentence which I am authorized to impose is: 

[Note 4. For an accused of a pay grade of E-4 or below, proceed as follows.] 

E-4 and below (1) reduction to lowest enlisted pay grade; and 

(2) forfeiture of two-thirds of 1 month's pay; and 

(3) confinement for 1 month (or, [if the accused is attached to or 

embarked in a vessel] to confinement on bread and water or diminished 

rations for 3 days and confinement for 24 days). 

[Note 5. For an accused of a pay grade above E-4, proceed as follows.] 

E-5 and above (1) reduction to the next inferior pay grade; and 

(2) forfeiture of two-thirds of 1 month's pay; and 

(3) restriction to specified limits for 2 months. 

SCM: Do you understand the maximum punishment which this court-martial is 

authorized to adjudge? 

ACC: 

Plea options SCM: You may plead not guilty or guilty to each offense with which you are 

charged. You have an absolute right to plead not guilty and to require that 

your guilt be proved beyond a reasonable doubt before you can be found 

guilty. You have the right to plead not guilty even if you believe you are 

guilty. Do you understand that? 

ACC: 

SCM: 	 If you believe you are guilty of an offense, you may, but are not required 

to, plead guilty to that offense. If you plead guilty to an offense, you are 

admitting that you committed that offense, and this court-martial could 

find you guilty of that offense without hearing any evidence, and could 

sentence you to the maximum penalty I explained to you before. Do you 

understand that? 

ACC: 
App. 9, Note 6 APPENDIX 9 

Lesser included offenses SCM: [Examine the list of lesser included offenses under each punitive article 

alleged to have been violated. See Part IV. If a lesser included offense 

may be in issue, give the following advice.] You may plead not guilty to 

Charge -, Specification , as it now reads, but plead 

guilty to the offense of , which is included in the offense 

charged. Of course, you are not required to do this. If you do, then I can 

find you guilty of this lesser offense without hearing evidence on it. 

Furthermore, I could still hear evidence on the greater offense for purposes of deciding whether you are guilty of it. Do you understand that? 

ACC: 

SCM: Do you need more time to consider whether to object to trial by summary 

court-martial or to prepare for trial? 

ACC: 

SCM: [If time is requested or otherwise appropriate.] We will convene the 

court-martial a t . When we convene, I will ask you whether you 

object to trial by summary court-martial. If you do not object, I will then 

ask for your pleas to the charge(s) and specification(s), and for you to 

make any motions you may have. 

Trial Proceedings 

Convene SCM: This summary court-martial is now in session. 

Objectionfconsent to trial by 

SCM 

SCM: Do you object to trial by summary court-martial? 

ACC: 

Entries on record of trial [Note 6 .If there is an objection, adjourn the court-martial and return the file to the convening authority. If 

the accused does not object, proceed as follows. The accused may be asked to initial the notation on the 

record of trial that the accused did or did not object to trial by summary court-martial. This is not required, 

however.] 

Readings of the charges SCM: Look at the charge sheet. Have you read the charge(s) and specification(~)? 

ACC: 

SCM: Do you want me to read them to you? 

ACC: 

[If accused requests, read the charge@) and specification(s).] 

Arraignment SCM: How do you plead? Before you answer that question, if you have any 

motion to dismiss (the) (any) charge or specification, or for other relief, 

you should make it now. 

ACC: 

Motions [Note 7. If the accused makes a motion to dismiss or to grant other relief, or such a motion is raised by the 

summary court-martial, do not proceed with the trial until the motions have been decided. See R.C.M. 

905-907, and R.C.M. 1304(b)(2)(c). After any motions have been disposed of and if termination of the trial 

has not resulted, have the accused enter pleas and proceed as indicated below.] 

Pleas ACC: I plead: 

[Note 8. If the accused refuses to plead to any offense charged, enter pleas of not guilty. If the accused 

refuses to enter any plea, evidence must be presented to establish that the accused is the person named in the 

specification(s) and is subject to court-martial jurisdiction. See R.C.M. 202, 1301(c).] 
GUIDE FOR SUMMARY COURTS-MARTIAL 	 App. 9, Note 11 

[Note 9. If the accused pleads not guilty to all offenses charged, proceed to the section entitled "Procedures-Not Guilty Pleas."] 

[Note 10. If the accused pleads guilty to one or more offenses, proceed as follows.] 

Procedures-guilty pleas SCM: 	 I will now explain the meaning and effect of your pleas, and question you 

so that I can be sure you understand. Refer to the charge(s) and specification(~).I will not accept your pleas of guilty unless you understand their 

meaning and effect. You are legally and morally entitled to plead not 

guilty even though you believe you are guilty, and to require that your 

guilt be proved beyond a reasonable doubt. A plea of guilty is the 

strongest form of proof known to the law. On your pleas of guilty alone, 

without receiving any evidence, I can find you guilty of the offense(s) to 

which you have pleaded guilty. I will not accept your pleas unless you 

realize that by your pleas you admit every element of the offense(s) to 

which you have pleaded guilty, and that you are pleading guilty because 

you really are guilty. If you are not convinced that you are in fact guilty, 

you should not allow anything to influence you to plead guilty. Do you 

understand that? 

ACC: 

SCM: 	 Do you have any questions? 

ACC: 

SCM: 	 By your pleas of guilty you give up three very important rights. (You keep 

these rights with respect to any offense(s) to which you have pleaded not 

guilty.) The rights which you give up when you plead guilty are: 

First, the right against self-incrimination. This means you give up the 

right to say nothing at all about (this) (these) offense(s) to which you have 

pleaded guilty. In a few minutes I will ask you questions about (this) 

(these) offense(s), and you will have to answer my questions for me to 

accept your pleas of guilty. 

Second, the right to a trial of the facts by this court-martial. This means 

you give up the right to have me decide whether you are guilty based upon 

the evidence which would be presented. 

Third, the right to be confronted by and to cross-examine any witnesses 

against you. This means you give up the right to have any witnesses 

against you appear, be sworn and testify, and to cross-examine them 

under oath. 

Do you understand these rights? 

ACC: 

SCM: 	 Do you understand that by pleading guilty you give up these rights? 

ACC: 

SCM: 	 On your pleas of guilty alone you could be sentenced to 

[Note 1 1. Re-read the appropriate sentencing section at notes 4 or 5 above unless the summary court-martial 

is a rehearing or new or other trial, in which case see R.C.M.810(d).] 

Do you have any questions about the sentence which could be imposed as 

a result of your pleas of guilty? 

ACC: 
App. 9, Note 12 	 APPENDIX 9 

SCM: 	 Has anyone made any threat or tried in any other way to force you to plead 

guilty? 

ACC: 

Retrial agreement SCM: 	 Are you pleading guilty because of any promises or understandings 

between you and the convening authority or anyone else? 

ACC: 

[Note 12. If the accused answers yes, the summary court-martial must inquire into the terms of such 

promises or understandings in accordance with R.C.M. 910. See Appendix 8, Note 35through acceptance 

of plea.] 

[Note 13. If the accused has pleaded guilty to a lesser included offense, also ask the following question.] 

Effect of guilty pleas to lesser SCM: DOYOU understand that your pleas of guilty to the lesser included offense 

included offenses of confess all the elements of the offense charged except 

,and that no proof is necessary to establish those elements 

admitted by your pleas? 

ACC: 

SCM: 	 The following elements state what would have to be proved beyond a 

reasonable doubt before the court-martial could find you guilty if you had 

pleaded not guilty. As I read each of these elements to you, ask yourself 

whether each is true and whether you want to admit that each is true, and 

then be prepared to discuss each of these elements with me when I have 

finished. 

The elements of the offense(s) which your pleas of guilty admit are 

[Note 14. Read the elements of the offense($ from the appropriate punitive article in Part IV. This advice 

should be specific as to names, dates, places, amounts, and acts.] 

Do you understand each of the elements of the offense(s)? 

ACC: 

SCM: 	 Do you believe, and admit, that taken together these elements correctly 

describe what you did? 

ACC: 

[Note 15. The summary court-martial should now question the accused about the circumstances of the 

offense(s) to which the accused has pleaded guilty. The accused will be placed under oath for this purpose. 

See oath below. The purpose of these questions is to develop the circumstances in the accused's own words, 

so that the summary court-martial may determine whether each element of the offense(s) is established.] 

Oath to accused for guilty plea SCM: DO you (swear) (affirm) that the statements you are about to make shall be 

inquiry the truth, the whole truth, and nothing but the truth (so help you God)? 

ACC: 

SCM: 	 Do you have any questions about the meaning and effect of your pleas of 

guilty? 

ACC: 

SCM: 	 Do you believe that you understand the meaning and effect of your pleas 

of guilty? 

ACC: 
Determination of providence of 

pleas of guilty 

Acceptance of guilty pleas 

If any not guilty pleas remain 

Witnesses for the accused 

Calling witnesses 

Witness oath 

GUIDE FOR SUMMARY COURTS-MARTIAL 	 App. 9, Note 20 

[Note 16. Pleas of guilty may not be accepted unless the summary court-martial finds that they are made 

voluntarily and with understanding of their meaning and effect, and that the accused has knowingly, 

intelligently, and consciously waived the rights against self-incrimination, to a trial of the facts by a courtmartial, and to be confronted by the witnesses. Pleas of guilty may be improvident when the accused makes 

statements at any time during the trial which indicate that there may be a defense to the offense(s), or which 

are otherwise inconsistent with an admission of guilt. If the accused makes such statements and persists in 

them after questioning, then the summary court-martial must reject the accused's guilty pleas and enter 

pleas of not guilty for the accused. Turn to the section entitled "Procedures-Not Guilty Pleas" and continue 

as indicated. If (the) (any of the) accused's pleas of guilty are found provident, the summary court-martial 

should announce findings as follows.] 

SCM: I find that the pleas of guilty are made voluntarily and with understanding 

of their meaning and effect. I further specifically find that you have 

knowingly, intelligently, and consciously waived your rights against selfincrimination, to a trial of the facts by a court-martial, and to be 

confronted by the witnesses against you. Accordingly, I find the pleas are 

provident, and I accept them. However, you may ask to take back your 

guilty pleas at any time before the sentence is announced. If you have a 

sound reason for your request, I will grant it. Do you understand that? 

ACC: 

[Note 17. If no pleas of not guilty remain, go to note 26. If the accused has changed pleas of guilty to not 

guilty, if the summary court-martial has entered pleas of not guilty to any charge(s) and specification(s), or 

if the accused has pleaded not guilty to any of the offenses or pleaded guilty to a lesser included offense, 

proceed as follows.] 

SCM: 	 If there are witnesses you would like to call to testify for you, give me the 

name, rank, and organization or address of each, and the reason you think 

they should be here, and I will arrange to have them present if their 

testimony would be material. Do you want to call witnesses? 

ACC: 

[Note 18. The summary court-martial should estimate the length of the case and arrange for the attendance 

of witnesses. The prosecution evidence should be presented before evidence for the defense.] 

SCM: 	 I call as a witness 

SCM: 	 [To the witness, both standing] Raise your right hand. 

Do you swear (or affirm) that the evidence you shall give in the case now 

in hearing shall be the truth, the whole truth, and nothing but the truth 

(, so help you God)? [Do not use the phrase, "so help you God," if the 

witness prefers to affirm.] 

WIT: 

SCM: 	 Be seated. State your full name, rank, organization, and armed force ([or 

if a civilian witness] full name, address, and occupation). 

WIT: 

[Note 19. The summary court-martial should question each witness concerning the alleged offense(s). 

After direct examination of each witness, the accused must be given an opportunity to cross-examine. If the 

accused declines to cross-examine the witness, the summary court-martial should ask any questions that it 

feels the accused should have asked. If cross-examination occurs, the summary court-martial may ask 

questions on redirect examination and the accused may ask further questions in recross-examination.] 

[Note 20. After each witness has testified, instruct the witness as follows.] 

SCM: 	 Do not discuss this case with anyone except the accused, counsel, or 

myself until after the trial is over. Should anyone else attempt to discuss 
App. 9, Note 21 

Recalling witnesses 

Presentation of defense case 

Closing argument 

Deliberations on findiigs 

Announcing the findings 

Not guilty of all offenses 

Guilty of all offenses 

Guilty of some but not all 

APPENDIX 9 

this case with you, refuse to do so and report the attempt to me immediately. Do you understand that? 

WIT: 

SCM: 	 [To the witness] You are excused. 

[Note21. Witnesses may be recalled if necessary. A witness who is recalled is still under oath and should be 

so reminded.] 

[Note 22. After all witnesses against the accused have been called and any other evidence has been 

presented, the summary court-martial will announce the following.] 

SCM: 	 That completes the evidence against you. I will now consider the evidence in your favor. 

[Note23. Witnesses for the accused should now be called to testify and other evidence should be presented. 

Before the defense case is terminated the summary court-martial should ask the accused if there are other 

matters the accused wants presented. If the accused has not testified, the summary court-martial should 

remind the accused of the right to testify or to remain silent.] 

SCM: 	 I have now heard all of the evidence. You may make an argument on this 

evidence before I decide whether you are guilty or not guilty. 

[Note 24. The court-martial should normally close for deliberations. If the summary court-martial decides 

to close, proceed as follows.] 

SCM: 	 The court-martial is closed so that I may review the evidence. Wait 

outside the courtroom until I recall you. 

[Note 25. The summary court-martial should review the evidence and applicable law. It must acquit the 

accused unless it is convinced beyond a reasonable doubt by the evidence it has received in court in the 

presence of the accused that each element of the alleged offense@) has been proved beyond a reasonable 

doubt. See R.C.M.918. It may not consider any facts which were not admitted into evidence, such as a 

confession or admission of the accused which was excluded because it was taken in violation of 

Mil.R.Evid. 304. The summary court-martial may find the accused guilty of only the offense(s) charged, a 

lesser included offense, or of an offense which does not change the identity of an offense charged or a lesser 

included offense thereof.] 

[Note 26. The summary court-martial should recall the accused, who will stand before the court-martial 

when findiigs are announced. All findings including any findings of guilty resulting from guilty pleas, 

should be announced at this time. The following forms should be used in announcing findings.] 

SCM: 	 I find you of (the) (all) Charge(s) and Specification(s): Not Guilty. 

I find you of (the) (all) Charge(s) and Specification(s): Guilty. 

1find you of (the) Specification ( ) of (the) Charge ( 1: 

offenses Not Guilty; of (the) Specification (-) of (the) Charge ( 1: 

Guilty; of (the) Charge (-): Guilty. 

Guilty of lesser included offense I find you of (the Specification ( ) of (the) Charge ( ): or with exceptions and Guilty, except the words -and ; (substituting therefor, substitutions respectively, the words -and ; ) of the excepted words: 

Not Guilty; (of the substituted words: Guilty;) of the Charge: (Guilty) 

(Not Guilty, but Guilty of a violation of Article -, UCMJ, a lesser 

included offense). 

Entry of findings 	 [Note 27. The summary court-martial shall note all findings on the record of trial.] 

Rocedure if total acquittal 	 [Note 28. If the accused has been found not guilty of all charges and specifications, adjourn the courtmartial, excuse the accused, complete the record of trial, and return the charge sheet, personnel records, 

allied papers, and record of trial to the convening authority.] 

Rocedure if any findings of [Note 29. If the accused has been found guilty of any offense, proceed as follows.] 

guilty 

A48 
GUIDE FOR SUMMARY COURTS-MARTIAL 	 App. 9, Note 34 

Presentence procedure SCM: 	 I will now receive information in order to decide on an appropriate 

sentence. Look at the information concerning you on the front page of the 

charge sheet. Is it correct? 

[Note 30. If the accused alleges that any of the information is incorrect, the summary court-martial must 

determine whether it is correct and correct the charge sheet, if necessary.] 

[Note 31. Evidence from the accused's personnel records, including evidence favorable to the accused, 

should now be received in accordance with R.C.M. 1001(b)(2). These records should be shown to the 

accused.] 

SCM: Do you know any reason why I should not consider these?. 

ACC: 

[Note 32. The summary court-martial shall resolve objections under R.C.M. 1002(b)(2) and the Military 

Rules of Evidence and then proceed as follows. See a1soR.C.M. 1001(b)(3),(4). and (5)concerning other 

evidence which may be introduced.] 

Extenuation and mitigation SCM: 	 In addition to the information already admitted which is favorable to you, 

and which I will consider, you may call witnesses who are reasonably 

available, you may present evidence, and you may make a statement. 

This information may be to explain the circumstances of the offense(s), 

including any reasons for committing the offense(s), and to lessen the 

punishment for the offense(s) regardless of the circumstances. You may 

show particular acts of good conduct or bravery, and evidence of your 

reputation in the service for efficiency, fidelity, obedience, temperance, 

courage, or any other trait desirable in a good servicemember. You may 

call available witnesses or you may use letters, affidavits, certificates of 

military and civil officers, or other similar writings. If you introduce such 

matters, I may receive written evidence for the purpose of contradicting 

the matters you presented. If you want me to get some military records 

that you would otherwise be unable to obtain, give me a list of these 

documents. If you intend to introduce letters, affidavits, or other documents, but you do not have them, tell me so that 1can help you get them. 

Do you understand that? 

ACC: 

Rights of accused to testify, SCM: I informed you earlier of your right to testify under oath, to remain silent, 

remain silent, and make an and to make an unsworn statement about these matters. 

Unswom statement 

SCM: Do you understand these rights? 

ACC: 

SCM: Do you wish to call witnesses or introduce anything in writing? 

ACC: 

[Note 33. If the accused wants the summary court-martial to obtain evidence, arrange to have the evidence 

produced as soon as practicable.] 

[Note 34. The summary court-martial should now receive evidence favorable to the accused. If the accused 

does not produce evidence, the summary court-martial may do so if there are matters favorable to the 

accused which should be presented.] 

SCM: Do you wish to testify or make an unsworn statement? 

ACC: 
App. 9, Note 35 APPENDIX 9 

Questions conceming pleas of 

guilty 

[Note 35. If as a result of matters received on sentencing, including the accused's testimony or an unswom 

statement, any matter is disclosed which is inconsistent with the pleas of guilty, the summary court-martial 

must immediately inform the accused and resolve the matter. See Note 16.1 

Argument on sentence SCM: You may make an argument on an appropriate sentence. 

ACC: 

Deliberations prior to 

announcing sentence 

[Note 36. After receiving all matters relevant to sentencing, the summary court-martial should normally 

close for deliberations. If the summary court-martial decides to close, proceed as follows.] 

Closing the court-martial SCM: This court-martial is closed for determination of the sentence. Wait 

outside the courtroom until I recall you. 

[Note 37. See Appendix 11 conceming proper form of sentence. Once the summary court-martial has 

determined the sentence, it should reconvene the court-martial and announce the sentence as follows.] 

Announcement of sentence SCM: Please rise. I sentence you to 

[Note 38. If the sentence includes confinement, advise the accused as follows.] 

SCM: You have the right to request in writing that [name of convening authority] 

defer your sentence to confinement. Deferment is not a form of clemency 

and is not the same as suspension of a sentence. It merely postpones the 

running of a sentence to confinement. 

[Note 39. Whether or not the sentence includes confinement, advise the accused as follows.] 

SCM: You have the right to submit in writing a petition or statement to the 

convening authority. This statement may include any matters you feel the 

convening authority should consider, a request for clemency, or both. 

This statement must be submitted within 7 days, unless you request and 

the convening authority approves an extension of up to 10days. After the 

convening authority takes action, your case will be reviewed by a judge 

advocate for legal error. You may suggest, in writing, legal errors for the 

judge advocate to consider. If, after final action has been taken in your 

case, you believe that there has been a legal error, you may request review 

of your case by the Judge Advocate General of . Do you 

understand these rights? 

ACC: 

Adjourning the court-martial SCM: This court-martial is adjourned. 

Entry on charge sheet [Note 40. Record the sentence in the record of trial, inform the convening authority of the findings, 

recommendations for suspension, if any, and any deferment request. If the sentence includes confinement, 

arrange for the delivery of the accused to the accused's commander, or someone designated by the 

commander, for appropriate action. Ensure that the commander is informed of the sentence. Complete the 

record of trial and forward to the convening authority.] 
APPENDIX 10 


FORMS OF FINDINGS 


a. Announcement offindings 

See R.C.M. 922. 

In announcing the findings the president or, in cases tried by military judge alone, the military judge 

should announce: 

"(Name of accused) , this court-martial finds you 39 

The findings should now be announced following one of the forms in b below, or any necessary 

modification or combination thereof. 

b. Forms 

[Note: The following may, in combination with the format for announcing the findings in a above, be used as a format for a findings 

worksheet, appropriately tailored for the specific case.] 

Forms of Findings 

I. Acquittal of all Charges 

Of all Specifications and Charges: Not Guilty 

II. Conviction of all Charges 

Of all Specifications and Charges: Guilty 

Ill. Conviction of all Specifications of some Charges 


Of all Specification(s) of Charge I: Guilty 


Of Charge I: Guilty 


Of all Specification(s) of Charge 11: Not Guilty 


Of Charge LI: Not Guilty 


IV. Conviction of some Specifications of a Charge 


Of Specification(s) -of Charge I: Guilty 


Of Specification(s)-of Charge I: Not Guilty 


Of Charge I: Guilty 


V. Conviction by exceptions 

Of (the) Specification (-) of Charge I: Guilty except the words " 9

$9. 

Of the excepted words: Not Guilty 

Of Charge I: (Guilty) (Not Guilty, but Guilty of a violation of Article -) 
App. lob APPENDIX 10 

VI. Conviction by exceptions and substitutions 

Of (the) Specification ( ' 19. 

9 

) of Charge I: Guilty except the words ","substituting therefor the words 

Of the excepted words: Not Guilty 

Of the substituted words: Guilty 

Of Charge I: (Guilty) (Not Guilty, but Guilty of a violation of Article 1 

VII. Conviction under one Charge of offenses under different Articles 

Of Specification 1of (the) Charge ( ) : Guilty, of Specification 2 of (the) Charge ( ) : Guilty, except the 

words " t 

Of (the) Charge ( ) , as to Specification 1: Guilty, as to Specification 2: Not Guilty, but Guilty of a violation of 

Article -. 
APPENDIX 11 


FORMS OF SENTENCES 


a. Announcement of sentence 

See R.C.M. 1007. 

In announcing the sentence, the president or, in cases tried by military judge alone, the military judge 

should announce: 

"(Name of accused) , this court-martial sentences you 9 3 

The sentence should now be announced following one of the forms contained in b below, or any necessary 

modification or combination thereof. Each of the forms of punishment prescribed in b are separate, that is, the 

adjudging of one form of punishment is not contingent upon any other punishment also being adjudged. The 

forms in c, however, may be combined and modified so long as the punishment adjudged is not forbidden by the 

code and does not exceed the maximum authorized by this Manual (see R.C.M. 1003 and Part IV) in the 

particular case being tried. In announcing a sentence consisting of combined punishments, the president or 

military judge may, for example, state: 

"To be dishonorably discharged from the service, to be confined for one year, to forfeit all pay and 

allowances, and to be reduced to Private, E.1;" or 

"To be discharged from the service with a bad-conduct discharge, to be confined for six months, and 

to forfeit $35.00 pay per month for six months;" or 

"To be dismissed from the service, to be confined for one year, and to forfeit all pay and allowances;" or 

"To perform hard labor without confinement for one month and to forfeit $25.00 pay per month for 

one month." 

b. Single punishment forms 

[Note: The following may, in combination with the format for announcing the sentence in a above, be used as a format for a sentence 

worksheet, appropriately tailored for the specific case.] 

1. To no punishment. 

Reprimand 

2. To be reprimanded. 

Forfeitures, Etc. 

3. To forfeit $ pay per month for (months) (years). 

4. To forfeit all pay and allowances. 

5. To pay the United States a fine of 

Loss of Numbers, Etc. 

6. To (lose unrestricted numbers) (be placed at the foot of the's list of present date and to 

remain there until you shall have lost unrestricted numbers) (lose unrestricted line officer 

running mate numbers). 

7. To lose month's seniority in the date of his warrant (as machinist) ( ), and to lose 

corresponding rank in the list of (machinists) ( ) of the (Navy) ( 1. 

$-. 
App. 11b APPENDIX 11 

Reduction of Enlisted Personnel 

8. To be reduced to 

Restraint and Hard Labor 

9. To be restricted to the limits of -for (days) (months). 

10. To perform hard labor without confinement for (days) (months). 

11. To be confined for (days) (months) (years) (the length of your natural life). 

12. To be confined on (bread and water) (diminished rations) for -days. 

Punitive Discharge 

13. To be discharged from the service with a bad-conduct discharge (Enlisted Personnel only). 

14. To be dishonorably discharged from the service (Enlisted Personnel and Warrant Officers only). 

15. To be dismissed from the service (Commissioned Officers only). 

Death 

16. To be put to death. 

[Note: A court-martial has no authority to suspendasentenceor any part of a sentence. Numbers 6 and 7 apply only in the Navy, Marine 

Corps, and Coast Guard.] 
APPENDIX 12 

MAXIMUM PUNISHMENT CHART 

This chart was compiled for convenience purposes only and is not the authority for specific punishments. See Part IV and R.C.M.1003 for specific limits and additional info

punishments. 

Article Offenses 	 Discharge Conjineme

77 	 Principals (see Part IV, 11 and pertinent offenses) 

78 	 Accessory after the fact (see Part IV, TI 3 .e.) 

79 Lesser included offenses (see Part IV, TI 2 and pertinent offenses) 


80 Attempts (see Part IV, TI 4.e.) 


8 1 	 Conspiracy (see Part IV, TI 5.e.) 

82 Solicitation 

If solicited offense committed, or attempted, see Part IV, TI 6.e. 

If solicited offense not committed: 

Solicitationtodesert* ..................................................................... DD,BCD 

Solicitation to mutiny* .................................................................... DD, BCD 

Solicitation to commit act of misbehavior before enemy* ........................................ DD, BCD 

Solicitation to commit act of sedition* ..................................................... DD, BCD 

83 	 Fraudulent enlistment, appointment .................................................................. DD, BCD 2 yrs. 

Fraudulent separation ............................................................................. DD, BCD 5 yrs. 

84 	 Effecting unlawful enlistment, appointment, separation .................................................. DD, BCD 5 yrs. 

85 Desertion 

Intent to avoid hazardous duty, shirk important service* ............................................. DD, BCD 

Other cases 

Terminatedby apprehension ................................................................ DD, BCD 

Othenviseterminated ..................................................................... DD, BCD 

86 Absence without leave, etc. 

Failure to go, going from place of duty ........................................................... None 1 

Absence from unit, organization, etc. 

Not more than 3 days ..................................................................... None 1 

Morethan3,notmorethan 30days ......................................................... None 6 

More than 30 days ....................................................................... BCD 1 yr. 

More than 30 days and terminated by apprehension ............................................. DD, BCD 1 yr., 61

Absence from guard or watch ................................................................... None 3 

Absence from guard or watch with intent to abandon ............................................... BCD 6 

Absence with intent to avoid maneuvers, field exercises ............................................. BCD 6 

1: 


?' 	 *Suspended in time of war d 

D 4 Article Wenses 	 Discharge Confine

+' 

N 87 Missing movement 

Throughdesign .............................................................................. DD,BCD 

2 yrs. 

Through neglect .............................................................................. BCD 1 yr. 

88 	 Contempt toward officials .......................................................................... Dismissal 1 yr. 

89 	 Disrespect toward superior commissioned officer ....................................................... BCD 1 yr. 

90 Assaulting, willfully disobeying superior commissioned officer 

Striking, drawing or lifting up any weapon or offering any violence toward superior commissioned officer in 

execution of duty* ............. :. ........................................................ DD, BCD 

Willfully disobeying lawful order of superior commissioned officer* .............................. DD, BCD 

Insubordinate conduct toward warrant, noncommissioned, petty officer 

Striking or assaulting: 

Warrant officer ........................................................................... DD, BCD 5 yrs. 

Superior noncommissioned officer ........................................................... DD, BCD 3 yrs. 

Other noncommissioned or petty officer ...................................................... DD, BCD 1 yr. 

Willfully disobeying: 

Warrant officer ........................................................................... DD, BCD 

Noncommissioned or petty officer ........................................................... BCD 

Contempt, disrespect toward: 

Warrant Officer .......................................................................... BCD 

Superior noncommissioned or petty officer .................................................... BCD 

Other noncommissioned or petty officer ...................................................... None 

92 Failure to obey order, regulation 

Violation, failure to obey general order or regulation** .............................................. DD, BCD 2 yrs. 

Violation, failure to obey other order** .......................................................... BCD 6 yrs. 

Dereliction in performance of duties 

Through neglect, culpable inefficiency ....................................................... None 

Willful ................................................................................. BCD 

93 	 Cruelty, maltreatment of subordinates ................................................................ DD, BCD 1 yr. 

94 	 BCD LifMutiny&sedition ...............................................................................Deaa,DD, 


95 Resisting apprehension, breach of arrest; escape 

Resisting apprehension ........................................................................ BCD 1 yr. 

Breaking arrest .............................................................................. BCD 

Escape from custody or confinement ............................................................. DD, BCD 1 yr. 

96 	 Releasing prisoner without proper authority ........................................................... DD, BCD 

Suffering prisoner to escape through neglect ........................................................... BCD 

Suffering prisoner to escape through design ........................................................... DD, BCD 

*Suspended in time of war 


**See paragraph 16e(l) & (2) Note, Part IV 

Article menses Discharge 

97 Unlawful detention ............................................................................... DD, BCD 


98 Noncompliance with procedural rules, etc. 

Unnecessary delay in disposition of case .......................................................... BCD 

Knowingly, intentionally failing to comply, enforce code ............................................ DD, BCD 

Misbehavior before enemy ....................................................................... 


Subordinate compelling surrender ................................................................. 


Improper use of countersign ...................................................................... 


Forcing safeguard .............................................................................. 


Captured, abandoned property; failure to secure, etc. 


Of value of $100.00 or less .................................................................... 


Ofvalueofmorethan$100.00 ................................................................. 


Looting,pillaging ................................................................................ 


Aiding the enemy .............................................................................. 


Misconductasprisoner ............................................................................ 


Death, DD, BCD 

Death, DD, BCD 

Death, DD, BCD 

Death, DD, BCD 

BCD 

DD,BCD 

DD,BCD 

Death, DD, BCD 

DD, BCD 

Spying .............................................................................. Mandatory Death, DD, BCD 


Falseofficialstatements ........................................................................... 


Military property; loss, damage, destruction, disposition 

Selling, otherwise disposing 

Of value of $100.00 or less ................................................................ Of value of more than $100.00 ............................................................. Any firem, explosive, or incendiary device .................................................. 

Damaging, destroying, losing or suffering to be lost, damaged, destroyed, sold, or wrongfully disposed: 

Through neglect, of a value of: 

$100.00 or less ...................................................................... More than $100.00 ................................................................... 

Willfully, of a value of: 

$100.00 or less ...................................................................... Morethan$100.00 ................................................................... Any firem, explosive, or incendiary device .............................................. 

Roperty other than military property of U.S.; loss, damage, destruction, disposition: 

Wasting, spoiling, destroying, or damaging property of value of: 

$100.00 or less .......................................................................... More than $100.00 ....................................................................... 

Hazarding a vessel 

Willfullyand wrongfully ..................................................................... Negligently ................................................................................. 

DD, BCD 

BCD 

DD, BCD 

DD, BCD 

None 

BCD 

BCD 

DD,BCD 

DD, BCD 

BCD 

DD, BCD 

Death,DD,BCD 

DD, BCD 

Confineme

6 m

1 yr. 

Life 

Life 

Life 

Life 

6 

5 yrs. 

Life 

Life 

Life 

Not applic

5 yrs. 

1 yr. 

10 yrs. 

10 yrs. 

6 

1 yr. 

1 yr. 


10 yrs. 


10 yrs. 


1 yr. 

5 yrs. 

Life 

2 yrs. 
p 

-L Article menses Discharge 

N 

Drunken driving 

Resulting in personal injury .................................................................... DD, BCD 1 

Other cases ................................................................................. BCD 

Drunk on duty ................................................................................... BCD 

Wrongful use, possession, etc. of controlled substances* 

-Wrongful use, possession, manufacture, or introduction of: 

-Amphetamine, cocaine, heroin, lysergic acid diethylamide, marijuana (except possession of less than 30 

grams or use), methamphetamine, opium, phencyclidine, secobarbital, and Schedule I, 11, and I11 

controlled substances .................................................................... DD, BCD 5 

-Marijuana (possession of less than 30 grams or use), phenobarbital, and Schedule IV and V controlled 

substances ............................................................................ DD, BCD 2 

-Wrongful distribution of, or, with intent to distribute, wrongful possession, manufacture, introduction, or 

wrongful importation of or exportation of: 

-Amphetamine, cocaine, heroin, lysergic acid diethylamide, marijuana, methamphetamine, opium, 

phencyclidine, secobarbital, and Schedule 1, 11, and I11 controlled substances ...................... DD, BCD 15 

-Phenobarbital and Schedule IV and V controlled substances .................................... DD, BCD 10 

Misbehavior of sentinel or lookout 

Intimeofwar .............................................................................. Death,DD,BCD 

In other time: 

While receiving special pay under 37 U.S.C. 310 .............................................. DD, BCD 10 

Other places ............................................................................. DD, BCD 1 

Dueling ........................................................................................ DD, BCD 

Malingering 

Feigning illness, etc. 

In time of war, or while receiving special pay under 37 U.S.C. 310 ............................... DD, BCD 3 

Other .................................................................................. DD, BCD 1 

Intentional self-inflicted injury 

In time of war, or while receiving special pay under 37 U.S.C. 310 ............................... DD, BCD 10 

Other .................................................................................. DD, BCD 5 

Riot ........................................................................................... DD, BCD 10 

Breach of peace .................................................................................. None 

Provokingspeech,gestures ......................................................................... None 

*When any offense under paragraph 37, Part IV, is committed while on duty, onboard a vessel or aircraft used by or under the 

control of the armed forces, or while receiving special pay under 37 U.S.C. 310, the maximum period of confinement and forfeiture of 

all pay and allowances is increased by 5 years. 
MAXIMUM PUNISHMENT CHART App. 12, Art. 128 

e e 

a a 


rid 

n n 
2 Article Discharge Conf

P Assaults (cont'dl 

Assault consummated by battery ................................................................ BCD 

Assault upon commissioned officer of U.S. or friendly power not in execution of office ................... DD, BCD 3 yrs. 

Assault upon warrant officer, not in execution of office .............................................. DD, BCD lyr., 

Assault upon noncommissoned or petty officer not in execution of office ................................ BCD 

Assault upon, in execution of office, person serving as sentinel, lookout, security policeman, military 

policeman, shore patrol, master at arms, or civil law enforcement ................................... DD, BCD 

Assault consummated by battery upon child under age of 16 yrs. ...................................... DD, BCD 

Assault with dangerous weapon or means likely to produce grievous bodily harm or death: 

Committed with loaded firearm ............................................................. DD, BCD 

Other cases ............................................................................. DD, BCD 

Assault in which grievous bodily harm is intentionally inflicted: 

With a loaded firearm ..................................................................... DD, BCD 

Othercases ............................................................................. DD, BCD 

Burglary ........................................................................................ DD, BCD 10 yrs. 

Housebreaking ................................................................................... DD, BCD 5 yrs. 

Perjury ......................................................................................... DD, BCD 5 yrs. 

Frauds against the United States 

Offenses under article 132(1) or (2) .............................................................. DD, BCD 

Offenses under article 132(3) or (4) 

$100.00 or less .......................................................................... BCD 

More than $100.00 ....................................................................... DD, BCD 5 yrs. 

Conduct unbecoming officer (see Part IV,pm. 58e) .................................................... Dismissal 1 yr.or as 

Abusing public animal ............................................................................ None 

Adultery ........................................................................................ DD, BCD 1 yr. 

Assault, indecent ................................................................................. DD, BCD 5 yrs. 

Assault 


-With intent to commit murder or rape .......................................................... DD, BCD 20 yrs. 

-With intent to commit voluntary manslaughter, robbery, sodomy, arson, or burglary .................... DD, BCD 10 yrs. 

-With intent to commit housebreaking .......................................................... DD, BCD 5 yrs. 

Bigamy ......................................................................................... DD, BCD 2 yrs. 

Bribery ......................................................................................... DD, BCD 15 yrs. 

Graft ........................................................................................... DD, BCD 2 yrs. 

Burningwithintenttodefraud ...................................................................... DD, BCD 10 yrs. 

Check, worthless, making and uttering-by dishonorably failing to maintain funds ........................... BCD 

Cohabitation, wrongful ............................................................................ None 

Correctional custody, escape from ................................................................... DD, BCD 1 yr. 

Correctional custody, breach of ..................................................................... BCD 

Debt, dishonorably failing to pay .................................................................... BCD 

Disloyal statements ............................................................................... DD, BCD 3 yrs. 
Discharge Confineme

134 Disorderly conduct 

-Under such circumstances as to bring discredit ................................................... 4 mos. 

None 

--Othercases ............................................................................... None 1 mo. 

Drunkenness 

-Aboard ship or under such circumstances as to bring discredit ...................................... None 3 mos. 

None 1 mo. 

Drunk and disorderly 

-Aboard ship ............................................................................... BCD 6 mos. 

-Under such circumstances as to bring discredit ................................................... None 6 mos. 

--Othercases ............................................................................... None 3 mos. 

Drinking liquor with prisoner ....................................................................... None 3 mos. 

Drunk prisoner ................................................................................ None ' 3 mos. 

Ihunkenness-incapacitating oneself for performance of duties through prior indulgence in intoxicating liquor or 

drugs ........................................................................................ None 3 mos. 

False or unauthorized pass offenses 

-Possessing or using with intent to defraud or deceive, or making, altering, counterfeiting, tampering with, or 

selling ............................................................................. DD, BCD 3 yrs. 

-All other cases ............................................................................. BCD 6 mos. 

False pretenses, obtaining services under 

--Of a value of $100.00 or less ................................................................. BCD 6 mos. 

~avalueofmorethan$l00.00.............................................................. DD, BCD 5 P. 

False swearing 3 P. 

................................................................................... DD, BCD 

Firearm, discharging-through negligence ............................................................ None 3 mos. 

Firearm, discharging-willfully, under such circumstances as to endanger human life ......................... DD, BCD 1 yr. 

Fleeing scene of accident .......................................................................... BCD 6 mos. 

Fraternization .................................................................................... Dismissal 2 yrs. 

Gambling with subordinates ........................................................................ None 3 mos. 

Homicide,negligent .............................................................................. BCD 1 yr. 

Impersonation 


-W~thintent to defraud ....................................................................... DD, BCD 3 yrs. 

-All other cases ............................................................................. BCD 6 rnos. 

Indecent act, liberties with child .................................................................... DD, BCD 7 yrs. 

Indecent exposure ................................................................................ None 6 mos. 

Indecent language 


--Communicatedtochildunder 16yrs. .......................................................... DD, BCD 2 yrs. 

DD, BCD 1 yr. 

Indecentactswithanother ......................................................................... DD, BCD 5 yrs. 

Jumping from vessel into the water .................................................................. BCD 6 mos. 

Kidnapping ..................................................................................... DD, BCD Life 

Mail, taking, opening, secreting, destroying, or stealing .............................................. DD, BCD 5 P. 

Mails, depositing or causing to be deposited obscene matters in ........................................ DD, BCD 5 yrs. 

Misprisonofseriousoffense ........................................................................ DD, BCD 3 yrs. 

Obstructing justice ................................................................................ DD, BCD 5 yrs. 
Article Offenses Discharge Confi

134 F'andering ....................................................................................... DD, BCD 5 yrs. 

Prostitution ...................................................................................... DD, BCD 1 yr. 

Farole, violation of ............................................................................... BCD 

Perjury, subornation of ............................................................................ DD, BCD 5 yrs. 

Prisoner, allowing to do unauthorized act ............................................................. None 3 

Public record, altering, concealing, removing, mutilating, obliterating, or destroying .......................... DD, BCD 3 yrs. 

Quarantine, breaking .............................................................................. None 

Refusing, wrongfully, to testify ..................................................................... DD, BCD 5 yrs. 

Requesting commission of an offense, wrongful communication of language ................................ None 4 

Restriction, breaking .............................................................................. None 

Seizure, destruction, removal, or disposal of property to prevent .......................................... DD, BCD lyr. 

Sentinel, lookout, offenses against or by .............................................................. None 

Soliciting another to commit an offense (see Part IV, para. 109e) 


Stolen property, knowingly receiving, buying, concealing 


Of a value of $100.00 or less ................................................................... BCD 

Of a value of more than $100.00 ................................................................ DD, BCD 3 yrs. 

Straggling ....................................................................................... None 

Threat, bomb, or hoax ............................................................................ DD, BCD 5 yrs. 

Threat, communicating ............................................................................ DD, BCD 3 yrs. 

Unlawfulentry ................................................................................... BCD 

Weapon,concealed,carrying ....................................................................... BCD 1 yr. 

Wearing unauthorized insignia, decoration, badge, ribbon, device, or lapel button ............................ None 
APPENDIX 13 


GUIDE FOR PREPARATION OF RECORD OF TRIAL BY GENERAL COURT- 


MARTIAL AND BY SPECIAL COURT-MARTIAL WHEN A VERBATIM RECORD IS 


NOT REQUIRED 


a. Record af trial 

Note. See first three notes at beginning of Appendix 14. If a verbatim record is not required (see R.C.M. 1103(b)(2)(C) and (c)(2)), a 

summarized report of testimony, objections, and other proceedings is permitted. In the event of an acquittal of all charges and specifications, or 

termination of the proceedings prior to findings by withdrawal, mistrial, or dismissal, the record may be further summarized and need only 

contain sufficient information to establish lawful jurisdiction over the accused and the offenses. See R.C.M. 1103(e). 

This appendix is to be used as a general guide; the actual record may depart from it as appropriate. The 

manner of summarizing several items of procedure is shobvn in Appendix 14a. 

Note. All records of trial should begin as follows: 

Title 

RECORD OF TRIAL 

of 

mame-last, first, middle initial) 	 (Service No.) (Grade) 

(Organization and armed force) 	 (Station or ship) 

Convened by 

(Title of convening authority) 

(Command of convening authority) 

Tried at 

on 	 1 9-

(Place or places of hid) 	 (Date or dates of trial) 

Copies of Record 

Copies of record copy of record furnished the accused as per attached certificate or 

receipt. copy(ies) of record forwarded herewith. 

RECEIPT FOR COPY OF RECORD 

Receipt for record 	 I hereby acknowledge receipt of a copy of the above-described record of trial, 

delivered to me at this day of , 

19 

(Signature of accused or defense counsel) 

(Name of accused or defense counsel) 

Note. See R.C.M. 1104(b)(l) concerning service of record on the accused or defense counsel. 
App. 138 APPENDIX 13 

Certificate in lieu of receipt 

Article 39(a) session 

Convening orders 

Time of session 

CERTIFICATE 

, 19 

(Place) (Date) 

I certify that on this day delivery of a copy of the above-described record of trial was 

made to the accused, 

,at ,by (Name of accused) (Place of delivery) 

(means of effecting delivery, i.e., mail, messenger, etc.) 

and that the receipt of the accused had not been received on the date this record was 

forwarded to the convening authority. The receipt of the accused will be forwarded as 

soon as it is received. 

(Signature of trial counsel) 

(Name of hid counsel) 

Note. If accused's defense counsel receives the record, the trial counsel must attach an explanation to the record. See R.C.M. 1104(b)(l)(C). The following format may be used: 

The accused's defense counsel was served the accused's copy of the record because 

(the accused so requested in a written request, which is attached) (the accused so 

requested on the record at the court-martial) (the accused was transferred to 

) (the accused is absent without authority) ( ). 

(Signature of trial counsel) 

(Name of aial counsel) 

Note. If the accused cannot be served and has no counsel to receive the record, anexplanation for 

failure to serve the record will be attached to the record. See R.C.M. 1104(b)(l)(C). The following format 

may be used: 

The accused was not served a copy of this record because the accused (is absent 

without authority) ( ). Accused has no defense counsel to receive the 

record because (defense counsel has been excused under R.C.M. 505(d)(2)(B)) 

LSignature of trial counsel) 

(Name of hial counsel) 

PROCEEDINGS OF A COURT-MARTIAL ARTICLE 39(a) 

SESSION. The summarized record of an Article 39(a) session should proceed as 

follows: 

Note. If trial was before a special court-martial without a military judge, there will have been no 

Article 39(a) session. However, generally the same sequence will be followed except as noted below. In 

special courts-martial without a military judge, substitute "president" for "military judge" when it 

appears, and "court-mattial" for "Article 39(a) session." 

The military judge called the Article 39(a) session to order (at) (on board) 

,at hours, 19-, pursuant to the 

following orders: 

Note. Here insert a copy of the convening orders and copies of any amending orders. Any written 

orders detailing the military judge and counsel will be attached. Any request of an enlisted accused for 

enlisted members will be inserted immediately following the convening orders, together with any 

declaration of the nonavailability of such enlisted persons. Any written request for trial by the military 

judge alone will also be inserted at this point. See R.C.M. 503(a)(2), 903. 

Note. The reporter should note and record the time and date of the beginning and ending of each 

session of the court-martial. For example: 

The session was called to order at -hours, 19 


The session (adjourned) (recessed) at -hours, 1 9 . 


A13-2 
Military judge, counsel, and 

members present and absent 

Accused and defense counsel 

present 

Swearing reporter; interpreter 

Qualification of trial counsel 

Prior participation of trial 

counsel 

Qualification of defense counsel 

Prior participation of defense 

counsel 

Inquiry concerning Article 38(b) 

Personnel sworn 

Challenge: military judge 

Request for trial by military 

judge alone 

GUIDE FOR PREPARATION OF RECORD App. 13a 

PERSONS PRESENT 

Note. Here list the names of the military judge, counsel, accused, and members if present. 

PERSONS ABSENT 

Note. The names of the members need not be listed if members are not present. The absence of 

other detailed persons should be noted. The record should include any reasons given for the absence of 

detailed persons. If the accused was questioned about the absence of any detailed defense counsel, this 

inquiry should be summarized at the point in the record at which such inquiry occurred. 

The accused and the following (detailed defense counsel and associate or assistant 

defense counsel) (civilian or individual military counsel) were present: 

The following detailed (reporter) (and) (interpreter) (was) (were) (had previously 

been) sworn: 

Note. Applicable only when a reporter or interpreter is used. 

The trial counsel announced the legal qualifications and status as to oaths of all 

members of the prosecution (and that (he) (they) had been detailed by 1. 

The trial counsel further stated that no member of the prosecution had acted in a 

manner which might tend to disqualify (him) (her) except as indicated below. 

Note. If a member of the prosecution is unqualified or disqualified under R.C.M. 502(d) that will 

be shown, together with the action taken under R.C.M. 901(d). Any inquiry or hearing into the matter 

should be summarized. 

The detailed defense counsel announced the legal qualifications and status as to oaths 

of all members of the defense (and that he (and ) had been detailed by 

1. 

Note. Legal qualifications of any civilian or individual military counsel will be shown. 

The defense counsel stated that no member of the defense had acted in a manner which 

might tend to disqualify (him) (her) except as indicated below. 

Note. If a member of the defense is unqualified or disqualified under R.C.M. 502(d), the record 

will show that fact and the action taken under R.C.M. 901(d). Any inquiry or hearing into the matter should 

be summarized. 

The military judge informed the accused of the rights concerning counsel as set forth 

in Article 38(b) and R.C.M. 901(d). 

The accused responded that helshe understood the rights with respect to counsel, and 

that helshe chose to be defended by 

The military judge and the personnel of the prosecutian and defense who were not 

previously sworn in accordance with Article 42(a) were sworn. The prosecution and 

each accused were extended the right to challenge the military judge for cause. 

The military judge was (not) challenged for cause (by ) (on the ground that 

Note. The record should show the grounds for the challenge, a summary of evidence presented, if 

any, and the action taken. 

The military judge ascertained that the accused had been advised of his right to 

request trial by the military judge alone and that the accused did (not) desire to submit 

such a request. 
App. 13a 

Request for enlisted members 

Convening authority identified 

Arraignment 

Motions 

Pleas 

Guilty plea inqu~ry 

APPENDIX 13 

Note. If the accused requests trial by the military judge alone, any written request will be 

included in the record. The action on the request, whether oral or written, should be indicated as follows: 

After ascertaining that the accused had consulted with defense counsel and had been 

informed of the identity of the military judge and of the right to trial by members, the 

military judge (approved) (disapproved) the accused's request for trial by military 

judge alone. 

Note. If the military judge announced at this point that the court-martial was assembled, the 

record should so reflect. If assembly was announced at a different point it should be so shown in the record. 

Note. If the military judge disapproved the accused's request, this fact and any reasons given for 

the disapproval should be summarized. 

Note. If the accused did not submit, or the military judge disapproved, a request for trial by 

military judge alone, and if the accused is an enlisted person, the following should be included: 

The trial counsel announced that the accused had (not) made a request in writing that 

the membership of the court-martial include enlisted persons. The defense counsel 

announced that the accused had been advised of the right to request enlisted members 

and that the accused did (not) want to request enlisted members. 

Note. If the accused did request enlisted members, the written request will be included in the 

record. 

(Name, rank, and organization of convening authority) convened the court-martial 

and referred the charges and specifications to it. 

Note. In a special court-martial without a military judge, ordinarily the examination and 

challenges of members would occur at this point. The format used below for examination and challenges 

may be inserted here as appropriate. 

The accused was arraigned on the following charges and specifications: 

Note. Here insert the original charge sheet. If there are not enough copies of the charge sheet to 

insert in each copy of the record, copy verbatim from the charge sheet the charges and specifications, and 

the name of the accuser, the affidavit, and the reference to the court-martial for trial. 

Note. If any motions were made at arraignment, the substance of the motion, a summary of any 

evidence presented concerning it, and the military judge's ruling will be included in the record. Motions or 

objections made at other times in the court-martial should be similarly treated at a point in the record 

corresponding to when they were raised. 

The accused pleaded as follows: 


To all the Specifications and Charges: (Not Guilty) (Guilty) 


To Specification 1 of Charge I: (Not Guilty) (Guilty) 


To Specification 2 of Charge I: (Not Guilty) (Guilty) 


To Charge I: (Not Guilty) (Guilty) 


etc. 

Note. If the accused pleads guilty the plea inquiry should be summarized. The following may be 

used as a guide. 

The military judge inquired into the providence of the accused's pleas of guilty. The 

military judge informed the accused of: the right to counsel [if the accused had no 

counsel]; of the right to plead not guilty and to be tried by court-martial and that at 

such court-martial the accused would have the right to confront and cross-examine 

witnesses against the accused and the right against self-incrimination; that by pleading guilty the accused waived the rights to trial of the offense(s), to confront and crossexamine witnesses, and against self-incrimination; and that the military judge would 

question the accused, under oath, about the offense@) to which the accused pleaded 

guilty and that if the accused answered those questions under oath, on the record, and 
-- - 

GUIDE FOR PREPARATION OF RECORD ~pp.13a 

in the presence of counsel, the accused's answers could be used against the accused in 

a prosecution for perjury or false statement. The accused stated that helshe understood 

these rights. 

The military judge questioned the accused and determined that the plea(s) of guilty 

(was) (were) voluntary and not the result of force or threats or of promises (other than 

those in the pretrial agreement). The military judge informed the accused of the 

elements of the offense(s) and the maximum punishment which could be imposed for 

(this) (these) offense(s). The accused stated that heishe understood. 

The military judge asked the accused about the offense(s) to which the accused 

pleaded guilty. Under oath the accused stated as follows: 

Note. Here summarize the accused's description of the offense(s). 

The military judge ascertained that there was (not) a pretrial agreement in the case. 

Note. If there was a pretrial agreement, the military judge's inquiry into it should be summarized. 

The following may be used as a guide: 

The pretrial agreement was marked as Appellate Exhibit(s) . (The military 

judge did not examine Appellate Exhibit -at this time.) The military judge 

inquired and ensured that the accused understood the agreement and that the parties 

agreed to its terms. 

Note. If there was a question or dispute as to the meaning of any term in the agreement, the 

resolution of that matter should be described. 

Note. If the accused entered a conditional guilty plea (see R.C.M. 910(a)(2)), this will be 

included in the record. 

The military judge found the accused's pleas of guilty provident and accepted them. 

Note. If findings were entered (see R.C.M. 910(g)) on any charges and specifications at this 

point, the record should so reflect. See FINDINGS below for format. 

Note. If the accused pleaded not guilty to any charge(s) and specification(s) which were not 

dismissed or withdrawn, in trial before military judge alone, proceed with PRESENTATION OF PROSECUTION CASE. If the accused pleaded guilty to all charge(sj and specification(s) in trial before military 

judge alone, proceed with SENTENCING PROCEEDINGS below. If trial was before members proceed 

with INITIAL SESSION WITH MEMBERS below. 

Note. If the court-martial recessed, closed, or adjourned, or if an Article 39(a) session terminated 

and a session of the court-martial begins, the record should indicate the time of the recess, closing, or 

adjournment, and the time of reopening, using the following formats: For example: 

The Article 39(a) session terminated at hours, 19 


The court-martial (recessed) (adjourned) (closed) at hours, 


Note. Whenever the court-martial reopens after a recess or adjornment, or after being closed, the 

record should indicate whether any party, member, or the military judge previously present was absent, or, 

if not previously present, was now present. Persons present for the first time should be identified by name. 

For example: 

The military judge and all parties previously present were again present. (The 


following members were also present .) The members were 


(not) present. 


The military judge and all parties previously present were again present, except 


Captain Smith, detailed defense counsel who had been excused by 


Captain John T. Brown, JAGC, U.S. Army, certified in accordance with Article 27(b) 


was present as individual military counsel, and was previously sworn. 

App. 13a APPENDIX 13 

INITIAL SESSION WITH MEMBERS 

Members sworn 

Preliminary instructions 

Announcement of pleas 

Opening statement 

Testimony 

Note. Except in a special court-martial without a military judge, ordinarily members will be first 

present at this point. In a special court-martial without a military judge, ordinarily the members will be 

sworn and examined immediately after the accused has been afforded the opportunity to request enlisted 

members. In such cases, the following matters should be inserted at the appropriate point in the record. 

The members of the court-martial were sworn in accordance with R.C.M. 807. 

Note. If the military judge announced at this point that the court-martial was assembled, the 

record should so reflect. If assembly was announced at a different point, it should be so shown in the record. 

Note. If the military judge gave preliminary instructions to members, this should be stated at the 

point at which they were given. 

The military judge instructed the members concerning their duties, the conduct of the 

proceedings, (___ ). 

Note. If counsel examined the members concerning their qualifications, the record should so 

state. If any member was challenged for cause, the grounds for challenge should be summarized. In 

addition, when a challenge is denied, the challenged member's statements concerning the matter in 

question should be summarized in the record. For example: 

Trial and defense counsel examined the members concerning their qualifications. 


Major James, member, was questioned concerning her attitude about the offense 


charged, and stated, under oath as follows: 


The offense charged is, in my opinion, very serious, and worthy of a punitive 


discharge. My mind is not made up. I would consider all the evidence and the 


instructions of the military judge before deciding on an appropriate sentence. 


The defense challenged Major James for cause. The challenge was denied. 


Neither side had any further challenges for cause. The trial counsel challenged 


Captain Green peremptorily. 


The defense counsel challenged Major James peremptorily (and stated that it would 


have challenged another member had the challenge of Major James for cause been 


sustained). 


Major James and Captain Smith were excused and withdrew from the courtroom. 


Note. If any part of the examination of members is done outside the presence of other members, 

this should be stated in the record. If challenges are made at an Article 39(a) session this should be stated in 

the record. 

Note. If the accused was arraigned at an Article 39(a) session, ordinarily the military judge will 

have announced at this point to the members how the accusedpleaded to the charges and specifications, and 

the record should so state. If the pleas were mixed and the members were not made aware at this point of the 

offense(s) to which the accused pleaded quilty the record should so state. 

The military judge informed the members that the accused had entered pleas of (Not 

Guilty) (Guilty) to (the) (all) Charge(s) and Specification(s) ( 1. 

PRESENTATION OF PROSECUTION CASE 

The trial counsel made (an) (no) opening statement. The defense counsel made (an) 

(no) opening statement at this time. 

Note. The record will contain a summary of the testimony presented. An example of the manner 

in which testimony may be summarized follows: 

The following witnesses for the prosecution were sworn and testified in substance as 

follows: 

Sgt. Richard Roe, Co. C, 1st Bn., 31st Inf, Fort Sill, Oklahoma. 
GUIDE FOR PREPARATION OF RECORD App. 13a 

Objection and ruling 

Stipulation 

Opening statement 

Closing argument 

Instructions 

Closing 

DIRECT EXAMINATION 

I know the accused, Sam Snooker, who is in the military service and a member of my 

company. We both sleep in the same barracks. When I went to bed on the night of 

October7, 1984,I put my wallet under my pillow. The wallet had $7.00 in it; a $5.00 

bill and two $1 .OO bills. Sometime during the night something woke me up but I 

turned over and went to sleep again. When I woke up the next morning, my wallet was 

gone. 

CROSS-EXAMINATION 

I don't know the serial numbers on any of the bills. One of the $1 .OO bills was patched 

together with scotch tape and one of the fellows told me that the accused had used a 

$1.OO bill just like that in a poker game the day after my wallet was missing. 

Upon objection by the defense, so much of the answer of the witness as pertained to 

what he had been told was stricken. 

The trial counsel offered in evidence a stipulation of fact entered into between the trial 

counsel, defense counsel, and the accused. The military judge ascertained that the 

accused understood and consented to the stipulation. It was admitted as Prosecution 

Exhibit 1. 

PRESENTATION OF DEFENSE CASE 

The defense counsel made (an) (no) opening statement. The following witnesses for 

the defense were sworn and testified in substance as follows: 

EVIDENCE IN REBUTTAL, SURREBUTTAL 

WITNESSES CALLED BY THE COURT-MARTIAL 

The trial counsel made (an) (no) argument. 


The defense counsel made (an) (no) argument. 


The trial counsel made (an) (no) argument in rebuttal. 


The military judge instructed the members in accordance with R.C.M. 920, including 

the elements of each offense, (and of the lesser included offense(s) of 

,) (the defense(s) of ,) (the following evidentary matters ,) the presumption of innocence, reasonable doubt, and burden of 

proof as required by Article 5 l(c), and on the procedures for voting on the findings 

worksheet. (The members were given Appellate Exhibit, findings worksheet.) (The members were given Appellate Exhibit, a copy of the military 

judge's instructions.) (There were no objections to the instructions or requests for 

additional instructions.) 

Note. If any party requested instructions which were not given, or objected to the instructions 

given, these matters should be summarized in the record. 

The court-martial closed at -hours, 19 

The court-martial reopened at -hours, 1 9 . 

Note. If the mitilary judge examined a findings worksheet and gave additional instructions, these 

should be summarized. 
App. 13a 

Findings by members 

Findings by military judge alone 

Announcement 

Data as to service 

Introduction of exhibits 

Inquiry of accused 

APPENDIX 13 

FINDINGS 

The president announced that the accused was found: 

Of all Charges and Specifications: (Not Guilty) (Guilty) 


Of Specification 1 of Charge I: (Not Guilty) (Guilty) 


Of Specification 2 of Charge I: (Not Guilty) (Guilty) 


Of Charge I: (Not Guilty) (Guilty) 


Of the Specification of Charge II: Not Guilty 


Of Charge 11: Not Guilty 


etc. 

Note. In trial by the military judge alone, there would be no instructions given, but the military 

judge may make general and special findings. Any request for special findings should be summarized, and 

if submitted in writing, the request should be attached as an appellate exhibit. The general findings must be 

announced in open session with all parties present and may be recorded in the record in the following form, 

together with any special findings announced at that time: 

The military judge announced the following general (and special) findings (and 

directed that be appended to the record as Appellate Exhibit) (and stated that the special findings would be furnished to the 

reporter prior to authentication for insertion in the record as Appellate Exhibit 

1: 

Of all the Specifications and Charges: Guilty 

Of the Specification of Charge I: Guilty 

Of Charge I: Guilty 

Of the Specification of Charge 11: Not Guilty 

Of Charge 11: Not Guilty 

Note. A11 general findings should be recorded as indicated above. Special findings delivered 

orally should be summarized. Any written findings, opinion or memorandum of decision should be 

appended to the record as an appellate exhibit and copies furnished to counsel for both sides. 

Note. If the accused was acquitted of all charges and specifications, proceed to adjoununent. 

SENTENCING PROCEEDINGS 

The trial counsel presented the data as to pay, service, and restraint of the accused as 

shown on the charge sheet. There were no objections to the data. 

The trial counsel offered Prosecution Exhibits 1, 2, and 3 for identification, matters 

from the accused's personnel records. (The defense did not object.) (The defense 

objected to Prosecution Exhibit 3for identification on grounds that it was not properly 

authenticated.) (The objection was (overruled) (sustained).) 

(Prosecution Exhibits 1, 2, and 3 were (not) received in evidence.) 

Note. If the prosecution presented evidence in aggravation or of the accused's rehabilitative 

potential, this evidence should be summarized here, in the same way as evidence on the merits, above. 

The military judge informed the accused of the right to present matters in extenuation 

and mitigation, including the right to make a sworn or an unsworn statement or to 

remain silent. In response to the military judge the accused stated that helshe chose to 

(testify) (make an unsworn statement) (remain silent). 

Note. If the defense calls witnesses in extenuation and mitigation, the testimony should be 

summarized in the record. If the accused makes an oral unsworn statement, personally or through counsel, 

this should be shown and the matters contained in the statement summarized. 
I 

GUIDE FOR PREPARATION OF RECORD 	 App. 13b 

Argument 	 The prosecution made (an) (no) argument on sentence. The defense made (an) (no) 

argument on sentence. 

Instructions 	 The military judge instructed the members that the maximum punishment which 

could be adjudged for the offense(s) of which the accused had been found guilty was: 

. The military judge also instructed the members concerning the procedures for voting, the responsibility of the members, and the matters 

the members should consider, in accordance with R.C.M. 1005(e). (The members 

were given Appellate Exhibit, a sentence worksheet.) (The members were 

given Appellate Exhibit, a copy of the military judge's instructions.) (There 

were no objections to the instructions or requests for additional instructions.) 

Note. If any party requested instructions which were not given, or objected to the instructions 

given, these matters should be summarized in the record. 

Note. If, in trial before military judge alone, the military judge announces what the military judge 

considers to be the maximum punishment, the stated maximum should be recorded. 

Closing 	 The court-martial closed ,at hours, 19 

Reopening 	 The court-martial reopened at hours, 19 

Note. If the military judge examined a sentencing worksheet and gave additional instructions, 

these should be summarized. 

Announcement 	 The (military judge) (president) announced the following sentence: 

Note. If trial was by military judge alone and there was a pretrial agreement, ordinarily the 

military judge will examine any sentence limitation after announcing the sentence. Any inquiry conducted 

at this point should be summarized. 

Pretrial agreement 	 The military judge examined Appellate Exhibit. The military judge 

stated that, based on the sentence adjudged, the convening authority (was obligated, 

under the agreement to approve no sentence in excess of ) (could 

approve the sentence adjudged if the convening authority so elected) ( ). 

Note. The military judge must inform the accused of the accused's post-trial and appellate rights. 

See R.C.M. 1010. The following is an example: 

Advice concerning post-trial and 	 The military judge informed the accused of: the right to submit matters to the 

appellate rights 	 convening authority to consider before taking action; (the right to have the case 

examined in the office of the Judge Advocate General and the effect of waiver or 

withdrawal of such right;) the right to apply for relief from the Judge Advocate 

General; and the right to the advice and assistance of counsel in the exercise of the 

foregoing rights or any decision to waive them. 

Adjournment 	 The court-martial adjourned a: 	 hours, 19 

b. Examination of record by defense counsel 

Note. When the defense counsel has examined the record of trial before authentication the 

following form is appropriate: 

Form 	 "I have examined the record of trial in the foregoing case. 

(Captain) (Lieutenant) , Defense Counsel" 

Note. If the defense counsel was not given the opportunity to examine the record before 

authentication, the reasons should be attached to the record. See R.C.M. 1103(i)(l)(B). 
-- - 

App. 13c APPENDIX 13 

c. Authentication of record of trial 

19 

Military judge (1) By general or special court-martial with members and a military judge 

(Captain) (Colonel) ,Military Judge [or (LTJG) 

(1 LT) ,Trial Counsel, because of (death) (disability) (absence) 

of the military judge.] [or (LCDR) (Major) ,a member in lieu 

of the military judge and the trial counsel because of (death) (disability) (absence) of 

the military judge and of (death) (disability) (absence) of the trial counsel.] 

(2) By general or special court-martial consisting of only a military judge 

Military Judge 

(Captain) (Colonel) , Military Judge [or (LTJG) (1 LT) 

, Trial Counsel, because of (death) (disability) (absence) of the military judge.] [or the court reporter in lieu of the military judge and trial counsel 

because of (death) (disability) (absence) of the trial counsel.] 

President (3) By special court-martial without a military judge 

[(CDR) (LTc) , President [or (LTJG) (1 LT) . Trial 

Counsel, because of (death) (disability) (absence) of the president.] [or (LT) (CPT) 

,a member in lieu of the president and the trial counsel because of 

(death) (disability) (absence) of the trial counsel.] 

Note. If the rank of any person authenticating the record has changed since the court-martial, the 

current rank should be indicated, followed by "formerly 

d. Exhibits. See R.C.M. 1 103(b)(2)(D) 

Note. Following the end of the transcript of the proceedings, insert any exhibits which were 

received in evidence, or, with the permission of the military judge, copies, photographs, or descriptions of 

any exhibits which were received in evidence and any appellate exhibits. 

e. Attachments 

Note. Attach to the record the matters listed in R.C.M. 1103(b)(3). 

j Certificate of correction 

Note. See Appendix 14f: 
APPENDIX 14 


GUIDE FOR PREPARATION OF RECORD OF TRIAL BY GENERAL COURT- 


MARTIAL AND BY SPECIAL COURT-MARTIAL WHEN A VERBATIM RECORD IS 


REQUIRED 


a. Record of trial 

Note. Erasures or interlineations should be initialed by those who authenticate the record. 

Pages will be numbered at the bottom; margins of 1 % inches will be left at the top to permit binding, and 1 

inch at the bottom and left side of each page, using 8%x 11 inch paper. 

Words on the margins of this appendix are not part of the form of record. 

As a general rule, all proceedings in the case should be recorded verbatim. See R.C.M. 1103. 

This appendix is not a complete record of trial. It is to be used by the reporter and trial counsel as a guide in 

the preparation of the completed record of trial in all general and special court-martial cases in which a verbatim 

record is required. 

RECORD OF TRIAL 

of 

(Name-last, first, middle initial) (Service No.) (Rankor grade) 

(Organization and armed force) (Station or ship) 

Convened by 

(l?tle of convening authority) 

(Command of convening authority) 

on 19 

(Place or places of trial) (Date or dates of trial) 

Note. The title should be followed by an index. The form for this index will be as prescribed in 

publications of the Secretary concerned. However, it should cover important phases of the trial, witnesses who 

testified, and exhibits that are appended to the record. 

COPIES OF RECORD 

Copies of record copy of record furnished the accused as per attached certificate 

or receipt. 

copies of record forwarded herewith. 
App. 14a APPENDIX 14 

RECEIPT FOR COPY OF RECORD 


Receipt for record 

Certificate in lieu of receipt 

Convening orders 

I hereby acknowledge receipt of a copy of the above-described record of trial, 

delivered to me at this day of 

(Signature of accused) 

(Name of accused) 

CERTIFICATE 

19 

(Place) (Date) 

I certify that on this day delivery of a copy of the above-described record of trial was 

made to the accused, , (Name of accused) 

at 

(Place of delivery) by (Means of effecting delivery, i.e., mail, 

messenger, etc.) 

and that the receipt of the accused had not been received on the date this record was 

forwarded to the convening authority. The receipt of the accused will be forwarded as 

soon as it is received. 

(Signature of trial counsel)

(Name of mal counsel) 

Note. If the accused's defense counsel receives the record, the trial counsel must attach an 

explanation to the record. See R.C.M. 1104(b)(l)(C). The following format may be used: 

The accused's defense counsel was served the accused's copy of the record because 

(the accused so requested in a written request, which is attached) (the accused so 

requested on the record at the court-martial) (the accused was transferred to 

) (the accused is absent without authority) ( 1. 

(Signature of trial counsel) 

(Name of hialcounsel) 

Note. If the accused cannot be served and has no counsel to receive the record, an explanation for 

failure to serve the record will be attached to the record. See R.C.M. 1104(b)(l)(C). The following format 

may be used: 

The accused was not served a copy of this record because the accused (is absent 

without authority) ( ). Accused has no defense counsel to receive the 

record because (defense counsel has been excused under R.C.M. 505(d)(2)(B)) 

( ). 

(Signature of trial counsel) 

(Name of trial counsel) 

Proceedings of a court-martial which met (at) (on board) 

, at -hours, 19 

pursuant to the following orders: 

Note. Here insert a copy of the orders convening the court-martial and copies of any amending 

orders. Copies of any written orders detailing the military judge and counsel will be inserted here. See 

R.C.M. 503(b) and (c). Any request of an enlisted accused for enlisted court members will be inserted 

immediately following the convening orders, together with any declaration of the nonavailability of such 

enlisted persons. See R.C.M. 503(a)(2), 903. Any written request for trial by military judge alone (R.C.M. 

903) or statement that a military judge could not be obtained (R.C.M. 201(f)(2)(b)(ii)) will be inserted at 

this point. 
Accounting for personnel 

Presence of accused 

Swearing reporter 

Tine of session 

Administration of oaths 

Accounting for personnel during 

mal 

GUIDE FOR PREPARATION OF RECORD OF TRIAL App. 14a 

PERSONS PRESENT 

PERSONS ABSENT 

Note. List military judge, if any, and all members of the court-martial, prosecution, and defense 

as present or absent, as announced by the trial counsel. The record of an Article 39(a) session or trial by the 

military judge alone need only reflect that the members are absent and need not list the absent members by 

name. Only rank or grade and name should be shown unless service number is necessary to distinguish 

between two persons. 

The following named accused (was) (were) present: 

The detailed reporter, , (was sworn) (had previously been 

sworn). 

Note. The remainder of the record of mal follows the actual proceedings in court-martial. The 

reporter records all the proceedings verbatim. 

Note. The reporter should note the time and date of the beginning and ending of each session of 

the court, including the opening and closing of the court-martial during trial. For example: 

The (court-martial) (session) was called to order at hours, 

The (court-martial) (session was) (adjourned) (recessed) at h o u r s , 

The court-martial (closed) (opened) at hours, 

Note. It is not necessary to record verbatim the oath actually used, whether it be administered to a 

witness, the military judge, counsel, or the members. Regardless of the form of oath, affirmation, or 

ceremony by which the conscience of the witness is bound, R.C.M. 807, only the fact that a witness took an 

oath or affirmation is to be recorded. However, if preliminary qualifying questions are asked a witness prior 

to the administration of an oath, the questions and answers should be recorded verbatim. These preliminary 

questions and answers do not eliminate the requirement that an oath be administered. The following are 

examples of the recording of the administration of various oaths: 

The detailed interpreter, ,(was sworn) (had previously been 

sworn). 

The military judge and the personnel of the prosecution and defense (were sworn) 

(had previously been sworn). 

The members were sworn. 

Note. After the reporter is sworn, the reporter will record verbatim the statements of the trial 

counsel with respect to the presence of personnel of the court-martial, counsel, and the accused. The 

reporter should note whether, when a witness is excused, the witness withdraws from the courtroom or, in 

the case of the accused, whether the accused resumes a seat at counsel table. Similarly, if the military judge 

excuses a member as a result of challenge and the member withdraws, the reporter should note this fact in 

the record. In a special court-martial without a military judge, if a challenged member withdraws from the 

court-martial while it votes on a challenge, and then is excused as a result of challenge or resumes a seat 

after the court-martial has voted on a challenge, the reporter should note this fact in the record. Examples of 

the manner in which such facts should be recorded are as follows: 

The (witness withdrew from the courtroom) (accused resumed hislher seat at the 

counsel table). 

,the challenged member, withdrew from the courtroom. 

,resumed hislher seat as a member of the court-martial. 
App. 14a APPENDIX 14 

Arraignment 

Recording testimony 

Note. If the reading of the charges is waived at arraignment, the original charge sheet or a 

verbatim copy of the charges and specifications, the name and description of the accusers, the affidavit, and 

the reference to the court-martial for trial, should be inserted here. 

Note. The testimony of a witness will be recorded verbatim in a form similar to that set forth 

below for a prosecution witness: 

was called as a witness for the prosecution, was sworn, and 

testified as follows: 

DIRECT EXAMINATION 

Questions by the prosecution: 

Q. State your full name, (etc.) 

A. 

Q- ? 

A. 

CROSS-EXAMINATION 

Questions by the defense: 

REDIRECT EXAMINATION 

Questions by the prosecution: 

RECROSS-EXAMINATION 

Questions by the defense: 

EXAMINATION BY THE COURT-MARTIAL 

Questions by (military judge) (member's name): 

Q. ? 

A. 

REDIRECT EXAMINATION 

Questions by the prosecution: 
GUIDE FOR PREPARATION OF RECORD OF TRIAL App. 14d 

RECROSS-EXAMINATION 

Questions by the defense: 

Out-of-court hearings and Note. Out-of-court hearings and Article 39(a) sessions should be recorded and incorporated in 

Article 39(a) sessions the record of trial. See R.C.M. 803. 

b. Examination of record by defense counsel 

Note. When the defense counsel has examined the record of trial prior to its being forwarded to 

the convening authority, the following form is appropriate: 

Form "I have examined the record of trial in the foregoing case. 

(Captain) (Lieutenant) ,Defense Counsel" 

Note. If defense counsel was not given the opportunity to examine the record before authentication, the reasons should be attached to the record. See R.C.M. 1103(i)(l)(B). 

c. Authentication qf record of trial 

(1) By general or special court-martial with members and a military judge 

Military Judge 

(Captain) (Colonel) ,Military Judge [or (LTJG) (1LT) 

,Trial Counsel, because of (death) (disability) (absence) of 

the military judge] [or (LCDR) (Major) ,a member in lieu 

of the military judge and the trial counsel because of (death) (disability) (absence) of 

the military judge, and of (death) (disability) (absence) of the trial counsel] 

(2) By general court-martial consisting of only a military judge 

Military Judge -

(Captain) (Colonel) ,Military Judge [or (LTJG) (1LT) 

,Trial Counsel, because of (death) (disability) (absence) of 

the military judge] [or the court reporter in lieu of the military judge and trial counsel 

because of (death) (disability) (absence) of the military judge, and of (death) (disability) (absence) of the trial counsel] 

(3) By special court-martial without a military judge 

President 

(CDR) (LTC) ,President [or (LTJG) (ILT) 

,Trial Counsel, because of (death) (disability) (absence) of 

the president] [or (LT) (CPT) ,a member in lieu of the president and 

the trial counsel because of (death) (disability) (absence) of the president, and of 

(death) (disability) (absence) of the trial counsel] 

Note. If the rank of any person authenticating the record has changed since the court-martial, the 

current rank should be indicated, followed by "formerly 

d. Exhibits. See R.C.M. 1 103(b)(2)(D) 

Note. Following the end of the transcript of the proceedings, insert any exhibits which were 

received in evidence, or, with the permission of the military judge, copies, photographs, or descriptions of 

any exhibits which were received in evidence, and any appellate exhibits. 
App. 14e APPENDIX 14 

e. Attachments 

Note. Attach to the record the matters listed in R.C.M. 1103(b)(3). 

j Certijcate of correction. See R.C .M. 1104(d). 

United States 

v. 

The record of trial in the above case, which was tried by the 

convened by ,dated 

(on board) ,on 

19 , is corrected by the insertion on page 

following line ,of the following: 

19 

, immediately 

court-martial 

, (at) 

"The detailed reporter, ,was sworn." 

This correction is made because the reporter was sworn at the time of trial but a 

statement of that effect was omitted, by error, from the record. 

R.C.M. 1104(d) has been complied with. 

Note. The certificate of correction is authenticated as indicated above for the record of trial in the 

case. 


Copy of the certificate received by me this day 


(Signature of accused) 

(Name of accused) 

Note. The certificate of correction will be bound at the end of the original record immediately 

before the action of the convening authority. 

g. Additional copies of record 

An original and four copies of the record will be prepared of a verbatim record. In a joint or common trial, an 

additional copy of the record must be prepared for each accused. See R.C.M. 1 103(g)(l)(A). 
APPENDIX 15 

Ron F. Andrews 1 Major 12d Battalion, 61st Inf 

(Check appropriate answer) I YES I NO 

RECORD OF TRIAL BY SUMMARY COURT-MARTIAL 

At a preliminary proceeding held on 20 Se~tember 1984,the summary court-martial gave the 

accused a copy of the charge sheet. 

5. At that preliminary proceeding the summary court-martial informed the accused of the following: 

la. NAME OF ACCUSED (Last. Flnl.MII 

Arthur N. Sherry 

2s. NAME OF CONVENING AUTHORITY (hi. 

Fimt. MI) 

Gail L. Busybody 

3e. NAME OF SUMMARY COURT-MARTIAL 

Of SCM wu occurer. ro rlale.) 

c. UNIT OR ORGANIZATION OF ACCUSED 

Co A, 1st Battalion, 61st Inf 

b. GRADE 

OR RANK 

PFC 

b. RANK 

COL 

b. RANK 

c. The name(s) of the accuser(s). X I 

d. SSN 

111-11-1111 

a. The fact that the charge(s) had been referred to a summary court-martial for trial and the date of referral. 

b. The identity of the convening authority. 

x 

X 

c. POSITION 

Commander 

d. The general nature of the charge(s). 

e. The accused's right to object to trial by summary court-martial. 

accused. 1 A 1 

i. The accused's right to call witnesses and produce evidence with the assistance of the summary court-martial if " I 

d. ORGANIZATION OF CONVENING AUTHORITY 

61st Infantry Brigade 

X 

X 

f. The accused's right to inspect the allied papers and immediately available personnel records. 

g. The names of the witnesses who could be called to testify and any documents or physical evidence which the 

summary court-martial expected to introduce into evidence. 

h. The accused's right to cross-examine witnesses and have the summary court-martial cross-examine on behalf of the 

c. UNlT OR ORGANIZATION OF SUMMARY COURT-MARTIAL 

4 

X 

X 

necessary. 

j. That during the trial the summary court-martial would not consider any matters, including statements previously 

made by the accused to the summary court-martial, unless admitted in accordance with the Military Rules of 

I 1. If any findings of guilty were announced, the accused's right to remain silent, to make an .insworn statement, oral 

or written or both, and to testify and to introduce evidence in extenuation or mitigation. 1x1 I 

Evidence. 

k. The accused's right to testify on the merits or to remain silent, with the assurance-that no adverse inference would 

be drawn by the summary court-martial from such silence. 

1 1 

m. The maximum sentence which could be adjudsed if the accussed was found guilty of the offense(s1 alleged. X I 

A 

x 

x . 

6. 

21 September 84 

At the trial proceeding held on 19, .the accused, after being given a reasonable time to 

decide, did did not object to trial by summary court-martial. 

(Note: The SCM may ask the accwed lo inltiol thL entry at the time the ekctlon L made.) 4sIlnlliol) 

70. 

n. The accused's right to plead guilty or not guilty. 

1, The accused was was not represented by counul. (If the rcured wr reprerented by counsel. compleie b, r. and d below.) I 

X 

I 

d. COUNSEL CIUALIFICATIONS 

b. NAME OF COUNSEL (Lut. Flnt. MI) c. RANK Illany) 
APPENDIX 15 

-
 A 

8. The mmmd Narraigned on tbe attubed charge(#)m d rpecifiation(#). The accurcd'rpleu and the fiidinw reached are shorn below: 

CHARGE(S) AND SPECIFICATION(S) PLEAIS) FlNDlNQS (Includh# any a~eeptio~nd substih#tfom) 

Ch. I NG G 

Spec. 1 NG NG 

Spec. 2 NG G except "$74. OO", substituting 

"$25.00" 

Ch. I1 G G 

Spec. G G 

Add'l Ch. NG NG 

Spec. NG NG 

9. 	The following sentence was adjudged: Confinement for 15 days, forfeiture of $200 pay per month for 

1 month and reduction to the grade of E-1 

lo. The accused was advised of the right to request r 1. The accused WM advised of the ' t to oubmit written matters to tpe that ronfhernent be deferred. (NOW: When eonpnement convening authorit including amquest for clemency, lad of the ngbt to L adj~~~#md.~ request review by tke Judge Advocate &ad. 

YES 4 	NO 	 a YES -n NO

12. AUTHENTICATION 

21 September 1984 

BI.MtYm of Summ Court-Id 	 &I% 

13. ACTION BY CONVENING AUTHORITV 

The sentence is approved and will be executed. 

Gail L. Busybody 	 Commander 

npd Name of Convenliu AudLorlty 	 Pmlflon of Conwnlng Authodty 

Colonel 

Rank 

G&. D~~ 	 29 September 1984 

Sfgnahn@conurn& Aufhdfy 	 Ootc I 
APPENDIX 16 

FORMS FOR ACTION 

The forms in this appendix are guides for preparation of the convening authority's initial action. Guidance is 

also provided for actions under R.C.M. 1112(f). Appendix 17 contains forms for later actions. The forms are 

guidance only, and are not mandatory. They do not provide for all cases. It may be necessary to combine parts of 

different forms to prepare an action appropriate to a specific case. Extreme care should be exercised in using these 

forms and in preparing actions. See R.C.M. 1107(f) concerning contents of the convening authority's action. 

In addition to the matters contained in the forms below, the action should show the headquarters and place, or 

the ship, of the convening authority taking the action, and the date of the action. The signature of the convening 

authority is followed by the grade and unit of the convening authority, and "commander" or "commanding" as 

appropriate. 

When the sentence includes confinement, the place of confinement is designated in the action unless the 

Secretary concerned prescribes otherwise. If the place of confinement is designated in the action, service regulations 

should be consulted first. See R.C.M. 1 1 13(d)(2)(C). 

In actions on a summary court-martial, when the action is written on the record of trial (see Appendix 15) the 

words "In the case of " may be omitted. 

INITIAL ACTION ON COURTMARTIAL SENTENCE-FINDINGS NOT AFFECTED 

Forms 1-10 are appropriate when the adjudged sentence does not include death, dismissal, or a dishonorable or 

bad-conduct discharge. 

Adjudged sentence approved and ordered executed without modification. See R.C.M. 1107(f)(4). 

1.In the case of ,the sentence is approved and will be executed. ( is designated 

as the place of confinement.) 

Adjudged sentence modijied. See R.C.M. 1 107(d)(l), (f)(4). 

-Adjudged sentence approved in part and ordered executed. 

2. In the case of , only so much of the sentence as provides for is 

approved and will be executed. ( is designated as the place of confinement.) 

-Adjudged sentence approved; part of conjinement changed to forfeiture of pay. 

3. In the case of ,so much of the sentence extending to months of confinement is 

changed to forfeiture of $ pay per month for -months. The sentence as changed is approved and 

will be executed. ( is designated as the place of confinement.) 

Credit for illegal pretrial confinement. See R.C.M. 305(k); 1107(f)(4)(F). 

4. In the case of ,the sentence is approved and will be executed. The accused will be credited 

with -days of confinement against the sentence to confinement. ( is designated as the place of 

confinement.) 

Suspension of sentence. See R.C.M. 1 107(f)(4)(B); 1lOS(d). 

-Adjudged sentence approved and suspended. 

5. In the case of ,the sentencce is approved. Execution of the sentence is suspended for 

(months) (years) at which time, unless the suspension is sooner vacated, the sentence will be 

remitted without further action. 

--Adjudged sentence approved; part of sentence suspended. 
APP. 16, ll6 APPENDIX 16 

6. In the case of , the sentence is approved and will be executed but the execution of that part of 

the sentence extending to (confinement) (confinement in excess of months) (forfeiture to pay) 

( ) is suspended for (months) (years), at which time, unless the suspension is sooner vacated, 

the suspended part of the sentence will be remitted without further action. ( is designated as the place 

of confinement.) 

Deferment of conjinement and termination of deferment. See R.C.M. 1101(c); 1107(f)(4)(E). 

-Adjudged sentence approved; confinement deferred pending final review. 

7. In the case of , the sentence is approved and, except for that portion extending to confinement, 

will be executed. Service of the sentence to confinement (is) (was) deferred effective 19 , 

and will not begin until (the conviction is final) (-), unless sooner rescinded by competent authority. 

-Adjudged sentence approved; deferment of conjnement terminated. 

8. In the case of , the sentence is approved and will be executed. The service of the sentence to 

confinement was deferred on 1 9 . ( is designated as the place of confinement.) 

-Adjudged sentence approved; deferment of conjinment terminated previously. 

9. In the case of , the sentence is approved and will be executed. The service of the sentence to 

confinement was deferred on 1 9 and the deferment ended on 19 

( is designated as the place of confinement.) 

Disapproval 4sentence; rehearing on sentence only ordered. See R.C.M. 1107(e), (f)(4)(A). 

10. In the case of , it appears that the following error was committed: (evidence of a previous 

conviction of the accused was erroneously admitted) ( ). This error was prejudicial as to the 

sentence. The sentence is disapproved. A rehearing is ordered before a (summary) (special) (general) court-martial 

to be designated. 

When the adjudged sentence includes death, dismissal, or a dishonorable or a bad-conduct discharge, forms 

1-10 are generally appropriate, but several will require modification depending on the action to be taken. This is 

because death, dismissal, or a dishonorable or bad-conduct discharge may not be ordered executed in the initial 

action. Therefore, unless an adjudged punishment of death, dismissals or a dishonorable or bad-conduct discharge is 

disapproved, changed to another punishment, or (except in the case of death) suspended, the initial action must 

specifically except such punishments from the order of execution. This is done by adding the words ".except for the 

(part of the sentence extending to death) (dismissal) (dishonorable discharge) (bad-conduct discharge)," after the 

words "is approved and" and before the words "will be executed" in the action. (A death sentence cannot be 

suspended. See R.C.M. 1108(b).) 

Forms 11-14 provide examples of actions when the sentence includes death, dismissal, or a dishonorable or 

bad-conduct discharge. 

Adjudged sentence approved and, except for death, dismissal, or discharge, ordered executed. See R.C.M. 1107(f) 

(4). 

11.In the case of , the sentence is approved and, except for the (part of the sentence extending to 

death) (dismissal) (dishonorable discharge) (bad-conduct discharge), will be executed. ( is designated as the place of confinement.) 

Adjudged sentence modijied. See R.C.M. 1107(d)(l), (Q(4). Note. If the part of the sentence providing for death, 

dismissal, or a dishonorable or a bad-conduct discharge is disapproved, see Form 2 above. 

12. In the case of , only so much of the sentence as provides for (death) (dismissal) (a 

dishonorable discharge) (a bad-conduct discharge) (and ) is approved and, except for the part of the 

sentence extending to (death) (dismissal) (dishonorable discharge) (bad-conduct discharge), will be executed. 

( is designated as the place of confinement.) 

-Adjudged sentence approved; discharge changed to conjnement. 

13. In the case of , so much of the sentence extending to a (dishonorable discharge) (badconduct discharge) is changed to confinement for months (thereby making the period of confinement total 
FORMS FOR ACTION App. 16, ll19 

months). The sentence as changed is approved and will be executed. ( is designated as 

the place of confinement.) 

Suspension of sentence. See R.C.M. 1107(f)(4)(B); 1108(d). Note if the portion of the sentence extending to 

dismissal or a dishonorable or a bad-conduct discharge is suspended, Form 5or Form 6, as appropriate, may be used. 

If parts of the sentence other than an approved dismissal or discharge are suspended, the following form may be 

used: 

-Adjudged sentence approved; part of sentence, other than dismissal or dishonorable or bad-conduct 

discharge, suspended. 

14. In the case of ,the sentence is approved and, except for that part of the sentence extending to 

(dismissal) (a dishonorable discharge) (a bad-conduct discharge), will be executed, but the execution of that part of 

the sentence adjudging (confinement) (confinement in excess of ) (forfeiture of pay) ( ) is 

suspended for (months) (years) at which time, unless the suspension is sooner vacated, the 

suspended part of the sentence will be remitted without further action. ( is designated as the place of 

confinement.) 

INITIAL ACTION ON COURT-MARTIAL WHEN FINDINGS AFFECTED. Findings are addressed in the action 

only when any findings of guilty are disapproved, in whole or part. See R.C.M. 1107(c), (f)(3). The action must also 

indicate what action is being taken on the sentence. Appropriate parts of the foregoing forms for action on the 

sentence may be substituted in the following examples as necessary. 

Some findings of guilty disapproved; adjudged sentence approved. 

15.In the case of ,the finding of guilty of Specification 2, Charge I is disapproved. Specification 

2, Charge Iis dismissed. The sentence is approved and (, except for that part of the sentence extending to (dismissal) 

(a dishonorable discharge) (a bad-conduct discharge),) will be executed. ( is designated as the place 

of confinement.) 

Finding of guilty of lesser included @ense approved; adjudged sentence modijied. 

16.In the case of ,the finding of guilty of Specification 1, Charge 11is changed to a finding of 

guilty of (assault with a means likely to produce grievous bodily harm, to wit: a knife) (absence without authority 

from the (unit) (ship) ( ) alleged from 1 9 to 19 (in 

violation of Article 86)) ( ). Only so much of the sentence as provides for is approved 

and (, except for the (dismissal) (dishonorable discharge) (bad-conduct discharge),) will be executed. 

( is designated as the place of confinement.) 

Somejindings afguilty and sentence disapproved; combined rehearing ordered. See 1107(e). A rehearing may not 

be ordered if any sentence is approved. See R.C.M. 1 107(c)(2)(B); (e)(l)(c)(i). 

17.In the case of ,it appears that the following error was committed: (Exhibit 1, a laboratory 

report, was not properly authenticated and was admitted over the objection of the defense) ( ). This 

error was prejudicial as to Specifications 1 and 2 of Charge II. The findings of guilty as to Specifications 1 and 2 of 

Charge 11 and the sentence are disapproved. A combined rehearing is ordered before a court-martial to be 

designated. 

All findings of guilty and sentence disapproved; rehearing ordered. See R.C.M. 1107(c)(2)(B). 

18.In the case of ,it appears that the following error was committed: (evidence offered by the 

defense to establish duress was improperly excluded) ( ). This error was prejudicial to the 

rights of the accused as to all findings of guilty. The findings of guilty and the sentence are disapproved. A rehearing 

is ordered before a court-martial to be designated. 

Allfindings of guilty and sentence disapproved based on jurisdictional error; an other trial ordered. See R.C.M. 

1107(e)(2). Note. This form may also be used when a specification fails to state an offense. 

19. In the case of ,it appears that (the members were not detailed to the court-martial by the 

convening authority) ( ). The proceedings, findings, and sentence are invalid. An other trial is 

ordered before a court-martial to be designated. 
App. 16, 720 APPENDIX 16 

All findings of guilty and sentence disapproved; charges dismissed. See R.C.M. 1107(c) (2) (B). 

20. In the case of ,the findings of guilty and the sentence are disapproved. The charges are 

dismissed. 

ACTION ON A REHEARING. The action on a rehearing is the same as an action on an original court-martial in 

most respects. It differs first in that, as to any sentence approved following the rehearing, the accused must be 

credited with those parts of the sentence previously executed or otherwise served. Second, in certain cases the 

convening authority must provide for the restoration of certain rights, privileges, and property. See R.C.M. 

1107(f)(5)(A). 

Action on rehearing; granting credit for previously executed or served punishment. 

21. In the case of , the sentence is approved and (, except for the (dismissal) (dishonorable 

discharge) (bad-conduct discharge),) will be executed. The accused will be credited with any portion of the 

punishment served from 19 to 1 9 - under the sentence adjudged at the former 

trial of this case. 

Action on rehearing; restoration af rights. 

22. In the case of ,the findings of guilty and the sentence are disapproved and the charges are 

dismissed. All rights, privileges, and property of which the accused has been deprived by virtue of the execution of 

the sentence adjudged at the former mal of this case on 19 will be restored. 

23. In the case of ,the accused was found not guilty of all the charges and specifications which 

were tried at the former hearing. All rights, privileges, and property of which the accused has been deprived by 

virtue of the execution of the sentence adjudged at the former trial of this case on 19 will be 

restored. 

WITHDRAWAL OF PREVIOUS ACTION. Form 24 is appropriate for withdrawal of an earlier action. See R.C.M. 

1107 (f) (2) concerning modification of an earlier action. 

24. In the case of ,the action taken by (me) (my predecessor in command) on 

19- is withdrawn and the following substituted therefor: 

FORMS FOR ACTIONS APPROVING AND SUSPENDING PUNISHMENTS MENTIONED IN 

ARTICLE 58a AND RETAINING ACCUSED IN PRESENT OR INTERMEDIATE GRADE. 

Under the authority of Article 58a, the Secretary concerned may, by regulation, limit or specifically preclude 

the reduction in grade which would otherwise be effected under that Article upon the approval of certain courtmartial sentences by the convening authority. The Secretary concerned may provide in regulations that if the 

convening or higher authority taking action on the case suspends those elements of the sentence that are specified in 

Article 58a the accused may be retained in the grade held by the accused at the time of the sentence or in any 

intermediate grade. Forms 25-27 may be used by the convening or higher authority in effecting actions authorized 

by the Secretary concerned in regulations pursuant to the authority of Article 58a. 

If the convening authority or higher authority when taking action on a case in which the sentence includes a 

punitive discharge, confinement, or hard labor without confinement elects to approve the sentence and to retain the 

enlisted member in the grade held by that member at the time of sentence or in any intermediate grade, that authority 

may do so if permitted by regulations of the Secretary concerned whether or not the sentence also includes a 

reduction to the lowest enlisted grade, by using one of the following forms of action. The first action, Form 25, is 

appropriate when the sentence does not specifically provide for reduction. The second and third actions, Forms 26 

and 27, are appropriate when the sentence specifically provides for reduction to the grade of E-1. The action set forth 

in Form 26 is intended for a case in which the accused is to be probationally retained in the grade held by that accused 

at the time of sentence. The action set forth in Form 27 is for a case in which the accused is to serve probationally in 

an intermediate grade. 

Automatic reduction suspended; sentence does not specijically include reduction. 

25. In the case of ,the sentence is approved and will be executed, but the execution of that part of 

the sentence extending to (a dishonorable discharge) (a bad-conduct discharge) (confinement) (hard labor without 
FORMS FOR ACTION App. 16,732 

confinement) (and ) is suspended for (months) (years) at which time, unless the suspension 

is sooner vacated, the suspended part of the sentence will be remitted without further action. The accused will 

(continue to) serve in the grade of -unless the suspension of (the dishonorable discharge) (the bad-conduct 

discharge) (confinement) (hard labor without confinement) is vacated, in which event the accused will be reduced to 

the grade of E-1 at that time. 

Automatic reduction and adjudged reduction to E-1 suspended; accused retained in grade previously held. 

26. In the case of ,the sentence is approved and will be executed, but the execution of that part of 

the sentence extending to (a dishonorable discharge) (a bad-conduct discharge) (confinement) (hard labor without 

confinement) ( ), and reduction to the grade of E-1 is suspended for 

(months) (years), at which time, unless the suspension is sooner vacated, the suspended part of the sentence will be 

remitted without further action. The accused will continue to serve in the grade of unless the 

suspension of (the dishonorable discharge) (the bad-conduct discharge) (confinement) (hard labor without confinement), or reduction to the grade of E-1 is vacated, in which event the accused will be reduced to the grade of E-1 

at that time. 

Automatic reduction and adjudged reduction to E-I suspended; accused retained in intermediate grade. 

27. In the case of ,the sentence is approved and will be executed but the execution of that part of the 

sentence extending to (a dishonorable discharge) (a bad-conduct discharge) (confinement) (hard labor without 

confinement), and that part of the reduction which is in excess of reduction to the grade of is suspended for 

(months) (years) at which time, unless the suspension is sooner vacated, the suspended part of the 

sentence will be remitted without further action. The accused will serve in the grade of unless the 

suspension of (the dishonorable discharge) (bad-conduct discharge) (confinement) (hard labor without confinement), or reduction to the grade of E-1, is vacated, in which event the accused will be reduced to the grade of El 

at that time. 

ACTION UNDER R.C.M. 11 12(f). The forms for action for the officer taking action under R.C.M. 11 12(f) are 

generally similar to the foregoing actions. The officer taking action under R.C.M. 11 12 (f) may order executed all 

parts of the approved sentence, including a dishonorable or bad-conduct discharge, except those parts which have 

been suspended without later vacation unless the record must be forwarded under R.C.M. 1 1 12(g) (1). See R.C.M. 

11 13(c) (1) (A). The following are additional forms which may be appropriate: 

Sentence approved when convening authority suspended all or part of it. 

28. In the case of the sentence as approved and suspended by the convening authority is 

approved. 

Sentence approved and, when confinement was deferred, ordered executed. See R.C.M. 1101(c) (6). 

29. In the case of ,the sentence is approved and the confinement will be executed. The service of 

the sentence to confinement was deferred on 19-. ( is designated as 

the place of confinement.) 

Sentence includes unsuspended dishonorable or bad-conduct discharge; order of execution. See R.C.M. 11 13(c) 

(1) and (2). 

30. In the case of ,the sentence is approved. The (dishonorable discharge) (bad-conduct 

discharge) will be executed. 

Findings and sentence disapproved; restoration as to parts ordered executed by convening authority. See R.C.M. 

1208(b). 

31. In the case of ,the findings of guilty and the sentence are disapproved. The charges 

are dismissed. (The accused will be released from the confinement adjudged by the sentence in this case and all) 

(All) rights, privileges, and property of which the accused has been deprived by virtue of the findings and sentence 

disapproved will be restored. 

Findings and sentence disapproved; rehearing authorized. See R. C .M. 1 1 12(f). 

32. In the case of ,it appears that the following error was committed: (Exhibit 1, a 

statement of the accused, was not shown to have been preceded by Article 31 warnings as required and was admitted 
App. 16, 733 APPENDIX 16 

over the objection of the defense) ( ). This error was prejudicial to the rights of the accused as 

to the findings and the sentence. The case is returned to the convening authority who may order a rehearing or 

dismiss the charges. 

Action taken is less favorable to the accused than that recommended by the judge advocate. See R.C.M.11 12(e), (0. 

33. In the case of ,the sentence is approved. As this action is less favorable to the 

accused than that recommended by the judge advocate, the record and this action shall be forwarded to the Judge 

Advocate General for review under Article 69(b). 

Action when approved sentence includes dismissal. See R.C.M. 1113(c)(2). 

34. In the case of ,the sentence is approved. The record shall be forwarded to the 

Secretary of the 
APPENDIX 17 

FORMS FOR COURT-MARTIAL ORDERS 

a. Forms for initial promulgating orders 

[Note. The following is a form applicable in promulgating the results of trial and the action of the convening authority in all general and 

special court-martial cases. Omit the marginal side notes in drafting orders. Only the action of the convening authority must be set forth verbatim. 

See R.C.M. 1114(c).] 

(General) (Special) Court-Martial (Headquarters) (USS) Order No. , 

1 9 Before a (general) (special) court-martial which convened (at/on board) pursuant to , (as amended by 

), was arraigned and tried [on a (rehearing) (new trial), the 

former proceedings having been published in CMO No. , 

1 9 1: 

(Grade) (Name) (Service No.) (Armed Force) 

(Unit) 

Arraignment 	 The accused was arraigned on the following offenses and the following findings or 

other dispositions were reached: 

Offenses 	 Charge I. Article 86 (Guilty). 

Specification 1: Unauthorized absence from unit from 1 April 1984 to 31 May 1984. 

(Guilty). 

Specification 2: Failure to repair on 18 March 1984. (Dismissed on motion of defense 

for failure to state an offense). 

[Note. If a finding is not entered to a specification because, for example, a motion to dismiss was 

granted, this should be noted where the finding would otherwise appear.] 

Charge II. Article 91 (Not guilty). 

Specification: Disrespect to superior noncommissioned officer on 30 March 1984 by 

saying to him "Stick it in your ear." (Not guilty). 

Charge Ill. Article 112a (Guilty). 

Specification 1: Wrongful possession of 150 grams of marijuana on 24 March 1984. 

(Guilty). 

Specification 2: Wrongful use of marijuana while on duty as a sentinel on 24 March 

1984. (Guilty). 

Specification 3: Wrongful possession of heroin with intent to distribute on 24 March 

1984. (Guilty). 

Charge IV. Article 121 (Guilty). 

Specification: Larceny of property of a value of $150.00 on 27 March 1984. (Guilty). 

[Note. Each specification should be concisely summarized. Specific factors, such as value, 

amount, and other circumstances which affect the maximum punishment should be indicated. Other 

significant matters contained in the specification may be included. The specification may be reproduced 

verbatim if necessary.] 
App. 17b 	 APPENDIX 17 

Pleas 	 [Note. The accused's pleas will be noted.] 

The findings of guilty as to Charge I, Specification 1and Charge 111, Specification 2 

were based on the accused's pleas of guilty. The accused pleaded not guilty to the 

remaining charges and specifications. 

Acquittal 	 If the accused was acquitted of all charges and specifications, the date of the acquittal 

should be shown: "The findings were announced on 19-." 

SENTENCE 

The (military judge) (members) adjudged the following sentence on 

19 

Dishonorable discharge, forfeiture of all pay and allowances, confinement for 2 

years, and reduction to the lowest enlisted grade. 

Action of convening authority 

ACTION 

[Note. Copy the action of the convening authority verbatim, including heading, date, and 

signature.] 

Authentication 	 [Note. See R.C.M. 1114(e) concerning authentication of the order.] 

Joint or common trial [Note. In case of a joint or common trial, separate orders should be issued for each accused. The 

description of the offenses on which each accused was arraigned may, but need not, indicate that there was a 

coaccused.] 

b. Forms for supplementary orders promulgating results of afSlrming action 

[Note. Court-martial orders publishing the final results of cases in which the President or the Secretary concerned has taken final action 

are promulgated by departmental orders. In other cases the final action may be promulgated by an appropriate convening authority, or by an officer 

exercising general court-martial jurisdiction over the accused at the time of final action, or by the Secretary concerned. The following sample 

forms may be used where such a promulgating order is published in the field. These forms are guides. Extreme care should be exercised in using 

them. If a sentence as ordered into execution or suspended by the convening authority is affirmed without modifications and there has been no 

modification of the findings, no supplementary promulgating order is required.] 

Heading 

*See above. 

Sentence In the (general) (special) court-martial case of (name, grade or rank, branch of 

-Affirmed service, and service number af accused,) the sentence to bad-conduct discharge, 

forfeiture of , and confinement for 

, as promulgated in (General) (Special) Court-Martial Order No. 


, (Headquarters) (Commandant, Naval District) 


,dated 19-, has been finally affirmed. 


Article 71(c) having been complied with, the bad-conduct discharge will be executed. 


-Affirmed in part 	 In the (general) (special) court-martial case of (name, grade or rank, branch of 

service, and service number ofaccused,) only so much of the sentence promulgated in 

(General) (Special) Court-Martial Order No. ,(Headquarters) (Commandant, Naval District) , dated 

19 ,as provides for ,has been finally affirmed. Article 71(c) 

having been complied with, the bad-conduct discharge will be executed. 

In the (general) (special) court-martial case of (name, grade or rank, branch of 

service, and service number ofaccused,) the findings of guilty of Charge I1 and its 
FORMS FOR COURT-MARTIAL ORDERS 	 App. 17d 

specification have been set aside and only so much of the sentence promulgated in 

(General) (Special) Court-Martial Order No. , (Headquarters) (Commandant, Naval District) , dated 

1 9 , as provides for , has been finally affirmed. Aritcle 71(c) 

having been complied with, the bad-conduct discharge will be executed. 

-Affirmed in part; prior order of 	 In the (general) (special) court-martial case of (name, grade or rank, branch of 

execution set aside in part 	 service, and service number ofaccused,) the proceedings of which are promulgated in 

(General) (Special) Court-Martial Order No. , (Headquarters) (Commandant, Naval District) , dated 

19 , the findings of guilty of Charge I and its specification, and so much of the 

sentence as in excess of have been set aside and the sentence, as thus 

modified, has been finally affirmed. Article 71(c) having been complied with, all 

rights, privileges, and property of which the accused has been deprived by virtue of 

the findings of guilty and that portion of the sentence so set aside will be restored. 

Findings and sentence set aside 	 In the (general) (special) court-martial case of (name, grade or rank, branch of 

service, and service number ofaccused,) the findings of guilty and the sentence as 

promulgated by (General) (Special) Court-Martial Order No. , (Headquarters) (Commandant, Naval District) , dated 

19-, were set aside on 19 . (The 

charges are dismissed. All rights, privileges, and property of which the accused has 

been deprived by virtue of the findings of guilty and the sentence so set aside will be 

restored.) (A rehearing is ordered before another court-martial to be designated.) 

Authentication 	 See R.C.M. 1114(e). 

c. Forms for orders remitting or suspending unexecuted portions of sentence 

Heading 	 See a above. 

Remissions; suspension 	 The unexecuted portion of the sentence t o , in the case of (Name, grade or 

See R.C.M. 1108 	 rank, branch of service and service number of accused,) promulgated in (General) 

(Special) Court-Martial Order No. , (this headquarters) (this ship) (Headquarters (USS -), 1 9 , is (remitted) (suspended for months, at which time, unless the suspension is sooner 

vacated, the unexecuted portion of the sentence will be remitted without further 

action). 

Authentication 	 See R.C.M. 11 14(e). 

d. Forms for orders vacating suspension 

[Note. Orders promulgating the vacation of the suspension of a dismissal will be published by departmental orders of the Secretary 

concerned. Vacations of any other suspension of a general court-martial sentence, or of a special court-martial sentence which as approved and 

affirmed includes a bad-conduct discharge, will be promulgated by the officer exercising general court-martial jurisdiction over the probationer 

(Article 72(b)). The vacation of suspensidn of any other sentence may be promulgated by anappropriate convening authority under Article 72(c). 

See R.C.M. 1109.1 

Heading 	 See a above. 

Vacation of suspension 	 SO much of the order published in (General) (Special) (Summary) (Court-Martial 

Order No. ) (the record of summary court-martial), (this headquarters) (this 

ship) Headquarters ) (uss 1, 

19 , in the case of (name, grade or rank, branch of service, and service 

number ofaccused), as suspends, effective 19 , execution of 
App. 17e APPENDIX 17 

the approved sentence to (a bad-conduct discharge) (confinement for 

(months) (years)) (forfeiture of ), (and subsequently modif

(General) (Special) Court-Martial Order No. , (this headquarters) (thi

(Headquarters (USS 1, 19 

vacated. (The unexecuted portion of the sentence to will be exe

( is designated as the place of confinement.) 

ied by 

s ship) 

, is 

cuted.) 

[Note. See R.C.M. 11 13 concerning execution of the sentence.] 

Authentication See R.C.M. 1 1 14(e)See R.C.M. 1 1 14(e). 

e. Forms for orders terminating deferment 

[Note: When any deferment previously granted is rescinded after the convening authority has taken action in the case, such rescission 

will be promulgated in a supplementary order. See R.C.M. 1101(c) (7) (C).] 

Heading See a above. 

Rescission of deferment The deferment of that portion of the sentence that provides for confinement for 

(months) (years) published in (General) (Special) Court-Martial Order 

, (this headquarters) (this ship) (Headquarters ) (uss 

), 1 9 , in the case of (name, grade or rank, 

branch of service, and service number ofaccused) (is rescinded.) (was rescinded on 

19.) The portion of the sentence to confinement will be 

executed. ( is designated as the place of confinement.) 

Authentication See R.C.M. 11 14(e). 

[Note. Deferment may be terminated by an appropriate authority once the conviction is final 

under Article 71(c) and R.C.M. 1208(a). See R.C.M. 1101(c) (7).] 

Heading See a above. 

In the (general) (special) court-martial case of (name, grade or rank, branch of 

service, and service number of accused,) the sentence to confinement (and 

), as promulgated in (General) (Special) Court-Martial Order No. 

, (Headquarters) (Commandant, Naval District) 

,dated 1 9 , has been finally affirmed. Service 

of confinement was deferred on 19-. Article 71(c) having 

been complied with, the (bad-conduct discharge and the) sentence to confinement 

will be executed. ( is designated as the place of confinement.) 

Authentication See R.C.M. ll14(e). 
REPORT OF PROCEEDINGS TO VACATE SUSPENSION OF A GENERAL COURT- MARTIAL SENTENCE 


OR OF A SPECIAL COURT-MARTIAL SENTENCE INCLUDING A BAD-CONDUCT CiSCIIAnGE 


UNDER ARTICLE 72, UCMJ, and R.C.M. 1109 


la 	TO: (Name of Officer exercising geneml court-martiol junrdiction - 28. FROM: (Name of Officer exerciring special court-marital jurirdiction - Last, Fini.MI) Lori. Fint,.MI) 

I Rabino, Arthur K. 	 I Roberts, Leonard E. 

I 

b. TITLE 	 b. TITLE 

Commander 	 Commander 

s. ORGANIZATION 	 c. ORGANIZATION 

5000th Support Wing 	 5001st Support Group 

APO San Francisco 99999 	 APO San Francisco 99999 

3a. NAME OF PROBATIONER (hi. First. MI) b. RANK c. SSN d. ORGANIZATION 

Dice, Morris L. 	 Airman 000-00-0000 5001st Support Squadron 

4. 	 DATA AS TO TRIAL BY COURT-MARTIAL. ATTACH A COPY OF THE COURT-MARTIAL ORDER AND ANY SUPPLEMENTARY ORDERS 

OR. IF NO COURT-MARTIAL ORDER HAS BEEN PROMULGATED OR IS AVAILABLE, ATTACH A SUMMARY OF THE CHARGES AND 

SPECIFICATIONS, FINDINGS. SENTENCE, INITIAL ACTION, AND ANY SUPPLEMENTARY ACTIONS. ATTACH A COPY OF THE WRITTEN 

NOTICE OF SUSPENSION lree R.C.M. 1108(c)l. 

5. 	 ALLEGED VIOLATION(S) OF THE CONDITIONS OF SUSPENSION. (BRIEF STATEMENT AND DATE. See R.C.M. IIOBGTAND 1109(a) 

CONCERNING THE CONDITIONS OF SUSPENSION.) 

Assault on Master Sgt Vic Tim, while in the execution of duties on 15 September 1984, in 

violation of Article 91. 

(Check appropriate answer) 

6. 	 PURSUANT TO THE PROVISIONS OF ARTICLE 72, UCMJ, AND R.C.M. 1109. A HEARING WAS HELD ON THE ALLEGED 


VIOLATION(S) OF THE CONDITIONS OF SUSPENSION. 


Ia. THE TIME, PLACE, AND PURPOSE OF THE HEARING. 	 IX I 

( b. THE RIGHT TO BE PRESENT AT THE HEARING. 	 Ix I c. 	 THE ALLEGED VIOLATIONW OF THE CONDITIONS OF SUSPENSION AN0 THE EVIDENCE EXPECTED TO BE RELIED ON. 

d. 	 THE RIGHT TO BE REPRESENTED AT THE HEARING BY CIVILIAN COUNSEL PROVIDED BY THE PROBATIONER OR, UPON 


REQUEST. BY MILITARY COUNSEL DETAILED FOR THIS PURPOSE. 


0. 	THE OPPORTUNITY TO BE HEARD. TO PRESENT WITNESSES AND OTHER EVIDENCE. AND THE RIGHT TO CONFRONT AN0 


CROSS-EXAMINE ADVERSE WITNESSES UNLESS THE HEARING OFFICER DETERMINES THAT THERE IS GOOD CAUSE FOR 


NOT ALLOWING CONFRONTATION AND CROSS-EXAMINATION. 


I8a. THE PROBATIONER REQUESTED DETAILED MILITARY COUNSEL. 	 1x I 

Is. DETAILED COUNSEL WAS QUALIFIED WITHIN THE MEANING OF ARTICLE 27(b). UCMJ, and R.C.M. 502(d). Ix I 

I

NOTE: If this form is ursd and additional apace is raquirod for any itam, antar the additional material in Block 18 or on a wparate sheet. Identify such 

material with the proper heading (Esam~le: "Sd'.). Securaly attach any additional aheet(a1 and add a note in the appropriate item: ''Sea Block 18" or 

"See additional rhaat." This form may be usad to vauta a suspended spacial court-martial sentence not including a badcondua diacharga or a suspended 

wmmary court-martial sentanm under R.C.M. llOBlel by lining through or altering the form. 6s appropriate. 

I 

DD 455 	 EDITION OF OCT 69 IS OBSOLETE. 
APPENDIX 18 

Ihave been Informed end understand my risht under R.C.M. 1109(d) to reprmentatlon at this hearlng by clvllian counhel provided 

13. AFTER HAVING BEEN INFORMED OF THE RIGHT TO REMAIN SILENT OR MAKE A STATEMENT, THE PROBATIONER 

a. INDICATED THAT HE/SHE DID NOT WISH TO MAKE A STATEMENT. X 


b. MADE A STATEMENTSUMMARIZED IN EXHIBIT X 

APPENDIX 18 


guilty of the offense of assaulting a superior NCO in the execution of office. I recommend 

that the suspension of the bad-conduct discharge be vacated. 
APPENDIX 18 

(Check appropriate answer) ( YES I NO 

19. DECISION OF THE OFFICER EXERCISING GENERAL COURT-MARTIALJURISDICTION OVER PROBATIONER. I I a. VACATE SUSPENSION OF THE SENTENCE TO (Ipeeff~type/emount ofpunkhment to be vacated): 

Suspension of bad-conduct discharge vacated. X 

b. NOT TO VACATE. 

c. OTHER (~peclfy): 

d. IF DECISION IS TO VACATE, INDICATE EVIDENCE RELIED ON: 

Testimony of Master Sgt Timm and Airman I. C. Nitt and Warren Teed established Airman Dice 

assaulted Timm, without provacation, while Timm was in the execution of his office. Medical 

report reflects Timm was bruised on cheek and forehead. Dice therefore violated conditions 

of suepension. 

e. IF DECISION IS TO VACATE, INDICATE REASONS FOR VACATING: 

Airman Dice's offense strikes at heart of military discipline and reflects his failure to 

adapt despite second chance. Bad-conduct discharge is appropriate. 

200. NAME OF OFFICER EXERCISING GENERAL Ib. RANK ( c. ORGANIZATION 

COURT-MARTIAL JURISDICTION OVER Commander PROBATIONER 5000th Support Wing 

Arthur K. Rabino MG APO San Francisco 99999 

d. SIGNATURE 0. OATt 

3 b&hePr 19sq A 
APPENDIX 19 

WAIVER/WITHDRAWAL OF APPELLATE RIGHTS IN GENERAL AND SPECIAL 


COURTS-MARTIAL SUBJECT TO REVIEW BY A COURT OF MILITARY REVIEW 


NOTE: See R.C.M. 1203(b) concerning which cases are subject to review by a Court of Military Review. See R.C.M. 

1110 concerning waiver or withdrawal of appellate review. 

I have read the attached action dated 1 November 1984 

I have consulted with Lieutenant Fender ,myqa.mxzi&f defense counsel concerning my 

appellate rights and I am satisfied with histher advice. 

I understand that: 

1. 	If I do not waive or withdraw appellate review -

ine a. 	 My court-martial will be reviewed by the court of ~ilit~~~ ~ ~ ~ i ~ ~

b. 	 The Court of Military Review wiU review my case to determine whether the findings and sentence are correct 


in law and fact and whether the sentence is appropriate. 


c. 	 After review by the Court of Military Review, my case could be reviewed for legal error by the United States 


Court of Military Appeals, on petition by me or on request of the Judge Advocate General. 


d. 	 If the Court of Military Appeals reviews my case, my case could be reviewed for legal error by the United 


States Supreme Court on petition by me or the Government. 


e. 	 I have the right to be represented by military counsel, at no cost to me, or by civilian counsel, at no expense 


to the United States, or both, before the Court of Military Review, the Court of Military Appeals, and the 


Supreme Court. 


2. 	 If I waive or withdraw appellate review -

a. 	 My case will not be reviewed by the Court of Military Review, or be subject to further review by the Court 


of Military Appeals, or by the Supreme Court under 28 U.S.C. 1259. 


b. 	 My case will be reviewed by a judge advocate for legal error, and I may submit in writing allegations of legal 


error for consideration by the judge advocate. 


c. 	 After review by the judge advocate and final action in my case, 1may petition the Judge Advocate General 


for correction of legal errors under Article 69(b).Such a petition must be filed within 2 years of the conven- 


ing authority's action, unless I can show good cause for filing later. 


d. 	 A waiver or withdrawal, once filed, cannot be revoked, and bars further appellate review. 

Understanding the foregoing, I (waive my rights to appellate review) ~. I 

make this decision freely and voluntarily. No one has made any promises that I would receive any benefits from this 

waiver-, and no one has forced me to make it. 

James R. Richards 	 PFC 

TYPED NAME OF ACCUSED 	 RANK OF ACCUSED 

T Nnlr~mh~~ 1ORA 

0 SIONATURE OF ACCUSED 	 DATE 
APPENDIX 19 

STATEMCNTOF COUNSEL 

(Check appropriate block) 

1. I represented the accused at his/S&xcourt-martial. 

0 2. I am associate counsel de'biled under R.C.M. 1110(b). I have communicated with the accused's (detailed) 

(individual military) (civilian) (appellate) defense counsel concerningthe accused's waiver/withdrawal and 

discussed this communication with the accused. 

3. 1am substitute counsel detailed under R.C.M. 1110(b). 

4. I am a civilian counsel whom the accused consulted concerning this matter. I am a member in good 

standing of the bar of 

6. 1am appellate defense counsel for the accused. 

I have advised the accused of hisher appellate rights and of the consequencesof waiving or withdrawingappellate 

review. The accused has elected to (waive)f**i6kclrwu)appellate review. 

Dudley D. Fender NLSO, NAS Muellerville, Florida 'f YVED NAME OF COUNSEL UNIT OF COUNSEL 

Lieutenant, JAGC, USN 

RANK OF COUNSEL BUSINESS ADDRESS (ItClvflkzn Coumel) 

5 November 1984 DATE b 
APPENDIX 20 

WAIVER~WITHDRAWALOF APPELLATE RIGHTS IN GENERAL COURTS-MARTIAL 


SUBJECT TO EXAMINATION IN THE OFFICE OF THE JUDGE ADVOCATE GENERAL 


NOTE: 	See R.C.M.1201(b)(I) concerning which cases are subject to examination in the Office of the Judge 


Advocate General. See R.C.M.11 10 concerning waiver or withdrawal of appellate review. 
 I

I 1have read the attached action, dated November lgg4 

I have consulted with Captain Rater 	 , rny~associate~defense 
 counsel concerning my 

appellate rights and I am satisfied with his/her advice. 


I

I

1understand that: 

I 1. If I do not waive or withdraw appellate review -

I a. My case will be examined in the Office of the Judge Advocate General to determine whether the findings 

and sentence are legally correct and whether the sentence is appropriate. 

b. After examination in the Office of the Judge Advocate General and final action in my case, I may petition I the Judge Advocate General for review under Article 69(b). Such a petition must be filed within 2 years 

after the convening authority took action in my case, unless I can show good cause for filing later. 

I 2. If I waive or withdraw appellate review -

I a. My case will not be examined in the Office of the Judge Advocate General under Article 69(a), UCMJ. 

b. My case will be reviewed by a judge advocate for legal error, and I may submit in writing allegations of I .legal error for consideration by the judge advocate. 

c. After review by the judge advocate and final action in my case, I may petition the Judge Advocate General I for review under Article 69(b). Such a petition must be filed within 2 years after the convening authority 

took action in my case, unless I can show good cause for filing later. 

I d. A waiver or withdrawal, once filed, may not be revoked. 

I

3. Understanding the above, I hereby kwaive my rights to appellate reviewf(~~~msa&om~~stb& " 

%'i5w. I make this decision freely and voluntarily. No one has made any promises that I would receive any 

benefits hom this waiver-, and no one has forced me to make it. 

Gregory C. Johns 	 LCPL, USMC 

TYPED NAME OF ACCUSED 	 RANK OF ACCUSED 

5 November 1984 

SlGNAfJlREOF ACCUSED DATE 6- C. b& 

L 


DD 	 2331 84 AUG 
APPENDIX 20 

STATEMENT OF COUNSEL 

(Check appropriate block) 

a L I represented the accused at his/Aw court-martial. 

2. I am associate counsel detailed under R.C.M. 1110(b). I have communicated with the accused's (detailed) 

(individual military) (civilian) (appellate) defense counsel concerning the accused's waiver/withdrawal and 

discussed this communication with the accused. 

03. I am substitute counsel detailed under R.C.M. 1110(b). 

04. I am a civilian counsel whom the accused consulted concerning this matter. I am a member in good 

standing of the bar of 

05. 1am appellate defense counsel for the accused. 

I have advised the accused of hislher appellate rights and of the consequences of waiving or withdrawing appellate 

review. The accused has elected to (waive) 4+h&awj appellate review. 

Libby Rater LSSS, Camp Blank, GA TYPED NAME OF COUNSEL UNIT OF COUNSEL 

Captain, USMC 

RANK OF COUNSEL BUS1NESS ADDRESS (IfC~uilionCounsel) 

5 November 1984 dSlGNATURE OF COUNSEL DATE 
APPENDIX 21 


ANALYSIS 


INTRODUCTION 

The Manual for Courts-Martial, United States, 1984, includes Executive Order No. 12473 signed by Resident Reagan on 13 April 1984. 

This publication also contains various supplementary materials for the convenience of the user. 

History qf the Manual for Courts-Martial. The President traditionally has exercised the power to make rules for the government of the 

military establishment, including rules governing courts-martial. See W. Winthrop, Military Lmuand Precedents 27-28 (2d ed. 1920 reprint). 

Such rules have been promulgated under the Resident's authority as commander-in-chief,see U.S. Const., Art. 11, sec. 2, cl. 1, and, at least since 

1813, such power also has been provided for in statutes. See W. Winthrop, supra at 26-27. In 1875 Congress specifically provided for the 

Resident to make rules for the government of courts-martial. Act of March 1, 1775, Ch. 115. 18 Stat. 337. Similar authority was included in later 

statutes (see, e.g., A.W. 38 (1916)), and continues in Article 36 of the Uniform Code of Military Justice. See also Articles 18 and 56. See 

generally Hearings on H.R.3804 Before the Military Personnel Subcom. qf the House Comm. on Armed Services, 96th Cong., 1st Sess. 

5-6,14,17-18,2&21,52,106(1979). In 1979, Article 36 was amended to clarify the broad scope of the President's rulemaking authority for 

courts-martial. Act of November 9, 1979, Pub.L.No. 96-107, Section 801(b), 93 Stat. 8 10,811. See generally Hearings on H.R.3804, supra. 

In the nineteenth century the President promulgated, from time to time, regulations for the Army. Those regulations were published in 

various forms, including "Manuals". W. Winthrop, supra at 28. Such publications were not limited to court-martial procedures and related 

matters, however; they were more in the nature of compendiums of military law and regulations. The early manuals for courts-martial were 

informal guides and were not promulgated by the President. See MCM, 1895 at 1,2; MCM, 1905 at 3; MCM, 1910 at 3; MCM, 1917 at 111. See 

at50 MCM, 1921 at XM. 

The forerunner of the modem Manual for Courts-Martial was promulgated by the Secretary of War in 1895. See MCM, 1895 at 2. See also 

Hearings on H.R. 3805, supra at 5. (Earlier Manuals were prepared by individual authors. See, e.g., A. Murray, A Manualfor Courts-Martial (3d 

ed. 1893); H. Coppee, Field Manual for Courts-Martial (1863)). Subsequent Manuals through MCM, 1969 (Rev.) have had the same basic 

format, organization, and subject matter as MCM, 1895, although the contents have been modified and considerably expanded. See, e.g., MCM, 

1921 at XIX-XX. The format has been a paragraph format, numbered consecutively and divided into chapters. The subject matter has included 

pretrial, trial, and post-trial procedure. In MCM, 1917, rules of evidence and explanatory materials on the punitive articles were included. See, 

MCM, 1917 at XIV. The President first promulgated a Manual for Courts-Martial as such in 1921. See MCM, 1921 at XXVI. 

Background qfthis Manual. During the drafting of the Military Rules of Evidence (see Analysis, Part 111, introduction, infra),the drafters 

identified several portions of MCM, 1969 (Rev.) in which they considered revision appropriate. Consideration was given to amending MCM, 

1969 (Rev.) in specific areas. However, the project to draft the Military Rules of Evidence had demonstrated the value of a more comprehensive 

examination of existing law. In addition, changing the format of the Manual for Courts-Martial was considered desirable. In this regard it should 

be noted that, as indicated above, the basic format and organization of the Manual for Courts-Martial had remained the same for over 80 years, 

although court-martial practice and procedure had changed substantially. 

Upon completion of the Military Rules of Evidence in early 1980, the General Counsel, Department of Defense, with the concurrence of the 

Judge Advocates General, directed that the Manual for Courts-Martial be revised. There were four basic goals for the revision. Fist, the new 

Manual was to conform to Federal practice to the extent possible, except where the Uniform Code of Military Justice requires otherwise or where 

specific military requirements render such conformity impracticable. See Article 36. Second, current court-martial practice and applicable 

judicial precedent was to be thoroughly examined and the Manual was to be brought up to date, by modifying such practice and precedent or 

conforming to it as appropriate. Third, the format of the Manual was to be modified to make it more useful to lawyers (both military and civilian) 

and nonlawyers. Specifically, a rule as opposd to paragraph format was to be used and prescriptive rules would be separated from nonbinding 

discussion. Fourth, the procedures in the new Manual had to be workable across the spectrum of circumstances in which courts-martial are 

conducted, including combat conditions. 

These goals were intended to ensure that the Manual for Courts-Martial continues to fulfill its fundamental purpose as a comprehensive body 

of law governing the trial of courts-martial and as a guide for lawyers and nonlawyers in the operation and application of such law. It was 

recognized that no single source could resolve all issues or answer all questions in the criminal process. However, it was determined that the 

Manual for Courts-Martial should be sufficiently comprehensive, accessible, and understandable so it could be reliably used to dispose of matters 

in the military justice system properly, without the necessity to consult other sources, as much as reasonably possible. 

The Joint-Senrice Committee on Military Justice was tasked with the project. The Joint-Service Committee consists of representatives from 

each of the armed forces, and a nonvoting representative from the Court of Military Appeals. Since 1980 the Joint-Service Committee has 

consisted of Colonel (now Brigadier General) Donald W. Hansen, USA, 1980-July 1981 (Chairman, October 1980-July 1981); Colonel Kenneth 

A. Raby, USA, July 1981-January 1984 (Chairman, July 1981-September 1982); Captain Edward M. Byrne, USN, 1980-July 1981 (Chairman 

through September 1980); Captain John J. Gregory, USN, July 1981-January 1984; Colonel RichardT. Yery, USAF, 1980-March 1982; Colonel 

John E. Hilliard, USAF, March 1982-0ctober 1983 (Chairman, October 1982-October 1983); Colonel Thomas L. Hemingway, USAF, October 

1983-January 1984 (Chairman, October 1983-January 1984); Lieutenant Colonel A.E Mielczarski, USMC, 1980-July 1982; Lieutenant 
MCM, 1984 APPENDIX 21 

Colonel G.W. Bond, USMC, July 1982-October 1982, Lieutenant Colonel Gary D. Solis, USMC, October 1982-March 1983; Lieutenant 

Colonel George Lange, 111, USMC, June 1983-January 1984; Commander William H. Nonis, USCG, 1980-August 1981; CommanderThomas 

B. Snook, USCG, August 1981-September 1983; Captain William B. Steinbach, USCG, October 1983-January 1984; and Mr. Robert H. 

Mueller of the Court of Military Appeals (1980-January 1984). 

In summer 1980, Commander James E. Pinnell, USN, and Major Frederic I. Lederer, USA, prepared an initial outline of the new Manual. 

Drafting was done by the Working Group of the Joint-Service Committee on Military Justice. Since September 1980, when the drafting 

process began, the Working Group consisted of: Major John S. Cooke, USA (Chairman); Commander James E. Pinnell, USN; Lieutenant 

Colonel Richard R. James, USAF (1980-December 1982); Lieutenant Colonel Robert Leonard, USAF (December 1982 to January 1984); Major 

Jonathan R. Rubens, USMC; and Mr. John Cutts, and Mr. Robert Mueller of the staff of the Court of Military Appeals. Mr. Francis X. Gindhart 

and Mr. Jack McKay of the staff of the Court of Military Appeals also participated early in the drafting process. Clerical support was provided by 

the Court of Military Appeals. In this regard, Mrs. Gail L. Bissi has been instrumental in the success of this project. 

The Working Group drafted the Manual in fourteen increments. Each increment was circulated by each service to various field offices for 

comment. Following such comment, each increment was reviewed in the respective offices of the Judge Advocate General, the Director, Judge 

Advocate Division, Headquarters, USMC, and the Chief Counsel, USCG, and in the Court of Military Appeals. Following such review, the JointService Committee met and took action on each increment. After all increments had been reviewed and approved, the Code Committee approved 

the draft. At this time the Code Committee consisted of Chief Judge Robinson 0. Everett, Judge William H. Cook, and Judge Albert B. Fletcher, 

of the Court of Military Appeals; Rear Admiral James J. McHugh, the Judge Advocate General, USN; Major General Hugh J. Clausen, The Judge 

Advocate General, USA; Major General Thomas Bruton, The Judge Advocate General, USAF; and Rear Admiral Edward Daniels, Chief 

Counsel, USCG. Brigadier General William H.J. Tieman, USMC, also sat as an ex officio member. 

Following approval by the Code Committee, the draft was made available for comment by the public. 48 Fed. Reg. 23688 (May 26,1983). In 

September and October 1983, the comments were reviewed. The Working Group prepared numerous modifications in the draft based on 

comments from the public and from within the Department of Defense, and on judicial decisions andother developments since completion of the 

draft. In October 1983, the Joint-Service Committee approved the draft for forwarding to the General Counsel, Department of Defense, for 

submission to the President after coordination by the Office of Management and Budget. 

On November 18, 1983, Congress passed the Military Justice Act of 1983. This act was signed into law by the President on December 6, 

1983, Pub. L. No. 98-209,97 Stat. 1393 (1983). The Working Group had previously drafted proposed modifications to the May 1983 draft which 

would be necessary to implement the act. These proposed modifications were approved by the Joint-Service Committee in November 1983 and 

were made available to the public for comment in December 1983.48 Fed. Reg. 54263 (December 1,1983). These comments were reviewed and 

modifications made in the draft by the Working Group, and the Joint-Service Committee approved these changes in January 1984. The draft of the 

complete Manual and the proposed executive order were forwarded to the General Counsel, Department of Defense in January 1984. These were 

reviewed and forwarded to the Office of Management and Budget in January 1984. They were reviewed in the Departments of Justice and 

Transportation. The Executive Order was finally prepared for submission to the President, and the President signed it on 13 April 1984. 

A note on citation form. The drafters generally have followed the Uniform System ofcitation (13th ed. 1981), copyrighted by the Columbia, 

Haward, and University ofPennsylvania Lmv Reviews and the Yale Law Journal, subject to the following. 

This edition of the Manual for Courts-Martial is referred to generally as "this Manual". The Rules for Courts-Martial are cited, e.g., as 

R.C.M. 101. TheMilitary Rules of Evidence are cited, e.g.,as Mil. R. Evid. 101. Other provisions of this Manual are cited to the applicablepart 

and paragraph, e.g., MCM, Part V,paragraph la(1) (1984). 

The previous edition of the Manual for Courts-Martial will be referred to as "MCM, 1969 (Rev.)." Except as otherwise noted, this includes 

Exec. Order No. 11476, 34 Fed. Reg. 10,502 (1969), as amended by Exec. Order No. 11835,40 Fed. Reg. 4,247 (1975); Exec. Order No. 

12018,42 Fed. Reg. 57,943 (1977); Exec. Order No. 12198,45Fed. Reg. 16,932 (1980); Exec. Order No. 12223,45 Fed. Reg. 58,503 (1980); 

Exec. OrderNo. 12306,46Fed. Reg. 29,693 (1981);Exec. OrderNo. 12315,46Fed. Reg. 39,107 (1981);Exec. Order No. 12340,47 Fed. Reg. 

3,071 (1982); Exec. Order No. 12383.47 Fed. Reg. 42,3 17 (1982), and Executive Order No. 12460, Fed. Reg. (1984). Earlier editions of the 

Manual for Courts-Martial, will be identified by a complete citation. 

The Uniform Code of Military Justice, 10 U.S.C. Sections 801-940, as amended by the Military Justice Act of 1983, Pub. L. No. 98-209, 

97 Stat. 1393 will be cited as follows: 

Each individual section is denominated in the statute as an "Article" and will be cited to the corresponding Article. E.g., 10 U.S.C. Section 

801 will be cited as "Article 1 "; 10 U.S.C. Section 802 will be cited as "Article 2"; 10 U.S .C. Section 940 will be cited as "Article 140". The 

entire legislation, Articles 1 through 140, will be referred to as "the Code" or "the UCMJ" without citation to the United States Code. When a 

change from MCM, 1969 (Rev.) is based on the Military Justice Act of 1983, Pub. L. No. 98-209,97 Stat. 1393 (1983), this will be noted in the 

analysis, with citation to the appropriate section of the act. When this analysis was drafted, the specific page numbers in the statutes at large were 

not available. 

Composition ofthe Manual for Courts-Martial (1984) 

a. Executive Order (1983) 

The Executive Order includes the Manual for Courts-Martial, which consists of the Preamble, Rules for Courts-Martial, Military Rules 

of Evidence, the Punitive Articles, and Nonjudicial Punishment Procedure. Each rule states binding requirements except when the text of the rule 

expressly provides otherwise. Normally, failure to comply with a rule constitutes error. See Article 59 concerning the effect of errors. 

b. Supplementary Materials 
ANALYSIS App. 21, lI 2 

As a supplement to the Manual, the Department of Defense, in conjunction with the Department of Transportation, has published a 

Discussion (accompanying the Preamble, the Rules for Courts-Martial, and the Punitive Articles), this Analysis, and various Appendices. 

(1) The Discussion 

The Discussion is intended by the drafters to serve as a treatise. To the extent that the Discussion uses terms such as "must" or 

"will", it is solely for the purpose of alerting the user to important legal consequences that may result from binding requirements in the Executive 

Order, judicial decisions, or other sources of binding law. The Discussion itself, however, does not have the force of law, even though it may 

describe legal requirements derived from other sources. It is in the nature of treatise, and may be used as secondary authority. The inclusion of both 

the President's rules and the drafters' informal discussion in the basic text of the Manual provides flexibility not available in previous editions of the 

Manual, and should eliminate questions as to whether an item is a requirement or only guidance. See, e.g., United States v. Baker, 14 M.J. 361, 

373 (C.M.A. 1973). In this Manual, if matter is included in a rule or paragraph, it is intended that the matter be binding, unless it is clearly 

expressed as precatory. A rule is binding even if the source of the requirement is a judicial decision or a statute not directly applicable to courtsmartial. If the President has adopted a rule based on a judicial decision or a statute, subsequent repeal of the statute or reversal of the judicial 

decision does not repeal the rule. On the other hand, if the drafters did not choose to "codify" a principle or requirement derived from a judicial 

decision or other source of law, but considered it sufficiently significant that users should be aware of it in the Manual, such matter is addressed in 

the Discussion. The Discussion will be revised from time to time as warranted by changes in applicable law. 

(2) The Analysis 

The Analysis sets forth the nonbinding views of the drafters as to the basis for each rule or paragraph, as well as the intent of 

the drafters, particularly with respect to the purpose of substantial changes in present law. The Analysis is intended to be a guide in interpretation. 

In that regard, note that the Analysis accompanied the project from the initial drafting stage through submission to the President, and was 

continually revised to reflect changes prior to submission to the President. Users are reminded, however, that primary reliance should be placed on 

the plain words of the rules. In addition, it is important to remember that the Analysis solely represents the views of staff personnel who worked on 

the project, and does not necessarily reflect the views of the President in approving it, or of the officials who formally recommended approval to 

the President. 

The Analysis frequently refers to judicial decisions and statutes from the civilian sector that are not applicable directly to courts-martial. 

Subsequent modification of such sources of law may provide useful guidance in interpreting rules, and the drafters do not intend that citation of a 

source in this Analysis should preclude reference to subsequent developments for purposes of interpretation. At the same time, the user is 

reminded that the amendment of the Manual is the province of the President. Developments in the civilian sector that affect the underlying 

rationale for a rule do not affect the validity of the rule except to the extent otherwise required as a matter of statutory or constitutional law. The 

same is true with respect to rules derived from the decisions of military tribunals. Once incorporated into the Executive Order, such matters have 

an independent source of authority and are not dependent upon continued support from the judiciary. Conversely, to the extent that judicial 

precedent is set forth only in the Discussion or is otherwise omitted from the Rules or the Discussion, the continuing validity of the precedent will 

depend on the force of its rationale, the doctrine of stare decisis, and similar jurisprudential considerations. Nothing in this Introduction should be 

interpreted to suggest that the placement of matter in the Discussion (or the Analysis), rather than the rule, is to be taken as disapproval of the 

precedent or as an invitation for a court to take a different approach; rather, the difficult drafting problem of choosing between a codification and 

common law approach to the law frequently resulted in noncodification of decisions which had the unanimous support of the drafters. To the extent 

that future changes are made in the Rules or Discussion, corresponding materials will be included in the Analysis. 

The Appendices contain various nonbinding materials to assist users of this Manual. The Appendices also contain excerpts from pertinent 

statutes. These excerpts are appropriate for judicial notice of law, see Mil. R. Evid. 201A, but nothing herein precludes a party from proving a 

change in law through production of an official codification or other appropriate evidence. 

PART I 


PREAMBLE 


Introduction. The preamble is based on paragraphs 1 and 2 of MCM, 1969 (Rev.). See generally Military Justice Jurisdiction @Courts-Martial, 

DA PAM 27-174, chapter 1 (May 1980.) 

1. Sourcesof military jurisdlction. This subsection is based on paragraph 1 of MCM, 1969 (Rev.). The provisions of the constitution which 

are sources of jurisdiction of military courts or tribunals include: Art. I, sec. 8, cl. 1, 9-16, 18; Art. 11, sec. 2; Art. IV, sec. 4; and the fifth 

amendment. As to sources in international law, see, e.g., Exparte Quirin, 317 U.S. 1 (1942); Geneva Convention Relative to the Treatment of 

Prisonersof War, Aug. 12, 1949, arts. 82-84,6U.S.T. 3316,3382,T.I.A.S. No. 3365,75 U.N.T.S. 287. Seegenerally DAPAM27-174,supra 

at paragraph 1-3. 

2. Exercise of military jurisdiction. Subsection (a) is based on the first paragraph of paragraph 2 of MCM, 1969 (Rev.). 

For additional materials on martial law, see W. Winthrop, Military Law andprecedents 817-30 (2d ed. 1920 reprint); Exparte Milligan, 71 

U.S. (4 Wall.) 2 (1866). See also paragraph 3, sec. 1 of MCM, 1910 (concerning the exercise of martial law over military affiliated persons). 

For additional materials on military government, see W. Winthrop, supra at 798-817; Madsen v. Kinsella, 343 U.S. 341 (1952); Mechanics' 

and Traders' Bank v. Union Bank, 89 U.S. (22 Wall.) 276 (1875). 

For additional materials on the exercise of military jurisdiction under the law of war, see W. Winthrop, supra at 83146; Trials @ War 

Criminals Before the Nuremberg Military Tribunals (U.S. Gov't Printing Off., 195Cb51); Trials of the Major War Criminals Before the 
~pp.21, n 3 APPENDIX 21 

International Military Tribunal (International Military Tribunal, Nuremberg 1947); In re Yamashita, 327 U.S. 1 (1946); Exparte Quirin, supra; 

Ex parte Milligan, supra; Articles 18 and 2 1. 

Subsection (b) is based on the second paragraph of paragraph 2 of MCM, 1969 (Rev.). See also Article 21; DA PAM 27-174, supra at 

paragraph 1-5a; W. Winthrop, supra at 802-05,835-36. As to provost courts, see also Hearings on H .R. 2498 Before a Subcomm. ojthe House 

Comm. on Armed Services, 81st Cong., 1st Sess. 975, 1061 (1949). As to trial of prisoners of war, see Article 2(a)(9) and Article 102, 1949 

Geneva Convention Relative to the Treatment of Prisoners of War, supra. 

3. P~rp08eafmllltarylaw. See generally Chappel v. Wallace,U . S . , 103 S. Ct. -(1983);Parker v.Levy, 417 

U.S. 733 (1974); S. Rep. No. 53,98th Cong., 1st Sess. 2-3 (1983). For a discussion of the nature and purpose of military law, see R. Everett, 

Military Justice in the Armed Forces ofthe United States (1956); J. Bishop, Justice Under Fire (1974); Hodson, Military Justice: Abolish or 

Change?, 22 Kan. L. Rev. 3 1 (1975), reprinted in Mil. L. Rev. Bicent. Issue 579 (1976); Hansen, Judicial Functions for the Commander, 41 Mil. 

L. Rev. I (1968); Hearings0nH.R. 2498Before aSubcomm. ofthe House Comm. onArmedServices, 81st Cong., 1st Sess. 606,778-86 (1949); 

H. Moyer, Justice and the Military 5-23 (1972). 

4. Structure and appllcatlon of the Manual for Courts-Martial. Self-explanatory.See also the Introduction of the Analysis. 

PART II 

RULES OF COURTS-MARTIAL 

CHAPTER I. GENERAL PROVISIONS 

Rule 101. Scope, title 

(a) In general. This subsection is patterned after Fed. R. Crim. P. 1. "Courts-martial" are classified by Article 16. Supplementary procedures 

include all procedures directly relating to the court-martial process, such as preparation and authentication of the record, vacation proceedings, 

preparation of orders, and professional supervision of counsel and military judges. The rules do not govern imposition of nonjudicial punishment 

(see Part V) or administrative actions. 

(b) Title. This subsection is patterned after Fed. R. Crim. P. 60. 

Rule 102. Purpose and construction 

This rule restates Fed. R. Crim. P. 2 in terms strictly limiting the application of these rules to military justice. Accord, Mil. R. Evid. 102. 

Rule 103. Deffnltions 

The drafters have, whenever possible, followed the definitions used in the United States Code. See subsection (20). Some definitions have 

been made and followed for convenience, to avoid frequent repetition of complicated phrases. Others have been made to address variations in the 

terminology used among the services. The drafters have attempted to minimize the number of definitions. It is the drafters' intent that the words of 

the Manual be construed in accordance with their plain meaning, with due deference to previous usage of terms in military law or custom. 

(1) "Article." This definition was added to reduce repetitive citations to the Uniform Code of Military Justice. MCM, 1969 (Rev.) and its 

predecessors used the same convention. 

(2) "Capital case." This definition is based on the first two sentences of paragraph 15a (3) of MCM, 1969 (Rev.). 

(3) "Capital offense." This definition is based on the first sentence of paragraph 15a(2) of MCM, 1969 (Rev.). 

(4) "Code." This definition was added to avoid frequent repetition of "Uniform Code of Military Justice." 

(5) "Commander." This definition was added to avoid frequent repetition of the longer phrase, "commanding officer or officer in charge." 

See Articles l(3) and (4). 

(6) "Convening authority." This provision is based on paragraph 84a of MCM, 1969 (Rev.). 

(7) "Copy." This definition was added to ensure that no construction of the Manual could result in delays of cases for the sake of unavailable 

specialized forms or office equipment. 

(8) "Court-martial." Articles 16 and 39(a). 

(9) "Days." This definition is added for clarity. Cf:United States v. Manalo, 1 M.J. 452 (C.M.A. 1976). 

(10) "Detail." DoD Dir. 5550.7, Incl. 1, para. C.8 (Sep. 28, 1966). 

(11) "Explosive." 18 U.S.C. §§ 232(5); 844Q). 

(12) "Firearm." 18 U.S.C. 1 232(4). 

(13) "Joint." This definition is based on Joint Chiefs of Staff Publication 1, Dictionary of Military and Associated Terms 187 (1 Jun 79). 
ANALYSIS App. 21, R.C.M. 103(19) 

(14) "Members." This term is defined to avoid confusion about the membership of courts-martial. 

(15) "Military judge." Article 1 (10). As to presidents of special courts-martial, see Mil. R. Evid. 101(c). The latter aspect was added for 

convenience and brevity in drafting. 

(16) "Party." This definition was required by adoption of the texts of federal civilian rules, which frequently use the term. The code uses the 

same term. See, e.g., Article 49. The Military Rules of Evidence also use the term. 

(17) "Staff judge advocate." This term was not defined in the previous Manuals. It is defined to avoid variations in nomenclature among the 

services. 

(18) "Sua sponte." "Sua sponte" has been used frequently to avoid gender-specific language ("on his or her own motion"). Its use has been 

limited to passages expected to be used mainly by lawyers or with their assistance. Nonetheless, a definition is necessary for the benefit of a 

president of a special court-martial without a military judge. 

(19) "War, time of." This definition applies only to R.C.M. 1004(c)(6) and to Parts IV and V of the Manual. Parts I1 (except for R.C.M. 

1004(c)(6)) and ItI do not use or refer to "time of war." The phrase appears in several articles of the code, other than punitive articles. See Articles 

2(a)(10); 43(a), (e), and (0;71(b). The discussions of several rules address "time of war" in relation to these articles. See R.C.M. 202(a) 

Discussion (4); 407(b) Discussion; 907(b)(2)(B) Discussion. 

"Time of war" is used in six punitive articles. See Articles 101, 105, and 106 (which define offenses which can occur only in time of warArticles 101 and 106 are capital offenses), and Articles 85,90, and 1 13 (which are capital offenses in time of war). See also Article 82. In addition, 

three offenses in Part IV use time of war as an aggravating circumstance. See paragraphs 37, 40, and 104. 

The code does not define "time of war," and Congress has not generally defined the term elsewhere, despite the appearance of "time of war" 

and similar language in many statutes. See, e.g., 18 U.S.C. 5 3287; 37 U.S.C. 58 301(d); 301a(c); 310(a). In at least one instance Congress has 

expressly qualified the phrase "time of war" by saying "time of war declared by Congress." 37 U.S.C. 8 310(a). Compare 37 U.S.C. 8 310(a) 

with 37 U.S.C. 8 301(d); 301a(c). See also S. Rep. No. 544, 89th Cong., 1st Sess. 13 (1965) which equates "all out war" to a declared war. 

The legislative history of the code contains few references to this matter. The only direct reference, relating to the deletion of the phrase from 

Article 102, indicates that the working group which initially drafted the code considered "time of war" to mean "a formal state of war.'' Hearings 

on H.R.2498 Before a Subcomm. ofthe House Comm. on ArmedServices, 81st Cong., 1st Sess. 1228-29 (1949). This reference is not cited in 

any of the decisions of the Court of Military Appeals construing "time of war." 

Judicial decisions before the code had long recognized that a state of war may exist without a declaration of war. See Bas v. Tingy, 4 U.S. (4 

Dall.) 37 (1800); Hamilton v. M'Claughry, 136 F. 445 (10th Cir. 1905). See also United States v. Ayers, 4 U.S.C.M.A. 220, 15 C.M.R. 220 

(1954) and cases cited therein, W. Winthrop, Military Law and Precedents 668 (2d ed. 1920 reprint). See generally Carnahan, The Law qfWar in 

the UnitedStatesCourt$MilitaryAppeals, 22 AIL. Rev. 120 (1980-81); Stevens, Time ofwar and Vietnam, 8 A.F. JAG L. Rev. 23 (May-June 

1966). 

The Court of Military Appeals has held that time of war, as used in several provisions of the code, does not necessarily mean declared war. 

Under the court's analysis, whether a time of war exists depends on the purpose of the specific article in which the phrase appears, and on the 

circumstance surrounding application of that article. See Unitedstates v. Averette, 19 U.S.C.M.A. 363,41 C.M.R. 363 (1970) ("time of war" 

under Article 2(a)(10) means declared war; court-martial jurisdiction over civilians is to be construed narrowly); United States v. Anderson, 17 

U.S.C.M.A. 558,38 C.M.R. 386 (1968) (Vietnam war was time of war for purpose of suspension of statute of limitations under qrticle 43(a); 

accord Broussard v. Patton, 466 F.2d 816 (9th Cir. 1972)); United States v. Anderren, 4 U.S.C.M.A. 354, 15 C.M.R. 354 (1954) (Korean war 

was time of war for purpose of Article 85); United States v. Taylor, 4 U.S.C.M.A. 232, 15 C.M.R. 232 (1954) (Korean war was time of war for 

purpose of suspension of statute of limitations under Article 43(f)); United States v. Ayers, supra (Korean war was time of war for purpose of 

suspension of statute of limitations under Article 43(a)); United States v. Christensen, 4 U.S .C.M. A. 22, 15 C.M.R. 22 (1954) (Korean war was 

time of war for purpose of Article 90); UnitedStatesv. Bancrcft, 3 U.S.C.M.A. 3,11 C.M.R. 3 (1953) (Korean war was time of war for purpose of 

Article 1 13). 

The circumstances the Court of Military Appeals has examined to determine whether time of war exists include: the nature of the conflict 

(generally, there must exist "armed hostilities against an organized enemy;" UniredStates v. Shell, 7 U.S.C.M.A. 646,650,23 C.M.R. 1 10,114 

(1957)); the movement to and numbers of United States forces in, the combat area; the casualties involved and the sacrifices required; the 

maintenance of large numbers of active duty personnel; legislation by Congress recognizing or providing for the hostilities; executive orders and 

proclamations concerning the hostilities; and expenditures in the war effort. See United States v. Bancroft, supra at 5, 11 C.M.R. at 5. See also 

United States v. Anderson, supra; United States v. Shell, supra; United States v. Sanders, 7 U.S.C.M.A. 21, 21 C.M.R. 147 (1956); United 

States v. Ayers, supra. 

During the Korean war it was suggested that "time of war" existed only in the Far Eastern theater. The court did not have to decide this issue 

with respect to whether the death penalty was authorized for Articles 85, 90, or 113 because the President suspended the Table of Maximum 

Punishments (paragraph 117c of MCM (Army), 1949; paragraph 127c of MCM, 1951) only in the Far Eastern command. See Exec. Order No. 

10149,3 C.F.R. 1949-53 Comp. 326 (1950); Exec. Order No. 10247,3 C.F.R. 1949-53 Comp. 754 (1951). See also Unitedstates v. Greco, 36 

C.M.R. 559 (A.B.R. 1965). The question as to Articles 85, 90, or 113 did not arise during the Vietnam war because the Table of Maximum 

Punishments was not suspended. There are no reported cases concerning Articles 101 and 106, and the only prosecutions under Article 105 were, 

of course, for offenses arising in the theater of operations. See, e.g., United States v. Dickenson, 6 U.S.C.M.A. 438,20 C.M.R. 154 (1955); 

United States v. Gallagher, 23 C.M.R. 591 (A.B.R. 1957). 

The Court of Military Appeals rejected the argument that "time of war" is geographically limited with respect to Aritlce 43. See United 

States v. Taylor, supra; United States v. Ayers, supra. See also United States v. Anderson, supra. The court's analysis in Taylor and Ayers 
App. 21, R.C.M. 103(20) APPENDIX 21 

suggests, however, that for some purposes "time of war" may be geographically limited. For purposes of the death penalty, the prerequisite 

findings of aggravating circumstances under R.C.M. 1004 would screen out offenses which did not substantially affect the war effort. Therefore, 

possible geographic limitations in "time of war" would be subsumed in the necessary findings under R.C.M. 1004. 

Based on the foregoing, for at least some purposes of the punitive articles, "time of war" may exist without a declaration of war. The most 

obvious example would be a major attack on the United States and the following period during which Congress may be unable to meet. Cf:New 

York Life Ins. Co. v. Bennion, 158 F. 2d 260 (10th Cir. 1946), cert. denied, 331 U.S. 81 1 (1947). Moreover, as both the Korean and Vietnam 

conflicts demonstrated, United States forces may be committed to combat of substantial proportions and for extended periods, while for many 

possible reasons (see Bas v. Tingy, supra at 44) war is not formally declared. 

It should be noted that, under the article-by-aritcle analysis used by the Court of Military Appeals to determine whether time of war exists, 

"time of war'' as used in Article 106 may be narrower than in other punitive articles, at least in its application to civilians. See United States v. 

Averette, supra. See also Article 104. 

The definition does not purport to give the President power to declare war. See United States v. Ayers, supra at 227,15 C.M.R. at 227; United 

States v. Bancr@t, supra at 5, 1 1 C.M.R. at 5. Instead, it provides a mechanism by which the Resident may recognize, for purposes of removing 

or specifically raising the maximum limits on punishments for certain offenses under Part IV, that a "time of war" exists. This determination 

would be based on the existing circumstances. For purposes of codal provisions triggered by "time of war," this determination would be subject to 

judicial review to ensure it is consistent with congressional intent. C$ United States v. Bancrqft, supra. Nevertheless, a determination by the 

President that time of war exists for these purposes would be entitled to great weight. 

Paragraph 127c(5) of MCM, 1969 (Rev.) and the ninth paragraph of paragraph 127c of MCM, 1951 provided for suspension of the Table of 

Maximum Punishments as to certain articles upon a declaration of war. The Resident could, and did in the Korean war, suspend the limits the 

President had established for those offenses. Thus, the effect of the definition of "time of war" in R.C.M. 103(19) is similar to the operation of 

those paragraphs. In either case, a declaration of war or specific action by the President affects the maximum punishments. The definition under 

R.C.M. 103(19) also provides guidance, subject to judicial review as noted above, on the application of codal provisions. 

(20) "The definitions and rules of construction in 1 U.S.C. $5 1 through 5 and in 10 U.S.C. $8 101 and 801." Self-explanatory. 

Rule 104. Unlawful command influence 

This rule is based on Article 37 and paragraph 38 of MCM, 1969 (Rev.). See also United States v. Charette, 15 M.J. 197 (C.M.A. 1983); 

United States v. Blaylock, 15 M.J. 190 (C.M.A. 1983); United States v. Ledbetter, 2 M.J. 37 (C.M.A. 1976); United States v. DuBay, 17 

U.S.C.M.A. 147,37 C.M.R. 411 (1967); UnitedStates v. Wright, 17 U.S.C.M.A. 110,37 C.M.R. 374 (1967); UnitedStates Q. Hawthorne, 7 

U.S.C.M.A. 293,22 C.M.R. 83 (1956). The discussion is based on H. R. Rep. No. 491,81st Cong., 1st Sess. 21 (1949). As to supervision of 

military judges and counsel, see Articles 6,26, and 27. Subsection (b)(2)(B) is retained. It is rare that a military judge in a special court-martial is 

not assigned to the judicial agency or activity of the service concerned. See e.g., AR 27-10, para. 86b (3) (Nov. 1982). Subsection (b)(2)(B) 

ensures that in the unusual situation that it is necessary to detail a military judge not so assigned, the military judge's performance ofjudicial duties 

will not be the subject of comment or evaluation in an efficiency or fitness report prepared or reviewed by the convening authority. The second 

sentence in subsection (b)(2)(B) clarifies that the convening authority may comment only on the military judge's nonjudicial duties in such a 

report. Subsection (D) is new and clarifies that the military judge, members, and counsel are not immune from action for any offense they might 

commit while in that capacity, e.g. failure to repair. 

Rule 105. Direct communications: convening authorlties and staff judge advocates; among staff judge advocates 

This rule, while new to the Manual for Courts-Martial, is based on Article 6(b). Congress intended that Article 6(b) serve several purposes. 

Fit, by requiring convening authorities to communicate directly with their staff judge advocates on matters relating to the administration of 

military justice, it was intended that the position and effectiveness of the staff judge advocate be enhanced. Second, by providing for 

communications among judge advocates, it was intended to emphasize the independence of staff judge advocates, which in turnwould ensure that 

staff judge advocates exercise their judicial functions in a fair and objective manner. Lastly, and most importantly, Article 6(b) was intended to 

help prevent interference with the due administration of military justice. See H. R. Rep. No. 491, 81st Cong., 1st Sess. 12-13 (1949); S. Rep. 

486,81st Cong., 1st Sess. 9 (1949); 95 Cong. Rec. H. 5721 (1949); 96 Cong. Rec. S 1356 (1950). See also Cooke v. Orser, 12M.J. 335 (C.M.A. 

1982); United States v. Davis, 18 U.S.C.M.A. 170, 39 C.M.R. 170 (1969); United States v. Walsh, 11 M.J. 858 (N.M.C.M.R. 1981). 

Rule 106. Delivery at military offenders to civilian authorities 

This rule is based on Article 14(a) and on the second paragraph of paragraph 12 of MCM, 1969 (Rev.). See also United States v. Reed, 2 M.J. 

64 (C.M.A. 1976) (delivery and speedy trial); 18 U.S.C. Appendix 11. The second sentence is new. It provides express authority for restraining an 

offender to be delivered to civilian authorities, but only when such restraint is justified under the circumstances. Note that this rule does not apply 

to delivery to a foreign government; this situation ordinarily is governed by status of forces agreements. This rule applies to delivery to authorities 

of the United States or its political subdivisions. Occasionally when civilian authorities request delivery of a servicemember, the delivery cannot 

be effected immediately, e.g., when the offender is overseas. In such situations, reasonable restraint may be necessary to ensure that the delivery 

can be effected and to protect the community. The person responsible for deciding whether to relinquish the offender must decide whether there 

are adequate grounds for restraint in such cases. This rule is not intended to permit the military to restrain an offender on behalf of civilian 

authorities pending trial or other disposition. Restraint imposed under this rule is strictly limited to the time reasonably necessary to effect the 

delivery. Thus, if the civilian authorities are dilatory in taking custody, the restraint must cease. 

The discussion is based on Article 14(b). 
ANALYSIS App. 21, R.C.M. 201(b) 

Rule 107. Dismissed officer's right to request trlal by court-martial 

This rule is based on Article 4 and paragraph 11 1 of MCM, 1969 (Rev.). See also H. R. Rep. No. 491,Slst Cong., 1st Sess. 12 (1949); W. 

Winthrop, Military Law and Precedents 64 (2d ed. 1920 reprint). The text of 10 U.S.C. 8 1161(a) is as follows: 

(a) No commissioned officer may be dismissed from any armed force except- 

(1) by sentence of a general court-martial; 

(2) in commutation of a sentence of a general court-martial; or 

(3) in time of war, by order of the Resident. 

Rule 108. Rules of court 

This rule is new and is based on Fed. R. Crim. P. 57(a) and Article 140. Cj Article 66(f). See also United States v. Kelson, 3 M.J. 139 

(C.M.A. 1977). Depending on the regulations, rules of court may be promulgated on a service-wide, judicial circuit, or trial judge level, or a 

combination thereof. The rule recognizes that differences in organization and operations of services and regional and local conditions may 

necessitate variations in practices and procedures to supplement those prescribed by the code and this Manual. 

The manner in which rules of court are disseminated is within the sole discretion of the Judge Advocate General concerned. Service-wide 

rules, for example, may be published in the same manner as regulations or specialized pamphlets orjournals. Local rules may be published in the 

same manner as local regulations or other publications, for example. Parties to any court-martial are entitled to a copy, without cost, of any rules 

pertaining thereto. Members of the public may obtain copies under rules of the military department concerned. The penultimate sentence ensures 

that failure to publish in accordance with the rules of the Judge Advocate General (or a delegate) will not affect the validity of a rule if a person has 

actual and timely notice or if there is no prejudice within the meaning of Article 59. Cf:5 U.S.C. 8 552(a)(1). 

Rule 109. Professional supervision of milltary judges and counsel 

This rule is based on paragraph 43 of MCM, 1969 (Rev.). See also Articles 1(13), 6(a), 26, and 27. The previous rule was limited to conduct 

of counsel in courts-martial. This rule also applies to military trial and appellate judges and to all judge advocates and other lawyers who practice 

in military justice, including the administration of nonjudicial punishment and pretrial and posttrial matters relating to courts-martial. The rule 

also applies to civilian lawyers so engaged, as did its predecessor. The rule does not apply to lay persons. Nothing in this rule is intended to prevent 

a military judge from excluding, in a particular case, a counsel from representing a party before the court-martial over which the military judge is 

presiding, on grounds of lack of qualifications under R.C.M. 502(d), or to otherwise exercise control over counsel in accordance with these rules. 

See, e.g.,R.C.M. 801. 

CHAPTER II. JURISDICTION 

Rule 201. Jurisdiction in general 

Innoduction. The primary source of court-martial jurisdiction is Art. I, sec. 8, cl. 14 of the Constitution, which empowers Congress to make 

rules for the government and regulation of the armed forces of the United States. Courts-martial are recognized in the provisions of the fifth 

amendment expressly exempting "cases arising in the land or naval forces" from the requirement of presentment and indictment by grand jury. 

See also Part I, Preamble, for a fuller discussion of the nature of courts-martial and the sources of their jurisdiction. 

(a)Nature ofcourt-martial jurisdiction. Subsection (I) reiterates the first sentence of the second paragraph of paragraph 8of MCM, 1969 (Rev.). 

The discussion is based on paragraph 8 of MCM, 1969 (Rev.). Cf:Fed R. Crim. P. 7(c)(2); 18 U.S.C. 88 361 1-20. Courts-martial generally have 

the power to resolve issues which arise in connection with litigating criminal liability and punishment for offenses, to the extent that such 

resolution is necessary to a disposition of the issue of criminal liability or punishment. 

Subsection (2) restates the worldwide extent of court-martial jurisdiction. Article 5. See Autry v. Hyde, 19 U.S .C.M. A. 433,42 C.M.R. 35 

(1970). The discussion points out that, despite the worldwide applicability of the code, geographical considerations may affect court-martial 

jurisdiction. See R.C.M. 202 and 203. 

Subsection (3) restates the third paragraph of paragraph 8 of MCM, 1969 (Rev.). See also Chenoweth v. Van Arsdall, 22 U.S.C.M.A. 183,46 

C.M.R. 183 (1973), which held that Art. 111, sec. 2, cl. 3 of the Constitution (requiring crimes to be tried in the state in which committed) does not 

apply to courts-martial. The second sentence is based on Article 18. See also Geneva Convention Relative to the Protection of Civilian Persons in 

Time of War, August 12, 1949, 6 U.S.T. 3516, T.I.A.S. No. 3365. 

@)Requisites ofcourt-martial jurisdiction. This rule is derived from the fourth paragraph of paragraph 8 of MCM, 1969 (Rev.). The first sentence 

in the rule is new. SeeRosado v. Wyman, 397 U.S. 397,404 n.3 (1970); Wickham v. Hall, 12 M.J. 145, 152 n.8 (C.M.A. 1981). Cf: Exparte 

Poresky, 290 U.S. 30 (1933). The rule expands the list of requisites for court-martial jurisdiction to conform more accurately to practice and case 

law. Requisite (3) has been added to reflect the distinction, long recognized in military justice, between creating a court-martial by convening it, 

and extending to a court-martial the power to resolve certain issues by referring charges to it. Thus, a court-martial has power to dispose only of 

those offenses which a convening authority has referred to it. Not all defects in arefemal are jurisdictional. See UnitedStates v. Blaylock, 15 M.J. 

190 (C.M.A. 1983). Requisite (5) is listed separately for the first time. This requisite makes clear that courts-martial have the power to hear only 

those cases which they are authorized by the code to try (i.e., offenses made punishable by the code, and, in the case of general courts-martial, 

certain offenses under the law of war). Second, it recognizes the important effect of O'Callahan v. Parker, 395 U.S. 258 (1969). on courts-martial. 
App. 21, R.C.M. 201(c) APPENDIX 21 

Although nothing in this rule or R.C.M. 203 is intended to codify the service-connection requirement of O'Callahan or later decisions, the 

requirement cannot be ignored in the Manual for Courts-Martial. 

Requisites (1) and (2) restate two requisites in paragraph 8 of MCM, 1969 (Rev.). See generally United States v. Ryan, 5 M.J. 97 (C.M.A. 

1978); UnitedStates v. Newcomb, 5 M.J. 4 (C.M.A. 1978). Contrary to the holdings in Ryan and Newcomb, "errors in the assignment or excusal 

of counsel, members, or a military judge that do not affect the required composition of a court-martial will be tested solely for prejudice under 

Article 59." S. Rep. No. 53, 98th Cong., 1st Sess. 12 (1983). The second sentence of subsection (2) makes this clear, and also emphasizes that 

counsel are not a jurisdictional component of a court-martial. See Wright v. United States, 2 M. J. 9 (C.M.A. 1976). Requisite (4) is somewhat 

broader than the statement in MCM, 1969 (Rev.), since jurisdiction over the person has been affected by judicial decisions. See, e.g., McElroy v. 

United States ex. rel. Guagliardo, 361 U.S. 281 (1960); Reid v. Covert, 354 U.S. 1 (1957); United States v. Averette, 19 U.S.C.M.A. 363,41 

C.M.R. 363 (1970). Thus it is misleading to refer solely to the code as determining whether jurisdiction over the person exists. The discussion 

restates the basic principle that the judgment of a court-martial without jurisdiction is void. 

(c) Contempt. This subsection restates Article 48, except for the deletion of military commissions and provost courts. These tribunals are also 

governed by Article 48, but need not be mentioned in rules pertaining to courts-martial. 

(d) Exclusive and nonexclusive jurisdiction. Subsection (d) is based on paragraph 12 of MCM, 1969 (Rev.). Military offenses are those, such as 

unauthorized absence, disrespect, and disobedience, which have no analog in civilian criminal law. The second paragraph of paragraph 12 is 

omitted here, as this subject now appears at R.C.M. 106. Concurrent jurisdiction of courts-martial and domestic tribunals was formerly discussed 

separately from concurrent jurisdiction of courts-martial and foreign tribunals. The present rule treats both at once since, for purposes of the rule, 

each situation is treated the same. The differing considerations and legal implications in the domestic and foreign situations are treated in the 

discussion. See R.C.M. 907(b)(2)(c) for a discussion of the former jeopardy aspects of exercise of jurisdiction by more than one agency or 

tribunal. With respect to the exercise of jurisdiction by the United States or a foreign government, Wilson v. Girard, 354 U.S. 524 (1957), 

establishes that the determination of which nation will exercise jurisdiction is not a right of the accused. 

The first paragraph in the discussion reaffirms the policy found in DOD Directive 5525.1, Jan. 22, 1966 (superceded by DOD Directive 

5525.1, Aug. 7,1979), which is implemented by a triservice regulation, AR 27-50lSECNAVINST 5820.4EIAFR 110-12, Dec. 1,1978, that the 

United States seek to maximize jurisdiction over its perso~el. 

The second paragraph in the discussion restates the third paragraph in paragraph 12 of MCM, 1969 (Rev.), which was based on The Schooner 

Exchange v. McFaddon and Others, 11 U.S. (7 Cranch) 116 (1812). See also Wilson v. Girard, supra. 

(e) Reciprocal jurisdiction. This subsection is based on Article 17 and paragraph 13 of MCM, 1969 (Rev.). It continues the express presidential 

authorization for the exercise of reciprocal jurisdiction and the delegation of authority (Article 140) to the Secretary of Defense to empower 

commanders of joint commands or task forces to exercise such power. See United States v. Hooper, 5 U.S.C.M.A. 391, 18 C.M.R. 15 (1955). It 

also continues the guidance in MCM, 1969 (Rev.) concerning the exercise of reciprocal jurisdiction by commanders other than those empowered 

under R.C.M. 201(e)(2). The language is modified to clarify that manifest injury is not limited to a specific armed force. The subsection adds a 

clarification at the end of subsection (3) that a court-martial convened by a commander of a service different from the accused's is not 

jurisdictionally defective nor is the service of which the convening authority is a member an issue in which the accused has a recognized interest. 

The rule and its guidance effectuate the congressional intent that reciprocal jurisdiction ordinarily not be exercised outside of joint commands or 

task forces (Hearings on H.R. 2498 Before a Subcommitte qfthe House Commirtee on Armed Services, 8Ist Cong., 1st Sess. 612-615; 957-958 

(1949)) and is designed to protect the integrity of intraservice lines of authority. See UnitedStates v. Hooper, supra (Brosman, J.'and Latimer, J., 

concurring in the result). 

Subsection (4) has been added to avoid possible questions concerning detailing military judges from different services. 

Subsection (5) restates Article 17(b). 

(f) Types ofcourts-martial. The source for subsection (1) is Article 18. This subsection is substantially the same as paragraph 14 of MCM, 1969 

(Rev.), although it has been reorganized for clarity. Several statements in MCM, 1969 (Rev.) concerning punishments by general courts-martial 

have been placed in the discussion. As to the second sentence in subsection (l)(A)(i), see also Wickham v. Hall, 12 M.J. 145 (C.M.A. 1983); 

Wickham v. Hall, 706 F. 2d 713 (5th Cir. 1983). 

The source for subsection (2) is Article 19. Subsection (2) is based on paragraph 15 of MCM, 1969 (Rev.), although it has been reorganized 

for clarity. Note that under subsection (2)(C)(ii) a general court-martial convening authority may permit a subordinate convening authority to refer 

a capital offense to a special court-martial. This is a modification of paragraph 15a(l) of MCM, 1969 (Rev.) which said a general court-martial 

convening authority could "cause" a capital offense to be referred to a special court-martial without specifying whether the convening authority 

had to make tne referral personally. Subsection (2)(C)(iii) permits the Secretary concerned to authorize special court-martial convening 

authorities to refer capital offense to special courts-martial without first getting authorization from a general court-martial convening authority. 

Several statements in MCM, 1969 (Rev.) have been placed in the discussion. 

As to subsection (3) summary courts-martial are treated separately in R.C.M. 1301-1306. 

(g) Concurrent jurisdiction of other military tribunals. This subsection is based on the last paragraph in paragraph 12 of MCM, 1969 (Rev.). 

Rule 202. Persons subject to the jurisdiction of courts-martial 

(a)In general. This subsection incorporates by reference the provisions of the code (see Articles 2,3,4 and 73) which provide jurisdiction over the 

person. See also Articles 83,104,106. The discussion under this subsection briefly describes some of the more important requirements for courtmartial jurisdiction over persons. Standards governing active duty servicemembers (Article 2(a)(l)) are emphasized, although subsection (4) 

brings attention to limitations on jurisdiction over civilians established by judicial decisions. 
ANALYSIS App. 21, R.C.M. 202(a) 

Subsection (2)(A) of the discussion dealing with inception of jurisdiction over commissioned officers, cadets, midshipmen, warrant officers, 

and enlisted persons is divided into three parts. The first part, enlistment, summarizes this area of the law in the wake of the amendment of Article 

2 in 1979. Act of November 9,1979, Pub. L. No. 96107,5 801(a), 93 Stat. 810-1 1. In essence, the amendment eliminated recruiter misconduct 

as a factor of legal significance in matters involving jurisdiction, and reestablished and clarified the "constructive enlistment" doctrine. The 

statutory enlistment standards concerning capacity under 10 U.S.C. $5 504 and 505 thus become critical, along with the issue of voluntariness. 

As to whether an enlistment is compelled or voluntary, compare UnitedStates v. Catlow, 23 U.S.C.M.A. 142,48 C.M.R. 758 (1974) with United 

States v. Wagner, 5 M. J. 461 (C.M. A. 1978) and United States v. Lightfoot, 4 M.J. 262 (C.M. A. 1978). See also United States v. McDonagh, 14 

M.J. 415 (C.M.A. 1983). 

The second paragraph under (i) Enlistment is based on United States v. Bean, 13 U.S.C.M.A. 203,32 C.M.R. 203 (1962); United States v. 

Overron,9 U.S.C.M.A. 684,26C.M.R. 464 (1958); and I0 U.S.C. 5 1170. The last sentence is based on Article2(c) which provides that in case 

of constructive enlistment, jurisdiction continues until "terminated in accordance with law or regulations promulgated by the Secretary 

concerned." 

The last paragraph restates Article 2(c). The last sentence of that paragraph takes account of the legislative history of Article 2(c). See S. Rep. 

No. 197,96th Cong., 1st Sess. 122 (1979), which indicates that UnitedStates v. King, 11 U.S.C.M.A. 19,28 C.M.R. 243 (1959) is overruled by 

the statute. This is also reflected in the first paragraph under (ii) Induction. 

The first paragraph of (ii) Induction is (with the exception of the application of the constructive enlistment doctrine, see the immediately 

preceding paragraph) based on United States v. Hall, 17 C.M.A. 88,37 C.M.R. 352 (1967); United States v. Rodriguez, 2 U.S.C.M.A. 101,6 

C.M.R. 101 (1952); United States v. Ornelas, 2 U.S.C.M.A. 96, C.M.R. 96 (1952). See also Billings v. Truesdell, 321 U.S. 542 (1944); 

Mayborn v. Hejebower, 145 F.2d 864 (5th Cir. 1944), cert denied, 325 U.S. 854 (1945). 

The second paragraph under (ii) Induction is based on United States v. Scheuneman, 14 U.S .C.M.A. 479,34 C.M.R. 259 (1964). See also 

United States v. Wilson, 44 C.M.R. 891 (A.C.M.R. 1971). Although no military case has so held, dicta and Scheunemann supports the second 

sentence. 

As to (iii) Call to active duty, see 10 U.S.C. 5s 672,673, and 673a. See also UnitedStates v. Peel, 4 M.J. 28 (C.M.A. 1977). The second 

paragraph of this section reflects decisions in United States v. Barraza, 5 M.J. 230 (C.M.A. 1978); United States v. Kilbreth, 22 U.S.C.M.A. 

390, 47 C.M.R. 327 (1973). 

The first paragraph under (B) Termination ofjurisdiction over active duty personnel restates the basic rule. See United States v. Brown, 12 

U.S.C.M.A. 693,31 C.M.R. 297 (1962); United States v. Scott, 11 U.S.C.M.A. 646,29 C.M.R. 462 (1960). See also United States v. Gr~fln, 

13 U.S.C.M.A. 213, 32 C.M.R. 213 (1962). 

Subsection (B)(i) is based on United States v. Wheeley, 6 M.J. 220 (C.M.A. 1979); United States v. Smith, 4 M.J. 265 (C.M.A. 1978); 

United States v. Hutchins, 4 M.J. 190 (C.M.A. 1978);United States v. Hout, 19 U.S.C.M.A. 299,41 C.M.R. 299 (1970). See also Dickenson v. 

Davis, 245 F.2d 317 (10th Cir. 1957). 

Subsection (B)(ii) describes what jurisdiction remains under Article 3(a) in light of United States exrel. Toth v. Quarles, 350 U.S. 11 (1955). 

See also United States v. Clardy, 13 M.J. 308 (C.M. A. 1982). 

The exceptions in subsection (B)(iii) are restated in slightly different lanugage for clarity from paragraph llb of MCM, 1969 (Rev.). 

Exception (b)is based on United Sfates v. Clardy, supra. See also 14 M.J. 123 (C.M.A. 1982). As to exception (c), jurisdiction over prisoners in 

the custody of the armed forces, see Kahn v. Anderson, 255 U.S. 1 (1921); United States v. Nelson, 14 U.S.C.M.A. 93,33 C.M.R. 305 (1963). 

See also Mosher v. Hunter, 143 E2d 745 (10th Cir. 1944), cert. denied, 323 U.S. 800 (1945). Although it has not been judicially interpreted, the 

last sentence in paragraph 1 lb of MCM, 1969 (Rev.) has been included here. The principle it expressed has long been recognized. See the last 

sentence of paragraph 1 lb of MCM, 195 1; the last sentence of the third paragraph of paragraph 10 of MCM (Army), 1949; and the last sentence of 

the fourth paragraph of paragraph 10 of MCM, 1928. As to jurisdiction under Article 3(b), see Wickham v. Hall, 12 M.J. 145 (C.M.A. 1981); 

Wickham v. Hall, 706 F. 2d 713 (5th Cir. 1983). 

Subsection (3) described the jurisdiction under Article 2(a)(8). See also 33 U.S.C. 5 855; 42 U.S.C. 5 217. 

Subsection (4) of the discussion points out that jurisdiction over civilians has been restricted by judicial decisions. See generally Reid v. 

Covert, 354 U.S. 1 (1957); Toth v. Quarles, supra. The MCM 1969 (Rev.) referred to such limitations only in footnotes to Articles 2(a)(10) and 

(11) and 3(a). The discussion of R.C.M. 202 is a more appropriate place to bring attention to these matters. A brief reference in the discussion was 

considered sufficient, while the analysis provides primary sources of law in the area, should an issue arise on the subject. 

The second sentence in the subsection (4) of discussion is based on McElroy v. United States ex rel. Guagliardo, 361 U.S. 281 (1960); 

Grisham v. Hagan, 361 U.S. 278 (1960); Kinsella v. United States ex rel. Singleton, 361 U.S. 234 (1960); Reid v. Covert, supra. It is not settled 

whether "peacetime" as used in these decisions means all times other than a period of declared war, or whether "peacetime" ceases when armed 

forces are involved in undeclared wars or hostilities. There is some authority for the latter view. See W. Winthrop, Military Law and Precedents 

101 (2d ed. 1920 reprint). 

With respect to Article 2(a)(10), the Court of Military Appeals has held that "time of war" means a formally declared war (based on U.S. 

Const., art I, sec. 8, cl. 11). UnitedStates v. Averette, 19 U.S.C.M.A. 363,41 C.M.R. 363 (1970). But cf: Latney v. Ignatius, 416 F.2d 821 (D.C. 

Cir. 1969) (assuming without deciding that Article 2(a)(10) could be invoked during period of undeclared war, no court-martial jurisdiction 

existed over civilian merchant seaman for murder in Vietnam because crime and accused were not sufficiently connected with the military). See 

also Analysis, R.C.M. 103(19). 

The words "in the field" and "accompanying an armed force" have also been judicially construed. "In the field" implies military operations 
App. 21, R.C.M. 202(b) APPENDIX 21 

with a view to the enemy. 14 Ops. Atty Gen. 22 (1872). The question whether an armed force is "in the field" is not to be determined by the locality 

in which it is found, but rather by the activity in which it is engaged. Hines v. Mikell, 259 F. 28,34 (4th Cir. 1919). Thus, forces assembled in the 

United States for training preparatory for service in the actual theater of war were held to be "in the field." Hines v. Mikell, supra. A merchant ship 

and crew transporting troops and supplies to a battle zone constitute a military expedition "in the field." In re Berue, 54 F.Supp 252 (S.D. Ohio 

1944);McCune v. Kilpaaick, 53 ESupp. 80 (E.D. Va. 1943). See alsoExparte Gerlach, 247 E616 (S.D.N.Y. 1917); UnitedStates v. Burney, 6 

U.S.C.M.A. 776,21 C.M.R. 98 (1956); Hearings on H.R. 2498 BeforeaSubcomm. ofthe House Comm. on Armed Services, 81st Cong., 1st 

Sess. 872-3 (1949). But see W. Winthrop, supra at 100-102; Reid v. Covert, supra at 34 n. 61. 

One may be "accompanying an armed force" although not directly employed by it or the Government. For example, an employee of a 

contractor engaged on a military project or serving on a merchant ship carrying supplies or troops is "accompanying an armed force." Perlstein v. 

United States, 151 F.2d 167 (3d Cir 1945), cert. dism., 328 U.S. 822 (1946); In re DiBartolo, 50 F.Supp. 929 (S.D.N.Y. 1943); In re Berue, 

supra; McCune v. Kilpatn'ck, supra. To be "accompanying an armed force" one's presence within a military installation must be more than merely 

incidental, it must be connected with or dependent upon the activities of the armed forces or its personnel. Although a person "accompanying an 

armed force" may be "serving with" it as well, the distinction is important because even though a civilian's contract with the Government ended 

before the commission of an offense, and hence the person is no longer "serving with" an armed force, jurisdiction may remain on the ground that 

the person is "accompanying an armed force" because of continued connection with the military. Perlstein v. United States, supra; Grewe v. 

France, 75 ESupp. 433 (E.D. Wis. 1948). 

McElroy v. Guagliardo, supra at 285-87, discusses possible methods for extending court-martial jurisdiction over civilians in some 

circumstances. To date these methods remain undeveloped. See also Everett and Hourcle, Crime Without Punishment-Ex-sewicemen, Civilian 

Employees and Dependents, 13 A.E JAG L. Rev. 184 (1971). Civilians may be tried by general courts-martial under Article 18 and the law of war, 

See R.C.M. 201(f)(l)(B); 202(b). See also Article 21. This includes trial by court-martial in places where the United States is an occupying 

power. See, e.g., Madsen v. Kinsella, 343 U.S. 341 (1952) [upholding jurisdiction of military commission to try a dependent spouse in occupied 

Germany in 1950. Although a state of war with Germany still technically existed (see Proclamation No. 2950, 3 C.F.R. (1948-53 Comp.) 135 

(1951)) hostilities were declared terminated on 31 December 1946 (see Proclamation No. 2714,3 C.F.R. (1948-53 Comp.) 99 (1947)) and the 

United States Supreme Court observed in dicta that military courts might have jurisdiction in occupied territory even in peacetime, 343 U.S. at 

360)]. See also Wilson v. Bohlender, 361 U.S. 281, 283 n. 2 (1960); Kinsella v. Singleton, supra at 244. 

(b) menses under the law ofwar. This subsection is based on Article 18. See also Article 21. The phrase "offense subject to trial by court-martial" 

or "offense triable by court-martial" is used in the R.C.M. in recognition of the fact that the Manual for Courts-Martial governs courts-martial for 

offenses under the law of war as well as under the code. See e.g., R.C.M. 301(b); 302(c); 304(c); 305(d). In such contexts, the phrase does not 

include a requirement for a jurisdictional determination. 

(c) Attachment ofjurisdiction over the person. This subsection is based on paragraph 1 Id of MCM, 1969 (Rev.), and states the basic principle that 

once the jurisdiction of a court-martial attaches, it continues until the process of trial, appeal, and punishment is complete. See generally United 

States v. Douse, 12 M.J. 473 (C.M.A. 1982); United States v. Sippel, 4 U.S.C.M.A. 50, 15 C.M.R. 50 (1954). 

The discussion clarifies the distinction between the existence of personal jurisdiction and the attachment of jurisdiction. Compare United 

States v. Douse, supra at 479 (Everett, C.J., concurring in the result); United States v.Wheeley, 6 M.J. 220 (C.M.A. 1979); United States v. 

Hutchins, 4 M.J. 190 (C.M.A. 1978); and United States v. Hout, supra (opinion of Quinn, C.J.) with United States v. Douse, supra (opinion of 

Cook, I.); United States v. Smith, 4 M.J. 265 (C.M.A. 1978); United States v. Hout, supra at 302, 41 C.M.R. 299, 302 (1970) (Darden, J., 

concurring in the result); and United States v. Rubenstein, 7 U.S.C.M.A. 523,22 C.M.R. 3 13 (1957). See also W. Winthrop, supra at 90-91. 

Subsection (2) includes examples of means by which jurisdiction may attach. They are taken from paragraph 1 ld of MCM, 1969 (Rev.) 

although "filing of charges" has been clarified to mean preferral of charges. See United States v. Hout, supra. This list is not exhaustive. See 

United States v. Seg 13 M.J. 132 (C.M.A. 1982); United States v. Douse, supra; United States v. Smith, supra. See also United States v. 

Fitzpaaick, 14 M.J. 394 (C.M.A. 1983); United States v. Handy, 14 M.J. 202 (C.M.A. 1982); United States v. Wheeley, supra; United States v. 

Rubenstein, supra; United States v. Mansburger, 20 C.M.R. 449 (A.B.R. 1955). 

Rule 203. Jurlsdlctlon over the offense 

This rule is intended to provide for the maximum possible court-martial jurisdiction over offenses. Since the constitutional limits of subjectmatter jurisdiction are matters of judicial interpretation, specific rules are of limited value and may unnecessarily restrict jurisdiction more than is 

constitutionally required. Specific standards derived from current case law are treated in the discussion. 

The discussion begins with a brief description of the rule under O'Callahan v. Parker, 395 U.S. 258 (1969). It also describes the requirements 

established in United States v. Alej 3 M.J. 414 (C.M.A. 1977) to plead and prove jurisdiction. See also R.C.M. 907(b)(l)(A). The last three 

sentencesin subsection (b) of the discussion are based on United States v.Lockwood, 15 M. J. 1 (C.M.A. 1983). The remainder of the discussion 

reflects the Working Group's analysis of the application of service-connection as currently construed in judicial decisions. It is not intended as 

endorsement or criticism of that construction. 

Subsection (c) of the discussion lists the Relford factors, which are starting points in service-connection analysis, although the nine 

additional considerations in Relford are also significant. These factors are not exhaustive. United States v. Lockwood, supra. See also United 

States v. Dottier, 9 M.J. 337 (C.M.A. 1980). Relford itself establishes the basis for (c)(2) and (c)(3) of the discussion. It has never been seriously 

contended that purely military offenses are not service-connected per se. See Relford factor number 12. Decisions uniformly have held that 

offenses committed on a military installation are service-connected. See, e.g., United States v. Hedlund, supra; United States v. Daniels, 19 

U.S.C.M.A. 529,42 C.M.R. 131 (1970). See Relford factors 2, 3, 10, and 11. As to the thud sentence in (c)(3), see United States v. Seivers, 8 

M.J. 63 (C.M.A. 1979); United States v. Escobar, 7 M. J. 197 (C.M. A. 1979); United States v. Crapo, 18 U.S .C.M. A. 594,40 C.M.R. 306 

(1969);Harkcom v. Parker, 439 E2d 265 (3d Cir. 1971). With respect to the fourth sentence of (c)(3), see UnitedStates v. Hedlund, supra; United 
ANALYSIS App. 21, R.C.M. 301 

States v. Riehle, 18 U.S.C.M.A. 603, 40 C.M.R. 315 (1969). But c$ United States v. Lockwood, supra. Although much of the reasoning in 

UnitedStates v. McCarthy, 2 M. J. 26 (C.M.A. 1976) has been repudiated by UnitedStates v. Trottier, supra, the holding of McCarthy still appears 

to support the penultimate sentence in (c)(3). See also United States v. Lockwood, supra; United States v. Gladue, 4 M.J. 1 (C.M.A. 1977). The 

last sentence is based on United States v. Lockwood, supra. 

The discussion of drug offenses in (c)(4) is taken from United States v. Trottier, supra. 

As to (c)(5), the first sentence is based on United States v. Lockwood, supra. Whether the military status of the victim or the accused's use of a 

military identification card can independently support service-connection is not established by the holding in Lockwood. The second sentence is 

based on United States v. Wharley, 5 M.J. 39 (C.M.A. 1978); United States v. Moore, 1 M.J. 448 (C.M.A. 1976). The last sentence is based on 

United States v. Conn, supra; United States v. Borys, 18 U.S.C.M.A. 547,40 C.M.R. 259 (1969) (officer status of accused does not establish 

service-connection under Article 134) (note: service-connection of Article 133 offenses has not been judicially determined); United States v. 

Saulter, 5 M.J. 281 (C.M.A. 1978); United States v. Conn, supra (fact that accused was military policeman did not establish service-connection); 

United States v. Armes, 19 U.S.C.M.A. 15,41 C.M.R. 15 (1969) (wearing uniform during commission of offense does not establish serviceconnection). 

Subsection (c)(6) of the discussion indicates that virtually all offenses by servicemembers in time of declared war are service-connected. 

There is little case authority on this point. The issue was apparently not addressed during the conflict in Vietnam; of course, the overseas exception 

provided jurisdiction over offenses committed in the theater of hostilities. The emphasis in O'Callahan on the fact that the offenses occurred in 

peacetime (see Relford factor number 5) strongly suggests a different balance in time of war. Furthermore, in Warnerv. Flemings, a companion 

case decided with Gosa v. Mayden, 413 U.S. 665 (1973), Justices Douglas and Stewart concurred in the result in upholding Flemings' courtmartial conviction for stealing an automobile while off post and absent without authority in 1944, on grounds that such an offense, during a 

congressionally declared war, is service-connected. The other Justices did not reach this question. Assigning Relford factor number 5 such 

extensive, indeed controlling, weight during time of declared war is appropriate in view of the need for broad and clear jurisdictional lies in such 

a period. 

Subsection (d) of the discussion lists recognized exceptions to the service-connection requirement. The overseas exception was first 

recognized in United States v. Weinstein, 19 U.S.C.M.A. 29,41 C.M.R. 29 (1969). See also United Stores v. Keaton, 19 U.S.C.M.A. 64,41 

C.M.R. 64 (1969). The overseas exception flows from O'Callahan's basic premise: that the service-connection requirement is necessary to 

protect the constitutional right of service members to indictment by grand jury and trial by jury. While this premise might not be evident from a 

reading of O'Callahan alone, the Supreme Court subsequently confirmed that this was the basis of the O'Callahan rule. See Gosa v. Mayden, 

supra at 677. Since normally no civilian court in which the accused would have those rights is available in the foreign setting, the serviceconnection litation does not apply. 

The situs of the offense, not the trial, determines whether the exception may apply. United States v. Newvine, 23 U.S.C.M.A. 208, 48 

C.M.R. 960 (1974); United States v. Bowers, 47 C.M.R. 5 16 (A.C.M.R. 1973). The last sentence in the discussion of the overseas exception is 

based on UnitedStates v. Black, 1 M.J. 340 (C.M.A. 1976). Seealso UnitedStates v. Gludue, 4M.J. 1 (C.M.A. 1977); UnitedStates v. Lazzaro, 

2 M.J. 76 (C.M.A. 1976). Some Federal courts have suggested that the existence of court-martial jurisdiction over an overseas offense does not 

depend solely on the fact that the offense is not cognizable in the United States civilian courts. See Hemphill v. Moseley, 443 F. 2d 322 (10th Cir. 

1971). See also United States v. King, 6 M. J. 553 (A.C.M.R. 1978), pet. denied, 6 M.J. 290 (1979). 

Several Federal courts which have addressed this issue have also held that the foreign situs of a trial is sufficient to support court-martial 

jurisdiction, although the rationale for this result has not been uniform. See, e.g., Williams v. Froehlke, 490 F.2d 998 (2d Cir. 1974); Wimberlyv. 

Laird, 472 F.2d 923 (7th Cir.), cert. denied, 413 U.S. 921 (1973); Gallagher v. UnitedStates,423 F.2d 1371 (Ct. Cl.), cert. denied, 400 U.S. 849 

(1970);Bell v. Clark, 308 ESupp. 384 (E.D.Va. 1970), afd, 437 F.2d 200 (4th Cir. 1971). As several of these decisions recognize, the foreign 

situs of an offense is a factor weighing heavily in favor of service-connection even without an exception for overseas offenses. See Relford factors 4 

and 8. The logistical difficulties, the disruptive effect on military activities, the delays in disposing of offenses, and the need for an armed force in 

a foreign country to control its own members all militate toward service-connection for offenses committed abroad. Another consideration, often 

cited by the courts, is the likelihood that if the service-connection rule were applied overseas as it is in the United States, the practical effect would 

be far more frequent exercise of jurisdiction by host nations, thus depriving the individual of constitutional protections the rule is designed to 

protect. 

The petty offenses exception rests on a similar doctrinal foundation as the overseas exception. Because there is no constitutional right to 

indictment by grand jury or trial by jury for petty offenses (see Baldwin v. New York, 399 U.S. 66 (1970); Duncan v. Louisiana, 391 U.S. 145 

(1968); Duke v. United States, 301 U.S. 492 (1937)), the service-connection requirement does not apply to them. United States v. Sharkey, 19 

U.S.C.M. A. 26,41 C.M.R. 26 (1969). Under Baldwin v. New York, supra, a petty offense is one in which the maximum sentence is six months 

confinement or less. Any time a punitive discharge is included in the maximum punishment, the offense is not petty. See United States v. Smith, 9 

M.J. 359, 360 n. 1 (C.M.A. 1980); United States v. Brown, 13 U.S.C.M.A. 333, 32 C.M.R. 333 (1962). 

Sharkey relied on the maximum punishment under the table of maximum punishments in determining whether an offense is petty. It is the 

view of the Working Group that offenses tried by summary courts-martial and special courts-martial at which no punitive discharge may be 

adjudged are "petty offenses" for purposes of O'Callahan in view of the jurisdictional limitations of such courts. Whether the jurisdictional limits 

of a summary or such special court-martial makes an offense referred to such a court-martial petty has not been judicially determined. 

CHAPTER Ill. INITIATION OF CHARGES; APPREHENSION; PRETRIAL RESTRAINT; RELATED 


MATTERS 


Rule 301. Report of offense 

The primary source of this rule is paragraphs 29a and 31 of MCM, 1969 (Rev.). Those provisions were adopted in substance except that 

subsection (b) provides that reports be conveyed to the "immediate commander" of suspects, meaning the "commander exercising immediate 
App. 21, R.C.M. 302(a) APPENDIX 21 

jurisdiction . . . under Article 15." The language was changed because the previous language was cumbersome and legalistic. There is no 

corresponding provision in the Federal Rules of Criminal Procedure. The most closely analogous provision of the Federal Rules of Criminal 

Procedure is Rule 3 (complaints). However, "[wlith respect to the complaint, in general, it should be noted that its principle purpose is to serve as 

the basis for an arrest warrant." J. Moore, Moore's Federal Practice, Rules Pamphlet (part 3) 10 (1982). That purpose is not the same as the 

purpose of R.C.M. 301. R.C.M. 301 is simply to assure that ordinarily information relating to offenses is conveyed promptly to the suspect's 

immediate commander. 

Rule 302. Apprehenslon 

(a)Definition and scope. The definition of "apprehension" in subsection (1) is taken from Article 7(a), as was its predecessor, paragraph 18a of 

MCM, 1969 (Rev.). 

The peculiar military term "apprehension" is statutory (Article 7(a)) and cannot be abandoned in favor of the more conventional civilian 

term, "arrest." See generally United Stares v. Kinane, 1 M.J. 309 (C.M.A. 1976). See also United States v. Cordero, 11 M.J. 210, 217 n.1 

(C.M.A. 198 1) (Everett, C. J., concurring). 

The discussion of "apprehension" is also consistent with paragraphs 18a and b(1) of MCM, 1969 (Rev.). The discussion draws a distinction 

between apprehensions and detentions. The distinction is based upon the duration of the status, the legal consequences of the impairment of 

liberty, and the circumstances under which the two forms are used. Brown v. Texas, 443 U.S. 47 (1979); Dunaway v. New York, 442 U.S. 200 

(1979); Teny v. Ohio, 392 U.S. 1(1968); United States v. Schneider, 14 M.J. 189 (C.M.A. 1982); United States v. Texidor-Perez, 7 M.J. 356 

(C.M.A. 1979). 

This rule conforms in intent with the substance of Fed. R. Crim. P. 3 through 5. However, the formal warrant application process and initial 

appearance requirement of those rules are impracticable, and, given the command control aspects of the military, unnecessary for military 

criminal practice. The purposes of Fed. R. Crim. P. 3 through 5 are achieved by later rules in this chapter. 

Subsection (2) clarifies the scope of the rule. It does not affect apprehensions of persons not subject to trial by court-martial. Apprehension 

and detention of such persons by military law enforcement personnel is not part of the court-martial process; it is based on the commander's 

inherent authority to maintain law and order on the installation and on various state laws concerning citizen's arrests. See United States v. Banks, 

539 F.2d 14 (9th Cir, 1976). The rule also does not affect the authority of persons not listed in subsection (b) to apprehend. The discussion gives 

some examples of such categories. 

(b) Who may apprehend. This subsection restates the substance of Articles 7(b) and (c) and 8, and paragraphs 19a and 23 of MCM, 1969 (Rev.). 

Subsection (3), Federal civilian law enforcement officers, is the only new provision. 

Subsection (1) is taken from paragraph 19a of MCM, 1969 (Rev.). The phrase "whether subject to the code or not" is added to the present rule 

to make clear that contract civilian guards and police and similar civilian law enforcement agents of the military have the power to apprehend 

persons subject to the code. 

The discussion of subsection (1) reflects the elimination of the previous restrictive policy against apprehensions of commissioned and 

warrant officers by enlisted and civilian law enforcement personnel. This recognizes the authority of such personnel commensurate with their law 

enforcement duties. The rule does not foreclose Secretarial limitations on the discretion of such personnel. 

Subsection (2) restates the previous exercise of delegated authority under Article 7(b) to designate persons authorized to apprehend which 

appeared in the first clause in the first sentence of paragraph 19a of MCM, 1969 (Rev.). The accompanying discussion is based on the second 

sentence of paragraph 19a of MCM, 1969 (Rev.). 

Subsection (3) restates Article 8. This seemingly duplicative statement is required because the codal provision as to deserters extends the 

Federal arrest power to state and local law enforcement agents who do not have the kind of Federal arrest power possessed by their colleagues 

listed in subsection (3). The fact that a person who apprehended a deserter was not authorized to do so is not a ground for discharging the deserter 

from military custody. See paragraph 23 of MCM, 1969 (Rev.). 

(c) Grounds ofapprehension. This subsection concerns apprehension of persons subject to the code or to trial by court-martial. Note that such 

persons may be apprehended under this rule only for offenses subject to mal by court-martial. See also the analysis of subsection (a)(2) of this 

rule. The power to apprehend under this rule lasts as long as the person to be apprehended is subject to the code or to trial by court-martial. This 

provision has no explicit parallel in MCM, 1969 (Rev.) but is consistent with the limitation of the apprehension power in both the code and that 

Manual to persons subject to the code. The Federal Rules of Criminal Procedure have no similar provision either, because the arrest power of 

civilian law enforcement officials is not similarly limited by the status of the suspect. 

The subsection states alternative circumstances which must exist to permit apprehension during this period. The first two sentences restate 

the probable cause requirement for apprehension of suspects, the main use of the apprehension power of which Article 7(b) and paragraph 19a of 

MCM, 1969 (Rev.) took note. They are consistent with Fed. R. Crim. P. 4(a). No change to the substance of those provisions has been made, but 

the discussion provides that probable cause may be based on "the reports of others" to make clear that hearsay may be relied upon as well as 

personal knowledge. This addition is consistent with Fed. R. Crim. P. 4(b). The wording has been changed to eliminate the legal term, "hearsay." 

The last sentence of the subsection restates the codal authority of commissioned, warrant, petty, and noncommissioned officers to use the 

apprehension power to quell disorders, and is based on Article 7(c) and paragraph 19b of MCM, 1969 (Rev.), changed only as necessary to 

accommodate format. Cf: paragraph 19a of MCM, 1951, and of MCM, 1969 (Rev.) (authority of military law enforcement official to apprehend 

on probable cause). See also Article of War 68 (1920). Compare paragraph 20b (authority of military police) with paragraph 20c (quarrels and 

frays) of MCM (Army), 1949 and of MCM (AF), 1949. Article 7(b) expressly requires probable cause to believe an offense has been committed; 

Article 7(c) does not. 
ANALYSIS App. 21, R.C.M. 304(e) 

(d) How an apprehension may be made. In subsection (1) the general statement of procedure to make an apprehension is based on paragraph 19c, 

MCM, 1969 (Rev.) but it has been amplified in accord with United States v. Kinane, 1 M.J. 309 (C.M.A. 1976). See also United States v. Sanford, 

12 M.J. 170 (C.M.A. 1981). 

Subsection (2) is consistent with military law. It is superficially inconsistent with Fed. R. Crim. P. 4, but the inconsistency is more apparent 

than real. Civilian law enforcement officials generally have power to arrest without warrant for offenses committed in their presence and for 

felonies upon probable cause. See e.g. 18 U.S.C. $8 3052,3053,3056. To restrict the military apprehension power by requiring warrants in all or 

most cases would actually be inconsistent with civilian practice. The problem of apprehensions in dwellings is addressed by cross-reference to 

subsection (e) (2). 

Subsection (3) clarifies the power of military law enforcement officials to secure the custody of a person. There is no similar provision in the 

Federal Rules of Criminal Procedure. It is general, leaving to the services ample breadth in which to make more definitive regulations. 

The discussion restates paragraph 19d of MCM, 1969 (Rev.). There is no corollary provision in the Federal Rules of Criminal Procedure. The 

purpose of the notification is twofold. First, it ensures that the unit commander of the person in custody will know the status of that member of the 

command and can participate in later decisionmaking that will affect the availability of the member apprehended. Second, it ensures that law 

enforcement officials will promptly bring the case and suspect before the commander, thus ensuring that later procedural requirements of the code 

and these rules will be considered and met if appropriate. This is parallel in intent to Fed. R. Crim. P.5 and 5.1. 

(e) Where an apprehension may be made. Subsection (1) is based on Article 5. It is similar to Fed. R. Crim. P. 4(d)(2) but broader because the code 

is not similarly limited by geography. 

Subsection (2) adds the warrant requirement of Payton v. New York, 445 U.S. 573 (1980), conforming the procedure to military practice. See 

also Steagald v. United States, 45 1 U.S . 204 (1981); United States v. Mitchell, 12 M. J. 265 (C.M. A. 1982); United States v. Davis, 8 M. J. 79 

(C.M. A. 1979); United States v. Jamison, 2 M. J. 906 (A.C.M.R. 1976). The first sentence clarifies the extent of Payton by citing examples of the 

kinds of dwellings in which one may and may not reasonably expect privacy to be protected to such a degree as to require application of Payton. 

Subsection (C) joins the warrant requirement to the traditional power of military commanders, and military judges when empowered, to authorize 

similar intrusions for searches generally and other kinds of seizures. The first sentence of the last pararaph in subsection (2) is based on Steagald v. 

UnitedStates, supra. The Working Group does not regard Steagald as requiring an exlusionary rule or supplying standing to an accused on behalf 

of a third party when the accused's right to privacy was not violated. See Rakas v. Illinois, 439 U.S. 128 (1978). Failure to secure authorization or 

warrant to enter a private dwelling not occupied by the person to be apprehended may violate the rights of residents of that private dwelling. 

Rule 303. Investigation of charges 

This rule is based on paragraph 32 of MCM, 1969 (Rev.). Much of the predecessor now appears in the accompanying discussion. 

Rule 304. Pretrial restraint 

(a) Types ofpretrial restraint. Except for the "conditions on liberty" provision, which is new, this subsection is based on paragraphs 20a, b, and c 

of MCM, 1969 (Rev.). Some of the language of the former Manual which explained the distinction between arrest and restriction in lieu thereof 

and which described the consequences of breaking restrictions has been moved to the discussion. 

The "conditions on liberty" provision is set out separately in the Manual for the first time, although such conditions (several examples of 

which are included in the discussion) have been in practice previously and have received judicial recognition. See UnitedStates v. Heard, 3 M.J. 

14,20 (C.M.A. 1977); c$ Pearson v. Cox, 10 M. J. 317, 321 n. 2 (C.M.A. 1981) (conditions during period of deferment of adjudged sentence). 

Such conditions also parallel the conditions on release described in 18 U.S.C. 8 3146(a). See also ABA Standards, Pretrial Release 8 1Ck5.2 

(1979). The discussion notes that pretrial restraint, including conditions on liberty, may not improperly hinder trial preparation. See United States 

v. Aycock, 15 U.S.C.M.A. 158, 35 C.M.R. 130 (1964); United States v. Wysong, 9 U.S.C.M.A. 249, 26 C.M.R. 29 (1958). 

The last sentence of the second paragraph of the discussion is based on UnitedStates v. Weisenrnuller, 17 U.S.C.M.A. 636,38 C.M.R. 434 

(1968); UnitedStates v. Smith, 17 U.S.C.M.A. 427, 38 C.M.R. 225 (1968); United States v. Williams, 16 U.S.C.M.A. 589,37 C.M.R. 209 

(1967). See also United States v. Nelson, 5 M. J. 189 (C.M.A. 1978); United Stares v. Powell, 2 M.J. 6 (C.M.A. 1976). 

(b) Who may orderpretrial restraint. This subsection restates, in a reorganized format, paragraph 2la of MCM, 1969 (Rev.). It is based on Article 

9(b) and (c). The code does not address forms of restraint less severe than arrest; there is no reason to permit a broader class of persons than those 

who may impose arrest or confinement to impose less severe forms of restraint. Subsection (4) is based on UnitedStates v. Gray, 6 U.S.C.M.A. 

615, 20 C.M.R. 331 (1956). A commander who, under subsection (4), has withheld authority to order pretrial restraint may, of course, later 

modify or rescind such withholding. Even if such modification or rescission is denominated a "delegaton," it would be a rescission of the earlier 

withholding. The limits of subsection (3) would not apply. 

(c) When aperson may be restrained. This subsection is based on Articles 9(d) and 10. Although forms of restraint less severe than arrest are not 

addressed by these articles, it is appropriate to require probable cause and a need for restraint for all forms of pretrial restraint. An officer imposing 

restraint has considerable discretion in determining how much restraint is necessary (cf: 18 U.S.C. $8 3146(a) and 3147), although a decision to 

confine is subject to thorough review under R.C.M. 305. The discussion borrows from the language of Article 13 to admonish that the restraint 

must serve only the limited purpose of this rule. See subsection (f). See also United States v. Haynes, 15 U.S.C.M.A. 122.35 C.M.R. 94 (1964). 

(d) Procedures for orderingpretrial restraint. This subsection is based on Article 9(b) and (c) and on paragraph 20d(2) and (3) of MCM, 1969 

(Rev.). Since all forms of restraint other than confinement are moral rather than physical, they can be imposed only by notifying the person 

restrained. 

(e) Notice ofbasis for restraint. This subsection is based on Article 10. Since all forms of restraint other than confinement involve some form of 
App. 21, R.C.M. 3040 APPENDIX 21 

communication with the accused or suspect, this subsection will impose no undue burden on commanders. The discussion refers to R.C.M. 

305(e) which contains additional notice requirements for a person who is confined. Failure to comply with this subsection does not entitle the 

accused to specific relief in the absence of a showing of specific prejudice. C' United States v. Jernigan, 582 F. 2d 121 1 (9th Cir.), cert. denied, 

439 U.S. 991 (1978); United States v. Grandi, 424 F. 2d 399 (2d Cir. 1970); cert. denied, 409 U.S. 870 (1972). 

Retrial restraint other than pretrial confinement (see R.C.M. 305(e)(2) and (0) does not alone require advice to the suspect of the right to 

detailed counsel or civilian counsel. Fed. R. Crim. P.5(c) is not analogous because the advice at the initial appearance serves multiple purposes 

other than for pretrial restraint short of confinement. The advice at the initial appearance is designed to protect the defendant not only when pretrial 

confinement is imposed, but for events in the criminal process which follow shortly thereafter. Thus, it is necessary under that provision to inform 

a defendant of the right to counsel immediately because the suspect or accused may shortly thereafter be called upon to make important decisions. 

In contrast, the Rules for Courts-Martial treat each step in the pretrial process separately and provide for advice of the right to counsel when 

counsel is necessary. R.C.M. 305(e)(2) and (0 (pretrial confinement); 406 (detailing counsel for an accused in an investigation under Article 32); 

503 and 506 (detailing counsel for an accused in courts-martial); Mil. R. Evid. 305 (warnings to accompany interrogations). The difference is a 

result of the structural differences between these Rules and the Federal Rules of Criminal Procedure. The intent and result of both systems are the 

same. 

(0 Punishment prohibited. This section is based on Article 13; paragraph 18b(3) of MCM, 1969 (Rev.); Hearings on H.R. 2498 Before a 

Subcomm. qfthe House Comm. on Armed Services, 81st Cong., 1st Sess. 916 (1949). See also United States v. Bruce, 14 M.J. 254 (C.M.A. 

1982); United States v. Davidson, 14 M.J. 81 (C.M.A. 1982); United States v. Pringle, 19 U.S.C.M.A. 324, 41 C.M.R. 324 (1970); United 

States v. Bayhand, 6 U.S.C.M.A. 762,21 C.M.R. 84 (1956). Cf:Bell v. Wolfish, 441 U.S. 520 (1979). The remedy for a violation of this rule is 

meaningful sentence relief. United States v. Pringle, supra; United States v. Nelson, 18 U.S.C.M.A. 177, 39 C.M.R. 177 (1969). 

(g) Release. This subsection is based on paragraph 21d and on the second and third sentences of paragraph 22 of MCM, 1969 (Rev.). 

(h) Administrative restraint. This subsection clarifies the scope of this rule. 

Rule 305. Pretrlal confinement 

Introduction. This rule clarifies the bases for pretrial confinement, and establishes procedures for the imposition and review of pretrial 

confinement. The rule conforms with requirements established by recent decisions. See United States v. Lynch, 13 M.J. 394 (C.M.A. 1982); 

United States v. Malia, 6 M.J. 65 (C.M. A. 1978); United States v. Heard, 3 M.J. I4 (C.M. A. 1977); Courtney v. Williams, 1M .J. 267 (C.M.A. 

1976). The most significant changes include: prevention of foreseeable serious misconduct as a basis for pretrial confinement; a system of review 

of pretrial confinement by neutral and detached officials; specific authority for a military judge to direct release of an accused from pretrial 

confinement; and a specific and meaningful remedy for violation of the rule. 

The Working Group considered various procedural mechanisms for imposition and review of pretrial confinement. Numerous practical, as 

well as legal, concerns were analyzed and weighed in striking a balance between individual liberty and protection of society. The Working Group 

proceeded from the premise that no person should be confined unnecessarily. Neither the prisoner nor the government benefits from unnecessary 

confinement. On the other hand, in determining when confinement may be necessary, the nature of the military and its mission is an important 

consideration. Moreover, some of the collateral impact associated with pretrial confinement in civilian life (loss of job, income, and access to 

defense counsel) is normally absent in the military setting and pretrial confinement is seldom lengthy. See R.C.M. 707. Finally, the procedures for 

imposition and review of pretrial confinement had to be compatible with existing resources. More specific considerations are addressed below. 

(a) In general. This'subsection is based on the first sentence of paragraph 20c of MCM, 1969 (Rev.). The second sentence of that paragraph is 

deleted here; the subject is treated at subsections (d) and (h)(2) of this rule. The first sentence of the discussion, with the addition of the words "of 

the United States," is Article 12. The second sentence is new, and restates current practice. 

(b) Who may be confined. This subsection is new. It restates current law. 

(c) Who may order confinement. See Analysis, R.C.M. 304(b). 

(d) When a person may be confined. This subsection contains the two basic codal prerequisites for pretrial confinement: (1) probable cause to 

believe an offense has been committed by the person to be confined (Article 9(d)); and (2) circumstances require it (Article 10). This basic 

standard, which applies to all forms of pretrial restraint, was selected here in lieu of a more detailed formulation since the initial decision to confine 

often must be made under the pressure of events. The discussion encourages consideration of the factors discussed under (h)(2)(B) of this rule 

before confinement is ordered, and, as a practical matter, this will probably occur in many cases, since persons ordering confinement usually 

consider such matters in making their decision. An initial decision to confine is not illegal, however, merely because a detailed analysis of the 

necessity for confinement does not precede it. Cf: Gerstein v. Pugh, 420 U.S. 103, 113-14 (1975). 

The discussion notes that confinement must be distinguished from custody incident to an apprehension. See R.C.M. 302. This paragraph is 

based on Article 9(e) and paragraphs 19dand 174c and d ofMCM, 1969(Rev.). Article 9(e) expressly distinguishes confinementfrom measures to 

"secure the custody @an alleged offender untilproper authority may be notiJied." Suchperiods qfcustody are not confinement within the meaning 

qfthis rule. See United States v. Ellsey, 16 U.S.C.M.A. 455, 37 C.M.R. 75 (1966). Such custody may continue only for the period of time 

reasonably necessary for a proper authority under R.C.M. 304 to be notified and to act. See Article 9(e). See also paragraphs 21 and 22, Part IV, 

(e) Advice to the accused upon confinement. Except for subsection (e)(l), which is based on Article 10 and appeared in subparagraph 20d(4) of 

MCM, 1969 (Rev.) this subsection is new. It is similar to Fed. R. Crim. P. 5(c) which requires the magistrate to give such advice tothe defendant at 

the initial appearance. The rule does not specify who shall inform the accused. This affords considerable flexibility in implementing this 

provision. 
ANALYSIS App. 21, R.C.M. 305(h) 

Note that violation of this subsection does not trigger the remedy in subsection (k) of this rule. Consequently, a violation of this subsection 

must be tested for prejudice. See Article 59. 

(f) Military counsel. This subsection is new. The primary purpose of the rule is to help protect the accused's interest in the pretrial confinement 

determinations. Secondarily, this requirement should enable the accused to avoid injury to the defense in subsequent proceedings, and, when 

necessary, to begin to marshal a defense. See, e.g., Article 49(a). The assignment of counsel at this stage is of central importance to ensuring the 

fairness of the pretrial confinement process. The requirement parallels similar requirements in federal practice (Fed. R. Crim. P. 5(c) and 44(a)) 

and under the District of Columbia Code (D.C. Code 123-1322(c)(4)). See generally United States v. Jackson, 5 M. J. 223 (C.M.A. 1978); 

UnitedStates v. Mason, 21 U.S.C.M.A .389,45 C.M.R. 163 (1 972); UnitedStates v. Przybycien, 19 U.S.C.M. A. 120,122 n. 2,41 C.M.R. 120, 

122 n. 2 (1969). Consequently, failure to do so triggers the remedy in subsection (k) of this rule. 

The subsection does not require that counsel appointed at this stage will represent the prisoner throughout subsequent proceedings. Although 

this would be desirable, the mobility of the armed forces, the locations of confinement facilities, and the limits on legal resources render an 

inflexible requirement in this regard impracticable. Nothing in the code or the Constitution requires such early appointment of defense counsel for 

purposes of representation at trial. Cf: Gerstein v. Pugh, supra at 123; Kirby v. Illinois, 406 U.S. 682 (1972). But see United States v. Jackson, 

supra. Current case law permits assignment of counsel for a limited duration, at least if the limited nature of the relationship is made clear to the 

client at theoutset. See UnitedStatesv. Timberlake, 22 U.S.C.M.A. 117,46 C.M.R. 117 (1973); Stantenv. UnitedStates, 21 U.S.C.M.A. 431, 

45 C.M.R. 205 (1972); United States v. Kelker, 4 M.J. 323 (C.M. A. 1978); cf: United States v. Booker, 5 M. J. 238 (C.M. A. 1977). Where such a 

limited relationship is the practice, it should be included in the advice under subsection (e) of this rule to help prevent misunderstanding. If the 

limited nature of the relationship is not explained to the prisoner, it may not be possible, without the prisoner's consent, to terminate the 

relationship for the convenience of the government. UnitedStates v. Can, 1 M.J. 41 (C.M.A. 1975); UnitedStatesv. Eason, 21 U.S.C.M.A. 335, 

45 C.M.R. 109 (1972); United States v. Murray. 20 U.S.C.M.A. 61, 42 C.M.R. 253 (1970). 

Nothing in this rule requires that counsel assigned for pretrial confinement purposes be located near the prisoner. Once again, as desirable as 

this may be, such a requirement would be impracticable. It is not uncommon for a prisoner to be confined, at least initially, far from any available 

counsel. The rule is designed to afford the services considerable flexibility in dealing with such situations. The distance between the prisoner and 

defense counsel should not pose a serious problem for the defense. They can communicate by telephone, radio, or other means, and, under 

Mil.R.Evid. 502, such communications would be protected by the attorney-client privilege. Moreover, since the initial review may be 

accomplished without the presence of prisoner or defense counsel, the defense counsel may submit appropriate written matters without personal 

contact with either the prisoner or the reviewing officer. 

(g) Whomay direct releasefrom conjinement. This subsection is a substantial change from the following language from paragraph 22 of MCM, 

1969 (Rev.): "The proper authority to release from confinement in a military confinement facility is the commanding officer to whose authority 

that facility is subject." Notwithstanding this provision, the authority of the commander to whose authority the confinement facility is subject was 

often treated as ministerial in nature, at least in some of the services. Authority to direct release was recognized to repose in a commander of the 

accused. See generally Boller, Pretrial Restraint in the Military, 50 Mil.L.Rev. 71, 9699 (1970); see also United States v. Pringle, 19 

U.S.C.M.A. 324,41 C.M.R. 324 (1970). More recently, the authority of military judges (see Porter v. Richardson, 23 U.S.C.M.A. 704,50 

C.M.R. 910 (1975); Courtney v. Williams, supra) and officials appointed to do so under regulations (see United States v. Malia, supra) to order 

release from pretrial confinement has been recognized. The subsection expressly establishes the authority of such officials to direct release from 

pretrial confinement. 

(h) Notijication and action by commander. Subsection (1) is based on Article 1 l(b), although the terminology has been changed somewhat since 

the terms "commander of a guard" and "master at arms" no longer accurately describe the confinement personnel who are responsible for making 

the report. This subsection is also important in setting in motion the procedures for approval or disapproval of continuing confinement. See also 

Fed. R. Crim. P. 5(a). The discussion is based on Hearings on H.R. 2498 Before a Subcomm. ofthe Comm. on Armed Services qfthe House qf 

Representatives, 81st Cong., 1st Sess. 91 3 (1949). 

Subsection (2)(A) places the real initial decision for pretrial confinement with the prisoner's commander. Although the immediate 

commander may not be a neutral and detached official for pretrial confinement purposes (United States v. Stuckey, 10 M.J. 347 (C.M.A. 1981); 

but cf: United States v. Ezell, 6 M.J. 307 (C.M.A. 1979); Courtney v. Williams, supra), it is appropriate to give this officer the initial decision on 

pretrial confinement, so that the command implications of this determination may be fully considered and developed for later review. See 

subsections (B) and (C). This will enable the commander, who is in the best position to assess the predictive elements of the pretrial confinement 

decision, including not only the prisoner's likely behavior, but also the impact of release or confinement on mission performance, to make a record 

of such factors for the initial review. Subsection (2)(B) provides additional guidance for the commander in making this decision. 

The 72-hour requirement is intended to ensure reasonably prompt action by the commander, while at the same time allowing for situations in 

which the commander is not immediately available. If a commander were unavailable for a longer period, then some other official would normally 

qualify as acting commander (see United States v. Kalscheuer, 11 M.J. 373 (C.M.A. 1981); United States v. Murray, 12 U.S.C.M.A. 434,31 

C.M.R. 20 (1961); UnitedStates v. Bunting, 4 U.S.C.M.A. 84, 15 C.M.R. 84 (1954)) or the prisoner would be attached to another unit whose 

commander could act for these purposes. 

Subsection (2)(B) sets forth the standards for pretrial confinement. Probable cause has long been recognized as a prerequisite to confinement 

in military law. See Article 9(d); paragraph 20d(l) of MCM, 1969 (Rev.). Preventing flight is also well established as basis for confinement. See 

paragraph 20c of MCM, 1969 (Rev.); United States v. Bayhand, 6 U.S.C.M.A. 762, 21 C.M.R. 84 (1956). Preventing foreseeable serious 

criminal misconduct has not been expressly recognized in the Manual before, although it was probably included in the "seriousness of the offense 

charged" language of paragraph 20c. See, e.g., United States v. Nixon, 21 U.S.C.M.A. 480.45 C.M.R. 254 (1972). "Seriousness of the offense 

charged" was rejected as an independent justification for pretrial confinement in United States v. Heard, supra, at least insofar as it implied 

confinement may be ordered regardless of the need to prevent flight or serious criminal misconduct. Cf: United States v. Nixon, supra; United 

States v. Jennings, 19 U.S.C.M.A. 88, 41 C.M.R. 88 (1969). 
App. 21, R.C.M. 305(1) APPENDIX 21 

Although prevention of serious misconduct is expressly authorized as a basis for pretrial confinement for the first time, it is, as the foregoing 

analysis indicates, not new to military practice. Indeed the phrase "foreseeable serious criminal misconduct" comes from Heard. See also United 

States v. Nixon, supra; United States v. Gaskins, 5 M.J. 772 (A.C.M.R. 1978); Dep't of Defense Directive 1325.4 (7 Oct 68). The need for 

confinement for such purposes has been recognized and sanctioned in civilian communities. United States v. Edwards, 430 A.2d 1321 (D.C. 

1981), cert. denied, -U.S.-(1982). See also U.S. Dep't of Justice, Attorney General's TaskForce on Violent Crime, Final 

Report 50-53 (August 1981); Burger, Report ofthe Chief Justice to the Amercian Bar Association-1981. 67 A.B.A.J. 290, 292 (1981); Note, 

Preventive Detention Before Trial, 79 Harv.L.Rev. 1489 (1966). The need for confinement to prevent serious misconduct is particularly acute in 

the military. The business of military units and the interdependence of their members render the likelihood of serious criminal misconduct by a 

person awaiting trial of even graver concern than in civilian life. Moreover, as expressed in the last sentence of subsection (B), these concerns 

render a broader range or misconduct of a potentially serious nature. For example, the "quitter" who disobeys orders and refuses to perform duties, 

while others are expected to carry out unpleasant or dangerous tasks, has immensely adverse effect on morale and discipline which, while 

intangible, can be more dangerous to a military unit than physical violence. Thus, although the "pain in the neck" (UnitedStates v. Heard, supra) 

may not be confined before trial solely on that basis, the accused whose behaviour is not merely an irritant to the commander, but is rather an 

infection in the unit may be so confined. Even constant supervision accomplishes little in such cases, and military resources do not permit, nor is it 

reasonable to require, the establishment of some holding facility other than a confinement facility for such persons. 

The definition of national security is based on Exec. Order No. 12065 $ 6-104 (June 28,1978), 43 Fed. Reg. 28949, as amended by Exec. 

Order No. 12148 (July 1979), 44 Fed. Reg. 43239, and Exec. Order No. 12148 (July 19,1979), 44 Fed. Reg. 56673, reprintedat 50 U.S.C.A. 

5 401 (West Supp. 1982). The second ("includes") phrase is taken from Joint Chiefs of Staff Publication 1, Dictionary of Military and Associated 

Terms 228 (1 Jul 79). 

The factors for consideration in the discussion are taken from 18 U.S.C. $ 3146(b), with minor modifications. See also ABA Standards, 

Pretrial Release $$ 10-3.2, 10-3.3, 1@4.4(d), 10-5.l(b) (1979), "embraced" in United States v. Heard, supra at 23-24. The discussion also 

notes that the Military Rules of Evidence do not apply to the information considered. Although the commander's decision is not directly analogous 

to a bail determination before a magistrate, this provision is consistent with 18 U.S.C. $ 3146(f). 

The last paragraph in the discussion is a reminder of the obligation to consider less severe forms of restraint before approving continued 

confinement. United States v. Heard and United States v. Gaskins, both supra. The alternatives, which are also referred to in R.C.M. 304, are 

derived from 18 U.S.C. $ 3146(a). 

The procedures in this rule are the same whether the basis of confinement is risk of flight or foreseeable serious misconduct. This is 

appropriate since bail is unavailable in the military. United States v. Heard, supra; 18 U.S.C. 5 3156. Cf: Levy v. Resor, 17 U.S .C.M.A. 135,37 

C.M.R. 399 (1967). Since the decision is whether or not to confine, whether the basis is risk of flight or foreseeable misconduct, and since the 

factual, predictive, and discretionary determinations are qualitatively the same in either case, there is no reason for procedures to differ 

concerning them. Indeed, the District of Columbia Court of Appeals acknowledged that even where the possibility of bail exists in potential flight 

cases, the two determinations involve the same fundamental considerations. See United States v. Edwards, supra at 133637. 

The requirement for a memorandum in subsection (2)(C) is new although not to military practice. See, e.g., AR 27-10, para. 9-5b(1), 16-5a 

(1 September 1982); SECNAVINST 1640.10, para. 6 (16 August 1978). The memorandum is important to the remaining pretrial confinement 

procedures since it ordinarily provides the primary basis for subsequent decisions concerning pretrial confinement. 

(i) Procedures for review ofpretrial confinement. This subsection is new, although it roughly parallels current practice in the services. The 

requirement for review by an official, other than the commander ordering the confinement, who is neutral and detached, in subsection (2) is 

consistent with the requirement of Courtney v. Williams, supra. Although in United States v. Malia, supra, the Court of Military Appeals 

identified the term "magistrate" with the term "judge," the Working Group did not construe this to require that a military judge must conduct the 

initial review. Cf:United States v. Lynch, supra. Judicial review is provided in subsection (i).Instead, the term as used in Malia appears to denote a 

neutral and detached official with independent power to review and order release from pretrial confinement. In any event, it is not practicable to 

require that the reviewing officer be a military judge, especially if the review is to occur promptly and if the accused is to be permitted to appear 

personally before the reviewing officer. There are not enough military judges available to accomplish this task. Moreover, a legally trained 

magistrate is not necessary since the pretrial confinement decision is essentially factual and predictive. Cf: Shdwick v. City ofTampa, 407 U.S. 

345 (1972) (magistrate need not be a lawyer). Thus the rule leaves the selection of reviewing officers to service Secretaries. 

The review must take place within 7 days of the imposition of confinement under R.C.M. 305. This is a more extended period than is the 

norm for an initial appearance in federal courts. See Fed.R.Crim.P. 5(a); Gerstein v. Pugh, supra. However, Federal courts are willing to tolerate 

delays of several days, so long as the defendant does not suffer prejudice beyond the confinement itself during such periods. See, e.g., United 

States v. Motes-Zarate, 552F.2d 1330 (9th Cu.1977), cert. denied, 435 U.S. 947 (1978); seegenerally 8 J. Moore, MooreSFederalPractice, ch. 

5 (1982). The 7-day period is more closely analogous to the time periods authorized for the preventive detention hearing under D.C. Code 

5 2>1322(c)(3). The 7-day period, with a possible extension up to 10 days, is intended to accommodate a wide variety of circumstances. Because 

the review may be conducted entirely with written documents, without the prisoner's presence when circumstances so dictate, there should be no 

reason why a reviewing officer cannot conduct a review of the imposition of confinement within that time. Note that the 7-day period begins 

NM~II~from the time confinement is imposed by a person authorized to do so under subsection (c) of this rule. 

The rule calls for a limited proceeding. Matters are to be presented in writing to facilitate the promptness of the proceeding and to ensure that 

a record is kept of the matters considered by the reviewing officer. Notwithstanding some authority to the contrary (UnitedStates v. Heard, supra 

at 25 (Fletcher, C.J., concurring); ABA Standards, Pretrial Release $ 10-5.9 (1979)), an adversary hearing is not required. Gerstein v. Pugh and 

United States v. Edwards, both supra. Even if a more elaborate hearing might be called for in the civilian sphere (ABA Standards, supra; cf: 

United States v. Wind, 527 F.2d 672 (6th Cir. 1975)), it is appropriate to consider the institutional goals and needs of the military in measuring the 

due process requirements for pretrial confinement. Cj Wolffv. McDonnell, 418 U.S. 539 (1974). See Middendorfv. Henry, 425 U.S. 25 (1976); 

Parker v. Levy, 417 U.S. 733 (1974). The procedures in the review include the opportunity forrepresentation by counsel, access to all information 
ANALYSIS App. 21, R.C.M. 305(k) 

presented to the reviewing officer, the right to present matters for the defense, and, ordinarily, the opportunity for the prisoner and defense counsel 

to personally address the reviewing officer. Measured against the military's mission, its structure and organization, and the resources available to 

it, these procedures, coupled with the opportunity for judicial review at an Article 39(a) session, adequately protect the liberty interests of the 

prisoner. 

The review procedures are patterned after the procedures for parole revocation proceedings prescribed in Morrissey v. Brewer, 408 U.S. 471 

(1972). There the Supreme Court required that an initial review of parole revocation must be conducted by a neutral person, who need not be a 

judge; the prisoner must receive notice and have an opportunity to be present and speak, and to present written matters; and the hearing officer 

must prepare an informal summary of the findings. (A later, more thorough hearing, to be held within approximately 2 months is required under 

Morrissey;judicial review under Article 39(a) coupled with the trial itself fulfills these purposes for pretrial confinement). These requirements are 

virtually identical to those in R.C.M. 305(i)(l). The only requirement in Morrissey not present in 305 is that the hearing officer have discretionary 

power to call witnesses for purposes of confrontation. On the other hand, R.C.M. 305 provides the prisoner with the opportunity to obtain counsel 

in all cases. This is not required for parole or probation revocation. Gagnon v. Scarpelli, 41 1 U.S. 778 (1973). 

Although parole and probation revocations differ from pretrial confinement in that in the former there has already been an adjudication of 

guilt, the distinction cuts in the opposite direction insofar as (as was emphasized by the Supreme Court in Morrissey v. Brewer, supra at 482) the 

probationer or parolee typically faces a long period of confinement, unlike the pretrial confinee who, especially in the military, is not subjected to 

such a lengthy period. Moreover, in Gersteinv. Pugh, supra, the Supreme Court, noting the burden of adversary hearings at this pretrial stage (id. 

at 121 n. 23), distinguished Morrissey and Gagnon from pretrial probable cause hearings (id. at 121 n. 21) and did not require an adversary 

hearing at such pretrial proceedings. The District of Columbia Court of Appeals decided that this holding in Gerstein applies to preventive 

detention hearings as well. United States v. Edwards, supra. 

The provision that the Military Rules of Evidence do not apply at the initial review parallels federal civilian practice. See 18 U.S.C. 

13146(f). The burden of proof is on the government. A preponderance standard was selected because it strikes the best balance between the 

interests in the military setting of the prisoner and society and because it is easily understood. A higher standard is not constitutionally required. 

Gerstein v. Pugh, supra at 119-21. See also Morrissey v. Brewer, supra at 485-89. Federal civilian courts may deny bail in capital cases if "the 

court or judge has reason to believe that no one or more conditions of release will reasonably assure that the person will not flee or pose a risk of 

danger to the community." 18 U.S.C. 13148. In noncapital cases, the judge "in the exercise of his discretion" decides whether and how much 

bail will be set and hence, in effect, whether the prisoner shall be released. 18 U.S.C. 5 3146(a). 

Subsection (7) specifically authorizes the presentation of additional matters to the reviewing officer, and thus makes clear the continuing 

authority and responsibility of that officer over pretrial confinement. This continuing authority is necessary, especially in the unusual case in 

which referral of charges is delayed. 

(j)Review by military judge. This subsection is new. MCM, 1969 (Rev.) did not provide for review of pretrial confinement by the military judge, 

and it was only recently that the power of a military judge to order release from confinement was recognized, at least implicitly. See Porter v. 

Richardson, supra; United States v. Lamb, 6 M.J. 542 (N.C.M.R. 1978), pet. denied, 6 M.J. 162 (1979); United States v. Otero, 5 M.J. 781 

(A.C.M.R.), pet. denied, 6 M. J. 121 (1978). Contra, paragraph 21c of MCM, 1969 (Rev.). 

This subsection establishes that the military judge has the power after referral (UnitedStatesv. Newcomb, 5 M.J. 4 (C.M.A. 1977)) to review 

pretrial confinement and to order release when appropriate. Two separate, but related, issues may be involved: (1) whether the prisoner should be 

released as of the time of the hearing; and (2) whether confinement already served was legal. The prisoner may raise either or both of these issues 

by motion for appropriate relief. All the procedures and protections normally attendant to an Article 39(a) session (see R.C.M. 803) apply. The 

rule does not specify when such a session would take place. As with other pretrial motions (see R.C.M. 905) and with scheduling proceedings 

generally (see R.C.M. 801), the determination when an Article 39(a) session will be conducted and when a motion will be litigated is a matter 

within the sound discretion of the military judge. Note also that the matter may be addressed in a conference under R.C.M. 802 and, if the parties 

agree, resolved without need for an Article 39(a) session. The standards for either decision posit that the reviewing officer's decision is entitled to 

substantial weight (see United States v. Otero, supra) and may not be overturned in the absence of an abuse of discretion, violation of subsections 

(i)(l)(B) and (C) of this rule, or information not presented to the reviewing officer. This procedure is analogous to the appeal provisions in 18 

U.S.C. 5 3147. 

The rule is silent concerning the overlapping responsibilities of the military judge and the reviewing officer. Once charges are referred, the 

need for a reviewing officer diminishes, and it could be argued that the reviewing officer's role should terminate on referral. On the other hand, 

even after referral, the reviewing officer may be more accessible to the parties than the military judge, so that it was considered unwise to rule out 

further action by the reviewing officer. 

The remedy for certain violations of the rule is prescribed in subsection (k) of this rule and is analyzed below. Note that the military judge 

must order the remedy when one or more of the identified violations occur. 

(k) Remedy. The requirement for an administrative credit for violations in subsection (0, (h), (i), or (i)of this rule is based on United States v. 

Larner, 1 M.J. 371 (C.M.A. 1976). This credit is the sole remedy for violation of these provisions. See UnitedStates v. Nelson, 18 U.S.C.M.A. 

177,39 C.M.R. 177 (1969). Violations of other provisions would not render confinement illegal and hence would not trigger the sentence relief 

requirements. Such violations would be tested for specific prejudice, and, where such was found, would trigger a requirement to grant relief 

appropriate to cure the prejudice suffered. Note that if one of the required steps is omitted, but the next step occurs within the time period for the 

omitted step, and pretrial confinement is otherwise valid, no credit is required. For example, if the commander does not prepare a memorandum 

under subsection (h)(2)(C), but the review under subsection (i)(l) occurs within 72 hours of imposition of restraint, and the grounds for pretrial 

confinement are established, the accused is entitled to no credit. Similarly, if the military judge reviews pretrial confinement under subsection (j) 

within 7 days of the imposition of confinement and confinement is approved, the omission of the review under subsection (i)(l) would not entitle 

the accused to credit. 
App. 21, R.C.M. 305(1) APPENDIX 21 

The one day credit is in addition to the day for day credit provided by DOD Instruction 1325.4 as interpreted by United States v. Allen, 17 

M.J. 126 (C.M.A. 1984) and is intended as an additional credit to deter violations of the rule. This remedy does not replace sanctions against 

persons who intentionally violate these rules. See Articles 97, and 98. The credit for illegal pretrial confinement (in addition to any other 

administrative credit) is provided as a matter of policy, and does not reflect a determination that such cumulative credit is otherwise required. 

The credit applies against confinement, if adjudged, and then against several other specified penalties. Thus an accused entitled to sentence 

relief whose adjudged sentence includes no confinement usually will recieve some form of sentence relief. Note, however, that the remedy does 

not apply to other forms of punishment including punitive discharges or reduction in grade. This is because these penalties are so qualitatively 

different from confinement that the fact that an accused has served confinement which was technically illegal should not automatically affect these 

forms of punishment. 

The rule does not prescribe the mechanics for implementing the credit since this will depend on the stage at which the violation of the rule is 

discovered. Cf: United States v. Larner, supra. Usually the illegality will be determined by the trial judge, who shall also announce the remedy. 

After the sentence is announced, the military judge should announce on the record how the credit will apply to it. Where after application of this 

credit no confinement would remain to be served the accused should not be confined after trial. It is the responsibility of the convening authority to 

apply credit when action is taken on the sentence. See Article 57. 

(1) Confinement after release. This subsection is new and is intended to prevent a "revolving door" situation by giving finality to the decision to 

release. Cf: United States v. Malia, supra. 

(m) Exceptions. This subsection is new. Its purpose is to eliminate several procedural requirements in situations where military exigencies make 

them practically impossible to comply with. Subsection (1) would apply not only to combat situations, but also to circumstances in which a unit is 

deployed to a remote area or on a sensitive mission, albeit one not necessarily involving combat. 

Subsection (2) recognizes the special problem of vessels at sea, and permits suspension of certain procedural requirements in such cases. 

Rule 306. Initial disposition 

Introduction. Rule 306 describes who may dispose of offenses and the options available to such authorities. Although these matters are 

covered more thoroughly elsewhere (see R.C.M. 401-407, and R.C.M. 601) they are included here to facilitate a chronological approach to 

disposition of offenses. 

(a) Who may dispose @Menses. This rule and the first paragraph of the discussion are based on Articles 15, 22-24, and 30(b), and paragraphs 

3C-33,35, and 128 of MCM, 1969 (Rev.). The second sentence of the rule and the discussion are also based on paragraphs 5b(4) and 5c of MCM, 

1969 (Rev.); United States v. Charette, 15 M. J. 197 (C.M. A. 1983); United States v. Blaylock, 15 M.J. 190 (C.M.A. 1983). See also Article 37; 

UnitedStatesv. Hawthorne, 7 U.S.C.M.A. 293,22 C.M.R. 83 (1956); UnitedStatesv. Rembert, 47 C.M.R. 755 (A.C.M.R. 1973),pet. denied, 

23 U.S.C.M.A. 598 (1974). 

As noted in the second paragraph of the discussion a referral decision commits the disposition of an offense to the jurisdiction of a specific 

judicial forum, and thus bars other action on that offense until it is withdrawn from that court-martial by the convening authority or superior 

competent authority. See United States v. Charette and United States v. Blaylock, both supra. But see Article 44;R.C.M. 97(b)(2)(C). Neither 

dismissal of charges nor nonjudicial punishment (for a serious offense) bars subsequent contrary action by the same or a &fferent commander. 

Thus, a decision to dismiss charges does not bar a superior commander from acting on those charges if repreferred or from personally preferring 

charges relating to the same offenses, if no jeopardy attached to the earlier dismissal. See Legal and Legislative Basis, Manual for CourtsMartial, United States, 1951, 47. Cf:UnitedStates v. Thompson, 251 U.S. 407 (1920); Fed.R.Crim.P. 48; UnitedStates v. Clay, 481 E2d 133 

(7th Cir.), cert. denied, 414 U.S. 1009 (1973); Mann v. United States, 304 F.2d 394 (D.C.Cir.), cerr. denied, 371 U.S.896 (1962). See also 

Article 44, and R.C.M. 905(g) and Analysis, and R.C.M. 907(b)(3) and Analysis. Similarly, imposition of nonjudicial punishment does not bara 

superior commander from referring the same offenses, if they are serious, to a court-martial (Article 15(f); see also United States v. Fretwell, 1 1 

U.S.C.M.A. 377, 29 C.M.R. 193 (1960)), or from setting aside punishment already imposed. Article 15(e). See generally Part V. 

(b) Policy. This subsection is based on paragraph 30g of MCM, 1969 (Rev.). Although it is guidance only, it is sufficiently important to warrant 

inclusion in the rules as a presidential statement. 

The second paragraph of the discussion provides guidelines for the exercise of the discretion to dispose of offenses. Guideline (A) is based on 

paragraph 33h of MCM, 1969 (Rev.). Guidelines (B) through (G) are based on ABA Standards, Prosecution Function 5 3-3.9(b) (1979). The 

other guidelines in 5 3-3.9 are not needed here: 5 ?-3.9(a) (probable cause) is followed in the rule; 5 3-3.9(b)(i) is inconsistent with the 

convening authority's judicial function; 55 3-3.9(c) and (d) are unnecessary in military practice; and 5 3-3.9(e) is implicit in 5 3-3.9(a) and in 

the rule requiring probable cause. Guidelines (H), (I), and (1) were added to acknowledge other practical considerations. 

(c) How Menses may be disposed OJ This subsection is based generally on Articles 15,22-24 and 30, and paragraphs 32-35, and 128 of MCM, 

1969 (Rev.). The discussion provides additional guidance on the disposition options. 

Rule 307. Preferral of Charges 

(a) Who may prefer charges. This subsection is based on Article 30 and paragraph 29b of MCM, 1969 (Rev.). 

The first sentence of the first paragraph of the discussion is a new version of the former rule at paragraphs 5a(4) and 29c of MCM, 1969 

(Rev.), which provided that "A person subject to the code cannot be ordered to prefer charges to which he is unable truthfully to make the required 

oath on his own responsibility." This rule is subsumed in the oath requirement of Article 30 and subsection (b) of the rule. The discussion clarifies 

the circumstances under which an order to prefer charges may be given, but wams against such orders in some circumstances in which they may 

tend to encourage litigation or to invalidate an otherwise valid court-martial. The practice of ordering persons to prefer charges has a historical 
ANALYSIS 	 App. 21, R.C.M. 307(c) 

basis. W. Withrop, Military Law and Precedents 154 (2d ed. 1920 reprint); but cf: Hearings on H.R. 2498Before a Subcommittee ofthe House 

Cornminee on Armed Service, 81st Cong., 1st Sess. 850 (1949) (reflecting the fact that under the code a person who orders another to prefer 

charges is an accuser). 

The second paragraph of the discussion is a simplified version of paragraph 25 of MCM, 1969 (Rev.). The discussion observes that charges 

may be preferred against a person subject to trial by court-martial at any time. But see Article 43. Thus, when charges may be preferred depends 

only on continued or renewed personal jurisdiction. The policy forbidding accumulation of charges in paragraph 25 of MCM, 1969 (Rev.) is now 

general guidance in the discussion. Furthermore, the "reasonable delay" aspects of the discussion are no longer contingent upon absence of 

pretrial arrest and confinement, because delay for a reasonable period and good cause is always permitted. See also R.C.M. 707. 

(b)How charges arepreferred; oath. This subsection is taken from Article 30(a). This subsection is similar in purpose to Fed. R. Crirn. P. 7(c)(l)'s 

requirement that the indictment or information "shall be signed by the attorney for the government." The same concept of requiring accountability 

for bringing allegations to trial appears again at R.C.M. 601 (referral). 

The first paragraph of the discussion is based on Article 30 and paragraph 114i of MCM, 1969 (Rev.). 

The last paragraph of the discussion is consistent with Fed. R. Crim. P. 4(b). 

(c) How to allege flenses. Subsection (1) is based on paragraph 24a of MCM, 1969 (Rev.). The nomenclature of charge and specification is 

imbedded in the code. Compare Articles 30, 34(b), 43(b), 45(b), 54(a), 61, and 62 with Fed. R. Crim. P. 7(c)(l). Taking both the charge and 

specification together, the practice is entirely consistent with Fed. R. Crim. P. 7. There is no need in military practice for the differentiating 

nomenclature for indictments and informations (Fed. R. Crim. P. 7(a)); in military practice the same charges progress through the pretrial system 

without any change in nomenclature, regardless of the level of court-martial by which they are ultimately disposed. See U.S. Const. amend. V. 

That further permits military practice to disregard waiver of indictment (Fed. R. Crim. P. 7(b)) insofar as the pleadings are concerned. Finally, 

military practice does not involve criminal forfeitures in the same sense as federal civilian practice. Cf: Fed. R. Crim. P. 7(c)(2). 

Subsection (2) is based on paragraph 24a and appendix 6a of MCM, 1969 (Rev.). The definition is consistent with that part of Fed. R. Crim. 

P. 7(c)(l) which requires that "The indictment or information shall state for each count the official or customary citation of the statute, rule, 

regulation, or other provision of law which the defendant is alleged therein to have violated." The first paragraph of the accompanying discussion 

is based on paragraph 27 and appendix 6a of MCM, 1969 (Rev.). The sources of the lettered subsections of the discussion are: 

(A) Numbering charges-paragraph 24, and paragraph 3 of appendix 6a of MCM, 1969 (Rev.); 

(B) Additional charges-id.; 

(C) Preemption-Article 134; 

(D) Charges under the law of war-paragraph 12 of appendix 6a of MCM, 1969 (Rev.). 

Subsection (3)restates Fed. R. Crim. P. 7(c)(l) in military terms. That definition is consistent with paragraph 24a and Chapter VI of MCM, 

1969 (Rev.). The test of sufficiency of a specification follows UnitedStates v. Sell, 3 U.S.C.M.A. 202,ll C.M.R. 202 (1953); paragraph 87a(2) 

of MCM, 1969 (Rev.). Paragraph 29d of MCM, 1969 (Rev.) is deleted as unnecessary. A specific format for specifications is not prescribed. See 

also Introductory Discussion, Part IV. 

The sources of the lettered subsections of the accompanying discussion are: 

(A) Sample specifications-paragraph 26a of MCM, 1969 (Rev.); 

(B) Numbering specifications-paragraph 3 of appendix 6a of MCM, 1969 (Rev.); 

(C) Name and description of the accused; 

(i) 	 Name-paragraphs 4 and 5 of appendix 6a of MCM, 1969 (Rev.); 

(ii) Military association-paragraph 4 of appendix 6a of MCM, 1969 (Rev.); 

(iii) Social Security or service number-paragraphs 4 and 6 of appendix 6a of MCM, 1969 (Rev.) (note that the social security or 

service number ordinarily is entered in the data at the top of the charge sheet; see Appendix 4); and 

(iv) Basics ofpersonal jurisdiction-United States v. Alef; 3 M.J. 414 (C.M.A. 1977). See also Analysis, subsection (e)(3) 

Discussion (F)(Subject-matter jurisdiction) of this rule. 

(D) Date and time offlense-paragraph 	 7 of appendix 6a of MCM, 1969 (Rev.). As to "on or about," see UnitedStates v. Heard, 443 

F.2d 856, 859 (6th Cir. 1971); 

(E) 	Place c$ Meme-paragraph 7 of appendix 6a of MCM, 1969 (Rev.); 

(F) Subject-matter jurisdiction-United States v. Alef; supra. As to subsection (iii), United States v. Trottier, 9 M.J. 337 (C.M.A. 

1980) (jurisdiction over drug offenses). As to subsection (iv), United States v. Newvine, 23 U.S.C.M.A. 208,48 C.M.R. 960 

(1974); United States v. Keaton, 19 U.S.C.M.A. 64, 41 C.M.R. 64 (1969). 

The guidance here is not prescriptive, just as the inclusion of subject-matter jurisdiction in the sample specifications (Part IV) is always 

parenthetical, as a reminder and not as a requirement. The Working Group does not consider any particular format for such pleadings is required 

by Alef: 
App. 21, R.C.M. 307(d) APPENDIX 21 

Questions of jurisdiction are interlocutory questions to be decided by the military judge applying a preponderance standard. See R.C.M. 

905(c); 907@)(1)(A), and United States v. Ruiz, 4 M.J. 85 (C.M. A. 1977); United States v. Kuriger, 4 M. J. 84 (C.M.A. 1977); United States v. 

Cherry, 4M.J. 83 (C.M.A. 1977); UnitedStatesv. McCarrhy, 2 M.J. 26,28 n.l (C.M.A. 1976); UnitedStatesv. Jessie, 5 M.J. 573 (A.C.M.R.), 

pet. denied, 5 M.J. 300 (1978). See also United States v. Lows, 1 1 M. J. 475 (C.M.A. 1981). Ordinarily this finding will not be disturbed by 

findings by exceptions and substitutions on the general issue of guilt because of the higher standard of proof involved in such determinations. See 

generally James, Pleadings and Practice under United States v. Alef; 20 A.F. L. Rev. 22 (1978). 

(G) Description gf @ens. The sources of the section are: 

(i) Elements-paragraph 28a(3) of MCM, 1969 (Rev.); 

(ii) Words indicating criminalipid.; 

(iii) Specificiry-paragraphs 28a, 69b, and 87a(2) of MCM, 1969 (Rev.); 

(iv) Dupliciry-paragraph 28b of MCM, 1969 (Rev.); accord, Fed. R. Crim. P. 7, 8. 

(H) Other considerations in drafting specijcations. The sources of the sections are: 

(i) Principals-paragraph 9 of appendix 6a of MCM, 1969 (Rev.); 

(ii) Victim-paragraph 10 of appendix 6a of MCM, 1969 (Rev.); 

(iii) Properr)Lparagraph 13 of appendix 6a of MCM, 1969 (Rev.); 

(iv) Value-paragraph 11 of appendix 6a of MCM, 1969 (Rev.); 

(v) Documents-paragraph 28c, and paragraph 14 of appendix 6a of MCM, 1969 (Rev.); 

(vi) Orders--(a), (b)-id.; (c) Negating exceptions-United States v. Cuffee, 10 M.J. 381 (C.M.A. 1981); United States v. 

Gohagen, 2 U.S.C.M.A. 175, 7 C.M.R. 51 (1953); 

(vii) Oral statements-paragraph 28c of MCM, 1969 (Rev.); 

(viii) Joint qffenses-paragraph 26d and paragraph 8 of appendix 6a of MCM, 1969 (Rev.); 

(ix) Maners in aggravation-paragraph 127c (Table of Maximum Punishments) of MCM, 1969 (Rev.); United States v. 

Venerable, 19 U.S.C.M.A. 174, 41 C.M.R. 174 (1970). 

Subsection (4) is less restrictive than the former and traditional military practice reflected at paragraphs 25,26b and c of MCM, 1969 (Rev.) 

which favored trial of all known offenses at a single trial, but complicated that policy with policies against joining major and minor offenses and 

accumulating charges. The confusion is eliminated by leaving to the discretion of the convening authority which charges and specifications will be 

tried. See R.C.M. 601(d) and accompanying discussion. The rule in this subsection does not follow Fed. R. Crim. P.8(a), because that rule is 

entirely too unwieldy for a military criminal system, particularly in combat or deployment. 

Subsection (5) follows Fed. R. Crim. P. 8(b). The civilian rule is consistent with the former approach of paragraph 26dof MCM, 1969 (Rev.). 

The present rule goes even further by making it possible to allege related offenses against co-actors on a single charge sheet, but the rule does not 

require that approach. The rule is also consistent with the provision for common trials of paragraph 331 of MCM, 1969 (Rev.). 

(d) Harmless error in citation. The subsection restates in military nomenclature Fed. R. Crim. P. 7(c)(3). The subsection is consistent with 

paragraphs 27 and 28c, and paragraph 12 of appendix 6a of MCM, 1969 (Rev.). It is not intended to provide a comprehensive rule on harmless 

error in drafting specifications. 

Rule 308. Notlflcatlon to accused of charges 

(a)Immediate commander. This subsection paraphrases paragraphs 3281) and 33c of MCM, 1969 (Rev.). See Article 30. This subsection deletes 

the requirement for a report of the circumstances that make compliance impossible. The use of a certificate of notification is encouraged in the 

discussion. The identification of known accusers, including persons who ordered charges to be preferred, is new and protects the accused against 

unauthorized acts by such persons. See Article l(9). 

The certificate requirement is abandoned only as a requirement, and use of such certificates remains advisable, since they give evidence of 

compliance with Article 10. However, to require a certificate might risk an excessive remedy for a mere administrative failure to complete the 

certificate properly. 

There is no precisely analogous rule in the federal civilianrules, though the federal civilian rules do reach the same end-to notify an accused 

of the pendency of the allegations. Fed. R. Crim. P. 4 (arrest or summons upon complaint), 5 (initial appearance), 5.1 (preliminary examination), 

6 (grand jury), 7 (indictment, information), and 9 (warrant or summons upon indictment or information) all provide a civilian defendant with 

notice of the impending prosecution. 

The purpose of the subsection is to permit the accused to begin preparing a defense. United Stares v. Stebbins, 33 C.M.R. 677 (C.G.B.R. 

1963). The subsection originates in Articles 10 and 30 and is one of the fundamental rights of an accused. Unitedstates v. Clay, 1 U.S.C.M.A. 74, 

1 C.M.R. 74 (1951). It gains additional importance in this respect since the right of both the United States and the accused to take depositions 

arises upon preferral. Article 49(a). 
ANALYSIS App. 21, R.C.M. 405(c) 

(b) Commanders at higher echelons. This subsection teflects the same continuing duty to give notice of the preferred charges that appeared at 

paragraph 33c of MCM, 1969 (Rev.). 

(c) Remedy. This subsection is new and is based on the approach taken in United States v. Stebbins, supra, and consistent with paragraph 58 

(continuances and postponements) of MCM, 1969 (Rev.). 

CHAPTER IV. FORWARDING AND DISPOSITION OF CHARGES 

Rule 401. Forwarding and dlsposltlon of charges in general 

(a) Who may dispose @charges. This subsection is based on paragraphs 5,32,33,35, and 128a of MCM, 1969 (Rev.). See Articles 15,22-24. 

The second sentence is based on United States v. Hawthorne, 7 U.S .C.M.A. 293,22 C.M.R. 83 (1956); United States v. Rembert, 47 C.M.R. 

755 (A.C.M.R. 1973),pet. denied, 23 U.S.C.M.A. 598 (1974). See also UnitedStates v. Hardy, 4 M.J. 20 (C.M.A. 1977). A superior authority 

who withholds from a subordinate the authority to dispose of offenses (see R.C.M. 306) or charges may later modify or rescind such withholding. 

Even if such modification or rescission is denominated a "delegation," it would be a rescission of the earlier withholding. 

(b)Prompt determination. This subsection is based on Article 30(b) and the first sentence of paragraph 30i of MCM, 1969 (Rev.). The discussion 

is also based on paragraphs 30j 32b, c, Kl), 33a, d, m, and 35a of MCM, 1969 (Rev.). 

(c)How charges may be disposed of: This subsection is based on paragraphs 32 and 33 of MCM, 1969 (Rev.). Most matters in those paragraphs, 

including the mechanics of forwarding charges, have been placed in the discussion as the practices of the services vary because of differing 

command structures. Specific requirements and additional details may be provided by service regulations. 

(d) National security matters. This subsection is based on the first sentence in the second paragraph of paragraph 33f of MCM, 1969 (Rev.). See 

also R.C.M. 407(b) and Article 43(e). 

Rule 402. Actlon by commander not authorized to convene courts-martial 

This rule is based on paragraph 32 of MCM, 1969 (Rev.). Paragraph 32 was written in terms of guidance. The structure of the paragraph and 

the descriptions of the alternatives available to an immediate commander indicated the powers of such commanders. R.C.M. 402 expresses these 

powers. The mechanics of forwarding charges, dismissal of charges, ihe requirement for prompt disposition, and guidance concerning these 

matters has been placed in R.C.M. 401 and its discussion because these matters apply to commanders at all levels. Other matters contained in 

paragraph 32 have been placed in other rules. See R.C.M. 303 (preliminary inquiry); 308 (notification of accused); 603 (amending charges). See 

also R.C.M. 306 which includes guidance on disposition determinations. 

Rule 403. Actlon by commander exercising summary court-martial jurisdiction 

This rule and the discussion are based on paragraph 33 of MCM, 1969 (Rev.). See Article 24. Paragraph 33 was written in terms of guidance. 

The structure of the paragraph and the descriptions of the alternatives available to the commander exercising summary court-martial jurisdiction 

indicated the powers of such commanders. R.C.M. 403 expresses these powers in clearer terms. Several matters covered in paragraph 33 are now 

covered in other rules. See R.C.M. 303 (preliminary inquiry); 308 (notification of accused); 401 (forwarding charges; discussion of suspected 

insanity, joint or common trials); 601 (instructions in referral order; common trials); 603 (amending charges). See also R.C.M. 306. 

Rule 404. Action by commander exercising special court-martial jurisdiction 

This rule is new. Paragraph 33 of MCM, 1969 (Rev.) treated both special and summary court-martial convening authorities. See paragraph 

33j(l) of MCM, 1969 (Rev.); Analysis, R.C.M. 403. 

Rule 405. Pretrial lnvestigatlon 

(a) In general. This subsection is based on Article 32(a) and (d) and paragraph 34a of MCM, 1969 (Rev.). Except insofar as the code requires 

otherwise, the rule is generally consistent with Fed. R. Crim. P. 6 and 7. See generally Johnson v. Sayre, 158 U.S. 109 (1895); Green v. 

Convening Authority, 19 U. S .C.M. A. 576,42 C.M.R. 178 (1 970). The last sentence clarifies that the requirements for an Article 32 investigation 

apply only if charges are referred to a general court-martial. This sentence is not intended, however, to prevent the accused from challenging the 

fruits of a violation during a pretrial investigation of other rights the accused enjoys independent of the Article 32 investigation (e.g., moving to 

suppress a statement by the accused to the investigating officer because it was taken in violation of Article 31). 

The first and third paragraphs of the discussion are based on paragraph 34a of MCM, 1969 (Rev.). The second sentence has been added based 

onHutson v. Unitedstates, 19 U.S.C.M.A. 437,42 C.M.R. 39 (1970); UnitedStates v. Samuels, 10 U.S.C.M.A. 206,27 C.M.R. 280 (1959); 

Hearings on H.R. 2498 Before a Subcomm. @the House Comm. on Armed Services, 81st Cong., 1st Sess. 997 (1949). See also Mil. R. Evid. 

804(b) and Analysis. The second paragraph of the discussion is based on the third sentence of paragraph 33e(2) of MCM, 1969 (Rev.). The last 

paragraph in the discussion notes the possibility of waiver of the investigation. See subsection (k)of this rule and analysis. The Government is not 

required to accept waiver by the accused, and may conduct the investigation notwithstanding the accused's decision to waive it, since the 

investigation also serves the Government's interest. 

(b) Earlier investigation. This subsection is based on Article 32(c) and paragraph 33e(l) of MCM, 1969 (Rev.). 

(c) Who may direct investigation. This subsection is new. There was previously no prescription of who had authority to direct an investigation 

under Article 32, although paragraph 33e of MCM, 1969 (Rev.) suggested that the summary or special court-martial convening authority 
App. 21, R.C.M. 405(d) APPENDIX 21 

ordinarily would do so. The authority of convening authorities to direct an investigation is analogous to Fed. R. Crim. P.6(a) and the grand jury 

system generally. 

(d) Personnel. This subsection follows Article 32 and paragraph 34 of MCM, 1969 (Rev.). It is consistent with Fed. R. Crim. P. 6 in that 

witnesses, the investigating officer, and a representative of the prosecution may be present, but military practice extends further rights to presence 

and participation to the accused and defense counsel which are inconsistent with the grand jury system. Compare Article 32(b) withFed. R. Crim. 

P. 6(d) and (e)(2). Since the investigation under Article 32 is conducted by a single investigating officer, many of the provisions of the grand jury 

system are inconsistent, e.g., Fed. R. Crim. P. 6(b), (f), and (g). 

Subsection (1) is basedon Article 32 and paragraph 34a of MCM, 1969 (Rev.). See also Articles 25(d)(2), 26(d), 27(a). The discussion is also 

based on United States v. Payne, 3 M.J. 354 (C.M.A. 1977); United States v. Grimm, 6 M.J. 890 (A.C.M.R.), pet. denied, 7 M.J. 135 (1979). 

Subsection (2) is based on Articles 32(b) and 38(b) and paragraph 34c of MCM, 1969 (Rev.). See also Article 27(a). Subsections (3)(B) and (C) 

&new to the Manual but conform to current practice. Fed. R. Crim. P. 6(c) also provides for using reporters. 

(e) Scope qfinvestigation. This subsection and the discussion are based on Article 32(a) and paragraph 34a of MCM, 1969 (Rev.). 

(f) Rights qfthe accused. This subsection is based on Article 32 and paragraph 34b, c, and d of MCM, 1969 (Rev.). As to subsection (f)(3), see 

also R.C.M. 804(b)(2) and Analysis. The accused may waive the right to be present. Cj R.C.M. 804(b) and Analysis. As to subsection (6),see 

Fed. R. Crim. P. 5. 

(g) Production qfwitnesses and evidence; alternatives. Subsection (1) is based on the third sentence of Article 32(b) and the first sentence in the 

first paragraph and the first sentence in the third paragraph of paragraph 34d of MCM, 1969 (Rev.) as amplified in United States v. Ledbener, 2 

M.J. 37 (C.M.A. 1976). See also United States v. Roberts, 10 M.J. 308 (C.M.A. 1981); United States v. Chestnut, 2 M. J. 84 (C.M.A. 1976); 

UnitedStates v. Webster, 1 M.J. 496 (A.F.C.M.R. 1975); United States v. Houghton, 31 C.M.R. 579 (A.F.B.R. 1961), affd., 13 U.S.C.M.A. 3, 

32 C.M.R. 3 (1962). Standards for production of evidence are also provided. These parallel the standards for the production of witnesses. Because 

of the absence of subpoena power at the Article 32 investigation, only evidence under the control of the Government is subject to production under 

this rule. The discussion amplifies the considerations in determining reasonable availability, and is based on the same sources. 

Subsection (2) is new. The second sentence of the first paragraph of paragraph 34dof MCM, 1969 (Rev.) recognized that the final decisionon 

availability of a military wimess is within the authority of that witness' commander. That paragraph did not elaborate on the reasonable availability 

determination. Subsection (2)(A) recognizes that a command determination of availability (which is essentially whether, and for how long, the 

wimess can be spared without unduly impeding the mission) is ordinarily only one of several factors to be weighed in determining reasonable 

availability. The investigating officer is in the best position to assess the potential significance of the witness and to weigh that against such factors 

as cost, difficulty, and delay. In many cases it will be clear that the witness need not be produced without formal application to the witness' 

commander. (The discussion notes, however, that advance communication with the commander will often be appropriate, as, for example, when 

the investigating officer needs to know how long a wimess will be on leave.) Ultimately, the witness' importance to the wimess' unit may outweigh 

all other factors; consequently, the commander of the witness may make a determination of nonavailability which is reviewable only at trial. 

Therefore, subsection (2)(A) allocates the responsibilities for determining reasonable availability in accordance with the practical considerations 

involved. See generally UnitedStates v. Chestnut and UnitedStatesv. Ledbetter, both supra; UnitedStates v. Cox, 48 C.M.R. 723 (A.F.C.M.R.), 

pet. denied, 23 U.S.C.M.A. 616 (1974). 

Subsection (2)(B) and the discussion are based on United States v. Roberts, supra; United States v. Chuculate, 5 M.J. 143 (C.M.A. 1978); 

United States v. Chestnut, supra and the first paragraph of paragraph 34d of MCM, 1969 (Rev.). 

Subsection (2)(C) applies a similar procedure for the production of evidence under the control of the Government. If the investigating officer 

questions the decision of the commander in subsection (2)(B) or the custodian in subsection (2)(C), the investigating officer may bring the matter 

to the attention of the commander who directed the investigation. When appropriate the matter can be pursued in command channels. It remains 

subject to judicial review on motion at trial. 

Subsection (3) is based on paragraph 34d of MCM, 1969 (Rev.). 

Subsection (4) is based on the third and fourth paragraphs of paragraph 34dof MCM, 1969 (Rev.). See also United States v. Samuels, supra. 

Subsection (5) is new. It parallels subsection (4). 

(h) Procedure. The second and fourth sentences in subsection (I) are based on Article 32(b). The first sentence is based on the first two sentences 

in the second paragraph of paragraph 34d of MCM, 1969 (Rev.) and on United States v. Samuels, supra. The third sentence is based on the first 

sentence in the last paragraph of paragraph 34dof MCM, 1969 (Rev.) except that now the investigating officer must allow the defense to examine 

all matters considered by the investigating officer, without exception. See United States v. Craig, 22 C.M.R. 466 (A.B.R. 1956), @d, 8 

U.S.C.M.A. 218, 24 C.M.R. 28 (1957). 

The first paragraph in the discussion is based on paragraph 114j of MCM, 1969 (Rev.), except that the former oath has been divided into two 

oaths, one for the witness testifying at the investigation, the second to be given when the wimess subscribes to a written summary after the 

hearing. The second oath is described in the second paragraph in the discussion. Note that instead of a second oath, the wimess could be requested 

to sign a statement with the express proviso that.the signature is made under penalty of perjury. See paragraph 57 of Part IV and Analysis. 

The second and third paragraphs in the discussion are based on the second paragraph of paragraph 34d of MCM, 1969 (Rev.). The 

admonition concerning the preservation of substantially verbatim notes and tapes of testimony at the end of the second paragraph has been added 

to avoid potential Jencks Act problems, 18 U.S.C. § 3500. See R.C.M. 914 and Analysis. 

The fourth paragraph in the discussion of subsection (1) is based on United States v. Pruin, 48 C.M.R. 495 (A.F.C.M.R. 1974). Cf: United 

States v. Washington, 431 U.S. 181 (1977). 
ANALYSIS App. 21, R.C.M. 406(b) 

Subsection (2) is new and is intended to promote the early identification of possible defects in the investigation so that they can be corrected 

promptly. See also subsection (k) of this rule. Subsection (2) clarifies the responsibility of the investigating officer as a judicial officer. See 

generally UnitedStates v. Collins, 6 M.J. 256 (C.M.A. 1979); UnitedStatesv. Payne, supra. Requiring objections to be made to the investigating 

officer ensures that they will be placed in proper channels, so that they may be acted upon promptly. Many will concern matters which the 

investigating officer can rectify. See generally United States v. Roberts, and United States v. Chestnut, both supra. Other matters will fall within 

the province of the commander who directed the investigation, in whom most pretrial judicial authority reposes at this stage. See generally United 

States v. Nix,15 U.S.C.M.A. 578, 36 C.M.R. 76 (1965). Nothing in R.C.M. 405 is intended to restrict the authority of the commander who 

directed the investigation to resolve issues involved in it, as long as that commander does not encroach upon the investigating officer's discretion 

and ability to personally make conclusions and recommendations. 

Subsection (3) is new and is based on MacDonald v. Hodson, 19 U.S.C.M.A. 582, 42 C.M.R. 184 (1970). See also R.C.M. 806 for 

examples of some reasons why a pretrial investigation hearing might be closed. Fed. R. Crim. P. 6 is generally inapplicable due to its different 

nature and purposes; it requires closed proceedings. Subsection (3) is not intended to express any preference for closed or open hearings. 

(i)Military Rules @Evidence. This subsection is solely a cross-reference to the Military Rules of Evidence. Mil. R. Evid. 412, which concerns 

testimony of victims of sexual offenses at trial, does not apply at Article 32 hearings. However, there may be circumstances in which questioning 

should be limited by Mil. R. Evid. 303, which prohibits requiring degrading testimony in pretrial investigations and elsewhere. The privacy 

interests of the victim may also be protected by closure of the Article 32 hearings during appropriate periods. See subsection (h)(3) of this rule. 

The first paragraph of the discussion is consistent with present practice. It is added to give additional guidance not included in paragraph 34 of 

MCM, 1969 (Rev.). It is also consistent with Federal civilian practice. See Oflice of the United States Attorney for the Southern District of Ohio, 

Proving Federal Crimes >3 (1980). 

Cj) Report of investigation. This subsection is based on paragraphs 34d and e of MCM, 1969 (Rev.). The provision for informal reports in 

paragraph 34f of MCM, 1969 (Rev.) has been deleted. Because R.C.M. 405 applies only if charges are ultimately referred to a general courtmartial, there is no need to describe informal reports. If it becomes apparent before completion of the investigation that charges will not be 

referred to a general court-martial, no report need be prepared unless the commander who directed the investigation requires it. In other cases a 

formal report will be necessary. 

Subsection (1) is based on Article 32(a) and (b) and paragraph 34e of MCM, 1969 (Rev.). 

Subsections (2)(A) through (E) are based on Article 32(b) and paragraph 34e of MCM, 1969 (Rev.). Subsection (2)(F) is new but is 

consistent with current practice and with the need to account for pretrial delays in relation to speedy trial issues. Subsections (2)(G) and (H) are 

based on Article 32(a) and paragraph 34a of MCM, 1969 (Rev.). The probable cause standard is based on United States v. Engle, 1 M.J. 387,389 

n. 4 (C.M.A. 1976); Hearings on H.R. 2498 Before a Subcomm. ofthe House Comm. on Armed Services, 81st Cong., 1st Sess., 997 (1949). 

Subsection (2)(I) is based on Article 32(a) and paragraph 34e(6) of MCM, 1969 (Rev.). 

Subsection (3) is based on the first sentence of paragraph 34e of MCM, 1969 (Rev.) which implemented the requirement of the last sentence 

of Article 32(b). Subsection (3) leaves the mechanics of reproduction and distribution of the report to the Secretary concerned, or, in the absence of 

Secretarial regulations, to the commander concerned. 

Subsection (4) is new and is intended to encourage the early identification of possible defects in the report so that they can be corrected 

promptly when necessary. See also subsection (k) and Analysis. 

(k) Waiver.The first sentence is based on Article 34(a), as amended, Military Justice Act of 1983, Pub. L. No. 98-209, $ 4(a)(2), 97 Stat. 1393 

(1983), which expressly permits waiver of the Article 32 investigation. This is consistent with previous practice. See United Stares v. Schaffer, 12 

M.J. 425 (C.M. A. 1982). The remainder of this subsection is also new to the Manual for Courts-Martial. Along with subsections (h)(2) and (j)(4) 

of this rule, it is intended to promote efficiency in the pretrial process by placing the burden on the defense to raise objections when they can most 

easily be remedied, instead of waiting until trial. Recent decisions are consistent with this approach. See United States v. Clark, 11 M.J. 179 

(C.M.A. 1981); United States v. Cumberledge, 6 M.J. 203 (C.M.A. 1979); United States v. Cruz, 5 M. J. 286 (C.M.A. 1978); United States v. 

Chuculate, supra. See also Article 34(d). Because the accused always has the right to be represented in the investigation by qualified counsel, this 

burden is appropriate. The amendment of Article 32(b) (Military Justice Amendments of 1981, Pub. L. No. 97-81, 8 4,95 Stat. 1085, 1088) 

guarantees that qualified counsel will be detailed to represent the accused for the investigation. 

The defense may renew before the military judge any objection for which it has not received satisfactory relief. See R.C.M. 905(b)(2); 

R.C.M. 906(b)(3). 

The last sentence in the discussion is based on United States v. Cumberledge and United States v. Chuculate, both supra. 

Rule 406. Pretrial advlce 

(a)In general. This subsection is based on Article 34(a) as amended, Military Justice Act of 1983, Pub. L. No. 98-209,s 4,97 Stat. 1393 (1983); 

and on paragraph 35b of MCM, 1969 (Rev.). 

(b) Contents. This subsection is based on Article 34(a). It is consistent with paragraph 35c of MCM, 1969 (Rev.) (except insofar as Article 34 is 

modified). Matters which paragraph 35c said "should" be included are not required, but are listed in the discussion. The rule states the minimum 

necessary to comply with Article 34(a). Cf: United States v. Greenwalt, 6 U.S.C.M.A. 569, 20 C.M.R. 285 (1955). 

The first paragraph in the discussion is based on paragraph 35c of MCM, 1969 (Rev.) and United States v. Hardin, 7 M.J. 399 (C.M.A. 

1979);United States v. Greenwalt, supra; UnitedStates v. Schuller, 5 U.S .C.M. A. 101,17 C.M.R. 101 (1954); UnitedStatesv. Pahl, 50 C.M.R. 

885 (C.G.C.M.R. 1975). 
App. 21, R.C.M. 406(c) APPENDIX 21 

The second paragraph of the discussion is based on S. Rep. No. 53,98th Cong., 1st Sess. 17 (1983), and on the second sentence in paragraph 

35c of MCM, 1969 (Rev.). 

The last paragraph is based on United States v. Greenwalt, supra. See also United States v. Rivera, 20 U.S.C.M.A. 6, 42 C.M.R. 198 

(1970); UnitedStatesv. Henry, 50 C.M.R. 685 (A.F.C.M.R.),pet. denied, 23 U.S.C.M.A. 666,SOC.M.R. 903 (1975); UnitedStatesv. Barton, 

41 C.M.R. 464 (A.C.M.R. 1969). 

(c)Distribution. This subsection is based on Article 34(b), as amended, Military Justice Act of 1983, Pub. L. No. 98-209,§ 4(b), 97 Stat. 1393 

(1983). Paragraph 35c of MCM, 1969 (Rev.) also required that the staff judge advocate's recommendation be forwarded with the charges if 

referred to trial. This subsection makes clear that the entire advice is to be forwarded. This ensures that the advice can be subjected to judicial 

review when necessary. See R.C.M. 906(b)(3). See also United States v. Collins, 6 M.J. 256 (C.M.A. 1979); United States v. Engle, supra. 

Rule 407. Action by commander exerclslng general court-martlal jurisdiction 

(a) Disposition. This subsection is based on Article 34(a) and on paragraph 35a of MCM, 1969 (Rev.). See Article 22. 

(b)National security matters. This subsection is based on the second and third sentences of the second paragraph of paragraph 33f of MCM, 1969 

(Rev.) and Article 43(e). It has been broadened to expressly recognize the authority of service Secretaries to promulgate regulations governing 

disposition of sensitive cases. Note that the rule applies regardless whether hostilities exist, although as the discussion notes the Article 43(e) 

procedure for suspending the statute of limitations could only be used in time of war. 

CHAPTER V. COURT-MARTIAL COMPOSITION AND PERSONNEL; 


CONVENING COURT-MARTIAL 


Rule 501. Composition and personnel of courts-martial 

(a) Composition ofcourts-martial. This subsection is based on Article 16. Except for the change in the requirement as to the form of the request for 

trial by military judge alone, it is consistent with paragraph 4a of MCM, 1969 (Rev.). 

(b) Counsel in general and special courts-martial. This subsection is based on Article 27(a). Except for the change concerning who details 

counsel (see R.C.M. 503(c)) it is consistent with paragraph 6a of MCM, 1969 (Rev.). This subsection includes reference to detailing associate 

defense counsel. This is based on Article 27(a), as amended Pub. L. No. 98-209, 5 3(c), (f),97 Stat. 1393 (1983). 

(c) Other personnel. This subsection is based on paragraph 7 of MCM, 1969 (Rev.). 

Rule 502. Quallficatlons and duties of personnel of courts-martial 

(a) Members. Subsection (1) is based on Article 25(a), (b), and (c) and on the first paragraph of paragraph 4b and paragraph 4d of MCM, 1969 

(Rev.). Factors which disqualify a person from sewing as a member are listed in R.C.M. 912(f)(l). 

The discussion is based on the second paragraph of paragraph 46 of MCM, 1969 (Rev.). 

The references to use of members of the National Oceanic and Atmospheric Administration and of the Public Health Service carry forward 

the similar provision at paragraph 4b of MCM, 1969 (Rev.). Similar provisions have been included in naval practice since at least 1937. See, e.g., 

Naval CourtsandBoards 8 347 (1937,1945 reprint). The similar provision in MCM, 1951 was upheld in UnitedStates v. Braud, 11 U.S.C.M.A. 

192, 29 C.M.R. 8 (1960) (Public Health Service commissioned officer served as member of Coast Guard court-martial), decision below, 28 

C.M.R. 692 (C.G.B.R. 1959). Braud upheld the provision even though Article 25 is arguably ambiguous and the P.H.S. officer who served as a 

member had not been "militarized" and was not himself subject to the code. Cf:42U.S.C. 8 217 (1976) (P.H.S. may be declared to be amilitary 

service in time of war; members become subject to personal jurisdiction of code); 33 U.S.C. 8 855 (NOAA may be transferred by President to 

military service in national emergency; members become subject to personal jurisdiction of code); Art. 2(a)(8) (jurisdiction over members of 

Public Health Service and of Environmental Science Services Administration). The Environmental Science Services Administration, which 

succeeded the Coast and Geodetic Survey mentioned in some earlier Manuals, is now defunct. Its functions were transferred to the National 

Oceanic and Atmospheric Administration. Reorg. Plan No. 4 of 1970,3 C.F.R. 1075 (1966-1970 Comp.), reprinted in 84 Stat. 2090. NOAA has 

only a commissioned officer corps. Id. 8 2(9; 33 U.S.C.A. § 851 (Supp. 1981). P.H.S. has both commissioned and warrant officers. 42 

U.S.C.A. 5 204 (Supp. 1981). 

Subsection (2) and the discussion are based on paragraph 41a and b and the last paragraph of paragraph 53d of MCM, 1969 (Rev.). The 

admonition of MCM, 1969 (Rev.) that misconduct by members may constitute an offense and that members should be attentive and dignified has 

been deleted as unnecessary. 

(b) President. Subsection (I) is based on paragraph 400 of MCM, 1969 (Rev.). Subsections (2)(A) and (B) are based on paragraphs 40b(l)(c) and 

(d) of MCM, 1969 (Rev.). Paragraphs 40b(l)(a) and (b) are deleted. Paragraph 40b(l)(a) conflicts with the authority of the military judge under 

R.C.M. 801(a)(l). Paragraph 40b(l)(b) is unnecessary. Subsection (2)(C) is based on paragraph 40b(2) of MCM, 1969 (Rev.). The general 

description of the duties of a president of a special court-martial without a military judge in paragraph 40b(2) is deleted here. Such a summarized 

description is an inadequate substitute for familiarity with the rules themselves. 

(c) Qualifications cfmilitary judge. This subsection and the discussion are based on Article 26(b) and (c) and paragraph 4e of MCM, 1969 (Rev.). 

Reasons for disqualification are described in R.C.M. 902. 

(d) Counsel. Subsection (1) is based on Article 27(b) and paragraph 6 of MCM, 1969 (Rev.). The possibility of detailing associate counsel has 
ANALYSIS App. 21, R.C.M. 503(b) 

been added based on the amendment of Article 27(a) and 42(a). See Military Justice Act of 1983, Pub. L. No. 98-209,B 3(c), (f),97 Stat. 1393 

(1983). As the discussion indicates, "associate counsel" ordinarily refers to detailed counsel when the accused has military or civilian counsel. 

See Article 38(b)(6). An associate defense counsel must be qualified to act as defense counsel. An assistant defense counsel need not be. One other 

substantive change from MCM, 1969 (Rev.) has been made. Detailed defense counsel in special courts-martial must be certified by the Judge 

Advocate General concerned although this is not required by Article 27(c). Article 27(c) permits representation of an accused by a counsel not 

qualified and certified under Article 27(b) if the accused does not request qualified counsel, having been given the opportunity to do so, or when 

such counsel cannot be obtained on account of physical conditions or military exigencies. In the latter event, no bad-conduct discharge may be 

adjudged. Article 19. Currently, certified counsel is routinely provided in all special courts-martial, so the modification of the rule will not change 

existing practice. Moreover, the enforcement of waiver provisions in these rules and the Military Rules of Evidence necessitate, both for fairness 

and the orderly administration of justice, that the accused be represented by qualified counsel. See also UnitedStates v. Rivas, 3 M. J. 282 (C.M.A. 

1977). Because of this rule, the rule of equivalency in Article 27(c) and (3) is not necessary. 

Subsection (2) is based on the fifth sentence of the first paragraph of paragraph 6c and on paragraph 6d of MCM, 1969 (Rev.). 

Subsection (3) is based on the lirst sentence of the second paragraph of paragraph 48a of MCM, 1969 (Rev.) and on Soriano v. Hosken, 9 M. J. 

221 (C.M. A. 1980); United States v. Kraskouskas, 9 U.S.C.M.A. 607,26 C.M.R. 387 (1958). The discussion is taken from Soriano v. Hosken, 

supra. 

Subsection (4) is based on Article 27(a) and on the fourth and fifth sentences of paragraph 6a of MCM, 1969 (Rev.). See also United States v. 

Catt, 1 M.J. 41 (C.M.A. 1975). The accuser has been added to the list of disqualifications. See ABA Standards, The Prosecution Function, 

$8 3-l.l(c); 53.9(c) (1979). 

Subsection (5)is based on paragraph 44d and 45a of MCM, 1969 (Rev.) and on Article 38(d). The forum based distinction as to the powers of 

an assistant trial counsel has been deleted. The trial counsel is responsible for the prosecution of the case. R.C.M. 805(c) requires the presence of 

a qualified trial counsel at general courts-martial. The discussion is based on paragraphs 44e,jg, and h of MCM, 1969 (Rev.). Some of the specific 

duties are now covered in other rules, e.g., R.C.M. 701; 812,813; 914; 919. Some examples and explanation have been deleted as unnecessary. 

The lirst sentence of subsection (6) is new. Cf: paragraphs 46d and 48c of MCM, 1969 (Rev.). The second sentence of subsection (6) is based 

on Article 38(e). The rule does not require that defense counsel in the court-martial represent the accused in administrative or civil actions arising 

out of the same offenses. The discussion is based on paragraphs 46d, 47, and 48c, d, e,j g, h, j, and kof MCM, 1969 (Rev.). The matters covered 

in paragraph 48k(2) and (3) of MCM, 1969 (Rev.) are modified in the discussion based on the amendment of Articles 38(c) and 61. See Military 

Justice Act of 1983, Pub. L. No. 98-209, $5 3(e)(3), 5(b)(l), 97 Stat. 1393 (1983). See R.C.M. 1105; 1110. As to associate counsel, see the 

Analysis subsection (d)(l) of this rule. See also United States v. Breese, 11 M.J. 17, 22 n. 13 (C.M.A. 1981); United States v. Rivas, supra; 

United States v. Palenius, 2 M.J. 86 (C.M.A. 1977); United States v. Goode, 1 M. J. 3 (C.M.A. 1975). 

(e) Interpreters, reporters, escorts, bailiffs, clerks, and guards. This subsection is based on paragraphs 7,49,50, and 51 of MCM, 1969 (Rev.). 

The list of disqualifications, except for the accuser, is new and is intended to prevent circumstances which may detract from the integrity of the 

court-martial. 

(f)Action upon discovery ofdisqualification or lack ofqualification. This subsection is based on paragraphs 41c. 44b, and 46b of MCM, 1969 

(Rev.). 

Rule 503. Detailing members, military judge, and counsel 

(a)Members. Subsection (1) is based on Article 25. Because of the amendment of Articles 26 and 27 the convening authority is no longer required 

to personally detail the military judge and counsel. Military Justice Act of 1983, Pub. L. No. 98-209, 8 3(c), 97 Stat. 1393 (1983). The last 

sentence of paragraph 4b of MCM, 1969 (Rev.) is deleted as unnecessary. The second paragraph in the discussion serves the same purpose as the 

third paragraph of paragraph 4b of MCM, 1969 (Rev.): to alert the convening authority to avoid appointing people subject to removal for cause. 

Unlike that paragraph, however, no suggestion is now made that the convening authority commits error by appointing such persons, since the 

disqualifications are waivable. See Analysis, R.C.M. 912(f)(4). 

Subsection (2) is based on Article 25(c) and the third paragraph of paragraph 4c of MCM, 1969 (Rev.). The discussion is based on paragraph 

36c(2) of MCM, 1969 (Rev.). 

Subsection (3) is based on paragraphs 4f and g of MCM, 1969 (Rev.). Subsection (3) combines treatment of members from a different 

command and those from a different armed force. The power of a commander to detail members not under the convening authority's command is 

the same whether the members are in the same or a different armed force. Therefore each situation can be covered in one rule. The discussion 

repeats the preference for members, or at least a majority thereof, to be of the same service as the accused which was found in paragraph 4g(l) of 

MCM, 1969 (Rev.). Permission of the Judge Advocate General to detail members of another armed force is no longer required in the Manual. 

Detailing a military judge from a different command or armed force is now covered in subsection (d). 

(b) Military judge. Subsections (1) and (2) are based on Article 26(a), as amended, Military Justice Act of 1983, Pub. L. No. 98-209, 5 3(c) (I), 

97 Stat. 1393 (1983). The convening authority is no longer required to detail personally the military judge. Id. Subsection (1) requires that 

responsibility for detailing military judges will be in judicial channels. See Hearings on S.2521 Before the Subcomm. on Manpower and 

Personnel ofthe Senate Comm. on Armed Services, 97th Cong., 2nd Sess. 52 (1982). More specific requirements will be provided in service 

regulations. Subsection (2) is intended to make detailing the military judge administratively efficient. See S. Rep. No. 53,98th Cong., 1st Sess. 

3-5,12 (1983), H.R. Rep. No. 549,98th Cong., 1st Sess. 13-14 (1983). As long as a qualified military judge presides over the court-martial, any 

irregularity in detailing a military judge is not jurisdictional and would result in reversal only if specific prejudice was shown. See S. Rep. No. 53, 

98th Cong., 1st Sess. 12 (1983). 
App. 21, R.C.M. 503(c) APPENDIX 21 

Subsection (3) is based on Article 26. See also Article 6(a). 

(c) Counsel. Subsections (1) and (2) are based on Article 27(a), as amended, Military Justice Act of 1983, Pub. L. No. 98-209, J 3(c)(2), 97 Stat. 

1393 (1983). The convening authority is no longer required to detail personally the counsel. Id. Efficient allocation of authority for detailing 

counsel will depend on the organizational structure and operational requirements of each service. Therefore, specific requirements will be 

provided in service regulations. Subsection (2) is intended to make detailing counsel administratively efficient. See S. Rep. No. 53,98th Cong., 

1st Sess. 3-5,12 (1983); H. R. Rep. No. 549,98th Cong., 1st Sess. 13-14 (1983). Counsel are not a jurisdictional component of courts-martial. 

Wright v. United States, 2 M.J. 9 (C.M.A. 1976). Any irregularity in detailing counsel would result in reversal only if specific prejudice was 

shown. See S. Rep. No. 53, 98th Cong., 1st Sess. 12 (1983). 

Subsection (3) is based on Article 27. See also Article 6(a). 

Rule 504. Convening courts-martial 

(a) In general. This subsection substantially repeats the first sentence of paragraph 36b of MCM, 1969 (Rev.). 

(b) Who may convene courts-martial. Subsection (1) is based on Article 22 and paragraph 5a(l) of MCM, 1969 (Rev.). The power of superiors to 

limit the authority of subordinate convening authorities is based on paragraph 5b(4) of MCM, 1969 (Rev.). Although that paragraph applied only 

to special and summary courts-martial, the same principle applies to general courts-martial. See Article 22(b). See generally United States v. 

Hardy, 4M.J. 20 (C.M.A. 1977); UnitedStates v. Hawthorne, 7 U.S.C.M.A. 293,22C.M.R. 83 (1956); UnitedStatesv. Rembert, 47 C.M.R. 

755 (A.C.M.R. 1973), pet. denied, 23 U.S.C.M.A. 598 (1974). The discussion is based on the second and third sentences of paragraph 5a(5) of 

MCM, 1969 (Rev.). 

Subsection (2) is based on Article 23 and paragraphs 5b(l), (3), and (4) of MCM, 1969 (Rev.). 

As to subsection (3), see Analysis, R.C.M. 1302(a). 

Subsection (4) is based on the first sentence of paragraph 545) of MCM, 1969 (Rev.). See also United States v. Greenwalt, 6 U.S.C.M.A. 

569, 20 C.M.R. 285 (1955); United States v. Bunting, 4 U.S.C.M.A. 84, 15 C.M.R. 84 (1954). 

(c)Disqual$cation. This subsection is based on Articles 22(b) and 23(b) and on paragraph 543) of MCM, 1969 (Rev.). See also Article l(5) and 

(9); UnitedStatesv. Haygood, 12 U.S.C.M.A. 481,31 C.M.R. 67 (1961); UnitedStates v. LaGrange, 1 U.S.C.M.A. 342,3 C.M.R. 76(1952); 

United States v. Kostes, 38 C.M.R. 512 (A.B.R. 1967). 

(d) Convening orders. This subsection is based on paragraph 36b of MCM, 1969 (Rev.) with two substantive modifications. First, in conformity 

with the amendment of Articles 26(a) and 27(a), see Military Justice Act of 1983, Pub. L. No. 98-209,s 3(c), 97 Stat. 1393 (1983), the military 

judge and counsel are no longer included in the convening order. See R.C.M. 503(b) and (c) and Analysis. Second, several matters, such as the 

unit of any enlisted members, which were required by paragraph 36b are not included here. These may be required by service regulations. 

Summary courts-martial are treated separately from general and special courts-martial because of their different composition. 

(e)Place. This subsection is new. It derives from the convening authority's power to fix the place of trial (see also R.C.M. 906(b)(11)) and from 

the convening authority's control of the resources for the trial. It does not change current practice. 

Rule 505. Changes in members, military judge, and counsel 

(a)In general. This subsection is based on the first sentence of paragraph 37a of MCM, 1969 (Rev.) except that it has been modified to conform to 

the amendment of Articles 26(a) and 27(a). See Military Justice Act of 1983, Pub. L. No. 98-209,s 3(c), 97 Stat. 1393 (1983). The discussion is 

based on the third and fourth sentences of paragraph 37c of MCM, 1969 (Rev.). 

(b) Procedure. This subsection is based on the first two sentences of paragraph 37c(l) and on paragraph 37c(2) of MCM, 1969 (Rev.). See also 

UnitedStates v. Ware, 5 M.J. 24 (C.M. A. 1978). It has been modified to reflect that military judges and counsel no longer must be detailed by the 

convening authority. The second paragraph in the discussion is based on United States v. Herrington, 8 M.J. 194 (C.M.A. 1980). References in 

paragraph 37b to excusal as a result of challenges are deleted here as challenges are covered in R.C.M. 902 and 912. 

(c) Changes @members. This subsection is based on Articles 25(e) and 29, and paragraphs 37b and c and 39e of MCM, 1969 (Rev.). The 

limitation on the authority of the convening authority's delegate to excuse no more than one-third of the members is based on S. Rep. No. 53,98th 

Cong., 1st Sess. 13 (1983). 

(d) Changes @detailed counsel. Subsection (1) is based on that part of the second sentence of paragraph 37a of MCM, 1969 (Rev.) which covered 

trial counsel. 

Subsection (2) is new and conforms to the amendment of Article 27(a) concerning who details counsel. Subsection (2)(A) is consistent with 

that part of the second sentence of paragraph 37a of MCM, 1969 (Rev.) which dealt with defense counsel. Subsection (2)(B) is based on Article 

38(b)(5); United States v. Catt, 1 M.J. 41 (C.M.A. 1975); United States v. Timberlake, 22 U.S.C.M.A. 117, 46 C.M.R. 117 (1973); United 

States v. Andrews, 21 U.S.C.M.A. 165, 44 C.M.R. 219 (1972); United States v. Massey, 14 U.S.C.M.A. 486, 34 C.M.R. 266 (1964). 

(e) Change ofmilitary judge. This subsection is based on Articles 26(a) and 29(d) and on paragraph 39e of MCM, 1969 (Rev.). See also United 

States v. Smith, 3 M. J. 490 (C.M. A. 1975). 

(f) Good cause. This subsection is based on Article 29 and on United States v. Greenwell, 12U.S.C.M.A. 560,31 C.M.R. 146 (1961); United 

States v. Boysen, 11 U.S.C.M.A. 331,29 C.M.R. 147 (1960); United States v. Grow, 3 U.S.C.M.A. 77,ll C.M.R. 77 (1953). See S. Rep. No. 
ANALYSIS App. 21, R.C.M. 601(d) 

53,98th Cong., 1st Sess. 13 (1983). As to defense counsel, see also United States v. Cart, United States v. Timberlake, United States v. Andrews, 

and United States v. Massey, all supra. 

Rule 506. Accused's rights to counsel 

(a)In general. This subsection is taken from the first two sentences of paragraph 48a of MCM, 1969 (Rev.), which was based on Article 38(b) as 

amended. Act of November 20,1981, Pub. L. No. 97-81; 95 Stat. 1085. Note that the amendment of Article 38(b) effectively overruled United 

States v. Jordan, 22 U.S.C.M.A. 164,46 C.M.R. 164 (1973), which held that an accused who has civilian counsel is not entitled to individual 

military counsel. The amendment of Article 38(b) provides that the accused may be represented by civilian counsel "and" by detailed or 

requested military counsel instead of civilian counsel "or" requested military counsel as it formerly did. See also H.R. Rep. No. 306,97th Cong., 

1st Sess. 4-7 (1981). 

Nothing in this rule is intended to limit the authority of the military judge to ensure that the accused exercises the rights to counsel in a timely 

fashion and that the progress of the trial is not unduly impeded. See Morris v. Slappy, -U.S., 33 Cr. L. Rptr. 3013 (1983); 

United States v. Montoya, 13 M.J. 268 (C.M.A. 1982); United States v. Kinard, 21 U.S.C.M.A. 300,45 C.M.R. 74 (1972); United States v. 

Brown, 10 M. J. 635 (A.C.M.R. 1980); United States v. Alicea-Baez, 7 M. J. 989 (A.C.M.R. 1979); United States v. Livingston, 7 M.J. 638 

(A.C.M.R. 1979),aftOd 8 M.J. 828 (C.M.A. 1980). See also United States v. Johnson, 12 M. J. 670 (A.C.M.R. 1981); United States v. Kilby, 3 

M.J. 938 (N.C.M.R.), pet. denied, 4 M.J. 139 (1977). 

(b) Individual military counsel. Subsection (1) is based on paragraphs 48b(1) and (2) of MCM, 1969 (Rev.). See also Article 38(b); H.R. Rep. No. 

306, supra at 5-7; United States v. Kelker, 4 M.J. 323 (C.M.A. 1978); United States v. Eason, 21 U.S.C.M.A. 335,45 C.M.R. 109 (1972); 

United States v. Murray, 20 U.S.C.M.A. 61, 42 C.M.R. 253 (1970). The second sentence of the last paragraph of this subsection has been 

modified based on the amendment of Article 38(b)(7), Military Justice Act of 1983, Pub. L. No. 98-209, 8 3(e)(2), 97 Stat. 1393 (1983). 

Subsection (2) is taken from paragraph 48b(3) of MCM, 1969 (Rev.). See also Article 38(b)(7). It ensures substantial uniformity in 

procedure among the services for handling requests for individual military counsel. 

Subsection (3) is based on the fourth through eighth sentences in the second paragraph of paragraph 46d of MCM, 1969 (Rev. ) and is based 

on Article 38(b)(6). See also H.R. Rep. No. 306, supra at &7. Authority to excuse detailed counsel has been modified based on the amendment of 

Article 38(b)(6). See Military Justice Act of 1983, Pub. L. No. 9S209, § 3(e)(l), 97 Stat. 1393 (1983). 

(c) Excusal or withdrawal. This subsection is based on United States v. Iverson, 5 M.J. 440 (C.M.A. 1978); United States v. Palenius, 2 M. J. 86 

(C.M.A. 1977);UnitedStates v. Eason, supra; United States v. Andrews, 21 U.S.C.M.A. 165,44 C.M.R. 219 (1972). See Analysis, R.C.M. 

505(c)(2). 

(d) Waiver. This subsection is based on the third sentence of the second paragraph of paragraph 48a of MCM, 1969 (Rev.) and on Faretta v. 

California, 422 U.S. 806 (1975). As to the last two sentences, see id. at 834 n.46. 

(e) Nonlawyer present. This subsection is based on the last sentence of the second paragraph of paragraph 48a of MCM, 1969 (Rev.). 

CHAPTER VI. REFERRAL, SERVICE, AMENDMENT, AND WITHDRAWAL OF CHARGES 

Rule 601. Referral 

(a) In general. This definition is new. MCM, 1969 (Rev.) did not define "referral." 

(b) Who may refer. This section is also new, although MCM, 1969 (Rev.) clearly implied that any convening authority could refer charges. See also 

United States v. Hardy, 4 M.J. 20 (C.M.A. 1977). Paragraphs 5b(4) and 5c of MCM, 1969 (Rev.) contained similar provisions. 

(c) DisqualiJication.This section is added to the Manual to express the statutory disqualification of an accuser to convene a court-martial in 

parallel terms in relation to referral. See Articles 22(b), 23(b). Cf: Article 24(b). The discussion follows paragraph 33i of MCM, 1969 (Rev.). 

(d) When charges may be referred.Subsection (1) is new. Neither the code nor MCM, 1969 (Rev.) have previously provided a standard for referral 

except in general courts-martial. See Article 34(a). Subsection (1) promotes efficiency by helping to prevent groundless charges from being 

referred for trial. This is consistent with Fed. R. Crim. P. 5.l(a). Accord ABA Standards Prosecution Function section 3-3.9(a) (1979). 

Consistent with the amendment of Article 34, subsection (1) does not require the convening authority to evaluate the legal sufficiency of the case 

personally. In general courts-martial the legal sufficiency determination must be made by the staff judge advocate. See Article 34(a) and 

subsection (3)(2) of this rule. Subsection (1) requires a similar determination in all courts-martial, including special and summary courts-martial. 

Because of the jurisdictional limitations on the sentencing power of special and summary courts-martial, any judge advocate may make the 

determination or the convening authority may do so personally. (A special or summary court-martial convening authority does not always have 

access to a judge advocate before referring charges; moreover, this subsection does not require reference to a judge advocate, even if one is 

available, if the convening authority elects to make the determination personally.) A person who serves as a trial counsel is not disqualified from 

rendering this advice. Cf: ABA Standards Prosecution Function Section 3-3.9(a) (1979). Note that there is no requirement under this subsection 

that the judge advocate's advice be written or that the convening authority memorialize the basis of the referral in any way. 

The "reasonable grounds" standard is based on Article 34's prerequisite to referral of charges to a general court-martial that the charges be 

warranted by the evidence in the report of the Article 32 investigation. Further, the legislative history of Article 32 strongly suggests that this is the 

intended standard of the investigation. Hearings on H.R. 2498 Before a Subcomm. ofthe House Comm. on ArmedServices, 8lst Cong., 1st Sess. 

997-98 (1949). Nothing suggests that the standard governing referral to inferior courts-martial should be different from that applicable to general 

courts-martial. It appears that the reasonable grounds standard has been in operation even without an explicit requirement. See e.g., UnitedStates 
App. 21, R.C.M. 601(e) APPENDIX 21 

v. Engle, 1 M.J. 387, 389 n.4 (C.M.A. 1976); United States v. Kauffman, 33 C.M.R. 748, 795 (A.F.B.R.), rev'd on other grounds, 14 

U.S.C.M.A. 283, 34 C.M.R. 63 (1963). Cf:Gerstein v. Pugh, 420 U.S. 103 (1975). 

Subsection (2) restates the prerequisites for referral to a general court-martial of Articles 32 and 34. It is consistent with paragraphs 30c and 

d, 34a, and 35 of MCM, 1969 (Rev.) except insofar as the amendment of Article 34 (see Military Justice Act of 1983, Pub. L. No. 98-209, $ 4,97 

Stat. 1393 (1983)) requires otherwise. The function of this provision is the same as paragraph 30, of MCM, 1969 (Rev.)-to serve as a reminder of 

procedural limitations on referral. The waiver provision is based on Article 32(d); S. Rep. No. 53,98th Cong., 1st Sess. 17 (1983); United States 

v. Schqffer, 12 M.J. 425 (C.M.A. 1982); United States v. Ragan, 14 U.S.C.M.A. 119, 33 C.M.R. 331 (1963). 

(e) How charges shall be referred. Subsection (1) is consistent with paragraph 33j(l) of MCM, 1969 (Rev.). The personal responsibility of the 

convening authority to decide whether to refer and how to refer is emphasized, but the discussion makes clear that the administrative aspects of 

recording that decision may be delegated. 

The discussion's instructions for subsequent referrals is based upon paragraph 33j(l) of MCM, 1969 (Rev.). 

The special case of referrals to summary courts-martial by the only officer present in command follows paragraph 33j(3) of MCM, 1969 

(Rev.) and Article 24(b). 

The discussion of limiting instructions follows paragraphs 33j(l) and k of MCM, 1969 (Rev.). The advice that convening authorities be 

guided by the criteria for capital punishment found at R.C.M. 1004 is new. See Gregg v. Georgia, 428 U.S. 153, 225 (1976) (White, J., 

concurring in the judgment). 

The last paragraph of the discussion transmitting the referred charges and allied papers to the trial counsel, is based on paragraph 33j(2) of 

MCM, 1969 (Rev.). 

Subsection (2) is less restrictive than the previous military rule found at paragraphs 26b and c of MCM, 1969 (Rev.), which cautioned against 

joining major and minor offenses. This rule is inconsistent with Fed. R. Crim. P. 8(a), which requires (in general) separate trials for each offense. 

Such a requirement is too unwieldy to be effective, particularly in combat or deployment. Joinder is entirely within the discretion of the convening 

authority. The last two sentences of the rule dealing with additional charges are based on paragraph 65b of MCM, 1969 (Rev.). The discussion 

encourages economy, following paragraph 33h of MCM, 1969 (Rev.). The last sentence in subsection (2) is new and clarifies that the accused may 

consent to the referral of additional charges after arraignment. Since the prohibition on such referral is for the accused's benefit, the accused may 

forego it when it would be to the accused's advantage. See United States v. Lee, 14 M.J. 983 (N.M.C.M.R. 1983). 

The first two sentences of subsection (3) restate Fed. R. Crim. P. 8(b) in military nomenclature. They are consistent with the approach taken 

by paragraph 26d of MCM, 1969 (Rev.). The last sentence is based on paragraph 331 of MCM, 1969 (Rev.). There is no counterpart in federal 

civilian practice. 

(f)Referral by other convening authorities. This new provision reflects the principle that a subordinate convening authority's decision does not 

preempt dierent dispositions by superior convening authorities. See United States v. Churette, 15 M.J. 197 (C.M.A. 1983); United States v. 

Blaylock, 15 M.J. 190 (C.M.A. 1983). See also Analysis, R.C.M. 306(a), Analysis, R.C.M. 905(g), and Analysis, R.C.M. 907(b)(2)(C). 

Rule 602. Servlce of charges 

This rule is based on Article 35 and paragraph 44h of MCM, 1969 (Rev.). Fed. R. Crim. P. 9 is consistent in purpose with this rule, but not in 

structure. The warrant system of Fed. R. Crim. P. 9(a), (b)(l), and (c)(2) is unnecessary in military practice. The remand provision of Fed. R. 

Crim. P.9(d) is inconsistent with the structure of military procedure but consistent with the convening authority's discretion to refer charges to a 

minor forum. See R.C.M. 306. The provision of Fed. R. Crim. P. 9(c) for service by mail or delivery to a residence is inconsistent with Article 35. 

Rule 603. Changes to charges and specifications 

(a) Minor changes defined. This definition and the discussion consolidate the tests and examples found at paragraphs 33d, 44fll) and 69b(l) of 

MCM, 1969 (Rev.). It is consistent with Fed. R. Crirn. P. 7(e). 

(b) Minor changes before arraignment. This provision is based on and consolidates the authority of various persons to make minor changes as 

stated at paragraphs 33d and 44fll) of MCM, 1969 (Rev.). It is inappropriate for an Article 32 investigating officer to make changes, but an 

investigating officer may recommend changes. See also Article 34(b) which provides authority for the staff judge advocate or legal officer to 

amend charges or specifications for the reasons stated therein. 

(c) Minor changes qfter arraignment. This provision is based on Fed. R. Crim. P.7(e), which is generally consistent with military practice. 

(d)Major changes. This subsection is based on paragraphs 33d and 33e(2) of MCM, 1969 (Rev.). See also Article 34(b) which provides authority 

for the staff judge advocate or legal officer to amend charges or specifications for the reasons stated therein. 

Rule 604. Withdrawal of charges 

(a) Withdrawal. This rule is based on paragraphs 5a(6) and 56a of MCM, 1969 (Rev.). The rule parallels Fed. R. Crim. P. 48(a), but leave of the 

court is not required for the convening authority to withdraw (or dismiss) charges and specifications. This would be inconsistent with the 

responsibilities of the convening authority under the code. See Articles 34 and 60. The potential abuses which the leave-of-court requirement in 

the federal rule are designed to prevent are adequately prevented by the restraint on a later referral of withdrawn charges in the subsection (b). 

The first paragraph in the discussion is new. It recognizes the distinction between withdrawal of charges, which extinguishes the jurisdiction 

of a court-martial over them, and dismissal of charges, which extinguishes the charges themselves. The discussion cautions that withdrawn 
ANALYSIS 	 App. 21, R.C.M. 701 

charges, like any other unreferred charges, should be disposed of promptly. Dismissal of charges disposes of those charges; it does not necessarily 

bat subsequent disposition of the underlying offenses (see Analysis, R.C.M. 306(a)), although a later preferral and referral would raise the same 

issues as are discussed under subsection (b). 

The second paragraph in the discussion'is based on the last sentence of paragraph 56a of MCM, 1969 (Rev.). 

The third paragraph in the discussion is based on the second and fourth sentences in paragraph 56a of MCM, 1969 (Rev.). 

The first sentence of the fourth paragraph is based on the third sentence of paragraph 56a of MCM, 1969 (Rev.), and United States v. 

Charette, 15 M.J. 197 (C.M.A. 1983); United States v. Blaylock, 15 M. J. 190 (C.M. A. 1983). The remainder of this paragraph is based on the 

second sentence of paragraph 56a and paragraph 56d of MCM, 1969 (Rev.). 

(b) Referral 4withdrawn charges. This rule is based on paragraphs 33j(l) and 56 of MCM, 1969 (Rev.) and numerous decisions. See, e.g., 

United States v. Charette, United States v. Blaylock, and United States v. Hardy, all supra; United States v. Jackson, 1 M. J. 242 (C.M.A. 1976); 

UnitedStates v. Walsh, 22 U.S.C.M.A. 509,47C.M.R. 926 (1973); Pettyv. ConveningAuthority, 20 U.S.C.M.A. 438,43 C.M.R. 278 (1971). 

The second sentence in the rule is derived from portions of paragraphs 56b and c of MCM, 1969 (Rev.) which were in turn based on Wade v. 

Hunter, 336 U.S. 684 (1949). Legal and Legislative Basis, Manual for Courts-Martial, United States, 1951 at 64. See Article 44. The second 

sentence of paragraph 56b of MCM, 1969 (Rev.) has been deleted. That sentence suggested that withdrawal after introduction of evidence on the 

merits for reasons other than urgent and unforeseen military necessity would not bar re-referral in some cases. If further prosecution is 

contemplated, such other possible grounds for terminating the trial after introduction of evidence has begun are more appropriately subject to a 

judicial determination whether to declare a mistrial under R.C.M. 915. 

The first paragraph in the discussion contains a cross-reference to R.C.M. 915, Mistrial. Paragraph 56 of MCM, 1969 (Rev.) dealt with both 

withdrawal and mistrial. This was unnecessary and potentially confusing. Although the effect of a declaration of a mistrial may be similar to that of 

withdrawal, the narrow legal bases for a mistrial (see United States v. Simonds, 15 U.S.C.M.A. 641, 36 C.M.R. 139 (1966)) should be 

distinguished from withdrawal, which involves a far wider range of purposes and considerations. See Analysis, R.C.M. 915. 

The second paragraph in the discussion is based on paragraph 56b of MCM, 1969 (Rev.). Unlike paragraph 56b, the current rule does not 

require a record in certain cases. Instead the discussion suggests that such a record is desirable if the later referral is more onerous to the accused. 

See United States v. Blaylock, supra at 192 n. 1; United States v. Hardy, supra. 

The third paragraph in the discussion is based on United States v. Charette, United States v. Blaylock, United States v. Walsh, and Petty v. 

Convening Authority, all supra; United States v. Fleming, 18 U.S.C.M.A. 524, 40 C.M.R. 236 (1969). See Article 37. 

The fourth paragraph in the discussion is based generally on paragraphs 56b and c of MCM, 1969 (Rev.), but more specificity is provided as I 

I 	 to proper reasons for withdrawal and the effect of certain stages of the proceedings. The grounds for proper withdrawal and later referral are based 

on United States v. Charette, United States v. Blaylock, United States v. Jackson, all supra; United States v. Lord, 13 U.S.C.M.A. 78,32 C.M.R. 

78 (1962); and current practice. United States v. Hardy and United States v. Walsh, both supra, indicate that the commencement of court-martial 

proceedings is, by itself, not important in analyzing the propriety of withdrawal. Arraignment is normally the first significant milestone for the 

same reasons that make it a cut-off point for other procedures. See, e.g., R.C.M. 601; 603; 804. It should be noted that assembly of the courtmartial, which could precede arraignment, could also have an effect on the propriety of a withdrawal, since this could raise questions about an 

improper intent to interfere with the exercise of coda1 rights or the impartiality of the court-martial. The importance of the introduction of evidence 

is based on Article 44. See also R.C.M. 907(b)(2)(C) and Analysis. 

CHAPTER VII. PRETRIAL MATTERS 

Rule 701. Discovery 

Introduction. This rule is based on Article 46, as well as Article 36. The rule is intended to promote full discovery to the maximum extent 

possible consistent with legitimate needs for nondisclosure (see, e.g., Mil. R. Evid. 301; Section V) and to eliminate "gamesmanship" from the 

discovery process. See generally ABA Standards, Discovery and Procedure Before Trial (1978). For reasons stated below, the rule provides for 

broader discovery than is required in Federal practice. See Fed. R. Crim. P. 12.1; 12.2; 16. See also 18 U.S .C. 5 3500. 

Military discovery practice has been quite liberal, although the sources of this practice are somewhat scattered. See Articles 36 and 46; 

paragraphs 34, 44h, and 115c of MCM, 1969 (Rev.). See also United States v. Killebrew, 9 M.J. 154 (C.M.A. 1980); United States v. 

Cumberledge, 6 M.J. 203,204 n.4 (C.M.A. 1979). Providing broad discovery at an early stage reduces pretrial motions practice and surprise and 

delay at trial. It leads to better informed judgments about the merits of the case and encourages early decisions concerning withdrawal of charges, 

motions, pleas, and composition of court-martial. In short, experience has shown that broad discovery contributes substantially to the truthfinding 

process and to the efficiency with which it functions. It is essential to the administration of military justice; because assembling the military judge, 

counsel, members, accused, and witnesses is frequently costly and time consuming, clarification or resolution of matters before trial is essential. 

The rule clarifies and expands (at least formally) discovery by the defense. It also provides for the first time some discovery by the 

prosecution. See subsection (b) of the rule. Such discovery serves the same goal of efficiency. 

Except for subsection (e), the rule deals with discovery in terms of disclosure of matters known to or in the possession of a party. Thus, the 

defense is entitled to disclosure of matted known to the trial counsel or in the possession of military authorities. Excepj as provided in subsection 

(e), the defense is not entitled under this rule to disclosure of matters not possessed by military authorities or to have the trial counsel seek out and 

produce such matters for it. But see Mil. R. Evid. 506 concerning defense discovery of government information generally. Subsection (e) may 

accord the defense the right to have the Government assist the defense to secure evidence or information when not to do so would deny the defense 
App. 21, R.C.M. 701(a) APPENDIX 21 

similar access to what the prosecution would have if it were seeking the evidence or information. See United States v. Killebrew, supra; Halfacre v. 

Chambers, 5 M.J. 1099 (C.M.A. 1976). 

(a) Disclosure by the trial counsel. This subsection is based in part on Fed. R. Crim. P.16(a), but it provides for additional matters to be provided 

to the defense. See ABA Standards, Discovery and Procedure Before Trial 8 11-2.1 (1978). Where a request is necessary, it is required to trigger 

the duty to disclose and as a means of specifying what must be produced. Without the request, a trial coDnsel might be uncertain in many cases as 

to the extent of the duty to obtain matters not in the trial counsel's immediate possession. A request should indicate with reasonable specificity 

what materials are sought. When obviously discoverable materials are in the trial counsel's possession, trial counsel should provide them to the 

defense without a request. "Inspect" includes the right to copy. See subsection (h) of this rule. 

Fed. R. Crim. P.16(a)(l)(A) is not included here because the matter is covered in Mil. R. Evid. 304(d)(l). The discussion under subsection 

(a)(6) of this rule lists other discovery and notice provisions in the Military Rules of Evidence. 

Subsection (1) is based on paragraph 44h of MCM, 1969 (Rev.). See also paragraph 33i, id. 18 U.S.C. 8 3500)(a) is contra; the last sentence 

of Article 32(b) reflects Congressional intent that the accused receive witness statements before trial. 

Subsection (2) is based on paragraph 11% of MCM, 1969 (Rev.) and parallels Fed. R. Crim. P. 16(a)(l)(C) and (D). 

Subsection (3)(A) is based on the last sentence in the second paragraph of paragraph 44hof MCM, 1969 (Rev.). See also Appendix 5 at AS-1 

of MCM, 1969 (Rev.); UnitedStates v. Webster, 1 M.J. 216 (C.M.A. 1975). Subsection (3)(B) is basedon Fed. R. Crim. P. 12.l(b). Fed. R. Crim. 

P. 12.2 (notice based on mental condition) contains no parallel requirement for disclosure of rebuttal witnesses by the prosecution. The defense 

will ordinarily have such information because of the accused's participation in any court ordered examhation, so the distinction diminishes in 

practice. In the interest of full disclosure and fairness, subsection (3)(B) requires the prosecution to notify the defense of rebuttal witnesses on 

mental responsibility. See also R.C.M. 706. 

Subsection (4) is based on Fed. R. Crim. P. 16(a)(l)(B). The language is modified to make clear that the rule imposes no duty on the trial 

counsel to seek out prior convictions. (There is an ethical duty to exercise reasonable diligence in doing so, however. See ABA Code of 

Pr@essional Responsibility, DR 6-101(A)(2); EC 6-4 (1975).) The purpose of the rule is to put the defense on notice of prior convictions of the 

accused which may be used against the accused on the merits. Convictions for use on sentencing arecovered under subsection (a)(5). Because of 

this distinction, under some circumstances the trial counsel may not be able to use a conviction on the merits because of lack of timely notice, but 

may be able to use it on sentencing. 

Subsection (5) is based on paragraph 75b(5) of MCM, 1969 (Rev.) Ct Fed. R. Crim. P.32(c)(3). 

Subsection (6) is based on ABA Standards, The Prosecution Function 8 3-3.1 l(a) (1979);ABA Standards, Discovery and Procedure Before 

lkial8 11-2.l(c) (1978). See also UnitedStates v. Agurs, 427 U.S. 97 (1976); Brady v. Maryland, 373 U.S. 83 (1963); UnitedStates v. Brickey, 

16M.J. 258 (C.M.A. 1983); UnitedStates v. Horsey, 6M.J. 112 (C.M.A. 1979); UnitedStatesv. Lucas, 5 M.J. 167 (C.M.A. 1978);ABA Code4 

Prc$essional Responsibility, DR 7-103(B) (1975). 

(b)Disclosure by defense. This subsection is based on Fed. R. Crim. P.12.1, 12.2, and 16(b)(l)(A) and (B).See generally Williams v. Florida, 

399 U.S. 78 (1970). The requirement in Fed. R. Crim. P.12.1 for a written request by the prosecution for notice of an alibi defense was deleted 

because it would generate unnecessary paperwork. The accused is adequately protected by the opportu~ty to request a bill of particulars. 

(c) Failure to call witness. This subsection is based on repealed subsections (a)(4) and (b)(3) of Fed. R. Crim. P. 16. Those subsections were 

inadvertently left in that rule after the notice of witnesses provisions were deleted by the conference committee. Act of December 12, 1975, Pub. 

L. No. 94-149, 8 5, 89 Stat. 806. But see Fed. R. Crim. P. 12.l(f). Because notice of witnesses under R.C.M. 701 is required or othenvise 

encouraged (see also R.C.M. 703), such a provision is necessary in these rules. 

(d) Continuing duty to disclose. This subsection is based on Fed. R. Crim. P. 16(c). See also ABA Standards, Discovery and Procedure Before 

Trial 8 114.2 (1978). 

(e)Access to witnesses and other evidence. This subsection is based on Article 46; paragraphs 42c and48h of MCM, 1969 (Rev.); United States v. 

Killebrew, supra; Halfacre v. Chambers, supra; UnitedStates v. Enloe, 15 U.S.C.M.A. 256,35 C.M.R. 228 (1965); UnitedStates v. Aycock, 15 

U.S.C.M.A. 158, 35 C.M.R. 130 (1964). The subsection permits witness (e.g., informant) protection programs and prevents improper 

interference with preparation of the case. See United States v. Killebrew and UnitedStates v. Cumberledge, both supra. See also subsection (f) of 

this rule; Mil. R. Evid. 507. 

(f)Informution not subject to disclosure. This subsection is based on the privileges and protections in other rules (see, e.g., Mil. R. Evid. 301 and 

Section V. See also Goldberg v. United States, 425 U.S. 94 (1976); United States v. Nobles, 422 U.S. 225 (1975);Hickrnan v. Taylor, 329 U.S. 

495 (1947). It differs from Fed. R. Crirn. P. 16(a)(2) because of the broader discovery requirements under this rule. Production under the Jencks 

Act, 18 U.S.C. 8 3500, is covered under R.C.M. 914. 

(g) Regularion @discovery. Subsection (1) is based on the last sentence of Fed. R. Crim. P. 16(d)(2). It is a separate subsection to make clear that 

the military judge has authority to regulate discovery generally, in accordance with the rule. Local control of discovery is necessary because 

courts-martial are conducted in such a wide variety of locations and conditions. See also R.C.M. 108. 

Subsection (g)(2) is based on Fed. R. Crim. P.16(d)(l). Cf: Mil. R. Evid. 505; 506. See also ABA Standards, Discovery and Procedure 

Before Trial 8 11-4.4 (1978). 

Subsection (g)(3) is based on Fed. R. Crim. P. 16(d)(2), but it also incorporates the noncompliance provision of Fed. R. Crim. P. 

12.l(d) and 12.2(d). But see Williams v. Florida, supra at 83 n. 14; Alicea v. Gagnon, 675 F. 2d 913 (7th.C~. 1982). The discussion is based on 

United States v. Myers, 550 F.2d. 1036 (5th Cir. 1977), cert. denied, 439 U.S. 847 (1978). 
ANALYSIS App. 21, R.C.M. 702(e) 

(h) Inspect. This subsection is based on Fed. R. Crim. P. 16. 

Rule 702. Depositions 

(a) In general. This subsection is based on the first sentence in Fed. R. Crim. P. 15(a). The language concerning preferral of charges is added 

based on Article 49(a). The language concerning use at Article 32 investigations is also added because depositions may be used at such hearings. 

"Exceptional" means out of the ordinary. Depositions are not taken routinely, but only when there is a specific need under the circumstances. As used in Fed. R. Crim. P. 15(a) "exceptional circumstances" is generally limited to preserving the testimony of a witness who is likely 

to be unavailable for trial. See 8 J. Moore, Moore's Federal Practice ll15.02[1]; 15.03 (1982 rev. ed.); UnitedStates v. Singleton, 460 F.2d. 1148 

(2d Cir. 1972). A deposition is not a discovery device under the Federal rule. 8 J. Moore, supra ll 15.02[1]. See also UnitedStates v. Rich, 580 

F.2d. 929 (9th Cir.), cert. denied, 439 U.S. 935 (1978); UnitedStatesv.Adcock, 558 F.2d. 397 (8thCk), cert. denied, 434 U.S. 921 (1977). The 

Court of Military Appeals has held that depositions may serve as a discovery device in certain unusual circumstances. See Analysis, subsection 

(c)(3)(A)infra. Consequently, "exceptional circumstances" may be somewhat broader in courts-martial. Nevertheless, the primary purpose of 

this rule is to preserve the testimony of unavailable witnesses for use at trial. See Article 49; Hearings on H. R. 2498 Before a Subcomm. ofthe 

Comm. on Armed Services 8 1st Cong., 1st Sess. 1064-1070 (1949). 

The first paragraph in the discussion is based on Article 49(d) and (f) and on paragraph 117a of MCM, 1969 (Rev.). The second and third 

paragraphs are based on Article 49(d), (e), and (f); paragraph 1176(11) of MCM, 1969 (Rev.); Fed. R. Crim. P. 15(e). The admissibility of 

depositions is governed by Mil. R. Evid. 804 and by Article 49(d), (e), and (0so it is unnecessary to prescribe further rules governing their use in 

R.C.M. 702. As toArticle49(d)(l), see UnitedStatesv. Davis, 19U.S.C.M.A. 217,41 C.M.R. 217 (1970). Seealso UnitedStatesv. Bennett, 12 

M.J. 463,471 (C.M.A. 1982); United States v. Gaines, 20 U.S.C.M.A. 557,43 C.M.R. 397 (1971); United States v. Bryson, 3 U.S.C.M.A. 

329, 12 C.M.R. 85 (1953). The fourth paragraph in the discussion is based on paragraphs 75b(4) and 75e of MCM, 1969 (Rev.). 

(b) Whomay order. This subsection is based on Article 49(a) and on the second and third sentences of paragraph 117b(l) of MCM, 1969 (Rev.). 

As noted in subsection (i) the express approval .of a competent authority is not required in order to take a deposition. See also United States v. 

Ciarletta, 7 U.S.C.M.A. 606, 23 C.M.R. 70 (1957). Express approval may be necessary in order to secure the necessary perso~el or other 

resources for a deposition, when a subpoena will be necessary to compel the presence of a witness, or when the parties do not agree to the 

deposition. 

(c)Request to take deposition. Subsection (1) is based on the first sentence in paragraph 117b(l) of MCM, 1969 (Rev.). The discussion is based on 

the fourth sentence of that paragraph. Subsection (2) is based on the fifth and sixth sentences in paragraph 117b(l). 

Subsection (3)(A) is based on Article 49(a). The discussion provides g"idance on what may be good cause for denial. The discussion 

indicates that ordinarily the purpose of a deposition is to preserve the testimony of a necessary witness when that witness is likely to be unavailable 

for trial. See Analysis, subsection (a) of this rule. The Court of Military Appeals has held that a deposition may be required in other circumstances 

described in the last sentence of the discussion. See United States v. Killebrew, 9 M.J. 154 (C.M.A. 1980); United States v. Cumberledge, 6 M. J. 

203,205 n. 3 (C.M.A. 1979) (deposition may be appropriate means to compel interview with witness when Government improperly impedes 

defense access to a witness); UnitedStates v. Chuculate, 5 M .J. 143,145 (C.M.A. 1978) (deposition may be an appropriate means to allow sworn 

cross-examination of an essential witness who was unavailable at the Article 32 hearing); United States v. Chestnut, 2 M.J. 84 (C.M.A. 1976) 

(deposition may be an appropriate means to cure error where witness was improperly found unavailable at Article 32 hearing). Chuculate and 

Chestnut have construed Article 49 as a means of satisfying the discovery purposes of Article 32 when the Article 32 proceeding fails to do so. 

Killebrew and Cumberledge have construed Article 49 as a means of permitting full investigation and preparation by the defense when the 

Government improperly interferes. Whether a deposition is an appropriate tool for the latter purpose may bear further consideration, especially 

since R.C.M. 701(e) makes clear that such interference is improper. See also R.C.M. 906(b)(7). 

Subsection (3)(B) is based on the first sentence of paragraph 117b(l) and on paragraphs 75b(4) and e of MCM, 1969 (Rev.). See also United 

States v. Jacoby, 1 1 U. S .C .M. A. 428, 29 C.M.R. 244 (1960). 

Subsection (3)(C) is new and is self-explanatory. 

Subsection (3)(D) is based on United States v. Cumberledge and United States v. Chuculate, both supra. 

(d)Action when request is approved. Subsection (1) and its discussion are new. See Article 49(c). Detailing the deposition officer is a ministerial 

act. When it is intended that the deposition officer issue a subpoena, it is important that the deposition officer be properly detailed. In other cases, 

proper detailing is not of critical importance as long as the deposition officer is qualified. C' United States v. Ciarletta, supra. 

Subsection (2) is based on paragraph 117b of MCM, 1969, (Rev.). That paragraph provided that the accused would have the same rights to 

counsel as that for the trial at which the deposition could be used. Under R.C.M. 502, the accused has the right to qualified counsel at both general 

and special courts-martial. If a summary court-martial is intended, ordinarily there is no need for an oral deposition; instead the summary courtmartial should be detailed and proceed to call the witness. Under subsection (g)(2)(A) the accused at a summary court-martial is not entitled to 

counsel for a written deposition. The first paragraph in the discussion is based on United States v. Catt, 1 M. J. 41 (C.M.A. 1975); UnitedStates v. 

Timberlake, 22 U.S.C.M.A. 1 17, 46 C.M.R. 117 (1973); United States v. Gaines, supra. See also R.C.M. 505(d)(2)(B) and analysis. The 

second paragraph in the discussion is based on the second sentence in paragraph 117b(2) of MCM, 1969 (Rev.). The rule does not prohibit the 

accused from waiving the right to counsel at a deposition. See R.C.M. 506(d); United States v. Howell, 11 U.S.C.M.A. 712,29 C.M.R. 528 

(1960). 

Subsection (3) is new and reflects the ministerial role of the deposition officer. 

(e)Notice. This subsection is based on Article 49(b) and paragraph 117b(4) of MCM, 1969 (Rev.). It is consistent with Fed. R. Crim. P. 15(b).See 

generally United States v. Donati, 14 U.S.C.M.A. 235, 34 C.M.R. 15 (1963). 
App. 21, R.C.M. 702(f) APPENDIX 21 

(0Duties ofthe deposition @cer. This subsection is based on paragraphs 117b(5), (71, and (8) and c(3) and (4) of MCM, 1969 (Rev.). It is 

organized to provide a deposition officer a concise list of the duties of that office. 

(g) Procedure. Subsection (l)(A) is based on paragraph 117b(2) of MCM, 1969 (Rev.); Fed. R. Crim. P. 15(b).See also United States v. Donati, 

supra. Subsection (l)(B) is based on paragraph 1 17b(6) and (7) of MCM, 1969 (Rev.). See also Fed. R. Crim. P.15(d). Subsection (2) is based on 

the first sentence of paragraph 1176(2) and paragraph 117c of MCM, 1969 (Rev.). Subsection (2)(B) is based on paragraph 117c of MCM, 1969 

(Rev.). Note that if the accused and counsel can be present, it ordinarily is feasible to conduct an oral deposition. Written interrogatories are 

expressly provided for in Article 49. 

Subsection (3) is new and is based on Article 49(d) and (0, as amended, Military Justice Act of 1983, Pub. L. No. 98-209,s 6(b), 97 Stat. 

1393 (1983). The convening authority or military judge who orders the deposition has discretion to decide whether it will be recorded in' a 

transcript or by videotape, audiotape, or similar material. Nothing in this rule is intended to require that a deposition be recorded by videotape, 

audiotape, or similar material. Factors the convening authority or military judge may consider include the availability of a qualified reporter and 

the availability of recording equipment. See also United States v. Vietor, 10 M.J. 69, 77 n.7 (C.M.A. 1980) (Everett, C.J., concumng in the 

result). 

(h) Objections.This subsection is based on the second and third sentences of the penultimate paragraph of paragraph 117b of MCM, 1969 (Rev.) 

and on Fed. R. Crim. P. 15(f). The waiver provisions are more specific than in paragraph 1 176 in order to ensure that objections are made when the 

defect arises. This promotes efficiency by permitting prompt corrective action. See Fed. R. Cnm. P.15(f). This requirement should not be applied 

so as to unduly impede the taking of a deposition, however. Only objections to matters which are correctable on the spot need be made. For 

example, an objection to opinion testimony should ordinarily be made at the deposition, so that the necessary foundation may be laid, if possible. 

On the other hand, objections on grounds of relevance ordinarily are inappropriate at a deposition. Subsection (1) is also based on UnitedStates v. 

Ciarletta supra. See also United States v. Gaines and United States v. Bryson, both supra. Matters which ordinarily are waived if not raised 

include lack of timely notice and lack of qualifications of the deposition officer. 

(i) Deposition by agreement not precluded. This subsection is based on Article 49(a) and on Fed. R. Crim. P. 15(g). 

Rule 703. Production of witnesses and evidence 

(a) In general. This subsection is based on Article 46. 

(b)Right to witnesses. Subsections (1) and (2) are based on the fourth paragraph of paragraph 115a of MCM, 1969 (Rev.). The second paragraph 

in the discussion is based on UnitedStates v. Roberts, 10 M.J. 308 (C.M.A. 1981). See also UnitedStates v. Jefferson, 13 M.J. 1 (C.M.A. 1982); 

UnitedStatesv. Bennett, 12 M. J. 463 (C.M.A. 1982); United States v. Credit, 8 M. J. 190 (C.M. A. 1980) (Cook, J.); UnitedStates v. Hampton, 7 

M .J. 284 (C.M.A. 1979); United States v. Tangpuz, 5 M.J. 426 (C.M.A. 1978) (Cook, J.); United States v. Lucas, 5 M. J. 167 (C.M.A. 1978); 

UnitedStates v. Williams, 3 M.J. 239 (C.M.A. 1977); UnitedStatesv. Carpenter, 1 M.J. 384 (C.M.A..1976); UnitedStates v.Iturralde-Aponte. 1 

M.J. 196 (C.M.A. 1975). Cf:Fed. R. Crim. P.17(b).Seegenerally 8 J. Moore, Moore's FederalPractice l117.05 (1982rev. ed). Subsection (3) is 

based on United States v. Bennett, supra; United States v. Daniels, 23 U.S.C.M.A. 94, 48 C.M.R. 655 (1974). See also United States v. 

Valenzuela-Bernal, U.S. , 102 S. Ct. 3440 (1982). 

(c) Determining which witnesses will beproduced. This subsection is based generally on paragraph 115a of MCM, 1969 (Rev.). The procedure 

for obtaining witnesses under Fed. R. Crim. P. 17 is not practicable in courts-martial. Under Fed. R. Crim. P. 17, witnesses are produced by 

process issued and administered by the court. In the military trial judiciary, no comparable administrative infrastructure capable of performing 

such a function exists, and it would be impracticable to create one solely for that purpose. The mechanics and costs of producing witnesses are the 

responsibility of the command which convened the court-martial. Moreover, military judges often do not sit at fixed locations and must be 

available for service in several commands or places. Note, however, that any dispute as to production of a witness is subject to a judicial 

determination. Experience has demonstrated that these administrative tasks should be the responsibility of trial counsel. 

Subsection (I) is based on the first three sentences in the fourth paragraph of paragraph 115a of MCM, 1969 (Rev.). 

Subsection (2) is based generally on the remainder of paragraph 115a of MCM, 1969 (Rev.). The procedure for production of defense 

witnesses prescribed in paragraph 115a was questioned in several decisions. See United States v.Arias, 3 M.J. 436,439 (C.M.A. 1977); United 

States v. Williams, supra at 240 n.2; United States v. Carpenter, supra at 386 n. 8. The practical advantages of that procedure were recognized, 

however, in United States v. Vietor, 10 M.J. 69, 77 (C.M.A. 1980) (Everett, C.J., concumng in the result). 

Subsection (2) modifies the former procedures to reduce the criticized aspects of the earlier practice whlle retaining its practical advantages. 

For reasons stated above, the trial counsel is responsible for the administrative aspects of production of witnesses. Thus, under subsection (2)(A) 

the defense submits its list of witnesses to the trial counsel so that the latter can arrange their production. The trial counsel stands in a position 

similar to a civilian clerk of court for this purpose. Because most defense requests for witnesses are uncontested, judicial economy is served by 

routing the list directly to the trial counsel, rather than to the military judge first. Ths also allows the trial counsel to consider such alternatives as 

offering to stipulate or take a deposition, or recommending to the convening authority that a charge be withdrawn. See United States v. Vietor, 

supra. Further, it allows arrangements to be made in a more timely manner, since the trial counsel is usually more readily available than the 

military judge. Only if there is a genuine dispute as to whether a witness must be produced is the issue presented to the military judge by way of 

motion. 

Subsections (2)(B) and (C) also further judicial economy and efficiency by facilitating early arrangements for the production of witnesses 

and by permitting the prompt identification and resolution of disputes. Subsection (2)(B) is based on the fifth and sixth sentences of the fourth 

paragraph of paragraph 115a of MCM, 1969 (Rev.). See also United States v. Valenzuela-Bernal, supra; United States v. Wagner, 5 M.J. 461 

(C.M.A. 1978);UnitedStates v. Lucas, 5 M.J. 167 (C.M.A. 1978). Cf: United States v. Hedgwood, 562 F.2d. 946 (5th Cir. 1977), cert. denied, 
ANALYSIS App. 21, R.C.M. 703(e) 

434 U.S. 1079 (1978); United States v. Barker, 553 F.2d 1013 (6th Cir. 1977). Subsection (2)(C) is new. See generally UnitedStates v. Menoken, 

14 M.J. 10 (C.M.A.1982) and United States v. Johnson, 3 M.J. 772 (A.C.M.R.), pet. denied, 4 M.J. 50 (1977). 

Subsection (2)(D) provides for resolution of disputes concerning witness production by the military judge. Application to the convening 

authority for relief is not required. It is permitted under R.C.M. 905Q). The last sentence in this subsection is based on UnitedStates v. Carpenter, 

supra. See subsection (b) of this rule as to the test to be applied. 

(d) Employment of expert witnesses. This subsection is based on paragraph 116 of MCM, 1969 (Rev.). See also United States v. Johnson, 22 

U.S.C.M.A. 424, 47 C.M.R. 402 (1973); Hutson v. United States, 19 U.S.C.M.A. 437, 42 C.M.R. 39 (1970). Because funding for such 

employment is the responsibility of the command, not the court-martial, and because alternatives to such employment may be available, 

application to the convening authority is appropriate. In most cases, the military's investigative, medical, or other agencies can provide the 

necessary service. Therefore, the convening authority should have the opportunity to make available such services as an alternative. Cf: United 

States v. Johnson, supra; United States v. Simmons, 44 C.M.R. 804 (A.C.M.R. 1971), pet. denied, 21 U.S.C.M. A. 628,44 C.M.R. 940 (1972). 

This subsection has no reference to ratification of employment of an expert already retained, unlike 18 U.S.C. 8 3006A(e). See also Ms. Comp. 

Gen. B49109 (June 25,1949). This subsection does not apply to persons who are government employees or under contract to the Government to 

provide services which would otherwise fall within this subsection. The reference in paragraph 116 of MCM, 1969 (Rev.), to service regulctions 

has been deleted as unnecessary. 

(e) Procedures for production. Subsection (1) and the discussion are based on paragraph 115b of MCM, 1969 (Rev.). 

Subsection (2)(A) is consistent with current practice. 

Subsection (2)(B) is based on Fed. R. Crim. P. 17(a) and (c) and on Appendix 17 of MCM, 1969 (Rev.). See Article 46. The discussion is 

taken from the second sentence of the second paragraph of paragraph 115a of MCM, 1969 (Rev.). Note that the purpose of producing books, 

papers, documents and other objects before a proceeding for inspection is to expedite the proceeding, not as a general discovery mechanism. See 

Bmn Dairy Co. v. United States, 341 U.S. 214 (1951). See generally United States v. Nixon, 418 U.S. 683 (1974). 

Subsection (2)(C) is based on paragraph 79b, the thud paragraph of paragraph 115a, and the first sentence of paragraph 115d(l) of MCM, 

1969 (Rev.). Authority for the president of a court of inquiry and a deposition officer to issue a subpoena is expressly added to fill the lacunae left 

by MCM, 1969 (Rev.). in regard to these procedures. See Articles 47(a)(l), 135(f). 

Subsection (2)(D) is based on Fed. R. Crim. P. 17(d) and on the second sentence of the fifth paragraph of paragraph 11 5d(l) of MCM, 1969 

(Rev.). See also 28 U.S.C. 8 569(b). The discussion is based on paragraph 115d(l) of MCM, 1969 (Rev.). 

Subsection (2)(E) is based on Article 46 and the first sentence of paragraph 115d(l) of MCM, 1969 (Rev.). It parallels Fed. R. Crim. P. 

17(e)(l). Process in courts-martial does not extend abroad, except in occupied territory, nor may it be used to compel persons within the United 

States to attend courts-martial abroad. See Article 46; UnitedStates v. Bennett, supra; UnitedStates v. Daniels, supra; UnitedStates v. Stringer, 5 

U.S.C.M.A. 122, 17 C.M.R. 122 (1954). But see United States v. Daniels, supra at 97,48 C.M.R. at 658 (Quinn, J. concurring in the result) 

(suggesting possible use of 28 U.S.C. 8 1783(a) to secure presence of witness overseas to testify in a court-martial). The discussion is based on 

the last paragraph of paragraph 115d(l) of MCM, 1969 (Rev.). Note that under subsection (2)(E)(iii) any civilians in occupied territory are subject 

to compulsory process of the occupying force. 

Subsection (2)(F) is based on Fed. R. Crim P. 17(c), but is broader in that is not limited to a subpoena duces tecum. Cf: Fed. R. Crim. P. 

170x2). 

Subsection (2)(G) and the discussion are based on paragraph 115d(2) and (3), MCM, 1969 (Rev.). The definition of "warrant of attachment" 

is based on 12 Op. Atty. Gen. 501,502 (1868). The military power to use a warrant of attachment is inherent in the power to subpoena. 12 Op. 

Any. Gen. 501 (1868) (construing Act of 3March 1863, ch. 79, 8 25,12 Stat. 754, which became Article of War 22 of 1916 (39 Stat. 654), the 

predecessor of Article 46.). See also W. Winthrop, Military Law and Precedents 20S202, 202 n.46 (2d ed. 1920 reprint). The power of 

attachment has been included in the Manuals for Courts-Martial since 1895. Treatment of this enforcement provision in the Manual is in accord 

with the legislative intent to "leave mechanical details as to the issuance of process to regulation." H. R. Rep. No. 491,81st Cong., 1st Sess. 24 

(1949). The power has been used and sustained. See, e.g., UnitedStates v. Shibley, 112 F. Supp. 734 (S.D. Cal. 1953) (court of inquiry). Federal 

civilian courts have previously used the warrant of: attachment but no longer do because a power to issue an arrest warrant is implied from Fed. R. 

Crim. P. 46(b) and 18 U.S.C. 8 3149. SeeBacon v. United States, 449 F.2d. 933 (9th Cir. 1971) (arrest of material witness for testimony at grand 

jury before actual disobedience of subpoena). Warrants of attachment may be served in the same way and by the same officials as subpoenas. By 

their nature warrants of attachment have caused little litigation in military appellate courts. See generally UnitedStates v. Sevaaetasi, 48 C.M.R. 

964 (A.C.M.R.), pet. denied, 23 U.S.C.M.A. 620,49 C.M.R. 889 (1974); United States v. Ercolin, 46 C.M.R. 1259 (A.C.M.R. 1973); United 

States v. Feeley, 47 C.M.R. 58 1 (N.C.M.R.), pet. denied, 22 U.S.C.M. A. 635 (1973). 

The procedure for issuing warrants of attachment is modified somewhat. The warrant must be authorized by the military judge, or, in special 

courts-martial without a military judge and summary courts-martial (see subsection (e)(2)(G)(v) of this rule), and depositions and courts of 

inquiry, the convening authority. Paragraph 115d(3) of MCM, 1969 (Rev.) required only that the trial counsel consult with the convening 

authority, or "after the court was convened" the military judge. Subsection (e)(2)(G) now requires written authorization from one of these 

persons. Second, subsection (e)(2)(G)(ii) incorporates as requirements the standards in the third paragraph of paragraph 115d(3) of MCM, 1969 

(Rev.). That paragraph was seemingly advisory in nature. Subsection (e)(2)(G)(iv) is based on the second paragraph and the first sentence of the 

last paragraph of paragraph 115d(3) of MCM, 1969 (Rev.). The last sentence of subsection (e)(2)(G)(iv) is new and is intended to ensure that any 

detention under this rule is limited to the minimum necessary to effect its purpose. These modifications provide additional safeguards to ensure 

that detention of witnesses is exercised only when necessary and appropriate. See generally Lederer, Warrants of Attachment-Forcibly 

Compelling the Attendance of Witnesses; 98 Mil. L. Rev. 1 (1982). 
App. 21, R.C.M. 703(f) APPENDIX 21 

(f) Evidence. This subsection is based generally on paragraph 11% and c of MCM, 1969 (Rev.). See also United States v. Toledo, 15 M.J. 255 

(C.M.A. 1983). It parallels the procedures for production of witnesses. Discovery and introduction of classified or other government information 

is covered by Mil. R. Evid. 505 and 506. Note that unlike the standards for production of witnesses, there is no difference in the standards for 

production of evidence on the merits and at sentencing. The relaxation of the rules of evidence at presentencing proceedings provides some 

flexibility as to what evidence must be produced at those proceedings. 

Rule 704. Immunity 

(a) Types ofimmunity. This subsection recognizes both transactional and testimonial or use immunity. See Pillsbury Co. v. Conboy, 

U.S., 51 U.S.L. W. 4061 (U.S. 1983); Kastigar v. UnitedSiates, 406 U.S. 441 (1972); Murphy v. Waterfront Commission, 378 U.S. 

52 (1964). See also 18 U.S.C. 8 § 6001-6005; United States v. Villines, 13 M.J. 46 (C.M.A. 1982). See generally H. Moyer, Justice and the 

Military 376-381 (1972); Green, Grants oflmmunity and Military Law, 1971-1976, 73 Mil. L. Rev. 1 (1976) (hereinafter cited as Green 11); 

Green, Grants oflmmunity and Military Law, 53 Mil. L. Rev. 1 (1971) (hereinafter cited as Green I). 

Paragraph 68h of MCM, 1969 (Rev.) expressly recognized transactional immunity. It did not address testimonial immunity. Nevertheless, 

testimonial immunity has been used in courts-martial. See United States v. Villines, supra; United States v. Eastman, 2 M.J. 417 (A.C.M.R. 

1975);UnitedStates v. Rivera, 49 C.M.R. 259 (A.C.M.R. 1974), rev'd on other grounds, 1 M.J. 107 (C.M.A. 1975). See also Mil. R. Evid. 

301(c)(l). 

Subsection (1) makes clear that transactional immunity extends only to trial by court-martial. See Dept. of Defense Dir. 1355.1 (July 21, 

1981). Subsection (2) is written somewhat more broadly, however. Use immunity under R.C.M. 704 would extend to a State prosecution. C' 

Murphy v. Waterfront Commission, supra. Moreover, although a convening authority is not independently empowered to grant immunity 

extending to Federal civilian prosecutions, use immunity extending to such cases may be granted by a convening authority when specifically 

authorized under 18. U.S.C. 88 6002 and 6004. See subsection (c) and Analysis. 

The second paragraph in the discussion is based on 18 U.S.C. 8 6004. The third paragraph in the discussion is based on United States v. 

Rivera, 1 M.J. 107 (C.M.A. 1975); United States v. Eastman, supra. 

(b)Scope. This subsection clarifies the scope of R.C.M. 704. It is based on the last clause in 18 U.S.C. § 6002. Note that this rule relates only to 

criminal proceedings. A grant of immunity does not extend to administrative proceedings unless expressly covered by the grant. 

(c)Authority to grant immunity. This subsection is based on paragraph 68h of MCM, 1969 (Rev.) and on UnitedStates v. Kirsch, 15 U.S .C.M. A. 

84,35 C.M.R. 56 (1964). See also UnitedStates v. Villines, supra. Kirschrecognized coda1 authority for a convening authority to grant immunity 

(seeArticles 30,44, and 60) and found implementing Manual provisions to be a proper exercise of authority under Article 36. (At the time Kirsch 

wasdecided, the convening authority's powers now contained in Article 60 were in Article 64.)The enactment of 18 U.S.C. 8 6001-6005 did not 

remove this power. See United States v. Villines, supra; Department of Justice Memorandum, Subject: Grants of Immunity by Court-Martial 

Convening Authorities (Sept. 22, 1971) discussed in Grants oflmmunity, The Army Lawyer 22 (Dec. 1973), See also Dept. of Defense Dir. 

1355.1 (July 21, 1981). See generally Green I, supra at 27-35; H. Moyer, supra at 377-380. The rule recognizes, however, that the authority 

under the code of a general court-martial convening authority to grant immunity does not extend to federal prosecutions. Id. Consequently, the 

rule directs military authorities to 18 U.S.C. $8 6001-6005 as a means by which such immunity can be granted when necessary. The discussion 

under subsection (1) offers additional guidance on this matter. See the penultimate paragraph of the Analysis of subsection (a) of this rule as to the 

effect of a grant of immunity to state prosecutions. 

The rule makes clear that only a general court-martial convening authority may grant immunity. See United States v. Joseph, 11 M.J. 333 

(C.M.A. 1981); United States v. Caliendo, 13 U.S.C.M.A. 405,32 C.M.R. 405 (1962); UnitedStates v. Thompson, 11 U.S.C.M.A. 252,29 

C.M.R. 68 (1960); United States v. Werthrnan, 5 U.S.C.M.A. 440,18 C.M.R. 64 (1955). Cj Pillsbury Co. v. Conboy, supra. Cooke v. Orser, 12 

M.J. 335 (C.M.A. 1982), is not to the contrary. In Cooke the majority found that due process required enforcement of promises of immunity under 

the facts of that case. One member of the majority also opined that the convening authority could be held, on the facts, to have authorized the grant 

of immunity. The limitations in subsection (c)(3) and the procedural requirements in subsection (d) are intended to reduce the potential for the 

kinds of problems which arose in Cooke. 

The power to grant immunity and the power to enter into a pretrial agreement, while related, should be distinguished. R.C.M. 704 does not 

disturb the power of a convening authority, including a special or summary court-martial convening authority, to make a pretrial agreement with 

an accused under which the accused promises to testify in another court-martial, as long as the agreement does not purport to be a grant of 

immunity. Note that the accused-witness in such a case could not be ordered to testify pursuant to the pretrial agreement; instead such an accused 

would lose the benefit of the bargained for relief upon refusal to carry out the bargain. See also R.C.M. 705. 

The first paragraph in the initial discussion under subsection (c) is based on Cooke v. Orser and United States v. Caliendo, both supra. As to 

the second paragraph in that discussion see UnitedStaies v. Newman, 14 M. J. 474 (C.M.A. 1983). The discussionunder subsection (c)(l) is based 

on Grants af Immunity, The Army Lawyer 22 (Dec. 1973). See also Dept. of Defense Dir. 1355.1 (July 21, 1981); Memorandum of 

Understanding Between the Departments of Justice and Defense Relating to the Investigation and Prosecution of Crimes Over Which the Two 

Departments Have Concurrent Jurisdiction (1955). 

As to whether the threat of a foreign prosecution is a sufficient basis to refuse to testify in a court-martial notwithstanding a grant of 

immunity, see United States v. Murphy, 7 U.S .C.M. A. 32, 21 C.M.R. 158 (1956). See also United States v. Yanagita, 552 F.2d 940 (2d Cir. 

1977);In re Parker, 41 1 F.2d 1067 (10th Ck 1969), vacatedas moot, 397 U.S. 96 (1970); Green 11, supra at 12-14. But seeln re Cardassi, 351F. 

Supp. 1080 (D. Corn. 1972); McCormick's Handbook ofthe Law aEvidence 262-63 (E. Cleary ed. 1972). The Supreme Court has not decided 

the issue. See Zicarelli v. New Jersey State Commission oflnvestigation, 406 U.S. 472 (1974). 
ANALYSIS App. 21, R.C.M. 705(c) 

(d)Procedure. This subsection is new. It is intended to protect the parties to a grant of immunity by reducing the possibility of misunderstanding or 

disagreement over its existence or terms. Cj Cooke v. Orser, supra. 

The first paragraph in the discussion is based on United States v. Kirsch, supra. 

The second paragraph in the discussion is based on United States v. Conway, 20 U.S .C.M.A. 99,42 C.M.R. 291 (1970); United States v. 

Stoltz, 14 U.S.C.M.A. 461,34 C.M.R. 241 (1964). See also UnitedStates v. Scoles, 14 U.S.C.M.A. 14,33 C.M.R. 226 (1963); GreenI, supra 

at 20-23. 

The last paragraph in the discussion is based on Mil. R. Evid. 301(c)(2) and United States v. Webster, 1 M.J. 216 (C.M.A. 1975). 

(e) Decision to grant immunity. This subsection is based on UnitedStates v. Villines, supra. Although there was no majority opinion in that case, 

each judge recognized the problem of the need to immunize defense witnesses under some circumstances, and each suggested different possible 

solutions. The rule addresses these concerns and provides a mechanism to deal with them. Note that the military judge is not empowered to 

immunize a witness. If the military judge finds that a grant of immunity is essential to a fair trial, the military judge will abate the proceedings 

unless immunity is granted by an appropriate convening authority. 

Rule 705. Pretrial agreements 

Introduction. This rule is new. The code does not address pretrial agreements, and MCM, 1969 (Rev.) did not discuss them. Pretrial 

agreements have long existed and been sanctioned in courts-martial, however. See United States v. Allen, 8 U.S .C.M.A. 504, 25 C.M.R. 8 

(1957). See generally Gray, PretrialAgreements, 37 Fed. Bar J. 49 (1978). The rule recognizes the utility of pretrial agreements. At the same time 

the rule, coupled with the requirement for judicial inquiry in R.C.M. 910, is intended to prevent informal agreements and protect the rights of the 

accusedand the interests of the Government. SeealsoSantobello v. New York, 404 U.S. 257 (1971); Fed. R. Crim. P.1 l(e);ABA Standards, Pleas 

of Guilty (1979). 

(a) In general. This subsection is based on United States v. Allen, supra. Only the convening authority may enter a pretrial agreement with an 

accused. See United States v. Caruth, 6 M.J. 184 (C.M. A. 1979); United States v. Johnson, 2 M. J. 541 (A.C.M.R. 1976); United States v. 

Crawford, 46 C.M.R. 1007 (A.C.M.R. 1972). See also United States V. Troglin, 21 U.S.C.M.A. 183, 44 C.M.R. 237 (1972). Pretrial 

agreements have long been subject to service regulations. See, e.g., A.F.M. 11 1-1, para. 4-8 (May 13, 1980); JAGMAN section 01 14 (June 11, 

1982). Subsection (a) expressly continues such authority. The discussion is based on Department of Defense Directive 1355.1 (July 21, 1981). 

(b) Nature afagreement. This subsection recognizes the matters contained in pretrial agreements. See United States v. Cook, 12 M.J. 448 

(C.M.A. 1982); United States v. Schaffer, 12 M:J. 425 (C.M.A. 1982); United States v. Brown, 12 M.J. 420 (C.M.A. 1982); United States v. 

Bertelson, 3 M.J. 314 (C.M.A. 1977); United States v. Allen, supra. As to prohibited and permitted terms and conditions, see subsection (c) of 

this rule. The discussion under subsection (2)(C) is based on United States v. Cook, supra. 

(c) Terms and conditions. This subsection is intended to ensure that certain fundamental rights of the accused cannot be bargained away while 

permitting the accused substantial latitude to enter into terms or conditions as long as the accused does so freely and voluntarily. Subsection (l)(B) 

lists certain matters which cannot be bargained away. This is because to give up these matters would leave no substantial means to judicially ensure 

that the accused's plea was provident, that the accused entered the pretrial agreement voluntarily, and that the sentencing proceedings met 

acceptable standards. See United States v. Mills, 12 M.J. 1 (C.M.A. 1981); United States v. Green, 1 M. J. 453 (C.M.A. 1976); UnitedStates v. 

Holland, 1 M.J. 58 (C.M.A. 1975); United States v. Care, 18 U.S.C.M.A. 535, 40 C.M.R. 247 (1969); United States v. Cummings, 17 

U.S.C.M.A. 376,38 C.M.R. 174 (1968); UnitedStates v.Allen, supra. The discussion under subsection (2) is based on UnitedStatesv.Holland, 

supra. The rule is not intended to codify Holland to the extent that Holland may prevent the accused from giving up the right to make any motions 

before trial. C' UnitedStates v. Schaffer, supra. Subsection (1)(A) provides that any tern or condition, even if not otherwise prohibited, must be 

agreed to by the accused freely and voluntarily. C' United States v. Green, supra; United States v. Care, supra. 

Subsection (2) makes clear that certain terms or conditions are not included in subsection(l)(B) and are permissible as long as they are freely 

and voluntarily agreed to by the accused. Since the accused may waive many matters other than jurisdiction, in some cases by failure to object or 

raise a matter (see R.C.M. 905(e); Mil. R. Evid. 103(a)), or by a plea of guilty (see R.C.M. 910(j) and Analysis), there is no reason why the 

accused should not be able to seek a more favorable agreement by agreeing to waive such matters as part of a pretrial agreement. Indeed, 

authorization for such terms or conditions, coupled with the requirement that they be included in the written agreement (see subsection (d)(3) of 

this rule) prevents sub rosa agreements concerning such matters and ensures that a careful judicial inquiry into, and record of, the accused's 

understanding of such matters will be made. The matters listed in subsection (2) have been judicially sanctioned. As to subsection (2)(A), see 

United States v. Thomas, 6 M.J. 573 (A.C.M.R. 1978). C' United States v. Bertelson, supra. Subsection (2)(B) is based on United States v. 

Reynolds, 2 M. J. 887 (A.C.M.R. 1976); United States v. Tyson, 2 M.J. 583 (N.C.M.R. 1976). See also United States v. Chavez-Rey, 1 M. J. 34 

(C.M.A. 1975); United States v. Stoltz, 14 U.S.C.M.A. 461, 34 C.M.R. 241 (1964). 

Subsection (2)(C) is based on United States v. Callahan, 8 M. J. 804 (N.C.M.R. 1980); United States v. Brown, 4 M.J. 654 (A.C.M.R. 

1977). Enforcement of a restitution clause may raise problems if the accused, despite good faith efforts, is unable to comply. See UnitedStates v. 

Brown, supra. 

Subsection (2)(D) is based on United States v. Dawson, 10 M.J. 142 (C.M.A. 1982). Although the post-trial misconduct provision in 

Dawson was rejected, a majority of the court was apparently willing to permit such provisions if adequate protections against arbitraryrevocation 

of the agreement are provided. However, see UnitedStates v. Connell, 13 M.J. 156 (C.M.A. 1982) in which apost-trial misconduct provision was 

held unenforceable without detailed analysis. Subsection (D) provides the same protections as revocation of a suspended sentence require. See 

R.C.M. 1109 and Analysis. Given such protections, there is no reason why an accused who has bargainedfor sentence relief such as a suspended 

sentence should enjoy immunity from revocation of the agreement before action but not afterward. Other decisions have suggested the validity of 
App. 21, R.C.M. 705(d) APPENDIX 21 

post-trial misconduct provisions. See UnitedStates v. Goode, 1 M.J. 3 (C.M.A. 1975); UnitedStatesv. Thomas, supra; UnitedStates v. French, 5 

M.J. 655 (N.C.M.R. 1978). Cf United States v. Lallande, 22 U.S.C.M.A. 170, 46 C.M.R. 170 (1973). 

Subsection (2)(E) is based on United States v. Schaffec supra; UnitedStates v. Mills, supra; UnitedStates v. Schmeltz. 1 M.J. 8 (C.M.A. 

1975). Note that the list is not exhaustive. The right to enlisted members may be waived, for example. 

(d) Procedure. This subsection ensures that an offer to plead guilty pursuant to a pretrial agreement originates with the accused, and that the 

accused freely and voluntarily enters a pretrial agreement. At the same time it recognizes that a pretrial agreement is the product of negotiation and 

discussion on both sides, each of which is free to refuse to enter an agreement and go to trial. Subsection (1) is based on United States v. Schaffer, 

supra. This subsection, together with the prohibition against terms not freely and voluntarily agreed to by the accused and the requirement in 

R.C.M. 910 for an inquuy into the agreement, should prevent prosecutorial pressure or improper inducements to the accused to plead guilty or to 

waive rights against the accused's wish or interest. See United States v. Schaffer, supra at 428-29. 

Subsection (2) provides that once plea discussions ate initiated by the defense the convening authority or a representative may negotiate with 

the defense. This recognizes that while the offer must originate with the defense, the specific provisions in an agreement may be the product of 

discussions with the Government. Schaffer, Mills, and Schmeltz suggest that each term must originate with the defense. R.C.M. 705 is consistent 

with this insofar as it requires that the offer to plead guilty originate with the accused (subsection (d)(l)), that the written proposal be prepared by 

the defense (subsection (d)(3)), and that the accused enter or agree to each term freely and voluntarily (subsection (c)(l)(A)). It is of no legal 

consequence whether the accused's counsel or someone else conceived the idea for a specific provision as long as the accused, after thorough 

consultation with qualified counsel, can freely choose whether to submit a proposed agreement and what it will contain. See United States v. 

Munt, 3 M.J. 1082 (A.C.M.R. 1977), pet. denied, 4 M.J. 198 (C.M.A. 1978). 

Subsection (3) ensures that all understandings be included in the agreement. This is in the interest of both patties. See UnitedStates v. Cooke, 

11 M.J. 257 (C.M.A. 1981); United States v. Lanzer, 3 M.J. 60 (C.M.A. 1977); UnitedStates v. Cox, 22 U.S.C.M.A. 69,46 C.M.R. 69 (1972). 

The last sentence is based on United States v. Green, supra. Note that the rule does not require the convening authority to sign the agreement. 

Although the convening authority must personally approve the agreement, (see subsection (a)) and has sole discretion whether to do so under 

subsection (4), the convening authority need not personally sign the agreement. Ln some circumstances, it may not be practicable or even possible 

to physically present the written agreement to the convening authority for approval. The ruie allows flexibility in this regard. The staff judge 

advocate, trial counsel, or other person authorized by the convening authority to sign may do so. Authority to sign may be granted orally. 

Subsection (3) is not intended to preclude oral modifications in the agreement from being made on the record at trial, with the consent of the 

parties. 

Subsection (5) makes clear that neither party is bound by a pretrial agreement until performance begins. See UnitedStates v. Kazena, 11 M. J. 

28 (C.M.A. 1981). In Shepardson v. Roberts, 14 M.J. 354 (C.M.A. 1983), the Court stated that the convening authority may be bound by a 

pretrial agreement before entry of apleaof guilty if the accused has detrimentally relied on the agreement. The Court indicated, however, that not 

all forms of reliance by the accused rise to the level of detrimental reliance as it used that term. Thus the Court held inshepardson that exclusion of 

statements allegedly made by the accused as a result of the agreement (but not necessarily pursuant to it) was an adequate remedy, and enforcement 

of the agreement was not required when the convening authority withdrew from it before trial. Similarly, the Court opined that the fact that an 

accused made arrangements to secure employment or took similar actions in reliance on an agreement would not require enforcement of a pretrial 

agreement. Subsection (5) is consistent with this approach, but uses beginning of performance by the accused to provide a clearer point at which 

the right of the convening authority to withdraw terminates. Note that the beginning of perfonnance is not limited to entry of aplea. It would also 

include testifying in a companion case, providing information to Government agents, or other actions pursuant to the terms of an agreement. 

Note that the accused may withdraw from a pretrial agreement even after entering a guilty plea or a confessional stipulation, but, once the 

plea is accepted or the stipulation admitted, could not withdraw the plea or the stipulation except as provided under R.C.M. 910(h) or 8 1 1 (d). The 

fact that the accused may withdraw at any time affords the accused an additional measure of protection against prosecutorial abuse. It also reflects 

the fact that the convening authority can retrieve any relief granted the accused. See Article 63; United States v. Cook, supra. 

(e) Nondisclosure ofexistence ofagreement. This subsection is based on United States v. Green, supra; United States v. Wood, 23 U.S.C.M.A. 

57, 48 C.M.R. 528 (1974). See also R.C.M. 910(f); Mil. R. Evid. 410. 

Rule 706. Inquiry into the mental capacity or mental responsibility of the accused 

This rule is taken from paragraph 121 of MCM, 1969 (Rev.). Minor changes were made in order to conform with the format and style of the 

Rules for Courts-Martial. See also UnitedStates v. Cortes-Crespo, 13 M.J. 420 (1982); UnitedStates v. Frederick, 3 M.J. 230 (C.M.A. 1977); 

Mil R. Evid. 302 and Analysis. The rule is generally consistent with 18 U.S.C. § 4244. The penultimate paragraph in paragraph 121 is deleted as 

an unnecessary statement. 

Rule 707. Speedy trial 

Introduction.This rule is based on MA Standards, Speedy Trial (1978). It is generally similar to 18 U.S.C. 5 3 161 et seq. It differs from the 

latter in terms of specific requirements because of the different procedures in courts-martial and because of different conditions in the military. 

The rule is intended to protect the speedy trial rights under the sixth amendment and Article 10 and to encourage protection of command and 

societal interests in prompt administration of justice. See generally Barker v. Wingo, 407 U.S. 514 (1972); United States v. Walls, 9 M.J. 88 

(C.M.A. 1980). The rule provides substantial guidance for assessing speedy trial claims while retaining reasonable flexibility to avoid rigid and 

arbitrary application. Cf: United Srates v. Henderson, 1 M. J. 421, 427 (C.M.A. 1976) (Fletcher, C. J., dissenting). 

(a) In general. This subsection is based onA5A Standards, supra at 5s 12-2.1,12-2.2. Cf: 18 U.S.C. 5 3161. The ABA Standards set no time 

limit, but leave the matter open depending on local conditions. The basic period from arrest or summons to mal under 18 U.S.C. 5 3161 is 100 
ANALYSIS App. 21, R.C.M. 707(d) 

days. 120 days was selected for courts-martial as a reasonable outside limit given the wide variety of locations and conditions in which courtsmartial occur. The rule applies to all cases, not just those in which the accused is in pretrial confinement. The experience with the 90-day rule 

under UnitedStates v. Burton, 21 U.S.C.M.A. 112,44 C.M.R. 166 (1971) led to the conclusion that 120 days, coupled with greater flexibility in 

excludable time periods under subsection (c), is an appropriate limit. (Seethe Analysis of subsection (d) for further discussion of the Burton rule.). 

The time begins to run from notification of preferral of charges or the imposition of restraint under R.C.M. 304. If the accused is under 

restraint such as correctional custody imposed as nonjudicial punishment the time does not begin to run under this rule. See UnitedStates v. Nash, 

5 M.J. 37 (C.M.A. 1978); United States v. Miller, 2 M. J. 77 (C.M. A. 1976); United States v. Reed, 2 M. J. 64 (C.M. A. 1976). See also United 

States v. Schilj 1 M.J. 251 (C.M.A. 1976). 

The discussion is based on UnitedStates v. MacDonald, -U.S. , 102 S. Ct. 1497 (1982); United States v. Marion, 404 

U.S. 307 (1971). See also United States v. Lovasco, 431 U.S. 783 (1977). Delay before restraint or notice of preferral of charges could raise due 

process issues. See id.; United States v. Rachels, 6 M.J. 232 (C.M.A. 1979). See generally Pearson and Bowen, Unreasonable Pre-Preferral 

Delay, 10 A.F. JAG Rptr. 73 (June 1981). 

(b) Accountability. Subsection (1) is based on United States v. Manalo, 1 M.J. 452 (C.M.A. 1976). 

Subsection (2) is based on ABA Standards, supra at 5 12-2.2(b) and (c). See also 18 U.S.C. 8 3161(d) and (e). The ABA Standards and 18 

U.S.C. 8 3161 provide that when charges are dismissed on motion of the defendant-not the prosecution-the Government is accountable only 

from the time charges are reinstituted. Subsection (b) makes no such distinction as to the movant for the dismissal. In the military, charges may be 

dismissed by a convening authority without a request or motion by either party. See R.C.M. 401(c)(l). To try to identify the "source" of such 

action by a convening authority would be extremely difficult, and would also tend to inhibit the broad authority a convening authority has to 

dismiss charges. See Article 34. Cf: Article 64. 

Subsection (3) is based on ABA Standards, Speedy Dial (1978). Cf: 18 U.S.C. 5 3161(c). The ABA Standards do not expressly establish a 

termination point, but they clearly contemplate commencement of trial as the cut-off point. See also Article 10; United States v. Marell, 23 

U.S.C.M.A. 240, 49 C.M.R. 373 (1974). 

Subsection (4) is basedonABA Standards, supra at 5 12-2.2(a) (1978). Seealso UnitedStates v. Talavera, 8 M.J. 14 (C.M.A. 1979); United 

States v. Johnson, 1 M.J. 101 (C.M.A. 1975); United States v. Marell, supra; United States v. Mladjen, 19 U.S.C.M.A. 159,41 C.M.R. 159 

(1969). 

(c) Exclusions. This subsection is taken from ABA Standards, supra at 8 12-2.3 (1978) with modifications to conform to military procedure and 

terminology. Only subsection (c)(4) is added, although it is implicit in $8 12-2.3(a) and (c), ABA Standards, supra. The list of exclusions 

generally parallels those provided in 18 U.S.C. 8 3161(h). As to subsection (l)(d), see Article 62(c). For a comparison of the exclusions with 

deductible periods under United States v. Burton, supra, see subsection (d) infra. 

(d) Arrest or conjnement. This subsection is based on Article 10; ABA Standards, supra at 8 12-4.2 (1978); and 18 U.S.C. 8 3164 (Supp. V 

1981). The discussion notes the judicial presumption of an Article 10 violation under United States v. Burton, supra. The application of subsection 

(d) should preclude triggering the 90-day presumption in most cases. Cf: United States v. Nash, supra; United States v. Ledbetter, 2 M.J. 37 

(C.M.A. 1976). However, not all of the periods of exclusion under subsection (c) are deductible for purposes of Burton under current precedents. 

UnlessBurton and its progeny are reexamined (see infra), it would be possible to have a Burton violation despite compliance with this subsection. 

Some of the exclusions in subsection (c) have been held to be deductible in determining whether the Burton, presumption is triggered. (Note 

that subsection (c)(7) does not apply to subsection (d). As to subsection (c)(7) see UnitedStates v. Johnson, 1 M.J. 294,296 n.4 (C.M.A. 1976)). 

Periods which are deductible for Burton purposes include those described in: subsection (1)(A) (see United States v. Leonard, 3 M.J. 214 

(C.M.A. 1977);United States v. McClain, 1 M.J. 60 (C.M.A. 1975)); subsection (3) (see United States v. Roman, 5 M.J. 385 (C.M.A. 1978); 

United States v. Cole, 3 M. J. 220 (C.M.A. 1977); United States v. Driver, 23 U.S.C.M.A. 243,49 C.M.R. 376 (1974); UnitedStates v. Burton, 

supra; but cf: UnitedStates v. Wolzok, 1 M.J. 125 (C.M.A. 1975); UnitedStates v. Reitz, 22 U.S.C.M.A. 584,48 C.M.R. 178 (1974) (defense 

acquiescence in trial date not chargeable as defense delay)); subsection (4) (see United States v. Herron, 4 M.J. 30 (C.M.A. 1977)); and 

subsection (6) (see UnitedStates v. Reed, supra; UnitedStates v. Brooks, 23 U.S.C.M.A. 1,48 C.M.R. 257 (1974); UnitedStates v. O'Brien, 22 

U.S.C.M.A. 557,48 C.M.R. 42 (1973); but see UnitedStates v. Keaton, 18 U.S.C.M.A. 500,40 C.M.R. 212 (1969)). It is unclear whether 

periods under subsection (2) are deductible for Burton purposes; periods of delay resulting from unavailability of a military judge generally are not 

deductible. See United States v. Wolzok, supra. The periods desiribed in subsections (5) and (8) are not deductible under Burton (but see United 

States v. Talavera, supra (Cook, J.)) but they may be grounds for overcoming the Burton presumption despite pretrial confinement in excess of 90 

days. See Unitedstates v. Talavera, supra; UnitedStates v. Cole, supra; UnitedStates v. Marshall, 22 U.S.C.M.A. 431,47 C.M.R. 409 (1973). 

But see United States v. Perry, 2 M. J. 113 (C.M.A. 1977); United States v. Henderson, 1 M. J. 421 (C.M.A. 1976); United States v. Dinkins, 1 

M.J. 185 (C.M.A. 1975). As to subsection (l)(c) see Unifed States v. Talavera, supra; see also United States v. Cabatic, 7 M. J. 438, 439-40 

(C.M.A. 1979) (Cook, J., concurring in the result). 

The Burton rule has undergone considerable evolution in a short time. Compare United States v. Talavera, supra with United States v. 

Henderson, supra. The rule has been questioned by at least one judge. See United States v. Roman, supra at 389 (Fletcher, C.J., concurring in the 

result); United States v. Henderson, supra at 427 (Fletcher, C.J., dissenting). Subsection (d), together with the speedy trial requirements of this 

rule provides a basis for further reexamination of the Burton presumption. 

The last paragraph in the discussion is based on United States v. Marshall and United States v. Burton, both supra. See also United States v. 

Johnson, 1 M.J. 101 (C.M.A. 1975). It does not appear that a dismissal is the sole remedy for a violation of this prong ofBurton. See id.; United 

States v. Terry, 2 M.J. 915 (A.C.M.R.), pet. denied, 2 M.J. 187 (C.M.A. 1976); United States v. Herrington, 2 M.J. 807 (A.C.M.R.), pet. 

denied, 5 M.J. 1109 (C.M.A. 1976). 
App. 21, R.C.M. 707(e) APPENDIX 21 

(e) Remedy. This subsection is based on ABA Standards, supra at § 124.1 (1978). See also Article 10; paragraphs 68i and 215e of MCM, 1969 

(Rev.). See generally Barker v. Wingo, supra; United States v. Rowsey, 14 M. J. 15 1 (C.M.A. 1982). 18 U.S.C. 8 3 162 provides dismissal as a 

sanction for speedy trial violations, but permits the judge to dismiss with or without prejudice. The ABA Standards, supra, point out that dismissal 

without prejudice is largely meaningless and especially inapposite as a sanction for speedy trial violations. Dismissal without prejudice merely 

creates additional delay in disposing of a case already found to have been delayed unreasonably. Such a remedy is particularly inappropriate in 

courts-martial. 

CHAPTER VIII. TRIAL PROCEDURE GENERALLY 

Rule 801. Mllitary judge's responsiblllty; other matters 

(a) Responsibilities ofmilitary judge. This subsection is based on paragraphs 39b and 406(2) and the first sentence of paragraph 57a of MCM, 

1969 (Rev.). It is intended to provide the military judge or president of a special court-martial without a military judge broad authority to regulate 

the conduct of courts-martial within the framework of the code and the Manual, and to establish the outlines of theirresponsibilities. Much of the 

discussion is also derived from paragraphs 39b, 40b(2), and 53g of MCM, 1969 (Rev.). A few minor changes have been made. For instance, the 

military judge, not the president, determines the uniform to be worn, and the military judge is not required to consult with the president, nor is the 

president of a special court-martial without a military judge required to consult with trial counsel, concerning scheduling. As a practical matter, 

consultation or coordination among the participants concerning scheduling or uniform may be appropriate, but the authority for these decisions 

should rest with the presiding officer of the court, either military judge or president of a special court-martial without a military judge, without 

being required to consult with others. 

(c) Obtaining evidence. This subsection is taken from paragraph 54b of the MCM, 1969 (Rev.). Some of the language in paragraph 54b has been 

placed in the discussion. 

(d) Uncharged @enses. This subsection is taken from paragraph 55a of MCM, 1969 (Rev.). The discussion is designed to accomplish the same 

purpose as paragraph 55b of MCM, 1969 (Rev.), although the language is no longer in terms which could be construed as jurisdictional. 

(e) Interlocutory questions and questions oflaw. This subsection is similar in substance to paragraph 57 of MCM, 1969 (Rev.) and is based on 

Articles 51(b) and 52(c). 

Subsections (1) and (2) are based on Articles 51(b) and 52(c). The provisions (R.C.M. 801(e)(l)(C); 801(e)(2)(C)) permitting a military 

judge or president of a special court-martial without a military judge to change a ruling previously made (Article 51(b)) have been modified to 

preclude changing a previously granted motion for finding of not guilty. United Stales v. Hitchcock, 6 M.J. 188 (C.M.A. 1979). Under R.C.M. 

916(k) the military judge does not rule on the question of mental responsibility as an interlocutory matter. See Analysis, R.C.M. 916(k). Thus, 

there are no rulings by the military judge which are subject to objection by a member. 

Subsection (2)(D) makes clear that all members must be present at all times during special courts-martial without a military judge. The 

president of a special court-martial lacks authority to conduct the equivalent of an Article 39(a) session. Cf: UnitedStates v. Muns, 26 C.M.R. 835 

(C.G.B.R. 1958). 

Subsection (3) is based on Articles 51(b) and 52(c) and is derived fromparagraph 57c, d, f, and gof MCM, 1969 (Rev.). Some language from 

paragraph 57g has been placed in the discussion. 

Subsection (4) is taken from paragraph 57g(l) of MCM, 1969 (Rev.). The rule recognizes, however, that a different standard of proof may 

apply to some interlocutory questions. See, e.g., Mil. R. Evid. 3 14(e)(5). The assignments of the burden of persuasion are determined by specific 

rules or, in the absence of a rule, by the source of the motion. This represents a minor change from the language in paragraph 67e of MCM, 1969 

(Rev.), which placed the burden on the accused for most questions. This assignment was rejected by the Court of Military Appeals in several 

cases, see, e.g., United States v. Graham, 22 U.S.C.M.A. 75, 46 C.M.R. 75 (1972). Assignments of burdens of persuasion, and, where 

appropriate, going forward are made in specific rules. "Burden of persuasion" is used instead of the more general "burden of proof" to 

distinguish the risk of nonpersuasion once an issue is raised from the burden of production necessary to raise it. See McCormick's Handbook ofthe 

Law QEvidence 8 336 (E. Cleary ed. 1972). For example, although the defense may have the burden of raising an issue (e.g., statute of 

limitations) once it has done so the prosecution may bear the burden of persuasion. 

The discussion under subsection (5) describes the differences between interlocutory questions and ultimate questions, and questions of fact 

and questions of law. It is taken, substantially, from paragraph 57b of MCM, 1969 (Rev.). As to the distinction between questions of fact and 

questions of law, see United States v. Carson, 15 U.S.C.M.A. 407, 35 C.M.R. 379 (1965). The discussion of issues which involve both 

interlocutory questions and questions determinative of guilt is based on United States v. Bailey, 6 M.J. 965 (N.C.M.R. 1979); United States v. 

Jessie, 5 M.J. 573 (A.C.M.R.), pet. denied, 5 M.J. 300 (1978). It is similar to language in the third paragraph of paragraph 57b of MCM, 1969 

(Rev.), which was based on United States v. Ornelas, 2 U.S.C.M.A. 96, 6 C.M.R. 96 (1952). See Analysis ofcontents, Manual for CourtsMartial, United States, 1969, Revised Edition DA PAM 27-2, 10-5 (July 1970). That example, and the decision in United States v. Ornelas, 

supra were questioned in UnitedStates v. Laws, 11 M.J. 475 (C.M.A. 1981). Thediscussionclarifies thatwhen arnilitary offense (i.e., one which 

requires that the accused be a "member of the armed forces," see Articles 85,86,99; see also Articles 88-91, 133) is charged and the defense 

contends that the accused is not a member of the anned forces, two separate questions are raised by that contention: first, whether the accused is 

subject to court-martial jurisdiction (see R.C.M. 202); and, second, whether, as an element of the offense, the accused had a military duty which 

the accused violated (e.g., was absent from the armed forces or a unit thereof without authority). The first question is decided by the military judge 

by a preponderance of the evidence. The second question, to the extent it involves questions of fact, must be decided by the factfinder applying a 

reasonable doubt standard. United States v. Bailey, supra. See also United States v. McGinnis, 15 M.J. 345 (C.M.A. 1983); United States v. 

Marsh, 15 M.J. 252 (C.M.A. 1983); UnitedStates v. McDonagh, 14 M.J. 415 (C.M.A. 1983). Thus, it would bepossible, in acase where larceny 
ANALYSIS App. 21, R.C.M. 802(d) 

and desertion are charged, for the military judge to find by a preponderance of the evidence that the accused is subject to military jurisdiction and 

for the members to convict of larceny but acquit of desertion because they were not satisfied beyond reasonable doubt that the accused was a 

member of the armed forces. 

Ornelas does not require a different result. The holding in Ornelas was that the law officer (military judge) erred in failing to permit the 

members to resolve a contested issue of the accused's status as a servicemember on a desertion charge. Language in the opinion to the effect that 

the "jurisdictional" issue should have been submitted to the members is attributable to language in paragraph 67e of MCM, 1951, which 

suggested that "defenses," including "jurisdiction" were to be resolved by the members. Such a procedure for resolving motions to dismiss has 

been abolished, See R.C.M. 905; 907; 916. Thus, the procedure implied by a broad reading of Ornelas for resolving jurisdiction is not required by 

the Manual. See generally United States v. Luivs; supra. Cj United States v. McDonagh, supra. On the other hand, when military status is an 

element of the offense, the fact of such military status must be resolved by the factfinder. Cf: UnitedStates v.McGinnis and UnitedStates v. Marsh, 

both supra. 

(f)Rulings on record. This subsection is based on paragraph 39c of MCM, 1969 (Rev.). Paragraph 39c did not include a reference to rulings and 

instructions by the president of a special court-martial without a military judge, nor was specific reference to them made elsewhere in the Manual. 

Since such rulings and instructions are subject to the same review as those of a military judge, the same standard should apply to both at this stage. 

The rule is based on Article 54. The discussion refers to R.C.M. 808 and 1 103 to indicate what must be recorded at trial. Concerning requirements 

for verbatim records, see United States v. Douglas, 1 M. J. 354 (C.M. A. 1976); United States v. Boxdale, 22 U.S.C.M. A. 414,47 C.M.R. 351 

(1973); United States v. Weber, 20 U.S.C.M.A. 82, 42 C.M.R. 274 (1970). 

(g) Effect qffailure to raise defenses or objections. This subsection is based on Fed. R. Crim. P. 12(f), except for the addition of the term 

"motions" to make clear that motions may be covered by the rule and changes to conform to military terminology and procedure. Such waiver 

provisions are more specifically implemented as to many matters throughout the rules. Several examples are listed in the discussion. 

Rule 802. Conferences 

Introduction. This rule is new. It is based on Fed. R. Crim. P. 17.1, but is somewhat broader and more detailed. Fed. R. Crim. P. 17.1 

apparently authorizes, by its title, only pretrial conferences. Conferences other than pretrial conferences are also authorized in federal practice. 

See Fed. R. Crim. P. 43(c)(3); Cox v. UnitedStates, 309 F.2d 614 (8th Cir. 1962). R.C.M. 802 applies to all conferences. Nothing in this rule is 

intended to prohibit the military judge from communicating, even ex parte, with counsel concerning routine and undisputed administrative 

matters such as scheduling, uniform, and travel arrangements. Such authority was recognized in the fourth sentence of paragraph 39c of MCM, 

1969 (Rev.). 

Lie Fed. R. Crim. P. 17.1, this rule providesexpress authority for what is already common practice in many courts-martial, and regularizes 

the procedure for them. Fed. R. Crim. P. 17.1 is designed to be used in unusual cases, such as complicated trials. Conferences are needed more 

frequently in courts-martial, because in many instances the situs of the trial and the home bases of the military judge, counsel, and the accused 

may be different. Even when all the participants are located at the same base, conferences may be necessary. See ABA Standards, Discovery and 

ProcedureBefore Trial 5 1 1-5.4 (1978). After the trial has begun, there is often a need to discuss matters in chambers. C' Fed. R. Crim. P. 43(c); 

United States v. Gregorio, 497 F.2d 1253 (4th Ci.), cert. denied, 419 U.S. 1024 (1974). 

(a) In general. This subsection is taken directly from the first sentence of Fed. R. Crim P. 17.1, with modifications to accommodate military 

terminology. Subsection (c) provides that a conference may not proceed over the objection of a party and that, in effect, matters may be resolved at 

a conference only by agreement of the parties. Thus, the military judge can bring the parties together under subsection (a), but a conference could 

not proceed further without the voluntary participation of the parties. Nothing in this rule is intended to prohibit the military judge from 

communicating to counsel, orally or in writing, matters which may properly bethe subject of rules of court. See R.C.M. 108; 801. This is also true 

under the federal rule. See Commiitee on Pretrial Procedure 4the Judicial Conference of the United States, Recommended Procedures in 

Criminal Zkials, 37 F.R.D. 95,98 (1965); C. Wright, Wright's Federal Practice andProcedure 11 292 (1969). C' United States v. Wesmoreland, 

41 F.R.D. 419 (S.D. Ind. 1967). 

The discussion provides some examples of the potential uses of conferences. As noted, issues may be resolved only by agreement of the 

parties; they may not be litigated or decided at a conference. To do so would exceed, and hence be contrary to, the authority established under 

Article 39(a). The prohibition against judicial participation in plea bargaining is based on United States v. Caruth, 6 M.J. 184, 186 (C.M.A. 

1979). CJ United States v. Allen, 8 U.S.C.M.A. 504, 25 C.M.R. 8 (1957). But cf: ABA Standards, Pleas of Guilty 5 14-3.3(c) (1979). 

(b) Matters on record. This subsection is based on the second sentence in Fed. R. Crim. P. 17.1. The federal rule requirement for a written 

memorandum was rejected as too inflexible and unwieldy for military practice. The interests of the parties can be adequately protected by placing 

matters on the record orally. If any party fears that such an oral statement will be inadequate, that party may insist on reducing agreed upon matters 

to writing as part of its consent. In any event, a party is not prohibited from raising the matters again at trial. See subsection (c) below. 

The waiver provision has been added because the conference is not part of record of trial under Article 54. The purpose of the requirement for 

inclusion in the record is to protect the parties, and therefore it may be waived. United States v. Stapleton, 600 F.2d 780 (9th Cir. 1979). 

(c) Rights qfparties. This subsection does not appear in the federal rule. It is intended to ensure that conferences do not become a substitute for 

Article 39(a) sessions. In this respect Fed. R. Crim. P. 17.1 is broader than R.C.M. 802, since the federal rule apparently includes "conferences" 

held on the record and pennits the parties to be bound by matters resolved at the conference. See C. Wright, supra at 1292. 

(d) Accused's presence. This subsection does not appear in Fed. R. Crim. P. 17.1. The silence of the federal rule on this matter has been 

controversial. See Douglas, J., dissenting from approval of Fed. R. Crim. P. 17.1 at 39 F.R.D. 276,278 (1966). See also 8 J. Moore, Moore's 

Federal Practice llll 17.1.02 [I]; 17.1.03 [3] (1982 rev. ed.); Rezneck, The New Federal Rules of Criminal Procedure, 54 Geo. L. J. 1276, 

1294-99 (1966); ABA Standards, Discovery andProcedureBefore Trial 5 11-5.4(a) (1978). The presence of the accused is not necessary in most 
App. 21, R.C.M. 802(e) APPENDIX 21 

cases since most matters dealt with at conferences will not be substantive. The participation of the defense in conferences, and whether the 

accused should attend are matters to be resolved between defense counsel and the accused. 

Fed. R. Crim. P. 43(c)(2) authorizes conferences concerning questions of law to be held without the presence of the accused. The 

proceedings described in Fed. R. Crim. P.43(c)(2) are analogous to those described in Article 39(a)(2), since the judge may make rulings at a 

43(c)(2) conference, and such a conference is "on the record." Article 39(a) expressly gives the accused the right to be present at similar 

proceedings in courts-martial. Because of this inconsistency, Fed. R. Crim. P. 43(c)(2) is not adopted. Questions of law may be discussed at a 

conference under R.C.M. 802, but the military judge may not decide them at such conferences. 

(e) Admission. This subsection is taken from the third sentence of Fed. R. Crim. P. 17.1. 

(0Limitations. This subsection is based on the last sentence in Fed. R. Crim. P. 17.1, with the addition of the prohibition against conferences in 

special courts-martial without a military judge. 

Rule 803. Court-martial sessions wlthout members under Article 39(a) 

Article 39(a) authorizes the military judge to call and conduct sessions outside the presence of members. The discussion contains a general 

description, based on paragraph 53d(l) of MCM, 1969 (Rev.), of the types of matters which may be dealt with at Article 39(a) sessions. The 

quoted language in the first paragraph of the discussion is found in the legislative history of Article 39(a). See S. Rep. No. 1601,90th Cong., 2nd 

Sess. 9-10 (1968). 

The rule modifies the language concerning Article 39(a) sessions after sentence is announced. The former provision permitted such sessions 

only "when directed by the appropriate reviewing authority." Yet, paragraph 80b and c of MCM, 1969 (Rev.) implied that a military judge could 

call such a session on the judge's own motion. R.C.M. 1102 also authorizes such action. 

The first two paragraphs of the discussion are based on the second and third paragraphs of paragraph 53d(l) of MCM, 1969 (Rev.), except 

that the present language omits "defenses" from the matters a military judge may hear at an Article 39(a) session. Clearly a military judge does not 

rule on the merits of a defense at an Article 39(a) session, and matters collateral to a defense which might be heard at an Article 39(a) session are 

adequately described elsewhere in the discussion. 

As to the third paragraph of the discussion, see Articles 35 and 39. See also United States v. Pergande, 49 C.M.R. 28 (A.C.M.R. 1974). 

Rule 804. Presence of the accused at trial proceedings 

Introduction. Subsections (a) and (b) of this rule are very similar to Fed. R. Crim. P. 43(a) and (b). Subsection (c) is derived from paragraph 

60 of MCM, 1969 (Rev.). Fed. R. Crim. P.43(c) was not adopted since it is not compatible with military practice, as it concerns corporate 

defendants, misdemeanor proceedings, conferences or arguments upon questions of law, and sentence reduction proceedings. Of these, only 

presence of the accused at conferences or arguments upon questions of law has relation to military procedure. Article 39(b) would preclude 

absence by the accused from arguments, except as provided in subsection (b). Conferences are treated in R.C.M. 802. 

Other differences between this rule and Fed. R. Crim. P. 43 and paragraphs 11 and 60 of the MCM, 1969 (Rev.) are discussed below. 

(a) Presence required. Article 39 establishes the right of the accused to be present at all trial proceedings and Article 39(a) sessions. The right is 

grounded in the due process clause of the fifth amendment and the right to confrontation clause of the sixth amendment of the Constitution. This 

subsection is basically the same as Fed. R. Crim. P. 43(a) with modifications in language to conform to military procedures. 

The requirement that the accused be present is not jurisdictional. While proceeding in the absence of the accused, without the express or 

implied consent of the accused will normally require reversal, the harmless error rule may apply in some instances. See UnitedStates v. Walls,577 

F.2d 690 (9th Cir.), cert. denied, 439 U.S. 893 (1978); United States v. Nelson, 570 F.2d 258 (8th Cir. 1978); United States v. Taylor, 562 F.2d 

1345 (2d Cir.), cert. denied, 434 U.S. 853 (1977). 

(b) Continuedpresence not required. This subsection is similar to Fed. R. Crim. P. 43(b). Aside from modifications in terminology, two minor 

substantive changes have been made. First, this subsection specifies that sentencing, as well as trial on the merits, may take place when the 

accused is absent under this rule. Such a construction is necessary in the military because delaying asentencedetermination increases the expense 

and inconvenience of reassembling the court-martial and the risk that such reassembly will be impossible. Federal courts do not face a similar 

problem. See United States v. Houghtaling, 2 U.S.C.M.A. 230, 235, 8 C.M.R. 30, 35 (1953). 

The second change substitutes the word "arraignment" for "the trial has commenced." This is a clearer demarcation of the point after which 

the accused's voluntary absence will not preclude continuation of the proceedings. Since there are several procedural steps, such as service of 

charges, which, while associated with the trial process, do not involve a session, the arraignment is a more appropriate poiht of reference. This is 

consistent with the previous military rule. 

The discussion points out that, although not explicitly stated in this subsection (or Fed. R. Crim. P.43(b)), the accused may expressly waive 

the right to be present at trial. Federal courts have so construed Rule 43. See 8 J. Moore, Moore's Federal Practice, 8 43.02[2] (1982 rev. ed.): 

[Rule 431 does not refer to express waiver of presence on the part of felony defendants, although it includes such a provision for 

misdemeanants. This omission was not intended to negate the right of felony defendants expressly to waive presence at the trial, for the 

Diaz case [Diazv. United States, 223 U.S. 442 (1912)] cited as authority for the "voluntary absence" provision itself involed an express 

waiver. [Footnote omitted.] 

See also Snyder v. Massachusetts, 291 U.S. 97, 106 (1934) (dicta); In re United States, 597 F.2d 27 (2d Cir. 1979); United States v. Jones, 514 F. 

2d 1331 (D.C. Cir. 1975); UnitedStatesv. Crutcher, 405 F.2d 239 (2d Cir. 1968), cert. denied, 394 U.S. 908 (1969); Pearson v. UnitedStates, 325 
ANALYSIS App. 21, R.C.M. 805(d) 

F.2d 625 (D.C. Cir. 1963); Cross v. United States, 325 E2d 629 (D.C. Cir. 1963). Such waiver should be made expressly by the accused in open 

court. Compare Cross v. United States, suprapwith Pearson v. United States, supra. Federal cases also establish that there is no right to waive 

presence,see, e.g., UnitedStates v. Durham, 587 F.2d799 (5thCir. 1979); UnitedStates v. Fitzpatrick, 437F.2d 19 (2d Cir. 1970). InInre United 

States, supra, the court stated that there is a duty on the part of a defendant in a felony trial to be present. 597 F.2d at 28. 

Military cases also recognize that an accused may expressly waive the right to be present, UnitedStates v. Blair, 36 C.M.R. 750 (N.B.R. 

1965). rev'don other grounds, 16 U.S.C.M.A. 257,36 C.M.R. 413 (1966). See e.g., UnitedStates v. Holly, 48 C.M.R. 990 (A.F.C.M.R. 1974). 

C' United States v. Cook, 20 U.S.C.M.A. 504,43 C.M.R. 344 (1971). Some earlier military cases indicated that accused's counsel could waive 

the accused's right to be present. This is contrary to present authority. See United States v. Holly, supra. 

Subsection (1) is similar to paragraph 1 Ic of MCM, 1969 (Rev.). The language in MCM, 1969 (Rev.) which indicated that an absence had to 

be unauthorized has been omitted. The language now conforms to the federal rule in this respect. The term "unauthorized" has never been treated 

as significant. See United States v. Peebles, 3 M.J. 177 (C.M. A. 1977). As the discussion notes in the fourth paragraph, a person who is in custody 

or otherwise subject to military control cannot, while in such a status, voluntarily be absent from trial without expressly waiving the right on the 

record and receiving the permission of the military judge to be absent. C' United States v. Crutcher, supra. This appears to be the treatment that 

the term "unauthorized" was designed to effect. See United States v. Peebles, supra at 179 (Cook, J.). 

Trial in absentia, when an accused voluntarily fails to appear at trial following arraignment, has long been permitted in the military. United 

States v. Houghtaling, supra. Authority for the third and fourth paragraphs of the discussion under Voluntary absence is found in United States v. 

Peebles, supra. United States v. Cook, supra requires that the voluntariness of an absence be established on the record before trial in absentia may 

proceed. Because the prosecution will be the party moving for trial in absentia, the discussion notes that the prosecution has the burden to prove 

voluntariness as well as absence. The example of an inference is taken from Judge Perry's separate opinion in United States v. Peebles, supra. 

Compare United States v. Partlow, 428 F.2d 814 (2d Cir. 1970) with Phillips v. United States, 334 F.2d 589 (9th Cir. 1964), cert. denied, 379 U.S. 

1002 (1965). 

Subsection (2) is the same as Fed. R. Crim. P. 43(b)(2) except for changes in terminology. The rule and much of the discussion are based on 

Illinois v. Allen, 397 U.S. 337 (1970). The discussion also draws heavily on ABA Standards, Special Functions ofthe Trial Judge 5 6-3.8 and 

commentary (1978). With respect to binding an accused, see United States v. Gentile, 1 M.J. 69 (C.M.A. 1975). See also United States v. 

Henderson, 11 U.S.C.M.A. 556, 29 C.M.R. 372 (1960). 

(c) Appearance and security of accused. This subsection is similar to paragraph 60 of MCM, 1969 (Rev.). 

In subsection (I), the last sentence represents a modification of previous practice by making the accused and defense counsel primarily 

responsible for the personal appearance of the accused. Because of difficulties the defense may face in meeting these responsibilities, the rule 

requires the commander to give reasonable assistance to the defense when needed. The discussion emphasizes the right (see UnitedStates v. West, 

12 U.S.C.M.A. 670, 31 C.M.R. 256 (1962)) and the duty (see United States v. Gentile, supra) of the accused to appear in proper military 

uniform. 

Subsection (2) reflects the changes since 1969 in rules governing pretrial restraint. These rules are now found in the sections referred to by 

R.C.M. 804(c)(2). Insofar as paragraph 60 of MCM, 1969 (Rev.) was a means of allocating responsibility for maintaining (as opposed to 

authorizing) custody over an accused until completion of trial, and insofar as this allocation is not mandated by other rules in this Manual, the 

service secretaries are authorized to prescribe rules to accomplish such allocation. 

Subsection (3) is taken verbatim from paragraph 60 of MCM, 1969 (Rev.). 

Rule 805. Presence of military judge, members, and counsel 

(a) Military judge. This subsection is based on paragraph 39d of MCM, 1969 (Rev.). 

(b)Members. This subsection is based on paragraphs 41c and 41d(l) and (2) and the first sentence of the second paragraph of paragraph 62b of 

MCM, 1969 (Rev.) and on Article 29(c). See also United States v. Colon, 6 M.J. 73 (C.M.A. 1978). 

(c) Counsel. This subsection modifies paragraphs 44c and 46c which required the express permission of the convening authority or the military 

judge for counsel to be absent. The rule now states only the minimum requirement to proceed. The discussion notes that proceedings ordinarily 

should not be conducted in the absence of any defense or assistant defense counsel unless the accused consents. The second sentence in the 

discussion is based on Ungar v. Sarajte, 376 U.S. 575 (1964); United States v. Morris, 23 U.S.C.M.A. 319,49 C.M.R. 653 (1975); United 

States V. Kinard, 21 U.S.C.M.A. 300, 45 C.M.R. 74 (1972); United States v. Hampton, 50 C.M.R. 531 (N.C.M.R.), pet. denied, 23 

U.S.C.M.A. 663 (1975); United States v. Grifiths, 18 C.M.R. 354 (A.B.R.), pet. denied, 6 U.S.C.M.A. 808.19 C.M.R. 413 (1955). See also 

Morris v. Slappy, -U.S. ,33 Cr. L. Rptr. 3013 (1983); Dennis v. United States, 340 U.S. 887 (1950) (statement of 

Frankfurter, J.); United States v. Batrs, 3 M. J. 440 (C.M.A. 1977); 17 AM. Jur. 2d $8 34-37 (1964). 

(d)Effect cfreplacement ofmember or military judge. This subsection is based on Article 29(b), (c), and (d) and on paragraphs 39e and 41e and f of 

MCM, 1969 (Rev.). MCM, 1969 (Rev.) also provided a similar procedure when a member of a court-martial was temporarily excused from the 

trial. This rules does not authorize such a procedure. If a member must be temporarily absent, a continuance should be granted or the member 

should be permanently excused and the trial proceed as long as a quorum remains. Trial may not proceed with less than a qUONm present in any 

event. This subsection provides a means to proceed with a case in the rare circumstance in which a court-martial is reduced below a quorum after 

trial on the merits has begun and a mistrial is inappropriate. 
App. 21, R.C.M. 806(a) APPENDIX 21 

Rule 806. Publlc trlal 

Introduction. This rule recognizes and codifies the basic principle that, with limited exceptions, court-martial proceedings will be open to 


the public. The thrust of the rule is similar to paragraph 53e of MCM, 1969 (Rev.), but the right to a public trial is more clearly expressed, and 


exceptions to it are more specifically and more narrowly drawn. This construction is necessary in light of recent decisions, particularly United 


States v. Grunden, 2 M.J. 116 (C.M. A. 1977). 


(a) In general. This subsection reflects the holding in United States v. Grunden, supra, that the accused has a right to a public trial under the sixth 


amendment.Seealso UnitedStatesv. Brown, 7U.S.C.M.A. 251,22C.M.R. 41 (1956); UnitedStatesv.Zimmerman, 19C.M.R. 806(A.F.B.R. 


1955). 


Although the sixth amendment right to apublic trial is personal to the accused (see Gannett Co., Inc. v. DePasquale, 443 U.S. 368 (1979)), 


+e public has a right under the first amendment to attend criminal trials. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980). The 


applicability of these cases to courts-martial is not certain (cf: Greer v. Spock, 424 U.S. 828 (1976); In re Oliver, 333 U.S. 257,26 n. 12 (1948); 


but see UnitedStates v. Czarnecki, 10 M.J. 570 (A.F.C.M.R. 1980) (dicta)), especially in view of the practical differences between civilian courts 


and courts-martial (i.e., courts-martial do not necessarily sit at a permanent or fixed site; they may sit overseas, or at sea; and at remote or 


dangerous locations). Nevertheless, the rule and the discussion are based on recognition of the value to the public of normally having courts- 


martial open to the public. This is particularly true since the public includes members of the military community. 


(b) Control gfspectators. Neither the accused nor the public has an absolute right to a public trial. This subsection recognizes the power of a 


military judge to regulate attendance at courts-martial to strike a balance between the requirement for a public trial and other important interests. 


As the discussion notes, the right to public trial may be violated by less than total exclusion of the public. See UnitedStates v. Brown, supra. 


Whether exclusion of a segment of the public is proper depends on a number of factors including the breadth of the exclusion, the reasons for it, 


and the interest of the accused as well as the spectators involved in the presence of the excluded individuals. See United States ex rel. Latimore v. 


Siew 561 E2d 691 (7th Cir. 1977), cert. denied, 434 U.S. 1076 (1978); United States ex rel. Lloyd v. Vincent, 520 F.2d 1272 (2d Cir.), cert. 


denied, 423 U.S. 937 (1975). See also Stamicarbon v. Amercian Cyanamid Co., 506 F.2d 532 (2d Cu. 1974). 


The thud paragraph in the discussion of Rule 805(b) is based on United States v. Grunden, supra. 

Judicial authority to regulate access to the courtroom to prevent overcrowding, disruption, or other disturbances is clearly established and 


does not conflict with the right to a public trial. See RichmondNewspapers, Inc. v.Wginia, supra at 581 n. 18. C' Illinois v. Allen, 397 U.S. 337 


(1970). In addition, there is substantial authority to support the example in the discussion concerning restricting access to protect certain 


witnesses. See, e.g., United States v. Eisner, 533 F.2d 987 (6th Cu.), cert. denied, 429 U.S. 919 (1976) (proper to exclude all spectators except 


press to avoid embarrassment of extremely timid witness); United States ex rel. Orlando v. Fay, 350 F.2d 967 (2d Cir. 1965), cert. denied, 384 


U.S. 1008 (1966) (proper to exclude all spectators except press and bar to avoid intimidation of witnesses); United States ex rel. Latimore v. 

Siela supra (proper to exclude all spectators except press, clergy, and others with specific interest in presence during testimony of alleged rape 

victim); United States ex rel. Lloyd v. Vincent, supra (proper to exclude spectators in order to preserve confidentiality of undercover agents' 

identity). See also Gannen Co., Inc. v. DePasquale, supra at 401-500 (Powell, J., concurring); United States v. Brown, supra; United States v. 

Kobli, 172 F.2d 919 (3rd Cu.1949). 

Subsection (b) authorizes closure of court-martial proceedings over the accused's objection only when otherwise authorized in this Manual. 

Effectively, this means that only time trial proceedings may be closed without the consent of the accused is when classified information is to be 

introduced. See Mil. R. Evid. 505fj). Article 39(a) sessions may also be closed under Mil. R. Evid. 505(i); 506(i); and 412(c). Some federal cases 

seem to suggest that criminal proceedings may be closed for other purposes. See, e.g., United States ex rel. Lloyd v. Vincent, supra. Selective 

exclusion of certain individuals or groups for good cause, under the first clause of this subsection, is a more appropriate and less constitutionally J 

questionable method for dealing with the problems treated in such cases. 

Court-martial proceedings may be closed when the accused does not object. As noted in the discussion, however, such closure should not 

automatically be granted merely because the defense requests or acquiesces in it. See Richmond Newspapers, Inc. v. Virginia, supra. See also 

Gannett Co., Inc. v. DePasquale, supra. 

With respect to methods of dealing with the effects of publicity on criminal trials, as treated in the discussion, see Nebraska Press 

Association v. Stuart, 427 U.S. 539 (1976); Sheppardv. Maxwell, 384 U.S. 333 (1966); Rideau v. Louisiana, 373 U.S. 723 (1963); Irvin v. Dowd, 

366 U.S. 717 (1961); United States v. Calley, 22 U.S.C.M.A. 534,48 C.M.R. 19 (1973); Calley v. Callaway, 519 F.2d 184 (5th Cu. 1975), cert. 

denied, 425 U.S. 91 1 (1976). See also ABA Standards, Fair Trial and Free Press part III (1972). 

(c) Photography and broadcastingprohibited. This subsection is based on Fed. R. Crim. P. 53, and is consistent with paragraph 53e of MCM, 

1969 (Rev.) and practice thereunder. See C. Wright, Wight's Federal Practice and Procedure 8 861 (1969); 8B J. Moore, Moore's Federal 

Practice ll 53.02 (1982 rev. ed.). The exception which authorizes contemporaneous transmission of the proceedings to another room (e.g., by 

closed circuit television) has been added to the language of the federal rule. Many military coumooms have limited space, and such methods have 

been used to accommodate the accused's and the public's interest in attendance at courts-martial, as in the case of UnitedStates v. Garwood, NMC 

.81-1892 (1981). The Working Group considered the constitutional alternatives identified in Chandler v. Florida, 449 U.S. 560 (1981), but 

determined that Article 36 requires adherence to the federal rule except to the extent described. As to the matters in the discussion, see Amsler v. 

United States, 381 F.2d 37 (9th Cu. 1967). 

Rule 807. Oaths 

(a) Definition. This rule and the discussion are taken from paragraph 112a of MCM, 1969 (Rev.). See also Fed. R. Crim. P.54(c). 

(b) Oaths in coum-martial. Subsection (1) including the discussion is based on Article 42 and is based on paragraph 1 126 and c of MCM, 1969 
ANALYSIS App. 21, R.C.M. 810(c) 

(Rev.). Subsection (2) is taken from paragraph 112d of MCM, 1969 (Rev.). The discussion is taken in part from paragraph 112d and in part from 

paragraph 114 of MCM, 1969 (Rev.). The oath for questioning members has been combined with the oath concerning performance of duties for 

administrative convenience and to impress upon the members the significance of voir dire. The reference in paragraph 112a of MCM, 1969 

(Rev.), to Article 135 has been deleted. The oaths for preferral of charges, and witnesses at Article 32 investigations and depositions are contained 

in the discussion of applicable rules. 

Rule 808. Record of trial 

The primary purpose of this rule is to highlight for participants at the trial stage the requirements for the record of trial. The discussion is 

based on paragraph 82a, b, and h of MCM, 1969 (Rev.). See also United States v. Eichenlaub, 11 M.J. 239 (C.M.A. 1981); United States v. 

McCullah, 11 M.J. 234 (C.M.A. 1981); UnitedStates v. Boxdale, 22 U.S.C.M.A. 414, 47 C.M.R. 351 (1973); UnitedStates v. Bielecki, 21 

U.S.C.M.A. 450,45 C.M.R. 224 (1972); United States v. DeWayne, 7 M.J. 755 (A.C.M.R.), pet. denied, 8 M.J. 25 (1979); United States v. 

Hensley, 7 M.J. 740 (A.F.C.M.R.), pet. denied, 8 M.J. 42 (1979); United States v. Pearson, 6 M.J. 953 (A.C.M.R.), pet. denied, 7 M.J. 164 

(1979). The preparation, authentication, and disposition of records of trial is covered in Chapter XI. The administrative responsibility of trial 

counsel to prepare the record is codal. Article 38(a). See also R.C.M. 1103(b). 

Rule 809. Contempt proceedings 

(a)In general. This subsection restates codal authority. The discussion is based on paragraph 1 18a of MCM, 1969 (Rev.). The language of Article 

48 applies only to "direct" contempts. See W. Winthrop, Military Law and Precedents 301-302 (2d ed. 1920 reprint); paragraph 101 of MCM, 

1928; paragraph 109 of MCM (Army), 1949; paragraph 118a of MCM, 195 1; paragraph 118a of MCM, 1969 (Rev.). The definition of a "direct" 

contempt is also based on these sources. See also 8B J. Moore, Moore'sFederalPractice 7 42.02[3] (1982 rev. ed); 18 U.S.C. 5 401; c$ Exparte 

Savin, 131 U.S. 267, witnessed by the court and other direct contempts is based on Cooke v. UnitedStates, 267 U.S. 517 (1925), and is important 

for procedural purposes. See subsection (b) below. 

(b) Method ofdisposition. This subsection is based on Fed. R. Crim. P. 42. By its terms, Article 48 makes punishable contemptuous behavior 

which, while not directly witnessed by the court-martial, disturbs its proceedings (e.g., a disturbance in the waiting room). As Fed. R. Crim. P. 

42(b) recognizes, this type of contempt may not be punished summarily. See Johnson v. Mississippi, 403 U.S. 212 (1971); Cooke v. UnitedStates, 

supra. Paragraph 118 of MCM, 1969 (Rev.) did not adequately distinguish these types of contempt. There may be technical and practical 

problems associated with proceeding under subsection (b)(2) but the power to do so appears to exist under Article 48. 

(c) Procedure; who may punish for contempt. This subsection prescribes different procedures for punishment for contempt when members are or 

are not present. The Working Group examined the possibility of vesting contempt power solely in the military judge; but Article 48 provides that 

"court[s]-martial" may punish for contempt. When members are present, the military judge is not the court-martial. See Article 16. When trial by 

military judge alone is requested and approved, the military judge is the court-martial. Under Article 39(a) the military judge may "call the court 

into session without the presence of the members," and the military judge therefore acts as the court-martial within the meaning of Articles 16 and 

48. Since Article 48 authorizes summary punishment for contempt committed in the presence of the court-martial (see Hearings on H. R. 2498 

Before a Subcomm. ofthe House Comm. on Armed Services, 81st Cong., 1st Sess. 1060 (1949), its purpose would be destroyed by requiring 

members who were not present and did not observe the behavior to decide the matter. The second sentence in subsection (c)(l) parallels Fed. R. 

Crim. P. 42(a). 

The procedure for contempt proceedings before members has been simplified to the extent possible consistent with the requirement for the 

members to decide the issue. The procedure for a preliminary ruling by the military judge to decide as a matter of law that no contempt has 

occurred is expressly recognized for the first time. See Article 5 l(b). The requirement for a two-thirds vote on findings and punishment is based on 

Article 52(a)(2) and (b)(3). 

(d)Record; review. This subsection is based on the eighth paragraph of paragraph 1 186 of MCM, 1969 (Rev.) concerning the record and post-trial 

action. The requirement for approval and execution of the sentence by the convening authority is based on previous practice. See W. Winthrop, 

supra at 301-312; paragraph 101 of MCM, 1928; paragraph 109 of MCM (Army), 1949 and MCM(AF), 1949; paragraph 118 of MCM, 1951; 

paragraph 118b of MCM, 1969 (Rev.). This requirement also reflects the need of the command to control its assets. The last sentence is also based 

on Hearings on H. R. 2498 Before a Subcomm. of the House Comm. on Armed Services, 8 1st Cong., 1st Sess. 1060 (1949). 

(e) Sentence. This subsection is based on Article 57 and paragraph 118b of MCM, 1969 (Rev.). It clarifies that the military judge may delay 

announcement of a sentence to permit participation of the contemnor when necessary. Paragraph 118b of MCM, 1969 (Rev.) was ambiguous in 

this regard. 

(f) Informing person held in contempt. This subsection and the discussion are based on paragraph 118b of MCM, 1969 (Rev.); it has been 

modified for clarity. 

Rule 810. Procedures for rehearings, new trials, and other trials 

Introduction. This rule is based on Articles 63 and 73. It concerns only the procedures for rehearings, new trials, and other trials. Matters 

relating to ordering rehearings or new trials are covered in R.C.M. 1107 and 1210. 

(a) In general. This subsection is based on paragraph 81b of MCM, 1969 (Rev.). 

(b) Composition. This subsection is based on Article 63(b) and the seventh paragraph of paragraph 92a of MCM, 1969 (Rev.). As to subsection 

(3), see also United States v. Staten, 21 U.S.C.M. A. 493, 45 C.M.R. 267 (1 972). 

(c) Examination of record of former proceedings. This subsection is based on paragraph 81c of MCM, 1969 (Rev.). 
App. 21, R.C.M. 810(d) APPENDIX 21 

(d) Sentence limitations. Subsection (1) is based on the second sentence of Article 63 and its legislative history. See H. R. Rep. No. 491, 81st 

Cong., 1st Sess. 30 (1949) and paragraph 81dof MCM, 1969 (Rev.). See also UnitedStates v. Ball, 163 U.S. 662 (1896); UnitedStates v. Culver, 

22U.S.C.M.A. 141,46C.M.R. 141 (1973); UnitedStatesv. Eschmann, 11 U.S.C.M.A. 64,28 C.M.R. 288 (1959); UnitedStatesv. Jones, 10 

U.S.C.M.A. 532,28 C.M.R. 98 (1959); UnitedStates v. Dean, 7 U.S.C.M.A. 721,23 C.M.R. 185 (1957). The provision (prohibiting advising 

members of the basis of the sentence limitation) in the thud paragraph of paragraph 8Id(l) of MCM, 1969 (Rev.) has been placed, in precatory 

langauge, in the discussion. The prohibition was based on United States v. Eschmann, supra. Analysis ofcontents, Manual for Courts-Martial, 

United States, 1969, Revised edition, DA PAM 27-2 at 15-2 (1970). The rationale of Eschmann is subject to reasonable challenge. See United 

States v. Gutierrez, 11 M.J. 122, 125 n.3 (C.M.A. 1981) (Everett, C. J., concurring in the result); UnitedStates v. Eschmann, supra at 67,28 

C.M.R. at 291 (Latimer, J., concurring in the result). By placing an admonition against such instructions in the discussion, rather than a 

prghibition in the rule, users are alerted to current decisional requirements while the issue is left open to future judicial development. 

Subsection (2) is based on the last sentence of Article 63, as amended, Military Justice Act of 1983, Pub. L. No. 98-209, 5 5(d)(2)(C), 97 

Stat. 1393 (1983). 

(e) Dejnition. This definition is taken from paragraph 81d(2) of MCM, 1969 (Rev.). See also paragraph 92b of MCM, 1969 (Rev.). 

Rule 811. Stlpulatlons 

(a) In general. This subsection restates the first sentence of paragraph 54fll) of MCM, 1969 (Rev.). 

(b)Authority to reject. This subsection affirms the authority of the military judge to decline to accept a stipulation, as an exercise of discretion and 

in the interest of justice. This authority was implicit in paragraph 54Kl) of MCM, 1969 (Rev.) which suggested that stipulations should not be 

accepted incertaincircumstances. These examples are now included in the discussion. See also UnitedStates v. Cambridge, 3 U.S.C.M.A. 377, 

12 C.M.R. 133 (1953); United States v. Field, 27 C.M.R. 863 (N.B.R. 1958). 

(c) Requirements. This subsection makes clear that a stipulation can be received only with the consent of the parties. This consent must be 

manifested in some manner before the military judge may receive the stipulation, although the rule does not specify any particular form for the 

manifestation, as this rests within the discretion of the trial judge. UnitedStates v. Cambridge, supra. Although it is normally preferable to obtain 

it, the express consent of the accused on the record is not always necessary for admission of a stipulation. In the absence of circumstances 

indicating lack of consent by the accused (see e.g., UnitedStates v. Williams, 30 C.M.R. 650 (N.B .R. 1960)), the defense counsel's concurrence 

in the stipulation will bind the accused. UnitedStates v. Cambridge, supra. If there is any doubt, the accused should be personally questioned. See 

United States v. Barbeau, 9 M.J. 569 (A.EC.M.R. 1980). 

The last three paragraphs of the discussion deal with stipulations "which practically amount to a confession." Paragraph 54Kl) of MCM, 

1969 (Rev.), stated that such a confession "should not be received in evidence." Despite this admonition, such stipulations were occasionally 

received in order to allow the defense to avoid waiving certain issues by pleading guilty while saving the parties the time and expense of a full fial 

when the accused's guilt, as a practical if not legal matter, was conceded. See, e.g., United States v. Rempe, 49 C.M.R. 367 (A.F.C.M.R. 1974). 

The Court of Military Appeals bas approved this procedure, but only if an inquiry of the sort described in the discussion is conducted. United 

States v. Bertelson, 3 M.J. 314 (C.M.A. 1977). The definition of a stipulation which practically amounts to a confession in the discussion is based 

on Bertelson, along with United States v. Sch&er, 12 M. J. 425,427-28 M. 4,6 (C.M.A. 1982); United States v. Reagan, 7 M. J. 490 (C.M.A. 

1979); United States v. Aiello, 7 M.J. 99 (C.M.A. 1979); and United States v. Long, 3 M.J. 400 (C.M.A. 1977). These cases indicate that a 

stipulation practically amounts to a confession when it amounts to a "defacto" plea of guilty, rather than simply one which makes out aprima 

facie case. The example in the discussion is taken from United States v. Long, supra. 

(d) Withdrawlll.This subsection is taken, substantially verbatim, from paragraph 54fll) of MCM, 1969 (Rev.), and restates current law. See also 

United States v. Daniels, 11 U.S.C.M.A. 52, 28 C.M.R. 276 (1959). 

(e) Effect qfstipulations. This subsection modifies previous Manual rules in two respects. First, it states that a stipulation of fact is binding on the 

court-martial. This is consistent with federal practice, see e.g., &chon v. United States, 330 F.2d 679 (8th Cu.), cert. denied, 379 U.S. 855 

(1964), as well as the prevailing view in the vast majority of states. See 4 J. Wigmore, Wigmore on Evidence $ 2590 (3d ed. 1940); 73 Am. Jur. 2d, 

Stipulations, 5 8 (1974); 83 C.J.S. Stipulations, $5 12-13 (1953). See also H. Hackjield & Co. v. UnitedStates, 197 U.S. 442 (1905). Paragraph 

154b of MCM, 1951, contained the following provision: "The court is not bound by a stipulation even if received. For instance its own inquiry 

may convince the court that the stipulated fact is not true." The provision was drawn verbatim fromparagraph 140b of MCM (Anny), 1949, and of 

MCM(AF), 1949 and can be traced to paragraph 126b of MCM, 1928. The Court of Military Appeals questioned the validity of this provision in 

United States v. Gerlach, 16 U.S.C.M.A. 383, 37 C.M.R. 3 (1966), but did not have to resolve whether the court-martial was bound by a 

stipulation of fact, since it held that the parties were. The above quoted language was omitted from MCM, 1969 (Rev.). The analysis to the Manual 

does not explain why. SeeAnalysis ofContents, Manualfor Courts-Martial, 1969,RevisedEdition, DA PAM 27-2 at 2749 (1970). Despite this 

omission, some courts-martial have apparently continued to apply the earlier rule. See Military Criminal Law, Evidence DA PAM 27-22, AFP 

1 11-8 at paragraph 6-2 (1975). There is no reason not to follow federal practice on this matter. If the court-martial's "own inquiry" indicates that 

the stipulated facts may not be true, the parties should be afforded the opportunity to withdraw from the stipulation and to present evidence on the 

matter in question. 

The second change is in the treatment of stipulations of a document's contents. MCM, 1969 (Rev.), applied the same "observations" it made 

concerning stipulations of facts to stipulations of documents' contents thus implying that by stipulating to a documents' contents, the parties 

aged that the contents are true. This may have been due to the treatment of admissions concerning documents' contents as a matter of civil 

procedure in Federalcourts, see Fed. R. Civ. P. 36 (1948) (since replaced by Fed. R. Civ. P. 36 (1970)); seealso Wigmore, supra, 5 2596, and the 

fact that stipulations of a document's contents, lie stipulations of fact, are handed to the members of the court. Yet, it is clear that the parties may 

stipulate that a document contains certain text or other information, or that a given document is genuine, without necessarily agreeing that the text 
ANALYSIS App. 21, R.C.M. 902 

or other information in the document is true. In this sense, a stipulation as to a document's contents is like a stipulation of expected testimony, and 

the rule so treats it. 

Otherwise, this subsection essentially restates paragraph 54f(l) and (2) of MCM, 1969 (Rev.). See also United States v. Bennett, 18 

U.S.C.M.A. 96,39 C.M.R. 96 (1969) and UnitedStates v. Gerlach, supra for further discussion of the effects of stipulations. If the parties fail to 

object to inadmissible matters in a stipulation, this will normally constitute a waiver of such objection. Mil. R. Evid. 103. Cf: United States v. 

Schell, 18 U.S.C.M.A. 410, 40 C.M.R. 122 (1969). See also Wigmore, supra at § 2592. 

(0Procedure. This subsection is based on the second paragraph in paragraph 54f(2) of MCM, 1969 (Rev.). 

Rule 812. Joint and common trials 

This rule is taken from paragraph 53c of MCM, 1969 (Rev.).The rule itself substantially repeats the first sentence in paragraph 53c. The 

discussion refers to other rules dealing with joint or common trials, and includes the examples discussed in paragraph 53c of MCM, 1969 (Rev.). It 

also incorporates a statement on stipulations which appeared at paragraph 54f(3) of MCM, 1969 (Rev.), and a statement concerning severances 

from paragraph 61h of MCM, 1969 (Rev.). The rule does not change current law. 

Rule 813. Announcing personnel of the court-martial and accused 

This rule is based on paragraph 61c of MCM, 1969 (Rev.) and is placed in chapter 8 since the requirement for announcing the presence or 

absence of parties usually recurs several times during the trial. The rule has been rephrased to acknowledge the responsibility of the military judge 

to ensure that the matters covered are reflected in the record. Paragraph 61c of MCM, 1969 (Rev.) required the trial counsel to make these 

announcements. This rule leaves to the discretion of the military judge who will make the announcements. The importance of requiring such 

announcements to be made on the record is emphasized in United States v. Nichelson, 18 U.S.C.M.A. 69, 39 C.M.R. 69 (1968). 

CHAPTER IX. TRIAL PROCEDURE THROUGH FINDINGS 

Rule 901. Opening session 

Introduction. R.C.M. 901 through 903 set out in chronological order the procedures to be followed before arraignment. The order need not 

be followed rigidly. 

(a) Call to order. This subsection is based on the first sentence in paragraph 61b of MCM, 1969 (Rev.). The purpose of the subsection is to 

establish a definite point to indicate when a court-martial is in session. The first paragraph in the discussion is taken from paragraph 61a of MCM, 

1969 (Rev.), but the present provision has been expanded to include comparing the record of the referral on the charge sheet with the convening 

orders to ensure that they are consistent. The other matters in paragraphs 61a and b of MCM, 1969 (Rev.), are omitted here as unnecessary. 

The second paragraph in the discussion is based on paragraph 58c of MCM, 1969 (Rev.) and serves as a reminder of the Article 35 

requirements. See United States v. Pergande, 49 C.M.R. 28 (A.C.M.R. 1974). The failure to object is normally a waiver of the statutory right. 

United States v. Lumbus, 48 C.M.R. 613 (A.C.M.R. 1974). Because of the importance of the right, however, the military judge should secure an 

affirmative waiver. See United States v. Perna, 1 U.S .C.M.A. 438, 4 C.M.R. 30 (1952); United States v. Pergande, supra. 

(b) Announcement ofparties. This subsection is based on paragraph 61c of MCM, 1969 (Rev.). Requiring an announcement is intended to guard 

against inadvertently proceeding in the absence of necessary personnel and to ensure that the record reflects the presence of required personnel. 

hilure to make the announcement is not error if it otherwise appears that no essential personnel were absent. 

(c) Swearing reporter and interpreter. This subsection and its discussion are taken directly from paragraph 61d of MCM, 1969 (Rev.). 

(d) Counsel. This subsection, except for subsections (4)(A) and (D), is based on paragraphs 61e and fof MCM, 1969 (Rev.). The qualifications of 

counsel and matters which disaualifv . . counsel are treated at R.C.M. 502(d) and are not repeated here. The subsection makes clear that at trial the . . 

military judge is responsible for determining whether counsel is disqualified, Soriano v. Hosken, 9 M.J. 221 (C.M.A. 1980), and for seeing that 

appropriate action is taken. Of course, if a detailed counsel is disqualified the responsibility will fall upon the convening authority to rectify the 

problem. The discussion points out that defects in the qualifications of counsel are not jurisdicational. Wright v. United States, 2 M.J. 9 (C.M.A. 

1976). Subsection (4)(A) has been added to conform to the requirements of United States v, Donohew, 18 U.S.C.M.A. 149, 39 C.M.R. 149 

(1969). Cf: Fed. R. Crim. P.5(c). Subsection (4)(D) is based on Fed. R. Crim. P. 44(c) and United States v. Breese, 1 1 M.J. 17 (C.M. A. 198 1). 

See also UnitedStates v. Davis, 3 M.J. 430 (C.M.A. 1977); United States v. Blakey, 1 M.J. 247 (C.M.A. 1976); UnitedStates v. Evans, 1 M.J. 

206 (C.M.A. 1975). 

(e) Presence of members. This subsection is new. Its purpose is to eliminate unnecessary attendance by members. Accord Article 39(a). 

Rule 902. Disqualification of milltary judge 

Introduction. This rule is based on 28 U.S.C. 1455, which is itself based on Canon 111 of the ABA Code qfJudicial Conduct, and on 

paragraph 62 of MCM, 1969 (Rev.). 

The procedures prescribed by 28 U.S.C. 1144 were not adopted. That statute provides that whenever a party "files a timely and sufficient 

affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such 

judge shall proceed no further therein." This section does not establish a different test from 28 U.S.C. 5 455 for disqualification for prejudice or 

bias. Instead, 28 U.S.C. 8 144 provides a procedural mechanism by which the disqualification determination may be made. United States v. 
App. 21, R.C.M. 902(a) APPENDIX 21 

Sibla, 624 F.2d 864 (9th Cir. 1980); see alsoParrish v. Board ofCommissioners ofAlabama State Bar, 524 F.2d 98 (5th Cir. 1975) (en banc), cert. 

denied, 425 U.S. 944 (1976). 

This procedure is not practicable for courts-martial because of the different structure of the military judiciary and the limited number of 

military judges. 

(a)In general. This subsection is, except for changes in terminology, identical to 28 U.S.C. 8 455(a).See also paragraph 62f(13) of MCM, 1969 

(Rev.); United States v. Conley, 4 M. J. 327 (C.M.A. 1978); United States v. Head, 2 M. J. 131 (C.M.A. 1977). 

(b) Specific grounds. The stem and subsection (1) are, with changes in terminology, identical to the stem and subsection (1) of 28 U.S.C. 

3 455(b). See also paragraph 62f(13) of MCM, 1969 (Rev.). Note that any interest or bias to be disqualifying must be personal, not judicial, in 

nature. Berger v. United States, 255 U.S. 22 (1921);Azhocar v. UnitedStates, 581 E2d 735 (9th Cir. 1978), cert. denied, 440 U.S. 907 (1979); 

United States v. Lewis, 6 M. J. 43 (C.M.A. 1978); United States v. Grance, 2 M. J. 846 (A.C.M.R. 1976); United States v. Stewart, 2 M. J. 423 

(A.C.M.R. 1975). See also United States v. Lynch, 13 M.J. 394, 398 n. 3 (C.M.A. 1982) (Everett, C.J., concurring). 

Subsection (2) is based on paragraphs 62f(5), (6), and (I 1) of MCM, 1969 (Rev.). See UnitedStates v. Goodman, 3 M.J. 1 (C.M.A. 1977). 

These grounds are analogous to the disqualifying activities in 28 U.S.C. 5 455(b)(2). 

Subsection (3) is based on paragraphs 625(3), (4), (9), (lo), and (13) of MCM, 1969 (Rev.). See also Mil. R. Evid. 605; United States v. 

Cooper, 8 M.J. 5 (C.M.A. 1979); United States v. Bradley, 7 M.J. 332 (C.M.A. 1979). The purpose of this section is analogous to that of 28 

U.S.C. § 455(b)(3). 

Subsection (4) is based on Article 26 and paragraph 62f(l) and (2) and 62g of MCM, 1969 (Rev.). The matters in 28 U.S.C. 5 455(b)(4) 

regarding financial interest in the proceedings are not of significance in courts-martial. The remote possibility that a judge or a member of the 

family might have a financial interest in the outcome of a court-martial is adequately covered in subsection (5) of this rule. 

Subsection (5) is taken directly from 28 U.S.C. 5 455(b)(5), with the added clarification that the interest in subsection (C) may befinancial or 

othenvise. 

The discussion is based on 28 U.S.C. S 455(c). 

(c) DeJinitions.Subsections (1) and (2) are, with changes in terminology, identical to 28 U.S.C. 8 455(d)(1) and (2). Subsection (3) has been 

added to clarify that the president of a special courts-martial without a military judge is treated like any other member for purposes of 

qualifications and challenges. See R.C.M. 912. Subsection (3) of 28 U.S.C. 1 455(d) is unnecessary. 

(d) Procedure. This section including the discussion is based on Article 41 and paragraph 624 g, and h of MCM, 1969 (Rev.). 

(e) Waiver. This section is, with changes in terminology, identical to 28 U.S.C. 8 455(e). 

Rule 903. Accused's elections on composition of court-martial 

(a) Time ofelections. This subsection is based on Articles 16, 18, 19, and 25. It is similar to paragraphs 53d(2)(c) and 61g and h of MCM, 1969 

(Rev.) insofar as it concerns the timing of requests for enlisted members or trial by military judge alone. It parallels Fed. R. Crim. P. 23(a). Section 

(b) of Fed. R. Crim. P. 23 is inapplicable in the military, and the matters covered in Fed. R. Crim. P.23(c) are covered in R.C.M. 918(b). 

Article 25 states that a request for enlisted members must be made before the end of an Article 39(a) session, if any. The first Article 39(a) 

session is appropriate to consider these matters. Although the Court of Military Appeals has not decided the issue (United States v. Morris, 23 

U.S.C.M. A. 319,321,49 C.M.R. 653,655 n.2 (1975)), the Working Group concluded that this does not establish a jurisdictional deadline. Cf: 

United States v. Bryant, 23 U.S.C.M.A. 326,49 C.M.R. 660 (1975); United States v. Morris, supra (Article 16 requirement that request be 

submitted before assembly is not jurisdictional). To permit greater flexibility, the military judge is authorized to permit the defense to defer a 

request for enlisted members until a later time. Such a request should be granted for good cause only, bearing in mind the burden which it may 

impose on the Government. 

A request for trial by military judge alone should be made at the initial Article 39(a) session to simplify procedure and facilitate scheduling 

and preparation. However, since Article 16 gives the accused a statutory right to wait until assembly to request trial by military judge alone, 

subsection (2) allows automatic deferral of this request. 

The discussion points out the statutory limits on requesting enlisted members or trial by military judge alone. See Articles 16, 18 and 25. 

(b) Form ofelection. This subsection is based on Articles 16 and 25. The amendment of Article 16 permits a request for trial by military judge 

alone to be made orally on the record. Military Justice Act of 1983, Pub. L. No. 98-209, 3(a), 97 Stat. 1393 (1983). 

(c)Action on request. This subsection is based on Articles 16 and 25. Subsection (2)(A) is based on Article 16(1)(B) and on paragraph 53d(2)(C) 

of MCM, 1969 (Rev.). It does not require an inquiry of the accused by the military judge, although, as the discussion points out, it is good practice 

to do so, and failure to do so could be error if the record otherwise left the accused's understanding of the rights in doubt. See S. Rep. No. 53,98th 

Cong., 1st Sess. 12 (1983); United States v. Parkes, 5 M.J. 489 (C.M.A. 1978); United States v. Turner, 20 U.S.C.M.A. 167, 43 C.M.R. 7 

(1970); United States v. Jenkins, 20 U.S.C.M.A. 112, 42 C.M.R.304 (1970). This is consistent with prevailing federal civilian practice. See, 

e.g., Estrada v. UnitedStates, 457 F.2d 255 (7th Cir.), cert. denied, 409 U.S. 858 (1972); UnitedStates v. Mitchell, 427 E2d 1280 (3d Cir. 1970); 

UnitedStates v. Straite, 425 F.2d 594 (D.C. Cir. 1970); UnitedStatesv. Hunt, 413 F.2d 983 (4th Cir. 1969); but see UnitedStatesv. Scott, 583 F.2d 

362 (7th Cir. 1978) (establishing requirement for personal inquiry into jury waiver in seventh circuit). See generally 8A J. Moore, Moore's Federal 

Practice ll23.03[2] (1982 rev. ed.). 

Subsection (2)(B) is based on Article 16(1)(B) which makes trial by military judge alone contingent on approval by the military judge. See 
ANALYSIS App. 21, R.C.M. 905(e) 

UnitedStates v. Morris, supra at 324, 49 C.M.R. at 658. The discussion is based on UnitedStates v. Butler, 14 M.J. 72 (C.M.A. 1982); United 

States v. Ward, 3 M.J. 365 (C.M.A. 1977); United States v. Bryant, supra. 

(d) Right to withdraw request. Subsection (1) is based on United States v. Stipe, 23 U.S.C.M.A. 11, 48 C.M.R. 267 (1974). 

Subsection (2) is based on the fifth sentence of paragraph 39e and on paragraph 53d (2)(b) of MCM, 1969 (Rev.), and current practice. 

(e) Untimely requests. This subsection is based on Articles 16 and25, and UnitedStates v. Jeanbaptiste, 5 M.J. 374 (C.M.A. 1978); UnitedStates 

v. Thorpe, 5 M.J. 186 (C.M.A. 1978); UnitedStates v. Wright, 5 M.J. 106 (C.M.A. 1978); UnitedStates v. Bryant, supra. See also UnitedStates 

v. Holmen, 586 F.2d 322 (4th Cir. 1978). 

Despite dicta in United States v. Bryant, supra at 328, 49 C.M.R. at 662 n. 2, that withdrawal must be in writing, the rule prescribes no 

format for withdrawal. C$ Article 16(1)(B), as amended, see Military Justice Act of 1983, Pub. L. No. 98-209, 5 3(a), 97 Stat. 1393 (1983). 

Rule 904. Arraignment 

This rule is based on Fed. R. Crim. P. 10 and paragraph 65a of MCM, 1969 (Rev.). The second sentence of Fed. R. Crim. P. 10 has been 

deleted as unnecessary since in military practice the accused will have been served with charges before arraignment. Article 35; R.C.M. 602. The 

discussion is based on paragraph 65 of MCM, 1969 (Rev.). 

Rule 905. Motions generally 

Introduction. This rule is based generally on Fed. R. Crim P. 12 and 47 and paragraphs 66 and 67 of MCM, 1969 (Rev.). Specific similarities 

and differences are discussed below. 

(a) Dejnitions and form. The first sentence of this subsection is taken from the first sentence of paragraph 66b of MCM, 1969 (Rev.). It is 

consistent with the first sentence of Fed. R. Crim. P. 47 and the second sentence of Fed. R. Crim. P. 12(a). The second sentence is based on the 

second sentence of paragraph 67c of MCM, 1969 (Rev.), although to be consistent with Federal practice (see Fed. R. Crim. P. 12 (b) (second 

sentence) and 47 (second sentence)) express authority for the military judge to exercise discretion over the form of motions has been added. The 

third sentence is based on the third sentence of Fed. R. Crim. P. 47 and is consistent with the first sentence of paragraph 67c and the fourth sentence 

of paragraph 69a of MCM, 1969 (Rev.). The last sentence in this subsection is based on the third sentence of paragraph 67c of MCM, 1969 (Rev.). 

Although no parallel provision appears in the Federal Rules of Criminal Procedure, this standard is similar to federal practice. See Marteney v. 

United States, 216 F.2d 760 (10th Cir. 1954); United States v. Rosenson, 291 F,Supp. 867 (E. D. La. 1968), afSd, 417 F.2d 629 (5th Ck 1969); 

cert. denied, 397 U.S. 962 (1970). The last sentence in Fed. R. Crim. P.47, allowing amotion to be supported by affidavit, is not included here. 

See subsection (h) of this rule and Mil. R. Evid. 104(a). See generally Fed. R. Crim. P. 47 Notes $Advisory Committee on Rules n.3. 

(b) Pretrial motions. This subsection, except for subsection (6), is based on Fed. R. Crim. P. 12(b). Subsections (1) and (2) have been modified to 

conform to military practice and are consistent with the first two sentences of paragraph 67b of MCM, 1969 (Rev.). Subsection (3) is consistent 

with Mil. R. Evid. 304 (d)(2)(A); 3 1 l(d)(2)(A); 321(c)(2)(A). The discussion is based on paragraph 69A of MCM, 1969 (Rev.). Subsection (4) is 

new. See R.C.M. 701; 703; 1001(e). Subsection (5) is also new. Subsection (6) is based on paragraphs 46d and 486(4) of MCM, 1969 (Rev.) and 

United States v. Redding, 11 M.J. 100 (C.M.A. 1981). 

(c)Burden ofpro4 This subsection is based on paragraphs 57g(l) and 67e of MCM, 1969 (Rev.). The assignment of the burden of persuasion to 

the moving party is a minor change from the language in paragraph 67e of MCM, 1969 (Rev.), which placed the burden on the accused 

"generally." The effect is basically the same, however, since the former rule probably was intended to apply to motions made by the accused. See 

also United States v. Graham, 22 U.S.C.M.A. 75.46 C.M.R. 75 (1972). The exceptions to this general rule in subsection (B) are based on 

paragraphs 68b(l), 68c, and 215e of MCM, 1969 (Rev.). See also UnitedStates v. McCarthy, 2 M.J. 26,28 n. 1 (C.M.A. 1976); United States v. 

Graham, supra; UnitedStates v. Garcia, 5 U.S.C.M.A. 88,17 C.M.R. 88 (1954). The Federal Rules of CriminalProcedure are silent on burdens 

of proof. 

Fed. R. Crim. P. 12(c) is not adopted. This is because in courts-martial, unlike civilian practice, arraignment does not necessarily, or even 

ordinarily, occur early in the criminal process. In courts-martial, arraignment usually occurs only a short time before trial and in many cases it 

occurs the same day as trial. Because of this, requiring a motions date after arraignment but before trial is not appropriate, at least as a routine 

matter. Instead, entry of pleas operates, in the absence of good cause, as the deadline for certain motions. A military judge could, subject to 

subsections (d) and (e), schedule an Article 39(a) session (see R.C.M. 803) for the period after pleas are entered but before trial to hear motions. 

(d) Ruling on motions. This subsection is based on Fed R. Crirn. P. 12(e). It is consistent with the first sentence in pararaph 67e of MCM, 1969 

(Rev.). The admonition in the second sentence of that paragraph has been deleted as unnecessary. The discussion is based on the thud paragraph of 

paragraph 67f of MCM, 1969 (Rev.). 

(e) Effect offailure to raise defenses or objections. The first two sentences in this subsection are taken from Fed. R. Crim. P. 12(f) and are 

consistent with paragraph 67b of MCM, 1969 (Rev.). The third sentence is based on paragraph 67a of MCM, 1969 (Rev.). The Federal Rules of 

Criminal Procedure do not expressly provide for waiver of motions other than those listed in Fed. R. Crim. P. 12(b). (But see 18 U.S.C. 

8 3162(a)(2) which provides that failure by the accused to move for dismissal on grounds of denial of speedy trial before trial or plea of guilty 

constitutes waiver of the right to dismissal under that section.) Nevertheless, it has been contended that because Fed. R. Crim. P. 12(b) (2) 

provides that lack of jurisdiction or failure to allege an offense "shall be noticed by the court at any time during the pendency of the proceedings," 

"it may, by negative implications be interpreted as foreclosing the other defenses if not raised during the trial itself." 8A J. Moore, Moore's 

FederalPractice 7 12.03[1] (1982 rev. ed.). "Pendency of the proceedings" has been held to include the appellate process. See United States v. 

Thomas, 444 E2d 919 (D.C. Cir. 1971). Fed. R. Crim. P. 34 tends to support this construction insofar as it permits a posttrial motion in arrest of 

judgment only for lack ofjurisdiction over the offense or failure to charge an offense. There is no reason why other motions should not be waived if 
App. 21, R.C.M. 905(f) APPENDIX 21 

not raised at trial. Moore's, supra at ( 12.03[1];accord C. Wright, Federal Practice andprocedure 8 193 (1969). See also UnitedStates v. Scott, 

464 F.2d 832 (D.C. Cir. 1972); United States v. Friedland, 391 F.2d 378 (2d Cir. 1968), cert. denied, 404 U.S. 867 (1969). See generally United 

States ex. rel. DiGiangiemo v. Regan, 528 F.2d 1262 (2d Cir. 1975). Decisions of the United States Court of Military Appeals are generally 

consistent with this approach. See UnitedStates v. Troxell, 12 U.S.C.M.A. 6,30 C.M.R. 6 (1960) [statute of limitations may be waived]; United 

States v. Schilling, 7 U.S.C.M.A. 482, 22 C.M.R. 272 (1957) (former jeopardy may be waived). Contra UnitedStates v. Johnson, 2 M.J. 541 

(A.C.M.R. 1976). 

(f) Reconsideration. This subsection is new and makes clear that the military judge may reconsider rulings except as noted. The amendment of 

Article 62 (seeMilitary Justice Act of 1983, Pub. L. No. 98-209,s 5(c), 97 Stat. 1393 (1983)), which deleted the requirement forreconsideration 

when directed by the convening authority does not preclude this. See S. Rep. No. 53, 98th Cong., 1st Sess. 24 (1983). 

(g)Effect ofjinal determinations. Except as noted below, this subsection is based on paragraph 71 b of MCM, 1969 (Rev.) and on Ashe v. Swenson, 

397 U.S. 436 (1970); Oppenheimer v. United States, 242 U.S. 85 (1916); United States v. Marks, 21 U.S .C.M. A. 281,45 C.M.R. 55 (1972); 

Restatement qfludgments, Chapter 3 (1942). See also Commissioner olflnfernal Revenue v. Sunnen, 333 U.S. 591 (1948); UnitedStates v. Moser, 

266U.S. 236 (1924); UnitedStatesv. Washington, 7M.J. 78 (C.M.A. 1979); UnitedStates v. Hart, 19U.S.C.M.A. 438,42C.M.R. 40(1970); 

United States v. Smith, 4 U.S.C.M.A. 369, 15 C.M.R. 369 (1954). 

Subsection (g) differs fromparagraph 71b in two significantrespects. First, the term "res judicata" is not used in R.C.M. 905(g) because the 

term is legalistic and potentially confusing. "Res judicata" generally includes several distinct but related concepts: merger, bar, direct estoppel, 

and collateral estoppel. Restatement $Judgments, Chapter 3 Introductory Note at 160 (1942). But see 1B J. Moore, Moore's Federal Practice 

11 0.441[1] (1980 rev. ed.) which distinguishes collateral estoppel from res judicata generally. Second, unique aspects of the doctrine of collateral 

estoppel are recognized in the "except" clause of the first sentence in the rule. Earlier Manuals included the concept of collateral estoppel within 

the general discussion of res judicata (seeparagraph 72b of MCM (Army), 1949; paragraph 71b of MCM, 1951; paragraph 71b of MCM, 1969 

(Rev.);see also United States v. Smith, supra) without discussing its distinguishing characteristics. Unlike other forms of res judicata, collateral 

estoppel applies to determinations made in actions in which the causes of action were different. 1B J. Moore, supra, 7 0.441[1]. Because of this, 

its application is somewhat narrower. Specifically, parties are not bound by determinations of law when the causes of action in the two suits arose 

out of different transactions. Restatement ofJudgments, supra, $5 68, 70. See also Commissioner v. Sunnen, supra. This distinction is now 

recognized in the rule. 

The absence of such a clarifying provision in earlier Manuals apparently caused the majority, despite its misgivings and over the dissent of 

Judge Brosman, to reach the result it did in UnitedStates v. Smith, supra. When paragraph 71b was rewritten in MCM, 1969 (Rev.), the result in 

Smith was incorporated into that paragraph, but neither the concerns of the Court of Military Appeals nor the distinguishing characteristics of 

collateral estoppel were addressed. See Analysis of Contents ofthe Manual for Courts-Martial, United States, 1969.Revised Edition, DA PAM 

27-2 at 12-5 (July 1970). To the extent that Smith relied on the Manual, its result is no longer required. But see United States v. Martin, 8 

U.S.C.M.A. 346, 352, 24 C.M.R. 156, 162 (1957) Quim, C.J., joined by Ferguson, J., concurring in the result). 

The discussion is based on the sources indicated above. See also Restatement ofJudgments, supra, § 49; United States v. Guzmun, 4 M.J. 

115 (C.M.A. 1977). As to the effect of pretrial determinations by a convening authority, see Analysis, R.C.M. 306(a). 

(h) Written motions. This subsection is based on Fed. R. Crim. P. 47. 

(i) Service. This subsection is based on Fed. R. Crim. P. 49(a) and (b), insofar as those provisions apply to motions. 

(i)Application to convening authority. This subsection is taken from paragraph 666 of MCM, 1969 (Rev.) although certain exceptions, provided 

elsewhere in these rules (e.g., R.C.M. 906(b)(l)) have been established for the first time. It is consistent with the judicial functions of the 

convening authority under Article 64. It also provides a forum for resolution of disputes before referral and in the absence of the miliary judge 

after referral. It has no counterpart in the Federal Rules of Criminal Procedure. 

Fed. R. Crim. P. 12(g) and (h) are not included. Fed. R. Crim. P. 12(g) is covered at R.C.M. 803 and 808. The matters in Fed. R. Crim. P. 

12(h) would fall under the procedures in R.C.M. 304 and 305. 

(k)Production of statements on motion to suppress. This subsection is based on Fed. R. Crim. P. 12(i). 

Rule 906. Motions for appropriate relief 

(a)In general. This subsection is based on the first sentence of paragraph 69a of MCM, 1969 (Rev.). The phrase concerning deprivation of rights is 

new; it applies to such pretrial matters as defects in the pretrial advice and the legality of pretrial confinement. Paragraph 69a of MCM, 1969 

(Rev.) provided only for the accused to make motions for appropriate relief. This rule is not so restricted because the prosecution may also request 

appropriate relief. See, e.g., United States v. Nivens, 21 U.S .C.M. A. 420, 45 C.M.R. 194 (1972). This change is not intended to modify or 

restrict the power of the convening authority or other officials to direct that action be taken notwithstanding the fact that such action might also be 

sought by the trial counsel by motion for appropriate relief before the military judge. Specific modifications of the powers of such officials are 

noted expressly in the rules or analysis. 

(b) Grounds for appropriate relief: This subsection has the same general purpose as paragraph 69 of MCM, 1969 (Rev.). It identifies most of the 

grounds for motions for appropriate relief commonly raised in courts-martial, and provides cettain rules for litigating and deciding such motions 

where these rules are not provided elsewhere in the Manual. Specific sources for the rules and discussion are described below. 

Subsection (I) and the accompanying discussion are based on Article 40 and paragraphs 58b and c of MCM, 1969 (Rev.). The rule provides 

that only a military judge may grant a continuance. Paragraph 58a of MCM, 1969 (Rev.) which provided for "postponement" has been deleted. 

Reposing power to postpone proceedings in the convening authority is inconsistent with the authority of the military judge to schedule 
ANALYSIS App. 21, R.C.M. 907(b) 

proceedings and control the docket. See generally UnitedStates v. Wolzok, 1 M.J. 125 (C.M.A. 1975). To the extent that paragraph 58a extended 

to the military judge the power to direct postponement, it was duplicative of the power to grant a continuance and unnecessary. 

Subsection (2) is based on paragraph 48b(4) of MCM, 1969 (Rev.). See also United States v. Redding, 11 M.J. 100 (C.M.A. 1981). 

Subsection (3) is based on paragraph 69c of MCM, 1969 (Rev.). See also Articles 32(d) and 34; UnitedStates v. Johnson, 7 M. J. 396 (C.M. A 

1979);UnitedStates v. Donaldson, 23 U.S.C.M.A. 293,49 C.M.R. 542 (1975); United States v. Maness, 23 U.S.C.M.A. 41.48 C.M.R. 512 

(1974). 

Subsection (4) is based on paragraph 696 of MCM, 1969 (Rev.). See also Article 30(a); paragraphs 29e and 33d of MCM, 1969 (Rev.); Fed. 

R. Crim. P. 7(d). See generally United States v. Arbic, 16 U.S .C.M.A. 292,36 C.M.R. 448 (1966); United States v. Krutsinger, 15 U.S .C.M. A. 

235, 35 C.M.R. 207 (1965); United States v. Johnson, 12 U.S.C.M.A 710, 31 C.M.R. 296 (1962). 

Subsection (5) and its discussion are based on paragraph 28b of MCM, 1969 (Rev.); United States v. Collins, 16 U.S.C.M.A. 167, 36 

C.M.R. 323 (1966); United States v. Means, 12 U.S.C.M.A. 290, 30 C.M.R. 290 (1961); United States v. Parker, 3 U.S.C.M.A. 541, 13 

C.M.R. 97 (1953); UnitedStates v. Voudren, 33 C.M.R. 722 (A.B.R. 1963). See also paragraphs 158 and 200 a(8) of MCM, 1969 (Rev.). But see 

Unitedstates v. Davis, 16 U.S.C.M.A. 207,36 C.M.R. 363 (1966) (thefts occurring at different places and times over four month period were 

separate). 

Subsection (6) is based on Fed. R. Crirn. P. 7(f). Although not expressly provided for in the previous Manual, bills of particulars have been 

recognized in military practice. See UnitedStates v. Alef; 3 M.J. 414 (C.M.A. 1977); UnitedStates v. Paulk, 13 U.S.C.M.A. 456,32 C.M.R. 456 

(1963); United States v. Calley, 46 C.M.R. 1131, 1170 (A.C.M.R.), ajj'd, 22 U.S.C.M.A. 534,48 C.M.R. 19 (1973); James, Pleadings and 

Practice under UnitedStates v. Alef; 20 AIL. Rev. 22 (1978); Dunn, Military Pleading, 17 A.F,L. Rev. 17 (Fall, 1975). The discussion is based 

on United States v. Mannino, 480 F. Supp. 1 182, 1185 (S.D.N.Y. 1979); United States v. Deaton, 448 F. Supp. 532 (N.D. Ohio, 1978); see also 

United States v. Harbin, 601 F. 2d 773,779 (5th Cir. 1979); UnitedStates v. Giese, 597 F. 2d 1170, 1180 (9th Cir. 1979); United States v. Davis, 

582 F. 2d 947,951 (5th Cir. 1978), cert. denied, 441 U.S. 962 (1979). Concerning the contents of a bill, see UnitedStates v. Diecidue, 603 F. 2d 

535,563 (5th Cir. 1979); United States v. Murray, 527 F. 2d 401,411 (5th Cir. 1976); United States v. Mannino, supra; United States v. Hubbard, 

474 F. Supp. 64, 80-81 (D.D.C. 1979). 

Subsection (7) is based on paragraphs 75e and 115a of MCM, 1969 (Rev.). See also Fed. R. Crim. P. 12(b)(4); UnitedStates v. Killebrew, 9 

M.J. 154 (C.M.A. 1980); United Stares v. Chuculate, 5 M.J. 143 (C.M.A. 1978). 

Subsection (8) is new to the Manual although not to military practice. See Analysis, R.C.M. 3056). 

Subsection (9) is based on paragraph 69d of MCM, 1969 (Rev.) and Fed. R. Crim. P. 14 to the extent that the latter applies to severance of 

codefendants. Note that the Government may also accomplish a severance by proper withdrawal of charges against one or more codefendants and 

rereferrals of these charges to another court-martial. See R.C.M. 604. The discussion is based on paragraph 69d of MCM, 1969 (Rev.). 

Subsection (10) is new. It roughly parallels Fed. R. Crim. P. 14, but is much narrower because of the general policy in the military favoring 

trial of all known charges at a single court-martial. See R.C.M. 601(e) and discussion; United States v. Keith, 1 U.S.C.M.A. 442,4 C.M.R. 34 

(1952). Motions to sever charges have, in effect, existed through the policy in paragraph 26c of MCM, 1969 (Rev.), against joining minor and 

major offenses. See, e.g., United States v. Grant, 26 C.M.R. 692 (A.B.R. 1958). Although that provision has been eliminated, severance of 

offenses may still be appropriate in unusual cases. See generally United States v. Gettz, 49 C.M.R. 79 (N.C.M.R. 1974). 

Subsection (1 1) is based generally on paragraph 69e of MCM, 1969 (Rev.) and on Fed. R. Crim. P. 21. See United States v. Nivens, supra; 

United States v. Gravitt, 5 U.S.C.M.A. 249, 17 C.M.R. 249 (1954). The constitutional requirement that the trial of a crime occur in the district in 

which the crime was committed (U.S. Const. Art. 111, sec. 2, cl. 3; amend VI) does not apply in the military. Chenoweth v. Van Arsdall, 22 

U.S.C.M.A. 183, 46 C.M.R. 183 (1973). Therefore, Fed. R. Crim. P. 21(b) is inapplicable. In recognition of this, and of the fact that the 

convening authority has an interest, both financial and operational, in fixing the place of the trial, the rule allows the situs of the trial to be set and 

changed for the convenience of the Government, subject to judicial protection of the accused's rights as they may be affected by that situs. See 

United States v. Nivens, supra. 

Subsection (12) is based on paragraph 76a(5) of MCM, 1969 (Rev.). See also Analysis, R.C.M. 907(b)(3)(B) and Analysis, R.C.M. 

1003(c)(l)(C). 

Subsection (13) is new to the Manual, although motions in limine have been recognized previously. See Mil. R. Evid. 104(c); UnitedStates v. 

Co3eld, 11 M.J. 422 (C.M.A. 1981); Siano, Motions in Limine, The Army Lawyer, 17 (Jan. 1976). 

Subsection (14) is based on paragraph 69f of MCM, 1969 (Rev.). See Analysis, R.C.M. 706, Analysis, R.C.M. 909, and Analysis, R.C.M. 

916(k). 

Rule 907. Motions to dismiss 

(a) In general. This subsection is based on paragraphs 68 and 214 of MCM, 1969 (Rev.). 

Fed. R. Crim. P. 48(a) is inapposite because the trial counsel may not independently request dismissal of charges, and unnecessary because 

theconvening authority already has authority to withdraw and to dismiss charges. See R.C.M. 306(c)(1); 401(c)(l);604. The matters contained in 

Fed. R. Crim. P. 48(b) are addressed by R.C.M. 707 and 907(b)(2)(A). 

(b) Grounds for dismissal. This subsection lists common grounds for motions to dismiss. It is not intended to be exclusive. It is divided into three 

subsections. These correspond to nonwaivable (subsection (1)) and waivable (subsections (2) and (3)) motions to dismiss (seeR.C.M. 905(e) and 

analysis), and to circumstances which require dismissal (subsections (1) and (2)) and those in which dismissal is only permissible (subsection (3)). 
App. 21, R.C.M. 907(b) APPENDIX 21 

Subsection (1) is based on paragraph 686 of MCM, 1969 (Rev.). See also Fed. R. Crim. P. 12(b)(2) and 34. 

Subsection (2)(A) is based on paragraph 68i of MCM, 1969 (Rev.). See also 18 U.S.C. 5 3 162(a)(2). The rules for speedy trial are covered in 

R.C.M. 707. 

Subsection (2)(B) is based on the first two paragraphs in paragraph68c of MCM, 1969 (Rev.); UnitedStates v. Troxell, 12 U.S.C.M.A. 6,30 

C.M.R. 6 (1960); United States v. Rodgers, 8 U.S.C.M.A. 226,24 C.M.R. 36 (1957). The discussion is based on paragraphs 68c and 215d of 

MCM, 1969 (Rev.). See also UnitedStatesv. Arbic, 16U.S.C.M.A. 292,36C.M.R. 448 (1966); UnitedStates v. Spann, 10U.S.C.M.A. 410, 

27 C.M.R. 484 (1959); United States v. Reeves, 49 C.M.R. 841 (A.C.M.R. 1975). 

Subsection (2)(C) is based on paragraph 215b of MCM, 1969 (Rev.) and Article 44. See also paragraph 56 of MCM, 1969 (Rev.). 

Concerning the applicability to courts-martial of the double jeopardy clause (U.S. Const. amend. V), see Wade v. Hunter, 336 U.S. 684 (1949); 

United States v. Richardson, 21 U.S.C.M.A. 54, 44 C.M.R. 108 (1971). See also United States v. Francis, 15 M.J. 424 (C.M.A. 1983). 

Subsection (2)(C)(i) is based on Article 44(c). The applicability of Crist v. Bretz, 437 U.S. 28 (1978) was considered. Crist held that, in jury 

cases, jeopardy attaches when the jury is empanelled and sworn. For reasons stated below, the Working Group concluded that the beginning of the 

presentation of evidence on the merits, which is the cnstitutional standard for nonjury trials (Crist v. Bretz, supra at 37 n. 15; Serfass v. United 

Stares, 420 U.S. 377 (1975)) and is prescribed by Article 44(c), is the proper cutoff point. 

There is no jury in courts-martial. O'Callahan v. Parker. 395 U.S. 258 (1969); Ex parte Quirin, 317 U.S. 1 (1942); United States v. 

Crawford, 15 U.S.C.M.A. 31, 35 C.M.R. 3 (1964). See also UnitedStates v. McCarthy, 2 M.J. 26,29 n.3 (C.M.A. 1976). Members are an 

essential jurisdictional element of a court-martial. UnitedStates v. Ryan, 5 M.J. 97 (C.M.A. 1978). Historically the members, as an entity, served 

as jury and judge, or, in other words, as the "court." W. Winthrop, Military Law andprecedents 54-55, 173 (2d ed., 1920 reprint). Assembling 

the court-matial has not been the last step before trial on the merits. See paragraph 61j and appendix 8b of MCM, 1969 (Rev.); paragraph 61h and i 

and appendix 8a of MCM, 1951; paragraph 61 of MCM, 1949 (Army); paragraph 61 of MCM, 1928; W. Winthrop, supra at 205-80. Congress 

clearly contemplated that the members may be sworn at an early point in the proceedings. See Article 42(a); H. Rep. No. 491,81st Cong. 1st Sess. 

22 (1949). 

The role of members has become somewhat more analogous to that of a jury. See, e.g., Article 39(a). Nevertheless, significant differences 

remain. When they are present, the members with the military judge, constitute the court-martial and participate in the exercise of contempt 

power. Article 48. See R.C.M. 809 and analysis. Moreover, members may sit as a special court-martial without a military judge, in which case 

they exercise all judicial functions. Articles 19; 26; 40; 41; 51; 52. 

The holding in Crist would have adverse practical effect if applied in the military. In addition to being unworkable in special courts-martial 

without a military judge, it would negate the utility of Article 29, which provides that the assembly of the court-martial does not wholly preclude 

later substitution of members. This provision recognizes that military exigencies or other unusual circumstances may cause a member to be 

unavailable at any stage in the court-martial. It also recognizes that the special need of the military to dispose of offenses swiftly, without 

necessary diversion of personnel and other resources, may justify continuing the trial with substituted members, rather than requiring a mistrial. 

This provision is squarely at odds with civilian practice with respect to juries and, therefore, with the rationale in Crist. 

Subsection (2)(C)(ii) is based on paragraph 56 of MCM, 1969 (Rev.). See also Wade v. Hunter, supra; United States v. Perez, 22 U.S. 

(9 Wheat.) 579 (1824). "Manifest necessity" is the traditional justification for a mistrial. Id. See United States v. Richardson, supra. CJ Article 

44(c), which does not prohibit retrial of a proceeding terminated on motion of the accused. See also Analysis, R.C.M. 915. 

Subsection (2)(C)(iii) is taken from Article 44(b). See United States v. Richardson, supra. See also Article 63. But see R.C.M. 810(d). 

Subsection (2)(C)(iv) is new. It is axiomatic that jeopardy does not attach in a proceeding which lacks jurisdiction. Ball v. UnitedStates, 163 

U.S. 662 (1973). Therefore, if proceedings are terminated before findings because the court-martial lacks jurisdiction, retrial is not barred if the 

jurisdictional defect is corrected. For example, if during the course of trial it is discovered that the charges were notreferred to the court-martial by 

a person empowered to do so, those proceedings would be terminated. This would not bar later referral of those charges by a proper official to a 

court-martial. C$ Leev. UnitedStates, 432U.S. 23 (1977); Illinois v. Somerville, 410U.S. 458 (1973). see also UnitedStates v. Newcomb, 5 M.J. 

4 (C.M.A. 1977); United States v. Hardy, 4 M.J. 20 (C.M.A. 1977) (authorizing re-referral of charges where earlier proceedings lacked 

jurisdiction because of defects in referral and composition). Res judicata would bar retrial by a court-martial for a jurisdictional defect which is not 

"correctable." See, e.g., R.C.M. 202 and 203. See also R.C.M 905(g). 

By its terms, the mle permits a retrial of a person acquitted by a court-martial which lacks jurisdiction. The Court of Military Appeals 

decision in United States v. Culver, 22 U.S.C.M.A. 141, 46 C.M.R. 141 (1973) does not preclude this, although that decision raises questions 

concerning this result. There was no majority opinion in Culver.Judge Quinn held that the defect (absence of a written judge alone request) was 

not jurisdictional. In the alternative, Judge Quinn construed paragraph 81d of MCM, 1969 (Rev.) and the automatic review structure in courtsmartial as precluding retrial on an offense of which the accused had been committed. (Note that R.C.M. 810(d), using slightly different language, 

continues the same policy of limiting the maximum sentence for offenses tried at an "other trial" to that adjudged at the earlier defective trial.) 

Judge Duncan, concurring in the result in Culver, found that although the original trial was jurisdictionally defective, the defect was not so 

fundamental as to render the proceedings void. In Judge Duncan's view, the original court-martial had jurisdiction when it began, but "lost" it 

when the request for miliary judge alone was not reduced to writing. Therefore, the double jeopardy clause of the Fifth Amendment and Article 44 

barred the second trial for an offense of which the accused had been acquitted at the first. Chief Judge Darden dissented. He held that because the 

earlier court-martial lacked jurisdiction, the proceedings were void and did not bar the second trial. Thus in Culver, two judges divided over 

whether the double jeopardy clause bars a second trial for an offense of which the accused was acquitted at a court-martial which lacked 

jurisdiction because of improper composition. The thud judge held retrial was barred on nonconstitutional grounds. 

App. 21, R.C.M. 908(c) APPENDIX 21 

Subsection (7) is based on Article 62(b). 

Subsection (8) ensures that trial participants are notified in the event no appeal is filed. 

(c) Appellate proceedings. Subsection (1) is based on Article 70(b) and (c). 

Subsection (2) is based on Article 62(b). 

Subsection (3) is based on Article 67(b) and (h) and on 28 U.S.C. section 1259. Note that if the decision of the Court of Military Review 

permits it (i.e., is favorable to the Government) the court-martial may proceed as to the affected charges and specifications notwithstanding the 

possibility or pendency of review by the Court of Military Appeals or the Supreme Court. Those courts could stay the proceedings. The 

penultimate sentence is similar in purpose to Article 66(e) and 67(f). 

(d)Military judge. This subsection is necessary because Article 62 authorizes appeals by the Government only when a military judge is detailed. 

Rule 909. Capacity of the accused to stand trial by court-martial 

This rule is based on paragraphs 120a and d, and 122 of MCM, 1969 (Rev.). It has been reorganized and minor changes were made in some 

language in order to conform to the format and style of the Rules for Courts-Martial. The procedures for examining the mental capacity of the 

accused are covered in R.C.M. 706. Matters referring solely to the accused's sanity at the time of the offense are treated at R.C.M. 916(k). The 

rule is generally consistent with 18 U.S.C. 5 4244. The standard of proof has been changed from beyond reasonable doubt to a preponderanceof 

the evidence. This is consistent with the holdings of those Federal courts which have addressed the issue. UnitedStates v. Gilio, 538 F. 2d 972 (3d 

Cir. 1976), cert. denied, 429 U.S. 1038 (1977); United States v. Makris, 535 F. 2d 899 (5th Cir. 1976), cert. denied, 430 U.S. 954 (1977). 

Rule 910. Pleas 

Introduction. This rule is based generally on Article 45; paragraph 70 of MCM, 1969 (Rev.); and on Fed. R. Crim. P. 1 1. See also H. Rep. 

No. 491,8Ist Cong., 1st Sess. 23-24 (1949); S. Rep. No. 486,Slst Cong., 1st Sess. 20-21 (1949). The format generally follows that of Fed. R. 

Crim. P. 11. 

(a)Zn general. Subsection (1)is based on Article 45 and paragraph 70a of MCM, 1969 (Rev.). The first sentence parallels the first sentence in Fed. 

R. Crim. P. 1 l(a)(l), except that no provision is made for pleas of nolo contendere. Such a plea is unnecessary in courts-martial. Hearings on H. 

R. 4080 Before a Subcomm. ofthe Comm. on Armed Services ofthe House ofRepresentatives, 81st Cong., 1st Sess. 1054 (1949). See 8A J. 

Moore, Moore's Federal Practice TI 11.07[1] (1980 rev. ed) concerning the purpose of nolo pleas in civilian practice, and a discussion of the 

controversy about them. Furthermore, the practice connected with nolo pleas (see Fed. R. Crim. P. 11(D which does notrequire that a factuql basis 

be established in order to accept a plea of nolo contendere; see also Moore's supra at 11.07[1]) is inconsistent with Article 45. The second 

sentence of Fed. R. Crim. P. Il(a) is covered under subsection (b) of this rule insofar as it pertains to military practice. 

Subsection (2) is based on Fed. R. Crim. P. ll(a)(2). Conditional guilty pleas can conserve judicial and governmental resources by 

dispensing with a full trial when the only real issue is determined in a pretrial motion. As in the Federal courts, the absence of clear authority in 

courts-martial for such a procedure has resulted in some uncertainty whether an accused could preserve some issues for appellate review despite a 

pleaofguilty. See e.g., UnitedStatesv. Schaffe'er, 12M.J. 425 (C.M.A. 1982); UnitedStatesv. Mallett, 14M.J. 631 (A.C.M.R. 1982). Now such 

issues may be preserved, but only in accordance with this subsection. See also subsection (i)of this rule. 

There is no right to enter a conditional guilty plea. The military judge and the Government each have complete discretion whether to pennit 

or consent to a conditional guilty plea. Because the purpose of a conditional guilty plea is to conserve judicial and governmental resources, this 

discretion is n~tsubject to challenge by the accused. The rationale, for this discretion is further explained in Fed. R. Crim. P. 11 advisory 

committee note: 

The requirement of approval by the court is not appropriate, as it ensures, for example, that the defendant is not allowed to take an 

appeal on a matter which can only be fully developed by proceeding to trial [citation omitted]. As for consent by the government, it will 

ensure that conditional pleas will be allowed only when the decision of the court of appeals will dispose of the case either by allowing the 

pleas to stand or by such action as compelling dismissal of the indictment or suppressing essential evidence. Absent such circumstances, the conditional plea might only serve to postpone the trial and require the government to try the case after substantial delay, 

during which time witnesses may be lost, memories dimmed, and the offense grown so stale as to lose jury appeal. The government is in 

a unique position to determine whether the matter at issue would be case-dispositive, and, as a party to the litigation, should have an 

absolute right to refuse to consent to potentially prejudicial delay. 

The last sentence of subsection (a)(2) has been added to the language of Fed. R. Crim. P. 1 l(a)(2). This permits the Secretary concerned to 

require that consent of the Govenunent be obtained at higher echelons or at a centralized point. The consequences of overuse of conditional guilty 

pleas will be visited upon appellate courts and activities and the consequences of inappropriate use of them will typically fall on a command or 

installation different from the one where the original court-martial sat. Thus, it may be deemed appropriate to establish procedures to guard 

against such problems. 

(b) Refusal toplead; irregular plea. This subsection is based on Article 45(a) and paragraph 70a of MCM, 1969 (Rev.). It parallels the second 

sentence of Fed. R. Crim. P.Il(a), but is broadened to conform to Article 45(a). The portion of Fed. R. Crim. P. ll(a) concerning corporate 

defendants does not apply in courts-martial. The discussion is based on the last sentence of the first paragraph of paragraph 70a of MCM, 1969 

(Rev.). 

(c)Advice to accused. This subsection is taken from Fed. R. Crim. P. I l(c) and is consistent with paragraph 70b(2) of MCM, 1969 (Rev.). See 
ANALYSIS App. 21, R.C.M. 910(i) 

also H. R. Rep. No. 491, supra at 23-24; S. Rep. No. 486, supra at 20-21; Boykin v. Alabama, 395U .S. 238 (1969); McCarthy v. United States, 

394 U.S. 459 (1969); United States v. Care, 18 U.S.C.M.A. 535, 40 C.M.R. 247 (1969). 

As to subsection (I), the requirement that the accused understand the elements of the offense is of constitutional dimensions. Henderson v. 

Morgan, 426 U .S. 637 (1976); see also UnitedStates v. Care, supra. The elements need not be listed as such, seriatim, if it clearly appears that 

the accused was apprised of them in some manner and understood them and admits (see subsection (e) of this rule) that each element is true. See 

Henderson v. Morgan, supra; UnitedStatesv. Grecco, 5 M.J. 1018 (C.M.A. 1976); UnitedStatesv. Kilgore, 21 U.S.C.M.A. 35,MC.M.R. 89 

(1971). But see United States v. Pretlow, 13 M. J. 85 (C.M.A. 1982). 

Advice concerning a mandatory minimum punishment would be required only when the accused pleads guilty to murder under clause (1) or 

(4) of Article 118. The accused could only do so if the case had been referred as not capital. As to advice concerning the maximum penalty, the 

adoption of the language of the federal rule is not intended to eliminate the requirement that the advice state the maximum including any applicable 

escalation provisions. As to misadvice concerning the maximum penalty see United States v. Walls, 9 M.J. 88 (C.M.A. 1981). 

Subsection (2) of Fed. R. Crim. P. ll(c) has been modified because of the absence of a right to counsel in summary courts-martial. See 

R.C.M. 1301(e) and Analysis. In other courts-martial, full advice concerning counsel would ordinarily have been given previously (see R.C.M. 

901(d)(4)) and need not be repeated here. The discussion is based on paragraph 70b(1) of MCM, 1969 (Rev.) and H. Rep. 491, supra at 23-24; S. 

Rep. 486, supra at 2C21. 

Subsections (3), (4), and (5) have been taken without substantial change from Fed. R. Crim. P. 1 l(c). Subsections (3) and (4) are consistent 

with the last paragraph of paragraph 70b (2) of MCM, 1969 (Rev.). Subsection (5) corresponds to Mil. R. Evid. 410. As to the effect of failure to 

give the advice in subsection (5) see United States v. Conrad, 598 F.2d 506 (9th Cir. 1979). 

(d) Ensuring that theplea is voluntary. This subsection is based on Fed. R. Crim. P. 1 l(d) and is consistent with paragraph 70b(3) of MCM, 1969 

(Rev.). As to the requirement to inquire concerning the existence of a plea agreement, see United States v. Green, 1 M.J. 453 (C.M.A. 1976). 

(e)Determining accuracy ofplea. This subsection is based on Fed. R. Crim. P. 1 l(f), except that "shall" replaces "should" and it is specified that 

the military judge must inquire of the accused concerning the factual basis of the plea. This is required under Article 45(b) and is consistent with 

paragraph 70b(3) of MCM, 1969 (Rev.). See also H. R. Rep. 491, supra at 23-24; S. Rep. 486, supra at 2C-21; United States v. Davenport, 9 M.J. 

364 (C.M.A. 1980); United States v. Johnson, 1 M. J. 36 (C.M. A. 1975); United States v. Logan, 22 U.S .C.M. A. 349.47 C.M.R. 1 (1973). 

Notwithstanding the precatory term "should," the factual basis inquiry in Fed. R. Crlm. P. 11(f) is, in practice, mandatory, although the means 

for establishing it are broader. See J. Moore, supra at 7 11.02[2]. See also ABA Standards, Pleas of Guilty 5 1.6 (1978). The last sentence 

requiring that the accused be placed under oath is designed to ensure compliance with Article 45 and to reduce the likelihood of later attacks on the 

providence of the plea. This is consistent with federal civilian practice. See Fed. R. Evid. 410. 

The first paragraph in the discussion is also based on United States v. Jernmings, 1 M. J. 414 (C.M. A. 1976); United States v. Kilgore, supra; 

United States v. Care, supra. See also United States v. Crouch, 11 M. J. 128 (C.M.A. 1981). 

The second paragraphin the discussionis new and is basedon UnitedStates v. Moglia, 3 M.J. 216 (C.M.A. 1977); UnitedStates v. Luebs, 20 

U.S.C.M.A. 475, 43 C.M.R. 315 (1971); United States v. Butler, 20 U.S.C.M.A. 247, 43 C.M.R. 87 (1971). 

(f) Plea agreement inquiry. This subsection is based on Fed. R. Crim. P. 1 l(e), with substantial modifications to conform to plea agreement 

procedures in the military. See R.C.M. 705 and Analysis. The procedures here conform to those prescribed in United States v. Green, supra. See 

also United States v. Passini, 10 M. J. 109 (C.M.A. 1980). 

It is not intended that failure to comply with this subsection will necessarily result in an improvident plea. See United States v. Passini, supra; 

qf United States v. Davenport, supra. Contra United States v. King, 3 M. J. 458 (C.M. A. 1977). Proceedings in revision may be appropriate to 

correct a defect discovered after final adjournment. United States v. Steck, 10 M.J. 412 (C.M.A. 1981). Even if a prejudicial defect in the 

agreement is found, as a result of an inadequate inquiry or otherwise, allowing withdrawal of the plea is not necessarily the appropriate remedy. 

SeeSantobello v. New York, 404 U.S. 257 (1971); United States v. Kr@a, 11 M.J. 453 (C.M.A. 1981); UnitedStates v. Clfuentes, 11 M.J. 385 

(C.M.A. 1981). If an adequate inquiry is conducted, however, the parties are normally bound by the terms described on the record. Id.; United 

States v. Cooke, 1 1 M. J. 257 (C.M. A. 1981). But see United States v. Partin, 7 M. J. 409 (C.M.A. 1979) (the parties were not bound by military 

judge's interpretation which had the effect of adding illegal terms to the agreement; the plea was held provident). 

(g) Findings. This subsection is based on the last paragraph of paragraph 70b of MCM, 1969 (Rev.). See also Articles 39(a)(3) and 52(a)(2). The 

discussion is new and recognizes that it may be unnecessary and inappropriate to bring to the members' attention the fact that the accused has 

pleaded guilty to some offenses before trial on the merits of others. See United States v. Nixon, M.J.(A.C.M.R. 1983).See 

also United States v. Wahnon, 1 M.J. 144 (C.M.A. 1975). 

(h) Later action. Subsection(1) is based on the fourth and fifth sentences of the penultimate paragraph of paragraph 70b of MCM, 1969 (Rev.). 

Note that once a plea of guilty is accepted the accused may withdraw it only within the discretion of the military judge. Before the plea is accepted, 

the accused may withdraw it as a matter of right. See United States v. Leonard, -M. J. -(A.C.M.R. 1983); United States v. 

Hayes. 9 M.J. 825 (N.C.M.R.1980). 

Subsection(2)is based on thejrst rwo sentences in thepenultimateparagraph @paragraph 70b of MCM, 1969 (Rev.) and on Article 45(a). 

See also Fed. R. Crim. P. 32(d). The discussion is based on United States v. Cooper, 8 M. J. 5 (C.M. A. 1979); UnitedStates v. Bradley, 7 M. J. 332 

(C.M.A. 1979). Subsection (3) is based on United Srares v. Green, supra. See also United States v. Kr@a, supra. 

(i)Record @proceedings. This subsection is based on subparagraph (4) of the first paragraph of paragraph 70b of MCM, 1969. See also Article 

54; H. R. Rep. No. 491, supra at 24; S. Rep. No. 486, supra at 21;ABA Standards, Pleas @Guilty supra at 5 1.7. This subsection parallels Fed. 

R. Crim. P. 1 l(g), except insofar as the former allows for nonverbatim records in inferior courts-martial. See Article 54(b). 
App. 21, R.C.M. 910U) APPENDIX 21 

(i)Waiver.This subsection replaces the third paragraph in paragraph 700 of MCM, 1969 (Rev.) which listed some things a guilty plea did not 

waive, and which was somewhat misleading in the wake of the pleading standards under United States v. Alef; 3M.J. 414 (C.M.A. 1977). This 

subsection is based on Menna v. New York, 423 U.S. 61 (1975); Tollett v. Henderson, 41 1 U.S. 258 (1973); Parker v. North Carolina, 397 U.S. 

790 (1970); McMann v. Richardson, 397 U.S. 759 (1970); Brady v. United States, 397 U.S. 742 (1970); United States v. Engle, 1 M.J. 387 

(C.M.A. 1976); United States v. Dusenbeny, 23 ,U.S.C.M.A. 287,49 C.M.R. 536 (1975); UnitedStates v. Hamil, 15 U.S.C.M.A. 110,35 

C.M.R. 82 (1964). See also subsection (a)(2) of this rule and its analysis. 

Rule 911. Assembly of the court-martlal 

The code fixes no specific point in the court-martial for assembly although, as noted in the discussion, it establishes assembly as a point after 

which the opportunities to change the composition and membership of the court-martial are substantially circumscribed. See United States v. 

Morris, 23 U.S.C.M.A. 319, 49 C.M.R. 653 (1975); United States v. Dean, 20 U.S.C.M.A. 212, 43 C.M.R. 52 (1970). 

The purpose of this rule is simply to require an overt manifestation of assembly in order to clearly mark for all participants the point at which 

the opportunities to freely elect as to composition or to substitute personnel has ended. Failure to make the announcement described in the rule has 

no substantive effect other than to leave open a dispute as to whether a change in composition or membership was timely. 

The rule prescribes no specific point for assembly. The points noted in the discussion are based on paragraph 61j of MCM, 1969 (Rev.). It is 

nonnally appropriate to assemble the court-martial at these points to protect the parties from untimely changes in membership or composition. In 

some circumstances, flwibility is desirable, as when the militaryjudge approves arequest for trial by military judge alone, but recognizes that it 

may be necessary to substitute another judge because of impending delays. The discussion is also based on paragraphs 53d(2)(c) and 616 of 

MCM, 1969 (Rev.). 

Rule 912. Challenge of selection of members; examlnatlon and challenges of members 

(a) Pretrial matters. Subsection (1) recognizes the usefulness of questionnaires to expedite voir due. Questionnaires are already used in some 

military jurisdictions. This procedure is analogous to the use of juror qualification forms under 28 U.S.C. 5 1864(a).See also ABA Standards, 

Trial by Jury 5 2.l(b) (1979). It is not intended that questionnaires will be used as a complete substitute for voir dire. As to investigations of 

members, see also ABA Standards, The Prosecution Function § 3-5.3@) (1979); The Defense Function 5 4-7.2(b) (1979). 

Subsection (2) recognizes that in order to challenge the selection of the membership of the court-martial (see subsection (b)of this rule) 

discovery of the materials used to select them is necessary. Such discovery is already common. See, e.g., United States v. Greene, 20 

U.S .C.M. A. 232,43 C.M.R. 72 (1 970); United States v. Herndon, 50 C.M.R. 166 (A.C.M.R. 1975); United States v. Perry, 47 C.M.R. 89 

(A.C.M.R. 1973). The purpose of this procedure is analogous to that of 18U.S.C. $3 1867(f) and 1868. The rule is a discovery device; it is not 

intended to limit the types of evidence which may be admissible concerning the selection process. 

(b) Challenge @selection @members. This subsection is based on 28 U.S.C. 8 1867(a), (b), and (d). Other subsections in that section are 

inapposite to the military. No similar provision appeared in MCM, 1969 (Rev.). Nevertheless, a motion for appropriate relief challenging the 

selection of members and requesting a new one was recognized. See United States v. Daigle, 1 M.J. 139 (C.M.A. 1975); UnitedStates v. Young, 

49 C.M.R. 133 (A.F.C.M.R. 1974). Except for matters affecting the composition of the court-martial (see Articles 16 and 25(a), (b), and (c)), 

improper selection of members is not a jurisdictional defect. United States v. Daigle, supra. See also S. Rep. No. 53,98th Cong., 18th Sess. 12 

(1983). Cf:United States v. Blaylock, 15 M.J. 190 (C.M.A. 1983). The issue may be waived if not raised in a timely manner. 

(c) Stating @grounds for challenge. This subsection is based on the second sentence of paragraph 62b of MCM, 1969 (Rev.). 

(d) Examination qf members. This subsection is based on Fed. R. Crim. P. 24(a). Paragraphs 626 and h of MCM, 1969 (Rev.) discussed 

questioning members. Faragraph 626 provided that " . . . the trial or defense counsel may question the court, or individual members thereof." 

United States v. Slubowski, 7 M.J. 461 (C.M.A. 1979), reconsideration not granted by equally divided court, 9 M. J. 264 (C.M.A. 1980), held 

that this provision did not establish aright of the parties to personally question members. Instead, the court recognized that the procedures in Fed. 

R. Crim. P.24(a) are applicable to the military. See also United States v. Parker, 6 U.S.C.M.A. 274, 19 C.M.R. 400 (1955). Therefore, 

subsection (d) does not change current practice. 

The discussion is based generally on paragraph 626 of MCM, 1969 (Rev.) and encourages permitting counsel to personally question the 

members. See United States v. Slubavski, supra at 463 n.4;ABA Standards, Trial by Jury 8 2.4 (1979). As to the scope of voir dire generally, see 

Ristaino v. Ross, 424 U.S. 589 (1977); United States v. Baldwin, 607 '2d 1295(9th Cir. 1979); United States v. Barnes, 604 F.2d 121 (2d Cu 

1979);United States v. Slubowski, supra; United States v.Parker, supra. The second paragraph of the discussion is basedon ABA Standards,The 

Prosecution Function § 3-5.3(c) (1979); The Defense Function 8 4-7.2(c) (1979). 

(e) Evidence. This subsection is based on the first sentence of paragraph 62h(2) of MCM, 1969 (Rev.). 

(f) Challenges and removalfor cause. See generally Article 41(a). Subsection (1) is based on Article 25 and paragraph 62f of MCM, 1969 (Rev.). 

The examples in the last paragraph of paragraph 62f have been placed in the discussion. 

Subsection (2) is based on paragraphs 626 and h(1) of MCM, 1969 (Rev.). 

Subsection (3) is based on Article 41(a) and paragraph 62h of MCM, 1969 (Rev.). The first sentence is new. MCM, 1969 (Rev.) was silent on 

this matter. The procedure is intended to protect the parties from prejudicial disclosures before the members, and is in accord with practice in 

many courts-martial. Paragraph 62h(2) of MCM, 1969 (Rev.) advised that the military judge "should be liberalin passing on challenges, but need 

not sustain a challenge upon the mere assertion of the challenger." This precatory language has been deleted from the rule as an unnecessary 

statement. This deletion is not intended to change the policy expressed in that statement. 
ANALYSIS . App. 21, R.C.M. 913(~) 

The waiver rule in subsection (4) is based on United States v. Beer, 6 U.S .C.M.A. 180, 19 C.M.R. 306 (1955). See also United States v. 

Dyche, 8 U.S .C.M.A. 430,24 C.M.R. 240 (1957); United States v. Wove, 8 U.S.C.M.A. 247,24 C.M.R. 57 (1957). Grounds (A) and (B) in 

subsection (f)(l) may not be waived, except as noted. See generally H. R. Rep. No. 491, 81st Cong., 1st Sess. 17-18 (1949); UnitedStates v. 

Newcomb, 5 M.J. 4 (C.M.A. 1978). Membership of enlisted members of the accused's unit has been held not to be jurisdictional, and, therefore, 

may be waived. United States v. Wilson, -M .J. -(A.C.M.R. 1983); United States v. Kimball, 13 M. J. 659 (N.M.C.M.R. 

1982); United States v. Tagert, 11 M. J. 677 (N.M.C.M.R. 198 1); United States v. Scott, 25 C.M.R. 636 (A.B .R. 1957). Contra United States v. 

Anderson, 10 M.J. 803 (A.F.C.M.R. 1981). The Court of Military Appeals has held that the presence of a statutorily ineligible member is not a 

jurisdictional defect. UnitedStates v. Miller, 3 M.J. 326 (C.M.A. 1977); United States v. Beer, supra. Ineligibility of enlisted members from the 

accused's unit is designed to protect the accused from prejudice and does not affect their competency. See Hearings on H.R. 2498 Before a 

Subcomm. oftheHouse Comm. onArmedServices, 8lst Cong., 1st Sess. 1140,1150-52 (1949). See also. S. Rep. No. 53,98thCong., 1st Sess. 

12 (1983). 

The second sentence in subsection (4) is based on United States v. Seabrooks, 48 C.M.R. 471 (N.C.M.R. 1974). See also United States v. 

Jones, 7 U.S.C.M.A. 283, 22 C.M.R. 73 (1956). This is consistent with Federal practice. See, e.g., UnitedStates v. Richardson, 582 F.2d 968 

(5th Cir. 1978). The third sentence clarifies the effect of using or failing to use a peremptory challenge after a challenge for cause is denied. This 

has been a subject of some controversy. See United States v. Harris, 13 M.J. 288 (C.M.A. 1982); United States v. Russell, 43 C.M.R. 807 

(A.C.M.R. 1971) and cases cited therein. Failure to use a peremptory challenge at all has been held to waive any issue as to denial of a challenge 

for cause. UnitedStates v. Henderson, 11 U.S.C.M.A. 556,29 C.M.R. 372 (1960). Because the right to a peremptory challenge is independent of 

the right to challenge members for cause, see Article 41, that right should not be forfeited when a challenge for cause has been erroneously denied. 

See United States v. Baker, 2 M.J. 773 (A.C.M.R. 1976). See also United States v. Rucker, 557 F.2d 1046 (4th Cir. 1977); United States v. Nell, 

526 F.2d 1223 (5th Cir. 1976). See generally Swain v. Alabama, 380 U.S. 202 (1965). The requirement that a party peremptorily challenging a 

member it has unsuccessfully challenged for cause state that it would have peremptorily challenged another member is designed to prevent a 

"windfall" to a party which had no intent to exercise its peremptory challenge against any other member. See United States v. Harris, supra; 

United States v. Shqffer, 2 U.S.C.M. A. 76, 6 C.M.R. 75 (1952); United States v. Cooper, 8 M. J. 538 (N.C.M.R. 1979). 

(g)Peremptory challenges. Subsection (1) is based on Article 41(b). The second sentence is new. Fkagraph 62e of MCM, 1969 (Rev.) stated that a 

peremptory challenge "may be used before, during, or after challenges for cause." Subsection (1) does not prevent a party from exercising a 

peremptory challenge before challenges for cause, but it protects a party against being compelled to use a peremptory challenge before challenges 

for cause are made. Each party is entitled to one peremptory challenge. Article 41(b); United States v. Calley, 46 C.M.R. 1131, 1162 

(A.C.M.R.), afd, 23 U.S.C.M.A. 534,48 C.M.R. 19 (1973). But see UnitedStates v. Harris, supra at 294 n. 3 (C.M.A. 1982) (Everett, C.J., 

dissenting). Fed. R. Crim. P. 24(b) is inapplicable. 

Subsection (2) is based on United States v. White, 22 C.M.R. 892 (A.B .R. 1956); United Stares v. Graham, 14 C.M.R. 645 (A.EB .R. 

1954).See also United States v. Fetch, 17 C.M.R. 836 (A.F.B .R. 1954). The discussion is based on the last sentence of paragraph 62d and the last 

sentence of paragraph 62h(4) of MCM, 1969 (Rev.). The last sentence in the discussion is also based on United States v. Lee, 31 C.M.R. 743 

(A.F.B.R. 1962). 

(h) Special courts-martial without a military judge. This subsection is based on Articles 41,5 1(a), and 52(c) and on paragraph 62h(3) of MCM, 

1969 (Rev.). 

(i)Definitions. Subsection (2) is based on paragraph 63 of MCM, 1969 (Rev.). See also United States v. Grrfin, 8 M.J. 66 (C.M.A. 1979); United 

Statesv. Wilson, 7 U.S.C.M.A. 656,23 C.M.R. 120 (1957); UnitedStatesv. Moore, 4U.S.C.M.A. 675,16C.M.R. 249 (1954). Thedistinction 

between witnesses for the prosecution and witnesses for the defense has been eliminated for purpose of challenges, notwithstanding the statutory 

basis for the former (Article 25(d)(2)) but not the latter. Disqualification as a witness for the prosecution has been held to be waivable. United 

States v. Beer, 6 U.S.C.M.A. 180, 19 C.M.R. 306 (1955). Consequently, there is no substantive distinction between either ground. 

Subsection (3) is taken from paragraph 64 of MCM, 1969 (Rev.). C' UnitedStates v. Goodman; 3 M.J. 1 (C.M.A. 1977) (military judge as 

investigator). 

Rule 913. Presentation of the case on the merits 

(a) Preliminary instructions. This subsection is based on Appendix 8 at 10-1 1 of MCM, 1969 (Rev.). See also United States v. Waggoner, 6 M.J. 

77 (C.M.A. 1978). 

(b) Opening statement. This subsection is based on the first paragraph of paragraph 44g(2) and the first paragraph of paragraph 48i of MCM, 1969 

(Rev.). The discussion is taken from ABA Standards, The Prosecution Function 5 3-5.5 (1979); The Defense Function 5 4-7.4 (1979). 

(c) Presentation qfevidence. Subsection (1) is based on paragraph 54a of MCM, 1969 (Rev.), except that (E) Additional rebuttal evidence, has 

been added to expressly note the occasional need for further rebuttal. 

Subsection (2) is based on the first sentence of Fed. R. Crim. P. 26. The first paragraph of the discussion of subsection (2) is based on 

paragraphs 44g(2), 48i, and 54a of MCM, 1969 (Rev.) and Mil. R. Evid. 61 1 and 614. The second paragraph of the discussion is based on 

paragraphs 54d and g of MCM, 1969 (Rev.). 

Subsection (3) and the discussion are based on paragraph 54e of MCM, 1969 (Rev.). 

Subsection (4) is based on paragraph 54c of MCM, 1969 (Rev.). 

Subsection (5) is based on the fourth sentence of the second paragraph of paragraph 7la of MCM, 1969 (Rev.) and is consistent with current 

practice. 
App. 21, R.C.M. 914(a) APPENDIX 21 

Rule 914. Production of statements of witnesses 

Introduction. This rule is based on Fed. R. Crim. P. 26.2. Fed. R. Crim. P. 26.2 is based on the Jencks Act, 18 U.S.C. 8 3500, which has 

long been applied in courts-martial. United States v. Albo, 22 U.S.C.M.A. 30,46 C.M.R. 30 (1972); United States v. Walbert, 14 U.S.C.M.A. 

34, 33 C.M.R. 246 (1963); United Stares v. Heinel, 9 U.S.C.M. A. 259, 26 C.M.R. 39 (1958). See United States v. Jarrie, 5 M.J. 193 (C.M.A. 

1978); United States v. Herndon, 5 M. J. 175 (C.M. A. 1978); United States v. Scott, 6 M.J. 547 (A.F.C.M.R. 1978) (applied to statements made 

during Article 32 investigation and demanded at trial); United States v. Calley, 46 C.M.R. 113 1 (A.C.M.R.), afd, 22 U.S.C.M.A. 534,48 

C.M.R. 19 (1973); Kesler, The Jencks Act: An Introductory Analysis, 13 The Advocate 391 (Nov-Dec 1981); Lynch, Possession Under the 

Jencks Act, 10 A.F. JAG Rptr 177 (Dec. 1981); O'Brien, The Jencks Act-A Recognized Tool for Military Defense Counsel, 1 I The Advocate 20 

(Jan-Feb 1979); Waldrop, The Jencks Act, 20 A.F.L. Rev. 93 (1978); Bogart, Jencks Act, 27 JAG J. 427 (1973); West, Sign$cance ofthe Jencks 

Act in Military Law, 30 Mil. L. Rev. 83 (1965). Fed. R.Crim. P. 26.2 expands the Jencks Act by providing for disclosure by the defense as well as 

the prosecution, based on United States v. Nobles, 422 U.S. 225 (1975). Otherwise, it is not intended to change the requirements of the Jencks 

Act. Fed. R. Crim. P. 26.2 Advisory Committee Note (Supp. V 1981). Prosecution compliance with R.C.M. 701 should make resort to this rule 

by the defense unnecessary in most cases. 

This rule, like Fed. R. Crim. P.26.2, applies at trial. It is not adiscovery rule (United States v. Ciesielski, 39 C.M.R. 839 (N.C.M.R. 1968)), 

and it does not apply to Article 32 hearings (contra, United Stares v. Jackson, 33 C.M.R. 884,890 nn.3,4 (A.F.B.R. 1963)). It is a distinct rule 

from the rule requiring production for inspection by an opponent of memoranda used by a witness to refresh recollection. UnitedStatesv. Ellison, 

46 C.M.R. 839 (A.F.C.M.R. 1972); cf: Mil. R. Evid. 612 and accompanying Analysis. The rule is not intended to discourage voluntary 

disclosure before trial, even where R.C.M. 701 does not require disclosure, so as to avoid delays at trial. Further, this rule does not foreclose other 

avenues of discovery. 

(a)Morion forproduction. This subsection is based on Fed. R. Crim. P. 26.2(a). It has been reworded toclarify what statements must be produced. 

"[Iln the possession of the United States," and "in the possession of the accused or defense counsel" are substituted for "in their possession" to 

make clear that the rule is not limited to statements in the personal possession of counsel. See 18 U.S.C. 8 3500(a). As to the meaning of "in the 

possession of the United States," see United States v. Calley, supra (testimony at congressional hearing); see also United States v. Ali, 12 M.J. 

1018 (A.C.M.R. 1982) (statement in possession of commander); United States v. Bosier, 12 M.J. 1010 (A.C.M.R. 1982) (notes of undercover 

informant); United States v. Fountain,2 M. J. 1202 (N.C.M.R. 1976); UnitedStatesv. Brakejeld, 43 C.M.R. 828 (A.C.M.R. 1971) (notes taken 

by government psychiatrist). 

(b) Production of entire statement. This subsection is taken from Fed. R. Cnm P. 26.2(b). 

(c) Production ofexcised statement. This subsection is taken from Fed. R. Crim. P. 26.2(c). Failure of a judge to make the required examination on 

request is error. UnitedStatesv. White, 37 C.M.R. 79 1 (A.F.B .R. 1966) (decision under Jencks Act). Failure to preserve the statement after denial 

or excision frustrates appellate review and is also error under decisions interpreting 18 U.S.C. 8 3500. United States v. Dixon, 8 M.J. 149 

(C.M.A. 1979); United States v. Jarrie, supra. However, the statement need not be appended to the record (where it would become public) 

because it is not error to consider the statement when forwarded separately as this rule provides. United States v. Dixon, supra. 

(d) Recess for examination ofthe statement. This subsection is taken from Fed. R. Crim P. 26.2(d). 

(e) Remedy forfailure to produce statement. This subsection is based on Fed. R. Crim. P. 26.2(e). Although not expressly mentioned there, the 

good faith loss and harmless error doctrines under the Jencks Act would apparently apply. See United States v. Patterson, 10 M.J. 599 

(A.F.C.M.R. 1980); United States v. Kilmon, 10 M.J. 543 (N.C.M.R. 1980), United States v. Dixon, United States v. Scott, United States v. 

Jarrie, and United States v. White, all supra. Note, however, that under the Jencks Act decisions the accused need not demonstrate prejudice on 

appeal (United States v. Albo, supra; but see United States v. Bryant, 439 F. 2d 642 (D.C. Cu. 197 1); United States v. Ali, and United States v. 

Bosier, both supra)and that the military judge may not substitute the judge's assessment of the usefulness of the statement for the assessment of the 

accused and defense counsel (United States v. Dixon and United States v. Kilmon, both supra). 

(0 Dejnitions. This subsection is taken from Fed. R. Crim. P. 26.2(0. 

In subsection (1) the inclusion of statements approved or adopted by a witness is consistent with 18 U.S.C. 8 3500(e)(l). See United States v. 

Jarrie and United States v. Kilmon, both supra. 

In subsection (2) the inclusion of substantially verbatim recordings or transcriptions exceeds some interpretations under 18 U.S.C. 8 3500. 

See, e.g., United States v. Marjield, 4 M. J. 843 (A.C.M.R.), pet. denied, 5 M.J. 182 (1978) (testimony in a prior court-martial not accessible 

under 18 U.S.C. § 3500 but accessible under a general "military due process" right to discovery). 

Rule 915. Mistrial 

(a) In general. This subsection is based on the second and third sentences of paragraph 56e(l) of MCM, 1969 (Rev.). See generally Oregon v. 

Kennedy, U.S. (1982); Arizona v. Washington,434 U.S. 497 (1978); Lee v. UnitedStates, 432 U.S. 23 (1977); United 

States v. Dinitz, 424 U.S. 600 (1976); Illinois v. Somerville, 410 U.S. 458 (1973); United States v. Jorn, 400 U.S. 470 (1971); United States v. 

Perez, 22 U.S. (9 Wheat) 579 (1824); United States v. Richardson, 21 U.S.C.M.A. 54,44 C.M.R. 108 (197 1); United States v. Schilling, 7 

U.S.C.M.A. 482, 22 C.M.R. 272 (1957). 

(b)Procedure. This subsection is based on paragraph 56e(2) of MCM, 1969 (Rev.). Because the consent or lack thereof of the defense to a mistrial 

may be determinative of a former jeopardy motion at a second trial, the views of the defense must be sought. 

(c)Effect @a declaration ofmistrial. Subsection (1) is based on the first sentence of paragraph 56e(l) of MCM, 1969 (Rev.). Note that dismissal of 

charges may have the same efiect as declaring a mistrial, depending on the grounds for dismissal. See Lee v. United States and Illinois v. 

Somerville, both supra. Subsection (2) is based on the first two sentences of paragraph 56e(3) of MCM, 1969 (Rev.). See also Oregon v. Kennedy, 
ANALYSIS App. 21, R.C.M. 916(k) 

supra; United States v. Scott, 437 U.S. 82 (1978);Arizona v. Washington, UnitedStates v.Dinitz, Illinois v. Somerville, and UnitedStates v. Jorn, 

all supra; Gori v. United States, 367 U.S. 364 (1961); United States v. Richardson, supra. Subsection (2) notes, as paragraph 56e of MCM, 1969 

(Rev.) did not, that a declaration of a mistrial after findings does not trigger double jeopardy protections. See United States v. Richardson, supra. 

Moreover subsection (2) notes that certain types of prosecutorial misconduct resulting in mistrial will trigger double jeopardy protections. See 

United States v. Jorn, and United States v. Gori, both supra. See also United States v. Dinitz and Illinois v. Somerville, both supra. 

Rule 916. Defenses 

(a) In general. This subsection and the discussion are based on the third paragraph of paragraph 214 of MCM, 1969 (Rev.). 

Motions in bar of trial, which were also covered in paragraph 214, are now covered in R.C.M. 907 since they are procedurally and 

conceptually different from the defenses treated in R.C.M. 916. 

@)Burden ofprog(: This subsection is based on the fourth paragraph of paragraph 214 of MCM, 1969 (Rev.). See also paragraph 12242 of MCM, 

1969 (Rev.). See, e.g., United States v. Cuffee, 10 M.J. 381 (C.M.A. 1981). The first paragraph in the discussion is based on the fifth paragraph of 

paragraph 214 of MCM, 1969 (Rev.). The second paragraph in the discussion is based on United States v. Garcia, 1 M.J. 26 (C.M.A. 1975); 

UnitedStates v. Walker, 21 U.S.C.M.A. 376,45 C.M.R. 150 (1972); UnitedStates v. Ducksworth, 13 U.S.C.M.A. 515,33 C.M.R. 47 (1963); 

UnitedStates v. Bellamy, 47 C.M.R. 319 (A.C.M.R. 1973). It is unclear whether, under some circumstances, an accused's testimony may negate 

a defense which might otherwise have been raised by the evidence. See United States v. Garcia, surpa. 

(c) Justification. This subsection and the discussion are based on paragraph 216a of MCM, 1969 (Rev.). See also United States v. Evans, 17 

U.S.C.M.A. 238,38 C.M.R. 36 (1967); UnitedStates v. Regalado, 13 U.S.C.M.A. 480,33 C.M.R. 12 (1963); UnitedStates v. Hamilton, 10 

U.S.C.M.A. 130,27 C.M.R. 204 (1959). The last sentence in the discussion is based on the second sentence of paragraph 195b of MCM (1951). 

(d) Obedience to orders. This subsection is based on paragraph 216d of MCM, 1969 (Rev.); United States v. Calley, 22 U.S .C.M.A 534,48 

C.M.R. 19 (1973); United States v. Cooley, 16 U.S.C.M.A. 24, 36 C.M.R. 180 (1966). See also United States v. Calley, 46 C.M.R. 1131 

(A.C.M.R. 1973). 

(e) Self-defense. Subsection (1) is based on the first paragraph of paragraph 216c of MCM, 1969 (Rev.). The discussion is based on the second 

paragraph of paragraph 216c of MCM, 1969 (Rev.). See also United States v. Jackson, 15 U.S.C.M.A. 603, 36 C.M.R. 101 (1966). 

Subsection (2) is new and is based on United States v. Acosta-Vargas, 13 U.S.C.M.A. 388, 32 C.M.R. 388 (1962). 

Subsection (3) is based on the fourth paragraph of paragraph 216c of MCM, 1969 (Rev.). See also United States v. Sawyer, 4 M.J. 64 

(C.M.A. 1977). The second paragraph in the discussion is based on United States v. Jones, 3 M.J. 279 (1977). See also United States v. Thomas, 

11 M.J. 315 (C.M.A. 1981). 

Subsection (4) is based on the third paragraph of paragraph 216 of MCM, 1969 (Rev.). See also UnitedStates v. Yabut, 20 U.S.C.M.A. 393, 

43 C.M.R. 233 (1971); UnitedStates v. Green, 13 U.S.C.M.A. 545,33 C.M.R. 77 (1963); UnitedStates v. Brown, 13 U.S.C.M.A. 485,33 

C.M.R. 17 (1963). The second paragraph in the discussion is based on United States v. Smith, 13 U.S.C.M.A. 471, 33 C.M.R. 3 (1963). 

Subsection (5) is based on paragraph 216c of MCM, 1969 (Rev,) which described self-defense in terms which would also apply to defense of 

another. It is also based on United States v. Styron, 21 C.M.R. 579 (C.G.B.R. 1956); United States v. Hernandez, 19 C.M.R. 822 (A.F.B.R. 

1955). But see R. Perkins, Criminal Lmu 1018-1022 (2d ed. 1969). 

(f) Accident. This subsection and the discussion are based on paragraph 216b of MCM, 1969 (Rev.). See also United States v. Tucker, 17 

U.S.C.M.A. 551,38 C.M.R. 349 (1968); United States v. Redding, 14 U.S.C.M.A. 242, 34 C.M.R. 22 (1963); UnitedStates v. Sandoval, 4 

U.S.C.M.A. 61, 15 C.M.R. 61 (1954); United States v. Small, 45 C.M.R. 700 (A.C.M.R. 1972). 

(g) Entrapment. This subsection and the discussions are based on paragraph 216e of MCM, 1969 (Rev.). See also United States v. Vanzandt, 14 

M.J. 332 (C.M.A. 1982). 

(h) Coercion or duress. This subsection is based on paragraph 216f of MCM, 1969 (Rev.). Paragraph 216frequired that the fear of the accused be 

that the accused would be harmed. This test was too narrow, as the fear of injury to relatives or others may be a basis for this defense. United States 

v. Jemmings, 1 M.J. 414 (C.M.A. 1976); United States v. Pinkston, 18 U.S.C.M. A. 261, 39 C.M.R. 261 (1969). The discussion is based on 

United States v. Jemmings, supra. 

(i) Inability. This subsection is based on paragraph 216g of MCM, 1969 (Rev.). See United States v. Cooley, supra; United States v. Pinkston, 6 

U.S.C.M.A. 700, 21 C.M.R. 22 (1956); United States v. Heims, 3 U.S.C.M.A. 418, 12 C.M.R. 174 (1953). 

(i)Ignorance or mistake offact. This subsection is based on paragraph 216i of MCM, 1969 (Rev.); United States v. Jenkins, 22 U.S.C.M. A. 365, 

47 C.M.R. 120(1973); UnitedStatesv. Hill, 13 U.S.C.M.A. 158,32C.M.R. 158 (1962); UnitedStatesv. Greenwood, 6 U.S.C.M.A. 209,19 

C.M.R. 335 (1955); United States v. Graham, 3 M.J. 962 (N.C.M.R.), pet denied, 4 M. J. 124 (1977); United States v. Coker, 2 M. J. 304 

(A.F.C.M.R. 1976), rev'd on other grounds, 4 M.J. 93 (C.M.A. 1977). See also United States v. Calley, 46 C.M.R. 1131, 1179 (A.C.M.R. 

1973), aftod, 22 U.S.C.M.A. 534, 48 C.M.R. 19 (1973). 

(k) Lock $mental responsibility. Subsection (1) is taken from paragraph 120b of MCM, 1969 (Rev.). See also UnitedStates v. Frederick, 3 M.J. 

230 (C.M.A. 1977). 

Subsection (2) is taken from paragraph 120c of MCM, 1969 (Rev.). See also United States v. Higgins, 4 U.S.C.M. A. 143,15 C.M.R. 143 

(1954). 
App. 21, R.C.M. 916(1) 	 APPENDIX 21 

Subsection (3)(A) and the discussion are based on paragraph 122a of MCM, 1969 (Rev.). Several matters in paragraph 122a are covered in 

other parts of this subsection or in R.C.M. 909. 

Subsection (3)(B) and the discussion are based on paragraph 122b(2) of MCM, 1969 (Rev.). The procedures for an inquiry into the mental 

responsibility of the accused are covered in R.C.M. 706. 

Subsection (3)(C) is new. Article 51(b) prohibits a military judge from ruling finally on the factual question of mental responsibility. It does 

not, however, require that the question be treated as an interlocutory one, and there is no apparent reason for doing so. The import of Article 51(b) 

is that the issue of mental responsibility may not be removed from the factfinder. Moreover, to permit mental responsibility to be treated separately 

from other issues relating to the general issue could work to the detriment of the accused.C' United States v. Laws, 11 M.J. 475 (C.M.A. 1981). 

(1) Not defenses generally. 

Subsection (1) is based on the first sentence of paragraph 216j of MCM, (Rev.). The discussion is based on the remainder of paragraph 216jof 

MCM, 1969 (Rev.); R. Perkins, supra at 920-38. See also United States v. Sicley, 6 U.S.C.M.A. 402,20 C.M.R. 11 8 (1955); United States v. 

Bishop, 2 M.J. 741 (A.F.C.M.R.), pet. denied, 3 M.J. 184 (1977). 

Subsection (2) is based on paragraph 216h of MCM, 1969 (Rev.). See also United States v. Hernandez, 20 U.S.C.M.A. 219,43 C.M.R. 59 

(1970); UnitedStates v. Ferguson, 17 U.S.C.M.A. 441,38 C.M.R. 239 (1968); UnitedStates v. Garcia, 41 C.M.R. 638 (A.C.M.R. 1969). See 

United States v. Santiago-Vargas, 5 M.J. 41 (C.M.A. 1978) (pathological intoxication). 

Rule 917. Motion for a finding of not guilty 

(a) In general. This subsection is based on Fed. R. Crim. P. 29(a) and on the first two sentences of paragraph 71a of MCM, 1969 (Rev.). E'aragraph 

7la did not expressly provide for a motion for finding of not guilty to be made sua sponte, as does Fed. R. Crim. P. 29(a). Unlike Fed. R. Crim P. 

29, this rule requires the motion to be resolved before findings are entered. If the evidence is insufficient to support a rational finding of guilty, 

. 	 there is no reason to submit the issue to the members. That would be inefficient. Moreover, if a military judge set aside some, but not all findings as 

"irrational," it would be awkward to proceed to sentencing before the same members. However, nothing in this rule is intended to limit the 

authority of a military judge to dismiss charges after findings on other grounds, such as multiplicity or improper findings (e.g., conviction for both 

larceny as perpetrator and receiving stolen property, see United States v. Cartwright, 13 M.J. 174 (C.M.A. 1982); United States v. Ford, 12 

U.S.C.M.A. 3, 30 C.M.R. 3 (1960); c' United States v. Clark, 20 U.S.C.M.A. 140, 42 C.M.R. 332 (1970)). 

(b) Form ofmotion. This subsection is based on the first sentence in the second paragraph of paragraph 71a of MCM, 1969 (Rev.), except that now 

a statement of the deficiencies of proof is required. This will enable the trial counsel to respond to the motion. 

(c)Procedure. This subsection is new, although it conforms to current practice. By ensuring that counsel may be heard on the motion, a precipitant 

ruling will be avoided. This is important since a ruling granting the motion may not be reconsidered. See United States v. Hitchcock, 6 M.J. 188 

(C.M.A. 1979). The first paragraph in the discussion is based on the fifth sentence of the second paragraph of paragraph 71a of MCM, 1969 

(Rev.). 

(d) Standard. This subsection is based on the fourth sentence of the second paragraph of paragraph 7la of MCM, 1969 (Rev.). See also Jackson v. 

Virginia, 443 U.S. 307 (1979); United States v. Varkonyi, 645 F.2d 453 (5th Cir. 1981); United States v. Beck, 615 F.2d 441 (7th Cir. 1980). 

(e) Motion as to greater flense. This subsection is new and is intended to resolve the problem noted in United States v. Spearman, 23 

U.S.C.M.A. 31, 48 C.M.R. 405 (1974). See Government of Virgin Islands v. Josiah, 641 F.2d 1103, 1108 (3d Cir. 1981). 

(f)Effect of ruling. This subsection is based on the third sentence of Article 51(b) and on United States v. Hitchcock, supra. 

(g) Effect ofdenial on review. This subsection is based on the last sentence of the first paragraph of paragraph 7la of MCM, 1969 (Rev.). See also 

United States v. Bland, 653 F.2d 989 (5th Cir.), cert. denied, 454 U.S. 1055 (1981). 

Rule 918. Findings 

(a) Generalftndings. This subsection and the discussion are based on paragraphs 74b and c of MCM, 1969 (Rev.). The discussion of lesser 

included offenses is also based on Article 80. See also United States v. Scott, 50 C.M.R. 630 (C.G.C.M.R. 1975). 

Failure to reach findings as to the charge or the designation of a wrong article is not necessarily prejudicial. United States v. Dilday, 47 

C.M.R. 172 (A.C.M.R. 1973). 

(b) Specialfindings. This subsection is based on Article 51(d), paragraph 74i of MCM, 1969 (Rev.); United States v. Gerard, 11 M.J. 440 

(C.M.A. 1981). See also United States v. Pratcher, M.J. -(A.C.M.R. 1982); United States v. Burke, 4. M.J. 530 

(N.C.M.R. 1977); United States v. Hussey, 1 M.J. 804 (A.F.C.M.R. 1976); United States v. Baker, 47 C.M.R. 506 (A.C.M.R. 1973); United 

States v. Falin, 43 C.M.R. 702 (A.C.M.R. 1971); United States v. Robertson, 41 C.M.R. 457 (A.C.M.R. 1969); Schinasi, Special Findings: 

Their Use at Trial and on Appeal, 87 Mil. L. Rev. 73 (Winter 1980). 

The requirement that a request for special findings be made before general findings are announced is based on the fifth sentence of paragraph 

74i of MCM, 1969 (Rev.), and on Fed. R. Crim. P. 23(c). Article 51(d) is patterned after Fed. R. Crim. P. 23(c). UnitedStates v. Gerard, supra. 

The language in Article 51(d) is virtually identical to that in Fed. R. Crim. P. 23(c) as it existed when Article 51(d) was adopted in 1968. Fed. R. 

Crim. P. 23(c) was amended in 1977 to specifically provide that a request for special findings be made before general findings are entered. Pub. L. 

NO. 95-78 5 2(b), 91 Stat. 320. This was done "to make clear the deadline for making a request for findings of fact and to provide that findings 

may be oral." Id., Advisory Committe Note (Supp. V. 1981). Subsection (b), therefore, continues conformity with Federal practice. 
ANALYSIS App. 21, R.C.M. 920(e) 

(c)Basis afjndings. This subsection and the discussion are based on paragraph 74a of MCM, 1969 (Rev.). The discussion of reasonable doubt has 

been modified based on United States v. Cotten, 10 M.J. 260 (C.M.A. 1981); United States v. Salley, 9 M. J. 189 (C.M.A. 1980). See also Holland 

v. UnitedStates, 348 U.S. 121, 14041 (1954); UnitedStates v. Previte, 648 E2d 73 (1st Cir. 1981); UnitedStates v. De Vincent, 632 F.2d 147 (1st 

Cu.),cert. denied, 449 U.S. 986 (1980); United States v. Cortez, 521 F.2d 1 (5th Cir. 1975); UnitedStates v. Zeigler, -M.J. (A.C.M.R. 

1982); Unitedsates v. Sauer, 11 M.J. 872 (N.M.C.M.R.), pet. granted, 12 M.J. 320 (1981); United States v. Crumb, 10 M.J. 520 (A.C.M.R. 

1980); E. Devitt and C. Blackmar, Federal Jury Practice Instructions, 8 11.14 (3d ed. 1977). As to instructions concerning accomplice 

testimony, see United States v. Lee, 6 M.J. 96 (C.M.A. 1978); United States v. Moore, 8 M.J. 738 (A.F.C.M.R. 1980). ajfd, 10 M.J. 405 

(C.M.A. 198 1) (regarding corroboration). 

Rule 919. Argument by counsel on findings 

(a) In general. This subsection is based on Fed. R. Crim. P. 29.1. It has been reworded slightly to make clear that trial counsel may waive the 

opening and the closing argument. The rule is consistent with the first sentence of paragraph 72a of MCM, 1969 (Rev.). 

(b) Contents. This subsection is based on the first sentence of the second paragraph of paragraph 72b of MCM, 1969 (Rev.). The discussion is 

based on paragraphs 72a and b of MCM, 1969 (Rev.). See also paragraphs 44g and 48c of MCM, 1969 (Rev.); GrlfJin v. California, 380 U.S ,609 

(1965) (comment on accused's failure to testify); UnitedStates v. Saint John, 23 U.S.C.M.A. 20,48 C.M.R. 312 (1974) (comment on umebutted 

nature of prosecution evidence); United States v. Horn, 9 M.J. 429 (C.M.A. 1980) (repeated use of "1 think" improper but not prejudicial); 

United States v. Knickerbocker, 2 M.J. 128 (C.M.A. 1977) (personal opinion of counsel); United States v. Shamberger, 1 M.J. 377 (C.M.A. 

1976) (inflammatory argument); United States v. Nelson, 1 M.J. 235 (C.M.A. 1975) (comment on Article 32 testimony of accused permitted; 

inflammatory argument; misleading argument); United States v. Reiner, 15 M.J. 38 (C.M.A. 1983); United States v. Fields, 15 M.J. 34 (C.M.A. 

1983);United States v. Fitzpatrick, 14 M.J. 394 (C.M.A. 1983) (bringing to members' attention that had opportunity to hear the evidence at the 

Article 32 hearing is permissible); UnitedStates v. Boberg, 17 U.S.C.M.A. 401,38 C.M.R. 199 (1968); UnitedStates v. Cook, 11 U.S.C.M.A. 

99,28 C.M.R. 323 (1959) (comment on community relations); UnitedStates v. McCauley, 9 U.S.C.M.A. 65, 25 C.M.R. 327 (1958) (citation of 

authority to members). See generally ABA Standards, The Prosecution Function 8 3-5.8 (1979), The Defense Function 8 4-7.8 (1979). See also 

United States v. Clifon, 15 M.J. 26 (C.M.A. 1983). 

(c) Waiver afobjection to improper argument. This subsection is based on Fed. R. Crim. P. 29.1 and is generally consistent with a current 

practice. SeeUnitedStatesv. Grandy, 11 M.J. 270(C.M.A. 1981). Seealso UnitedStatesv. Doctor. 7U.S.C.M.A. 126,21 C.M.R. 252(1956). 

But see United States v. Knickerbocker, United States v. Shamberger, and United States v. Nelson, all supra; United States v. Ryan, 21 

U.S.C.M.A. 9, 44 C.M.R. 63 (1971); United States v. Wood, 18 U.S.C.M.A. 291, 40 C.M.R. 3 (1969) (military judge had duty to act on 

improper argument sua sponte where error was plain). As to the discussion, see United States v. Knickerbocker, and UnitedStates v. Nelson, both 

supra; UnitedStates v. O'Neal, 16 U.S.C.M.A. 33,36 C.M.R. 189 (1966); UnitedStates v. Carpenter, 11 U.S.C.M.A. 418,29 C.M.R. 234 

(1 960). 

Rule 920. Instructions on findings 

(a)In general. This subsection is based on the first sentence of paragraph 73a of MCM, 1969 (Rev.). The discussion is based on the first paragraph 

of paragraph 73a of MCM, 1969 (Rev.). See UnitedStates v. Buchuna, 19 U.S.C.M.A. 394,41 C.M.R. 394 (1970); United States v. Harrison, 19 

U.S.C.M.A. 179,41 C.M.R. 179 (1970); United States v. Moore, 16 U.S.C.M.A. 375, 36 C.M.R. 531 (1966); United States v. Smith, 13 

U.S.C.M.A. 471, 33 C.M.R. 3 (1963). See also United States v. Gere, 662 F.2d 1291 (9th Cir. 1981). 

(b) When given. This subsection is based on the first sentence of paragraph 73a and on paragraph 74e of MCM, 1969 (Rev.), and is consistent with 

Fed. R. Crim. P. 30. This subsection expressly provides that additional instructions may be given after deliberations have begun without a request 

from the members. MCM, 1969 (Rev.) was silent on this point. The discussion is based on United States v. Ricketts, 1 M.J. 78 (C.M.A. 1975). 

(c)Requests for instructions. This subsection is based on the first three sentences in Fed. R. Crim. P. 30 and on the second and fourth sentences of 

paragraph 73d of MCM, 1969 (Rev.). The discussion is based on the remainder of paragraph 73d. 

(d)How given. The first sentence of this subsection is based on the last paragraph of paragraph 73a of MCM, 1969 (Rev.). The second sentence of 

this subsection permits the use of written copies of instructions without stating a preference for or against them. See United States v. Slubowski, 7 

M.J. 461 (C.M.A. 1979); United States v. Muir, 20 U.S.C.M.A. 188,43 C.M.R. 28 (1970); United States v. Sampson, 7 M.J. 513 (A.C.M.R. 

1979);UnitedStates v. Sanders, 30 C.M.R. 521 (A.C.M.R. 1961). Only copies of instructions given orally may beprovided, and delivery of only 

a portion of the oral instructions to the members in writing is prohibited when a party objects. This should eliminate the potential problems 

associated with written instructions. See United States v. Slubowski, supra; United States v. Caldwell, 11 U.S.C.M.A. 257, 29 C.M.R. 73 

(1960); United States v. Helm, 21 C.M.R. 357 (A.B.R. 1956). Giving written instructions is never required. The discussion is based on the last 

paragraph of paragraph 73a of MCM, 1969 (Rev.) and United States v. Caldwell, supra. As to the use of written instructions in Federal district 

courts, seegenerally UnitedStatesv. Read, 658 F.2d 1225 (7th Cir. 1981); UnitedStates v. Calabrase, 645 F.2d 1379 (10th Cir.), cert. denied, 454 

U.S. 831 (1981). 

(e) Required instructions. This subsection is based on Article 51(c) and on the first paragraph of paragraph 73a of MCM, 1969 (Rev.). See also 

United States v. Steinruck, 1 1 M. J. 322 (C.M.A. 1981); United States v. Moore, supra; United States v. Clark, 1 U.S.C.M.A. 201,2 C.M.R. 107 

(1952). As to whether the defense may affirmatively waive certain instructions (e..g., lesser included offenses) which might othenvise be 

required; see United States v. Johnson, 1 M.J. 137 (C.M.A. 1975); United States v. Mundy, 2 U.S.C.M.A. 500, 9 C.M.R. 130 (1953). See 

generally Cooper, The Military Judge: More Than a Mere Referee, The Army Lawyer (Aug. 1976) 1; Hilliard, The Waiver Doctrine: Is It Still 

Viable?, 18 A.F. L. Rev. 45 (Spring 1976). 

The first paragraph in the discussion is based on United States v. Jackson, 12 M.J. 163 (C.M.A. 1981); United States v. Waldron, 11 M.J. 36 
App. 21, R.C.M. 920(f) APPENDIX 21 

(C.M.A. 1981); United States v. Evans, 17 U.S.C.M. A. 238,38 C.M.R. 36 (1967); United States v. Clark, supra. See UnitedStates v. Johnson, 

637 F.2d 1224 (9th Cir. 1980); United States v. Burns, 624 F.2d 95 (10th Cir.), cert. denied, 449 U.S. 954 (1980). 

The third paragraph in the discussion is based on paragraph 73a of MCM, 1969 (Rev.) and on Military Judges Benchbook, DA PAM 27-9 

Appendix A, (May 1982). See also United States v. Thomas, 11 M.J. 388 (C.M.A. 1981); UnitedStates v. Fowler, 9 M.J. 149 (C.M.A. 1980); 

United States v. James, 5 M.J. 382 (C.M. A. 1978) (uncharged misconduct); United States v. Robinson, 1 1 M.J. 218 (C.M.A. 1981) (character 

evidence); United States v. Wahnon, 1 M.J. 144 (C.M.A. 1975) (effect of guilty plea on other charges); United States v. Minter, 8 M.J. 867 

(N.C.M.R.), afd, 9 M.J. 397 (C.M.A. 1980); United States v. Prowell, 1 M.J. 612 (A.C.M.R. 1975) (effect of accused's absence from trial); 

United States v. Jackson, 6 M.J. 1 16 (C.M.A. 1979); United States v. Farrington, I4 U.S.C.M.A. 614,34 C.M.R. 394 (1964) (accused's failure 

to testify). The list is not exhaustive. 

The fourth paragraph in the discussion is based on paragraph 73c of MCM, 1969 (Rev.). See also United States v. Grandy, 11 M.J. 270 

(C.M.A. 1981). 

(f) Waiver. This subsection is based on the last two sentences in Fed. R. Crim. P. 30. See also United States v. Grandy, supra; United States v. 

Salley, 9 M.J. 189 (C.M.A. 1980). 

Rule 921. Deliberations and votlng on findlngs 

(a)In general. This subsection is based on Article 39(b) and on the second, third, and fifth sentences of paragraph 74d(l) of MCM, 1969 (Rev.). 

The first sentence of that paragraph is unnecessary and the fourth is covered in subsection (b) of this rule. 

(b) Deliberations. The first sentence of this subsection is based on the fourth sentence of paragraph 74d(l) of MCM, 1969 (Rev.). The second 

sentence is new but conforms to current practice. See United States v. Hurt, 9 U.S.C.M.A. 735, 27 C.M.R. 3 (1958); United States v. 

Christensen, 30 C.M.R. 959 (A.F.B.R. 1961). The third sentenceis based on United States v. Jackson, 6M.J. 116,117 (C.M.A. 1979) (Cook, J., 

concuning in part and dissenting in part); UnitedStates v. Smith, 15 U.S.C.M.A. 416,35 C.M.R. 388 (1965). See also paragraph 54b of MCM, 

1969 (Rev.); United States v. Ronder, 639 E2d 931 (2d Cir. 1981). 

(c) Voting. Subsection (1) is based on the first sentence of Article 51(a) and on the first sentence of paragraph 74d(2) of MCM, 1969 (Rev.). 

Subsection (2) is based on Article 52(a) and on the first two sentences of paragraph 7443) of MCM, 1969 (Rev.). See also United States v. 

Guilford, 8 M.J. 598 (A.C.M.R. 1979), pet. denied, 8 M.J. 242 (1980) (holding Burch v. Louisiana, 441 U.S. 130 (1979), does not apply to 

courts-martial.) The discussion is based on the third sentence of paragraph 74d(3) of MCM, 1969 (Rev.). 

Subsection (3) is based on the fourth sentence of paragraph 74d(3) of MCM, 1969 (Rev.). 

Subsection (4) is new to the Manual but it conforms to practice generally followed in courts-martial. hagraph 74d(2) of MCM, 1969 (Rev.) 

suggested that findings as to a specification and all lesser offenses included therein would be resolved by a single ballot. Such an approach is 

awkward, however, especially when there are multiple lesser included offenses. It is more appropriate to allow separate consideration of each 

included offense until a finding of guilty has been reached. See Military Judges Benchbook, DA PAM 27-9, para. 2-28 (May 1982). 

Subsection (5) is based on the second sentence of Article 51(b) and on paragraph 74d(2) of MCM, 1969 (Rev.). See also United States v. 

Dilday, 47 C.M.R. 172 (A.C.M.R. 1973). 

(d)Action ajterfindings are reached. This subsection and the discussion are based on paragraphs 74f(l) and 74g of MCM, 1969 (Rev.). See United 

States v. Justice, 3 M.J. 451 (C.M. A. 1977); United States v. Ricketts, 1 M.J. 78 (C.M.A. 1975); United States v. McAllister, 19 U.S.C.M. A. 

420.42 C.M.R. 22 (1970). The use of findings worksheets is encouraged. See United States v. Henderson, 11 M.J. 395 (C.M.A. 1981); United 

States v. Barclay, 6 M.J. 785 (A.C.M.R. 1978), pet. denied, 7 M.J. 71 (1979). 

Rule 922. Announcement of findings 

(a) In general. This subsection is based on Article 53 and on the first sentence of paragraph 74g of MCM, 1969 (Rev.). See also UnitedStates v. 

Dilday, 47 C.M.R. 172 (A.C.M.R. 1973). The discussion is based on United States v. Rickerts, 1 M.J. 78 (C.M. A. 1975); United States v. 

Stewart, 48 C.M.R. 877 (A.C.M.R. 1974). The requirement for the announcement to include a statement of the percentage of members 

concurring in each finding of guilty and that the vote was by secret written ballot has been deleted. Article 53 does not require such an 

announcement and when instructions on such matters are given (see R.C.M. 920(e)(6)), the members are "presumed to have complied with the 

instructions given them by the judge." UnitedStates v. Ricketts, supra at 82. See UnitedStates v. Jenkins. 12 M.J. 222 (C.M.A. 1982). C' United 

States v. Hendon, 6 M.J. 171, 173-174 (C.M.A. 1979). 

(b) Findings by members. This subsection is based on the second sentence of paragraph 74g of MCM, 1969 (Rev.). The last sentence is based on 

the last sentence of paragraph 70b of MCM, 1969 (Rev.). 

(c) Findings by military judge. This subsection is based on the second sentence of the last paragraph of paragraph 706 and on the second paragraph 

of paragraph 74g of MCM, 1969 (Rev.). See also Article 39(a). 

(d) Erroneous announcement. This subsection is based on the third and fourth sentences of paragraph 74g of MCM, 1969 (Rev.). 

(e) Pollingprohibited. This subsection is based on the requirement in Article 51(a) for voting by secret written ballot. This distinguishes military 

from civilian practice (see Fed. R. Crim. P. 31(d)). Mil. R. Evid. 606(b) permits adequately broad questioning to ascertain whether a finding is 

subject to impeachment due to extraneous factors. To permit general inquiry into other matters, including actual votes of members, would be 

contrary to Article 51(a) and Article 39(b). See UnitedStates v. Bishop, 11 M.J. 7 (C.M.A. 1981); UnitedStates v. West, 23 U.S.C.M.A. 77,48 

C.M.R. 548 (1974) (Duncan, C. J.); United States v. Nash, 5 U.S.C.M.A. 550, 555, 18 C.M.R. 174, 179 (1955) (Brosman, J. concuning); 
ANALYSIS App. 21, R.C.M. 1001(b) 

UnitedStates v. Connors, 23 C.M.R. 636 (A.B .R. 1957); United States v. Tolbert, 14 C.M.R. 613 (A.F.B.R. 1953). Contra Caldwell,Polling the 

Military Jury, 11 The Advocate 53 (Mar-Apr, 1979); Feld, A Manualfor Courts-Martial Practice andAppeal$ 72 (1957). See also United States 

v. Hendon, supra. 

Rule 923. Impeachment of findings 

This rule is based on United States v. Bishop, 11 M.J. 7 (C.M.A. 1981); United States v. West, 23 U.S.C.M.A. 77,48 C.M.R. 548 (1974). 

See also UnitedStates v. Witherspoon, 12 M.J. 588 (A.C.M.R. 1981),pet. granted, 13 M.J. 210 (C.M.A. 1982); UnitedStates v. Hance, 10 M.J. 

622 (A.C.M.R. 1980); UnitedStates v. Zinsmeister, 48 C.M.R. 931,935 (A.EC.M.R.),pet. denied, 23 U.S.C.M.A. 620 (1974); UnitedStates 

v. Perez-Pagan, 47 C.M.R. 719 (A.C.M.R. 1973); United States v. Connors, 23 C.M.R. 636 (A.B .R. 1957); Mil. R. Evid. 606(b). 

As to inconsistent findings, see Harris v. Rivera, 454 U.S. 339 (1981); Dunn v. UnitedStates, 284 U.S. 390 (1932); UnitedStates v. Gaeta, 

14 M.J. 383, 391 n. 10 (C.M.A. 1983); United States v. Ferguson, 21 U.S.C.M.A. 200, 44 C.M.R. 254 (1972); United States v. Jules, 15 

C.M.R. 517 (A.B.R. 1954). But see UnitedStates v. Reid, 12 U.S.C.M.A. 497,31 C.M.R. 83 (1961); UnitedStates v. Butler, 41 C.M.R. 620 

(A.C.M.R. 1969). 

The rule is not intended to prevent a military judge from setting aside improper findings. This would include improper findings of guilty of 

"mutually exclusive" offenses, for example, larceny (as a perpetrator) of certain property and receiving the same stolen property. In such a case, 

the members should be instructed before they deliberate that they may convict of no more than one of the two offenses. See Milanovich v. United 

States, 365 U.S. 551 (1961); UnitedStates v. Cartwright, 13 M.J. 174 (C.M.A. 1982); UnitedStates v. Clark, 20 U.S.C.M.A. 140,42 C.M.R. 

332 (1970); United States v. Ford, 12 U.S.C.M.A. 3, 30 C.M.R. 3 (1960). 

Rule 924. Reconsideration of findings 

(a) Time for reconsideration. This subsection is based on Article 52(c) and on the fourth and fifth sentences of paragraph 74d(3) of MCM, 

1969 (Rev.). 

(b) Procedure. This subsection is based on Articles 52(a) and 53(c) and on the last three sentences of paragraph 74d(3) of MCM, 1969 (Rev.). See 

also United States v. Boland, 20 U.S .C.M. A. 83, 42 C.M.R. 275 (1 970). 

(c) Military judge sitting alone. This subsection is new to the Manual, although the power of a military judge to reconsider findings of guilty has 

been recognized. UnitedStates v. Chatman, 49 C.M.R. 319 (N.C.M.R. 1974). It is also implicit in Article 16 which empowers the military judge 

sitting alone to perform the functions of the members. See Article 52(c). 

CHAPTER X. SENTENCING 

Rule 1001. Presentencing procedure 

Introduction. This rule is based on paragraph 75 of MCM, 1969 (Rev.). Additions, deletions, or modifications, other than format or style 

changes, are noted in specific subsections inpa. 

Sentencing procedures in Federal civilian courts can be followed in courts-martial only to a limited degree. Sentencing in courts-martial may 

be by the military judge or members. See Articles 16 and 52(b). The military does not have-and it is not feasible to create-an independent, 

judicially supervised probation service to prepare presentence reports. See Fed. R. Crim. P. 32(c). This rule allows the presentation of much of the 

same information to the court-martial as would be contained in a presentence report, but it does so within the protections of an adversarial 

proceeding, to which rules of evidence apply (but cf: Williams v. New York, 337 U.S. 241 (1949)), although they may be relaxed for some 

purposes. See subsections (b)(4) and (5). (c)(3), (d), and (e) of this rule. The presentation of matters in the accused's service records (see 

subsection (b)(2) of this rule) provides much of the information which would be in a presentence report. Such records are not prepared for 

purposes of prosecution (cf: UnitedStates v. Boles, 11 M. J. 195 (C.M.A. 198 1)) and are therefore impartial, like presentence reports. In addition, 

the clarification of the types of cases in which aggravation evidence may be introduced (see subsection (b)(4) of this rule) and authorization for the 

trial counsel to present opinion evidence about the accused's rehabilitative potential (see subsection (b)(5) of this rule) provide additional avenues 

for presenting relevant information to the court-martial. The accused retains the right to present matters in extenuation and mitigation (see 

subsection (c) of this rule). 

In addition to Fed. R. Crim. P. 32(c), several other subsections in Fed. R. Crim. P. 32 are inapplicable to courts-martial or are covered in 

other rules. Fed. R. Crim. P. 32(a)(2) is covered in R.C.M. 1010. Fed. R. Crim. P. 32(b)(l) is inapposite; parallel matters are covered in R.C.M. 

11 14. Fed. R. Crim. P. 32(b)(2) is inapplicable as courts-martial lack power to adjudge criminal forfeiture of property. Fed. R. Crim. P. 32(d) is 

covered in R.C.M. 910(h). See also Article 45(a). As to Fed. R. Crim. P. 32(e), see R.C.M. 1108. 

(a) In general. Subsection (a)(3) is based on the third sentence of paragraph 53h of MCM, 1969 (Rev.) and on the second sentence of Fed. R. 

Crim. P.32(a). See also Hill v. United States, 368 U.S. 424 (1962); Green v. UnitedStates, 365 U.S. 301 (1961). Subsection (a)(3) of paragraph 

75 of MCM, 1969 (Rev.) is deleted as the convening authority is no longer required to examine the findings for factual sufficiency. Subsection 

(a)(2) is consistent with the first sentence of Fed. R. Crim. P. 32(a). See Article 53. As to the last sentence of Fed. R. Crim. P. 32(a),see subsection 

(g) of this rule. 

(b) Matter to bepresented by theprosecution. Subsections (3) and (4) are modifications of paragraph 75b(3) and (4) of MCM, 1969 (Rev.), and 

subsection (5) is new. 

The fourth sentence of subsection (2) is modified by substituting "a particular document" for "the information." This is intended to avoid 

the result reached in United States v. Morgan, 15 M.J. 128 (C.M.A. 1983). For reasons discussed above, sentencing proceedings in courts-martial 
App. 21, R.C.M. 1001(e) APPENDIX 21 

are adversarial. Within the limits prescribed in the Manual, each side should have the opportunity to present, or not present, evidence. Morgan 

encourages gamesmanship, and may result in less information being presented in some cases because of the lack of opportunity to rebut. 

Subsection (3) deletes the exclusion of convictions more than 6 years old. No similar restriction applies to consideration of prior convictions 

at sentencing proceedings in Federal civilian courts. There is no reason to forbid their consideration by courts-martial, subject to Mil. R. 

Evid. 403. 

Subsection (3) also eliminates the requirement that a conviction be final before it may be considered by the court-martial on sentencing. No 

similar restriction applies in Federal civilian courts. This subsection parallels Mil. R. Evid. 609. An exception is provided for summary courtsmartial and special courts-martial without a military judge. See Analysis, Mil. R. Evid. 609. Whether an adjudication of guilt in a civilian forum 

is a conviction will depend on the law in that jurisdiction. 

Subsection (4) makes clear that evidence in aggravation may be introduced whether the accused pleaded guilty or not guilty, and whether or 

not it would be admissible on the merits. This is consistent with the interpretation of paragraph 75b(3) (later amended to be paragraph 75b(4) of 

MCM, 1969 (Rev.) by Exec. Order No. 12315 (July 29, 1981)) in UnitedStates v. Vickers, 13 M.J. 403 (C.M.A. 1982). See also U.S. Dep't of 

Justice, Attorney General's Task Force on Violent Crime, Final Report Recommendation 14 (1981); Fed. R. Crirn. P. 32(c)(2)(B) and (C).This 

subsection does not authorize introduction in general of evidence of bad character or uncharged misconduct. The evidence must be of 

circumstances directly relating to or resulting from an offense of which the accused has been found guilty. See United States v. Rose, 6 M.J. 754 

(N.C.M.R. 1978), pet. denied, 7 M.J. 56 (C.M.A. 1979); UnitedStates v. Taliafevo, 2 M.J. 397 (A.C.M.R. 1975); UnitedStates v. Peace, 49 

C.M.R. 172 (A.C.M.R. 1974). 

Subsection (5) is new. (Paragraph 75b(5) of MCM, 1969 (Rev.) is deleted here, as it is now covered in R.C.M. 701(a)(5). Cf:Fed. R. Crim. P. 

32(c)(3).) Subsection (5) authorizes the trial counsel to present, in the form of opinion testimony (see Mil. R. Evid., Section VII), evidence of the 

accused's character as a servicemember and rehabilitative potential. Note that inquiry into specific instances of conduct is not permitted on direct 

examination, but may be made on cross-examination. Subsection (5) will allow a more complete presentation of information about the accused to 

the court-martial. The accused's character is in issue as part of the sentencing decision, since the sentence must be tailored to the offender. Cf: 

United States v. Lania, 9 M.J. 100 (C.M.A. 1980). Therefore, introduction of evidence of this nature should not be contingent solely upon the 

election of the defense. Information of a similar nature, from the accused's employer or neighbors, is often included in civilian presentencing 

reports. See, e.g., Fed. R. Crim. P. 32(c)(2). Subsection (5) guards against unreliable information by guaranteeing that the accused will have the 

right to confront and cross-examine such witnesses. 

(e) Production ofwimesses. The language of subsection (2)(C) has been modified to clarify that only a stipulation of fact permits nonproduction. 

See United States v. Gonzalez, 16 M.J. 58 (C.M.A. 1983). 

(0Additional matters to be considered. This subsection is based on the third and fourth sentences of paragraph 76a(2) of MCM, 1969 (Rev.) and 

on the first sentence of paragraph 123 of MCM, 1969 (Rev.). The discussion is based on the last two sentences of paragraph 123 of MCM, 1969 

(Rev.). 

(g) Argument. The last sentence is new. See Analysis, R.C.M. 919(c). As to the second sentence, see United States v. Grady, 15 M.J. 275 

(C.M.A. 1983). 

Rule 1002. Sentence determination 

This rule is based on the first sentence in paragraph 76a(l) of MCM, 1969 (Rev.). 

Rule 1003. Punlshments 

Introduction. This rule lists the punishments a court-martial is authorized to impose, and presents general limitations on punishments not 

provided in specific rules elsewhere. Limitations based on jurisdiction (see R.C.M. 201(f)); rehearings, other and new trials (seeR.C.M. 810(d)); 

and on referral instructions (see R.C.M. 601(e)(l)) are contained elsewhere, but are referred to in this rule. See subsection (c)(3) and discussion. 

The maximum punishments for each offense are listed in Part IV. The automatic suspension of limitations at paragraph 127c(5) of MCM, 1969 

(Rev.) is deleted since the maximum punishments now include appropriate adjustments in the maximum authorized punishment in time of war or 

under other circumstances. 

(a) In general. This subsection provides express authority for adjudging any authorized punishment in the case of any person tried by courtmartial, subject only to specific limitations prescribed elsewhere. It does not change current law. 

(b)Authorizedpunishments. This subsection lists those punishments which are authorized, rather than some which are prohibited. This approach 

is simpler and should eliminate questions about what punishments a court-martial may adjudge. 

Subsection (1) is based on paragraph 126f of MCM, 1969 (Rev.). Admonition has been deleted as unnecessary. 

Subsection (2) is based on paragraphs 126h(l) and (2) of MCM, 1969 (Rev.). 

Subsection (3) is based on paragraph 126h(3) of MCM, 1969 (Rev.). See R.C.M. 11 13(d)(4) and Analysis concerning possible issues raised 

by enforcing a fine through confinement. 

Detention of pay (paragraph 126h(4) of MCM, 1969 (Rev.)) has been deleted. This punishment has been used very seldom and is 

administratively cumbersome. 

Subsection (4) is based on paragraph 126i of MCM, 1969 (Rev.). 
ANALYSIS App. 21, R.C.M. 1004 

Subsection (5) is based on the second paragraph of paragraph 126e of MCM, 1969 (Rev.). The lint sentence in the discussion is based on the 

same paragraph. The second sentence in the discussion is based on the last sentence in the first paragraph of paragraph 126e of MCM, 1969 (Rev.). 

Subsection (6) is based on paragraph 126s and on the ninth sentence of the second paragraph of paragraph 127c(2) of MCM, 1969 (Rev.). 

The equivalency of restriction and confinement has been incorporated here and is based on the table of equivalencies at paragraph 127c(2) of 

MCM, 1969 (Rev.). See also Article 20. 

Subsection (7) and the discussion arebased on paragraph 126kof MCM, 1969 (Rev.). The last sentence in the rule is new and is based on the 

table of equivalent punishments at paragraph 127c(2) of MCM, 1969 (Rev.). See also Article 20. 

Subsection (8) is based on paragraph 126j of MCM, 1969 (Rev.). Matters in the second paragraph of paragraph 126jof MCM, 1969 (Rev.) are now 

covered in R.C.M. 11 13(d)(2)(A). 

Subsection (9) is based on the last paragraph of paragraph 125 of MCM, 1969 (Rev.). The last sentence is new and is based on the table of 

equivalent punishments at paragraph 127c(2) of MCM, 1969 (Rev.). 

Subsection (10)(A) is based on the second paragraph of paragraph 126d of MCM, 1969 (Rev.). Subsections (10)(B) and (C) are based on 

paragraphs 76a(3) and (4) and 127c(4) of MCM, 1969 (Rev.). 

As to subsection (1 1). see R.C.M. 1004. 

Subsection (12) is based on Article 18. 

Subsections (6), (7), and (9) incorporate equivalencies for restriction, hard labor without confinement, confinement, and confinement on 

bread and water or diminished rations. This makes the table of equivalent punishments at paragraph 127c(2) of MCM, 1969 (Rev.) unnecessary 

and it has been deleted. That table was confusing and subject to different interpretations. For example, the table and the accompanying discussion 

suggested that if the maximum punishment for an offense was confinement for 3 months and forfeiture of two-thuds pay per month for 3 months, a 

court-martial could elect to adjudge confinement for 6 months and no forfeitures. The deletion of the table and inclusion of specific equivalencies 

where they apply eliminates the possibility of such a result. 

(c) Limits onpunishments. Subsections (l)(A) and (B) arebased on paragraph 127c(l) of MCM, 1969 (Rev.). Subsection (l)(C) is based on the 

first 3 sentences and the last sentence of paragraph 76a(5) of MCM, 1969 (Rev.). See Blockburger v. United States, 284 U.S. 299 (1932); United 

States v. Washington, 1 M. J. 473 (C.M. A. 1976). See also Missouri v. Hunter, -U.S. , 5 1 U.S.L. W. 4093 (1983); United 

States v. Baker, 14 M.J. 361 (C.M.A. 1983). The discussion is based on paragraph 76a(5) of MCM, 1969 (Rev.). As to the third paragraph in the 

discussion, see, e.g., UnitedStates v. Posnick, 8 U .S .C.M.A. 201,24 C.M.R. 1 1 (1 957). C' United States v. Stegall, 6 M. J. 176 (C.M .A. 1979). 

As to the fourth paragraph in the discussion, see UnitedStates v. Harrison, 4 M.J. 332 (C.M.A. 1978); UnitedStates v. Irving, 3 M.J. 6 (C.M.A. 

1977); United States v. Hughes, 1 M.J. 346 (C.M.A. 1976); United States v. Burney, 21 U.S.C.M.A. 71, 44 C.M.R. 125 (1971). 

Subsection (2)(A) is based on paragraph 126d of MCM, 1969 (Rev.). Paragraph 127a of MCM, 1969 (Rev.) provided that the maximum 

punishments were "not biding" in cases of officers, but could "be used as a guide." Read in conjunction with paragraph 126d of MCM, 1969 

(Rev.) these provisions had the practical effect of prescribing no liits on forfeitures when the accused is an officer. This distinction has now been 

deleted. The maximum limits on forfeitures are the same for officers and enlisted persons. 

Subsection (3) is based on paragraph 1276 of MCM, 1969 (Rev.). It serves as a reminder that the limits on punishments may be affected by 

other rules, which are referred to in the discussion. 

The last sentence in subsections (1) and (2) is new. Under R.C.M. 1001(b)(3), a court-martial conviction may now be considered by the 

sentencing body whether or not it is final. Allowing such a conviction to affect the maximum punishment may cause later problems, however. The 

subsequent reversal of a conviction would seldom affect a sentence of another court-martial where that conviction was merely a factor which was 

considered, especially when the pendency of an appeal may also have been considered. However, reversal would always affect the validity of any 

later discharge or confinement for which it provided the basis. 

(d) Circumstances permining increasedpunishments. This subsection is based on Section B of the Table of Maximum Punishments, paragraph 

127c of MCM, 1969 (Rev.). See also United States v. Timmons, 13 M.J. 431 (C.M.A. 1982). The last two sentences in the discussion are based on 

United States v. Mack, 9 M.J. 300 (C.M.A. 1980); United States v. Booker, 5 M.J. 238 (C.M.A. 1977), vacated in part, 5 M.J. 246 (C.M.A. 

1978). Cf: United States v. Cofield, 11 M.J. 422 (C.M.A. 1981). 

Rule 1004. Capital cases 

Introduction. This rule is new. It provides additional standards and procedures governing determination of a sentence in capital cases. It is 

based on the President's authority under Articles 18, 36, and 56. See also U.S. Const. Art. n, sec. 2, cl.1. 

This rule and the analysis were drafted before the Court of Military Appeals issued its decision in United States v. Matthews, 16 M.J. 354 

(C.M.A. 1983) on October 11, 1983. There the court reversed the sentence of death because of the absence of a requirement for the members to 

specifically find aggravating circumstances on which the sentence was based. When this rule was drafted, the procedures for capital cases were the 

subject of litigation in Manhews and other cases. See e.g., United States v. Manhews, 13 M.J. 501 (A.C.M.R. 1982), rev'd, United States v. 

Matthews, supra; UnitedStatesv. Rojas, 15M.J. 902 (N.M.C.M.R. 1983). Seealso UnitedStatesv. Gay, 16M.J. 586(A.F.C.M.R. 1982), cert. 

for reviewjiled, 16 M.J. 160 (1983) (decided after draft MCM was circulated for comment). The rule was drafted in recognition that, as a matter of 

policy, procedures for the sentence determination in capital cases should be revised, regardless of the outcome of such litigation, in order to better 

protect the rights of servicemembers. 

While the draft Manual was under review following public comment on it (see 48 Fed. Reg. 23688 (1983)), the Matthews decision was 
App. 21, R.C.M. 1004(a) APPENDIX 21 

issued. The holding in Matthews generated a necessity to revise procedures in capital cases. However, Matthews did not require substantive 

revision of the proposed R.C.M. 1004. The several modifications made in the rule since it was circulated for comment were based on suggestions 

from other sources. They are unrelated to any of the issues involved in Matthews. 

Capital punishment is not unconstitutional per se. Gregg v. Georgia, 428 U.S. 153 (1976); United States v. Matthews, supra. Capital 

punishment does not violate Article 55. Compare Article 55 with Articles 85, 90, 94, 99-102, 104, 106, 110, 113, 118, and 120. See United 

States v. Matthews, supra. But cf: id. at 382 (Fletcher, J., concurring in result) (absent additional procedural requirements, sentence of death 

violated Article 55). The Supreme Court has established that capital punishment does not violate the Eighth Amendment (U.S. Const. amend. 

VIII) unless it: "makes no measurable contribution to acceptable goals of punishment and hence is nothing more than a purposeless and needless 

imposition of pain and suffering"; "is grossly out of proportion to the crime" (Coker v. Georgia, 433 U.S. 584,592 (1977)); or is adjudged under 

procedures which do not adequately protect against the arbitrary or capricious exercise of discretion in determining a sentence. Furman v. 

Georgia, 408 U.S. 238 (1972). Cf: Barclay v. Florida, -U.S. -, 103S. Ct. 3418 (1983); Zant v. Stephens, U.S. , 

103 S. Ct. 2733 (1983); Godfrey v. Georgia, 446 U.S. 420 (1980); Jurekv. Texas, 428 U.S. 262(1976); Proffitt v. Florida, 428 U.S. 242 (1976); 

Gregg v. Georgia, supra. See United States v. Matthews, supra. Furthermore, while the procedures under which death may be adjudged must 

adequately protect against the unrestrained exercise of discretion, they may not completely foreclose discretion (at least in most cases, see 

subsection (e), infra)or the consideration of extenuating or mitigating circumstances. See Eddings v. Oklahoma, 455 U.S. 104 (1982); Lockett v. 

Ohio, 438 U.S. 586 (1978); Roberts (Harry) v. Louisiana, 431 U.S. 633 (1977); Roberts (Stanislaus) v. Louisiana, 428 U.S. 325 (1976); 

Woodson v. North Carolina, 428 U.S. 280 (1976). In Matthews the Court of Military Appeals suggested that similar considerations apply with 

respect to Article 55's prohibitions against cruel and unusual punishment. United States v. Matthews, supra at 368-69, 379-80. 

The Court of Military Appeals listed several requirements for adjudication of the death penalty, based on Supreme Court decisions: (1) a 

separate sentencing procedure must follow the finding of guilt of a potential capital offense; (2) specific aggravating circumstances must be 

identified to the sentencing authority; (3) the sentencing authority must select and make findings on the particular aggravating circumstances used 

as a basis for imposing the death sentence; (4) the defendant must have an unrestricted opportunity to present mitigating and extenuating evidence; 

and (5) mandatory appellate review must be required to consider the propriety of the sentence as to the individual offense and individual defendant 

and to compare the sentence to similar cases within the jurisdiction. See United States v. Matthews, supra at 369-77 and cases cited therein. 

The Supreme Court has not decided whether Furman v. Georgia, supra, and subsequent decisions concerning capital punishment apply to 

courts-martial. See Schick v. Reed, 419 U.S. 256 (1974). But see Furman v. Georgia, supra at 412 (Blackmun, J., dissenting); id. at 417-18 

(Powell, J., dissenting). See generally Pfau and Milhizer, The Military Death Penalty and the Constitution: There Is Life After Furman, 97 Mil. L. 

Rev. 35 (1982); Pavlick, The Constitutionality ofthe U.C.M.J. Death Penalty Provisions, 97 Mil. L. Rev. 81 (1982); Comment, The Death 

Penalty in Military Courts: Constitutionally Imposed? 30 UCLA L. Rev. 366 (1982); Dawson, Is the Death Penalty in the Military Cruel and 

Unusual?, 31 JAG J. (Navy) 53 (1980); English, The Constitutionality ofthe Court-Martial Death Sentence, 21 A.F.L. Rev. 552 (1979). 

The Court of Military Appeals held in United States v. Matthews, supra, that the requirements established by the Supreme Court for civilian 

cases apply in courts-martial, at least in the absence of circumstances calling for different rules, such as combat conditions or wartime spying. 

United States v. Manhavs, supra at 368. The court added that current military capital sentencing procedures are constitutionally adequate in the 

following respects: (1) there is a separate sentencing process in which the members are instructed by the military judge as to their duties; (2) 

certain aggravating factors (e.g., premeditation) must be found by the members during findings, and evidence of other aggravating circumstances 

may be submitted during sentencing; (3) the accused has an unlimited opportunity to present relevant evidence in extenuation and mitigation; and 

(4) mandatory review is required by a Court of Military Review, and the Court of Military Appeals, with further consideration by the President. 

United States v. Matthews, supra at 377-78. The court held, that the procedure is defective, however, in that the members are not required to 

"specifically identify the aggravating factors upon which they have relied in choosing to impose the death penalty," id. at 379, at least with respect 

to a peacetime murder case. See id. at 368. 

The Court of Military Appeals stated in Matthews that constitutionally adequate procedures for capital cases may be promulgated by the 

President.Id. at 380-81. The President's unique authority over military justice, particularly its procedure and punishments is well established. 

See U.S. Const. Art. 11, sec. 2, cl. 1;Articles 18,36, and 56. Congress recently reaffirmed the broad scope of this Presidential authority. See Pub. 

L. No. 96107, Title VLII, 5 801(b), 93 Stat. 81 1 (Nov. 9, 1979); S. Rep. No. 107,96th Cong., 1st Sess. 123-125 (1979); Hearings on S.428 

Before the Military Personnel Subcomm. ofthe House Comm. on Arrnedservices, 96th Cong., 1st Sess. 5-6,14,17-18,20-21,52,106 (1979). 

See also UnitedStates v. Ezell, 6 M.J. 307,31617 (C.M.A. 1978); W. Winthrop, Military Law andPrecedents27-33 (2d ed. 1920reprint). C' 

Jurek v. Texas, supra (judicial construction may save an otherwise defective death penalty provision). The changes made in thiH rule are 

procedural. See Dobbert v. Florida, 432 U.S. 282 (1977). 

R.C.M. 1004 is based on the recognition that, in courts-martial, as in civilian prosecutions, death should be adjudged only under carefully 

tailored procedures designed to ensure that all relevant matters are thoroughly considered and that such punishment is appropriate. 

At the same time, R.C.M. 1004 rests on the conclusion that the death penalty remains a necessary sanction incourts-martial and that it is an 

appropriate punishment under a broader range of circumstances than may be the case in civilian jurisdictions. This is because of the unique 

purpose and organization of the military, and its composition and the circumstances in which it operates. Cf: Parker v.Levy, 417 U.S. 733 (1974). 

See also United States v. Matthews, supra at 368. 

(a) In general. Subsection (1) is based on the code and reflects the first of two "thresholds" before death may be adjudged: the accused must have 

been found guilty of an offense for which death is authorized. 

Subsection (2) refers to the remaining tests in subsections (b) and (c) of the rule: the prosecution must prove, beyond a reasonable doubt, the 

existence of one or more aggravating circumstances listed in subsection (c) of the rule. Only if this second threshold is passed may the members 

consider death. If the members reach this point, their sentencing deliberations and procedures would be llke those in any other case, except that the 

members must apply an additional specific standard before they may adjudge death. See subsection (b)(3) of this rule. 
ANALYSIS App. 21, R.C.M. 1004(b) 

This rule thus combines two preliminary tests which must be met before death may be adjudged with a standard which must be applied before 

death may be adjudged. C' Barclay v. Florida and Zant v. Stephens, both supra. The Working Group considered the capital punishment 

provisions of those states which now authorize capital punishment, as well as the ALIModel Penal Code 5 201.6(3), (4) (Tent. Draft No. 9, 1959) 

(guoted at Gregg v. Georgia, supra at 193 n.44). The ABA standards do not include specific provisions for capital punishment. See ABA 

Standards, Sentencing Alternatives and Procedures 5 18-1.1 (1979). This rule is not based on any specific state statute. It should be noted, 

however, that this rule provides a greater measure of guidance for members than does the Georgia procedure which has been upheld by the 

Supreme Court. In Georgia, once a statutory aggravating factor has been proved, the statute leaves the decision whether to adjudge death entirely 

to the jury. See Ga. Code AM. $5 17-10-30,17-10-31(1982). (In Georgia, once an aggravating circumstance has beenproved, the burden may 

effectively be on the defendant to show why death should not be adjudged. See Coker v. Georgia, supra at 590-91 .) Subsection (b)(4)(B) of this 

rule supplies a standard for that decision. Many state statutes adopt a similar balancing test, although the specific standard to be applied varies. 

See, e.g., Ark. Stat. Ann. 5 41-1302 (1977). C' Barclay v. Florida, supra. See also Analysis, subsection (b)(4)(B), infia. 

(b) Procedure. Subsection (1) is intended to avoid surprise and trial delays. Cf: Ga. Code Ann. 5 17-10-2(a) (1982). Consistent with R.C.M. 

701, its purpose is to put the defense on notice of issues in the case. This permits thorough preparation, and makes possible early submission of 

requests to produce witnesses or evidence. At the same time, this subsection affords some latitude to the prosecution to provide later notice, 

recognizing that the exigencies of proof may prevent early notice in some cases. Tnis is permissible as long as the defense is not harmed; ordinarily 

a continuance or recess will prevent such prejudice. 

There is no requirement to plead the aggravating circumstances under subsection (c). (Statutory aggravating circumstances are elements of 

the offense, and must be pleaded and proved; see, e.g., Article 85 (time of war); Article 118(1) (premeditation)). Notice of the aggravating 

circumstances under this subsection may be accomplished like any other notice in these rules. Note that under R.C.M. 701(a)(5) the trial counsel 

is required to inform the defense of evidence the prosecution intends to introduce at sentencing. 

Subsection (2) makes clear that the prosecution may introduce evidence in aggravation under R.C.M. 1001(b)(4). Note that depositions are 

not admissible for this purpose. See Article 49(d). 

Subsection (3) is based on Eddings v. Oklahoma and Locken v. Ohio, both supra. C' Jurek v. Texas, supra. The accused in courts-martial 

generally has broad latitude to introduce matters in extenuation and mitigation (see R.C.M. 1001(c)) although the form in which they are 

introduced may depend on several circumstances (see R.C.M. 1001(e)). This subsection reemphasizes that latitude. The rule is not intended to 

strip the military judge of authority to control the proceedings. Eddings and Lockett should not be read so broadly as to divest the military judge of 

the power to determine what is relevant (see Mil. R. Evid. 401,403) or to decide when a witness must be produced (seeR.C.M. 1001(e)). Those 

cases, and this subsection, stand for the proposition that the defense may not be prevented from presenting any relevant circumstance in 

extenuation or mitigation. 

Subsection (4)(A) establishes the second "threshold" which must be passed before death may be adjudged. The requirement that at least one 

specific aggravating circumstance be found beyond a reasonable doubt is common to many state statutory schemes for capital punishment. See, 

e.g.,Del. Code Ann. tit. 11,s 4209(d) (1977); Ark. Stat. Ann. 5 41-1302 (1977); Ill. Ann. Stat. Ch. 38,s 9-l(f) (Smith-Hurd 1979); La. Code 

Crim. Proc. § 905.3 (West Supp. 1982); Md. AM. Code Art. 27 8 413(d) (1982); Ind. Code Ann. § 35-5C2-9(a) (Bums 1979). See generally 

United States v. Matthews, supra. 

Subsection (4)(B) establishes guidance for the members in determining whether to adjudge death, once one or more aggravating factors have 

been found. 

Note that under this subsection any aggravating matter may be considered in determining whether death or some other punishment is 

appropriate. Thus, while some factors may alone not be sufficient to authorize death they may be relevant considerations to weigh against 

extenuating or mitigating evidence. See Barclay v. Florida and Zant v. Stephens, both supra. See generally R.C.M. 1001(b)(4). 

The rule does not list extenuating or mitigating circumstances as do some states. Some mitigating circumstances are listed in R.C.M. 

1001(c)(l) and (f)(l). See also R.C.M. 100 1 (f)(2)(B). No list of extenuating or mitigating circumstances can safely be considered exhaustive. See 

Eddings v. Oklahoma andLockett v. Ohio, both supra; c$ Jurek v. Texas, supra. Moreover, in many cases, whether a matter is either extenuating or 

mitigating depends on other factors. For example, the fact that the accused was under the influence of alcohol or drugs at the time of the offense 

could be viewed as an aggravating or an extenuating circumstance. Whether a matter is extenuating or mitigating is to be determined by each 

member, unless the military judge finds that a matter is extenuating or mitigating as a matter of law (see e.g., R.C.M. 1001(c)(l) and (f)(l)) and so 

instructs the members. In contrast to subsection (b)(4)(A) there is no requirement that the members agree on all aggravating, extenuating, and 

mitigating circumstances under subsection (4)(B) in order to adjudge death. Each member must be satisfied that any aggravating circumstances, 

including those found under subsection (4)(A) substantially outweigh any extenuating or mitigating circumstances, before voting to adjudge 

death. 

The test is not a mechanical one. C' Zant v. Stephens, supra. The latitude to introduce evidence in extenuation and mitigation, the 

requirement that the military judge direct the members' attention to evidence in extenuation and mitigation and instruct them that they must 

consider it, and the freedom of each member to independently find and weigh extenuating and mitigating circumstances all ensure that the 

members treat the accused "with that degree of uniqueness of the individual" necessary in a capital case. See Lockett v. Ohio, supra at 605. Thus 

each member may place on the scales any circumstance "'which in fairness and mercy, may be considered as extenuating or reducing the degree' 

of moral culpability or punishment." Coker v. Georgia, supra at 591 (1977) (quoting instructions by the trial judge). See also Witherspoon v. 

Illinois, 391 U.S. 510 (1968) (concerning disqualifications of jurors in capital cases based on attitude toward the death penalty). 

Subsection (5) makes clear that evidence introduced on the merits, as well as during sentencing proceedings, may be considered in 

determining the sentence. 

Subsection (6) requires additional instructions in capital cases. See also R.C.M. 1005. In determining which aggravating circumstances on 
App. 21, R.C.M. 1004(c) APPENDIX 21 

which to instruct, the military judge would refer to those of which the trial counsel provided notice. Even if such notice had been given, a failure to 

introduce some evidence from which the members could find an aggravating circumstance would result in no instruction being given on that 

circumstance. Cf: R.C.M. 917. The last sentence in this subsection is based on Eddings v. Oklahoma and Lockett v. Ohio, both supra. 

Subsection (7) is based on Article 52(b)(l). The requirement for a separate specific finding of one or more aggravating circumstances is new, 

and is designed to help ensure that death will not be adjudged in an inappropriate case. Subsection (8) operates as a check on this procedure. 

(c) Aggravating circumstances. The lists of aggravating circumstances under the laws of the states retaining capital punishment were examined 

and used as guidance for formulating the aggravating circumstances listed here. Those jurisdictions do not include certain military capital 

offenses, of course, such as desertion, mutiny, misbehavior as a guard, nor do they address some of the unique concerns or problems of military 

life. Therefore, several circumstances here are unique to the military. These circumstances, which apply to rape and murder, except as specifically 

noted, are based on the determination that death is not grossly disproportionate for a capital offense under the code when such circumstances exist, 

and that the death penalty contributes to accepted goals of punishment in such cases. As to proportionality, the aggravating circumstances together 

ensure that death will not be adjudged except in the most serious capital offenses against other individuals or against the nation or the military 

order which protects it. As to goals of punishment, in addition to specifically preventing the most dangerous offenders from posing a continuing 

danger to society, the aggravating circumstances recognize the role of general deterrence, especially in a combat setting. See United States v. 

Matthaus, supra at 368; United States v. Gay, supra at 605-06 (Hodgson, C.J., concurring). 

In a combat setting, the potentiality of the death penalty may be the only effective deterrent to offenses such as disobedience, desertion, or 

misbehavior. The threat of even very lengthy confinement may be insufficient to induce some persons to undergo the substantial risk of death in 

combat. At the same time, the rule ensures that even a servicemember convicted of such very serious offenses in wartime will notbe sentenced to 

death in the absence of one or more of the aggravating circumstances. 

In some cases proof of the offense will also prove an aggravating circumstance. See, e.g., Article 99 and subsection (c)(l) of this rule. Note, 

however, that the members would have to return a specific finding under this rule of such an aggravating circumstance before a sentence of death 

couldbe based on it. This ensures a unanimous finding as to that circumstance. A finding of not guilty does not ensure such unanimity. See Article 

52(a)(2); United States v. Matthaus, supra at 379-80; United States v. Gay, supra at 600. The prosecution is not precluded from presenting 

evidence of additional aggravating circumstances. 

Subsection (1) reflects the serious effect of a capital offense committed before or in the presence of the enemy. "Before or in the presence of 

the enemy" is defined in paragraph 23, Part IV. Note that one may be "before or in the presence of the enemy" even when in friendly temtory. 

This distinguishes this subsection from subsection (6). 

Subsections (2) and (3) are based on the military's ultimate purpose: protection of national security. That this interest may be a basis for the 

death penalty is well established. See, e.g, United States v. Rosenberg, 195 F.2d 583 (2d Cir. 1952), cert. denied, 344 U.S. 838 (1952). The 

definition of national security, which appears at the end of subsection (c), is based on Exec. Order No. 12065 5 6104 (June 28, 1978), 43 Fed. 

Reg. 28949, as amended by Exec. Order No. 12148 (July 19,1979), 44 Fed. Reg. 43239, and Exec. Order No. 12163 (Sept. 29,1979), 44 Fed. 

Reg. 56673, reprinted at 50 U.S.C.A. 5 401 (West Supp. 1982). The second ("includes") phrase is based on Joint Chiefs of StaffPublication 1, 

Dictionary of Military and Associated Terms 228 (1 Jul79). Note that not all harm to national security will authorize death. Vially allmilitary 

activities affect national security in some way. C' Cole v. Young, 351 U.S. 536 (1956); United States v. Trom'er, 9 M.J. 337 (C.M.A. 1980). 

Substantial damage is required to authorize death. The discussion provides examples of substantial damage. Rape and murder may be aggravated 

under subsection (2) because the offender intended to harm national security or a mission, system, or function affecting national security, by the 

capital offense. lntent to harm the mission, system, or function will suffice. It must be shown, however, that regardless of whether the accused 

intended to affect national security, the mission, system, or function must have been such that had the intended damage been effected, substantial 

damage to national security would have resulted. 

Subsection (4) is similar to an aggravating circumstance in many states. See, e.g., Neb. Rev. Stat. 5 29-2523(1)(f) (1979); Miss. Code. 

Ann. 5 99-19-101(5)(c) (1981 Supp.); Ga. Code Ann. 5 17-10-30(b) (1982). This circumstance applies to all capital offenses (except rape) 

under the code; rape is excluded based on Coker v. Georgia, supra. 

Subsection (5) reflects the special need to deter the offender who would desert or commit any other capital offense to avoid hazardous duty. 

Moreover, the effect such conduct has on the safety of others (including the offender's replacement) and the success of the mission justifies 

authorizing death. Note that this circumstance applies to all capital offenses, including rape and murder. The person who murders or rapes in order 

to avoid hazardous duty is hardly less culpable than one who "only" us away. 

Subsection (6) is based on the special needs and unique difficulties for maintaining discipline in combat zones and occupied territories. 

History has demonstrated that in such an environment rape and murder become more tempting. At the same time the need for order in the force, in 

order not to encourage resistance by the enemy and to pacify the populace dictates that the sanctions for such offenses be severe. Once again, in a 

combat environment, confinement, even of a prolonged nature, may be an inadequate deterrent. 

Subsections (7) and (8) are based generally on examination of the aggravating circumstances for murder in various states. Subsection (7)(A) 

is intended to apply whether the sentence is adjudged, approved, or ordered executed, as long as, at the time of the offense, the term of 

confinement is at least 30 years or for life. The possibility of parole or early release because of "good time" or similar reasons does not affect the 

determination. Subsection (7)(F) is based on 18 U.S.C. $8 351, 11 14, and 1751. Subsection (7)(G) is modified to include certain categories of 

military persons. Subsection (7)(I) uses a more objective standard than the Georgia provision found wanting in Godfiey v. Georgia, supra. 

Subsection (9) is based on the holding in Coker v. Georgia, supra, that the death penalty is unconstitutional for the rape of an adult woman, at 

least where she is not otherwise harmed. 

Subsection (10) is based on Article 18. See also Trial ofthe Major War Criminals Before the International Military Tribunal (International 
ANALYSIS App. 21, R.C.M. 1006(e) 

Military Tribunal, Nurenberg, 1947); Trials ofwar CriminalsBefore theNurenberg Military Tribunals, (U.S. Gov't Printing Off., 1950-5 1); In re 

Yamashita, 327 U.S. 1 (1946). 

(d)Spying. This subsection is based on Article 106. Congress recognized that in case of spying, no separate sentencing determination is required. 

See Article 52(a)(l). The rule provides for sentencing proceedings to take place, so that reviewing authorities will have the benefit of any 

additional relevant information. 

The Supreme Court has held a mandatory death penalty to be unconstitutional for murder. Woodson v. North Carolina, supra; Roberts 

(Stanislaus) v. Louisiana, supra. It has not held that a mandatory death penalty is unconstitutional for any offense. See Roberts (Harry) v. 

Louisiana, supra at 637 n. 5. 

In holding a mandatory death sentence for murder to be unconstitutional, the plurality in Woodsonemphasized that the prevailing view before 

Furman v. Georgia, supra, was decidedly against mandatory death for murder. Contrarily, death has consistently been the sole penalty for spying 

in wartime since 1806. See W. Winthrop, Military Law and Precedents 765-66 (2d ed. 1920 reprint). Before 1920 the statute making spying in 

time of war triable by court-martial and punishable by death was not part of the Articles of War Id. See A.W. 82 (Act of 4 June 1920, Ch. 227,41 

Stat. 804). 

(e) Otherpenalties. The second sentence of this subsection is based on the second sentence of the thud paragraph of paragraph 126a of MCM, 

1969 (Rev.), which was inturnbasedon JAGA 1946110582; SPJGA 19451951 1; UnitedStates v. Brewster, CM 238138,24 B.R. 173 (1943). As to 

the third sentence of this subsection, see also UnitedStates v. Bigger, 2 U.S.C.M.A. 297,8 C.M.R. 97 (1953); W. Winthrop, supra at 428,434. 

Rule 1005. Instructions on sentence 

Introduction. Except as noted below, this rule and the discussion are taken from paragraph 76b(l) of MCM, 1969 (Rev.). 

(a)In general. Regarding the discussion see generally United States v. Mamaluy, 10 U.S.C.M.A. 102, 10&07,27 C.M.R. 176,180-81 (1959). 

See also United States v. Lania, 9 M. J. 100 (C.M.A. 1980) (use of general deterrence); United States v. Smalls, 6 M. J. 346 (C.M.A. 1979); 

United States v. Slaton, 6 M.J. 254 (C.M.A. 1979) (mental impairment as matter in mitigation); UnitedStates v. Keith, 22 U.S.C.M.A. 59,46 

C.M.R. 59 (1972) (recommendation for clemency); United States v. Condon, 42 C.M.R. 421 (A.C.M.R. 1970) (effect of accused's absence); 

United States v. Larochelle, 41 C.M.R. 915 (A.F.C.M.R. 1969) (Vietnam service). 

(b) When given. See Fed. R. Crim. P. 30 and paragraph 74e of MCM, 1969 (Rev.). 

(c)Requests for instructions. See Fed. R. Crim. P. 30 and United States v. Neal, 17 U.S.C.M.A. 363,38 C.M.R. 161 (1968). The discussion is 

based on Fed. R. Crim P. 30 and paragraph 73d of MCM, 1969 (Rev.). 

(d) How given. See Analysis, R.C.M. 921(d). 

(e) Required instructions. The reference in the fourth sentence of the discussion of subsection (1) to rehearing or new or other trial is based on 

paragraph 81d(l) of MCM, 1969 (Rev.). The second sentence of the first paragraph and the second paragraph of the discussion to (1) are based on 

UnitedStates v. Henderson, 11 M.J. 395 (C.M.A. 1981). The last clause of subsection (3) is based on UnitedStates v. Givens, 11 M.J. 694,696 

(N.M.C.M.R. 1981). The discussion under subsection (4) is based on the thud sentence of paragraph 76b(l) of MCM, 1969 (Rev.) and on United 

States v. Davidson, 14 M. J. 8 1 (C.M. A. 1982). 

(f) Waiver. This subsection is based on Fed. R. Crim. P. 30. 

Rule 1006. Dellberations and voting on sentence 

Introduction. Except as noted below, this rule and the discussion are based on Articles 51 and 52 and on paragraphs 76b(2) and (3) of MCM, 

1969 (Rev.). 

(a) In general. The first sentence is based on the first sentence of paragraph 76(b)(l) of MCM, 1969 (Rev.). 

(b)Deliberations. See Analysis, R.C.M. 921(b) concerning the second, thud, and fourth sentences of this subsection. See also United States v. 

Lampani, 14 M. J. 22 (C.M.A. 1982). 

(c) Proposal ofsentences. The second clause of the second sentence of this subsection is new and recognizes the unitary sentence concept. See 

United States v. Gutierrez, 11 M.J. 122, 123 (C.M.A. 1981). See generally Jackson v. Taylor, 353 U.S. 569 (1957). 

(d) Voting. As to subsection (3)(A) see United States v. Hendon, 6 M.J. 171, 172-73 (C.M.A. 1979); United States v. Cafes, 39 C.M.R. 474 

(A.B.R. 1968). 

As to subsection (d)(5), the second sentence of the thud paragraph of paragraph 76b(2) of MCM, 1969 (Rev.) has been limited to Article 118 

offenses because, unlike Article 106, findings on an Article 118 offense do not automatically determine the sentence and do not require a 

unanimous vote. See Articles 52(a)(l) and (2). Thus a separate vote on sentence for an Article 106 offense is unnecessary. 

As to subsection (d)(6) see UnitedStates v. Jones, 14 U.S.C.M.A. 177,33 C.M.R. 389 (1963). The reference to no punishment was added to 

recognize this added alternative. 

(e)Action after sentence is reached. See United States v.Justice, 3 M.J. 45 1,453 (C.M.A. 1977). The second paragraph of the discussion is based 

on the second sentence of paragraph 76c. 
App. 21, R.C.M. 1007(a) APPENDIX 21 

Rule 1007. Announcement of sentence 

Introduction. Except as noted below, this rule and the discussion are based on paragraph 76c of MCM, 1969 (Rev.) 

(a) Ingeneral. The discussion is based on UnitedStates v. Henderson, 11 M.J. 395 (C.M.A. 1981); UnitedStates v. Crawford, 12 U.S.C.M.A. 

203, 30 C.M.R. 203 (1961). 

The requirement that the sentence announcement include a reference to the percentage of agreement or an affirmation that voting was by 

secret written ballot has been deleted. Article 53 does not require such an announcement, and when instructions incorporating such matters are 

given, the court-martial "is presumed to have complied with the instructions given them by the judge." United States v. Ricketts, 1 M.J. 78,82 

(C.M.A. 1975). See United States v. Jenkins, 12 M.J. 222 (C.M.A. 1982). C' United Stares v. Hendon, 6 M.J. 171, 173-74 (C.M.A. 1979). 

(c) Polling prohibited. See Analysis, Rule 923(e). 

Rule 1008. Impeachment of sentence 

This rule is based onMil. R. Evid. 606(b) and UnitedStates v. West, 23 U.S.C.M.A. 77,48 C.M.R. 548 (1974). See UnitedStates v.Bishop, 

11 M.J. 7 (C.M.A. 1981). 

Rule 1009. Reconsideration of sentence 

Introduction. Except as noted below, this rule and discussion are based on Articles 52(c) and 62 and paragraphs 76c and d of MCM, 1969 

(Rev.). 

(c)Initiation ofreconsideration. Subsection (2)(A) was added to remedy the situation addressed in United States v. Taylor,9 M. J. 848 (N.C.M.R. 

1980). It is intended that the military judge have the authority to reduce a sentence imposed by that judge based on charged circumstances, as long 

as the case remains under that judge's jurisdiction. Since this action "undercuts the review powers" (Id.at 850) only to the extent that it reduces the 

upper limits available to reviewing authorities, there is no reason to prevent the military judge from considering additional matters before 

finalizing the sentence with authentication. Furthermore, granting the military judge power to reconsider an announced sentence recognizes that 

when sitting without members, the judge performs the same functions as the members. See Article 16. 

The procedures in subsection (2)(B) are necessary corollaries of those set out in the fifth and sixth sentences of paragraph 76c, MCM, 1969 

(Rev.) adapted to the rules for reconsideration. This clarifies that a formal vote to reconsider is necessary when reconsideration is initiated by the 

military judge. MCM, 1969 (Rev.) was unclear in this regard. See United Stares v. King, 13 M. J. 838 (A.C.M.R.), pet. denied, 14 M. J. 232 

(1982). 

Subsection (3) is based on Article 62(b) and United States v. Jones, 3 M.J. 348 (C.M.A. 1977). 

(d) Procedure with members. Subsection (1) is based on the general requirement for instructions on voting procedure. See United States v. 

Johnson, 18 U.S.C.M.A. 436,40 C.M.R. 148 (1969). It applies whether reconsideration is initiated by the military judge or a member, since 

R.C.M. 1006(d)(3)(A) does not pennit further voting after a sentence is adopted and there is no authority for the military judge to suspend that 

provision. 

Rule 1010. Advice concerning post-trial and appellate rights 

This rule is based on S. Rep. No. 53,98th Cong., 1st Sess. 18 (1983). See also Articles 60,61,64,66,67, and 69. It is similar to Fed. R. 

Crim. P. 32(a)(2), but is broader in that it applies whether or not the accused pleaded guilty. This is because the accused's post-trial and appellate 

rights are the same, regardless of the plea, and because the powers of the convening authority and the Court of Military Review to reduce the 

sentence are important even if the accused has pleaded guilty. 

Rule 101 1. Adjournment 

This rule is based on paragraph 776 of MCM, 1969 (Rev.). 

CHAPTER XI. POST-TRIAL PROCEDURE 

Rule 1101. Report of result of trial; post-trial restraint; deferment of confinement 

(a) Report of the result oftrial. This subsection is based on the first two sentences of paragraph 44e of MCM, 1969 (Rev.) 

(b)Post-trial confinement. Subsection (1) is based on Article 57(b) and on the last sentence of paragraph 44e of MCM, 1969 (Rev.). Subsection (I) 

makes clear that confinement is authorized when death is adjudged, even if confinement is not also adjudged. See United States v. Matthews, 13 

M.J.501 (A.C.M.R), rev'd on other grounds, 16 M.J. 354 (C.M.A. 1983). See also R.C.M. 1004(e) and Analysis. 

Subsection (2) is based on Article 57 and on paragraph 21d of MCM, 1969 (Rev.). The person who orders the accused into confinement need 

not be theconveningauthority. SeeReedv, Ohman, 19U.S.C.M.A. 110,41 C.M.R. llO(1969);Levy v. Resor, 17U.S.C.M.A. 135,37 C.M.R. 

399 (1967). The convening authority may withhold such authority from subordinates. 

Article 57(b) provides that a sentence to confinement begins to run as soon as the sentence is adjudged. The mechanism for an accused to 

seek release from confinement pending appellate review is to request deferment of confinement under Article 57(d). See S. Rep. No. 1601,90th 

Cong., 2d Sess. 13-14 (1968); Pearson v. Cox, 10 M.J. 317 (C.M.A. 1981). See subsection (c) of this rule. 
App. 21, R.C.M. 1007(a) APPENDIX 21 

Rule 1007. Announcement of sentence 

Introduction. Except as noted below, this rule and the discussion are based on paragraph 76c of MCM, 1969 (Rev.). 

(a)In general. The discussion is based on UnitedStates v. Henderson, 11 M.J. 395 (C.M.A. 1981); United States v. Crawford, 12 U.S.C.M.A. 

203, 30 C.M.R. 203 (1961). 

The requirement that the sentence announcement include a reference to the percentage of agreement or an affirmation that voting was by 

secret written ballot has been deleted. Article 53 does not require such an announcement, and when instructions incorporating such matters are 

given, the court-martial "is presumed to have complied with the instructions given them by the judge." UnitedStates v. Ricketts, 1 M.J. 78, 82 

(C.M.A. 1975). See United States v. Jenkins, 12 M.J. 222 (C.M.A. 1982). Ct United States v. Hendon, 6 M.J. 171, 173-74 (C.M. A. 1979). 

(c) Polling prohibited. See Analysis, Rule 923(e). 

Rule 1008. Impeachment of sentence 

This rule is basedonMil. R. Evid. 606(b) and UnitedStatesv. West, 23 U.S.C.M.A. 77,48 C.M.R. 548 (1974). See UnitedStatesv. Bishop, 

11 M.J. 7 (C.M.A. 1981). 

Rule 1009. Reconsideration of sentence 

Introduction. Except as noted below, this rule and discussion are based on Articles 52(c) and 62 and paragraphs 76c and d of MCM, 1969 

(Rev.). 

(c)Initiation afreconsideration. Subsection (2)(A) was added to remedy the situation addressed in United States v. Taylor, 9 M .J. 848 (N.C.M.R. 

1980). It is intended that the military judge have the authority to reduce a sentence imposed by that judge based on charged circumstances, as long 

as the case remains under that judge's jurisdiction. Since this action "undercuts the review powers" (Id.at 850) only to the extent that it reduces the 

upper limits available to reviewing authorities, there is no reason to prevent the military judge from considering additional matters before 

finalizing the sentence with authentication. Furthermore, granting the military judge power to reconsider an announced sentence recognizes that 

when sitting without members, the judge performs the same functions as the members. See Article 16. 

The procedures in subsection (2)(B) are necessary corollaries of those set out in the fifth and sixth sentences of paragraph 76c, MCM, 1969 

(Rev.) adapted to the rules for reconsideration. This clarifies that a formal vote to reconsider is necessary when reconsideration is initiated by the 

military judge. MCM, 1969 (Rev.) was unclear in this regard. See United States v. King, 13 M.J. 838 (A.C.M.R.), pet. denied, 14 M.J. 232 

(1982). 

Subsection (3) is based on Article 62(b) and United States v. Jones, 3 M.J. 348 (C.M.A. 1977). 

(d) Procedure with members. Subsection (1) is based on the general requirement for instructions on voting procedure. See United States v. 

Johnson, 18 U.S.C.M.A. 436,40 C.M.R. 148 (1969). It applies whether reconsideration is initiated by the military judge or a member, since 

R.C.M. 1006(d)(3)(A) does not permit further voting after a sentence is adopted and there is no authority for the military judge to suspend that 

provision. 

Rule 1010. Advice concerning post-trial and appellate rights 

This rule is based on S. Rep. No. 53,98th Cong., 1st Sess. 18 (1983). See also Articles 60,61,64,66,67, and 69. It is similar to Fed. R. 

Crim. P. 32(a)(2), but is broader in that it applies whether or not the accused pleaded guilty. This is because the accused's post-trial and appellate 

rights are the same, regardless of the plea, .and because the powers of the convening authority and the Court of Military Review to reduce the 

sentence are important even if the accused has pleaded guilty. 

Rule 101 1. Adjournment 

This rule is based on paragraph 77b of MCM, 1969 (Rev.). 

CHAPTER XI. POST-TRIAL PROCEDURE 

Rule 1101. Report of result of trial; post-trial restraint; deferment of confinement 

(a) Report of the result of trial. This subsection is based on the first two sentences of paragraph 44e of MCM, 1969 (Rev.). 

@) Post-trial conjnement. Subsection (1) is based on Article 57(b) and on the last sentence of paragraph 44e of MCM, 1969 (Rev.). Subsection (1) 

makes clear that confinement is authorized when death is adjudged, even if confinement is not also adjudged. See United States v. Matthews, 13 

M.J. 501 (A.C.M.R), rev'd on other grounds, 16 M.J. 354 (C.M.A. 1983). See also R.C.M. 1004(e) and Analysis. 

Subsection (2) is based on Article 57 and on paragraph 21d of MCM, 1969 (Rev.). The person who orders the accused into confinement need 

not be the convening authority. See Reed v. Ohman, 19 U.S .C.M.A. 110,41 C.M.R. 110 (1969); Levy v. Resor, 17 U.S.C.M.A. 135,37 C.M.R. 

399 (1967). The convening authority may withhold such authority from subordinates. 

Article 57(b) provides that a sentence to confinement begins to run as soon as the sentence is adjudged. The mechanism for an accused to 

seek release from confinement pending appellate review is to request deferment of confinement under Article 57(d). See S. Rep. No. 1601, 90th 

Cong., 2d Sess. 13-14 (1968); Pearson v. Cox, 10 M.J. 317 (C.M.A. 1981). See subsection (c) of this rule. 
ANALYSIS App. 21, R.C.M. 11 02(d) 

The purpose of subsection (2) is to provide a prompt, convenient means for the command to exercise its prerogative whether to confine an 

accused when the sentence of the court-martial authorizes it. The commander may decide that, despite the sentence of the court-martial, the 

accused should not be immediately confined because of operational requirements or other reasons. A decision not to confine is for the convenience 

of the command and does not constitute deferment of confinement. See Article 57(d). An accused dissatisfied with the decision of the commander 

may request deferment in accordance with subsection (c) of this rule. 

The fist sentence of the second paragraph of paragraph 20d(l) of MCM, 1969 (Rev.) has been deleted. That sentence provided for post-trial 

"arrest, restriction, or confinement to insure the presence of an accused for impending execution of a punitive discharge." The authority for such 

restraint was based on Article 13 which authorized arrest or confinement for persons awaiting the result of trial. See Reed v. Ohman, supra; United 

States v. Teage, 3 U.S.C.M.A. 317, 12 C.M.R. 73 (1953). The Military Justice Amendments of 1981, Pub. L. No. 97-81,§ 3,95 Stat. 1087 

(1981), deleted the language concerning such detention pending the result of trial. 

(c)Deferment ofconfinement. Subsection (1) is based on the first sentence of paragraph 88f of MCM, 1969 (Rev.). The discussion is based on the 

second and third sentences of paragraph 88f of MCM, 1969 (Rev.). 

Subsection (2) is based on the first sentence in Article 57(d) and the third sentence of paragraph 88f of MCM, 1969 (Rev.). The requirement 

that the request be written is based on the third paragraph of paragraph 88f of MCM, 1969 (Rev.). 

Subsection (3) is based on Article 57(d) and United States v. Brownd, 6 M. J. 338 (C.M.A. 1978). See also ABA Standards, CriminalAppeals 

5 21-2.5 (1978); Trotmanv. Haebel, 12M.J. 27 (C.M.A. 1981); Pearsonv. Cox, supra;Stokesv. UnitedStates, 8M.J. 819 (A.F.C.M.R. 1979), 

pet. denied, 9 M.J. 33 (1980). See also the first paragraph of paragraph 88f of MCM, 1969 (Rev.). The penultimate sentence recognizes the 

standard of review exercised by the Courts of Military Review, the Court of Military Appeals, and other reviewing authorities. See United States v. 

Brownd, supra. Because the decision to deny a request for deferment is subject to judicial review, the basis for denial should be included in the 

record. 

Subsection (4) is based on the fourth paragraph of paragraph 88f of MCM, 1969 (Rev.). 

Subsection (5) is based on the fifth paragraph of paragraph 88f of MCM, 1969 (Rev.) and\on Pearson v. Cox, supra. 

Subsection (6) modifies the last two paragraphs of paragraph 88f of MCM, 1969 (Rev.) to conform to the amendment of Article 71(c), see 

Pub. L. No. 9%209,§ 5(e), 97 Stat. 1393 (1983). The amendment of Article 71(c) permits confinement to be ordered executed in the convening 

authority's initial action in all cases. Article 57(d) is intended to permit deferment after this point, however. See S. Rep. No. 1601,90th Cong., 2d 

Sess. 13-14 (1968). Therefore subsection (6) specifically describes four ways in which deferment may be terminated. The result is consistent with 

paragraph 88f of MCM, 1969 (Rev.) and with Collier v. United States, 19 U.S.C.M.A. 5 1 1,42 C.M.R. 1 13 (1970). Under subsection (A) the 

convening authority must specify in the initial action whether approved confinement is ordered executed, suspended, or deferred. See R.C.M. 

1107(f)(4)(B),(E). Under subsection (B), deferment may be terminated at any time by suspending the confinement. This is because suspension is 

more favorable to the accused than deferment. Subsections (C) and (D) provide other specific points at which deferment may be terminated. 

Deferment may be granted for a specified period (e.g., to permit the accused to take care of personal matters), or for an indefinite period (e.g., 

completion of appellate review). Even if confinement is deferred for an indefinite period, it may be rescinded under subsection (D). When 

deferment is terminated after the initial action, it will be either suspended or executed. See subsection (7). The first sentence in the discussion is 

based on Article 57(d). The second, third, and fourth sentences are based on the last two paragraphs of paragraph 88f of MCM, 1969 (Rev.). 

Subsection(7) is based on the last sentence of Article 57(d) and on Collier v. United States, supra. Note that the information on which the 

rescission is based need not be new information, but only information which was not earlier presented to the authority granting deferment. Cf: 

Collier v. United States, supra. Note also that the deferment may be rescinded and the accused confined before the accused has an opportunity to 

submit matters to the rescinding authority. See United States v. Daniels, 19 U.S.C.M.A. 5 18, 42 C.M.R. 120 (1970). 

Subsection (7)(C) is added based on the amendment of Article 71(c). Confinement after the initial action is not "served." It is deferred, 

suspended, or executed. Therefore, after deferment is rescinded, it is ordered executed (if not suspended). Subsection (7)(C) permits the accused 

an opportunity to submit matters before the order of execution, which precludes deferment under Article 57(d), is issued. 

Rule 1102. Post-trial sessions 

Introduction. This rule is based on Article 60(e) and on paragraphs 80c and 86d of MCM, 1969 (Rev.), all of which concern proceedings in 

revision. This rule also expressly authorizes post-trial Article 39(a) sessions to address matters not subject to proceedings in revision which may 

affect legality of findings of guilty or the sentence. See Unitedstates v. Mead, 16 M.J. 270 (C.M.A. 1983); United States v. Brickey, 16 M.J. 258 

(C.M.A. 1983); United States v. Witherspoon, 16 M.J. 252 (C.M.A. 1983). Cf: United States v. DuBay, 17 U.S.C.M.A. 147,37 C.M.R. 41 1 

(1967). 

(a)In general. This subsection is based on Article 60(e), on the first sentence of paragraph 80c of MCM, 1969 (Rev.), which indicated that a courtmartial could conduct proceedings in revision on its own motion, and on paragraph 86d of MCM, 1969 (Rev.). 

(b)Purpose. Subsection (1) is based on the second sentence of paragraph 86d of MCM, 1969 (Rev.). The discussion of subsection (I) is based on 

the last paragraph of paragraph 80d of MCM, 1969 (Rev.) and on UnitedStates v. Steck, 10 M.J. 412 (C.M.A. 1981); UnitedStates v. Barnes, 21 

U.S.C.M.A. 169, 44 C.M.R. 223 (1972); United States v. Hollis, 11 U.S.C.M.A. 235, 29 C.M.R. 51 (1960). As to subsection (2), see the 

Introduction, Analysis, this rule. The discussion of subsection (2) is based on United States v. Anderson, supra. 

(c) Matters not subject to post-trial sessions. This subsection is taken from Article 60(e)(2). 

(d) When directed. This subsection is based on paragraph 86d of MCM, 1969 (Rev.). See also Article 60(e); United States v. Williamson, 4 M. J. 

708 (N.C.M.R. 1977), pet. denied, 5 M.J. 219 (1978). Faragraph 86d indicated that a proceeding in revision could be used to "make the record 
App. 21, R.C.M. 1102(e) APPENDIX 21 

show the true proceedings." A certificate of correction is the appropriate mechanism for this, so the former provision is deleted. Note that a posttrial session may be directed, when authorized by an appropriate reviewing authority (e.g., the supervisory authority, or the Judge Advocate 

General), even if some or all of the sentence has been executed. 

(e) Procedure. Subsection (1) is based on paragraph 80b of MCM, 1969 (Rev.). See also R.C.M. 505 and 805 and Analysis. Good cause for 

detailing a different military judge includes unavailability due to physical disability or transfer, and circumstances in which inquiry into 

misconduct by a military judge is necessary. 

Subsection (2) is based on paragraph 80c of MCM, 1969 (Rev.). Subsection (2) is more concise than its predecessor; it leaves to the military 

judge responsibility to determine what specific action to take. 

Subsection (3) is based on paragraph 80d of MCM, 1969 (Rev.) 

Rule 11 03. Preparation of record of trial 

(a) In general. This subsection is based on Article 54(c) and on the first sentence of paragraph 82a of MCM, 1969 (Rev.). 

(b) General courts-martial. Subsection (l)(A) is based on Article 38(a). In Federal civilian courts the reporter is responsible for preparing the 

record of trial. 28 U.S.C. 5 753; Fed. R. App. P. 1 l(b). The responsibility of the ma1 counsel forpreparation of the recordis established by Article 

38(a), however. Subsection (l)(B) is based on the second paragraph of paragraph 82a of MCM, 1969 (Rev.). See also UnitedStates v. Anderson, 

12 M.J. 195 (C.M.A. 1982). 

Subsection (2)(A) is based on Article 54(a) and the first sentence of paragraph 82b(l) of MCM, 1969 (Rev.). CJ Article 19. 

Subsection (2)(B) is based on Article 54(c) and on the third sentence of paragraph 82b(l) of MCM, 1969 (Rev.). See S. Rep. No. 53, 98th 

Cong., 1st Sess. 26 (1983); H.R. Rep. No. 491,81st Cong., 1st Sess. 27 (1949); S. Rep. No. 486,81st Cong., 1st Sess. 23-24 (1949). See also 

Articles 19 and 66; UnitedStates v. Whitney,23 U.S.C.M.A. 48,48 C.M.R. 519 (1974); UnitedStates v. Thompson, 22 U.S.C.M.A. 448,47 

C.M.R. 489 (1973); United States v. Whitman, 3 U.S.C.M.A. 179, 11 C.M.R. 179 (1953). The exception in the stem of subsection (2)(B) is 

based on Article l(14). See Analysis, subsection Cj) of this rule. 

The first paragraph of the discussion under subsection (2)(B) is based on the third sentence of paragraph 82b(l), and paragraphs 82b(2) and 

(3) of MCM, 1969 (Rev.). See Analysis, R.C.M. 802 concerning the second paragraph in the discussion. The last paragraph in the discussion is 

based on the sixth sentence of paragraph 82b(l) of MCM, 1969 (Rev.). 

Subsection (2)(C) is based on the fourth sentence of paragraph 82b(l) of MCM, 1969 (Rev.). See Article 54(c)(2). In Federal civilian courts a 

verbatim record is generally required in all cases (although not all portions of the record are necessarily transcribed). See 28 U.S.C. 5 753(b); Fed. 

R. Crim. P. ll(g) and 12(g); and Fed. R. App. P. 10. See also Fed. R. Crim. P. 5.l(c). The Constitution requires a record of sufficient 

completeness to allow consideration of what occurred at trial, but not necessarily a verbatim transcript. Mayer v. Chicago, 404 U.S. 189 (1971); 

Draper v. Washington,372 U.S. 487 (1963); Coppedge v. UnitedStates, 369 U.S. 438 (1962); United States v. Thompson, supra. A summarized 

record is adequate for the less severe sentences for which it is authorized. 

Subsection (2)(D) is new. It lists items which are, in addition to a transcript of the proceedings, required for a complete record. See United 

States v. McCullah, 1 1 M. J. 234 (C.M. A. 1981). 

Failure to comply with subsection (b)(2) does not necessarily require reversal. Rather, an incomplete or nonverbatim record (when required) 

raises a presumption of prejudice which the Government may rebut. See United States v. Eichenlaub, 11 M. J. 239 (C.M.A. 1981); UnitedStatesv. 

McCullah, supra; UnitedStates v. Boxdale, 22 U.S.C.M.A. 414,47 C.M.R. 35 (1973). As to whether an omission is sufficiently substantial to 

raise the presumption, see United States v. Gray, 7 M.J. 296 (C.M.A. 1979); United States v. Sturdivant, 1 M.J. 256 (C.M.A. 1976); United 

States v. Webb,23 U.S.C.M.A. 333,49 C.M.R. 667 (1975); UnitedStates v. Boxdale, supra; UnitedStatesv. Richardson, 21 U.S.C.M.A. 383, 

45 C.M.R. 157 (1972); United States v. Weber, 20 U.S.C.M.A. 82,42 C.M.R. 274 (1970); United States v. Donati, 14 U.S.C.M.A. 235,34 

C.M.R. 15 (1963); United States v. Nelson, 3 U.S.C.M.A. 482, 13 C.M.R. 38 (1953). 

Subsection (3) is based on paragraph 82b(5), the last sentence of paragraph 84c, paragraph 85d, the third sentence of the third paragraph of 

paragraph 88f; the penultimate sentence of paragraph 88g, and the last sentence of paragraph 91c of MCM, 1969 (Rev.). See also S. Rep. No. 53, 

98th Cong., 1st Sess. 26 (1983); R.C.M. 1106(fl and Analysis; and United States v. Lott, 9 M.J. 70 (C.M.A. 1980). 

(c) Special courts-martial. This subsection is based on Articles 19 and 54(c) and paragraph 83 of MCM, 1969 (Rev.). 

(e)Acquittal; termination prior tojndings. This subsection is based on the fifth sentence of paragraph 82b(l) and the third sentence of paragraph 

83b of MCM, 1969 (Rev.). The language of paragraph 82b(l) which referred to termination "with prejudice to the Government" has been 

modified. If the court-martial terminates by reason of mistrial, withdrawal, or dismissal of charges, a limited record is authorized, whether or not 

the proceedings could be reinstituted at another court-martial. 

(f) Loss of notes or recordings ofthe proceedings. This subsection is based on paragraph 82i of MCM, 1969 (Rev.). See also United States v. 

Lashley, 14 M.J. 7 (C.M. A. 1982); United States v. Boxdale, supra. 

(g) Copies ofthe record oftrial. Subsection (1) is based on the first paragraph of paragraph 49b(2) of MCM, 1969 (Rev.). The trial counsel is 

responsible for preparation of the record (see Article 38(a)), although, as paragraph 49b(2) of MCM, 1969 (Rev.) indicated, ordinarily the court 

reporter actually prepares the record. In subsection (A), the number of copies required has been increased from two to four to conform to current 

practice. 

App. 21, R.C.M. 1 104(b) APPENDIX 21 

(b) Service. Subsection (l)(A) is based on Article 54(d) and the first sentence of paragraph 82g(l) of MCM, 1969 (Rev.). See also H. R. Rep. No. 

2498, 81st Cong., 1st Sess. 1048 (1949). 

Subsection (l)(B) is based on the third through fifth sentences of the first paragraph of paragraph 82g(l) of MCM, 1969 (Rev.). 

Subsection (l)(C) is based on H. R. Rep. No. 549,98th Cong., 1st Sess. 15 (1983); UnitedStates v. Cruz-Rijos, supra. Service of the record 

of trial is now effectively a prerequisite to further disposition of the case. See Article 60(b) and (c)(2). As a result, inability to serve the accused 

could bring the proceeding to a halt. Such a result cannot have been intended by Congress. Article 60(b) and (c)(2) are intended to ensure that the 

accused and defense counsel have an adequate opportunity to present matters to the convening authority, and that they will have access of the 

record in order to do so. Cong. Rec. 5 5612 (daily ed. April 28, 1983) (statement of Sen. Jepsen). As a practical matter, defense counsel, rather 

than the accused, will perform this function in most cases. See Article 38(c). Consequently, service of the record on defense counsel, as provided 

in this subsection, fulfills this purpose without unduly delaying further disposition. See United States v. Cruz-Rijos, supra. Note that if the 

accused had no counsel ,or if the accused's counsel could not be served, the convening authority could take action without serving the accused 

only if the accused was absent without authority. See R.C.M. 1105(d)(4) and Analysis. 

Subsection (l)(D) is based on the third and fourth paragraphs of paragraph 82g(1) of MCM, 1969 (Rev.). 

(c) LOSS qfrecord. This subsection is based on paragraph 82h of MCM, 1969 (Rev.). Note that if more than one copy of the record is authenticated 

then each may serve as the record of trial, even if the original is lost. 

(d) Correction qfrecord after authentication; certijcate of correction. Subsection (1) and the discussion are based on paragraph 86c of MCM, 

1969 (Rev.). See also the first paragraph of paragraph 95 of MCM, (Rev.). Subsection (2) is new and is based on United States v. Anderson, 12 M. J. 

195 (C.M.A. 1982). See also ABA Standards, Special Functions qfthe Trial Judge 5 61.6 (1978). The discussion is based on United States v. 

Anderson, supra. Subsection (3) is based on the second paragraph of paragraph 82g(l) and paragraph 86c of MCM, 1969 (Rev.). 

(e) Forwarding. This subsection is based on Article 60. The code no longer requires the convening authority to review the record. However, a 

record of trial must be prepared before the convening authority takes action. See Article 60(b)(2) and (3), and (d). Therefore, it is appropriate to 

forward the record, along with other required matters, to the convening authority. This subsection is consistent with the first two sentences of 

paragraph 84a of MCM, 1969 (Rev.). 

Rule 1105. Matters submltted by the accused 

(a) In general. This subsection is based on Articles 38(c) and 60(b). See also paragraphs 48k(2) and 77a of MCM, 1969 (Rev.). 

(b) Matters which may be submitted. This subsection is based on Articles 38(c) and 60(b). The post-trial procedure as revised by the Military 

Justice Act of 1983, Pub. L. No. 98-209,97 Stat. 1393 (1983) places a heavier responsibility on the defense to take steps to ensure that matters it 

wants considered are presented to the convening authority. Therefore this subsection provides guidance as to the types of matters which may be 

submitted. See Article 38(c). See also paragraphs 48k(3) and 77a of MCM, 1969 (Rev.). Note that the matters the accused submits must be 

forwarded to the convening authority. See UnitedStates v. Siders, 15 M. J. 272 (C.M.A. 1983). As to the last paragraph in the discussion, see also 

Mil. R. Evid. 606(b) and Analysis; UnitedStatesv. Bishop, 11 M.J. 7 (C.M.A. 1981); UnitedStatesv. West, 23U.S.C.M.A. 77,48C.M.R. 458 

(1974); United States v. Bourchier. 5 U.S.C.M.A. 15, 17 C.M.R. 15 (1954). 

(c) Timeperiods. This subsection is based on Article 60(b). Subsection (4) clarifies the effect of post-trial sessions. A re-announcement of the 

same sentence would not start the time period anew. Subsection (5) is based on H. R. Rep. No. 549, 98th Cong., 1st Sess. 15 (1983). 

(d) Waiver. Subsection (1) is based on Article 60(c)(2). Subsection (2) is based on Article 60(c)(2). This subsection clarifies that the defense may 

submit matters in increments by reserving in writing its right to submit additional matters within the time period. In certain cases this may be 

advantageous to the defense as well as the Government, by permitting early consideration of such matters. Otherwise, if the defense contemplated 

presenting additional matters, it would have to withhold all matters until the end of the period. Subsection (3) is based on Article 60(b)(4). 

Subsection (4) ensures that the accused cannot, by an unauthorized absence, prevent further disposition of the case. Cf:United States v. Schreck, 

10 M.J. 226 (C.M.A. 1983). Note that if the accused has counsel, counsel must be served a copy of the record (see R.C.M. 1104(b)(l)(C)) and 

that the defense will have at least 7 days from such service to submit matters. Note also that the unauthorized absence of the accused has no effect 

on the 30,20, or 7 day period from announcement of the sentence within which the accused may submit matters (except insofar as it may weigh 

against any request to extend such a period). The discussion notes that the accused is not required to raise matters, such as allegations of legal error, 

in order to preserve them for consideration on appellate review. 

Rule 1106. Recommendation of the staff judge advocate or legal officer 

(a) In general. This subsection is based on Article 60(d), as amended, see Military Justice Act of 1983, Pub. L. No. 98-209,s 5(a)(l), 97 Stat. 

1393 (1983). The first paragraph of paragraph 85a of MCM, 1969 (Rev.) was similar. 

(b) Disqualification. This subsection is based on Article 6(c) and on the second paragraph of paragraph 85a of MCM, 1969 (Rev.). Legal officers 

have been included in its application based on Article 60(d). The discussion notes additional circumstances which have been held to disqualify a 

staff judge advocate. The first example is based on United Srates v. Thompson, 3 M. J. 966 (N.C.M.R. 1977), rev'd on other grounds, 6 M. J. 106 

(C.M.A. 1978),petition dismissed, 7 M. J. 477 (C.M.A. 1979). The second example is based on UnitedStates v. Choice, 23 U.S.C.M.A. 329,49 

C.M.R. 663 (1975). See also United States v. Cansdale, 7 M.J. 143 (C.M.A. 1979); UnitedStates v. Conn, 6M.J. 351 (C.M.A. 1979); United 

States v. Reed, 2 M.J. 64(C.M. A. 1976). The third example is based on United States v. Conn and United States v. Choice, both supra. Cf: Articles 

l(9); 6(c); 22(b); 23(b). The fourth example is based on United States v. Collins, 6 M.J. 256 (C.M.A. 1979); United States v. Engle, 1 M.J. 387 

(C.M.A. 1976). See also UnitedStates v. Newman, 14 M.J. 474 (C.M.A. 1983) as to the disqualification of a staff judge advocate or convening 

authority when immunity has been granted to a witness in the case. 
- - 

ANALYSIS App. 21, R.C.M. 1107(b) 

(c) When the convening authority does not have a staffjudge advocate or legal @cer or thatperson is disqualified. Subsection (1) is based on the 

third paragraph of paragraph 85a of MCM, 1969 (Rev.). Legal officers have been included in its application based on Article 60(d). Subsection (2) 

is new. It recognizes the advantages of having the recommendation prepared by a staff judge advocate. This flexibility should also permit more 

prompt disposition in some cases as well. 

(d)Fonn andcontentofrecomme&tion. This subsection is based on Article 60(d) and on S. Rep. No. 53,98th Cong., 1st Sess. 20 (1983). As to 

the subsection (I), see also Article 60(c). Subsections (3), (4), and (5) conform to the specific guidance in S. Rep. No. 53, supra. Subsection (6) is 

based on S. Rep. No. 53, 98th Cong., 1st Sess. 21 (1983). The recommendation should be a concise statement of required and other matters. 

Summarization of the evidence and review for legal error is not required. Therefore paragraph 85b of MCM, 1969 (Rev.) is deleted. 

Paragraph 85c of MCM, 1969 (Rev.) is also deleted. That paragraph stated that the convening authority should explain any decision not to 

follow the staff judge advocate's recommendation. See also United States v. Harris, 10 M. J. 276 (C.M. A. 198 1); United States v. Dirson, 9 M. J. 

72 (C.M. A. 1980); United States v. Keller, 1 M. J. 159 (C.M.A. 1976). The convening authority is no longer required to examine the record for 

legal or factual sufficiency. The convening authority's action is solely a matter of command prerogative. Article 60(c). Therefore the convening 

authority is not obligated to explain a decision not to follow the recommendation of the staff judge advocate or legal officer. 

(e) No findings @guilty. This subsection is based on Articles 60 and 63. When no findings of guilty are reached, no action by the convening 

authority is required. Consequently, no recommendation by the staffjudge advocate or legal officer is necessary. The last paragraph of paragraph 

85b of MCM, 1969 (Rev.), which was based on Article 61 (before it was amended), was similar. 

(f) Service ofrecommendation defense counsel; defense response. This subsection is based on Article 60(d). See also United States v. Goode, 1 

M.J. 3 (C.M.A. 1975). 

Subsection (1) is based on Article 60(d). See also United States v. Hill, 3 M.J. 295 (C.M.A. 1977); United States v. Goode, supra. 

Subsection (2) makes clear who is to be served with the post-trial review. See United States v. Robinson, 11 M.J. 218, 223 n.2 (C.M.A. 

1981). This issue has been a source of appellate litigation. See e.g., United States v. Kincheloe, 14 M.J. 40 (C.M.A. 1982); United States v. 

Babcock, 14 M. J. 34 (C.M.A. 1982); UnitedStates v. Robinson, supra; UnitedStates v. Clark, 11 M. J. 70 (C.M.A. 1981); UnitedStates v. Elliot, 

11 M.J. 1 (C.M.A. 1981); UnitedStatesv. Marcoux, 8M.J. 155 (C.M.A. 1980); UnitedStatesv. Brown, 5 M.J. (C.M.A. 1978); UnitedStatesv. 

Davis, 5 M. J. 45 1 (C.M. A. 1978); United States v. Iverson, 5 M. J. 440 (C.M. A. 1978); United States v. Annis, 5 M.J. (C.M. A. 1978). The last 

sentence in this subsection is based on United States v. Robinson, United States v. Brown, and UnitedStates v. Iverson, allsupra. The discussion is 

based on United States v. Robinson, supra. 

Subsection (3) is based on UnitedStates v. Babcock, supra; UnitedStates v. Cruz, 5 M.J. 286 (C.M.A. 1978); United States v. Cruz-Rijos, 1 

M.J. 429 (C.M.A. 1976). Ordinarily the record will have been provided to the accused under R.C.M. 1104(b). 

Subsections (4) and (5) are based on Article 60(d). See also United States v. Goode, supra. See United States v. McAdoo, 14 M.J. 60 

(C.M.A. 1982). 

Subsection (6) is based on Article 60(d). See also S. Rep. No. 53,98th Cong., 1st Sess. 21 (1983); United States v. Morrison, supra; United 

States v. Barnes, 3 M.J. 406 (C.M.A. 1982); United States v. Goode, supra. But see UnitedStates v. Burroughs, supra; UnitedStates v. Moles, 10 

M.J. 154 (C.M.A. 1981) (defects not waived by failure to comment). 

Subsection (7) is based on United States v. Narine, 14 M. J. 55 (C.M.A. 1982). 

Rule 1107. Action by convening authority 

(a) Who may take action. This subsection is based on Article 60(c). It is similar to the first sentence of paragraph 84b and the first sentence of 

paragraph 84c of MCM, 1969 (Rev.) except insofar as the amendment of Article 60provides otherwise. See Military Justice Act of 1983, Pub. L. 

No. 98-209, 9 5(a)(l), 97 Stat. 1393 (1983). The first paragraph in the discussion is based on the last two sentences of paragraph 84a of MCM, 

1969 (Rev.). The second paragraph of the discussion is based on the second and third sentences of paragraph 84c of MCM, 1969 (Rev.); United 

States v. Conn, 6 M.J. 351 (C.M.A. 1979); UnitedStates v. Reed, 2 M.J. 64 (C.M.A. 1976); UnitedStates v. Choice, 23 U.S.C.M.A. 329,49 

C.M.R. 663 (1975). See also United States v. James, 12 M.J. 944 (N.M.C.M.R.),pet. granted, 14 M.J. 235 (1982). The reference in the third 

sentence of paragraph 84c of MCM, 1969 (Rev.) to disqualification of a convening authority because the convening authority granted immunity to 

a witness has been deleted. See UnitedStates v. Newman, 14 M. J. 474 (C.M.A. 1983). Note that although Newman held that aconvening authority 

is not automatically disqualified from taking action by reason of having granted immunity, the Court indicated that a convening authority may be 

disqualified by granting immunity under some circumstances. 

(b) General considerations. Subsection (1) and the discussion is based on Article 60(c). See also S. Rep. No. 53,98th Cong., 1st Sess. 19 (1983). 

Subsection (2) is based on Article 60(b) and (c). 

Subsection (3)(A)(i) is based on Article 60(a). Subsection (3)(A)(ii) is based on Article 60(d). Subsection (3)(A)(iii) is based on Article 

60(b) and (d). Subsection (3)(B) is based on Article 60 and on S. Rep. No. 53, 98th Cong., 1st Sess. 19-20 (1983). The second sentence in 

subsection (3)(B)(iii) is also based on the last sentence of paragraph 856 of MCM, 1969 (Rev.). See also United States v. Vara, 8 U.S.C.M.A. 

651, 25 C.M.R. 155 (1958); United States v. Lanford, 6 U.S.C.M.A. 371, 20 C.M.R. 87 (1955). 

Subsection(4) is based on Article 60(c)(3). See also Article 60(e)(3). This subsection is consistent with paragraph 86b(2) of MCM, 1969 

(Rev.) except that it does not refer to examining the record for jurisdictional error. 

Subsection (5) is based on the second paragraph of paragraph 124 of MCM, 1969 (Rev.). See also United States v. Korzeniewski, 7 
App. 21, R.C.M. 1107(c) APPENDIX 21 

U.S.C.M.A. 314,22C.M.R. 104 (1956); UnitedStates v. Washington, 6 U.S.C.M.A. 114,19 C.M.R. 240 (1955); UnitedStatesv. Phillips, 13 

M.J. 858 (N.M.C.M.R. 1982). 

(c)Action onfindings. This subsection is based on Article 60(c)(2). Subsection (2)(B) is also based on Article 60(e)(l) and (3). The first sentence 

in the discussion is based on Hearings on H.R. 2498Before a Subcomm. ofthe House Comm. on Armed Services; 81st Cong., 1st Sess. 1 182-85 

(1949). The second sentence in the discussion is based on Article 60(e)(3). The remainder of the discussion is based on S. Rep. No. 53, 98th 

Cong., 1st Sess. 21 (1983). 

(d) Action on the sentence. Subsection (1) is based on Article 60(c) and is similar to the first paragraph of paragraph 88a of MCM, 1969 (Rev.). 

The first paragraph of the discussion is based on paragraph 88a of MCM, 1969 (Rev.). The second paragraph of the discussion is based on Jones v. 

Ignutius, 18U.S.C.M.A. 7,39 C.M.R. 7 (1968); UnitedStates v. Brown, 13 U.S.C.M.A. 333,32 C.M.R. 333 (1962); UnitedStatesv. Prow, 13 

U.S.C.M.A. 63,32 C.M.R. 63 (1962); UnitedStates v. Johnson, 12 U.S.C.M.A. 640,31 C.M.R. 226 (1962); UnitedStates v. Christenson, 12 

U.S.C.M.A. 393,30 C.M.R. 393 (1961); United States v. Williams, 6 M.J. 803 (N.C.M.R.), pet. dismissed, 7 M.J. 68 (C.M.A. 1979); United 

States v. Berg, 34 C.M.R. 684 (N.B.R. 1963). See also United States v. McKnight, 20 C.M.R. 520 (N.B .R. 1955). 

Subsection (2) is based on Article 60(c) and S. Rep. No. 53,98th Cong., 1st Sess. 19 (1983). The second sentence is also based on United 

States v. Russo, 11 U.S.C.M.A. 352,29 C.M.R. 168 (1960). The second paragraph of the discussion is based on the third paragraph of paragraph 

88b of MCM, 1969 (Rev.). 

Subsection (3) is based on Articles 19 hd 54(c)(l) and on the third sentence of paragraph 82b(l) of MCM, 1969 (Rev.). 

(e) Ordering rehearing or other trial. Subsection (l)(A) is based on Article 60(e), and on paragraph 92a of MCM, 1969 (Rev.). Note that the 

decision of the convening authority to order a rehearing is discretionary. The convening authority is not required to review the record for legal 

enon. Authority to order a rehearing is, therefore, "designed solely to provide an expeditious means to correct errors that are identified in the 

course of exercising discretion under Article 60(c)." S. Rep. No. 53,98th Cong., 1st Sess. 21 (1983). Subsection (l)(B) is based on Article 60(e). 

As to subsection (l)(B)(ii), see S. Rep. No. 53, supra at 22. Subsection (l)(B)(ii) is based on the second sentence of the second paragraph of 

paragraph 92a of MCM, 1969 (Rev.). The discussion is based on the second sentence of the fourth paragraph of paragraph 9% of MCM, 1969 

(Rev.). Subsection (l)(C)(i) is based on Article 62(e)(3) and on the first sentence of the third paragraph of paragraph 9% of MCM, 1969 (Rev.). 

Subsection (l)(C)(ii) and the discussion are based on Article 60(e)(3) and on the first paragraph of paragraph 92a of MCM, 1969 (Rev.). 

Subsection (l)(C)(ii) is based on the first sentence of the tenth paragraph of paragraph 9% of MCM, 1969 (Rev.). Subsection (l)(D) is based on the 

sixth paragraph of paragraph 9% of MCM, 1969 (Rev.). Subsection (l)(E) is based on the eighth paragraph of paragraph 92a of MCM, 1969 

(Rev.). Subsection (l)(F)is based on the third sentence of the third paragraph of paragraph 92a of MCM, 1969 (Rev.). Because of the modification 

of Article 71 (see R.C.M. 11 13) and because the convening authority may direct a rehearing after action in some circumstances (see subsection 

(e)(l)(B)(ii) of this rule), the language is modified. The remaining parts of paragraph 9242, concerning procedures for a rehearing, are now covered 

in R.C.M. 810. 

Subsection (2) is based on paragraph 926 of MCM, 1969 (Rev.). See also paragraph 89c(l) of MCM, 1969 (Rev.). If the accused was 

acquitted of a specification which is later determined to have failed to state an offense, another trial for the same offense would be barred. United 

States v. Ball, 163 U.S. 662 (1896). It is unclear whether an acquittal by a jurisdictionally defective court-martial bars retrial. See United States v. 

Culver. 22 U.S.C.M.A. 141, 46 C.M.R. 141 (1973). 

(f)Contents 4action and related matters. Subsection (1) is based on paragraph 89a of MCM, 1969 (Rev.). 

Subsection (2) is based on paragraph 89b of MCM, 1969 (Rev.). The second sentence is new. It is intended to simplify the procedure when a 

defect in the action is discovered in Article 65(c) review. There is no need for another authority to formally act in such cases if the convening 

authority can take corrective action. The accused cannot be harmed by such action. A convening authority may still be directed to take corrective 

action when necessary, under the third sentence. "Erroneous" means clerical error only. See subsection (g) of this rule. This new sentence is not 

intended to allow a convening authority to change a proper action because of a change of mind. 

Subsection (3) is based on paragraph 89c(2) of MCM, 1969 (Rev.) The provision in paragraph 89c(2) of MCM, 1969 (Rev.) that disapproval 

of the sentence also constitutes disapproval of the findings unless otherwise stated is deleted. The convening authority must expressly indicate 

which findings, if any, are disapproved in any case. See Article 60(c)(3). The discussion is based on paragraph 89c(2) of MCM, 1969 (Rev.). 

Subsection (4)(A) is based on paragraph 89c(3) of MCM, 1969 (Rev.). The first sentence of paragraph 89c(2) is no longer accurate. Since no 

action on the findings is required, any disapproval of findings must be expressed. Subsection (4)(B) is taken from paragraph 89c(4) of MCM, 1969 

(Rev.). Subsection (4)(C) is taken from paragraph 89c(5) of MCM, 1969 (Rev.). Subsection (4)(D) is based on paragraph 89c(6) of MCM, 1969 

(Rev.). However, because that portion of the sentence which extends to confinement may now be ordered executed when the convening authority 

takes action (see Article 71(c)(2); R.C.M. 11 13(b)), temporary custody is unnecessary in such cases. Therefore, this subsection applies only 

when death has been adjudged and approved. Subsection (4)(E) is taken from paragraph 89c(7) of MCM, 1969 (Rev.). Subsection (4)(F) is new. 

See Analysis, R.C.M. 305(k). See also United States v. Suzuki, 14 M.J. 491 (C.M.A. 1983). Subsection (4)(G) is taken from paragraph 89c(9) of 

MCM, 1969 (Rev.). Subsection (4)(H) is modified based on the amendment of Article 71 which pennits a reprimand to be ordered executed from 

action, regardless of the other components of the sentence. Admonition has been deleted. See R.C.M. 1003(b)(l). 

Subsection (5) is based on paragraph 89c(8) of MCM, 1969 (Rev.). See also R.C.M. 810(d) and Analysis. The provision in paragraph 89c(8) 

requiring that the accused be credited with time in confinement while awaiting a rehearing is deleted. Given the procedures for imposition and 

continuation of restraint while awaiting trial (see R.C.M. 304 and 305), there should not be a credit simply because the trial is a rehearing. 

(g) Incomplete, ambiguous, or erroneous action. This subsection is based on paragraph 95 of MCM, 1969 (Rev.). See generally United States v. 

Wt, 10 M.J. 266 (C.M.A. 1981); United States v. Lower, 10 M.J. 263 (C.M.A. 1981). 
ANALYSIS App. 21, R.C.M. 11 10(e) 

(h) Service on accused. This subsection is based on Article 61(a), as amended, see Military Justice Act of 1983, Pub. L. No. 98-209,s 5(b)(l), 

97 Stat. 1393 (1983). 

Rule 1108. Suspension of execution of sentence 

This rule is based on Articles 71(d) and 74, and paragraphs 88e and 97a of MCM, 1969 (Rev.). See also Fed. R. Crim. P. 32(e). The second 

paragraph of the discussion to subsection (b) is based on United States v. Stonesifer, 2 M. J. 212 (C.M.A. 1977); United States v. Williams, 2 M.J. 

74 (C.M.A. 1976); UnitedStates v. Occhi, 2 M.J. 60 (C.M.A. 1976). Subsection (c) is new and basedon Article 71; UnitedStatesv. Lallande, 22 

U.S.C.M.A. 170,46 C.M.R. 170 (1973); UnitedStates v. May, 10 U.S.C.M.A. 258,27 C.M.R. 432 (1959). Cj 18 U.S.C. 5 3651 ("upon such 

terms and conditions as the court deems best"). The notice provisions are designed to facilitate vacation when that becomes necessary. See the 

Analysis, R.C.M. 1 109. The language limiting the period of suspension to the accused's current enlistment has been deleted. See UnitedStates v. 

Thomas, 45 C.M.R. 908 (N.C.M.R. 1972). C' United States v. Clardy, 13 M. J. 308 (C.M.A. 1982). See also subsection (e) of this rule. 

~uj'e1109. Vacation of suspension of sentence 

(a) In general. This subsection is based on Article 72 and paragraph 976 of MCM, 1969 (Rev.). 

(b) Timeliness. This subsection is based on the fourth paragraph of paragraph 97b of MCM, 1969 (Rev.); United States v. Pells, 5 M.J. 380 

(C.M.A. 1978); United States v. Rozycki, 3 M.J. 127, 129 (C.M.A. 1977). 

(c) Confinement qfprobationer pending vacationproceedings. This subsection is new and based on Gagnon v. Scarpelli, 41 1 U.S. 778 (1973); 

Morrissey v.Brewer, 408 U.S. 471 (1972); UnitedStatesv.Bingham, 3 M.J. I19 (C.M.A. 1977). It is consistent with Fed. R. Crim. I? 32. I(a)(l). 

Note that if the actual hearing on vacation under subsection (d)(l) or (e)(3) and (4) is completed within the specified time period, a separate 

probable cause hearing need not be held. 

(d) Violation @suspended general court-martial sentence or qfa suspended special court-martial sentence including a bad-conduct discharge. 

This subsection is based on Article 72(a) and (b); the first two paragraphs of paragraph 97b of MCM, 1969 (Rev.); United States v. Bingham, 

supra; United States v. Rozycki, supra. See also Fed. R. Crim. P. 32.1(a)(2). 

(e) Vacation qf suspended special court-martial sentence not including a bad-conduct discharge or qf a suspended summary court-martial 

sentence. This subsection is based on Article 72(c); United States v. Bingham, supra; United States v. Rozycki, supra. 

Fed. R. Crim. P. 32.l(b) is not adopted. That rule requires a hearing before conditions of probation may be modified. Modification is seldom 

used in the military. Because a probationer may be transferred or change duty assignments as a normal incident of military life, a commander 

should have the flexibility to make appropriate changes in conditions of probation without having to conduct a hearing. This is not intended to 

permit conditions of probation to be made substantially more severe without due process. At a minimum, the probationer must be notified of the 

changes. 

Rule 11 10. Waiver or wlthdrawal of appellate revlew 

Introduction. This rule is new and is based on Article 61, as amended, see Military Justice Act of 1983, Pub. L. No. 98-209,s 5(b)(l), 97 

Stat. 1393 (1983). The rule provides procedures to ensure that a waiver or withdrawal of appellate review is a voluntary and informed choice. See 

also Appendices 19 and 20 for forms. See S. Rep. No. 53, 98th Cong., 1st Sess. 22-23 (1983). 

(a) In general. This subsection is based on Article 61. The discussion is also based on Articles 64 and 69(b). 

(b)Right to counsel. This subsection is based on Article 61(a). Although Article 61(b) does not expressly require the signature of defense counsel 

as does Article 61(a), the same requirements should apply. Preferably counsel who represented the accused at trial will advise the accused 

concerning waiver, the appellate counsel (if one has been appointed) will do so concerning withdrawal. This subsection reflects this preference. It 

also recognizes, however, that this may not always be practicable; for example, the accused may be confined a substantial distance from counsel 

who represented the accused at trial when it is time to decide whether to waive or withdraw appeal. In such cases, associate counsel may be 

detailed upon request by the accused. See R.C.M. 502(d)(l) as to the qualifications of defense counsel. Associate counsel is obligated to consult 

with at least one of the counsel who represented the accused at trial. In this way the accused can have the benefit of the opinion of the trial defense 

counsel even if the defense counsel is not immediately available. Subsection (2)(C) provides for the appointment of substitute counsel when, for 

the limited reasons in R.C.M. 505(d)(2)(B), the accused is no longer represented by any trial defense counsel. Subsection (3) contains similar 

provisions concerning withdrawal of an appeal. Note that if the case is reviewed by the Judge Advocate General, there would be no appellate 

counsel. In such cases, subsection (3)(C) would apply. Subsection (6) clarifies that here, as in other circumstances, a face-to-face meeting 

between the accused and counsel is not required. When necessary, such communication may be by telephone, radio, or similar means. See also 

Mil. R. Evid. 51 1(b). The rule, including the opportunity for appointment of associate counsel, is intended to permit face-to-face consultation 

with an attorney in all but the most unusual circumstances. Face-to-face consultation is strongly encouraged, especially if the accused wants to 

waive or withdraw appellate review. 

(c) Compulsion, coercion, inducement prohibited. This subsection is intended to ensure that any waiver or withdrawal of appellate review is 

voluntary. See S. Rep. No. 53, supra at 22-23; Hearings on S. 2521 Before the Subcomm. on Manpower andPersonne1 ofthe Senate Comm. on 

Armed Services, 97th Cong., 1st Sess. 78, 128 (1982); United States v. Mills, 12 M. J. 1 (C.M.A. 1981). See also R.C.M. 705(c)(l)(B). 

(d)Form ofwaiver or withdrawal. This subsection is based on Article 60(a) and on S . Rep. No. 53, supra at 23. Requiring not only the waiver but a 

statement, signed by the accused, that the accused has received essential advice concerning the waiver and that it is voluntary should protect the 

Government and the defense counsel against later attacks on the adequacy of counsel and the validity of the waiver or withdrawal. 

(e) To whom submitted. Subsection (1) is based on Article 60(a). Article 60(b) does not establish where a withdrawal is filed. Subsection (2) 
App. 21, R.C.M. 11 10(f) APPENDIX 21 

establishes a procedure which should be easy for the accused to use and which ensures the withdrawal will be forwarded to the proper authority. A 

waiver or withdrawal of appeal is filed with the convening authority or authority exercising general court-martial jurisdiction for administrative 

convenience. See Hearings on S. 2521, supra at 31. 

(f) Time limit. Subsection (1) is based on Article 60(a). Subsection (2) is based on Article 60(b). See also subsection (g)(3) and Analysis, below. 

(g)Effect @waiver qfwitMrawa1, substantial compliance required. Subsection (1) is based on Article 60(c). Subsections (2) and (3) are based on 

Article 64. Subsection(3) also recognizes that, once an appeal is filed (i.e., not waived in a timely manner) there may be a point at which it may 

not be withdrawn as of right. Cf: Sup. Ct. R. 53; Fed. R. App. P.42; Hammett v. Texas, 448 U.S. 725 (1974); Shellman v. U.S. Lines, Inc., 528 F. 

2d 675 (9th Cir. 1975), cert. denied, 425 U.S. 936 (1976). Subsection (4) is intended to protect the integrity of the waiver or withdrawal procedure 

by ensuing compliance with this rule. The accused should be notified promptly if a purported waiver or withdrawal is defective. 

Rule 11 11. Disposition of the record of trial after actlon 

This rule is based generally on paragraph 91 of MCM, 1969 (Rev.), but is modified to conform to the accused's right to waive or withdraw 

appellate review and to the elimination of supervisory review and of automatic review of cases affecting general and flag officers. See Articles 61, 

64, 65, 66(b). Some matters in paragraph 91 of MCM, 1969 (Rev.) are covered in other rules. See R.C.M. 1103(b)(3)(F); 1104(b)(l)(B). 

Rule 1112. Supewlsory review of summary courts-martial and certain speclal courts-martlal 

This rule is based on Articles 64and 65(b), as amended, see Military Justice Act of 1983, Pub. L. No. 98-209, $0 6(d)(l), (7)(a)(l), 97 Stat. 

1393 (1983). 

Rule 11 13. Execution of sentences 

Introduction. Fed. R. Crim. P. 38 is inapplicable. The execution of sentences in the military is governed by the code. See Articles 57 and 71 

See also Articles 60, 61, 64, 65, 66, and 69. 

(a)In general. This subsection is based on Article 71(c)(2) and the first paragraph of paragraph 98 of MCM, 1969 (Rev.). See also Articles 60,61, 

64, 65, 66, and 67. 

@) Punishments which the convening authority may order executed in the initial action. This subsection is based on Article 71(d). See also the 

first paragraph of paragraph 88d(l) of MCM, 1969 (Rev.). Note that under the amendment of Article 71 (see Pub. L. No. 98-209,s 5(e), 97 Stat. 

1393 (1983)), the convening authority may order parts of a sentence executed in the initial action, even if the sentence includes other parts (e.g., a 

punitive discharge) which cannot be ordered executed until the conviction is final. 

(c) Punishments which the convening authority may not order executed in the initial action. This subsection is based on the sources noted below. 

The smcture has been revised to provide clearer guidance as to who may order the various types of punishments executed. Applicable service 

regulations should be consulted, because the Secretary concerned may supplement this rule, and may under Article 74(a) designate certain 

officials who may remit unexecuted portions of sentences. See also R.C.M. 1206. 

Subsection (1) is based on Article 71(c). See also Article 64(c)(3). The last two sentences of this subsection are based on S. Rep. No. 53,98th 

Cong., 1st Sess. 25 (1983). 

Subsection (2) is based on Article 71(b). 

Subsection (3) is based on Articles 66(b), 67(b)(l), and 71(a). 

(d) Other considerations concerning execution @sentences. Subsection (1) is based on the third paragraph of paragraph 126a of MCM, 1969 

(Rev.). The second paragraph of paragraph 88d(l) of MCM, 1969 (Rev.) is deleted as unnecessary. 

Subsection (2)(A) is based on Articles 14 and 57(b) and paragraph 97c of MCM, 1969 (Rev.). See also paragraph 126jof MCM, 1969 (Rev.). 

Subsection(2)(B) is based on Article 58(b) and the third paragraph of paragraph 126j of MCM, 1969 (Rev.). Subsection (2)(C) is based on Article 

58(a) and paragraph 93 of MCM, 1969 (Rev.). Note that if the Secretary concerned so prescribes, the convening authority need not designate the 

place of confinement. Because the place of confinement is determined by regulations in some services, the convening authority's designation is a 

pro forma matter in such cases. The penultimate sentence in subsection (2)(C) is based on Article 12 and on paragraph 125 of MCM, 1969 (Rev.). 

The last sentence in subsection (2)(C) is based on 10 U.S.C. 5 951. See the second sentence of paragraph 186(3) of MCM, 1969 (Rev.). 

Subsection (3) is based on paragraph 126h(3) of MCM, 1969 (Rev.), but it is modified to avoid constitutional problems. See Bearden v. 

Georgia, -U.S. 33 Cr. L. Rptr. 3091 (1983); Tatev. Short, 401 U.S. 395 (1971); Williamsv. Illinois, 399U.S. 235 (1970). 

See also United States v. Slubowski, 5 M.J. 882 (N.C.M.R. 1978), affd,7 M.J. 461 (1979); UnitedStates v. Vinyard, 3 M.J. 551 (A.C.M.R.), 

pet. denied, 3 M.J. 207 (1977); UnitedStates v. Donaldson, 2 M.J. 605 (N.C.M.R. 1977), affd, 5M.J. 212 (1978); UnitedStates v. Martinez, 2 

M.J. 1123 (C.G. C.M.R. 1976); United States v. Kehrli, 44 C.M.R. 582 (A.F.C.M.R. 1971), pet. denied, 44 C.M.R. 940 (1972); ABA 

Standards, Sentencing Alternatives and Procedures 8 18-2.7 (1979). 

Subsection (4) is new. See Article 57(c). 

Subsection (5) is based on the last paragraph of paragraph 125 of MCM, 1969 (Rev.). 

Paragraph 88d(3) of MCM, 1969 (Rev.) is deleted based on the amendment of Articles 57(a) and 71(c)(2) which eliminated the necessity for 

application or deferment of forfeitures. Forfeitures always may be ordered executed in the initial action. 
ANALYSIS App. 21, R.C.M. 1202(b) 

Rule 11 14. Promulgating orders 

(a) In general. Subsections (1) and (2) are based on the first paragraph of paragraph 90a of MCM, 1969 (Rev.). Subsection (3) is based on 

paragraph 90e of MCM, 1969 (Rev.). This rule is consistent in purpose with Fed. R. Crim. P. 32(b)(l). 

@) By whom issued. Subsection (1) is based on paragraph 90b(l) of MCM, 1969 (Rev.) except that the requirement that the supervisory authority, 

rather than the convening authority, issue the promulgating order in certain special courts-martial has been deleted, since action by the 

supervisory authority is no longer required. See Article 65. The convening authority now issues the promulgating order in all cases. See generally 

UnitedStates v. Shulthise, 14 U.S.C.M.A. 31,33 C.M.R. 243 (1963) (actions equivalent to publication). Subsection (2) is based on paragraphs 

90b(2) and 107 of MCM, 1969 (Rev.). 

(c) Contents.Subsection (1) is based on Appendix 15 of MCM, 1969 (Rev.) but modifies it insofar as the only item which must be recited verbatim 

in the order is the convening authority's action. The charges and specifications should be summarized to adequately describe each offense, 

including allegations which affect the maximum authorized punishments. C$ Fed. R. Crim. P. 32(b)(l). See also Form 25, Appendix of Forms, 

Fed. R. Crim. P. Subsection (2) is based on the third, fourth, and fifth paragraphs of paragraph 90a of MCM, 1969 (Rev.) except that reference is 

no longer made to action by the supervisory authority. See Article 65. See United States v. Veilleux, 1 M.J. 81 1,815 (A.F.C.M.R. 1976); L'nited 

States v. Hurlburt, 1 M. J. 742,744 (A.F.C.M.R. 1975), rev'd on other grounds, 3 M.J. 387 (C.M.A. 1977) (date of publication). Subsection (3) is 

based on the first sentence of the second paragraph of paragraph 90a of MCM, 1969 (Rev.). 

(d) Orders containing classified information. This subsection is based on the first two paragraphs of paragraph 90c of MCM, 1969 (Rev.). The 

second sentence of the first paragraph of paragraph 90c is deleted as unnecessary. 

(e) Authentication. This subsection is based on forms at Appendix 15 of MCM, 1969 (Rev.) and clarifies the authentication of promulgating 

orders. See Mil. R. Evid. 902(10). Note that this subsection addresses authentication of the order, not authentication of copies. 

(f) Distribution. This subsection is based on paragraph 90d of MCM, 1969 (Rev.). The matters in paragraph 96 of MCM, 1969 (Rev.) aredeleted. 

These are administrative matters better left to service regulations. 

CHAPTER XII. APPEALS AND REVIEW 

Rule 1201. Action by the Judge Advocate General 

(a) Cases required to be referred to a Court of Military Review. This subsection is based on Article 66(b). 

(b) Cases reviewed by the Judge Advocate General. Subsection (1) is based on Article 69(a). Subsection (2) is based on Article 64(b)(3) and 

Article 69@). Subsection (3) is based on Article 69(b). Subsection (4) is based on Article 69(c). Subsection (b) is similar to paragraph 103 and the 

first two paragraphs of paragraph 110A of MCM, 1969 (Rev.) except insofar as the amendments of Articles 61,64, and 69 dictate otherwise. See 

Military Justice Act of 1983, Pub. L. No. 98-209,M 4(b), 7(a), (e), 97 Stat. 1393 (1983). The last paragraph of paragraph 110A of MCM, 1969 

(Rev.) was deleted as unnecessary. 

(c) Remission and suspension. This subsection is based on Article 74. See United States v. Russo, 1 1 U.S.C.M. A. 352,29 C.M.R. 168 (1960); 

United States v. Sood, 42 C.M.R. 635 (A.C.M.R.), pet. denied, 42 C.M.R. 356 (1970). 

Rule 1202. Appellate counsel 

(a) In general. This subsection is based on Article 70(a) and paragraph 10242 of MCM, 1969 (Rev.). 

@)Duties.This subsection is based on Article 70(b) and (c). See also the first two paragraphs of paragraph 1026 of MCM, 1969 (Rev.). The 

penultimate sentence in the rule is based on the penultimate sentence in the fourth paragraph of paragraph 102b of MCM, 1969 (Rev.). The last 

sentence in the fourth paragraph of paragraph 102b of MCM, 1969 (Rev.) is deleted as unnecessary. The last sentence in the rule is new. It is based 

on practice in Federal civilian courts. See Rapp v. Van Dusen, 350 F. 2d 806 (3d Cir. 1965); Fed. R. App. P. 21 (b). See also Rule 27, Revised Rules 

of the Supreme Court of the United States (Supp. IV 1980); UnitedStates v. Haldeman, 559 F. 2d 31 (D.C. Cir. 1976), cert. denied, 431 U.S. 933 

(1977). See generally 9 J. Moore, B. Ward, and J. Lucas, Moore's Federal Practice ll 221.03 (2d ed. 1982). 

The first two paragraphs in the discussion modify the third and fourth paragraphs of paragraph 102b of MCM, 1969 (Rev.). The Court of 

Military Appeals has held that appellate defense counsel is obligated to assign as error before the Court of Military Review all arguable issues 

unless such issues are, in counsel's professional opinion, clearly frivolous. In addition, appellate defense counsel must invite the attention of the 

court to issues specified by the accused, unless the accused expressly withdraws such issues, if these are not otherwise assigned as errors. Also, in 

a petition for review by the Court of Military.Appeals, counsel must, in addition to errors counsel believes have merit, identify issues which the 

accused wants raised. See United States v. Hullum, 15 M. J. 261 (C.M.A. 1983); United States v. Knight, 15 M.J. 195 (C.M.A. 1982); United 

States v. Grostefon, 12 M. J. 431 (C.M. A. 1982). See also United States v. Dupas, 14 M. J. 28 (C.M. A. 1982); United States v. Rainey, 13 M. J. 

462, 463 n. 1 (C.M.A. 1982) (Everett, C.J., dissenting). But see Jones v. Barnes, -U.S. -(1983) (no constitutional 

requirement for appointed counsel to raise every nonfrivolous issue requested by client). The third paragraph in the discussion is based on Article 

70(d) and paragraph 102 of MCM, 1969 (Rev.). The fourth paragraph in the discussion is based on the establishment of review by the Supreme 

Court of certain decisions of the Court of Military Appeals. See Article 67(h) and 28 U.S.C. 5 1259; Military Justice Act of 1983, Pub. L. No. 

98-209,g 10,97 Stat. 1393 (1983). The fifth paragraph in the discussion is based on UnitedStates v. Patterson, 22 U.S.C.M.A. 157,46 C.M.R. 

157 (1973). See also United States v. Kelker, 4 M.J. 323 (C.M.A. 1978); United States v. Bell, 1 1 U.S.C.M. A. 306,29 C.M.R. 122 (1960). 
App. 21, R.C.M. 1203(a) APPENDIX 21 

Rule 1203. Revlew by a Court of Milltary Revlew 

(a)In general. This subsection is based on Article 66(a). The discussion is based on Article 66(a), (f), (g) and (h). See also the first paragraph of 

paragraph lOOa and paragraph lOOd of MCM, 1969 (Rev.). 

(b) Cases reviewed by a Court @Military Review. This subsection is based on Article 66(b) and the third sentence of Article 69(a). Interlocutory 

appeals by the Government are treated in R.C.M. 908. The third through the fifth paragraphs in the discussion are based on Articles 59 and 66(c) 

and (d) and are taken from the second and third paragraphs of paragraph lOOa and the first paragraph of paragraph 1 00b of MCM, 1969 (Rev.). See 

also UnitedStates v. Darville, 5 M.J. 1 (C.M.A. 1978). The last sentence in the first paragraph is based on UnitedStates v. Brd, 6 M.J. 338 

(C.M.A. 1979); United States v. Yoakum, 8 M.J. 763 (A.C.M.R.), afd, 9 M.J. 417 (C.M.A. 1980). See also Corley v. Thurman, 3 M.J. 192 

(C.M.A. 1977). The sixth paragraph in the discussion is based on Derringer v. United States, 7 M.J. 216 (C.M.A. 1979); 28 U.S.C. 8 1651(a). 

See also United States v. LaBella, 15 M.J. 228 (C.M.A. 1983); United States v. Caprio, 12 M.J. 30 (C.M.A. 1981); United States v. Redding, 1 1 

M.J. 100 (C.M.A. 1981); United States v. Bogan, 13 M.J. 768 (A.C.M.R. 1982). The establishment of a statutory right of the Government to 

appeal certain rulings at trial might affect some of these precedents. See UnitedStates v. Weinstein, 51 I' F.2d 622 (2d Cir. 1975). cert. denied, 422 

U.S. 1042 (1976). 

(c) Action on cases reviewed by a Court ofMilitary Review. Subsection (1) is based on Article 67(b)(2). See also paragraph lOOb(2) and the first 

sentence of paragraph 100c(l)(a) of MCM, 1969 (Rev.). See also United States v. Leslie, 11 M.J. 131 (C.M.A. 1981); United States v. Clay, 10 

M.J. 269 (C.M.A. 1981). 

Subsection (2) is based on Article 66(e). See also United States v. Best, 4 U.S.C.M.A. 581, 16 C.M.R. 155 (1954). The discussion is 

consistent with paragraph lOOb(3) of MCM, 1969 (Rev.). 

Subsection (3) modifies paragraph 100c(l)(a) of MCM, 1969 (Rev.). It allows each service to prescribe specific procedures for service of 

Court of Military Review Decisions appropriate to its own organization and needs, in accordance with the increased flexibility allowed under the 

amendment of Article 67(c). See Military Justice Amendments of 1981, Pub. L. 97-81; 95 Stat. 1090. 

Subsection (4) is based on the first paragraph of paragraph 105b of MCM, 1969 (Rev.). See also Article 74. 

Because R.C.M. 1203 is organized somewhat differently than paragraph 100 of MCM, 1969 (Rev.), the actions described in subsection (c) of 

this rule apply to cases referred by the Judge Advocate General to the Court of Military Review under Article 69 as well as Article 66. The actions 

described are appropriate for both types of cases, to the extent that they are applicable. 

(d)Notijcatian to accused. This subsection is based on Article 67(c) (as amended, seeMilitary Justice Amendments of 1981, Pub. L. 97-81,s 5, 

95 Stat. 1088-89) and on the first paragraph of paragraph 100c(l)(a) of MCM, 1969 (Rev.) (see Exec. Order No. 12340 (Jan. 20, 1982)). The 

discussion is based on Article 67@) and on the second paragraph of paragraph lOOc(l)(a) of MCM, 1969 (Rev.). 

(e) Cases not reviewed by the Court @Military Appeals. Subsection (1) is based on the first sentence of paragraph lOOc(l)(b) of MCM, 1969 

(Rev.). See Article 71(b). Subsection (2) is based on the last sentence of paragraph lOOc(l)(a) of MCM, 1969 (Rev.). See Article 66(e). 

(f) Scope. This subsection clarifies that the procedures for Government appeals of interlocutory rulings at trial are governed by R.C.M.908. 

Rule 1204. Review by the Court of Military Appeals 

(a)Cases reviewed by the Court ofMilitary Appeals. This subsection is based on the ninth sentence of Article 67(a)(l), on Article 67(b), and on the 

second sentence in Article 69. It generally repeats the first paragraph in paragraph 101 of MCM, 1969 (Rev.) except insofar as that paragraph 

provided for mandatory review by the Court of Military Appeals of cases affecting general and flag officers. See Article 67(b)(l), as amended by 

the Military Justice Act of 1983, Pub. L. No. 98-209,s 7(d), 97 Stat. 1393 (1983). The first paragraph in the discussion is based on Article 67(a), 

(d), and (e), which were repeated in the second and third paragraphs of paragraph 101 of MCM, 1969 (Rev.). The second paragraph in the 

discussion is basedon UnitedStatesv. Frischholz, 16 U.S.C.M.A. 150,36 C.M.R. 306 (1966); 28 U.S.C. 5 1651(a). SeealsoNoydv. Bond, 395 

U.S. 683, 695 n. 7 (1969); United States v. Augenblick, 393 U.S. 348 (1969); Dobzynski v. Green, 16 M.J. 84 (C.M.A. 1983); Murray v. 

Haldeman, 16 M. J. 74 (C.M.A. 1983); United States v. Labella, 15 M. J. 228 (C.M.A. 1983); Cooke v. Orser, 12 M.J. 335 (C.M.A. 1982); 

Wickham v. Hall, 12M.J. 145 (C.M.A. 1981); Cooke v. Ellis, 12M.J. 17 (C.M.A. 1981); Vorbeckv. Commanding Wcer, 11 M.J. 480(C.M.A. 

1981); United States v. Redding, 11 M. J. 100 (C.M. A. 1981); United States v. Strow, 11 M. J. 75 (C.M.A. 1981); Stavart v. Stevens, 5 M. J. 220 

(C.M.A. 1978); Corley v. Thurman, 3 M. J. 192 (C.M. A. 1977); McPhail v. United States, 1 M. 1.457 (C.M.A. 1976); Brookins v. Cullins, 23 

U.S.C.M.A. 216, 49 C.M.R. 5 (1974); Chenoweth v. Van Arsdall, 22 U.S.C.M.A. 183, 46 C.M.R. 183 (1973); Petty v. Moriariy, 20 

U.S.C.M.A. 438, 43 C.M.R. 278 (1971); Zamora v. Woodson, 19 U.S.C.M.A. 403, 42 C.M.R. 5 (1970); United States v. Snyder, 18 

U.S.C.M.A. 480, 40 C.M.R. 192 (1969); United States v. Bevilacqua, 18 U.S.C.M.A. 10, 39 C.M.R. 10 (1968); Gale v. United States, 17 

U.S.C.M.A. 40, 37 C.M.R. 304 (1967). 

(b) Petition by the accusedfor review by the Court @Military Appeals. Subsection (1) is based on the last paragraph of paragraph 102b of MCM, 

1969 (Rev.). Note that if the case reached the Court of Military Review by an appeal by the Government under R.C.M. 908, the accused would 

already have detailed defense counsel. Subsection (2) is based on C.M.A.R. 19(a)(3). 

(c) Action on decision by the Court qf Military Appeals. Subsection (1) substantially repeats Article 67(f) as did its predecessor, the fourth 

paragraph of paragraph 101 of MCM, 1969 (Rev.) except that paragraph did not address possible review by the Supreme Court. See Article 67(h); 

28 U.S.C. $ 1259. Subsections (2) and (3) are based on Article 7l(a) and (b) and on the last paragraph of paragraph 101 of MCM, 1969 (Rev.). 

Subsection (4) is new and reflects the possibility of review by the Supreme Court. See Article 67(h); 28 U.S.C. 8 1259. See also Article 71. 
ANALYSIS App. 21, R.C.M. 1301(a) 

Rule 1205. Review by the Supreme Court 

This rule is new and is based on Article 67(h); 28 U.S.C. $8 1259,2101. See Military Justice Act of 1983, Pub. L. No. 98-209,s 10,97 

Stat. 1393 (1983). 

Rule 1206. Powers and responslbllltles of the Secretary 

(a) Sentences requiring approval by the Secretary. This subsection is based on the first sentence of Article 71(b). 

(b) Remission and suspension. Subsection (I) is based on Article 74(a). Subsection (2) is based on Article 74(b). Subsection (3)is based on the 

secondparagraph ofparagraph 105b of MCM, 1969 (Rev.). See Exec. Order No. 10498 (Nov. 4, 1953), 18 Fed. Reg. 7003. The reference in 

paragraph 105a of MCM, 1969 (Rev.) to Secretarial authority to commute sentences is deleted here as unnecessary. See Article 71(b). 

Rule 1207. Sentences requiring approval by the President 

This rule is based on the first sentence of Article 7 l(a). Paragraph 105a of MCM, 1969 (Rev.), which stated the Resident's power to commute 

sentences, is deleted. Such a statement is unnecessary. See also U.S. Const. art. 11, sec. 2, cl. 1; Schick v. Reed, 419 U.S. 256 (1974). 

Rule 1208. Restoration 

Introduction. This rule is based on Article 75. 

(a)New trial. This subsection is based on paragraph 1 lOdof MCM, 1969 (Rev.). It has been modified based on the modification of the procedure 

for executing sentences in new trials. See Analysis, R.C.M. 1209. The last two paragraphs in paragraph 110d are omitted here. They repeated 

Article 75@) and (c), which are referred to in the discussion. 

(b) Other cases. This subsection is based on paragraph 106 of MCM, 1969 (Rev.). 

Rule 1209. Finality of courts-martial 

(a) When a conviction isfinal. This subsection is based on Article 71(c), as amended, see Military Justice Act of 1983, Pub. L. No. 98-209, 

$ 5(e)(l), 97 Stat. 1393 (1983). See also Article 64. Note that subsection (2)(B) qualifies subsection (2)(A); even if the officer exercising general 

court-martial jurisdiction over the accused (or that officer's successor) approves the findings and sentence, the conviction is not final if review by 

the Judge Advocate General is required. See Article 64(c)(3); R.C.M. 1201(b)(2). As to the finality of an acquittal or disposition not amounting to 

findings of guilty, see Article 44; R.C.M. 905 (g). See also Grafton v. United States, 206 U.S. 333 (1907). 

(b) Effect @finality. This subsection is taken from Article 76 and paragraph 108 of MCM, 1969 (Rev.). See also Article 69(b). 

Rule 1210. New trial 

This rule is based on Article 73 and is based on paragraphs 109 and 110 of MCM, 1969 (Rev.). Some matters in those paragraphs (e.g.. 

paragraphs 1 lOa(2) and 109d) are covered in other rules. See R.C.M. 810; 1209. The second sentence of paragraph 109d(l) has been deleted as 

unnecessary and potentially confusing. Subsections (f)(2) and (3) adequately describe the standards for a new trial. The rule is generally 

consistent with Fed. R. Crim. P.33, except insofar as Article 73 provides otherwise. As to subsection (f),see also UnitedStates v. Bacon, 12 M.J. 

489 (C.M.A. 1982); United States v. Thomas, 11 M. J. 135 (C.M.A. 1981). With respect to the second example under subsection (4(3) of this 

rule, it should be noted that if the information concealed by the prosecution was specifically requested by the defense, a different standard may 

apply. See United States v. Agurs, 427 U.S. 97 (1976); Brady v. Maryland, 373 U.S. 83 (1963). See also United States v. Horsey, 6 M.J. 112 

(C.M.A. 1979). The second sentence of paragraph 1 lOf of MCM, 1969 (Rev.) has been deleted. See Analysis, R.C.M. 1107(f)(3)(D)(i). 

Subsections (h)(3), (4), and (5) have been modified to permit the convening authority of a new trial to take action in the same way as in a 

rehearing; i.e., the convening authority may, when otherwise authorized to do so (see R.C.M. 11 13), order the sentence executed. Forwarding a 

new trial to the Judge Advocate General is not required just because the case was a new trial. The special circumstances of a new trial do not 

necessitate such different treatment in post-trial action. 

CHAPTER XIII. SUMMARY COURTS-MARTIAL 

Rule 1301. Summary courts-martial generally 

(a) Composition. The first sentence is based on Article 16(3). In the second sentence the express authority for the Secretary concerned to provide 

for the summary court-martial to be from a different service than the accused is new. Paragraph 4g(2) of MCM, 1969 (Rev.) included this 

statement: "However, a summary court-martial will be a member of the same armed force as the accused." The fact that this statement was 

included in a subparagraph entitled "Joint command or joint task force" left unclear what ~le applied in other commands. The Working Group 

elected to clarify the situation by stating a general prohibition against detailing a summary court-martial from a service different from that of the 

accused, but allowing the service Secretaries to provide exceptions. This is based on the desirability of having the summary court-martial be from 

the same service as the accused, but recognizes that under some circumstances, as where a small unit of one service is colocated with another 

service, greater flexibility is needed, especially in order to comply with the policy in the third sentence of this subsection. The expression of policy 

in the third sentence is based on paragraph 4c of MCM, 1969 (Rev.). The fourth sentence is based on Article 24(b) and the fifth sentence of the first 

paragraph of paragraph 5c of MCM, 1969 (Rev.). The last sentence is based on the last sentence of the first paragraph of paragraph 5c of MCM, 
App. 21, R.C.M. 1301(b) APPENDIX 21 

1969 (Rev.), but has been modified to clarify that the summary court-martial may be from outside the command of the summary court-martial 

convening authority. 

(b)Function. This subsection is based on paragraph 79a of MCM, 1969 (Rev.). The rule does not restrict other lawful functions which a summary 

court-martial may perform under the Code. See, e.g., Article 136. A summary court-martial appointed to dispose of decedent's effects under 10 

U.S.C. 5 4712 or 10 U.S.C. 5 9712 is not affected by these rules. See also R.C.M. 101 and 201(a). 

(c) Jurisdiction. This subsection is based on the first sentence of Article 20 and the first sentence of paragraph 16a of MCM, 1969 (Rev.). The 

reference to Chapter I1 was added to bring attention to other jurisdictional standards which may apply to summary courts-martial. 

(d) Punishments. This subsection is based on paragraph 16b of MCM, 1969 (Rev.), and Article 20. 

(e) Counsel. The code does not provide a right to counsel at a summary court-martial (Articles 27 and 38).The Supreme Court of the United States 

held in Middendorfv. Henry, 425 U.S. 25 (1976), that an accused is not entitled to counsel in summary courts-martial, and that confinement may 

be adjudged notwithstanding the failure to provide the accused with counsel. In so holding, the Court distinguished summary courts-martial from 

civilian criminal proceedings at which counsel is required. See Argersinger v. Hamlin, 407 U.S. 25 (1972). Although the issue in Middendorfv. 

Henry, supra, was whether counsel must be provided to an accused at a summary court-martial, the Court's opinion clearly indicates that there is 

no right to any counsel (including retained counsel) at summary courts-martial. It is within the discretion of the convening authority to detail, or 

otherwise make available, a military attorney to represent the accused at a summary court-martial. 

This rule does not provide a right to consult with counsel prior to a summary court-martial. There is no constitutional or statutory basis for 

such a right. United States v. Mack, 9 M.J. 300, 320-21 (C.M.A. 1980). A requirement for such consultation, although desirable under some 

circumstances, is unfeasible under others wherein it impedes the purposes of summary courts-martial by significantly delaying the proceedings. 

At present, the admissibility of a summary court-martial without a prior opportunity to consult with counsel in subsequent courts-martial has not 

been fully resolved. Unitedstates v. Mack, supra; United States v. Booker, 5 M.J. 238 (C.M.A. 1977). See also United States v. Kuehl, 11 M.J. 

126 (C.M.A. 1981). 

(f) Paver to obtain wifnesses and evidence. This subsection is based on Article 46 and 47 and paragraphs 79b and 115 of the MCM, 1969 (Rev.). 

(g) Secretarial limitations. This subsection is new and recognizes the implicit authority of the service secretaries to provide additional rules, such 

as those governing the exercise of summary court-martial jurisdiction. 

Rule 1302. Convening a summary court-martial 

(a) Who may convene summary courts-martial. This subsection is based on Article 24(a) and paragraph 5c of MCM, 1969 (Rev.). 

@) When convening authority is the accuser. This subsection is based on the second paragraph of paragraph 5c of MCM, 1969 (Rev.). 

(c) Procedure. This subsection clarifies that a separate written order is not necessary to convene a summary court-martial; this may be done 

directly on the charge sheet. Because there is little difference between summary, special, and general courts-martial with respect to the initiation 

and forwarding of charges, these procedures are simply referred to in the rule. 

Rule 1303. Right to object to trial by summary court-martial 

This rule is based on Article 20 and the second and third sentences of paragraph 16a of MCM, 1969 (Rev.). Arraignment ends the right to 

object because arraignment is the point at which the accused is "brought to trial" within the meaning of Article 20. 

Rule 1304. Rlal procedure 

(a) Pretrial duties. This subsection is based on paragraphs 79c and 33d of MCM, 1969 (Rev.). 

@) Summary court-martial procedure. Paragraph 79a of MCM, 1969 (Rev.), suggested that the summary court-martial use the general courtmartial trial guide. However, the general court-martial trial guide is inadequate for the person who ordinarily conducts the summary courtmartial. The trial guide in Appendix 9 of this Manual was drafted to assist the lay presiding officer at summary courts-martial and incorporate the 

rules prescribed in this chapter. 

Subsection (1) is based on paragraph 79d(l) of MCM, 1969 (Rev.). The requirement to inform the accused of the date of referral was added to 

subsection (I)@) to assist the accused in making motions to dismiss or for other relief. Subsection (l)(E) is intended to more fully inform the 

accused of the scope of the evidence (testimonial, documentary, and physical) expected to be introduced. Subsection (l)(F) is new and is designed 

to assist the accused in making motions and presenting evidence in defense and in extenuation and mitigation. Subsection (l)(G) is new and is 

designed to assure the accused that no evidence, including statements previously made to the officer detailed to conduct the summary courtmartial, will be considered unless admitted in accordance with the Military Rules of Evidence. Subsection (l)(H) is new. Subsection (l)(L) is 

expanded to assure the accused that the exercise of rights guaranteed under the Fifth Amendment and Article 31 will not be held against the 

accused. 

Subsection (2)(A) is based on Article 20 and the second paragraph of paragraph 79d(l) of MCM, 1969 (Rev.). 

Subsection (2)(B) is based on paragraph 79d(2) of MCM, 1969 (Rev.). 

Subsection (2)(C) is new. MCM, 1969 (Rev.) did not clarify the timing of motions in summary courts-martial. 

Subsection (2)(D)(ii) is new and designed to standardize the guilty plea inquiry by refening the summary court-martial to R.C.M. 909 which 

prescribed the inquiry for summary, special, and general courts-martial. Subsections (2)(D)(i) and (iii) through (v) are based on pararaph 79d(2) 
ANALYSIS App. 21, R.C.M. 1306(d) 

of MCM, 1969 (Rev.). The provision in paragraph 79d(2) which provided for hearing evidence on the offense($ in a guilty plea case is omitted 

here because this procedure is covered in R.C.M. 1001(b)(4). 

Subsection (2)(E)(i) is based on Mil. R. Evid. 101 and 1101. Subsections (2)(E)(ii) through (iv) are based on paragraph 79d(3) of MCM, 

1969 (Rev.). 

Subsections (2)(F)(i) through (iii) are based on paragraph 79d(4) of MCM, 1969 (Rev.). Note that the summary court-martial may consider 

otherwise admissible records from the accused's personnel file underR.C.M. 1001(b)(2). This was not pennitted under MCM, 1969 (Rev.) before 

the amendment of paragraph 75 on 1 August 1981. See Exec. Order No. 12315 (July 29, 1981). Subsection (2)(F)(iv) is new and fulfills the 

summary court-martial's post-trial responsibility to protect the interests of the accused by informing the accused of post-trial rights. 

Subsection (2)(F)(v) is new and designed to inform the convening authority of any suspension recommendation and deferment request before 

receipt of the record of trial. Subsection (2)(F)(vi) modifies paragraph 7944) of MCM, 1969 (Rev.). It recognizes the custodial responsibility of 

the summary court-martial over an accused sentenced to confinement until the accused is delivered to the commander or the commrnander's 

designee. It does not address the subsequent disposition of the accused, as this is a prerogative of the commander. 

Rule 1305. Record of trial 

(a) In general. This rule is based on paragraphs 79e and 91c of MCM, 1969 (Rev.) insofar as they prescribed that the record of trial of a summary 

court-martial will consist of a notation of key events at trial and insofar as they permitted the convening or higher authority to require additional 

matters in the record. Additional requirements may be established by the Secretary concerned, the convening authority, or other competent 

authority. The modification of the format of the charge sheet (see Appendix 4) eliminated it as the form for the record of trial of a summary courtmartial. A separate format is now provided at Appendix 15. 

@) Contents. This subsection is based on paragraphs 79e and 91c of MCM, 1969 (Rev.). 

(c) Authentication. This subsection is based on paragraph 79e of MCM, 1969 (Rev.). 

(d) Medical Certificate. This subsection is based on paragraphs 91c and 125 of MCM, 1969 (Rev.). 

(e)Forwarding copies qfthe record. Subsection (1) is based on Article 60(b)(2). Subsection (2) is based on the thud paragraph of paragraph 91c of 

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

Rule 1306. Post-trial procedure 

(a) Accused's post-trial petition. This subsection is based on Article 60(b). Cf: Article 38(c). 

(b) Convening authority's action. Subsection (1) refers to the detailed provisions concerning the convening authority's initial review and action in 

R.C.M. 1107. The time period is based on Article 60(b)(l). Subsections (2) through (4) are based on paragraph 90e of the MCM, 1969 (Rev.). 

Subsection (2) is modified to reflect that the accused ordinarily will receive a copy of the record before action is taken. See Article 60(b)(2). 

(c) Review by a judge advocate. This subsection is based on Article 64. 

(d)Review by the Judge Advocate General. This subsection is based on Article 69 and refers to the detailed provisions governing such requests for 

review in R.C.M. 1201. 

Except as noted below, the Military Rules of Evidence, as prescribed in Exec. Order No. 12198 (Mar. 12,1980), as amended by Exec. Order 

No. 12233 (Sep. 1, 1980), Exec. Order No. 12306 (Jun. 1, 1981). and Exec. Order No. 12315 (Jul. 29, 1981) have not been changed. The 

Analysis of the Military Rules of Evidence, reprinted as Appendix 22, remains applicable. 

Several changes were made for uniformity of style with the remainder of the Manual. Only the first word in the title of a rule is capitalized. 

The word "rule," when used in text to refer to another rule, was changed to "Mil. R. Evid." to avoid confusion with the Rules for Courts-Martial. 

"Code" is used in place of Uniform Code of Military Justice. "Commander" is substituted for "commanding officer" and "officer in charge." See 

R.C.M. 103(5). Citations to the United States Code were changed to conform to the style used elsewhere. "Government" is capitalized when used 

as a noun to refer to the United States Governrnent. In addition, several cross-references to paragraphs in MCM, 1969 (Rev.) were changed to 

indicate appropriate provisions in this Manual. 

With these exceptions, however, the Military Rules of Evidence were not redrafted. Consequently, there are minor variations in style or 

terminology behveen the Military Rules of Evidence and other parts of the Manual. Where the same subject is treated in similar but not identical 

terms in the Military Rules of Evidnce and elsewhere, a different meaning or purpose should not be inferred in the absence of a clear indication in 

the text or the analysis that this was intended. 

The following specific changes were made. 
App. 21, M.R.E. 201A APPENDIX 21 

Rule 201A. Judicial notlce of law 

Subsection (a) is modified to clarify that the requirements of Mi:. R. Evid. 201(g) do not apply when judicial notice of domestic law is taken. 

Without this clarification, Mil. R. Evid. 201A could be construed to require the military judge to instruct the members that they could disregard a 

law which had been judicially noticed. This problem was discussed in United States v. Mead, 16 M.J. 270 (C.M.A. 1983). 

Rule 312. Body views and Intrusions 

"Body" was substituted for "bodily" in the title and where appropriate in text. See UnitedStates v.Armstrong, 9 M.J. 374,378 n. 5 (C.M.A. 

1980). 

In subsections (b)(l) and (c), "reasonable" replaces "real" before "suspicion." A majority of Circuit Courts of Appeal have adopted a 

"reasonable suspicion" test over a "real suspicion" test. See United States v. Klein, 592F. 2d 909 (5th Cir. 1979); UnitedStatesv.Asbury, 586 F. 2d 

973 (2d Cir. 1978); UnitedStates v. Wardlmu, 576 F. 2d 932 (1st Cir. 1978); UnitedStates v. Himmelwright, 551F. 2d 991 (5th Cir.), cert. denied, 

434 U.S. 902 (1977). But see United States v. Aman, 624 F. 2d 91 1 (9th Cir. 1980). In practice the distinction may be minimal. But see Perel v. 

Vanderford, 547 F. 2d 278,280 n. 1 (5th Cir. 1977). However, the real suspicion formulation has been criticized as potentially confusing. United 

States v. Asbury, supra at 976. 

The first word in the caption of subsection (d) was changed from "Seizure" to "Extraction." This is consistent with the text of subsection (d) 

and should avoid possible confusion about the scope of the subsection. Subsection (d) does not apply to compulsory production of body fluids 

(e.g., being ordered to void urine), but rather to physical extraction of body fluids (e.g., catheterization or withdrawal of blood). See Murray v. 

Haldeman, 16 M.J. 74 (C.M.A. 2983). See also Analysis, Mil. R. Evid. 313(b). 

Rule 313. lnspectlons and inventorles in the armed forces 

The third sentence of Mil. R. Evid. 313(b) has been modified and the fourth and sixth sentences are new. 

The fourth sentence is new. The Military Rules of Evidence did not previously expressly addressproduction of body fluids, perhaps because 

of United States v. Ruiz, 23 U.S.C.M.A. 181,48 C.M.R. 797 (1974). Ruiz was implicitly overmled in United States v. Armstrong, 9 M.J. 374 

(C.M.A. 1980). Uncertainty concerning the course of the law of inspections may also have contributed to the drafter's silence on the matter. See 

UnitedStates v.Roberts, 2M.J. 31 (C.M.A. 1976); UnitedStatesv. Thomas, 1 M.J. 397 (C.M.A. 1976). Muchof theuncertainty in this area was 

dispelled in United States v. Middleton, 10 M.J. 123 (C.M.A. 1981). See also Murray v. Haldeman, 16 M.J. 74 (C.M.A. 1983). 

Despite the absence in the rules of express authority for compulsory production of body fluids, it apparently was the intent of the drafters to 

permit such production as part of inspections, relying at least in part on the medical purpose exception in Mil. R. Evid. 312(f). Mil. R. Evid. 

312(d) applies only to nonconsensual extraction (e.g., catheterization, drawing blood) of body fluids. This was noted in the Analysis, Mil. R. 

Evid. 312(d), which went on to state that "compulsory urinalysis, whether random or not, made for appropriate medical purposes, see Rule 

312(f), and the product of such a procedure if otherwise admissible may be used at a court-martial." 

There is considerable overlap between production of body fluid for a medical purpose under Mil. R. Evid. 312(f) and for determining and 

ensuring military fitness in a unit, organization, installation, vessel, aircraft, or vehicle. Frequently the two purposes are coterminous. Ultimately, 

the overall health of members of the organization is indivisible from the ability of the organization to perform the mission. To the extent that a 

"medical purpose" embraces anything relating to the physical or mental state of a person and that person's ability to perform assigned duties, then 

the two purposes may be identical. Such a construction of "medical purpose" would seem to swallow up the specific rules and limitations in Mil. 

R. Evid. 312(f), however. Therefore, a distinction may be drawn between a medical purpose--at least to the extent that that term is construed to 

concern primarily the health of the individual-and the goal of ensuring the overall fitness of the organization. For example, it may be appropriate 

to test-by compulsory production of urine-persons whose duties entail highly dangerous or sensitive duties. The primary purpose of such tests 

is to ensure that the mission will be performed safely and properly. Preserving the health of the individual is an incident-albeit a very important 

one-of that purpose. A person whose urine is found to contain dangerous drugs is relieved from duty during gunnery practice, for example, not 

so much to preserve that person's health as to protect the safety of others. On the other hand, a soldier who is extremely ill may be compelled to 

produce urine (or even have it extracted) not so much so that that soldier can return to duty-although the military has an interest in this-as for 

that soldier's immediate health needs. 

Therefore, Mil. R. Evid. 313(b) provides an independent, although often closely related basis for compulsory production of body fluids, 

with Mil. R. Evid. 312(f). By expressly providing for both, possible confusion or an unnecessarily narrow construction under Mil. R. Evid. 

312(f) will be avoided. Note that all of the requirements of Mil. R. Evid. 313(b) apply to an order to produce body fluids under that rule. This 

includes the requirement that the inspection be done in a reasonable fashion. This rule does not prohibit, as part of an otherwise lawful inspection, 

compelling a person to drinka reasonable amount of water in order to facilitate production of aurine sample. See United States v. Mitchell, 16 M. J. 

654 (N.M.C.M.R. 1983). 

The sixth sentence is based on United States v. Middleton, supra. Middleton was not decided on the basis of Mil. R. Evid. 313, as the 

inspection in Middleton occurred before the effective date of the Military Rules of Evidence. The Court discussed Mil. R. Evid. 313(b) but "did 

not now decide on the legality of this Rule [or] bless its application." United States v. Middleton, supra at 131. However, the reasoning and the 

holding in Middleton suggest that the former language in Mil. R. Evid. 3 13(b) may have established unnecessary burdens for the prosecution, yet 

still have been inadequate to protect against subterfuge inspections, under some circumstances. 

The former language allowed an inspection for "unlawful weapons and other contraband when such property would affect adversely the 

security, military fitness, or good order and discipline of the command and when (1) there is a reasonable suspicion that such property is present in 

the command or (2) the examination is a previously scheduled examination of the command." This required acase-by-case showing of the adverse 

effects of the weapons or contraband (including controlled substances) in the particular unit, organization, installation, aircraft, or vehicle 
ANALYSIS App. 21, M.R.E. 314 

examined. See Analysis, Mil. R. Evid. 313(b). In addition, the examination had to be based on a reasonable suspicion such items were present, or 

be previously scheduled. 

Middleton upheld an inspection which had as one of its purposes the discovery of contraband-i.e., drugs. Significantly, there is no 

indication in Middleton that a specific showing of the adverse effects of such contraband in the unit or organization is necessary. The court 

expressly recognized (see United States v. Middleton, supra at 129; cf: UnitedStates v. Trottier, 9 M.J. 337 (C.M.A. 1980)) the adverse effect of 

drugs on the ability of the armed services to perform the mission without requiring evidence on the point. Indeed, it may generally be assumed that 

if it is illegal to possess an item under a statute or lawful regulation, the adverse effect of such item on security, military fitness, or good order and 

discipline is established by such illegality, without requiring the commander to personally analyze its effects on a case-by-case basis and the 

submission of evidence at trial. The defense may challenge the constitutionality of the statute or the legality of the regulation (cf:UnitedStates v. 

Wilson, 12U.S.C.M.A. 165,30C.M.R. 165 (1961); UnitedStatesv. Nation, 9U.S.C.M.A. 724,26C.M.R. 504 (1958)) butthisburdenfallson 

the defense. Thus, this part of the former test is deleted as unnecessary. Note, however, that it may be necessary to demonstrate a valid military 

purpose to inspect for some noncontraband items. See United States v. Brown, 12 M.J. 420 (C.M.A. 1982). 

Middleton upheld broad authority in the commander to inspect for contraband, as well as other things, "when adequate safeguards are 

present which assure that the 'inspection' was really intended to determine and assure the readiness of the unit inspected, rather than merely to 

provide a subterfuge for avoiding limitations that apply to a search and seizure in a criminal investigation." As noted above, the Court in 

Middleton expressly reserved judgment whether Mil. R. Evid. 313(b) as then written satisfied this test. 

The two prongs of the second part of the former test were intended to prevent subterfuge. However, they did not necessarily do so. Indeed, the 

"reasonable suspicion" test could be read to expressly authorize a subterfuge search. See, e.g., United States v. Lunge, 15 U.S.C.M. A. 486,35 

C.M.R. 458 (1965). The "previously scheduled" test is an excellent way to prove that an inspection was not directed as the result of a reported 

offense, and the new formulation so retains it. However, it alone does not ensure absence of prosecutorial motive when specific individuals are 

singled out, albeit well in advance, for special treatment. 

At the same time, the former test could invalidate a genuine inspection which had no prosecutorial purpose. For example, a commander 

whose unit was suddenly alerted for a special mission might find it necessary, even though the commander had no actual suspicion contraband is 

present, to promptly inspect for contraband, just to be certain none was present. A commander in such a position should not be prohibited from 

inspecting. 

The new language removes these problems and is more compatible with Middleton. It does not establish unnecessary hurdles for the 

prosecution. A commander may inspect for contraband just as for any other deficiencies, problems, or conditions, without having to show any 

particular justification for doing so. As the fifth sentence in the rule indicates, any examination made primarily for the purpose of prosecution is 

not a valid inspection under the rule. The sixth sentence identifies those situations which, objectively, raise a strong likelihood of subterfuge. 

These situations are based on United States v. Lange, supra and United States v. Hay, 3 M.J. 654,655-56 (A.C.M.R. 1977) (quoted in United 

States v. Middleton, supra at 127-28 n.7; see also United States v. Brown, supra). "Specific individuals" means persons named or identified on the 

basis of individual characteristics, rather than by duty assignment or membership in a subdivision of the unit, organization, installation, vessel, 

aircraft, or vehicle, such as a platoon or squad, or on a random basis. See UnitedStates v. Harris, 5 M. J. 44 (C.M.A. 1978). The first sentence of 

subsection (b) makes clear that a part of one of the listed categories may be inspected. C' United States v. King, 2 M.J. 4 (C.M.A. 1976). 

The existence of one or more of the three circumstances identified in the fifth sentence does not mean that the examination is, per se, not an 

inspection. The prosecution may still prove, by clear and convincing evidence, that the purpose of the examination was to determine and ensure 

security, military fitness, and good order and discipline, and not for the primary purpose of prosecution. For example, when an examination is 

ordered immediately following a report of a specific offense in the unit, the prosecution might prove the absence of subterfuge by showing that the 

evidence of the particular offense had already been recovered when the inspection was ordered and that general concern about the welfare of the 

unit was the motivation for the inspection. Also, if a commander received a report that a highly dangerous item (e.g .,an explosive) was present in 

the command, it might be proved that the commanderls concern about safety was the primary purpose for the examination, not prosecution. In the 

case in which specific individuals are examined, or subjected to more intrusive examinations than others, these indicia of subterfuge might be 

overcome by proof that these persons were not chosen with a view to prosecution, but on neutral grounds or for an independent purpose--e.g., 

individuals were selected because they were new to unit and had not been thoroughly examined previously. These examples are not exclusive. 

The absence of any of the three circumstances in the fifth sentence, while indicative of a proper inspection, does not necessarily preclude a 

finding of subterfuge. However, the prosecution need not meet the higher burden of persuasion when the issue is whether the commander's 

purpose was prosecutorial, in the absence of these circumstances. 

The new language provides objective criteria by which to measure a subjective standard, i.e., the commander's purpose. Because the 

standard is ultimately subjective, however, the objective criteria are not conclusive. Rather they provide concrete and realistic guidance for 

commanders to use in the exercise of their inspection power, and for judicial authorities to apply in reviewing the exercise of that power. 

Rule 314. Searches not requlrlng probable cause 

Subsection (c) was amended by adding "or exit from" based on United States v. Alleyne, 13 M.J. 331 (C.M.A. 1982). 

Subsection (f)(3) is added based on Michigan v. Long, -U.S. , 33 Cr. L. Rptr. 3317 (1983). 

Subsection (g)(2) was amended by adding language to clarify the permissible scope of a search incident to apprehension of the occupant of an 

automobile based on New York v. Belton, 453 U.S. 454 (1981). The holding of the Court used the term "automobile" so that word is used in the 

rule. It is intended that the tern "automobile" have the broadest possible meaning. 
App. 21, M.R.E.315 APPENDIX 21 

Rule 315. Probable cause searches 

Subsection (d) was amended by deleting former subsection (2) concerning delegation, based on United States v. Kalscheuer, 11 M.J. 373 

(C.M.A. 1981). 

The second sentence of subsection (f)(l) was deleted based onIllinois v. Gates, -U.S., 33 Cr. L. Rptr. 3109 (1983). 

Although that sentence may be technically compatible with Gates, it could be construed as requiring strict application of the standards ofAguilar 

v. Texas. 378 U.S. 108 (1964). See Analysis, Mil. R. Evid. 315(f). The former language remains good advice for those deciding the existence of 

probable cause, especially for uncorroborated tips, but is not an exclusive test. 

The last sentence of subsection (g) was amended by deleting "presumed to be." The former language could be construed to permit the 

accused to prove that the vehicle was in fact inoperable (that is, to rebut the presumption of operability) thereby negating the exception, even 

though a reasonable person would have believed the vehicle inoperable. The fact of inoperability is irrelevant; the test is whether the official(s) 

searching knew or should have known that the vehicle was inoperable. 

Rule 31 6. Seizures 

The second sentence of subsection (b) is deleted based on Illinois v. Gates, -U.S. ,33 Cr. L. Rptr. 3109 (1983). See 

Analysis, Mil. R. Evid. 315(f)(l), supra. 

Subsection (d)(5) is added based on United States v. Place. -U.S. , 33 Cr. L. Rptr. 3183 (1983). 

Rule 321. Eyewitness Identification 

Subsections (b)(l) and (d)(2) have been modified to make clear that the test for admissibility of anout-of-court identification is reliability. See 

Manson v. Brathwaite, 432 U.S. 98 (1977). This was apparently the intent of the drafters of the former rule. See Analysis, Mil. R. Evid. 321. The 

language actually used in subsections (b)(l) and (d)(2) was subject to a different interpretation, however. See S. Salzburg, L. Schiiasi, and D. 

Schlueter,Military Rules ojEvidence Manual at 165-167 (1981); Gasperini, Eyewitness Identijcation Under the Miliary Rules qfEvidence, The 

Army Lawyer at 42 (May 1980). 

In determining whether an identification is reliable, the military judge should weigh all the circumstances, including: the opportunity of the 

witness to view the accused at the time of the offense; the degree of attention paid by the witness; the accuracy of any prior descriptions of the 

accused by the witness; the level of certainty showed by the witness in the identification; and the time between the crime and the confrontation. 

Against these factors should be weighed the corrupting effect of a suggestive and unnecessary identification. See Manson v. Brathwaite, supra; 

Neil v. Biggers, 409 U.S. 188 (1972). 

Note that the modification of subsection (b)(l)eliminates the distinction between identification processes conducted by persons subject to the 

code and other officials. Because the test is the reliability of the identification, and not a-prophylactic standard, there is no basis to distinguish 

between identification processes conducted by each group. See Manson v. Brathwaite, supra. 

In subsection (b)(2)(A), the words "or law specialist within the meaning of Article 1" were deleted as unnecessary. See R.C.M. 103(26). 

PART IV 


PUNITIVE ARTICLES 


Introduction. Unless otherwise indicated, the elements, maximum punishments and sample specifications in paragraphs 3 through 113 are 

based on paragraphs 157 through 213, paragraph 127c (Table of Maximum Punishments), and Appendix 6c of MCM, 1969 (Rev.). 

1. Article n-Prlnclpals 

b. Explanation. (1) Purpose. Article 77 is based on 18 U.S.C. 8 2. Hearings on H.R. 2498 Before a Subcomm. qf the House Comm. on 

Armed Services, 81st Cong., 1st Sess. 1240-1244 (1949). The first paragraph of subparagraph b(1) reflects the purpose of 18 U.S.C. § 2 (see 

Standefer v. United States, 447 U.S. 10 (1980)) and Article 77 (see Hearings, supra at 1240). 

The common law definitions in the second paragraph of subparagraph b(1) are based on R. Perkins, Criminal Law 643-666 (2d ed. 1969); 

and 1C. Torcia, Wharton's CriminalLaw andprocedure § 8 2%38 (1978). Several common law terms, such as "aider and abettor" are now used 

rather loosely and do not always retain their literal common law meanings, See ~nitedstates v. Burroughs, 12 M.J. 380,384 n.4. (C.M.A. 1982); 

United States v. Molina, 581 E2d 56,61 n.8 (2d Cir. 1978). To eliminate confusion, the explanation avoids the use of such terms where possible. 

See United States v. Burroughs, supra at 382 n.3. 

(2) Who may be liable for an dense. Subparagraph (2)(a) is based on paragraph 156 of MCM, 1969 (Rev.). See 18 U.S.C.A. 8 2 

Historical and Revision Notes (West 1969). See also United States v. Giles, 300 U.S. 41 (1937); Wharton's, supra at $5 30, 31, 35. 

Subparagraph (2)(b) sets forth the basic formulation of the requirements for liability as a principal. An act (which may be passive, as 

discussed in this subparagraph) and intent are necessary to make one liable as a principal. See United States v. Burroughs, supra; United States v. 

Jackson,6U.S.C.M.A. 193,19 C.M.R. 319 (1955); UnitedStates v. Wooten, 1 U.S.C.M.A, 358,3 C.M.R. 92 (1952); UnitedStates v. Jacobs, 

1 U.S.C.M.A. 209,2 C.M.R. 115 (1952). See also United States v. Walker, 621 F.2d 163 (5th Cu.1980), cert. denied, 450 U.S. 1000 (1981); 

Morei v. United States, 127 E2d 827 (6th Cir. 1942); United States v. Peoni, 100 F.2d 401, 402 (2d Cir. 1938). The terms "assist" and 

"encourage, advise, and instigate" have been substituted for "aid" and "abet" respectively, since the latter terms are technical and may not be 
ANALYSIS APP. 21, 74 

clear to the lay reader. See BlackSLaw Dictionary 5.63 (5th ed., 1979). See also Nye andNissen v. United States, 336 U.S. 613,620 (1949); 

Wharton's, supra at 24647. 

The last two sentences in subparagraph (2)(b) are based on the third paragraph of paragraph 156 of MCM, 1969 (Rev.). See UnitedStates v. 

Ford, 12U.S.C.M.A. 31,30C.M.R. 31 (1960); UnitedStatesv. McCarthy, 11 U.S.C.M.A. 758,29C.M.R. 574 (1960); UnitedStatesv. Lyons, 

11 U.S.C.M.A. 68, 28 C.M.R. 292 (1959). 

(3)Presence. This subparagraph clarifies, as paragraph 156 of MCM, 1969 (Rev.) did not, that presence at the scene is neither necessary 

nor sufficient to make one aprincipal. "Aid" and "abet" as used in 18 U.S.C. J 2, and in Article 77, are not used in the narrow common law sense 

of an "aider and abettor" who must be present at the scene to be guilty as iuch. UnitedStates v. Burroughs, supra; UnitedStates v. Sampol, 636 

E2d 621 (D.C. Cir. 1980); United States v. Molim, supra; United States v. Carter, 23 C.M.R. 872 (A.F.B.R. 1957). C' Milanovich v. United 

States, 365 U.S. 551 (1961). See also Wharton's, supra at 231. Subparagraph (b) continues the admonition, contained in the third paragraph of 

paragraph 156 of MCM, 1969 (Rev.), that presence at the scene of a crime is not sufficient to make one a principal. See UnitedStates v. Waluski, 6 

U.S.C.M.A. 724, 21 C.M.R. 46 (1956); United States v. Johnson, 6 U.S.C.M.A. 20, 19 C.M.R. 146 (1955); United States v. Guest, 3 

U.S.C.M.A. 147, 11 C.M.R. 147 (1953). 

(4)Parties whose intent d@ersfrom theperpetrators. This subparagraph is based on the first paragraph in paragraph 156 of MCM, 1969 

(Rev.). See United States v. Jackson, 6 U.S.C.M.A. 193, 19 C.M.R. 319 (1955); Wharton's, supra at J 35. 

(5)Responsibility for other crimes. This subparagraph is based on the fist two paragraphs in paragraph 156 of MCM, 1969 (Rev.). See 

United States v. Cowan, 12 C.M.R. 374 (A.B.R. 1953); United States v. Self; 13 C.M.R. 227 (A.B.R. 1953). 

(6) Principals independently liable. This subparagraph is new and is based on Federal decisions. See Standefer v. UnitedStates, supra; 

United States v. Chenaur, 552 E2d 294 (9th Cu. 1977); United States v. Frye, 548 E2d 765 (8th Cir. 1977). 

(7) Withdrawal.This subparagraph is new and is based on United States v. Williams, 19 U.S.C.M. A. 334,41 C.M.R. 334 (1970). See 

also UnitedStates v. Miasel, 8 U.S.C.M.A. 374,378,24 C.M.R. 184, 188 (1957); UnitedStates v. Lowell, 649 F. 2d 950 (3d Cu. 1981); United 

States v. Killian, 639 F. 2d 206 (5th Cir.), cert. denied, 451 U.S. 1021 (1981). 

2. Article 79-Lesser Included offenses 

b. Explanation. (1) In general. This subparagraph and the three subparagraphs are based on paragraph 158 of MCM, 1969 (Rev.). See also 

United States v. Thacker, 16 U.S.C.M.A. 408, 37 C.M.R. 28 (1966). 

(2) Multiple lesser included flenses. This subparagraph is based on paragraph 158 of MCM, 1969 (Rev.). See also United States v. 

Calhoun, 5 U.S.C.M.A. 428, 18 C.M.R. 52 (1955). 

(3) Findings of guilty to a lesser included flense. This subparagraph is taken from paragraph 158 of MCM, 1969 (Rev.). 

3. Artlcle 78-Accessory after the fact 

c. Explanation. (1) In general. This subparagraph is based on paragraph 157 of MCM, 1969 (Rev.). See also United States v. Tamas, 6 

U.S.C.M.A. 502, 20 C.M.R. 218 (1955). 

(2) Failure to report flense. This subparagraph is based on paragraph 157 of MCM, 1969 (Rev.); United States v. Smith, 5 M.J. 129 

(C.M.A. 1978). 

(3) rnensepunishable by the code. This subparagraph is based on Article 78; UnitedStates v. Michaels, 3 M.J 846 (A.C.M.R. 1977); 

United States v. Blevins, 34 C.M.R. 967 (A. F.B .R. 1964). 

(4) Status ofprincipal. This subparagraph is based on Article 78 and UnitedStates v. Michaels, 3 M.J. 846 (A.C.M.R. 1977); United 

States v. Blevins, 34 C.M.R. 967 (A.F.B.R. 1964). 

(5) Conviction or acquittal qfprincipal. This subparagraph is based on paragraph 157 of MCM, 1969 (Rev.); UnitedStates v. Marsh, 13 

U.S.C.M.A. 252,32 C.M.R. 252 (1962); and UnitedStates v. Humble, 11 U.S.C.M.A. 38,28 C.M.R. 262 (1959). Seealso UnitedStatesv. 

McConnico, 7 M.J. 302 (C.M.A. 1979). 

(6)Accessory after the fact not a lesser included flense. This subparagraph is based on United States v. McFarland, 8 U.S.C.M. A. 42, 

23 C.M.R. 266 (1957). 

(7) Actual Knowledge. This paragraph is based on United States v. Marsh, supra. See United States v. Foushee, 13 M.J. 833 

(A.C.M.R. 1982). 

4. Artlcle 8+Altempts 

c. Explanation. (1) In general. This subparagraph is based on paragraph 159 of MCM, 1969 (Rev.). 

(2) More than preparation. This subparagraph is based on paragraph 159 of MCM, 1969 (Rev.); United States v. Johnson, 7 

U.S.C.M.A. 488,22 C.M.R. 278 (1957); UnitedStates v. Choat, 7 U.S.C.M.A. 187,21 C.M.R. 313 (1956); UnitedStates v. G& 5 M.J. 817 

(A.C.M.R. 1978); United States v. Emerson, 16 C.M.R. 690 (A.F.B.R. 1954). 

(3) Factual impossibility. This subparagraph is based on paragraph 159 of MCM, 1969 (Rev.); United States v. Thomas, 13 

U.S.C.M.A. 278, 32 C.M.R. 278 (1962). See United States v. Quijada, 588 F.2d 1253 (9th Cir. 1978). 
~pp.21, n 5 APPENDIX 21 

(4) Solicitation. This subparagraph is based on paragraph 159 of MCM, 1969 (Rev.). 

(5) Attempts not under Article 80. This subparagraph is based on paragraph 159 of MCM, 1969 (Rev.). 

(6)Regulations. This subparagraph is new and is based on United States v. Davis, 16 M.J. 225 (C.M.A. 1983); United States v. Foster, 

14 M.J. 246 (C.M.A. 1983). 

5. Artlcle 81-Consplracy 

c. Explanation. (1) Co-conspirators. This subparagraph is based on paragraph 160 of MCM, 1969 (Rev.); United States v. Kinder, 14 

C.M.R. 742 (A.F.B.R. 1953). The portion of paragraph 160 which provided that acquittal of all alleged co-conspirators precludes conviction of 

the accused has been deleted. See United States v. Garcia, 16 M.J. 52 (C.M.A. 1983). See also UnitedStates v. Standefer, 447 U.S. 10 (1980). 

(2)Agreement. This subparagraph is taken from paragraph 160 of MCM, 1969 (Rev.). 

(3) Object of the agreement. This subparagraph is taken from paragraph 160 of MCM, 1969 (Rev.); United States v. Kidd, 13 

U.S.C.M.A. 184, 32 C.M.R. 184 (1962). The last three sentences reflect "Wharton's Rule," 4 C. Torcia, Wharton's Criminal Law, 5 731 

(1981).Seelannelli v. UnitedStates, 420 U.S. 770 (1975); UnitedStates v. Yarborough, 1 U.S.C.M.A. 678,5 C.M.R. 106 (1952); UnitedStates 

v. Osthqff; 8 M .J. 629 (A.C.M.R. 1979); United States v. McCblland, 49 C.M.R. 557 (A.C.M.R. 1974). 

(4) Overt act. This subparagraph is taken from paragraph 160 of MCM, 1969 (Rev.); UnitedStates v. Rhodes, 11 U.S.C.M.A. 735,29 

C.M.R. 551 (1960); UnitedStates v. Choat, 7 U.S.C.M.A. 187,21 C.M.R. 313 (1956); and UnitedStatesv. Graalum, 19 C.M.R. 667 (A.B.R. 

1955). 

(5) Liability for Menses. This subparagraph is taken from paragraph 160of MCM, 1969 (Rev.). See Pinkerton v. United States, 328 

U.S. 640 (1946); UnitedStates v. Salisbury, 14 U.S.C.M.A. 171.33 C.M.R. 383 (1963); United States v. Woodley, 13 M.J. 984 (A.C.M.R. 

1982). 

(6) WitMrawal.This subparagraph is taken fromparagraph 160of MCM, 1969 (Rev.); UnitedStatesv. Miasel, 8 U.S.C.M.A. 374,24 

C.M.R. 184 (1957). 

(7) Factual impossibility. This subparagraph is taken from paragraph 160 of MCM, 1969 (Rev.). 

(8) Conspiracy as a separate &erne. This subparagraph is taken from paragraph 160 of MCM, 1969 (Rev.). See also United States v. 

Washington, 1 M. J. 473 (C.M. A. 1976). 

(9) Special conspiracies under Article 134. This subparagraph is taken from paragraph 160 of MCM, 1969 (Rev.); United States v. 

Chapman, 10 C.M.R. 306 (A.B.R. 1953). 

6. Artlcle 82-Sollcltatlon 

b. Elements. Solicitation under Article 82 has long been recognized as a specific intent offense. See paragraph 161 of MCM, 1969 (Rev.); 

paragraph 161 of MCM, 1951. See generally United States v. Mitchell, 15 M.J. 214 (C.M.A. 1983); United States v. Benton, 7 M.J. 606 

(N.C.M.R. 1979). It has been added as an element for clarity. 

c. Explanation. This paragraphis takenfromparagraph 161 of MCM, 1969 (Rev.), UnitedStaresv. Wysong, 9U.S.C.M.A. 248,26 C.M.R. 

29 (1958); United States v. Gentry, 8 U.S.C.M.A. 14, 23 C.M.R. 238 (1957); United States v. Benton, 7 M.J. 606 (N.C.M.R. 1979). 

7. Artlcle 83-Fraudulent enllstment, appointment, or separatlon 

c. Explanation. This paragraph is based on paragraph 162of MCM, 1969 (Rev.); United States v. Danley, 21 U.S.C.M.A. 486,45 C.M.R. 

260 (1972). See Wickham v. Hall, 12 M.J. 145 (C.M.A. 1981). 

e. Maximum Punishment. The reference to membership in, association with, or activities in connection with organizations, associations, 

etc., found in the Table of Maximum Punishments, paragraph 127c of MCM, 1969 (Rev.), for Article 83, was deleted as unnecessary. The 

maximum punishment for all fraudulent enlistment or appointment cases was then standardized. 

8. Article 84-Effecting unlawful enlistment, appolntment, or separation 

c. Explanation. This paragraph is taken from paragraph 163 of MCM, 1969 (Rev.). See also United States v. Hightower, 5 M.J. 717 

(A.C.M.R. 1978). 

e. Maximumpunishment.The reference to membershp in, association with, or activities in comection with organizations, associations, etc., 

found in the Table of Maximum Punishments, paragraph 127c of MCM, 1969 (Rev.), for Article 84, was deleted as unnecessary. The maximum 

punishment for all cases was then standardized. 

c. Explanation. (1) Desertion with intent to remain, away permanently. 

(a) In general. This subparagraph is taken from paragraph 164a of MCM, 1969 (Rev.). 

(b) Absence without authori+inception, duration, termination. See the Analysis, paragraph 10. 
ANALYSIS App. 21,111 

(c)Intent to remain awaypermanently. This subparagraph is taken from paragraph 164a of MCM, 1969 (Rev.). The last sentence is 

based on United States v. Cothern, 8 U.S.C.M.A. 158, 23 C.M.R. 382 (1957). 

(d) Effect qfenlistment or appointment in the same or a different armed force. This subparagraph is based on paragraph 164a of 

MCM, 1969 (Rev.); United States v. HUB 7 U.S .C.M. A. 247, 22 C.M.R. 37 (1956). 

(2) Quitting unit, organization, or place of duty with intent to avoid hazardous duty or to shirk important service. 

(a)Hazardous duty or important service. This subparagraph is taken fromparagraph 164aof MCM, 1969 (Rev.). See also United 

States v. Smith, 18 U.S.C.M.A. 46, 39 C.M.R. 46 (1968); United States v. Deller, 3 U.S.C.M.A. 409, 12 C.M.R. 165 (1953). 

(b)Quits. This subparagraph is based on United States v. Bondar, 2 U.S.C.M.A. 357, 8 C.M.R. 157 (1953). 

(c) Actual Knowledge. This subparagraph is based on United States v. Stabler, 4 U.S.C.M.A. 125, 15 C.M.R. 125 (1954) and 

rejects the view of paragraph 164a of MCM, 1969 (Rev.) that constructive knowledge would suffice. To avoid confusion, the "constructive 

knowledge" language has been replaced with the statement that actual knowledge may be proved by circumstantial evidence. See UnitedStates v. 

Curtin, 9 U.S.C.M.A. 427, 26 C.M.R. 207 (1958). 

(3) Attempting to desert. This subparagraph is taken from paragraph 164b of MCM, 1969 (Rev.). 

(4) Prisoner with executed punitive discharge. This subparagraph is taken from paragraphs 164a and 165 of MCM, 1969 (Rev.). 

e. Maximum punishment. As indicated in the Analysis, paragraph 4, attempts, the punishment for attempted desertion was made uniform. 

As a result, attempted desertion-"other cases of'-now conforms with the punishment for "desertion--other cases of." This amounts to an 

increase in the maximum punishment from confinement for one year to either two or three years, depending on the nature of termination. 

10. Artlcle 86Absence without leave 

c. Explanation. (1) In general. This subparagraph is taken from paragraph 165 of MCM, 1969 (Rev.). 

(2)Actual knowledge. This subparagraph clarifies that the accused must have in fact known of the time and place of duty to be guilty of 

a violation of Article 86(1) or (2). C' United States v. Chandler, 23 U.S.C.M.A. 193, 48 C.M.R. 945 (1974); United States v. Stabler, 4 

U.S.C.M.A. 125,15 C.M.R. 125 (1954). Seealso UnitedStates v. Gilbert, 23 C.M.R. 914 (A.F.B.R. 1957). The language inparagraph 165 of 

MCM, 1969 (Rev.) dealing with constructive knowledge has been eliminated. To avoid confusion, this language has been replaced with the 

statement that actual knowledge may be proved by circumstantial evidence. See United States v. Curtin, 9 U.S.C.M.A. 427, 26 C.M.R. 207 

(1958). 

(3) Intent. This subparagraph is based on paragraph 165 of MCM, 1969 (Rev.). 

(4)Aggravated forms qf unauthorized absence. This subparagraph is based on paragraphs 127c and 165 of MCM, 1969 (Rev.). 

(5) Civil authorities. This subparagraph is taken from p'aragraph 165 of MCM, 1969 (Rev.); United States v. Myhre, 9 U.S.C.M.A. 

32,25 C.M.R. 294 (1958); United States v. Grover, 10 U.S.C.M.A. 91, 27 C.M.R. 165 (1958). See also United States v. Dubry, 12 M.J. 36 

(C.M.A. 1981). 

(6) Inability to return. This subparagraph is taken from paragraph 165 of MCM, 1969 (Rev.). 

(7)Determining the unit or organization ofan accused. This subparagraph is based on UnitedStates v. Pounds, 23 U.S.C.M.A. 153, 

48 C.M.R. 769 (1974); United States v. Mitchell, 7 U.S.C.M.A. 238, 22 C.M.R. 28 (1956). 

(8)Duration.This subparagraph is taken fromparagraphs 127c and 165 of MCM, 1969 (Rev.); United States v. Lovell, 7 U.S .C.M.A. 

445, 22 C.M.R. 235 (1956). 

(9) Computation of duration. This subsection is based on paragraph 127c(3) af MCM, 1969 (Rev.). 

(10) Termination-methods ofreturn to military control. This subparagraph is based on paragraph 165 of MCM, 1969 (Rev.); United 

States v. Dubry, supra; UnitedStates v. Raymo, 1 M.J. 31 (C.M.A. 1975); UnitedStates v. Garner, 7 U.S.C.M.A. 578,23 C.M.R. 42 (1957); 

UnitedStatesv. Coates, 2U.S.C.M.A. 625,lOC.M.R. 123 (1953); UnitedStatesv. Jackson, 1 U.S.C.M.A. 190,2 C.M.R. 96 (1952); United 

States v. Petterson, 14 M.J. 608 (A.EC.M.R. 1982); United States v. Coglin, 10 M. J. 670 (A.F.C.M.R. 1981). See also United States v. Zammit, 

14 M.J. 554 (N.M.C.M.R. 1982). 

(11) Findings qf more than one absence under one specification. This subsection is based on United States v. Francis, 15 M.J. 424 

(C.M.A. 1983). 

(e)Maximumpunishment. The increased maximum punishment for unauthorized absence for more than 30 days terminated by apprehension 

has been added to parallel the effect of termination of desertion by apprehension and to encourage absent servicemembers to voluntarily return. A 

bad-conduct discharge was added to the permissible maximum punishment for unauthorized absence with intent to avoid maneuvers or field duty, 

because with sensitive, high value equipment used in exercises currently, the effect of such absence is more costly and, because of limited 

available training time, seriously disrupts training and combat readiness. 

11. Article 87-Missing movemerit 

c. Explanation. (1)Movement. This subparagraph is based on paragraph 166 of MCM, 1969 (Rev.); United States v. Kimply, 17 C.M.R. 469 

(N.B.R. 1954). 
App. 21, U 12 APPENDIX 21 

(2)Mode qfmovement. This subparagraph is based on UnitedStates v. Graham, 16 M.J. 460 (C.M.A. 1983); UnitedStates v. Johnson, 

3 U.S.C.M. A. 174, 1 1 C.M.R. 174 (1953); United States v. Burke, 6 C.M.R. 588 (A.B.R. 1952); United States v. Jackson, 5 C.M.R. 429 

(A.B.R. 1952). See also United States v. Graham, 12 M.J. 1026 (A.C.M.R.), pet granted, 14 M.J. 223 (1982). 

(3) Design. This subparagraph is based on United States v. Clifton, 5 C.M.R. 342 (N.B.R. 1952). 

(4) Neglect. This subparagraph is taken from paragraph 166 of MCM, 1969 (Rev.). 

(5)Actual knowledge. This subparagraph is based on United States v. Chandler, 23 U.S.C.M.A. 193,48 C.M.R. 945 (1974), United 

States v. Thompson, 2 U.S.C.M.A. 460, 9 C.M.R. 90 (1953), and in part on paragraph 166 of MCM, 1969 (Rev.). This paragraph rejects the 

language of paragraph 166 of MCM, 1969 (Rev.), which had provided for "constructive knowledge," and adopts the "actual knowledge" 

requirement set forth in Chandler. 

(6) Proofojabsence. This subparagraph is taken from paragraph 166 of MCM, 1969 (Rev.). 

e. Maximum punishment. The maximum punishment for missing movement was increased to make these punishments more equivalent to 

aggravated offenses of unauthorized absence and violations of orders. The major reliance of the armed forces on rapid deployment and expeditious 

movement of personnel and equipment to deter or prevent the escalation of hostilities dictates that these offenses be viewed more seriously. 

12. Artlcle 88-Contempt toward officials 

c. Expla~tion.This paragraph is taken from paragraph 167 of MCM, 1969 (Rev.). For a discussion of the history of Article 88, see United 

States v. Howe, 17 U.S.C.M.A. 165, 37 C.M.R. 429 (1967). 

e. Maximum punishment. This limitation is new and is based on the authority given the President in Article 56. Paragraph 127c of MCM, 

1969 (Rev.) does not mention Article 88. The maximum punishment is based on the maximum punishment for Article of War 62, which was 

analogous to Article 88, as prescribed in paragraph 117c of MCM (Army), 1949 and MCM (AF), 1949. 

13. Article 69-Dlsrespect toward a superlor commlssloned officer 

c. Explanation. This paragraph is taken from Article l(5); paragraph 168 of MCM, 1969 (Rev.); United States v. Richardson, 7 M.J. 320 

(C.M.A. 1979);UnitedStates v. Ferenczi, 10 U.S.C.M.A. 3,27 C.M.R. 77 (1958); UnitedStates v. Sorrells, 49 C.M.R. 44 (A.C.M.R. 1974); 

United States v. Cheeks, 43 C.M.R. 1013 (A.F.C.M.R. 1971); United States v. Montgomery, 11 C.M.R. 308 (A.B .R. 1953). 

e. Maximum punishment. The maximum punishment was increased from confinement for 6 months to confinement for 1 year to more 

accurately reflect the serious nature of the offense and to distinguish it from disrespect toward warrant officers under hcle 91. See paragraph 

15c. 

14. Artlcle 9&Assaultlng or willfully disobeying superior commissioned officer 

c. Explanation. (1) Striking or assaulting superior commissioned ofJicer. This subparagraph is based on paragraph 16% of MCM, 1969 

(Rev.) and other authorities as noted below. 

(a) Defnitions. "Strikes" is clarified to include any intentional offensive touching. Other batteries, such as by culpable 

negligence, are included in "offers violence." As to "superior commissioned officer," see Analysis, paragraph 13. 

(d) Defenses. This subparagraph modifies the former discussion of self-defense since technically, because unlawfulness is not an 

element expressly, the officer must be acting illegally or otherwise outside the role of an officer before self-defense may be in issue. See United 

States v. Sfruckman, 20 U.S.C.M.A. 493, 43 C.M.R. 333 (1971). 

(2) Disobeying superior commissioned ofJicer. This subparagraph is based on paragraph 169b of MCM, 1969 (Rev.) and other 

authorities as noted below. 

(a) Lm&lness of the order. 

(i) Inference oj lawfulness. See United States v. Keenan, 18 U.S.C.M.A. 108, 39 C.M.R. 108 (1969); United States v. 

Schultz, 18 U.S.C.M.A. 133, 39 C.M.R. 133 (1969); United States v. Kinder, 14 C.M.R. 742 (A.B.R. 1954). 

(ii) Authority of issuing ofJicer. See United States v. Marsh, 3 U.S.C.M.A. 48, 11 C.M.R. 48 (1953). 

(iii) Relationship to military duty. See United States v. Martin, 1 U.S.C.M.A. 674, 5 C.M.R. 102 (1952); United States v. 

Wilson, 12 U.S.C.M.A. 165, 30 C.M.R. 165 (1961) (restriction on drinking); United States v. Nation, 9 U.S.C.M.A. 724,26 C.M.R. 504 

(1958) (overseas marriage); UnitedStates v. Lenox, 21 U.S.C.M.A. 314,45 C.M.R. 88 (1972); United States v. Stewart, 20 U.S.C.M.A. 272, 

43 C.M.R. 112 (1971); UnitedStates v. Wilson, 19 U.S.C.M.A. 100,41 C.M.R. 100 (1969); UnitedStates v. Noyd, 18 U.S.C.M.A. 483,40 

C.M.R. 195 (1969) (all dealing with matters that do not excuse the disobedience of an order). 

(iv) Relationship to statutory or constitutional rights. This subparagraph is based on Article 3 1; United States v. McCoy, 12 

U.S.C.M.A. 68, 30 C.M.R. 68 (1960); United States v. Aycock, 15 U.S.C.M.A. 158, 35 C.M.R. 130 (1964). 

(b) Personal nature of the order. See United States v. Wartsbaugh, 21 U.S.C.M. A. 535, 45 C.M.R. 309 (1972). 

(d) Spec$city of the order. See United States v. Bratcher, 18 U.S.C.M.A. 125, 38 C.M.R. 125 (1969). 
ANALYSIS App. 21, 7 18 

(e) Knowledge. See United States v. Pettigrew, 19 U.S.C.M.A. 191, 41 C.M.R. 191 (1970); United States v. Oisten, 13 

U.S.C.M.A. 656, 33 C.M.R. 188 (1963). 

(g) Time for compliance. See United States v. Stout. 1 U.S.C.M.A. 639,5 C.M.R. 67 (1952); United States v. Squire, 47 C.M.R. 

214 (N.C.M.R. 1973); United States v. Clowser, 16 C.M.R. 543 (A.EB.R. 1954). 

15. Article 91-Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer 

c. Explanation. (1) In general. This subparagraph is based on paragraph 170 of MCM, 1969 (Rev.) and paragraph 170 of MCM, 1951; a 

review of the legislative history of Article 91; United States v. Ransome, 1 M.J. 1005 (N.C.M.R. 1976); United States v. Balsarini, 36 C.M.R. 

809 (C.G.B.R. 1965). Paragraph 170 of MCM, 1951 and MCM, 1969 (Rev.) discussed Article 91 as if Congress had required a superiorsubordinate relationship in Article 91. See Legal and Legislative Basis, Manual for Courts-Martial, United States, 1951, at 257. Analysis Q 

Contents, Manual for Courts-Martial, United States, 1969(Revised edition), DA PAM 27-2, at 28-6. This was in error and all references thereto 

have been removed. An amendment to Article 91 was suggested by The Judge Advocate General of the Army (see Hearings on S.857 andH.R. 

4080Before a Subcommittee ofthe Senate Armed Services Committee, 8Ist Cong., 1st Sess. 274 (1949)) to conform Article 91 to Articles 89 and 

90, which explicitly require superiority, and was later offered, but it was not acted on. See Congressional Floor Debate on the Uniform Code of 

Military Justice (amendment M, p. 170). See also Hearings Before a Subcommittee ofthe House Armed Services Committee on H.R. 2498.81st 

Cong. 1st Sess. 772,814,823 (1949). This present interpretation is consistent with the unambiguous language of Article 91 and its predecessors. 

See Articles of War 65 and I(b) (1920); and paragraph 135, MCM, 1928; paragraph 153, MCM (Army), 1949 and MCM (AF), 1949.See also Act 

of Aug. 10, 1956, Pub L. No. 84-1028, 5 49(e), 70A Stat. 640 (catchlines in U.C.M.J. not relevant to congressional intent). 

The remaining subparagraphs are all taken from paragraph 170 of MCM, 1969 (Rev.) and the discussion paragraphs of other articles. 

e. Maximumpunishment.Subparagraphs (2) and (7) are based on the aggravating circumstance that the victim is also superior to the accused. 

When this factor exists in a given case, the superiority of the victim must be alleged in the specification. The penalties for disobedience of 

noncommissioned and petty officers and for assault on and disrespect toward superior noncommissioned and petty officers were increased. In the 

case of the latter two offenses, this is done in part to distinguish assault on or disrespect toward a superior noncommissioned or petty officer from 

other assaults or disrespectful behavior, in light of the expansive coverage of the article. Moreover, increasing responsibility for training, complex 

and expensive equipment, and leadership in combat is placed on noncommissioned and petty officers in today's armed forces. The law should 

reinforce the respect and obedience which is due them with meaningful sanctions. The maximum punishment for disrespect toward warrant 

officers was adjusted to conform to these changes. 

16. Article 92-Failure to obey order or regulation 

c. Explanation. This paragraph is taken from paragraph 171 of MCM, 1969 (Rev.). The requirement that actual knowledge be an element of 

an Article 92(3) offense is based on United States v. Curtin, 9 U.S.C.M.A. 427, 26 C.M.R. 207 (1958). 

As to publication under subparagraph c(l)(a), see United States v. Tolkach, 14 M.J. 239 (C.M.A. 1982). 

Subparagraph (l)(e) Enforceability is new. This subparagraph is based on United States v. Nardell, 21 U.S.C.M. A. 327,45 C.M.R. 101 

(1972); UnitedStates v. Hogsett, 8 U.S.C.M.A. 681,25 C.M.R. 185 (1958). The general order orregulation violated must, when examined as a 

whole, demonstrate that it is intended to regulate the conduct of individual servicemembers, and the direct application of sanctions for violations 

of the regulation must be self-evident. United States v. Nardell, supra at 329,45 C.M.R. at 103. See United States v. Wheeler, 22 U.S .C.M. A. 

149,46 C.M.R., 149, (1973); United States v. Scott, 22 U.S.C.M.A. 25,46 C.M.R. 24 (1972); United States v. Woodrum, 20 U.S.C.M.A. 529, 

43 C.M.R. 369 (1971); United States v. Brooks, 20 U.S.C.M.A. 42,42 C.M.R. 220 (1970); United States v. Baker, 18 U.S.C.M.A. 504,40 

C.M.R. 216(1969); UnitedStatesv. Tassos, 18 U.S.C.M.A. 12,39C.M.R. 12(1968); UnitedStatesv. Farley, 11 U.S.C.M.A. 730,29C.M.R. 

546 (1960); DiChiara, Article 92: Judicial Guidelines for Identifying Punitive Orders and Regulations, 17 A.F.L. Rev. Summer 1975 at 61. 

e. Maximum punishment. The maximum punishment for willful dereliction of duty was increased from 3 months to 6 months confinement 

and to include a bad-conduct discharge because such offenses involve a flaunting of authority and are more closely analogous to disobedience 

offenses. 

17. Article 93--Cruelty and maltreatment 

c. Explanation. This paragraph is based on paragraph 172 of MCM, 1969 (Rev.); United States v. Dickey, 20 C.M.R. 486 (A.B.R. 1956). 

The phrase "subject to the Code or not" was added to reflect the fact that the victim could be someone other than a member of the military. The 

example of sexual harassment was added because some forms of such conduct are nonphysical maltreatment. 

18. Article 94-Mutiny and sedition 

c. Explanation. This paragraph is taken from paragraph 173 of MCM, 1969 (Rev.). Subparagraph (1) is also based on United States v. 

Woolbright, 12 U.S.C.M.A. 450,31 C.M.R. 36 (1961); UnitedStates v. Duggan, 4 U.S.C.M.A. 396,15 C.M.R. 396 (1954). The reference in 

paragraph 173 of MCM, 1969 (Rev.) to charging failure to report an impending mutiny or sedition under Article 134 has been deleted in 

subparagraph (4). This is because such an offense was not listed in the Table of Maximum Punishments or elsewhere under Article 134 in that 

Manual. Article of War 67 included this offense, but Article 94 excludes it. The drafters of paragraph 173 of MCM, 1951 noted the change. To fill 

the gap they referred to Article 134. Instead, they should have referred to Article 92(3) because dereliction is the gravamen of the offense. 
App. 21, lI19 APPENDIX 21 

19. Artlcle g&Resistance, breach of arrest, and escape 

b. Elements. The elements listed for breaking arrest and escape from custody or confinement have been modified. Paragraphs 174b. c, andd 

of MCM, 1969 (Rev.), provided that the accused be "duly" placed in arrest, custody, or confinement. "Duly" was deleted from the elements of 

these offenses. Instead, the elements specify that the restraint be imposed by one with authority to impose it. This was done to clarify the meaning 

of the word "duly" and the burden of going forward on the issues of authority to order restraint and the legal basis for the decision to order 

restraint. 

"Duly" means "In due or proper form or manner; according to legal requirements." Black's Law Dictionary 450 (5th ed. 1979). See also 

UnitedStates v. Carson, 15 U.S.C.M.A. 407,35 C.M.R. 379 (1965). Thus the tennincludes arequirement that restraint be imposed by one with 

authority to do so, and a requirement that such authority be exercised lawfully. Until 1969, the Manual also provided that arrest, confinement, or 

custody which is "officially imposed is presumed to be legal." Paragraph 174 of MCM, 1951. See also paragraph 157 of MCM (Army), 1949; 

MCM (AF), 1949; paragraph 139 of MCM, 1928. In practical effect, therefore, the prosecution had only to present evidence of the authority of the 

official imposing restraint to meet its burden of proof, unless the presumption of legality was rebutted by some evidence. See United States v. 

Delgado, 12 C.M.R. 651 (C.G.B.R. 1953). Cf: United States v. Clansey, 7 U.S.C.M.A. 230,22 C.M.R. 20 (1956); United States v. Gray, 6 

U.S.C.M.A. 615, 20 C.M.R. 331 (1956). 

The drafters of MCM, 1969 (Rev.), deleted the presumption of legality. In their view the holding in UnitedStates v. Carson, supra, that this is 

a question of law to be decided by the military judge made such a presumption meaningless. Analysis @Contents, Manual for Courts-Martial, 

United States, 1969 (Revised edition), DA PAM 27-2, at 28-8. The drafters considered deleting "duly" as an element but did not because the 

prosecution must show that restraint was "duly" imposed. Id. The result left the implication that the prosecution must produce evidence of both 

the authority of the person imposing or ordering restraint, and the legality of that official's decision in every case, whether or not the latter is 

contested. Given the dual meaning of the word "duly" and the reason for deleting the presumption of legality, it is unclear whether the drafters 

intended this result. C' United States v. Stinson, 43 C.M.R. 595 (A.C.M.R. 1970). 

"Duly" is replaced with the requirement that the person ordering restraint be proved to have authority to do so. This clarifies that proof of 

arrest, custody, or confinement ordered by a person with authority to do so is sufficient without proof of the underlying basis for the restraint (e.g., 

probable cause, legally sufficient nonjudicial punishment, risk of flight), unless the latter is put in issue by the defense. This is consistent with 

Article 95 which on its face does not require the restraint to be lawful (compare Article 95 withArticles 90-92 which prohibit violations of "lawJul 

ordersm-which orders are presumed lawful in the absence of evidence to the contrary, UnitedStates v. Smith, 21 U.S.C.M.A. 231.45 C.M.R. 5 

(1972)). This construction is also supported by judicial decisions. See United States v. Wilson, 6 M.J. 214 (C.M.A. 1979); United States v. 

Clansey, supra; United States v. Yerger, 1 U.S.C.M.A. 288,3 C.M.R. 22 (1952); UnitedStates v. Delgado, supra. Cf: United States v. Mackie, 

16 U.S.C.M.A. 14, 36 C.M.R. 170 (1966); United States v. Gray, supra. But see United States v. Rozier, 1 M.J. 469 (C.M.A. 1976). This 

construction also avoids unnecessary litigation of a collateral issue and eliminates the necessity for the introduction of uncharged misconduct, 

except when the door is opened by the defense. Cf: United States v. Yerger, supra; United Stares v. Mackie, supra. 

c. Explanation (1) Resisting apprehension. 

(a) Apprehension. This subparagraph is taken from Article 7. 

(b) Authority to apprehend. See Analysis, R.C.M. 302(b). The last two sentences are based on paragraph 57b of MCM, 1969 

(Rev.); United States v. Carson, supra. 

(c) Nature @the resistance. This subparagraph is taken from paragraph 174a of MCM, 1969 (Rev.). 

(d) Mistake. This subparagraph is taken from paragraph 174a of MCM, 1969 (Rev.). See also United States v. Nelson, 17 

U.S.C.M.A. 620, 38 C.M.R. 418 (1968). 

(e) Illegal apprehension. The first sentence of this subparagraph is taken from paragraph 174a of MCM, 1969 (Rev.). Although 

such arule is not without criticism, see UnitedStates v. Lewis, 7 M.J. 348 (C.M.A. 1979); UnitedStates v. Moore, 483 E2d 1361, 1364 (9th Cir. 

1973), it has long been recognized in military and civilian courts. John Bad Elk v. United States, 177 U.S. 529 (1900); paragraph 174a of MCM, 

1951. Cf: paragraph 157 of MCM (Army), 1949; MCM (AF), 1949; paragraph 139 of MCM, 1928; W. Winthrop, Military Law and Precedents 

122 (2d ed. 1920 reprint). (Before 1951 resisting apprehension was not specifically prohibited by the Articles of War. Earlier references are to 

breaking arrest or escape from confinement.) 

The second sentence has been added to make clear that the issue of legality of an apprehension (e.g., whether based on probable cause or 

otherwise in accordance with requirements for legal sufficiency; see R.C.M. 302(e)) is not in issue until raised by the defense. United States v. 

Wilson, and United States v. Clansey, both supra. Cf: United States v. Smith, 21 U.S.C.M.A. 23 1, 45 C.M.R. 5 (1972). See also Analysis, 

paragraph 19b. The presumption is a burden assigning device; it has no evidentiary weight once the issue is raised. Because the issue of legality is 

not an element, and because the prosecution bears the burdenof establishing legality when the issue is raised, the problems of Mullaney v. Wilbur. 

421 U.S.684 (1975) and Turner v. United States, 396 U.S. 398 (1970) are not encountered. Cf: Patterson v. New York, 432 U.S. 197 (1977). 

The third sentence is based on United States v. Carson, supra. 

(2) Breaking arrest. 

(a) Arrest. This subparagraph has been added for clarity. 

(b) Authoriry to order arrest. See Analysis, R.C.M. 304(b); R.C.M. 1101; and paragraph 2, Part V. 

(c) Nature @restraint imposed by arrest. This subparagraph is based on paragraph 174b of MCM, 1969 (Rev.). See also Analysis, 

paragraph 19b. 
ANALYSIS 

(d) Breaking. This subparagraph is based on paragraph 174b of MCM, 1969 (Rev.). 

(e)Illegal arrest. The first sentence in this subparagraph is based on paragraph 1746 of MCM, 1969 (Rev.). The second sentence 

has been added to clarify that legality of an arrest (e.g., whether based on probable cause or based on legally sufficient nonjudicial punishment or 

court-martial sentence) is not in issue until raised by the defense. See Analysis, paragraphs 19b and 19c(l)(e). The third sentence is based on 

United States v. Carson, supra. 

(3) Escape from custody. 

(a) Custody. This subparagraph is taken from paragraph 174d of MCM, 1969 (Rev.). As to the distinction between escape from 

custody and escape from confinement, see UnitedStates v. Ellsey, 16 U.S.C.M.A. 455,37 C.M.R. 75 (1966). But see UnitedStates v. Felty, 12 

M.J. 438 (C.M.A. 1982). 

(b) Authority to apprehend. See Analysis, paragraph 19c(l)(b). 

(c) Escape. This cross-reference is based on paragraph 174c of MCM, 1969 (Rev.). 

(d)Illegal custody. The first sentence in this subparagraph is based on paragraph 174b of MCM, 1969 (Rev.). The second sentence 

has been added to clarify that legality of custody (e.g., whether based on probable cause) is not in issue until raised by the defense. See Analysis, 

paragraphs 19b and 19c(l)(e). The thud sentence is based on United States v. Carson, supra. 

(4) Escape from confinement. 

(a) Confinement. See Article 9(a). See also Analysis, R.C.M. 305; R.C.M. 1101; and paragraph Sc, Part V. 

(b) Authority to order confinement. See Analysis, R.C.M. 304(b); R.C.M. 1101; and paragraph 2, Part V. 

(c)Escape. This subparagraph is based on paragraph 174c of MCM, 1969 (Rev.). See also UnitedStates v. Maslanich, 13 M. J. 61 1 

(A.F.C.M.R. 1982). 

(d) Status when temporarily outside confinement facility. This subparagraph is based on United States v. Silk, 37 C.M.R. 523 

(A.B .R. 1966); United States v. Sines, 34 C.M.R. 716 (N.B.R. 1964). 

(e) Legality of confinement.This subparagraph is based on 174b of MCM, 1969 (Rev.). The second sentence has been added to 

clarify that legality of confinement (e.g., whether based on probable cause or otherwise in accordance with requirements for legaI sufficiency) is 

not in issue until raised by the defense. See Analysis, paragraphs 19b and 19c(l)(e). The third sentence is based on UnitedStatesv. Carson, supra. 

20. Artlcle 96Releasing prisoner without proper authority 

c. Explanation. This paragraph is based on paragraph 175 of MCM, 1969 (Rev.); United States v. Johnpier, 12 U.S.C.M. A. 90,30 C.M.R. 

90 (1961). Subparagraphs (l)(c) and (d) have been modified to conform to rules elsewhere in this Manual and restated for clarity. 

21. Article 97-Unlawf~il detentlon 

c. Explanation. This paragraph is based on paragraph 176 of MCM, 1969 (Rev.); United States v. Johnson, 3 M. J. 361 (C.M. A. 1977). The 

explanation of the scope of Article 97 is new and results from Johnson and the legislative history of Article 97 cited therein. Id. at 363 n.6. 

22. Article 98-Noncompliance with procedural rules 

c. Explanation. This paragraph is taken from paragraph 177 of MCM, 1969 (Rev.). 

e. Maximum punishment. The maximum punishment for intentional failure to enforce or comply with provisions of the code has been 

increased from that specified in paragraph 127c of MCM, 1969 (Rev.) to more accurately reflect the seriousness of this offense. See generally 18 

U.S.C. 11505, the second paragraph of which prohibits acts analogous to those prohibited in Article 98(2). 

23. Article 99-Misbehavior before the enemy 

c. Explanation. This paragraph is based on paragraphs 178 and 183a of MCM, 1969 (Rev.); UnitedStates v. Sperland, 1 U.S.C.M.A. 661,5 

C.M.R. 89 (1952) (discussion of "before or in the presence of the enemy"); United States v. Parker, 3 U.S.C.M.A. 541, 13 C.M.R. 97 (1953) 

(discussion of "running away"); United States v. Monday, 36 C.M.R. 71 1 (A.B .R. 1966). pet. denied, 16 U.S.C.M.A. 659, 37 C.M.R. 471 

(1966) (discussion of "the enemy") (see also United States v. Anderson, 17 U.S.C.M.A. 588, 38 C.M.R. 386 (1968)); United States v. 

Yarborough, 1 U.S.C.M.A. 678, 5 C.M.R. 106 (1952) (discussion of "fear"); UnitedStates v. Presley, 18 U.S.C.M.A. 474,40 C.M.R. 186 

(1969); United States v. King, 5 U.S .C.M.A. 3, 17 C.M.R. 3 (1954) (discussion of illness as a defense to a charge of cowardice); United States v. 

Terry, 36C.M.R. 756 (N.B.R. 1965), afd, 16U.S.C.M.A. 192,36C.M.R. 348 (1966) (discussionof"falsealarm); UnitedStatesv. Payne, 40 

C.M.R. 516 (A.B.R. 1969), pet. denied, 18 U.S.C.M.A. 636, 40 C.M.R. 327 (1969) (discussion of failure to do utmost). 

24. Artlcle 100-Subordinate compelling surrender 

c. Explanation. This paragraph is taken from paragraph 179 of MCM, 1969 (Rev.). 

25. Article 101-Improper use of countersign 

c. Explanation. This paragraph is based on paragraph 180 of MCM, 1969 (Rev.). 
App. 21, % 26 APPENDIX 21 

26. Artlcle 102-Forclng a safeguard 

c. Explanation. This paragraph is taken from paragraph 181 of MCM, 1969 (Rev.). Note that a "time of war" need not exist for the 

commission of this offense. See Hearings on H. R. 2498BejoreaSubcomm. ofthe House Comm. on ArmedServices, 81st Cong., 1st Sess. 1229 

(1949). See also UnitedStates v. Anderson, 17 U.S.C.M.A. 588,38 C.M.R. 386 (1968) (concerning a state of belligerency short of formal war). 

27. Artlcle IO&Captured or abandoned property 

c. Explanation. This paragraph is taken from paragraph 182 of MCM, 1969 (Rev.). 

e. Maximumpunishment.The maximum punishments based on value have been revised. Instead ofthree levels ($50 or less, $50 to $100, and 

over $loo), only two mused. This is simpler and conforms more closely to the division between felony and misdemeanor penalties contingent on 

value in property offenses in civilian jurisdictions. 

28. Artlcle 104--Aldlng the enemy 

c. Explanation. This paragraph is based on paragraph 183 of MCM, 1969 (Rev.). See also United States v. Olson, 7 U.S .C.M.A. 460,22 

C.M.R. 250 (1957); UnitedStatesv. Batchelor, 7 U.S.C.M.A. 354,22C.M.R. 144 (1956); UnitedStates v. Dickenson, 6U.S.C.M.A. 438,20 

C.M.R. 154 (1955). 

29. Artlcle 105--Misconduct as a prisoner 

c. Explanation. This paragraph is based on paragraph 184 ofMCM, 1969 (Rev.). Seealso UnitedStatesv. Batchelor, 7 U.S.C.M.A. 354,22 

C.M.R. 144 (1956); United States v. Dickenson, 7 U.S.C.M.A. 438, 20 C.M.R. 154 (1955). 

30. Artlcle 10GSpies 

c. Explanation.This paragraph is taken from paragraph 185 of MCM, 1969 (Rev.). Seegenerally W. Withop, Military LaoandPrecedents 

766-771 (2d ed. 1920 reprint). Subparagraphs (4) and (6)(b) are also based on Annex to Hague Convention No. N,Respecting the law and 

customs of war on land, Oct. 18, 1907, Arts. XXIX and XXXI,36 Stat. 2303, T.S. No. 539, at 33. 

31. Artlcle 107-False official statements 

C. Explanation. (1) OfJicial documents andstatements. This subparagraph is based on paragraph 186 of MCM, 1969 (Rev.); United States v. 

Cummings, 3 M.J. 246 (C.M.A. 1977). See also UnitedStates v. Collier, 23 U.S.C.M.A. 173,48 C.M.R. 789 (1974) regarding voluntary false 

statement to military police). 

(2) Status cfvictim. The first sentence of this subparagraph is based on United States v. Cummings, supra. The second sentence is based 

on United States v. Ragins, 11 M.J. 42 (C.M.A. 1981). 

(3) Intent to deceive. This subparagraph is based on paragraph 186 of MCM, 1969 (Rev.); UnitedStates v. Hutchins, 5 U.S.C.M.A. 

422, 18 C.M.R. 46 (1955). 

(4) Material gain. This subparagraph is based on paragraph 186 of MCM, 1969 (Rev.). 

(5)Knowledge that the document or statement wasfalse. This subparagraph is based on the language of Atticle 107 and on United States 

v.Acosta, 19 U.S.C.M.A. 341,41 C.M.R. 341 (1970), and clarifiesas paragraph 186 of MCM, 1969 (Rev.), did not-that actual knowledge of 

the falsity is necessary. See also UnitedStates v. DeWayne, 7 M.J. 755 (A.C.M.R. 1979); UnitedStates v. Wright, 34 C.M.R. 518 (A.B.R. 1963); 

United States v. Hughes, 19 C.M.R. 63 1 (A.F.B.R. 1955). 

(6) Statements made during an interrogation. This subparagraph is based on paragraph 186 of MCM, 1969 (Rev.); United States v. 

Davenport, 9 M.J. 364 (C.M.A. 1980); United States v. Washington, 9 U.S.C.M.A. 131,25 C.M.R. 393 (1958); United States v. Aronson, 8 

U.S.C.M.A. 525, 25 C.M.R. 29 (1957). 

d. Maximumpunishment.The maximum penalty for all offenses under Article 107 has been increased to include confinement for 5 years to 

correspondto18U.S.C. 5 1001,theFederalciviliancounterpartofArticle107.SeeUnitedStatesv.DeAngel0, 15U.S.C.M.A.423,35C.M.R. 

395 (1965). 

32. Artlcle 108-Mllltary property of the Unlted States--sale, loss, damage, destruction, or wrongful dlsposltion 

c. Explanation. This paragraph is based on paragraph 187 of MCM, 1969 (Rev.). See also United States v. Bernacki, 13 U.S.C.M.A. 641, 

33 C.M.R. 173 (1963); United States v. Harvey, 6 M.J. 545 (N.C.M.R. 1978); United States v. Geisler, 37 C.M.R. 530 (A.B.R. 1966). The last 

sentence in subparagraph (c)(l) is based on United States v. Schelin, 15 M.J. 218 (C.M.A. 1983). 

d. Lesser included flense. See United States v. Mizner. 49 C.M.R. 26 (A.C.M.R. 1974). 

e. Maximum punishment. The maximum punishments have been revised. Instead of three levels ($50 or less, $50 to $100, and over $100) 

only two are used. This is simpler and conforms more closely to the division between felony and misdemeanor penalties contingent on value in 

property offenses in civilian jurisdictions. The punishments are based on 18 U.S.C. 6 1361. The maximum punishment for selling or wrongfully 

disposing of a firearmor explosive and for willfully damaging, destroying, or losing such property or suffering it to be lost, damaged, destroyed, 

sold, or wrongfully disposed of includes 10 years confinement regardless of the value of the item. The harm to the military in such cases is not 

simply the intrinsic value of the item. Because of their nature, special accountability and protective measures are employed to protect firearms or 
ANALYSIS App. 21, ll37 

explosives against loss, damage, destruction, sale, and wrongful disposition. Such property may be a target of theft or other offenses without 

regard to its value. Therefore, to protect the Government's special interest in such property, and the community against improper disposition, such 

property is treated the same as property of a higher value. 

33. Artlcle 109-Property other than mllitary property of the United States--waste, spoilage, or destruction 

c. Explanation. This paragraph is based on paragraph 188 of MCM, 1969 (Rev.). See also UnitedStates v. Bernacki, 13 U.S.C.M.A. 641, 

33 C.M.R. 173 (1963). 

e. Maximum punishment. The maximum punishments have been revised. Instead of three levels ($50 or less, $50 to $100, and over $100). 

only two are used. This is simpler and conforms more closely to the division between felony and misdemeanor penalties contingent on value in 

property offenses in civilian jurisdictions. 

f. Sample specijication. See United States v. Collins, 16 U.S. C.M. A. 167,36 C.M.R. 323 (1966), concerning charging damage to different 

articles belonging to different owners, which occurred during a single transaction, as one offense. 

34. Artlcle 110-Improper hazarding of vessel 

c. Explanation. This paragraph is based on paragraph 189 of MCM, 1969 (Rev.). See also United States v. Adams, 42 C.M.R. 911 

(N.C.M.R. 1970),pet. denied, 20 U.S.C.M.A. 628 (1970); UnitedStates v. MacLane, 32 C.M.R. 732 (C.G.B.R. 1962); UnitedStates v. Day, 

23 C.M.R. 651 (N.B.R. 1957). 

35. Artlcle 11 1-Drunken or reckless driving 

b. Elements. The aggravating element of injury is listed as suggested by sample specification number 75 and the Table of Maximum 

Punishments at 25-13 and A613 of MCM, 1969 (Rev.). The wording leaves it possible to plead and prove that the accused was injured as a result 

of the accused's drunken driving and so make available the higher maximum punishment. This result recognizes the interest of society in the 

accused's resulting unavailability or impairment for duty and the costs of medical treatment. Paragraph 190 [Proof, (c)] of MCM, 1969 (Rev.) used 

"victim," the ambiguity of which might have implied that injury to the accused would not aggravate the maximum punishment. Analysis of 

Contents, Manual for Courts-Martial, UnitedStates, 1969 (RevisedEdition) DA PAM 27-2, at 28-10, does not suggest that the drafters intended 

such a result. 

c. Explanation. This paragraph is taken from paragraph 190 of MCM, 1969 (Rev,). See also UnitedStates v. Bull, 3 U.S.C.M.A. 635,14 

C.M.R. 53 (1954) (drunkenness); United States v. Eagleson, 3 U.S.C.M. A. 685, 14 C.M.R. 103 (1954) (reckless); United States v. Grossman, 2 

U.S.C.M.A. 406, 9 C.M.R. 36 (1953) (separate offenses). 

e. Maximum Punishment. The maximum authorized confinement for drunk driving resulting in injury was increased from 1 year to 18 

months. This increase reflects the same concern for the seriousness of the misconduct as that which has, by current reports, motivated almost half 

the states to provide more stringent responses. 

36. Article 112-Drunk on duty 

c. Explanation. This paragraph is based on paragraph 191 of MCM, 1969 (Rev.). The discussion of defenses is based on United States v. 

Gossen, 14 U.S .C.M. A. 305, 34 C.M. R. 85 (1 963); United States v. Burroughs, 37 C.M.R. 775 (C .G.B .R. 1966). 

37. Artlcle 112a--Wrongful use, possesslon, etc., of controlled substances 

Introduction. This paragraph is based on Article 112a (see Military Justice Act of 1983, Pub. L. No. 98-209,s 8,97 Stat. 1393 (1983)), and 

on paragraphs 127 and 213, and Appendix 6cof MCM, 1969 (Rev.), as amended by Exec. Order No. 12383 (Sep. 23,1982). Paragraphs 127 and 

213 and Appendix 6c of MCM, 1969 (Rev.) are consistent with Article 112a. See S. Rep. No. 53, 98th Cong., 1st Sess. 29 (1983). 

The only changes made by Article 112a in the former Manual paragraphs are: elimination of the third element under Article 134; substitution 

of barbituric acid for phenobarbital and secobarbital (these are still specifically listed in subparagraph c), and inclusion of importation and 

exportation of controlled substances. The definition of "customs territory of the United States" is based on 21 U.S .C. 8 95 1(a)(2) and on general 

headnote 2 to the Tariff Schedulesof the United States. See21 U.S.C. 5 1202. Seea1soH.R. Rep. No. 91-1444,9lst Cong., 2d Sess. 74 (1970). 

The maximum punishments for importing or exporting a controlled substance are based generally on 21 U.S.C. 5 960. See also 21 U.S.C. 

$8 951-53. 

The definition of "missile launch facility" has been added to clarify that the term includes not only the actual situs of the missile, but those 

places directly integral to the launch of the missile. 

The following is an analysis of Exec. Order No. 12383 (Sep. 23, 1982): 

Section 1 [now subparagraph el amends paragraph 127c, Section A of the MCM, 1969 (Rev.). This amendment of the Table of Maximum 

Punishments provides a completely revised system of punishments for contraband drug offenses under Article 134. The punishments under 21 

U.S.C. $8 841 and 844 were used as a benchmark for punishments in this paragraph. Thus, the maximum penalty for distribution or possession 

with intent to distribute certain Schedule I substances under 21 U.S.C. 5 841-15 years imprisonment-is the same as the highest maximum 

punishment under paragraph 127c (except when the escalator clause is triggered, see analysis of section 2 infra.) 

Within the range under the 15 year maximum, the penalties under paragraph 127c are generally somewhat more severe than those under 21 

U.S.C. $$ 841 and 844. This is because in the military any drug offense is serious because of high potential for adversely affecting readiness and 
App. 21, 737 APPENDIX 21 

mission performance. See generally Schlesinger v. Councilman, 420 U.S. 738, 760 11.34 (1975); United States v. Trottier, 9 M.J. 337 (C.M.A. 

1980). The availability of contraband drugs, especially in some overseas locations, the ambivalence toward and even acceptance of drug usage in 

some segments of society, especially among young people, and the insidious nature of drug offenses all require that deterrence play a substantial 

part in the effort to prevent drug abuse by sewicemembers. 

The following sentence enhancement provisions in the United States Code were not adopted: (1) the recidivism provisions in 21 U.S.C. 

85 841(b), 844(a), and 845(b), which either double or triple the otherwise prescribed maximum penalty; and (2) the provision in 21 U.S.C. 

5 845(a) which doubles the maximum penalty for distribution of a controlled substance to a person under the age of 21. (The latter provision 

would probably apply to a high percentage of distribution offenses in the armed forces, given the high proportion of persons in this age group in the 

armed forces.) These special provisions were not adopted in favor of a simpler, more uniform punishment system. The overall result is an absence 

of the higher punishment extremes of the Federal system, while some of the offenses treated more leniently in the lower end of the scale in the 

Federal system are subject to potentially higher punishments in the military, for the reasons stated in the preceding paragraph. There are no 

mandatory minimum sentences for any drug offense. See Article 56. 

The expungement procedure in 21 U.S.C. 8 844(b) and (c) is unnecessary and inappropriate for military practice. Alternatives to 

prosecution for drug offenses already exist. See, e.g., Article 15. The use of such alternatives is properly a command prerogative. 

Section 2 [now the last paragraph of subparagraph el amends paragraph 127c Section B by adding an escalator clause to provide for certain 

special situations, unique to the military, in which drug involvement presents an even greater danger than normal. See 37 U.S.C. 8 310 

concerning hostile fire pay zones. 

Section 3 [now subparagraphs b and c] amends paragraph 213, dealing with certain offenses under Article 134. Paragraph 213g replaces the 

discussion of offenses involving some contraband drugs which was found in the last paragraph of paragraph 213b of MCM, 1969 (Rev.). It was 

considered necessary to treat drug offenses more extensively in the Manual for Courts-Martial because of the significant incidence of drug 

offenses in the military and because of the serious effect such offenses have in the military environment. It was also necessary to provide a 

comprehensive treatment of drugs, with a complete set of maximum punishments, in order to eliminate the confusion, disruption, and disparate 

treatment of some drug offenses among the services in the wake of UnitedStates v. Courtney, 1 M. J. 438 (C.M.A. 1976); United States v. Jackson, 

3 M.J. 101 (C.M.A. 1977); United States v. Hoesing, 5 M. J. 355 (C.M.A. 1978); United States v. Guilbault, 6 M.J. 20 (C.M.A. 1978); United 

States v. Thurman, 7 M.J. 26 (C.M.A. 1979). (1) Controlled substance. The list of drugs specifically punishable under Article 134 has been 

expanded to cover the substances which are, according to studies, most prevalent in the military community. See, e.g., M. Burt, etal, Highlights 

from the Worldwide Survey @Nonmedical Drug Use andAlcoho1 Use Among Military Personnel: 1980. In addition, the controlled substances 

which are listed in Schedules I through V of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (codified at 21 U.S.C. 5 801 et 

seq.) as amended are incorporated. The most commonly abused drugs are listed separately so that it will be unnecessary to refer to the controlled 

substances list, as modified by the Attorney General in the Code of Federal Regulations, in most cases. Most commanders and some legal offices 

do not have ready access to such authorities. 

(2) Possess. The definition of possession is based upon United States v. Aloyian, 16 U.S.C.M.A. 333, 36 C.M.R. 489 (1966) and 

paragraph 4-144, Military Judges' Benchbook, DA PAM 27-9 (May 1982). See also United States v. Wilson, 7 M.J. 290 (C.M.A. 1979) and 

cases cited therein concerning the concept of constructive possession. With respect to the inferences described in this subparagraph and 

subparagraph (5) Wrongfulness, see UnitedStates v. Alvarez, 10 U.S.C.M.A. 24,27 C.M.R. 98 (1958); UnitedStates v. Nabors, 10 U.S.C.M.A. 

27,27 C.M.R. 101 (1958). It is important to bear in mind the distinction between inferences and presumptions. See United States v. Mahan, 1 

M.J. 303 (C.M.A. 1976). See also United States v. Baylor, 16 U.S.C.M.A. 502, 37 C.M.R. 122 (1967). 

(3)Distribute. This subparagraph is based on 21 U.S.C. 8 802(8) and (1 1). See also E. Devitt and C. Blackmar, 2Federal Jury Practice 

and Instructions, 5 58.03 (3d ed. 1977). 

"Distribution" replaces "sale" and "transfer." This conforms with Federal practice, see 21 U.S.C. 8 841(a), and will simplify military 

practice by reducing pleading, proof, and associated multiplicity problems in drug offenses. See, e.g., UnitedStates v. Long, 7 M.J. 342 (C.M.A. 

1979); United States v. Maginley, 13 U.S.C.M.A. 445, 32 C.M.R. 445 (1963). Evidence of sale is not necessary to prove the offense of 

distributing a controlled substance. See United States v. Snow, 537 F.2d 1166 (4th Cir. 1976); United States v. Johnson, 481 F.2d 645 (5th Ck 

1973). Thus, the defense of "agency" see UnitedStates v. Fruscella, 21 U.S.C.M.A. 26,44 C.M.R. 80 (1971), no longer applies in the military. 

CJ: United States v. Snow, supra; United States v. Pruitt, 487 F.2d 1241 (8th Cu. 1973); United States v. Johnson, supra ("procuring agent" 

defense abolished under 21 U.S.C. 5 801 et seq.). Evidence of sale is admissible, of course, on the merits as "part and parcel" of the criminal 

transaction (see United States v. Stokes, 12 M.J. 229 (C.M.A. 1982); c$ United States v. Johnson, supra; see also Mil. R. Evid. 404(b)), or in 

aggravation (see paragraph 75b(4) of MCM, 1969 (Rev.); see also United States v. Vickers, 13 M.J. 403 (C.M.A. 1982)). 

(4)Manufacture.This definition is taken from 21 U.S.C. 5 802(14). The exception in 21 U.S.C. 5 802(14) is covered in subparagraph 

(5). 

(5) Wrongfulness.This subparagraph is based on the last paragraph of paragraph 213b of MCM, 1969 (Rev.). Cj 21 U.S.C. 8 822(c). 

See also United States v. West, 15 U.S.C.M.A. 3,34 C.M.R. 449 (1964); paragraphs 4-144 and 145, Military Judges' Benchbook, DA PAM 

27-9 (May 1982). It is not intended to perpetuate the holding in United States v. Rowe, 11 M.J. 11 (C.M.A. 1981). 

(6)Intent to distribute. This subparagraph parallels Federal law which allows for increased punishment for drug offenses with an intent 

to distribute. 21 U.S.C. 5 841(a)(l). The discussion of circumstances from which an inference of intent to distribute may be inferred is based on 

numerous Federal cases. See, e.g., United States v. Grayson, 625 F.2d 66 (5th Cir. 1980); United States v. Hill, 589 F.2d 1344 (8th Cir.), cert. 

denied, 442 U.S. 919 (1979); United States v. Ramirez-Rodriquez, 552 E2d 883 (9th Cir. 1977); United States v. Blake, 484 F.2d 50 (8th Cir. 

1973);cert. denied, 417 U.S. 949 (1974). Cf.UnitedStatesv. Mather, 465 F.2d 1035 (5th Cu.), cert. denied, 409 U.S. 1085 (1972). Possessionof 

a large amount of drugs may permit an inference but does not create a presumption of intent to distribute. See Turner v. United States, 396 U.S. 

398 (1970); United States v. Mahan, 1 M.J. 303 (C.M.A. 1976). 
ANALYSIS App. 21, ll43 

(7) Certain amount. This subparagraph is basedon UnitedStatesv. Alvarez, 10 U.S.C.M.A. 24,27 C.M.R. 911 (1958); UnitedStates v. 

Brown, 45 C.M.R. 416 (A.C.M.R. 1972); United States v. Burns, 37 C.M.R. 942 (A.F.B.R. 1967); United States v. Owens, 36 C.M.R. 909 

(A.B.R. 1966). 

Section 4 [now subparagraph fl amends Appendix 6c. The new sample specifications are based on sample specifications 144 through 146 

found in appendix 6c of the MCM, 1969 (Rev.), as modified to reflect the new comprehensive drug offense provision. 

Section 5 provides an effective date for the new amendments. 

Section 6 requires the Secretary of Defense to transmit these amendments to Congress. 

38. Article 113--Misbehavior of sentinel or lookout 

c. Explanation. Subparagraphs (I), (2), and (3) are based on paragraph 192 of MCM, 1969 (Rev.). Subparagraph (4) is based on United 

States v. Seeser, 5 U.S.C.M.A. 472, 18 C.M.R. 96 (1955); paragraph 192 of MCM, 1969 (Rev.); paragraph 174 of MCM (Army), 1949; 

paragraph 174 of MCM (AF), 1949. Subparagraph (6) is based on United States v. Williams, 4 U.S.C.M.A. 69, 15 C.M.R. 69 (1954); United 

States v. Cook, 3 1 C.M.R. 550 (A.EB. R. 1961). See also United States v. Getman, 2 M. J. 279 (A .F. C .M.R. 1976). 

39. Article 114-Dueling 

c. Explanation. This paragraph is based on paragraph 193 of MCM, 1969 (Rev.). The explanation of conniving at fighting a duel was 

modified to reflect the requirement for actual knowledge and to more correctly reflect the term connive. 

f. Sample specz$cation. The sample specification for conniving at fighting a duel was redrafted to more accurately reflect the nature of the 

offense. 

40. Article 115--Malingering 

c. Explanation. This paragraph is based on paragraph 194 of MCM, 1969 (Rev.). See also United States v. Kisner, 15 U.S.C.M. A. 153.35 

C.M.R. 125 (1964); UnitedStates v. Mamaluy, 10 U.S.C.M.A. 102,27 C.M.R. 176 (1959); UnitedStates v. Kersten, 4 M.J. 657 (A.C.M.R. 

1977). 

d. Lesser included Henses. See United States v. Taylor, 17 U.S.C.M.A. 595, 38 C.M.R. 393 (1968). 

e. Muximum punishment. The maximum punishments were changed to reflect the greater seriousness of malingering in war or other combat 

situations and to add a greater measure of deterrence in such cases. 

41. Article 11GRiot or breach of peace 

c. Explanation. This paragraph is based on paragraph 195 of MCM, 1969 (Rev.) and United States v. Metcag 16 U.S.C.M.A. 153, 36 

C.M.R. 309 (1966). The reference toUuse of vile or abusive words to another in a public place" contained in paragraph 195b of MCM, 1969 (Rev.) 

has been replaced by the language contained in the fourth sentence of subparagraph (2) since the former language was subject to an overly broad 

application. See Gooding v. Wilson, 405 U.S. 518 (1972). 

f. Sample spec$cations. Riot-see United States v. RandolJ: 49 C.M.R. 336 (N.C.M.R. 1974); United States v. Brice, 48 C.M.R. 368 

(N.C.M.R. 1973). 

42. Article 117-Provoking speeches or gestures 

c. Explanation. Subparagraph (1) is based on paragraph 196 of MCM, 1969 (Rev.); United States v. Thompson, 22 U.S.C.M.A. 88,46 

C.M.R. 88 (1972). See generally Gooding v. Wilson, 405 U.S. 518 (1972); United States v. Hughens, 14 C.M.R. 509 (N.B .R. 1954). 

Subparagraph (2) is based on the language of Article 1 17 and United States v. Bowden, 24 C.M.R. 540 (A.F.B .R.), pet. denied, 24 C.M.R. 3 1 1 

(1957). See also United States v. Lacy, 10 U.S.C.M.A. 164, 27 C.M.R. 238 (1959). 

e. Maximum punishment. The maximum punishment was increased from that set forth in paragraph 127c of MCM, 1969 (Rev.) to more 

accurately reflect the seriousness of the offense. 

43. Article 118-Murder 

b. Elements. Element (b) in (31, Act inherently dangerous to others, has been modified based on United States v. Hartley, 16 U.S.C.M.A. 

249, 36 C.M.R. 405 (1966). 

c. Explanation. This paragraph is based on paragraph 197 of MCM, 1969 (Rev.). Subparagraph c(2)(b) is based on United States v. Sechler, 3 

U.S.C.M.A. 363, 12 C.M.R. 119 (1953). As to subparagraph (c)(4)(A), see United States v. Vandenack, 15 M.J. 428 (C.M.A. 1983). 

Subparagraph c(4)(b) is based on United States v. Stokes, 6 U.S.C.M.A. 65, 19 C.M.R. 191 (1955). 

d. Lesser included denses. As to Article 118(3), see United States v. Roa, 12 M.J. 210 (C.M.A. 1982) 
App. 21, 744 APPENDIX 21 

44. Artlcle 1 19-Manslaughter 

c. Explanation. This paragraph is based on paragraph 198 of MCM, 1969 (Rev.). See also United States v. Moglia, 3 M.J. 216 (C.M.A. 

1977);United States v. Harrison, 16 U.S.C.M.A. 484,37 C.M.R. 104 (1967); United States v. Redding, 14 U.S.C.M.A. 242,34 C.M.R. 22 

(1963); United States v. Fox, 2 U.S.C.M.A. 465, 9 C.M.R. 95 (1953). 

45. Article 120-Rape and carnal knowledge 

c. Explanation. This paragraph is based on paragraph 199 of MCM, 1969 (Rev.). The third paragraph of paragraph 199(a) was deleted as 

unnecessary. The third paragraph of paragraph 199(b) was deleted based on the preemption doctrine. See United States v. Wright, 5 M.J. 106 

(C.M.A. 1978);UnitedStates v. Norris, 2 U.S.C.M.A. 236,s C.M.R. 36 (1953). Cf: Williams v. UnitedStates, 327 U.S. 71 1 (1946) (scope of 

preemption doctrine). The Military Rules of Evidence deleted the requirement for corroboration of the victim's testimony in rape and similar cases 

under former paragraph 153a of MCM, 1969. See Analysis, Mil. R. Evid. 412. 

d. Lesser included afSenses. Carnal knowledge was deleted as a lesser included offense of rape in view of the separate elements in each 

offense. Both should be separately pleaded in a proper case. See generally United States v. Smith, 7 M.J. 842 (A.C.M.R. 1979). 

46. Article 121-Larceny and wrongful appropriation 

c. Explanation. This paragraph is based on paragraph 200 of MCM, 1969 (Rev.). The discussion in the fourth and fifth sentences of 

paragraph 200a(4) was deleted as ambiguous and overbroad. The penultimate sentence in subparagraph c(l)(d) adequately covers the point. C. 

Torcia, 2 Wharton's CriminalLaw andProcedure 5 393 (1980); Hall v. UnitedStates, 277 Fed. 19 (8th Cir. 1921). As to subparagraphc(l)(c) see 

also United States v. Leslie, 13 M.J. 170 (C.M.A. 1982). As to subparagraph c(l)(d) see also UnitedStates v. Smith, 14 M.J. 68 (C.M.A. 1982); 

United States v. Cunningham, 14 M. J. 539 (A.C.M.R. 198 1). As to subparagraph c(l)(f), see also United States v. Kastner, 17 M.J. 11 (C.M.A. 

1983); UnitedStates v. Eggleton, 22 U.S.C.M.A. 504,47 C.M.R. 920 (1973); UnitedStates v. O'Hara, 14 U.S.C.M.A. 167,33 C.M.R. 379 

(1963); United States v. Hayes, 8 U.S.C.M.A. 627,25 C.M.R. 131 (1958). As to subparagraph c(l)(h)(i) see also UnitedStates v. Malone, 14 

M.J. 563 (N.M.C.M.R. 1982). 

e. Maximum punishment. The maximum punishments have been revised. Instead of three levels ($50 or less, $50 to $100, and over $100) 

only two are used. This is simpler and conforms more closely to the division between felony and misdemeanor penalties contingent on value in 

offenses in civilian jurisdictions. The maximum punishment for larceny or wrongful appropriation of a firearm or explosive includes 5 or 

2 years' confinement respectively. This is because, regardless of the intrinsic value of such items, the threat to the community and disruption of 

military activities is substantial when such items are wrongfully taken. Special accountability and protective measures are taken with firearms and 

explosives, and they may be the target of theft regardless of value. 

47. Artlcle 122-Robbery 

c. Explanation. This paragraph is basedon paragraph 201 of MCM, 1969 (Rev.). See also UnitedStates v. Chambers, 12 M.J. 443 (C.M.A. 

1982);UnitedStates v. Washington, 12 M.J. 1036 (A.C.M.R.), pet. denied, 14 M.J. 170 (1982). Subparagraph (5) is based on UnitedStates v. 

Parker, 17 U.S.C.M.A. 545, 38 C.M.R. 343 (1968). 

d. Lesser included afSenses. See United States v. Calhoun, 5 U.S .C.M.A. 428, 18 C.M.R. 52 (1955). 

e. Maximum punishment. The aggravating factor of use of a firearm in the commission of a robbery, and a higher maximum punishment in 

such cases, have been added because of the increased danger when robbery is committed with a firearm whether or not loaded or operable. C$ 18 

U.S.C. $5 21 13 and 21 14; United States v. Shelton, 465 F.2d 361 (4th Cir. 1972); United States v. Thomas, 455 F.2d 320 (6th Cir. 1972); Baker v. 

UnitedStates, 412 F.2d 1069 (5th Cir. 1969). See also U.S. Dep't of Justice, Attorney General's TaskForce on Violent Crime, Final Report 29-33 

(Aug. 17, 1981). The 15-year maximum is the same as that for robbery under 18 U.S.C. § 2111. 

48. Article 123--Forgery 

c. Explanation. This paragraph is based on paragraph 202 of MCM, 1969 (Rev.). 

49. Article 123a-Making, drawing, or uttering check, draft, or order without sufficient funds 

c. Explanation. This paragraph is based on paragraph 202A of MCM, 1969 (Rev.). The language in paragraph 202A using an illegal 

transaction such as an illegal gambling game as an example of "for any other purpose" was eliminated in subparagraph (7), based on United States 

v. Wallace, 15 U.S .C.M. A. 650.36 C.M.R. 148 (1966). The statutory inference found in Article 123a and explained in subparagraph (17) was 

not meant to preempt the usual methods of proof of knowledge and intent. See S. Rep. No. 659,87th Cong. 1st Sess. 2 (1961). Subparagraph (18) 

is based on UnitedStatesv. Callaghan, 14U.S.C.M.A. 231,34 C.M.R. 11 (1963). Seealso UnitedStatesv. Webb, 46 C.M.R. 1083 (A.C.M.R. 

1972). As to share drafts see also United States v. Palmer, 14 M.J. 731 (A.EC.M.R. 1982); UnitedStates v. Grubbs, 13 M.J. 594 (A.F.C.M.R. 

1982). 

e. Maximum punishment. The maximum punishment for subsection (1) has been revised. Instead of three levels ($50 or less, $50 to $100, 

and over $100) only two are used. This is simpler and conforms more closely to the division between felony and misdemeanor penalties 

contingent on value in property offenses in civilian jurisdictions. 

f. Sample specification. See also United States v. Palmer and United States v. Grubbs, both supra (pleading share drafts; pleading more than 

one check or draft). 
ANALYSIS 

50. Article 12GMaiming 

c. Explanation. This paragraph is based on paragraph 203 of MCM, 1969 (Rev.). Subparagraph c(3) is based on United States v. Hicks, 6 

U.S.C.M. A. 621,20 C.M.R. 337 (1956). The discussion of intent has been modified to reflect that some specific intent to injure is necessary. 

United States v. Hicks, supra. The thud sentence of the third paragraph of paragraph 203 of MCM, 1969 (Rev.), which was based on Hicks [see 

Analysis @Contents, Manual for Courts-martial, United States, 1969 (Revised edition), DA PAM 27-2 at 28-15], was misleading in this regard. 

Contra United States v. Tua, 4 M. J. 761 (A.C.M.R. 1977), pet. denied, 5 M. J. 91 (1978). 

51. Article 125-Sodomy 

c. Explanation. This paragraph is based on paragraph 204 of MCM, 1969 (Rev.). Fellatio and cunnilingus are within the scope of Article 

125. See United States v. Harris, 8 M.J. 52 (C.M.A. 1979); United States v. Scoby, 5 M.J. 160 (C.M.A. 1978). For a discussion of the possible 

constitutional limitations on the application of Article 125 (for example, the sexual activity of a married couple), see UnitedStates v. Scoby, supra. 

e. Maximum punishment. The maximum punishment for forcible sodomy was raised in recognition of the severity of the offense which is 

similar to rape in its violation of personal privacy and dignity. 

52. Article 126Arson 

c. Explanation. This paragraph is based on paragraph 205 of MCM, 1969 (Rev.). See United States v. Acevedo-Velez, 17 M.J. 1 (C.M.A. 

1983); UnitedStates v. Duke, 16 U.S.C.M.A. 460,37 C.M.R. 80 (1966); United States v. Scott, 8 M.J. 853 (N.C.M.R. 1980); UnitedStates v. 

Jones, 2 M.J. 785 (A.C.M.R. 1976). 

e. Maximum punishment. The maximum period of confinement for simple arson of property of a value of more than $100 has been reduced 

from 10 to 5 years. This parallels 18 U.S.C. 8 81. The separate punishment for simple arson of property of a value of $100 or less has been 

retained because 18 U.S.C. 8 81 does not cover most personal property. 

53. Artlcle 127-Extortion 

c. Explanation. This paragraph is based on paragraph 206 of MCM, 1969 (Rev.). See also United States v. Schmidt, 16 U.S.C.M.A. 57,36 

C.M.R. 213 (1966); R. Perkins, Criminal Law 373-74 (2d ed. 1969). Subparagraph (4) is based on United States v. McCollum, 13 M.J. 127 

(C.M.A. 1982). 

54. Article 128--Assault 

c. Explanation. This paragraph is based on paragraph 207 of MCM, 1969 (Rev.). See also United States v. Vigil, 3 U.S.C.M.A. 474, 13 

C.M.R. 30 (1953) (aggravated assault); United States v. Spearman, 23 U.S.C.M.A. 3 1, 48 C.M.R. 405 (1974) (grievous bodily harm). 

e. Maximum punishment. The maximum punishment for (2) Assault consummated by a battery has been increased because of the range of 

types of harm which may be caused by a battery. These may include serious injury, even though unintended or not caused by a means or force 

likely to produce grievous bodily harm. The maximum punishment for (6) Assault upon a sentinel or lookout in the execution of duty, or upon any 

person who, in the execution of office, is performing security police, military police, shore pavol, master at arms, or other military or civilian law 

enforcement duties, has been increased based on 18 U.S.C. 8 11 1 and 18 U.S.C. 5 11 14. The maximum punishment for aggravated assaults 

committed with firearms has been increased based on 18 U.S.C. 8 924(c). See also U.S. Dep't of Justice, Attorney General's Task Force on 

Violent Crime, Final Report 29-33 (Aug. 17, 1981). Note that the higher maximum for assault with a dangerous weapon when the weapon is a 

firearm applies even if the firearm is used as a bludgeon. This is because the danger injected is significantly greater when a loaded firearm is used, 

even as a bludgeon. 

In certain situations, this punishment scheme may have the effect of making intentional infliction of grievous bodily harm a lesser included 

offense of assault with a dangerous weapon. For example, if in the course of an assault with a loaded firearm the accused or a coactor stabs the 

victim with a knife, the assault with a dangerous weapon (the firearm) would carry an 8 year maximum penalty, as opposed to 5 years for the 

assault intentionally inflicting grievous bodily harm. In such a case, the specification should be carefully tailored to describe each facet of the 

assault. 

55. Artlcle 129--Burglary 

c. Explanation. This paragraph is based on paragraph 208 of MCM, 1969 (Rev.). See also United States v. Kluttz, 9 U.S.C.M.A. 20,25 

C.M.R. 282 (1958). Subparagraphs c(2) and (3) have been revised based on R. Perkins, Criminal Law 192-193 and 199 (2d ed. 1969). As to 

subparagraph c(2), see also 13 Am.Jur. 2d Burglary 8 18 (1964); Annot., 70 A.L.R. 3d 881 (1976). 

f. Sample specification. See United States v. Knight, 15 M.J. 202 (C.M.A. 1983). 

56. Article 130-Housebreaking 

c. Explanation. This paragraph is based on paragraph 209 of MCM, 1969 (Rev.) and United States v. Gillin, 8 U.S.C.M. A. 669,25 C.M.R. 

173 (1958). Seealso UnitedStates v. Breen, 15 U.S.C.M.A. 658,36C.M.R. 156 (1966); UnitedStates v. Hall, 12U.S.C.M.A. 374,30C.M.R. 

374 (1961); United States v. Taylo~ 12 U.S.C.M.A. 44, 30 C.M.R. 44 (1960) (all regarding "structure"); United States v. Weaver, 18 

U.S.C.M.A. 173,39 C.M.R. 173 (1969) ("separate offense"); United Stares v. Williams, 4 U.S.C.M.A. 241, 15 C.M.R. 241 (1954) ("entry"). 
App. 21, T57 APPENDIX 21 

57. Article 131-Perjury 

c. Explanation. Subparagraphs (1) and (2) are based on paragraph 210 of MCM, 1969 (Rev.). In the last sentence of subparagraph (2)(a), the 

phrase "unless the witness was forced to answer over a valid claim of privilege" which appeared at the end of the fourth paragraph of paragraph 

210 of MCM, 1969 (Rev.) has been deleted based on UnitedStates v. Mandujano, 425 U.S. 564 (1976); Harris v. New York, 401 U.S. 222 (1971). 

See also United States v. Armstrong, 9 M.J. 374 (C.M.A. 1980). Subparagraph (3) is new and is based on Public Law 94-550 of 1976 which 

amended Article 13 1 by adding a second clause based on section 1746 of title 28 United States Code, which was also enacted as part of Pub. L. No. 

94-550. 

Text of section 1746 of title 28, United States Code 

5 1746. Unsworn declarations under penalty of perjury. 

Wherever, under any law of the United States or under any rule, regulation, order, or requirement made pursuant to law, any matter 

is required or permitted to be supported, evidenced, established, or proved by the sworndeclaration, verification, certificate, statement, 

oath, or affidavit, in writing of the person making the same (other than a deposition, or an oath of office, or an oath required to be taken 

before a specified official other than a notary public), such matter may, with like force and effect, besupported, evidenced, established, 

or proved by the unsworn declaration, certificate, verification, or statement, in writing of such person which is subscribed by him, as 

true under penalty of perjury, and dated, in substantially the following form: 

(1) If executed without the United States: "I declare (or certify, verify, or state) under penalty of perjury under the laws of the 

United States of America that the foregoing is true and correct. Executed on (date). 

(Signature)" 

(2)If executed within the United States, its territories, possessions, or commonwealths: "I declare (or certify, verify, or state) 

under penalty of perjury that the foregoing is true and correct. Executed on (date). 

(Signature)" 

If someone signs a statement under penalty of perjury outside a judicial proceeding or course of justice, and Article 107 (false official 

statement) is not applicable, it may be possible to use Article 134 (clause 3) (see paragraph 60) to charge a violation of 18 U.S.C. 8 1621. 

Text of section 1621 of title 18, United States Code 

8 1621. Perjury generally 

Whoever-

(1) having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States 

authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, 

deposition, or certificate by him subscribed, is true, willfully and contrary to such oath states or subscribes any material which he does 

not believe to be true; or 

(2) in any declaration, certificate, verification, or statement under penalty of perjury as permitted under section 1746 of title 

28, United States Code, willfully subscribes as true any material matter which he does not believe to be true; is guilty of pe jury and 

shall, except or otherwise expressly provided by law, be fined not more than $2,000 or imprisoned not more than five years, or both. 

This section is applicable whether the statement or subscription is made within or without the United States. 

58. Article 132-Frauds against the United States 

c. Explanation. This paragraph is based on paragraph 211 of MCM, 1969 (Rev.). 

e. Maximum punishment. The maximum punishments have been revised. Instead of three levels ($50 or less, $50 to $100, and over $100) 

only two are used. This is simpler and conforms more closely to the division between felony and misdemeanor penalties contingent on value in 

property offenses in civilian jurisdictions. 

59. Article 133-Conduct unbecoming an officer and gentleman 

c. Explanation. This paragraph is based on paragraph 212 of MCM, 1969 (Rev.). SeeParker v. Levy, 417 U.S. 733 (1974) (constitutionality 

of Article 133). For a discussion of Article 133, see UnitedStates v. Giordano, 15 U.S.C.M.A. 163, 35 C.M.R. 135 (1964); Nelson, Conduct 

Expectedofan mcer and a Gentleman:Ambiguity, 12 A.F. JAG L. Rev. 124 (Spring 1970). As to subparagraph (I), see 1 U.S.C. 8 1;Pub. L. 

No. 94-106, 8 803, 89 Stat. 537-38 (Oct. 7, 1975). 

e. Maximum punishment. A maximum punishment is established for the first time in order to provide guidance and uniformity for Article 133 

offenses. 

f. Sample specijcations. Some sample specifications for Article 133 in MCM, 1969 (Rev.) were deleted solely to economize on space. 
ANALYSIS 

U.S.C.M.A. 407, 45 C.M.R. 181 (1972) (concealing stolen property); United States ;. Maze, 21 U.S.C.M.A. 260, 45 C.M.R. 34 (1972) 

60. Artlcle 134--General article 

Introduction. Paragraph 60 introduces the General Article. Paragraphs 61-1 13 describe and list the maximum punishments for many 

offenses under Article 134. These paragraphs are not exclusive. See generally Parker v. Levy, 417 U.S. 733 (1974); United States v. Sadinsky, 14 

U.S.C.M.A. 563, 34 C.M.R. 343 (1964). 

Except as otherwise noted in the Analyses of paragraphs 61-1 13, the offenses listed below are based on paragraph 127c (Table of Maximum 

Punishments), paragraph 213f, and Appendix 6 (sample specifications 126187) of MCM, 1969 (Rev.). Eight offenses previously listed (allowing 

prisoner to do unauthorized acts, criminal libel, criminal nuisance, parole violations, statutory perjury, transporting stolen vehicle in interstate 

commerce, unclean accoutrements, and unclean uniform) are not listed here because they occur so infrequently or because the gravamen of the 

misconduct is such that it is more appropriately charged under another provision. 

c. Explanation. Except as noted below, this paragraph is based on paragraph 213a through e of MCM, 1969 (Rev.). 

(1)In general. See Secretary ofthe Navy v. Avrech, 4 18 U .S. 676 (1 974); Parker v. Levy, supra (constitutionality of Article 134 upheld). 

(4)(c)(ii) Federal Assimilative Crimes Act. See United States v. Wright, 5 M.J. 106 (C.M.A. 1978); United States v. Rowe, 13 

U.S.C.M.A. 302, 32 C.M.R. 302 (1962). 

(5)(a) Preemption doctrine. See UnitedStates v. McCormick, 12 U.S.C.M.A. 26,30 C.M.R. 26 (1960) (assault on child under 16); United 

States v. Hallet, 4 U.S.C.M.A. 378, 15 C.M.R. 378 (1954) (misbehavior before the enemy); United States v. Deller, 3 U.S.C.M.A. 409, 12 

C.M.R. 165 (1953) (absence offenses); UnitedStates v. Norris, 2 U.S.C.M.A. 236,8 C.M.R. 36 (1953) (larceny). But see the following cases 

for examples of where offenses not preempted: United States v. Wright, supra (burglary of automobile); United States v. Bonavita, 21 

(unlawfully altering public records); United States v. Taylor, 17 U.S.C.M.A. 595, 38 C.M.R. 393 (1968) (self-inflicted injury with no intent to 

avoid service); United States v. Gaudet, 11 U.S.C.M.A. 672,29 C.M.R. 488 (1960) (stealing from mail); United States v. Fuller, 9 U.S.C.M.A. 

143,25 C.M.R. 405 (1958) (fraudulent burning); United States v. Holt, 7 U.S .C.M.A. 617,23 C.M.R. 8 1 (1957) (graft, cheating, fraudulent 

misrepresentation). 

(5)(b) Capital flense. See United States v. French, 10 U.S.C.M.A. 171, 27 C.M.R. 245 (1959). 

(6)(b) Specijications under clause 3. See United States v. Mayo, 12 M. J. 286 (C.M.A. 1982); United States v. Perry, 12 M. J. 112 

(C.M.A. 1981); United States v. Rowe, supra; United States v. Hogsett, 8 U.S.C.M.A. 681, 25 C.M.R. 185 (1958). 

(6)(c)Specijications for clause I or 2 Henses not listed. See United States v. Sadinsky, supra; United States v. Mardis, 6 U.S.C.M.A. 

624, 20 C.M.R. 340 (1956). 

61. Article 134 (Abusing a public, animal) 

c. Explanation. This new paragraph defines "public animal." 

62. Artlcle 134 (Adultery) 

c. Explanation. This paragraph is based on United States v. Ambalada, 1 M.J. 11 32 (N.C.M.R.), pet. denied, 3 M. J. 164 (1977). For a 

discussion of the offense of adultery, see United States v. Butler, 5 C.M.R. 213 (A.B .R. 1952). 

63. Artlcle 134 (Assault-Indecent) 

c. Explanation.This paragraph is based on paragraph 213f12) of MCM, 1969 (Rev.). See UnitedStates v. Caillouette, 12 U.S.C.M.A. 149, 

30 C.M.R. 149 (1961) regarding specific intent. See also United States v. Headspeth, 2 U.S.C.M.A. 635, 10 C.M.R. 133 (1953). 

Gender-neutral language has been used in this paragraph, as well as throughout this Manual. This will eliminate any question about the 

intended scope of certain offenses, such as indecent assault such as may have been raised by the use of the masculine pronoun in MCM, 1969 

(Rev.). It is, however, consistent with the construction given to the former Manual. See, e.g., United States v. Respess, 7 M.J. 566 (A.C.M.R. 

1979). See generally 1 U.S.C. 5 1 ("unless the context indicates otherwise . . . words importing the masculine gender include the feminine as 

well. . . ."). 

d. Lesser included flenses. See United States v. Thacker, 16 U.S .C.M.A. 408.37 C.M.R. 28 (1966); United States v. Jackson, 31 C.M.R. 

738 (A.F.B.R. 1962). 

64. Artlcle 134 (Assault-wlth Intent to commit murder, voluntary manslaughter, rape, robbery, sodomy, arson, burglary, or 

housebreaking) 

c. Explanation. This paragraph is based on paragraph 213f11) of MCM, 1969 (Rev.). 

65. Article 134 (Blgamy) 

c. Explanation. This paragraph is based on paragraph 213f19) of MCM, 1969 (Rev.). See also United States v. Pruitt, 17 U.S.C.M.A. 438, 

38 C.M.R. 236 (1968), concerning the defense of mistake. 
App. 21, 766 APPENDIX 21 

66. Artlcle 134 (Bribery and graft) 

c. Explanation. This paragraph is new and is basedon UnitedStatesv. Marshall, 18 U.S.C.M.A. 426,40 C.M.R. 138 (1969); UnitedStates 

v. Alexander, 3 U.S.C.M.A. 346, 12 C.M.R. 102 (1953). See also United States v. Eslow, 1 M.J. 620 (A.C.M.R. 1975). 

d. Lesser included flenses. Graft is listed as a lesser included offense of bribery. See UnitedStates v. Raborn, 575 F.2d 688 (9th Cir. 1978); 

United States v. Crutchjield, 547 F.2d 496 (9th Cir. 1977). 

e. Maximumpunishment.The maximum punishment for bribery has been revised to reflect the greater seriousness of bribery, which requires 

a specific intent to influence. See also 18 U.S.C. J 201. 

67. Article 134 (Burnlng with Intent to defraud) 

c. Explanation. This paragraph is new and is self-explanatory. For adiscussionof this offensesee UnitedStates v. Fuller, 9U.S.C.M.A. 143, 

25 C.M.R. 405 (1958). 

68. Artlcle 134 (Check, worthless, making and uttering-by dishonorably failing to maintain funds) 

c. Explanation. This paragraph is based on paragraph 21388) of MCM, 1969 (Rev.). See also United States v. Groom, 12 U.S.C.M.A. 11, 

30 C.M.R. 11 (1960). 

d. Lesser included flense. See United States v. Downard, 6 U.S .C.M.A. 538, 20 C.M.R. 254 (1 955). 

69. Artlcle 134 (Cohabltatlon, wrongful) 

c. Explanation. This paragraph is new and is based on United States v.Acosta, 19 U.S .C.M. A. 341,41 C.M.R. 341 (1970); United States v. 

Melville, 8 U.S.C.M.A. 597.25 C.M.R. 101 (1958); UnitedStates v. Leach, 7 U.S.C.M.A. 388,22 C.M.R. 178 (1956); and United States v. 

Boswell, 35 C.M.R. 491 (A.B .R. 1964), pet. denied, 35 C.M.R. 478 (1964). 

70. Article 134 (Correctional custody-offenses against) 

Innoduction. The elements and sample specifications have been modified by replacing "duly" with "by a person authorized to do so." See 

Analysis, paragraph 19. 

c. Explanation. This paragraph is taken from paragraph 213813) of MCM, 1969 (Rev.). See also United States v. Mackie, 16 U.S.C.M.A. 

14, 36 C.M.R. 170 (1966) (proof of the offense for which correctional custody imposed not required). 

71. Article 134 (Debt, dishonorably faillng to pay) 

c. Explanation. This paragraph is based on paragraph 21387) of MCM, 1969 (Rev.). See also United States v. Kirksey, 6 U.S.C.M.A. 556, 

20 C.M.R. 272 (1955). 

72. Artlcle 134 (Disloyal statements) 

c. Explanation. This paragraph is based on paragraph 21385) of MCM, 1969 (Rev.); Parker v. Levy, 417 U.S. 733 (1974); UnitedStates v. 

Priest, 21 U.S.C.M.A. 564,45 C.M.R. 338 (1972); UnitedStatesv. Gray, 20U.S.C.M.A. 63.42C.M.R. 255 (1970); UnitedStatesv. Harvey, 

19 U.S.C.M.A. 539, 42 C.M.R. 141 (1970). 

73. Artlcle 134 (Disorderly conduct, drunkenness) 

c. Explanation. (2) Disorderly. This subparagraph is based on United States v. Manos, 24 C.M.R. 626 (A.F.B.R. 1957). See also United 

States v. Haywood, 41 C.M.R. 939 (A.F.C.M.R. 1969) and United States v. Burrow, 26 C.M.R. 761 (N.B.R. 1958), for a discussion of 

disorderly conduct in relation to the offense of breach of the peace (paragraph 40c). 

74. Artlcle 134 (Drlnklng liquor with prisoner) 

c. Explanation. This paragraph is new. 

75. Artlcle 134 (Drunk Prisoner) 

c. Explanation. See Analysis, paragraph 35. 

76. Artlcle 134 (Drunkenness-incapacitation for performance of duties through prior wrongful overindulgence in intoxicatIng liquor or drugs) 

c. Explanation. This paragraph is based on United States v. Roebuck, 8 C.M.R. 786 (A.F.B.R. 1953); United States v. Jones, 7 C.M.R. 97 

(A.B.R. 1952); United States v. Nichols, 6 C.M.R. 239 (A.B.R. 1952). 

TI. Artlcle 134 (False or unauthorized pass offenses) 

c.Explanation.This paragraph is basedon paragraph 21381 1) of MCM, 1969 (Rev.). Seealso UnitedStatesv. Burton, 13 U.S.C.M.A. 645, 

33 C.M.R. 177 (1963); United States v. Warthen, 11 U.S.C.M.A. 93, 28 C.M.R. 317 (1959). 
ANALYSIS App. 21, 786 

78. Artlcle 134 (False pretenses, obtaining services under) 

c. Explanation. This paragraph is based on UnitedStates v. Herndon, 15 U.S.C.M.A. 510,36 C.M.R. 8 (1965); United States v. Abeyta, 12 

M.J. 507 (A.C.M.R. 198 1); United States v. Case, 37 C.M.R. 606 (A.B.R. 1966). 

e. Marimurnpunishment. The maximum punishments have been revised. Instead of three levels ($50 or less, $50 to $100, and over $100) 

only .pvo are used. This is simpler and conforms more closely to the division between felony and misdemeanor penalties contingent on value in 

similar offenses in civilian jurisdictions. 

79. Article 134 (False swearlng) 

c. Explanation. This paragraph is based on paragraph 213fi4) of MCM, 1969 (Rev.). See also United States v. Whitaker, 13 U.S.C.M.A. 

341, 32 C.M.R. 341 (1962); United States v. McCarthy, 11 U.S.C.M.A. 758, 29 C.M.R. 574 (1960). 

80. Artlcle 134 (Firearm, discharging-through negligence) 

c. Explanation.This paragraph is based on United States v. Darisse, 17 U. S .C.M.A. 29,37 C.M.R. 293 (1967); United States v. Barrientes, 

38 C.M.R. 612 (A.B.R. 1967). The term "carelessness" was changed to "negligence" because the latter is defined in paragraph 85c(2). 

81. Artlcle 134 (Firearm, discharging-willfully, under such circumstances as to endanger human life) 

c. Explanation. This paragraph is based on United States v. Potter, 15 U.S.C.M.A. 271, 35 C.M.R. 243 (1965). 

82. Article 134 (Fleeing scene of accident) 

c. Explanation. (1) Nature or &ensee. This paragraph is based on United States v. Seeger, 2 M.J. 249 (A.F.C.M.R. 1976). 

(2) Knowledge. This paragraph is based on United States v. Eagleson, 3 U.S.C.M.A. 685, 14 C.M.R. 103 (1954) (Latimer, J., 

concurring in the result). Actual knowledge is an essential element of the offense rather than an affirmative defense as is current practice. This is 

because actual knowledge that an accident has occurred is the point at which the driver's or passenger's responsibilities begin. See UniredStates v. 

Waluski, 6 U.S.C.M.A. 724, 21 C.M.R. 46 (1956). 

(3) Passengers. See United States v. Waluski, supra. 

83. Article 134 (Fraternization) 

Introduction.This paragraph is new to the Manual for Courts-Martial, although the offense of fraternization is based on longstanding custom 

of the services, as recognized in the sources below. Relationships between senior officers and junior officers and between noncommissioned or 

petty officers and their subordinates may, under some circumstances, be prejudicial to good order and discipline. This paragraph is not intended to 

preclude prosecution for such offenses. 

c. Explanation. This paragraph is new and is based on UnitedStates v. Pitasi, 20 U.S.C.M.A. 601,44 C.M.R. 31 (1971); UnitedStates v. 

Free, 14 C.M.R. 466 (N.B.R. 1953). See also W. Winthrop,MilitaryLawandPrecedents41,71611.44 (2d ed. 1920 reprint); Staton v. Froehlke, 

390 F. Supp. 503 (D.D.C. 1975); United States v. Lovejoy, 20 U.S.C.M.A. 18,42 C.M.R. 210 (1970); United States v. Rodriquez, ACM 23545 

(A.F.C.M.R. 1982); United States v. Livingston, 8 C.M.R. 206 (A.B.R. 1952). See Nelson, Conduct Expected of an Officer and a Gentleman: 

Ambiguiry, 12 A.F. JAG. L.R. 124 (1970). 

d. Maximum punishment. The maximum punishment for this offense is based on the maximum punishment for violation of general orders 

and regulations, since some forms of fraternization have also been punished under Article 92. As to dismissal, see Nelson, supra at 129-130. 

f. Sample specz3cation. See United States v. Free, supra. 

84. Article 134 (Gambling with subordinate) 

c. Explanation. This paragraph is new and is based on United States v. Burgin, 30 C.M.R. 525 (A.B.R. 1961). 

d. Maximum punishment. The maximum punishment was increased from that provided in paragraph 127c of MCM, 1969 (Rev.) to expressly 

authorize confinement. Cf:the second paragraph of paragraph 127c(2) of MCM, 1969 (Rev.). 

e. Sample specification. Sample specification 153 in Appendix 6c of MCM, 1969 (Rev.) was revised to more correctly reflect the elements of 

the offense. 

85. Artlcle 134 (Homlcide, negligent) 

c. Explanation. This paragraph is based on paragraph 213fi12) of MCM, (Rev.); United States v. Kick, 7 M. J. 82 (C.M.A. 1979). 

86. Artlcle 134 (impersonating a commissioned, warrant, noncommlssloned, or petty officer, or an agent or official) 

b. Elements. The elements are based on United States v. Yum, 10 M.J. 1 (C.M.A. 1980). 

c. Explanation. This paragraph is new and is based on United States v. Demetris, 9 U.S.C.M. A. 412,26 C.M.R. 192 (1958); United States 

v. Messenger, 2 U.S.C.M.A. 21, 6 C.M.R. 21 (1952). 
App. 21, 1 87 APPENDIX 21 

87. Artlcle 134 (indecent acts or llbertles with a child) 

c. Explanation. This paragraph is based on paragraph 213fi3) of MCM, 1969 (Rev.). See also United States v. Knaules, 15 U.S.C.M.A. 

404,35 C.M.R. 376 (1965); United States v. Brown, 3 U.S.C.M.A. 454,13 C.M.R. 10 (1953); United States v. Riffe, 25 C.M.R. 650 (A.B.R. 

1957). pet. denied, 9 U.S.C.M.A. 8 13, 25 C.M.R. 486 (1958). "Lewd" and "lascivious" were deleted because they are synonymous with 

indecent. See id. See also paragraph 90c. 

88. Artlcle 134 (Indecent exposure) 

c. Explanation. This paragraph is new and is based on United States v. Manos, 8 U.S.C.M. A. 734,25 C.M.R. 238 (1958). See also United 

States v. Caune, 22 U.S.C.M.A. 200,46 C.M.R. 200 (1973); United States v. Conrad, 15 U.S.C.M.A. 439, 35 C.M.R. 41 1 (1965). 

e. Maximum punishment. The maximum punishment has been increased to include a bad-conduct discharge. Indecent exposure in some 

circumstances (e.g., in front of children, but without the intent to incite lust or gratify sexual desires necessary for indecent acts or liberties) is 

sufficiently serious to authorize a punitive discharge. 

89. Article 134 (Indecent language) 

Introduction. "Obscene" was removed from the title because it is synonymous with "indecent." See paragraph 90c and Analysis. 

"Insulting" was removed from the title based on United States v. Prince, 14 M.J. 654 (A.C.M.R. 1982); United States v. Linyear, 3 M.J. 1027 

(N.C.M.R. 1977). 

Gender-neutral language has been used in this paragraph, as well as throughout this Manual. This will eliminate any question about the 

intended scope of certain offenses, such as indecent language, which may have been raised by the use of the masculine pronoun in MCM, 1969 

(Rev.). It is, however, consistent with the construction given to the former Manual. See, e.g., United States v. Respess, 7 M.J. 566 (A.C.M.R. 

1979). See generally 1 U.S.C. 5 ("unless the context indicates otherwise . . .words importing the masculine gender include the feminine as well 

. . . ."). 

c. Explanation. This paragraph is new and is based on UnitedStates v.Knowles, 15 U.S.C.M.A. 404,35 C.M.R. 376 (1965); United States 

v. Wainwright, 42 C.M.R. 997 (A.F.C.M.R. 1970). For a general discussion of this offense, see United States v. Linyear, supra. 

e. Maximumpunishment. The maximum punishment in cases other than communication to a child under the age of 16 has been reduced. It 

now parallels that for indecent exposure. 

90. Artlcle 134 (Indecent acts with another) 

c. Explanation. This paragraph is new and is basedon UnitedStates v. Holland, 12 U.S.C.M.A. 444,31 C.M.R. 30 (1961); UnitedStatesv. 

Gaskin, 12 U.S.C.M. A. 419, 31 C.M.R. 5 (1961); United States v. Sanchez, 11 U.S.C.M.A. 216, 29 C.M.R. 32 (1960); United States v. 

Johnson, 4 M.J. 770 (A.C.M.R. 1978). "Lewd" and "lascivious" have been deleted as they are synonymous with "indecent." See id. 

91. Article 134 (Jumplng from vessel into the water) 

Introduction. This offense is new to the Manual for Courts-Martial. It was added to the list of Article 134 offenses based on United States v. 

Sadinsky, 14 U.S.C.M.A. 563, 34 C.M.R. 343 (1964). 

92. Artlcle 134 (Kldnapplng) 

Introduction. This offense is new to the Manual for Courts-Martial. It is based generally on 18 U.S.C. 5 1201.See also Military Judges' 

Benchbook, DA PAM 27-9, paragraph 3-190 (May 1982). 

Kidnapping has been recognized as an offense under Article 134 under several different theories. Appellate courts in the military have 

affirmed convictions for kidnapping in violation of State law, as applied through the third clause of Article 134 and 18 U.S.C. 5 13(see paragraph 

60), e.g., UnitedStatesv. Picone, 12U.S.C.M.A. 196,30C.M.R. 196(1961); inviolationofFederallaw (18 U.S.C. 5 1201) asapplied through 

the third clause of Article 134, e.g., United States v. Perkins, 6 M.J. 602 (A.C.M.R. 1978); and in violation of the first two clauses of Article 134, 

e.g., United States v. Jackson, 17 U.S.C.M.A. 580,38 C.M.R. 378 (1968). As a result, there has been some confusion concerning pleading and 

proving kidnaping in courts-martial. See, e.g., United States v. Smith, 8 M.J.522 (A.C.M.R. 1979); United States v. DiGiulio, 7 M.J. 848 

(A.C.M.R. 1979); United States v. Perkins, supra. 

After United States v. Picotte, supra, was decided, 18 U.S.C. 5 1201 was amended to include kidnapping withii the special maritime and 

territorial jurisdiction of the United States. Pub. L. 92-539,s 201,86 Stat. 1072 (1972). Consequently, reference to state law through 18 U.S.C. 

8 13 is no longer necessary (or authorized) in most cases. SecUnited States v. Perkins, supra. Nevertheless, there remains some uncertainty 

concerning kidnapping as an offense in the armed forces, as n6ted above. This paragraph should eliminate such uncertainty, as well as any 

different treatment of kidnapping in different places. 

b. Elements. The elements are based on 18 U.S.C. 5 1201. The language in that statute "for ransom or reward or otherwise" has been 

deleted. This language has been construed to mean that no specific purpose is required for kidnapping. United States v. Healy, 376 U.S. 75 (1 964); 

Goochv. UnitedStates, 297 U.S. 124(1936); Gmne v. UnitedStates, 409F.2d 1399 (9th CU. 1969), cert. denied, 397 U.S. 943 (1970). Instead it 

is required that the holding be against the will of the victim. See Chatwin v. United States, 326 U.S. 455 (1946); 2 E. Devitt and C. Blackmar, 

Federal Jury Practice andlnshuctions 5 43.09 (1977); Military Judged Benchbook, supra at paragraph 3-190. See also Amsler v. United States, 

381 F.2d 37 (9th CU. 1967); Davidson v. United States, 312 E2d 163 (8th Cir. 1963). 
ANALYSIS App. 21, 7 100 

c. Explanation. Subparagraph (1) is based on United States v. Hoog, 504 F.2d 45 (8th Cir. 1974), cert. denied, 420 U.S. 961 (1975). See also 

2 E. Devitt and C. Blackmar, supra at 8 43.05. 

Subparagraph (2) is based on UnitedStates v. De La Motte, 434 F.2d 289 (2d Cir. 1970). cert. denied, 401 U.S. 921 (1971); United States v. 

Perkins, supra. See generally 1 Am. Jur. 2d Abduction and Kidnapping 8 2 (1962). 

Subparagraph (3) is based on Chatwin v. UnitedStates, supra; 2 E. Devitt and C. Blackmar, supra at 5 43.09. See also Hall v. UnitedStates, 

587 F.2d 177 (5th Cir.), cert. denied, 441 U.S. 961 (1979); Military Judges' Benchbook, supra, paragraph 3-190. 

Subparagraphs (4) and (5) are based on 18 U.S.C. 8 1201; 2 E. Devitt and C. Blackmar, supra $8 43.05,43.06,43.10. See also United 

States v. Hoog, supra. The second sentence in subparagraph (4) is also based on United States v. Healy, supra. See also United States v. Smith, 

supra. The second sentence in subparagraph (5) is based on United States v. Picotte, supra. See also United States v. Martin, 4 M.J. 852 

(A.C.M.R. 1978). The last sentence in subsection (5) is based on 18 U.S.C. 8 1201. A parent taking a child in violation of a custody decree may 

violate state law or 18 U.S.C. 8 1073. See 18 U.S.C.A. 8 1073 Historical and Revision Note (West Supp. 1982). See also paragraph 60c(4). 

e. Maximum punishment. The maximum punishment is based on 18 U.S.C. 8 1201. See also United States v. Jackson, supra. 

93. Article 134 (Mail: taking, opening, secreting, destroying, or stealing) 

c. Eqlanation. Thisparagraph is new and is based on UnitedStates v. Gaudet, 11 U.S.C.M.A. 672,29 C.M.R. 488 (1960); UnitedStatesv. 

Manausa, 12 U.S.C.M. A. 37,30 C.M.R. 37 (1960). This offense is not preempted by Article 121. See United States v. Gaudet, supra. See also 

paragraph 60. 

94. Article 134 (Mails: depositing or causing to be deposited obscene matters in) 

c. Explanation. This paragraph is new and is based on UnitedStates v. Holt, 12 U.S.C.M.A. 471,31 C.M.R. 57 (1961); United States v. 

Linyear, 3 M.J. 1027 (N.C.M.R. 1977). See also Hamling v. United States, 418 U.S. 87 (1974); Miller v. California, 413 U.S. 15 (1973). 

f. Sample specij'ications. "Lewd" and "lascivious" were eliminated because they are synonymous with "obscene." See Analysis, paragraph 

90c. 

95. Article 134 (Misprision of serious offense) 

c. Enplanation.This paragraph is based on paragraph 213x6) of MCM, 1969 (Rev.). The term "serious offense" is substituted for "felony" 

to make clear that concealment of serious military offenses, as well as serious civilian offenses, is an offense. Subsection (1) is based on Black's 

LmuDictionary 902 (5th ed. 1979). See also United States v. Daddano, 432 F.2d 11 19 (7th Cir. 1970); United States v. Perlstein, 126 F.2d 789 (3d 

Cir.), cert. denied, 316 U.S. 678 (1942); 18 U.S.C. 8 4. 

96. Article 134 (Obstructing justlce) 

c. Explanation. This paragraph is new and is based on United States v. Favors, 48 C.M.R. 873 (A.C.M.R. 1974). See also 18 U.S.C. 

88 1503, 1505, 1510, 1512, 1513; United Stares v. Chodkauski, 11 M.J.605 (A.F.C.M.R. 1981). 

97. Article 134 (Pandering and prostitution) 

c. Explanation. This paragraph is new and is based on UnitedStates v. Adams, 18 U.S.C.M.A. 310,40 C.M.R. 22 (1969); UnitedStates v. 

Bohannon, 20 C.M.R. 870 (A.F.B.R. 1955). 

e. Maximum punishment. The maximum punishment for prostitution is based on 18 U.S.C. 8 1384. 

98. Article 134 (Perjury: subornation 09 

c. Explanation. This paragraphis new. It is based on 18 U.S.C. 8 1622 which applies to any perjury. See 18 U.S.C. 8 1621.Seegenerally R. 

Perkins, CriminalLaw 466-67 (2d ed. 1969). See also the Analysis, paragraph 57; United States v. Doughty, 14 U.S.C.M.A. 540,34 C.M.R. 

320 (1964) (res judicata); United States v. Smith, 49 C.M.R. 325 (N.C.M.R. 1974) (pleading). 

99. Artlcle 134 (Publlc record: altering, concealing, removing, mutilating, obliterating, or destroying) 

c. Explanation. This paragraph is new and is based on Mil. R. Evid. 803(8), but does not exclude certain types of records which are 

inadmissible under Mil. R. Evid. 803(8) for policy reasons. See United States v. Maze, 21 U.S.C.M.A. 260, 45 C.M.R. 34 (1972) for a 

discussion of one of these offenses in relation to the doctrine of preemption. See generally 18 U.S.C. 8 2071. 

f. Sample specifcation. The specification contained in Appendix 6c, no. 172, from MCM, 1969 (Rev.) was modified by deleting the word 

"steal" because this would be covered by "remove." 

100. Article 134 (Quarantlne: medlcal, breaking) 

b. Elements. The word :'dulyw has been deleted from the elements of this offense for the same reasons explained in Analysis, paragraph 19. 

c. Explanation. Putting a person "on quarters" or other otherwise excusing a person from duty because of illness does not of itself constitute 

a medical quarantine. 
App. 21, T 101 APPENDIX 21 

f. Sample specification. Sample specification no. 173, Appendix 6c of MCM, 1969 (Rev.) was modified based on the deletion of the word 

"duly," as explained in the analysis to paragraph 19. See subparagraph b, above. 

101. Artlcle 134 (Requesting cornmlsslon of an offense) 

Introduction. This offense is new to the Manual for Courts-Martial, and is based on United States v. Benton, 7 M.J. 606 (N.C.M.R. 1979), 

pet. denied, 8 M.J. 227 (1980). 

c. Explanation. This paragraph is based on United States v. Benton, supra. See also United States v. Oakley, 7 U.S.C.M.A. 733,23 C.M.R. 

197 (1957). 

e. Maximum punishment. The maximum punishment is based on United States v. Oakley, supra. 

102. Artlcle 134 (Restriction, breaking) 

b. Elements. The word "duly" has been deleted from the elements of this offense, for the same reasons explained in Analysis, paragraph 19. 

c. Explanation.This paragraph is new and is based on paragraph 20b, 126g. 131~. and 174b of MCM, 1969 (Rev.). See also United States v. 

Haynes, 15 U.S.C.M.A. 122, 35 C.M.R. 94 (1964). 

f. Sample specification. Sample specification no. 175, appendix 6c of MCM, 1969 (Rev.) was modified based on the deletion of the word 

"duly," as explained in the analysis of paragraph 19. See subparagraph b, above. 

103. Artlcle 134 (Seizure: destruction, removal, or disposal of property to prevent) 

Introduction. This offense is new. It is based on 18 U.S.C. 5 2232. See generally United States v. Gibbons, 463 F.2d 1201 (3d Cir. 1972); 

United States v. Bernstein, 287 F.Supp. 84 (S.D. Fla. 1968); UnitedStates v. Fishel, 12 M.J. 602 (A.C.M.R. 1981), pet. denied, 13 M.J. 20. See 

also the opinion in United States v. Gibbons, 331 E Supp. 970 (D. Del. 1971). 

c. Explanation. The second sentence is based on United States v. Gibbons, supra. C' United States v. Ferrone, 438 F.2d 381 (3d Cir.), cert. 

denied, 402 U.S. 1008 (1971). 

e. Maximum punishment. The maximum punishment is based on 18 U.S.C. 5 2232. 

104. Artlcle 134 (Sentinel or lookout: offenses against or by) 

c. Explanation. This paragraph is new. See Analysis, paragraph 13 and Analysis, paragraph 38. The definition of "loiter" is taken from 

United States v. Muldrau, 48 C.M.R. 63, 65 n. 1 (A.F.C.M.R. 1973). 

e. Maximum punishment. The maximum punishment for loitering or wrongfully sitting on post by a sentinel or lookout was increased 

because of the potentially serious consequences of such misconduct. Cf:Article 113. 

105. Artlcle 134 (Soliciting another to commlt an offense) 

b. Elements. See United States v. Mitchell, 15 M. J. 214 (C.M.A. 1983); the Analysis, paragraph 6. See also paragraph 101. 

c. Explanation. See the Analysis, paragraph 6. 

d. Lesser included denses. See United States v. Benton, 7 M.J. 606 (N.C.M.R. 1979), pet. denied, 8 M.J. 227 (1980). 

e. Maximum punishment. See United States v. Benton, supra. 

106. Artlcle 134 (Stolen property: knowingly receiving, buying, concealing) 

c.Explnnation.This paragraph is based on paragraph 213fl14) of MCM, 1969 (Rev.) and UnitedStates v. Cartwright, 13 M.J. 174 (C.M.A. 

1982); United States v. Ford, 12 U.S.C.M.A. 3,30 C.M.R. 3 (1960). See United States v. Rokoski, 30 C.M.R. 433 (A.B.R. 1960) concerning 

knowledge. See also United States v. Bonavita, 21 U.S.C.M.A. 407, 45 C.M.R. 181 (1972), concerning this offense in general. 

e. Maximumpunishment.The maximum punishments have been revised. Instead of three levels (less than $50, $50 to $100, and over $100) 

only two are used. This is simpler and conforms more closely to the division between felony and misdemeanor penalties contingent on value in 

property offenses in civilian jurisdictions. 

107. Artlcle 134 (Straggling) 

c. Explanation. This paragraph is new and is based on Military Judges' Benchbook, DA PAM 27-9, paragraph 3-180 (May 1982). 

108. Article 134 (Testify: wrongful refusal) 

c. Explanation. This paragraph is new and is based on United States v. Kirsch, 15 U.S.C.M. A. 84,35 C.M.R. 56 (1964). See also United 

States v. Quarles, 50 C.M.R. 514 (N.C.M.R. 1975). 

f. Sample specification. "Duly appointed" which appeared in front of the words "board of officers" in sample specification no. 174, 

Appendix 6of MCM, 1969 (Rev.) was deleted. This is because all of the bodies under this paragraph must be properly convened or appointed. 
ANALYSIS App. 21, ll lf(4) 

Summary courts-martial were expressly added to the sample specification to make clear that this offense may occur before a summary courtmartial. 

109. Artlcie 134 (Threat or hoax: bomb) 

Introduction. This offense is new to the Manual for Courts-Martial. It is based generally on 18 U.S.C. 8 844(e) and on Military Judges' 

Benchbook. DA PAM 27-9, paragraph 3-189 (May 1982). Bomb hoax has been recognized as an offense under clause 1 of Article 134. United 

States v. Mayo, 12 M.J. 286 (C.M.A. 1982). 

c. Explanation. This paragraph is based on Military Judges' Benchbook, supra at paragraph S189. 

e. Maximum punishment. The maximum punishment is based on 18 U.S.C. 8 844(e). 

110. Artlcle 134 (Threat, communlcatlng) 

c. Explanation. This paragraph is taken from paragraph 213fl10) of MCM, 1969 (Rev.). See also United States v. Gilluly, 13 U.S.C.M.A. 

458, 32 C.M.R. 458 (1963); United States v. Frayer, 11 U.S.C.M.A. 600, 29 C.M.R. 416 (1960). 

11 1. Artlcle 134 (Unlawful entry) 

c. Explanation. This paragraph is new and is based on UnitedStates v. Breen, 15 U.S.C.M.A. 658,36 C.M.R. 156 (1966); UnitedStates v. 

Gillin, 8 U.S.C.M.A. 669,25 C.M.R. 173 (1958); United States v. Love, 4 U.S.C.M.A. 260.15 C.M.R. 260 (1954). See also United States v. 

Wickersham, 14 M. J. 404 (C.M.A. 1983) (storage area); United States v. Taylor, 12 U.S.C.M. A. 44, 30 C.M.R. 44 (1960) (aircraft); United 

States v. Sutton, 21 U.S.C.M.A. 344, 45 C.M.R. 11 8 (1972) (tracked vehicle); United States v. Selke, 4 M.J. 293 (C.M.A. 1978) (summary 

disposition) (Cook, J., dissenting). 

112. Article 134 (Weapon: concealed, carrying) 

c. Explanation. This paragraph is new and is based on UnitedStates v. Tobin, 17 U.S.C.M.A. 625.38 C.M.R. 423 (1968); UnitedStates v. 

Bluel, 1OU.S.C.M.A. 67,27C.M.R. 141 (1958); UnitedStatesv. Thompson, 3 U.S.C.M.A. 620,14C.M.R. 38 (1954). Subsection(3) is based 

on United States v. Bishop, 2 M. J. 741 (A.F.C.M.R. 1977), pet. denied, 3 M.J. 184 (1977). 

113. Article 134 (Wearing unauthorized insignia, decoration, badge, ribbon, device, or lapel button) 

e. Maximum punishment. The maximum punishment has been increased to include a bad-conduct discharge because this offense often 

involves deception. 

PART V 


NONJUDlClAL PUNISHMENT PROCEDURE 


1. General 

c. Purpose. This paragraph is based on the legislative history of Article 15, both as initially enacted and as modified in 1962. See generally 

H. R. Rep. No. 491, 81st Cong., 1st Sess. 14-15 (1949); S. Rep. No. 1911, 87th Cong., 2d Sess. (1962). 

d. Policy. Subparagraph (1) is based on paragraph 129a of MCM, 1969 (Rev.). Subparagraph (2) is based on the last sentence of paragraph 

129a of MCM, 1969 (Rev.) and on service regulations. See, e.g., AR 27-10, para. 34b (1 Sep. 1982); JAGMAN sec. 0101. C$ Article 37. 

Subparagraph (3) is based on the second paragraph of paragraph 129b of MCM, 1969 (Rev.). 

e. Minor Henses. This paragraph is derived from paragraph 1286 of MCM, 1969 (Rev.), service regulations concerning "minor offenses" 

(see, e.g., AR 27-10, para. 3-3d (1 Sep. 1982); AFR 111-9, para. 3a(3) (31 Aug. 1979)); United States v. Fretwell, 11 U.S.C.M.A. 377, 29 

C.M.R. 193 (1960). The intent of the paragraph is to provide the commander with enough latitude to appropriately resolve a disciplinary problem. 

Thus, in some instances, the commander may decide that nonjudicial punishment may be appropriate for an offense that could result in a 

dishonorable discharge or confinement for more than 1 year if tried by general court-martial, e.g., failure to obey an order or regulation. On the 

other hand, the commander could refer a case to a court-martial that would ordinarily be considered at nonjudicial punishment, e.g., a short 

unauthorized absence, for a servicemember with a long history of short unauthorized absences, which nonjudicial punishment has not been 

successful in correcting. 

f. Limitations on nonjudicial punishment. (I) Double punishment prohibited. This subparagraph is taken from the first paragraph of 

paragraph 128dof MCM, 1969 (Rev.). Note that what is prohibited is the service of punishment twice. Where nonjudicial punishment is set aside, 

this does not necessarily prevent reimposition of punishment and service of punishment not previously served. 

(2) Increase in punishmentprohibited. This paragraph is taken from the second paragraph of paragraph 128d of MCM, 1969 (Rev.). 

(3) Multiple punishmentprohibited. This paragraph is based on the guidance for court-martial offenses, found in paragraphs 30g and 

33h of MCM, 1969 (Rev.). 

(4) Statute of limitations. This paragraph restates the requirements of Article 43(c) regarding nonjudicial punishment. 
App. 21, 8 2 APPENDIX 21 

(5) Civilian courts. This paragraph is derived from service regulations (see, e.g., AR 27-10, chap. 4 (1 Sep. 1982)) and is intended to 

preclude the possibility of a servicemember being punished by separate jurisdictions for the same offense, except in unusual cases. 

g. Relationship qJnonjudicial punishment to administrative corrective measures. This paragraph is derived from paragraph 128c of MCM, 

1969 (Rev.) and service regulations. See, e.g., AR 27-10, para. 3-4 (1 Sep. 1982). 

h. E@ct @errors. This paragraph is taken from paragraph 130 of MCM, 1969 (Rev.). 

2. Who may Impose nonjudlclal punlshment 

This paragraph is taken from paragraph 128a of MCM, 1969 (Rev.) and service regulations. See, e.g., AR 27-10, para. 3-7 (1Sep. 1982); 

JAGMAN sec. 0101; AFR 11 1-9, para. 3 (3 1 Aug. 1979). Additional guidance in this area is left to Secretarial regulation, in accordance with the 

provisions of Article 15(a). 

3. Rlght to demand trial. 

This paragraph is taken from Article 15(a) and paragraph 132 of MCM, 1969 (Rev.). 

4. Procedure 

This paragraph is based on paragraph 133 of MCM, 1969 (Rev.) and service regulations. It provides a uniform basic procedure for 

nonjudicial punishment for all the services. Consistent with the purposes of nonjudicial punishment (see S .Rep. No. 191 1,87th Cong. 2d Sess. 4 

(1962)) it provides due process protections and is intended to meet the concerns expressed in the Memorandum of Secretary of Defense Laird, 11 

January 1973. See also United States v. Mack, 9M.J. 300,32&21 (C.M.A. 1980). The Report of the Task Force on the Administration of Military 

Justice in the Armed Forces, 1972, and GAO Report to the Secretary of Defense, Better Administration qfMilitary Article 15Punishmentsfor 

Minor menses is Needed, September 2, 1980, were also considered. 

Note that there is no right to consult with counsel before deciding whether to demand trial by court-martial. Unless otherwise prescribed by 

the Secretary concerned, the decision whether to permit a member to consult with counsel is left to the commander. In United States v. Mack, 

supra, records of ~uNs~IIIC~~S where such opportunity was not afforded (except when the member was attached to or embarked in a vessel) were 

held inadmissible in courts-martial. 

5. Punishments 

This paragraph is taken from paragraph 131 of MCM, 1969 (Rev.). Subparagraph b(2)(b)4 is also based on S. Rep. 191 1,87th Cong., 1st 

Sess. 7 (1962). Subparagraph c(4) is also based on id. at 6-7 and Hearings Before a Subcomm. ofthe House Comm. on Armed Services, 87th 

Cong., 1st Sess. 33 (1962). Detention of pay was deleted as a punishment because under current centralized pay systems, detention of pay is 

cumbersome, ineffective, and seldom used. The concept of apportionment, authorized in Article 15(b) and set forth in paragraph 13 Id of MCM, 

1969 (Rev.), was eliminated as unnecessary and confusing. Accordingly, the Table of Equivalent Punishments is no longer necessary. 

Subparagraph d, in concert with the elimination of the apportionment concept, will ease the commanders' burden of determining an appropriate 

punishment and make the implementation of that punishment more efficient and understandable. 

6. Suspension, mltlgatlon, remlsslon, and settlng aside 

This paragraph is taken from Article 15, paragraph 134 of MCM, 1969 (Rev.), and service regulations. See, e.g., AR 27-10, paras. 3-23 

through 3-28 (1 Sep. 1982); JAGMAN sec. 0101; AFR 11 1-9, para. 7 (31 Aug. 1979). Subparagraph a dealing with suspension was expanded to: 

require a violation of the code during the period of suspension as a basis for vacation action, and to explain that vacation action is not in itself 

nonjudicial punishment and does not preclude the imposition of nonjudicial punishment for the offenses upon which the vacation action was 

based. subparagraph a(4) provides a for vacation of suspenhed noniudicial punishment. This procedure parallels the procedure found 

sufficient to make admissible in courts-martial records of vacation of susuended noniudicial uunishment. United States v. Covinnton. 10 M.J. 64 

(C.M.A. 1980). 

7. Appeals 

This paragraph is taken from paragraph 135 of MCM, 1969 (Rev.) and service regulations dealing with appeals. See AR 27-10, paras. 3-29 

through 3-35 (1 Sep. 1982); JAGMAN 0101; AFR 11 1-9, para. 8 (3 1 Aug. 1981). Subparagraph (d) requires an appeal to be filed within 5 days or 

the right to appeal will be waived, absent unusual circumstances. This is a reduction from the 15 days provided for in paragraph 135 and is 

intended to expedite the appeal process. Subparagraph f(2) is intended to promote sound practice, that is, the superior authority should consider 

many factors when reviewing an appeal, and not be limited to matters submitted by the appellant or the officer imposing the punishment. 

Subparagraph f(3) provides for "additional proceedings" should a punishment be set aside due to a procedural error. This is consistent with courtmartial practice and intended to ensure that procedural errors do not prevent appropriate disposition of a disciplinary matter. 

8. Records of nonjudlclal punlshment 

This paragraph is taken from Article 15(g) and paragraph 133c of MCM, 1969 (Rev.). 
APPENDIX 22 


ANALYSIS OF THE 1980 AMENDMENTS TO THE MANUAL FOR COURTS-MARTIAL 


The Military Rules of Evidence, Chapter XXVIIof the Manual for Courts-Martial, were the product of a two year effort participated in by the 

General Counsel of the Department of Defense, the United States Court of Military Appeals, the Military Departments, and the Department of 

Transportation. The Rules were drafted by the Evidence Working Group of the Joint Service Committee on Military Justice, which consisted of 

Commander James Pinnell, JAGC, U.S. Navy, then Major John Bozeman, JAGC, U.S. Army (from April 1978 until July 1978), Major Fredric 

Lederer, JAGC, U.S. Army (from August, 1978), Major James Potuk, U.S. Air Force, Lieutenant Commander Tom Snwk, U.S. Coast Guard, 

and Mr. Robert Mueller and Ms. Carol Wild Scott of the United States Court of Military Appeals. Mr. Andrew Effron represented the Office of the 

General Counsel of the Department of Defense on the Committee. The draft rules were reviewed and, as modified, approved by the Joint Service 

Committee on Military Justice. Aspects of the Rules were reviewed by the Code Committee as well. See Article 67(g). The Rules were approved 

by the General Counsel of the Department of Defense and forwarded to the White House via the Office of Management and Budget which 

circulated the Rules to the Departments of Justice and Transportation. 

The following Analysis was prepared primarily by Major Fredric Lederer, U.S. Army, of the Evidence Working Group of the Joint Service 

Committee on Military Justice and was approved by the Joint Service Committee on Military Justice and reviewed in the Office of the General 

Counsel of the Department of Defense. The Analysis presents the intent of the drafting committee; seeks to indicate the source of the various 

changes to the Manual, and generally notes when substantial changes to military law result from the amendments. This Analysis is not, however, 

part of the Executive Order modifying the present Manual nor does it constitute the official views of the Department of Defense, the Department of 

Transportation, the Military Departments, or of the United States Court of Military Appeals. 

The Analysis does not identify technical changes made to adapt the Federal Rules of Evidence to military use. Accordingly, the Analysis 

does not identify changes made to make the Rules gender neutral or to adapt the Federal Rules to military terminology by substituting, for 

example, "court members" for "jury" and "military judge" for "court". References within the Analysis to "the present Manual" refer to the 

Manual for Courts-Martial, 1969 (Rev. ed.) (Executive Order 11,476, as amended by Executive Order 11,835 and Executive Order 12,018) as it 

existed prior to the effective date of the 1980 amendments. References to the "Federal Rules of Evidence Advisory Committee" refer to the 

Advisory Committee on the Rules of Evidence appointed by the Supreme Court, which prepared the original draft of the Federal Rules of 

Evidence. 

Section I. General Provisions 

Rule 101. Scope 

(a)Applicability. Rule 101(a) is taken generally from Federal Rule of Evidence 101. It emphasizes that these Rules are applicable to summary as 

well as to special and general courts-martial. See "Rule of Construction." Rule 101(c), infra. Rule 1101 expressly indicates that the rules of 

evidence are inapplicable to investigative hearings under Article 32, proceedings for pretrial advice, search authorization proceedings, vacation 

proceedings, and certain other proceedings. Although the Rules apply to sentencing, they may be "relaxed" under Rule 1 101(c) and ll 75cof the 

Manual. 

The limitation in subdivision (a) applying the Rules to courts-martial is intended expressly to recognize that these Rules are not applicable to 

military commissions, provost courts, and courts of inquiry unless otherwise required by competent authority. See ll 2 of the Manual. The Rules, 

however, serve as a "guide" for such tribunals. Id. 

The Military Rules of Evidence are inapplicable to proceedings conducted pursuant to Article 15 of the Uniform Code of Military Justice. 

The decisions of the United States Court of Military Appeals and of the Courts of Military Review must be utilized in interpreting these 

Rules. While specific decisions of the Article 111courts involving rules which are common both to the Military Rules and the Federal Rules should 

be considered very persuasive, they are not binding; see Article 36 of the Uniform Code of Military Justice. It should be noted, however, that a 

significant policy consideration in adopting the Federal Rules of Evidence was to ensure, where possible, common evidentiary law. 

(b) Secondary sources. Rule 101(b) is taken from 7 137 of the present Manual which has its origins in Article 36 of the Uniform Code of Military 

Justice. Rule 101(a) makes it clear that the Military Rules of Evidence are the primary source of evidentiary law for military practice. 

Notwithstanding their wide scope, however. Rule 101(b) recognizes that recourse to secondary sources may occasionally be necessary. Rule 

101(b) prescribes the sequence in which such sources shall be utilized. 

Rule 101(b)(l) requires that the first such source be the "rules of evidence generally recognized in the trial of criminal cases in the United 

States District courts." To the extent that a Military Rule of Evidence reflects an express modification of a Federal Rule of Evidence or a federal 

evidentiary procedure, the Resident has determined that the unmodified Federal Rule or procedure is, within the meaning of Article 36(a), either 

not "practicable" or is "contrary to or inconsistent with the Uniform Code of Military Justice. Consequently, to the extent to which the Military 

Rules do not dispose of an issue, the Article 111 Federal practice when practicable and not inconsistent or contrary to the Military Rules shall be 

applied.In determining whether there is a rule of evidence "generally recognized", it is anticipated that ordinary legal research shall be involved 

with primary emphasis being placed upon the published decisions of the three levels of the Article 111courts. 

Under Rule 1102, which concerns amendments to the Federal Rules of Evidence, no amendment to the Federal Rules shall be applicable to 
App. 22, M.R.E. 101(c) APPENDIX 22 

courts-martial until 180 days after the amendment's effective date unless the Resident shall direct its earlier adoption. Thus, such an amendment 

cannot be utilized as a secondary source until 180 days has passed since its effective date or until the Resident has directed its adoption, whichever 

occurs first. An amendment will not be applicable at any time if the Resident so directs. 

It is the intent of the Committee that the expression, "common law" found within Rule 101(b)(2) be construed in its broadest possible sense. 

It should include the federal common law and what may be denominated military common law. Prior military cases may be cited as authority 

under Rule 101(b)(2) to the extent that they are based upon a present Manual provision which has been retained in the Military Rules of Evidence 

or to the extent that they are not inconsistent with the "rules of evidence generally recognized in the trial of criminal cases in the United States 

district courts," deal with matters "not otherwise prescribed in this Manual or these rules," and are "practicable and not inconsistent with or 

contrary to the Uniform Code of Military Justice or this Manual." 

(c)Rule ofconsrruction. Rule 101 (c) is intended to avoid unnecessary repetition of the expressions, "president of a special court-martial without a 

military judge" and "summary court-martial officer". "Summary court-martial officer" is used instead of "summary court-martial" for 

purposes of clarity. A summary court-martial officer is considered to function in the same role as a military judge notwithstanding possible lack of 

legal training. As previously noted in 11 137 of the Manual, "a summary court-martial has the same discretionary power as a military judge 

concerning the reception of evidence." Where the application of these Rules in a summary court-martial or a special court-martial without a 

military judge is different from the application of the Rules in a court-martial with a military judge, specific reference has been made. 

Disposition @present Manual. That part of ll 137 of the present manual not reflected in Rule 101 is found in other ~les, see, e.g. Rules 104, 

401,403. The reference in TI 137 to privileges arising out of meaty or executive agreement has been deleted as being unnecessary. See generally 

Rule 501. 

Rule 102. Purpose and Construction 

Rule 102 is taken without change from Federal Rule of Evidence 102 and is without counterpart in the present Manual for Courts-Martial. It 

provides a set of general guidelines to be used in construing the Military Rules of Evidence. It is, however, only a rule of construction and not a 

license to disregard the Rules in order to reach a desired result. 

Rule 103. Rullngs on Evidence 

(a) Effect oferroneous ruling. Rule 103(a) is taken from the Federal Rule with a number of changes. The first, the use of the language, "the ruling 

materially prejudices a substantial right of a party" in place of the Federal Rule's "a substantial right of a party is affected" is required by Article 

59(a) of the Uniform Code of Military Justice. Rule 103(a) comports with present military practice. 

The second significant change is the addition of material relating to constitutional requirements and explicitly states that errors of 

constitutional magnitude may require a higher standard than the general one required by Rule 103(a). For example, the harmless error rule, when 

applicable to an error of constitutional dimensions, prevails over the general rule of Rule 103(a). Because Section III of these Rules embodies 

constitutional rights, two standards of error may be at issue; one involving the Military Rules of Evidence, and one involving the underlying 

constitutional rule. In such a case, the standard of error more advantageous to the accused will apply. 

Rule 103(a)(l) requires that a timely motion or objection generally be made in order to preserve a claim or error. This is similar to but more 

specific than present practice. In making such a motion or objection, the party has a right to state the specific grounds of the objection to the 

evidence. Failure to make a timely and sufficiently specific objection may waive the objection for purposes of both trial and appeal. In applying 

Federal Rule 103(a), the Article In courts have interpreted the Rule strictly and held the defense to an extremely high level of specificity. See, e.g., 

UnitedStatesv. Rubin, 609 F.2d 51,6143 (2d Ck 1979) (objection to form of witness's testimony did not raise or preserve an appropriate hearsay 

objection); United States v. O'Brien, 601 F.2d 1067 (9th Cir. 1979) (objection that prosecution witness was testifying from material not in 

evidence held inadequate to raise or preserve an objection under Rule 1006). As indicated in the Analysis of Rule 802, Rule 103 significantly 

changes military law insofar as hearsay is concerned. Unlike present law under which hearsay is absolutely incompetent, the Military Rules of 

Evidence simply treat hearsay as being inadmissible upon adequate objection; see Rules 803,103(a). Note in the context of Rule 103(a) that TI 53g 

of the Manual states: "Both sides in a case are entitled to an opportunity to present and support their respective contentions, upon any matter 

presented to the court for decision." 

An "offer of proof" is a concise statement by counsel setting forth the substance of the expected testimony or other evidence. See present 

Manual TI 14%. 

Rule 103(a) prescribes a standard by which errors will be tested on appeal. Although counsel at trial need not indicate how an alleged error 

will "materially prejudice a substantial right" in order to preserve error, such a showing, during or after the objection or offer, may be advisable as 

a matter of trial practice to further illuminate the issue for both the trial and appellate bench. 

(b); (c) Record offleer and ruling: Hearing afmembers-Rule 103(b) and (c) are taken from the Federal Rules with minor changes in terminology 

to adapt them to military procedure. 

(d)Plain error-Rule 103(d) is taken from the Federal Rule with a minor change of terminology to adapt it to military practice and the substitution 

of "materially prejudices" substantial rights of "affecting" substantial rights to conform it to Article 59(a) of the Uniform Code of Military 

Justice. 

Rule 104. Prellmlnary Questions 

(a) Questions of admissibilizy generally. Rule 104(a) is taken generally from the Federal Rule. Language in the Federal Rule requiring that 

admissibility shall be determined by the "court, subject to the provisions of subdivision (b)" has been struck to ensure that, subject to Rule 1008, 
ANALYSIS OF THE 1980 AMENDMENTS App. 22, M.R.E. 201(b) 

questions of admissibility are solely for the military judge and not for the court-members. The deletion of the language is not intended, however, to 

negate the general interrelationship between subdivisions (a) and (b). When relevancy is conditioned on the fulfillment of a condition of fact, the 

military judge shall "admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition." 

Pursuant to language taken from Federal Rule of Evidence 104(a), the rules of evidence, other than those with respect to privileges, are 

inapplicable to "preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, the admissibility of 

evidence. . . ." These exceptions are new to military law and may substantially change military practice. The Federal Rule has been modified, 

however, by inserting language relating to applications for continuances and determinations of witness availability. The change, taken from 

present Manual 7 137, is required by the worldwide disposition of the armed forces which makes matters relating to continuances and witness 

availability particularly difficult, if not impossible, to resolve under the normal rules of evidence-particularly the hearsay rule. ' 

A significant and unresolved issue stemming from the language of Rule 104(a) is whether the rules of evidence shall be applicable to 

evidentiary questions involving constitutional or statutory issues such as those arising under Article 31. Thus it is unclear, for example, whether 

the rules of evidence areapplicable to a determination of the voluntariness of an accused's statement. While the Rule strongly suggests that rules of 

evidence are not applicable to admissibility determinations involving constitutional issues, the issue is unresolved at present. 

(b)Relevancy conditioned on fact. Rule 104(b) is taken from the Federal Rule except that the following language has been added: "A ruling on the 

sufficiency of evidence to support a finding of fulfillment of a condition of fact is the sole responsibility of the military judge." This material was 

added in order to clarify the rule and to explicitly preserve contemporary military procedure, Manual 7 57. Under the Federal Rule, it is unclear 

whether and to what extent evidentiary questions are to be submitted to the jury as questions of admissibility. Rule 104(b) has thus been clarified to 

eliminate any possibility, except as required by Rule 1008, that the court members will make an admissibility determination. Failure to clarify the 

rule would produce unnecessary confusion in the minds of the court members and unnecessarily prolong trials. Accordingly, adoption of the 

language of the Federal Rules without modification is impracticable in the armed forces. 

(c) Hearing ofmembers. Rule 104(c) is taken generally from the Federal Rule. Introductory material has been added because of the impossibility 

of conducting a hearing out of the presence of the members in a special court-martial without a military judge. "Statements of an accused" 

has been used in lieu of "confessions" because of the phrasing of Article 31 of the Uniform Code of Military Justice, which has been followed in 

Rules 301-306. 

(d) Testimony by accused. Rule 104(d) is taken without change from the Federal Rule. Application of this rule in specific circumstances is set forth 

in Rules 304(f), 31 1(f) and 321(e). 

(e) Weight and credibility. Rule 104(e) is taken without change from the Federal Rule. 

Rule 105. Limlted admissibility 

Rule 105 is taken without change from the Federal Rule. In view of its requirement that the military judge restrict evidence to its proper scope 

"upon request," it overrules United States v. Grunden, 2 M.J. 116 (C.M.A. 1977) (holding that the military judge must sua sponte instruct the 

members as to use of evidence of uncharged misconduct) and related cases insofar as they require the military judge to sua sponte instruct the 

members. See e.g., S. SALTZBURG & K. REDDEN,FEDERAL RULES OF EVIDENCE MANUAL 50 (2d ed. 1977); United States v. Sangrey, 

586 F.2d 1315 (9th Cir. 1978); UnitedStates v. Barnes, 586 F.2d 1052 (5th Cir. 1978); UnitedStates v.Bridwell, 583 F.2d 1135 (10th Cir. 1978); 

but see United States v. Ragghianti, 560 F.2d 1376 (9th Cir. 1977). This is compatible with the general intent of both the Federal and Military 

Rules in that they place primary if not full responsibility upon counsel for objecting to or limiting evidence. Note that Rule 306, dealing with 

statements of co-accused, is more restrictive and protective than Rule 105. The military judge may, of course, choose to instruct sua sponte but 

need not do so. Failure to instruct sua sponte could potentially require a reversal only if such failure could be considered "plain error" within the 

meaning of Rule 103(d). Most failures to instruct sua sponte, or to instruct, cannot be so considered in light of current case law. 

Rule 106. Remainder of or Related Writings or Recorded Statements 

Rule 106 is taken from the Federal Rule without change. In view of the tendency of fact-finders to give considerable evidentiary weight to 

written matters, the Rule is intended to preclude the misleading situation that can occur if a party presents only part of a writing or recorded 

statement.In contrast to ll 140a of the present Manual, which applies only to statements by an accused, the new Rule is far more expansive and 

permits a party to require the opposing party to introduce evidence. That aspect of ll 140a(b) survives as Rule 304(h)(2) and allows the defense to 

complete an alleged confession or admission offered by the prosecution. When a confession or admission is involved, the defense may employ 

both Rules 106 and 304(h)(2), as appropriate. 

Sectlon II. Judiclal Ndlce 

Rule 201. Judicial Notice of Adjudicative Facts 

(a) Scope ofRule. Rule 201(a) provides that Rule 201 governs judicial notice of adjudicative facts. In so doing, the Rule replaces present Manual 

7 147a. The Federal Rules of Evidence Advisory Committee defined adjudicative facts as "simply the facts of the particular case" and 

distinguished them from legislative facts which it defined as "those which have relevance to legal reasoning and the lawmaking process, whether 

in the formulation of a legal principle or ruling by a judge or court or in the enactment of a legislative body," reprinted in S. SALTZBURG & K. 

REDDEN, FEDERAL RULES OF EVIDENCE MANUAL 63 (2d ed. 1977). The distinction between the two types of facts, originated by 

Professor Kenneth Davis, can on occasion be highly confusing in practice and resort to any of the usual treatises may be helpful. 

(b)Kindsoffacts. Rule 201(b) was taken generally from theFederal Rule. The limitation within FED. R. EVID. 201(b)(l) to facts known "within 

the territorial jurisdiction of the trial court" was replaced, however, by the expression, "generally known universally, locally, or in the area, 

pertinent to the event." The worldwide disposition of the armed forces rendered the original language inapplicable and impracticable wthin the 
App. 22, M.R.E. 201(c) APPENDIX 22 

military environment. Notice of signatures, appropriate under present Manual ll 147a, will normally be inappropriate under this Rule. Rule 

902(4) & (10) will, however, usually yield the same result as under 7 147a of the present Manual. 

When they qualify as adjudicative facts under Rule 201, the following are examples of matters of which judicial notice may be taken: 

The ordinary division of time into years, months, weeks and other periods; geneal facts and laws of nature, including their ordinary 

operations and effects; general facts of history; generally known geographical facts; such specific facts and propositions of generalized 

knowledge as are so universally known that they cannot reasonably be the subject of dispute; such facts as are so generally known or are 

of such common notoriety in the area in which the trial is held that they cannot reasonably be the subject of dispute; and specific facts and 

propositions of generalized knowledge which are capable of immediate and accurate determination by resort to easily accessible sources 

of reasonably indisputable accuracy. 

(c) When discretionary. While the first sentence of the subdivision is taken from the Federal Rule, the second sentence is new and is included as a 

result of the clear implication of subdivision (e) and of the holding in Garner v. Louisiana, 368 U.S. 157, 173-74 (1961). In Garner, the Supreme 

Court rejected the contention of the State of Louisiana that the trial judge had taken judicial notice of certain evidence stating that: 

There is nothing in the records to indicate that the trial judge did in fact take judicial notice of anything. To extend the doctrine of 

judicial notice . . . would require us to allow the prosecution to do through argument to this Court what it is required by due process to 

do at the trial, and would be to turn the doctrine into a pretext for dispensing with a trial of the facts of which the court is taking judicial 

notice, not only does he not know upon what evidence he is being convicted, but, in addition, he is deprived of any opportunity to 

challenge the deductions drawn from such notice or to dispute the notoriety or truth of the facts allegedly relied upon. 

368 U.S. at 173. 

(d) When mandatory. Rule 201(d) provides that the military judge shall take notice when requested to do so by a party who supplies the military 

judge with the necessary information. The military judge must take judicial notice only when the evidence is properly within this Rule, is relevant 

under Rule 401, and is not inadmissible under these Rules. 

(e) Opportunity to be heard; Time of taking notice; Instructing Members. Subdwisions (e),(f) and (g) of Rule 201 are taken from the Federal Rule 

without change. 

Rule 201A. Judlclal Notlce of Law 

In general. Rule 201A is new. Not addressed by the Federal Rules of Evidence, the subject matter of the Rule is treated as aprocedural matter 

in the Articlem courts; see, e.g., FED R. CRIM. P. 26.1. Adoption of a new evidentiary rule was thus required. Rule 201A is generally consistent 

in principle with present Manual ll 147a. 

Domestic law. Rule 201A(a) recognizes that law may constitute the adjudicative fact within the meaning of Rule 201(a) and requires that 

when that is the case, i.e., insofar as a domestic law is a fact that is of consequence to the determination of the action, the procedural requirements 

of Rule 201 must be applied. When domestic law constitutes only a legislative fact, see the Analysis to Rule 201(a), the procedural requirements 

of Rule 201 may be utilized as a matter of discretion. For purposes of this Rule, it is intended that "domestic law" include: treaties of the United 

States; executive agreements between the United States and any State thereof, foreign country or intemational organization or agency; the laws 

and regulations pursuant thereto of the United States, of the District of Columbia, and of a State, Commonwealth, or possession; international law, 

including the laws of war; general maritime law and the law of air and space; and the common law. This definition is taken without change from 

present Manual ll 147a except that reference to the law of space has been added. "Regulations" of the United States include regulations of the 

anned forces. 

When a party requests that domestic law be noticed, or when the military judge sua sponte takes such notice, a copy of the applicable law 

should be attached to the record of trial unless the law in question can reasonably be anticipated to be easily available to any possible reviewing 

authority. 

Foreign law. Rule 201A(b) is taken without significant change from FED R. CRIM. P. 26.1 and recognizes that notice of foreign law may 

require recourse to additional evidence including testimony of witnesses. For purposes of this Rule, it is intended that "foreign law" include the 

laws and regulations of foreign countries and their political subdivisions and of international organizations and agencies. Any material or source 

received by the military judge for use in determining foreign law, or pertinent extracts therefrom, should be included in the record of trial as an 

exhibit. 

Sectlon Ill. Exclusionary Rules and Related Matters Concernlng Self-lncriminatlon, Search and Seizure, and Eyewltness 

ldentlficatlon 

Militai-y Rules of Evidence 301-306,311-317, and 321 are new and have no equivalent in the Federal Rules of Evidence. They represent a 

partial codification of the law relating to self-incrimination, confessions and admissions, search and seizure, and eye-witness identification. They 

are often rules of criminal procedure as well as evidence and have been located in this section due to their evidentiary significance. They replace 

Federal Rules of Evidence 301 and 302 which deal with civil matters exclusively. 

The Committee believe it imperative to codify the material treated in Section III because of the large numbers of lay personnel who hold 

important roles within the military criminal legal system. Non-lawyer legal officers aboard ship, for example, do not have access to attorneys and 

law libraries. In all cases, the Rules represent a judgment that it would be impracticable to operate without them. See Article 36. The Rules 

represent a compromise between specificity, intended to ensure stability and uniformity with the armed forces, and generality, intended usually to 

allow change via case law. In some instances they significantly change present procedure. See, e.g., Rule 304(d) (procedure for suppression 

motions relating to confessions and admissions). 
i 

ANALYSIS OF THE 1980 AMENDMENTS App. 22, M.R.E. 301(d) 

Rule 301. Privilege Concerning Compulsory Self-lncrlmlnatlon 

(a) General rule. Rule 301 (a) is consistent with the rule currently expressed in the first paragraph 11 1506 of the Manual but omits the phrasing of 

the privileges and explicitly states that as both variations apply the accused or witness receives the protection of whichever privilege may be the 

more beneficial. The fact that the privilege extends to a wimess as well as an accused is inherent within the new phrasing which does not 

distinguish between the two. 

The Rule states that the privileges are applicable only "to evidence of a testimonial or communicative nature,"Schmerber v. California, 384 

U.S. 757,761 (1966). The meaning of "testimonial or communicative" forthe purpose of Article 3 1 of the Uniform Code of Military Justice is not 

fully settled. Past decisions of the Court of Military Appeals have extended the Article 31 privilege against self-incrimination to voice and 

handwriting exemplars and perhaps under certain conditions to bodily fluids. United States v. Ruiz, 23 U.S.C.M.A. 181,48 C.M.R. 797 (1974). 

Because of the unsettled law in the area of bodily fluids, it is not the intent of the Committee to adopt any particular definition of "testimonial or 

communicative." It is believed, however, that the decisions of the United States Supreme Court construing the Fifth Amendment, e.g., Schmerber 

v. California, 384 U.S. 757 (1966), should be persuasive in this area. Although the right against self-incrimination has a number of varied 

justifications, its primary purposes are to shield the individual's thought processes from Government inqujl and to permit an individual to refuse 

to create evidence to be used against him. Taking a bodily fluid sample from the person of an individual fails to involve either concern. The fluid in 

question already exists; the individual's actions are irrelevant to its seizure except insofar as the health and privacy of the individual can be further 

protected through his or her cooperation. No persuasive reason exists for Article 31 to be extended to bodily fluids. To the extent that due process 

issues are involved in bodily fluid extractions, Rule 312 provides adequate protections. 

The privilege against self-incrimination does not protect a person from being compelled by an order or force to exhibit his or her body or other 

physical characteristics as evidence. Similarly, the privilege is not violated by taking the fingerprints of an individual, in exhibiting or requiring 

that a scar on the body be exhibited, in placing an individual's feet in tracks, or by trying shoes or clothing on a person or in requiring the person to 

do so, or by compelling a person to place a hand, arm, or other part of the body under the ultra-violet light for identification or other purposes. 

The privilege is not violated by the use of compulsion in requiring a person to produce a record or writing under his or her control containing 

or disclosing incriminating matter when the record or writing is under control in a representative rather than a personal capacity as, for example, 

when it is in his or her control as the custodian for a non-appropriated fund. See, e.g., ll 150b of the present Manual; United States v. Sellers, 12 

U.S.C.M.A. 262, 30 C.M.R. 262(1961); United States v. Haskins, 11 U.S.C.M.A. 365, 29 C.M.R. 181 (1960). 

(b)Standing. 

(1)In general. Rule 301(b)(l) recites the first part of the third paragraph of ll 1506 of the present Manual without change except that the 

present language indicating that neither counsel nor the court may object to a self-incriminating question put to the witness has been deleted as being unnecessary. 

(2)Judicial advice. A clarified version of the military judge's responsibility under ll 150b of the present Manual to warn an informed witness 

of the right against self-incrimination has been placed in Rule 301(b)(2). The revised procedure precludes counsel asking in open court that a 

witness be advised of his or her rights, a practice which the Committee deemed of doubtful propriety. 

(c) Exercise ojtheprivilege. The first sentence of Rule 301 (c) restates generally the first sentence of the second paragraph of ll 1506 of the present 

Manual. The language "uniess it clearly appears to the military judge" was deleted. The test involved is purely objective. 

The second sentence of Rule 301(c) is similar to the second and third sentences of the second paragaph of ll 150b of the present Manual but 

the language has been rephrased. The present Manual's language states that the witness can be required to answer if for "any other reason, he can 

successfully object to being tried for any offense as to which the answer may supply information tending to incriminate him . . . ."Rule 301(c) 

provides: "A witness may not assert the privilege if the witness is not subject to criminal penalty as a result of an answer by reason of immunity, 

running of the statute of limitations, or similar reason." It is believed that the new language is simpler and more accurate as the privilege is properly 

defined in terms of consequence rather than in terms of "being tried." In the absence of a possible criminal penalty, to include the mere fact of 

conviction, there is no risk of self-incrimination. It is not the intent of the Committee to adopt any particular delinition of "criminal penalty." It 

should be noted, however, that the courts have occasionally found that certain consequences that are technically non-criminal are so similar in 

effect that the privilege should be construed to apply. See, e.g., Spevack v. Klein, 385 U.S. 51 1 (1967); United States v. Ruiz, 23 U.S.C.M.A. 

181.48 C.M.R. 797 (1974). Thus, the definition of "criminal penalty" may depend upon the facts of a given case as well as the applicable case 

law. 

It should be emphasized that an accused, unlike a witness, need not take the stand to claim the privilege. 

(I) Immunity generally. Rule 301(c)(l) recognizes that "testimonial" or "use plus fruits" immunity is sufficient to overcome the privilege 

against self-incrimination, cf:, UnitedStates v. Rivera, 1 M.J. 107 (C.M. A. 1975), reversing on other grounds, 49 C.M.R. 259 (A.C.M.R. 1974), 

and declares that such immunity is adequate for purposes of the Manual. The Rule recognizes that immunity may be granted under federal statutes 

as well as under ll68h of the Manual. 

(2)Not$cation qfimmunity or leniency. The basic disclosure provision of Rule 301(c)(2) is taken from United States v. Webster, 1 M.J. 216 

(C.M.A. 1975). Disclosure should take place prior to arraignment in order to conform with the timing requirements of Rule 304 and to ensure 

efficient trial procedure. 

(d) Waiver by a witness. The first sentence of Rule 301(d) repeats without change the third sentence of the third subparagraph of ll 150b of the 

present Manual. 

The second sentence of the Rule restates the second section of the present subparagraph but with a minor change of wording. The present text 

reads: "The wimess may be considered to have waived the privilege to this extent by having made the answer, but such a waiver will not extend to a 
App. 22, M.R.E. 301(e) APPENDIX 22 

rehearing or new or other trial," while the new language is: "This limited waiver of the privilege applies only at the trial at which the answer is 

given, does not extend to a rehearing or new or other trial, and is subject to Rule 608(b)." 

(e) Waiver by the accused. Except for the reference to Rule 608(b), Rule 301(e) generally restates the fourth sentence of the third subparagraph of 

present ll 149b(1) of the Manual. "Matters" was substituted for "issues" for purposes of clarity. 

The mere act of taking the stand does not waive the privilege. If an accused testifies on direct examination only as to matters not bearing upon 

the issue of guilt or innocence of any offense for which the accused is being tried, as in Rule 304(f), the accused may not be cross-examined on the 

issue of guilt or innocence at all. See 7 149b(l) of the present Manual and Rule 608(b). 

The last sentence of the third subparagraph of 7 149b(1) of the present Manual has been deleted as unnecessary. The Analysis statement 

above, "The mere act of taking the stand does not waive the privilege," reinforces the fact that waiver depends upon the actual content of the 

accused's testimony. 

The last sentence of Rule 301(e) restates without significant change the sixth sentence of the third subparagraph of present ll 1496(1). 

(f) Effect ,claiming the privilege. 

(I)Generally. Rule 301(f)(l) is taken without change from the fourth subparagraph of 7 1506 of the present Manual. It should be noted that 

it is ethically improper to call a witness with the intent of having the witness claim a valid privilege against self-incrimination in open court, see, 

e.g., ABA STANDARDS RELATING TO THE ADMINISTRATION OF CRIMINAL JUSTICE, STANDARDS RELATING TO THE 

PROSECUTION FUNCTION AND THE DEFENSE FUNCTION, Prosecution Standard 3-5.7(c); Defense Standard 4-7.6(c) (Approved 

draft 1979). 

Whether and to what extent a military judge may permit comment on the refusal of a witness to testify after his or her claimed reliance on the 

privilege against self-incrimination has been determined by the judge to be invalid is a question not dealt with by the Rule and one which is left to 

future decisions for resolution. 

(2) On cross-examination. This provision is new and is intended to clarify the situation in which a witness who has testified fully on diiect 

examination asserts the privilege against self-incrimination on cross-examination. It incorporates the prevailing civilian rule, which has also been 

discussedinmilitarycases. See, e.g., UnitedStatesv. Colon-Atienza, 22 U.S.C.M.A. 399,47 C.M.R. 336 (1973); UnitedStatesv. Rivas, 3M.J. 

282 (C.M.A. 1977). Where the assertion shields only "collateral" matters4.e.. evidence of minimal im~ortance (usuallv dealing with a rather - distant fact solicited for impeachment purposes)-it is not appropriate to strike direct testimony. A matter is collateral when sheltering it would 

create little danger of prejudice to the accused. Where the exercise of the privilege reaches the core of the direct testimony or prevents a full inquiry 

into the credibility of the wih.less, however, striking of the direct testimony would appear mandated. Cross-examination includes for the purpose of 

Rule 301 the testimony of a hostile witness called as if on cross-examination. See Rule 607. Depending upon the circumstances of the case, a 

refusal to strike the testimony of a Government witness who refuses to answer defense questions calculated to impeach the credibility of the 

witness may constitute prejudicial limitation of the accused's right to cross-examine the witness. 

(3) Pretrial. Rule 301(f)(3) is taken generally from 7 140a(4) of the present Manual and follows the decisions of the United States Supreme 

Court in UnitedStates v. Hale, 422 U.S. 171 (1975) andDoyle v. Ohio, 426 U.S. 610 (1976). See also UnitedStates v. Brooks, 12 U.S.C.M.A. 

423,31 C.M.R. 9 (1961); United States v. McBride, 50 C.M.R. 126 (A.F.C.M.R. 1975). The present Manual provision has been expanded to 

include a request to terminate questioning. 

(g)Insfructions. Rule 301(g) has no counterpart in the present Manual. It is designed to address the potential for prejudice that may occur when an 

accused exercises his or her right to remain silent. Traditionally, the court members have been instructed to disregard the accused's silence and not 

to draw any adverse inference from it. However, counsel for the accused may determine that this very instruction may emphasize the accused's 

silence, creating a prejudicial effect. Although the Supreme Court has held that it is not unconstitutional for a judge to instruct a jury over the 

objection of the accused to disregard the accused's silence, it has also stated: "It may be wise for a trial judge not to give such a cautionary 

instruction over a defendant's objection."Lakeside v. Oregon, 435 U.S. 333,34041 (1978). Rule 301(g) recognizes that the decision to ask for a 

cautionary instruction is one of great tactical importance for the defense and generally leaves that decision solely withii the hands of the defense. 

Although the military judge may give the instruction when it is necessary in the interests of justice, the intent of the Committee is to leave the 

decision in the hands of the defense in all but the most unusual cases. See also Rule 105. The military judge may determine the content of any 

instruction that is requested to be given. 

(h)Miscellaneous. The last portion of paragraph 1506 dealing with exclusion of evidence obtained in violation of due process has been deleted and 

its content placed in the new Rules on search and seizure. See e.g., Rule 312, Bodily Views and Instrusions. The exclusionary rule now found in 

the last subparagraph of present ll 150b has been deleted as being unnecessary in view of the general exclusionary rule in Rule 304. 

Rule.302. Privilege Concerning Mental Examination of an Accused 

Introduction. The difficulty giving rise to Rule 302 and its conforming changes is a natural consequences of the tension between the right 

against self-incrimination and the favored position occupied by the insanity defense. If an accused could place a defense expert on the stand to 

testify to his lack of mental responsibility and yet refuse to cooperate with a Government expert, it would place the prosecution in a 

disadvantageous position. The courts have attempted to balance the competing needs and have arrived at what is usually, although not always, an 

adequate compromise; when an accused has raised a defense of insanity through expert testimony, the prosecution may compel the accused to 

submit to Government psychiatric examination on pain of being prevented from presenting any defense expert testimony (or of striking what 

expert testimony has already been presented). However, at trial the expert may testify only as to his or her conclusions and their basis and nit as to 

the contents of any statements made by the accused during the examination. See, e.g., United States v. Albright, 388 E2d 719 (4th Cir. 1968); 

UnitedStates v. Babbidge, 18 U.S.C.M.A. 327,40 C.M.R. 39 (1969). See generally, Lederer, Rights Warnings in the ArmedSeiervices, 72 Mil. L. 
ANALYSIS OF THE 1980 AMENDMENTS App. 22, M.R.E. 302 

Rev. 1 (1976); Holladay, Pretrial Mental Examinations Under Military Law: A Re-Examination, 16 A.F.L. Rev. 14 (1974). This compromise, 

which originally was a product of case law, is based on the premise that raising an insanity defense is an implied partial waiver of the privilege 

against self-incrimination and has since been codified in the Federal Rules of Criminal Procedures, FED. R. CRIM. P. 12-2, and present Manual 

77 140a, 122b, 150b. The compromise, however, does not fully deal with the problem in the military. 

In contrast to the civilian accused who is more likely to have access to a civilian doctor as an expert witness for the defense-a witness with 

no governmental status-the military accused normally must rely upon the military doctors asigned to the local installation. In the absence of a 

doctor-patient privilege, anything said can be expected to enter usual Government medical channels. Once in those channels there is nothing in the 

present Manual that prevents the actual psychiatric report from reaching the prosecution and release of such information appears to be common in 

contemporary practice. As a result, even when the actual communications made by the accused are not revealed by the expert witness in open 

court, under the present Manual they may be studied by the prosecution and may be used to discover other evidence later admitted against the 

accused. This raises significant derivative evidence problems, c$ United States v. Rivera, 23 U.S .C.M.A. 430, 50 C.M.R. 389 (1975). One 

military judge's attempt to deal with this problem by issuing aprotective order was commended by the Court of Military Appeals in an opinion that 

contained a caveat from Judge Duncan that the trial judge may have exceeded his authority in issuing the order, United States v. Johnson, 22 

U.S.C.M.A. 424, 47 C.M.R. 402 (1973). 

Further complicating this picture is the literal language of Article 31(b) which states, in part, that "No person subject to this chapter may. . . 

request a statement from, an accused or a person suspected of an offense without first informing him . . ." [of his rights]. Accordingly, a 

psychiatrist who complies with the literal meaning of Article 31(b) may effectively and inappropriately destroy the very protections created by 

Babbidge and related cases, while hindering the examination itself. At the same time, the validity of wamings and any consequent "waiver" under 

such circumstances is most questionable because Babbidge never considered the case of an accused forced to choose between a waiver and a 

prohibited or limited insanity defense. Also left open by the present compromise is the question of what circumstances, if any, will permit a 

prosecutor to solicit the actual statements made by the suspect during the mental examination. In United States v. Frederick, 3 M. J. 230 (C.M.A. 

1977), the Court of Military Appeals held that the defense counsel had opened the door via his questioning of the witness and thus allowed the 

prosecution a broader examination of the expert witness than would otherwise have been allowed. At present, what constitutes "opening the door" 

is unclear. An informed defense counsel must proceed with the greatest of caution being always concerned that what may be an innocent question 

may be considered to be an "open sesame." 

Under the present Manual interpretation of Babbidge, supra, the accused may refuse to submit to a Government examination until after the 

actual presentation of defense expert testimony on the insanity issue. Thus, trial may have to be adjourned for a substantial period in the midst of 

the defense case. This is conducive to neither justice nor efficiency. 

A twofold solution to these problems has been developed. Rule 302 provides a form of testimonial immunity intended to protect an accused 

from use of anything he may say during a mental examination ordered pursuant to 7 121 of the Manual. Paragraph 121 has been modified to 

sharply limit actual disclosure of information obtained from the accused during the examination. Together, these provisions should adequately 

protect the accused from disclosure of any statements made during the examination. This will encourage the accused to cooperate fully in the 

examination while protecting the Fifth Amendment and Article 31 rights of the accused. 

Paragraph 121 has been retitled to eliminate "Before Trial" and is thus made applicable before and during trial. Pursuant to paragraph 121, 

an individual's belief or observations, reflecting possible need for a mental examination of the accused should be submitted to the convening 

authority with immediate responsibility for the disposition of the charges or, after referral, to the military judge or president of a special courtmartial without a military judge. The submission may, but need not, be accompanied by a formal application for a mental examination. While the 

convening authority may act on a submission under paragraph 121 after referral, he or she may do so only when a military judge is not reasonably 

available. 

Pararaph 121 has been revised to reflect the new test for insanity set forth in United States v. Frederick, 3 M.J. 230 (C.M.A. 1977), and to 

require sufficient information for the fact finder to be able to make an intelligent decision rather than necessarily relying solely upon an expert's 

conclusion. Further questions, tailored to the individual case, may also be propounded. Thus, in an appropriate case, the following might be 

asked: 

Did the accused, at the time of the alleged offense and as a result of such mental disease or defect, lack substantial capacity to 

(possess actual knowledge), (entertain a specific intent), (premeditate a design to kill)? 

What is the accused's intelligence level? 

Was the accused under the influence of alcohol or other drugs at the time of the offense? If so, what was the degree of intoxication 

and was it voluntary? Does the diagnosis of alcoholism, alcohol or drug induced organic brain syndrome or pathologic intoxication 

apply? 

As the purpose of the revision of paragraph 121 and the creation of Rule 302 is purely to protect the privilege against self-incrimination of an 

accused undergoing a mental examination related to a criminal case, both paragraph 121 and Rule 302 are inapplicable to proceedings not 

involving criminal consequences. 

The order to sanity board required by paragraph 121 affects only members of the board and other medical personnel. Upon request by a 

commanding officer of the accused, that officer shall be furnished a copy of the board's full report. The commander may then make such use of the 

report as may be appropriate (including consultation with a judge advocate) subject only to the restriction on relede to the trial counsel and to Rule 

302. The restriction is fully applicable to all persons subject to the Uniform Code of Military Justice. Thus, it is intended that the trial counsel 

receive only the board's conclusions unless the defense should choose to disclose specific matter. The report itself shall be released to the trial 

counsel, minus any statements made by the accused, when the defense raises a sanity issue at trial and utilizes an expert witness in its presentation. 

Rule 302(c). 
App. 22, M.R.E,~o~(~) APPENDIX 22 

Although Rule 302(c) does not apply to determinations of the competency of the accused to stand trial, paragraph 121 does prohibit access to 

the sanity board report by the ma1 counsel except as specifically authorized. In the event that the competency of anaccused to stand trial is at issue, 

the trial counsel may request, pursuant to paragraph 121, that the military judge disclose the sanity board report to the prosecution. In such a case, 

a trial counsel who has read the report will be disqualified from prosecuting the case in chief if Rule 302(a) is applicable. 

As indicated above, paragraph 121 requires that the sanity board report be kept within medical channels except insofar as it will be released to 

the defense and, upon request, to the commanding officer of the accused. The paragraph expressly prohibits any person from supplying the trial 

counsel with information relating to the contents of the report. Care should be taken not to misconstrue the intent of the provision. The trial 

counsel is dealt with specifically because in the normal case it is only the trial counsel who is involved in the preparation of the case at the stage at 

which a sanity inquiry is likely to take place. Exclusion of evidence will result, however, even if the information is provided to persons other than 

trial counsel if such information is the source of derivative evidence. Rule 302 explicity allows suppression of any evidence resulting from the 

accused's statement to the sanity board, and evidence derivative thereof, with limited exceptions as found in Rule 302. This is consistent with the 

theory behind the revisions which treats the accused's communication to the sanity board as a form of coerced statement required under a form of 

testimonial immunity. For example, a commander who has obtained the sanity board's report may obtain legal advice from a judge advocate, 

including the staff judge advocate, concerning the content of the sanity board's report. If the judge advocate uses the information in order to obtain 

evidence against the accused or provides it to another person who used it to obtain evidence to be used in the case, Rule 302 authorizes exclusion. 

Commanders must take great care when discussing the sanity board report with others, and judge advocates exposed to the report must also take 

greht care to operate within the Rule. 

(a) General Rule. Rule 302(a) provides that, absent defense offer, neither a statement made by the accused at a mental examination ordered under 

paragraph 121 nor derivative evidence thereof shall be received into evidence against the accused at trial on the merits or during sentencing when 

the Rule is applicable. This should be treated as a question of testimonial immunity for the purpose of determining the applicability of the 

exclusionary rule in the area. The Committee does not express an opinion as to whether statements made at such a mental examination or 

derivative evidence thereof may be used in making an adverse determination as to the disposition of the charges against the accused. 

Subject to Rule 302(b), Rule 302(a) makes statements made by an accused at a paragraph 121 examination inadmissible even if Article 3 l(b) 

and counsel warnings have been given. This is intended to resolve problems arising from the literal interpretation of Article 3 1 discussed above. It 

protects the accused and enhances the validity of the examination. 

(b)Exceptions. Rule 302(b) is taken from present law; see Manual paragraph 122b. The waiver provision of Rule 302(b)(l) applies only when the 

defense makes explicit use of statements made by the accused to a sanity board or derivative evidence thereof. The use of lay testimony to present 

an insanity defense is not derivative evidence when the witness has not read the report. 

(c) Release ofevidence. Rule 302(c) is new and is intended to provide the trial counsel with sufficient information to reply to an insanity defense 

raised via expert testimony. The Rule is so structured as to permit the defense to choose how much information will be available to the prosecution 

by determining the nature of the defense to be made. If the accused fails to present an insanity defense or does so only through lay testimony, for 

example, the trial counsel will not receive access to the report. If the accused presents a defense, however, which includes specific incriminating 

statements made by the accused to the sanity board, the military judge may order disclosure to the ma1 counsel of "such statement. . . as may be 

necessary in the interest of justice." 

Inasmuch as the revision of paragraph 121 and the creation of Rule 302 is intended primarily, to deal with the situation in which the accused 

denies committing an offense and only raises an insanity defense as an alternative defense, the defense may consider that it is appropriate to 

disclose the entire sanity report to the trial counsel in a case in which the defense concedes the commission of the offense but is raising as its sole 

defense the mental state of the accused. 

(d)Non-complianceby the accused. Rule 302(d) restates present law and is in addition to any other lawful sanctions. As Rule 302 and the revised 

paragraph 121 adequately protect the accused's right against self-incrimination at a sanity board, sanctions other than that found in Rule 302(d) 

should be statutorily and constitutionally possible. In an unusual case these sanctions might include prosecution of an accused for disobedience of 

a lawful order to cooperate with the sanity board. 

(e) Procedure. Rule 302(e) recognizes that a violaton of paragraph 121 or Rule 302 is in effect a misuse of immunized testimony-the coerced 

testimony of the accused at the sanity board-and thus results in an involuntary statement which may be challenged under Rule 304. 

Rule 303. Degrading Questlons 

Rule 303 restates Article 31(c). The content of present paragraph 150a has been omitted. 

A specific application of Rule 303 is in the area of sexual offenses. Under present law the victims of such offenses are often subjected to a 

probing and degrading cros~~examination related to past sexual history-an examination usually of limited relevance at best. Rule 412 of the 

Military Rules of Evidence now prohibits such questioning, but Rule 412 is, however, not applicable to Article 32 hearings as it is only a rule of 

evidence; Rule 1 101. Rule 303 and Article 3 l(c) on the other hand, are rules of privilege applicable to all persons, military or civilian, and are thus 

fully applicable to Article 32 proceedings. Although Rule 303 (Article 31(c)) applies only to "military tribunals,"it is apparent that Article 31(c) 

was intended to apply to courts-of-inquiry, and implicitly to Article 32 hearings. The Uniform Code ofMilitaiy Justice, Hearings on H.R. 2498 

Before a Subcomm. ofthe House Comm. on Armed Services, 81st Cong., 1st Sess. 975 (1949). The Committee intends that the expression 

"military tribunals" in Rule 303 includes Article 32 hearings. 

Congress found theinformation now safeguarded by Rule412 to be degrading.See, e.g., Cong. Rec. H119944-45 (Daily ed. Oct. 10,1978) 

(Remarks of Rep. Mann). As the material within the constitutional scope of Rule 412 is inadmissible at trial, it is thus not relevant let alone 

"material." Consequently that data within the lawful coverage of Rule 412 is both immaterial and degrading and thus is within the ambit of Rule 

303 (Article 31(c)). 
ANALYSIS OF THE 1980 AMENDMENTS App. 22, M.R.E. 304(c)(2) 

Rule 303 is therefore the means by which the substance of Rule 412 applies to Article 32 proceedings, and no person may be compelled to 

answer a question that would be prohibited by Rule 412. As Rule 412 permits a victim to refuse to supply irrelevant and misleading sexual 

information at trial, so too does the substance of Rule 412 through Rule 303 permit the victim to refuse to supply such degrading information at an 

Article 32 for use by the defense or the convening authority. See generally Rule 41 2 and the Analysis thereto. It should also be noted that it would 

clearly be unreasonable to suggest that Congress in protecting the victims of sexual offenses from the degrading and irrelevant cross-examination 

formerly typical of sexual cases would have intended to permit the identical examination at a military preliminary hearing that is not even presided 

over by a legally trained individual. Thus public policy fully supports the application of Article 31(c) in this case. 

Rule 304. Confesslons and Admissions 

(a) General rule. The exclusionary rule found in Rule 304(a) is applicable to Rule 301-305, and basically restates present law which appears in 

present Manual paragraphs 140a(6) and 1506. Rule 304b does permit, however, limited impeachment use of evidence that is excludable on the 

merits. A statement that is not involuntary within the meaning of Rule 304(c)(3), Rule 305(a) or Rule 302(a) is voluntary and will not be excluded 

under this Rule. 

The seventh paragraph of ll 150b of the present Manual attempts to limit the derivative evidence rule to statements obtained through 

compulsion that is "applied by, or at the instigation or with the participation of, an &cia1 or agent ofthe United States, or any State thereofor 

political subdivision of either, who was acting in a governmental capacity . . ." (emphasis added). Rule 304, however, makes all derivative 

evidence inadmissible. Although some support for the present Manual limitations can be found in the literal phrasing of Article 3 l(d), the intent of 

the Article as indicated in the commentary presented dhing the House hearings, The Uniform Code @Military Justice, Hearing on H.R. 2498 

Before a Subcomm. of the House Comm. on Armed Services, 81st Cong., 1st Sess. 984(1949), was to exclude "evidence" rather than just 

"statements." Attempting to allow admission of evidence obtained from statements which were the product of coercion, unlawful influence, or 

unlawful inducement would appear to be both against public policy and unnecessarily complicated. Similarly, the present Manual's attempt to 

lit the exclusion of derivative evidence to that obtained through compulsion caused by "Government agents" has been deleted in favor of the 

simpler exclusion of all derivative evidence. This change, however, does not affect the limitation, as expressed in current case law, that the 

warning requirements apply only when the interrogating individual is either a civilan law enforcement officer or an individual subject to the 

Uniform Code of Military Justice acting in an official disciplinary capacity or in a position of authority over a suspect or accused. The House 

hearings indicate that all evidence obtained in violation of Article 31 was to be excluded and all persons subject to the Uniform Code of Military 

Justice may violate Article 3 l(a). Consequently, the attempted present Manual restriction could affect at most only derivative evidence obtained 

from involuntary statements compelled by private citizens. Public policy demands that private citizens not be encouraged to take the law into their 

own hands and that law enforcement agents not be encouraged to attempt to circumvent an accused's rights via proxy interrogation. 

It is clear that truly spontaneous statements are admissible as they are not "obtained" from an accused or suspect. An apparently volunteered 

statement which is actually the result of coercive circumstances intentionally created or used by interrogators will be involuntary, Cf: Brewer v. 

Williams, 430 U.S.387 (1977), Rule 305(b)(2). Manual language dealng with this area has been deleted as being unnecessary. 

(b)Exception. Rule 304(b) adopts Harris v. New York, 401 U.S. 222 (1971) insofar as it would allow use for impeachment or at a later trial for 

perjury, false swearing or the making of a false official statement, or statements taken in violation of the counsel warnings required under Rule 

305(d)-(e). Under llll 140(a)(2) and 153(b) of the present Manual, use of such statements is not permissible. United States v. Girard, 23 

U.S.C.M.A. 263,49 C.M.R. 438 (1975); UnitedStates v. Jordan, 20 U.S.C.M.A. 614,44 C.M.R. 44 (1971). The Court of Military Appeals 

has recognized expressly the authority of the President to adopt the holding in Harris on impeachment. Jordan, supra, 20 U.S.C.M.A. 614,617, 

44 C.M.R. 44, 47, and Rule 304(b) adopts Harris to military law. A statement obtained in violation of Article 31(b), however, remains 

inadmissible for all purposes, as is a statement that is otherwise involuntary under Rules 302, 304(b)(3) or 305(a). It was the intent of the 

Committee to permitiseof a statement which is involuntary because the waiver ofcounsel rights under Rule 305(g) was absent or improper which 

is implicit in Rule 304(b)'s reference to Rule 305(d). 

(c) Definitions. 

(1) Confession and admission. Rules 304(c)(l) & (2) express without change the present Manual definitions found in 7 140a(l). 

Silence may constitute an admission when it does not involve a reliance on the privilege against self-incrimination or related rights. Rule 

301(f)(3). For example, if an imputation against a person comes to his or her attention under circumstances that would reasonably call for a denial 

of its accuracy if the imputation were not true, a failure to utter such a denial could possibly constitute an admission by silence. Note, however, in 

this regard, Rule 304(h)(3), and Rule 801(a)(2). 

(2)Involuntary. The definition of "involuntary" in Rule 304(c)(3) summarizes the present definition of "not voluntary" as found in present 

Manual ll 140a(2). The examples in ll 140a(2) of the present Manual are set forth in this paragraph. A statement obtained in violation of the 

warning and waiver requirements of Rule 305 is "involuntary." Rule 305(a). 

The language governing statements obtained through the use of "coercion, unlawful influence, and unlawful inducement," found in Article 

3l(d), makes it clear that a statement obtained by any person, regardless of status, that is the product of such conduct is involuntary. Although it is 

unlikely that a private citizen may run afoul of the prohibition of unlawful influence or inducement, such a person clearly may coerce a statement 

and such coercion will yield an involuntary statement. 

A statement made by the accused during a mental examination ordered under ll 121 is treated as an involuntary statement under Rule 304. 

See Rule 302(a). The basis for this rule is that lI 121 and Rule 302 compel the accused to participate in the Government examination or face a 

judicial order prohibiting the accused from presenting any expert testimony on the issue of mental responsibility. 

Insofar as Rule 304(c)(3) is concerned, some examples which may by themselves or in conjunction with others constitute coercion, unlawful 

influence, or unlawful inducement in obtaining a confession or admission are: 
App. 22, M.R.E. 304(d) APPENDIX 22 

Infliction of bodily harm including questioning accompanied by deprivation of the necessities of life such as food, sleep, or adequate 

clothing; 

Threats of bodily hann; 

Imposition of confinement or deprivation of privileges or necessities because a statement was not made by the accused, or threats thereof if a 

statement is not made; 

Promises of immunity or clemency as to any offense allegedly committed by the accused; 

Promises of reward or benefit, or threats of disadvantage likely to induce the accused to make the confession of admission. 

There is no change in the principle, set forth in the fifth paragraph of 140a(2) of the present Manual, that a statement obtained "in an 

interrogation conducted in accordance with all applicable hles is not involuntary because the interrogation was preceded by one that was not so 

conducted, if it clearly appears that all improper influences of the preceding interrogation had ceased to operate on the mind of the accused or 

suspect at the time that he or she made the statement." In such a case, the effect of the involuntary statement is sufficiently attenuated to permit a 

determination that the later statement was not "obtainedin violation of" the rights and privileges found in Rules 304(c)(3) and 305(a) (emphasis 

added). 

(d) Procedure. Rule 304(d) makes a significant change in present procedure. Under 7 140a(2) of the present Manual the prosecution must prove a 

statement to be voluntary before it can be admitted in evidence absent explicit defense waiver. Rule 304(d) is intended to reduce the number of 

unnecessary objections to evidence on voluntariness grounds and to narrow what litigation remains by requiring the defense to move to suppress 

or to object to evidence covered by this Rule. Failure to so move or object constitutes a waiver of the motion or objection. This follows civilian 

procedure in which the accused is provided an opportunity to assert privilege against self-incrimination and related rights but may waive any 

objection to evidence obtained in violation of the privilege through failure to object. 

(1) Disclosure. Present procedure is changed in order to assist the defense in formulating its challenges. The prosecution is required to 

disclose prior to arraignment all statements by the accused known to the prosecution which are relevantto the case (including matters likely to be 

relevant in rebuttal and sentencing) and within military control. Disclosure should be made in writing in order to prove compliance with the Rule 

and to prevent misunderstandings. As a general matter, the trial counsel is not authorized to obtain statements made by the accused at a sanity 

board convened under 7 121 with limited exceptions set forth therein. If the trial counsel has knowledge of such statements, they must be 

disclosed. Regardless of trial counsel's knowledge, the defense is entitled to receive the full report of the sanity board under B 121. 

(2)Motions and objections. The defense is required under Rule 304(d)(2) to challenge evidence disclosed prior to arraignment under Rule 

304(d)(l) prior to submission of plea. In the absence of a motion or objection prior to plea, the defense may not raise the issue at a later time except 

as permitted by the military judge for good cause shown. Failure to challenge disclosed evidence waives the objection. This is a change from 

present law under which objection traditionally has been made after plea but may be made, at the discretion of the military judge, prior to plea. 

Tlus change brings military law into line with civilian federal procedure and resolves what is presently a variable and uncertain procedure. 

Litigation of a defense motion to suppress or an objection to a statement made by the accused or to any derivative evidence should take place 

at a hearing held outside the presence of the court members. See, e.g., Rule 104(c). 

(3) Specijiciry.Rule 304(d)(3) permits the military judge to require the defense to specify the grounds for an objection under Rule 304, but if 

the defense has not had adequate opportunity to interview those persons present at the taking of a statement, the military judge may issue an 

appropriate order including granting a continuance for purposes of interview or permitting a general objection. In view of the waiver that results in 

the event of failure to object, defense counsel must have sufficient information in order to decide whether to object to the admissibility of a 

statement by the accused. Although telephone or other long distance communication may be sufficient to allow a counsel to make an informed 

decision, counsel may consider a personal interview to be essential in this area and in such a case counsel is entitled to personally interview the 

witnesses to the taking of a statement before specificity can be requited. When such an interview is desired but despite due diligence counsel has 

been unable to interview adequately those persons included in the taking of a statement, the military judge has authority to resolve the situation. 

Normally this would include the granting of a continuance for interviews, or other appropriate relief. If an adequate opportunity to interview is 

absent, even if this results solely from the witness' unwillingness to speak to the defense, then the specificity requirement does not apply. Lacking 

adequate opportunity to interview, the defense may be authorized to enter a general objection to the evidence. If a general objection has been 

authorized, the prosecution must present evidence to show affirmatively that the statement was voluntary in the same manner as it would be 

required to do under present law. Defense counsel is not required to meet the requirements of 7 115 of the Manual in order to demonstrate "due 

diligence" under the Rule. Nor shall the defense be required to present evidence to raise a matter under the Rule. The defense shall present its 

motion by offer of proof, but it may be required to present evidence in support of the motion should the prosecution first present evidence in 

opposition to the motion. 

If a general objection to the prosecution evidence is not authorized, the defense may be required by Rule 304(d)(3) to make specific objection 

to prosecution evidence. It is not the intent of the Committee to require extremely technical pleading, but enough specificity to reasonably narrow 

the issue is desirable. Examples of defense objections include but are not limited to one or more of the following non-exclusive examples: 

That the accused was a suspect but not given Article 31(b) or Rule 305(c) warnings prior to interrogation. 

That although 31(b) or Rule 305(c) warnings were given, counsel warnings under Rule 305(d) were necessary and not given (or given 

improperly). 1 

That despite the accused's express refusal to make a statement, she was questioned and made an admission.2 

'Rule 305(d); United States u Templa, 16 U.S.C.M.A.629, 37 C.M.R. 249 (1967). 


%ee, e.g., Rule 305(f), Michigan u Mosle): 423 U.S. 96; United States u Westmore, 17 U.S.C.M.A.406, 38 C.M.R.204 (1 968). 

ANALYSIS OF THE 1980 AMENDMENTS App. 22, M.R.E. 304(f) 

That the accused requested counsel but was interrogated by the military police without having seen counsel.' 

That the accused was induced to make a statement by a promise of leniency by his squadron ~omrnander.~ 

That an accused was threatened with prosecution of her husband if she failed to make a statement.3 

That the accused was held incommunicado and beaten until she confe~sed.~ 

That the accused made the statement in question only because he had previously given a statement to his division officer which was 

involuntary because he was improperly warned.5 

Although the prosecution retains at all times the burden of proof in this area, a specific defense objection under this Rule must include enough 

facts to enable the military judge to determine whether the objection is appropriate. These facts will be brought before the court via recital by 

counsel; the defense will not be required to offer evidence in order to raise the issue. If the prosecution concurs with the defense recital, the facts 

involved will be taken as true for purposes of the motion and evidence need not be presented. If the prosecution does not concur and the defense 

facts would justify relief if taken as true, the prosecution will present its evidence and the defense will then present its evidence. The general intent 

of this provision is to narrow the litigation as much as may be possible without affecting the prosecution's burden. 

In view of the Committee's intent to narrow litigation in this area, it has adopted a basic structure in which the defense, when required by the 

military judge to object with specificity, has total responsibility in terms of what objection, if any, to raise under this Rule. Note, however, 7 54c. 

(4)Rulings. Rule 304(d)(4) is taken without significant change from Federal Rule of Criminal Procedure 12(e). As a plea of guilty waives all 

self-incrimination or voluntariness objections, Rule 304(d)(5), it is contemplated that litigation of confession issues raised before the plea will be 

fully concluded prior to plea. Cases involving trials by military judge alone in which the accused will enter a plea of not guilty are likely to be the 

only ones in which deferral of ruling is even theoretically possible. If the prosecution does not intend to use against the accused a statement 

challenged by the accused under this Rule but is unwilling to abandon any potential use of such statement, two options exist. First, the matter can 

be litigated before plea, or second, if the accused clearly intends to plead not guilty regardless of the military judge's ruling as to the admissibility 

of the statements in question, the matter may be deferred until such time as the prosecution indicates a desire to use the statements. 

(5) Effect of guilty plea. Rule 304(d)(5) restates present law; see, e.g., United States v. Dusenbeny, 23 U.S.C.M.A 287,49 C.M.R. 536 

(1975). 

(e) Burden ofprod Rule 304(e) substantially changes military law. Under the present system, the armed forces do not follow the rule applied in 

the civilian federal courts. Instead the present Manual utilizes the minority "Massachusetts Rule," sometimes known as the "Two Bite Rule." 

Under this procedure the defense first raises a confession or admission issue before the military judge who determines it on a preponderance basis: 

if the judge determines the issue adversely to the accused, the defense may raise the issue again before the members. In such a case, the members 

must be instructed not to consider the evidence in question unless they find it to have been voluntary beyond a reasonable doubt. The Committee 

determined that this bifurcated systemunnecessarily complicated the final instructions to the members to such an extent as to substantially confuse 

the important matters before them. In view of the preference expressed in Article 36 for the procedure used in the trial of criminal cases in the 

United States district courts, the Committee adopted the majority "Orthodox Rule" as used in Article 111 courts. Pursuant to this procedure, the 

military judge determines the admissibility of confessions or admissions using a preponderance basis. No recourse exists to the court members on 

the question of admissibility. In the event of a ruling on admissibility adverse to the accused, the accused may present evidence to the members as 

to voluntariness for their consideration in determining what weight to give to the statements in question. 

It should be noted that under the Rules the prosecution's burden extends only to the specific issue raised by the defense under Rule 304(d), 

should specificity have been required pursuant to Rule 304(d)(3). 

(1) In general. Rule 304(e)(l) requires that the military judge find by a preponderance that a statement challenged under this rule was made 

voluntarily. When trial is before a special court-martial without a military judge, the ruling of the President of the court is subject to objection by 

any member. The President's decision may be overruled pursuant to the procedure found in 7 57$ The Committee authorized use of this procedure 

in view of the importance of the issue and the absence of a legally trained presiding officer. 

(2)Weight ofthe evidence. Rule 304(e)(2) allows the defense to present evidence with respect to voluntariness to the members for the purpose 

of determining what weight to give the statement. When trial is by judge alone, the evidence received by the military judge on the question of 

admissibility also shall be considered by the military judge on the question of weight without the necessity of a formal request to do so by counsel. 

Additional evidence may, however, be presented to the military judge on the matter of weight if counsel chooses to do so. 

(3)Derivative evidence. Rule 304(e)(3) recognizes that derivative evidence is distinct from the primary evidence dealt with by Rule 304, i.e, 

statements. The prosecution may prove that notwithstanding an involuntary statement, the evidence in question was not "obtained by use of' it 

and is not derivative. 

(f)Defense evidence. Rule 304(f) generally restates the present law as found in present Manual ll 140a(3)& (6).Under this Rule, the defense must 

specify that the accused plans to take the stand under this subdivision. This is already normal practice and is intended to prevent confusion. 

Testimony given under this subdivision may not be used at the same trial at which it is given for any other purpose to include impeachment. The 

'See, e.g., Rule 305(a) and (d), United States u Gaines, 21 U.S.C.M.A. 236, 45 C.M.R. 10 (1 972). 

Wee, e.g., Rule 304(b)(3). Manual for Courts-Martial, United States, 1969 (Rev. Bd.) para 140a(2); People u Pineda, 182 Colo. 388,513 P2d 452 

(1 973). 

=See, e.g., Rule 304(b)(3), Jarriel u State, 317 So. 2d 141 (Fla. App. 1975). 

4See, e.g., Rule 304(b)(3), Payne u Arkansas, 356 U.S. 560 (1958). 

5See, 0.g.. Rule 304(b)(3), United States u Seay; 1 M.J. 201 (C.M.A. 1978). 
App. 22, M.R.E. 304(g) APPENDIX 22 

language, "the accused may be cross-examined only as to matter on which he or she so testifies" permits otherwise proper and relevant 

impeachment of the accused. See, e.g., Rules 607-609; 613. 

(g) Corroboration. Rule 304(g) restates the present law of corroboration with one major procedural change. At present, no instruction on the 

requirement of corroboration is required unless the evidence is substantially conflicting, self-contradictory, uncertain, or improbable and there is 

a defense request for such an instruction. United States v. Seigle, 22 U. S .C.M. A. 403.47 C.M. R. 340 (1973). The holding in Seigle is consistent 

with the present Manual's view that the issue of admissibility may be decided by the members, but it is inconsistent with the position taken in Rule 

304(d) that admissibility is the sole responsibility of the military judge. Inasmuch as the Rule requires corroborating evidence as a condition 

precedent to admission of the statement, submission of the issue to the members would seem to be both unnecessary and confusing. Consequently, 

the Rule does not follow Seigle insofar as the case allows the issue to be submitted to the members. The members must still weigh the evidence 

when determining the guilt or innocence of the accused, and the nature of any corroborating evidence is an appropriate matter for the members to 

consider when weighing the statement before them. 

The corroboration rule requires only that evidence be admitted which would support an inference that the essential facts admitted in the 

statement are true. For example, presume that an accused charged with premeditated murder has voluntarily confessed that, intending to kill the 

alleged victim, she concealed herself so that she might surprise the victim at a certain place and that when the victim passed by, she plunged a knife 

in his back. At trial, the prosecution introduces independent evidence that the victim was found dead as a result of a knife wound in his back at the 

place where, according to the confession, the incident occurred. This fact would corroborate the confession because it would support an inference 

of the truth of the essential facts admitted in the confession. 

(h) Miscellaneous. 

(1) Oral statements. Rule 304(h)(l) is taken verbatim from present Manual paragraph 140a(6). It recognizes that although an oral statement 

may be transcribed, the oral statement is separate and distinct from the transcription and that accordingly the oral statement may be received into 

evidence without violation of the best evidence rule unless the specific writing is in question, see Rule 1002. So long as the oral statement is 

complete, no specific rule would require the prosecution to offer the transcription. The defense could of course offer the writing when it would 

constitute proper impeachment. 

(2) Completeness. Rule 304(h)(2) is taken without significant change from present Manual paragraph 140a(6). Although Rule 106 allows a 

party to require an adverse party to complete an otherwise incomplete written statement in an appropriate case, Rule 304(h)(2) allows the defense 

to complete an incomplete statement regardless of whether the statement is oral or in writing. As Rule 304(h)(2) does not by its terms deal only 

with oral statements, it provides the defense in this area with the option of using either Rule 106 or 304(h)(2) to complete a written statement. 

(3) Certain admissions by silence. Rule 304(h)(3) is taken from ll 140a(4) of the present Manual. That part of the remainder of ll 140a(4) 

dealing with the existence of the privilege against self-incrimination is now set forth in Rule 301(f)(3). The remainder of 7 140a(4) has been set 

forth in the Analysis to subdivision (d)(2), dealing with an admission by silence, or has been omitted as being unnecessary. 

Rule 305. Warnings About Rights 

(a) General Rule. Rule 305(a) makes statements obtained in violation of Rule 305, e.g., statements obtained in violation of Article 3 l(b) and the 

right to counsel, involuntary within the meaning of Rule 304. This approach eliminates any distinction between statements obtained in violationof 

the common law voluntariness doctrine (which is, in any event, included within Article 31(d)) and those statements obtained in violation, for 

example, of Miranda (Miranda v. Arizona, 384 U.S. 435 (1966)) warning requirements. This is consistent with the approach taken in the present 

Manual, e.g., present Manual ll140a(2). 

(b) Definitions. 

(1) Persons subject to the Uniform Code @Military Justice. Rule 305(b)(l) makes it clear that under certain conditions a civilian may be a 

"person subject to the Uniform Code of Military Justice" for purposes of warning requirements, and would be required to give Article 3 l(b) (Rule 

305(c)) warnings. See, generally, United States v. Penn, 18 U.S.C.M.A. 194,39 C.M.R. 194 (1969). Consequently civilian members of the law 

enforcement agencies of the Armed Forces, e.g., the Naval Investigative Service and the Air Force Office of Special Investigations, will have to 

give Article 31 (Rule 305(c)) warnings. This provision is taken in substance from ll 140a(2) of the present Manual. 

(2) Interrogation. Rule 305(b)(2) defines interrogation to include the situation in which an incriminating response is either sought or is a 

reasonable consequence of such questioning. The definition is expressly not a limited one and interrogation thus includes more than the putting of 

questions to an individual. See, e.g., Brewer v. Williams, 430 U.S. 387 (1977). 

The Rule does not specifically deal with the situation in which an "innocent" question is addressed to a suspect and results unexpectedly in 

an incriminatory response which could not have been foreseen. This legislative history and the cases are unclear as to whether Article 31 allows 

nonincriminatory questioning. See Lederer, Rights Warnings in the ArmedServices, 72 Mil. L. Rev. l,32-33 (1976), and the issue is left open for 

further development. 

(c) Warnings concerning the accusation, right to remain silent, and use ofstatements. Rule 305(c) basically requires that those persons who are 

required by statute to give Article 3 1(b) warnings give such warnings. The Rule refrains from specifying who must give such warnings in view of 

the unsettled nature of the case law in the area. 

It was not the intent of the Committee to adopt any particular interpretation of Article 31(b) insofar as who must give warnings except as 

provided in Rule 305(b)(l) and the Rule explicitly defers to Article 31 for the purpose of determining who must give warnings. The Committee 

recognized that numerous decisions of the Court of Military Appeals and its subordinate courts have dealt with this issue. These courts have 

rejectedliteral application of Artlcle 31(b), but have not anived at aconclusive rule. See, e.g., Unitedstates v. Dohle, 1 M.J. 223 (C.M.A. 1975). 

The Committee was of the opinion, however, that both Rule 305(c) and Article 31(b) should be construed at a minimum, and incompliance with 
ANALYSIS OF THE 1980 AMENDMENTS App. 22, M.R.E. 305(d)(2) 

numerous cases, as requiring warnings by those personnel actingin an official disciplinary or law enforcement capacity. Decisions such as United 

Statesv. French, 25 C.M.R. 851 (A.F.B.R. 1958), @din relevantpart, 10U.S.C.M.A. 171,27 C.M.R. 245 (1959) (undercover agent) arenot 

affected by the Rule. 

Spontaneous or volunteered statements do not require warnings under Rule 305. The fact that a person may have known of his or her rights 

under the Rule is of no importance if warnings were required but not given. 

Normally, neither a witness nor an accused need to be warned under any part of this Rule when taking the stand to testify at a trial by courtmartial. See, however, Rule 801(b)(2). 

The Rule requires in Rule 305(c)(2) that the accused or suspect be advised that he or she has the "right to remain silent" rather than the 

statutory Article 31 (b) warning which is limited to silence on matters relevant to the underlying offense. The new language was inserted upon the 

suggestion of the Department of Justice in order to provide clear advice to the accused as to the absolute right to remain silent. See Miranda v. 

Arizona, 384 US 436 (1966). 

(d) Counsel rights and warnings. Rule 305(d) provides the basic right to counsel at interrogations and requires that an accused or suspect entitled 

to counsel at an interrogation be warned of that fact. The Rule restates the basic counsel entitlement for custodial interrogations found in both 

present ll 140c(2) of the Manual for Courts-Martial and United States v. Tempia, I6 U.S .C .M. A. 629,37 C. M.R. 249 (1967), and recognizes that 

the right to counsel attaches after certain procedural steps have taken place. 

(1) General rule. Rule 305(d)(l) makes it clear that the right to counsel only attaches to an interrogation in which an individual's Fifth 

Amendment privilege against self-incrimination is involved. This is a direct result of the different coverages of the statutory and constitutional 

privileges. The Fifth Amendment to the Constitution of the United States is the underpinning of the Supreme Court's decision in Miranda v. 

Arizona, 384 U.S. 436 (1966) which is in turn the origin of the military right to counsel at an interrogation. United States v. Tempia, 16 

U.S.C.M.A. 629,37 C.M.R. 249 (1967). Article 31, on the other hand, does not provide any right to counsel at an interrogation;but see United 

States v. McOmber, 1 M.J. 380 (C.M.A. 1976). Consequently, interrogations which involve only the Article 31 privilege against selfincrimination do not include a right to counsel. Under present law such interrogations include requests for voice and handwriting samples and 

perhaps requests for bodily fluids. Compare United States v. Dionivio, 410 U.S. 1 (1973); United States v. Mara, 410 U.S. 19 (1973); and 

Schmerber v. California, 384 U.S. 757 (1967) with United States v. White, 17 U.S.C.M.A. 21 1,38 C.M.R. 9 (1967); United States v. Greer, 3 

U.S.C.M.A. 576.13 C.M.R. 132 (1953); and UnitedStatesv. Ruiz, 23 U.S.C.M.A. 181,48 C.M.R. 797 (1974). Rule 305(d)(l)requiresthat an 

individual who is entitled to counsel under the Rule be advised of the nature of that right before an interrogation involving evidence of a 

testimonial or communicative nature within the meaning of the Fifth Amendment (an interrogation as defined in Rule 305(b)(2) and modified in 

this case by Rule 305(d)(l)) may lawfully proceed. Although the Rule does not specifically require any particular wording or format for the right 

to counsel warning, reasonable specificity is required. At a minimum, the right to counsel warning must include the following substantive matter: 

(1) That the accused or suspect has the right to be represented by a lawyer at the interrogation if he or she so desires; 

(2) That the right to have counsel at the interrogation includes the right to consult with counsel and to have counsel at the interrogation; 

(3) That if the accused or suspect so desires, he or she will have a military lawyer appointed to represent the accused or suspect at the 

interrogation at no expense to the individual, and the accused or suspect may obtain civilian counsel at no expense to the Government in addition to 

or instead of free military counsel. 

It is important to note that these warnings are in addition to such other warnings and waiver questions as may be required by Rule 305. 

Rule 305(d)(l)(A) follows the plurality of civilian jurisdictions by utilizing an objective test in defining "custodial" interrogation. See also 

UnitedStates v. Temperley, 22 U.S.C.M.A. 383,47 C.M.R. 235 (1978). Unfortunately, there is no national consensus as to the exact nature of the 

test that should be used. The language used in the Rule results from an analysis of Miranda v. Arizona, 384 U.S. 436 (1966) which leads to the 

conclusion that Miranda is predominately a voluntariness decision concerned with the effects of the psychological coercion inherent in official 

questioning. See, e.g., Lederer, Miranda v. Arizona-The Law Today, 78 Mil. L. Rev. 107, 130(1977). 

The variant chosen adopts an objective test that complies with Miranda'sintent by using the viewpoint of the suspect. The objective nature of 

the test, however, makes it improbable that a suspect would be able to claim a custodial status not recognized by the interrogator. The test makes 

the actual belief of the suspect irrelevant because of the belief that it adds nothing in practice and would unnecessarily lengthen trial. 

Rule 305(d)(l)(B) codifies the Supreme Court's decisions in Brewer v. Williams, 480 U.S. 387 (1977) and Massiah v. United States, 377 

U.S. 201 (1964). As modified by Brewer, Massiah requires that an accused or suspect be advised of his or her right to counsel prior to 

interrogation, whether open or surreptitious, if that interrogation takes place after either arraignment or indictment. As the Armed Forces lack any 

equivalent to those civilian procedural points, the initiation of the formal military criminal process has been utilized as the functional equivalent. 

Accordingly, the right to counsel attaches if an individual is interrogated after preferral of charges or imposition of pretrial arrest, restriction, or 

confinement. The right is not triggered by apprehension or temporary detention. Undercover investigation prior to the formal beginning of the 

criminal process will not be affected by this, but jailhouse interrogations will generally be prohibited. Compare Rule 305 (d)(l)(B) with United 

States v. Hinkson, 17 U.S.C.M.A. 126, 37 C.M.R. 390 (1967) and United States v. Gibson, 3 U.S.C.M.A. 746, 14 C.M.R. 164 (1954). 

(2) Counsel. Rule 305(d)(2) sets forth the basic right to counsel at interrogations required under present Manual ll 140a(2). The Rule rejects 

the interpretation of 1140a(2) set forth in UnitedStates v. HqBauer, 5 M.J. 409 (C.M.A. 1978) and UnitedStates v. Clark, 22 U.S.C.M.A. 570, 

48 C.M.R. 77 (1974) which held that the Manual only provided a right to military counsel at an interrogation in the event of financial indigencyminimum Miranda rule. 

Rule 305(d)(2) clarifies present practice insofar as it explicitly indicates that no right to individual military counsel of the suspect's or 

accused's choice exists. See, e.g., United States v. Wilcox, 3 M. J. 803 (A.C.M.R. 1977). 
App. 22, M.R.E. 305(e) APPENDIX 22 

(e) Notice to Counsel. Rule 305(e) is taken from United States v. McOmber, 1 M.J. 380 (C.M.A. 1976). The holding of that case has been 

expanded slightly to clarify the situation in which an interrogator does not have actual knowledge that an attorney has been appointed for or 

retained by the accused or suspect with respect to the offenses, but reasonably should be so aware. In the absence of the expansion, present law 

places a premium on law enforcement ignorance and has the potential for encouraging perjury. The change rejects the view expressed in United 

States v. Roy, 4 M. J. 840 (A.C.M.R. 1978) which held that in the absence of bad faith a criminal investigator who interviewed the accused one day 

before the scheduled Article 32 investigation was not in violation of McOmber because he was unaware of the appointment of counsel. 

Factors which may be considered in determining whether an interrogator should have reasonably known that an individual had counsel for 

purposes of this Rule include: 

Whether the interrogator knew that the person to be questioned had requested counsel; 

Whether the interrogator knew that the person to be questioned had already been involved in a pretrial proceeding at which he 

would ordinarily be represented by counsel; 

Any regulations governing the appointment of counsel; 

Local standard operating procedures; 

The interrogator's military assignment and training; and 

The interrogator's experience in the area of military criminal procedure. 

The standard involved is purely an objective one. 

(0 Exercise ofrights. Rule 305(0 restates present law in that it requires all questioning to cease immediately upon the exercise of either the 

privilege against self-incrimination or the right to counsel. See Michigan v. Mosely, 423 U.S. 96 (1975). The Rule expressly does not deal with the 

question of whether or when questioning may be resumed following an exercise of a suspect's rights and does not necessarily prohibit it. The 

Committee notes that both the Supreme Court, see, e.g., Brewer v. Williams, 480 U.S. 387 (1977); Michigan v. Mosely, 423 U.S. 96 (1975), and 

the Court of Military Appeals, see, e.g., United States v. Hill, 5 M.J. 114 (C.M.A. 1978); UnitedStates v. Collier, 1 M.J. 358 (C.M.A. 1976), 

have yet to fully resolve this matter. 

(g) waiver. The waiver provision of Rule 305(g) restates current military practice and is taken in part from Il 140a(2) of the present Manual. 

Rule 305(g)(l) sets forth the general rule for waiver and follows Miranda v. Arizona, 384 U.S. 436,475 (1966). The Rule requires that an 

affirmative acknowledgement of the right be made before an adequate waiver may be found. See Manual ll 30b. Thus, three waiver questions are 

required under Rule 305(g): 

(1) Do you understand your rights? 

(2) Do you want a lawyer? 

(3) Are you willing to make a statement? 

The specific wording of the questions is not detailed by the Rule and any format may be used so long as the substantive content is present. 

Notwithstanding the above, Rule 305(g)(2), following North Carolina v. Butler, 441 U.S. 369 (1979), recognizes that the right to counsel, 

and only the right to counsel, may be waived even absent an affirmative declination. The burden of proof is on the prosecution in such a case to 

prove by a preponderance that the accused waived the right to counsel. 

The second portion of Rule 305(g)(2) dealing with notice to counsel is new. The intent behind the basic notice provision, Rule 305(e), is to 

give meaning to the right to counsel by preventing interrogators who know or reasonably should know that an individual has counsel from 

circumventing the right to counsel by obtaining a waiver from that person without counsel present. Permitting a Miranda type waiver in such a 

situation clearly would defeat the purpose of the Rule. Rule 305(g)(2) thus permits a waiver of the right to counsel when notice to counsel is 

required only if it can be demonstrated either that the counsel, after reasonable efforts, could not be notified, or that the counsel did not attend the 

interrogation which was scheduled within a reasonable period of time after notice was given. 

A statement given by an accused or suspect who can be shown to have his rights as set forth in this Rule and who intentionally frustrated the 

diligent attempt of the interrogator to comply with this Rule shall not be involuntary solely for failure to comply with the rights warning 

requirements of this Rule or of the waiver requirements. United States v. Sikorski, 21 U.S.C.M.A. 345, 45 C.M.R. 119 (1972). 

(h) Non-military interrogations. ll 140a(2) of the present Manual, which governs civilian interrogations of military personnel basically restates 

the holding of Miranda v. Arizona, 384 U.S. (1966). Recognizing that the Supreme Court may modify the Miranda rule, the Committee has used 

the language in Rule 305(h)(l) to make practice in this area dependent upon the way the Federal district courts would handle such interrogations. 

See Article 36. 

Rule 305(h)(2) clarifies the law of interrogations as it relates to interrogations conducted abroad by officials of a foreign government or their 

agents when the interrogation is not conducted, instigated, or participated in by military personnel or their agents. Such an interrogation does not 

require rights warnings under subdivisions (c) or (d) or notice to counsel under subdivision (e). The only test to be applied in such a case is that of 

common law voluntariness: whether a statement obtained during such an interrogation was obtained through the use of "coercion, unlawful 

influence, or unlawful inducement ." Article 3 1 (d). 

Whether an interrogation has been "conducted, instigated, or participated in by military personnel or their agents" is a question of fact 

depending on the circumstances of the case. The Rule makes it clear that United States personnel do not participate in an interrogationmerely by 
ANALYSIS OF THE 1980 AMENDMENTS App. 22, M.R.E. 311(c)(3) 

being present at the scene of the interrogation, see UnitedStates v. Jones, 6 M.J. 226 (C.M.A. 1979) and the Analysis to Rule 31 l(c), or by taking 

steps which are in the best interests of the accused. Also, an interrogation is not "participated in" by military personnel or their agents who act as 

interpreters during the interrogation if there is no other participation. See Rule 3 1 l(c). The omission of express reference to interpreters in Rule 

305(h)(2) was inadvertent. 

Rule 306. Statements by One of Several Accused 

Rule 306 is taken from the fifth subparagraph of present lI 140b of the Manual for Courts-Martial and states the holding of Bruton v. United 

States, 391 U.S. 123 (1968). The remainder of the associated material in the Manual is primarily concerned with the co-conspirator's exception to 

the hearsay rule and has been superseded by adoption of the Federal Rules of Evidence. See Rule 801. 

When it is impossible to effectively delete all references to a co-accused, alternative steps must be taken to protect the co-accused. This may 

include the granting of a severance. 

The Committee was aware of the Supreme Court's decision inParker v. Randolph, 442 U.S. 62 (1979) dealing with interlocking confessions. 

In view of the lack of a consensus in Parker, however, the Committee determined that the case did not provide a sufficiently precise basis for 

drafting a rule, and decided instead to apply Bruton to interlocking confessions. 

Rule 31 1. Evidence Obtained From Unlawful Searches and Selzures 

Rules 31 1-3 17 express the manner in which the Fourth Amendment to the Constitution of the United States applies to trials by court-martial. 

Cf: Parker v. Levy, 417 U.S. 733 (1974). 

(a) General rule. Rule 31 1(a) restates the basic exclusionary rule for evidence obtained from an unlawful search or seizure and is taken generally 

from ll 152 of the present Manual although much of the language of ll 152 has been deleted for purposes of both clarity and brevity. The Rule 

requires supression of derivative as well as primary evidence and follows the present Manual rule by expressly limiting exclusion of evidence to 

that resulting from unlawful searches and seizures involving governmental activity. Those persons whose actions may thus give rise to exclusion 

are listed in Rule 31 1 (c) and are taken generally from 7 152 with some expansion for purposes of clarity. Rule 31 1 recognizes that discovery of 

evidence may be so unrelated to an unlawful search or seizure as to escape exclusion because it was not "obtained as a result" of that search or 

seizure. 

The Rule recognizes that searches and seizures are distinct acts the legality of which must be determined independently. Although a seizure 

will usually be unlawful if it follows an unlawful search, a seizure may be unlawful even if preceded by a lawful search. Thus, adequate cause to 

seize may be distinct from legality of the search or observations which preceded it. Note in this respect Rule 316(d)(4)(C), Plain View. 

(1) Objection. Rule 3 1 l(a)(l) requires that a motion to suppress or, as appropriate, an objection be made before evidence can be suppressed. 

Absent such motion or objection, the issue is waived. Rule 311(i). 

(2) Adequate interest. Rule 311(a)(2) represents a complete redrafting of the standing requirements now found in 7 152 of the present 

Manual. The Committee viewed the Supreme Court decision in Rakas v. Illinois, 439 U.S. 128 (1978) as substantially modifying the Manual 

language. Indeed, the very use of the term "standing" was considered obsolete by a majority of the Committee. The Rule distinguishes between 

searches and seizure. To have sufficient interest to challenge a search, a person must have "a reasonable expectation of privacy in the person, 

place, or property searched." "Reasonable expectation of privacy" was used in lieu of "legitimate expectation of privacy," often used in Rakas, 

supra, as the Committee believed the two expressions to be identical. The Committee also considered that the expression "reasonable 

expectation" has a more settled meaning. Unlike the case of a search, an individual must have an interest distinct from an expectation of privacy to 

challenge a seizure. When a seizure is involved rather than a search the only invasion of one's rights is the removal of the property in question. 

Thus, there must be some recognizable right to the property seized. Consequently, the Rule requires a "legitimate interest in the property or 

evidence seized." This will normally mean some form of possessory interest. Adequate inferest to challenge a seizure does not per se give 

adequate interest to challenge a prior search that may have resulted in the seizure. 

The Rule also recognizes an accused's right to challenge a search or seizure when the right to do so would exist under the Constitution. 

Among other reasons, this provision was included because of the Supreme Court's decision in Jones v. UnitedStates, 302 U.S. 257 (1960) which 

created what has been termed the "automatic standing rule." The viability of JonesafterRakas and other cases is unclear, and the Rule will apply 

Jones only to the extent that Jones is constitutionally mandated. 

(b) Exceprion. Rule 31 1(b) states the holding of Walder v. United States, 347 U.S. 62 (1954), and restates with minor change the rule as found in 

11 152 of the present Manual. 

(c) Nature ofsearch or seizure. Rule 31 l(c) defines "unlawful" searches and seizures and makes it clear that the treatment of a search or seizure 

varies depending on the status of the individual or group conducting the search or seizure. 

(1) Militarypersonnel. Rule 31 l(c)(l) generally restates present law. A violation of a military regulation alone will not require exclusion of 

any resulting evidence. However, a violation of such a regulation that gives rise to a reasonable expectation of privacy may require exclusion. 

Compare United States v. Dillard, 8 M.J. 213 (C.M.A. 1980) with United States v. Caceres, 440 U.S. 741 (1979). 

(2) Other &cials. Rule 31 l(c)(2) requires that the legality of a search or seizure performed by officials of the United States, of the District of 

Columbia, or of a state, commonwealth, or possession or political subdivision thereof, be determined by the principles of law applied by the 

United States district courts when resolving the legality of such a search or seizure. 

(3) OfJicials ofa foreign government or their agents. This provision is taken in part from United States v. Jordan, 1 M.J. 334 (C.M.A. 1976). 

After careful analysis, a majority of the Committee concluded that that portion of the Jordanopinion which purported to require that such foreign 
App. 22, M.R.E. 311(d) APPENDIX 22 

searches be shown to have complied with foreign law is dicta and lacks any specific legal authority to support it. Further the Committee noted the 

fact that most foreign nations lack any law of search and seizure and that in some cases, e.g.,Germany, such law as may exist is purely theoretical 

and not subject to determination. The Jordan requirement thus unduly complicates trial without supplying any protection to the accused. 

Consequently, the Rule omits the requirement in favor of a basic due process test. In determining which version of the various due process 

phrasings to utilize, a majority of the Committee chose to use the language now found in,m 150b of the present Manual rather than the 

language found in Jordan (which requires that the evidence not shock the conscience of the court) believing the Manual language is more 

appropriate to the circumstances involved. 

Rule 31 1(c) also indicates that persons who are present at a foreign search or seizure conducted in a foreign nation have "not participated in" 

that search or seizure due either to their mere presence or because of any actions taken to mitigate possible damage to property or person. The Rule 

thus clarifies United States v. Jordan, 1 M.J. 334 (C.M.A. 1976) which stated that the Fourth Amendment would be applicable to searches and 

seizures conducted abroad by foreign police when United States personnel participate in them. The Court's intent in Jordan was to prevent 

American authorities from sidestepping Constitutional protections by using foreign personnel to conduct a search or seizure that would have been 

unlawful if conducted by Americans. That intention is safeguarded by the Rule, which applies the Rules and the Fourth Amendment when 

military personnel or their agents conduct, instigate, or participate in a search or seizure. The Rule only clarifies the circumstances in which a 

United States official will be deemed to have participated in a foreign search or seizure. This follows dicta in United States v. Jones, 6 M.J. 226, 

230 (C.M.A. 1979) which would require an "element of causation," rather than mere presence. It seems apparent that an American 

servicemember is far more likely to be well served by United States presence-which might mitigate foreign conduct-than by its absence. 

Further, international treaties frequently require United States cooperation with foreign law enforcement. Thus, the Rule serves all purposes by 

prohibiting conduct by United States officials which might improperly support a search or seizure which would be unlawful if conducted in the 

United States while protecting both the accused and international relations. 

The Rule also permits use of United States personnel as interpreters viewing such action as a neutral activity normally of potential advantage 

to the accused. Similarly the Rule permits personnel to take steps to protect the person or property of the accused because such actions are clearly 

in the best interests of the accused. 

(d) Motion to suppress and objections. Rule 31 1(d) provides for challenging evidence obtained as a result of an allegedly unlawful search or 

seizure. The procedure, normally that of a motion to suppress, is intended with a small difference in the disclosure requirements to duplicate that 

required by Rule 304(d) for confessions and admissions, the Analysis of which is equally applicable here. 

Rule 311(d)(l) differs from rule 304(c)(l) in that it is applicable only to evidence that the prosecution intends to offer against the accused. 

The broader disclosure provision for statements by the accused was considered unnecessary. Like rule 304(d)(2)(C), Rule 31 1(d)(2)(C) provides 

expressly for derivative evidence disclosure of which is not mandatory as it may be unclear to the prosecution exactly what is derivative of a search 

or seizure. The Rule thus clarifies the situation. 

(e)Burden ofprod Rule 31 l(e) requires that a preponderance of the evidence standard be used in determining search and seizure questions, Lego 

v. Twomey, 404 U.S. 477 (1972). Where the validity of a consent to search or seize is involved, a higher standard of "clear and convincing," is 

applied by Rule 314(e). This restates present law. 

(f) Defense evidence. Rule 31 1(f) restates present law and makes it clear that although an accused is sheltered from any use at trial of a statement 

made while challenging a search or seizure,such statement may be used in a subsequent "prosecution for perjury, false swearing or the making of 

a false official statement." 

(g) Scope ofmotions and objections challenging probable cause. Rule 3 1 l(g)(2) follows the Supreme Court decision in Franks v. Delaware, 422 

U.S. 928 (1978), see also Unitedstates v. Turck, 49 C.M.R. 49,53 (A.F.C.M.R. 1974), with minor modifications made to adopt the decision to 

military procedures. Although Franks involved perjured affidavits by police, Rule 3 11(a) is made applicable to information given by government 

agents because of the governmental status of members of the armed services. The Rule is not intended to reach misrepresentations made by 

informants without any official connection. 

(h) Objections to evidence seized unlawfully. Rule 31 1(h) is new and is included for reasons of clarity. 

(i) ERect ofguiltyplea. Rule 311(i) restates present law. See, e.g., United States v. Hamil, 15 U.S.C.M.A. 110, 35 C.M.R. 82 (1964). 

Rule 312. Bodily Views and lntruslons 

(a) General rule. Rule 312(a) limits all nonconsensual inspections, searches, or seizures by providing standards for examinations of the naked 

body and bodily intrusions. An inspection, search, or seizure that would be lawful but for noncompliance with this Rule is unlawful within the 

meaning of Rule 3 1 1. 

(b)Visual examination ofthe body. Rule 312(b) governs searches and examinations of the naked body and thus controls what has often been loosely 

termed, "ship searches." Rule 3 12(b) pennits visual examinations of the naked body in a wide but finite range of circumstances. In doing so, the 

Rule strictly distinguishes between visual examination of body cavities and actual intrusion into them. Intrusion is governed by Rule 3 12(c) and 

(e). Visual examination of the male genitals is permitted when a visual examination is permissible under this subdivision. Examination of cavities 

may include, when otherwise proper under the Rule, requiring the individual being viewed to assist in the examination. 

Examination of body cavities within the prison setting has been vexatious. See, e.g., Hanley v. Ward, 584 F.2d 609 (2d cir. 1978); Wolfish v. 

Levi, 573 F.2d 118,131 (2d Cir. 1978), reversedsub nomBell v. Wolfish, 441 U.S. 520 (1979); Daughtry v. Harris, 476 F.2d 292 (10th Cir. 1973), 

cert. denied, 414 U.S. 872 (1973); Frazier v. Ward, 426 F. Supp. 1354, 1362-67 (N.D.N.Y. 1977); Hodges v. Klein, 412 F. Supp. 896 (D.N.J. 

1976). Institutional security must be protected while at the same time only privacy intrusions necessary should be imposed on the individual. The 

problem is particularly acute in this area of inspection of body cavities as such strong social taboos are involved. Rule 312(b)(2) allows 
ANALYSIS OF THE 1980 AMENDMENTS App. 22, M.R.E. 313 

examination of body cavities when reasonably necessary to maintain the security of the institution or its personnel. See, e.g., Bell v. Wolfish,441 

U.S. 520 (1979). Examinations likely to be reasonably necessary include examination upon entry or exit from the institution, examination 

subsequent to a personal visit, or examination pursuant to a reasonably clear indication that the individual is concealing property within a body 

cavity.Frazier v. Ward, 426 F. Supp. 1354 (N.D.N.Y. 1977);Hodges v. Klein, 412F. Supp. 896 (D.N.J. 1976). Great deference should be given to 

the decisions of the commanders and staff of military confinement facilities. The concerns voiced by the Court of Appeals for the Tenth Circuit in 

Daughtry v. Harris, 476 F.2d 292 (10th Cir. 1973) about escape and related risks are likely to be particularly applicable to military prisoners 

because of their training in weapons and escape and evasion tactics. 

As required throughout Rule 312, examination of body cavities must be accomplished in a reasonable fashion. This incorporates Rochin v. 

California, 342 U.S. 165 (1952), and recognizes society's particularly sensitive attitude in this area. Where possible, examination should be made 

in private and by members of the same sex as the person being examined. 

(c) Inwusion into body cavities. Actual intrusion into body cavities, e.g., the anus and vagina, may represent both a significant invasion of the 

individual's privacy and a possible risk to the health of the individual. Rule 312(c) allows seizure of property discovered in accordance with Rules 

312(b), 312(c)(2), or 316(d)(4)(C) but requires that intrusion into such cavities be accomplished by personnel with appropriate medical 

qualifications. The Rule thus does not specifically require that the intrusion be made by a doctor, nurse, or other similar medical personnel 

although Rule 312(g) allows the Secretary concerned to prescribe who may perform such procedures. It is presumed that an object easily located 

by sight can normally be easily extracted. The requirements for appropriate medical qualifications, however, recognizes that circumstances may 

require more qualified personnel. This may be particularly true, for example, for extraction of foreign matter from a pregnant woman's vagina. 

Intrusion should normally be made either by medical personnel or by persons with appropriate medical qualfications who are members of the same 

sex as the person involved. 

The Rule distinguishes between seizure of property previously located and intrusive searches of body cavities by requiring the Rule 3 12(c)(2) 

that such searches be made only pursuant to a search warrant or authorization, based upon probable cause, and conducted by persons with 

appropriate medical qualifications. Exigencies do not permit such searches without warrant or authorization unless Rule 312(f) is applicable. In 

the absence of express regulations issued by the Secretary concerned pursuant to Rule 312(g), the determination as to which personnel are 

qualified to conduct an intrusion should be made in accordance with the normal procedures of the applicable medical facility. 

Recognizing the peculiar needs of confinement facilities and related institutions, see, e.g., Bell v. Wolfish,441 U.S. 520 (1979), Rule 312(c) 

authorizes body cavity searches without prior search warrant or authorization when there is a "real suspicion that the individual is concealing 

weapons, contraband, or evidence of crime." 

(d) Seizure ofbodilyjuids. Seizure of fluids from the body may involve self-incrimination questions pursuant to Article 31 of the Uniform Code of 

Military Justice, and appropriate case law should be consulted prior to involuntary seizure. See generally Rule (301)(a) and its Analysis. The 

Committee does not intend an individual's expelled breath to be within the definition of "bodily fluids." 

The present Manual 152 authorization for seizure of bodily fluids when there has been inadequate time to obtain a warrant or authorization 

has been slightly modified. The present language that there be "clear indication that evidence of crime will be found and that there is reason to 

believe that delay will threaten the destruction of evidence" has been modified to authorize such a seizure if there is reason to believe that the delay 

"could result in the destruction of the evidence." Personnel involuntarily extracting bodily fluids must have appropriate medical qualifications. 

Rule 312 does not prohibit compulsory urinalysis, whether random or not, made for appropriate medical purposes, see Rule 312(f), and the 

product of such a procedure if otherwise admissible may be used in evidence at a court-martial. 

(e) Other intrusive searches. The intrusive searches governed by Rule 312(e) will normally involve significant medical procedures including 

surgery and include any intrusion into the body including x-rays. Applicable civilian cases lack a unified approach to surgical intrusions, see, 

e.g., United States v. Cravder, 513 F.2d 395 (D.C. Cir. 1976); Adams v. State, 299 N.E. 2d 834 (Ind. 1973); Creamer v. State, 299 Ga. 5 1 1,192 

S.E. 2d 350 (1972), Note, Search andseizure: Compelled Surgical Intrusion, 27 Baylor L. Rev. 305 (1975) and cases cited therein, other than to 

rule out those intrusions which are clearly health threatening. Rule 312(e) balances the Government's need for evidence with the individual's 

privacy interest by allowing intrusion into the body of an accused or suspect upon search authorization or warrant when conducted by persons with 

"appropriate medical qualification," and by prohibiting intrusion when it will endanger the health of the individual. This allows, however, 

considerable flexibility and leaves the ultimate issue to be determined under a due process standard of reasonableness. As the public's interest in 

obtaining evidence from an indidvidual other than an accused or suspect is substantially less than the person's right to privacy in his or her body, 

the Rule prohibits the involuntary intrusion altogether if its purpose is to obtain evidence of crime. 

(f) Intrusions for valid medical purposes. Rule 312(f) makes it clear that the Armed Forces retain their power to ensure the health of their 

members. A procedure conducted for valid medical purposes may yield admissible evidence. Similarly, Rule 312 does not affect in any way any 

procedure necessary for diagnostic or treatment purposes. 

(g) Medical qualifications. Rule 312(g) permits but does not require the Secretaries concerned to prescribe the medical qualifications necessary 

for persons to conduct the procedures and examinations specified in the Rule. 

Rule 313. lnspectlons and lnventorles In the Armed Forces 

Although inspections have long been recognized as being necessary and legitimate exercises of a commander's powers and responsibilities, 

see, e.g., United States v. Gebhart, 10 U.S.C.M. A 606,610 n.2,28 C.M.R. 172,176 n.2. (1959), the present Manual for Courts-Martial omits 

discussion of inspections except to note that the 7 152 restrictions on seizures is not applicable to "administrative inspections." The reason for the 

omission is likely that military inspections per se have traditionally been considered administrative in nature and free of probable cause 

requirements.Cf: Frank v. ~atylandi 359 U.S 360 (1959). Inspections that have been utilized as subterfuge searches have been condemned. See, 

e.g., United States v. Lange, 15 U.S.C.M.A. 486,35 C.M.R. 458 (1965). Recent decisions of the United States Court of Military Appeals have 
App. 22, M.R.E. 313(a) APPENDIX 22 

attempted, generally without success, to define "inspection" for Fourth Amendment evidentiary purposes, see, e.g., united states v. Thomas, I 

M.J. 397 (C.M.A. 1976) [three separate opinions], and have been concerned with the intent, scope, and method of conducting inspections. See 

e.g., United States v. Harris, 5 M. J. 44 (C.M. A. 1978). 

(a) General rule. 

Rule 313 codifies the law of military inspections and inventories. Traditional terms used to describe various inspections, e.g. "shakedown 

inspection" or "gate search," have been abandoned as being conducive to confusion. 

Rule 313 does not govern inspections or inventories not conducted within the armed forces. These civilian procedures must be evaluated 

under Rule 31 l(c)(2). In general, this means that such inspections and inventories need only be permissible under the Fourth Amendment in order 

to yield evidence admissible at a court-martial. 

Seizure of property located pursuant to a proper inspection or inventory must meet the requirements of Rule 316. 

(b)Inspections.Rule 313(b) defines "inspection" as an "examination. . . conducted as an incident of command the primary purpose of which is 

to determine and to ensure that security, military fitness, or good order and discipline of the unit, organization, installation, vessel, aircraft, or 

vehicle." Thus, an inspection is conducted for the primary function of ensuring mission readiness, and is a function of the inherent duties and 

responsibilities of those in the military chain of command. Because inspections are intended to discover, correct, and deter conditions detrimental 

to military efficiency and safety, they must be considered as a condition precedent to the existence of any effective armed force and inherent in the 

very concept of a military unit. Inspections as a general legal concept have their constitutional origins in the very provisions of the Constitution 

which authorize the armed forces of the United States. Explicit authorization for inspections has thus been viewed in the past as unnecessary, but in 

light of the present ambiguous state of the law; see, e.g. UnitedStates v. Thomas, supra; UnitedStates v. Roberts, 2 M.J. 31 (C.M.A. 1976), such 

authorization appears desirable. Rule 313 is thus, in addition to its status as a rule of evidence authorized by Congress under Article 36, an express 

Presidential authorization for inspections with such authorization being grounded in the President's powers as Commander-in-Chief. 

The interrelationship of inspections and the Fourth Amendment is complex. The constitutionality of inspections is apparent and has been 

well recognized; see e.g., United States v. Gebhart, 10 C.M. A. 606,610 n.2, C.M.R. 172, 176 n.2. (1959). There are three distinct rationales 

which support the constitutionality of inspections. 

The first such rationales is that inspections are not technically "searches" within the meaning of the Fourt Amendment. Cf Air Pollution 

Variance Board v. Western Alfalfa Corps, 416 U.S. 861(1974); Hester v. United States, 265 U.S. 57 (1924). The intent of the framers, the 

language of the amendment itself, and the nature of military life render the application of the Fourth Amendment to a normal inspection 

questionable. As the Supreme Court has often recognized, the "Military is, 'by necessity, a specialized society separate from civilian 

society.' "Brown v. Glines, 444 U.S. 348,354 (1980) citing Parker v. Levy, 417 U.S. 733,734 (1974). As the Supreme Court noted in Glines, 

supra, Military personnel must be ready to perform their duty whenever the occasion arises. To ensure that they always are capable of performing 

their mission promptly and reliably, the military services 'must insist upon a respect for duty and a discipline without counterpart in civilian life.' 

444 U.S. at 354 [citations omitted]. An effective armed force without inspections is impossiblea fact amply illustrated by the unfettered right to 

inspect vested in commanders throughout the armed forces of the world. As recognized in Glines, supra, and Greer v. Spock, 424 U.S. 828 

(1976), the way that the Bill of Rights applies to military personnel may be different from the way it applies to civilians. Consequently, although 

the Fourth Amendment is applicable to members of the armed forces, inspections may well not be "searches" within the meaning of the Fourth 

Amendment by reason of history, necessity, and constitutional interpretation. If they are "searches," they are surely reasonable ones, and are 

constitutional on either or both of two rationales. 

As recognized by the Supreme Court, highly regulated industries are subject to inspection without warrant, United States v. Biswell, 406 

U.S. 31 1 (1972); Colonnade Catering Corp. v. UnitedStates, 397 U.S. 72 (1970), both because of the necessity for such inspections and because 

of the "limited threats to . . .justifiable expectation of privacy." United States v. Biswell, supra, at 316. The court in Biswell, supra, found that 

regulations of firearms traffic involved "large interests", that "inspection is a crucial part of the regulatory scheme", and that when a firearms 

dealer enters the business "he does so with the knowledge that his business records, firearms, and ammunition will be subject to effective 

inspection," 406 U.S. 315,316. It is clear that inspections within the armed forces are at least as important as regulation of firearms; that without 

such inspections effective regulation of the armed forces is impossible; and that all personnel entering the amed forces can be presumed to know 

that the reasonable expectation of privacy within the armed forces is exceedingly limited by comparison with civilian expectations. See e.g., 

Cornmitee forG.1. Rights v. Callaway, 518 F.2d 466 (D.C. Cir. 1975). Under Colonnade Catering, supra, andBisel1, supra, inspections are thus 

reasonable searches and may be made without warrant. j 

An additional rationale for military inspections is found within the Supreme Court's other administrative inspection cases. See Marshall v. 

Barlow's, Inc., 436 U.S. 397 (1978); Camara v. Municipal Court, 387 U.S. 541 (1967); See v. City ofSeattle, 387 U.S. 541 (1967). Under these 

precedents an administrative inspection is constitutionally acceptable for health and safety purposes so long as such an inspection is first 

authorized by warrant. The warrant involved, however, need not be upon probable cause in the traditional sense, rather the warrant may be issued 

"if reasonble legislative or administrative standards for conducting an area inspection are satisfied . . ." Camara, supra, 387 U.S. at 538. 

Military inspections are intended for health and safety reasons in a twofold sense: they protect the health and safety of the personnel in peacetime 

in a fashion somewhat analagous to that which protects the health of those in a civilian environment, and, by ensuring the presence and proper 

condition of armed forces personnel equipment, and environment, they protect those personnel from becoming unnecessary casualties in the 

event of combat. Although Marshall v. Barlav'sInc., Camara, and See, supra, require warrants, the intent behind the warrant requirement is to 

ensure that the person whose property is inspected is adequately notified that local law requires inspection, that the person is notified of the limits 

of the inspection, and that the person is adequately notified that the inspector is acting with proper authority. Camara v.Municipal Court, 387 U.S. 

523, 532 (1967). Within the amed forces, the warrant requirement is met automatically if an inspection is ordered by a commander, as 

commanders are empowered to grant warrants. UnitedStates v. Ezell, 6 M.J. 307 (C.M.A. 1979). More importantly, the concerns voiced by the 

court are met automatically within the military environment in any event as the rank and assignment of those inspecting and their right to do so are 
ANALYSIS OF THE 1980 AMENDMENTS App. 22, M.R.E. 313(b) 

known to all. To the extent that the search warrant requirement is intended to prohibit inspectors from utilizing inspections as subterfuge searches, 

a normal inspection fully meets the concern, and Rule 313(b) expressly prevents such subterfuges. The fact that an inspection that is primarily 

administrative in nature may result in a criminal prosecution is unimportant. Camara v. Municipal Court, 387 U.S. 523,530-31 (1967). Indeed, 

administrative inspections may inherently result in prosecutions because such inspections are often intended to discover health and safety defects 

the presence of which are criminal offenses. Id. at 531. What is important, to the extent that the Fourth Amendment is applicable, is protection 

from unreasonable violations of privacy. Consequently, Rule 3 13(b) makes it clear that an otherwise valid inspection is not rendered invalid solely 

because the inspector has as his or her purpose a secondary "purpose of obtaining evidence for use in a trial by court-martial or in other 

disciplinary proceedings . . ." An examination 'made, however, with aprimary purpose of prosecution is no longer an administrative inspection. 

Inspections are, as has been previously discussed, lawful acceptable measures to ensure the survival of the American armed forces and the 

accomplishment of their mission. They do not infringe upon the limited reasonable expectation of privacy held by service personnel. It should be 

noted, however, that it is possible for military personnel to be granted a reasonable expectation of privacy greater than the minimum inherently 

recognized by the Constitution. An installation commander might, for example, declare a BOQ sacrosanct and off limits to inspections. In such a 

rare case the reasonable expectation of privacy held by the relevant personnel could prevent or substantially limit the power to inspect under the 

Rule. See Rule 311(c). Such extended expectations of privacy may, however, be negated with adequate notice. 

An inspection "may be made 'of the whole or part' of aunit, organization, installation, vessel, aircraft, or vehicle . . . [and is] conducted as 

an incident of command. "Inspections are usually quantitative examinations insofar as they do not normally single out specific individuals or 

small groups of individuals. There is, however, no requirement that the entirety of a unit or organization be inspected. Unless authority to do so has 

been withheld by competent superior authority, any individual placed in a command or appropriate supervisory position may inspect the personnel 

and property within his or her control. 

Inspections for contraband such as drugs have posed a major problem. Initially, such inspections were viewed simply as a form of health and 

welfare inspection, see, e.g., United States v. Unrue, 22 C.M.A. 466, 47 C.M.R. 556 (1973). More recently, however, the Court of Military 

Appeals has tended to view them solely as searches for evidence of crime. See, e.g. United States v. Roberts, 2 M.J. 31 (C.M.A. 1976); but see 

United States v. Harris, 5 M.J. 44, 58 (C.M.A. 1978). Illicit drugs, like unlawful weapons, represent, however, a potential threat to military 

efficiency of disastrous proportions. Consequently, it is entirely appropriate to treat inspections intended to rid units of contraband that would 

adversely affect military fitness as being health aqd welfare inspections, see, e.g. Committee for G.I. Rights v. Callaway, 5 18 F.2d 466 (D.C. Cir. 

1975), and the Rule does so. 

A careful analysis of the applicable case law, military and civilian, easily supports this conclusion. Military cases have long recognized the 

legitimacy of "health and welfare" inspections and have defined those inspections as examinations intended to ascertain and ensure the readiness 

of personnel and equipment. See, e.g., United States v. Gebhnrt, 10 C.M.A. 606,610 n. 2,28 C.M.R. 172, 176 n. 2 (1959); "[these] types of 

searches are not to be confused with inspections of military personnel . . . conducted by a commander in furtherance of the security of his 

command"; United States v. Brashears, 45 C.M.R. 438 (A.C.M.R. 1972), rev'd on other grounds, 21 C.M.A. 522,45 C.M.R. 326 (1972). 

Among the legitimate intents of a proper inspection is the location and confiscation of unauthorized weapons. See, e.g, UnitedStates v. Grace, 19 

C.M.A. 409,410,42 C.M.R. 1 1,12 (1970). The justification for this conclusion is clear; unauthorized weapons are a serious danger to the health 

of military personnel and therefore to mission readiness. Contraband that "would affect adversely the security, military fitness, or good order and 

discipline" is thus identical with unauthorized weapons insofar as their effects can be predicted. Rule 313(b) authorizes inspections for 

contraband, and is expressly intended to authorize inspections for unlawful drugs. As recognized by the Court of Military Appeals in United 

States v. Unrue, 22 C.M.A. 466,469-70, 47 C.M.R. 556, 559-60 (1973), unlawful drugs pose unique problems. If uncontrolled, they may 

create an "epidemic," 47 C.M.R. at 559. Their use is not only contagious as peer pressure in barracks, aboard ship, and in units, tends to impel 

the spread of improper drLg use, but the effkcts are known to render units unfit to accomplish their missions. Viewed in this light, it is apparent that 

inspection for those drugs which would "affect adversely the security, military fitness, or good order and discipline of the command" is a proper 

administrative intent well within the decisions of the United States Supreme Court. See, e.g., Camara v. Municipal Court, 387 U.S. 523 (1967); 

UnitedStates v. Unrue, 2 C.M.A. 446,471,47 C.M.R. 556,561 (1973) [Judge Duncan dissenting]. This conclusion is buttressed by the fact that 

members of the military have a diminished expectation of privacy, and that inspections for such contraband are "reasonable" within the meaning 

of the Fourth Amendment. See, e.g., Committee for G.I. Rights v. Callaway, 518 F.2d 466 (D.C. Cir. 1975). Although there are a number of 

decisions of the Court of Military Appeals that have called the legality of inspections for unlawful drugs into question, see United States v. 

Thomas, supra; United States v. Roberts, 2 M.J. 31 (C.M.A. 1977), those decisions with their multiple opinions are not dispositive. Particularly 

important to this conclusion is the opinion of Judge Perry in United States v. Roberts, supra. Three significant themes are present in the opinion: 

lack of express authority for such inspections, the perception that unlawful drugs are merely evidence of crime, and the high risk that inspections 

may be used for subterfuge searches. The new Rule is intended to resolve these matters fully. The Rule, as part of an express Executive Order, 

supplies the explicit authorization for inspections then lacking. Secondly, the Rule is intended to make plain the fact that an inspection that has as 

its object the prevention and correction of conditions harmful to readiness is far more than a hunt for evidence. Indeed, it is the express judgment 

of the Committee that the uncontrolled use of unlawful drugs within the armed forces creates areadiness crisis and that continued use of such drugs 

is totally incompatible with the possibility of effectively fielding military forces capable of accomplishing their assigned mission. Thirdly, Rule 

313(b) specifically deals with the subterfuge question in order to prevent improper use of inspections. 

Rule 313(b) requires that before an inspection intended "to locate and confiscate unlawful weapons or other contraband, that would affect 

adversely the . . . command" may take place, there must be either "a reasonable suspicion that such property is present in the command" or the 

inspection must be "a previously scheduled examination of the command." The former requirement requires than an inspection not previously 

scheduled be justified by "reasonable suspicion that such property is present in the command." This standard is intentionally minimal and 

requires only that the person ordering the inspection have a suspicion that is, under the circumstances, reasonable in nature. Probable cause is not 

required. Under the latter requirement, an inspection shall be scheduled sufficiently far enough in advance as to eliminate any reasonable 

probability that the inspection is being used as a subterfuge, i.e., that it is being used to search a given individual for evidence of crime when 

probable cause is lacking. Such scheduling may be made as a matter of date or event. In other words, inspections may be scheduled to take place on 

any specific date, e.g., a commander may decide on the first of a month to inspect on the 7th, 9th, and 21st, or on the occurrence of a specific event 
App. 22, M.R.E. 313(c) APPENDIX 22 

beyond the usual control of the commander, e.g., whenever an alert is ordered, forces are deployed, a ship sails, the stock market reaches a certain 

level of activity, etc. It should be noted that "previously scheduled" inspections that vest discretion in the inspector are permissible when 

otherwise lawful. So long as the examination, e.g., an entrance gate inspection, has been previously scheduled, the fact that reasonable exercise of 

discretion is involved in singling out individuals to be inspected is not improper; such inspection must not be in violation of the Equal Protection 

clause of the 5th Amendment or be used as a subterfuge intended to allow search of certain specific individuals. 

The Rule applies special restrictions to contraband inspections because of the inherent possibility that such inspection may be used as 

subterfuge searches. Although a lawful inspection may be conducted with a secondary motive to prosecute those found in possession of 

contraband, the primary motive must be administrative in nature. The Rule recognizes the fact that commanders are ordinarily more concerned 

with removal of contraband from units-thereby eliminating its negative effects on unit readiness-than with prosecution of those found in 

possession of it. The fact that possession of contraband is itself unlawful renders the probability that an inspection may be a subterfuge somewhat 

higher than that for an inspection not intended to locate such material. 

An inspection which has as its intent, or one of its intents, in whole or in part, the discovery of contraband, however slight, must comply with 

the specific requirements set out in the Rule for inspections for contraband. An inspection which does not have such an intent need not so comply 

and will yield admissible evidence if contraband is found incidentally by the inspection. Contraband is defined as material the possession of which 

is by its very nature unlawful. Material may be declared to be unlawful by appropriate statute, regulation, or order. For example, if liquor is 

prohibited aboard ship, a shipboard inspection for liquor must comply with the rules for inspections for contraband. 

Before unlawful weapons or other contraband may be the subject of an inspection under Rule 313(b), there must be a determination that 

"such property would affect adversely the security, military fitness, or good order and discipline of the command." In the event of an adequate 

defense challenge under Rule 31 1 to an inspection for contraband, the prosecution must establish by a preponderance that such property would in 

fact so adversely affect the command. Although the question is an objective one, its resolution depends heavily on factors unique to the personnel 

or location inspected. If such contraband would adversely affect the ability of the command to complete its assigned mission in any significant 

way, the burden is met. The nature of the assigned mission is unimportant for that is a matter within the prerogative of the chain of command only. 

The expert testimony of those within the chain of command of a given unit is worthy of great weight as the only purpose for permitting such an 

inspection is to ensure military readiness. The physiological or psychological effects of a given drug on an individual are normally irrelevant 

except insofar as such evidence is relevant to the question of the user's ability to perform duties without impaired efficiency. As inspections are 

generally quantitative examinations, the nature and amount of contraband sought is relevant to the question of the govenunent's burden. The 

existence of five unlawful drug users in an Army division, for example, is unlikely to meet the Rule's test involving adverse effect, but five users in 

an Army platoon may well do so. 

The Rule does not require that personnel to be inspected be given preliminary notice of the inspection although such advance notice may well 

be desirable as a matter of policy or in the interests, as perhaps in gate inspections, of establishing an alternative basis, such as consent, for the 

examination. 

Rule 313(b) requires that inspections be conducted in a "reasonable fashion." The timing of an inspection and its nature may be of 

importance. Inspections conducted at a highly unusual time are not inherently unreasonable-especially when a legitimate reason of such timing 

is present. However, a 0200 inspection, for example, may be unreasonable depending upon the surrounding circumstances. 

The Rule expressly permits the use of "any reasonable or natural technological aid." Thus, dogs may be used to detect contraband in an 

otherwise valid inspection for contraband. This conclusion follows directly from the fact that inspections for contraband conducted in complianc~ 

with Rule 3 13 are lawful. Consequently, the technique of inspection is generally unimportant under the new rules. The Committee did, however, 

as a matter of policy require that the natural or technological aid be "reasonable." 

Rule 3 13(b) recognizes and affirms the commander's power to conduct administrative examinations which are primarily non-prosecutorial in 

purpose. Personnel directing inspections for contraband must take special care to ensure that such inspections comply with Rule 313(b) and thus 

do not constitute improper general searches or subterfuges. 

(c) Inventories. Rule 313(c) codifies current law by recognizing the admissibility of evidence seized via bona fide inventory. The rationale behind 

this exception to the usual probable cause requirement is that such an inventory is not prosecutorial in the nature and is areasonable intrusion. See, 

e.g., South Dakota v. Opperman, 428 U.S. 364 (1976). 

An inventory may not beused as a subterfuge search, UnitedStatesv. Mossbauer, 20 C.M.A. 584,44 C.M.R. 14 (1971), and the basis for an 

inventory and the procedure utilized may be subject to challenge in any specific case. Inventories of the property of detained individuals have 

usually been sustained. See, e.g., United States v. Brashears, 21 C.M.A. 552, 45 C.M.R. 326 (1972). 

Thecommittee does not, however, express an opinion as to the lawful scope of an inventory. See, e.g., SouthDakota v. Opperman, 428 U.S. 

364 (19761, in which the court did not determine the propriety of opening the locked trunk or glovebox during the inventory of a properly 

impounded automobile. 

Inventories will often be governed by regulation. 

Rule 314. Searches Not Requiring Probable Cause 

The list of non-probable cause searches contained within Rule 314 is intended to encompass most of the non-probable cause searches 

common in the military environment. The term "search" is used in Rule 314 in its broadest non-technical sense. Consequently, a "search" for 

purposes of Rule 314 may include examinations that are not "searches" within the narrow technical sense of the Fourth Amendment. See, e.g., 

Rule 314(i). 

Insofar as Rule 314 expressly deals with a given type of search, the Rule pre-empts the area in that the Rule must be followed even should the 
ANALYSIS OF THE 1980 AMENDMENTS App. 22, M.R.E. 314(e)(5) 

Supreme Court issue a decision more favorable to the Government. If such a decision involves a non-probable cause search of a type not addressed 

in Rule 314, it will be fully applicable to the Armed Forces -under Rule 314(k) unless other authority prohibits such application. 

(a) General Rule. Rule 3 14(a) provides that evidence obtained from a search conducted pursuant to Rule 3 14 and not in violation of another Rule, 

e.g., Rule 312, Bodily Views and Instrusions, is admissible when relevant and not otherwise inadmissible. 

(b) Border Searches. Rule 314(b) recognizes that military personnel may perform border searches when authorized to do so by Congress. 

(c) Searches upon entry to United States installations, aircraft, and vessels abroad. Rule 3 14(c) follows the opinion of Chief Judge Fletcher in 

UnitedStates v. Rivera, 4 M.J. 215 (C.M.A. 1978), in which he applied, 4 M.J. 215,216 n.2 the border search doctrine to entry searches of United 

States installations or enclaves on foreign soil. The search must be reasonable and its intent, in line with all border searches, must be primarily 

prophylactic. This authority is additional to any other powers to search or inspect that a commander may hold. 

Although Rule 314(c) is similar to Rule 313(b), it is distinct in terms of its legal basis. Consequently, a search performed pursuant to Rule 

314(c) need not comply with the burden of proof requirement found in Rule 313(b) for contraband inspections even though the purpose of the 

314(c) examination is to prevent introduction of contraband into the installation, aircraft or vessel. 

A Rule 314(c) examination must, however, be for a purpose denominated in the rule and must be rationally related to such purpose. A search 

pursuant to Rule 3 14(c) is possible only upon entry to the installation, aircraft or vessel, and an individual who chooses not to enter removes any 

basis for search pursuant to Rule 314(c). The Rule does not indicate whether discretion may be vested in the person conducting a properly 

authorized Rule 314(c) search. It was the opinion of members of the Committee, however, that such discretion is proper considering the Rule's 

underlying basis. 

(d) Searches ofgovernmentproperty. Rule 314(d) restates present law, see, e.g., United States v. Weshenfelder, 20 C.M.A. 416,43 C.M.R. 256 

(1971) ,and recognizes that personnel normally do not have sufficient interest in government property to have a reasonable expectation of privacy 

in it. Although the rule could be equally well denominated as a lack of adequate interest, see, e.g., Rule 3 1 l(a)(2), it is more usually expressed as a 

nonprobable cause search. The Rule recognizes that certain government property may take on aspects of private property allowing an individual to 

develop a reasonable expectation of privacy surrounding it. Wall or floor lockers in living quarters issued for the purpose of storing personal 

property will normally, although not necessarily, involve a reasonable expectation of privacy. It was the intent of the Committee that such lockers 

give rise to a rebuttable presumption that they do have an expectation of privacy, and that insofar as other government property is concerned such 

property gives rise to a rebuttable presumption that such an expectation is absent. 

Public property, such as streets, parade grounds, parks, and office buildings rarely if ever involves any limitations upon the ability to search. 

(e) Consent Searches. 

(1) General Rule. The present Manual Rule is found in paragraph 152, the relevant sections of which state: 

A search of one's person with his freely given consent, or of property with the freely given consent of a person entitled in the situation 

involved to waive the right to immunity from an unreasonable search, such as an owner, bailee, tenant, or occupant as the case may be 

under the circumstances [is lawful]. 

If the justification for using evidence obtained as a result of a search is that there was a freely given consent to the search, that consent 

must be shown by clear and positive evidence. 

Although Rule 3 14(e) generally restates the present law without substantive change, the language has been recast. The basic rule for consent 

searches is taken from Schneckloth v. Bustamonte, 412 U.S. 218 (1973). 

(2) Who may consent. The Manual language illustrating when third parties may consent to searches has been omitted as being insufficient and 

potentially misleading and has been replaced by Rule 314(e)(2). The Rule emphasizes the degree of control that an individual has over property 

and is intended to deal with circumstances in which third parties may be asked to grant consent. See e.g., Frazier v. Cupp, 394 U.S. 731 (1969); 

Stoner v. California, 376 U.S. 483 (1964); United States v. Mathis, 16 C.M.A. 5 11, 37 C.M.R. 142 (1967). It was the Committee's intent to 

restate current law in this provision and not to modify it in any degree. Consequently, whether an individual may grant consent to a search of 

property not his own is a matter to be determined on a case by case basis. 

(3) Scope of consent. Rule 3 14(e)(3) restates present law. See e.g., United States v. Castro, 23 C.M. A. 166,48 C.M.R. 782 (1974); United 

States v. Cady, 22 C.M.A. 408, 47 C.M.R. 345 (1973). 

(4) Voluntariness.Rule 314(e)(3) requires that consent be voluntary to be valid. The second sentence is taken in substance fromSchneckloth 

v. Bustamonte, 412 U.S. 218, 24-9 (1973). 

The specific inapplicability of Article 31(b) warnings follows Schneckloth and complies with United States v. Morris, 1 M.J. 352 (C.M.A. 

1976) (opinion by Chief Judge Fletcher with Judge Cook concurring in the result). Although not required, such warnings are, however, avaluable 

indication of a voluntary consent. The Committee does not express an opinion as to whether rights warnings are required prior to obtaining an 

admissible statement as to ownership or possession of property from a suspect when that admission is obtained via a request for consent to search. 

(5)Burden ofproqf: Although not constitutionally required, the burden of proof in 7 152 of the present Manual for consent searches has been 

retained in a slightly different form-"clear and convincing" in place of "clear and positive3'--on the presumption that the basic nature of the 

military structure renders consent more suspect than in the civilian community: "Clear and convincing evidence" is intended to create a burden of 

proof between the preponderance and beyond a reasonable doubt standards. The Rule expressly rejects a different burden for custodial consents. 

The law is this area evidences substantial confusion stemming initially from language used in United States v. Justice, 13 C.M.A. 31, 34, 32 

C.M.R. 31, 34 (1962): "It [the burden of proof] is an especially heavy obligation if the accused was in custody . . . ",which was taken in turn 
App. 22, M.R.E. 314(f) APPENDIX 22 

from a number of civilian federal court decisions. While custody should be a factor resulting in an especially careful scrutiny of the circumstances 

surrounding a possible consent, there appears to be no legal or policy reason to require a higher burden of proof. 

(f) Frisks incident to a 1 4 1 stop. Rule 314(f) recognizes a frisk as a lawful search when performed pursuant to a lawful stop. The primary 

authority for the stop and frisk doctrine is Terry v. Ohio, 392 U.S. 1 (19681, and the present Manual lacks any reference to either stops or frisks. 

Hearsay may be used in deciding to stop and frisk. See, e.g., Adnms v. Williams, 407 U.S. 143 (1972). 

The Rule recognizes the necessity for assisting police or law enforcement personnel in their investigations but specifically does not address 

the issue of the lawful duration of a stop nor of the nature of the questioning, if any, that may be involuntarily addressed to the individual stopped. 

See Brown v. Texas, 440 U.S. 903 (1979) generally prohibiting such questioning in civilian life. Generally, it would appear that any individual 

who can be lawfully stopped is likely to be a suspect for the purposes of Article 31(b). Whether identification can be demanded of a military 

suspect without Article 31(b) warnings is an open question and may be dependent upon whether the identification of the suspect is relevant to the 

offense possibly involved. See Lederer, Rights Warnings in the Armed Services, 72 Mil.L.Rev. 1,4041 (1976). 

(g) Searches incident to a lawful apprehension. The present Manual Rule is found in paragraph 152 and states: 

A search conducted as an incident of lawfully apprehending a person, which may include a search of his person, of the clothing he is wearing, and 

of property which, at time of apprehension, is in his immediate possession or control, or of an area from within which he might gain possession of 

weapons or destructible evidence; and a search of the place where the apprehension is made [is lawful]: 

Rule 314(g) restates the principle found within the Manual text but utilizes new and clarifying language. The Rule expressly requires that an 

apprehension be lawful. 

(1) General Rule. Rule 314(g)(l) expressly authorizes the search of a person of. a lawfully apprehended individual without further 

justification. 

(2) Search for weapons and destructible evidence. Rule 314(g)(2) delimits the area that can be searched pursuant to an apprehension and 

specifies that the purpose of the search is only to locate weapons and destructible evidence. This is a variation of the authority presently in the 

Manual and is based upon the Supreme Court's decision in Chirnel v. California, 395 U.S. 752 (1969). It is clear from the Court's decision in 

United States v. Chadwick, 438 U.S. 1 (1977) that the scope of a search pursuant to a lawful apprehension must be limited to those areas which an 

individual could reasonably reach and utilize. The search of the area within the immediate control of the person apprehended is thus properly 

viewed as a search based upon necessity-whether one based upon the safety of those persons apprehending or upon the necessity to safeguard 

evidence. Chadwick, holding that police could not search a sealed footlocker pursuant to an arrest, stands for the proposition that the Chirnel 

search must be liited by its rationale. 

That portion of the present Manual subparagraph dealing with intrusive body searches has been incorporated into Rule 312. Similarly that 

portion of the Manual dealing with search incident to hot pursuit of a person has been incorporated into that portion of Rule 315 dealing with 

exceptions to the need for search warrants or authorizations. 

(3) Examination for otherpersons. Rule 314(g)(3) is intended to protect personnel performing apprehensions. Consequently, it is extremely 

limited in scope and requires a good faith and reasonable belief that persons may be present who might interfere with the apprehension of 

apprehending individuals. Any search must be directed towards the finding of such persons and not evidence. 

An unlawful apprehension of the accused may make any subsequent statement by the accused inadmissible, Dunaway v. New York, 442 U.S. 

200 (1979). 

(h) Searches within jails, confinement facilities, or similar facilities. Personnel confined in a military confinement facility or housed in a facility 

serving a generally similar purpose will normally yield any normal ~ourth ~mendmentprotections to the reasonable needs of the facility. See e.g., 

United States v. Maglito, 20 C.M.A. 456, 43 C.M.R. 296 (1971). See also Rule 312. ' 

(i) Emergency searches to save life or for relatedpurpose. This type of search is not found within the present Manual provision but is in accord 

with prevailing civilian and military case law. See e.g., United States v. Yarborough, 50 C.M.R. 149, 155 (A.F.C.M.R. 1975). Such a search 

must be conducted in good faith and may not be a subterfuge in order to circumvent an individual's Fourth Amendment protections. 

(j)Searches qfopenjelds or woodlands. This type of search is taken from present Manual paragraph 152. Originally recognized in Hester v. 

United States, 265 U.S. 57 (1924), this doctrine was revived by the Supreme Court in AirPollution Variance Board v. Western Alfalfa Corp., 416 

U.S. 861 (1974). Arguably, such a search is not a search within the meaning of the Fourth Amendment. In Hester, Mr. Justice Holmes simply 

concluded that "the special protection accorded by the4th Amendment to the people in their 'persons, houses, papers, and effects' is not extended 

to the open fields." 265 U.S. at 59. In relying on Hester, the Court in Air Pollution Variance Board noted that it was "not advised that he [the air 

pollution investigator] was on premises from which the public was excluded." 416 U.S. 865. This suggests that the doctrine of open fields is 

subject to the caveat that a reasonable expectation of privacy may result in application of the Fourth Amendment to open fields. 

(k)Other searches. Rule 314(k) recognizes that searches of a type not specified within the Rule but proper under the Constitution are also lawful. 

Rule 315. Probable Cause Searches 

(a) GeneralRule-Rule 315 states that evidence obtained pursuant to the Rule is admissible when relevant and not otherwise admissible under the 

Rules. 

(b) Dejnitions. 

(1)Authorization to search. Rule 315(b)(l) defines an "authorization to search" as an express permission to search issued by proper military 
ANALYSIS OF THE 1980 AMENDMENTS App. 22, M.R.E. 315(f) 

authority whether commander or judge. As such, it replaces the term "search warrant" which is used in the Rules only when referring to a 

permission to search given by proper civilian authority. The change in terminology reflects the unique nature of the armed forces and of the role 

played by commanders. 

(2) Search warrant. The expression "search warrant" refers only to the authority to search issued by proper civilian authority. 

(c) Scope ofauthorization.-Rule 315(c) is taken generally from 7 152(1)-(3) of the present Manual except that military jurisdiction to search 

upon military installations or in military aircraft, vessels, or vehicles has been clarified. Although civilians and civilian institutions on military 

installations are subject to a search pursuant to a proper search authorization, the effect of any applicable federal statute or regulation must be 

considered. E.g., the Right to Financial Privacy Act of 1978, 12 U.S.C. $8 3401-3422, and DOD Directive 5400.12 (Obtaining Information 

From Financial Institutions). 

Rule 315(c)(4) is a modification of present law. Subdivision (c)(4)(A) is intended to ensure cooperation between Department of Defense 

agencies and other government agencies by requiring prior consent to DOD searches involving such other agencies. Although Rule 315(c)(4)(B) 

follows the present Manual in permitting searches of "other property in a foreign country" to be authorized pursuant to subdivision (d), 

subdivision (c) requires that all applicable treaties be complied with or that prior concurrence with an appropriate representative of the foreign 

nation be obtained if no treaty or agreement exists. The Rule is intended to foster cooperation with host nations and compliance with all existing 

international agreements. The Rule does not require specific approval by foreign authority of each search (unless, or course, applicable treaty 

requires such approvg); rather the Rule permits prior blanket or categorical approvals. Because Rule 315(c)(4) is designed to govern intragovernmental and international relationships rather than relationships between the United States and its citizens, a violation of these provisions 

does not render a search unlawful. 

(d) Paver to authorize-Rule 315(d) grants power to authorize searches to impartial individuals of the included classifications. The closing 

portion of the subdivision clarifies the decision of the Court of Military Appeals in United States v. Ezell, 6 M. J. 307 (C.M.A. 1979) by stating that 

the mere presence of an authorizing officer at a search does not deprive the individual of an otherwise neutral character. This is in conformity with 

the decision of the United States Supreme Court in LoJi Sales v. New York, 442 U.S. 31 9 (1979) from which the first portion of the language has 

been taken. The subdivision also recognizes the propriety of a commander granting a search authorization after taking a pretrial action equivalent 

to that which may be taken by a federal district judge. For example, a commander might authorize use of a drug detector dog, an action arguably 

similar to the granting of wiretap order by a federal judge, without necessarily depriving himself or herself of the ability to later issue a search 

authorization. The question would be whether the commander has acted in the first instance in an impartial judicial capacity. 

(1) Commander. Rule 315(d)(l) restates the present rule by recognizing the power of commanders to issue search authorizations upon 

probable cause. The Rule explicitly allows non-officers serving in a position designated by the Secretary concerned as a position of command to 

issue search authorizations. If a non-officer assumes command of a unit, vessel, or aircraft, and the command position is one recognized by 

regulations issued by the Secretary concerned, e.g. command of a company, squadron, vessel, or aircraft, the non-officer commander is 

empowered to grant search authorizations under this subdivision whether the assumption of command is pursuant to express appointment or 

devolution of command. The power to do so is thus a function of position rather than rank. 

The Rule also allows persons serving as officer-in-charge or in a position desginated by the Secretary as a position analogous to an officer-incharge to grant search authorizations. The term "officer-in-charge" is statutorily defined, Article 1(4), as pertaining only to the Navy, Coast 

Guard, and Marine Corps, and the change will allow the Army and Air Force to establish an analogous position should they desire to do so in 

which case the power to authorize searches would exist although such individuals would not be "officers-in-charge" as that term is used in the 

U.C.M.J. 

(2) Delegee-Rule 315(d)(2) restates present law and explicitly permits the power to issue search authorizations to be delegated to nonofficers. Delegees should be mature experienced impartial individuals possessing judicial temperament. Delegation normally should be made to 

an officer, but delegation to senior non-commissioned or petty officers may be made in appropriate cases. 

Rule 315(d)(2) permits a commander to delegate the power to authorize searches to a military judge. This power is distinct from the power of 

the Secretary concerned under subdivision(d)(3) to authorize military judges, normally as a group, .to authorize searches. Although a lawful 

delegation may be made across service lines, a commander may not require an individual receiving such a delegation to function as an authorizing 

officer unless that individual is under the command of the commander delegating the power. 

(3) Military judge-Rule 315(d)(3) permits military judges to issue search authorizations when authorized to do so by the Secretary 

concerned. MILITARY MAGISTRATES MAY ALSO BE'EMPOWERED TO GRANT SEARCH AUTHORIZATIONS. This recognizes the 

practice now in use in the Army but makes such practice discretionary with the specific Service involved. 

(e) Power to search. Rule 315(e) specifically denominates those persons who may conduct or authorize a search upon probable cause either 

pursuant to a search authorization or when such an authorization is not required for reasons of exigencies. The Rule recognizes, for example, that 

all officers and non-commissioned officers have inherent power to perform a probable cause search without obtaining of a search authorization 

under the circumstances set forth in Rule 315(g). The expression "criminal investigator" within Rule 315(e) includes members of the Army 

Criminal Investigation Command, the Marine Corps Criminal Investigation Division, the Naval Investigative Service, the Air Force Office of 

Special Investigations, and Coast Guard special agents. 

(f) Basis for search authorizations. Rule 315(f) requires that probable cause be present before a search can be conducted under the Rule and 

utilizes the basic definition of probable cause found in present Manual 7 152. 

For reasons of clarity the Rule sets forth a simple and general test to be used in all probable cause determinations: probable cause can exist 

only if the authorizing individual has a "reasonable belief that the information giving rise to the intent to search is believable and has a factual 

basis." This test is taken from the "two prong test" of Aguilar v. Texas, 378 U.S. 108 (1964), which was incorporated in 7 152 of the present 
App. 22, M.R.E. 315(f)(l) APPENDIX 22 

Manual. The Rule expands the test beyond the hearsay and informant area. The "factual basis" requirement is satisfied when an individual 

reasonably concludes that the information, if reliable, adequately apprises the individual that the property in question is what it is alleged to be and 

is where it is alleged to be. Information is "believable" when an individual reasonably concludes that it is sufficiently reliable to be believed. 

The twin test of "believability" and "basis in fact" must be met in all probable cause situations. The method of application of the tests will 

differ, however, depending upon circumstances. The following examples are illustrative: 

(1) An individual making a probable cause determination who observes an incident first hand is only required to determine if the observation 

is reliable and that the property is likely to be what is appears to be. 

For example, an officer who believes that she sees an individual in possession of heroin must first conclude that the observation was reliable 

(i.e., if her eyesight was adequate-should glasses have been worn-and if there was sufficient time for adequate observation) and that she has 

sufficient knowledge and experience to be able to reasonably believe that the substance in question was in fact heroin. 

(2) An individual making a probable cause determination who relies upon the in person report of an informant must determine both that the 

informant is believable and that the property observed is likely to be what the observer believes it to be. The determining individual may rely upon 

the demeanor of the informant in order to determine whether the observer is believable, An individual known to have a "clean record" and no bias 

against the individual to be affected by the search is likely to be credible. 

(3) An individual making a probable cause determination who relies upon the report of an informant not present before the authorizing 

individual must determine both that the informant is credible and that the property observed is likely to be what the informant believed it to be. The 

determining individual may utilize one or more of the following factors, among others, in order to determine whether the informant is believable: 

(A) Prior record as a reliable informant-Has the informant given information in the past which proved to be accurate? 

(B) Corroborating detail-Has enough detail of the informant's information been verified to imply that the remainder can 

reasonably be presumed to be accurate? 

(C) Statement against interest-Is the information given by the informant sufficiently adverse to the fiscal or penal interest of the 

informant to imply that the information may reasonably be presumed to be accurate? 

(D) Good citizen-Is the character of the informant, as known by the individual making the probable cause determination, such as 

to make it reasonable to presume that the information is accurate? 

Mere allegations may not be relied upon. For example, an individual may not reasonably conclude that an informant is reliable simply 

because the informant is so named by a law enforcement agent. The individual making the probable cause determination must be supplied with 

specific details of the informant's past actions to allow that individual to personally and reasonably conclude that the informant is reliable. 

Information transmitted through law enforcement or command channels is presumed to have been reliably transmitted. This presumption 

may be rebutted by an affirmative showing that the information was transmitted with intentional error. 

The Rule permits a search authorization to be issued based upon information transmitted by telephone or other means of communication. 

The Rule also permits the Secretaries concerned to impose additional procedural requuements for the issuance of search authorizations. 

In United States v. Fimmano, 8 M.J. 197 (C.M.A. 1980) the Court of Military Appeals held that individuals presenting information to an 

authorizing officer in the course of requesting a search authorization must present that information under oath or affirmation. The decision was not 

codified in Rule 3 15 because of its late date and the fact that a petition for reconsideration had been filed in the case. Notwithstandig its absence 

from Rule 3 15, compliance is required. Subsequent to Fimmano a number of the armed forces further implemented Fimmano by regulation. Such 

regulations are authorized under subdivision (0. 

(g) Exigencies. Rule 315(g) restates present law and delimits those circumstances in which a search warrant or authorization is unnecessary 

despite the ordiiary requirement for one. In all such cases probable cause is required. 

Rule 315(g)(l) deals with the case in which the time necessary to obtain a proper authorization would threaten the destruction or concealment 

of the property or evidence sought. 

Rule 3 15(g)(2) recognizes that military necessity may make it tactically impossible to attempt to communicate with a person who could grant 

a search authorization. Should a nuclear submarine on radio silence, for example, lack a proper authorizing individual, (perhaps for reasons of 

disqualification), no search could be conducted if the Rule were otherwise unless the ship broke radio silence and imperiled the vessel or its 

mission. Under the Rule this would constitute an "exigency." "Military operational necessity" includes similar necessity incident to the Coast 

Guard's performance of its maritime police mission. 

The Rule also recognizes in subdivision (g)(3) the "automobile exception" created by the Supreme Court. See, e.g., United States v. 

Chadwick, 433 U.S. 1 (1977); South Dakota v. Opperman, 428 U.S. 364 (1976); Texas v. White, 423 U.S. 67 (1975), and, subject to the 

constraints of the Constitution, the Manual, or the Rules, applies it to all vehicles. While the exception will thus apply to vessels and aircraft as 

well as to automobiles, trucks, et al, it must be applied with great care. In view of the Supreme Court's reasoning that vehicles are both mobile and 

involve a diminished expectation of privacy, the larger a vehicle is, the more unlikely it is that the exception will apply. The exception has no 

application to government vehicles as they may be searched without formal warrant or authorization under Rule 314(d). 
ANALYSIS OF THE 1980 AMENDMENTS App. 22, M.R.E. 317(c) 

(h) Execution. Rule 314(h)(l) provides for service of a search warrant or search authorization upon a person whose property is to be searched 

when possible. Noncompliance with the Rule does not, however, result in exclusion of the evidence. Similarly, Rule 314(h)(2) provides for the 

inventory of seized property and provision of a copy of the inventory to the person from whom the property was seized. Noncompliance with the 

subdivision does not, however, make the search or seizure unlawful. Under Rule 315(h)(3) compliance with foreign law is required when 

executing a search authorization outside the United States, but noncompliance does not trigger the exclusionary rule. 

Rule 316. Seizures 

(a) General Rule. Rule 316(a) provides that evidence obtained pursuant to the Rule is admissible when relevant and not otherwise inadmissible 

under the Rules. Rule 316 recognizes that searches are distinct from seizures. Although rare, a seizure need not be proceeded by a search. 

Property may, for example, be seized after being located pursuant to plain view, see subdivision (d)(4)(C). Consequently, the propriety of a seizure 

must be considered independently of any preceding search. 

(b) Seizure ofproperty. Rule 316(b) defines probable cause in the same fashion as defined by Rule 315 for probable cause searches. See the 

Analysis of Rule 3 15(f)(2). The justifications for seizing property are taken from present Manual 7 152. Their number has, however, been reduced 

for reason of brevity. No distinction is made between "evidence of crime" and "instrumentalities or fruits of crime." Similarly the proceeds of 

crime are also "evidence of crime." 

(c) Apprehension. Apprehensions are, of course, seizures of the person and unlawful apprehensions may be challenged as an unlawful seizure. 

See e.g. Dunaway v. New York, 442 U.S. 200 (1979); UnitedStates v. Texidor-Perez, 7 M.J. 356 (C.M.A. 1979). See generally, paragraph 19 of 

the Manual. 

(d) Seizure ofproperty or evidence. 

(1) Abandonedproperty. Rule 316(d) restates present law, not addressed specifically by the present Manual chapter, by providing that 

abandoned property may be seized by anyone at any time. 

(2) Consent. Rule 316(d)(2) permits seizure of property with appropriate consent pursuant to Rule 314(e). The prosecution must demonseate 

a voluntary consent by clear and convincing evidence. 

(3) Government property. Rule 316(d)(3) permits seizure of government property without probable cause unless the person to whom the 

property is issued or assigned has a reasonable expectation of privacy therein at the time of seizure. In this regard note Rule 3 14(d) and its analysis. 

(4)Other property. Rule 316(d)(4) provides for seizure of property or evidence not otherwise addressed by the Rule. There must be 

justification to exercise control over the property. Although property may have been lawfully located, it may not be seized for use at trial unless 

there is a reasonable belief that the property is of a type discussed in Rule 316(b). Because the Rule is inapplicable to seizures unconnected with 

law enforcement, it does not limit the seizure of property for a valid administrative purpose such as safety. 

Property or evidence may be seized upon probable cause when seizure is authorized or directed by a search warrant or authorization, Rule 

316(d)(4)(A); when exigent circumstances pursuant to Rule 315(g) permit proceeding without such a warrant or authorization; or when the 

property or evidence is in plain view or smell, Rule 316(d)(4)(C). 

Although most plain view seizures are inadvertent, there is no necessity that a plain view discovery be inadvertent-notwithstanding dicta, 

in some court cases; see e.g., Coolidge v. New Hampshire, 403 U.S. 443 (197 1). The Rule allows a seizure pursuant to probable cause when made 

as a result of plain view. The language used in Rule 316(d)(4)(C) is taken from the ALI MODEL CODE OF PREARRAIGNMENT 

PROCEDURE 8 SS 260.6 (1975). The Rule requires that the observation making up the alleged plain view be "reasonable." Whether intentional 

observation from outside a window, via flashlight or binocular, for example, is observation in a "reasonable fashion" is a question to be 

considered on a case by case basis. Whether a person may properly enter upon private property in order to effect a seizure of matter located via 

plain view is not resolved by the Rule and is left to future case development. 

(e) Paver to seize. Rule 316(e) conforms with Rule 315(e) and has its origins in Manual ll 19. 

Rule 317. Interception of Wire and Oral Communlcatlon 

(a) General Rule. The area of interception of wire and oral communications is unusually complex and fluid. At present, the area is governed by the 

Fourth Amendment, applicable federal statute, DOD directive, and regulations prescribed by the Service Secretaries. In view of this situation, it is 

preferable to refrain from codification and to vest authority for the area primarily in the Department of Defense or Secretary concerned. Rule 

317(c) thus prohibits interception of wire and oral communications for law enforcement purposes by members of the armed forces except as 

authorized by 18 U.S .C. 8 25 16, Rule 317(b), and when applicable, by regulations issued by the Secretary of Defense or the Secretary concerned. 

Rule 3 17(a), however, specifically requires exclusion of evidence resulting from noncompliance with Rule 317(c) only when exclusion is required 

by the Constitution or by an applicable statute. Insofar as a violation of a regulation is concerned, compare UnitedStates v. Dillard, 8 M.J. 213 

(C.M.A. 1980) with United States v. Caceres, 440 U.S. 741 (1979). 

(b) Authorization for Judicial Applications in the United States. Rule 317(b) is intended to clarify the scope of 18 U.S.C. 8 2516 by expressly 

recognizing the Attorney General's authority to authorize applications to a federal court by the Department of Defense, Department of 

Transportation, or the military departments for authority to intercept wire or oral communications. 

(c) Regulations. Rule 317(c) requires interception of wire or oral communications in the United States be first authorized by statute, see Rule 

317(b), and interceptions abroad by appropriate regulations. See, the Analysis to Rule 317(a), supra. The Committee intends 317(c) to limit only 

in interceptions that are nonconsenual under chapter 119 of title 18 of the United States Code. 
App. .22, M.R.E. 321(a) APPENDIX 22 

Rule 321. Eyewitness ldentlficatlon 

(a) General Rule 

(1)Admissibiliry. The first sentence of Rule 321 (a)(l) is the basic rule of admissibility of eyewitness identification and provides that evidence 

of a relevant out-of-court identification is admissible when otherwise admissible under the Rules. The intent of the provision is to allow any 

relevant out-of-court identification without any need to comply with the condition precedent such as an in-court identification, significant change 

from the present rule as found in paragraph 153a. 

The language "if such testimony is otherwise admissible under these rules" is primarily intended to ensure compliance with the hearsay rule. 

Rule 802. It should be noted that Rule 801(d)(l)(C) states that a statement of "identification of a person made after perceiving the person" is not 

hearsay when "the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement." An eyewitness 

identification normally will be admissible if the declarant testifies. The Rule's statement, "the witness making the identification and any person 

who has observed the previous identification may testify concerning it," is not an express exception authorizing the witness to testify to an out-ofcourt identification notwithstanding the hearsay rule, rather it is simply an indication that in appropriate circumstances, see Rules 803 and 804, a 

witness to an out-of-court identification may testify concerning it. 

The last sentence of subdivision (a)(l) is intended to clarify procedure by emphasizing that an in-court identification may be bolstered by an 

out-of-court identification notwithstanding the fact that the in-court identification has not been attacked. 

(2)Exclusionary rule. Rule 321(a)(2) provides that basic exclusionary rule for eyewitness identification testimony. The substance of the Rule 

is taken from present Manual paragraph 153a as modified by the new procedure for suppression motions. See Rules 304 and 31 1. Subdivision 

(a)(2)(A) provides that evidence of an identification will be excluded if it was obtained as a result of an "unlawful identification process conducted 

by the United States or other domestic authorities" while subdivision (a)(2)(B) excludes evidence of an identification if exclusion would be 

required by the due process clause of the Fifth Amendment to the Constitution. Under the burden of proof, subdivision (d)(2), an identification is 

not inadmissible if the prosecution proves by a preponderance of the evidence that the identification process was not so unnecessarily suggestive, 

in light of the totality of the circumstances, as to create a very substantial likelihood of irreparable mistaken identity. It is the unreliability of the 

evidence which is determinative. Manson v. Brathwaite. 432 U.S. 98 (1977). "United States or other domestic authorities" includes military 

personnel. 

Although it is clear that an unlawful identification may taint a later identification, it is unclear at present whether an unlawful identification 

requires suppression of evidence other than identification of the accused. Consequently, the Rule requires exclusion of nonidentification derivative 

evidence only when the Constitution would so require. 

(b) Definition of "unlawful." 

(I) Lineups and other ident$cation processes. Rule 321(b) defines "unlawful lineups or other identification processes." When such a 

procedure is conducted by persons subject to the Uniform Code of Military Justice or their agents, it will be unlawful if it is "unnecessarily 

suggestive or otherwise in violation of the due process clause of the Fifth Amendment of the Constitution of the United States as applied to 

members of the armed forces." The expression, "unnecessarily suggestive" itself is a technical one and refers to an identification that is in 

violation of the due process clause because it is unreliable. See Manson v. Brathwaite, supra; Stovall v. Denno, 338 U.S. 292 (1967); Neil v. 

Biggers, 409 U.S. 188 (1972). SeealsoFoster v. California, 394 U.S. 440 (1969). Anidentification is not unnecessarily suggestiveinviolation of 

the due process clause if the identification process was not so unnecessarily suggestive, in light of the totality of the circumstances, as to create a 

very substantial likelihood of irreparable mistaken identity. See Manson v. Brathwaite, supra, and subdivision (d)(2). 

Subdivision (l)(A) differs from subdivision (l)(B) only in that it recognizes that the Constitution may apply differently to members of the 

armed forces than it does to civilians. 

Rule 321(b)(l) is applicable to all forms of identification processes including showups and lineups. 

(2) Lineups: right to counsel. Rule 321(b)(2) deals only with lineups. The Ruledoes declare that a lineup is "unlawful" if it is conducted in 

violation of the right to counsel. Like Rules 305 and 311, Rule 321(b)(2) distinguishes between lineups conducted by persons subject to the 

Uniform Code of Military Justice or their agents and those conducted by others. 

Subdivision (b)(2)(A) is the basic right to counsel for personnel participating in military lineups. A lineup participant is entitled to counsel 

only if that participant is in pretrial restraint (pretrial arrest, restriction, or confinement) under paragraph 20 of the Manual or has had charges 

preferred against him or her. Mere apprehension or temporary detention does not trigger the right to counsel under the Rule. This portion of the 

Rule substantially changes military law and adapts the Supreme Court's decision in Kirby v. Illinois, 406 U.S.682,689 (1972) (holding that the 

right to counsel attached only when "adversary judicial criminal proceedings" have been initiated or "the government has committed itself to 

prosecute") to unique military criminal procedure. See also Rule 305(d)(l)(B). 

Note that interrogation of a suspect will require rights warnings, perhaps including a warning of a right to counsel, even if counsel is 

unnecessary under Rule 321. See Rule 305. 

As previously noted, the Rule does not define "lineup" and recourse to case law is necessary. Intentional exposure of the suspect to one or 

more individuals for purpose of identification is likely to be a lineup. Stovall v. Denno, 388 U.S. 293, 297 (1967), although in rare cases of 

emergency (e.g. a dying victim) such an identification may be considered a permissible "showup" rather than a "lineup". Tmly accidental 

confrontations between victims and suspects leading to an identification by the victim are not generally considered "lineups"; cf:UnitedStates ex 

re1 Ragazzin v. Brierley, 321 F. Supp. 440 (W.D. Pa. 1970). Photographic identifications are not "lineups" for purposes of the right to counsel. 

United States v. Ash, 413 U.S. 300, 301 n. 2 (1973). If a photographic identification is used, however, the photographs employed should be 
ANALYSIS OF THE 1980 AMENDMENTS App. 22, M.R.E. 402 

preserved for use at trial in the event that the defense should claim that the identification was "unnecessarily suggestive." See subdivision (b)(l) 

s14pra. 

A lineup participant who is entitled to counsel is entitled to only one lawyer under the Rule and is specifically entitled to free military counsel 

without regard to the indigency or lack thereof of the participant. No right to civilian counsel or military counsel of the participant's own selection 

exists under the Rule, Unitedstates v. Wade, 388 U.S. 218, n.27 (1967). A lineup participant may waive any applicable right to counsel so long as 

the participant is aware of the right to counsel and the waiver is made "freely, knowingly, and intelligently." Normally a warning of the right to 

counsel will be necessary for the prosecution to prove an adequate waiver should the defense adequately challenge the waiver. See, e.g., United 

States v. Avers, 426 F.2d 524 (2d Cir. 1970). See also Model Rules for Law Enforcement, Eye Witness Identification, Rule 404 (1974) cited in E. 

IMWINKELRIED, P. GIANNELLI, F. GILLIGAN, & E LEDERER, CRIMINAL EVIDENCE 366 (1979). 

Subdivision (b)(2)(B) grants a right to counsel at non-military lineups within the United States only when such a right to counsel is 

recognized by "the principles of law generally recognized in the trial of criminal cases in the United States district courts involving similar 

lineups." The Rule presumes that an individual participating in a foreign lineup conducted by officials of a foreign nation without American 

participation has no right to counsel at such a lineup. 

(c) Motions to suppress and objections. Rule 321(c) is identical in application to Rule 311(d). See the Analysis to Rules 304 and 311. 

(d)Burden $prod Rule 321(d) makes it clear that when an eyewitness identification is challenged by the defense, the prosecution need reply only 

to the specific cognizable defense complaint. See also Rules 304 and 31 1. The subdivision distinquishes between defense challenges involving 

alleged violation of the right to counsel and those involving the alleged unnecessarily suggestive identifications. 

(1) Right to counsel. Subdivision (d)(l) requires that when an alleged violation of the right to counsel has been raised the prosecution must 

either demonstrate by preponderance of the evidence that counsel was present or that the right to counsel was waived voluntarily and intelligently. 

The Rule also declares that if the right to counsel is violated at a lineup that results in an identification of the accused any later identification is 

considered a result of the prior lineup as a matter of law unless the military judge determines by clear and convincing evidence that the latter 

identification is not the result of the first lineup. Subdivision (d)(l) is taken in substance from present Manual paragraph 153a. 

(2) Unecessarily suggestive ident$cation. Rule 321(d)(2) deals with an alleged unnecessarily suggestive identification or with any other 

alleged violation of due process. The subdivision makes it clear that the prosecution must show, when the defense has raised the issue, that the 

identification in question was not, based upon a preponderance of the evidence, "so unnecessarily suggestive in light of the totality of the 

circumstances, as to create a very substantial likelihood of irreparable mistaken identity." This rule is taken from the Supreme Court's decisions of 

Neil v. Biggers, 409 U.S. 188 (1972) and Stovall v. Denno, 388 U.S. 293 (1967), and unlike subdivision (d)(l), applies to all identification 

processes whether lineups or not. The Rule recognizes that thenature of the identification process itself may well be critical to the reliability of the 

identification and providers for exclusion of unreliable evidence regardless of its source. If the prosecution meets its burden, the mere fact that the 

identification process was unnecessary or suggestive does not require exclusion of the evidence, Manson v. Brathwaite, supra. 

If the identification in question is subsequent to an earlier, unnecessarily suggestive identification, the later identification is admissible if the 

prosecution can show by clear and convincing evidence that the later identification is not the result of the earlier improper examination. This 

portion of the Rule is consistent both with present Manual paragraph 153a and Kirby v. Illinois, 406 U.S. 682 (1972). 

(e) Defense evidence. Rule 321(e) is identical with the analagous provisions in Rules 304 and 31 1 and generally restates present law. 

(f)Rulings. Rule 321(f) is identical with the analagous provisions in Rules 304 and 321 and substantially changes present law. See the Analysis to 

Rule 304(d)(4). 

(g) Effect cfguilfy plea. Rule 321(g) is identical with the analagous provisions in Rules 304 and 311 and restates present law. 

Section IV. Relevancy and its Limits 

Rule 401. Definltlon of "Relevant Evldence" 

The definition of "relevant evidence" found within Rule 401 is taken without change from the Federal Rule and is substantially similar in 

effect to that used by present Manual 5 137. The Rule's definition may be somewhat broader than theManual's as the Ruledefines as relevant any 

evidence that has "any tendency to make the existence of any fact. . . more probable or less probable than it would be without the evidence" while 

the Manual defines as "not relevant" evidence "too remote to have any appreciable probative value. . . . " To the extent that the Manual's 

definition includes considerations of "legal relevance,." those considerations are adequately addressed by such other Rules as Rules 403 and 609. 

See, e.g. mLRIED, P. GIANNELLI, F.GILLIGAN & F. LEDERER, CRIMINAL EVIDENCE 62-65 (1979) [which, after defining 

"logical relevance" as involving only probative value, states at 63 that "under the rubric of 'legal relevance,' the courts have imposed an 

additional requirement that the items's probative value outweighs any attendant probative dangers."]. The Rule is similar to the present Manual in 

that it abandons any reference to "materiality" in favor of a single standard of "relevance." Notwithstanding the specific terminology used, 

however, the concept of materiality survives in the Rule's condition that to be relevant evidence must involve a fact "which is of consequence to the 

determination of the action." 

Rule 402. Relevant Evldence Generally Admlsslble; Irrelevant Evidence lnadmlsslble 

Rule 402 is taken without significant change from the Federal Rule. The Federal Rule's language relating to limitations imposed by "the 

Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory 

authority" has been replaced by material tailored to the unique nature of the Military Rules of Evidence. Rule 402 recognizes that the Constitution 
App. 22, M.R.E. 403 APPENDIX 22 

may apply somewhat differently to members of the armed forces than to civilians, and the Rule deletes the Federal Rule's reference to "other rules 

prescribed by the Supreme Court" because such Rules do not apply directly in courts-martial. See Rule 101(b)(2). 

Rule 402 provides a general standard by which irrelevant evidence is always inadmissible and by which relevant evidence is generally 

admissible. Qualified adnussibility of relevant evidence is required by the limitations in Sections I11 and V and by such other rules as 403 and 609 

which intentionally utilize matters such as degree of probative value and judicialefficiency in determining whether relevant evidence should be 

admitted. 

Rule 402 is not significantly different in its effect from ll137 of the present Manual which it replaces, and procedures used under the present 

Manual in determining relevance generally remain valid. Offers of proof are encouraged when items of doubtful relevance are proffered, and it 

remains possible, subject to the discretion of the military judge, to offer evidence "subject to later connection." Use of the latter technique, 

however, must be made with great care to avoid the possibility of bringing inadmissible evidence before the members of the court. 

It should be noted that Rule 402 is potentially the most important of the new rules. Neither the Federal Rules of Evidence nor the Military 

Rules of Evidence resolve all evidentiary matters; see, e.g., Rule 101(b). When specific authority to resolve an evidentiary issue is absent, Rule 

402's clear result is to make relevant evidence admissible. 

Rule 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion or Waste of Time 

Rule 403 is taken without change from the Federal Rule of Evidence. The Rule incorporates the concept often known as "legal relevance", 

see the Analysis to Rule 401, and provides that evidence may be excluded for the reasons stated notwithstanding its character as relevant evidence. 

The Rule vests the military judge with wide discretion in determining the admissibility of evidence that comes within the Rule. 

If a party views specific evidence as being highly prejudicial, it may be possible to stipulate to the evidence and thus avoid its presentation to 

the court-members. United States v. Grassi. 602 F.2d 1192 (5th Cir. 1979), a prosecution for interstate transportation of obscene materials, 

illustrates this point. The defense offered to stipulate that certain films were obscene in order to prevent the jury from viewing the films, but the 

prosecution declined to join in the stipulation. The trial judge sustained the prosecution's rejection of the stipulation and the Fifth Circuit upheld 

the judge's decision. In its opinion, however, the Court of Appeals adopted a case by case balancing approach recognizing both the importance of 

allowing probative evidence to be presented and the use of stipulations as a tool to implement the policies inherent in Rule 403. Insofar as the latter is 

concerned, the court expressly recognized the power of a Federal district judge to compel the prosecution to accept a defense tendered stipulation. 

Rule 404. Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes 

(a) Character evidence generally. Rule #(a) replaces present Manual ll138f and is taken without substantial change from the Federal Rule. Rule 

404(a) provides, subject to three exceptions, that character evidence is not admissible to show that a person acted in conformity therewith. 

Rule 404(a)(l) allows only evidence of a went trait of character of the accused to be offered in evidence by the defense. This is a simcant 

change from ll 138f of the present Manual which also allows evidence of "general good character" of the accused to be received in order to demonstrate 

that the accused is less likely to have committed a criminal act. Under the new rule, evidence of general good character is inadmissible because only 

evidence of a specific trait is acceptable. It is the intention of the Committee, however, to allow the defense to introduce evidence of good military 

character when that specific trait is pertinent. Evidence of good military character would be admissible, for example, in a prosecution for disobedience 

of orders. The prosecution may present evidence of a character trait only in rebuttal to receipt in evidence of defense character evidence. This is 

consistent with present military law. 

Rule 404(a)(2) is taken from the Federal Rule with minor changes. The Federal Rule allows the prosecution to present evidence of the character 

trait of peacefulness of the victim "in a homicide case to rebut evidence that the victim was the first aggressor." Thus, the Federal Rule allows 

prosecutorial use of character evidence in a homicide case in which self-defense has been raised. The limitation to homicide cases appeared to be 

inappropriate and impracticable in the militaryenvironment.All too often, assaults involving claims of self-defense take place in the densely populated 

living quarters common to military life. Whether aboard ship or within barracks, it is considered essential to allow evidence of the character trait of 

mfulness of the victim. Otherwise, a substantial risk would exist of allowing unlawful assaults to go undeterred. The Federal Rule's use of the 

expression "first aggressor" was modified to read "an aggressor," as substantive military law recognizes that even an individual who is properly 

exercising the right of self-defense may overstep and become an aggressor. The remainder of Rule 404(a)(2) allows the defense to offer evidence of a 

pertinent trait of character of the victim of a crime and restricts the prosecution to rebuttal of that trait. 

Rule 404(a)(3) allows character evidence to be used to impeach or support the credibility of a wimess pursuant to Rules 607-609. 

(b) Other crimes, wrongs, or acts. Rule 404(b) is taken without change from the Federal Rule, and is substantially similar to the present Manual rule 

found in ll 138g. While providing that evidence of other crimes, wrongs, or acts is not admissible to prove a predisposition to commit a crime, the Rule 

expressly pennits use of such evidence on the merits when relevant to another specific purpose. Rule 404(b) provides examples rather than a list of 

justifications for admission of evidence of other misconduct. Other justifications, such as the tendency of such evidence to show the accused's 

consciousness of guilt of the offense charged, expressly permitted in Manual ll 138g(4), remain effective. Such a purpose would, for example, be an 

acceptable one. Rule 404@), like Manual ll 138g, expressly allows use of evidence of misconduct not amounting to conviction. Like the Manual, the 

Rule does not, however, deal with use of evidence of other misconduct for purposes of impeachment. See Rules 608; 609. Evidence offered under Rule 

404(b) is subject to Rule 403. 

Rule 405. Methods of Proving Character 

(a)Reputation or opinion. Rule 405(a) is taken without change from the Federal Rule. The first portion of the Rule is identical in effect with the military 

rule found in 7 13831) of the present Manual. An individual teshfymg under the Rule must have an adequate relationship with the community, (see 
ANALYSIS OF THE 1980 AMENDMENTS App. 22, M.R.E. 412 

Rule 405(c)) in the case of reputation, or with the given individual in the case of opinion, in order to testify. The remainder of Rule 405(a) expressly 

p2mits inquiry or cross-examination "into relevant specific instances of conduct." This is at variance with present military practice under which such an 

inquiry is prohibited. See, e.g., f 138fl2) (Character of the accused). Reputation evidence is exempted from the hearsay rule, Rule 803(21). 

(b)Specific instances ofconduct. Rule 405(b) is taken without signticant change from the Federal Rule. Reference to "charge, claim, or defense" has 

been replaced with "offense or defense" in order to adapt the rule to military procedure and terminology. 

(c) Afjduvits. Rule 405(c) is not found within the Federal Rules and is taken verbatim from material now found in 7 146b of the present Manual. Use of 

affidavits or other written statements is requid due to the world wide disposition of the armed forces which makes it difficult if not impossible to obtain 

witnesses-paaicularly when the sole testimony of a witness is to be a brief statement relating to the character of the accused. This is pa~ticularly 

important for offenses committed abroad or in a combat zone, in which case the only witnesses likely to be necessary from the United States are those 

likely to be character witnesses. The ~ule exempts statements used under it from the hearsay rule insofar as the mere use of an affidavit or other written 

statement is subject to that rule. 

(d)Definitions. Rule 405(d) is not found within the Federal Rules of Evidence and has been included because of the unique nature of the armed forces. 

The definition of "reputation" is taken generally from present Manual 7 138Kl) and the definition of "community" is an expansion of that now found in 

the same paragraph. The definition of "community" has been broadened to add "regardless of size" to indicate that a party may proffer evidence of 

reputation within any specific military organization, whether a squad, company, division, ship, fleet, group, or wind, branch, or staff corps, for 

example. Rule 405(d) makes it clear that evidence may be offered of an individual's reputation in either the civilian or military community or both. 

Rule 406. Hablt; Routlne Practice 

Rule 406 is taken without change from the Federal Rule. It is similar in effect to 7 138h of the present Manual. It is the intent of the Committee to 

include within Rule 406's use of the word, "~rganization", military organizations regardless of size. See, e.g., Rule 405 and the Analysis to that Rule. 

Rule 407. Subsequent Remedial Measures 

Rule 407 is taken from the Federal Rule without change, and has no express equivalent in the present Manual. 

Rule 408. Compromise and Offer to Compromise 

Rule 408 is taken from the Federal Rules without change, and has no express equivalent in the present Manual. 

Rule 409. Payment of Medical and Similar Expenses 

Rule 409 is taken from the Federal Rules without change. It has no present military equivalent and is intended to be applicable to courts-martial to 

the same extent that is applicable to civilian criminal cases. Unlike Rules 407 and 408 which although primarily applicable to civil cases are clearly 

applicable to criminal cases, it is arguable that Rule 409 may not apply to criminal cases as it deals only with questions of "liability"-normally only a 

civil matter. The Rule has been included in the Military Rules to ensure its availability should it, in fact, apply to criminal cases. 

Rule 410. Inadmlsslbillty of Pleas, Dlscusslons, and Related Statements 

Rule 410 as modified effective 1 August 1981 is generally taken from the Federal Rule as modified on 1 December 1980. It extends to plea 

bargaining as well as to statements made during aprovidency inqu~ry, civilian ormilitary. E.g., United States v. Care, 18 C.M.A. 535,40 C.M.R. 247 

(1%9). Subsection (b)was added to the Rule in recognition of the unique possibility of administrative disposition, usually separation, in lieu of courtmartial. Denominated differently within the various armed forces, this administrative procedure often requires a confession as a prerequisite. As 

modified, Rule 410 protects an individual against later use of a statement submitted in furtherance of such a request for administrative disposition. The 

definition of "on the record" was required because no "record" in the judicial sense exists insofar as request for administrative disposition is concerned. 

It is the belief of the Committee that a copy ofthe written statement of the accused in such a case is, however, the functional equivalent of such a record. 

Although the expression "false statement" was retained in the Rule, it is the Committee's intent that it be construed to include all related or similar 

military offenses. 

Rule 41 1. Liablllty Insurance 

Rule 41 1 is taken from the Federal Rule without change. Although it would appear to have potential impact upon some criminal cases, e.g.,some 

negligent homicide cases, its actual application to criminal cases is uncertain. It is the Committee's intent that Rule 41 1 be applicable to courts-martial 

only to the extent that it is applicable to cMd'cases. 

Rule 412. Nonconsensual Sexual Offenses; Relevance of Vlctim's Past Behavior 

Rule 412 is taken fromthe Federal Rule. Although substantially similar in substantive scope to Federal Rule of Evidence 412, the application of the 

Rule has been somewhat broadened and the procedural aspects of the Federal Rule have been modified to adapt them to military practice. 

Rule 412 is intended to shield victims of sexual assaults from the often embarassing and degrading cross-examination and evidence presentations 

common to prosecutions of such offenses. In so doing, it recognizes that the present rule, which it replaces, often yields evidence of at best minimal 

probative value with great potential for distraction and incidentally discourages both the reporting and prosecution of many sexual assaults. In replacing 

the unusually extensive ~ule now found in Manual 7 153b(2)(b), which pennits evidence of the victim's "unchaste" character regardless of whether he 

or she has testified, the Rule will significantly change present military and will restrict defense evidence. The Rulerecognizes, however, in Rule 

412(b)(l) the fundamental right of the defense under the Fifth Amendment to the Constitution of the United States to present relevant defense evidence 
App. 22, M.R.E. 501 APPENDIX 22 

by admitting evidence that is "constitutionally requiredto be admitted." Further, it is the Committee's intent that the Rule not be interpreted as a rule of 

absolute privilege. Evidence that is constitutionally required to be admitted on behalf of the defense remains admissible notwithstanding the absence of 

express authorization in Rule412(a).'It is unclear whether reputation or opinion evidence in this area will rise to a level of constitutional magnitude, and 

great care should be taken with respect to such evidence. 

Rule 412 applies to a "nonconsensual sexual offense" rather than only to "rape or assault with intent to commit rape" as prescribed by the Federal 

Rule. The definition of "nonconsensual sexual offense" is set forth in Rule 412(e) and "includes rape, forcible sodomy, assault with intent to commit 

rape or forcible sodomy, indecent assault, and attempts to commit such offenses." This modification to the Federal Rule resulted from a desire to apply 

the social policies behind the Federal Rule to the unique militaryenvironment. Military life requires that large numbers of young men and women live 

and work together in close quarters which are often highly isolated. The detemnce of sexual offenses in such circumstances is critical to military 

efficiency. There is thus no justification for limiting the scope of the Rule, intended to protect human dignity and to ultimately encourage the reporting 

and prosecution of sexual offenses, only to rape andlor assault with intent to commit rape. 

Rule 412(a) generally prohibits reputation or opinion evidence of an alleged victim of a nonconsensual sexual offense. 

Rule 412(b)(l) recognizes that evidence of a victim's past sexual behavior may be constitutionally requid to be admitted. Although there are a 

number circumstances in which this language may be applicable, see, e.g., S. SALTZBURG &K. REDDEN, FEDERAL RULES OF EVIDENCE 

MANUAL 92-93 (2d ed. Supp. 1979), giving examples of potential constitutional problems offered by the American Civil Liberties Union during the 

House hearings on Rule 41 2, one may be of particular interest. If an individual has contracted for the sexual s e p 

perfo~rnance of the act the prostitute demands increased payment on pain of claiming rape, for example, the past histo~y of that person will likely be 

constitutionally required to be admitted in a subsequent prosecution in which the defense claims consent to the extent that such history is relevant and 

otherwise admissible to corroborate the defense position. Absent such peculiar circumstances, however, the past sexual behavior of the alleged victim, 

not within the scope of Rule412(b)(2), is unlikely to be admissible regardless of the past sexual tory. The mere fact that an individual is a prostitute is 

not normally admissible under Rule 412. 

Evidence of past false complaints of sexual offenses by an alleged victim of a sexual offense is not within the scope of this rule and is not 

objectionable when otherwise admissible. 

Rule 412(c) provides the procedural mechanism by which evidence of past sexual behavior of a victim may be offered. The Rule has been 

substantially modified from the Federal Rule in order to adapt it to military practice. The requirement that notice be given not later than fifteen days 

before trial has been deleted as being impracticable in view of the necessity for speedy disposition of militarycases. For similar reasons, the requirement 

for a written motion has been omitted in favor of an offer of proof, which could, of course, be made in writing, at the discretion of the militaryjudge. 

Reference to hearings in chambers has been deleted as inapplicable; a hearing under Article 39(a), which may be without spectators, has been 

substituted. The propriety of holding a hearing without spectatom is dependent upon its constitutionality which is in turn dependent upon the facts of any 

specific case. 

Although Rule 412 is not per se applicable to such pretrial pmedwes as Article 32 and Court of Inquiry hearings, it may be applicable via Rule 

303 and Article 31(c). See the Analysis to Rule 303. 

It should be noted as a matter related to Rule 412 that the present Manual's prohibition in ll 153a of convictions for sexual offenses that rest on the 

uncorroborated testimony of the alleged victim has been deleted. Similarly, an express hearsay exception for fresh complaint has been deleted as being 

unnecessary. Consequently, evidence of fresh complaint will be admissible under the Military Rule only to the extent that it is either nonhearsay, see, 

e.g., Rule 801(d)(l)(B), or fits within an exception to the hearsay rule. See, e.g., subdivisions (I), (2), (3), (4), and (24) of Rule 803. 

Section V. Privileges 

Rule 501. General Rule 

Section V contains all of the privileges applicable to mil~tarycriminal law except for those privileges which are found within Rules 301, Privilege 

Concerning Compulsory Self-Incrimination; Rule 302, Privilege Concerning Mental Examination of an Accused; and Rule 303, Degrading Questions. 

Wvilege rules, unlike other Military Rules of Evidence, apply in "investigative hearings pursuant to Article 32; proceedings for vacation of suspension 

of sentence under Article 72; proceedings for search authorization; pdgs involving pretrial restraint; and in other proceedings authorized under 

the Uniform Code of Military Justice or this Manual and not listed in Rule 1101(a)." See Rule 1101(c); see also Rule 1101(b). 

In contrast to the general acceptance of the proposed Federal Rules of Evidence by Congress, Congress did not accept the proposed privilege rules 

because a consensus as to the desirability of a number of specific privileges could not be achieved. See generally, S. SALTZBURG &K. REDDEN, 

FEDERAL RULES OF EVIDENCE MANUAL 200-201 (2d ed. 1977). In an effort to expedlte the Federal Rules generally, Congress adopted a 

general rule, Rule 501, which basically provides for the continuation of common law in the privilege area. The Committee deemed the approach taken 

by Congress in the Federal Rules impracticable within the armed forces. Unlike the Article ILI court system, which is conducted almost entirely by 

attorneys functioning in conjunction with permanent courts in fixed locations, the militarycriminal legal system is characterized by its dependence upon 

large numbers of laymen, temporary courts, and inherent geographical and personnel instability due to the worldwide deployment of military 

personnel. Consequently, military law requires far more stability than civilian law. This is particularly true because of the significant number of nonlawyers involved in the militarycriminal legal system. Commanders, convening authorities, non-lawyer investigating officers, summary court-martial 

officers, or law enforcement perso~el need specific guidance as to what material is privileged and what is not. 

SectionV combines the flexible approach taken by Congress with respect to privileges with that provided in the present Manual. Rules 502-509 set 

forth specific rules of privilege to provide the certainty and stability necessary for militaryjustice. Rule 501, on the other hand, adopts those privileges 

recogwed in common law pursuant to Federal Rule of Evidence 501 with some limitations. Specific privileges are generally taken fromthose proposed 

Federal Rules of Evidence which although not adopted by Congress were non-controversial, or from the present Manual. 
ANALYSIS OF THE 1980 AMENDMENTS App. 22, M.R.E. 502(c) 

Rule 501 is the basic rule of privilege. In addition to recognizing privileges required by or provided for in the Constitution, an applicable Act of 

Congress, the Military Rules of Evidence, and the Manual for Courts-Martial, Rule 501(a) also recognizes privileges "generally recogwed in the trial 

of criminal cases in the United States district courts pursuant to Rule 501 of the Federal Rules of Evidence insofar as the application of such principles in 

trials by court-martial is practicable and not conhzlry to or inconsistent with the Uniform Code of Military Justice, these rules, or this Manual." The latter 

language is taken from present Manual ll 137. As a result of Rule 501(a)(4), the common law of privileges as recognized in the Article III courts will be 

applicable to the armed forces except as otherwise provided by the limitation indicated above. Rule 501(d) prevents the application of a doctor-patient 

privilege. Such a privilege was considered to be totally incompatible with the clear interest of the armed forces in ensuring the health and fitness for duty 

of personnel. See present Manual 7 151c. The privilege expressed in Rule 302 and its conforming Manual change in 7 121, is not a doctor-patient 

privilege and is not affected by Rule 501(d). 

It should be noted that the law of the forum determines the application of privilege. Consequently, even if a service member should consult with a 

doctor in a jurisdiction with a doctor-patient privilege for example, such a privilege is inapplicable should the doctor be called as a witness before the 

court-martial. 

Subdivision (b) is a non-exhaustive list of actions which constitute an invocation of a privilege. The subdivision is derived from Federal Rule of 

Evidence 501 as originally proposed by the Supreme Court, and the four specific actions listed are also found in the Uniform Rules of Evidence. The list 

is intentionally non-exclusive as a privilege might be claimed in a fashion distinct from those listed. 

Subdivision (c) is derived from Federal Rule of Evidence 501 and makes it clear that an appropriate representative of apolitical jurisdiction or other 

organizational entity may claim an applicable privilege. The definition is intentionally non-exhaustive. 

Rule 502. Lawyer-Client Privilege 

(a) General rule @privilege. Rule 502(a) continues the substance of the attorney-client privilege now found in 7 lSlb(2) of the present Manual. The 

Rule does, however, provide additional detail. Subdivision (a) is taken verbatim from subdivision (a) of Federal Rule of Evidence 503 as proposed by the 

Supreme Court. The privilege is only applicable when there are "confidential communications made for the purpose of facilitating the rendition of 

professional legal services to the client." A mere discussion with an attorney does not invoke the privilege when the discussion is not made for the 

purpose of obtaining professional legal services. 

(1) Client. Rule 502(b)(l) defines a "client" as an individual or entity who receives professional legal services from a lawyer or consults a lawyer 

with a view to obtaining such services. The definition is taken from proposed Federal Rule 503(a)(l) as B 151b(2) of the present Manual lacks any 

general definition of a client. 

(2)Lawyer. Rule 502(b)(2) defines a "lawyer." The first portion of the paragraph is taken from proposed Federal Rule of Evidence 503(a)(2) and 

explicitly includes any person "reasonably believed by the client to be authorized" to practice law. The second clause is taken from present Manual 

Il 151b(2) and recognizes that a "lawyer" includes "a member of the armed forces detailed, assigned, or otherwise provided to represent a person in a 

court-martial case or in any military investigation or proceeding" regardless of whether that person is in fact a lawyer. See Article 27. Thus an accused is 

fully protected by the privilege even if defense counsel is not an attorney. 

The second sentence of the subdivision recognizes the fact, particularly hue during times of mobilization, that attorneys may serve in the med 

forces in anonlegal capacity. In such acase, the individual involved is not treated as an attomey under the Rule unless the individual fits within one of the 

three specific categories recognized by the subdivision. Subdivision (b)(2)(b) recognizes that a servicemember who hows that an individual is a lawyer 

in civilian life may not know that the lawyer is not functioning as such in the armed forces and may seek professional legal assistance. In such a case the 

privilege will be applicable so long as the individual was "reasonably believed by the client to be authorized to render professional legal services to 

members of the armed forces." 

(3)Representative @a lawyer. Rule 502(b)(3) is taken from proposed Federal Rule of Evidence 503(a)(3) but has been modified to recognize that 

personnel are "assigned" within the armed forces as well as employed. Depending upon the particular situation, a paraprofessional or secretary may be 

a "representative of a lawyer." See 7 151b(2) of the present Manual. 

(4) Conjdential communication. Rule 502@)(4) defines a "confidential" communication in terms of the intention of the party making the 

communication. The Rule is similar to the substance of present Manual ll 15 1 b(2) which omits certain communications from privileged status. The new 

Rule is somewhat broader than the present Manual's provision in that it protects mformation which is obtained by a third party through accident or design 

when the person claiming the privilege was not aware that a third party had access to the communication. Compare Rule ll 151a of the present Manual. 

The broader rule has been adopted for the reasons set forth in the Advisory Committee's notes on proposed Federal Rule 504(a)(4). The provision 

permitting disclosure to persons in furtherance of legal services or reasonably necessary for the transmission of the communication is similar to the 

provision in the current Manual for communications through agents. 

Although ll 151c of the present Manual precludes a claim of the privilege when there is transmission through wire or radio communications, the 

new Rules protect statements made via telephone, or, "if use of such means of communication is necessary and in furtherance of the communication," 

by other "electronic means of communication." Rule 511(b). 

(c) Who may claim the privilege. Rule 502(c) is taken from proposed Federal Rule 503(b) and expresses who may claim the lawyer-client privilege. 

The Rule is similar to but slightly broader than 7 151 b(2) of the present Manual. The last sentence of the subdivision states that "the authority of the 

lawyer to claim the privilege is presumed in the absence of evidence to the contrary." 

The lawyer may claim the privilege on behalf of the client unless authority to do so has been withheld from the lawyer or evidence otherwise exists 

to show that the lawyer lacks the authority to claim the privilege. 
App. 22, M.R.E. 502(d) APPENDIX 22 

(d) Exceptions. Rule 502(d) sets forth the circumstances in which the lawyer-client privilege will not apply notwithstanding the general application of 

the privilege. 

Subdivision (d)(l) excludes statements contemplating the future commission of nime or fraud and combines the substance of present Manual 

7 15 1 b(2) with proposed Federal Rule of Evidence 503(d). Under the exception a lawyer may disclose information given by a client when it was part of a 

"communication [which] clearly contemplated the futurecommission of a crime or fraud," and a lawyer may also disclose infodon when it can be 

objectively said that the lawyer's services "were sought or obtained to commit or plan to commit what the client knew or reasonably should have known 

to be a crime or fraud." The latter portion of the exception is likely to be applicable only after the commission of the offense while the former is 

applicable when the communication is made. 

Subdivisions (d)(2) through (d)(5) provide exceptions with respect to claims through the same deceased client, breach of duty by lawyer of client, 

documents attested by lawyes, and communications to an attorney in a matter of common interest among joint clients. There areno parallel provisions 

in the present Manual for these rules which are taken from proposed Federal Rule 503(d). The provisions areincluded in the event that the circumstances 

described therein arise in the military practice. 

Rule 503. Communlcatlons to Clergy 

(a) General rule ofprivilege. Rule 503(a) states the basic rule of privilege for communications to clergy and is taken from proposed Federal Rule of 

Evidence 06(b)and present Manual paragraph 151b(2). Like the present Manual, the Rule protects communications to a clergyman's assistant in 

specific re 3, gnition of the nature of the military chaplaincy, and deals only with communications "made either as a formal act of religion or as a matter of 

conscience." 

(b) Definitions. 

(1)Clergyman.Rule 503(b)(l) is taken from proposed Federal Rule of Evidence 506(a)(l) but has been modified to include specific reference to a 

chaplain. The Rule does not deline "a religious organization" and leaves resolution of that question to precedent and the circumstances of the case. 

"Clergyman" includes individuals of either sex. 

(2) Confrdential. Rule 503(b)(2) is taken generally from proposed Federal Rule of Evidence 506(a)(2) but has been expanded to include 

communications to a clergyman's assistant and to explicitly protect disclosure of a privileged communication when "disclosure is in furtherance of the 

purpose of the communication or to those reasonably necessary for the transmission of the communication." The Rule is thus consistent with the 

definition of "confidential" used in the lawyer-client privilege, Rule 502(b)(4), and recognizes that military life often requires transmission of 

communications through thirdparties. The proposed Federal Rule's limitation of the privilege to communications made "privately" was deleted in favor 

of the language used in the actual Military Rule for the reasons indicated. The Rule is somewhat more protective than the present Manual because of its 

application tistatements which althoughintended to be confidential are overheard by others. See ~ulei502(b)(4) and 510(a) and the Analysis thereto. 

(c) Who may claim the privilege. Rule 503(c) is derived from proposed Federal Rule of Evidence 506(c) and includes the substance of presedManua1 

paragraph 151b(2) which provides that the privilege may be claimed by the "penitent." The Rule supplies additional guidance as to who may actually 

claim the privilege and is consistent with the other Military Rules of Evidence relating to privileges. See Rules 502(c); 504(b)(3); 505(c); 506(c). 

Rule 504. Husband-Wlfe Privilege 

(a) Spousal incapaciry. Rule 504(a) is taken generally from Trammel v. United States, 445 U.S. 40 (1980) and significantly changes military law in 

tlus area. Under present law, see present Manual paragraph 148e, each spouse has a privilege to prevent the use of the other spouse as an adverse 

witness. Under the new mle, the witness' spouse is the holder of the privilege and may choose to testify or not to testify as the witness' spouse sees 

fit. But see Rule 504(c) (exceptions to the privilege). Implicit in the rule is the presumption that when a spouse chooses to testify against the other 

spouse the maniage no longer needs the protection of the privilege. Rule 504(a) must be distinguished from Rule 504(b), Confidential 

communication made during marriage, which deals with communications rather than the ability to testify generally at trial. 

Although the witness spouse ordinarily has a privilege to refuse to teshfy against the accused spouse, under certain circumstances no privilege may 

exist, and the spouse may be compelled to test@. See Rule 504(c). 

(b) Confrdential communication made during marriage. Rule 504@) deals with communications made during a maniage and is distinct from a 

spouse's privilege to refuse to teshfy pursuant to Rule 504(a). See present Manual paragraph 151 b(2). 

(1) General rule ofprivilege. Rule 504@)(1) sets forth the general rule of privilege for confidential spousal communications and provides that a 

spouse may prevent disclosure of any confidential spousal communication made during marriage even though the parties are no longer married at the 

time that disclosure is desired. The accused may always require that the confidential spousal communication be disclosed. Rule 504(b)(3). 

No privilege exists under subdivision (b) if the communication was made when the spouses were legally separated. 

(2) Definition. Rule 504(b)(2) defines "confidential" in a fashion similar to the definition utilized in Rules 502(b)(4) and 503(b)(2). The word 

"privately" has been added to emphasize that the presence of third parties is not consistent with the spousal privilege, and the reference to thirdparties 

found in Rules 502 and 503 has been omitted for the same reason. Rule 504(b)(2) extends the definition of "confidential" to statements disclosed to 

third parties who are "reasonably necessary for transmission of the communication." This recognizes that circumstances may arise, especially in 

militarylife, where spouses may be separated by great distances or by operational activities, in which transmission of a communication via thirdparties 

may be reasonably necessary. 

(3) Who may claim the privilege. Rule 504(b)(3) is consistent with present Manual paragraph 151b(2) and gives the privilege to the spouse who 

made the communication. The accused may, however, disclose the communication even though the communication was made to the accused. 

(c) Exceptions. 
ANALYSIS OF THE 1980 AMENDMENTS App. 22, M.R.E. 505(h) 

(1) Spouse incapacity only. Rule 504(c)(l) provides exceptions to the spousal incapacity rule of Rule 504(a). The rule is taken from present 

Manual paragraph 148e and declares that a spouse may not refuse to teshfy against the other spouse when the marriage has been terminated by divorce or 

annulment. Annulment has been added to the present military rule as being consistent with its purpose. Separation of spouses via legal separation or 

otherwise does not affect the privilege of a spouse to refuse to teshfy against the other spouse. For other circumstances in which a spouse may be 

compelled to test@ against the other spouse, see Rule 504(c)(2). 

Confidential communications are not affected by the termination of a marriage. 

(2) Spousal incapacity and conjidential communications. Rule 504(c)(2) prohibits application of the spousal privilege, whether in the form of 

spousal incapacity or in the form of a confidential communication, when the circumstances specified in paragraph (2) are applicable. Subparagraphs (A) 

and (C) deal with anti-marital acts, e.g., acts which are against the spouse and thus the marriage. The Rule expressly provides that when such an act is 

involved a spouse may not refuse to teshfy. This provision is taken from proposed Federal Rule 505(c)(l) and reflects in part the Supreme Court's 

decision in Wyatt v. United States, 362 U.S. 525 (1960). See also Trammel v. United States, 445 U.S. 40 at n.7 (1980). The Rule thus recognizes 

society's overriding interest in prosecution of anti-marital offenses and the probability that a spouse may exercise sufficient control, psychological or 

otherwise, to be able to prevent the other spouse from teshfymg voluntarily. The Rule is similar to present Manual paragraph 148e but has deleted the 

Manual's limitation of the exceptions to the privilege to matters occurring after marriage or otherwise unknown to the spouse as being inconsistent with 

the intent of the exceptions. 

Rule 504(c)(2)(B) is derived from paragraphs 148e and 1516(2) of the present Manual. The provision prevents application of the privilege as to 

privileged communications if the marriage was a sham at the time of the communication, and prohibits application of the spousal incapacity privilege if 

the marriage was begun as a sham and is a sham at the time the testimony of the witness is to be offered. Consequently, the Rule recognizes for purposes 

of subdivision (a) that a marriage that began as a sham may have ripened into a valid marriage at a later time. The intent of the provision is to prevent 

individuals from marrying witnesses in order to effectively silence them. 

Rule 505. Classified Information 

Rule 505 is based upon H.R. 4745,96th Cong., 1st Sess. (1979), which was proposed by the Executive Branch as a response to what is known as 

the "graymail" problem in which the defendant in a criminal case seeks disclosure of sensitive national security information, the release of which may 

force the government to discontinue the prosecution. The Rule is also based upon the Supreme Court's discussion of executive privilege in United States 

v. Reynolds, 345 U.S. 1 (1953) and United States v. Nixon, 41 8 U.S. 683 (1974). The Rule attempts to balance the interests of an accused who desires 

classified information for his or her defense and the interests of the government in protecting that information. 

(a) General rule ofprivilege. Rule 505(a) is derived from United States v. Reynolds, 345 U.S. 1 (1953) and present Manual paragraph 151. Classified 

information is only privileged when its "disclosure would be detrimental to the national security." 

(b) Definitions. 

(1) Classified information. Rule 505(b)(l) is derived from section 2 of H.R. 4745. The definition of "classified information" is a limited one and 

includes only that information protected "pursuant to an executive order, statute, or regulation," and that material which constitutes restricted data 

pursuant to 42 U.S.C. 2014(y) (1976). -

(2) National security. Rule 505(b)(2) is derived from section 2 of H.R. 4745. 

(c) Who may claim the privilege. Rule 505(c) is derived from present paragraph 151 of the Manual and is consistent with similar provisions in the other 

privilege rules.See, e.g., Rule 501 (c). The privilege may be claimed only "by the head of the executive or military department or government agency 

concerned" and then only upon "a finding that the information is properly classified and that disclosure would be detrimental to the national security." 

Although the authority of a witness or trial counsel to claim the privilege is presumed in the absense of evidence to the contrary, neither a witness nor a 

trial counsel may claim the privilege without prior direction to do so by the appropriate department or agency head. Consequently, exmted 

coordination with senior headquarters is advised in any situation in which Rule 505 appears to be applicable. 

(d)Action prior to referral ofcharges. Rule 505(d) is taken from section 4(b)(l) of H.R. 4745. The provision has been modified to reflect the fact that 

pretrial discovery in the armed forces, prior to referral, is officially conducted through the convening authority. The convening authority should disclose 

the maximum amount of requested information as appears reasonable under the circumstances. 

(e) Pretrial session. Rule 505(e) is derived from section 3 of H.R. 4745. 

(f) Action after referral ofcharges. Rule 505(f) provides the basic procedure under which the government should respond to a determination by the 

military judge that classified information "apparently contains evidence that is relevant and material to an element of the offense or a legally cognizable 

defense and is otherwise admissible in evidence." See generally the Analysis to Rule 507(d). 

It should be noted that the govemment may submit information to the military judge for in camera inspection pursuant to subdivision (i). If the 

defense requests classified information that it alleges is "relevant and material. . .," and the government refuses to disclose the information to the 

military judge for inspection, the military judge may presume that the mformation is in fact "relevant and material. . . ." 

(g)Disclosure ofclassified information to the accused. Paragraphs (1) and (2) of Rule 505(g) are derived from section4 of H.R. 4745. Paragraph (3) is 

taken from section 10 of H.R. 4745 but has been modified in view of the different application of the Jencks Act, 18 U.S.C. $ 3500 (1976) in the armed 

forces. hagraph (4) is taken from sections 4(b)(2) and 10 of H.R. 4745. The reference in H.R. 4745 to a recess has been deleted as being unnecessary 

in view of the military judge's inherent authority to call a recess. 

QNotice ofthe accused's intention to disclose classiJied information. Rule 50501) is derived from section 5 of H.R. 4745. The intent of the provision 

is to prevent disclosure of classified information by the defense until the government has had an opportunity to determine what position to take 
App. 22, M.R.E. 505(1) APPENDIX 22 

concerning the possible disclosure of that information. Pumant to Rule 505(h)(5), failure to comply with subdivision (h) may result in a prohibition on 

the use of the information involved. 

(i)In cameraproceedings for cases involving classified information. Rule 505(i) is derived generally from section 5 of H.R. 4745. The "in camera" 

procedure utilized in subdivision (i) is generally new to military law. Neither the accused nor defense counsel may be excluded from the in camera 

pmeedmg. However, nothing within the Rule requires that the defense be provided with a copy of the classified material in question when the 

government submits such information to the militaryjudge pursuant to Rule 505(i)(3) in an effort to obtain an in camera proceeding under this Rule. If 

such information has not been disclosed previously, the govemment may describe the information by generic category, rather than by identifying the 

information. Such description is subject to approval by the military judge, and if not sufficiently specific to enable the defense to proceed during the in 

camera session, the military judge may order the government to release the information for use during the proceeding or face the sanctions under 

suwivision (i)(4)Q. 

6) Introduction @classified information. Rule 5056) is derived from section 8 of H.R. 4745 and United Stares v. Grunden, 2 M.J. 116 (C.M.A. 

1977). 

(k)Securityprocedures to safeguard against compromise ofclassified information disclosed to courts-martial. Rule 505(k) is derived from section 

9 of H.R. 4745. 

Rule 506. Government lnformatlon Other Than Classlfied Information 

(a) General rule qfprivilege. Rule 506(a) states the general rule of privilege for nonclassified government mformation. The Rule recognizes that in 

certain extraordinary cases the government should be able to prohibit release of government information which is detrimental to the public interest. The 

Rule is modeled on Rule 505 but is more limited in its scope in view of the greater limitations applicable to nonclassified information. Compare United 

States v. Nixon, 418 U.S. 683 (1974) with United States v. Reynolds, 345 U.S.1 (1953). Rule 506 addresses those similar matters found in present 

Manual paragraphs 151b(1) and 151b(3). Under Rule 506(a) information is privileged only if its disclosure would be "detrimental to the public 

interest." It is important to note that pursuant to Rule 506(c) the privilege may be claimed only "by the head of the executive or military department or 

government agency concerned" unless investigations of the Inspectors General are concerned. 

Under Rule 506(a) there is no privilege if disclosure of the information concerned is required by an Act of Congress such as the Freedom of 

Information Act, 5 U.S.C. 5 552 (1976). Disclosure of information will thus be broader under the Rule than under the present Manual. See United 

States v. Nixon, 418 U.S. 683 (1974). 

(b) Scope. Rule 506(b) defines "Government information'' in a nonexclusive fashion, and expressly states that classified information and information 

relating to the identity of informants are solely within the scope of other Rules. 

(c) Who may claim the privilege. Rule 506(c) distinguishes between government information in general and investigations of the Inspectors General. 

While the privilege for the latter may be claimed "by the authority ordering the investigation or any superior authority," the privilege for other 

government information may beclaimed only "by the head of the executive or military department or government agency concerned." See generally 

the Analysis to Rule 505(c). 

(d)Action prior to referral @charges. Rule 506(d) specifies action to be taken prior to refed of charges in the event of a claim of privilege under the 

Rule. See generally Rule 505(d) and its Analysis. Note that disclosures can be withheld only if action under paragraphs (1H4) of subdivision (d) 

cannot be made "without causing identifiable damage to the public interest." [Emphasis added]. 

(e)Action after referral @charges. See generally Rule 505(f) and its Analysis. Note that unlike Rule 505(f), however, Rule 506(e) does not requirea 

finding that failure to disclose the information in question "would materially prejudice a substantial right of the accused." Dismissal is required when the 

relevant information is not disclosed in a "reasonable period of time." 

(f) Pretrial session. Rule 506(f) is taken from Rule 505(e). It is the intent of the Committee that if classified information arises during a proceeding 

under Rule 506, the pdures of Rule 505 will be used. 

(g)Disclosure @government information to the accused. Rule 506(g) is taken from Rule 505(g) but deletes references to classified information and 

clearances due to their inapplicability. 

(h) Prohibition against disclosure. Rule 50601) is derived from Rule 505(h)(4). The remainder of Rule 505(h)(4) and Rule 505(h) generally has been 

omitted as being unnecessary. No sanction for violation of the requirement has been included. 

(i)In carneraproceedings. Rule 506(i) is taken generally from Rule 505(i), but the standard involved reflects present Manual paragraph 151 and the 

Supreme Court's decision in United States v. Nixon, 418 U.S. 683 (1974). In line with Nixon, the burden is on the party claiming the privilege to 

demonsfme why the information involved should not be disclosed. References to classified material have been deleted as being inapplicable. 

(i)Introduction @government information subject to a claim ofprivilege. Rule 5066) is derived from Rule 5056) with appropriate modifications 

being made to reflect the nonclassified nature of the information involved. 

O Procedures to safeguard against compromise ofgovernment information disclosed to courts-martial. Rule 5060 is derived from Rule 505@). 

Such procedures should reflect the fact that material privileged under Rule 506 is not classified. 

Rule 507. ldentlty of Informant 

(a) Rule @privilege. Rule 507(a) sets forth the basic rule of privilege for informants and contains the substance of present Manual paragraph 151b(l). 

The new Rule, howeve6 provides greater detail as to the application of the privilege than does the present Manual. 
ANALYSIS OF THE 1980 AMENDMENTS App. 22, M.R.E. 51 1 

The privilege is that of the United States or political subdivision thereof and applies only to information relevant to the identity of an informant. An 

"infonnant" is simply an individual who has supplied "information resulting in an investigation of a possible violation of law" to a proper person and 

thus includes good citizen reports to command or police as well as the traditional "confidential informants" who may be consistent sources of 

information. 

(b) Whomay claim the privilege. Rule 507(b) provides for claiming the privilege and distinguishes between representatives of the United States and 

representatives of a state or subdivision thereof. Although an appropriate representative of the United States may always claim the privilege when 

applicable, a representative of a state or subdivision may do so only if the information in question was supplied to an officer of the state or subdivision. 

The Rule is taken from proposed Federal Rule of Evidence 510(b), with appropriate modifications, and is similar in substance to paragraph 151b(l) of 

the present Manual which permits "appropriate governmental authorities" to claim the privilege. 

The Rule does not spec* who an "appropriate representative" is. Normally, the trial counsel is an appropriate representative of the United States. 

The Rule leaves the question open, however, for case by case resolution. Regulations could be promulgated which could spec@ who could be an 

appropriate representative. 

(c) Exceptions. Rule 507(c) sets forth the circumstances in which the privilege is inapplicable. 

(1) Voluntary disclosures; informant as witness. Rule 507(c)(l) makes it clear that the privilege is inapplicable if circumstances have nullified its 

justification for existence. Thus, there is no reason for the privilege, and the privilege is consequently inapplicable, if the individual who would have 

cause to resent the informant has been made aware of the informant's identity by a holder of the privilege or by the informant's own action or when the 

witness testifies for the prosecution thus allowing that person to ascertain the informant's identity. Th~s isin accord with the intent of the privilege which 

is to protect informants from reprisals. The Rule is taken from paragraph 151b(l) of the present Manual. 

(2) Testimony on the issue ofguilt or innocence. Rule 507(c)(2) is taken from present Manual paragraph 1516(1) and recognizes that in certain 

circumstances the accused may have a due process right under the Fifth Amendment, as well as a similar right under the Uniform Code of Military 

Justice, to call the informant as a witness. The subdivision intentionally does not spec* what circumstances would require calling the informant and 

leaves resolution of the issue to each individual case. 

(3) Legaliry of obtaining evidence. Rule 507(c)(3) is new. The Rule recognizes that circumstances may exist in which the Constitution may 

require disclosure of the identity of an informant in the context of determinng the legality of obtaining evidence under Rule 31 1; see, e.g., Franks v. 

Delaware, 438 U.S. 154, 170 (1978); McCray v. Illinois, 386 U.S. 300 (1967) (both cases indicate that disclosure may be required in certain 

unspecified circumstances but do not in fact require such disclosure). In view of the highly unsettled nature of the issue, the Rule does not spec* 

whether or when such disclosure is mandated and leaves the determination to the military judge in light of prevailing case law utilized in the trial of 

criminal cases in the Federal district courts. 

(d)Procedures. Rule 507(d) sets forth the procedures to be followed in the event of a claim of privilege under Rule 507. If the prosecution elects not to 

disclose the identity of an informant when the judge has determined that disclosure is required, that matter shall be reported to the convening authority. 

Such a report isrequired so that the convening authority may determine what action, if any, should be taken. Such actions could include disclosure of the 

informant's identiv, withdrawal of charges, or some appropriate appellate action. 

Rule 508. Political Vote 

Rule 508 is taken from proposed Federal Rule of Evidence 507 and expresses the substance of 18 U.S.C. 5 596 (1976) which is applicable to the 

armed forces. The privilege is considered essential for the armed forces because of the unique nature of military life. 

Rule 509. Dellberatlons of Courts and Juries 

Rule 509 is taken from present Manual 7 151 but has been modified to ensure conformity with Rule 606(b) which deals specifically with 

disclosure of deliberations in certain cases. 

Rule 510. Waiver of Privilege by Voluntary Disclosure 

Rule 510 is derived from proposed Federal Rule of Evidence 51 1 and is similar in substance to present Manual paragraph 151a which notes that 

privileges may be waived. Rule 5 10(a) simply provides that "disclosure of any significant part of the matter or communication under such circumstances 

that it would be inappropriate to claim the privilege" will defeat and waive the privilege. Disclosure of privileged matter may be, however, itself 

privileged, see Rules 502(b)(4); 503(b)(2); 504@)(2). Information disclosed in the form of an otherwise privileged telephone call (e.g.,information 

overheard by an operator) is privileged, Rule 511(b), and information disclosed via transmission using other forms of communication may be 

privileged; Rule 51 I@). Disclosure under ceh, circumstances may not be "inappropriate" and the information will retain its privileged character. 

Thus, disclosure of an informant's identity by one law enforcement agency to another may well be appropriate and not render Rule 507 inapplicable. 

Rule 510(b) is taken from present 7 151b(l) of the Manual and makes it clear that testimony pursuant to a grant of immunity does not waive 

the privilege. Similarly, an accused who testifies in his or her own behalf does not waive the privilege unless the accused testifies voluntarily to the 

privileged matter of communication. 

Rule 511. Prlvlleged Matter Disclosed Under Compulslon or Wlthout Opportunity to Claim Privilege 

Rule 51 l(a) is similar to proposed Federal Rule of Evidence 512. Placed in the context of the definition of "confidential" utilized in the privilege 

rules, see, e.g., Rule 502(b)(4), the Rule is substantially different from present military law inasmuch as present law permits utilization of privileged 

information which has been gained by a third party through accident or design. See present Manual II 151b(l). Such disclosures are generally 
App. 22, M.R.E. 512 APPENDIX 22 

safeguarded against via the definition of "confidential" used in the new Rules. Generally, the Rules aremore protective of privileged information than is 

the present Manual. 

Rule 51 l(b) is new and deals with elec&onic transmission of information. It recognizes that the nature of the armedforces today often requires such 

information transmission. Like present Manual paragraph 151 b(l), the new Rule does not make a nonprivileged communication privileged; rather, it 

simply safeguards already privileged information under certain circumstances. 

The first portion of subdivision(b) expressly provides that otherwise privileged information transmitted by telephone remains privileged. This is in 

recognition of the role played by the telephone in modern life and particularly in the armed forces where geographical separations are common. The 

Committee was of the opinion that legal business cannot be transacted in the 20th century without customary use of the telephone. Consequently, 

privileged communications transmitted by telephone are protected even though those telephone conversations areknown to be monitored for whatever 

PurF'ose. 

Unlike telephonic communications, Rule 511(b) protects other forms of electronic communication only when such means "is necessary and in 

furtherance of the communication." It is irrelevant under thwhether the communication in question was in fact necess. The only relevant 

question is whether, once the individual decided to communicate, the means of communication was necessary and in furtherance of the communication. 

Transmission of information by radio is a means of communication that must be tested under this standard. 

Rule 512. Comment Upon or Inference from Claim of Privilege; Instruction 

(a) Comment or inference not permitted. Rule 512(a) is derived from proposed Federal Rule 513. The Rule is new to military law but is generally in 

accord with the Analysis of Contents of the present Manual; United States Department of the Army, hphlet No. 27-2, Analysis of Contents, Manual 

for Courts-Martial 1969, Revised Edition, 27-33, 27-38 (1970). 

Rule 512(a)(l) prohibits any inference or comment upon the exercise of a privilege by the accused and is taken generally from proposed Federal 

Rule of Evidence 513(a). 

Rule 512(a)(2) creates a qualified prohibition with respect to any inference or comment upon the exercise of a privilege by a person not the accused. 

The Rule recognizes that in certain circumstances the interests of justice may require such an inference and comment. Such a situation could result, for 

example, when the government's exercise of a privilege has been sustained, and an inference adverse to the government is necessary to preserve the 

fairness of the proceeding. 

(b)Claiming privilege without knowledge qf members. Rule 512(b) is intended to implement subdivision (a). Where possible, claims of privilege 

should be raised at an Article 39(a) session or, if practicable, at sidebar. 

(c)Instruction.Rule 512(c) requires that relevant instructions be given "upon request." C$ Rule 105. The militaryjudge does not have a duty to instruct 

sua sponte. 

Section VI. Witnesses 

Rule 601. General Rule of Competency 

Rule 601 is taken without change hm the first portion of Federal Rule of Evidence 601. The remainder of the Federal Rule was deleted due to its 

sole application to civil cases. 

In declaring that subject to any other Rule, all persons are competent to be witnesses, Rule 601 supersedes B 148 of the present Manual which 

requires, among other factors, that an individual know the difference behveen truth and falsehood and understand the moral importance of telling the 

truth in order to test@. Under Rule 601 such matters will go only to the weight of the testimony and not to its competency. The Rule's reference to other 

rules includes Rules 603 (Oath or Affirmation), 605 (Competency of MilitaryJudge as Witness); 606 (Competency of Court Member as Witness), and 

the rules of privilege. 

The plain meaning of the Rule appears to deprive the trial judge of any discretion whatsoever to exclude testimony on grounds of competency 

unless the testimony is incompetent under those specific rules already cited supra, see, e.g., United States v. Fowler, 605 F.2d 181 (5th Ci. 1979), a 

conclusion bolstered by the Federal Rules of Evidence Advisory Committee's Note. S. SALZE4URG & K. REDDEN, FEDERAL RULES OF 

EVIDENCE MANUAL 270 (2d ed. 1977). Whether this conclusion is accurate, especially in the light of Rule 403, is unclear. Id. at 269; see also 

United States v. Calahan, 442 F. Supp. 1213 @. Minn. 1978). 

Rule 602. Lack of Personal Knowledge 

Rule 602 is taken without significant change from the Federal Rule and is similar in content to 7 138d of the present Manual. Although the Manual 

expressly allows an individual to testify to his or her own age or date of birth, the Rule is silent on the issue. 

Notwithstanding that silence, however, it appears that it is within the meaning of the Rule to allow such testimony. Rule 804(b)(4) [Hearsay 

Exceptions; Declarant Unavailable-4tatement of Personal or My History] expressly permits a hearsay statement "concerning the declarant's own 

birth. . . or other similar fact ofpersonal or family history, even though declarant had no means of acquiring personal knowledge of the matter stated." It 

seems evident that if such a hearsay statement is admissible, in-court testimony by the declarant should be no less admissible. It is probable that the 

expression "personal knowledge" in Rule 804(b)(4) is being used in the sense of "first hand knowledge" while the expression is being used in Rule 602 

in a somewhat broader sense to include those matters which an individual could be considered to reliably know about his or her personal history. 
ANALYSIS OF THE 1980 AMENDMENTS App. 22, M.R.E. 608(b) 

Rule 603. Oath or Affirmation. 

Rule 603 is taken from the Federal Rule without change. The oaths found within Chapter XXII of the Manual satisfy the requirements of Rule 603. 

Pursuant to Rule 1101(c), this Rule is inapplicable to the accused when he or she makes an unswom statement under ll 75c(2) of the Manual. 

Rule 604. Interpreters 

Rule 604 is taken from the Federal Rule without change and is consistent with ll 141 of the present Manual. The oath found in Manual n 114e 

satisfies the oath requirements of Rule 604. 

Rule 605. Competency of Military Judge as Witness 

Rule 605(a) restates the Federal Rule without sigmficant change. Although Article 26(d)of the Uniform Code of Military Justice states in relevant 

part that "no person is eligible to act as a militaryjudge if he is a witness for the prosecution . . ." and is silent on whether a witness for the defense is 

eligible to sit, the Committee believes that the specific reference in the code was not intended to create a right and was the result only of an attempt to 

highlight the more grievous case. In any event, Rule 605, unlike Article26(d), does not deal with the question of eligibility to sit as a militaryjudge, but 

deals solely with the military judge's competency as a witness. The rule does not affect voir dire. 

Rule 605(b) is new and is not found within the Federal Rules of Evidence. It was added because of the unique nature of the militaryjudiciary in 

which militaryjudges often control their own dockets without clerical assistance. In view of the military's stingent speedy trial roles, see, e.g., United 

States v. Burton, 21 U.S.C.M.A. 112,44 C.M.R. 166 (1971), it was necessary to preclude expressly any interpretationof Rule 605 that would prohibit 

the militaryjudge from placing on the record details relating to docketing in order to avoid prejudice to a party. Rule 605(b) is consistent with present 

military law. 

Rule 606. Competency of Court Member as Witness 

(a)At the court-martial. Rule 606(a) is taken from the Federal Rule without substantive change. The Rule alters present dtary law only to the extent 

that a member of the court could test@ as a defense witness under prior precedent. Rule 606(a) deals only with the competency of court members as 

witnesses and does not affect other Manual provisions governing the eligibility of the individuals to sit as members due to their potential status as 

witnesses. See, e.g. ,ll8 62f and 63. The Rule does not affect voir dire. 

(b)Inquiry into validity 4jndings or sentence. Rule 606@) is taken from the Federal Rule with only one significant change. The rule, retitled to 

reflect the sentencing function of members, recognizes unlawful command influence as a legitimate subject of inquiry and permits testimony by a 

member on that subject. The addition is required by the need to keep proceedings free from any taint of unlawful command influence and further 

implements Article 37(a) of the Uniform Code of Military Justice. Use of superior rank or grade by one member of a court to sway other members would 

constitute unlawful command influence for purposes of this Rule under ll 74d(l). Rule 606 does not itself prevent otherwise lawful polling of members 

of the court, see generally, United States v. Hendon, 6 M.J. 171, 174 (C.M.A. 1979) and does not prohibit attempted lawful clarification of an 

ambigious or inconsistent verdict. Rule 606(b) is in general accord with present military law. 

Rule 607. Who May Impeach 

Rule 607 is taken without sigruficant change hm the Federal Rule. It supersedes Manual 7 153b(l) which restricts impeachment of one's own 

witness to those situations in which the witness is indispensable or the testimony of the witness proves to be unexpectedly adverse. 

Rule 607 thus allows a party to impeach its own witness. Indeed, when relevant, it permits a party to call a witness for the sole purpose of 

impeachment. It should be noted, however, that an appmnt inconsistency exists when Rule 607 is compared with Rules 608(b) and 609(a). Although 

Rule 607 allows impeachment on direct examination, Rules 608(b) and 609(a) would by their explicit language reshict the methods of impeachment to 

cross-examination. The use of the expression "cross-examination" in these rules appears to be accidental and to have been intended to be synonymous 

with impeachment while on direct examination. See generally, S. SALIZBURG & K. REDDEN, FEDERAL RULES OF EVIDENCE MANUAL 

298-99 (2d ed. 1977). It is the intent of the Committee that the Rules be so interpreted unless the Article III courts should interpret the Rules in a 

different fashion. 

Rule 608. Evldence of Character, Conduct, and Blas of Witness 

(a) Opinion and reputation evidence of character. Rule 608(a) is taken verbatim from the Federal Rule. The Rule, which is consistent with the 

philosophy behind Rule 404(a), limits use of character evidence in the form of opinion or reputation evidence on the issue of credibility by restricting 

such evidence to matters relating to the character for truthfulness or untruthfulness of the witness. General good character is not admissible under the 

Rule. Rule 608(a) prohibits presenting evidence of good character until the character of the witness for truthfulness has been attacked. The Rule is 

similar to 7 153b of the present Manual except that the Rule, unlike 1153b, applies to all witnesses and does not distinguish between the accused and 

other witnesses. 

@) Specific instances ofconduct. Rule 608(b) is taken from the Federal Rule without sigruficant change. The Rule is somewhat similar in effect to the 

militarypmctice now found in ll 153b(2) of the present Manual in that it allows use of specific instances of conduct of a witness to be brought out on 

cross-examination but prohibits use ofextrinsic evidence. Unlike ll153b(2), Rule 608(b) does not distinguish between an accused and other witnesses. 

The fact that the accused is subject to impeachment by prior acts of misconduct is a significant factor to be considered by the military judge when he 

or she is determining whether to exercise the discretion granted by the Rule. Although the Rule expressly limits this form of impeachment to inqujr on 

cross-examination, it is likely that the intent of the Federal Rule was to permit inquiry on direct as well, see Rule 607, and the use of the term "crossexamination" was an accidental substitute for "impeachment." See S. SALTZBURG & K. REDDEN, FEDERAL RULES OF EVIDENCE MANUAL 
App. 22, M.R.E. 608(c) APPENDIX 22 

312-13 (2d ed. 1977). It is the intent of the Committee to allow use of this form of evidence on direct-examination to the same extent, if any, it is so 

permitted in the Article III courts. 

The Rule does not phibit receipt of extrinsic evidence in the form of prior convictions, Rule 609, or to show bias. Rule 608(c). See also Rule 613 

(Prior statements of witnesses). When the witness has testified as to the character of another wimess, the wimess may be cross-examined as to the 

character of that witness. The remainder of Rule 608(b) indicates that testimony relating only to credibility does not waive the privilege against selfincrimination. See generally Rule 301. 

Although 608(b) allows examination &to specific acts, counsel should not, as a matterof ethics, attempt to elicit evidence of misconduct unless 

there is a reasonable basis for the question.See generally ABA PROJECT ON STANDARDS FOR CRIMINAL JUSTICE, STANDARDS 

RELATING TO THE PROSECUTION FUNCTION AND THE DEFENSE FUNCTION, Prosecution Function 5.7(d); Defense Functions 7.6(d) 

roved draft 1971). 

(c)Evidence ofbias. Rule 608(c) is taken from present Manual ll153d and is not found within the Federal Rule. Impeachment by bias was apparently 

accidentally omitted from the Federal Rule, see, e.g., S. SALTLBURG & K. REDDEN, FEDERAL RULES OFEVIDENCE MANUAL 313,14(2d 

ed. 1977), but is acceptable under the Federal Rules; see, e.g., United States v. Leja, 568 E2d 493 (6th Cu.1977); United States v. Alvarez-Lopez, 

559E2d 1 155 (9th Ci.1977). Because of the critical nature of this form of impeachment and the fact that extrinsic evidence may be used to show it, the 

Committee believed that its omission would be impracticable. 

It should be noted that the Federal Rules are not exhaustive, and that a number of different types of techniques of impeachment are not explicitly 

codified. 

The failure to so cod@ themdoes not mean that they are no longer permissible. See, e.g., UnitedStates v. Alvarez-Lopez, 559 F.2d 1155 (9thCu. 

1977); Rule 412. Thus, impeachment by contradiction, see also Rules 304(a)(2); 31 l(j),and impeachment via prior inconsistent statements, Rule 613, 

remain appropriate. To the extent that the Military Rules do not acknowledge a particular form of impeachment, it is the intent of the Committee to allow 

that method to the same extent it is permissible in the Article IIl courts. See, e.g., Rules 402; 403. 

Impeachment of an alleged victim of a sexual offense through evidence of the victim's past sexual history and character is dealt with in Rule 412, 

and evidence of fresh complaint is admissible to the extent permitted by Rules 801 and 803. 

Rule 609. Impeachment by Evldence of Conviction of Crime 

(a) General Rules. Rule 609(a) is taken from the Federal Rule but has been slightly modified to adopt it to military law. For example, an offense for 

which a dishonorable discharge may be adjudged may be used for impeachment. This continues the present rule as found in8 153b(2)(%)(1) of the 

present Manual. In determing whether a militaryoffense may be used for purposes of impeachment under Rule 609(a)(l), recourse must be made to the 

maximum punishment imposable if the offense had been tried by general court-martial. The Table of Maximum Punishments, 8 127c, and related 

sentencing provisions should be consulted. 

Rule 609(a) differs slightly from the present military rule. Under Rule 609(a)(l), a civilian conviction's availability for impeachment is solely a 

function of its maximum punishment under "the law in which the witness was convicted." This is different from ll 153b(2)(b)(3) of the present Manual 

which allows use of a non-federal conviction ambgomma federal felony or characterized by the jurisdiction as a felony or "as an offense of comparable 

gravity." Under the new rule, comparisons and determinations of relative gravity will be unnecessary and improper. 

Convictions that "involve moral turpitude or otherwise affect . . . credibility" are admissible for impeachment under 8 153b(2)(b) of the present 

Manual. The list of potential convictions expressed in 8 153b(2)(b) is illustrative only and non-exhaustive. Unlike the Manual rule, Rule 609(a) is 

exhaustive. 

Although a conviction technically fits within Rule 609(a)(l), its admissibiity remains subject to a finding by the militaryjudge that its probative 

value outweighs its prejudicial effect to the accused. 

Rule 609(a)(2) makes admissible convictions involving "dishonesty or false statement, regardless of punishment." Ttus is similar to intent in 

ll 153b(2)(b)(4) of the p~sent Manual which makes admissible "a conviction of any offense involving hd, deceit, larceny, wrongful appropriation, or 

the making of false statement." The exact meaning of "dishonesty" within the meaning of Rule 609 is unclear and has already been the subject of 

substantial litigation. The Congressional intent appears, however, to have been extremely restrictive with "dishonesty" beiig used in the sense of 

untruthfulness. See generally S. SAL'URG & K. REDDEN, FEDERAL RULES OF EVIDENCE MANUAL 33645 (2d ed. 1977). Thus, a 

conviction for fraud, pejury, or embezzlement would come within the definition, but a conviction for simple larceny would not. Pending further case 

development in the Article III courts, caution would suggest close adherence to this highly limited definition. 

It should be noted that admissibility of evidence within the scope of Rule 609(a)(2) is not explicitly subject to the discretion of the militaryjudge. 

The application of Rule 403 is unclear. 

While the language of Rule 609(a) refers only to cross-examination, it would appear that the Rule does refer to direct examination as well. See the 

Analysis to Rules 607 and 608(b). 

As defined in Rule 609(f), a court-martial conviction occurs when a sentence has been adjudged. 

(b)Time limit. Rule 609(b)is taken verbatim from the Federal Rule. As it has already been made applicable to the armed forces, United States v. 

Weaver, 1 M.J. 111 (C.M.A. 1975), it is consistent with the present military practice. 

(c) Effect qfpardon, annulment or cert$cate qfrehabilitation. Rule 609(c) is taken verbatim from the Federal Rule except that convictions punishable 

by dishonorable discharge have been added. Rule 609(c) has no equivalent in present military practice and represents a substantial change as it will 

prohibit use of convictions due to evidence of rehabiitation. In the absence of a certificate of rehabilitation, the extent to which the various Anned Forces 
ANALYSIS OF THE 1980 AMENDMENTS App. 22, M.R.E. 612 

post-conviction programs, such as the Air Force's 3320th Correction and Rehabilitation Squadron and the Army's Retraining Brigade, come within 

Rule W(c) is unclear, although it is probable that successful completion of such a program is "an equivalent procedure based on the finding of the 

rehabilitation of the persons convicted" within the meaning of the Rule. 

(d) Juvenile adjudications. Rule 609(d) is taken from the Federal Rule without significant change. The general prohibition in the Rule is substantially 

different from ll 153b(2)(b) of the present Manual which allows use of juvenile adjudications other than those involving an accused. The discretionary 

authority vested in the military judge to admit such evidence comports with the accused's constitutional right to a fair trial, Davis v. Alaska, 415 U.S. 

308 (1974). 

(e) Pendency @appeal. The first portion of Rule W(e) is taken from the Federal Rule and is substantially different from ll 153b(2)(b) of the present 

Manual which prohibits use of convictions for impeachment purposes while they are undergoing appellate review. Under the Rule, the fact of review 

may be shown but does not affect admissibility. A different rule applies, however, for convictions by summary court-martial or by special court-martial 

without a military judge. The Committee believed that because a legally trained presiding officer is not required in these proceedings, a conviction 

should not be used for impeachment until review has been completed. 

(0 Dejnition. This definition of conviction has been added because of the unique nature of the court-martial. Because of its recognition that a conviction 

cannot result until at least sentencing, cf: Lederer, Reappraising the Legality $Post-trial Interviews, The Army Lawyer, July, 1977, at 12, the Rule 

may modify United States v. Mathews, 6 M.J. 357 (C.M.A. 1979). 

Rule 610. Religious Beliefs or Opinions 

Rule 610 is taken without significant change from the Federal Rules and has no present equivalent in the Manual for Courts-Martial. The Rule 

makes religious beliefs or opinions inadmissible for the purpose of impeaching or bolstering credibility. To the extent that such opinions may be critical 

to the defense of a'case, however, there may be a constitutional justification for overcoming the Rule's exclusion. Cf:Davis v. Alaska, 415 U.S. 308 

(1974). 

Rule 61 1. Mode and Order of Interrogation and Presentation 

(a) Control by the military judge. Rule 61 l(a) is taken from the Federal Rule without change. It is a basic source of the military judge's power to control 

proceedings and replaces Manual 7l 149a and that part of ll 137 dealing with cumulative evidence. It is within the military judge's discretion to control 

methods of interrogation of witnesses. The Rule does not change present law. Although a witness may be required to limit an answer to the question 

asked, it will normally be improper to require. that a "yes" or "no" answer be given unless it is clear that such an answer will be a complete response to 

the question. A witness will ordinarily be entitled to explain his or her testimony at some time before completing that testimony. The Manual 

requirement that questions be asked through the military judge is now found in Rule 614. 

Although the military judge has the discretion to alter the sequence of proof to the extent that the burden of proof is not affected, the usual sequence 

for examination of witnesses is: prosecution witnesses, defense witnesses, prosecution rebuttal witnesses, defense rebuttal witnesses, and witnesses for 

the court. The usual order of examination of a witness is: direct examination, cross-examination, redirect examination, recross-examination, and 

examination by the court, T54a. 

(b)Scope @cross-examination. Rule 61 1(b) is taken from the Federal Rule without change and replaces T 149b(l) of the present Manual which is 

similar in scope. Under the Rule the military judge may allow a party to adopt a witness and proceed as if on direct examination. See Rule 301(b)(2) 

(judicial advice as to the privilege against self-incrimination for an apparently uninformed witness); Rule 301(f)(2) (effect of claiming the privilege 

against self-incrimination on cross-examination); Rule 303 (Degrading Questions); and Rule 608(b) (Evidence of Character, Conduct, and Bias of 

Witness). 

(c) Leading questions. Rule 611(c) is taken from the Federal Rule without significant change and is similar to ll 149c of the present Manual. The 

reference in the third sentence of the Federal Rule to an "adverse party" has been deleted as being applicable to civil cases only. 

A leading question is one which suggests the answer it is desired that the witness give. Generally, a question that is susceptible to being answered 

by "yes" or "no" is a leading question. 

The use of leading questions is discretionary with the military judge. Use of leading questions may be appropriate with respect to the following 

witnesses, among others: children, persons with mental or physical disabilities, the extremely elderly, hostile witnesses, and witnesses identilied with 

the adverse party. 

It is also appropriate with the military judge's consent to utilize leading questions to direct a witness's attention to a relevant area of inquiry. 

Rule 612. Writing Used to Refresh Memory 

Rule 612 is taken generally from the Federal Rule but a number of modifications have been made to adapt the Rule to military practice. Language 

in the Federal Rule relating to the Jencks Act, 18 U.S.C. 5 3500, which would have shieldedmaterial from disclosure to the defenseunder Rule 612 was 

discarded. Such shielding was considered to be inappropriate in view of the general military practice and policy which utilizes and encourages broad 

discovery on behalf of the defense. 

The decision of the president of a special court-maaial without a military judge under this rule is an interlocutory ruling not subject to objection by 

the members,ll 57a. 

Rule 612 codifies the doctrine of past recollection refreshed and replaces that portion of ll 146a of the present Manual which now deals with the 

issue. Although the present Manual rule is similar, in that it authorizes inspection by the opposing party of a memorandum used to refresh recollection 
App. 22, M.R.E. 613(a) APPENDIX 22 

and permits it to be offered into evidence by that party to show the improbability of it refreshing recollection, the Rule is somewhat more extensive as it 

also deals with writings used before tesbfying. 

Rule 612 does not affect in any way information required to be disclosed under any other rule or portion of the Manual. See, e.g., Rule 304(c)(l). 

Rule 613. Prior Statements of Witnesses 

(a) Examining witness concerningprior statement. Rule 613(a) is taken from the Federal Rule without change. It alters military practice inasmuch as 

it eluninates the foundation requirements found in % 153b(2)(c) of the present Manual. While it will no longer be a condtion precedent to admissibility 

to acquaint a wimess with the prior statement and to give the witness an opportunity to either change his or her testimony or to reaffirm it, such a 

pdure may be appropriate as a matter of trial tactics. 

It appears that the drafters of Federal Rule 613 may have inadvertently omitted the word "inconsistent" from both its caption and the text of Rule 

613(a). The effect of that omission, if any, is unclear. 

(b) Extrinsic evidence ofprior inconsistent statement of witness. Rule 613(b) is taken from the Federal Rule without change. It requires that the 

witness be given an opportunity to explain or deny a prior inconsistent statement when the party proffers extrinsic evidence of the statement. Although 

this foundation is not required under Rule 613(a), it is required under Rule 613(b) if a party wishes to utilize more than the witness' own testimony as 

brought out on cross-examination. The Rule does not specify any particular timing for the opportunity for the witness to explain or deny the statement 

nor does it spech any paaicular method. The Rule is inapplicable to introduction of prior inconsistent statements on the merits under Rule 801. 

Rule 614. Calling and Interrogation of Witnesses by the Court-Martial 

(a) Calling by the court-martial. The first sentence of Rule 614(a) is taken from the Federal Rule but has been modified to recognize the power of the 

court members to call and examine witnesses. The second sentence of the suMvision is new an'power to call or recall witnesses. 

Although recognizing that power, the Rule makes it clear that the calling of such witnesses is contingent upon compliance with these Rules and this 

Manual. Consequently, the testimony of such witnesses must be relevant and not barred by any Rule or Manual provision. 

(b) Interrogation by the court-martial. The fust sentence of Rule 614(b) is taken from the Federal Rule but modified to reflect the power under these 

Rules and Manual of the court-members to interrogate witnesses. The second sentence of the subdivision is new and modifies lI 54a and % 149a of the 

present Manual by requiring that questions of members be submitted to the militaryjudge in writing. This change in current practice was made in order 

to improve efficiency and to prevent prejudice to either party. Although the Rule states that its intent is to ensure that the questions will "be in a form 

acceptable to the military judge," it is not the intent of the Committee to grant carte blanche to the rmlitary judge in this matter. It is the Committee's 

intent that the military judge alter the question only to the extent necessary to ensure compliance with these Rules and Manual. When trial is by special 

court-martial without a mihtary judge, the president will utilize the same procedure. 

(c) Objections. Rule 614(c) is taken from the Federal Rule but modified to reflect the powers of the members to call and interrogate witnesses. This 

provision generally restates present law but recognizes counsel's right to request an Article 39(a) session to enter an objection. 

Rule 615. Exclusion of Witnesses 

Rule 615 is taken from the Federal Rule with only minor changes of terminology. The first portion of the Rule is in conformity with present 

practice; e.g., % 53f. The second portion, consisting of subdivisions (2) and (3), represents a substantial departure from current practice and will 

authorize the prosecution to designate another individual to sit with the trial counsel. Rule 615 thus modifies % 53f. Under the Rule, the military judge 

lacks any discretion to exclude potential witnesses who come within the scope of Rule 615(2) and (3) unless the accused's constitutional right to a fair 

mal would be violated. Developing Article III practice recognizes the defense right, upon request, to have aprosecution witness, not excluded because 

of Rule 615, testify before other prosecution witnesses. 

Rule 615 does not prohibit exclusion of either accused or counsel due to misbehavior when such exclusion is not prohibited by the Constitution of 

the United States, the Uniform Code of Military Justice, this Manual or these Rules. 

Section VII. Opinions and Expert Testimony 

Rule 701. Opinion Testimony by Lay Witnesses 

Rule 701 is taken from the Federal Rule without change and supersedes that portion of % 138e which deals with opinion evidence by lay witnesses. 

Unlike the present Manual Rule which prohibits lay opinion testimony except when the opinion was of a "kind which is commonly drawn and which 

cannot, or ordinarily cannot, be conveyed to the court by a mere recitation of the observed facts," the Rule permits opinions or inferences whenever 

rationally based on the perception of the witness and helpful to either a clear understanding of the testimony or the determination of a fact in issue. 

Consequently, the Rule is broader in scope than the Manual provision it replaces. The specific examples listed in the Manual, "the speed of an 

automobile, whether a voice heard was that of a man, woman or child, and whether or not a person was drunk"are all within the potential scope of Rule 

701. 

Rule 702. Testimony by Experts 

Rule 702 is taken from the Federal Rule verbatim, and replaces that portion of Manual lI 138e dealing with expert testimony. Although the Rule is 

similar to the present manual rule, it may be broader and may supersede Frye v. United States, 293 E 1013 (D.C. Cu. 1923), an issue now being 

extensively litigated in the Article IIIcourts.The Rule's sole explicit test is whether the evidence in question "will assist the trier of fact to understand the 

evidence or to determine a fact inissue." Whether any particular piece of evidence comes within this test is normally a matter within the militaryjudge's 

discretion. 
ANALYSIS OF THE 1980 AMENDMENTS App. 22, M.R.E. 801(d) 

Under Rule 103(a) any objection to an expert on the basis that the individual is not in fact adequately qualified under the Rule will be waived by a 

failure to so object. 

7 142e of the present Manual, "Polygraph tests and drug-induced or hypnosis-induced interviews," has been deleted as a result of the adoption of 

Rule 702. 7 142e states: 'The conclusions based upon or graphically represented by a polygraph test and conclusions based upon, and the statements of 

the person interviewed made during a drug-induced or hypnosis-induced interview are inadmissible in evidence." The deletion of the explicit 

prohibition on such evidence is not intended to make such evidence per se admissible, and is not an express authorization for such procedures. Clearly, 

such evidence must be approached with great care. Considerations surrounding the nature of such evidence, any possible prejudicial effect on a fact 

finder, and the degree of acceptance of such evidence in the Article IIIcourts are factors to consider in determining whether it can in fact "assist the trier 

of fact." As of late 1979, the Committee was unaware of any significant decision by a United States Court of Appeals sustaining the admissibility of 

polygraph evidence in a criminal case, see, e.g., United States v. Masri, 547 F.2d 932 (5th Ci. 1977); United States v. Cardarella, 570 F.2d 264 (8th 

Ci. 1978), although the Seventh Ciuit, see, e.g., United States v. Bursten, 560 E2d 779 (7th Cu. 1977) (holding that polygraph admissibity is 

within the sound discretion of the trial judge) and perhaps the NinthCircuit, United States v. Benveniste, 564 F.2d 335,339 n. 3 (9th Ci. 1977), at least 

recognize the possible admissibility of such evidence.-There is reason to believe that evidence obtained via hypnosis may be treated somewhat more 

liberally than is polygraph evidence. See, e.g., Kline v. Ford Motor Co., 523 E2d 1067 (9th Cu. 1975). 

Rule 703. Bases of Oplnlon Testimony by Experts 

Rule 703 is taken fromthe Federal Rule without change. The Rule is similar in scope to f 138e of the present Manual, but is potentially broader as 

it allows relianceupon "facts or data" whereas the present Manual's limitation is phrased in terms of the personal observation, personal examination or 

study, or examination or study "of reports of others of a kind customarily considered in the practice of the expert's specialty." Hypothetical questions of 

the expert are not required by the Rule. 

A limiting instruction may be appmpriate if the expert while expressing the basis for an opinion states facts or data that are not themselves 

admissible. See Rule 105. 

Whether Rule 703 has modified or superseded the Frye test for scientific evidence. Frye v. United States, 293 F. 1013 @.C. Cu 1923) is unclear 

and is now being litigated within the Article III courts. 

Rule 704. Oplnlon on Ultlmate Issue 

Rule 704 is taken hm the Federal Rule verbatim. The Manual for Courts-Martial is silent on the issue and current military law is unsettled. The 

Rule does not pennit the witness to testify as to his or her opinion as to the guilt or innocence ofthe accused or to state legal opinions. Rather it simply 

allows testimony involving an issue which must be decided by the trier of fact. Although the two may be closely related, they are distinct as a matter of 

law. 

Rule 705. Dlscloure of Facts or Data Underlying Expert Opinlon 

Rule 705 is taken from the Federal Rule without change and is similar in result to the requirement in f 138e of the present Manual that the "expert 

may be requid, on direct or cross-examination, to spec@ the data upon which his opinion was based and to relate the details of his observation, 

examination, or study." Unlike the present Manual, Rule 705 requires disclosure on direct examination only when the military judge so requires. 

Rule 706. Court Appointed Experts 

(a) Appointment and compensation. Rule 706(a) is the result of a complete redraft of subdivision (a) of the Federal Rule that was required to be 

consistent with Article 46 of the Uniform Code of Military Justice which is implemented in lIll 115,116 of the Manual. Rule 706(a) states the basic rule 

that prosecution, defense, military judge, and the court members all have equal opportunity under Article 46 to obtain expert witnesses. The second 

sentence of the subdivision replaces subdivision (b) of the Federal Rule which is inapplicable to the armed forces in the light of 7 116. 

(b) Disclosure @employment. Rule 706(b) is taken from FED.R. EVID.706(c) without change. The Manual is silent on the issue, but the subdivision 

should not change military practice. 

(c) Accused's expert of own selection. Rule 706(c) is similar in intent to subdivision (d) of the Federal Rule and adapts that Rule to military practice. 

The subdivision makes it clear that the defense may call its own expert witnesses at its own expense without the necessity of recourse to f 116. 

Section VIII. Hearsay 

Rule 801. Definltlons 

(a) Statement. Rule 801(a) is taken from the Federal Rule without change and is similar to f 139a of the present Manual. 

(b) Declarant. Rule 801(b) is taken from the Federal Rule verbatim and is the same definition used in present military practice. 

(c) Hearsay. Rule 801(c) is taken from the Federal Rule verbatim. It is similar to the present Manual definition, found in f 139a, which states: "A 

statement which is offered in evidence to pmve the truth of the matters stated therein, but which was not made by the author when a witness before the 

court at a hearing in which it is so offered, is hearsay." Although the two definitions arebasically identical, they actually differ sharply as a result of the 

Rule's exceptions which are discussed infra. 

(d) Statements which are not hearsay. Rule 801(d) is taken from the Federal Rule without change and removes certain categories of evidence from the 

definition of hearsay. In all cases, those categories represent hearsay within the meaning of the present Manual definition. 
App. 22, M.R.E. 801(d)(l) APPENDIX 22 

(1)Prior statement by witness. Rule 801(d)(l) is taken from the Federal Rule without change and removes certain prior statements by the witness 

fromthe definition of hearsay. Under the present Manual rule, an out-of-court statement not within an exception to the hearsay rule and unadopted by the 

teshfymg witness, is inadmissible hearsay notwithstanding the fact that the declarant is now on the stand and able to be cross-examined, 7 139a; United 

States v. Burge, 1 M.J. 408 (C.M.A. 1976) (Cook, J., concuning). The justification for the present Manual rule is presumably the traditional view that 

out of court statements cannot be adequately tested by cross-examination because of the time differential between the making of the statement and the 

giving of the incoua testimony. The Federal Rules of Evidence Advisory Committee rejected this view in part believing both that later crossexamination is sufficient to ensure reliability and that earlier statements are usually preferable to later ones because of the possibiity of memory loss. See 

generally, 4 J. WEINSTEIN & M. BERGER, WEINSTEIN'S EVIDENCE ll 801(d)(1)[01] (1978). Rule 801(d)(l) thus not only makes an important 

shift in the military theory of hearsay, but also makes an important change in law by making admissible a number of types of statements that are either 

inadmissible or likely to be inadmissible under present military law. 

Rule 801(d)(l)(A) makes admissible on the merits a statement inconsistent with the in-court testimony of the witness when the prior statement 

"was given under oath subject to the penalty of petjury at a trial, hearing, or other proceeding, or in a deposition." The Rule does not require that the 

witness have been subject to cross-examination at the earlier proceeding, but requires that the witness must have been under oath and subject to penalty 

of perjury. Although the definition of "trial, heating, or other proceeding" is uncertain, it is apparent that the Rule was intended to include grand jury 

testimony andmay beextremely broadinscope. See, e.g., UnitedStatesv. Caszro-Ayon, 537 F.2d 1055 (9th Cir.), cert. denied, 429 U.S. 983 (1976) 

(taperecorded statements given under oath at a Border Pdtrol station found to be within the Rule). It should clearly apply to Article 32 hearings. The Rule 

does not require as a prerequisite a statement "given under oath subject to the penalty of petjury." The mete fact that a statement was given under oath 

may not be sufficient. No foundation other than that indicated as a condition precedent in the Rule is apparently necessary to admit the statement under 

the Rule. But see WEINSTEIN'S EVIDENCE 801-74 (1978). 

Rule 80l(d)(l)(B) makes admissible on the merits a statement consistent with the in-court testimony of the witness and "offered torebut an express 

or implied charge against the declarant of recent fabrication or improper influence or motive." Unlike Rule 801(d)(l)(A), the earlier consistent statement 

need not have been made under oath or at any type of proceeding. On its face, the Rule does not require that the consistent statement offeted have been 

made prior to the time the improper iduence or motive arose or prior to the alleged recent fabrication. Notwithstanding this, at least two circuits have 

readsuch arequirement intotherule. UnitedSmtes v. Quinto, 582E2d 224 (2d Cir. 1978); Unitedstates v. Scholle, 553 E2d 1109 (8th Cir. 1977). See 

also United States v. Dominquez, 604 E2d 304 (4th Cir. 1979). 

The propriety of this limitation is clearly open to question. See generally United States v. Rubin, 609 E2d 51 (2d Cir. 1979). The limitation does 

not, however, prevent admission of consistent statements made after the inconsistent statement but before the improper influence or motive arose. 

United States v. Scholle, supra. Rule 8Ol(d)(l)(B) provides a possible means to admit evidence of fresh complaint in prosecution of sexual offenses. 

Although limited to circumstances in which there is a charge, for example, of recent fabrication, the Rule, when applicable, would permit not only the 

fact of hh complaint, as is presently possible, but also the entire portion of the consistent statement. 

Un&r Rule 80l(d)(l)(C) a statement of identification is not hearsay. The content of the statement as well as the fact of identification is admissible. 

The Rule must be read in conjunction with Rule 321 whch governs the admissibility of statements of pretrial identification. 

(2)Admission by parry opponent. Rule 801(d)(2) eliminates a number of categories of statements from the scope of the hearsay mle. Unlike those 

statements within the purview of Rule 802(d)(l), these statements would have come within the exceptions to the hearsay rule as recognized in the 

Manual. Consequently, their "reclassilication" is a matter of academic interest only. No practical difference results. The reclassification results from a 

belief that the adversary system impels admissibility and that reliab'ity is not a significant factor. 

Rule 801(d)(2)(A) makes admissible against a party a statement made in either the party's individual or representative capacity. This is treated as an 

admission or confession under ll 140a of the present Manual, and is an exception to the present hearsay rule. 

Rule 801(a)(2)(B) makes admissible "a statement of which the party has manifested the party's adoption or belief in its truth." This is an adoptive 

admission and is an exception to the present hearsay rule. C' 7 140(a)(4) of the present Manual. While silence may be treated as an admission on the 

facts of a given case, see, e.g., Rule 304(h)(3) and the analysis thereto, under Rule 801(a)(2) that silence must have been intended by the declarant to 

have been an assertion. Otherwise, the statement will not be hearsay within the meaning of Rule 801(a)(2) and will presumably be admissible,if at all, 

as circumstantial evidence. 

Rule 801(d)(2)(C) makes admissible "a statement by a person authorized by the party to make a statement concerning the subject." While this is 

not expressly dealt with by the Manual, it would be admissible under present law as an admission; cf: 7 140b, utilizing agency theory. 

Rule 801(d)(2)@) makes admissible "a statement by the party's agent or servant concerning a matter within the scope of the agency or employment 

of the agent or servant, made during the existence of the relationship." These statements would appear to be admissible under present law. Statements 

made by interpreten, as by an individual serving as a translator for a service member in a foreign nation who is, for example, attempting to consummate 

a drug transaction with a non-English speaking person, should be admissible under Rule 801(d)(2)(D) or Rule 801(d)(2)(C). 

Rule 801(d)(2)(E) makes admissible "a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy." This is 

similartothemilitary hearsay exception found in lI 140b of the present Manual. Whether a conspiracy existed for purposes of hs Rule is solely a matter 

for the military judge. Although this is the prevailing Article IIl rule, it is also the consequence of the Military Rules' modification to Federal Rule of 

Evidence 104(b). Rule 801(d)(2)(E) does not address many critical procedural matters associated with the use of co-conspirator evidence. See generally 

Comment, Restructuring the Independent Evidence Requirement ofthe Coconspirator Hearsay Exception, 127 U. Pa.L. Rev. 1439 (1979). For 

example, the burden of proof placed on the proponent is unclear although a preponderance appears to be the developing Article III trend. Sirmlarly, there 

is substantial confusion surrounding the question of whether statements of an alleged co-conspirator may themselves be considered by the militatyjudge 

when determining whether the declarant was in fact a co-conspirator. This process, known as bootstrapping, is not permitted under present military law. 

See, e.g., United Staes v.Duffy, 49 C.M.R. 208,210 (A.EC.M.R. 1974); United States v. LaBossiere, 13 C.M.A. 337,339,32 C.M.R. 337,339 

(1962). A number of circuits have suggested that Rule 104(a) allows the use of such statements, but at least two circuits have held that other factors 

prohibit bootstrapping. United States v. James, 590 F.2d 575 (5th Cir.) (en banc), cert. denied, 442 U.S. 917 (1979); United States v. Valencia, 609 
ANALYSIS OF THE 1980 AMENDMENTS App. 22, M.R.E. 803(4) 

E2d 603 (2d Cu.1979). Until such time as the Article Ill practice is settled, discretion would dictate that present military law be followed and that 

bootstrapping not be allowed. Other prcxxdural factors may also prove troublesome although not to the same extent as bootstrapping. For example, it 

apFars to be appropriate for the military judge to determine the co-conspirator question in a preliminary Article 39(a) session. Although receipt of 

evidence "subject to later connection" or proof is legally possible, the probabiity of serious error, likely requbing a mistrial, is apparent. 

Rule 801(d)(2)(E) does not appear to change what may be termed the "substantive law" relating to statements made by co-conspirators. Thus, 

whether a statement was made by a co-conspirator in furtherance of a conspiracy is a question for the military judge, and a statement made by an 

individual after he or she was withdrawn from a conspiracy is not made "in furtherance of the conspiracy." 

OfJicial statements made by an ofJicer-as by the commanding officer of a battalion, squadron, or ship, or by a staff officer, in an indorsement of 

other communication-are not excepted from the operation of the hearsay rule merely by reason of the official character of the communication or the 

rank or position of the officer making it. 

The following examples of admissiblity under this Rule may be helpful: 

(1) A is being tried for assaulting B. The defense presents the testimony of C thatjust before the assault C he B say to A that B was about to kill A 

with B's knife. The testimony of C is not hearsay, for it is offered to show that A acted in self-defense because B made the statement and not to prove the 

huth of B's statement. 

(2) A is being tried for rape of B. If B testifies at trial, the testimony of B that she had previously identified A as her attacker at an identification 

lineup would be admissible under Rule 801(d)(l)(C) to prove that it was A who raped B. 

(3) Private A is being tried for disobedience of a certain order given himorally by Lieutenant B. C is able to test@ that he heard Lieutenant B give 

the order to A. This testimony, including testimony of C as to the terms of the order, would not be hearsay. 

(4) The accused is being hiedfor the larceny of clothes from a locker. A is able to testify that B told A that B saw the accused leave the quarters in 

which the locker was located with a bundle resembling clothes about the same time the clothes were stolen. This testimony from A would not be 

admissible to prove the facts stated by B. 

(5) The accused is being tried for wmngfidly selling govemment clothing. A policeman is able to test@ that while on duty he saw the accused go 

into a shop with a bundle under his ann; that he entered the shop and the accusedran away; that he was unable to catch the accused, and that thereafter the 

policeman asked the proprietor of the shop what the accused was doing there; and that the proprietor replied that the accused sold himsome uniforms for 

which he paid the accused $30. Testimony by the policeman as to the reply of the proprietor would be hearsay if it was offered to prove the facts stated by 

the proprietor. The fact that the policeman was acting in the line of his duty at the time the proprietor made the statement would not render the evidence 

admissible to prove the truth of the statement. 

(6) A defense witness in an assault case testifies on direct examination that the accused did not strike the alleged victim. On cross-examination by 

the prosecution, the witness admits that at a preliminary investigation he stated that the accused had shuck the alleged victim. The testimony of the 

wilness as to this statement will be admissible if he was under oath at the time and subject to a prosecution for perjury. 

Rule 802. Hearsay Rule 

Rule 802 is taken generally from the Federal Rule but has been modified to recognize the application of any applicable Act of Congress. 

Although the basic rule of inadmissibility for hearsay is identical with that found in T 139a of the present Manual, there is a substantial change in 

military practice as a result of Rule 103(a). Under the present Manual, hearsay is incompetent evidence and does not require an objection to be 

inadmissible. Under the new Rules, however, admission of hearsay will not be error unless there is an objection to the hearsay. See Rule 103(a). 

Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial 

Rule 803 is taken generally from the Federal Rule with modifications as needed for adapation to military practice. Overall, the Rule is similar to 

practice under Manual Tll 142 and 144 of the present Manual. The Rule is, however, substantially more detailed and broader in scope than the present 

Manual. 

(I) Present sense impression. Rule 803(1) is taken from the Federal Rule verbatim. The exception it establishes is not now rec~@ in the 

Manual for Courts-Martial. It is somewhat similar to a spontaneous exclamation, but does not require a startling event. A fresh complaint by a victim of 

a sexual offense may come within this exception depending upon the circumstances. 

(2) Excited utterance. Rule 803(2) is taken from the Federal Rule verbatim. Although similar to T 142b of the present Manual with respect to 

spontaneous exclamations, the Rule would appear to be more lenient as it does not seem to require independent evidence that the startlimg event 

occurred. An examination of the Federal Rules of Evidence Advisory Committee Note indicates some uncertainty, however, S. SAL'IZBURG & K. 

REDDEN, FEDERALRULES OF EVIDENCE MANUAL 540 (2d ed. 1977). A fresh complaint of a sexual offense may come within this exception 

depending on the circumstances. 

(3) Then existing mental, emotional, or physical condition. Rule 803(3) is taken from the Federal Rule verbatim. The Rule is similar to that 

found in present Manual ll 142d but may be slightly more l'ited in that it may not permit statements by an individual to be offered to disclose the intent 

of another person. Fresh complaint by a victim of a sexual offense may come within this exception. 

(4) Statements for purposes ofmedical diagnosis or treatment. Rule 803(4) is taken from the Federal Rule verbatim. It is substantially broader 

than the state of mind or body exception found in ll 142dof the present Manual. It allows, among other matters, statements as to the cause of the medical 

problem presented for diagnosis or treatment. Potentially, the Rule is extremely broad and will permit statements made even to nonmedical personnel 

(e.g., members of one's family) and on behalf of others so long as the statements are made for the purpose of diagnosis or kahnent. The basis for the 
App. 22, M.R.E. 803(5) APPENDIX 22 

exception is the presumption that an individual seeking relief from a medical pmblem has incentive to make accurate statements. See generally, 4 1. 

WEINSTEIN & M. BERGER, WEINSTEIN'S EVIDENCE ll 804(4)[01] (1978). The admissibity under this exception of those portions of a 

statement not relevant to diagnosis or treatment is uncertain. Although statements made to a physician, for example, merely to enable the physician to 

testify, do not appear to come within the Rule, statements solicited in good faith by others in order to ensure the health of the declarant would appear to 

come within the Rule. Rule 803(4) may be used in an appropriate case to present evidence of fresh complaint in a sexual case. 

(5)Recorded recollection. Rule 803(5)is taken from the Federal Rule without change, and is similar to the present exception for past recollection 

recorded found in llll 146a and 149c(l)(b)ofthe present Manual except that under the Rule the memorandum may be read but not presented to the fact 

finder unless offered by the adverse party. 

(6)Record qfregularly conducted activity. Rule 803(6)is taken generally from the Federal Rule. Two modifications have been made, however, to 

adapt the rule to military practice. The definition of "business" has been expanded to explicitly include the armed forces to ensure the continued 

application of this hearsay exception, and a descriptive list of documents, taken generally from present Manual ll 144d, has been included. Although the 

activities of the armed forces do not constitute a profit making business, they do constitute a business within the meaning ofthe hearsay exception, see 

V lac, of the present Manual, as well as a "regularly conducted activity". 

The specific types of records included within the Rule are those which are normally records of regularly conducted activity within the armed 

forces. They are included because of their importance and because their omission from the Rule would be impracticable. The fact that a record is of a 

type described within the subdivision does not eliminate the need for its proponent to show that theparticular record comes within the Rule when the 

record is challenged; the Rule does establish that the types of records listed are normally business records. 

Chainofcustody receipts or documents have been included to emphasize their administrative nahue. Such documents perform the critical function 

of accounting for prop* obtained by the United States Govenunent. Although they may be used as prosecution evidence, their primary purpose is 

simply one of property accountability. In view of the primary administrative purpose of these matters, it was necessary to provide expressly for their 

admissibility as an exception to the hearsay rule in order to clearly reject the interpretation of ll144d of the present Manual with respect to chain of 

custody forms as set forth in UnitedStates v. Porter, 7 M.J. 32 (C.M.A.1979)and UnitedStates v.Nault, 4 M.J. 318 (C.M.A. 1978)insofar as they 

concerned chain of custody forms. 

Laboratory reports have been included in recognition of the function of forensic laboratories as impartial examining centers. The report is simply a 

record of 'kgularly conducted" activity of the laboratory. See, e.g.. United States v. Strangstalien, 7 M.J. 225 (C.M.A. 1979); United States v. 

Evans, 21 U.S.C.M.A. 579, 45 C.M.R. 353 (1972). 

hgraph 144d prevented a record "made principally with a view to prosecution, or other disciplinary or legal action . . ."from beiig admitted as 

a business record. The limitation has been deleted, but see Rule 803(8)(B)and its Analysis. It should be noted that a record of "regularly conducted 

activity" is unlikely to have a prosecutorial intent in any event. 

The fact that a record may fit within another exception, e.g., Rule 803(8), does not generally prevent it from being admissible under this 

subdivision although it would appear thatthe exclusion found in Rule 803(8)@)for "matters observed by police officers and other personnel acting in a 

law enforcement capacity" prevent any such record from beig admissible as a record of regularly conducted activity. Otherwise the limitation in 

subdivision (8)would serve no useful purpose. See also Analysis to Rule 803(8)(B). 

Rule 803(6)is generally similar to the present Manual mle but is potentially broader because of its use of the expression "regularly conducted" 

activityin additionto "business". It also permits records of opinion which areprohibited by ll144dof the present Manual. Offsetting these factors is the 

fact that the Rule requires that the memorandum was "made at or near the time by, or from information transmitted by a person with knowledge . . .", 

but 7 144c of the present Manual rule expressly does not require such knowledge as a condition of admissibility. 

(7)Absence dentry in records kept in accordance with the provisions Qparagraph (6).Rule 803(7)is taken verbatim from the Federal 

Rule.The Rule is similar to (ll143a(2)(h)and 143b(3) of the present Manual. 

(8)Public records and reports. Rule 803(8)has been taken generally from the Federal Rule but has been slightly modified to adapt it to the 

militaryenvironment. Rule 803(8)@)has been redrafted to apply to "police officers and other personnel acting in a law enforcement capacity" rather the 

Federal Rule's "police officers and other law enforcement personnel". The change was necessitated by the fact that all military personnel may act in a 

disciplinary capacity, Any officer, for example, regardless of assignment, may potentially act as a military policeman. The capacity within which a 

member of the armed forces acts may be critical. 

The Federal Rule was also moditied to include a list of records that, when made pursuant to a duty required by law, will be admissible 

notwithstanding the fact thatthey may have been made as "matters observed by police officers and other personnel acting in a law enforcement capacity." 

Their inclusion is a directresult of the fact, discussed above, that military personnel may all function within a law enforcement capacity. The Committee 

determined it would be impracticable and contrary to the intent of the Rule to allow the admissibility of records which are truly administrative in natwt 

and unrelated to the problems inherent in records prep& only for purposes of prosecution to depend upon whether the maker was at that given instant 

acting in a law enforcement capacity. The language involved is taken generally from 9 1446of the present Manual. Admissibility depends upon whether 

the record is "a record of a fact or event if made by a person within the scope of his official duties and those duties included a duty to how or ascertain 

through appmpriate and trustworthy channels of information the truth of the fact or event . . . ."Whether any given record was obtained in such a 

!n~stworthyfashion is a question for the military judge. The explicit limitation on admissibility of records made "principally with a view to prosecution" 

now found in ll 144dhas been deleted. 

The fact that a document may be admissible under another exception to the hearsay mle, e.g.,Rule 803(6),does not make it inadmissible under 

this subdivision. 

Military Rule of Evidence 803(8) raises numerous significant questions. Rule 803(8)(A)extends to "records, reports, statements, or data 

compilations" of public offices or agencies, setting forth (A)the activities of the office or agency." The term "public office or agency" within this 
ANALYSIS OF THE 1980 AMENDMENTS App. 22,M.R.E. 803(22) 

subdivision is defined to include any government office or agency includmg those of the armed forces. Within the civilian context, the definition of 

"public offices or agencies" is fairly clear and the line of demarcation between governmental and private action can be clearlydrawn in most cases. The 

same may not be true within the anned forces. It is unlikely that every action taken by a senicemember is an "activity" of the department of which he or 

she is a member. Presumably, Rule 803(8) should be reshicted to activities of formally sanctioned instrumentalities roughly similar to civilian entities. 

For example, the activities of a squadron headquarters or a staff section would come within the definition of "office or agency". Pursuant to this 

rationale, there is no need to have a militaryregulation or directive to make a statement of a "public office or agency" under Rule 803(8)(A). However, 

such regulations or directives might well be highly useful in establishing that a given administrative mechanism was indeed an "office or agency" within 

the meaning of the Rule. 

Rule 803(8)(B) encompasses "matters observed pursuant to duty imposed by law as to which matters there was a duty to report . . . ." This 

portion of Rule 803(8) is broader than subdivision (8)(A) as it extends to farmore than just the normal pdures of an office or agency. Perhaps because 

of this extent, it requires that there be a specific duty to observe and report. This duty could take the form of a statement, general order, regulation, or any 

competent order. 

The exclusion in the Federal Rule for "matters observed by police officers" was intended to prevent use of the exception for evaluative reports as the 

House Committee believed them to be unreliable. Because of the explicit language of the exclusion, normal statutory construction leads to the 

conclusion that reports which would be within Federal or Military Rule 803(8) but for the exclusion in (8)(B) are not otherwise admissible under Rule 

803(6). Otherwise the inclusion of the limitation would serve virtually no purpose whatsoever. There is no contradiction between the exclusion in Rule 

803(8)(B) and the specific documents made admissible in Rule 803(8) (and Rule 803(6)) because those documents are not matters "observed by police 

officersand other personnel acting in a law enforcement capacity." To the extent that they might be so considered, the specific language included by the 

Committee is expressly intended to reject the subdivision (8)(B) limitation. Note, however, that all forms of evidence not within the specific item listing 

of the Rule but within the (8)(B) exclusion will be admissible insofar as Rule 803(8) is concerned, whether the evidence is militaryor civilian in origin. 

A question not answered by Rule 803(8) is the extent to which a regulation or diitive may circumscribe Rule 803(8). Thus, if a regulation 

establishes a given format or procedure for a report which is not followed, is an otherwise admissible piece of evidence inadmissible for lack of 

conformity with the regulation or directive? The Committee did not address this issue in the context of adopting the Rule. However, it would be at least 

logical to argue that a record not made in substantial conformity with an implementing directive is not sufficiently reliable to be admissible. See, e.g., 

Rule 403. Certainly, military case law predating the Military Rules may resolve this matter to the extent to which it is not based purely on now obsolete 

Manual provisions. As the modifications to subdivision (8) dealing with specific records retains the present Manual language, it is particularly likely that 

present case law will survive in this area. 

Rule 803(8)(C) makes admissible, but only against the Government, "factual findings resulting from an investigation made pursuant to authority 

granted by law, unless the sources of information or other circumstances indicate lack of trusthworthiness." This provision will make factual findings 

made, for example, by an Article 32 Investigating Officer or by a Court of Inquiry admissible on behalf of an accused. Because the provision applies 

only to "factual findings," great care must be taken to distinguish such factual determinations from opinions, recommendations, and incidental 

inferences. 

(9) Records of vital statistics. Rule 803(9) is taken verbatim from the Federal Rule and has no express equivalent in the present Manual. 

(10) Absence ofpublic record or entry. Rule 803(10) is taken verbatim from the Federal Rules and is similar to present Manual 7 143a(2)(g). 

(11-13) Records of religious organizations: Marriage, baptismal, and similar certijcates: Family records. Rule 802(11)-(13) are all taken 

verbatim from the Federal Rule and have no express equivalents in the present Manual. 

(14-16) Records of documents afJecting an interest in property: Statements in documents afJecting an interest in property; statements in 

ancient documents. Rules 803(14)-(16) are taken verbatim from the Federal Rule and have no express equivalent in the present Manual. Although 

intended primarily for civil cases, they all have potential importance to courts-martial. 

(17) Market reports, commerical publications. Rule 803(17) is taken generally from the Federal Rule. Government price lists have been added 

because of the degree of reliance placed upon them in military life. Although included within the general Rule, the Committee believed it inappropriate 

and impracticable not to clanfy the matter by specific reference. The Rule is sdar in scope and effect to Manual II 144f except that it lacks the 

Manual's specific reference to an absence of entries. The effect, if any, of the difference is unclear. 

(18) Learned treaties. Rule 803(18) is taken from the Federal Rule without change. Unlike 7 138e of the present Manual, which allowed use of 

such statements only for impeachment, this Rule allows substantive use on the merits of statements within treaties if relied upon in direct testimony or 

called to the expert's attention on cross-examination. Such statement may not, however, be given to the fact finder as exhibits. 

(19-20) Reputation concerning personal or family history; reputation concerning boundaries or general history. Rules 803(19)-(20) are 

taken without change from the Federal Rule and have no express equivalents in the present Manual. 

(21)Reputation as to character. Rule 803(21) is taken from the Federal Rule without change. It is similar to 7 138f of the present Manual in that it 

creates an exception to the hearsay rule for r e p . "Reputation" and "community" are defined in Rule 405(d), and "community" includes a 

"military organization regardless of size". Affidavits and other written statements are admissible to show character under Rule 405(c), and, when 

offered pursuant to that Rule, are an exception to the hearsay rule. 

(22) Judgment or previous conviction. Rule 803(22) is taken from the Federal Rule but has been modified to recognize convictions of a crime 

punishable by a dishonorable discharge, a unique punishment not present in civilian life. See also Rule 609 and its Analysis. 

There is no equivalent to this Rule in militarylaw. Although the Federal Rule is clearly applicable to criminal cases, its original intent was to allow 

use of a prior criminal conviction in a subsequent civil action. To the extent that it is used for criminal cases, significant constitutional issues are raised, 

especially if the prior conviction is a foreign one, a question almost certainly not anticipated by the Federal Rules Advisory Committee. 
App. 22, M.R.E. 803(23) APPENDIX 22 

(23) Judgment as to personal, family or general history, or boundaries. Rule 803(23) is taken verbatim hm the Federal Rule, and has no 

express equivalent in the present Manual. Although intended primarily for civil cases, it clearly has potential use in courts-martial for such matters as 

proof of jurisdiction. 

(24) Other exceptions. Rule 803(24) is taken from the Federal Rule without change. It has no express equivalent in the present Manual as it 

establishes a general exception to the hearsay Rule. The Rule implements the general policy behind the Rules of permitting admission of probative and 

reliable evidence. Not only must the evidence in question satisfy the threeconditions listed in the Rule (materiality, more probative on the point than any 

other evidence which can be reasonably obtained, and admission would be in the interest of justice) but the procedural requirements of notice must ,be 

complied with. The extent to which this exception may be employed is unclear. The Article KU courts have divided as to whether the exception may be 

used only in extraordinary cases or whether it may have more general application. It is the intent of the Committee that the Rule be employed in the same 

manner as it is generally applied in the Article Ill courts. Because the general exception found in Rule 803(24) is basically one intended to apply to 

highly reliable and necessary evidence, recourse to the theory behind the hearsay rule itself may be helpful. In any given case, both trial and defense 

counsel may wish to examine the hearsay evidence in question to determine how well it relates to the four traditional considerations usually invoked to 

exclude hearsay testimony: how truthful was the original declarant? to what extent were his or her powers of observation adequate? was the declaration 

truthful? was the original declarant able to adequately communicate the statement? Measuring evidence against this framework should assist in 

determining the reliability of the evidence. Rule 803(24) itself requires the necessity which is the other usual justification for hearsay exceptions. 

Rule 804. Hearsay Exceptions; Declarant Unavailable 

(a)Dejnition ofunavailability. Subdivisions (a)(l)-(a)(5) of Rule 804 are taken from the Federal Rule without change and are generally similar to the 

relevant portions of ?Ill 145a and 145bof the present Manual, except that Rule 804(a)(3) provides that a witness who "testifies as to a lack of memory of 

the subject matter of the declarant's statement" is unavailable. The Rule also does not distinguish between capital and non-capital cases. 

Rule 804(a)(6) is new and has been added in recognition of ceh problems, such as combat operations, that areunique to the armed forces. Thus, 

Rule 804(a)(6) will make unavailable a witness who is unable to appear and test@ in person for reason of military necessity within the meaning of 

Article 49(d)(2). The meaning of "military necessity" must be determined by reference to the cases conshuing Article 49. The expression is not 

intended to be a general escape clause, but must be restricted to the limited circumstances that would permit use of a deposition. 

(b) Hearsay exceptions 

(1) Former testimony. The first portion of Rule 804(b)(l) is taken from the Federal Rule with omission of the language relating to civil cases. The 

second portion is new and has been included to clanfy the extent to which those military tribunals in which a verbatim record normally is not kept come 

within the Rule. 

The first portion of Rule 804(b)(l) makes admissible former testimony when "the party against whom the testimony is now offered had an 

opportunity and similar motive to develop the testimony by direct, cross, or redirect examination." Unlike ll 145b ofthe present Manual, the Rule does 

not explicitly require that the accused, when the evidence is offered against him or her, have been "afforded at the former trial an opportunity, to be 

adequately represented by counsel." Such a requirement should be read into the Rule's condition that the party have had "opportunity and similar 

motive." In contrast to the present Manual, the Rule does not distinguish between capital and non-capital cases. 

The second portion of Rule 804(b)(l) has been included to ensure that testimony from military tribunals, many of which ordinarily do not have 

verbatimrecords, will not be admissible unless such testimony is presented in the form of a verbatim record. The Committee believed substantive use of 

former testimony to be too important to be presented in the form of an incomplete statement. 

Investigations under Article 32 of the Uniform Code of Military Justice present a special problem. Rule 804(b)(l) requires that "the party against 

whom the testimony is now offered had an opportunity and similar motive to develop the testimony" at the first hearing. The "similar motive" 

requirement was intended primarily to ensure sufficient identity of issues between the two proceedings and thus to ensure an adequate interest in 

examination of the witness. See, e.g., J. WEINSTEIN & M. BERGER, WEINSTEIN'S EVIDENCE ll 804(b)(1)[(04)](1978). Because Article 32 

hearings represent a unique hybrid of preliminary hearings and grand juries with features dissimilar to both, it was particularly difficult for the 

Committee to determine exactly how subdivision (b)(l) of the Federal Rule would apply to Article 32 hearings. The specific difficulty stems from the 

fact that Article 32 hearings were intended by Congress to function as discovery devices for the defense as well as to recommend an appropriate 

disposition of charges to the convening authority. Hutson v. United States, 19 U.S.C.M.A. 437,42 C.M.R. 39 (1970); United States v. Samuels, 10 

U.S.C.M.A. 206,212, 27 C.M.R. 280, 286 (1959). See generally, Hearing on H.R. 2498 Before a Subcomm. ofthe House Comm. on Armed 

Services, 81st Cong., 1st Sess., 997 (1949). It is thus permissible, for example, for a defense counsel to limit cross-examination of an adverse witness at 

an Article 32 hearing using the opportunity for discovery, alone, for example, rather than impeachment. In such a case, the defense would not have the 

requisite "similar motive" found within Rule 804@)(1). 

Notwithstanding the inherent difficulty of determining the defense counsel's motive at an Article 32 hearing, the Rule is explicitly intended to 

prohibit use of testimony given atanArticle 32 hearing unless the requisite "similar motive" was present during that hearing. It is clear that some Article 

32 testimony is admissible under the Rule notwithstanding the Congressionally sanctioned discovery purpose of the Article 32 hearing. Consequently, 

one is left with the question of the extent to which the Rule actually does apply to Arhcle 32 testimony. The only apparent practical solution to what is 

otherwise an irresolvable dilemma is to read the Rule as permitting only Article 32 testimony preserved via a verbatim record that is not objected to as 

having been obtained without the requisite "similar motive." Me defense counsel's assertion of his or her intent in not examining one or more 

witnesses or in not fully examining a specific witness is not binding upon the military judge, clearly the burden of establishing admissibility under the 

Rule is on the prosecution and the burden so placed may be impossible to meet should the defense counsel adequately raise the issue. As a matter of good 

trial practice, a defense counsel who is limiting cross-examination at the Article 32 hearing because of discovery should announce that intent sometime 

during the Article 32 hearing sothat the announcement may provide early notice to all concerned and hopefully avoid the necessity for counsel to test@ 

at the later trial. 

The Federal Rule was modified by the Committee to require that testimony offered under Rule 804(b)(l) which was originally "given before 
ANALYSIS OF THE 1980 AMENDMENTS App. 22, M.R.E. 805 

courts-martial, courts of inquiry, military commissions, other military tribunals, and before proceedings pursuant to or equivalent to those required by 

Article 32" and which is otherwise admissible under the Rule be offered in the form of a verbatim record. The modification was intended to ensure 

accuracy in view of the fact that only summarized or minimal records are required of some types of military proceedings. 

An Article 32 hearing is a "military tribunal." The Rule distinguishes between Article 32 hearings and other military tribunals in order to recognize 

that there are other proceedings which are considered the equivalent of Article 32 hearings for purposes of former testimony under Rule 804@)(1). 

(2)Statement under belief ofimpending death. Rule 804(b)(2) is taken from the Federal Rule except that the language, "for any offense resulting 

in the death of the alleged victim," has been added and reference to civil proceedings has been omitted. The new language has been added because there 

is no justification for limiting the exception only to those cases in which a homicide charge has actually been preferred. Due to the violent nature of 

military operations, it may be appropriate to charge a lesser included offense rather than homicide. The same justifications for the exception are 

applicable to lesser included offenses which are also, of course, of lesser severity. The additional language, taken from TI 142a, thus retains the present 

Manual rule, modification of which was viewed as being impracticable. 

Rule 804(b)(2) is similar to the dying declaration exception found in TI 142a of the present Manual, except that the Military Rule does not require 

that the declarant be dead. So long as the declarant is unavailable and the offense is one for homicide or other offense resulting in the death of the alleged 

victim, the hearsay exception may be applicable. This could, for example, result from a situation in which the accused, intending to shoot A, shoots both 

A and B; A utters the hearsay statement, under a belief of impending death, B dies, and although A recovers, A is unavailable to tese at trial. Ina trial 

of the accused for killing B, A's statement will be admissible. 

There is no requirement that death immediately follow the declaration, but the declaration is not admissible under this exception ifthe declarant had 

a hope of recoveqi. The declaration may be made by spoken words or intelligible signs or may be in writing. It may be spontaneous or in response to 

solicitation, including leading questions. The utmost care should be exercised in weighing statements offered under this exception since they are often 

made under circumstances of mental and physical debility and are not subject to the usual tests of veracity. The military judge may exclude those 

declarations which are viewed as being unreliable. See, e.g., Rule 403. 

A dying declaration and its maker may be contradicted and impeached in the same manner as other testimony and witnesses. Under the present law, 

the fact that the deceased did not believe in a deity or in future rewards or punishments may be offered to affect the weight of a declaration offered under 

this Rule but does not defeat admissibility. Whether such evidence is now admissible in the light of Rule 610 is unclear. 

(3) Statement against interest. Rule 804(b) is taken from the Federal Rule without change, and has no express equivalent in the Manual. It has, 

however, been made applicable by case law, UnitedStates v. Johnson, 3 M.J. 143 (C.M.A. 1977). It makes admissible statements against a declarant's 

interest, whether pecuniary, pmprietary, or penal when a reasonable person in the position of the declarant would not have made the statement unless 

such a person would have believed it to be he. 

The Rule expressly recognizes the penal interest exception and permits a statement tending to expose the declarant to criminal liability. The penal 

interest exception is qualified, however, when the declaration is offered to exculpate the accused by requiring the "corroborating circumstances clearly 

indicate the hustworthiness of the statement." This requirement is applicable, for example, when a third party confesses to the offense the accused is 

being tried for and the accused offers the third party's statement in evidence to exculpate the accused. The basic penal interest exception is established as 

a matter of constitutional law by the Supreme C o decision in Chambers v. Mississippi, 410 U.S. 284 (1973), which may be broader than the Rule as 

the case may not require either corroborating evidence or an unavailable declarant. 

In its present form, the Rule fails to address a particularly vexing probledat of the declaration against penal interest which implicates the 

accused as well as the declarant. On the face of the Rule, such a statement should be admissible, subject to the effects, if any, of Bruton v. UnitedStates, 

391 U.S. 123 (1968) and Rule 306. Notwithstanding this, there is considerable doubt as to the applicability of the Rule to such a situation. See 

generally, 4 J. WEINSTEIN & M. BERGER, WEINSTEIN'S EVIDENCE 804-93,804-16 (1978). Although the legislative history reflects an early 

desire on the part of the Federal Rules of Evidence Advisory Committee to prohibit such testimony, a provision doing so was not included in the material 

reviewed by Congress. Although the House included such a provision, it did so apparently in large part based upon a view that Bruton, supra, 

prohibitedsuch statementsarguably an erroneous view of Bruton, supra, see, e.g., Bruton v. UnitedStates, 391 U.S. 123,128, n. 3 (1968); Dutton 

v. Evans, 400 U.S. 74 (1970). The Conference Committee deleted the House provision, following the Senate's desires, because it believed it 

inappropriate to 'c* constitutional evidentiary principles" WEINSTEIN'S EVIDENCE at 804-16 (1978) citing CONG. REC. H 1193 1-32 (daily 

ed. Dec. 14,1974). Thus, applicability of the hearsay exception to individuals implicating the accused may well rest only on the extent to which Bruton, 

supra, govems such statement. The Committee intends that the Rule extend to such statements to the same extent that subdivision 804(b)(4) is held by 

the Article III courts to apply to such statements. 

(4) Statement ofpersonal or family history. Rule 804(b)(4) of the Federal Rule is taken verbatim from the Federal Rule, and has no express 

equivalent in the present Manual. The primary feature of Rule 803@)(4)(A) is its application even though the "declarant had no means of acquiring 

personal howledge of the matter stated." 

(5) Other exceptions. Rule 804(b)(5) is taken without change from the Federal Rule and is identical to Rule 803(24). As Rule 803 applies to 

hearsay statements regardless of the declarant's availability or lack thereof, this subdivision is actually superfluous. As to its effect, see the Analysis to 

Rule 803(24). 

Rule 805. Hearsay Within Hearsay 

Rule 805 is taken verbatim from the Federal Rule. Although the Manual does not explicitly address the issue, the military rule is identical with the 

new Rule. 
App. 22, M.R.E. 806 APPENDIX 22 

Rule806. Attacking and Supportlng Credlblllty of Declarant 

Rule 806is taken from the Federal Rule without change. It restates the present militaryrule that a hearsay declarant or statement may always . be . 

contradicted or impeached. The Rule eliminates any requirement that the declarant be given "an opportunity to deny or explain" an inconsistent 

statement or inconsistent conduct when such statement or conduct is offered to attack the hearsav statement. As a result. Rule 806 su~ersedes Rule 

613(b) which would require such an opportunity for a statement inconsistent with in-court testimony. 

Sectlon IX. Authentication and ldentlficatlon 

Rule 901. Requlrement of Authentication or ldentlficatlon 

(a) General provision. Rule 901(a) is taken verbatim from the Federal Rule, and is similar to 7 143b of the present Manual, which states in 

pertinent part that: "A writing may be authenticated by any competent proof that it is genuin-is in fact what it purports or is claimed to be." Unlike the 

Manual provision, however, Rule 901(a) is not limited to writings and consequently is broader in scope. The Rule supports the requirement for logical 

relevance. See Rule 401. 

There is substantial question as to the proper interpretation of the Federal Rule equivalent of Rule 901(a). The Rule requires only "evidence 

sufficient to support a finding that the matter inquestion is what its proponent claims." It is possible that this phrasing supersedes any formulaic approach 

to authentication and that rigid rules such as those that have been devised to authenticate taped recordings, for example, are no longer valid. On the other 

hand, it appears fully appropriate for a trial judge to require such evidence as is needed "to support a finding that the matter in question is what its 

proponent claims," which evidence may echo in some cases the common law formulations. There appears to be no reason to believe that the Rule will 

change the present law as it affects chains of custody for real evidenwspecially if fungible. Present case law would appear to be consistent with the 

new Rule becausethe chain of custody requirement has not been applied in a rigid fashion. A chain of custody will still be requiredwhen it is necessary 

to show that the evidence is what it is claimed to be and, when appropriate, that its condition is unchanged. Rule 901(a) may make authentication 

somewhat easier, but is unlikely to make a substantial change in most areas of military practice. 

As is generally the case, failure to object to evidence on the grounds of lack of authentication will waive the objection. See Rule 103(a). 

(b)Illustrations. Rule 901@) is taken verbatim from the Federal Rule with the exception of a modification to Rule 901@)(10). Rule 901@)(10) has been 

modified by the addition of "or by applicable regulations prescribed pursuant to statutory authority." The new language was added because it was viewed 

as impracticable in military practice to requirestatutory or Supreme Court action to add authentication methods. The world wide disposition of the 

armed forces with their frequent redeployments may require rapid adjustments in authentication procedures to preclude substantial interference with 

personnel practices needed to ensure operational efficiency. The new language does not require new statutory authority. Rather, the present authority that 

exists for the various Service and Departmental Secretaries to issue those regulations necessary for the day to day operations of their departments is 

sufficient. 

Rule 901(b) is a non-exhaustive list of illustrative examples of authentication techniques. None of the examples are inconsistent with present 

military law and many are found within the present Manual, see, e.g., 7 1436. Self-authentication is governed by Rule 902. 

Rule 902. Self-Authentlcatlon 

Rule 902 has been taken from the Federal Rule without significant change except that a new subdivision, 4a, has been added and subdivisions (4) 

and (10) have been modified. The Rule prescribes forms of self-authentification. 

(1) Domestic public documents under seal. Rule W(1) is taken verbatim from the Federal Rule, and is similar to aspects of 77 143b(2)(c) and 

(d) of the present Manual. The Rule does not distinguish between original documents and copies. A seal is self-authenticating and, in the absence of 

evidence to the contrary, is presumed genuine. Judicial notice is not required. 

(2)Domestic public documents not under seal. Rule 902(2) is taken from the Federal Rule without change. It is similar in scope to aspects of 

77 1436(2)(c) and (d) of the present Manual in that it authorizes use of a certification under seal to authenticate a public document not itself under seal. 

This provision is not the only means of authenticating a domestic public record under this Rule. Compare Rule 902(4); 902(4a). 

(3) Foreign public documents. Rule 902(3) is taken without change from the Federal Rule. Although the Rule is similar to 77 143b(2)(e) and (Q 

of the present Manual, the Rule is potentially narrower than the present military one as the Rule does not permit "final certification" to be made by 

military personnel as does the Manual rule nor does it permit authentication made by military personnel as does the Manual rule nor does it permit 

authentication made solely pursuant to the laws of the foreign nation. On the other hand, the Rule expressly pennits the militaryjudge to order foreign 

documents to ''be treated as presumptively authentic without final certification or permit them to be evidenced by an attested summary with or without 

final certification." 

(4) Cert$ed copies @public records. Rule 902(4) is taken verbatim from the Federal Rule except that it has been modified by adding "or 

applicable regulation prescribed pursuant to statutory authority." The additional language is required by militarynecessity and includes the now existing 

statutory powers of the President and various Secretaries to promulgate regulations. See, generally, Analysis to Rule 901(b). 

Rule W(4) expands upon prior forms of self-authentication to acknowledge the propriety of certified public records or reports and related 

materials domestic or foreign, the certification of which complies with subdivisions (I), (2), or (3) of the Rule. 

(4a) Documents or records of the United States accompanied by attesting certificates. This provision is new and is taken from the third 

subparagraph of 7 143b(2)(c) of the present Manual. It has been inserted due to the necessity to facilitate records of the United States in general and 

military records in particular. Military personnel do not have seals and it would not be practicable to either issue them or require submission of 

documents to those officials with them. In many cases, such a requirement would be impossible to comply with due to geographical isolation or the 

unwarranted time such a requirement could demand. 
ANALYSIS OF THE 1980 AMENDMENTS App. 22, M.R.E. 1004 

An "attesting certificate" is a certificate or statement, signed by the custodian of the record or the deputy or assistant of the custodian, which in any 

form indicates that the writing to which the certificate or statement refers is a true copy of the record or an accurate "translation" of a machine, electronic, 

or coded record, and the signer of the certificate or statement is acting in an official capacity as the person having custody of the record or as the deputy or 

assistant thereof. 

II 143(2)(a)of the present Manual. An attesting certificate does not require further authentication and, absent proof to the contrary, the signature of 

the custodian or deputy or assistant thereof on the certificate is presumed to be genuine. 

(5-9) Of/icial publications; Newspapers andperiodicals; Trade inscriptions and the like; Acknowledged documents; Commercial paper and 

related documents. Rules 902(5)-(9)are taken verbatim from the Federal Rule and have no equivalents in the Manual or in military law. 

(10)Presumptions under Acts of Congress and Regulations. Rule 902(10)was taken from the Federal Rule but was modified by adding "and 

Regulations" in the caption and "or by applicable regulation prescribed pursuant to statutory authority." See generally the Analysis to Rule 901(10)for 

the reasons for the additional language. The statutory authority referred to includes the presently existing authority for the President and various 

Secretaries to prescribe regulations. 

Rule 903. Subscribing Wltness' Testimony Unnecessary 

Rule 903 is taken verbatim from the Federal Rule and has no express equivalent in the present Manual. 

Sectlon X. Contents of Writings, Recordlngs, and Photographs 

Rule 1001. Definltions 

(1) Writings and recordings. Rule 1001(1) is taken verbatim from the Federal Rule and is similar in scope to Manual 7 143d of the present 

Manual. Although the present Manual is somewhat more detailed, the Manual was clearly intended to be expansive. The Rule adequately accomplishes 

the identical purpose through a more general reference. 

(2)Photographs. Rule 1001(2)is taken verbatim from the Federal Rule and has no express equivalent in the present Manual. It does, however, 

reflect current military law. 

(3)Original. Rule 1001(3) is taken verbatim from the Federal Rule and is similar to 1 143a(l) of the present Manual. The present Manual, 

however, treats "duplicate originals", i.e., carbon and photographic copies made for use as an original, as an "original" while Rule 1001(4)treats such a 

document as a "duplicate." 

(4)Duplicate. Rule 1001(4)is taken from the Federal Rule verbatim and includes those documents ll 143a(l)of the present Manual defines as 

"duplicate originals." In view of Rule 1003's rule of admissibility for "duplicates," no appreciable negative result stems from the reclassification. 

Rule 1002. Requirement of an Orlginal 

Rule 1002 is taken verbatim from the Federal Rule except that "this Manual" has been added in recognition of the efficacy of other Manual 

provisions. The Rule is similar in scope to the best evidence rule found in 7 143a(19)of the present Manual except that specific reference is made in the 

rule to recordings and photographs. Unlike the present Manual, the Rule does not contain the misleading reference to "best evidence" and is plainly 

applicable only to writings, recordings, or photographs. 

It should be noted that the various exceptions to Rule 1002 are similar to but not identical with those found in the present Manual. Compare Rules 

1005-1007 with II 143a(2)(f)of the present Manual. For example, llII 143a(2)(e)and 144c of the present Manual exempt banking records and business 

records from the rule as categories while the Rule does not. The actual difference in practice, however, is not likely to be substantial as Rule 1003 allows 

admission of duplicates unless, for example, "a genuine question is raised as to the authenticity of the original." This is similar in result to the Manual's 

treatment of business records in 7 144a of the present Manual. Omission of other Manual exceptions, e.g., certificates of fingerprint comparison and 

identity, see Rules 703,803,evidence of absence of official or business entries, and copies of telegrams and radiograms, do not appear substantial when 

viewed against the entirety of the Military Rules which are likely to allow admissibility in a number of ways. 

The Rule's reference to "Act of Congress" will now incorporate those statutes that specifically direct that the best evidence rule be inapplicable in 

one form or another. See, e.g., 1 U.S.C. 5 209 (copies of District of Columbia Codes ofLaws). As a rule, such statutes permit a form of authentication 

as an adequate substitute for the original document. 

Rule 1003. Admisslbllity of Dupllcates 

Rule 1003 is taken verbatim from the Federal Rule. It is both similar to and distinct from the present Manual. To the extent that the Rule deals with 

those copies which were intended at the time of their creation to be used as originals, it is similar to the present Manual's treatment of "duplicate 

originals," II 143a(l),except that under the present Manual there is no distinction to be made between originals and "duplicate originals". Accordingly, 

in this case the Rule would be narrower than the present Manual. To the extent that the Rule deals with copies not intended at their time of creation to 

serve as originals, however, e.g., when copies are made of preexisting documents for the purpose of litigation, the Rule is broader than the present 

Manual because the present Manual would prohibit such evidence unless an adequate justification for the non-production of the original existed. 

Rule 1004. Admlsslbillty of Other Evldence of Contents 

Rule 1004 is taken from the Federal Rule without change, and is similar in scope to the present Manual. Once evidence comes within the scope of 

Rule 1004, secondary evidence is admissible without regard to whether "better" forms of that evidence can be obtained. Thus, no priority is established 

once Rule 1002 is escaped. Although the present Manual states in ( 143a(2) that "the contents may be proved by an authenticated copy or by the 
App. 22, M.R.E. 1004(1) APPENDIX 22 

testimony of a witness who has seen and can remember the substance of the writing" when the original need not be produced, that phrasing appears 

illustrative only and not exclusive. Accordingly, the Rule, the Manual, and common law are in agreement in not requiring categories of secondary 

evidence. 

(1) Originals lost or destroyed. Rule 1004(1) is similar to the present Manual except that the Rule explicitly exempts originals destroyed in "bad 

faith." Such an exemption is implicit in the present Manual. 

(2) Original not obtained. Rule 1004(2) is similar to the justification for nonproduction in % 143a(2) of the present Manual, "an admissible 

writing . . . cannot feasibly be produced." 

(3) Original in possession of opponent. Rule 1004(3) is similar to the present Manual provision in 7 143a(2) that when a document is in the 

possesion of the accused the original need not be produced except that the present Manual explicitly does not require notice to the accused, and the Rule 

may require such notice. Under the Rule, the accused must be "put on notice, by the pleadings or otherwise, that the contents would be a subject of proof 

at the hearing." Thus, under certain circumstances, a formal notice to the accused may be required. Under no circumstances should such a request or 

notice be made in the presence of the court members. The only purpose of such notice is to jushfy use of secondary evidence and does not serve to 

compel the surrender of evidence from the accused. It should be noted that Rule 1004(3) actsin favor of the accused as well as the prosecution and allows 

notice to the prosecution to justify defense use of secondary evidence. 

(4) Collateral matters. Rule 1004 is not found within the Manual but restates present military law. The intent behind the Rule is to avoid 

unnecessary delays and expense. It is important to note that important matters which may appear collateral may not be so in fact due to their weight. See, 

e.g., Unitedstates v. Parker, 13 U.S.C.M.A 579,33 C.M.R. 11 1 (1963) (validity of divorce decree ofcritical prosecution witnessnot collateral when 

witness would be prevented from teshfylng due to spousal privilege if the divorce were not valid). The Rule incorporates this via its use of the expression 

"related to a controlling issue." 

Rule 1005. Public Records 

Rule 1005 is taken verbatim from the Federal Rule except that "or attested to" has been added to conform the Rule to the new Rule 902(4a). The 

Rule is generally similar to Manual 7 143a(2)(c) of the present Manual although some differences do exist, however. The Rule is somewhat broader in 

that is applies to more than just "official records." Further, although the present Manual permits "a properly authenticated" copy in lieu of the official 

record, the Rule allows secondary evidence of contents when a certified or attested copy cannot be obtained by the exercise of reasonable diligence." 

The Rule does, however, have a preference for a certified or aitested copy. 

Rule 1006. Summaries 

Rule 1006 is taken fromthe Federal Rule without change, and is similar to the exception to the best evidence rule now found in % 143a(2)@) of the 

present Manual. Some difference between the Rule and the present Manual exists, however, because the Rule permits use of "a chart, summary, or 

calculation" while the Manual permits only "a summarization." Additionally, the Rule does not include the present Manual requirement that the 

summarizationbe made by a "qualified person or group of qualified persons," nor does the Rule require, as the Manual appears to, that the preparer of 

the chart, summary, or calculation testify in order to authenticate the document. The nam of the authentication required is not clear although some fom 

of authentication is required under Rule 901(a). 

It is possible for a summary that is admissible under Rule 1006 to include information that would not itself be admissible if that information is 

reasonably relied upon by an expert preparing the summary. See generally Rule 703 and S. SALTZBURG & K. REDDEN, FEDERAL RULES OF 

EVIDENCE MANUAL 694 (2d ed. 1977). 

Rule 1007. Testimony or Wrltten Admission of Party 

Rule 1007 is taken fromthe Federal Rule without change and has no express equivalent in the present Manual. The Rule establishes anexception to 

Rule 1002 by dowing the contents of a writing, recording or photograph to be proven "by the testimony or deposition of the party against whom offered 

or by the pw's written admission." 

Rule 1008. Functions of Military Judge and Members 

Rule 1008 is taken from the Federal Rule without change, and has no formal equivalent in current military practice. The Rule specifies three 

situations in which the members must determine issues which have been conditionally determined by the militaryjudge. The members have been given 

this responsibility in this narrow range of issues because the issues that are involved go to the very heart of a case and may prove totally dispositive. 

Perhaps the best example stems from civil practice. Should the trial judge in a contract action determine that an exhibit is in fact the original of a 

contested contract, thatadmissibility decision could determine the ultimate result of trial if the jury were not given the opportunity to be the ha1arbiter 

of the issue. A similar situation could result in a criminal case for example in which the substance of a contested written confession is determinative (this 

would be rare because in most cases the fact that a written confession was made is unimportant, and the only relevant matter is the content of the oral 

statement that was later transcribed) or in a case in which the accused is charged with communication of a written threat. A decision by the militaryjudge 

that a given version is authentic could easily determine the hid. Rule 1008 would give the member the final decision as to accuracy. Although Rule 1008 

will rarely be relevant to the usualcour&-martial, it will adequately protect the accused from having the case against him or her depend uponasingle best 

evidence determination by the military judge. 

Section XI. Miscellaneous Rules 

Rule 1101. Applicability of Rules 

The Federal Rule has been revised extensively to adapt it to the military criminal legal system. Subdivision (a) of the Federal Rule specifies the 

types of courts to which the Federal Rules are applicable, and Subdivision (b)of the Federal Rule specifies the types of pmceedmgs to be governed by 
ANALYSIS OF THE 1980 AMENDMENTS App. 22, M.R.E. 1103 

the Federal Rules. These sections are inapplicable to the military criminal legal system and consequently were deleted. Similarly, most of the Federal 

Rule of Evidence 1101(d) is inapplicable to military law due to the vastly diierent jurisdiction involved. 

(a) Rules applicable. Rule 1101(a) specifies that the Military Rules are applicable to all courts-martial including summary courts-martial, to Article 

39(a) prccedmgs, limited factfinding proceedings ordered cn review, revision proceedings and contempt proceedings. This limited application is a 

direct result of the limited jurisdiction available to courts-martial. 

@)Rules @privilege. Rule 1101@) is taken from subdivision (c) of the Federal Rule and is similar to present military law. Unlike the Federal Rules, the 

MilitaryRules contain detailed privileges rather than a general reference to common law. Compare Federal Rule of Evidence 501 with MilitaryRule of 

Evidence 501-512. 

(c) Rules relared. Rule 1101(c) conforms the rules of evidence to military sentencing procedures as set forth in Manual 7 75c. Courts-martial are 

bifurcated proceedings with sentencing being an adversarial proceeding. Partial application of the rules of evidence is thus appmpriate. The Rule also 

recognizes the possibility that other Manual pmvisions may now or later affect the application of the rules of evidence. 

(d) Rules inapplicable. Rule 1101(d) is taken in concept from subdivision (d) of the Federal Rule. As the content of the Federal Rule is, however, 

generally inapplicable to militarylaw, the equivalents of the Article IIIpmceedings listed in Federal Rule have been listed here. They include Article 32 

investigative hearings, the partial analog to grand jury proceedings, proceedings for search authorizations, and proceedings for pretrial release. 

Rule 1102. Amendments 

Rule 1102 has been substantially revised from the original Federal Rule which sets forh a procedure by which the Supreme Court promulgates 

amendments to the Federal Rules subject to Congressional objection. Although it is the Committee's intent that the Federal Rules of Evidence apply to 

the armed forces to the extent practicable, see Article 36(a), the Federal Rules are often in need of modification to adapt them to the military criminal 

legal system. Further, some rules may be impracticable. As Congress may make changes during the initial period following Supreme Court publication, 

some period of time after an amendment's effective date was considerd essential for the armed forces to review the final form of amendments and to 

pmpose any necessary modifications to the President. Six months was considered the minimally appmpriate time period. 

Amendments to the Federal Rules are not applicable to the armed forces until 180 days after the effective date of such amendment, unless the 

President directs earlier application. In the absence of any Presidential action, however, an amendment to the Federal Rules of Evidence will be 

automatically applicable on the 180th day after its effective date. The President may, however, affirmatively direct that any such amendment not apply, in 

whole or part, to the armed forces and that direction shall be binding upon courts-martial. 

Rule 1103. Title 

In choosing the title, Military Rules of Evidence, the Committee intends that it be clear that military evidentiary law should echo the civilian 

federal law to the extent practicable, but should also ensure that the unique and critical reasons behind the separate military criminal legal system be 

adequately served. 
Abanaoned property. seizure of ............................. 
 Abandoned property of enemy. offenses concerning .......... 


Abandonlng guard or watch .............................. See also Sentlnel or lookout . Abandonment or surrender of command. mllitary property. 

place. unlt. or shlp 

Shamefully ............................................ 
 Subordinate compelling .................................. 
 Abettor .................................................. See also Prlnclpals. Absence 


Accused's 


Aftertrial ....................................... 
 During pretrial conference .......................... 


During pretrial investigation ........................ 
 Duringtrial ...................................... 
 Speedy trial. effect on ............................. 


Defense counsel. during trial .............................. 
 Members .............................................. 
 Military judge .......................................... 


Trialcounsel. duringtrial ................................ 
 Absence without leave ................................... See also Desertion 

Accessory 

After the fact .......................................... 
 Before the fact ......................................... 


Accident 

As defense ............................................ Fleeing scene of ........................................ 

Accomplices 

See also Conspiracy; Jolnt trlal; Principals . Co-conspirators ......................................... Jointcharge ............................................ Accused 

See also specific topics . Absence of 


After trial ....................................... 
 During pretrial conference .......................... 
 During pretrial investigation ........................ 


During trial ...................................... 
 Speedy trial. effect on ............................. 
 Action. service of ....................................... 

Announcement of presence in court ........................ Appearance of. at trial ................................... 

Appellate rights. advice 

By defense counsel ............................... 
 Bymilitaryjudge ................................. 

Character evidence ...................................... Charges 

Notification of .................................... 
 Service of ...................................... Composition of court.martial. elections ..................... Conferences 

Presenceat ...................................... Rights at ........................................ Counsel 

See also Counsel; Defense counsel . Explanation at trial qf rights to ...................... 


Ref. 
 ~i1..R. Evid. 3 16(d)(l) ..... 


IV. Para. 27 .............. 
 N.Para. lOb(4) ........... 


IV.Para.23 .............. 
 IV. Para. 24 .............. 
 IV. Para. Ib(l), (2)(b) ...... 

R.C.M. 1104(b)(l)(C) ...... 

R.C.M. 802(d) ............ 
 R.C.M. 405(h)(4) .......... 


R.C.M. 804 .............. 
 R.C.M. 707(c)(6) .......... 
 R.C.M. 805(c) ............ 


R.C.M. 805(b) ............ 


R.C.M. 805(a) ............ 
 R.C.M. 805(c) ............ 


IV. Para. 10 .............. 


IV. Para. 3 ............... 
 IV. Para lb(1) ............. 


R.C.M. 916(f) ............ 
 IV. Para. 82 .............. 


IV. Para. 5c ............... 
 R.C.M. 307(c)(5) .......... 


R.C.M. 1104(b)(l)(C) ...... 

R.C.M. 802(d) ............ 
 R.C.M. 405(h)(4) .......... 
 R.C.M. 804 .............. 
 R.C.M. 707(c)(6) .......... 
 R.C.M. 1 107(h) ........... 


R.C.M. 813(a)(2) .......... 
 R.C.M. 804(c)(l) .......... 


R.C.M. 502(d)(6) .......... 
 R.C.M. 1010 ............. Mil.R. Evid. 404(a)(l), (b) . 

R.C.M. 308 .............. 
 R.C.M. 602 .....:........ 


R.C.M. 903 .............. 


R.C.M. 802(d) ............ 
 R.C.M. 802(c) ............ 


R.C.M. 901(d)(4) .......... 


11-130 

IV-125 

Index 1 
MCM. 1984 	 INDEX 

Rights to 


See also Self~incrlmlnation. 
 Appellate counsel ................................. 


At general or special court-martial ................... 


At interrogations .................................. 
 At lineups ....................................... 
 At pretrial investigations ........................... 


At summary court-martial .......................... 
 Before review of pretrial confinement ................. 


Counsel advice on post-trial rights ................... 


Decision of Court of Military Review. service on ............. 


After appeal by accused ............................ 


After appeal by United States ....................... 
 Investigation. pretrial. rights .............................. 
 Joinder of ............................................. 


Jurisdiction over ........................................ 
 Mental examination of ................................... 
 Notification of charges ................................... 
 Post-trial rights 


Advice to accused ................................. 
 Right to submit matters to convening authority ......... 


Presence at trial ........................................ 


Removal from courtroom ................................. 
 Restraint of 


Duringtrial ...................................... 
 Pretrial ......................................... 
 Sentencing. See Presentenclng procedure . 
 Service of appellate court decision ......................... 


Service of charges ...................................... 
 Severance of. motion for 


See also Joint trial . Generally ....................................... 
 Time for ........................................ 


Waiver .......................................... 


Accuser 

Defined ............................................... 


Disqualification 


Convening authority ............................... 


Defense counsel .................................. 
 Member ......................................... 
 Personnel of court-martial .......................... 


Reviewer ........................................ 
 Subordinate of convening authority ................... 
 Trial counsel ..................................... 
 Nominal accuser ........................................ 
 Notification to accused of ................................ 
 Referral of charges ..................................... 
 Acquittal 

See also Flndlngs. Motion for a finding of not guilty .......................... 
 Reconsideration of ...................................... 
 Record of trial in case of ................................. 
 Actlon of convening authority 

See also Convening authority . Ambiguous action ...................................... 
 Contents of action ...................................... 


Dismissal of charges .................................... 


Erroneous action ........................................ 
 Findings. action on ..................................... 


Forms for ............................................. 
 Generally ............................................. 


Incomplete ............................................ 
 Lessor included offense. approval of ....................... 


Matters considered ...................................... 


Mental capacity. when accused lacks ....................... 


Ref. 

R.C.M. 1202 ............. 

R.C.M. 506 .............. 

Mil. R. Evid . 305(d), (e) .... Mil. R . Evid . 321(b)(2) ..... R.C.M. 405(d)(2) .......... 


R.C.M. 1301(e) ........... 
 R.C.M. 305(f) ............ 
 R.C.M. 1010(a)(4) ......... 


R.C.M. 908(c)(3); 1203(d) . . R.C.M. 1203(d) ........... 
 R.C.M. 908(c)(3) .......... 


R.C.M. 405(f) 	 ............ 

R.C .M. 60 1 (e)(3) .......... 


R.C.M. 202(a) ............ 
 R.C.M. 706 .............. 
 R.C.M. 308 .............. 


R.C.M. 1010 ............. 
 R.C.M. 1010(a)(l); 1105 ... 

R.C.M. 803; 804 .......... 
 R.C.M. 804(b) ............ 


R.C.M. 804(b), (c)(3) ...... R.C.M. 304, 305 .......... 


R.C.M. 908(c)(3); 1203(d) .. R.C.M. 602 .............. 


R.C.M. 905(b)(5); 906(b)(9) . R.C.M. 905(b)(5) .......... 
 R.C.M. 905(e) ............ 


Art. l(9). UCMJ .......... 


R.C.M. 504(c)(l); 601(c) ... R.C.M. 502(d)(4)(A) ....... 
 R.C.M. 912(f)(l)(C) ....... 
 R.C.M. 502(e)(2)(A) ....... 


R.C.M. 1112(c) ........... 


R.C.M. 504(c)(2) .......... 
 R.C.M. 502(d)(4)(A) ....... 


R.C.M. 103(20); 307(a) .... 

R.C.M. 308 .............. 
 R.C.M. 307 .............. 


R.C.M. 917 .............. 
 R.C.M. 924 .............. 
 R.C.M. 1103(e) ........... 


R.C.M. 1107(g) ........... 


R.C.M. 1107(f) ........... 


R.C.M. 1107(c)(2)(A) ...... 

R.C.M. 1107(g) ........... 


R.C.M. 1107(c), (f)(3) ..... 

Appendix 16 .............. 

R.C.M. 1107(a) ........... 
 R.C.M. 1107(g) ........... 
 R.C.M. 1107(c)(l) ......... 


R.C.M. 1107(b)(3) ......... 
 R.C.M. 1107(b)(5) ......... 


11-108; 11-112 


11-108 


11-109 


11-55; 11-61 


11-49 


11-122 


11-52 


II-184 


11-55 


11-49 


11-2; 11-28 


11-32 


11-28 


11-132 


11-138 


II-163 


II-177 


11-175 


11-173 


11-177 


II-173; 11-175 


A 16- 1- 


11- 172 


11- 177 


11- 173 


11- 172 


11-173 


Index 2 

INDEX 

Modification of .................................... 


Newtrial ...................................... 


Not guilty findings. action on ............................. 


Other trial. ordering ..................................... 


Pretrial agreement. effect of .............................. 


Rehearing. ordering ..................................... 


Sentence. action on ..................................... 


Service on accused ...................................... 


Suspension of sentence .................................. 


When taken ............................................ 


Who may take ......................................... 


Withdrawalof .......................................... 


Additional charges ....................................... 

Adequate interest to challenge search and seizure ......... 

Adjournment of courts-martial 

Generally ............................................. 


Sessionsafter .......................................... 


Administrative action. to dispose of offense ................... 


Admissions.See Self.incrimination . Admonition 

Of court.martia1. member. military judge. or counsel .......... 


Punishment. nonjudicial .................................. 

Adultery ................................................. 

Advice. pretrial 

Contents .............................................. 


Distribution ............................................ 


General court.martia1. requirement for ...................... 


Motion concerning ............................. 


Responsibility for ....................................... 


Waiver ................................................ 


Whenrequired ......................................... 


Affidavits 

Character of accused. proof by ............................ 


Sentencing proceedings .................................. 


Affirmation 

See also Oaths. Oath. included in ...................:................... 


Affirmative defenses . See Defenses. 
 Aggravated assault .See Assault. 
 Aggravating circumstances. capital cases ................. 


See also Capital case . Aggravation. evidence in ................................. 

Agreement 

Pretrial. See Pretrial agreement . To commit offense . See Conspiracy. Aider and abettor ........................................ 

See also Principals. Aiding the enemy 

Attempts .............................................. 


Generally ............................................. 


Aircraft carrier .See Boat. Alcohol.See Drunk; Intoxication . Alibi 

Failure to disclose. effect of .............................. 


Notice of. by defense .................................... 


Notice of rebuttal witnesses by trial counsel ................. 


Withdrawal after disclosure. effect of ....................... 


Amending charges and specifications ...................... 


See also Charges and specifications . Ammunition. casting away ............................... 

Amphetamines . See Controlled substances. offenses 

involving. 

Ref. 

R.C.M. 1 107(f)(2), (g) ..... R.C.M. 1107(f)(5)(B) ...... R.C.M. 1107(b)(4) ......... 


R.C.M. 1107(e)(2) ......... 


R.C.M. 705(b)(2)(E) ....... 
 R.C.M. 1107(c)(2)(B), (e)(l), 

(f)(5) .................. 

R.C.M. 1107(d), (f)(4) ..... 

R.C.M. 1107(h) ........... 
 R.C.M. 1108 ............. 


R.C.M. 1107(b)(2) ......... 
 R.C.M. 1107(a) ........... 


R.C.M. 1107(f)(2) ......... 


R.C.M. 307(c)(2)(B) ....... 

Mil. R. Evid. 31 1(a)(2) ..... 

R.C.M. 1011 ............. 


R.C.M. 803; 1102 ......... 


R.C.M. 306(c)(2); V . Para . 

ld(1) .................. 

R.C.M. 104(a)(l) .......... 
 V. Para. 5c(l) ............. 
 IV. Para 62 ............... 


R.C.M. 406(b) ............ 
 R.C.M. 406(c) ............ 


R.C.M. 601(d)(2)(B) ....... 


R.C.M. 905(b)(l); 906(b)(3) . 

R.C.M. 406(a) ............ 


R.C.M. 601(d)(2)(B) ....... 


R.C.M. 406(a) ............ 


Mil. R. Evid. 405(c) ....... 


R.C.M. 1001(c)(3) ......... 


R.C.M. 807(a) ............ 


R.C.M. 1004(c) ........... 


R.C.M. 1001(b)(4) ......... 


IV. Para. 1 ............... 


IV. Paras. 4c(5)(d); 28 

IV. Para. 28 ....... 


R.C.M. 701(g)(3) .......... 


R.C.M. 701(b)(l) .......... 
 R.C.M. 701(a)(3)(B) ....... 


R .C. M. 70 1 (b)(5) .......... 


R.C.M. 603 .............. 


IV. Para 23 ............... 


MCM. 1984 
MCM. 1984 	 INDEX 

Analysts 

Military Rules of Evidence ............................... 
 Rules for Courts-Martial ................................. 
 Announcement 

Findings .............................................. 
 Form for ........................................ 


Persons present or absent at trial ........................... 
 Sentence .............................................. 
 Form for ........................................ 
 Pretrial agreement inquiry after .................. 


Appeals.See Appellate review . 
 Appellate counsel .See Appellate review . 
 Appellate review 


Appeal by United States (Art . 62. UCMJ) ................... 

Appellate counsel 

Duties .......................................... 

Generally ....................................... 

When appeal filed by United States .................. 

Finality of courts-martial ................................. Judge Advocate General. The 

Cases referred to Court of Military Review by (Art. 66. 

UCMJ) ....................................... 

Cases reviewed by (Art . 69. UCMJ) .................

Remission and suspension of sentence by ............. Review of summary court-martial by ................. 

New trial . See New trial . Nonjudicial punishment .................................. 

Powers and responsibilities of the Service Secretary ........... 

Restoration ............................................ 

Reviewbyajudgeadvocate .............................. 

Review by Court of Military Appeals . See Court Of Mllitary 

Appeals. Review by Court of Military Review . See Court of Mllitary 

Review. Review by the Supreme Court (Art. 67(h)(l). (2)) 

Action by Court .................................. 

Cases subject to review ............................ 

Sentence requiring approval of the President ................. 

Waiver or withdrawal of .................................. 

Appellate rights waiver form .............................. Appointment in armed forces .See Enlistment. Apprehension 

Absence without leave. terminated by ...................... 
 Attachment of jurisdiction ................................ 


Authorization. when required ............................. 


Custody. defined ........................................ 
 Defined ............................................... 


Deserters. by civilian authorities ........................... 


Desertion. terminated by ................................. 


Force. use of ........................................... 


Grounds for ........................................... 
 Procedure ............................................. 
 Resisting .............................................. 
 Search incident to ....................................... 


See also Search and seizure . Unlawful .............................................. 


Warrant. whenrequired .................................. 
 Wheremade ........................................... 


Who may apprehend .................................... 


Appropriation, wrongful .................................. 
 Argument 


Control of. by military judge .............................. 


Findings .............................................. 


Motions ............................................... 


Sentence .............................................. 


Ref. 

Appendix 22 .............. 


Appendix 21 .............. 


R.C.M. 922 .............. 
 Appendix 10 .............. 


R.C.M. 813 .............. 


R.C.M. 1007 ............. 
 Appendix 11 .............. 


R.C.M. 910(h)(3) .......... 


R.C.M. 908 ..... 

R.C.M. 1202(b) ........... 


R.C.M. 1202(a) ........... 
 R.C.M. 908(c)(l) .......... 


R.C.M. 1209 ............. 


R.C.M. 1201(a) ......... 


R.C.M. 1201(b)(l), (2). (3) 

R.C.M. 1201(c) ......... 


R.C.M. 1306(d) ......... 


V. Para. 7 ................ 


R.C.M. 1206 ............. 
 R.C.M. 1208 ............. 


R.C.M. 1112 ............. 


R.C.M. 1205(b) ........... 


R.C.M. 1205(a) ........... 


R.C.M. 1207 ............. 
 R.C.M. 1110 ............. 


Appendix 19 .............. 


IV. Para. 10e(2)(d) ......... 


R.C.M. 202(c)(2) .......... 


R.C.M. 302(e)(2) .......... 
 IV.Para. 19c(3)(a) ......... 
 R.C . M. 302(a) ............


R.C.M. 302(b)(3) .......... 


IV. Para. 9e(2)(a) .......... 


R.C.M. 302(d)(3) .......... 
 R.C.M. 302(c) 	............ 
 R.C . M. 302(d) ............


IV. Para. 19 .............. 


Mil . R . Evid . 314(g) .......

IV. Para. 21 .............. 


R.C.M. 302(d)(2), (e)(2) .... R.C.M. 302(e) 	............ 
 R.C . M. 302(b) ............


IV. Para. 46 .............. 


R.C.M. 801(a)(3) .......... 
 R.C.M. 919 .............. 


R.C.M. 801(a)(3) .......... 
 R.C.M. 1001(g) ........... 


11-138 

A10-1 

11-101 

11-155 

a11-1 

11- 120 

11- 190 

11-190 

11-1 16 

11-196 

11-87 

11-134 

11-87 

11- 144 

Index 4 
INDEX 

Statement. opening ...................................... 

Armed forces. defined ..................................... 

Arms. casting away ...................................... 

Arraignment 

Accused. presence required at ............................. 


Additional charges. effect on referral of ..................... 


Amending charges. effect on .............................. 


Generally ............................................. 


Arrest 

Attachment of jurisdiction. effecting ........................ 


Breaking .............................................. 


In quarters. as nonjudicial punishment ...................... 


Members. disqualification while in ......................... 


Pretrial 


See also Restraint. pretrial . 


Defined ......................................... 


Duties inconsistent with ............................ 


Grounds for ..................................... 


Notice to persons in ............................... 


Procedure ....................................... 


Punishment prohibited ............................. 


Release from 


Authority to grant ............................... 


When required ................................. 


Speedy trial. effect on ............................. 


Who may order ................................... 


Unlawful. as offense .................................... 
 Arson 

See also Burning with intent to defraud . Aggravated ............................................ 


Murder while committing .......................... 


Assault with intent to commit ............................. 
 Simple arson ........................................... 


Artlcle 15.See Nonjudicial punishment . 
 Artlcle 32.See Investigation. pretrial . 
 Article 39(a) session ..................................... 


Assault 


Aggravated ............................................ 


Attempts .............................................. 


Battery ............................................... 


Child. as victim ........................................ 


Commissioned officer. as victim 


In execution of office .............................. 


Not in execution of office .......................... 


Of a friendly foreign power ......................... 


Defense of another ...................................... 


Indecent .............................................. 


Law enforcement official. as victim ........................ 
 Maiming .............................................. 


Noncommissioned. petty. or warrant officer. as victim 


In execution of office .............................. 


Not in execution of office .......................... 
 Self-defense ........................................... 


Sentinel or lookout. as victim ............................. 
 Simple assault .......................................... 


With intent to commit arson. burglary. housebreaking. murder. rape. 


robbery. sodomy. or voluntary manslaughter ............... 
 Assembly of court-martial 

Announcement of ....................................... 


Effect on 


Changing members ................................ 


Changing military judge ........................... 


Enlisted members. request for ....................... 


Military judge alone. request for trial by .............. 


Ref. 

R.C.M. 913(b) ............ 


R.C.M. 103(20) ........... 


IV. Para. 23 .............. 


R.C.M. 804 .............. 


R.C.M. 601(e)(2) .......... 


R.C.M. 603(b), (c) ........ 


R.C.M. 904 .............. 


R.C.M. 202(c)(2) .......... 


IV. Para. 19 .............. 


V. Para. 5b(l)(B)(i), c(3) .... 

R.C.M. 912(f)(l)(L) ....... 


R.C.M. 304(a)(3) .......... 


R.C.M. 304(a)(3) .......... 


R.C.M. 304(c) ............ 


R.C.M. 304(e) ............ 


R.C.M. 304(d) ............ 


R.C.M. 304(f) ............ 


R.C.M. 304(g) ............ 


R.C.M. 707(d) ............ 


R.C.M. 707(b)(l), (2) ...... 

R.C.M. 304(b) ............ 


IV. Para . 21 .............. 


IV. Para 52 ............... 


IV. Para. 43 .............. 


IV. Para. 64 .............. 


IV. Para . 52 .............. 


R.C.M. 803 ........... 


IV. Para . 54 .............. 


IV. Paras. 4c(5)(e); 54 ...... 

IV. Para. 54 .............. 


IV. Para. 54 .............. 


IV. Para. 14 .............. 


IV. Para . 54 .............. 


IV. Para . 54e(3) ........... 


R.C.M. 916(e)(5) .......... 


IV. Para. 63 .............. 


IV. Para. 54 .............. 


IV. Para. 50 .............. 


IV. Para. 15 .............. 


IV. Para. 54 ....'.......... 


R.C.M. 916(e) ............ 


IV. Para. 54 .............. 


IV. Para. 54 .............. 


IV. Para . 64 ......... 


R.C.M. 901(b) ......... 


R.C.M. 505(c) ............ 
 R.C.M. 505(e) ............ 


R.C.M. 903(a)(l), (d) ...... 

R.C.M. 903(b)(2), (d) ...... 

MCM. 1984 

Index 5 
MCM, 1984 INDEX 

Assistant counsel. See Counsel; Defense counsel; Trial 

counsel. 

Associate defense counsel. See Counsel; Defense counsel. 

Attachment, warrant of ................................... 

Attempts 

Aiding the enemy (Art. 104, UCMJ) ....................... 

Assault (Art. 128, UCMJ) ................................ 

Desertion (Art. 85, UCMJ) ............................... 

Generally (Art. 80, UCMJ) ............................... 

Mutiny (Art. 94, UCMJ) ................................. 

Subordinate compelling surrender (Art. 100, UCMJ) .......... 

Attorney. See Counsel; Defense counsel; Trial counsel. 

Attorney--client relationship 

See also Counsel; Defense counsel. 

Availability of individual military counsel, effect on ........... 

Change of defense counsel, effect on ....................... Privileged communications ............................... 

Attorney General, grants of immunity .... .: ................ Authentication of 

Evidence .............................................. 

See also Evidence, Authentication and identification. 

Promulgating orders ..................................... 

Record of trial 

Certificate of correction ............................ 

Examination preceding ............................. 

Generally ....................................... 

Summary courts-martial ............................ 

Authorization to search, seize and apprehend. See Search and 

seizure. 

Automobile. See Search and seizure, Automobile; Vehicle. 

Aviation cadet 

Jurisdiction of courts-martial, subject to ..................... 

Summary courts-martial, not subject to trial by ............... 


Bad checks. See Checks. 

Bad-conduct discharge 

Multiple offenses, authorizing ............................. 

Prior convictions authorizing .............................. 

Punishment, generally ................................... 

Special courts-martial, power to adjudge .................... 

Summary courts-martial, no power to adjudge ............... Bailiff 

Detailing .............................................. 

Disqualification of ...................................... 

Duties ................................................ 

Qualifications 

Generally ....................................... 

Lack of, action on ................................ 

Battery. See Assault. 

Best evidence. See Evidence, Contents of writings, recordings, and 

photographs. 

Bias 

Ground for challenge of 

Member .................................. 

Military judge ............................. 

Impeachment of witness .................................. 

Bigamy ................................................. 

Bill of particulars ........................................ 

Blasting caps, included in explosives ......................... 

Blood extraction, as evidence ............................... 

Board, sanity. See Mental capacity; Mental responsibility. 

Boat. See Vessel. 

Bodily harm. See Assault. 

Index 6 

Ref. 

R.C.M. 703(e)(2)(G) . 

IV. Paras. 4c(5)(d); 28 ...... 

IV. Paras.4c(5)(e); 54 ....... 


IV. Paras. 4c(5)(a); 9 ....... 


IV. Para. 4 ............... 


IV. Paras. 4c(5)(b); 18 ...... 

IV. Paras. 4c(5)(c); 24 ...... 

R.C.M. 506(b)(2) .......... 


R.C.M. 505(d)(2) .......... 


Mil. R. Evid. 502 ......... 


R.C.M. 704(c)(l), (2) ...... 

Mil. R. Evid. 901; 902 . . 

R.C.M. 1114(e) ........ 


R.C.M. 1104(d) ........... 


R.C.M. 1103(i) ........... 


R.C.M. 1104 ............. 


R.C.M. 1305(c) ........... 


Art. 2(a)(2), UCMJ; R.C.M. 

202(a) ................. 

R.C.M. 1301(c) ........... 


R.C.M. 1003(d)(3) ......... 


R.C.M. 1003(d)(2) ......... 


R.C.M. 1003(b)(lO)(C) ..... 

R.C.M. 20 l(f)(2)(B) ....... 


R.C.M. 1301(d) ........... 


R.C.M. 501(c) ............ 


R.C.M. 502(e)(2) .......... 


R.C.M. 502(e)(3)(C) ....... 


R.C.M. 502(e)(l) .......... 


R.C.M. 502(f) ............ 


R.C.M. 912(f)(l)(N) ....... 


R.C .M. 902(a), (b)(l) ...... 

Mil. R. Evid. 608(c) ....... 

IV. Para. 65 .............. 


R.C.M. 906(b)(6) .......... 


R.C.M. 103(11) ........... 


Mil. R. Evid. 312(d) ....... 

INDEX 

Body flulds. seizure of ..................................... 
 See also Search and selzure. Body views and inbusions . 
 Bomb 


Explosive. included in ................................... 
 Hoax ................................................. 
 Threat ................................................ 
 Breach of correctional custody ........................... 

Breach of peach ......................................... Breaklng and enterlng .See Burglary; Housebreaklng; Unlawful 

entry. 
 Breaklng arrest .......................................... 


Breaking medical quarantlne ............................. 
 Breaklng restriction ...................................... 
 See also Restrlctlon. 
 Brlbery .................................................. 


Broadcasting of courts~martlal. prohibited ................... 
 Burden of proof . 
 See also Search and seizure. Burden of proof; Self-lncrlmlnatl0n. Burden of proof . 

Challenges ............................................ 

Defenses .............................................. 

Findings .............................................. 

Motions 

Admissions and confessions ........................ 
 Eyewitness identification ........................... 


Generally ....................................... 
 Search and seizure ................................ 
 Burglary 

Assault with intent to commit ............................. 
 Generally ............................................. 
 Housebreaking. distinguished from ......................... 
 Murder while committing ................................ 
 Burning wlth Intent to defraud ............................ 


Business records. admissibility ............................. 


Cadet 

Conduct unbecoming officer and gentleman .................. 
 Dismissal. punishmentby ................................ 
 Jurisdiction of courts.martial. subject to ..................... 


Summary courts.martial. not subject to trial by ............... 


Capltal case 

See also Capltal offense; Death. as punishment . Defined ............................................... 


Deposition. use in ...................................... 


Guilty plea prohibited in ................................. 


Military judge alone. no jurisdiction to try .................. 
 Notice of aggravating circumstances required ................. 
 Procedures in .......................................... 
 Capltal offense 

Defined ............................................... 
 Referral 

As noncapital .................................... To special court-martial ............................ To summary court-martial .......................... Captaln's mast .See Nonjudlclal punlshment . 
 Captured or abandoned property. offenses concerning ......... 
 Carnal knowledge ....................................... 
 Carrylng concealed weapon .............................. 
 Casting away arms or ammunltlon ........................ 
 Causlng false alarms .................................... 
 Censure 


Court.martial. member. military judge. or counsel. prohibited ... 
 Provoking speech and gestures. distinguished ................ 


Ref. 


Mil. R.Evid. 312(d) ....... 


R.C.M. 103(11) ........... 
 IV. Para. 109 ............. 


IV. Para. 109 ............. 
 IV. Para. 70 .............. 
 IV. Para. 41 .............. 


IV. Para. 19 .............. 
 IV. Para. 100 ............. 
 IV. Para. 102 ............. 


IV. Para. 66 .......... 
 R.C.M. 806(c) ........ 


R.C.M. 912(f)(3) .......... 


R.C.M. 916(b) ............ 
 R.C.M. 920(e)(5) .......... 


Mil. R. Evid. 304(e) ....... 


Mil. R. Evid. 321(d) ....... 
 R.C.M. 905(c) ............ 
 Mil. R. Evid. 31 1(e) ....... 


IV. Para. 64 .............. 
 IV. Para. 55 .............. 
 IV. Para. 56c(l) ........... 
 IV. Para. 43 .............. 
 IV. Para. 67 .............. 
 Mil. R. Evid. 803(6) ....... 


IV. Para. 59 .............. 
 R.C.M. 1003(b)(lO)(A) ..... 

Art . 2(a)(2), UCMJ; R.C.M. 

202(a) ................. R.C.M. 1301(c) ........... 


R.C.M. 103(2) ............ 
 Art. 49. UCMJ; Mil . R. Evid. 

804(b)(l) ............... R.C.M. 910(a) ............ 
 R.C.M. 201(f)(l)(C) ....... 
 R.C.M. 1004(b) ........... 
 R.C.M. 1004 ............. 


R.C.M. 103(3) .......... 


R.C.M. 20l(f)(l)(A)(iii)(b) .. 

R.C.M. 201(f)(2)(C) ....... 
 R.C.M. 1301(c) ........... 


1v.‘Para. 27 .............. 


IV. Para. 45 .............. 
 IV.Para. 112 ............. 
 IV. Para. 23 .............. 
 IV. Para. 23 .............. 


R.C.M. 104(a)(l) ..... 

IV. Para. 42c(l) ...... 

MCM. 1984 

n-2 

IV- 144 

IV-144 

IV-117 

1v-69 

11-123 

11- 128 

11-136 

m-5 

III- 18 

11-109 

111-9 

II- 1 

1v-46 

1v-76 

IV- 146 

1v-39 

1v-39 

Index 7 
MCM, 1984 INDEX 

Certlficate, medlcal ...................................... Certificate of correction .................................. 

Challenges 

Control of, by military judge .............................. 
 Members 


For cause ........................................ 


Generally ....................................... 
 Peremptory ...................................... 


Presence of members during ........................ 
 Special court-martial without military judge ........... 


Military judge ........................................... 

Change of venue ........................................ 

Chaplains, privileged communications ......................... 

Character, evidence. See Evidence, Character evidence; Presentencing procedure. 

Charges and specifications 

See also specific offenses. 


Additional charges ...................................... 


Amendment of ......................................... 


Bill of particulars ....................................... 


Charge Sheet .......................................... 


Definitions 


Charge .......................................... 


Specification ..................................... 


Dismissal of 

By commander ................................... 

Bymilitaryjudge ................................. 

Speedy trial ...................................... 

Disposition of .......................................... 
 Duplicious ............................................. 
 Error in citation, effect of ................................ 
 Failure to state offense ................................... 


Findings .............................................. 
 Format ................................................ 
 Forwarding ............................................ 
 Investigation of. See Investigation, pretrial. 


Joinder of ............................................. 
 Joint offenders ......................................... 
 Lesser included offenses. See Flndlngs; Lesser Included 


offenses. 

Motions as to defects in .................................. 


Multiple offenders ...................................... 
 Multiple offenses ....................................... 
 Multiplicious ........................................... 


Notification to accused of ....................... 
 Papers, accompanying, discovery of ............... 
 Preemption ............................................ 
 Referral. See Preferral of charges. 


Reading of, as part of arraignment ......................... 


Referral. See Referral of charges. 


Service of ............................................. 


Severance of ........................................... 
 Staff judge advocate, advice as to .......................... 
 Statute of limitations, tolling .............................. 
 War, effect on disposition of .............................. 
 Withdrawal of .......................................... 
 Pursuant to pretrial agreement ....................... 
 Checks 

Dishonorable failure to maintain funds ...................... 
 Forged ................................................ 
 Chlld 

Assault consummated by battery on ........................ 
 Carnal knowledge with .................................. 


Index 8 

Ref. 

R.C:M. 1113(d)(5); 1305(d) 

R.C.M. 1104(d) ........... 


R.C.M. 801(a)(3) ....... 


R.C.M. 912(D ............ 


R.C.M. 912 .............. 
 R.C.M. 912(g) ............ 


R.C.M. 805(b) ............ 
 R.C.M. 912(h) ............ 


R.C.M. 902 .............. 


R.C.M. 906(b)(ll) ......... 


Mil. R. Evid. 503 ......... 


R.C.M. 307(c)(2)(B) ....... 
 R.C.M. 603 .............. 


R.C.M. 906(b)(6) .......... 


Appendix 4 ............... 


R.C.M. 307(c)(2) .......... 


R.C.M. 307(c)(3) .......... 


R.C.M. 306(c)(l); 401(c)(l) . 

R.C.M. 907 .............. 


R.C.M. 707(b)(2), (e) ...... R.C.M. 401 .............. 


R.C.M. 906(b)(5) .......... 


R.C.M. 307(d) ............ 
 R.C:M. 907(b)(l)(B) ....... 
 R.C.M. 918(a) ............ 
 R.C.M. 307(c)(l); Appendix 4 

R.C.M. 401(c)(2) .......... 


R.C.M. 307(c)(4); 601(e)(2) . 

R.C.M. 307(c)(5); 601(e)(3) . 

R.C.M. 905(b)(2); 906(b)(4), 

(5), (6) ................ R.C.M. 307(c)(5) .......... 
 R.C.M. 307(c)(4) .......... 
 R.C.M. 307(c)(4); 

1003(c)(l)(C) ........... R.C.M. 308 .............. 
 R.C.M. 701(a)(l) .......... 
 R.C.M. 307(c)(2)(C) ....... 


R.C.M. 904 ...... 

R.C.M. 602 .............. 
 R.C.M. 905(b)(5) .......... 
 R.C.M. 406 .............. 
 R.C.M. 403(a) ............ 
 R.C.M. 401(d); 407(b) ..... R.C.M. 604 .............. 
 R.C.M. 705(b)(2)(C) ....... 


IV. Para. 68 .......... 
 IV. Para. 48 .......... 


IV. Para. 54b(3)(c) ......... 
 IV. Para. 45 .............. 

INDEX MCM, 1984 

Indecent acts or liberties with ............................. 


Sodomy on ............................................ 


Witness, competency .................................... 


Civilian authorities and tribunals 

Authority to apprehend persons under code .................. 


Control by, effect on absence without leave .................. 


Delivery of military offenders to ........................... 


Former jeopardy, effect of trial by ......................... 


Martiallaw ............................................ 


Military occupation, superseding .......................... 


Offenses subject to trial by ............................... 


Civilian counsel. See Counsel; Defense counsel. 

Civilians 

Aiding the enemy, subject to trial for ....................... 


Authority to apprehend deserters .......................... 


Contempt, punishment for 


Jurisdiction of courts-martial, subject to ..................... 


Orders, subject to ...................................... 


Spying, subject to trial for ................................ 


Witnesses 


Appear, neglect or refusal to ................. 


Subpoenaof ..................................... 


Warrant of attachment ............................. 


Claims, false ............................................ 

Classified information 

Closure of court-martial .................................. 


Privilege concerning ......................... 


Recordoftrial ......................................... 


Clemency recommendation ............................... 

Clergy, privileged communications to .......................... 

Clerk 

Detailing .............................................. 


Disqualification ......................................... 


Duties ................................................ 


Lack of qualifications, action .............................. 


Qualifications .......................................... 


Co-accused.See Accomplices; Conspiracy; Principals. 

Code, defined ........................................... 

Coercion 

Defense,as a .......................................... 


Of court-martial ........................................ 


Of guilty plea .......................................... 


Cohabitation, wrongful ................................... 

Command 

Abandoning, surrendering, giving up ....................... 


Compelling surrender or abandonment of .................... 


Detached or separate .................................... 


Endangering safety of ................................... 


Influence 


As anoffense .................................... 


Unlawful 

Defined ....................................... 

Exception ..................................... 

Over disposition of charges ....................... 

Commander 

Appearance of accused at trial, responsibility for assistance ..... 


Authorization to search. See Search and seizure. 


Charges and specifications, authority to change ............... 


Charges, authority to dispose of ........................... 


Confinement 


Post-trial, authority to order ........................ 


Pretrial 

Action by .................................. 

Release, authority to order ..................... 

Convening authority. See Convening authority. 

Ref. 

IV. Para. 87 .............. 


IV. Para. 51 .............. 


Mil. R. Evid. 601 ......... 


R.C.M. 302(a)(2), (b)(3) .... 

IV. Para. lOc(5) ........... 


R.C.M. 106 .............. 


R.C.M. 201(d); 907(b)(2)(C) 

I. Para. 2(a)(2) ............ 


I. Para. 2(a)(3) ............ 


R.C.M. 201(d) ............ 


IV. Para. 28(c)(l) .......... 


R.C.M. 302(b)(3) .......... 


R.C.M. 809(a), (e) ......... 


R.C.M. 202(a) ............ 


IV. Para. 14c(3) ........... 


IV. Para. 30c(3) ........... 


R.C.M. 703(e)(2)(G) ....... 


R.C.M. 703(e)(2) .......... 


R.C.M. 703(e)(2)(G) ....... 


IV. Para. 58 .............. 


R.C.M. 806(b) ............ 


Mil. R. Evid. 505 ......... 


R.C.M. 1104(b)(l)(D), (2) . . 

R.C.M. 1 105(b)(4) ......... 


Mil. R. Evid. 503 ......... 


R.C.M. 501(c) ............ 


R.C.M. 502(e)(2) .......... 


R.C.M. 502(e)(3)(C) ....... 


R.C.M. 502(Q ............ 


R.C.M. 502(e)(l) .......... 


R.C.M. 103(4) ......... 


R.C.M. 916(h) ............ 


R.C.M. 104(a)(2) .......... 


R.C.M. 910(d) ............ 


IV. Para. 69 .............. 


IV. Para. 23 .............. 


IV. Para. 24 .............. 


R.C.M. 504(b)(2)(A), (B) ... 

IV. Para. 23 .............. 


IV. Para. 22 .............. 


R.C.M. 104 .............. 


R.C.M. 104(a)(3) .......... 


R.C.M. 306(a) ............ 


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


R.C.M. 603(b) .... 

R.C.M. 401 ...... 

R.C.M. 1101(b)(2) ......... 


R.C.M. 305(h) ..... 

R.C.M. 305(g) ..... 

Page 

IV- 129 

IV-90 

111-32 

Index 9 
MCM. 1984 	 INDEX 

Defined ............................................... 


For authorization to search .......................... 


Dismissal of charges by .................................. 


Disposition of charges by ................................ 


Disposition of offenses ................................... 


Forwarding charges by ................................... 


Influence. unlawful command ............................. 


Inquiry into reported offenses ............................. 


Lack of mental capacity or responsibility action on ............ 


Nonjudicial punishment. authority to administer .............. 


Notification to accused of charges .......................... 


Preliminary investigation ................................. 
 Relations with court.martia1. members. military judge ......... 


Report of offense. forwarded to ........................... 


Subordinate. relations with ............................... 


Commissioned officer 

Assault on ............................................. 

Conduct unbecoming .................................... 

Disobedience of ........................................ 

Disrespect towards ...................................... 

Preferral of charges. oath ................................. 

Qualification as member of court-martial .................... 

Summary court.martial. power to try ....................... 

Commission. military. See Military commission . Common trial . See Joint trial . Communicating a threat .................................. 

Communications. privileged .See Evidence. Privileges . 

Company punishment .See Nonjudicial punishment . Competency of witness . See Evidence. Competency. 

Composition of courts-martial 

Accused's elections ..................................... 


Capital case ........................................... 


Changing .............................................. 


General courts-martial ................................... 


Jurisdictional requisite ................................... 


Specialcourt-martial .................................... 


Empowered to adjudge a bad-conduct discharge ........ 


Summary court-martial .................................. 


Concealment of 

Evidence. as accessory after the fact ....................... 


Offender. as accessory after the fact ........................ 


Stolen property ......................................... 


Weapon ............................................... 


Concurrent jurisdiction 

Civilian courts ......................................... 


Investigation of offenses. subject to ........................ 


Militarytribunals ....................................... 


Conditional guilty plea .................................... 


Conditions 


In pretrial agreements ................................... 


Of suspension .......................................... 


On liberty 


Defined ......................................... 


Procedures ...................................... 


Conduct 

Cowardly .............................................. 


Service discrediting. generally ............................ 


Unbecoming an officer and gentleman ...................... 


Conferences. pretrial 

Accused'spresenceat ................................... 


Admissions made at ..................................... 


Generally ............................................. 


Limitations ............................................ 


Matters on record ....................................... 


Rights of parties ........................................ 


Ref. 

R.C.M. 103(5) ............ 


Mil. R. Evid . 315(d) ....... 


R.C.M. 401(c)(l) .......... 


R.C.M. 401; 402 .......... 


R.C.M. 306 .............. 


R.C.M. 401(c)(2); 402 ..... 

R.C.M. 104; IV . Para . 22 ... 

R.C.M. 303 .............. 


R.C.M. 706(a) ............ 


V. Paras. lc, d; 2a ......... 


R.C.M. 308 .............. 


R.C.M. 303 .............. 


R.C.M. 104(a)(l) .......... 


R.C.M. 301(b) ............ 


R.C.M. 306(a); 401(a); 601(e) 

IV. Paras. 14; 54 .......... 


IV. Para. 59 .............. 


IV. Para. 14 .............. 


IV. Para. 13 .............. 


R.C.M. 307(b)(l) .......... 


R.C.M. 502(a)(l)(A) ....... 


R.C.M. 1301(c) ........... 


IV. Para. 110 .... 

R.C.M. 903 .............. 


R.C.M. 201(f)(l)(C) ....... 


R.C.M. 505 .............. 


R.C.M. 501(a)(l) .......... 


R.C.M. 201(b)(2) .......... 


R.C.M. 501(a)(2) .......... 


R.C.M. 201(f)(2)(B)(ii) ..... 

R.C.M. 1301(a) ........... 


IV. Para . 3c(l) ............ 


IV. Para. 3c(l) ............ 


IV. Para. 106 ............. 


IV. Para. 1 12 ............. 


R.C.M. 201(d) ............ 


Appendix 3 ............... 


R.C.M. 201(g) ............ 


R.C.M. 910(a)(2) .......... 


R.C.M. 705(c) ............ 


R.C.M. 1108(c) ........... 


R.C.M. 304(a)(l) .......... 


R.C.M. 304 .............. 


IV. Para. 23c(5) ........... 


IV. Para. 60c(3) ........... 


IV. Para. 59 .............. 


R.C . M. 802(d) ............


R.C.M. 802(e) 	............ 


R.C . M. 802(a) ............


R.C.M. 802(f) ............ 
 R.C.M. 802(b) ............ 


R.C.M. 802(c) ............ 


IV-21; 1v-93 

IV-108 

1v-21 

IV- 19 

11-28 

11-47 

11-201 

IV- 145 

1v-41 

IV-109 

IV- 108 

Index 10 
INDEX 

Confessional stipulations ............................ 


Confessions.See Self.incrimination . 
 Confinement 


Attachment of jurisdiction. effecting ........................ 


Capitalcases ........................................... 


Deferment of ........................................... 


See also Deferment of confinement . Escape from ............................................ 

Hard labor without . See Hard labor without confinement . Inlieuoffine .......................................... 

On bread and water or diminished rations 

As nonjudicial punishment ......................... 

Authorized punishment in court-martial ............... 


Execution ....................................... 


Medical certificate required ......................... 


Post-trial .............................................. 


Pretrial 


Advice to accused ................................. 


Authority to order ................................ 


Conditions of .................................... 


Counsel ......................................... 


Defined ......................................... 


Grounds ........................................ 


Illegal. remedy for ................................ 


Motions concerning ............................... 


Procedure for ordering ............................. 


Punishment prohibited ............................. 


Release 


Authority to direct .............................. 


Effect of ...................................... 


Required ...................................... 


Review of ....................................... 


Sea. effect of being at ............................. 


Speedy trial. effect on ............................. 


Punishment 


Contempt (Art . 48. UCMJ) ......................... 


Deferment ....................................... 


See also Deferment of confinement . 
 Execution ....................................... 


Generalcourt-martial .............................. 


Generally ....................................... 


Placeof ......................................... 


Special court-martial .............................. 

Summarycourt-martial ............................ 

Release from without authority ............................ Unlawful. as offense .................................... 

Congress. contemptuous words against ................... 

Consent.See Search and seizure . Consplracy 

See also Principals. Evidence. statement of co-conspirator ...................... 

Generally ............................................. 

Constitution of the United States .......................... 

Constructive condonation of desertion .................... 

Constructlve enlistment .................................. 

Contempt 

See also Disrespect. Power of court-martial ................................... 


Toward noncommissioned. petty. or warrant officer ............ 


Toward public officials ................................... 


MCM. 1984 

Ref. Page 

R.C.M. 705(b)(l) .......... 11-80 


R.C.M. 202(c)(2) .......... 


R.C.M. 1107(f)(4)(D) ...... 

R.C.M. 1101(c) ........... 


IV. Para . 19 ......... 


R.C.M. 1113(d)(3) ..... 

V. Para. 5b(2)(A)(i). (B)(i). 


c(5) ................... 


R.C.M. 1003(b)(9) ......... 


R.C.M. 1113(d)(5) ......... 


R.C.M. 1305(d) ........... 


R.C.M. 1101 ............. 


R.C.M. 305(e) ............ 


R.C.M. 304(b); 305(c) ..... 

R.C.M. 304(f) ............ 


R.C.M. 305(e)(3), (f) ...... 

R.C.M. 304(a)(4); 305(a) ... 

R.C.M. 304(c); 305(d), 

(h)(2)(B) ............... 

R.C.M. 305(j)(2), (k) ....... 


R.C.M. 906(b)(8) .......... 


R.C.M. 305 .............. 


R.C.M. 304(f) ............ 


R.C.M. 305(g) ............ 


R.C.M. 305(k), (1) ........ 


R.C.M. 707(d) ............ 


R.C.M. 305(i), (1) ......... 


R.C.M. 305(m) ........... 


R.C.M. 707(b)(l), (2) ...... 

R.C.M. 809(e) ...... 

R.C.M. 1101(c) ..... 

R.C.M. 1113(d)(2) ......... 


R.C.M. 20l(f)(l)(A)(ii), 

(B)(ii) ................. 

R.C.M. 1003(b)(8) ......... 


R.C.M. 1107(f)(4)(C); 

1 1 13(d)(2)(C) ........... 

R.C.M. 201(f)(2)(B) ....... 


R.C.M. 1301(d) ........... 


IV. Para. 20 .............. 


IV. Para. 21 .............. 


IV. Para. 12 .............. 


Mil. R. Evid . 801(d)(2)(E) . . 111-36 

IV. Para. 5 ............... IV-6 


Appendix 1 ............... Al-1 


R.C.M. 907(b)(2)(D)(iii) .... 11-115 

R.C .M. 202(a) ............ 11- I 1 


R.C.M. 801(b)(2); 809 ..... 11-88; 11-96 

IV. Para. 15 .............. 1V-24 


IV. Para. 12 .............. IV- 18 


Index 11 
MCM. 1984 	 INDEX 

Continuances 

As remedy for 

Failure to notify accused of charges .................. 

Failure to notify defense of evidence seized from the accused 

Failure to notify defense of immunity or leniency granted to a 

government witness ............................. 

Failure to notify defense of prior identification of the accused 

Failure to notify defense of statements of the accused .... 

Noncompliance with discovery requirements ........... 

Examination of witness' prior statement. for purpose of ........ 

Generally ............................................. 

Speedy trial. effect on ................................... 

Controlled substances. offenses involving ................. 

Convening authority 

Accuser 

Disqualifications 

To convene general or special courts-martial ......... 

To convene summary courts-martial ................ 

To refer charges to general or special courts-martial ... 

Subordinate of. disqualified ......................... 

Action by . See Action of convening authority . Censure of court ........................................ 

Changing members ...................................... 

Charges and specifications 

Authoritytochange ............................... 


Authority to dispose of ............................ 


Command influence. unlawful ............................. 

Communications with staff judge advocate .................. 

Contempt 

Actionon ....................................... 


Review of ....................................... 


Defined ............................................... 


Delegation of authority as. prohibited ....................... 


Deposition. authority to order ............................. 
 Detailing members ...................................... 


Disqualification to act as ................................. 


Execution of sentences. authority to order ................... 


General court-martial 


Action on certain cases by .......................... 


Constructive condonation of desertion ................ 


Defined ........................................ 


Disposition of charges by .......................... 


Immunity. authority to grant ........................ 


National security matters. duties regarding ............ 


Vacation of suspension. action on .................... 


Mental capacity or responsibility of accused. inquiry into ...... 

National security. case affecting disposition .................. 

Pretrial agreement. authority to enter ....................... 

Pretrial investigation. ordered by .......................... 

Referral of charges ................................. 


Special court-martial 

Defined ......................................... 

Disposition of charges by .......................... 

Staff judge advocate 

Communications with ............................. 

Delegation of authority 

Excusal of court members ........................ 


Generally prohibited ............................. 

Successors. included in .................................. 

Summary court-martial 

Charge sheet. recording receipt ...................... 


Defined ......................................... 


Ref. 

R.C.M. 308(c) ............ 

Mil. R. Evid. 311(d)(2)(B) . . 

Mil. R. Evid. 301(c)(2) ..... 

Mil. R. Evid. 321(c)(2)(B) .. 

Mil. R. Evid. 304(d)(2)(B) . . R.C.M. 701(g)(3)(B) ....... 


R.C.M. 914(d) ............ 


R.C.M. 906(b)(l) .......... 


R.C.M. 707(c)(3), (5) ...... 

IV. Para. 37 .............. 


R.C.M. 504(c)(l) .......... 


R.C.M. 1302(b) ............ 


R.C.M. 601(c) ............ 


R.C.M. 504(c)(2) .......... 


R.C.M. 104 .............. 


R.C.M. 505(c) ............ 


R.C.M. 603(b) ............ 


R.C.M. 	401(a); 403(b); 404; 

407 ................... 

R.C.M. 104 .............. 


R.C.M. 105(a) ............ 


R.C.M. 809(e), (0 ......... 


R.C.M. 809(d) ............ 


R.C.M. 103(6) ............ 


R.C.M. 504(b)(4) .......... 


R.C.M. 702(b) ............ 


R.C.M. 503(a) ............ 


R.C.M. 504(c); 601(c) ...... 

R.C.M. 1113(b), (c) ....... 


R.C.M. 1112(f) ........... 


R.C.M. 907(b)(2)(D)(iii) .... 

R.C.M. 504(b)(l) .......... 


R.C.M. 407 .............. 


R.C.M. 704(c) ............ 


R.C.M. 407(b) ............ 


R.C.M. 1109(d)(2) ......... 


R.C.M. 706 .............. 


R.C.M. 401(d) ............ 


R.C.M. 705(a), (d)(4) ...... 

R.C.M. 403(b)(5); 404(e); 

405(c); 407(a)(5) ........ 

R.C.M. 403(b)(4); 404(d); 

407(a)(4), (6); 601 ....... 

R.C.M. 504(b)(2) ........ 


R.C.M. 404 ............ 


R.C.M. 105(a) ............ 


R.C.M. 505(c)(l)(B) ....... 


R.C.M. 504(b)(4) .......... 


R.C.M. 103(6) .........:.. 


R.C.M. 403(a) ............ 


R.C.M. 1302(a) ........... 


Index 12 
INDEX 

Disposition of charges by .......................... 

Superior authority calling for transmittal of charges from subordinate 

Superior authority withholding from subordinate the authority to 

dispose of charges .................................... 

Withdrawal of charges by 

Generally ....................................... 

Pretrial agreement, pursuant to ...................... 

Convening courts-martial 

See also Convening authority. 

Generally ............................................. 


Jurisdictional requisite, as a .............................. 


Summary courts-martial .................................. 


Convening orders 


Amending ............................................. 


Changing .............................................. 


Defense,copiesto ...................................... 


Forms ................................................ 


Generally ............................................. 


Summary court-martial .................................. 


Convictions, prior 


Admissibility in aggravation .............................. 


Finality of ............................................. 


Impeachment by evidence of .............................. 


Increasing punishment authorized .......................... 


Correctional custody 

Nonjudicial punishment .................................. 


Offenses against ...................................... 


Correction of record of trial 

After authentication ................................... 

Before authentication .................................... 

Corroboration of confession .............................. 

Counsel 

See also Defense counsel; Trial counsel. 

Appellate ............................................... 


Detailing ............................................... 


General courts-martial . : ........................... 


Special courts-martial ........................... 


Summary courts-martial ............................. 


Qualifications of ........................................ 


Supervisionof .......................................... 


Suspension of .......................................... 


Counseling commission of offense ........................ 


Countersign, improper use of ............................. 


Court-martial 


Defined ............................................... 


Types of .............................................. 


Court-martial orders. See Promulgating orders. 

Court of inquiry 

Admissibility of evidence taken in ......................... 


Application of Rules for Courts-Martial to ................... 


Exercise of jurisdiction .................................. 


Nonjudicial punishment based on .......................... 


Pretrial investigation, substitute for .................... 


Procedure ............................................. 


Subpoena, authority to issue .............................. 


Court of Military Appeals 


Action on decision by ................................... 


Appeals by United States ................................. 


Cases reviewed by ...................................... 


Generally ............................................. 


Petition by accused to ................................... 


Court of Military Review 

Action on decision by ................................... 


Ref. 

R.C.M. 403(b) ......... 


R.C.M. 601(f) ......... 


R.C.M. 306(a); 401(a) ...... 

R.C.M. 604 .............. 


R.C.M. 705(b)(2)(C) ....... 


R.C.M. 504 .............. 


R.C.M. 201(b) ............ 


R.C.M. 1302 ............. 


R.C.M. 505(b) ............ 


R.C.M. 505(b) ............ 


R.C.M. 701(a)(l)(B) ....... 


Appendix 6 ............... 


R.C.M. 504(d) ............ 


R.C.M. 1302(c) ........... 


R.C.M. 1001(b)(3) ......... 


R.C.M. 1209 ............. 


Mil. R. Evid. 609 ......... 


R.C.M. 1003(d)(l), (2) ..... 

V. Para. 5b(2)(A)(ii), (B)(ii), 

c(4) ................... 

IV. Para. 70 .............. 


R.C.M. 1104(d) ........... 


R.C.M. 1103(i) ........... 


Mil. R. Evid. 304(g) ....... 


R.C.M. 908(c)(l); 1202 .... 

R.C.M. 503(c) ............ 


R.C.M. 501(b) ............ 


R.C.M. 501(b) ............ 


R.C.M. 1301(e) ........... 


R.C.M. 502(d) ............ 


R.C.M. 109 .............. 


R.C.M. 109 .............. 


IV. Para. 1 ............... 


IV. Para. 25 .............. 


R.C.M. 103(8) ...... 

R.C.M. 201(f) ...... 

Mil. R. Evid. 804(b)(l) ..... 

I. Para. 2(b)(3) ............ 


I. Para. 2(b)(3) ............ 


V. Para. 4d ............... 


R.C.M. 405(b) ............ 


I. Para. 2(b)(3) ............ 


R.C.M. 703(e)(2)(C) ....... 


R.C.M. 1204(c) ........... 


R.C.M. 908(c)(3) .......... 


R.C.M. 1204(a) ........... 


R.C.M. 1204 ............. 


R.C.M. 1204(b) ........... 


R.C.M. 1203(c) .... 

MCM, 1984 

11-116; 11-190 

11-54 

11-47 

11-47 

11-202 

11-48 

11-6 

11-6 

IV- 1 

IV-45 

Index 13 
MCM. 1984 INDEX 

Appeals by United States to .............................. 


Armed force of accused as determining which court reviews .... 


Casesreviewedby ...................................... 


Generally ............................................. 


Notification to accused of decision ......................... 


Cowardly conduct ........................................ 

Crimes 

See Offenses; specific topics . 

Crimes and offenses not capital ........................... 

Cross-examination at 

Court-martial .......................................... 


Deposition ............................................. 


Pretrial investigation ..................................... 


Cruelty and maltreatment ................................. 

Culpable negligence, defined ............................... 

Custody 

Correctional . See Correctional custody . 
 Defined ............................................... 


Escape from ........................................... 


Damage 

Militaryproperty ....................................... 


Nonmilitary property .................................... 
 Dangerous weapon. defined ................................ 


See also Assault. Days. defined ............................................. 

Death. as punishment 

See also Capital case; Capital offense . 
 Aidingtheenemy ....................................... 


Assaulting officer. time of war ............................. 


Countersign. improper use of ............................. 


Desertion. time of war ................................... 


Disobedience of officer. time of war ........................ 


Execution ............................................. 


General court.martia1. power to adjudge .................... 


Generally ............................................. 


Mandatory. votes required ................................ 


Misbehavior before enemy ................................ 


Murder ............................................... 


Mutiny ............................................... 


Procedures for adjudging ................................. 


Rape ................................................. 


Safeguard. forcing ...................................... 


Sedition ............................................... 


Solicitation to desert. mutiny. to commit acts of misbehavior before 


the enemy. or to commit sedition ........................ 


Special court.martial. no power to adjudge .................. 


Spying ................................................ 


Summary court.martia1. no power to adjudge ................ 


Surrender. subordinate compelling ......................... 


Debt. dishonorably failing to pay .......................... 


Defendant.See Accused. Defense counsel 

Absenceof ............................................ 


Accused 

Inquiry as to rights ................................ 

Rights to, generally ............................... 

Announcement of 


Absence ........................................ 


Detailing ........................................ 


Presence ........................................ 


Qualifications .................................... 


Appellate .............................................. 


Ref. 

R.C.M. 908(b)(7) .......... 


R.C.M. 201(e)(5) .......... 


R.C.M. 1203(b) ........... 


R.C.M. 1203 ............. 


R.C.M. 1203(d) ........... 


IV . Para . 23 .............. 


IV. Para. 60 ............ 


Mil. R . Evid. 611 .........


R.C.M. 702(g)(l)(B), (2)(C) . 

R.C.M. 405(f)(8), (h)(l)(A) . 

IV. Para. 17 .............. 

IV . Para . 44c(2)(a)(i) ....... 


IV . Para . 19c(3)(a) ......... 


IV . Para . 19 ............... 


IV . Para . 32 .............. 


IV. Para. 33 .............. 

IV . Para . 54c(4)(a)(i) ....... 


R.C.M. 103(9) ............ 


IV . Para . 28e ..............


IV . Para . 14e(3) ...........

IV . Para . 25e ..............


N. Para. 9e(3) ............ 


IV . Para . 14e(3) ........... 


R.C.M. 11 13(c)(3), (d)(l) ... 

R.C.M. 20l(O(l)(A)(ii), 

(B)(ii) ................. 

R.C.M. 1003(b)(l I) ........ 


R.C.M. 1006(d)(4)(A) ...... 

IV. Para. 23e .............. 


IV . Para . 43e(l) ........... 


IV. Para . 18e .............. 


R.C.M. 1004 ............. 


IV. Para. 45e(l) ........... 


IV . Para . 26e .............. 


IV . Para . 18e .............. 


IV. Para. 6 ............... 


R.C.M. 201(f)(2)(B)(i) ..... 

IV. Para . 30e .............. 


R.C.M. 1301(d) ........... 


IV. Para. 24e .............. 


IV. Para. 71 .............. 


R.C.M. 805(c) ............ 


R.C.M. 901(d)(4) .......... 


R.C.M. 506 .............. 


R.C.M. 813(a)(7) .......... 


R.C.M. 503(c)(2) .......... 


R.C.M. 813(a)(6) .......... 


R.C.M. 901(d)(2) .......... 


R.C.M. 1202 ............. 


1v-50 

1v-23 

1v-45 

IV- 13 

1v-23 

11-186; 11-186 

Index 14 
INDEX 

Assistant and associate 


Absence of ...................................... 
 Detailing ........................................ 


Disqualification ................................... 


Duties .......................................... 


Individual counsel. effect of ........................ 


Oath ........................................... 


Qualifications .................................... 


Change of 


Announcement ................................... 


Grounds ........................................ 


Procedure ....................................... 


Civilian 


Accused's right to 


Appellate review ................................ 


Court-martial .................................. 


During interrogation ............................. 


Pretrial confinement ............................. 


Pretrial investigation ............................. 


Advice to accused at trial concerning right to .......... 


Disqualification. action on .......................... 


Qualifications .................................... 


Deposition. detailed or assigned for ......................... 


Detailed 


Accused's right to ................................. 


Change of ....................................... 


Defined ......................................... 


Different armed force. counsel from .................. 


Disqualification. action on .......................... 


Duties .......................................... 


Excusal ......................................... 


General court-martial .............................. 


Individual military counsel. effect of 


Generally ....................................... 


Investigation. pretrial .............................. 


Investigation. pretrial. right to ............................. 


Motion to retain 


Generally ....................................... 


Preserved for record ............................... 


Whenmade ...................................... 


Orders ................................................ 


Pretrial confinement. right to .............................. 


Qualifications of ........................................ 


Special court-martial .................................... 


Withdrawal ............................................ 


Disqualification ......................................... 


Duties ................................................ 


Evaluationof ........................................... 


Identification. right to at ................................. 


Individual military counsel 


Accused's right to request .......................... 


Advice at trial to accused concerning right to .......... 


Attorney-client relationship affecting right to ........... 


Availability to act as ............................... 


Detailed counsel. excusal of ........................ 


Investigation. pretrial. right to at .................... 


Motion on request for ............................. 


Pretrial confinement. no right to ..................... 


Request for ...................................... 


Qualifications of .................................. 


Interrogation. right to .................................... 


Member. ineligible to serve as ............................. 


Military judge. disqualified to act as ....................... 


Nonlawyer presence at counsel table ....................... 


Ref. 

R.C.M. 805(c) ............ 


R.C.M. 501(b); 503(c) ..... 

R.C.M. 502(d)(4), (f) ....... 


R.C.M. 502(d)(6) .......... 


R.C.M. 506(b)(3) .......... 


R.C.M. 807(b)(l) .......... 


R.C.M. 502(d)(2) .......... 


R.C.M. 813(c) ............ 


R.C.M. 505(d)(2); 506(b)(3), 

(c) .................... 


R.C.M. 505(b) ............ 


R.C.M. 1202 ............. 

R.C.M. 506 .............. 

Mil. R. Evid. 305(d)(2) ..... 

R.C.M. 305(e)(3) .......... 

R.C.M. 405(d)(2)(C) ....... 


R . C . M. 901 (d)(4)(A) .......


R.C.M. 901(d)(3) .......... 


R.C.M. 502(d)(3) .......... 


R.C.M. 702(d)(2) .......... 


R.C.M. 506(a) ............ 


R.C.M. 505(a), (b), (d)(2) ... 

R.C.M. 103(10) ........... 


R.C.M. 503(c)(3) .......... 


R.C.M. 901(d)(3) .......... 


R.C.M. 502(d)(6) .......... 


R.C.M. 505(d)(2); 506(c) ... 

R.C.M. 501(b) ............ 


R.C.M. 506(b)(3) .......... 


R.C.M. 405(d)(2)(B) ....... 


R.C.M. 405(d)(2)(A) ....... 


R.C.M. 506(b)(3) .......... 


R.C.M. 906(b)(2) .......... 


R.C.M. 905(b)(6) .......... 


R.C.M. 503(c)(2) .......... 


R.C.M. 305(f) ............ 


R.C.M. 502(d)(l) .......... 


R.C.M. 501(b) ............ 


R.C.M. 505(d)(2)(B); 506(c) 

R.C.M. 502(d)(4); 901(d)(3) . 

R.C.M. 502(d)(6) .......... 


R.C.M. 104(b)(l) .......... 

Mil. R. Evid. 321(b)(2) ..... 

R.C.M. 506(a) ............ 


R.C.M. 901(d)(4) .......... 


R.C.M. 506(b)(2) .......... 


R.C.M. 506(b)(l), (2) ...... 

R.C.M. 506(b)(3) .......... 


R.C.M. 405(d)(2)(B) ....... 


R.C.M. 905(b)(6) .......... 


R.C.M. 305(f) ............ 


R.C.M. 506(b)(2) .......... 


R.C.M. 502(d)(3) .......... 

Mil. R. Evid. 305(d), (e) .... 

R.C.M. 912(f)(l)(E) ....... 


R.C.M. 902(b)(2) .......... 


R.C.M. 506(e) ............ 


MCM. 1984 

11-190 


11-57 


111-7 


11-23 


11-38 


11-104 


11-103 


11-49 


11-7 1 


11-58 


11-1 1 1 


11-108 


11-54 


11-23 


11-48 


11-47 


11-57; 11-58 


11-49; 111-103 


11-50 


11-5 


111- 17 


Index 15 

MCM. 1984 INDEX 

Oath 

Announcement of status as to ....................... 

Generally ....................................... 

Requirement to take ............................... 

Post-trial duties ......................................... 


Presence of 


Article 39(a) sessions .............................. 


Findings announcement ............................ 


Generally ....................................... 


Pretrial conferences .............................. 


Sentence announcement ............................ 


Pretrial agreement. waiver not permitted .................... 


Pretrial confinement. right to .............................. 


Privileged communications ............................... 


Summary courts.martia1. right to .......................... 


Waiver of appellate review. right to consult with .............. 


Waiver of right to. in courts-martial ........................ 


Withdrawal of appellate review. right to consult with .......... 


Defense of another ....................................... 


Defenses 


Accident .............................................. 


Alibi. notice of ......................................... 


Burden of proof ........................................ 


Coercion .............................................. 


Defense of another ...................................... 


Defined ............................................... 


Duress ................................................ 


Entrapment ............................................ 


Generally ............................................. 


Ignorance of fact ....................................... 


Ignorance of law ........................................ 


Inability ............................................... 


Instructions on ......................................... 


Justification ............................................ 


Lack of mental responsibility 


Generally ....................................... 


Notice of ........................................ 


Mistake of fact ......................................... 


Mistake of law ......................................... 


Obedience to orders ..................................... 


Self-defense ........................................... 


Voluntary intoxication ................................... 


Withdrawn, effect of notice ............................... 


Deferment of confinement 


Action of convening authority ............................. 


Contempt cases ......................................... 


Generally ............................................. 


Orders ................................................ 


Termination of ......................................... 


Defraud 

See also Fraud. Burning with intent to ................................... 

Degrading questions ..................................... 

Delay 

See also Continuances. Government appeals ..................................... 


Responsibility for. as offense .............................. 


Speedy trial ............................................ 


Delegation 


Authority to impose pretrial restraint ....................... 


Convening courts.martia1. power to ........................ 


Excusal of members ..................................... 


Nonjudicial punishment .................................. 


Ref. 

R.C.M. 901(d)(2) .......... 


R.C.M. 807(b) ............ 


R.C.M. 901(d)(5) .......... 


R.C.M. 502(d)(6) .......... 


R.C.M. 803 .............. 


R.C.M. 922(a) ............ 


R.C.M. 805 .............. 


R.C.M. 802 .............. 


R.C.M. 1007(a) ........... 


R.C.M. 705(c)(l)(B) ....... 


R.C.M. 305(f) ............ 


Mil. R. Evid. 502 ......... 


R.C.M. 1301(e) ........... 


R.C.M. 11 10(b)(2) ......... 


R.C.M. 506(d) ............ 


R.C.M. 11 10(b)(3) ......... 


R.C.M. 916(e)(5) .......... 


R.C.M. 916(f) ............ 


R.C.M. 701(b)(l) .......... 


R.C.M. 916(b) ............ 


R.C.M. 916(h) ............ 


R.C.M. 916(e)(5) .......... 


R.C.M. 916(a) ............ 


R.C.M. 916(h) ............ 


R.C.M. 916(g) ............ 


R.C.M. 916 .............. 


R.C.M. 916Q) ............ 


R.C.M. 916(1)(1) .......... 


R.C.M. 916(i) ............ 


R.C.M. 920(e)(3) .......... 


R.C.M. 916(c) ............ 


R.C.M. 916(k) ............ 


R.C.M. 701(b)(2) .......... 


R.C.M. 916Q) ............ 


R.C.M. 916(1)(1) .......... 


R.C.M. 916(d) ............ 


R.C.M. 916(e) ............ 


R.C.M. 916(1)(2) .......... 


R.C.M. 701(b)(5) .......... 


R.C.M. 1107(f)(4)(E) ...... 

R.C.M. 809(e) ............ 


R.C.M. 1101(c) ........... 


R.C.M. 1101(c)(4); 

1 107(f)(4)(E) ............. 

R.C.M. 1101(c)(6) ......... 


IV. Para . 67 ......... 

Mil . R. Evid . 303 .... 

R.C.M. 908(b)(l) .......... 


IV. Para . 22 .............. 


R.C.M. 707(c) ............ 


R.C.M. 304(b)(3) .......... 


R.C.M. 504(b)(4) .......... 


R.C.M. 505(c)(l)(B) ....... 


V . Para . 2c ...............


Index 16 
INDEX 

Deliberations and voting 

Capital cases ......... 

Contempt ............................................. 

Findings .............................................. 

Interlocutory questions, special court-martial without military judge 

Military judge, presence during ........................... 

Privilege protecting ..................................... 

Exceptionsto .................................... 

Sentencing ............................................ 

Delivering less than amount called for by receipt ........... 

Deposition 

Admissibility of ........................................ 


Generally ............................................. 


Objections ............................................. 


Officer ................................................ 


Oral .................................................. 


Procedure ............................................. 


Request for ............................................ 


Who may order ......................................... 


Witnesses, subpoena .................................... 


Written ............................................... 


Dereliction in the performance of duty ..................... 

Desertion 

Apprehend deserter, authority to ........................... 


Attempted ............................................. 


Generally ............................................. 


Solicitation to commit ................................... 


Destroying 

Mail .................................................. 

Military property ....................................... 

Nonmilitary property 

Offense ......................................... 

Reparation for .................................... 

Detail 


Bailiff ................................................ 


Clerk ................................................. 


Defensecounsel ........................................ 


Defined ............................................... 


Escort ................................................ 


Interpreter ............................................. 


Members .............................................. 


Military judge .......................................... 


Orderly ............................................... 


Orders 


Amending ....................................... 


Appointing counsel ............................... 


Appointing military judge .......................... 


Convening ....................................... 


Reporter .............................................. 


Trialcounsel ........................................... 


Detention, unlawful ....................................... 


Discharge 

See also Bad-conduct discharge; Dishonorable discharge. 

Effecting fraudulent ..................................... 

Firearms 

Negligent ....................................... 

Willful .......................................... 

Fraudulent ............................................. 

Disclosure and discovery 


Aggravating circumstances, notice in capital cases ............ 


Alibidefense .......................................... 


Amending orders ....................................... 


Charges, papers accompanying ............................ 


Ref. 

R.C.M. 1004(b)(7) ......... 


R.C.M. 809(c)(2)(B) ....... 


R.C.M. 921 .............. 


R.C.M. 801(e)(3) .......... 


R.C.M. 805(a) ............ 


Mil. R. Evid. 509 ......... 


Mil. R. Evid. 606 ......... 


R.C.M. 1006 ............. 


IV. Para. 58 .............. 


Mil. R. Evid. 804(b)(l); 

R.C.M. 1001(b)(4) ....... 


R.C.M. 702 .............. 

R.C.M. 702(h) ............ 

R.C.M. 702(d)(l),(f) ....... 

R.C.M. 702(g)(l), (h)(2) .... 

R.C.M. 702(g) ............ 

R.C .M. 702(c) ............ 

R.C.M. 702(b) ............ 

Art. 47, UCMJ; Appendix 7 . 

R.C.M. 702(g)(2), (h)(3) .... 

IV. Para. 16 .............. 


R.C.M. 302(b)(3) .......... 


IV. Para. 4c(5)(a); 9 ........ 


IV. Para. 9 ............... 


IV. Para. 6 ............... 


IV. Para. 93 .............. 


IV. Para. 32 .............. 


IV. Para. 33 .............. 


Art. 139, UCMJ ........... 


R.C.M. 501(c) ............ 


R.C.M. 501(c) ............ 


R.C.M. 501(b); 503(c) ..... 

R.C.M. 103(10) ........... 


R.C.M. 501(c) ............ 


R.C.M. 501(c) ............ 


R.C.M. 503(a) ............ 


R.C.M. 503(b) ............ 


R.C.M. 501(c) ............ 


R.C.M. 505(b) ............ 


R.C.M. 503(c)(2) .......... 


R.C.M. 503(b)(2) .......... 


R.C.M. 504(d) ............ 


R.C.M. 501(c) ............ 


R.C.M. 501(b); 503(c) ..... 

IV. Para. 21 .............. 


IV. Para. 8 ............... 


IV. Para. 80 .............. 


IV. Para. 81 .............. 


IV. Para. 7 ............... 


R.C.M. 1004(b)(l) ......... 


R.C.M. 701(b)(l) .......... 


R.C.M. 701(a)(l)(B) ....... 


R.C.M. 701(a)(l)(A) ....... 


MCM, 1984 

11-150 

11-97 

11-136 

11-89 

11-93 

111-3 1 

111-32 

11- 153 

IV- 103 

IV- 124 

IV- 125 

IV-8 

Index 17 
MCM. 1984 	 INDEX 

Classified or privileged government information. 

intent to disclose at trial ............................... 

Continuing duty ........................................ 

Convening orders ....................................... 

Convictions. prior 

Accused. used against ............................. 

Witnesses. impeachment by convictions older than 10 years. 

intent to use ................................... 


Defense. disclosure by. generally .......................... 


Defense. intent to use insanity ............................ 


Defense. withdrawn. inadmissibility ........................ 


Deposition. witness statements ............................ 


Documents 


In defense possession .............................. 


In govennent possession ........................... 


Evidence 


Access to ....................................... 


Favorable to defense ............................... 


Prior identifications of the accused ................... 


Seized from the accused ........................... 


Examinations. physical 

In defense possession .............................. 

In government possession .......................... 

Foreign law. intent to request judicial notice of ............... 


Mental examinations 

In defense possession .............................. 

In government possession .......................... 

Statements of accused related to ..................... 

Military judge. regulation of .............................. 


Military Rules of Evidence. pursuant to 

Evidence seized from the accused .................... 

Prior identifications of the accused ................... 

Statements of the accused .......................... 

Motion relating to 

Generally ....................................... 

Waiver .......................................... 

When made ...................................... 

Noncompliance. remedy for .............................. 


Objects 

In defense possession .............................. 

In government possession .......................... 

Orders. protective ....................................... 


Photographs 

In defense possession .............................. 

In government possession .......................... 

Preparation for trial. opportunity ........................... 


Prior statements of witnesses .............................. 


Privileged information ................................... 


See also Evidence. Privileges . 

Psychiatric experts. intent to use ........................... 

Regulation of .......................................... 

Remedy for noncompliance ............................... 

Sexual behavior of victim. intent to offer evidence of .......... 

Statements relating to an offense ........................... 

Statements of the accused ................................ 

Tests 

In defense possession .............................. 


In government possession .......................... 

Trial counsel. disclosure by. generally ...................... 

Witnesses 

Access to ....................................... 

Accused's limited testimony on motion. intent to use .... 

Alibi. defense ................................. 


Index 18 

Ref. 

Mil . R. Evid. 505(h); 506(h) 

R.C.M. 701(d) ............ 


R.C.M. 701(a)(l)(B) ....... 


R.C.M. 701(a)(4), (5)(A) ... 

Mil. R. Evid . 609(b) ....... 


R.C.M. 701(b) ............ 


R.C.M. 701(b)(2) .......... 


R.C.M. 701(b)(5) .......... 


R.C.M. 702(g)(l)(B) ....... 


R.C.M. 701(b)(3) .......... 


R.C.M. 701(a)(2)(A) ....... 


R.C.M. 701(e) ............ 


R.C.M. 70 1 (a)(6) .......... 

Mil. R. Evid . 321(c)(l) ..... 

Mil. R. Evid . 311(d)(l) ..... 

R.C.M. 701(b)(4) .......... 


R.C.M. 701(a)(2)(B) ....... 

Mil. R. Evid . 201A(b) ...... 

R.C.M. 701(b)(4) .......... 


R.C.M. 701(a)(2)(B) ....... 


R.C.M. 	706(c)(5); Mil . R . 

Evid. 302 .............. 

R.C.M. 701(g) ............ 


Mil. R. Evid . 311(d)(l) ..... 

Mil. R. Evid. 321(c)(l) ..... 

Mil. R . Evid . 304(d)(l) ..... 

R.C.M. 906(b)(7) .......... 


R.C.M. 905(e) ............ 


R.C.M. 905(b)(4) .......... 


R.C.M. 701(g)(3) .......... 


R.C.M. 701(b)(3) .......... 


R.C.M. 701(a)(2)(A) ....... 


R.C.M. 701(g)(2) .......... 


R.C.M. 701(b)(3) .......... 


R.C.M. 701 (a)(2)(A) ....... 


R.C.M. 701(e) ............ 


R.C.M. 914 .............. 


R.C.M. 70l(f) ............ 


R.C.M. 701(b)(2) .......... 


R.C.M. 701(g) ............ 


R.C.M. 701(g)(3) .......... 


Mil. R. Evid . 412(c) ....... 


R.C.M. 701(a)(l)(C) ....... 

Mil. R. Evid. 304(d)(l) ..... 

R.C.M. 701(b)(4) .......... 


R.C.M. 701(a)(2)(B) ....... 


R.C.M. 701(a) ............ 


R.C.M. 701(e) ............ 


Mil. R . Evid . 304(f); 31 1(f); 

321(e) ................. 

R.C.M. 701(b)(l) .......... 


111-9 

111- 17 

111-5 
INDEX 

Failuretocall .................................... 


Merits .......................................... 


Prior statements of ................................ 


Psychiatricexperts ................................ 


Rebuttal ......................................... 


Sentencing ...................................... 


Work product of counsel ................................. 

Discredit, conduct of a nature to bring on armed forces .... Dishonorable discharge 

Death, included in sentence of ............................ 


Execution of ........................................... 


General courts-martial, power to adjudge .................... 


Generally ............................................. 


Previous convictions authorizing ........................... 


Special courts-martial, no power to adjudge ................. 


Summary courts-martial, no power to adjudge ............... 


Dishonorably failing to maintain funds .................... 

Dishonorably failing to pay debt .......................... 

Disloyal statements ....................................... 

Dismissal 

Charges. See Charges and specifications. 

Punishment 


Death, included in sentence of ...................... 


Executionof ..................................... 


General courts-martial, power to adjudge .............. 


Generally ....................................... 


Special courts-martial, no power to adjudge ........... 


Disobedience of orders 

hiluretoobey ......................................... 


Willful 

Commissioned officer .............................. 

Noncommissioned, petty, or warrant officer ............ 

Disorderly conduct ....................................... 


Disposition of charges, generally ........................... 


Disposition of military property, wrongful .................. 


Disposition of offenses, generally .......................... 


Disposition of record of trial after action ................... 


Disqualification 


See also specific topics. 


Discovery of, as to detailed personnel ...................... 


Disrespect 

Defined ............................................... 


Sentinelor lookout ...................................... 


Superior commissioned officer ............................ 


Noncommissioned, petty, or warrant officer .................. 


Distribution of controlled substances ...................... 

Docketing ................................................ 

Documents 

Authentication requirement ............................. 


False ............................................... 


Hearsay exceptions, declarant unavailable ................. 


Hearsay exceptions, generally ........................... 


Hearsay inadmissible .................................... 


Originalneeded ........................................ 


Self-authentication ...................................... 


Double jeopardy. See Former jeopardy. 


Draft, share or bank. See Checks. 


Drinklng liquor with prisoner .............................. 


Driving, drunken or reckless .............................. 


Drugs 


Inspection for .......................................... 


Offenses involving illegal ................................ 


Drunk 

See also intoxlcatlon. 

And disorderly ......................................... 


Ref. 

R.C.M. 701(c) ............ 


R.C.M. 701(a)(3)(A) ....... 


R.C.M. 914 .............. 


R.C.M. 701(b)(2) .......... 


R.C.M. 701(a)(3)(B) ....... 


R.C.M. 701(a)(5)(B) ....... 


R.C.M. 70l(f) ............ 


IV. Para. 60c(3) ........... 


R.C.M. 1004(e) ........... 


R.C.M. 1113(c)(l) ......... 


R.C.M. 20l(f)(l)(A)(ii) ..... 

R.C.M. 1003(b)(lO)(B) ..... 

R.C.M. 1003(d)(l) ......... 


R.C.M. 201(f)(2)(B)(i) ..... 

R.C.M. 1301(d) ........... 


IV. Para. 68 .............. 


IV. Para. 71 .............. 


IV. Para. 72 .............. 


R.C.M. 1004(e) ........... 


R.C.M. 1113(c)(2) ......... 


R.C.M. 20l(f)(l)(A)(ii) ..... 

R.C.M. 1003(b)(lO)(A) ..... 

R.C.M. 201(f)(2)(B)(i) ..... 

IV. Para. 16 .............. 


IV. Para. 14 .............. 


IV. Para. 15 .............. 


IV. Para. 73 .............. 


R.C.M. 401 .............. 


IV. Para. 32 .............. 


R.C.M. 306 .............. 


R.C.M. 1111 ............. 


R.C.M. 502(f) ............ 


IV. Para. 13c(3) ........... 


IV. Para. 104 ............. 


IV. Para. 13 .............. 


IV. Para. 15 .............. 


IV. Para. 37 .............. 


R.C.M. 801(a)(l) .......... 


Mil. R. Evid. 901 ......... 


IV. Para. 31 .............. 


Mil. R. Evid. 804 ......... 


Mil. R. Evid. 803 ......... 


Mil. R. Evid. 802 ......... 


Mil. R. Evid. 1002 ........ 


Mil. R. Evid. 902 ......... 


IV. Para. 74 .............. 


IV. Para. 35 .............. 


Mil. R. Evid. 313(b) ... 

IV. Para. 37 .......... 


IV. Para. 73 .......... 


MCM, 1984 
MCM. 1984 INDEX 

Defined ............................................... 


Driving ............................................... 


On duty ............................................... 


On station ............................................. 


Prisoner ............................................... 


Sentinel or lookout ...................................... 


Drunkenness. incapacitation for performance of 

duties through ......................................... 

Dueling .................................................. 

Dupliciousness. in charging 

See also Charges and specifications . Motion to sever ........................................ 

Duress ................................................... 

Duty 

Defined ............................................... 


Dereliction in the performance of .......................... 


Drunkon .............................................. 


Going from place of ..................................... 


To obey orders ......................................... 


Dying declarations ....................................... 


Eavesdropping ........................................... 

Effecting unlawful enlistment, appointment, or separation .. 

Efficiency reports, members, military judge, counsel ............ 

Elements of offense 

See also specific offenses . 


Instructionon .......................................... 


Lesser included offenses ................................. 


Specification. alleging ................................... 


Embezzlement ........................................... 

Emergency searches ..................................... 

Endangering command. unit. place. or military property .... 

Enemy 

Aiding ................................................ 


Commission. military. jurisdiction over ..................... 


Communicating with .................................... 


Confinementwith ....................................... 


Defined ............................................... 


Failingtoengage ....................................... 


Military government. subject to ........................... 


Misbehavior before ....................................... 


Prisoner in hands of. misconduct .......................... 


Property taken from ..................................... 


Running away before .................................... 


Spying ................................................ 


Enlisted persons 

Detailed to serve as court members ........................ 


Request by accused for court members ..................... 


Restraint of. who may order .............................. 


Unit. same as accused for court members ................... 
 Enlistment 

Constructive ........................................... 


Desertion. effect ........................................ 


Fraudulent ............................................. 


Unlawful. effecting ................................... 


Entrapment .............................................. 

Entry. unlawful ........................................... 

Escalator clause ......................................... 

Escape 

Assisting another to ..................................... 


Confinement ........................................... 


Correctional custody .................................... 


Custody ............................................... 


Prisonerofwar ......................................... 


Ref. 

IV. Para. 35c(3) ........... 


IV. Para. 35 .............. 


IV. Para. 36 .............. 


IV. Para . 73 .............. 


IV. Para. 75 .............. 


IV. Para . 38 .............. 


IV. Para. 76 .............. 


IV. Para. 39 .............. 


R.C.M. 906(b)(5) .......... 


R.C.M. 916(h) ............ 


IV. Para. 36c(2) ........... 


IV. Para. 16 .............. 


IV. Para. 36 .............. 


IV. Para. 10 .............. 


IV. Para. 16c(2)(c) ......... 

Mil. R. Evid . 804(b)(2) ..... 

Mil. R. Evid. 317 ....... 


IV. Para. 8 ............. 


R.C.M. 104(b) .......... 


R.C.M. 920(e)(l). (2) ...... 

IV. Para. 2b(l) ............ 


R.C.M. 307(c)(l), (3) ...... 

IV. Para . 46 .............. 


Mil. R. Evid. 314(i) ....... 


IV. Para. 23 .............. 


IV. Para . 28 .............. 


I. Para. 2(b)(2); R.C.M. 

201(f)(l)(B) ............ 

IV. Para . 28 .............. 


Art . 12, UCMJ ............ 


IV. Para . 23c(l)(b) .......... 


IV. Para. 23 .............. 


I. Para. 2(a)(3) ............ 


IV. Para . 23 .............. 


IV. Para. 29 .............. 


IV. Para. 27 .............. 


IV. Para. 23 .............. 


IV. Para . 30 .............. 


R.C.M. 503(a)(2) .......... 


R.C.M. 503(a)(2) .......... 


R.C.M. 304(b)(2) .......... 


R.C.M. 912(f)(l)(B), (4) .... 

Art. 2(c). UCMJ ........... 


IV. Para . 9c(l)(d) .......... 


IV. Para . 7 ............... 


IV. Para. 8 ............... 


R.C.M. 916(g) ............ 


IV. Para . 111 ............. 


R.C.M. 1003(d) ........... 


IV. Para. 3c(l) ............ 


IV. Para. 19 .............. 


IV. Para . 70 .............. 


IV. Para. 19 .............. 


IV. Para. 28c(3) ........... 


A2-2 


IV- 12 


1v-8 

1v-10 

11- 130 

IV- 145 

11-148 
INDEX 

Suffering prisoner to .................................... 


Escort 


Designation by military judge ............................. 
 Detailing .............................................. 


Disqualification ......................................... 


Duties ................................................ 


Oath ................................................. 
 Qualifications .......................................... 
 Viewsandinspections ................................... 


Espionage ............................................... 


Evidence 

See also Search and seizure; Self-incriminatlon. 

Absence of entry in records ............................... 

Absence of public record or entry .......................... Accessto ............................................. 

Accident, evidence of other crimes, wrongs, or acts to prove 

absence of ........................................... 

Accused 

Character of ..................................... 

Favorable to, disclosure by trial counsel ............... 

Testimony by, concerning admissibility of an admission or 

confession ..................................... 

Testimony by, concerning admissibility of evidence 

obtained from an unlawful search or seizure ......... Testimony by, concerning admissibility of eyewitness 

identification evidence ........................... 

Testimony upon preliminary matter, generally .......... 

Adjudicative facts ....................................... Admissibility 

Effect of relevancy upon ........................... 

Erroneous rulings, effect of ......................... For limited purpose ............................... 

Motionasto ..................................... 

Preliminary determinations concerning ................ Admissions. See Self-incrimination. 

Affidavits ............................................. 

Amendments to the Military Rules of Evidence .............. 

Analysis of the Military Rules of Evidence .................. Ancient documents ...................................... 

Annulment of conviction, effect on impeachment ............. Appeal, effect on impeachment by evidence of conviction ...... 

Applicability of rules 

Military Rules of Evidence ......................... 

Other evidentiary rules ............................. 

Attorney-client privilege ................................. Authentication and identification 

Attesting certificates ............................... 


Generally ....................................... 


Illustrations of .................................... 


Self-authentication ................................ 


Subscribing witness' testimony unnecessary ............ 
 Availability of a witness, determination of ................... Baptismal certificates .................................... Best evidence rule. See Contents of writings, recordings, and 

photographs, this heading. 

Bias or prejudice 

Compromise and offer to compromise, admissibility to 

prove ......................................... 


Evidence of bias to impeach ........................ 


Exclusion of unfairly prejudicial evidence ............. 


Burden of proof. See Burden of proof. 


Business entries ........................................ 


Certificate of rehabilitation, effect on impeachment ........... 


Chaplain, privileged communications to ..................... 


Ref. 

N. Para. 20 ....... 


R.C.M. 913(c)(3) .......... 


R.C.M. 501(c) ............ 


R.C.M. 502(e)(2), (f) ...... R.C.M. 502(e)(3)(C); 

913(c)(3) ............... 

R.C.M. 807(b) ............ 
 R.C.M. 502(e)(l) .......... 


R.C.M. 913(c)(3) .......... 
 IV. Fara. 30 .............. 


Mil. R. Evid. 803(7) ....... 

Mil. R. Evid. 803(10) ...... 

R.C.M. 701(e) ............ 


Mil. R. Evid. 404(b) ....... 


Mil. R. Evid. 404(a)(l) ..... 

R.C.M. 701(a)(6) .......... 


Mil. R. Evid. 304(f) ....... 


Mil. R. Evid. 311(f) ....... 


Mil. R. Evid. 321(e) .... 

Mil. R. Evid. 104(d) ....... 


Mil. R. Evid. 201 ......... 


Mil. R. Evid. 402; 403 ..... 

Mil. R. Evid. 103(a) ....... Mil. R. Evid. 105 ......... 

R.C.M. 906(b)(13) ......... 


Mil. R. Evid. 104(a) ....... 


Mil. R. Evid. 405(c) ....... 


Mil. R. Evid. 1102 ........ 


Appendix 21 .............. 


Mil. R. Evid. 803(16) ...... 


Mil. R. Evid. 609(c) ....... 
 Mil. R. Evid. 609(e) ....... 


Mil. R. Evid. 101(a); 1101(a) 

Mil. R. Evid. 101(b) ....... 

Mil. R. Evid. 502 ......... 

Mil. R. Evid. 902(4a) ...... 

Mil. R. Evid. 901(a) ....... Mil. R. Evid. 901(b) ....... 

Mil. R. Evid. 902 ......... Mil. R. Evid. 903 ......... 

Mil. R. Evid. 104(a) ....... Mil. R. Evid. 803(12) ...... 

Mil. R. Evid. 408 ......... 


Mil. R. Evid. 608(c) ....... 


Mil. R. Evid. 403 ......... 


Mil. R. Evid. 803(6) ....... 


Mil. R. Evid. 609(c) ....... 


Mil. R. Evid. 503 ......... 


MCM, 1984 

111-19; 111-19 

111- 1 

111-2 

11-113 

111- 1 

111-1; 111-43 

111- 1 

111-22 

Index 21 
MCM. 1984 INDEX 

Character 

Inadmissibility to prove conduct; exceptions ........... Methods of proving ............................... Circumstantial .......................................... Classified information. privilege concerning ................. Clergyman 

Defined ......................................... Rivileged communications to ....................... Co.accused. statements at joint trial ........................ Co.conspirator. statements of .............................. Commercial publications ................................. Common law rules. applicability .......................... Competency 

Court members as witnesses ........................ Military judge as witness ........................... Witnesses. generally ............................... Compromise and offer to compromise ...................... Concealing. as grounds for being accessory after the fact ...... Confessions.See Self~lncrlmlnatlon. Confidential or privileged communications . See Privileges. this 

heading. Confusion of the issues. as grounds for excluding relevant 

evidence ............................................ Conspiracy. statement of co-conspirator ..................... Contents of writings. recordings. and photographs 

Admissibility of duplicates .......................... Admissibility of other evidence as proof ............... Determination of fact issues related to ................ Proof by testimony or written admission of party ....... Public records .................................... Requirement of an original ......................... Summaries ...................................... Continuance. determination by military judge ................ Control. proof by subsequent remedial measures .............. Conviction of crime. impeachment by ...................... Corroboration 

Confessions or admissions .......................... Witness' prior identification to corroborate in-court 

identification ................................... Court.martial. power to obtain evidence ..................... Credibility or weight. right to introduce evidence concerning ... Cross-examination 

Scope .......................................... Specific incidents of conduct to impeach .............. Cumulative. as grounds for excluding relevant evidence ........ Death. statement under belief of impending .................. Declarant 

Attacking and supporting credibility of hearsay declarant . Defined ......................................... Unavailability .................................... Degrading questions ..................................... Deliberations of courts and juries. privilege concerning ........ Disclosure. required 

Evidence of prior identification of the accused .......... Evidence seized from the person or property of the 

accused ....................................... Immunity or leniency granted to a witness ............. Statements by accused ............................. Divorce or annulment. effect on husband-wife privilege ........ Duplicate 

Admissibility of .................................. Defined ......................................... Dying declaration ....................................... Excited utterance ....................................... 

Index 22 

Ref. 

Mil.R. Evid. 404 ......... 
 Mil. R. Evid. 405 ......... 
 R.C.M. 918(c) ............ 
 Mil. R. Evid. 505 ......... 


Mil. R. Evid. 503(b)(l) ..... Mil. R. Evid. 503(a) ....... Mil. R. Evid. 306 ......... 

Mil.R. Evid. 801(d)(2)(E) .. Mil. R. Evid. 803(17) ...... Mil. R. Evid. 101(b)(2) ..... 

Mil. R. Evid. 606 ......... 
 Mil. R. Evid. 605 ......... 
 Mil.R. Evid. 601 ......... 
 Mil. R. Evid. 408 ......... 
 IV. Para. 3c(l) ............ 


Mil.R. Evid. 403 ......... Mil. R.Evid. 801(d)(2)(E) .. 

Mil. R.Evid. 1003 ........ 
 Mil. R. Evid. 1004 ........ 
 Mil.R. Evid. 1008 ........ 
 Mil. R. Evid. 1007 ........ 
 Mil. R. Evid. 1005 ........ 
 Mil. R. Evid. 1002 ........ 
 Mil. R. Evid. 1006 ........ 
 Mil.R. Evid. 104(a) ....... 
 Mil. R.Evid. 407 ......... 
 Mil.R. Evid. 609 ......... 


Mil. R.Evid. 304(g) .. 

Mil. R.Evid. 321(a)(l) ..... 

R.C.M. 801(c) ............ 
 Mil.R. Evid. 104(e) ....... 


Mil.R. Evid. 611@) ....... Mil. R.Evid. 608(b) ....... Mil. R. Evid. 403 ......... Mil. R. Evid. 804(b)(2) ..... 

Mil. R. Evid. 806 ......... 
 Mil. R. Evid. 801(b) ....... 
 Mil. R. Evid. 804(a) ....... 
 Mil.R. Evid. 303 ......... 
 Mil. R.Evid. 509; 606 ..... 


Mil. R.Evid. 321(c)(l) ..... Mil. R. Evid. 311(d)(l) ..... 

Mil. R. Evid. 301(c)(2) ..... Mil. R. Evid. 304(d)(l) ..... Mil. R. Evid. 504(c)(l) ..... 

Mil.R. Evid. 1003 ........ Mil. R. Evid. 1001(4) ...... Mil. R.Evid. 804(b)(2) ..... Mil. R. Evid. 803(2) ....... 

111-19 

III- 19 

11-134 

III-24 
INDEX 

Exclusionary rules 


See also Privileges. this heading; Search and seizure; 


Sel+incrimination. 
 Eyewitness identification ........................... 


Exclusion of. noncompliance with discovery requirements ...... 
 Existing mental. emotional. or physical condition ............. 


Experts 


Appointment by court ............................. 
 Bases of opinion by ............................... 


Disclosure of facts or data underlying opinion .......... 
 Employment at government expense .................. 
 Opinion on ultimate issue .......................... 


Selection and employment by accused ................ 


Use. generally ................................... 
 Extenuation and mitigation ............................... 


Eyewitness identification ................................. 


Facts. judicial notice of .................................. 


Family records ......................................... 
 Feasibility of precautionary measures. proof by subsequent 


remedial measures .................................... 


Foreign law. judicial notice of ............................. 


Formertestimony ....................................... 


Government information. privilege concerning ............... 


Habit ................................................. 


Hearsay 


Defined ......................................... 

Generalrule ..................................... 

Exceptions. availability of declarant immaterial 

Absence of entry in records ....................... 


Absence of public record of entry .................. 


Excited utterance ............................... 


hnilyrecords ................................. 


Government price lists ........................... 


Judgment as to personal. family. or general history. or 


boundaries ................................... 


Judgment of previous conviction ................... 


Learnedtreatises ................................ 


Market reports. commercial publications ............ 


Marriage. baptismal. and similar certificates ......... 
 Otherexceptions ................................ 


Present sense impressions ........................ 


Public records and reports ........................ 
 Recorded recollection ............................ 


Records of documents affecting an interest in property . 


Records of regularly conducted activity ............. 


Records of religious organizations ................. 


Records of vital statistics ......................... 
 Reputation as to character ........................ 


Reputation concerning boundaries or general history . . 
 Reputation concerning personal or family history ..... 


Statements for purposes of medical diagnosis or 


treatment .................................... 

Statements in ancient documents ................... 

Statements in documents affecting an interest in 

property .................................... 

Then existing mental. emotional or physical condition . 

Exceptions. declarant unavailable 


Former testimony ............................... 
 Other exceptions ................................ 
 Statement against interest ........................ 


Statement of personal or family history ............. 
 Statement under belief of impending death .......... 
 Hearsay within hearsay .................................. 


History. statement of personal or family ..................... 


Husband.wife. privilege .................................. 


MCM. 1984 

Ref. 

Mil. R. Evid. 321(a)(2) ..... 

R.C.M. 701(g)(3)(C) ....... 

Mil. R. Evid. 803(3) ....... 

Mil.R. Evid. 706 ......... Mil.R. Evid. 703 ......... 

Mil. R. Evid. 705 ......... R.C.M. 703(d) ............ 

Mil. R. Evid. 704 ......... Mil. R. Evid. 706(c) ....... Mil. R. Evid. 702 ......... 

R.C.M. 1001(c)(l)(A), (B) .. 

Mil. R . Evid. 321 ......... 

Mil. R. Evid. 201 ......... 

Mil. R. Evid. 803(13) ...... 

Mil . R . Evid . 407 .........

Mil. R. Evid. 201A(b) ...... 

Mil. R. Evid. 804(b)(l) ..... 

Mil. R.Evid. 506 ......... Mil. R. Evid. 406 ......... 

Mil. R. Evid. 801 

Mil. R. Evid. 802 

......... 

......... 

Mil. R. Evid. 803(7) ....... 

Mil. R. Evid. 803(10) ...... 

Mil. R. Evid. 803(2) ....... Mil. R. Evid. 803(13) ...... 

Mil. R. Evid. 803(17) ...... 

Mil . R . Evid . 803(23) ...... Mil. R. Evid. 803(22) ...... Mil. R. Evid. 803(18) ...... 

Mil. R. Evid. 803(17) ...... Mil. R. Evid. 803(12) ...... Mil. R. Evid. 803(24) ...... 

Mil.R. Evid. 803(1) ....... 

Mil. R. Evid. 803(8) ....... 

Mil.R. Evid. 803(5) ....... 

Mil. R. Evid. 803(14) ...... Mil. R. Evid. 803(6) ....... 

Mil. R. Evid. 803(11) ...... 

Mil. R. Evid. 803(9) ....... Mil. R. Evid. 803(21) ...... 

Mil.R. Evid. 803(20) ...... Mil.R. Evid. 803(19) ...... 

Mil. R. Evid. 803(4) ....... 

Mil. R. Evid. 803(16) ...... 

Mil. R. Evid. 803(15) ...... 

Mi1. R. Evid. 803(3) ....... 

Mil. R. Evid. 804(b)(l) ..... 

Mil. R. Evid. 804(b)(5) ..... Mil. R. Evid. 804(b)(3) ..... 

Mil. R. Evid. 804(b)(4) ..... Mil. R. Evid. 804(b)(2) ..... 

Mil. R. Evid. 805 ......... 

Mil.R. Evid. 804(b)(4) ..... 

Mil. R. Evid. 504 ......... 

Index 23 
MCM. 1984 	 INDEX 

Identification 

Evidence of other crimes. wrongs. or acts as proof of ... 

Eyewitness testimony as to ......................... 

Statements of. as non-hearsay ....................... 

Immunity ............................................. See also Self~lncrlmlnatlon . Impeachment 


By contradiction. using certain involuntary statements ... 


By contradiction. using illegally seized evidence ....... 


Evidence of character. conduct. and bias .............. 
 Evidence of criminal conviction ..................... 


Juvenile adjudications ............................. 
 Prior statements of witnesses ........................ 


Religious beliefs or opinions ........................ 


Subsequent remedial measures ...................... 
 Who may impeach ................................ 
 Informant. identity of. privilege ........................... 
 Insanity ............................................... 


Intent. evidence of other crimes. wrongs. or acts. as proof of ... 
 Interest. statement against ................................ 


Interpreters ............................................ 


Interrogation. See Self~incrlminatlon. 
 Involuntary statement . See Self.lncrlmination . 
 Joint clients. effect on lawyer-client privilege ................ 


Joint trial. statements of accused at ......................... 


Judgment 


As to personal. family. or general history. or boundaries . 

Revious conviction ............................... 

Judicial notice 

Adjudicative facts ................................. 

Laws. domestic and foreign ......................... 

Statements in learned treatises ....................... Juvenile adjudications. impeachment by ..................... 


Knowledge 

Evidence of other crimes. wrongs. or acts as proof of ... 

Requirement for personal knowledge in order to testify . . 

Law. domestic. judicial notice of .......................... Law enforcement personnel. records and reports of observations . 

Lawyer-client privilege ................................... 

Lawyer. defined for purposes of privilege .................... 

Learned treatises ........................................ 

Liability insurance. admissibility .......................... Limited admissibility of .................................. 

Lineups and other identification processes 

Right to counsel at ................................ 


Whenunlawful ................................... Marketreports ......................................... Maniage certificates ..................................... Medical diagnosis or treatment. statement for purposes of ...... 

Members 

As witnesses ..................................... Hearings out of presence of ......................... 

Mental examination of accused. privilege concerning . 

See Self~lncrirninatlon. Military judge 

As witness ...................................... 

Defined ......................................... 

Military records. authentication by attesting certificates ........ 

Minister. privileged communication to ...................... 

Misconduct. acts of. admissibility .......................... 

Mistake. admissibility of evidence of other crimes. wrongs. or 

acts to prove absence of ................................ 

Mistrial. as remedy for 

Failing to produce a writing used to refresh memory . . 

Index 24 

Ref. 

Mil. R. Evid. 404(b) ....... 

Mil.R.Evid. 321 ......... 

Mil. R. Evid. 801(d)(l)(C) .. 

R.C.M. 704 .............. 


Mil. R. Evid. 304(b) ....... 


Mil. R. Evid. 31 1(b) ....... 


Mil. R. Evid . 608 ......... 


Mil. R. Evid. 609 ......... 


Mil. R. Evid. 609(d) ....... 


Mil. R. Evid. 613 ......... 


Mil. R. Evid. 610 ......... 


Mil . R. Evid . 407 ......... 


Mil. R. Evid . 607 ......... 


Mil. R. Evid. 507 ......... 


Mil. R. Evid 302; R.C.M. 


916(k) ................. 

Mil. R. Evid. 404(b) ....... 

Mil . R. Evid . 804(b)(3) ..... 

Mil. R. Evid. 604 ......... 

Mil. R. Evid. 502(d)(5) ..... 

Mil. R. Evid. 306 ......... 

Mil. R. Evid. 803(23) ...... Mil. R. Evid . 803(22) ...... 

Mil. R. Evid. 201 ......... 

Mil. R. Evid. 201A ........ 

Mil . R. Evid . 803(18) ...... 

Mil. R . Evid. 609(d) ....... 

Mil.R. Evid. 404(b) ....... 

Mil. R. Evid . 602 ......... 

Mil. R. Evid. 201A(a) ...... 

Mil . R. Evid . 803(8)(B) .... 

Mil. R. Evid. 502 ......... 

Mil. R. Evid. 502(b)(2) ..... 

Mil. R. Evid. 803(18) ...... 

Mil. R. Evid. 411 ......... 

Mil.R. Evid. 105 ......... 

Mil.R	. Evid. 321(b)(2) ..... 

Mil. R . Evid . 321(b) ....... 

Mil.R . Evid . 803(17) ...... 

Mil. R. Evid. 803(12) ...... 

Mil. R . Evid . 803(4) ....... 


Mil. R. Evid. 606 ......... 

Mil. R. Evid. 103(c); 104(c) . 

Mil. R. Evid. 605 ......... 


Mil. R.Evid. 101(c) ....... 


Mil . R. Evid. 902(4a) ...... 


Mil. R.Evid. 503 ......... 
 Mil.R. Evid. 404(b) ....... 


Mil. 	R . Evid . 404(b) ....... 


Mil. R . Evid. 612 .... 
Sustaining a claim of governmental privilege ........... 

Motive. evidence of other crimes. wrongs. or acts as proof of ... Negligence. proof of subsequent remedial measures ........... Negotiations on plea. admissibility ......................... Newly discovered. as grounds for new trial .................. Nonconsensual sexual offenses. defined ..................... Oath or affirmation 

Interpreters ...................................... 
 Witnesses ....................................... 
 Objections 


Confessions and admissions. concerning .............. 
 Eyewitness identification. concerning ................. 
 Generally ....................................... 
 Member as a witness .............................. 
 Prior identification of the accused .................... 
 Search and seizure. concerning ...................... 


Witnesses. calling by military judge or members ....... 
 Offer of proof 


Record of ....................................... 
 Requirements of valid ............................. 
 Rulingbymilitaryjudge ........................... 
 Offer to compromise .................................... Official records ......................................... Opiion 

Bases of expert opinion ............................ 
 Character. as method for proving .................... 
 Disclosure of facts or data underlying opinion .......... 
 Experttestimony ................................. 
 Lay witness testimony ............................. 
 Rehabilitative potential of accused ................... 
 Sexual behavior of alleged victim .................... 
 Ultimate issue included in .......................... 
 Opportunity. evidence of other crimes. wrongs. or acts as proof 

of .................................................. Order of interrogation and presentation .......:............. original 

Defined ......................................... Requirement to use ............................... When original not required .See Contents of writings. 

recordings. and photographs. this heading . 

Other crimes. wrongs. or acts. evidence of .................. Ownership. proof by subsequent remedial measures ........... Pardon. effect on impeachment by conviction ................ Pdst sexual behavior 

Admissibility ..................................... 
 Defined ......................................... 
 Degrading questions ............................... 
 Procedural requirements for admission ................ 
 Payment of medical and similar expenses .................... 
 Personal knowledge. requirement for in order to testify ........ 
 Photographs. defined .................................... 
 Plainem ............................................. 
 Plan or design of accused. evidence of other crimes. wrongs. or 


acts as proof of ....................................... Pleas. plea discussions and related statements. admissibility .... Political vote. privilege concerning ......................... Rejudice. unfair ........................................ Preliminary questions .................................... Preparation. evidence of other crimes. wrongs. or acts as proof 

of ................................................ Presentationonmerits ................................... Present sense impression ................................. Previous convictions 

Impeachment by evidence of ........................ 


MCM. 1984 

Ref. Mil. R. Evid. 505(i)(4)(E)(ii) 

Mil.R.Evid.W(b) ....... Mil . R . Evid . 407 ......... Mil.R. Evid. 410 ......... R.C.M. 1210(f) ........... Mil. R.Evid. 412(e) .......

Mil.R.Evid. 604 

Mil. R. Evid. 603 

......... 

......... 

Mil. R. Evid. 304(a). (d)(2) . Mil. R.Evid. 321(a)(l). (d) . Mil.R. Evid. 103(a)(l) ..... 

Mil.R. Evid. 606(a) ....... Mil. R. Evid. 321(c)(2) ..... Mil. R. Evid. 311(a)(l), 

(d)(2) .................. Mil. R.Evid. 614(c) ....... 

Mil.R. Evid. 103(b) .......

Mil. R. Evid. 103(a)(2) ..... Mil. R.Evid. 103(b) ....... Mil.R.Evid. 408 ......... Mil . R . Evid . 803(8) .......

Mil.R. Evid. 703 ......... 

Mil. R. Evid. 405(a) ....... Mil. R.Evid. 705 ......... Mil.R.Evid. 702 ......... Mil.R. Evid. 701 ......... R.C.M. 1001(b)(5) ......... Mil. R.Evid. 412(a) ....... Mil. R. Evid. 704 ......... 

Mil.R.Evid. W(b) 

Mil.R. Evid. 611 .. 

Mil. R. Evid. 1001(3) ...... Mil. R. Evid. 1002 ........

Mil. R. Evid. 404(b) ....... Mil. R.Evid. 407 ......... Mil. R. Evid. 609(c) ....... 

Mil.R. Evid. 412(a). (b) .... Mil. R. Evid. 412(d) ....... Mil. R.Evid. 303 ......... Mil. R. Evid. 412(c) ....... 

Mil. R. Evid. 409 ......... Mil.R. Evid. 602 ......... Mil. R. Evid. 1001(2) ...... Mil. R. Evid. 103(d) ....... 

Mil.R. Evid. 404(b) ....... Mil. R. Evid. 410 ......... Mil. R. Evid. 508 ......... Mil. R. Evid. 403 ......... Mil. R. Evid. 104 ......... 

111-19 

111-20 

111-31 

m-19 

UI-1 

Mil . R . Evid . 404(b) ....... R.C.M. 913(c) ............ Mil. R. Evid. 803(1) .......

Mil.R. Evid. 609 ......... 

Index 25 
MCM, 1984 INDEX 

Judgment or evidence of ........................... 
 Priest, privileged communications to ....................... 


Prior statements of witnesses 


Impeachment by evidence of ........................ 
 Prior consistent statement as non-hearsay .............. 


Prior inconsistent statement as non-hearsay ............ 
 Prior statement of identification as non-hearsay ......... 
 Privileges 


Applicability of rules concerning .................... 


Classified information ............................. 


Comments upon or inference from claim of, at trial 


Limiting instruction ............................. 


Prohibited ..................................... 


Communication of privileged information by electronic 


means ........................................ 


Communications to clergy .......................... 


Compelled or unintentional disclosure of information .... 


Deliberations of courts and juries .................... 
 Exceptions .................................... 


General rule ..................................... 


Government information ........................... 


Husband-wife .................................... 


Identity of informant .............................. 
 Lawyer-client .................................... 


Medical officer or civilian physician, no privilege ....... 


Mental examination of accused. See Self-incrimination. 


Political vote ..................................... 


Preliminary determinations concerning ................ 


Waiver by voluntary disclosure ...................... 


Probable cause. See Search and seizure. 


Production of 


Motionfor ...................................... 


Procedure for .................................... 


Right to ......................................... 


Property 


Records of documents affecting interest in ............. 
 Statements in documents affecting interest in .......... 


Public records and reports ................................ 


Qualifications to be a witness, determination by military judge . . 


Rabbi, privileged communications to ....................... 


Reasonable doubt ....................................... 


Rebuttal ............................................... 


Recollection recorded .................................... 
 Recordings, defined ..................................... 


Refreshing memory, by use of writings ..................... 


Regularly conducted activity, records of ..................... 


Relaxation of rules, in sentencing proceedings ................ 


Relevancy 


Defined ......................................... 


Effect on admissibility ............................. 


Exclusion of relevant evidence ...................... 


When conditioned on fact .......................... 


Religious beliefs or opinions .............................. 
 Religious organizations, record of .......................... 


Remainder of, or related, writings or recorded statements ...... 


Reputation 


Character ........................................ 


Community,defined ............................... 


Concerning boundaries or general history ............. 


Concerning personal or family history ................ 


Defined ......................................... 
 Routine practice ........................................ 


Rule of completeness .................................... 


Rules of Evidence, Military 


Amendments to .................................. 


Ref. 


Mil. R. Evid. 803(22) ...... 
 Mil. R. Evid. 503 ......... 


Mil. R. Evid. 613 ......... 


Mil. R. Evid. 801(d)(l)(B) .. 
 Mil. R. Evid. 801(d)(l)(A) . . 


Mil. R. Evid. 801(d)(l)(C) .. 


Mil. R. Evid. 1101(b) ..... 

Mil. R. Evid. 505 ........ 


Mil. R. Evid. 512(c) ....... 


Mil. R. Evid. 512(a) ....... 


Mil. R. Evid. 5 1 1 (b) ....... 


Mil. R. Evid. 503 ......... 


Mil. R. Evid. 5 1 1(a) ....... 


Mil. R. Evid. 509 ......... 


Mil. R. Evid. 606 ......... 


Mil. R. Evid. 501 ......... 
 Mil. R. Evid. 506 ......... 


Mil. R. Evid. 504 ......... 


Mil. R. Evid. 507 ......... 


Mil. R. Evid. 502 ......... 


Mil. R. Evid. 50 1 (d) ....... 


Mil. R. Evid. 508 ......... 


Mil. R. Evid. 104(a) ....... 
 Mil. R. Evid. 510 ......... 


R.C.M. 905(b)(4); 906(b)(7) . 

R.C.M. 703(f)(4) .......... 


R.C.M. 703(f) ............ 


Mil. R. Evid. 803(14) ...... Mil. R. Evid. 803(15) ...... 

Mil. R. Evid. 803(8) ....... 

Mil. R. Evid. 104(a) ....... Mil. R. Evid. 503 ......... 

R.C.M. 918(c) ............ 


R.C.M. 1001(d) ........... 

Mil. R. Evid. 803(5) ....... 

Mil. R. Evid. 1001(1) ...... Mil. R. Evid. 612 ......... 

Mil. R. Evid. 803(6) ....... 

Mil. R. Evid. 1101(c) ...... 

Mil. R. Evid. 401 ......... 


Mil. R. Evid. 402 ......... 


Mil. R. Evid. 403 ......... 


Mil. R. Evid. 104(b) ....... 


Mil. R. Evid. 610 ......... 


Mil. R. Evid. 803(11) ...... 
 Mil. R. Evid. 106 ......... 


Mil. R. Evid. 803(21) ...... 

Mil. R. Evid. 405(d) ....... 

Mil. R. Evid. 803(20) ...... Mil. R. Evid. 803(19) ...... Mil. R. Evid. 405(d) ....... Mil. R. Evid. 406 ......... 

Mil. R. Evid. 106 ......... 

Mil. R. Evid. 1102 ........ 


Index 26 
INDEX 

Analysis of ...................................... 
 Applicability ..................................... 


Citation to ....................................... 
 Inapplicability .................................... 


Purpose and construction ........................... 
 Relaxation during sentencing proceedings ............. 
 Ruling admitting or excluding evidence 

Effect of erroneous ruling .......................... Plainerror ....................................... Search.See Search and seizure . 
 Self-authentication ...................................... 


Self~incrimination. See Self.lncrlmlnatlon . 
 Sentencing proceedings 


Generally ....................................... 
 Relaxation of rules ................................ 
 Sexual offenses. nonconsensual ............................ 
 Specific instances of conduct. to prove character .............. 
 Spontaneous exclamations ................................ 


Stipulations 


Confessional ..................................... 
 Generally ....................................... 
 Striking testimony 

After witness asserts self-incrimination privilege ........ 

Writing to refresh memory. failure to produce .......... 

Subscribing witness' testimony. unnecessary for authentication . . Subsequent remedial measures ............................ Summary court.martial. applicability of rules ................ 

Telephonic transmissions of privileged information. effect of .. 

Testimony 

Failure to testify by accused. instruction concerning ..... Preliminary matter. by accused ...................... Trial counsel. duty to disclose ............................. 
 Unavailability of declarant. defined ......................... 


Victim. character of ..................................... 
 Vital statistics. records of ................................ 
 Vote. political. privilege concerning ........................ 


Waiver 


Failure to object .................................. 
 Guilty plea ....................................... 


Privileges ....................................... Waste of time. as grounds for exclusion of relevant evidence .... 

Witnesses 

Advice concerning self-incrimination ................. 
 Availability determination .......................... 
 Calling and interrogation by the court-martial .......... 
 Competency. general rule .......................... 
 Court members as witnesses ........................ 
 Exclusion from courtroom .......................... 
 Impeachment of . See Impeachment. this heading . 


Military judge as a witness ......................... 
 Mode and order of interrogation and presentation ....... 
 Oathor affirmation ................................ 


Personal knowledge. requirement for ................. 
 Reduction of 


Rocedures for ................................. 
 Right to ....................................... 
 Qualificationas ................................... 
 Writings and recordings 

Defined ......................................... Refresh memory. to ............................... 

Remainder of or related writings ..................... 

MCM. 1984 

Ref. 

Appendix 21 .............. Mil. R. Evid. 101(a); 

1101(a) ................ Mil. R. Evid. 1103 ........ Mil. R.Evid. 1101(d) ...... 

Mil. R.Evid. 102 ......... Mil. R. Evid. 1101(c) ...... 

Mil. R. Evid. 103(a) 

Mil.R. Evid. 103(d) 

....... 

....... 

111- 1 

m-1 

Mil . R . Evid . 902 ......... 

R.C.M. 1001 ............. Mil.R. Evid. 1 10 1 (c) ...... 

Mil . R . Evid . 412 .........

Mil.R. Evid. 405(b) ....... Mil. R. Evid. 803(2) ....... 

R.C.M. 705(b)(l) .......... 

R.C.M. 811 .............. 

Mil . R . Evid . 301(f)(2) .....

Mil. R. Evid. 612 ......... Mil . R . Evid . 903 .........

Mil. R. Evid. 407 ......... Mil. R. Evid. 101(a); R.C.M. 

1304(b)(2)(E) ........... 

Mil. R. Evid. 5 1 1 (b) ....... 

Mil . R . Evid . 301(g) .......

Mil. R. Evid. 104(d) ....... R.C.M. 701(a) ............ 

Mil. R.Evid. 804(a) ....... 

Mil. R. Evid. 404(a)(2) ..... Mil. R.Evid. 803(9) ....... 

Mil . R . Evid . 508 .........

Mil. R. Evid. 103(a)(l) ..... Mil. R. Evid. 304(d)(5); 

311(i); 321(g); R.C.M. 

910Q) ................. 

Mil . R . Evid . 510 .........

Mil. R. Evid. 403 ......... 

Mil. R. Evid. 301(b)(2) ..... 

Mil.R. Evid. 104(a) ....... Mil.R. Evid. 614 ......... 

Mil. R. Evid. 601 ......... 

Mil.R. Evid. 606 ......... Mil.R. Evid. 615 ......... 

Mil.R. Evid. 605 

Mil . R . Evid . 611 

Mil. R. Evid. 603 

Mil. R. Evid. 602 

......... 

......... 

......... 

......... 

R.C.M. 703(e) ............ R.C.M. 703(b) ............ 

Mil. R. Evid. 104(a) ....... 

Mil. R. Evid. 1001(1) ...... 

Mil . R . Evid . 612 ......... Mil. R. Evid. 106 ......... 

Index 27 
MCM. 1984 INDEX 

Requirement of original to prove ..................... 
 Examlnatlon 

Members 

Generally ....................................... Questionnaire. use of .............................. Record of trial before authentication ........................ 
 Witnesses 

Deposition ....................................... Generally ....................................... Pretrial investigation ............................... 

Exceptions and substitutions 

Findings by ............................................ 
 Lesser included offenses ................................. 
 Plea. entry by .......................................... 
 Executlon of sentence 

Action. statement as to .................................. Deferment. effect on .................................... Generally ............................................. Punishment which may be ordered executed in initial action .... Punishment which may not be ordered executed in initial action . 

Suspension.See Suspenslon of sentence . Exhlbits 

Generally ............................................. 
 Members. use during deliberations ......................... 
 Expert witnesses 

See also Evidence. Experts. Employment of ................................... Opinion testimony by .............................. 

Expl~sl~e. defined .........................................
 Exportlng controlled substances .......................... 


Exposure. Indecent ....................................... 
 Extenuation. matters in 


Investigation. pretrial .................................... 


Resentencing procedure ................................. 


Extortion ................................................. 
 Extra duty ............................................... 


Extraordlnary rellef. petitlon for 

Appellatecounsel ....................................... 
 Reviewed by 

Court of Military Appeals .......................... Court of Military Review ........................... 

Speedy trial. effect on ................................... 
 Eyewitness Identification ................................. 


Failure to 


Afford all practical relief and assistance in combat ............ 


Enforce or comply with code ............................. 
 Engage or do utmost to encounter enemy . ................. 
 Enterplea ............................................. 
 Fylfill terms of pretrial agreement .......................... 
 Maintain funds. dishonorable ............................. 
 Obey orders or regulations ................................ 
 Pay debts .............................................. 
 Repair ................................................ 
 Report. prevent. or suppress mutiny ........................ 


Secure or report captured or abandoned property ............. 
 False 


Alarm. before enemy .................................... 
 Claim ................................................ 
 Discharge certificate ..................................... 
 Identification card ....................................... 
 Officialstatement ....................................... 


Ref. 


Mil.R. Evid. 1002 ........ 


R.C.M. 912(d) ........ 
 R.C.M. 912(a) ........ 
 R.C.M. 1103(i) ....... 


R.C.M. 702(g)(l)(B), (2)(D) . 

Mil. R. Evid. 614 ......... R.C.M. 405(h)(l) .......... 


R.C.M. 918(a) ............ 
 N. Para. 2b(3) ............ 


R.C.M. 910(a) ...........,. 


R.C.M. 1107(f)(4)(B) ....... 


R.C.M. 1101(c)(6), (7) ..... R.C.M. 1113 ............. 


R.C.M. 1113(b) ........... 
 R.C.M. 1113(c) ........... 


R.C.M. 913(c) ............ 
 R.C.M. 921(b) ............ 


R.C.M. 703(d) ............ 
 Mil.R . Evid. 702; 703; 704; 

705 ................... 

R.C.M. 103(11) ........... 


N. Para. 37 .............. 


W. Para. 88 .............. 


R.C.M. 405(f)(ll), (h)(l)(C) 

R.C.M. 1001(c)(l)(A). (2)(A). 

(3) .................... 
 IV. Para. 53 ............... 


v. Paras. 5b(2)(A)(v). (B)(v). 

c(6); 6b(3) .............. 

R.C.M. 1202(b) ........... 


R.C.M. 1204(a) ........... 
 R.C.M. 1203(b) ........... 
 R.C.M. 707(c)(l)(E) ....... 


Mil. R. Evid. 321 ......... 


IV. Para . 23 .............. 
 IV. Para. 22 .............. 


IV. Para. 23 .............. 
 R.C.M. 910(b) ............ 


R.C.M. 705(d)(5)(B) ....... 


IV. Para.68 .............. 
 IV. Para. 16 .............. 
 IV. Para. 71 .............. 
 IV. Para . 10 .............. 
 IV. Para. 18 .............. 
 IV. Para. 27 .............. 


IV. Para . 23 .............. 


IV. Para. 58 .............. 


IV. Para . 77 .............. 


IV. Para. 77 .............. 
 IV . Para . 31 .............. 


11-122 

11- 120 

11-164 

II- 176 

11-160; 11-160 

II- 185 

11-185 

II-185 

11- 125 

11-136 

11- 190 

1v-39 

IV- 103 

N-122 

IV- 122 

1v-53 

Index 28 
INDEX MCM, 1984 

Pass .................................................. Permit ................................................ Pretenses 

Larcenyby ...................................... Obtaining services under ........................... Receipt ............................................... 

See also Fraud against United States. 

Statement, during guilty plea inquiry ....................... 

Statements in support of probable cause ..................... Swearing .............................................. Writing. See False officlal statement; Forgery; Fraud against 

United States. 

Federal courts 

Former trial in, effect of 

Final determination ............................... Formerjeopardy .................................. Jurisdiction ...................................... Members of bar, counsel in courts-martial ............. 

Rules of evidence in, application to courts-martial ...... 

Federal Rules of Evldence, amendments ..................... Flnallty of courts-martlal .................................. Financial Inablllty, as a defense ............................. Flndlngs 

Action by members after reaching ....................... 
 Announcement of 


Effect on reconsideration ........................... 


Erroneous ....................................... 
 Examination of worksheets by military judge, effect on .. 


Formsof ........................................ 
 Guilty plea, based on .............................. 


Members ........................................ 
 Military judge .................................... 
 Basis for .............................................. 
 Charge, as to .......................................... 
 Contempt ............................................. 
 Convening authority, action on ............................ 
 Deliberations and voting on ............................... 
 Exceptions and substitutions .............................. 
 General ............................................... 
 Guilty 


Convening authority, action on .................... 
 Reconsideration .................................. 
 Standard ........................................ 
 Vote resulting in .................................. 
 Guilty plea, based on .................................... 
 Impeachmentof ........................................ 
 Instructions on ....................................... 
 Lesser included offense .................................. 
 Not guilty 


Convening authority, action on ...................... 


Motion for finding of .............................. 


Reconsideration of ................................ 
 Vote resulting in .................................. 
 Reasonable doubt standard ............................... 
 Reconsideration ........................................ 


Special findings. See Speclal findlngs. 


Specifications .......................................... 
 Votingon ............................................. 
 Flne 

Contempt, punishment for ................................ 
 Courts-martial, punishment in ............................. 
 Fingerprints 

Authentication by comparison ............................. 


Fingerprint cards admissible as hearsay exception ............. 


Ref. 

IV. Para. 77 .............. 


IV.Para. 77 .............. 


IV. Para. 46c(l)(a) ......... 


IV.Para. 78 .............. 


IV. Para. 58 .............. 


R.C.M. 910(c)(5) .......... 
 Mil. R. Evid. 3 1 1 (g)(2) ..... 


IV. Para. 79 .............. 


R.C.M. 905(g) ............ 


R.C.M. 907(b)(2)(C) ....... 


R.C.M. 201(d) ............ 


R.C.M. 502(d)(3)(A) ....... 


Mil. R. Evid. 101(b) ....... 


Mil. R. Evid. 1102 ........ 
 R.C.M. 1209 ............. 


R.C.M. 916(i) ............ 


R.C.M. 921(d) ............ 


R.C.M. 924(a) ............ 
 R.C .M. 922(d) ............ 


R.C.M. 921(d) ............ 


Appendix 10 .............. 


R.C.M. 910(g) ............ 
 R. C .M. 922(b) ............ 


R.C.M. 922(c) ............ 


R.C.M. 918(c) ............ 


R.C.M. 918(a)(2) .......... 
 R.C.M. 809(c)(l), (2)(B) ... R.C.M. 1107(c), (f)(3) ..... 

R.C.M. 921 .............. 
 R.C.M. 918(a)(l) .......... 


R.C.M. 918(a) ............ 


R.C.M. 1107(c), (f)(3) ..... 

R.C.M. 924(a), (c) ......... 
 R.C.M. 918(c) ............ 


R.C.M. 921(c)(2) .......... 


R.C.M. 910(g) ............ 
 R.C.M. 923 .............. 


R.C.M. 920 .............. 
 R.C.M. 918(a) ............ 


R.C.M. 1107(b)(4) ......... 
 R.C.M. 917 .............. 


R.C .M. 924(b) ............ 


R.C.M. 921 (c)(3) .......... 
 R.C.M. 918(c) ............ 


R.C.M. 924 .............. 


R.C.M. 918(a)(l) .......... 


R.C.M. 921(c) ............ 


R.C.M. 809(a), (e) ......... 


R.C.M. 1003(b)(3) ......... 


Mil. R. Evid. 901(b)(3) ..... 

Mil. R. Evid. 803(6), (8) ... 

Page 


IV- 122 


IV- 122 


IV-78 


IV- 123 


IV-103 


11-109 


11-114 


11-8 


11-49 


m-l 


m-43 


11-196 


11-130 


II-138 


II-138 


II- 137 


A10-1 


11-119 


11-138 


11-138 


II- 134 


II-133 


II-97; 11-97 


11-173; 11-175 


11-136 


11-133 


II-133 


11- 173 


11-132 


11-138 


11-137 


II- 134 


11-138 


Index 29 

MCM.1984 INDEX 

Flrearm 

Defined ............................................... 
 Discharge 


Negligent ....................................... 
 Willful .......................................... 
 Maximum punishment. affecting 


Aggravated assault ................................ 
 Larceny. wrongful appropriation ..................... 
 Military property ................................. 
 Robbery ........................................ 
 Fitness reports. members. military judge. counsel .............. 
 Flag. strlklng the ......................................... 
 Fleeing scene of accident ................................. 
 Forcing a safeguard ...................................... 
 Forelgn law 


Judicial notice of ....................................... 
 Occupied tenitory ...................................... 
 Forelgn nation 

Interrogation by officials of ............................... 
 Military jurisdiction. in friendly ........................... 
 Military jurisdiction. in belligerent ......................... 


Search by officials of .................................... 
 Forelgn records. authentication of ........................... 
 Forfeiture of pay and allowances 


General courtsmartial. power to adjudge .................... 
 Nonjudicial punishment 


Effective date of .................................. 
 Enlisted member. imposed upon ..................... 
 Generally ....................................... 
 Oflicer. imposed upon ............................. 
 Sentence to 


Executionof ..................................... 
 Generally ....................................... 
 Forgery 

Fraud against United States. in connection with .............. 
 Generally ............................................. 
 Former jeopardy 

Mistrial. effect of ....................................... 
 Motion to dismiss for .................................... 
 Nonjudicial punishment as ................................ 
 Withdrawal of charges. effect of ........................... 
 Former punishment 

Bartotrial ............................................ 
 Effect of nonjudicial punishment ........................... 
 Former testimony. admissibility of ........................... 
 Forwarding charges. generally .............................. 
 See also Charges and specifications . 
 Fraternlzatlon. as offense ................................... 
 Fraud 


See also Check; Forgery; Larceny . 
 Against United States .................................... 
 Fraudulent enilstment. appointment. or separation ......... 
 Frisk ..................................................... 


Gambling wlth subordlnate ............................... - General article (Art. 134. UCMJ) ............................ General court-martlal 

See also specific topics . 
 Composition ........................................... 
 Convening authority ..................................... 
 See also Convening authority. 

Counsel ............................................... 
 Jurisdiction of .......................................... 


Index 30 

Ref. 

R.C.M. 103(12) ........... 


IV. Para. 80 .............. 
 IV. Para. 81 .............. 


IV. Para. 54e(8)(a). (9)(a) ... IV.Para. 46e(l)(b). 2(c) .... IV. Para. 32e(l)(b). (3)(b) ... N. Para. 47e(l) ........... 


R.C.M. 104(b) ............ 
 IV. Para. 24 .............. 
 IV. Para. 82 .............. 
 IV . Para . 26 ..............


Mil. R.Evid. 20 1 A(b) ...... R.C.M. 20l(f)(l)(B)(i)(b) ... 

Mil. R.Evid. 305(h)(2) ..... R.C.M. 20l(d) ............ 
 I . Para . 2(a)(3): R.C.M. 

201(f)(l)(B) ............ Mil. R. Evid. 311(c)(3) ..... Mil. R. Evid. 902(3) ....... 

R.C.M. 201(f)(l)(A)(ii) ..... 

V. Para. 5e ............... 
 V. Para. 5b(2)(A)(iii), (B)(iii) 

V. Para. 5c(8) ............. 
 V. Para. 5b(l)(B)(ii) ........ 


R.C.M. 1113(b) ........... 
 R.C.M. 1003(b)(2) ......... 


IV. Para. 58 ......... 


IV. Para. 48 ......... 


R.C.M. 915(c) ............ 
 R.C.M. 907(b)(2)(C) ....... 
 V. Para. If(l), (5) .......... 
 R.C.M. 604(b) ............ 


R.C.M. 907(b)(2)@)(iv) .... V. Para. lf(l), (5) .......... Mil. R. Evid. 804(b)(l) ..... R.C.M. 401(a) ............ 


IV. Para. 83 .............. 


IV. Para. 58 .............. 
 N. Para. 7 ............... Mil.R. Evid. 314(f)(2) ..... 

IV.Para.84 .............. 
 IV. Para. 60 .............. 


R.C.M. 501(a)(l) .......... 
 R.C.M. 407; 504(b)(l) ..... 

R.C.M. 502(d) ........... 
 R.C.M. 201(f)(l) ......... 


IV- 124 


IV- 125 


IV-98; 1v-98 

IV-82; 1v-82 

IV-56; 1v-57 

W-83 

11-5 

1v-43 

IV- 125 

1v-46 

11- 185 

11-145 

IV- 103 

1v-84 

IV- 126 

IV- 103 

1v-8 

III-13 
INDEX 

Prerequisites 

Pretrial investigation ............................... Staff judge advocate advice ......................... Procedural guide ........................................ 
 Record of trial ......................................... 
 Referral of charges to .................................... 
 General order. failure to obey ............................. Government 

Appeal by ............................................. 
 Fraudagainst .......................................... 
 Government information privilege ......................... 
 Government officials. contempt toward .................... 
 Graft ..................................................... 
 Grievous bodily harm. defined .............................. 
 Guard 


See also Sentinel or lookout . 
 Abandoning ........................................... 
 Leaving place of duty ................................... 
 Report. as hearsay exception ............................... 
 Guide for general and special courts-martial ............... 
 Guilty 

Findings. See Findings. Pleas. See Pleas. Gun ..................................................... 


Habit. evidence of ..................................... Handwrltlng. authentication of .......................... Hard labor without confinement 

Executionof ..................................... 
 General court.martial. power to adjudge .............. 
 Sentence of court-martial ........................... 
 Special court.rnartia1. power to adjudge ............... 
 Summary court.martial. power to adjudge ............... 
 Hazarding a vessel ....................................... 
 Hazardous duty, absence with intent to avold .............. 
 Hearsay.See Evldence. Hearsay. 
 Heroin. offenses involving ................................... 
 Homicide 


Defense of another ...................................... 
 Dying declarations ...................................... 
 Manslaughter .......................................... 
 Murder ............................................... 
 Negligent homicide ..................................... 
 Self-defense ........................................... 
 Homosexual.See Indecent acts; Sodomy. Housebreaking 

Assault with intent to commit ............................. 
 Generally ............................................. 
 Husband-wife privilege ................................... 


identification card. false ........................... Identification of accused 

Acts preceding or following offense ........................ 
 By witness ............................................ Ignorance of fact. as defense ............................... ignorance of law. as defense ................................ illness 

Feigning .............................................. Good cause for excusal .................................. immunity 

Attorney General of United States. authorization by ........... 
 Authoritytogrant ....................................... 
 Contents of grant ....................................... 
 Defense witness. request for .............................. 
 Effect ................................................ 


Ref. 

R.C.M. 405(a) ............ 
 R.C.M. 406(a) ............ 
 Appendix 8 ............... 
 R.C.M. 1103(b) ........... 
 R.C.M. 601(e) ............ 
 IV. Para. 16 .............. 


R.C.M. 908 	.............. 
 IV . Para . 
58 ..............
 Mil.R. Evid. 506 ......... 
 IV. Para. 12 .............. 
 N. Para. 66 .............. 
 IV. Para. 54c(4)(a)(iii) ...... 

N. Para. lOb(4) ........... 
 IV . Para . 
38 ..............
 Mil. R. Evid. 803(8) ....... 
 Appendix 8 ............... 


R.C.M. 103(12) ........... 


Mil. R.Evid. 406 ......... Mil.R. Evid. 901(b)(2), (3) . 

R.C.M. 1113(b) ........... 
 R.C.M. 20l(f)(l)(A)(ii) ..... R.C.M. 1003(b)(7) ......... 
 R.C.M. 201(f)(2)(B)(i) ..... R.C.M. 1301(d)(l) ......... 
 N.Para.34 .............. 
 N.Para.9 ............... 


IV. Para. 37 .............. 


R.C.M. 916(e)(5) .......... 
 Mil. R. Evid. 804(b)(2) ..... IV . Para . 44 .............. IV. Para. 43 .............. 
 N.Para. 85 .............. 
 R.C.M. 916(e) ............ 


IV. Para. 64 .............. 
 IV. Para. 56 .............. 
 Mil. R.Evid. 504 ......... 


IV . Para . 77 ..............


Mil. R. Evid. 404(b) ....... 
 Mil. R. Evid. 321 ......... 
 R.C.M. 916c) ............ 
 R.C.M. 916(1)(1) .......... 


N.Para.40 .............. 
 R.C.M. 505(f) ............ 


R.C.M. 704(c)(l) ........... 
 R.C.M. 704(c) ............ 
 R.C.M. 704(d) ............ 
 R.C.M. 704(e) ............ Mil . R . Evid . 301(c)(l); 

R.C.M. 704(a), (b) ...... 

11- 185 

11-9 

II-146 

11-10 

11-201 

N-58 

N-10 

III-19 

III-16 

11-130 

11-132 

MCM. 1984 

Index 31 
MCM. 1984 

General court-martial convening authority ................... 


Generally ............................................. 
 Military judge review of decision whether to grant ............ 


Motion to dismiss based on grant of. to accused .............. 


Notification to accused of ................................ 
 Procedure ............................................. 
 Self.incrimination. effect on .............................. 


Types of .............................................. 
 Impeachment 

See also Evidence, Impeachment. 

Findings .............................................. Sentence .............................................. 

Impersonating a commissioned officer. warrant officer. noncommlssioned officer. government agent or official ...... 

importing controlled substances .......................... 

Inability, as defense 

Generally ............................................. To authorized absence ................................... 

Incapacitation for duty through drunkenness .............. Included offenses .See Lesser included offenses . Incrlminatlon.See Self.incrimination . Indecent 

Acts 

With achild ..................................... Withanother ..................................... 

Assault ............................................... Exposure .............................................. Language ............................................. 

Liberties with a child .................................... Individual counsel, generally .............................. 

See also Counsel; Defense counsel . influence 

Command, unlawful 


Asoffense ....................................... 
 Generally ....................................... 
 Impeachment of sentence ........................... 


Inquiry of members as to ........................... 


Outside. on members .................................... 


Informant. Identify of. privilege concerning ................... Injury 

Grievous bodily harm .................................... Maiming .............................................. 

Self-inflicted ........................................... Innocence. presumption of .................................. 

Inquiry. court of .See Court of inqulry . Inquiry. preliminary ....................................... 

Insanity.See Mental capacity; Mental responsibility . Inspect. defined for discovery purposes ........................ lnspectlons 

See also Search and seizure . By court-martial ........................................ 
 Health and welfare. evidence discovered in .................. 
 lnspe~tor general. privileged communications ................. 
 Instruction. extra military ................................... 


lnstructlon on military justice ............................. 


Instructions 

Deposition. authority who gives ........................... 


In courts.martial. by military judge 


Accomplice testimony. joint or common trial .......... 
 Contempt ....................................... 


Evidence. limited purpose .......................... 
 Expert testimony ................................. 


Findings ........................................ 


Ref. 

R.C.M. 704(c) ............ 
 R.C.M. 704 .............. 
 R.C.M. 704(e) ............ 


R.C.M. 907(b.)(2)(D)(ii) .... Mil. R. Evid . 301(c)(2) ..... R.C.M. 704(d) ............ 
 Mil. R. Evid . 301(c) ....... 
 R.C.M. 704(a) ............ 


R.C.M. 923 ........ 
 R.C.M. 1008 ....... 


IV. Para. 86 .............. 


IV. Para. 37 .............. 


R.C.M. 916(i) ........ 


N. Para. lOc(6) ....... 


IV. Para. 76 .......... 


IV. Para. 87 .............. 


IV.Para. 90 .............. 
 IV. Para. 63 .............. 


1V. Para. 88 .............. 


IV. Para. 89 .............. 
 IV. Para. 87 .............. 
 R.C.M. 506(b) ............ 


IV. Para. 22 .............. 
 R.C.M. 104 .............. 


R.C.M. 1008 ............. 
 Mil. R. Evid..606(b) ....... 


R.C.M. 	923; 1008; Mil . R. Evid . 606(b) ............ Mil. R. Evid. 507 ......... 

IV . Para . 54c(4)(a)(iii) ...... IV . Para . 50 .............. 


IV . Para . 40 .............. 
 R.C.M. 920(e)(5)(A) ....... 


R.C.M. 303 .............. 


R.C.M. 701(h) ............ 


R.C.M. 913(c)(3) .......... 
 Mil.R . .Evi d. 313(b) ....... 


Mil . R. Evid. 506(c) ....... 
 V. Para. lg ............... Art . 137, UCMJ; R.C.M. 

104(a)(3)(A) ............ 

R.C.M. 702(d)(3) .......... 


Mil.R. Evid . 306 ......... 
 R.C.M. 809(c)(2)(A) ....... 
 Mil. R. Evid . 105 ......... 


Mil. R. Evid. 702 ......... 
 R.C.M. 920 .............. 


IV- 128 

1v-62 

IV- 129 

IV-131 

IV-112 

IV-130 

IV-131 

IV-129 

11-57 

11- 125 

111-1 1 

m-28 

v-2 

Index 32 
INDEX 	 MCM. 1984 

Generally ....................................... 


Preliminary ...................................... 
 Sentencing ...................................... 
 Retrial investigation. procedural instructions ................. 
 Referral. convening authority ............................. 
 Insubordlnatlon. See Contempt; Dlsobedlence of orders; 

Disrespect. 

Intelligence. glvlng to the enemy .......................... Intent 

See also specific offenses . 

Evidence of 

Acts preceding or following offense .................. 

Statements of .................................... To distribute controlled substances ......................... Interlocutory questlons 

Appealof ............................................. 
 Evidence. right to production of ........................... 
 Generally ............................................. 


Rulings on 


By military judge ................................. 
 By president of special court-martial without military judge 


Confessions and admissions ........................ 


Evidence of pretrial identification of accused ........... 


Evidence seized from accused ....................... 


Generally ....................................... 
 Standard of proof ....................................... 


Witnesses. right to. for determining ........................ 
 International law. judicial notice of ........................... 


Interpreter 


At investigation. pretrial ................................. 


Detailing .............................................. 


Disqualification ......................................... 


Duties ................................................ 
 Oath ................................................. 
 Payment of ............................................ 


Qualifications .......................................... 


Testimony given through ................................. 


Interrogation.See Self~lncriminatlon. Interrogatories.See Deposltion. Intoxication 

See also Drunk; Drunkenness . Intent. effect on ........................................ 


Murder. effect on intent in ................................ 


Not defense. generally ................................... 


lntroductlon of controlled substance ...................... 
 Inventory ................................................ 
 Investlgatlon. pretrlal (Art. 32. UCMJ) 


Accused. rights at ...................................... 
 Authority to direct ...................................... 


Court of inquiry. as substitute for .......................... 
 Defense counsel ........................................ 
 Deposition. use at ...................................... 


Earlier investigation. as substitute for ....................... 

Evidence. production of .................................. 

General court.martial. requirement for ...................... 

Instructions. by commander who directs .................... Investigating officer 

Charges and specifications. no authority to change ...... 

Detailing ........................................ 

Disqualification. to act in any capacity in same trial ..... 

Ref. 

R.C.M. 801(a)(5) .......... 


R.C.M. 913(a) ............ 
 R.C.M. 1005 ............. 
 R.C.M. 405(c) ............ 


R.C.M. 601(e)(l) .......... 


IV. Para. 28 .............. 


Mil. R. Evid. 404(b) ....... 
 Mil. R. Evid. 803(3) ....... 
 IV. Para. 37c(6) ........... 


R.C.M. 908 .............. 


R.C.M. 703(f) ............ 


R.C.M. 801(e) ............ 


R.C.M. 801(e)(l) .......... 
 R.C.M. 801(e)(2), (3) ...... 

Mil. R. Evid. 304(d)(4) ..... Mil. R. Evid. 321(f) ....... Mil. R.Evid. 31 1(d)(4) ..... R.C.M. 801(a)(4), (e)(l) .... 

R.C.M. 801(e)(4) .......... 


R.C.M. 703(b)(l) .......... 

Mil. R. Evid. 201A(b) ...... 

R.C.M. 405(d)(3)(C) ....... 


R.C.M. 501(c) ............ 


R.C.M. 502(e)(2) .......... 


R.C.M. 502(e)(3) .......... 


R.C.M. 807(b); 901(c) ..... 

R.C.M. 502(e)(4) .......... 


R.C.M. 502(e)(l) .......... 


Mil. R. Evid. 604 ......... 


R.C.M. 916(1)(2) .......... 


IV. Para. 43c(2)(c), (3)(c) ... R.C.M. 916(1)(2) .......... 


IV. Para. 37 .............. 


Mil. R. Evid. 313(c) ....... 


R.C.M. 405(f) ............ 
 R.C.M. 403(b)(5); 404(e); 

405(c); 407(a)(5) ........ R.C.M. 405(b) ............ 


R.C.M. 405(d)(2) .......... 
 R.C.M. 	405(g)(4)(A)(iv), 

(B)(iv), (S)(A)(iii). 

(S)(B)(iii); 702(a) ........ R.C.M. 405(b) ............ 
 R.C.M. 405(g) ............ 


R.C.M. 407(a)(6); 601(d)(2) . 

R.C.M. 405(c) ............ 


R.C.M. 603(b) ............ 
 R.C.M. 405(d)(l) .......... 


R.C.M. 405(d)(l); 

502(d)(4)(B); 502(e)(2)(C); 

902(b)(2); 912(f)(l)(F) .... 

Page 

11-87 

11-124 

11-152 

11-37 

11-62 

111- 19 

d1-36 

1v-64 

11-88 

11-88; 11-89 

111-5 

111- 18 

111-9 

11-87; 11-88 

11-89 

11-74 

111-3 

Index 33 
MCM. 1984 INDEX 

Recommendation ................................. 
 Mental examination of the accused ......................... 
 Military Rules of Evidence. not applicable .................. 
 Motions relating to ...................................... 
 Objections ............................................. 
 Personnel .............................................. 
 Rocedure ............................................. 
 Report of .............................................. 
 Scope ................................................ 
 Spectators. access to .................................... 
 Waiver ................................................ 


Failure to object to defects .......................... 
 Generally ....................................... 
 Retrial agreement provision ........................ 
 Witness. production of ................................... 
 Investigator. See Law enforcement official. 

Involuntary manslaughter ................................. 


Jeopardy.See Former jeopardy . Jolnt. defined ............................................. Joint command or task force. jurisdiction ................... Jolnt offenses .See Accomplices; Conspiracy; Principals. Joint trlal 

Counsel representing more than one accused. inquiry required . . 

Evidence of statement of accused .......................... Rocedure ............................................. Referrals to ............................................ Rights of accused ....................................... Sever, motion to ........................................ Joy ridlng ................................................ Judge.See Milltary judge . Judge advocate 

Defined ............................................... 


Oaths. authority to administer ............................. 
 Review of record of trial by ............................... 
 Judge Advocate General. The 

Casesexaminedby ...................................... 


Cases forwarded to Court of Military Review ................ 
 Cases reviewed by ....................................... 
 Certification of military judge ............................. 
 Detailing military judge .................................. 
 Rofessional supervisor of military judge, counsel ............. 
 Remission and suspension of sentence ...................... 
 Review of summary courts-martial ...............:......... 
 Rules of court, authority to make .......................... 


Waiver of review, by accused ............................. 
 Judgments of courts-martial, finality of ..................... 
 See also Flndings; Sentence . 
 Judicial notlce 


Adjudicative facts ....................................... 
 Of law. foreign and domestic ............................. 
 Jumplng from vessel into water ........................... 
 Jurlsdlctlon 

Commander's .......................................... Courts-martial 

Accusedfromanned force different from convening authority 

Attachment of .................................... Civilians ........................................ Composition. affecting ............................. Constructive enlistment ............................ 

Contempt power .................................. 
 Convening. as affecting ............................ 


Ref.. R.C.M. 405(j) ............ 
 R.C.M. 706(a); 706(c)(3)(A) 

R.C.M. 405(i) ............ 
 R.C.M. 905(b)(l); 906(b)(3) . 

R.C.M. 405(h)(2), (j)(4) .... R.C.M. 405(d) ............ 
 R.C.M. 405(h) ............ 
 R.C.M. 405(j); Appendix 5 . . 

R.C.M. 405(e) ............ 
 R.C.M. 405(h)(3) .......... 
 R.C.M. 405(k); 705(c)(2)(E); 

905(e) ................. R.C.M. 905(e) ............ 


R.C.M. 405(k) ............ 
 R.C.M. 705(c)(2)(E) ....... 
 R.C.M. 405(g) ............ 


IV. Para. 44 ............ 


R.C.M. 103(13) ........... 
 R.C.M. 201(e)(2) .......... 


R.C.M. 901(d)(4)(D) ....... Mil. R. Evid . 105; 306 ..... 

R.C.M. 812 .............. 
 R.C.M. 60 1 (e)(3) .......... 
 R.C.M. 812 .............. 


R.C.M. 906(b)(9) .......... 
 IV.Para . 46 .............. 


Art . l(13). UCMJ; 

R.C.M. 103 ............ Art. 136(a)(l). UCMJ ...... R.C.M. 1112 ............. 


R.C.M. 1201(b)(l) ......... 
 R.C.M. 1201(a) ........... 
 R.C.M. 1201(b)(2), (3) ..... 

R.C.M. 502(c) ............ 


R.C.M. 503(b)(l) .......... 
 R.C.M. 104(a)(3)(C); 109 ... 

R.C.M. 1201(c) ........... 
 R.C.M. 1306(d) ........... 


R.C.M. 108 .............. 
 R.C.M. 1110 ............. 
 R.C.M. 1209 ............. 


Mil.R. Evid . 201 ......... 
 Mil. R. Evid. 201A ........ 


IV. Para.91 .............. 


I. Para . 2(b)(4); V. Para. 2a . . 

R.C.M. 201(e) ............ 
 R.C.M. 202(c) ............ 
 R.C.M. 202(a) ............ 


R.C.M. 201(b)(2) .......... Art . 2(c), UCMJ; R.C.M. 

202(a) ................. R.C.M. 201(c) ............ 
 R.C.M. 201(b)(l) .......... 


Index 34 
INDEX 

Discharge. effect on ............................... 
 Dismissal of charges for lack of ..................... 
 Generally ....................................... 
 Jointcommand ................................... 
 Law of war. offense under .......................... 
 Military offense. exclusive jurisdiction ................ 
 Motion to dismiss for lack of 


Burden of proof ................................ 
 Generally ..................................... 
 Notwaived .................................... 


Natureof ........................................ 
 Offenses subject to 


Civilian tribunals. trial in ........................ 
 Generally ..................................... 


Serviceconnectionof ............................ 
 Persons subject to . 
 Generally ..................................... 
 Law ofwar. under .............................. 
 Place of offense. effect on .......................... 


Place of trial. effect on ............................ 
 Reciprocal. between services ........................ 
 Referral. as affecting .............................. 
 Requisities of .................................... 
 Review of. accused in different armed force ........... 


Subject matter .................................... 
 CourtsofinquiIy ....................................... 
 Exercise of military ..................................... 


Foreign nation over visiting force .......................... 
 General courts-martial ................................... 
 Kindsofmilitary ....................................... 
 Memorandum of understanding concerning .................. 
 Military commission .................................... 
 Not waivable by 


Failure to raise at trial ............................. 


Pretrial agreement ................................ 
 Provostcourts .......................................... 
 Sources ............................................... 
 Specialcourts-martial ................................... 
 Summarycourts-martial .................................. 


Jury.See Members of a court~martial . 
 Justification. as a defense .................................. 


Juvenile courts. conviction by. admissibility ................... 


Kidnapping ......................................... Kllllng.See Homicide; Manslaughter; Murder . 

Laboratory reports. admissibility ............................ Language. Indecent ...................................... Larceny 

Generally ............................................. Ofmail ............................................... Law. judicial notice of ....................................... Law enforcement official 

Assaulton ............................................. 
 Civilian. authority to apprehend persons subject to code ....... 
 Interrogationsby ....................................... 
 Military. authority to apprehend ........................... 
 Searchesby ............................................ 
 Law of war ' 

Courts.martial. cases under ............................... 
 Exercise of jurisdiction under ............................. 


Lawyer.See Counsel; Defense counsel; Ttlal counsel . Lawyer-client prlvllege .................................... 

Ref. 

R.C.M. 202(a), (c) ......... 
 R.C.M. 907(b)(l)(A) ....... 
 I. Para. 2(b)(l) ............ 
 R.C.M. 201(e)(2) .......... 
 R.C.M. 201(a)(3), (f)(l)(B) . R.C.M. 201(d)(l) .......... 


R.C.M. 905(c)(2)(B) ....... 
 R.C.M. 907(b)(l)(A) ....... 
 R.C.M. 905(b), (e); 

907(b)(l)(A) ............ R.C.M. 201(a) ............ 


R.C.M. 201(d) ........ 
 R.C.M. 203 .......... 
 R.C.M. 203 .......... 


R.C.M. 202(a) ............ 
 R.C.M. 202(b) ............ 
 R.C.M. 201(a)(2) .......... 
 R.C.M. 201(a)(3) .......... 
 R.C.M. 201(e) ............ 
 R.C.M. 201@)(3) .......... 
 R.C.M. 201(b) ............ 
 R.C.M. 201(e)(5) .......... 
 R.C.M. 203 .............. 
 R.C.M. 201(g); I.Para.2@)(3) 

I. Para. 2 ................. 
 R.C.M. 201(d) ............ 
 R.C.M. 201(f)(l) .......... 
 I. Para. 2(a) .............. 
 Appendix 3 ............... 
 I. Para. 2(b)(2) ............ 


R.C.M. 905(e) ............ 
 R.C.M. 705(c)(l)(B) ....... 
 I. Para. 2(b)(2) ............ 
 I. Para. 1 ................. 
 R.C.M. 201(f)(2) .......... 


R.C.M. 1301(c) ........... 


R.C.M. 916(c) ............ 
 Mil. R.Evid. 609(d) ....... 


Mil.R. Evid. 803(6), (8) . 

IV. Para. 89 ............ 


IV.Para. 46 .............. 
 IV. F'dra . 93 .............. 
 Mil. R. Evid. 201A ........ 


IV. Para. 54 .............. 
 R.C.M. 302(a)(2), (b)(3) .... Mil. R . Evid . 305 ......... R.C.M. 302(b)(l) .......... 
 Mil.R. Evid. 3 1 1 (c) ....... 


R.C.M. 201(a)(3). (f)(l)(B) . 

I.Para.2(a)(4). R.C.M. 202(b). 

203 ................... 

Mil . R . Evid . 502 ......

MCM. 1984 

Index 35 
MCM. 1984 INDEX 

Leading questions ........................................ Legal officer 

See also Staff judge advocate . Defined ............................................... 


Disqualified 

Asmember ...................................... 

As military judge ................................. Post-trial recommendation ................................ 

Lesser included offense 

Findings as to 


Convening authority action approving ................ 


Exceptions and substitutions. by ..................... 


Guilty plea. on ................................... 
 Generally ............................................. 
 Instructions on ......................................... 


Motion for finding of not guilty. on ........................ 
 Plea of guilty .......................................... 


Specific offenses. of ..................................... 
 Voting on. by members .................................. 


Letter of reprimand .See Reprimand. Letters. authentication. of ................................... 

Liberties. indecent. with child ............................... Liberty. conditions on .................................... See also Restraint. pretrial. 

Lineup. identification at ..................................... Liquor.See Drunk. . Logs. as records. admissibility ............................... Loitering on post by sentinel or lookout ................... 

Lookout 

Assault on ............................................. 
 Misbehavior as ......................................... 
 Offenses by or against ................................... 


Looting and pillaging ..................................... 


Losing military property .................................. 


Loss 


Notes or recordings of proceedings. of ...................... 
 Records of trial. of ...................................... 


Lost property. subject to larceny ............................. 


Magistrate. power to authorize search ......................... Mail 

Obscene matters. depositing in ............................ 

Taking. opening. secreting. destroying. or stealing ............ 

Maiming ................................................. 

Making false claim ....................................... 

Malingering .............................................. 

Maltreatment of person subject to orders .................. 

Manslaughter 

See also Homicide; Murder . Assault with intent to commit voluntary ..................... 
 Generally ............................................. 
 Manual for Courts-Martial 

Structure and application ................................. 

Use of. by court members ................................ Manufacturing controlled substances ...................... 

Marijuana. offenses involving ................................ 

Martial law ............................................... Mast. See Nonjudicial punishment . Members of a court-martial 

Absence 


Announcement concerning .......................... 


Generally ....................................... 


Activeduty ............................................ 
 Announcement of ....................................... 


Index 36 


Ref. 


Mil. R . Evid .
6 1 1 (c) ....... 


Art. l(12). UCMJ; R.C.M. 


103 ................ App. 2-1: 11- 1 


R.C.M. 912(f)(l)(G) ....... 11-122 


R.C.M. 902(b)(2) .......... 11- 105 


R.C.M. 1106 ............. 11-169 


R.C.M. 1107(c)(l) ......... 11-173 


R.C.M. 918(a)(l) .......... 11-133 


R.C.M. 910(g)(2) .......... 11-119 


IV. Para. 2 ............... 1v-3 


R.C.M. 920(e)(2) .......... 11-136 


R.C.M. 917(e) ............ 11-132 


R.C.M. 910(a) ............ 11-117 


PartIV................... IV-1 


R.C.M. 921(c)(4) .......... 11-137 


Mil.R. Evid . 901; 902 ..... 111-40; 111-40 


IV . Para . 87 .............. 
 IV- 129 


R.C.M. 304(a)(l) .......... 11-20 


Mil..R. Evid. 321 ......... 111- 16 


Mil. R. Evid. 803(6), (8) ... IV. Para. 104 ............. 


IV. Para. 54 .............. 
 IV. Para. 38 .............. 


IV. Para. 104 ............. 
 IV. Para. 27 .............. 


IV. Para. 32 .............. 


R.C.M. 1103(f) ........... 11-164 


R.C.M. 1104(c) ........... 11- 167 


IV. Para . 46c(l)(h)(i) ....... 1v-81 


Mil. R. Evid. 315(d)(2) ..... 

IV. Para. 94 .............. 
 IV. Para. 93 .............. 


IV. Para. 50 .............. 
 IV. Para. 58 .............. 
 n! Para. 40 .............. 


IV. Para. 17 .............. 


IV. Para. 64 .............. 


IV . Para . 44 .............. 


I. Para. 4 ................. 


R.C.M. 502(a)(2) .......... 
 IV. Para. 37 .............. 
 IV . Para . 37 .............. 


I. Para. 2(a)(2) ............ 


R.C.M. 813(a)(5) .......... 
 R.C.M. 805(b); 901(e) ..... R.C.M. 502(a) ............ 
 R.C.M. 813(a)(4) .......... 

INDEX 

Armed force or command different from convening authority ... 


Challenges ............................................ 
 Change of ............................................. 


Contempt. action on ..................................... 
 Counsel. disqualified to act as ............................. 


Defined ............................................... 
 Detailing .............................................. 


Disqualification ......................................... 
 Duties ................................................ 


Enlisted 


Absenceof ...................................... 
 Detailing ........................................ 


Request for ...................................... 


Evaluation of. limitations .................................. 
 Evidence. request for .................................... 


Examinationof ......................................... 
 Excusal ............................................... 


General court.martial. number required ..................... 
 Influence. unlawful ...................................... 
 Manual for Courts.Martial. use of ......................... 


New members. procedure ................................ 


Newtrial .............................................. 


Notesof .............................................. 


Oath ................................................. 


Objections to rulings by president .......................... 
 Othertrial ............................................. 


Presence at court-martial ................................. 


President .............................................. 
 See also President of court.martlal . Pretrial agreement. not informed of ........................ 


Qualifications .......................................... 
 Rehearings ............................................ 


Selection. challenge of ................................... 


Sessions without ........................................ 


Special court.martial. number required ..................... 
 Waiver of. by accused 


Generally ....................................... 


Pretrial agreement. in .............................. 


Witness. incompetent as ................................. 
 Mental capacity 

Generally ............................................. 


Inquiry into ............................................ 
 Lack of. effect on 


Action of convening authority ....................... 


Speedytrial ...................................... 
 Motions relating to ...................................... 


Resumption of ......................................... 
 Standard .............................................. 


Mental disease or defect .See Mental responslbllity . Mental examinatlon 

Discovery of 


By defense ...................................... 


By prosecution ................................... 
 Of accused ............................................ 


Speedy trial. effect on .................................... 
 Mental responslblllty 

Discovery of defense of .................................. 


Disease or defect. defined ................................ 
 Failure to disclose intent to raise ........................... 
 General1y ............................................. 
 Inquiryinto ............................................ 
 Motions relating to ...................................... 
 Notice of defense involving ............................... 


Ref. 

R.C.M. 503(a)(3) .......... 
 R.C.M. 912 .............. 


R.C.M. 505(c) ............ 
 R.C.M. 809(c) ............ 
 R.C.M. 502(d)(4)(D) ....... 


R.C.M. 103(14) ........... 


R.C.M. 503(a) ............ 
 R.C.M. 912(f) ............ 


R.C.M. 502(a)(2) .......... 


R.C.M. 805(b) ............ 
 R.C.M. 503(a)(2) .......... 
 R.C.M. 903 .............. 
 R.C.M. 104(b)(l) .......... 


R.C.M. 913(c)(l)(F) ....... 
 R.C.M. 912(d) ............ 
 R.C.M. 	505(c); 912(f)(3), 

(g)(l) .................. R.C.M. 501(a)(l) .......... 


R.C.M. 104 .............. 
 R.C.M. 502(a)(2) .......... 
 R.C.M. 805(d)(l) .......... 


R.C.M. 810(b)(l) .......... 
 R.C.M. 921(b) ............ 
 R.C.M. 807(b)(l) .......... 
 R.C.M. 801 (e)(3) .......... 
 R.C.M. 810(b)(l) .......... 
 R.C.M. 805(b); 901(e); 921(a); 

1006(a) ................ R.C.M. 502(b) ............ 


R.C.M. 705(e) ............ 
 R.C.M. 502(a)(l) .......... 


R.C.M. 810(b)(l) .......... 
 R.C.M. 912(b) ............ 
 R.C.M. 803 .............. 
 R.C.M. 501(a)(2); 805(b) ... 

R.C.M. 903 .............. 
 R.C.M. 705(c)(2)(E) ....... 


Mil.R. Evid. 606 ......... 


R.C.M. 909 .............. 
 R.C.M. 706 .............. 


R.C.M. 1107(b)(5) ......... 
 R.C.M. 707(c)(l)(B) ....... 


R.C.M. 906(b)(14) ......... 
 R.C.M. 909(b) ............ 
 R.C.M. 909(c) ............ 


R . C . M . 701 (a)(2)(B) ....... 


R.C.M. 701(b)(4) .......... 
 R.C.M. 706 .............. 
 R.C.M. 707(c)(l)(A) ....... 


R.C.M. 701(b)(2) .......... 
 R.C.M. 916(k)(l) .......... 
 R.C.M. 701(g)(3) .......... 
 R.C.M. 916(k) ............ 
 R.C.M. 706 .............. 
 R.C.M. 906(b)(14) ......... 


R . C . M . 701(b)(2) ..........


MCM. 1984 

11-56; 11-123; 11-123 

11-47 

11-5 

11-48 

11-93 

11-99 

11- 136 

11-95 

11-89 

11-99 

11-93; II.104. 11-136; 

11-153 

11-48 

Index 37 
MCM. 1984 INDEX 

Partial ................................................ 
 Presumption of ......................................... 
 Withdrawn. effect of .................................... 
 Midshipman 

Conduct unbecoming an officer and gentleman ............... 
 Jurisdiction of courts.martial. subject to ..................... 


Summary courts.martial. not subject to trial by ............... 
 Military commission 

Aiding the enemy. trial by ................................ 


Concurrent jurisdiction. other military tribunals .............. 
 Contempt ............................................. 
 Exercise of jurisdiction .................................. 
 Procedure ............................................. 
 Spying. trial by ........................................ 
 Military government ...................................... 
 Mllitary judge 


Absence of. effect ...................................... 
 Accused. advice to concerning 


Appellate rights .................................. 
 Counsel rights .................................... 
 Alone. trial by 


Capital case. prohibited ............................ 
 Request for ...................................... 
 Waiver of right to 


Generally ..................................... 
 Pretrial ageement. in ............................ 
 Announcement of ....................................... 
 Armed force different from accused or convening authority ..... 
 Assembly. announcement of .............................. 


Authentication of record of trial ........................... 
 Challenge of ........................................... 


Change of ............................................. 
 Conferences. with parties ................................ 
 Confinement. pretrial 


Authority to order release from ...................... 
 Review of ....................................... 
 Contempt. authority to excercise ........................... 


Control of proceedings ................................... 
 Counsel 


Disqualification of ................................ 
 Disqualified to act as .............................. 
 Oath. administering ............................... 


Defense counsel. permission to withdraw .................... 


Defined ............................................... 
 Deposition 


Authority to order ................................ 
 Authority to prohibit .............................. 
 Detail 


Failure to in special court-martial .................... 


Generally ....................................... 
 Discovery. authority to regulate ............................ 
 Disqualification ......................................... 


Docketing ............................................. 
 Duties generally ........................................ 
 Evaluation of ........................................... 


Guilty plea inquiry ...................................... 
 Instruction. See Instructions. 
 Interlocutory questions. rulings on ......................... 
 Investigation. pretrial. review of evidence and witness production by 


Mistrial ............................................... 
 Motions. See Motions. 
 Newtrial .............................................. 
 Oath ................................................. 
 Othertrial ............................................. 


Ref. 

R.C.M. 916(k)(2) .......... 
 R.C.M. 916(k)(3)(A) ....... 
 R.C.M. 701(b)(5) .......... 


IV. Para. 59 .............. Art . 2(a)(2). UCMJ; R.C.M. 

202(a) ................. 

R.C.M. 1301(c) ........... 


IV. Para. 28 .............. 
 R.C.M. 201(g) ............ 
 Art. 48, UCMJ ............ 


I. h a. 2(b)(2) ............ 


I. Para. 2(b)(2) ............ 
 IV. Para. 30 .............. 
 I. h a. 2(a)(3) ............ 


R.C.M. 805(a) ............ 


R.C.M. 1010 ............. 
 R.C.M. 901(d)(4)'. ......... 


R.C.M. 201(f)(l)(C); 903(a)(2) 

R.C.M. 903 .............. 


R.C.M. 903(e) ............ 
 R.C.M. 705(c)(2)(E) ....... 
 R.C.M. 813(a)(3); 901(b) ... 

R.C.M. 201(e)(4) .......... 
 R.C.M. 911 .............. 
 R.C.M. 1104(a)(2) ......... 
 R.C.M. 902 .............. 
 R.C.M. 505(e) ............ 


R.C.M. 802 .............. 


R.C.M. 305(g) ............ 


R.C.M. 3050) ............ 
 R.C.M. 801(b)(2); 809(c) ... R.C.M. 801(a)(3); 804(b) ... 

R.C.M. 901(d)(3) .......... 


R.C.M. 502(d)(4)(C) ....... 


R.C.M. 901(d)(5) .......... 
 R.C.M. 506(c) ............. 


R.C.M. 103(15) ........... 


R.C.M. 702(b) ............ 
 R.C.M. 702(i) ............ 


R.C.M. 201(f)(2)(B)(ii)(b) .. 

R.C.M. 503(b) ............ 
 R.C.M. 701(g) ........... 
 R.C.M. 902 .............. 


R.C.M. 801(a)(l) .......... 


R.C.M. 801 .............. 
 R.C.M. 104(b)(2) .......... 


R.C.M. 910(c) ............ 


R.C.M. 801(a)(4) ........ 
 R.C.M. 405(g)(2) ........ 
 R.C.M. 915 ............ 


R.C.M. 810(b)(2) .......... 


R.C.M. 807(b)(l) .......... 
 R.C.M. 810(b)(2) .......... 


II-107 

11-8 1 

11-101; II-103 

11-9 

11-120 

11-149 

11-104 

11-57 

11-90 

Index 38 
INDEX 

Power to authorize search ................................ 
 Presence of, required .................................... 


Pretrial agreement inquiry ................................ 
 Questions of law, ruling on ............................... 


Rehearings ............................................ 


Reopening case ......................................... 
 Restraint of accused at trial ............................... 


Review of pretrial confinement ............................ 


Rules of court .......................................... 


Rulingsby ............................................ 


Session, call to order .................................... 


Special court-martial without ............................. 


Stipulations ............................................ 


Supervisionof .......................................... 


Unavailability, effect on speedy trial ........................ 


Viewsorinspections .................................... 


Witness 


Disqualified from acting as ......................... 


Incompetent ..................................... 


Military law 

Generally ............................................. 


Nature and purpose ..................................... 


Military police. See Law enforcement official. 


Military property, sale, loss, damage, destruction, or wrongful 


disposition of .......................................... 


Mllltary records, authentication of ............................ 


Military Rules of Evidence ................................ 


See also Evidence. 

Military tribunals 

Concurrent jurisdiction ................................... 


Kindsof .............................................. 


Minor offenses 

Generally ............................................. 


Prior punishment for, baning trial .......................... 


Minors, competence as witnesses ............................. 


Mlsbehavior before the enemy ............................ 
 Misbehavior of sentinel or lookout ........................ 


Misconduct 


Prisoner of war ......................................... 


Uncharged 

Action by court-martial on ......................... Admissibility of .................................. 

Instruction ....................................... 

Misprision of serious offense ............................. 

Missing movement ....................................... 

Mistake of fact 

Checks, insufficient funds ................................ 


Generally ............................................. 

Mistake of law ............................................ 

Mlstrlal 

Effect ................................................ 


Grounds for ........................................... 


Partial ................................................ 


Procedure ............................................. 


Remedy for failure to produce statement .................... 


Mitigation 

Evidence in sentencing .................................. 


Nonjudicial punishment .................................. 

Modification of Initial action ............................... 

Motions 

Appropriate relief 


Bill of particulars ................................. 


Charges and specifications .......................... 
 Continuance ..................................... 


Counsel ......................................... 


MCM, 1984 

Ref. 

Mil. R. Evid. 315(d)(2) ..... 

R.C.M. 805(a) ............ 

R.C.M. 910(f) ............

R.C.M. 801(a)(4) .......... 

R.C.M. 810(b)(2) .......... 

R.C.M. 913(c)(5) .......... 

R.C.M. 804(c)(3) .......... 

R.C.M. 3056) ............ 

R.C.M. 108 .............. 

R.C.M. 801(e)(l) ..........

R.C.M. 901(a) ............

R.C.M. 201(f)(2)(B)(ii) ..... 

R.C.M. 811 ..............

R.C.M. 109 .............. 

R.C.M. 707(c)(2) .......... 

R.C.M. 913(c)(3) .......... 

R.C.M. 902(b)(3) .......... 

Mil. R. Evid. 605 .........

I. Para. 2(a)(l) ..........

I. Para. 3 ............... 

IV. Para. 32 .............. 

Mil. R. Evid. 901; 902 .....

Part 111. .................. 

R.C.M. 201(g) ............

I. Para. 2(b) .............. 

V. Para. le ............... 

R.C.M. 907(b)(2)(D)(iv) ....

Mil. R. Evid. 601 .........

IV. Para. 23 .............. 

IV. ha. 38 .............. 

IV. Para. 29 . 

R.C.M. 801(d) ............ 11-88 

Mil. R. Evid. 404(b) ....... III-19 

Mil. R. Evid. 105 ......... 111-2 

IV. Para. 95 .............. IV-134 

IV. Para. 11 .............. IV-17 

IV. Para. 49c(18) ..........

R.C.M. 9166) ............

R.C.M. 916(1)(1) .......... 

R.C.M. 915(c) ............

R.C.M. 915(a) ............

R.C.M. 915(a) ............

R.C.M. 915(b) ............ 

R.C.M. 914(e) ............

R.C.M. 1001(c)(l)(B) ......

V. Para. 6b ............... 

R.C.M. 1107(f)(2) ......... 

R.C.M. 906(b)(6) .......... 

R.C.M. 905(b)(l); 906(b)(4) . 

R.C.M. 906(b)(l) .......... 

R.C.M. 905(b)(6); 906(b)(2) . 

Index 39 
MCM. 1984 INDEX 

Defined ......................................... 
 Discovery ....................................... 


Evidence. admissibility of .......................... 
 Generally ....................................... 
 Investigation. pretrial .............................. 
 Mental capacity .................................. 
 Mental responsibility .............................. 
 Multiplicity ...................................... 
 Place of mal. change of ............................ 
 Retrial advice .................................... 
 Severance of 


Accused ...................................... 
 Charges ....................................... 
 Duplicious specification .......................... 
 Burden of proof ........................................ 
 Convening authority. submission to ........................ 
 Defined ............................................... 
 Final determination. effect of ............................. 
 For finding of not guilty .................................. 
 Generally ............................................. 
 Retrial ............................................... 
 Reconsideration ........................................ 
 Res judicata ........................................... 
 Rulings on ............................................ 
 Scheduling ............................................ 
 Selection of members .................................... 
 Special findings ........................................ 
 See also Speclal findings. Speedy trial. exclusion of time for ......................... 
 To dismiss 


Constructive condonation of desertion ................ 
 Defined ......................................... 
 Former jeopardy .................................. 
 Grounds generally ................................ 
 Immunity ....................................... 
 Jurisdiction ...................................... 


Multiplicity ...................................... 
 Nonwaivable ground .............................. 
 Pardon .......................................... 
 Prior punishment ................................. 
 Specification 


Defective ...................................... 
 Failure to state offense ........................... 
 Speedy trial ...................................... 


Statute of limitations .............................. 


Waivable ........................................ To suppress 

Procedure concerning 

Confessions and admissions ...................... Eyewitness identification ......................... Search and seizure .............................. Production of statements for ........................ Time for ........................................ Waiver 

Conditional guilty plea. effect on .................... Generally ....................................... Written 

Discretion of military judge ......................... Generally ....................................... Service of ....................................... 

Ref. R.C.M. 906(a) ............ 
 R.C.M. 905(b)(4); 906(b)(7); 

914 ................... R.C.M. 906(b)(13) ......... 
 R.C.M. 906 .............. 
 R.C.M. 905(b)(l); 906(b)(3) . R.C.M. 906(b)(14) ......... 
 R.C.M. 906(b)(14) ......... 
 R.C.M. 906(b)(12) ......... 


R.C.M. 906(b)(l1) ......... 
 R.C.M. 905(b)(l); 906(b)(3) . 

R.C.M. 905(b)(5); 906(b)(9) . 

R.C.M. 905(b)(5); 906(b)(10) 

R.C.M. 906(b)(5) .......... 
 R.C.M. 905(c) ............ 
 R.C.M. 905Q) ............ 
 R.C.M. 905(a) ............ 
 R.C.M. 905(g) ............ 
 R.C.M. 917 .............. 
 R.C.M. 905 .............. 
 R.C.M. 905(b) ............ 


R.C.M. 905(f) ............ 
 R.C.M. 905(g) ............ 


R.C.M. 905(d) ............ 
 R.C.M. 801(a)(3) .......... 


R.C.M. 912(b)(l) .......... 
 R.C.M. 905(d) ............ 


R.C.M. 707(c)(l)(C) ..... 

R.C.M. 907(b)(2)(D)(iii) .... R.C.M. 907(a) ............ 
 R.C.M. 907(b)(2)(C) ....... 
 R.C.M. 907(b) ............ 
 R.C.M. 907(b)(2)(D)(ii) .... R.C.M. 905(c)(2)(B); 

907(b)(l)(A) ............ R.C.M. 907(b)(3)(B) ....... 
 R.C.M. 907(b)(l) .......... 
 R.C.M. 907(b)(2)(D)(i) ..... R.C.M. 907(b)(2)(D)(iv) .... 

R.C.M. 907(b)(3)(A) ....... 
 R.C.M. 907(b)(l)(B) ....... 


R.C.M. 905(c)(2)(B); 

907(b)(2)(A) ............ R.C.M. 905(c)(2)(B); 

907(b)(2)(B) ............ R.C.M. 907(b)(2), (3) ...... 

Mil. R.Evid. 304 ......... 
 Mil. R. Evid. 321 ......... 
 Mil.R. Evid. 311 ......... 
 R.C.M. 905(k) ............ 
 R.C.M. 905(b)(3) .......... 


R.C.M. 910(a)(2) .......... 
 R.C.M. 905(e) ............ 


R.C.M. 905(a), (h) ........ 
 R.C.M. 905(h) ............ 
 R.C.M. 905(i) ............ 


11-108; 11-1 12 

II-108; II-112 

11-Ill 

11-109 

11-110 

11-107 

11-109 

11-132 

11-107 

11-108 

11-109 

11- 109 

11- 109 

11-87 

11-121 

11- 109 

Index 40 
INDEX 

Motive 

Other crimes, wrongs, or acts to prove ..................... 


Statement of, as hearsay exception ......................... 
 To misrepresent, as impeachment .......................... 


Motor vehicle. See Vehicle. 

Multiplicity 

Conspiracy, with substantive offense, not .................... 


Generally ............................................. 


Remedies available 

Dismissal .................................. 

Sentence limitation ........................... 

Assault with intent to commit ............................. 
 Generally ............................................. 


Mutiny 

Attempted ............................................. 


Generally ............................................. 
 Solicitation to commit ................................... 


Narcotics, offenses involving ................................ 

National security, disposition of charges affecting .............. 

Neglects to prejudice of good order and discipline ......... 

Negligence 

Culpable, involuntary manslaughter ........................ 

Wanton ............................................... 

Negligent homicide ....................................... 

Neutral and detached officer 

Pretrial confinement, reviewed by .......................... 

Search authorization, required for .......................... 

Neutral powers, citizens of, communicating with enemy .... New trial 

Action by convening authority on .......................... 


Action when granted .................................... 


Grounds for ........................................... 


Petition for ............................................ 


Procedures for ..................................... 


Noncommissioned and petty officer 

Apprehend, authority to .............................. 


Assault on 


In execution of office .................. 


Not in execution of office .............. 
 Disobedience of ............................ 


Disrespect toward ........................... 


Noncompliance with procedural rules, as offense 


Nonconsensual sexual offenses, defined ........ 


Nonjudicial punishment (Art. 15, UCMJ) 


Administrative measures, relationship with ...... 


Appeal of 


Action by superior authority ............ 


Format of ....................................... 


Generally ....................................... 


LegaI review ..................................... 


Timelimit ....................................... 


Who may act on .................................. 
 Authority, commander's .................................. 


Double punishment prohibited ............................. 


Effect of errors ......................................... 
 Generally ............................................. 


Increase in punishment prohibited .......................... 


Limitations on ......................................... 


Minor offenses 


Generally ...................................... 


Ref. 

Mil. R. Evid. 404(b) ....... 


Mil. R. Evid. 803(3) ....... 


Mil. R. Evid. 608(c) ....... 


IV. Para. 5c(8) ............ 


R.C.M. 307(c)(4); 

1003(c)(l)(C) ........... 

R.C.M. 907(b)(3)(B) ....... 


R.C.M. 	 906(b)(12); 

1003(c)(l)(C) ........... 

IV. Para. 64 .............. 


IV. Para. 43 .............. 


IV. Para. 4c(5)(b); 18 ....... 


IV. Para. 18 .............. 


IV. Para. 6 ............... 


IV. Para. 37 .............. 


R.C.M. 401(d); 407(b) ..... 

IV. Para. 60c(2) ........... 


IV. Para. 44c(2)(a) ......... 


IV. Para. 43c(4) ........... 


IV. Para. 85 .............. 


R.C.M. 305(i) ............ 


Mil. R. Evid. 315(d) ....... 


IV. Para. 28c(6)(c) ......... 


R.C.M. 1 107(f)(5)(B) ...... 

R.C.M. 1210(h) ........... 
 R.C.M. 1210(f) ........... 
 R.C.M. 1210(b), (c), (d), (e), 

(g) .................... 


R.C.M. 810 .............. 


R.C.M. 302(b)(2) .......... 


IV. Para. 15 .............. 


IV. Para. 54 .............. 
 IV. Para. 15 .............. 


IV. Para. 15 .............. 


IV. Para. 22 .............. 
 Mil. R. Evid. 412(e) ....... 


V. Para. lg ........ 


V. Para. 7f ............... 


V. Para. 7c ............... 


V. Para. 7a ............... 


V. Para. 7e ............... 


V. Para. 7d ............... 


V. Para. 7b ............... 


I. Para. 2(b)(4); V. Para. la; 2a 

V. Para. lf(1) ............. 


V. Para. lh ............... 


Partv. ................... 
 V. Para. lf(2) ............. 


V. Para. If ............... 


V. Para. le ............... 


MCM, 1984 

IV-62 

11-34; 11-45 

IV- 109 

Index 41 
MCM. 1984 INDEX 

Trial by court-martial barred ........................ 


Mitigation of punishment ................................. 
 Nature ................................................ 
 Offense. disposition of ................................... 
 Policy ................................................ 


Procedure ............................................. 


Punishments 


Admonition ...................................... 
 Arrest in quarters ................................. 


Combinations. limitations .......................... 
 Confinement on bread and water or diminished rations ... 


Correctional custody .............................. 
 Extraduties ...................................... 


Forfeitureofpay .................................. 
 Limitations on ................................... 


Maximum authorized .............................. 


Reduction in grade ................................ 
 Reprimand ...................................... 


Restriction ....................................... 
 Purpose ............................................... 
 Records of punishment ................................... 


Remission of punishment ................................. 


Setting aside punishment ................................. 


Suspension of punishment ................................ 


Trial by court.martia1. right to demand ..................... 
 Vessel. attached to or embarked in ......................... 


Who may impose 


Commander ..................................... 


Officer in charge .................................. 


Principal assistant ................................. 
 Nonmllltary property. waste. spoilage. or destruction ....... 


Nonprlvlleged communications ........................... 


Not guilty. plea of ...................................... 
 Notlce 

See also Disclosure and discovery . To military judge of pretrial agreement ..................... 


Oaths 

Affirmation. included in ................................. 
 Authority to administer .................................. 


Defense counsel ........................................ 
 Defined ............................................... 


Deposition witness ...................................... 


Escort ................................................ 


False swearing ......................................... 
 Forms of .............................................. 


Fraud against United States. in connection with .............. 


Generally ............................................. 
 Guilty plea. accused ..................................... 


Interpreter ............................................. 
 Investigation. pretrial. witnesses ........................... 


Members .............................................. 
 Military judge .......................................... 


Perjury ............................................... 
 Referral of charges ..................................... 
 Probable cause information. not required .................... 


Procedure ............................................. 
 Regulations of Secretary concerned ........................ 


Reporter .............................................. 
 Trial counsel ........................................... 


Witnesses ............................................. 


Obedience to orders. as a defense .......................... 


Ref. 

R.C.M. 907(b)(2)(D)(iv) .... 

V. Para. 6b ............... 
 V.Para. lb ............... 


R.C.M. 306(c)(3); V . Para. 1 


V. Para. Id ............... 
 V. Para. 4 ................ 


V. Para. 5c(l) ............. 


V. Para. 5c(3) ............. 


V. Para. 5d ............... 


V. Para. 5c(5) ............. 


V. Para. 5c(4) ............. 


V. Para 5c(6) .............. 


V. Para. 5c(8) ............. 


V. Para. If ............... 


V. Para. 5b ............... 


V. Para. 5c(7) ............. 


V. Para. 5c(l) ............. 


V. Para. 5c(2) ............. 


V. Para. Ic ............... 


V. Para. 8 ................ 


V. Para. 6c ............... 


V. Para. 6d ............... 


V. Para. 6a ............... 


V. h a.3 ................ 
 V. Para. 3 ................ 


V. Para. 2a ............... 
 V. Para. 2b ............... 


V. Para. 2c ............... 


IV . Para. 33 .............. 
 Mil. R. Evid. 510 ......... 


R.C.M. 910(a) ............ 


R.C.M. 910(f)(2) .......... 


R.C.M. 

IV. Para. 79 .............. 


N. Para. 58 .............. 


IV. Para. 57 .............. 


603 ................... R.C.M. 916(d) ............ 


807(a) ............ 
 Art. 136, UCMJ ........... 


R.C.M. 807(b) ............ 


R.C.M. 807(a) ............ 


R.C.M. 702(f)(4) .......... 
 R.C.M. 807(b) ............ 


R.C.M. 807(b)(2) .......... 


R.C.M. 807 .............. 
 R.C.M. 910(c)(5) .......... 


R.C.M. 807(b) ............ 


R.C.M. 405(h)(l) .......... 
 R.C.M. 807(b) ............ 


R.C.M. 807(b) ............ 


R.C.M. 307(b) ............ Mil. R. Evid. 315(f)(2) ..... 

R.C.M. 807(b)(2) .......... Art . 42(a), UCMJ; R.C.M. 

807(b) ................. 

R.C.M. 807(b) ............ 
 R.C.M. 807(b) ............ 


R.C.M. 807(b); Mil . R. Evid. 

11-95 


A2-34 

11-95 


11-95 


11-72 


11-95 


IV-124 


11-95 


IV-103 


11-95 


11-118 


11-95 


11-41 


11-95 


11-95 


IV-I01 


11-28 


III-14 


11-95 


11-95; 111-32 


11-128 

INDEX 

Objection 

See also Evidence, Objections; Motions. 

To evidence at pretrial investigation ........................ To trial by summary court-martial ......................... Waiver, generally ....................................... 

Obscene 

See also indecent. 

Mail .................................................. Obstructing justice 

Generally ............................................. Solicitation distinguished ................................. Occupied territory 

Military jurisdiction exercised in ........................... 
 Violationoflawsof ..................................... 


Offenses 


See also specific offenses. 


Disposition of .......................................... 
 Failure to report ....................................... 
 Joinderof ............................................. 
 Jurisdiction of courts-martial over .......................... 
 Minor, disposition by nonjudicial punishment ................ 
 Report of .............................................. 
 Uncharged, action on .................................... 
 Offer of proof ............................................ 
 Office hours. See Nonjudicial Punishment. 

Officer 

Commissioned 

See also Commissioned officer. 

Accused as, composition of court-martial ............. Apprehend, authority to ............................ Assault on 

In execution of office ............................ Not in execution of office ........................ Conduct unbecoming .............................. Dismissal by general court-martial ................... Dismissal by President, right to request trial by court-martial 

Disobedience of superior ........................... Disrespect toward superior .......................... Restraint of, pretrial ............................... In charge 

Authority to impose nonjudicial punishment ........... Defined ......................................... 

Noncommissioned. See Noncommlssioned and petty officer. 


Petty. See Petty officer. 


Warrant. See Warrant officer. 


Official communications, privileges ......................... Official documents 

See also Evldence. 

Mse ................................................. 
 Official records 


See also Evldence. 


Absence of, evidence .................................... 


Admissibility as evidence, general rule ..................... 
 Attesting certificates ..................................... 
 Authentication ......................................... 
 Extractcopies .......................................... 
 Logs ................................................. 
 Military records ........................................ 
 Morning report ......................................... 
 Notes or memoranda, composed from ...................... 
 Official publication of ................................... 
 Self-authentication ...................................... 
 Service record .......................................... 


Ref. 

R.C.M. 405(g)(4), (5) ...... R.C.M. 1303 ............. 
 R.C.M. 905(e); Mil. R. Evid. 

103(a) ................. 

N.Para. 94 .............. 


I. Para. 2(a)(3) ............ 


R.C.M. 201(f)(l)(B) ....... 


R.C.M. 306 .............. 
 IV. Para. 3c(2) ............ 
 R.C.M. 601(e)(2) .......... 
 R.C.M. 203 .............. 
 V. Para. le ............... 
 R.C.M. 301 .............. 
 R.C.M. 801(d) ............ Mil. R. Evid. 103(a)(2), (b) . 

R.C.M. 502(a)(l) .......... 
 R.C.M. 302(b)(2) .......... 


IV.Para. 14 .............. 
 IV.Para. 54 .............. 
 N. Para. 59 .............. 
 R.C.M. 1003(b)(lO)(A) ..... R.C.M. 107 .............. 
 IV. Para. 14 .............. 
 IV. Para. 13 .............. 
 R.C.M. 304(b) ............ 


V. Para. 2b ............... 
 Art. 	1(4), UCMJ; R.C.M. 

103(20) ................ 

Mil. R. Evid. 505; 506 ..... 

N.Para. 31 .............. 


Mil. R. Evid. 803(7), (10) .. 

Mil. R. Evid. 803(6), (8) ... Mil. R. Evid. 902(4a) ...... Mil. R. Evid. 901; 902 ..... Mil. R. Evid. 1006 ........ Mil. R. Evid. 803(6), (8) ... Mil. R. Evid. 803(6), (8) ... Mil. R. Evid. 803(6), (8) ... Mil. R. Evid. 803(6), (8) ... Mil. R. Evid. 803(6), (8) ... Mil. R. Evid. 902 ......... Mil. R. Evid. 803(6), (8) .,. 

MCM, 1984 

App. 2-1; 11-2 

Index 43 
MCM. 1984 INDEX 

Summaries of official records ............................. 


Unit personnel diary ..................................... 

Officials. contempt toward ................................ 

Official statement. false ................................... Openlng mall ............................................. 

Oplnlon evldence .See Evidence, Opinion. 

Orderly 

Detailing .............................................. 
 Disqualification ......................................... 
 Duties ................................................ 
 Qualifications .......................................... 
 Orders 


See also Convening orders; Promulgating orders . 
 Failure to obey ......................................... 
 General orders. disobedience of ........................... 
 Lawfulness ............................................ 
 Obedience to. as defense ................................. 
 Willful disobedience ..................................... 
 Other trlal 

Action on ............................................. 
 Convening authority ordering ............................. 
 Defined ............................................... 
 Rocedure ............................................. 
 Sentence limitations ..................................... 
 Overt acts 

Attempts .............................................. 


Conspitacy ............................................ 


Pandering 

Generally ............................................. 


Solicitation distinguished ................................. 


Pardon. motion to dismiss based on .......................... 


Parole. improper use of .................................... 


Party 

To conspiracy .......................................... 


To court.martial. defined ................................. 


To offense ............................................. 
 Pass. false or unauthorized ............................... 


Patient.doctor. no privileged communication .................. 


Peace. breachof ......................................... 


Peremptory challenges ................................... 


Perjury 


See also False swearing. 


Generally ............................................. 


Guilty plea inquiry, statements during ...................... 


Immunity. not extending to ............................... 
 Newtrial. grounds for ................................... 
 Subornation of ......................................... 
 Permits. false or unauthorized ............................ 


Perpetrator 


See also Principals. 


Defined ............................................... 
 Personnel of courts-martial 

See also specific topics . 


Announcement of ....................................... 


Censure of. prohibited ................................... 


Changes of ............................................ 
 Detail of .............................................. 


Generally ............................................. 
 Qualification and duties .................................. 


Personnel records. admissibility ........................... 
 Petty officer 


Apprehend. authority to .................................. 
 Assault on 

In execution of office .............................. 

Not in execution of office .......................... 

Index 44 

Ref. 


Mil.R.Evid. 803(6), (8); 1006 


Mil.R. Evid. 803(6), (8) ... 


IV.Para. 12 .............. 


IV. Para. 31 .............. 
 IV. Para. 93 .............. 


R.C.M. 501(c) ............ 


R.C.M. 502(e)(2), (f) ...... 

R.C.M. 502(e)(3)(C) ....... 
 R.C.M. 502(e)(l) .......... 


IV. Para. 16 .............. 
 IV. Para. 16 .............. 
 IV. Para. 14c(2)(a) ......... 


R.C.M. 916(d) ............ 


IV. Paras. 14; 15 .......... 


R.C.M. 1107(f)(5)(A) ...... 

R.C.M. 1 107(e)(2) ......... 


R.C.M. 810(e) ............ 


R.C.M. 810(a), (b), (c) ..... 

R.C.M. 810(d) ............ 


IV. Para 4c(l). (2) ......... 


IV. Para. 5c(4) ............ 


IV. Para. 97 .............. 


IV. Para. 6c(3) ............ 


R.C.M. 907(b)(2)(D)(i) ..... 

IV. Para. 25 .............. 


IV. Para. 5c(l) ............ 
 R.C.M. 103(16) ........... 


IV. Para. lb(l), (2) ......... 


IV. Para. 77 .............. 


Mil. R. Evid. 501(d) ....... 


IV. Para. 41 .............. 


R.C.M. 912(g) ............ 


IV. Para. 57 .............. 


R.C.M. 910(c)(5) .......... 
 R.C.M. 704(b) ............ 
 R.C.M. 1210(f)(3) ......... 


IV. Para. 98 .............. 
 lV. Para. 77 .............. 


IV. Para. lb(2)(a) ... 

R.C.M. 813 .............. 


R.C.M. 104 .............. 


R.C.M. 505 .............. 


R.C.M. 503 .............. 


R.C.M. 501 .............. 


R.C.M. 502 .............. 

Mil. R. Evid. 803(6), (8) ... 

R.C.M. 302(b)(2) ...... 

N. Para. 15 .............. 


IV. Para. 54 .............. 


Page 

111-36; 111-37; 111-42 

111-36; 111-37 

IV- 18 

iv-53 

IV-133 

IV- 136 

1v-8 

11-114 

1v-45 

IV- 1 
Contempt toward ....................................... 
 Disobedience .......................................... 
 Disrespect toward ....................................... 


Photographs 

Defined ............................................... 
 Disclosure by defense ................................... 
 Disclosure upon defense request ........................... 
 Taking in courtroom. prohibited ........................... 


Physical examination 

Disclosure by defense ................................... 
 Disclosure upon defense request ........................... 
 Not an unlawful search .................................. 
 Physlcal inability. as a defense ............................. 
 Physician. no privileged communication to .................... 
 Plllaglng ................................................. 
 Place of court-martlal 


Changeof ............................................. Convening authority 

Designating ...................................... Responsibility .................................... 

Jurisdiction. not affected ................................. Plain error ............................................... 

Plan or design of accused. evidence of ...................... 

Pleadings.See Charges and specifications . Pleas 

Alternatives ............................................ 
 Arraignment ........................................... 


Article 39(a) session. taking at ............................ 
 Capitalcase ........................................... 
 Change ............................................... 


Conditional guilty ....................................... 
 Defenses and objections before entered ..................... 
 Exceptions and substitutions .............................. 
 Eailure to plead ......................................... 


Generally ............................................. 


Guilty 


Accuracy. determination of ......................... 
 Advice toaccused ................................. 


Capital cases. prohibited in ......................... 
 Effect of ........................................ 


Factual basis required .............................. 


False statements during inquiry ...................... 
 Findings ........................................ 


Generally ....................................... 
 Improvidently entered ............................. 


Inconsistent matters after plea ....................... 
 Inconsistent statements after findings ................. 
 Inquiry ......................................... 
 Oath ........................................... 


Pretrial agreement inquiry .......................... 


Procedure 


Consultation with counsel ........................ 
 Explanation to accused of effect ................... 
 Record of explanation and reply ................... 


Rehearings. changing .............................. 
 Statements during providency 


Inadmissible on merits ........................... 
 Inconsistent with plea ........................... 
 Summary courts-martial ............................ 
 Voluntariness .................................... 
 Vote. necessity of ................................. 
 Waiver of objections by ........................... 


Withdrawal after findings ........................... 
 Irregular .............................................. 
 Nondisclosure of guilty plea negotiations .................... 


Ref. 1V. Para. 15 .............. 

IV . Para . 15 ..............

IV. Para. 15 .............. 


Mil. R. Evid. 1001(2) ...... 

R.C.M. 701(b)(3) .......... 
 R.C.M. 701(a)(2)(A) ....... 


R.C.M. 806(c) ............ 


R.C.M. 701(b)(4) .......... 
 R.C.M. 701(a)(2)(B) ....... 
 Mil. R . Evid . 312(f) .......
 R.C.M. 916(i) ............ 


Mil. R . Evid . 501(d) .......
 IV. Paras. 23; 27 .......... 


R.C.M. 906(b)(ll) ......... 


R.C.M. 504(d)(l). (2) ...... R.C.M. 504(e) ............ 


R.C.M. 201(a)(3) .......... 


Mil.R. Evid. 103(d) ....... 


Mil. R . Evid . 404(b) .......


R.C.M. 910(a) ............ 
 R.C.M. 904 .............. 


R.C.M. 901(e) ............ 
 R.C.M. 910(a)(l) .......... 


R.C.M. 910(h)(l) .......... 
 R.C.M. 910(a)(2) .......... 


R.C.M. 905(b) ............ 
 R.C.M. 910(a)(l) .......... 


R.C.M. 910(b) ............ 


R.C.M. 910 .............. 


R.C.M. 910(e) ............ 


R.C.M. 910(c) ............ 


R.C.M. 910(a)(l) .......... 


R.C.M. 910(c) ............ 


R.C.M. 910(e) ............ 


R.C.M. 910(c)(5) .......... 


R.C.M. 910(g) ............ 


R.C.M. 910(c), (d), (e) ..... 

R.C.M. 910(d), (e) ........ 


R.C.M. 910(e) ............ 


R.C.M. 910(h)(2) .......... 
 R.C.M. 9 10(c), (d), (e) ..... R.C.M. 910(c)(5) .......... 


R.C.M. 910(f), (h)(3) ...... 

R.C.M. 502(d)(6) .......... 


R.C.M. 910(c) ............ 
 R.C.M. 910(i) ............ 


R.C.M. 810(a)(2)(B) ....... 


Mil. R.Evid. 410 ......... 


R.C.M. 910(h)(2)- .......... 
 R.C.M. 1304(6)(2)(D)(ii) ... 

R.C.M. 910(d) ............ 


R.C.M. 910(g)(3) .......... 
 R.C.M. 910Q) ............ 


R.C.M. 910(h)(l) .......... 


R.C.M. 910(b) ............ 


Mil. R. Evid. 410 ......... 


MCM. 1984 

11-69 

11-67 

111-11 

11-130 

111-22 

IV-39: 1v-46 

11-55; 11-55 

11-56 

11-7 

111- 1 

111-19 

Index 45 
MCM. 1984 INDEX 

Refusal to enter ........................................ Rehearings ............................................ 

Summary courts-martial 

Entry of pleas .................................... 
 Explanation to accused ............................. 
 Plunder .................................................. 
 Pollce.See Law enforcement official . 
 Polltical vote. privilege ................................... 
 Polllng of members. prohibited ............................. 
 Exception ............................................. 


Polygamy. testimony of spouse .............................. 
 Possesslon of controlled substance ....................... 


Post-trlal confinement .................................... 
 See also Confinement. Post-trlal procedure 

See also specific topics . 
 Disposition of record of trial .............................. 
 Generally ............................................. 
 Matters submitted by accused 


Contents ........................................ 
 Right to ......................................... 
 Time periods ..................................... 
 Waiver .......................................... 


Review by a judge advocate .............................. Summary courts-martial .................................. Post-trlal recommendation ................................ See also Staff judge advocate . Post-trlal sessions 

Article 39(a) sessions .................................... Generally ............................................. Matters precluded from ................................. Procedure 

Action by military judge. members .................. 
 Personnel ........................................ 
 Record .......................................... 
 Proceedings in revision .................................. 
 When directed ......................................... 
 Preferral of charges 


Accuser. See Accuser. 
 Attachment of jurisdiction. effecting ........................ 
 Charge. defined ........................................ 
 Deposition. requisite to .................................. 


Generally ............................................. 
 Motion as to defects in .................................. 
 Notification to accused of ................................ 
 Oath required .......................................... 
 Procedure ............................................. 
 Speedy trial. effect of ................................... 
 Waiver of defects in. by failure to raise ..................... 
 Who may prefer ........................................ 
 Preliminary inqulry ....................................... 
 Preliminary questions .................................... 
 Premeditation ............................................ 
 Preparation of record of trial .See Record of trlal . 
 Presentation of case on merits ............................ 
 See also specific topics . 

Presentenclng procedure 

Accused. statement by ................................... 
 Arguments ............................................ 
 Defense. matters presented by ............................. 
 Deposition. for use at ................................... 
 Evidence for 


Discovery of ..................................... 
 Production of .................................... 
 Generally ............................................. 


Ref. R.C.M. 910(b) ............ 
 R.C.M. 810(a)(l), (2)(B) ... 

R.C.M. 1304(b)(2)(D) .... R.C.M. 1304(b)(l)(H) .... 

IV. Para. 23 ............ 


Mil. R. Evid. 508 ......... 
 R.C.M. 922(e); 1007(c) ..... Mil. R. Evid. 606 ......... Mil. R. Evid. 504 ......... IV. Para. 37 .............. 
 R.C.M. 1101(b) ........... 


R.C.M. 1111 ............. 
 I1. Chapter XI ............. 


R.C.M. 1105(b) ........... 
 R.C.M. 1 105(a) ........... 
 R.C.M. 1105(c) ........... 
 R.C.M. 1105(d) ........... 
 R.C.M. 1112 ............. 
 R.C.M. 1306 ............. 
 R.C.M. 1106 ............. 


R.C.M. 1102(b)(2) ......... 
 R.C.M. 1102 ............. 
 R.C.M. 1102(c) ........... 


R.C.M. 1 102(e)(2) ......... 
 R.C.M. 1102(e)(l) ......... 
 R.C.M. 1102(e)(3) ......... 
 R.C.M. 1102(b)(l) ......... 
 R.C.M. 1102(d) ........... 


R.C.M. 202(c)(2) .......... 
 R.C.M. 307(c)(2) .......... 
 R.C.M. 702(a) ............ 
 R.C.M. 307 .............. 
 R.C.M. 905(b)(l) .......... 
 R.C.M. 308 .............. 
 R.C.M. 307(b)(l) .......... 
 R . C.M. 307(b) ............
 R.C.M. 707(a), (b) ........ 
 R.C.M. 905(e) ............ 
 R.C.M. 307(a) ............ 
 R.C.M. 303 .............. 
 Mil.R. Evid. 104 ......... 
 IV. Para. 43c(2) ........... 


R.C.M. 913 .............. 


R.C.M. 1001(c)(2) ......... 
 R.C.M. 1001(g) ........... 
 R.C.M. 1001(c) ........... 
 R.C.M. 702(c)(3)(B) ....... 


R.C.M. 701(a)(5) .......... 
 R.C.M. 703(f) ............ 
 R.C.M. 1001 ............. 


11- 183 

11-159 

11-168 

11-168 

11- 168 

11-169 

II- 184 

11-206 

Il-169 

II- 162 

11-161 

11- 162 

11-161 

11-161 

11- 143 

II-144 

II-142 

11-71 

Index 46 
INDEX 

Production of witnesses .................................. 


Prosecution, matters presented by .......................... 


Rebuttal ........................................ 


Rehearings ..................................... 


Presentlng false claim ............................. 


Presldent of court-martlal 

Duties 

Deliberations ..................................... 

Findings, announcing .............................. 

Generally ....................................... Sentence, announcing ............................. 

Voting .......................................... 

Qualifications .......................................... 


Special court-martial without military judge 


Conferences prohibited ............................ 


Dutiesof ........................................ 
 "Military judge" including ......................... 


Rulings of ....................................... 


President of the United States 

Capital cases, approval of sentence ......................... 

Contempt toward ....................................... 

Courts-martial, power to convene .......................... 

Dismissal of officer, right to trial ..................... 


Military Rules of Evidence, action concerning amendments 

Presumption 

Innocence, instruction on ................................. Mentalcapacity ........................................ 

Mental responsibility .................................... 

Witness competency ..................................... 

Pretense,false ........................................... Pretrlaladvlce ............................................ See also Advice, pretrial. 

Pretrial agreements 

Actionpursuantto ...................................... 
 Authority to enter ....................................... 


Conditional guilty plea ................................... 


Confessional stipulation .................................. 


Disclosure of 


Plea negotiations, prohibited ........................ 


To members, prohibited ............................ 
 To military judge before plea ....................... 
 Generally ............................................. 
 Inquiry by military judge ................................. 


Natureof .............................................. 
 Notice of, to military judge ............................... 
 Procedure to obtain 


Acceptance ...................................... 
 Formal submission ............................. 


Negotiation ...................................... 
 Offer ........................................... 


Referral pursuant to ..................................... 


Sentence, effect at rehearing .............................. 
 Terms and conditions 


Generally ....................................... 
 Permissible terms ................................. 


Prohibited terms .................................. 
 Withdrawal of 


Charges pursuant to ............................... 


Partiesto ........................................ 
 Pretrial confinement. See Confinement, pretrial. 


Pretrlal lnvestlgatlon ...................................... 
 See also Investlgatlon, pretrial. 


Ref. 

R.C.M. 1001(e) ........... 


R.C.M. 1001(b) ........... 


R.C.M. 1001(d) ........... 


R.C.M. 810(a)(2) .......... 


IV. Para. 58 .............. 


R.C.M. 921(a); 1006(c) ..... 

R.C.M. 922(b) ............ 


R.C.M. 502(b)(2) .......... 


R.C.M. 1007(a) ........... 
 R.C.M. 921 (c)(5); 

1006(d)(3)(B) ........... 

R.C.M. 502(b)(l) .......... 


R.C.M. 802(f) ............ 


R.C.M. 502(b)(2)(C) ....... 


R.C.M. 103(15); 502(b)(2)(C) 

R.C.M. 80 1(e)(2), (3) ...... 

R.C.M. 1207 ............. 


IV. Para. 12 .............. 

Art. 22, UCMJ; R.C.M. 

504(b)(l) ............... 

R.C.M. 107 .............. 


Mil. R. Evid. 1102 ........ 


R.C.M. 920(e)(5)(A) ....... 
 R.C .M. 909(b) ............ 
 R.C.M. 916(k)(3)(A) ....... 
 Mil. R. Evid. 601 ......... 


IV. Paras. 46; 78 .......... 
 R.C.M. 406 .............. 


R.C.M. 705(b)(2)(E) ....... 


R.C.M. 705(a), (d)(4) ...... R.C.M. 910(a)(2) .......... 
 R.C.M. 705(b)(l) .......... 


Mil. R. Evid. 410 ......... 


R.C.M. 705(e) ............ 


R.C.M. 910(f)(3) .......... 
 R.C.M. 705 .............. 


R.C.M. 910(f)(4), (h)(3) .... R.C.M. 705(b) ............ 


R.C.M. 910(f)(2) .......... 


R.C.M. 705(d)(4) .......... 


R.C.M. 705(d)(3) .......... 


R.C.M. 705(d)(2) .......... 


R.C.M. 705(d)(l) .......... 
 R.C.M. 705(b)(2)(A), (B) ... 

R.C.M. 810(d)(2) .......... 


R.C.M. 705(c) ............ 


R.C.M. 705(c)(2) .......... 
 R.C.M. 705(c)(l) .......... 


R.C.M. 705(b)(2)(C) ....... 
 R.C.M. 705(d)(5) .......... 


R.C.M. 405 .............. 


MCM, 1984 

11-196 

IV- 18 

App. 2-17; 11-54 

11-6 

111-43 

Index 47 
MCM. 1984 INDEX 

Prlnclpal asslstant. delegation to 

Excuse members ........................................ 
 Nonjudicial punishment authority .......................... 
 Principals 

Accessory after the fact. relationship ....................... 


Aider and abettor ....................................... 
 Generally ............................................. 
 Perpetrator ............................................. 
 Pleading .............................................. 
 Prlor testlmony. admissibility ............................... 


Prlsoner 


See also Confinement. 
 Authority to release 


From post-trial confinement ......................... 


From pretrial confinement .......................... 


Drinking liquor with .................................... 


Drunk ................................................ 
 Jurisdiction over ........................................ 


Release of. without proper authority ........................ 


Suffering to escape ...................................... 
 Prlsoner of war 

Jurisdiction over ........................................ 


Misconduct as .......................................... Privlleged matter .See Evidence. Privileges. Probable cause 

See also Search and seizure . Apprehension .......................................... 


Confinement 


Pending vacation of suspension ...................... 
 Pretrial ......................................... 
 Restraint. pretrial ....................................... 
 Search ................................................ 
 Seizure ............................................... 
 Probation 

See also Suspension of sentence . Generally ............................................. 

Retrial agreement ...................................... Proceedings In revision ................................... 

Procuring another to commit offense ...................... 

Productlon of witnesses and evldence 

See also Witness. Evidence .............................................. 


Expert witnesses ........................................ 
 Generally ............................................. 
 Interlocutory questions ................................... 


Investigation. pretrial .................................... 
 Merits ................................................ 


Procedure ............................................. 
 Sentencing ............................................ 
 Statements of witnesses .................................. 
 Unavailable evidence .................................... 
 Unavailable witness ..................................... 


Professional supervision. military judges and counsel ...... 


Promulgating orders 


Authentication ......................................... 
 Classified information ................................... 


Contents .............................................. 
 Distribution ............................................ 
 Forms for ............................................. 
 Generally ............................................. 
 Summary court.martial. not issued for ...................... 


Whoissues ............................................ 


Ref. 

R.C.M. 505(c)(l)(B) ..... V. Para. 2c ............. 


IV. Para. 3c(l). (4). (5) ..... 

IV. Para. lb(1) ............ 


IV. Para. 1 ............... 


IV. Para. lb(l), (2)(a) ...... R.C.M. 307(c)(3)(H)(i) ..... Mil. R. Evid. 804(b)(l) ..... 

R.C.M. 1101(b)(2) ......... 


R.C.M. 305(g) ............ 


IV. Para. 74 .............. 


IV. Para. 75 .............. 

Art . 2(a)(7), UCMJ; R.C.M. 

202(a) ................. IV.Para. 20 .............. 


IV.Para. 20 .............. 


Art . 2(a)(9). UCMJ; R.C.M. 

202(a) ................. 

IV. Para. 29 .............. 


R.C.M. 302(c) ......... 


R.C.M. 1109(c)(3) ......... 


R.C.M. 305(d), (h)(2)(B) ... 

R.C.M. 304(c) ............ 


Mil. R. Evid. 315(f) ....... 


Mil. R. Evid. 316(b) ....... 


R.C.M. 1108 ............. 


R.C.M. 705(c)(2)(D) ....... 


R.C.M. 1102(b)(l) ......... 


IV. Para. 1 ............... 


R.C.M. 703(a). (f) ......... 


R.C.M. 703(d) ............ 


R.C.M. 703 .............. 


R.C.M. 703(b), (c) ........ 


R.C.M. 405(g) ............ 


R.C.M. 703(b), (c) ........ 


R.C.M. 703(e); Appendix 7 . 


R.C.M. 703(b)(2); 1001(e) . . 

R.C.M. 914 .............. 


R.C.M. 703(f)(2) .......... 


R.C.M. 703(b)(3) .......... 


R.C.M. 109 .............. 


R.C.M. 1114(e) ........... 
 R.C.M. 1114(d) ........... 


R.C.M. 1114(c) ........... 


R.C.M. 1114(f) ........... 
 Appendix 17 .............. 


R.C.M. 1114 ............. 


R.C.M. 11 14(a)(3) ......... 


R.C.M. 1114(b) ........... 


1v-4; 1v-4; 1v-4 


IV- 1 


IV- 1 


1v-1; 1v-1 


11-30 


111-39 


11-177 


11-8 1 


11-161 


IV- 1 


11-74; 11-78 


11-75 


11-74 


11-74; 11-74 


11-38 


11-74; 11-74 


11-75; A7-1 


11-74; 11-143 


11-126 


11-178 


11-74 


11-6 


11-188 


11-188 


11-188 


11-188 


A17-1 


11- 187 


11- 187 


11- 187 


Index 48 

INDEX 

property 

Captured or abandoned, offenses concerning ................. 
 Military, offenses concerning ............................. 


Nonmilitary, offenses concerning .......................... 
 Preventing seizure of ................................... 
 Prosecutor. See Counsel; llial counsel. 

Prosecutorlal dlscretlon 

Commander .......................................... 


Convening authority .................................... 


Trialcounsel ........................................... 
 Prostltutlon .............................................. 
 Protecting the enemy ..................................... 


Provoking speech and gestures 


Breach of peace ........................................ 
 Generally ............................................. 


Provost courts 

Contemptpower ........................................ Jurisdiction 

Concurrent with other tribunals ...................... 

Generally ....................................... Psychlatrlst, mental examination of accused by ................. 

Publlc record, offenses concerning ........................... See also Evidence. 

Publlc trial ............................................... Punlshments 

See also specific topics. 

Courts-martial 

Authorized ...................................... Confinement ..................................... Confinement on bread and water or diminished rations ... Death ........................................... Fine ............................................ Forfeiture of pay and allowances ..................... 

General courts-martial ............................. 

Generally ................................. 
 Hard labor without confinement .............. 
 Increase in, circumstances permitting ................. 
 Law ofwar ...................................... 
 Limits .......................................... 
 Lossofnumbers .................................. 
 Maximum punishment chart ........................ 


Punitive separation ................................ 
 Reduction in grade ................................ 
 Reprimand ...................................... 


Restitution 


Not authorized ................................. 


Pretrial agreement, permissible condition ............ 
 Restriction to specified limits ....................... 


Special courts-martial ............................. 


Summary courts-martial ............................ 
 Nonjudicial. See Nonjudlclal punlshment. 


Rior, for minor offense, barring court-martial ................ 
 Punltlve artlcles .......................................... 


See also specific offenses. 

Punltlve dlscharge. See Bad-conduct dlscharge; Dishonorable 

dlscharge. 

Quallficatlons 

Assistant counsel ............................... 
 Associate defense counsel ................................ 


Bailiff ................................................ 
 Clerk ................................................. 
 Counsel ............................................... 
 Defense Counsel ........................................ 


Ref. 

IV. Para. 27 .............. 
 1V. Para. 32 .............. 


IV.Para. 33 .............. 


IV. Para. 103 ............. 


R.C.M. 306 .............. 


R.C.M. 401 .............. 
 R.C.M. 502(d)(5) .......... 
 IV. Para. 97 .............. 


IV. Para. 28 .............. 


IV. Paras. 41; 42c(l) ....... 
 IV. Para. 42 .............. 


Art. 48, UCMJ .... 

R.C.M. 201(g) ............ 


I. Para. 2(b)(2) ............ 


R.C.M. 706(c)(l) .......... 
 IV. Para. 99 .............. 


R.C.M. 806 .............. 


R.C.M. 1003(b) ........... 
 R .C.M. 1003(b)(8) ......... 
 R.C.M. 1003(b)(9) ......... 
 R.C.M. 1003(b)(ll) ........ 


R.C.M. 1003(b)(3) ......... 


R.C.M. 1003(b)(2) ......... 


R.C.M. 201 (f)(l)(A)(ii), 

(B)(ii) ................. 

R.C.M. 1003 ............. 


R.C.M. 1003(b)(7) ......... 


R.C.M. 1003(d) ........... 
 R.C.M. 1003(b)(12) ........ 


R.C.M. 1003(c) ........... 
 R.C.M. 1003(b)(4) ......... 


Appendix 12 .............. 
 R.C.M. 1003(b)(10) ........ 


R.C.M. 1003(b)(5) ......... 
 R.C.M. 1003(b)(l) ......... 


R.C.M. 201(a) ............ 


R.C.M. 705(c)(2)(C) ....... 


R.C.M. 1003(b)(6) ......... 
 R.C.M. 201(f)(2)(B) ....... 


R.C.M. 1301(c), (d) ....... 


R.C.M. 907(b)(2)(D)(iv) .... F'art IV. .................. 

R.C.M. 502(d)(2) :......... 
 R.C.M. 502(d)(l) .......... 
 R.C.M. 502(e)(l) .......... 


R.C.M. 502(e)(l) .......... 
 R.C.M. 502(d) ............ 
 R.C.M. 502(d)(l), (3) ...... 

MCM, 1984 

11-115 

IV- 1 

Index 49 
MCM. 1984 	 INDEX 

Deposition officer ....................................... 
 Escort ................................................ 
 Individual counsel ...................................... 


Interpreter ............................................. 


Lack of. action on discovery .............................. 


Members .............................................. 


Military judge .......................................... 
 Orderly ............................................... 
 President of court-martial ............................... 


Reporter .............................................. 


Trial counsel ........................................... 
 Quarantine, medical. breaklng ............................. 
 Questions 


See also Testimony; Witness . 
 Ambiguous and misleading ............................... 


Control by military judge ................................ 
 Degrading ............................................. 


Improper. insulting ...................................... 
 Interlocutory. See Interlocutory questions . 
 Leading ............................................... 
 Refusal to answer. as offense .............................. 


Suggesting inadmissible matter ............................ 


Questions of law. rulings on .............................. 
 Quitting guard ........................................... 


See also Sentinel or lookout . 
 Quitting place of duty to avoid hazardous duty ............. 


Quitting place of duty to plunder or pillage ................ 


Radio. broadcasting from courtroom ........................... 

Rape 

Assault with intent to commit ............................. 
 Generally ............................................. 
 Murder while committing ................................ 
 "Rape shield" ............................................ 


Reasonable doubt 


Guilt. basis for finding of ................................ Instruction on .......................................... Rebuttal. evidence in ....................................... 

Receipt 

Delivering less than amount called for by ................... 
 False ................................................. 


Making or delivering. without knowledge of facts ............. 
 Receiving stolen property ................................. 


Recess. announcement of personnel after ...................... 
 Reciprocaljurisdiction .................................... 
 Recklessly operating vehicle .............................. 


Recollection refreshed .................................... 


Recommendation of staff judge advocate or legal officer on 


post-trial action 


Disqualification ......................................... 


Fonn and content ....................................... 


Generally ............................................. 


Guilty. no findings of .................................... 


Service on defense counsel ............................... 


Reconsideration 

Findings .............................................. 


Rulings by military judge ................................ 
 Sentence .............................................. 
 Record of nonjudicial punishment ......................... 


Record of trial 


Acquittal .............................................. 


Appeal by United States. prepared in ....................... 
 Audiotape ............................................. 
 Authentication ......................................... 


Ref. 

R.C.M. 702(d)(l) .......... 
 R.C.M. 502(e)(l) .......... 
 R.C.M. 502(d)(3) .......... 
 R.C.M. 	502(e)(l); Mil . R. 

Evid. 604 .............. 

R.C.M. 502(f) ............ 
 R.C.M. 502(a)(l) .......... 
 R.C.M. 502(c) ............ 
 R.C.M. 502(e)(l) .......... 
 R.C.M. 502(b)(l) .......... 
 R.C.M. 502(e)(l) .......... 
 R.C.M. 502(d)(l), (2) ...... IV. Para . 100 ............. 


Mil. R.Evid. 61 1 (a) ....... 

Mil. R.Evid. 611(a) ....... Mil. R. Evid. 303; 611(a) ... Mil. R. Evid. 611(a) ....... 

Mil . R. Evid . 611(c) ....... 
 IV. Para. 108 ............. 
 Mil. R. Evid. 611(a) ....... 
 R.C.M. 801(a)(4), (e)(l), (2) 

IV. Para. 10 .............. 


IV. Para. 9 ............... 


IV. Para. 23 .............. 


R.C.M. 806(c) ............ 


IV. Para. 64 .............. 
 IV. Para. 45 .............. 


IV. Para. 43 .............. 
 Mil.R. Evid. 412 ......... 


R.C.M. 918(c) ............ 
 R.C.M. 920(e)(5) .......... 
 R.C.M. 913(c)(l)(C); 1001(d) 

IV. Para. 58 .............. 
 IV. Para. 58 .............. 


IV. Para. 58 .............. 
 IV. Para. 106 ............. 


R.C.M. 813(b) ............ 
 R.C.M. 201(e) ............ 
 IV. Para. 35 .............. 


Mil. R. Evid. 612 ......... 


R.C.M. 1 106(b) ........... 


R.C.M. 1106(d) ........... 
 R.C.M. 1106 ............. 
 R.C.M. 1106(e) ........... 
 R.C.M. 1106(f) ........... 


R.C.M. 924 .............. 


R.C.M. 905(f) ............ 


R.C.M. 1009 ............. 


V. Para. 8 ................ 


R.C.M. 1103(e) ........... 


R.C.M. 908(b)(5) .......... 
 R.C.M. 1103fj) ........... 


R.C.M. 1104(a) ........... 


IV-103 

IV-103 

IV-103 

IV- 142 

11-101 

11-9 

1v-60 

111-34 

11-169 

11-170 

11- 169 

11-171 

11-171 

Index 50 
INDEX 

Contempt proceedings .............................. 
 Copies 


General and special courts-martial ................... 
 Summarycourt-martial ............................ 
 Correction. certificate of ................................. 
 Disposition of after action ................................ 
 Examination and correction before authentication 


By defense counsel ............................... 


By summary court-martial .......................... 
 By trial counsel .................................. 
 Forwarding ............................................ 
 General courts.martial. contents ........................... 
 Generally ............................................. 
 Guide for preparing summarized record ............... 
 Guide for preparing verbatim records ....................... 
 Guilty plea. requirements ................................ 
 Loss of notes or recordings ............................... 
 Loss of records ......................................... 
 New trial. use at ........................................ 
 Other trial. use at ....................................... 
 Reparation of .......................................... 
 Recommendation of staff judge advocate or legal officer. before 


action on ............................................ 
 Rehearing. use at ....................................... 
 Security classification .................................... 
 Service ............................................... 
 Special courtsmartial. contents ........................... 
 Summary courts-martial .................................. 
 Termination prior to findings .............................. 
 Trial counsel 


Examinationby .................................. 
 Responsibility for ................................. 


Verbatim .............................................. 
 Videotape ............................................. 
 Views and inspections ................................... 
 Record. public. aiterlng. concealing. removing. mutilating. 

obiiteratlng. destroying ................................. Recusal of milltary judge ................................. Redress of grievances .................................... 

Referral of charges 

Accuser. disqualified .................................... 
 Authorityto ........................................... 
 Basis for .............................................. 


Capital offense 


Referred as noncapital ............................. 
 To special court-martial ............................ 


Defined ............................................... 
 Disqualification ......................................... 
 Instructions ............................................ 


General courts-martial ................................... 


Joinder of 


Accused ........................................ 
 Offenses ........................................ 
 Jurisdictional requisite. as ................................ 


Motion as to defect in ................................... 
 National security. affecting ............................... 


Orderof .............................................. 
 Pretrial agreement concerning ............................. 


Procedure ............................................. 


Special courts-martial ................................... 


Summary courts-martial .................................. 
 Superior convening authority. powers regarding ............... 


War. effect on .......................................... 
 Withdrawn charges ...................................... 
 Withholding. authority to ................................. 


Ref. 

R.C.M. 809(d) ... 

R.C.M. 1103(g)(l) ......... 


R.C.M. 1305(b) .... :...... R.C.M. 1104(d) ........... 
 R.C.M. 1111 ............. 


R.C.M. 1103(i)(l)(B) ...... R.C.M. 1103(i)(2); 1305(b) . 

R.C.M. 1103(i)(l)(A) ...... 

R.C.M. 1104(e) ........... 


R.C.M. 1103(b)(2) ......... 
 R.C.M. 1103; 1104 ........ 
 Appendix 13 .............. 


Appendix 14 .............. 
 R.C.M. 910(i) ............ 
 R.C.M. 1103(f) ........... 
 R.C.M. 1104(c) ........... 


R.C.M. 810(c) ............ 
 R.C.M. 810(c) ............ 
 R.C.M. 1103 ............. 


R.C.M. 1106 ............. 


R.C.M. 810(a)(2), (c) ...... 

R.C.M. 1103(h) ........... 
 R.C.M. 1104(b) ........... 


R.C.M. 1103(c) ........... 
 R.C.M. 1305; Appendix 15 . 


R.C.M. 1 103(e) ........... 


R.C.M. 1103(i)(l)(A) ...... 

R.C.M. 808; 1103(b)(l) .... 

R.C.M. 1103(b)(Z)(B). (c)(l) 

R.C.M. 1103Q) ........... 


R.C.M. 913(c)(3) .......... 


IV. Para. 99 .............. 


R.C.M. 902 .............. 


Art. 138, UCMJ ........... 


R.C.M. 601(c) ............ 


R.C.M. 601(b) ............ 
 R.C.M. 601(d)(l) .......... 


R.C.M. 20l(f)(l)(A)(iii)(b) .. 

R.C.M. 201(f)(Z)(C) ....... 


R.C.M. 601(a) ............ 


R.C.M. 601(c) ............ 


R.C.M. 601(e)(l) .......... 


R.C.M. 407(a)(6); 601(d)(2) . 

R.C.M. 601(e)(3) .......... 


R.C.M. 601(e)(2) .......... 


R.C.M. 201(b)(3) .......... 


R.C.M. 905(b)(l), (e) 	...... 

R . C.M. 401 (d); 407(b) .....

R.C.M. 601(e)(l) .......... 


R.C.M. 705(b)(2)(A), (B) ... 

R.C.M. 601(e) ............ 


R.C.M. 404(d); 601(d)(l) ... 

R.C.M. 403(b)(4); 601(d)(l) . R.C.M. 601(f) ............ 


R.C.M. 401(d); 407(b) ..... R.C.M. 604(b) ............ 


R.C.M. 601(b) ............ 


MCM.1984 

11-164 


11-206 


11- 167 


11- 183 


11-165 


11-165; II-206 


11-164 


11- 168 


11- 162 


11-162; 11-166 


A13-1 


A14-1 


11-120 


11-164 


11-167 


11-99 


11-99 


11- 162 


11-169 


11-98; 11-99 


11-164 


11-166 


11-163 


11-205; A15-1 


11-163 


Index 51 

MCM. 1984 INDEX 

Refreshing recollection ................................... 

Refusal to testify. wrongful ................................ 

Regulations. fallure to obey ............................... 

Rehearing 

Action on ............................................. 

Former testimony. admissibility at ......................... 

Ordering .............................................. 

Procedure 

Composition ..................................... 


Generally ....................................... 
 Record. examination of ............................ 


Sentence limitations ..................................... 
 Pretrial agreement. effect of ........................ 


Releasing prisoner without proper authority ............... 


Relevancy.See Evidence. 
 Rellef. not affording. before enemy ........................ 
 Rellglous beliefs or oplnlons. not subject to inquiry ........... 
 Remlsslon of 


Nonjudicial punishment .................................. 


Sentence 

Generally ....................................... Of suspension .................................... Who may remit 

Convening authority ............................. 


Judge Advocate General. The ..................... 


Service Secretary ............................... 
 Reopenlng case .......................................... 


Report of 


Offense 

Failure to make ................................... Generally ....................................... Result of trial .......................................... 


Reporter 


Announcement of ....................................... 


At investigation. pretrial ................................. 


Detailing .............................................. 


Disqualification ......................................... 


Duties ................................................ 
 Oath 


Administered ..................................... 


Status as to ...................................... 


Payment of ............................................ 
 Qualifications .......................................... 


Record of trial. preparation ............................... 


See also Record of trial . Reprimand 

Court.martial. military judge. member. counsel. prohibited ..... 

Nonjudicial punishment .................................. 

Sentence .............................................. Reproachful speech or gestures ........................... 


Reputation.See Evidence. Character. 


Requesting commission of offense ........................ 


Rescission of deferment of confinement ................... 


Reserve personnel. eligibility for court-martial duty ........ 


Reslgnatlon. qultting post or dutles before notification of ac- 


ceptance. as desertion .................................. 
 Reslsting apprehension ................................... 


Res judlcata ............................................. 


Restoration 

Generally ............................................. 

To duty. as condonation of desertion ....................... Restralnt 

Attachment of jurisdiction. effecting ........................ 

During trial ............................................ 

Index 52 

Ref. 


Mil. R. Evid. 612 ......... 


IV. Para. 108 ............. 
 IV. Para. 16 .............. 


R.C.M. 1 107(f)(5) ......... 

Mil. R. Evid. 804(b)(l) ..... 

R.C.M. 1107(c)(2)(B), (e)(l) 

R.C.M. 810(b) ............ 


R.C.M. 810 .............. 


R.C.M. 810(c) ............ 


R.C.M. 810(d) ............ 
 R.C.M. 810(d)(2) .......... 


IV. Para. 20 .............. 


IV. Para. 23 .............. 


Mil. R. Evid. 610 ......... 


V. Para. 6c ......... 


R.C.M. 1108(a) ........... 


R.C.M. 1108(e) ........... 


R.C.M. 1108(b) ........... 


R.C.M. 1201(c) ........... 


R.C.M. 1206(b)(l) ......... 


R.C.M. 913(c)(5) .......... 


IV. Para. 3c(2) ............ 


R.C.M. 301 .............. 


R.C.M. 1101(a) ........... 


R.C.M. 813(a)(8) .......... 


R.C.M. 405(d)(3)(B) ....... 


R.C.M. 501(c) ............ 
 R.C.M. 502(e)(2), (f) ...... R.C.M. 502(e)(3)(B) ....... 


R.C.M. 807(b); 901(c) ..... 

R.C.M. 901(c) ............ 


R.C.M. 502(e)(4) .......... 


R.C.M. 502(e)(l) .......... 


R.C.M. 1103; 1104 ........ 


R.C.M. 104(a)(l) .......... 


V. Para. 5c(l) ............. 


R.C.M. 1003(b)(l) ......... 


IV. Para. 42 .............. 


IV. Para. 101 ............. 


R.C.M. 1101(c)(6)(D). (7) . . R.C.M. 502(a)(l) .......... 


IV. Para. 9 ............... 


IV. Para. 19 .............. 


R.C.M. 905(g) ............ 


R.C.M. 1208 ............ 


R.C.M. 907(b)(2)(D)(iii) ... 

R.C.M. 202(c)(2) .......... 


R.C.M. 804(c)(3) .......... 


11- 177 

11-190 

11-195 

11- 126 

1v-10 

1v-33 

11-109 
INDEX 

Pretrial 

See also Confinement, pretrial. 

Authority to order ................................ 

Generally ....................................... Grounds ........................................ Limitations ...................................... mesof ........................................ 

Restrlctlon 

Administrative .......................................... 


Attachment of jurisdiction, effect of ........................ 


Breaking .............................................. 
 Defined ............................................... 


Nonjudicial punishment .................................. 

Pretrial 

Defined ......................................... 

Grounds for ..................................... 

Notice to accused ................................. Procedure ....................................... 

Release ......................................... 

Speedy trial, effect on ............................. Whomay order ................................... 

Sentence by court-martial ................................ 

Result of trlal, report of .................................... Retired personnel, eligibility for court-martial duty ............. 

Review of courts-martial. See Action of convening authority; 

Appellate review. 

Rlot ..................................................... 

Robbery 

Assault with intent to commit ......................... 
 Generally ............................................. 


Murder while committing ................................ 


Routine practice, evidence of ............................... 


Rules for Courts-Martial (R.C.M.) 


Analysis .............................................. 


Construction ........................................... 


Purpose ............................................... 


Scope ................................................ 


Title .................................................. 


Rules of court 

Authoritytomake ...................................... 
 Enforcement ........................................ 


Safeguard, forcing ........................................ 

Safety of command, unit, place, or military'property, endangering .................................................... Sale, unlawful, military property ........................... 

Sanity. See Mental capacity; Mental responsibility. 

Scene of accident, fleeing ................................ 

Search and Seizure 

Abandoned property, seizure of ............................ 


Adequate interest to challenge ............................. 
 Analsearches .......................................... 
 Apprehension 


Authorization, when required ....................... 


Defined ......................................... 


Entry to, requirements for .......................... 


Grounds ........................................ 
 How made ...................................... 


Power to apprehend (Art. 7, UCMJ) ................. 


Robable cause to ................................. 
 Search incident to 


Generally ..................................... 
 Scope ........................................ 
 Warrant, when required .......................... 


MCM, 1984 

Ref. 

R.C.M. 304(b) ............ 


R.C.M. 304; 305; 804(c)(2) . 

R.C.M. 304(c) ............ 


R.C.M. 304(f) ............ 


R.C.M. 304(a) ............ 


R.C.M. 304(h) ............ 11-22 


R.C.M. 202(c)(2) .......... 11- 13 


IV. Para. 102 ............. IV-139 


IV. Para. 102c; R.C.M. 

304(a)(2) ............... 

V. Para. 5c(2) ............. 


R.C.M. 304(a)(2) .......... 


R.C.M. 304(c) ............ 


R.C.M. 304(e) ............ 


R.C.M. 304(d) ............ 


R.C.M. 304(g) ............ 


R.C.M. 707(a), (b) ........ 


R.C.M. 304(b) ............ 


R.C.M. 1003(b)(6) ......... 


R.C.M. 1101(a) ........... 


R.C.M. 502(a)(l) .......... 


IV. Para. 41 .............. 


IV. Para. 64 .............. IV-112 


IV. Para. 47 .............. IV-82 


IV. Para. 43 .............. IV-7 1 


Mil. R. Evid. 406 ......... 111- 19 


Appendix 21 .............. 


R.C.M. 102(b) ............ 


R.C.M. 102(a) ............ 
 R.C.M. 101(a) ............ 


R.C.M. 101(b) ............ 


R.C.M. 108; 801(b)(l) 

R.C.M. 801(b)(l) ..... 

IV. Para. 26 .............. 


IV. Para. 23 .............. 


IV. Para. 32 .............. 


IV. Para. 82 .............. IV- 125 


Mil. R. Evid. 316(d)(l) 

Mil. R. Evid. 311(a)(2) 

Mil. R. Evid. 312(c) . 

R.C.M. 302(e)(2) .......... 


R.C.M. 302(a)(l) .......... 


R.C.M. 302(e)(2) .......... 


R.C.M. 302(c) ............ 


R.C.M. 302(d) ............ 
 R.C .M. 302(b) ............ 
 R.C .M. 302(c) ............ 


Mil. R. Evid. 314(g) ..... 

Mil. R. Evid. 314(g)(2), (3) 

R.C.M. 302(e)(2) ........ 


Index 53 
MCM. 1984 INDEX 

Attenuation ............................................ 


Authorization to 

Apprehend. when required ......................... Search 

Basis ......................................... 
 Defined ....................................... 
 Executionof ................................... 


Power to grant ................................. 
 Power to search ................................ 
 Rules of evidence not applicable to determination ..... 
 Scope ........................................ 


Seize ........................................... 
 Automobile searches 

Based upon probable cause ......................... Incident to apprehension ........................... 

On less than probable cause ........................ Blood samples .See Body views and intrusions. this heading . Body views and intrusions 

Extraction of body fluid ............................ 

Generally ....................................... Inspections 

Body view during ............................... 
 Urine production ............................... 
 Intrusions for medical purposes ...................... 
 Intrusions. generally ............................... 


Intrusions into body cavities ........................ 


Medical qualifications ............................. 


Visual examination of the body ...................... 
 Border searches ........................................ 
 Burden of proof 

General ......................................... 

Government's burden enhanced 

Consent. voluntariness ........................... 


Inspections .................................... 


On the accused 

Adequate interest. standing ....................... False statements. challenging probable cause ......... Commander 

Neutral and detached .............................. 

Power to authorize search .......................... Confinement facilities. searches within ...................... 
 Consent . 


Body views ...................................... 


Entry to apprehend ................................ 
 To search ........................................ 
 To seize ......................................... 
 Voluntariness. burden of proof ...................... 


Who can consent ................................. 
 Derivative evidence ..................................... 
 Detention. investigative of 

Persons ......................................... 

Property ........................................ Disclosure ............................................. 
 Eavesdropping ......................................... 


Emergency searches ..................................... 
 Entry and exit points 

Inspections at .................................... 
 Overseas. searches ................................ Entry to apprehend. requirements for ....................... Exclusionary rule 

General ......................................... 


Wire and oral communications ...................... 
 Exigent circumstances 

Entry to apprehend ................................ 

Search .......................................... 

Ref. 
 Mil.R. Evid. 311(e)(2) ..... 


R.C.M. 302(e)(2) .......... 


Mil.R. Evid . 315(f) ....... 

Mil . R. Evid. 315(b)(l) ..... Mil. R. Evid . 315(h) ....... 

Mil. R. Evid . 315(d) ....... Mil . R. Evid . 315(e) ....... 

Mil . R. Evid. 1101(d) ...... Mil. R .Evid. 315(c) ....... Mil. R.Evid. 316(d)(4)(A) .. 

Mil.R. Evid . 315(g)(3) . 

Mil . R. Evid. 314(g)(2) . 

Mil. R. Evid. 314(f)(3) . 

Mil . R. Evid . 3 12(d) ....... 
 Mil . R. Evid. 312(a) ....... 


Mil. R. Evid . 312(b)(2) ..... 

Mil.R. Evid. 313(b) ....... Mil.R . Evid . 312(f) ....... Mil. R. Evid. 312(c), (3) .... 

Mil. R.Evid. 312(c) ....... Mil. R. Evid . 312(g) ....... 

Mil.R. Evid. 3 12(b) ....... 

Mil. R. Evid. 314(b) ....... 

Mil. R. Evid. 311(e) . 

Mil. R. Evid. 314(e)(5) ..... Mil. R. Evid. 313(b) ....... 

Mil. R. Evid. 31 1(a)(2) ..... 

Mil. R. Evid . 31 1(g)(2) ..... 

Mil. R. Evid. 315(d) ....... Mil. R. Evid . 315(d)(l) ..... Mil. R. Evid . 314(h) ....... 

Mil. R. Evid. 312(b)(l) ..... 

R.C.M. 302(e)(2)(A) ....... 

Mil . R. Evid. 314(e) ....... Mil. R. Evid . 316(d)(2) ..... Mil. R. Evid . 314(e)(5) ..... 

Mil . R.Evid. 314(e)(2) ..... 

Mil . R. Evid . 3 1 1 (e)(2) ..... 

Mil. R. Evid . 314(f)(l) ..... 

Mil. R. Evid. 316(d)(5) ..... Mil .R. Evid.3 1 l(d)(l) ..... Mil. R. Evid . 317 ......... 

Mil. R. Evid . 314(i) ....... 

Mil. R.Evid. 313(b) ....... 


Mil.R. Evid . 314(c) ....... 


R.C.M. 302(e)(2) .......... 


Mil. R. Evid. 3 1 1 (a) ....... 
 Mil.R.Evid. 317 ......... 


R.C.M. 302(e)(2)(B) ....... 
 Mil . R . Evid . 315(g) .......


id-14 


111-13 


III-15 


III-14 


111- 14 


m-43 


III-13 


III-16 


III- 15 


III-13 


III-13 


m-10 

m-11 

m-11 

III-10; m-11 

III-10 

m-11 

m-lo 

m-12 

111-8 

m-lo 

m-12 

III-16 

m-9 

III- 16 

1h-13 

Index 54 
INDEX 

Seize ........................................... False statement in support of probable cause ................. Foreign officials. search by ............................... Frisks ................................................ Government property 

Searchof ........................................ Seizure of ....................................... Guilty plea 

Conditional to preserve motions ..................... Waiver by ....................................... 

Impeachment by contradiction. using illegally seized evidence for 

Incident to apprehension .................................. Independent source ...................................... Inevitable discovery ..................................... Informant. identity of. privilege ........................... 

Inspections 

Generally ....................................... Visual examination of the body ...................... Intrusions. body cavities ................................. Inventories ............................................ Investigative detentions . See Stops. investigative. this heading . Jails. confinement facilities. searches within ................. Law enforcement officials. nonmilitary ..................... Magistrate. power to authorize searches ..................... 

Medical qualifications. persons searching or seizing from body .. 

Military judge. power to authorize searches .................. Motion to suppress 

See also Motions. Generally ....................................... 
 Testimony upon a preliminary matter ................. 
 Neutral and detached .................................... 
 Objections. evidence unlawfully seized ..................... 
 Offer of proof. false statements ............................ 
 Open fields or woodlands. search of ........................ 


Oral communications. interception of ....................... 
 Plain view seizures ...................................... 
 Rivate dwelling. entry to apprehend ........................ 


Robable cause 


Challenging the determination of 


False statements ................................ 
 Generally ..................................... 
 Searches not requiring ............................. 
 Searches requiring ................................ 
 To apprehend .................................... 
 To confine before trial ............................. 
 To restrain before trial ............................. 
 Tosearch ........................................ 
 To seize ......................................... 


Search 


Authorization .................................... 
 Execution of ..................................... 
 Powertoconduct ................................. 
 Probable cause not required ......................... 
 Robable cause required ............................ 


Unlawful. defined ................................. 
 Warrant. defined .................................. 


See also Authorization to. this heading . 
 Seizure 


Consent ......................................... 


Generally ....................................... 
 Plain view ....................................... 
 Power to seize .................................... 


Robable cause to seize ............................ 
 Unlawful. defined ................................. 


Standing to contest search or seizure ....................... 


MCM. 1984 

Ref. 


Mil. R.Evid. 316(d)(4)(B) .. 
 Mil. R. Evid. 311(g)(2) ..... 


Mil. R. Evid. 311(c)(3) ..... 
 Mil. R. Evid. 314(f)(2) ..... 


Mil. R. Evid. 314(d) ....... III-12 


Mil. R. Evid. 3 16(d)(3) ..... III- 16 


R.C.M. 910(a)(2) .......... Mil. R. Evid. 3 1 1(i) ....... Mil. R. Evid. 3 1 1 (b) ....... 

Mil. R. Evid. 314(g) ....... Mil. R.Evid. 31 1(e)(2) ..... 

Mil. R. Evid. 3 1 1 (e)(2) ..... Mil. R. Evid. 507 ......... 

Mil.R. Evid. 313(b) ....... 1n-11 

Mil. R. Evid. 312(b)(2) ..... 111-10 

Mil. R. Evid. 312(c) ....... III-I0 

Mil.R. Evid. 313(c) ....... III-12 

Mil.R. Evid. 314(h) ....... Mil. R. Evid. 3 1 1 (c)(2) ..... Mil. R. Evid. 315(d)(2) ..... Mil. R. Evid. 312(g) ....... Mil.R. Evid. 315(d)(2) ..... 

Mil. R. Evid. 311(a)(l), (d) . 

Mil. R. Evid. 3 1 1 (f) ....... 

Mil. R. Evid. 315(d) ....... Mil. R. Evid. 31 l(a)(l) ..... Mil.R. Evid. 31 1(g)(2) ..... 

Mil.R. Evid. 314(j) ....... Mil. R. Evid. 317 ......... 

Mil. R. Evid. 3 16(d)(4)(C) .. 

R.C.M. 302(e)(2) .......... 


Mil.R . Evid. 31 1(g)(2) ..... 

Mil.R. Evid. 31 l(g)(l) ..... Mil. R. Evid. 314 ......... 

Mil. R. Evid. 315 ......... R.C.M. 302(c) ............ 
 R.C.M. 305(d) ............ 
 R.C.M. 304(c) ............ Mil.R. Evid. 315(f)(2) ..... 

Mil. R. Evid. 316(b) ....... 

Mil. R. Evid. 315(b)(l) ..... 111- 13 

Mil. R. Evid. 315(h) ....... 111-15 

Mil.R. Evid. 315(e) ....... 111-14 

Mil. R. Evid. 314(a) ....... 111-12 

Mil. R. Evid . 315(a) ....... 111- 13 

Mil. R. Evid. 31 1(c) ....... III-8 

Mil. R. Evid. 315(b)(2) ..... III- 13 

Mil. R. Evid . 3 16(d)(2) ..... Mil . R . Evid 
. 316 ......... Mil.R. Evid. 316(d)(4)(C) .. 


Mil. R. Evid. 316(e) ....... 


Mil. R. Evid. 316(b) ....... 
 Mil. R. Evid. 31 1(c) ....... 
 Mil. R. Evid. 311(a)(2) ..... 


Index 55 
MCM. 1984 INDEX 

Stops. investigative 


Frisks subsequent to ............................... 
 Generally ....................................... 
 Property detention ................................ 
 Search of vehicle subsequent to ..................... 
 Treaty obligations. effect of ............................... 
 Urine. seizure 


Generally ....................................... 
 Inspections ...................................... 
 Vaginal search ......................................... 
 Vehicles. search of 


Upon probable cause .............................. 
 Upon reasonable suspicion of weapons ................ 
 Visual examination of the body ............................ 
 Voluntariness of consent ................................. 
 Waiver 


Conditional guilty pleas ............................ 
 Failure to raise by timely motion .................... 
 Guilty plea ...................................... 
 Warrant. search 


Defined ......................................... 
 Required for entry to apprehend ..................... 
 Wire and oral communications. interception ................. 
 Secretary. Service 

Convening courts-martial ................................. 


Powers and responsibilities concerning review of courts-martial . . 

Secret information. privilege .............................. 

Security 

Courtroom ............................................. 


National. See National security . 
 Police. See Law enforcement official . 
 Record of trial. classification .............................. 


Sedition 

Generally ............................................. 
 Solicitation to commit ................................... 
 Seizure of evidence 

See also Search and seizure . Destruction to prevent ................................... 


Generally ............................................. 
 Self-defense 

Aggravated assault ...................................... 
 Defense of another ...................................... 
 Generally ............................................. 
 Homicide ............................................. 
 Loss of right ........................................... 
 Other assaults .......................................... 
 Self-Incrimination 

Accused's failure to testify 

Generally ....................................... Instructions concerning ............................ Admissions.See Confessions and admissions. this heading . 

Advice to witnesses ..................................... Applicability of privilege against .......................... Burden of proof ........................................ Confessions and admissions 

Admissibility ..................................... Admission defined ................................ Admissions by silence or failure to deny accusations of 

wrongdoing .................................... Admissions made during plea or plea discussion ........ 

Burden of proof for admissibility .................... Coercion. effect of ................................ Confession defined ................................ 

Ref. 

Mil. R. Evid. 314(f)(2) ..... Mil.R. Evid. 314(f)(l) ..... Mil. R. Evid. 316(d)(5) ..... Mil . R. Evid. 314(f)(3) ..... 

Mil. R. Evid. 315(c)(4)(B) . . 

Mil. R. Evid. 312(d) ....... 
 Mil. R. Evid. 313(b) ....... 
 Mil. R. Evid . 312(c) ....... 


Mil. R. Evid . 315(g)(3) ..... Mil. R. Evid. 314(f)(3) ..... Mil.R.Evid. 312(b) ....... Mil . R.Evid . 314(e)(4) ..... 

R.C.M. 910(a)(2) .......... Mil . R..Evi d. 31 1 (d)(2)(A) . . 

Mil. R.Evid . 3 1 1 (i) ....... 

Mil. R. Evid . 315(b)(2) ... R.C.M. 302(d)(2) ........ 


Mil . R. Evid . 317 ....... 


Arts. 22. 23. 24. UCMJ; 

R.C.M. 504(b)(l). (2); 

1302(a) ................ 

R.C.M. 1206 ............. 


Mil . R . Evid . 505 .........


R.C.M. 806(b) ............ 


R.C.M. 1103(h) ........... 


IV. Para. 18 .............. 


IV.PdIil.6 ............... 


IV. Para. 103 ............. 
 Mil . R. Evid . 316 ......... 


R.C.M. 916(e)(l). (2) ...... R.C.M. 916(e)(5) .......... 
 R.C.M. 916(e) ........... 


R.C.M. 916(e)(l) .......... 


R.C.M. 9 16(e)(4) .......... 


R.C.M. 916(e)(3) .......... 


Mil.R. Evid. 301(f)(l) ..... Mil.R.Evid. 301(g) ....... 

Mil. R. Evid . 301(b)(2) ..... 

Mil. R.Evid. 301(a) ....... 

Mil . R. Evid . 304(e) ....... 

Mil.R. Evid . 304(a) ....... 

Mil. R. Evid . 304(c)(2) ..... 

Mil.R. Evid . 304(h)(3) ..... 

Mil. R.Evid. 410 ......... 

Mil. R. Evid . 304(e) ....... Mil. R. Evid . 304(c)(3) ..... 

Mil.R . Evid. 304(c)(l) ..... 

111- 13 

III-12 

111- 16 

111- 13 

III-14 

111-I5 

111- 13 

m-10 

III- 12 

11-128; 11-128 

II-129 

11-128 

11-128 

II-129 

11- 129 

Index 56 
INDEX 

Corroboration required ............................. 
 Joint trial. effect on co-accused ...................... 
 Oral confessions and admissions ..................... 
 Standing to challenge .............................. 
 Use of admissions made at conferences ............... 
 Corroboration of confessions .............................. 
 Counsel rights and warnings 


Effect of request for counsel ........................ 
 Notice to counsel ................................. 
 Right to counsel .................................. 
 Waiver of counsel rights ........................... 
 When counsel rights warnings are required ............ 


Degrading questions ..................................... Derivative evidence ..................................... Disclosure by prosecution 

Accused's statements .............................. 
 Immunity or leniency to a prosecution witness ......... 
 Effect of claiming privilege against ........................ 
 Exclusionary rules ...................................... 
 Exception for impeachment ......................... Exercise of privilege against .............................. Guilty plea 

Conditional. to preserve motions ..................... 

Waiver by ....................................... Immunity 

See also lmmunlty. Effectofgrant ................................. 
 Notice to accused ............................... 

Impeachment by contradiction. using involuntary statements . . 

Inadmissibility of accused's pretrial claim of privilege against . 

Interrogation 

By foreign officials ................................ 
 By nonmilitary officials ............................ 
 Custodial ........................................ 
 Defined ......................................... 
 Noticetocounsel ................................. 
 Persons subject to UCMJ. defined .................... 
 Involuntary statements 

Burden of proof concerning ......................... Defined ......................................... Use of certain involuntary statements to impeach ....... Mental examination of accused. privilege concerning 


Exceptions ...................................... 
 Generally ....................................... 
 Noncompliance by accused ......................... 
 Procedure for claiming ............................. 
 Release of evidence ............................... 
 Motion to suppress 

See also Motions. Effect of guilty plea ............................... Generally ....................................... 

Rulings by military judge .......................... Specificity required ............................... Testimony upon a preliminary matter ................. Notice to accused of leniency or immunity given a prosecution 

witness ............................................. Notice to counsel of intended interrogation .................. Rights wamings 

Article 31. UCMJ ................................ 
 Counsel warnings ................................. 


Effect of failure to warn ........................... 
 Standing to assert privilege against ......................... 
 Statements of co-accused ................................. 


Striking testimony after assertion of privilege against .......... 


Testimony by accused on preliminary matter ................. 


MCM. 1984 

Ref. 


Mil. R.Evid. 304(g) ....... 


Mil. R. Evid. 306 ......... 
 Mil. R. Evid. 304(h)(l) ..... 
 Mil. R. Evid. 304(a) ....... 


R .C.M. 802(e) ............ 
 Mil.R. Evid. 304(g) ....... 


Mil . R . Evid . 305(f) ....... Mil. R.Evid. 305(e) ....... 

Mil. R.Evid. 305(d)(2) ..... 

Mil. R. Evid. 305(g)(2) ..... Mi1.R. Evid. 305(d)(l) ..... 

Mil. R. Evid. 303 ......... Mil.R. Evid. 304(e)(3) ..... 

Mil. R. Evid. 304(d)(l) ..... 

Mil. R. Evid. 301(c)(2) ..... Mil. R.Evid. 301(f) ....... 

Mil. R . Evid. 304(a); 305(a) . 

Mil . R 
. Evid. 304(b) .......

Mil.R. Evid. 301(c) ....... 


R.C.M. 910(a)(2) .......... 


Mil . R . Evid. 3 1 1 (i) .......


Mil. R. Evid. 301(c)(l) ..... Mil. R. Evid. 301(c)(2) ..... 

Mil.R. Evid. 304(b) ....... 

Mil.R. Evid. 301(f)(3) ..... 

Mil. R .Evid. 305(h)(2) ..... Mil. R. Evid. 305(h)(l) ..... 

Mil. R. Evid. 305(d)(l) ..... 

Mil. R. Evid. 305(b)(2) ..... Mil.R. Evid. 305(e) ....... Mil. R. Evid. 305(b)(l) ..... 

Mil. R. Evid. 304(e) ....... 

Mil.R.Evid.304(c)(3); 305(a) 

Mil.R. Evid. 304(b) ....... 

Mil. R.Evid. 302(b) ....... 
 Mil. R. Evid. 302(a) ....... 
 Mil. R.Evid. 302(d) ....... 


Mil. R. Evid. 302(e) ....... 
 Mil.R. Evid. 302(c) ....... 


Mil . R . Evid. 304(d)(5) ..... Mil. R. Evid. 304(d)(2) ..... Mil. R. Evid. 304(d)(4) ..... 

Mil..R .Evid. 301(d)(3) ..... Mil. R.Evid. 304(f) ....... 

Mil.R. Evid. 301(c)(2) . Mil.R. Evid. 305(e) ... 

Mil	.R. Evid. 305(c) ....... 
 Mil . R 
. Evid. 305(d) .......
 Mil. R. Evid. 305(a) ....... 
 Mil. R. Evid. 301(b)(l) ..... 
 Mil. R. Evid. 306 ......... 


Mil. R. Evid. 301(f)(2) ..... 
 Mil. R. Evid. 304(f) ....... 


Index 57 
MCM. 1984 INDEX 

Voluntariness .......................................... 
 Waiver of privilege against 


By accused ...................................... 
 By witness ...................................... 
 Waiver of rights 


Conditional guilty plea ............................. 
 Failure to move to suppress ......................... 
 Generally ....................................... 
 Guilty plea. effect of .............................. 
 Self4njufy. infliction of ..................................... 
 Selling mllltary property. unlawfully ....................... 
 Semen 


Extraction of ........................................... 
 Sourceof .............................................. 
 Sentence 

See also specific topics . 


Announcement of 


Findings. effect on reconsideration of ................. 
 Generally ....................................... 
 Authorized punishments .................................. 
 Capital cases ........................................... 
 Confinement. credit for illegal pretrial ...................... 
 Contempt. sentence for .................................. 
 Convening authority's action on 


General1 y ....................................... 
 Modification of initial action ........................ 
 Summarycourt-martial ............................ 
 Deliberations ........................................... 
 Determination of ........................................ 
 Execution ............................................. 
 Forms of .............................................. 
 Impeachment of ........................................ 
 Instructionson ......................................... 
 Maximum limitations 


Chart of maximum punishments ..................... 
 Circumstances affecting increase ..................... 
 General court-martial .............................. 
 Generally ....................................... 
 New trial ........................................ 
 Other trial ....................................... 
 Rehearing ....................................... 
 Special court-martial .............................. 
 Summarycourt-martial ............................ 
 Multiplicity ............................................ 
 Procedure ............................................. 
 Reconsideration of ...................................... 
 Voting ................................................ 
 Sentence proceedings .See Presentenclng procedure . Sentinel or lookout 

Assaulton ............................................. 
 Misbehavior as ......................................... 
 Offenses against or by ................................... 
 Separation 

See also Bad conduct-discharge; Dishonorable discharge; 

Dlsmlssal. Fraudulent ............................................. Unlawful. effecting ..................................... Serious offense. mlsprlslon of ............................ Service 

Charges. of ............................................ 
 Record of trial. of ....................................... 
 Subpoena. of ........................................... 
 Written motion. of ...................................... 
 Services. obtalnlng under false pretenses ................. 


Ref. 


Mil. R. Evid. 304(c)(3) ..... 


Mil. R.Evid. 301(e) ....... 
 Mil. R.Evid. 301(d) ....... 


R.C.M. 910(a)(2) .......... Mil. R. Evid. 304(d)(2)(A) .. Mil.R. Evid. 305(g) ....... Mil. R. Evid. 304(d)(5) ..... IV. Para. 40 .............. 
 IV. Para. 32 .............. 


Mil. R. Evid. 3 12(d); 406 ... Mil. R. Evid. 412(b)(2)(A) . . 

R.C.M. 924(a). (c) ......... 
 R.C.M. 1007 ............. 
 R.C.M. 1003(b) ........... 
 R.C.M. 1004 ............. 
 R.C.M. 305(i)(2), (k) ...... R.C.M. 809(c)(2)(C), (e) .... 

R.C.M. 1107(d) ........... 
 R.C.M. 1 107(f)(2) ......... 
 R.C.M. 1306(b) ........... 
 R.C.M. 1006 ............. 
 R.C.M. 1002 ............. 
 R.C.M. 1113 ............. 
 Appendix 11 .............. 
 R.C.M. 1008 ............. 
 R.C.M. 1005 ............. 


Appendix 12 .............. 


R.C.M. 1003(d) ........... 
 R.C.M. 201(f)(l) .......... 
 R.C.M. 1003 ............. 
 R.C.M. 810(d) ............ 
 R.C.M. 810(d) ............ 
 R.C.M. 810(d) ............ 
 R.C.M. 201(f)(2)(B) ....... 
 R.C.M. 1301(d) ........... 
 R.C.M. 1003(c)(l)(C) ...... R.C.M. 1009 ............. 
 R.C.M. 1009 ............. 
 R.C.M. 1006(d) ........... 


IV. Para. 64 .............. 
 IV. Para. 38 .............. 
 IV. Para. 104 ............. 


IV. Para. 7 ............... 
 IV. Para. 8 ............... 
 IV. Para. 95 .............. 


R.C.M. 602 .............. 
 R.C.M. 1104(b) ........... R.C . M. 703(e)(2)(D), (E) ... R.C.M. 905(i) ............ 


IV. Para. 78 .............. 


11-173 


11-175 


II-206 


11-153 


11-144 


11- 185 


a11-1 


II- 155 


11- 152 


A12-1 


11-148 


n-9 


11-144 


11-99 


11-99 


11-99 


t1-10 


11-201 


11-147 


11-155 


II- 155 


11-153 


11-63 


11-166 


II-76; 11-77 


11-110 


IV-123 


Index 58 

INDEX 

Sessions 

Article 39(a) ........................................... 


Closed 


Control of spectators .............................. 


Deliberations and vote, findings ..................... 
 Deliberations and vote, sentence ..................... 
 Objections to rulings of president .................... 
 Opening .............................................. 
 Post-trial .............................................. 
 Setting aslde nonjudiclai punishment ...................... 


Severance 


Charges, of 

Appeal by United States, effect of ................... Motion for ...................................... Co-accused,of ......................................... 

Sexual offense, evidence of character of victim ................. Ship. See Vessel. 

Shore patrol. See Law enforcement officiai. 

Signing false official document or statement ............... 

Signing receipt without knowledge of facts ................ 

Sitting on post, sentinel or lookout ........................ 

Sleeping on post, sentinel or lookout ...................... 

Sodomy 

Assault with intent to commit ............................ 
 Generally ............................................. 
 Murder while commiting ................................. 


Solicitation 

Attempt distinguished ................................... 


Desertion .............................................. 
 Misbehavior before the enemy ........................... 


Mutiny ............................................... 
 Other offenses .......................................... 
 Pandering distinguished .................................. 


Sedition ............................................... 


Speciai court-martial 

See also Specific topics. 


Composition ........................................... 


Counsel 


Detail to ........................................ 
 Generally ....................................... 


Required to adjudge bad-condkt discharge ............ 
 Jurisdiction ............................................ 
 Personnel of ........................................... 


President of, without military judge 


Defined ......................................... 
 Duties .......................................... 
 Procedural guide ........................................ 
 Record of trial .......................................... 
 Referral of charges ...................................... 


Special defenses See Defenses. 

Special findings 

In conjunction with general findings ........................ Requirement for essential findings of fact in ruling on 

Motions, generally ................................ Motions to suppress 

Confessions and admissions ...................... Evidence of eyewitness identification ............... 

Product of search and seizure ..................... 

Specifications. See Charges and specifications. 

Spectators 

Access to court-martial .................................. 
 Controlof ............................................. 
 Witnesses as ........................................... 
 Speech, provoking ....................................... 


Ref. 

R.C.M. 803 .............. 


R.C.M. 806(b) ............ 
 R.C.M. 921(a) ............ 


R.C.M. 1006(a) ........... 
 R.C.M. 801(e)(3)(C) ....... 


R.C.M. 901 .............. 


R.C.M. 1102 ............. 
 V. Para. 6d ............... 


R.C.M. 908(b)(4) .......... 


R.C.M. 905(b)(5); 906(b)(10) 

R.C.M. 905(b)(5); 906(b)(9) . 

Mil. R. Evid. 412 ......... 

IV. Para. 31 .............. 
 IV. Para. 58 .............. 


IV. Para. 104 ............. 
 IV. Para. 38 .............. 


IV. Para. 64 .............. 
 IV. Para. 51 .............. 
 IV. Para. 43 .............. 


IV. Para. 4c(4) ............ 
 IV.Para. 6 ............... 
 IV. Para. 6 ............... 
 IV. Para. 6 ............... 


IV.Para. 105 ............. 
 IV. Para. 6c(3) ............ 
 IV. Para. 6 ............... 


R.C.M. 501(a)(2) .......... 


R.C.M. 510(b) ............ 


R .C .M. 502(d) ............ 
 R.C.M. 201(f)(2)(B)(ii)(a) .. 

R.C.M. 201(t9(2) .......... 
 R.C.M. 501 .............. 


R.C.M. 103(15) ........... 
 R.C.M. 502(b)(2) .......... 
 Appendix 8 ............... 


R.C.M. 1103(c) ........... 
 R.C.M. 404(d); 601 ........ 


R.C.M. 918(b) ............ 


R.C.M. 905(d) .....'....... 


Mil. R. Evid. 304(d)(4) ..... 

Mil. R. Evid. 321(f) ....... 

Mil. R. Evid. 31 1(d)(4) ..... 

R.C.M. 806(a) ............ 


R.C .M. 806(b) ............ 
 Mil. R. Evid. 615 ......... 
 IV. Para. 42 .............. 


MCM, 1984 

11-2 

11-48 

A8-1 

11- 163 

11-36; 11-61 

11- 133 

111-5 

111- 18 

m-9 

Index 59 
MCM. 1984 INDEX 

Speedy trial 

Accountability 

Inception of time period ............................ 

Termination of time period ......................... Arrest 

Effectof ........................................ Release from ..................................... Confinement. pretrial 

Effectof ........................................ Release from ..................................... 

Dismissal of charges 

Effectof ........................................ 

Motion for ...................................... 

Remedy for violation .............................. 


Excluded periods ....................................... 
 Extraordinary circumstances. effect of ...................... 


Generally ............................................. 


Imposition of restraint. effect of ........................... 


Mistrial. effect of ....................................... 


Motion concerning 


Burden of proof .................................. 


Grounds ........................................ 


Multiple charges. effect of ................................ 


Preferral of charges. effect of ............................. 


Pretrial agreement. waiver of right not permitted .............. 


Remedy for denial of .................................... 


Time periods ........................................... 


Spies.See Spying. 
 Spontaneous exclamation ................................. 


Spouses. privilege as to ................................... 


Spying 


Generally ............................................. 


Votes required to convict ................................. 
 Staff judge advocate 

See also Advice. pretrial . Charges and specifications. amendment by .................. 
 Communications with 


Convening authority ............................... 


Judge Advocate General. The ....................... 


Staff judge advocates .............................. 


Defined ............................................... 


Execution of sentence, advice on .......................... 
 Member, ineligible to serve as ............................. 


Military judge, disqualified after acting as ................... 


Pretrial agreement, negotiations ........................... 


Recommendations, post-trial 


Disqualification ................................... 


Form and content ................................ 


Generally ....................................... 


No findings of guilty .............................. 


Service on defense counsel ......................... 
 Standing.See Search and seizure; Self-incrimination . State law 

Judicial notice of ....................................... 


Offenses under ......................................... 


Statements 

Accused in presentencing proceedings ...................... 
 Closing, by counsel ..................................... 


Coercion of ............................................ 


Disclosure by trial counsel ............................... 


Disloyal ............................................... 


False ................................................. 


Hearsay. See Evidence, Hearsay. 


Inconsistent, for impeachment ............................. 


Index 60 

Ref. 

R.C.M. 707(b)(2) .......... 


R.C.M. 707(b)(3) .......... 


R.C.M. 707(b)(l) .......... 
 R.C.M. 707(b)(2), (d) ...... 

R.C.M. 707(b)(l) ..... R.C.M. 707(b)(2), (d) . 

R.C.M. 707(b)(2) .......... 


R.C.M. 905(c)(2)(B); 

907(b)(2)(A) ............ 

R.C.M. 707(e) ............ 
 R.C.M. 707(c) ............ 


R.C.M. 707(c)(5)(B), (d) ... 

R.C.M. 707 .............. 
 R.C.M. 707(b)(2) .......... 
 R.C.M. 707(b)(2) .......... 


R.C.M. 905(c)(2)(B) ....... 


R.C.M. 907(b)(2)(A) ....... 
 R.C.M. 707(b)(4) .......... 


R.C.M. 707(b)(2) .......... 
 R.C.M. 705(c)(l)(B) ....... 


R.C.M. 707(e) ............ 


R.C.M. 707(a), (d) ........ 


Mil.R.Evid .803(2) ....... 


Mil. R. Evid. 504 ......... 


IV. Para. 30 ........... 


R.C.M. 921(c)(2)(A) .... 

R.C.M. 603(b) ............ 


R.C.M. 105(a) ............ 
 R.C.M. 105(b) ............ 


R.C.M. 105(b) ............ 
 R.C.M. 103(17) ........... 


R.C.M. 1113(c)(l) ......... 
 R.C.M. 912(f)(l)(G), (H) .... 

R.C.M. 902(b)(2) .......... 


R.C.M. 705(d)(2) .......... 


R.C.M. 1106(b) ........... 


R.C.M. 1106(d) ........... 
 R.C.M. 1106 ............. 
 R.C.M. 1106(e) ........... 


R.C.M. 1106(f) ........... 


Mil. R. Evid. 201A ...... 

IV. Para. 60c(4)(c) ....... 


R.C.M. 1001(c)(2) ......... 
 R.C.M. 919 .............. Mil. R. Evid. 304(c)(3) ..... 

R.C.M. 701(a)(l)(C) ....... 


IV. Para. 72 .............. 


IV. Paras. 31: 57 .......... 


Mil. R. Evid. 613 ......... 


11-6 

11-6 

11-6 

n-2 

11-185 

11-122; 11-122 

11-105 

11-82 

11-169 

11- 170 

11-169 

11-171 

II-171 

111-2 

IV-I 10 
INDEX 	 MCM. 1984 

Investigation. pretrial. use in .............................. 


Limited admissibility .................................... 


Opening. by counsel .................................... 


Production. after testimony ............................... 


Unsworn. by accused .................................... 


State records. authentication of ............................. Statutes. judicial notice of .................................. 

Statutes of Iimltatlons 

Motion to dismiss 

Burden of proof .................................. 

i Generally ....................................... Tolling ................................................ 


Statutory rape ............................................ 


Steal.See Larceny. Stipulations 


Confessional ........................................... 
 Effect ................................................ 


Generally ............................................ 


Investigation. pretrial. use at .............................. 


Kinds ................................................. 


Military judge 


Authority to reject ................................ 


Inquiry ......................................... 


Military Rules of Evidence. applicability .................... 


Pretrial agreement. term or condition of ..................... 


Procedure ............................................. 


Withdrawal from ........................................ 


Stolen property. receiving. buying. concealing ............. 


Straggling ............................................... 


Striking 

See also Assault. Colors or flag .......................................... 

Commissioned officer .................................... 

Noncommissioned. petty. or warrant officer .................. 

Sua sponte. defined ....................................... 


Subordinate compelling surrender ......................... 


Subpoena 


Evidence .............................................. 


Form ................................................. 


Generally ............................................. 


Right to ............................................... 
 Witnesses ............................................ 
 Successor in command. included in "convening authority" ... 


Summary court-martial 


Applicability of Military Rules of Evidence .................. 
 Composition ........................................... 


Convening 


By accuser .................................... 
 Procedure ....................................... 


Who may convene ................................ 
 Convening authority's action .............................. 


Counsel. right to ....................................... 
 Evidence. production of .................................. 


Function .......................................... 


Generally ............................................. 
 Jurisdiction over persons and offenses ...................... 


Military judge. included in definition of ..................... 
 Noncapital offenses ..................................... 


Objection to trial by ..................................... 
 Procedural guide ........................................ 
 Procedure 


Post-trial ........................................ 


Pretrial ......................................... 


Trial ............................................ 


Punishments ........................................... 


Ref. 

R.C.M. 405(g)(4) .......... Mil . R. Evid. 105 ......... 


R.C.M. 913(b) ............ 


R.C.M. 914 .............. 


R.C.M. 1001(c)(2)(C) 	...... Mil . R 
. Evid. 901; 902 .....

Mil. R. Evid. 201A ........ 


R.C.M. 905(c)(2)(B) ....... 
 R.C.M. 907(b)(2)(B) ....... 


R.C.M. 403(a) ............ 


IV. Para. 45 .............. 


R.C.M. 705(b)(l) .......... 
 R.C.M. 811(e) ............ 
 R.C.M. 811 .............. 


R.C.M. 405(g)(4)(A)(v) .... 

R.C.M. 811(a) ............ 


R.C.M. 811(b) ............ 


R.C.M. 811(c) ............ 
 R.C.M. 811(e) ............ 


R.C.M. 705(c)(2) .......... 


R.C.M. 811(f) ............ 


R.C.M. 811(d) ............ 
 IV. Para. 106 ............. 


N. Para. 107 ............. 


IV . Para . 24 .............. 


IV. Para. 14 .............. 
 IV. Para. 15 .............. 


R.C.M. 103(18) ........... 


IV. Para. 24 .............. 


R.C.M. 703(f)(4)(B) ....... 


Appendix 7 ............... 


R.C.M. 703 .............. 


R.C.M. 703(a) ............ 


R.C.M. 703(e)(2) ........... 
 R.C.M. 103(6) ............ 


R.C.M. 1304(b)(2)(E) ...... 

R.C.M. 1301(a) ........... 


R.C.M. 1302(b) ........... 
 R.C.M. 1302(c) ........... 


R.C.M. 1302(a) ........... 


R.C.M. 1306(b) ........... 


R.C.M. 1301(e) ........... 


R.C.M. 1301(f) ........... 


R.C.M. 1301(b) ........... 
 I1. Chapter XI11 ........... 


R.C.M. 1301(c) ........... 


R.C.M. 103(15) ........... 
 R.C.M. 1301(c) ........... 


R.C.M. 1303 ............. 


Appendix 9 ............... 


R.C.M. 1306 ............. 


R.C.M. 1304(a) 	........... 


R.C . M. 1304(b) ...........


R.C.M. 1301(d) ........... 


me 

11-40 

111-2 

11- 124 

11-126 

11-143 

III-40 

111-2 

11-100 

11-100 

11-100 

11-81 

11-101 

11-100 

IV- 142 

IV-143 

Index 61 
MCM. 1984 INDEX 

Record of trial 


Authentication ................................... 


Format .......................................... 
 Forwarding copies ................................ 


Preparation ...................................... 
 Review by summary court-martial ................... 
 Referral of charges to .................................... 
 Basis ........................................... 


By general court-martial convening authority .......... 


By special court-martial convening authority ........... 


By summary court-martial convening authority ......... 


Review 

By a judge advocate ............................... 

By The Judge Advocate General ..................... 

Subpoena. authority to issue .............................. 


Vacation of suspended sentence ............................ 
 Witnesses. production ................................... 


Supreme Court. appeal of courts-martial to (Art . 67(h). UCMJ) . . 


Surrender 


Shameful .............................................. 
 Subordinate compelling .................................. 
 Suspension of mllltary judge. counsel ..................... 
 Suspension of nonjudiclal punishment .................... 
 Suspension of sentence 


Conditions of suspension ................................. 
 Generally ............................................. 
 Limitations ............................................ 
 Termination by remission ................................. 


Vacation of suspension 


Confinementpendig .............................. 
 Generally ....................................... 
 Procedure ....................................... 


Report of proceedings ............................. 
 Time for ........................................ 
 Who may suspend ...................................... 


Swearing 


See also Oaths. 
 Mse ................................................. 


Taking. wrongful ......................................... 


See also Larceny. Telephone. tapping ....................................... 

Television. broadcasting from coumoom prohibited ............. Testlfy 

Accused. failure to ...................................... 
 Wrongfulrefus al ........................................ 
 Testimony 

Expert.See Evidence, Expert. 

Mse ................................................. 

See also Perjury. How taken in court-martial ............................... 
 Interpreter, given through ................................. 
 Investigation, pretrial, alternatives ......................... 


Offer of proof .......................................... 
 Prior proceeding, admissibility 


Court-martial, at .................................. 
 Investigation, pretrial at ............................ 


Privileged. See Evidence. Privileges. 


Spouse of accused ...................................... 


Stipulation of expected ................................... 
 Theft.See Larceny. Threat 

See also Extortion. 

Bomb ................................................ 
 Communicating ........................................ 


Index 62 

Ref. 

R.C.M. 1305(c) ........... 


Appendix 15 .............. 
 R.C.M. 1305(e) ........... 
 R.C.M. 1103(d); 1305 ...... R.C.M. 1103(i)(2); 1305(a) .. 

R.C.M. 403(b)(4); 601(d)(l) 

R.C.M. 601(d)(l) .......... 
 R.C.M. 407(a)(4) .......... 
 R.C.M. 404(d) ............ 


R.C.M. 403(b)(4) .......... 


R.C.M. 1306(c) ........... 
 R.C.M. 1306(d) ........... 


R.C.M. 703(e)(2)(C); 1301(f) 

R.C.M. 1109(e) ........... 


R.C.M. 1301(f) ........... 
 R.C.M. 1205 ............. 


IV. Para. 23 .............. 


IV. Para . 24 .............. 
 R.C.M. 109 .............. 
 V. Para. 6a ............... 


R.C.M. 1108(c) ........... 
 R.C.M. 1108 ............. 
 R.C.M. 1108(d) ........... 
 R.C.M. 1108(e) ........... 


R.C.M. 1109(c) ........... 
 R.C.M. 1109 ............. 
 R.C.M. 1109(d), (e) ....... 
 Appendix 18 .............. 


R.C.M. 1109(b) ........... 
 R.C.M. 1108(b) ........... 


IV. Para.79 .............. 


IV. Para. 46 .............. 


Mil.R . Evid . 317 .........
 R.C.M. 806(c) ............ 


Mil. R. Evid. 301(f)(l). (g) . . N. Para. 108 ............. 


IV . Para . 57 .............. 


R.C.M. 913(c)(2) .......... 
 Mil.R. Evid. 604 ......... 
 R.C.M. 405(g)(4) .......... Mil. R.Evid. 103(a)(2) ..... 

Mil. R. Evid. 804(b)(l) . 

R.C.M. 405(g)(4)(A)(iii), 

B(iii) .............. 

Mil.R. Evid. 504 ......... 
 R.C.M. 811 .............. 


IV. Para. 109 ............. 


IV.Para. 110 ............. 


II-178 

11-177 

11- 178 

Il-178 

n-178 

11-178 

11-179; II-180 

A18-1 

Il-178 

11-177 

IV- 124 

11- 125 

III-32 

11-40 

m-1 
INDEX 

Time of war. See War. 

Travel order, form ......................................... lkatles, judicial notice of ................................... 

Rlal counsel 

See also Counsel. 

Absence of ............................................ Announcementof ....................................... Assistant 

Detailing ....................................... 

Duties ..................................... 
 Oath ...................................... 
 Qualifications ............................... 
 Challenges against members, announcing grounds ............ 
 Changes .............................................. 
 Charges and specifications 


Authority to change ............................... 
 Service ......................................... 
 Deposition,attachedfor .................................. 
 Detailing .............................................. 
 Disclosure to defense. See Disclosure and discovery. 


Disqualification of ...................................... 


Disqualified to act as other court-martial personnel ........ 
 Duties ................................................ 
 Evidence, production of .................................. 
 Mental examination of accused, disclosure of results to ........ 
 Oath 


Generally ....................................... 
 Unswom previously ............................... 
 Opening statement ...................................... 
 Presence at court-martial ................................. 
 Qualifications 


Announcement of ................................. 
 Generalcourt-martial .............................. 
 Specialcourt-martial .............................. 
 Record of trial 


Examination ..................................... 
 Responsibility .................................... 
 Service ......................................... 
 Result of trial, report .................................... 
 Service of charges ...................................... 
 Witnesses, production of ............................. 


Unauthorized absence .................................... 

See also Desertion. 

Unauthorlzed Inslgnla, badge, rlbbon, devlce, or lapel button, 

wearlng of ............................................. 

Unauthorized pass ....................................... Uncharged mlsconduct 

Action with presented to court-martial ...................... 
 Evidence, when admissible ............................... 
 Instruction on .......................................... 


Unlform 

For courts-martial 


Accused, responsibility for ......................... 
 Military judge, determination ....................... 
 Wearing unauthorized insignia, badge, ribbon, device, or lapel but- 


ton ................................................. 
 Uniform Code of Mliltary Justlce (UCMJ) ................... 
 Failure to enforce or comply with .......................... 
 Unit, separate or detached, defined ......................... 


Unlawful apprehenslon ................................... 
 Unlawful detention ........................................ 
 Unlawful enilstment, appointment, separatlon .............. 


Ref. 

Appendix 7 ......... 

Mil. R. Evid. 201A . . 

R.C.M. 805(c) ........ 


R.C.M. 813(a)(6); 901(b) 

R.C.M. 501(b); 502(d)(2); 

503(c) ................. R.C.M. 502(d)(5) .......... 


R.C.M. 807(b)(l) .......... 
 R.C.M. 502(d)(2) .......... 


R.C.M. 912(c) ............ 


R.C.M. 505(d)(l) .......... 


R.C.M. 603 .............. 


R.C.M. 602 .............. 


R.C.M. 702(d)(2) .......... 
 R.C.M. 503(c) ............ 


R.C.M. 502(d)(4), (f); 

901(d)(3) ............... 

R.C.M. 502(e)(2)(D) ....... 
 R.C.M. 502(d)(5) .......... 


R.C.M. 703(f) ............ 
 R.C.M. 706(c)(3), (5) ...... 

R.C.M. 807(b)(l) .......... 


R.C.M. 901(d)(5) .......... 


R.C.M. 913(b) ............ 


R.C.M. 803; 805 .......... 


R.C.M. 901(d)(l) .......... 


R.C.M. 502(d)(l) .......... 
 R.C.M. 502(d)(2) .......... 


R.C.M. 1103(i)(l) ......... 


R.C.M. 808; 1103(b)(l), (c) . 

R.C.M. 1104(b) ........... 


R.C.M. 1101(a) ........... 


R.C.M. 602 .............. 
 R.C.M. 703(c), (d), (e) ..... 

IV. Para. 10 .............. 


IV. Para. 113 ............. 


IV. Para. 77 .............. 


R.C.M. 801(d) ............ 

Mil. R. Evid. 404(b); 608(b) 

Mil. R. Evid. 105 ......... 

R.C.M. 804(c)(l) .......... 
 R.C.M. 801(a)(l) .......... 


IV. Para. 113 ............. 
 Appendix 2 ............... 


IV.Para. 22 .............. 


R.C.M. 504(b)(2)(A) ....... 
 IV. Para. 21 .............. 


IV. Para. 21 .............. 
 IV. Paras. 7; 8 ............ 


MCM, 1984 

11-164 

11-96; 11-162; 11-163 

11- 166 

11-159 

11-63 

11-74; 11-75; 11-75 

IV-146 

IV- 122 

Index 63 
INDEX 

Unlawful entry ........................................... Unsworn charges 

Amendment resulting in ............................ 
 Referral ........................................ 
 Unsworn statement 

Accused 

Investigation. pretrial. right to make .................. Presentencing proceeding. right to make .............. Investigation. pretrial. objection to use at ................... 
 Use. wrongful. of controlled substance .................... 
 Utterlng forged Instrument ................................ 
 Uttering worthless check ................................. 


Vacatlon of suspended punlshment 

Confinement. pending ................................... 
 General court-martial sentence ............................ 
 Generally ............................................. 
 Nonjudicial punishment .................................. 
 Report of proceedings ................................... 
 Special court.martial. bad-conduct discharge ................. 
 Special court-martial sentence. no bad-conduct discharge ...... 


Summarycourt-martial .................................. 
 Value. discussed under larceny ............................... 
 Vehlcle 


Defined ............................................... 


Driving recklessly or while drunk .......................... 
 Venue.See Place of court.martlal . 
 Veracity. impeachment of witnesses . See Evidence. Impeachment. 


Verbatlm record .......................................... 


Verdict.See Flndlngs. 
 Vessel 


Hazarding ............................................. 


Jumping from .......................................... 
 Videotaped record of trial ................................. 
 Vlews and Inspections. by court-martial ..................... 
 Violence. offerlng to superior commlssioned officer ........ 


Volr dire 


See also Challenges. Members .............................................. 


Military judge .......................................... 
 Use of questionnaire ..................................... 
 Voluntary manslaughter .................................. 
 Votlng.See Deliberations and voting . 
 Charges and specifications 

Defects in ....................................... Reading ......................................... Unsworn .......................................... 

Waiver 

Appellate review ........................................ 


Form for waiver .................................. Argument. objections to ................................. By pretrial agreement .................................... Challenges 

Cause ........................................... 
 Peremptory ...................................... 


Selection of members .............................. 
 Conditional guilty plea. effect on .......................... 


Deposition 

Objections in .................................... Request for ...................................... Enlisted members. request for ............................. 
 Evidence. admissibility and objections ...................... 
 Guilty plea. effect of .................................... 
 Instructions. objection to ................................. 


Index 64 

Ref. 

IV. Para. 111 ............. 


R.C.M. 603(d) ....... 


R.C.M. 307(b) ....... 


R.C.M. 1001(c)(2)(C) ...... R.C.M. 405(f)(12) ......... 
 R.C.M. 405(g)(4)(A)(vi) .... 

IV. Para. 37 .............. 


IV. Para . 48 ..............
 IV. Para . 49 ..............

R.C.M. 1109(c) ........... 
 R.C.M. 1109(d) ........... 
 R.C.M. 1109 ............. 
 V. Para . 6a(4) ............. 
 Appendix 18 .............. 


R.C.M. 1109(d) ........... 


R.C.M. 1109(e) ........... 
 R.C.M. 1109(e) 	........... 


lV. Para . 46c(l)(g) .........


R.C.M. 103 .............. 
 IV. Para. 35 .............. 


R.C.M. 1103(b)(2)(B), (c)(l) 

IV. Para. 34 .............. 
 IV. Para. 91 .............. 


R.C.M. 1103Q) ........... 
 R.C.M. 913(c)(3) .......... 


IV. Para. 14 .............. 


R.C.M. 912(d) ............ 


R.C.M. 902(d)(2) .......... 


R.C.M. 912(a)(l) .......... 


IV. Para. 44 .............. 


R.C.M. 905(b)(2) .......... 
 R.C.M. 904 .............. 


R.C.M. 603(d) ............ 


R.C.M. 1110 ............. 


Appendix 19 .............. 


R.C.M. 919(c) ............ 
 R.C.M. 705(c)(2)(E) ....... 


R.C.M. 912(f)(4) .......... 
 R.C.M. 912(g)(2) .......... 


R.C.M. 9 12(b)(3) .......... 


R.C.M. 910(a)(2) .......... 


R.C.M. 702(h) ............ 
 R.C.M. 702(c)(3)(D) ....... 
 R.C.M. 903(e) ............ 
 Mil. R. Evid. 103 ......... 


R.C.M. 910(c)(4), (j) ....... 


R.C.M. 920(f); 1005(f) ..... 

II-178 

11-179 

11-178 

v-7 

A18-1 

II-179 

11- 180 

II-180 

1v-80 

11- 108 

II-107 

11-64 

II-181 

A19-1 

II- 135 

11-81 

11- 123 

II-123 

11-122 

II-117 
INDEX 

Military judge alone, request for trial by .................... 


Motions,generally ...................................... 


Objections, generally .................................... 


Recommendation of staff judge advocate, defect in, objections to 

Self-incrimination 

Accused ........................................ 

Witness ......................................... 

War 

Judicial notice of ....................................... 


Law of. See Law of War. 


Prosecution of, case affecting ............................. 


Time of 


Defined ......................................... 


Elementofoffense ................................ 


Maximum punishment ............................. 


Warrant of attachment .................................. 

Warrant officer 

Apprehension by ..................................... 


Assault on 

In execution of office .............................. 

Not in execution of office .......................... Dishonorable discharge .................................. 


Dismissal of commissioned ............................... 


Disobedienceof ...................................... 


Disrespect toward ....................................... 
 Member of court-martial ................................. 


Restraintof,pretrial ..................................... 


Warrant, search. See Search and seizure. 


Waste or spoilage, nonmilitary property ................... 


Weapon 


See also Assault; Firearm. 

Carrying concealed ..................................... 


Wearing unauthorized insignia, decoration, badge, ribbon, 

devlce or lapel button .................................. 


Wife, Husband, privileged communication ..................... 


Wlllful disobedience of orders ............................. 


Wiretapping, evidence .................................... 


Withdrawal 


Appellate review waiver, of ............................... 


Charges, of 


Authority to ..................................... 


Effect of ........................................ 


Generally ....................................... 


Mistrial ......................................... 


Pretrial agreement, term of ......................... 
 From conspiracy ........................................ 


From offense, as principal ................................ 


From pretrial agreement .................................. 
 Guilty plea, of ......................................... 


Witness 

Access to, by parties .................................... 


Appear, neglect or refusal to .............................. 
 Competency ........................................... 


Discovery. See Disclosure and discovery. 


Examination. See Questions; Testimony. 


Expert, employment of .................................. 


Failure to call .......................................... 


Immunity. See Immunity. 


Impeachment. See Evidence, Impeachment. 


Members, disqualified as ................................. 


Military judge, disqualified as ............................. 


Oath ................................................. 


Perjury ............................................... 


Ref. 

R.C.M. 903(e) ............ 


R.C.M. 905(e); 907(b)(2) ... R.C.M. 801(g); Mil. R. Evid. 

103 ................... 

R.C.M. 1106(f)(6) ......... 


Mil. R. Evid. 301(e) ....... 


Mil. R. Evid. 301(d) ....... 


Mil. R. Evid. 201 ... 

R.C.M. 401(d); 407(b) ..... 

R.C.M. 103(19) ........... 


IV. Paras. 25; 29; 30 ....... 


IV. Paras. 6; 9; 14; 38; 40 ... 

R.C.M. 703(e)(2)(G) ....... 


R.C.M. 302(b)(2) ... 

IV. Para. 15 .............. 
 IV. Para. 54 .............. 
 R.C.M. 1003(b)(lO)(B) ..... 

R.C.M. 1003(b)(lO)(A) ..... IV. Para. 15 .............. 


IV. Para. 15 .............. 
 R.C.M. 502(a)(l)(B) ....... 


R.C.M. 304(b)(l) .......... 


IV. Para. 33 ........ 


IV. Para. 112 ............. 


IV. Para. 113 ............. 


Mil. R. Evid. 504 ......... 


IV. Faras. 14; 15 .......... 
 Mil. R. Evid. 317 ......... 


R.C.M. 1110 ....... 


R.C.M. 604(a) ............ 
 R.C.M. 604(b) ............ 


R.C.M. 604 .............. 


R.C.M. 915(c)(l) .......... 
 R.C.M. 705(b)(2)(C) ....... 


IV. Para. 5c(6) ............ 
 IV. Para. lb(7) ............ 


R.C.M. 705(d)(5) .......... 
 R.C.M. 910(h)(l) .......... 


R.C.M. 701(e) ......... 
 R.C.M. 703(e)(2)(G) .... 

Mil. R. Evid. 601 ...... 

R.C.M. 703(d) ............ 
 R.C.M. 701(c) ............ 


R.C.M. 912(f)(l)(D) ....... 
 R.C.M. 902(b)(3) .......... 
 R.C.M. 807(b) ............ 


IV. Para. 57 .............. 


MCM, 1984 

Index 65 
MCM. 1984 INDEX 

Pretrial agreement concerning ............................. 
 Privileges. See Evidence. Privileges. 


Production of 


Determination .................................... 


Generally ....................................... 
 Motion for ...................................... 
 Pretrial investigation ............................... 


Procedure for .................................... 
 Rights of parties. court-martial ...................... 


Sentencing ...................................... 
 Subpoena ....................................... 


Trial counsel. responsibility ......................... 
 Statements of. production ................................ 
 Unavailable 


Court-martial .................................... 


Pretrial investigation ............................... 
 Worthless checks .See Checks. Writings 

Authentication of ....................................... 

Best evidence rule .See Evidence.Contents of writings. recordings. 

and photographs . Used to refresh memory ................................. Wrongful appropriation ................................... 

Wrongful cohabitation .................................... 

Ref. 

R.C.M. 705(c)(2)(B), (E) 

R.C.M. 703(c) ............ 
 R.C.M. 703 .............. 
 R.C.M. 905(b)(4); 906(b)(7) . 

R.C.M. 405(g) ............ 
 R.C.M. 703(e); Appendix 7 . 

R.C.M. 703(b) ............ 
 R.C.M. 1001(e) ........... 


R.C.M. 703(e)(2); Appendix 7 

R.C.M. 703(c)(l), (2)(D) ... R.C.M. 914 .............. 


R.C.M. 703(b)(3) .......... 
 R.C .M. 405(g)(l) .......... 


Mil. R. Evid. 901: 902 ..... 

Mil. R.Evid. 612 ......... 
 IV.Para. 46 .............. 
 IV. Para. 69 .............. 


a U . S. GOVERNMENT PRINTING OFFICE : 1984-435-552