MANUAL

FOR

COURTS-MARTIAL

UNITED STATES

(2008 EDITION)
MANUAL

FOR

COURTS-MARTIAL

UNITED STATES

(2008 EDITION)

The 2008 Edition of the MCM is a complete revision of the 2005 MCM incorporating all Executive Orders (EO) through 28 Sep 07 (EO 12473 promulgating

the 1984 MCM; EO 12484, 15 Nov 84; EO 12550, 19 Feb 86; EO 12586, 3

Mar 87; EO 12708, 23 Mar 90; EO 12767, 27 Jun 91; EO 12888, 23 Dec 93;

EO 12936, 10 Nov 94; EO 12960, 12 May 95; EO 13086, 27 May 98; EO

13140, 6 Oct 99; EO 13262, 11 Apr 02; EO 13365, 3 Dec 04; EO 13387, 14

Oct 05; EO 13430, 18 Apr 07; EO 13447, 28 Sep 07). Copies of each Executive

Order can be found in Appendix 25.
PREFACE

The Manual for Courts-Martial (MCM), United States (2008 Edition) updates the MCM, (2005 Edition). It

is a complete reprinting and incorporates the MCM (2005 Edition), the 2005 amendments to the MCM Rules

for Courts-Martial, Military Rules of Evidence, and Punitive Articles made by the President in Executive

Order (EO) 13387, 14 October 2005, the 2007 amendments contained in EO 13430, 18 April 2007, and the

further 2007 amendments contained in EO 13447, 28 September 2007. The EOs referenced above can be

found at Appendix 25 of this MCM. This edition also contains amendments to the UCMJ made by the

National Defense Authorization Acts for Fiscal Years 2006 and 2007. Some of the significant changes from

the MCM (2005 Edition) are summarized and listed below. This summary is for quick reference only and

should not be relied upon or cited by practitioners in lieu of the actual provisions of the MCM that have been

amended.

Rules for Courts-Martial (R.C.M.) in Part II of the MCM:

• R.C.M. 103(2) and R.C.M. 201(f)(1)(A)(iii)(b) changed the wording of rules requiring convening authorities

to act affirmatively to refer a capital punishment eligible offense for trial as a capital case.

• R.C.M. 201(e)(2)(B), (e)(2)(C), (e)(3) and (e)(4), in their amended form, preclude commanders of joint

organizations from trying service members not assigned to their joint command. The revision also clarified

that implementing regulations of the accused’s service apply when trial is conducted under a joint command,

and that members and counsel from different services may be detailed to a court-martial convened by a joint

commander.

• R.C.M. 501(a) expressly requires 12 members and a military judge in all capital cases unless 12 members

are not reasonably available because of military exigencies or physical conditions.

• R.C.M. 503(b)(3) and (c)(3) clarify that a military judge and/or counsel from any service may be detailed to

a court-martial convened by a joint or combatant commander.

• R.C.M. 504(b)(2)(A) and (b)(2)(B) clarify that a joint command or task force is ordinarily considered to be

separate or detached and that the general court-martial convening authority of a joint command determines

whether or not a unit is separate or detached.

• R.C.M. 703(b)(1) authorizes the presiding military judge in a court-martial to allow any witness to testify on

interlocutory questions by remote means (e.g. VTC) or similar technology if practical difficulties in producing

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the witness on balance outweigh the significance of the witness’ personal appearance. This authorization does

not apply to trial sessions on the merits of the case when either party objects to the remote testimony.

• R.C.M. 804 and 805 allow the military judge to hold Article 39(a) sessions via remote means, so long as the

accused has counsel physically present at his location. Service regulations are required to implement this

change.

• R.C.M. 804 was also amended to clarify the procedures and requirements for allowing the presiding military

judge to authorize the use of remote live testimony of a child. The change specifically applies to situations

where remote testimony is warranted to protect the child from the traumatic experience of testifying in person

at trial in front of the accused. It also clarifies the procedures and requirements for the limited circumstances

in which the presiding military judge may authorize the accused to be absent from the courtroom for the

limited purpose of a child’s testimony.

• R.C.M. 912(f)(4) states that when a challenge for cause against a member has been denied, the successful

use of a peremptory challenge against that same member by either party precludes further consideration of

that excused member upon appellate or other review.

• R.C.M. 916 conforms to the Article 120, UCMJ, amendments regarding the defense of mistake of fact as to

age in the prosecution of sexual offenses with a child and mistake of fact as to consent applicable to the

offenses of rape, aggravated sexual assault, aggravated sexual contact and abusive sexual contact.

• R.C.M. 920 references the applicability of the R.C.M. 916 changes to the issue of mistake of fact as to

consent and age.

• R.C.M. 1004, regarding capital cases, was amended to add as an aggravating factor that murder was

committed while the accused was engaged in the commission or attempted commission of rape or other

specified sex offenses under the amended Article 120, UCMJ.

• R.C.M. 1004(b) now requires the convening authority to include a special instruction in the referral block of

the charge sheet if a case is to be tried as a capital case.

• R.C.M. 1103A contains new rules and procedures for sealed exhibits.

• R.C.M. 1204 sets forth the process by which courts-martial cases with sentences requiring the approval of

the President (capital cases) are transmitted by The Judge Advocate General of the Military Department

through the Secretary concerned, and then through the Secretary of Defense before being transmitted to the

President. The amendment requires the Secretary of Defense to make a recommendation.

Military Rules of Evidence (MRE) in Part III of the MCM:

• MRE 412, “Sex offense cases; relevance of alleged victim’s sexual behavior or sexual predisposition,” was

amended to define and include “sexual offenses” covered by the protections of the rule and amends the

procedures to be used in determining admissibility.

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• MRE 503 regarding the privilege attached to communications to clergy, was amended to define persons who

qualify as covered “clergyman’s assistants.”

• MRE 504, regarding the husband-wife privilege, was amended to define the term “child of either,” for

which the privilege would not apply when one spouse is charged with an offense against such child. The new

definition also includes a child who is under the permanent or temporary physical custody of one of the

spouses, regardless of a legal parent-child relationship, and defines the term “temporary physical custody.”

Punitive articles contained in Part IV of the MCM:

• Paragraph 14, Article 90, Assaulting or Willfully Disobeying Superior Commissioned Officer. A new

definition subparagraph was added clarifying that the lawfulness of an order is a question of law to be

determined by a military judge.

• Paragraph 43, Article 118, Murder, was amended to add offenses from the new Article 120 to the list of

offenses which, if committed and during which the victim is killed, constitute murder.

• Paragraph 44a, Article 119a, Death or Injury to an Unborn Child. The change provided guidance to further

implement the offense of causing the death or injury to an unborn child, as established by the Unborn Victims

of Violence Act of 2004 (Public Law 108-212).

• Paragraph 45, Article 120, was amended and consolidated numerous paragraphs throughout the Punitive

Articles into a single paragraph (Article) addressing sexual offenses, titled: “Rape, Sexual Assault, and other

Sexual Misconduct.” New offenses constituting degrees of sexual assault offenses were added. Text, explanation, elements of offenses, lesser offenses, maximum punishments, and sample specifications were provided

for each enumerated sexual offense under paragraph 45, Article 120.

• Paragraph 45a, Article 120a, Stalking. The change added and implemented a new offense for stalking, with

a maximum punishment for each offense consisting of a dishonorable discharge, forfeiture of all pay and

allowances, and confinement for 3 years.

• Paragraph 50, Article 124, Maiming, was amended to increase the maximum punishment to confinement

from 7 years to 20 years.

• Paragraph 54, Article 128, Assault, was amended to differentiate aggravated assault offenses committed

against a child under the age of 16 and increase the maximum punishment in these cases.

• Paragraph 63, Article 134, Assault-Indecent. This offense was removed as it was subsumed into the new

Article 120 provision.

• Paragraph 68a, Article 134, Child Endangerment, was added to the list of enumerated Article 134 offenses

and addresses offenses committed by the accused who has a duty of care to a child under the age of 16. It

requires that the accused endangered the child’s mental or physical health, safety, or welfare through design

3
or culpable negligence, provides definitions of the terms used, and establishes a hierarchy of maximum

punishments depending on the manner and type of harm committed.

• Paragraph 87, Article 134, Indecent Acts or Liberties with a Child. This offense was removed as it was

subsumed into the new Article 120 provision.

• Paragraph 88, Article 134, Indecent Exposure. This offense was removed as it was subsumed into the new

Article 120 provision.

• Paragraph 90, Article 134, Indecent Acts with Another. This offense was removed as it was subsumed into

the new Article 120 provision.

• Paragraph 97, Article 134, Pandering and Prostitution. The amendments added a new offense of patronizing

a prostitute.

• Paragraph 109, Article 134, Threat or Hoax: Bomb. The amendments broadened the offense beyond threats

involving explosives, to now include weapons of mass destruction, biological or chemical agents, substances,

or weapons or hazardous material.

Other UCMJ Articles contained in Appendix 2 of the MCM:

• Article 2(a)(10) was amended to apply jurisdiction to persons serving with or accompanying an armed force

in the field in time of declared war or contingency operation.

• Articles 8, 22, 46, 47, 49, 58, and 88 were amended to remove the obsolete reference to “Territory” of the

United States.

• Article 39 was amended to allow for Article 39(a) sessions to be held with the accused present via

audiovisual technology (such as videoteleconferencing) so long as the accused has counsel present at the

accused’s location. This amendment requires service regulations for implementation.

• Article 43 was amended to list offenses punishable by death to which the statute of limitations does not

apply; It also extended the statute of limitations for child abuse offenses to the life of the child victim or five

years from the date of the offense, whichever is later.

• Articles 1, 6, 15, 88, and 46, as well as other portions of the MCM were amended to change references to

the Coast Guard as being part of the Department of Transportation to reflect the Coast Guard being under the

Department of Homeland Security.

JOINT SERVICE COMMITTEE

ON MILITARY JUSTICE
PART I PREAMBLE

1. Sources of military jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I-1

2. Exercise of military jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I-1

(a) Kinds. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I-1

(b) Agencies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I-1

3. Nature and purpose of military law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I-1

4. Structure and application of the Manual for Courts-Martial . . . . . . . . . . . . . . . . . I-1

PART II RULES FOR COURTS–MARTIAL

CHAPTER I. GENERAL PROVISIONS

Rule 101. Scope, title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-1

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

(b) Title. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-1

Rule 102. Purpose and construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-1

(a) Purpose. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-1

(b) Construction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-1

Rule 103. Definitions and rules of construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-1

Rule 104. Unlawful command influence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-4

(a) General prohibitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-4

(b) Prohibitions concerning evaluations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-5

Rule 105. Direct communications: convening authorities and staff judge

advocates; among staff judge advocates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-5

(a) Convening authorities and staff judge advocates. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-5

(b) Among staff judge advocates and with the Judge Advocate General. . . . . . . . . . . . . . . II-5

Rule 106. Delivery of military offenders to civilian authorities . . . . . . . . . . . . . . . . II-5

Rule 107. Dismissed officer’s right to request trial by court-martial . . . . . . . . . . . II-6

Rule 108. Rules of court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-6

Rule 109. Professional supervision of military judges and counsel . . . . . . . . . . . II-6

(a) In general. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-6

(b) Action after suspension or disbarment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-6

(c) Investigation of judges. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-6

CHAPTER II. JURISDICTION

Rule 201. Jurisdiction in general . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-9

(a) Nature of courts-martial jurisdiction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-9

(b) Requisites of court-martial jurisdiction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-9

(c) Contempt. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-9

(d) Exclusive and nonexclusive jurisdiction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-10

(e) Reciprocal jurisdiction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-10

(f) Types of courts-martial. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-11

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CONTENTS

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(g) Concurrent jurisdiction of other military tribunals. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-12

Rule 202. Persons subject to the jurisdiction of courts-martial . . . . . . . . . . . . . . . II-13

(a) In general. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-13

(b) Offenses under the law of war. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-14

(c) Attachment of jurisdiction over the person. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-15

Rule 203. Jurisdiction over the offense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-15

Rule 204. Jurisdiction over certain reserve component personnel . . . . . . . . . . . . . II-15

(a) Service regulations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-15

(b) Courts-Martial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-15

(c) Applicability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-16

(d) Changes in type of service. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-16

CHAPTER III. INITIATION OF CHARGES; APPREHENSION; PRETRIAL

RESTRAINT; RELATED MATTERS

Rule 301. Report of offense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-17

(a) Who may report. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-17

(b) To whom reports conveyed for disposition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-17

Rule 302. Apprehension . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-17

(a) Definition and scope. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-17

(b) Who may apprehend. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-17

(c) Grounds for apprehension. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-18

(d) How an apprehension may be made. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-18

(e) Where an apprehension may be made. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-18

Rule 303. Preliminary inquiry into reported offenses . . . . . . . . . . . . . . . . . . . . . . . . . . II-19

Rule 304. Pretrial restraint . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-19

(a) Types of pretrial restraint. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-19

(b) Who may order pretrial restraint. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-20

(c) When a person may be restrained. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-20

(d) Procedures for ordering pretrial restraint. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-20

(e) Notice of basis for restraint. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-21

(f) Punishment prohibited. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-21

(g) Release. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-21

(h) Administrative restraint. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-21

Rule 305. Pretrial confinement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-21

(a) In general. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-21

(b) Who may be confined. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-21

(c) Who may order confinement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-21

(d) When a person may be confined. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-21

(e) Advice to the accused upon confinement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-22

(f) Military counsel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-22

(g) Who may direct release from confinement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-22

(h) Notification and action by commander. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-22

(i) Procedures for review of pretrial confinement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-23

(j) Review by military judge. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-24

(k) Remedy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-24

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(l) Confinement after release. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-24

(m) Exceptions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-25

Rule 306. Initial disposition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-25

(a) Who may dispose of offenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-25

(b) Policy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-25

(c) How offenses may be disposed of. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-26

(d) National security matters. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-26

Rule 307. Preferral of charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-27

(a) Who may prefer charges. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-27

(b) How charges are preferred; oath. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-27

(c) How to allege offenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-27

(d) Harmless error in citation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-30

Rule 308. Notification to accused of charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-30

(a) Immediate commander. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-30

(b) Commanders at higher echelons. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-30

(c) Remedy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-30

CHAPTER IV. FORWARDING AND DISPOSITION OF CHARGES

Rule 401. Forwarding and disposition of charges in general . . . . . . . . . . . . . . . . . . II-31

(a) Who may dispose of charges. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-31

(b) Prompt determination. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-31

(c) How charges may be disposed of. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-31

(d) National security matters. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-32

Rule 402. Action by commander not authorized to convene courts-martial . . . . II-32

Rule 403. Action by commander exercising summary court-martial jurisdiction II-32

(a) Recording receipt. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-32

(b) Disposition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-33

Rule 404. Action by commander exercising special court-martial jurisdiction . . II-33

Rule 405. Pretrial investigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-34

(a) In general. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-34

(b) Earlier investigation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-34

(c) Who may direct investigation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-34

(d) Personnel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-34

(e) Scope of investigation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-35

(f) Rights of the accused. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-35

(g) Production of witnesses and evidence; alternatives. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-35

(h) Procedure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-38

(i) Military Rules of Evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-39

(j) Report of investigation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-39

(k) Waiver. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-39

Rule 406. Pretrial advice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-40

(a) In general. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-40

(b) Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-40

(c) Distribution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-40

Rule 407. Action by commander exercising general court-martial jurisdiction . II-40

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(a) Disposition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-40

(b) National security matters. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-41

CHAPTER V. COURT-MARTIAL COMPOSITION AND PERSONNEL; CONVENING

COURTS-MARTIAL

Rule 501. Composition and personnel of courts-martial . . . . . . . . . . . . . . . . . . . . . . . II-42

(a) Composition of courts-martial. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-42

(b) Counsel in general and special courts-martial. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-42

(c) Other personnel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-42

Rule 502. Qualifications and duties of personnel of courts-martial . . . . . . . . . . . . II-42

(a) Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-42

(b) President. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-43

(c) Qualifications of military judge. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-43

(d) Counsel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-43

(e) Interpreters, reporters, escorts, bailiffs, clerks, and guards. . . . . . . . . . . . . . . . . . . . . . . . . II-46

(f) Action upon discovery of disqualification or lack of qualifications. . . . . . . . . . . . . . . . . II-46

Rule 503. Detailing members, military judge, and counsel . . . . . . . . . . . . . . . . . . . . II-46

(a) Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-46

(b) Military judge. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-47

(c) Counsel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-47

Rule 504. Convening courts-martial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-48

(a) In general. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-48

(b) Who may convene courts-martial. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-48

(c) Disqualification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-48

(d) Convening orders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-49

(e) Place. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-49

Rule 505. Changes of members, military judge, and counsel . . . . . . . . . . . . . . . . . II-49

(a) In general. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-49

(b) Procedure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-49

(c) Changes of members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-49

(d) Changes of detailed counsel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-50

(e) Change of military judge. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-50

(f) Good cause. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-50

Rule 506. Accused’s rights to counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-50

(a) In general. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-50

(b) Individual military counsel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-50

(c) Excusal or withdrawal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-51

(d) Waiver. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-51

(e) Nonlawyer present. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-51

CHAPTER VI. REFERRAL, SERVICE, AMENDMENT, AND WITHDRAWAL OF

CHARGES

Rule 601. Referral . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-52

(a) In general. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-52

(b) Who may refer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-52

(c) Disqualification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-52

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(d) When charges may be referred. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-52

(e) How charges shall be referred. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-52

(f) Superior convening authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-53

Rule 602. Service of charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-53

Rule 603. Changes to charges and specifications . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-54

(a) Minor changes defined. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-54

(b) Minor changes before arraignment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-54

(c) Minor changes after arraignment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-54

(d) Major changes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-54

Rule 604. Withdrawal of charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-54

(a) Withdrawal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-54

(b) Referral of withdrawn charges. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-55

CHAPTER VII. PRETRIAL MATTERS

Rule 701. Discovery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-56

(a) Disclosure by the trial counsel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-56

(b) Disclosure by the defense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-57

(c) Failure to call witness. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-58

(d) Continuing duty to disclose. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-58

(e) Access to witnesses and evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-58

(f) Information not subject to disclosure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-58

(g) Regulation of discovery. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-58

(h) Inspect. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-59

Rule 702. Depositions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-59

(a) In general. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-59

(b) Who may order. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-59

(c) Request to take deposition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-59

(d) Action when request is approved. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-60

(e) Notice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-60

(f) Duties of the deposition officer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-60

(g) Procedure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-61

(h) Objections. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-61

(i) Deposition by agreement not precluded. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-62

Rule 703. Production of witnesses and evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-62

(a) In general. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-62

(b) Right to witnesses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-62

(c) Determining which witness will be produced. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-62

(d) Employment of expert witnesses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-63

(e) Procedures for production of witnesses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-63

(f) Right to evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-65

Rule 704. Immunity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-66

(a) Types of immunity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-66

(b) Scope. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-66

(c) Authority to grant immunity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-66

(d) Procedure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-67

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(e) Decision to grant immunity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-67

Rule 705. Pretrial agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-67

(a) In general. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-67

(b) Nature of agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-68

(c) Terms and conditions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-68

(d) Procedure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-69

(e) Nondisclosure of existence of agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-69

Rule 706. Inquiry into the mental capacity or mental responsibility of the accused II-69

(a) Initial action. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-69

(b) Ordering an inquiry. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-70

(c) Inquiry. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-70

Rule 707. Speedy trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-71

(a) In general. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-71

(b) Accountability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-71

(c) Excludable delay. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-72

(d) Remedy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-72

(e) Waiver. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-72

CHAPTER VIII. TRIAL PROCEDURE GENERALLY

Rule 801. Military judge’s responsibilities; other matters . . . . . . . . . . . . . . . . . . . . . . II-73

(a) Responsibilities of military judge. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-73

(b) Rules of court; contempt. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-73

(c) Obtaining evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-73

(d) Uncharged offenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-73

(e) Interlocutory questions and questions of law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-74

(f) Rulings on record. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-75

(g) Effect of failure to raise defenses or objections. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-75

Rule 802. Conferences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-76

(a) In general. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-76

(b) Matters on record. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-76

(c) Rights of parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-76

(d) Accused’s presence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-76

(e) Admission. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-76

(f) Limitations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-76

Rule 803. Court-martial sessions without members under Article 39(a) . . . . . . . . II-76

Rule 804. Presence of the accused at trial proceedings . . . . . . . . . . . . . . . . . . . . . . II-77

(a) Presence required. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-77

(b) Presence by remote means. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-77

(c) Continued presence not required. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-77

(d) Voluntary absence for limited purpose of child testimony. . . . . . . . . . . . . . . . . . . . . . . . II-78

(e) Appearance and security of accused. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-78

Rule 805. Presence of military judge, members, and counsel . . . . . . . . . . . . . . . . . II-78

(a) Military judge. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-78

(b) Members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-78

(c) Counsel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-78

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(d) Effect of replacement of member or military judge. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-79

Rule 806. Public trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-79

(a) In general. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-79

(b) Control of spectators and closure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-79

(c) Photography and broadcasting prohibited. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-80

(d) Protective orders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-80

Rule 807. Oaths . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-81

(a) Definition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-81

(b) Oaths in courts-martial. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-81

Rule 808. Record of trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-82

Rule 809. Contempt proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-82

(a) In general. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-82

(b) Method of disposition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-82

(c) Procedure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-82

(d) Record; review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-83

(e) Sentence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-83

(f) Informing person held in contempt. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-83

Rule 810. Procedures for rehearings, new trials, and other trials . . . . . . . . . . . . . II-83

(a) In general. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-83

(b) Composition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-83

(c) Examination of record of former proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-84

(d) Sentence limitations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-84

(e) Definition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-84

Rule 811. Stipulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-85

(a) In general. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-85

(b) Authority to reject. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-85

(c) Requirements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-85

(d) Withdrawal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-85

(e) Effect of stipulation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-85

(f) Procedure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-85

Rule 812. Joint and common trials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-86

Rule 813. Announcing personnel of the court-martial and accused . . . . . . . . . . . II-86

(a) Opening sessions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-86

(b) Later proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-86

(c) Additions, replacement, and absences of personnel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-86

CHAPTER IX. TRIAL PROCEDURES THROUGH FINDINGS

Rule 901. Opening session . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-87

(a) Call to order. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-87

(b) Announcement of parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-87

(c) Swearing reporter and interpreter. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-87

(d) Counsel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-87

(e) Presence of members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-88

Rule 902. Disqualification of military judge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-88

(a) In general. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-88

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(b) Specific grounds. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-88

(c) Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-88

(d) Procedure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-89

(e) Waiver. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-89

Rule 903. Accused’s elections on composition of court-martial . . . . . . . . . . . . . . . II-89

(a) Time of elections. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-89

(b) Form of election. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-89

(c) Action on election. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-89

(d) Right to withdraw request. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-90

(e) Untimely requests. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-90

(f) Scope. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-90

Rule 904. Arraignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-90

Rule 905. Motions generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-91

(a) Definitions and form. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-91

(b) Pretrial motions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-91

(c) Burden of proof. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-91

(d) Ruling on motions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-92

(e) Effect of failure to raise defenses or objections. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-92

(f) Reconsideration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-92

(g) Effect of final determinations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-92

(h) Written motions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-93

(i) Service. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-93

(j) Application to convening authority. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-93

(k) Production of statements on motion to suppress. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-93

Rule 906. Motions for appropriate relief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-93

(a) In general. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-93

(b) Grounds for appropriate relief. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-93

Rule 907. Motions to dismiss . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-95

(a) In general. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-95

(b) Grounds for dismissal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-95

Rule 908. Appeal by the United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-97

(a) In general. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-97

(b) Procedure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-97

(c) Appellate proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-98

(d) Military judge. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-98

Rule 909. Capacity of the accused to stand trial by court-martial . . . . . . . . . . . . . II-98

(a) In general. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-98

(b) Presumption of capacity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-99

(c) Determination before referral. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-99

(d) Determination after referral. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-99

(e) Incompetence determination hearing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-99

(f) Hospitalization of the accused. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-99

(g) Excludable delay. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-99

Rule 910. Pleas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-99

(a) Alternatives. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-99

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(b) Refusal to plead; irregular plea. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-100

(c) Advice to accused. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-100

(d) Ensuring that the plea is voluntary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-100

(e) Determining accuracy of plea. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-101

(f) Plea agreement inquiry. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-101

(g) Findings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-101

(h) Later action. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-101

(i) Record of proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-102

(j) Waiver. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-102

Rule 911. Assembly of the court-martial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-102

Rule 912. Challenge of selection of members; examination and challenges of

members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-102

(a) Pretrial matters. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-102

(b) Challenge of selection of members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-103

(c) Stating grounds for challenge. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-103

(d) Examination of members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-103

(e) Evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-103

(f) Challenges and removal for cause. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-103

(g) Peremptory challenges. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-104

(h) Special courts-martial without a military judge. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-105

(i) Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-105

Rule 913. Presentation of the case on the merits . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-105

(a) Preliminary instructions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-105

(b) Opening statements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-105

(c) Presentation of evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-106

Rule 914. Production of statements of witnesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-107

(a) Motion for production. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-107

(b) Production of entire statement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-107

(c) Production of excised statement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-107

(d) Recess for examination of the statement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-107

(e) Remedy for failure to produce statement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-107

(f) Definition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-107

Rule 914A. Use of remote live testimony of a child . . . . . . . . . . . . . . . . . . . . . . . . . . II-107

(a) General procedures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-107

(b) Definition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-108

(c) Prohibitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-108

Rule 914B. Use of remote testimony . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-108

(a) General procedures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-108

(b) Definition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-108

Rule 915. Mistrial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-108

(a) In general. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-108

(b) Procedure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-108

(c) Effect of declaration of mistrial. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-108

Rule 916. Defenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-108

(a) In general. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-108

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(b) Burden of proof. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-109

(c) Justification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-109

(d) Obedience to orders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-109

(e) Self-defense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-109

(f) Accident. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-110

(g) Entrapment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-111

(h) Coercion or duress. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-111

(i) Inability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-111

(j) Ignorance or mistake of fact. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-111

(k) Lack of mental responsibility. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-112

(l) Not defenses generally. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-112

Rule 917. Motion for a finding of not guilty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-113

(a) In general. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-113

(b) Form of motion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-113

(c) Procedure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-113

(d) Standard. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-113

(e) Motion as to greater offense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-113

(f) Effect of ruling. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-113

(g) Effect of denial on review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-113

Rule 918. Findings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-114

(a) General findings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-114

(b) Special findings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-114

(c) Basis of findings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-114

Rule 919. Argument by counsel on findings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-115

(a) In general. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-115

(b) Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-115

(c) Waiver of objection to improper argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-115

Rule 920. Instructions on findings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-115

(a) In general. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-115

(b) When given. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-115

(c) Requests for instructions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-116

(d) How given. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-116

(e) Required instructions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-116

(f) Waiver. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-117

Rule 921. Deliberations and voting on findings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-117

(a) In general. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-117

(b) Deliberations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-117

(c) Voting. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-117

(d) Action after findings are reached. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-118

Rule 922. Announcement of findings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-118

(a) In general. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-118

(b) Findings by members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-118

(c) Findings by military judge. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-119

(d) Erroneous announcement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-119

(e) Polling prohibited. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-119

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Rule 923. Impeachment of findings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-119

Rule 924. Reconsideration of findings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-119

(a) Time for reconsideration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-119

(b) Procedure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-119

(c) Military judge sitting alone. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-119

CHAPTER X. SENTENCING

Rule 1001. Presentencing procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-120

(a) In general. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-120

(b) Matter to be presented by the prosecution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-120

(c) Matter to be presented by the defense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-122

(d) Rebuttal and surrebuttal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-122

(e) Production of witnesses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-122

(f) Additional matters to be considered. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-123

(g) Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-123

Rule 1002. Sentence determination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-123

Rule 1003. Punishments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-124

(a) In general. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-124

(b) Authorized punishments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-124

(c) Limits on punishments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-126

(d) Circumstances permitting increased punishments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-127

Rule 1004. Capital cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-128

(a) In general. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-128

(b) Procedure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-128

(c) Aggravating factors. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-129

(d) Spying. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-131

(e) Other penalties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-131

Rule 1005. Instructions on sentence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-131

(a) In general. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-131

(b) When given. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-131

(c) Requests for instructions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-131

(d) How given. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-131

(e) Required instructions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-132

(f) Waiver. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-132

Rule 1006. Deliberations and voting on sentence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-132

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

(b) Deliberations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-132

(c) Proposal of sentences. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-132

(d) Voting. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-132

(e) Action after a sentence is reached. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-133

Rule 1007. Announcement of sentence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-133

(a) In general. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-133

(b) Erroneous announcement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-134

(c) Polling prohibited. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-134

Rule 1008. Impeachment of sentence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-134

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Rule 1009. Reconsideration of sentence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-134

(a) Reconsideration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-134

(b) Exceptions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-134

(c) Clarification of sentence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-134

(d) Action by the convening authority. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-134

(e) Reconsideration procedure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-134

Rule 1010. Notice concerning post-trial and appellate rights . . . . . . . . . . . . . . . . . . II-135

Rule 1011. Adjournment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-135

CHAPTER XI. POST-TRIAL PROCEDURE

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

forfeitures and reduction in grade; waiver of Article 58b forfeitures . . . . . . . . . II-136

(a) Report of the result of trial. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-136

(b) Post-trial confinement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-136

(c) Deferment of confinement, forfeitures or reduction in grade. . . . . . . . . . . . . . . . . . . . . . . II-136

(d) Waiving forfeitures resulting from a sentence to confinement to provide for dependent

support. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-137

Rule 1102. Post-trial sessions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-138

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

(b) Purpose. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-138

(c) Matters not subject to post-trial sessions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-138

(d) When directed. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-139

(e) Procedure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-139

Rule 1102A. Post-trial hearing for person found not guilty only by reason of lack

of mental responsibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-139

(a) In general. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-139

(b) Psychiatric or psychological examination and report. . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-139

(c) Post-trial hearing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-139

Rule 1103. Preparation of record of trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-139

(a) In general. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-139

(b) General courts-martial. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-140

(c) Special courts-martial. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-141

(d) Summary courts-martial. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-141

(e) Acquittal; courts-martial resulting in findings of not guilty only by reason of lack of

mental responsibility; termination prior to findings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-141

(f) Loss of notes or recordings of the proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-141

(g) Copies of the record of trial. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-141

(h) Security classification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-142

(i) Examination and correction before authentication. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-142

(j) Videotape and similar records. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-142

Rule 1103A. Sealed exhibits and proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-143

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

(b) Examination of sealed exhibits and proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-143

Rule 1104. Records of trial: Authentication; service; loss; correction; forwarding II-144

(a) Authentication. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-144

(b) Service. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-144

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(c) Loss of record. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-145

(d) Correction of record after authentication; certificate of correction. . . . . . . . . . . . . . . . . . II-145

(e) Forwarding. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-146

Rule 1105. Matters submitted by the accused . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-146

(a) In general. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-146

(b) Matters which may be submitted. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-146

(c) Time periods. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-146

(d) Waiver. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-147

Rule 1106. Recommendation of the staff judge advocate or legal officer . . . . . . II-147

(a) In general. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-147

(b) Disqualification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-147

(c) When the convening authority has no staff judge advocate. . . . . . . . . . . . . . . . . . . . . . . II-147

(d) Form and content of recommendation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-147

(e) No findings of guilty; findings of not guilty only by reason of lack of mental

responsibility. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-148

(f) Service of recommendation on defense counsel and accused; defense response. . . . . . . II-148

Rule 1107. Action by convening authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-149

(a) Who may take action. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-149

(b) General considerations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-150

(c) Action on findings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-151

(d) Action on the sentence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-151

(e) Ordering rehearing or other trial. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-152

(f) Contents of action and related matters. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-153

(g) Incomplete, ambiguous, or erroneous action. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-155

(h) Service on accused. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-155

Rule 1108. Suspension of execution of sentence; remission . . . . . . . . . . . . . . . . . . II-155

(a) In general. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-155

(b) Who may suspend and remit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-155

(c) Conditions of suspension. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-156

(d) Limitations on suspension. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-156

(e) Termination of suspension by remission. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-156

Rule 1109. Vacation of suspension of sentence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-156

(a) In general. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-156

(b) Timeliness. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-156

(c) Confinement of probationer pending vacation proceedings. . . . . . . . . . . . . . . . . . . . . . . . . II-156

(d) Vacation of suspended general court-martial sentence. . . . . . . . . . . . . . . . . . . . . . . . . . . . II-157

(e) Vacation of a suspended special court-martial sentence wherein a bad-conduct discharge

or confinement for one year was not adjudged. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-158

(f) Vacation of a suspended special court-martial sentence that includes a bad-conduct

discharge or confinement for one year. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-158

(g) Vacation of a suspended summary court-martial sentence. . . . . . . . . . . . . . . . . . . . . . . . . II-159

Rule 1110. Waiver or withdrawal of appellate review . . . . . . . . . . . . . . . . . . . . . . . . . II-159

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

(b) Right to counsel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-159

(c) Compulsion, coercion, inducement prohibited. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-160

(d) Form of waiver or withdrawal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-160

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(e) To whom submitted. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-160

(f) Time limit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-160

(g) Effect of waiver or withdrawal; substantial compliance required. . . . . . . . . . . . . . . . . . . II-160

Rule 1111. Disposition of the record of trial after action . . . . . . . . . . . . . . . . . . . . . II-161

(a) General courts-martial. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-161

(b) Special courts-martial. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-161

(c) Summary courts-martial. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-161

Rule 1112. Review by a judge advocate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-161

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

(b) Exception. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-161

(c) Disqualification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-161

(d) Form and content of review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-161

(e) Forwarding to officer exercising general court-martial jurisdiction. . . . . . . . . . . . . . . . . . II-162

(f) Action by officer exercising general court-martial jurisdiction. . . . . . . . . . . . . . . . . . . . . . II-162

(g) Forwarding following review under this rule. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-162

Rule 1113. Execution of sentences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-163

(a) In general. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-163

(b) Punishments which the convening authority may order executed in the initial action. II-163

(c) Punishments which the convening authority may not order executed in the initial action. II-163

(d) Other considerations concerning the execution of certain sentences. . . . . . . . . . . . . . . . . II-163

Rule 1114. Promulgating orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-165

(a) In general. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-165

(b) By whom issued. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-165

(c) Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-165

(d) Orders containing classified information. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-165

(e) Authentication. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-165

(f) Distribution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-166

CHAPTER XII. APPEALS AND REVIEW

Rule 1201. Action by the Judge Advocate General . . . . . . . . . . . . . . . . . . . . . . . . . . . II-167

(a) Cases required to be referred to a Court of Criminal Appeals. . . . . . . . . . . . . . . . . . . . II-167

(b) Cases reviewed by the Judge Advocate General. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-167

(c) Remission and suspension. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-168

Rule 1202. Appellate counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-168

(a) In general. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-168

(b) Duties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-168

Rule 1203. Review by a Court of Criminal Appeals . . . . . . . . . . . . . . . . . . . . . . . . . . . II-169

(a) In general. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-169

(b) Cases reviewed by a Court of Criminal Appeals. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-169

(c) Action on cases reviewed by a Court of Criminal Appeals. . . . . . . . . . . . . . . . . . . . . . . II-169

(d) Notification to accused. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-170

(e) Cases not reviewed by the Court of Appeals for the Armed Forces. . . . . . . . . . . . . . . II-171

(f) Scope. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-171

Rule 1204. Review by the Court of Appeals for the Armed Forces . . . . . . . . . . . II-171

(a) Cases reviewed by the Court of Appeals for the Armed Forces. . . . . . . . . . . . . . . . . . . II-171

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(b) Petition by the accused for review by the Court of Appeals for the Armed Forces. . II-171

(c) Action on decision by the Court of Appeals for the Armed Forces. . . . . . . . . . . . . . . . II-172

Rule 1205. Review by the Supreme Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-173

(a) Cases subject to review by the Supreme Court. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-173

(b) Action by the Supreme Court. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-173

Rule 1206. Powers and responsibilities of the Secretary . . . . . . . . . . . . . . . . . . . . . . II-173

(a) Sentences requiring approval by the Secretary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-173

(b) Remission and suspension. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-173

Rule 1207. Sentences requiring approval by the President . . . . . . . . . . . . . . . . . . . . II-173

Rule 1208. Restoration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-173

(a) New trial. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-173

(b) Other cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-174

Rule 1209. Finality of courts-martial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-174

(a) When a conviction is final. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-174

(b) Effect of finality. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-174

Rule 1210. New trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-174

(a) In general. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-174

(b) Who may petition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-174

(c) Form of petition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-175

(d) Effect of petition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-175

(e) Who may act on petition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-175

(f) Grounds for new trial. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-175

(g) Action on the petition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-175

(h) Action when new trial is granted. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-176

CHAPTER XIII. SUMMARY COURTS-MARTIAL

Rule 1301. Summary courts-martial generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-177

(a) Composition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-177

(b) Function. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-177

(c) Jurisdiction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-177

(d) Punishments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-177

(e) Counsel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-177

(f) Power to obtain witnesses and evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-178

(g) Secretarial limitations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-178

Rule 1302. Convening a summary court-martial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-178

(a) Who may convene summary courts-martial. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-178

(b) When convening authority is accuser. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-178

(c) Procedure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-178

Rule 1303. Right to object to trial by summary court-martial . . . . . . . . . . . . . . . . . II-178

Rule 1304. Trial procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-178

(a) Pretrial duties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-178

(b) Summary court-martial procedure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-179

Rule 1305. Record of trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-180

(a) In general. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-180

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(b) Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-181

(c) Authentication. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-181

(d) Forwarding copies of the record. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-181

Rule 1306. Post-trial procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-181

(a) Matters submitted by the accused. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-181

(b) Convening authority’s action. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-181

(c) Review by a judge advocate. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-181

(d) Review by the Judge Advocate General. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-181

PART III MILITARY RULES OF EVIDENCE

SECTION I GENERAL PROVISIONS

Rule 101. Scope . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-1

(a) Applicability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-1

(b) Secondary Sources. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-1

(c) Rule of construction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-1

Rule 102. Purpose and construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-1

Rule 103. Ruling on evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-1

(a) Effect of erroneous ruling. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-1

(b) Record of offer and ruling. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-1

(c) Hearing of members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-1

(d) Plain error. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-1

Rule 104. Preliminary questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-1

(a) Questions of admissibility generally. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-1

(b) Relevancy conditioned on fact. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-1

(c) Hearing of members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-2

(d) Testimony by accused. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-2

(e) Weight and credibility. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-2

Rule 105. Limited admissibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-2

Rule 106. Remainder of or related writings or recorded statements . . . . . . . . . . . III-2

SECTION II JUDICIAL NOTICE

Rule 201. Judicial notice of adjudicative facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-2

(a) Scope of rule. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-2

(b) Kinds of facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-2

(c) When discretionary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-2

(d) When mandatory. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-2

(e) Opportunity to be heard. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-2

(f) Time of taking notice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-2

(g) Instructing members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-2

Rule 201A. Judicial notice of law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-2

(a) Domestic law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-2

(b) Foreign law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-2

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SECTION III EXCLUSIONARY RULES AND RELATED MATTERS CONCERNING SELFINCRIMINATION, SEARCH AND SEIZURE, AND EYEWITNESS IDENTIFICATION

Rule 301. Privilege concerning compulsory self-incrimination . . . . . . . . . . . . . . . . . III-3

(a) General rule. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-3

(b) Standing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-3

(c) Exercise of the privilege. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-3

(d) Waiver by a witness. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-3

(e) Waiver by the accused. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-3

(f) Effect of claiming the privilege. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-3

(g) Instructions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-4

Rule 302. Privilege concerning mental examination of an accused . . . . . . . . . . . . III-4

(a) General rule. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-4

(b) Exceptions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-4

(c) Release of evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-4

(d) Noncompliance by the accused. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-4

(e) Procedure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-4

Rule 303. Degrading questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-4

Rule 304. Confessions and admissions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-4

(a) General rule. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-4

(b) Exceptions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-4

(c) Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-5

(d) Procedure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-5

(e) Burden of proof. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-5

(f) Defense evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-6

(g) Corroboration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-6

(h) Miscellaneous. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-6

Rule 305. Warnings about rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-6

(a) General rule. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-6

(b) Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-6

(c) Warnings concerning the accusation, right to remain silent, and use of statements. . . III-7

(d) Counsel rights and warnings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-7

(e) Presence of Counsel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-7

(f) Exercise of rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-7

(g) Waiver. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-7

(h) Nonmilitary interrogations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-8

Rule 306. Statements by one of several accused . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-8

Rule 311. Evidence obtained from unlawful searches and seizures . . . . . . . . . . . III-8

(a) General rule. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-8

(b) Exceptions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-8

(c) Nature of search or seizure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-9

(d) Motions to suppress and objections. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-9

(e) Burden of proof. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-9

(f) Defense evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-10

(g) Scope of motions and objections challenging probable cause. . . . . . . . . . . . . . . . . . . . . . III-10

(h) Objections to evidence seized unlawfully. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-10

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(i) Effect of guilty plea. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-10

Rule 312. Body views and intrusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-11

(a) General rule. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-11

(b) Visual examination of the body. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-11

(c) Intrusion into body cavities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-11

(d) Extraction of body fluids. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-11

(e) Other intrusive searches. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-11

(f) Intrusions for valid medical purposes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-11

(g) Medical qualifications. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-11

Rule 313. Inspections and inventories in the armed forces . . . . . . . . . . . . . . . . . . . III-12

(a) General rule. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-12

(b) Inspections. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-12

(c) Inventories. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-12

Rule 314. Searches not requiring probable cause . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-12

(a) General rule. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-12

(b) Border searches. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-12

(c) Searches upon entry to or exit from United States installations, aircraft, and vessels

abroad. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-12

(d) Searches of government property. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-12

(e) Consent searches. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-13

(f) Searches incident to a lawful stop. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-13

(g) Searches incident to a lawful apprehension. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-13

(h) Searches within jails, confinement facilities, or similar facilities. . . . . . . . . . . . . . . . . . . III-13

(i) Emergency searches to save life or for related purposes. . . . . . . . . . . . . . . . . . . . . . . . . . III-14

(j) Searches of open fields or woodlands. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-14

(k) Other searches. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-14

Rule 315. Probable cause searches . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-14

(a) General rule. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-14

(b) Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-14

(c) Scope of authorization. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-14

(d) Power to authorize. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-14

(e) Power to search. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-15

(f) Basis for Search authorizations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-15

(g) Exigencies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-15

(h) Execution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-15

Rule 316. Seizures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-16

(a) General rule. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-16

(b) Seizure of property. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-16

(c) Apprehension. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-16

(d) Seizure of property or evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-16

(e) Power to seize. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-16

(f) Other seizures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-16

Rule 317. Interception of wire and oral communications . . . . . . . . . . . . . . . . . . . . . . III-16

(a) General rule. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-16

(b) Authorization for judicial applications in the United States. . . . . . . . . . . . . . . . . . . . . . . III-16

(c) Regulations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-16

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Rule 321. Eyewitness identification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-17

(a) General rule. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-17

(b) Definition of “unlawful”. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-17

(c) Motions to suppress and objections. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-17

(d) Burden of proof. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-18

(e) Defense evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-18

(f) Rulings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-18

(g) Effect of guilty pleas. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-18

SECTION IV RELEVANCY AND ITS LIMITS

Rule 401. Definition of “relevant evidence” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-18

Rule 402. Relevant evidence general admissible; irrelevant evidence inadmissible III-19

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

waste of time . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-19

Rule 404. Character evidence not admissible to prove conduct; exceptions; other

crimes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-19

(a) Character evidence generally. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-19

(b) Other crimes, wrongs, or acts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-19

Rule 405. Methods of proving character . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-19

(a) Reputation or opinion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-19

(b) Specific instances of conduct. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-19

(c) Affidavits. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-19

(d) Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-19

Rule 406. Habit; routine practice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-19

Rule 407. Subsequent remedial measures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-20

Rule 408. Compromise and offer to compromise . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-20

Rule 409. Payment of medical and similar expenses . . . . . . . . . . . . . . . . . . . . . . . . . III-20

Rule 410. Inadmissibility of pleas, plea discussions, and related statements . . III-20

(a) In general. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-20

(b) Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-20

Rule 411. Liability insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-20

Rule 412. Sex offense cases; relevance of alleged victim’s sexual behavior or

sexual predisposition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-20

(a) Evidence generally inadmissible. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-20

(b) Exceptions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-21

(c) Procedure to determine admissibility. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-21

Rule 413. Evidence of similar crimes in sexual assault cases . . . . . . . . . . . . . . . . III-21

Rule 414. Evidence of similar crimes in child molestation cases . . . . . . . . . . . . . III-22

SECTION V PRIVILEGES

Rule 501. General rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-23

Rule 502. Lawyer-client privilege . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-23

(a) General rule of privilege. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-23

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(b) Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-23

(c) Who may claim the privilege. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-24

(d) Exceptions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-24

Rule 503. Communications to clergy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-24

(a) General rule of privilege. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-24

(b) Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-24

(c) Who may claim the privilege. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-24

Rule 504. Husband-wife privilege . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-25

(a) Spousal incapacity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-25

(b) Confidential communication made during marriage. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-25

(c) Exceptions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-25

(d) Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-25

Rule 505. Classified information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-25

(a) General rule of privilege. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-25

(b) Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-25

(c) Who may claim the privilege. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-26

(d) Action prior to referral of charges. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-26

(e) Pretrial session. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-26

(f) Action after referral of charges. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-26

(g) Disclosure of classified information to the accused. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-26

(h) Notice of the accused’s intention to disclose classified information. . . . . . . . . . . . . . . . III-27

(i) In camera proceedings for cases involving classified information. . . . . . . . . . . . . . . . . . . III-28

(j) Introduction of classified information. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-29

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

to courts-martial. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-29

Rule 506. Government information other than classified information . . . . . . . . . . III-29

(a) General rule of privilege. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-29

(b) Scope. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-29

(c) Who may claim the privilege. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-29

(d) Action prior to referral of charges. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-29

(e) Pretrial session. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-30

(f) Action after motion for disclosure of information. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-30

(g) Disclosure of government information to the accused. . . . . . . . . . . . . . . . . . . . . . . . . . . . III-30

(h) Prohibition against disclosure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-30

(i) In camera proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-30

(j) Appeals of orders and rulings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-31

(k) Introduction of government information subject to a claim of privilege. . . . . . . . . . . . . III-31

(l) Procedures to safeguard against compromise of government information disclosed to

courts-martial. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-32

Rule 507. Identity of informant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-32

(a) Rule of privilege. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-32

(b) Who may claim the privilege. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-32

(c) Exceptions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-32

(d) Procedures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-32

Rule 508. Political vote . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-33

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Rule 509. Deliberations of courts and juries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-33

Rule 510. Waiver of privilege by voluntary disclosure . . . . . . . . . . . . . . . . . . . . . . . . III-33

Rule 511. Privileged matter disclosed under compulsion or without opportunity to

claim privilege . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-33

Rule 512. Comment upon or inference from claim of privilege; instruction . . . . III-33

(a) Comment or inference not permitted. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-33

(b) Claiming privilege without knowledge of members. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-33

(c) Instruction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-33

Rule 513. Psychotherapist-patient privilege . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-33

(a) General rule of privilege. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-33

(b) Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-34

(c) Who may claim the privilege. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-34

(d) Exceptions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-34

(e) Procedure to determine admissibility of patient records or communications. . . . . . . . . . III-34

SECTION VI WITNESSES

Rule 601. General rule of competency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-35

Rule 602. Lack of personal knowledge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-35

Rule 603. Oath or affirmation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-35

Rule 604. Interpreters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-35

Rule 605. Competency of military judge as witness . . . . . . . . . . . . . . . . . . . . . . . . . . III-35

Rule 606. Competency of court member as witness . . . . . . . . . . . . . . . . . . . . . . . . . . III-35

(a) At the court-martial. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-35

(b) Inquiry into validity of findings or sentence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-35

Rule 607. Who may impeach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-36

Rule 608. Evidence of character, conduct, and bias of witness . . . . . . . . . . . . . . . III-36

(a) Opinion and reputation evidence of character. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-36

(b) Specific instances of conduct. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-36

(c) Evidence of bias. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-36

Rule 609. Impeachment by evidence of conviction of crime . . . . . . . . . . . . . . . . . . III-36

(a) General rule. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-36

(b) Time limit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-36

(c) Effect of pardon, annulment, or certificate of rehabilitation. . . . . . . . . . . . . . . . . . . . . . . III-36

(d) Juvenile adjudications. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-36

(e) Pendency of appeal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-36

(f) Definition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-37

Rule 610. Religious beliefs or opinions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-37

Rule 611. Mode and order of interrogation and presentation . . . . . . . . . . . . . . . . . . III-37

(a) Control by the military judge. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-37

(b) Scope of cross-examination. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-37

(c) Leading questions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-37

(d) Remote live testimony of a child. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-37

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Rule 612. Writing used to refresh memory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-37

Rule 613. Prior statements of witnesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-38

(a) Examining witness concerning prior statement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-38

(b) Extrinsic evidence of prior inconsistent statement of witness. . . . . . . . . . . . . . . . . . . . . . III-38

Rule 614. Calling and interrogation of witnesses by the court-martial . . . . . . . . . III-38

(a) Calling by the court-martial. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-38

(b) Interrogation by the court-martial. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-38

(c) Objections. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-38

Rule 615. Exclusion of witnesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-38

SECTION VII OPINIONS AND EXPERT TESTIMONY

Rule 701. Opinion testimony by lay witnesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-38

Rule 702. Testimony by experts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-38

Rule 703. Bases of opinion testimony by experts . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-39

Rule 704. Opinion on ultimate issue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-39

Rule 705. Disclosure of facts or data underlying expert opinion . . . . . . . . . . . . . . III-39

Rule 706. Court appointed experts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-39

(a) Appointment and compensation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-39

(b) Disclosure of employment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-39

(c) Accused’s experts of own selection. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-39

Rule 707. Polygraph Examinations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-39

SECTION VIII HEARSAY

Rule 801. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-39

(a) Statement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-39

(b) Declarant. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-39

(c) Hearsay. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-39

(d) Statements which are not hearsay. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-39

Rule 802. Hearsay rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-40

Rule 803. Hearsay exceptions; availability of declarant immaterial . . . . . . . . . . . . III-40

(1) Present sense impression. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-40

(2) Excited utterance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-40

(3) Then existing mental, emotional, or physical condition. . . . . . . . . . . . . . . . . . . . . . . . . . . III-40

(4) Statements for purposes of medical diagnosis or treatment. . . . . . . . . . . . . . . . . . . . . . . . III-40

(5) Recorded recollection. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-40

(6) Records of regularly conducted activity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-40

(7) Absence of entry in records kept in accordance with the provisions of paragraph (6). III-40

(8) Public records and reports. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-41

(9) Records of vital statistics. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-41

(10) Absence of public record or entry. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-41

(11) Records of religious organizations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-41

(12) Marriage, baptismal, and similar certificates. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-41

(13) Family records. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-41

(14) Records of documents affecting an interest in property. . . . . . . . . . . . . . . . . . . . . . . . . . III-41

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(15) Statements in documents affecting an interest in property. . . . . . . . . . . . . . . . . . . . . . . III-41

(16) Statements in ancient documents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-41

(17) Market reports, commercial publications. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-41

(18) Learned treatises. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-41

(19) Reputation concerning personal or family history. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-42

(20) Reputation concerning boundaries or general history. . . . . . . . . . . . . . . . . . . . . . . . . . . . III-42

(21) Reputation as to character. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-42

(22) Judgment of previous conviction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-42

(23) Judgment as to personal, family or general history, or boundaries. . . . . . . . . . . . . . . . III-42

(24) Other exceptions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-42

Rule 804. Hearsay exceptions; declarant unavailable . . . . . . . . . . . . . . . . . . . . . . . . . . III-42

(a) Definitions of unavailability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-42

(b) Hearsay exceptions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-42

Rule 805. Hearsay within hearsay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-43

Rule 806. Attacking and supporting credibility of declarant . . . . . . . . . . . . . . . . . . . III-43

Rule 807. Residual exception. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-43

SECTION IX AUTHENTICATION AND IDENTIFICATION

Rule 901. Requirement of authentication or identification . . . . . . . . . . . . . . . . . . . . . III-43

(a) General provision. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-43

(b) Illustrations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-43

Rule 902. Self-authentication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-44

(1) Domestic public documents under seal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-44

(2) Domestic public documents not under seal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-44

(3) Foreign public documents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-44

(4) Certified copies of public records. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-44

(4a) Documents or records of the United States accompanied by attesting certificates. . . . III-45

(5) Official publications. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-45

(6) Newspapers and periodicals. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-45

(7) Trade inscriptions and the like. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-45

(8) Acknowledged documents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-45

(9) Commercial paper and related documents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-45

(10) Presumptions under Acts of Congress and regulations. . . . . . . . . . . . . . . . . . . . . . . . . . . III-45

(11) Certified domestic records of regularly conducted activity. . . . . . . . . . . . . . . . . . . . . . . III-45

Rule 903. Subscribing witness’ testimony unnecessary . . . . . . . . . . . . . . . . . . . . . . . III-45

SECTION X CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS

Rule 1001. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-45

(1) Writings and recordings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-45

(2) Photographs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-45

(3) Original. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-45

(4) Duplicate. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-45

Rule 1002. Requirement of an original . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-46

Rule 1003. Admissibility of duplicates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-46

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Rule 1004. Admissibility of other evidence of contents . . . . . . . . . . . . . . . . . . . . . . . III-46

(1) Originals lost or destroyed. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-46

(2) Original not obtainable. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-46

(3) Original in possession of opponent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-46

(4) Collateral matters. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-46

Rule 1005. Public records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-46

Rule 1006. Summaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-46

Rule 1007. Testimony or written admission of party . . . . . . . . . . . . . . . . . . . . . . . . . . III-46

Rule 1008. Functions of military judge and members . . . . . . . . . . . . . . . . . . . . . . . . . III-46

SECTION XI MISCELLANEOUS RULES

Rule 1101. Applicability of rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-46

(a) Rules applicable. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-46

(b) Rules of privilege. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-47

(c) Rules relaxed. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-47

(d) Rules inapplicable. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-47

Rule 1102. Amendments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-47

Rule 1103. Title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-47

PART IV PUNITIVE ARTICLES (STATUTORY TEXT OF EACH ARTICLE IS IN

BOLD)

1. Article 77—Principals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-1

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-1

b. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-1

2. Article 78—Accessory after the fact . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-2

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-2

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-2

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-2

d. Lesser included offense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-3

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-3

f. Sample specification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-3

3. Article 79—Conviction of lesser included offenses . . . . . . . . . . . . . . . . . . . . . . . . . IV-3

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-3

b. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-3

4. Article 80—Attempts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-4

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-4

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-4

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-4

d. Lesser included offenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-5

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-5

f. Sample specification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-5

5. Article 81—Conspiracy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-5

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-5

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-5

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c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-5

d. Lesser included offense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-6

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-6

f. Sample specification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-6

6. Article 82—Solicitation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-7

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-7

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-7

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-7

d. Lesser included offense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-7

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-7

f. Sample specifications. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-7

7. Article 83—Fraudulent enlistment, appointment, or separation . . . . . . . . . . . . . . IV-8

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-8

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-8

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-8

d. Lesser included offense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-9

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-9

f. Sample specifications. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-9

8. Article 84—Effecting unlawful enlistment, appointment, or separation . . . . . . IV-9

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-9

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-9

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-9

d. Lesser included offense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-9

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-9

f. Sample specification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-9

9. Article 85—Desertion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-9

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-9

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-10

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-10

d. Lesser included offense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-12

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-12

f. Sample specifications. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-12

10. Article 86—Absence without leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-12

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-12

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-12

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-13

d. Lesser included offense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-15

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-15

f. Sample specifications. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-15

11. Article 87—Missing movement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-15

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-15

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-15

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-15

d. Lesser included offenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-16

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-16

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f. Sample specification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-16

12. Article 88—Contempt toward officials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-16

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-16

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-17

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-17

d. Lesser included offense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-17

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-17

f. Sample specification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-17

13. Article 89—Disrespect toward a superior commissioned officer . . . . . . . . . . . IV-17

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-17

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-17

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-17

d. Lesser included offenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-18

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-18

f. Sample specification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-18

14. Article 90—Assaulting or willfully disobeying superior commissioned officer IV-18

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-18

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-18

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-19

d. Lesser included offenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-20

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-20

f. Sample specifications. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-20

15. Article 91—Insubordinate conduct toward warrant officer, noncommissioned

officer, or petty officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-21

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-21

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-21

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-22

d. Lesser included offenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-22

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-22

f. Sample specifications. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-23

16. Article 92—Failure to obey order or regulation . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-23

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-23

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-23

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-23

d. Lesser included offense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-24

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-24

f. Sample specifications. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-25

17. Article 93—Cruelty and maltreatment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-25

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-25

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-25

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-25

d. Lesser included offense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-26

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-26

f. Sample specification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-26

18. Article 94—Mutiny and sedition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-26

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a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-26

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-26

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-26

d. Lesser included offenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-27

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-27

f. Sample specifications. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-27

19. Article 95—Resistance, flight, breach of arrest, and escape . . . . . . . . . . . . . . . IV-28

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-28

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-28

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-28

d. Lesser included offenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-30

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-30

f. Sample specifications. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-30

20. Article 96—Releasing prisoner without proper authority . . . . . . . . . . . . . . . . . . . IV-31

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-31

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-31

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-31

d. Lesser included offenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-31

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-31

f. Sample specifications. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-32

21. Article 97—Unlawful detention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-32

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-32

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-32

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-32

d. Lesser included offense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-32

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-32

f. Sample specification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-32

22. Article 98—Noncompliance with procedural rules . . . . . . . . . . . . . . . . . . . . . . . . . IV-32

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-32

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-32

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-32

d. Lesser included offense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-33

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-33

f. Sample specifications. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-33

23. Article 99—Misbehavior before the enemy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-33

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-33

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-33

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-34

d. Lesser included offenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-35

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-36

f. Sample specifications. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-36

24. Article 100—Subordinate compelling surrender . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-36

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-36

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-37

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-37

d. Lesser included offense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-37

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e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-37

f. Sample specifications. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-37

25. Article 101—Improper use of countersign . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-38

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-38

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-38

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-38

d. Lesser included offense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-38

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-38

f. Sample specifications. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-38

26. Article 102—Forcing a safeguard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-38

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-38

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-39

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-39

d. Lesser included offense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-39

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-39

f. Sample specification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-39

27. Article 103—Captured or abandoned property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-39

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-39

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-39

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-40

d. Lesser included offense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-40

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-40

f. Sample specifications. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-40

28. Article 104—Aiding the enemy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-41

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-41

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-41

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-41

d. Lesser included offense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-42

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-42

f. Sample specifications. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-42

29. Article 105—Misconduct as a prisoner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-42

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-42

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-42

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-43

d. Lesser included offense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-43

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-43

f. Sample specifications. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-43

30. Article 106—Spies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-43

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-43

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-44

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-44

d. Lesser included offenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-44

e. Mandatory punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-44

f. Sample specification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-44

30a. Article 106a—Espionage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-44

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a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-44

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-45

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-45

d. Lesser included offense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-46

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-46

f. Sample specification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-46

31. Article 107—False official statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-46

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-46

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-46

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-46

d. Lesser included offense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-47

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-47

f. Sample specification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-47

32. Article 108—Military property of the United States—sale, loss, damage,

destruction, or wrongful disposition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-47

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-47

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-47

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-47

d. Lesser included offenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-48

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-48

f. Sample specifications. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-49

33. Article 109—Property other than military property of the United States—waste,

spoilage, or destruction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-49

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-49

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-49

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-49

d. Lesser included offense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-50

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-50

f. Sample specification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-50

34. Article 110—Improper hazarding of vessel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-50

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-50

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-50

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-50

d. Lesser included offenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-51

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-51

f. Sample specifications. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-51

35. Article 111–Drunken or reckless operation of vehicle, aircraft, or vessel . . IV-52

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-52

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-52

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-52

d. Lesser included offense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-53

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-53

f. Sample specification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-54

36. Article 112—Drunk on duty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-54

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-54

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-54

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c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-54

d. Lesser included offense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-54

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-54

f. Sample specification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-54

37. Article 112a—Wrongful use, possession, etc., of controlled substances . . . IV-55

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-55

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-55

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-55

d. Lesser included offenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-56

e. Maximum punishments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-57

f. Sample specifications. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-57

38. Article 113—Misbehavior of sentinel or lookout . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-58

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-58

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-58

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-58

d. Lesser included offenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-58

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-59

f. Sample specification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-59

39. Article 114—Dueling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-59

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-59

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-59

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-59

d. Lesser included offense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-59

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-59

f. Sample specifications. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-59

40. Article 115—Malingering . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-60

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-60

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-60

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-60

d. Lesser included offenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-60

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-60

f. Sample specification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-60

41. Article 116—Riot or breach of peace . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-61

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-61

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-61

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-61

d. Lesser included offenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-61

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-61

f. Sample specifications. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-61

42. Article 117—Provoking speeches or gestures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-62

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-62

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-62

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-62

d. Lesser included offenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-62

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-62

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f. Sample specification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-62

43. Article 118—Murder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-62

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-62

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-62

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-63

d. Lesser included offenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-64

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-64

f. Sample specification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-64

44. Article 119—Manslaughter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-64

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-64

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-64

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-65

d. Lesser included offenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-65

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-65

f. Sample specifications. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-66

44a. Article 119a.--Death or injury of an unborn child . . . . . . . . . . . . . . . . . . . . . . . . IV-66

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-66

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-66

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-67

d. Lesser included offenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-67

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-68

f. Sample specifications. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-68

45. Article 120—Rape, sexual assault, and other sexual misconduct . . . . . . . . . . IV-68

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-68

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-72

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-76

d. Lesser included offenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-76

e. Additional lesser included offenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-77

f. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-78

g. Sample specifications. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-78

45a. Article 120a—Stalking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-84

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-84

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-84

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-84

d. Lesser included offenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-84

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-84

f. Sample Specification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-84

46. Article 121—Larceny and wrongful appropriation . . . . . . . . . . . . . . . . . . . . . . . . . . IV-84

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-84

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-85

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-85

d. Lesser included offenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-88

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-88

f. Sample specifications. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-89

47. Article 122—Robbery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-89

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a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-89

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-89

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-89

d. Lesser included offenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-90

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-90

f. Sample specifications. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-90

48. Article 123—Forgery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-90

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-90

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-90

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-90

d. Lesser included offense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-91

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-91

f. Sample specifications. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-91

49. Article 123a—Making, drawing, or uttering check, draft, or order without

sufficient funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-92

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-92

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-92

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-93

d. Lesser included offenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-94

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-94

f. Sample specifications. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-94

50. Article 124—Maiming . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-95

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-95

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-95

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-95

d. Lesser included offenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-95

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-95

f. Sample specification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-95

51. Article 125—Sodomy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-96

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-96

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-96

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-96

d. Lesser included offenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-96

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-96

f. Sample specification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-96

52. Article 126—Arson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-96

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-96

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-96

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-97

d. Lesser included offenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-97

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-97

f. Sample specifications. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-97

53. Article 127—Extortion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-98

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-98

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-98

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-98

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d. Lesser included offenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-98

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-98

f. Sample specification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-98

54. Article 128—Assault . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-98

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-98

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-98

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-99

d. Lesser included offenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-102

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-102

f. Sample specifications. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-103

55. Article 129—Burglary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-103

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-103

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-103

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-104

d. Lesser included offenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-104

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-104

f. Sample specification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-105

56. Article 130—Housebreaking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-105

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-105

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-105

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-105

d. Lesser included offenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-105

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-105

f. Sample specification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-105

57. Article 131—Perjury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-105

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-105

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-105

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-106

d. Lesser included offense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-107

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-107

f. Sample specifications. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-107

58. Article 132—Frauds against the United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-107

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-107

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-107

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-108

d. Lesser included offense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-109

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-109

f. Sample specifications. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-109

59. Article 133—Conduct unbecoming an officer and gentleman . . . . . . . . . . . . . . IV-111

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-111

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-111

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-111

d. Lesser included offense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-111

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-111

f. Sample specifications. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-111

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60. Article 134—General article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-111

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-111

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-112

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-112

61. Article 134—(Abusing public animal) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-114

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-114

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-114

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-114

d. Lesser included offenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-114

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-114

f. Sample specification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-114

62. Article 134—(Adultery) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-114

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-114

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-114

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-114

d. Lesser included offense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-115

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-115

f. Sample specification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-115

63. Deleted – see Appendix 27. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-115

64. Article 134—(Assault—with intent to commit murder, voluntary manslaughter,

rape, robbery, sodomy, arson, burglary, or housebreaking) . . . . . . . . . . . . . . . . . . IV-115

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-115

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-115

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-115

d. Lesser included offenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-116

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-116

f. Sample specification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-116

65. Article 134—(Bigamy) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-116

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-116

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-116

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-116

d. Lesser included offense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-116

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-116

f. Sample specification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-116

66. Article 134—(Bribery and graft) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-116

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-116

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-116

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-117

d. Lesser included offenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-117

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-117

f. Sample specifications. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-117

67. Article 134—(Burning with intent to defraud) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-117

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-117

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-117

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-118

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d. Lesser included offense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-118

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-118

f. Sample specification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-118

68. Article 134—(Check, worthless, making and uttering—by dishonorably failing

to maintain funds) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-118

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-118

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-118

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-118

d. Lesser included offenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-118

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-118

f. Sample specification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-118

68a. Article 134—(Child endangerment) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-118

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-118

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-118

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-118

d. Lesser included offenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-119

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-119

f. Sample specification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-119

69. Article 134—(Cohabitation, wrongful) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-120

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-120

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-120

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-120

d. Lesser included offense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-120

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-120

f. Sample specification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-120

70. Article 134—(Correctional custody—offenses against) . . . . . . . . . . . . . . . . . . . . . IV-120

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-120

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-120

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-120

d. Lesser included offense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-121

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-121

f. Sample specifications. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-121

71. Article 134—(Debt, dishonorably failing to pay) . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-121

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-121

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-121

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-121

d. Lesser included offenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-121

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-121

f. Sample specification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-121

72. Article 134—(Disloyal statements) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-121

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-121

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-121

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-122

d. Lesser included offense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-122

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-122

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f. Sample specification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-122

73. Article 134—(Disorderly conduct, drunkenness) . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-122

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-122

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-122

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-122

d. Lesser included offense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-122

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-122

f. Sample specification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-122

74. Article 134—(Drinking liquor with prisoner) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-123

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-123

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-123

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-123

d. Lesser included offense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-123

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-123

f. Sample specification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-123

75. Article 134—(Drunk prisoner) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-123

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-123

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-123

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-123

d. Lesser included offenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-123

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-123

f. Sample specification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-123

76. Article 134—(Drunkenness—incapacitation for performance of duties through

prior wrongful indulgence in intoxicating liquor or any drug) . . . . . . . . . . . . . . . . IV-123

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-123

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-123

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-123

d. Lesser included offense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-123

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-123

f. Sample specification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-123

77. Article 134—(False or unauthorized pass offenses) . . . . . . . . . . . . . . . . . . . . . . . IV-124

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-124

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-124

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-124

d. Lesser included offenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-124

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-124

f. Sample specifications. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-124

78. Article 134—(False pretenses, obtaining services under) . . . . . . . . . . . . . . . . . . IV-125

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-125

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-125

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-125

d. Lesser included offense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-125

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-125

f. Sample specification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-125

79. Article 134—(False swearing) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-125

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a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-125

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-125

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-125

d. Lesser included offense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-126

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-126

f. Sample specification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-126

80. Article 134—(Firearm, discharging—through negligence) . . . . . . . . . . . . . . . . . . . IV-126

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-126

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-126

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-126

d. Lesser included offenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-126

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-126

f. Sample specification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-126

81. Article 134—(Firearm, discharging—willfully, under such circumstances as to

endanger human life) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-126

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-126

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-126

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-126

d. Lesser included offenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-126

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-126

f. Sample specification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-126

82. Article 134—(Fleeing scene of accident) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-127

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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

83. Article 134—(Fraternization) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-127

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-127

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-127

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-127

d. Lesser included offense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-128

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-128

f. Sample specification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-128

84. Article 134—(Gambling with subordinate) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-128

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-128

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-128

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-128

d. Lesser included offense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-128

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-128

f. Sample specification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-128

85. Article 134—(Homicide, negligent) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-128

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-128

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-128

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-128

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d. Lesser included offenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-129

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-129

f. Sample specification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-129

86. Article 134—(Impersonating a commissioned, warrant, noncommissioned, or

petty officer, or an agent or official) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-129

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-129

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-129

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-129

d. Lesser included offense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-129

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-129

f. Sample specification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-129

87. Deleted – see Appendix 27. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-129

88. Deleted – see Appendix 27. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-129

89. Article 134—(Indecent language) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-129

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-129

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-129

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-130

d. Lesser included offenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-130

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-130

f. Sample specification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-130

90. Deleted – see Appendix 27. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-130

91. Article 134—(Jumping from vessel into the water) . . . . . . . . . . . . . . . . . . . . . . . . IV-130

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-130

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-130

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-130

d. Lesser included offense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-130

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-130

f. Sample specification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-130

92. Article 134—(Kidnapping) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-130

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-130

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-130

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-130

d. Lesser included offense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-131

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-131

f. Sample specification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-131

93. Article 134—(Mail: taking, opening, secreting, destroying, or stealing) . . . . . IV-131

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-131

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-131

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-131

d. Lesser included offenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-131

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-131

f. Sample specifications. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-131

94. Article 134—(Mails: depositing or causing to be deposited obscene matters in)

IV-132

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-132

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b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-132

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-132

d. Lesser included offense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-132

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-132

f. Sample specification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-132

95. Article 134—(Misprision of serious offense) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-132

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-132

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-132

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-132

d. Lesser included offense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-133

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-133

f. Sample specification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-133

96. Article 134—(Obstructing justice) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-133

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-133

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-133

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-133

d. Lesser included offenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-133

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-133

f. Sample specification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-133

96a. Art 134 (Wrongful interference with an adverse administrative proceeding) IV-133

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-133

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-133

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-134

d. Lesser included offenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-134

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-134

f. Sample specification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-134

97. Article 134—(Pandering and prostitution) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-134

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-134

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-134

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-135

d. Lesser included offense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-135

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-135

f. Sample specifications. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-135

97a. Article 134—(Parole, Violation of) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-135

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-135

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-135

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-135

d. Lesser included offense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-136

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-136

f. Sample specifications. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-136

98. Article 134—(Perjury: subornation of) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-136

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-136

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-136

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-136

d. Lesser included offense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-136

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-136

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f. Sample specification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-136

99. Article 134—(Public record: altering, concealing, removing, mutilating,

obliterating, or destroying) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-136

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-136

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-136

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-136

d. Lesser included offense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-136

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-136

f. Sample specification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-136

100. Article 134—(Quarantine: medical, breaking) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-137

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-137

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-137

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-137

d. Lesser included offenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-137

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-137

f. Sample specification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-137

100a. Article 134—(Reckless endangerment) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-137

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-137

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-137

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-137

d. Lesser included offenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-137

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-137

f. Sample specification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-137

101. Article 134—(Requesting commission of an offense) . . . . . . . . . . . . . . . . . . . . . IV-138

102. Article 134—(Restriction, breaking) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-138

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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

103. Article 134—(Seizure: destruction, removal, or disposal of property to

prevent) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-138

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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

103a. Article 134—(Self-injury without intent to avoid service) . . . . . . . . . . . . . . . . IV-138

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-138

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-138

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-139

d. Lesser included offense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-139

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-139

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f. Sample specification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-139

104. Article 134—(Sentinel or lookout: offenses against or by) . . . . . . . . . . . . . . . IV-139

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-139

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-139

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-139

d. Lesser included offenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-140

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-140

f. Sample specifications. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-140

105. Article 134—(Soliciting another to commit an offense) . . . . . . . . . . . . . . . . . . . IV-140

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-140

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-140

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-140

d. Lesser included offenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-140

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-140

f. Sample specification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-140

106. Article 134—(Stolen property: knowingly receiving, buying, concealing) . . IV-140

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-140

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-141

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-141

d. Lesser included offense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-141

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-141

f. Sample specification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-141

107. Article 134—(Straggling) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-141

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-141

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-141

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-141

d. Lesser included offense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-141

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-141

f. Sample specification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-141

108. Article 134—(Testify: wrongful refusal) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-141

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-141

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-141

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-141

d. Lesser included offenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-142

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-142

f. Sample specification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-142

109. Article 134—(Threat or hoax designed or intended to cause panic or public

fear) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-142

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-142

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-142

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-142

d. Lesser included offenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-143

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-143

f. Sample specifications. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-143

110. Article 134—(Threat, communicating) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-143

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a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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

111. Article 134—(Unlawful entry) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-144

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-144

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-144

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-144

d. Lesser included offense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-144

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-144

f. Sample specification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-144

112. Article 134—(Weapon: concealed, carrying) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-144

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-144

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-144

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-144

d. Lesser included offense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-144

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-144

f. Sample specification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-144

113. Article 134—(Wearing unauthorized insignia, decoration, badge, ribbon,

device, or lapel button) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-144

a. Text of statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-144

b. Elements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-144

c. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-145

d. Lesser included offense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-145

e. Maximum punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-145

f. Sample specification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV-145

PART V NONJUDICIAL PUNISHMENT PROCEDURE

1. General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V-1

a. Authority. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V-1

b. Nature. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V-1

c. Purpose. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V-1

d. Policy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V-1

e. Minor offenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V-1

f. Limitations on nonjudicial punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V-1

g. Relationship of nonjudicial punishment to administrative corrective measures. . . . . . . . . V-2

h. Applicable standards. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V-2

i. Effect of errors. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V-2

2. Who may impose nonjudicial punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V-2

a. Commander. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V-2

b. Officer in charge. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V-2

c. Principal assistant. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V-2

3. Right to demand trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V-2

4. Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V-2

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a. Notice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V-2

b. Decision by servicemember. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V-3

c. Nonjudicial punishment accepted. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V-3

d. Nonjudicial punishment based on record of court of inquiry or other investigative body. V-4

5. Punishments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V-4

a. General limitations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V-4

b. Authorized maximum punishments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V-4

c. Nature of punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V-5

d. Limitations on combination of punishments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V-6

e. Punishments imposed on reserve component personnel while on inactive-duty training. V-6

f. Punishments imposed on reserve component personnel when ordered to active duty for

disciplinary purposes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V-7

g. Effective date and execution of punishments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V-7

6. Suspension, mitigation, remission, and setting aside . . . . . . . . . . . . . . . . . . . . . . . V-7

a. Suspension. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V-7

b. Mitigation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V-7

c. Remission. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V-8

d. Setting aside. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V-8

7. Appeals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V-8

a. In general. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V-8

b. Who may act on appeal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V-8

c. Format of appeal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V-8

d. Time limit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V-8

e. Legal review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V-8

f. Action by superior authority. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V-9

8. Records of nonjudicial punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V-9

Appendices

1. Constitution of the United States—1787

2. Uniform Code of Military Justice

3. DoD Directive 5525.7

3.1 Memorandum of Understanding Between the Departments of Justice and Transportation (Coast Guard)

Relating to the Investigations and Prosecution of Crimes Over Which the Two Departments Have

Concurrent Jurisdiction

4. Charge Sheet (DD FORM 458)

5. Investigating Officer Report (DD FORM 457)

6. Forms for Orders Convening Courts-Martial

7. Subpoena (DD FORM 453)

8. Guide for General and Special Courts-Martial

9. Guide for Summary Courts-Martial

10. Forms of Findings

11. Forms of Sentences xliii

MCM 2008

Page
12. Maximum Punishment Chart

13. Guide for Preparation of Record of Trial by General Court-Martial and by Special Court-Martial When

a Verbatim Record is Not Required

14. Guide for Preparation of Record of Trial by General Court-Martial and by Special Court-Martial When

a Verbatim Record is Required

15. Record of Trial by Summary Court-Martial (DD Form 2329)

16. Forms for Action

17. Forms for Court-Martial Orders

18. Report of Proceedings to Vacate Suspension of a General Court-Martial or of a Special Court-Martial

Sentence Including a Bad-Conduct Discharge or Confinement for One Year Under Article 72,

UCMJ, and R.C.M. 1109 (DD Form 455)

19. Waiver/Withdrawal of Appellate Rights in General and Special Courts-Martial Subject to Review by a

Court of Military Review (DD Form 2330)

20. Waiver/Withdrawal of Appellate Rights in General Courts-Martial Subject to Examination in the Office

of the Judge Advocate General (DD Form 2331)

21. Analysis of Rules for Courts-Martial

22. Analysis of the Military Rules of Evidence

23. Analysis of Punitive Articles

24. Analysis of Nonjudicial Punishment Procedure

25. Historical Executive Orders

26. The Joint Service Committee on Military Justice (JSC)

27. Punitive Articles Applicable to Sexual Assault Offenses Committed Prior to 1 October 2007

xliv

MCM 2008
PART I

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 territory or a portion of its

territory through its military forces as necessity may

require. (Martial law).

( 3 ) A b e l l i g e r e n t o c c u p y i n g e n e m y t e r r i t o r y .

(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 II, III, 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 procedures 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 ) N o n j u d i c i a l p u n i s h m e n t p r o c e e d i n g s o f 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 aut h o r i t y o f m i l i t a r y c o m m a n d e r s . M i l i t a r y l a w i n -

cludes jurisdiction exercised by courts-martial and

t h e j u r i s d i c t i o n e x e r c i s e d b y c o m m a n d e r s w i t h

respect to nonjudicial punishment. The purpose of

military law is to promote justice, to assist in maint a i n i n g g o o d o r d e r a n d d i s c i p l i n e i n t h e a r m e d

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 (Part I–V). This

Manual shall be applied consistent with the purpose

of military law.

The Manual shall be identified as “Manual for

Courts-Martial, United States (2007 edition).” Any

amendments to the Manual made by Executive Order shall be identified as “2006” Amendments to the

Manual for Courts-Martial, United States, “2006”

being the year the Executive Order was signed.

The Department of Defense Joint Service Committee (JSC) on Military Justice reviews the Manual

for Courts-Martial and proposes amendments to the

D e p a r t m e n t o f D e f e n s e f o r c o n s i d e r a t i o n b y t h e

President on an annual basis. In conducting its annual review, the JSC is guided by DoD Directive

5 5 0 0 . 1 7 , “ T h e R o l e s a n d R e s p o n s i b i l i t i e s o f t h e

Joint Service Committee (JSC) on Military Justice.”

DoD Directive 5500.17 includes provisions allowing

public participation in the annual review process.

Discussion

The Department of Defense, in conjunction with the Departm e n t o f H o m e l a n d S e c u r i t y , h a s p u b l i s h e d s u p p l e m e n t a r y

materials to accompany the Manual for Courts-Martial. These

materials consist of a Discussion (accompanying the Preamble,

the Rules for Courts-Martial, and the Punitive Articles), an Analysis, and various appendices. These supplementary materials do

not constitute the official views of the Department of Defense, the

Department of Homeland Security, the Department of Justice, the

military departments, the United States Court of Appeals for the

Armed Forces, or any other authority of the Government of the

United States, and they do not constitute rules. Cf., for example, 5

U.S.C.§ 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

I-1
United States whether or not included in the definition of “agency” in 5 U.S.C. §551(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 courtsmartial) which are based on sources of authority independent of

the supplementary materials.

The 1995 amendment to paragraph 4 of the Preamble is

intended to eliminate the practice of identifying the Manual for

Courts-Martial, United States, by a particular year. As long as the

Manual was published in its entirety sporadically (e.g., 1917,

1921, 1928, 1949, 1951, 1969 and 1984), with amendments to it

published piecemeal, it was logical to identify the Manual by the

calendar year of publication, with periodic amendments identified

as “Changes” to the Manual. The more frequent publication of a

new edition of the Manual, however, means that it is more appropriately identified by the calendar year of edition. Amendments

made in a particular calendar year will be identified by publishing

the relevant Executive order containing those amendments in its

entirety in a Manual appendix.

The amendment to paragraph 4 of the Preamble is intended

to address the possibility of more frequent amendments to the

Manual and the arrival of the 21st century. In the event that

multiple editions of the Manual are published in the same year,

the numbering and lettering of the edition should match that of

the most recent Executive Order included in the publication.

I-2

¶4.
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

o f M i l i t a r y J u s t i c e u n l e s s t h e c o n t e x t i n d i c a t e s

otherwise.

(2) “Capital case” means a general court-martial to

which a capital offense has been referred with an

instruction that the case be treated as capital, 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 ) “ C o u r t - m a r t i a l ” i n c l u d e s , d e p e n d i n g o n t h e

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);

(C) The military judge when a request for trial by

m i l i t a r y j u d g e a l o n e h a s b e e n a p p r o v e d u n d e r

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

m a t e r i a l s , f u z e s ( o t h e r t h a n e l e c t r i c a l c i r c u i t

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

844(j).

( 1 2 ) “ F i r e a r m ” m e a n s a n y w e a p o n w h i c h i s d e -

II-1
signed to or may be readily converted to expel any

projectile by the action of an explosive.

(13) “Joint” in connection with military organizat i o n c o n n o t e s a c t i v i t i e s , o p e r a t i o n s , o r g a n i z a t i o n s ,

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 counsel representing the United States, and agents of the trial counsel

w h e n a c t i n g o n b e h a l f o f t h e t r i a l c o u n s e l w i t h

respect to the court-martial in question.

(17) “Staff judge advocate” means a judge advocate

so designated in Army, Air Force, or Marine Corps,

and means the principal legal advisor of a command

i n t h e N a v y a n d C o a s t G u a r d w h o i s a j u d g e

advocate.

(18) “sua sponte” means that the person involved

acts on that person’s initiative, without the need for

a request, motion, or application.

( 1 9 ) “ W a r , t i m e o f . ” F o r p u r p o s e o f 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

e x i s t e n c e o f h o s t i l i t i e s w a r r a n t s a f i n d i n g t h a t a

“ t i m e o f w a r ” e x i s t s f o r p u r p o s e s o f 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. §§ 1 through 5, 10 U.S.C. § 101, and 10 U.S.C. § 801

(Article 1) are set forth below.

1 U.S.C. § 1. Words denoting number, gender, and so forth.

In determining the meaning of any Act of Congress, unless

the context indicates otherwise—

words importing the singular include and apply 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;

t h e w o r d s “ i n s a n e ” a n d “ i n s a n e p e r s o n ” a n d

“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.

§ 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.

§ 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.

§ 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.

§ 5. “Company” or “association” as including successors

and assigns.

The word “company” or ldquo;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. § 101. Definitions

In addition to the definitions in sections 1-5 of title 1, 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

II-2

R.C.M. 103(12)
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 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 ) t h e S e c r e t a r y o f H o m e l a n d S e c u r i t y , w i t h

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 1, 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 officer.

(15) “Commissioned officer” includes a commissioned

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 enlisted

grade.

(18) “Grade” means a step or degree, in a graduated

scale of office or military rank that is established and designated

as a grade by law or regulation.

( 1 9 ) “ R a n k ” m e a n s t h e o r d e r o f p r e c e d e n c e a m o n g

members of the armed forces.

[Definitions established in clauses (18) and (19) post-date the

enactment of the code and, as a result, differ from usage of the

same terms in the code and current and prior Manual provisions.

See Articles 1(5) and 25(d)(1); R.C.M. 1003(c)(2); paragraphs

13c(1), 83c(2), and 84c, Part IV, MCM, 1984. MCM 1951 referred to officer personnel by ’rank’ and enlisted personnel by

“grade.” See paragraphs 4c, 16b, 126d, 126i, and 168, MCM,

1951. “Rank” as defined in 10 U.S.C. § 101, clause (19) above,

refers to the MCM, 1951 provision regarding “lineal precedence,

numbers, and seniority.” Paragraph 126i, MCM, 1951; see also

paragraph 126i, MCM, 1969 (Rev). Except where lineal position

or seniority is clearly intended, rank, as commonly and traditionally used, and grade refer to the current definition of “grade.”]

(20) “Rating” 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).

[Note: The definitions in clauses (3), (15), (18)-(21), (23)-(30),

and (31)-(33) reflect the adoption of terminology which, though

undefined in the source statutes restated in this title, represents

the closest practicable approximation of the ways in which the

terms defined have been most commonly used. A choice has been

made where established uses conflict.]

(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

II-3

R.C.M. 103(20)
“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 ) s p e c i a l a d d i t i o n a l d u t i e s a u t h o r i z e d f o r R e -

serves 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

office 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 the 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. § 801. Article 1. Definitions In this chapter:

( 1 ) “ J u d g e A d v o c a t e G e n e r a l ” m e a n s , s e v e r a l l y , t h e

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 Homeland Security.

(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).]

(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.

(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.

(14) “Classified information” (A) means any information or material that has been determined by an official of the

United States pursuant to law, an Executive Order, or regulation

to require protection against unauthorized disclosure for reasons

of national security, and (B) any restricted data, as defined in

section 2014(y) of title 42, United States Code.

(15) “National security” means the national defense and

foreign relations of the United States.

Rule 104. Unlawful command influence

(a) General prohibitions.

(1) Convening authorities and commanders. No

c o n v e n i n g a u t h o r i t y o r c o m m a n d e r m a y c e n s u r e ,

reprimand, or admonish a court-martial or other mili t a r y t r i b u n a l o r a n y m e m b e r , m i l i t a r y j u d g e , o r

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 courtmartial 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

II-4

R.C.M. 103(20)
reviewing authority with respect to such authority’s

judicial acts.

(3) Exceptions.

(A) Instructions. Subsections (a)(1) and (2) of

the rule do not prohibit general instructional or inf o r m a t i o n a l c o u r s e s i n m i l i t a r y j u s t i c e i f s u c h

courses are designed solely for the purpose of instructing personnel of a command in the substantive

and procedural aspects of courts-martial.

( B ) C o u r t - m a r t i a l s t a t e m e n t s . S u b s e c t i o n s

(a)(1) and (2) of this rule do not prohibit statements

and instructions given in open session by the military judge or counsel.

( C ) P r o f e s s i o n a l s u p e r v i s i o n . S u b s e c t i o n s

(a)(1) and (2) of this rule do not prohibit action by

t h e J u d g e A d v o c a t e G e n e r a l c o n c e r n e d u n d e r

R.C.M. 109.

(D) Offense. Subsection (a)(1) 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 ass i g n m e n t o r t r a n s f e r o f a m e m b e r o f t h e a r m e d

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 courtmartial; 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

m i l i t a r y j u d g e d e t a i l e d t o a s p e c i a l c o u r t - m a r t i a l

which relates to the performance of duty as a milit a r y j u d g e . W h e n t h e m i l i t a r y j u d g e i s n o r m a l l y

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.

Rule 105. Direct communications:

convening authorities and staff judge

advocates; among staff judge advocates

(a) Convening authorities and staff judge 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 staff judge 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

II-5

R.C.M. 106
is necessary. Such restraint may continue only for

such time as is reasonably necessary to effect the

delivery.

Discussion

See R.C.M. 1113(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

b e e n d e l e g a t e d . N o n c o m p l i a n c e w i t h s u c h p r o c e -

dures 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 is responsible for the professional supervision and discipline of military trial and appellate military judges,

judge advocates, and other lawyers who practice in

proceedings governed by the code and this Manual.

To discharge this responsibility each Judge Advoc a t e G e n e r a l m a y p r e s c r i b e r u l e s o f p r o f e s s i o n a l

conduct not inconsistent with this rule or this Manual. Rules of professional conduct promulgated purs u a n t t o t h i s r u l e m a y i n c l u d e s a n c t i o n s f o r

violations of such rules. Sanctions may include but

are not limited to indefinite suspension from practice

in courts-martial and in the Courts of Criminal Appeals. Such suspensions may only be imposed by the

Judge Advocate General of the armed service of

such courts. Prior to imposing any discipline under

this rule, the subject of the proposed action must be

provided notice and an opportunity to be heard. The

Judge Advocate General concerned may upon good

cause shown modify or revoke suspension. Procedures to investigate complaints against military trial

judges and appellate military judges are contained in

subsection (c) of this rule.

(b) Action after suspension or disbarment. When a

Judge Advocate General suspends a person from

practice or the Court of Appeals for the Armed

Forces disbars a person, any Judge Advocate General may suspend that person from practice upon

w r i t t e n n o t i c e a n d o p p o r t u n i t y t o b e h e a r d i n

writing.

(c) Investigation of judges.

(1) In general. These rules and procedures promulgated pursuant to Article 6a are established to inv e s t i g a t e a n d d i s p o s e o f c h a r g e s , a l l e g a t i o n s , o r

information pertaining to the fitness of a military

trial judge or appellate military judge to perform the

duties of the judge’s office.

(2) Policy. Allegations of judicial misconduct or

unfitness shall be investigated pursuant to the procedures of this rule and appropriate action shall be

taken. Judicial misconduct includes any act or omission that may serve to demonstrate unfitness for

further duty as a judge, including, but not limited to

violations of applicable ethical standards.

Discussion

The term “unfitness” should be construed broadly, including, for

example, matters relating to the incompetence, impartiality, and

misconduct of the judge. Erroneous decisions of a judge are not

subject to investigation under this rule. Challenges to these decisions are more appropriately left to the appellate process.

(3) Complaints. Complaints concerning a military

trial judge or appellate military judge will be forwarded to the Judge Advocate General of the service

concerned or to a person designated by the Judge

A d v o c a t e G e n e r a l c o n c e r n e d t o r e c e i v e s u c h

complaints.

II-6

R.C.M. 106
Discussion

Complaints need not be made in any specific form, but if possible

complaints should be made under oath. Complaints may be made

by judges, lawyers, a party, court personnel, members of the

general public or members of the military community. Reports in

the news media relating to the conduct of a judge may also form

the basis of a complaint.

An individual designated to receive complaints under this

subsection should have judicial experience. The chief trial judge

of a service may be designated to receive complaints against

military trial judges.

( 4 ) I n i t i a l a c t i o n u p o n r e c e i p t o f a c o m p l a i n t .

Upon receipt, a complaint will be screened by the

Judge Advocate General concerned or by the individual designated in subsection (c)(3) of this rule to

receive complaints. An initial inquiry is necessary if

the complaint, taken as true, would constitute judicial misconduct or unfitness for further service as a

judge. Prior to the commencement of an initial inquiry, the Judge Advocate General concerned shall

be notified that a complaint has been filed and that

an initial inquiry will be conducted. The Judge Advocate General concerned may temporarily suspend

the subject of a complaint from performing judicial

duties pending the outcome of any inquiry or investigation conducted pursuant to this rule. Such inquiri e s o r i n v e s t i g a t i o n s s h a l l b e c o n d u c t e d w i t h

reasonable promptness.

Discussion

Complaints under this subsection will be treated with confidentiality. Confidentiality protects the subject judge and the judiciary

when a complaint is not substantiated. Confidentiality also encourages the reporting of allegations of judicial misconduct or

unfitness and permits complaints to be screened with the full

cooperation of others.

Complaints containing allegations of criminality should be referred to the appropriate criminal investigative agency in accordance with Appendix 3 of this Manual.

(5) Initial inquiry.

(A) In general. An initial inquiry is necessary

to determine if the complaint is substantiated. A

complaint is substantiated upon finding that it is

more likely than not that the subject judge has engaged in judicial misconduct or is otherwise unfit

for further service as a judge.

( B ) R e s p o n s i b i l i t y t o c o n d u c t i n i t i a l i n q u i r y .

The Judge Advocate General concerned, or the person designated to receive complaints under subsection (c)(3) of this rule will conduct or order an

initial inquiry. The individual designated to conduct

the inquiry should, if practicable, be senior to the

subject of the complaint. If the subject of the complaint is a military trial judge, the individual design a t e d t o c o n d u c t t h e i n i t i a l i n q u i r y s h o u l d , i f

practicable, be a military trial judge or an individual

with experience as a military trial judge. If the subject of the complaint is an appellate military judge,

t h e i n d i v i d u a l d e s i g n a t e d t o c o n d u c t t h e i n q u i r y

should, if practicable, have experience as an appellate military judge.

Discussion

To avoid the type of conflict prohibited in Article 66(g), the

Judge Advocate General’s designee should not ordinarily be a

member of the same Court of Criminal Appeals as the subject of

the complaint. If practicable, a former appellate military judge

should be designated.

(C) Due process. During the initial inquiry, the

subject of the complaint will, at a minimum, be

given notice and an opportunity to be heard.

(D) Action following the initial inquiry. If the

complaint is not substantiated pursuant to subsection

(c)(5)(A) of this rule, the complaint shall be dismissed as unfounded. If the complaint is substantiated, minor professional disciplinary action may be

taken or the complaint may be forwarded, with findings and recommendations, to the Judge Advocate

General concerned. Minor professional disciplinary

action is defined as counseling or the issuance of an

oral or written admonition or reprimand. The Judge

Advocate General concerned will be notified prior to

taking minor professional disciplinary action or dismissing a complaint as unfounded.

(6) Action by the Judge Advocate General.

(A) In general. The Judge Advocates General

are responsible for the professional supervision and

d i s c i p l i n e o f m i l i t a r y t r i a l a n d a p p e l l a t e m i l i t a r y

judges under their jurisdiction. Upon receipt of findings and recommendations required by subsection

(c)(5) of this rule the Judge Advocate General concerned will take appropriate action.

(B) Appropriate actions. The Judge Advocate

General concerned may dismiss the complaint, order

an additional inquiry, appoint an ethics commission

to consider the complaint, refer the matter to another

appropriate investigative agency or take appropriate

professional disciplinary action pursuant to the rules

II-7

R.C.M. 109(c)(6)(B)
of professional conduct prescribed by the Judge Advocate General under subsection (a) of this rule. Any

decision of the Judge Advocate General, under this

rule, is final and is not subject to appeal.

Discussion

The discretionary reassignment of military trial judges or appellate military judges to meet the needs of the service is not professional disciplinary action.

(C) Standard of proof. Prior to taking professional disciplinary action, other than minor disciplinary action as defined in subsection (c)(5) of this

rule, the Judge Advocate General concerned shall

find, in writing, that the subject of the complaint

engaged in judicial misconduct or is otherwise unfit

for continued service as a military judge, and that

such misconduct or unfitness is established by clear

and convincing evidence.

(D) Due process. Prior to taking final action on

t h e c o m p l a i n t , t h e J u d g e A d v o c a t e G e n e r a l c o n -

cerned will ensure that the subject of the complaint

is, at a minimum, given notice and an opportunity to

be heard.

(7) The Ethics Commission.

(A) Membership. If appointed pursuant to subsection (c)(6)(B) of this rule, an ethics commission

shall consist of at least three members.

If the subject of the complaint is a military trial

judge, the commission should include one or more

military trial judges or individuals with experience

as a military trial judge. If the subject of the complaint is an appellate military judge, the commission

should include one or more individuals with experience as an appellate military judge. Members of the

commission should, if practicable, be senior to the

subject of the complaint.

(B) Duties. The commission will perform those

duties assigned by the Judge Advocate General concerned. Normally, the commission will provide an

opinion as to whether the subject’s acts or omissions

constitute judicial misconduct or unfitness. If the

commission determines that the affected judge engaged in judicial misconduct or is unfit for continu e d j u d i c i a l s e r v i c e , t h e c o m m i s s i o n m a y b e

required to recommend an appropriate disposition to

The Judge Advocate General concerned.

Discussion

The Judge Advocate General concerned may appoint an ad hoc or

a standing commission.

(8) Rules of procedure. The Secretary of Defense

or the Secretary of the service concerned may establish additional procedures consistent with this rule

and Article 6a.

II-8

R.C.M. 109(c)(6)(B)
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 render a

legally competent decision. A court-martial has no power to adjudge civil remedies. For example, a court-martial may not adjudge the payment of damages, collect private debts, order the

return of property, or order a criminal forfeiture of seized property. A summary court-martial appointed under 10 U.S.C. §§ 4712

or 9712 to dispose of the effects of a deceased 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, or the

Manual, jurisdiction of courts-martial does not depend on where

the offense was committed.

The code applies in all places (Article 5), but its application

may be limited by the service-connection doctrine. The location

of an offense is often of major importance in the application of

this doctrine. See R.C.M. 203 and discussion. Article 2(a)(11) and

(12) establishes court-martial jurisdiction only in certain places.

See R.C.M. 202.

(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 the

code, general courts-martial have power to try certain persons for

violations of the law of war and for crimes or offenses against 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. See R.C.M.

201(f)(1)(B). In cases where a person is tried by general courtmartial for offenses against the law of an occupied territory, the

court-martial normally sits in the country where the offense is

committed, and must do so under certain circumstances. See Articles 4, 64, and 66, Geneva Convention Relative to the Protection

of Civilian Persons in Time of War, August 12, 1949, arts. 4, 64,

and 66, 6 U.S.T. 3516, 3559-60 T.I.A.S. No. 3365.

(b) Requisites of court-martial jurisdiction. A courtmartial 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;

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 courtmartial jurisdiction; and

Discussion

See R.C.M. 202.

(5) The offense must be subject to court-martial

jurisdiction.

Discussion

See R.C.M. 203.

The judgment of a court-martial without jurisdiction is void

and is entitled to no legal effect. See R.C.M. 907(b)(2)(C)(iv). But

see R.C.M. 810(d) concerning the effect of certain decisions by

courts-martial without jurisdiction.

(c) Contempt. A court-martial may punish for conII-9
tempt 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

S e e R . C . M . 8 0 9 f o r p r o c e d u r e s a n d s t a n d a r d s f o r c o n t e m p t

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 and a

criminal law of a State, the United States, or both, the determination which agency shall exercise jurisdiction should normally be

made through consultation or prior agreement between appropriate military officials (ordinarily the staff judge advocate) and

appropriate civilian authorities (United States Attorney, or equivalent). See also Memorandum of Understanding Between Departments of Justice and Defense Relating to the Investigation and

Prosecution of Crimes Over Which the Two Departments Have

Concurrent Jurisdiction at Appendix 3.

Under the Constitution, a person may not be tried for the

same misconduct by both a court-martial and another federal

court. See R.C.M. 907(b)(2)(C). Although it is constitutionally

permissible to try a person by court-martial and by a State court

for the same act, as a matter of policy a person who is pending

trial or has been tried by a State court should not ordinarily be

tried by court-martial for the same act. Overseas, international

agreements might preclude trial by one state of a person acquitted

or finally convicted of a given act by the other state.

Under international law, a friendly foreign nation has jurisdiction to punish offenses committed within its borders by members of a visiting force, unless expressly or impliedly consents to

relinquish its jurisdiction to the visiting sovereign. The procedures

and standards for determining which nation will exercise jurisdiction are normally established by treaty. See, for example, NATO

S t a t u s o f F o r c e s A g r e e m e n t , J u n e 1 9 , 1 9 5 1 , 4 U . S . T . 1 7 9 2 ,

T.I.A.S. No. 2846. As a matter of policy, efforts should be made

to maximize the exercise of court-martial jurisdiction over persons subject to the code to the extent possible under applicable

agreements.

See R.C.M. 106 concerning delivery of offenders to civilian

authorities.

See also R.C.M. 201(g) concerning the jurisdiction of other

military tribunals.

(e) Reciprocal jurisdiction.

(1) Each armed force has court-martial jurisdiction over all persons subject to the code.

(2)(A) A commander of a unified or specified

c o m b a t a n t c o m m a n d m a y c o n v e n e c o u r t s - m a r t i a l

over members of any of the armed forces.

( B ) S o m u c h o f t h e a u t h o r i t y v e s t e d i n t h e

President under Article 22(a)(9) to empower any

commanding officer of a joint command or joint

task force to convene courts-martial is delegated to

the Secretary of Defense, and such a commanding

officer may convene general courts-martial for the

trial of members of any of the armed forces assigned

o r a t t a c h e d t o a c o m b a t a n t c o m m a n d o r j o i n t

command.

(C) A commander who is empowered to convene a court-martial under subsections (e)(2)(A) or

(e)(2)(B) of this rule 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 assigned or attached to a joint

c o m m a n d o r j o i n t t a s k f o r c e , u n d e r r e g u l a t i o n s

which the superior command may prescribe.

(3) A member of one armed force may be tried

by a court-martial convened by a member of another

armed force, using the implementing regulations and

procedures prescribed by the Secretary concerned of

the military service of the accused, when:

(A) The court-martial is convened by a commander authorized to convene courts-martial under

subsection (e)(2) of this rule; or

( B ) T h e a c c u s e d c a n n o t b e d e l i v e r e d t o t h e

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 courtmartial convened by a member of a different armed

force except when the circumstances described in

(A) or (B) exist. However, failure to comply with

II-10

R.C.M. 201(c)
t h i s p o l i c y d o e s n o t a f f e c t a n o t h e r w i s e v a l i d

referral.

(4) Nothing in this rule prohibits detailing to a

court-martial a military judge, member, or counsel

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.

(6) When there is a disagreement between the

Secretaries of two military departments or between

the Secretary of a military department and the commander of a unified or specified combatant command or other joint command or joint task force as

to which organization should exercise jurisdiction

over a particular case or class of cases, the Secretary

of Defense or an official acting under the authority

of the Secretary of Defense shall designate which

organization will exercise jurisdiction.

(7) Except as provided in subsections (5) and (6)

or as otherwise directed by the President or Secretary of Defense, whenever action under this Manual

is required or authorized to be taken by a person

superior to—

( A ) a c o m m a n d e r o f a u n i f i e d o r s p e c i f i e d

combatant command or;

(B) a commander of any other joint command

or joint task force that is not part of a unified or

specified combatant command, the matter shall be

referred to the Secretary of the armed force of which

the accused is a member. The Secretary may convene a court-martial, take other appropriate action,

or, subject to R.C.M. 504(c), refer the matter to any

person authorized to convene a court-martial of the

accused.

Discussion

“Manifest injury” does not mean minor inconvenience or expense.

Examples of manifest injury include direct and substantial effect

on morale, discipline, or military operations, substantial expense

or delay, or loss of essential witnesses.

As to the composition of a court-martial for the trial of an

accused who is a member of another armed force, see R.C.M.

503(a)(3) Discussion. Cases involving two or more accused who

are members of different armed forces should not be referred to a

court-martial for a common trial.

(f) Types of courts-martial.

(1) 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, adj u d g e a n y p u n i s h m e n t a u t h o r i z e d u n d e r R . C . M .

1003.

( i i i ) N o t w i t h s t a n d i n g a n y o t h e r r u l e , t h e

death penalty may not be adjudged if:

(a) Not specifically authorized for the offense by the code and Part IV of this Manual; or

(b) The case has not been referred with a

special instruction that the case is to be tried as

capital.

(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)(1)(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 to adII-11

R.C.M. 201(f)(1)(B)(ii)
judge punishment under the law of war are prescribed in international conventions. See, for example, Geneva Convention Relative

to the Protection of Civilian Persons in Time of War, Aug. 12,

1949, art. 68, 6 U.S.T. 3516, T.I.A.S. No. 3365.

(C) Limitations in judge alone cases. A general

c o u r t - m a r t i a l c o m p o s e d o n l y o f a m i l i t a r y j u d g e

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 courtsmartial may adjudge, under limitations prescribed by

t h i s M a n u a l , a n y p u n i s h m e n t a u t h o r i z e d u n d e r

R.C.M. 1003 except death, dishonorable discharge,

dismissal, confinement for more than 1 year, 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 1 year.

( i i ) A b a d - c o n d u c t d i s c h a r g e , c o n f i n e m e n t

for more than six months, or forfeiture of pay for

more than six months, 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

e x i g e n c i e s , a b a d - c o n d u c t d i s c h a r g e , c o n f i n e m e n t

for more than six months, or forfeiture of pay for

more than six months, 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.

Discussion

See R.C.M. 503 concerning detailing the military judge and counsel.

The requirement for counsel is satisfied when counsel qualified under Article 27(b), and not otherwise disqualified, has been

detailed and made available, even though the accused may not

choose to cooperate with, or use the services of, such detailed

counsel.

The physical condition or military exigency exception to the

requirement for a military judge does not apply to the requirement

for detailing counsel qualified under Article 27(b).

See also R.C.M. 1103(c) concerning the requirements for a

record of trial in special courts-martial.

(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 obtaini n g t h e c o n s e n t o f t h e o f f i c e r e x e r c i s i n g g e n e r a l

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

d e p r i v e m i l i t a r y c o m m i s s i o n s , p r o v o s t c o u r t s , o r

o t h e r m i l i t a r y t r i b u n a l s o f c o n c u r r e n t j u r i s d i c t i o n

II-12

R.C.M. 201(f)(1)(B)(ii)
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

S e e A r t i c l e s 1 0 4 a n d 1 0 6 f o r s o m e i n s t a n c e s o f c o n c u r r e n t

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 of persons who are subject to the code. These include active duty

personnel (Article 2(a)(1)); cadets, aviation cadets, and midshipmen (Article 2(a)(2)); certain retired personnel (Article 2(a)(4)

and (5)); members of Reserve components not on active duty

under some circumstances (Article 2(a)(3) and (6)); persons in the

custody of the armed forces serving a sentence imposed by courtmartial (Article 2(a)(7)); and, under some circumstances, specified categories of civilians (Article 2(a)(8), (9), (10), (11), and

(12); see subsection (3) and (4) of this discussion). In addition,

certain persons whose status as members of the armed forces or

as persons otherwise subject to the code apparently has ended

may, nevertheless, be amendable to trial by court-martial. See

Article 3, 4, and 73. A person need not be subject to the code to

be subject to trial by court-martial under Articles 83, 104, or 106.

See also Article 48 and R.C.M. 809 concerning who may be

subject to the contempt powers of a court-martial.

(2) Active duty personnel. Court-martial jurisdiction is most

commonly exercised over active duty personnel. In general, a

person becomes subject to court-martial jurisdiction upon enlistment in or induction into the armed forces, acceptance of a

commission, or entry onto active duty pursuant to orders. Courtmartial jurisdiction over active duty personnel ordinarily ends on

delivery of a discharge certificate or its equivalent to the person

concerned issued pursuant to competent orders. Orders transferring a person to the inactive reserve are the equivalent of a

discharge certificate for purposes of jurisdiction.

These are several important qualifications and exceptions to

these general guidelines.

(A) Inception of court-martial jurisdiction over active

duty personnel.

(i) Enlistment. “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 [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 court-martial 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, courtmartial 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. § 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 voluntary 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 17]

(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 cond u c t a f t e r a n a p p a r e n t i n d u c t i o n , h a s w a i v e d o b j e c t i o n t o

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 to 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 or national

emergency, discipline, or as a result of failure to participate satisfactorily in unit activities.

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 failII-13

R.C.M. 202(a)
ure to exercise this right within a reasonable time after notice of

the right to do so.

(B) Termination of jurisdiction over active duty personnel. As indicated above, the delivery of a valid discharge certificate or its equivalent ordinarily serves to terminate court-martial

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. For offenses occurring on or after 23 October 1992, under the 1992

Amendment to Article 3(a), a person who reenlists following a

discharge may be tried for offenses committed during the earlier

term of service. For offenses occurring prior to 23 October 1992,

a person who reenlists following a discharge may be tried for

offenses committed during the earlier term of service only if the

offense was punishable by confinement for five (5) years or more

and could not be tried in the courts of the United States or of a

State, a Territory, 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:

(1) For offenses occurring on or after 23

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

subject to the code, by reentry into the armed forces or otherwise.

See Article 3(a) as amended by the National Defense Authorization Act for Fiscal Year 1993, Pub.L. No. 102-484, 106 Stat.

2315, 2505 (1992);

(2) For offenses occurring before 23 October 1992,

(A) The offense is one for which a

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

(B) The person cannot be tried in

the courts of the United States or of a State, Territory, or the

District of Columbia; and

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

court-martial, subject to the code, by reentry into the armed forces

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

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

the time the offense was committed is subject to trial by courtmartial despite a later discharge if—

(1) 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

(3) The reenlistment occurred after 26

July 1982.

(c) Persons in the custody of the armed forces

serving a sentence imposed by a court-martial remain subject to

the code and court-martial jurisdiction. A prisoner who has received a discharge and who remains in the custody of an armed

force may be tried for an offense committed while a member of

the armed forces and before the execution of the discharge as

well as for offenses committed after it.

( d ) A p e r s o n d i s c h a r g e d f r o m t h e a r m e d

forces who is later charged with having fraudulently obtained that

discharge is, subject to the statute of limitations, subject to trial

by court-martial on that charge, and is after apprehension subject

to the code while in the custody of the armed forces for trial.

Upon conviction of that charge such a person is subject to trial by

court-martial for any offenses under the code committed before

the fraudulent discharge.

( e ) N o p e r s o n w h o h a s d e s e r t e d f r o m t h e

armed forces is relieved from court-martial jurisdiction by a separation from any later period of service.

(f) When a person’s discharge or other separation does not interrupt the status as a person belonging to the

general category of persons subject to the code, court-martial

jurisdiction over that person does not end. For example, when an

officer holding a commission in a Reserve component of an

armed force is discharged from that commission while on active

duty because of acceptance of a commission in a Regular component of that armed force, without an interval between the periods

of service under the two commissions, that officer’s military status does not end. There is merely a change in personnel status

from temporary to permanent officer, and court-martial jurisdiction over an offense committed before the discharge is not affected.

(3) Public Health Service and National Oceanic and

Atmospheric Administration. Members of the Public Health Service and the National Oceanic and Atmospheric Administration

become subject to the code when assigned to and serving with the

armed forces.

(4) Limitations on jurisdiction over civilians. Courtmartial jurisdiction over civilians under the code is limited by

j u d i c i a l d e c i s i o n s . T h e e x e r c i s e o f j u r i s d i c t i o n u n d e r A r t i c l e

2 ( a ) ( 1 1 ) i n p e a c e t i m e h a s b e e n h e l d u n c o n s t i t u t i o n a l b y t h e

Supreme Court of the United States. Article 2(a)(10) has also

been limited. Before initiating court-martial proceedings against a

civilian, relevant statutes and decisions should be carefully examined.

(5) Members of a Reserve Component. Members of a

reserve component in federal service on active duty, as well as

those in federal service on inactive-duty training, are subject to

the code. Moreover, members of a reserve component are amenable to the jurisdiction of courts-martial notwithstanding the termination of a period of such duty. See R.C.M. 204.

(b) Offenses under the law of war. Nothing in this

rule limits the power of general courts-martial to try

II-14

R.C.M. 202(a)
p e r s o n s u n d e r t h e l a w o f w a r . S e e R . C . M .

201(f)(1)(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, the 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 that

person occupies a status as a person subject to the code. See also

Article 104 and 106. Thus, a servicemember is subject to courtmartial jurisdiction until lawfully discharged or, when the servicemember’s term of service has expired, the government fails to

act within a reasonable time on objection by the servicemember

to continued retention.

Court-martial jurisdiction attaches over a person upon action

with a view to trial. Once court-martial jurisdiction attaches, it

continues throughout the trial and appellate process, and for purposes of punishment.

If jurisdiction has attached before the effective terminal date

of self-executing orders, the person may be held for trial by courtmartial 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

T o t h e e x t e n t p e r m i t t e d b y t h e C o n s t i t u t i o n ,

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 offense

under the code except when prohibited from so doing by the

Constitution. The rule enunciated in Solorio v. United States, 483

U.S. 435 (1987) is that jurisdiction of courts-martial depends

solely on the accused’s status as a person subject to the Uniform

Code of Military Justice, and not on the “service-connection” of

the offense charged.

(b) Pleading and proof. Normally, the inclusion of the accused’s rank or grade will be sufficient to plead the service status

of the accused. Ordinarily, no allegation of the accused’s armed

force or unit is necessary for military members on active duty.

See R.C.M. 307 regarding required specificity of pleadings.

Rule 204. Jurisdiction over certain reserve

component personnel

( a ) S e r v i c e r e g u l a t i o n s . T h e S e c r e t a r y c o n c e r n e d

shall prescribe regulations setting forth rules and

procedures for the exercise of court-martial jurisdiction and nonjudicial punishment authority over reserve component personnel under Article 2(a)(3) and

2(d), subject to the limitations of this Manual and

the UCMJ.

Discussion

Such regulations should describe procedures for ordering a reservist to active duty for disciplinary action, for the preferral,

investigation, forwarding, and referral of charges, designation of

c o n v e n i n g a u t h o r i t i e s a n d c o m m a n d e r s a u t h o r i z e d t o c o n d u c t

nonjudicial punishment proceedings, and for other appropriate

purposes.

See definitions in R.C.M. 103 (Discussion). See paragraph 5e

and f, Part V, concerning limitations on nonjudicial punishments

imposed on reservists while on inactive-duty training.

Members of the Army National Guard and the Air National

Guard are subject to Federal court-martial jurisdiction only when

the offense concerned is committed while the member is in Federal service.

(b) Courts-Martial

(1) General and special court-martial proceedings. A member of a reserve component must be on

active duty prior to arraignment at a general or special court-martial. A member ordered to active duty

pursuant to Article 2(d) may be retained on active

duty to serve any adjudged confinement or other

restriction on liberty if the order to active duty was

a p p r o v e d i n a c c o r d a n c e w i t h A r t i c l e 2 ( d ) ( 5 ) , b u t

such member may not be retained on active duty

pursuant to Article 2(d) after service of the confinement or other restriction on liberty. All punishments

remaining unserved at the time the member is released from active duty may be carried over to subsequent periods of inactive-duty training or active

duty.

Discussion

An accused ordered to active duty pursuant to Article 2(d) may

be retained on active duty after service of the punishment if

II-15

R.C.M. 204(b)(1)
permitted by other authority. For example, an accused who commits another offense while on active duty ordered pursuant to

Article 2(d) may be retained on active duty pursuant to R.C.M.

202(c)(1).

(2) Summary courts-martial. A member of a reserve component may be tried by summary courtmartial either while on active duty or inactive-duty

training. A summary court-martial conducted during

inactive-duty training may be in session only during

normal periods of such training. The accused may

not be held beyond such periods of training for trial

o r s e r v i c e o r a n y p u n i s h m e n t . A l l p u n i s h m e n t s

remaining unserved at the end of a period of active

duty or the end of any normal period of inactive

duty training may be carried over to subsequent periods of inactive-duty training or active duty.

Discussion

A “normal period” of inactive-duty training does not include

periods which are scheduled solely for the purpose of conducting

court-martial proceedings.

(c) Applicability. This subsection is not applicable

when a member is held on active duty pursuant to

R.C.M. 202(c).

(d) Changes in type of service. A member of a reserve component at the time disciplinary action is

initiated, who is alleged to have committed an offense while on active duty or inactive-duty training,

is subject to court-martial jurisdiction without regard

to any change between active and reserve service or

within different categories of reserve service subsequent to commission of the offense. This subsection

does not apply to a person whose military status was

c o m p l e t e l y t e r m i n a t e d a f t e r c o m m i s s i o n o f a n

offense.

Discussion

A member of a regular or reserve component remains subject to

court-martial jurisdiction after leaving active duty for offenses

committed prior to such termination of active duty if the member

retains military status in a reserve component without having

been discharged from all obligations of military service.

See R.C.M. 202(a), Discussion, paragraph (2)(B)(ii) and (iii)

regarding the jurisdictional effect of a discharge from military

service. A “complete termination” of military status refers to a

discharge relieving the servicemember of any further military

service. It does not include a discharge conditioned upon acceptance of further military service.

II-16

R.C.M. 204(b)(1)
CHAPTER III. 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

a u t h o r i t y s u p e r i o r t o t h a t c o m m a n d e r m a y d i r e c t

otherwise.

Discussion

Any military authority may receive a report of an offense. Typically such reports are made to law enforcement or investigative

personnel, or to appropriate persons in the chain of command. A

report may be made by any means, and no particular format is

required. When a person who is not a law enforcement official

receives a report of an offense, that person should forward the

report to the immediate commander of the suspect unless that

person believes it would be more appropriate to notify law enforcement or investigative authorities.

If the suspect is unidentified, the military authority who

receives the report should refer it to a law enforcement or investigative agency.

Upon receipt of a report, the immediate commander of a

suspect should refer to R.C.M. 306 (Initial disposition). See also

R.C.M. 302 (Apprehension); R.C.M. 303 (Preliminary inquiry);

R.C.M. 304, 305 (Pretrial restraint, confinement).

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 terminology.

(In military terminology, “arrest” is a form of restraint. See Article 9; R.C.M. 304.) See subsection (c) of this rule concerning the

bases for apprehension. An apprehension is not required in every

case; the fact that an accused was never apprehended does not

affect the jurisdiction of a court-martial to try the accused. However, see R.C.M. 202(c) concerning attachment of jurisdiction.

An apprehension is different from detention of a person for

investigative purposes, although each involves the exercise of

government control over the freedom of movement of a person.

An apprehension must be based on probable cause, and the custody initiated in an apprehension may continue until proper aut h o r i t y i s n o t i f i e d a n d a c t s u n d e r R . C . M . 3 0 4 o r 3 0 5 . A n

investigative detention may be made on less than probable cause

(see Mil. R. Evid. 314(f)), and normally involves a relatively

short period of custody. Furthermore, an extensive search of the

person is not authorized incident to an investigative detention, as

it is with an apprehension. See Mil. R. Evid. 314(f) and (g). This

rule does not affect any seizure of the person less severe than

apprehension.

Evidence obtained as the result of an apprehension which is

in violation of this rule may be challenged under Mil. R. Evid.

311(c)(1). Evidence obtained as the result of an unlawful civilian

arrest may be challenged under Mil. R. Evid. 311(c)(1), (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 to detain,

arrest, or apprehend persons not subject to trial under the code.

The rule does not apply to actions taken by any person in a

private capacity.

Several federal agencies have broad powers to apprehend

persons for violations of federal laws, including the Uniform

Code of Military Justice. For example, agents of the Federal

Bureau of Investigation, United States Marshals, and agents of the

Secret Service may apprehend persons for any offenses committed in their presence and for felonies. 18 U.S.C. §§ 3052, 3053,

3056. Other agencies have apprehension powers include the General Services Administration, 40 U.S.C. § 318 and the Veterans

Administration, 38 U.S.C. § 218. The extent to which such agencies become involved in the apprehension of persons subject to

trial by courts-martial may depend on the statutory authority of

the agency and the agency’s formal or informal relationships with

the Department of Defense.

( b ) W h o m a y a p p r e h e n d . T h e f o l l o w i n g o f f i c i a l s

may apprehend any person subject to trial by courtmartial:

( 1 ) M i l i t a r y l a w e n f o r c e m e n t o f f i c i a l s . S e c u r i t y

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;

II-17
Discussion

Whenever enlisted persons, including police and guards, and civilian police and guards apprehend any commissioned or warrant

officer, such persons should make an immediate report to the

commissioned officer to whom the apprehending person is responsible.

The phrase “persons designated by proper authority to perf o r m m i l i t a r y c r i m i n a l i n v e s t i g a t i v e , g u a r d o r p o l i c e d u t i e s ”

i n c l u d e s s p e c i a l a g e n t s o f t h e D e f e n s e C r i m i n a l I n v e s t i g a t i v e

Service.

(2) Commissioned, warrant, petty, and noncommissioned officers. All commissioned, warrant, petty, and noncommissioned officers on active duty or

inactive duty training;

Discussion

Noncommissioned and petty officers not otherwise performing

law enforcement duties should not apprehend a commissioned

officer unless directed to do so by a commissioned officer or in

order to prevent disgrace to the service or the escape of one who

has committed a serious offense.

(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, Territory, 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 of a

State, Territory, district, or of the United States may apprehend

any deserter.However, this authority does not permit state and

local law enforcement officers to apprehend persons for other

violations of the code. See Article 8.

(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 of reliable information that a reasonable, prudent person would rely on

which makes it more likely than not that something is true. A

mere suspicion is not enough but proof which would support a

conviction is not necessary. A person who determines probable

cause may rely on the reports of others.

(d) How an apprehension may be made.

( 1 ) I n g e n e r a l . A n a p p r e h e n s i o n i s m a d e b y

clearly notifying the person to be apprehended that

person is in custody. This notice should be given

orally or in writing, but it may be implied by the

circumstances.

(2) Warrants. Neither warrants nor any other aut h o r i z a t i o n s h a l l b e r e q u i r e d f o r a n a p p r e h e n s i o n

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 or

p r o p e r m i l i t a r y o f f i c i a l s , a n y p e r s o n m a k i n g a n a p p r e h e n s i o n

under these rules should: maintain custody of the person apprehended; and inform as promptly as possible the immediate commander of the person apprehended, or any official higher in the

chain of command of the person apprehended if it is impractical

to inform the immediate commander.

(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) of 316(d)(2);

II-18

R.C.M. 302(b)(1)
(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. 315(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

a u t h o r i z e d b y a n o f f i c i a l l i s t e d i n M i l . R . E v i d .

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 dwelling

pursuant to a valid search warrant or search authorization, they

may apprehend persons therein if grounds for an apprehension

exist. This subsection is not intended to be an independent grant

of authority to execute civilian arrest or search warrants. The

authority must derive from an appropriate Federal or state procedure. See e.g. Fed. R. Crim. P. 41 and 28 C.F.R. 60.1.

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 examination of the charges and an investigative report or other summ a r y o f e x p e c t e d e v i d e n c e . I n o t h e r c a s e s a m o r e e x t e n s i v e

investigation may be necessary. Although the commander may

conduct the investigation personally or with members of the command, in serious or complex cases the commander should consider whether to seek the assistance of law enforcement personnel

in conducting any inquiry or further investigation. The inquiry

should gather all reasonably available evidence bearing on guilt

or innocence and any evidence relating to aggravation, extenuation, or mitigation.

The Military Rules of Evidence should be consulted when

conducting interrogations (see Mil. R. Evid. 301-306), searches

(see Mil. R. Evid. 311-317), and eyewitness identifications (see

Mil. R. Evid. 321).

If the offense is one for which the Department of Justice has

investigative responsibilities, appropriate coordination should be

made under the Memorandum of Understanding, see Appendix 3,

and any implementing regulations.

If it appears that any witness may not be available for later

proceedings in the case, this should be brought to the attention of

appropriate authorities. See also R.C.M. 702 (depositions).

A person who is an accuser (see Article 1(9)) is disqualified

from convening a general or special court-martial in that case.

R.C.M. 504(c)(1). Therefore, when the immediate commander is

a general or special court-martial convening authority, the preliminary inquiry should be conducted by another officer of the comm a n d . T h a t o f f i c e r m a y b e i n f o r m e d t h a t c h a r g e s m a y b e

preferred if the officer determines that preferral is warranted.

Rule 304. Pretrial restraint

(a) Types of pretrial restraint. Pretrial restraint is

m o r a l o r p h y s i c a l r e s t r a i n t o n a p e r s o n ’ s l i b e r t y

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

II-19

R.C.M. 304(a)(1)
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 writt e n o r d e r s d i r e c t i n g t h e p e r s o n t o r e m a i n w i t h i n

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,

d i r e c t i n g t h e p e r s o n t o r e m a i n w i t h i n s p e c i f i e d

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 to a

specified official, orders not to go to a certain place (such as the

scene of the alleged offense), and orders not to associate with

specified persons (such as the alleged victim or potential witnesses). Conditions on liberty must not hinder pretrial preparation, however. Thus, when such conditions are imposed, they

must by sufficiently flexible to permit pretrial preparation.

Restriction in lieu of arrest is a less severe restraint on

liberty than is arrest. Arrest includes suspension from performing

full military duties and the limits of arrest are normally narrower

than those of restriction in lieu of arrest. The actual nature of the

restraint imposed, and not the characterization of it by the officer

imposing it, will determine whether it is technically an arrest or

restriction in lieu of arrest.

Breach of arrest or restriction in lieu of arrest or violation of

conditions on liberty are offenses under the code. See paragraphs

16, 19, and 102, Part IV. When such an offense occurs, it may

w a r r a n t a p p r o p r i a t e a c t i o n s u c h a s n o n j u d i c i a l p u n i s h m e n t o r

court-martial. See R.C.M. 306. In addition, such a breach or

violation may provide a basis for the imposition of a more severe

form of restraint.

R.C.M. 707(a) requires that the accused be brought to trial

within 120 days of preferral of charges or imposition of restraint

under R.C.M. 304(a)(2)-(4).

(b) Who may order pretrial restraint.

(1) Of civilians and officers. 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 offic e r m a y o r d e r p r e t r i a l r e s t r a i n t o f a n y e n l i s t e d

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 ) T h e r e s t r a i n t o r d e r e d i s r e q u i r e d b y t h e

circumstances.

Discussion

The decision whether to impose pretrial restraint, and, if so, what

type or types, should be made on a case-by-case basis. The

factors listed in the Discussion of R.C.M. 305(h)(2)(B) should be

considered. The restraint should not be more rigorous than the

circumstances require to ensure the presence of the person restrained or to prevent foreseeable serious criminal misconduct.

Restraint is not required in every case. The absence of pretrial restraint does not affect the jurisdiction of a court-martial.

However, see R.C.M. 202(c) concerning attachment of jurisdiction. See R.C.M. 305 concerning the standards and procedures

governing pretrial confinement.

(d) Procedures for ordering pretrial restraint. Pretrial restraint other than confinement is imposed by

notifying the person orally or in writing of the reII-20

R.C.M. 304(a)(1)
straint, 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

c o n f i n e m e n t i s i m p o s e d p u r s u a n t t o o r d e r s b y 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 must

be given to a person who is confined. If the person ordering the

restrain is not the commander of the person restrained, that officer

should be notified.

(f) Punishment prohibited. Pretrial restraint is not

punishment and shall not be used as such. No person

who is 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

u n i f o r m s p r e s c r i b e d o n l y f o r p o s t - t r i a l p r i s o n e r s .

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 ) R e l e a s e . E x c e p t a s o t h e r w i s e p r o v i d e d i n

R.C.M. 305, a person may be released from pretrial

restraint by a person authorized to impose it. Pretrial

r e s t r a i n t s h a l l t e r m i n a t e w h e n a s e n t e n c e i s a d -

judged, the accused is acquitted of all charges, or all

charges are dismissed.

Discussion

Pretrial restraint may be imposed (or reimposed) if charges are to

be reinstated or of a rehearing or “other” trial is to be ordered.

( h ) A d m i n i s t r a t i v e r e s t r a i n t . N o t h i n g i n t h i s r u l e

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 confinement in

immediate association with enemy prisoners or other foreign nationals not members of the armed forces of the United States.

Article 12. However, if members of the armed forces of the

United States are separated from prisoners of the other categories

m e n t i o n e d , t h e y m a y b e c o n f i n e d i n t h e s a m e c o n f i n e m e n t

facilities.

(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 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.” Article 11(a).

(d) When a person may be confined. No person may

be ordered into pretrial confinement except for probII-21

R.C.M. 305(d)
able 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

(3) Confinement is required by the circumstances.

Discussion

The person who directs confinement should consider the matters

discussed under subsection (h)(2)(B) of this rule before ordering

confinement. However, the person who initially orders confinement is not required to make a detailed analysis of the necessity

for confinement. It is often not possible to review a person’s

background and character or even the details of an offense before

physically detaining the person. For example, until additional

information can be secured, it may be necessary to confine a

person apprehended in the course of a violent crime.

“[W]hen charged only with an offense normally tried by

summary court-martial, [an accused] shall not ordinarily be paced

in confinement.” Article 10.

Confinement should be distinguished from custody. Custody

is restraint which is imposed by apprehension and which may be,

but is not necessarily, physical. Custody may be imposed by

anyone authorized to apprehend (see R.C.M. 302(b)), and may

continue until a proper authority under R.C.M. 304(B) is notified

and takes action. Thus, a person who has been apprehended could

be physically restrained, but this would not be 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) Military counsel. If requested by the prisoner

and such request is made known to military authorities, military counsel shall be provided to the prisoner before the initial review under subsection (i) of

this rule or within 72 hours of such a request being

first communicated to military authorities, whichever

occurs first. 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 othe r w i s e p r o v i d e d b y r e g u l a t i o n s o f t h e S e c r e t a r y

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 release from confinement. Any

commander of a prisoner, an officer appointed under

regulations of the Secretary concerned to conduct

the review under subsection (i) and/or (j) of this

rule, or, once charges have been referred, a military

j u d g e d e t a i l e d t o t h e c o u r t - m a r t i a l t o w h i c h t h e

charges against the accused have been referred, may

direct release from pretrial confinement. For purposes of this subsection, “any commander” includes

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,

w a r r a n t , n o n c o m m i s s i o n e d , o r p e t t y o f f i c e r i n t o

w h o s e c h a r g e t h e p r i s o n e r w a s c o m m i t t e d s h a l l ,

w i t h i n 2 4 h o u r s a f t e r t h a t c o m m i t m e n t , c a u s e a

report to be made to the commander that 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 immediate commander of the prisoner should be notified. In unusual

cases any commander to whose authority the prisoner is subject,

such as the commander of the confinement facility, may be notified. In the latter case, the commander so notified must ensure

compliance with subsection (h)(2) of this rule.

(2) Action by commander.

(A) Decision. Not later than 72 hours after the

c o m m a n d e r ’ s o r d e r i n g o f a p r i s o n e r i n t o p r e t r i a l

confinement or, after receipt of a report that a member of the commander’s unit or organization has

been confined, whichever situation is applicable, the

commander shall decide whether pretrial confinem e n t w i l l c o n t i n u e . A c o m m a n d e r ’ s c o m p l i a n c e

with this subsection may also satisfy the 48-hour

probable cause determination of subsection R.C.M.

305(i)(1) below, provided the commander is a neutral and detached officer and acts within 48 hours of

the imposition of confinement under military control. Nothing in subsections R.C.M. 305(d), R.C.M.

II-22

R.C.M. 305(d)
305(i)(1), or this subsection prevents a neutral and

detached commander from completing the 48-hour

probable cause determination and the 72-hour commander’s decision immediately after an accused is

ordered into pretrial confinement.

(B) Requirements for confinement. The commander shall direct the prisoner’s release from pret r i a l c o n f i n e m e n t u n l e s s t h e c o m m a n d e r b e l i e v e s

u p o n p r o b a b l e c a u s e , t h a t i s , u p o n r e a s o n a b l e

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 trial,

pretrial hearing, or investigation, or

( b ) T h e p r i s o n e r w i l l e n g a g e i n s e r i o u s

criminal misconduct; and

(iv) Less severe forms of restraint are inadequate.

Serious criminal misconduct includes intimidation

of witnesses or other obstruction of justice, serious

injury of 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 convenience

or expedience.

Some of the factors which should be considered under this

subsection are:

( 1 ) T h e n a t u r e a n d c i r c u m s t a n c e s o f t h e o f f e n s e s

charged or suspected, including extenuating circumstances;

(2) The weight of the evidence against the accused;

(3) The accused’s ties to the locale, including family,

off-duty employment, financial resources, and length of residence;

(4) The accused’s character and mental condition;

(5) The accused’s service record, including any record

of previous misconduct;

(6) The accused’s record of appearance at or flight from

other pretrial investigations, trials, and similar proceedings; and

(7) The likelihood that the accused can and will commit

further serious criminal misconduct if allowed to remain at liberty.

Although the Military Rules of Evidence are not applicable,

the commander should judge the reliability of the information

available. Before relying on the reports of others, the commander

must have a reasonable belief that the information is believable

and has a factual basis. The information may be received orally or

in writing. Information need not be received under oath, but an

oath may add to its reliability. A commander may examine the

prisoner’s personnel records, police records, and may consider the

recommendations of others.

Less serious forms of restraint must always be considered

before pretrial confinement may be approved. Thus the commander should consider whether the prisoner could be safely

returned to the prisoner’s unit, at liberty or under restriction,

arrest, or conditions on liberty. See R.C.M. 304.

(C) 72-hour memorandum. If continued pretrial

confinement is approved, the commander shall prepare a written memorandum that 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

t o t h e 7 - d a y r e v i e w i n g o f f i c e r u n d e r s u b s e c t i o n

(i)(2) 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 ) 4 8 - h o u r p r o b a b l e c a u s e d e t e r m i n a t i o n . R e -

view of the adequacy of probable cause to continue

pretrial confinement shall be made by a neutral and

detached officer within 48 hours of imposition of

confinement under military control. If the prisoner is

apprehended by civilian authorities and remains in

civilian custody at the request of military authorities,

reasonable efforts will be made to bring the prisoner

under military control in a timely fashion.

(2) 7-day review of pretrial confinement. Within

7 days of the imposition of confinement, a neutral

and detached officer appointed in accordance with

regulations prescribed by the Secretary concerned

shall review the probable cause determination and

necessity for continued pretrial confinement. In calculating the number of days of confinement for purposes of this rule, the initial date of confinement

II-23

R.C.M. 305(i)(2)
under military control shall count as one day and the

date of the review shall also count as one day.

(A) Nature of the 7-day review.

( i ) M a t t e r s c o n s i d e r e d . T h e r e v i e w u n d e r

this subsection shall include a review of the memor a n d u m s u b m i t t e d b y t h e p r i s o n e r ’ s c o m m a n d e r

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 7-day reviewing officer and make a statement, if practicable. A representative of the command may also appear before the reviewing officer

to make a statement.

(ii) 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.

(iii) Standard of proof. The requirements for

confinement under subsection (h)(2)(B) of this rule

must be proved by a preponderance of the evidence.

(B) Extension of time limit. The 7-day reviewing officer may, for good cause, extend the time

limit for completion of the review to 10 days after

the imposition of pretrial confinement.

(C) Action by 7-day reviewing officer. Upon

completion of review, the reviewing officer shall

approve continued confinement or order immediate

release.

(D) Memorandum. The 7-day 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 7-day reviewing

officer shall be maintained in accordance with regulations prescribed by the Secretary concerned and

p r o v i d e d t o t h e a c c u s e d o r t h e G o v e r n m e n t o n

request.

(E) Reconsideration of approval of continued

confinement. The 7-day reviewing officer shall upon

request, and after notice to the parties, reconsider the

decision to confine the prisoner based upon any significant information not previously considered.

(j) Review by military judge. Once the charges for

which the accused has been confined are referred to

trial, the military judge shall review the propriety of

p r e t r i a l c o n f i n e m e n t u p o n m o t i o n f o r a p p r o p r i a t e

relief.

(1) Release. The military judge shall order release

from pretrial confinement only if:

(A) The 7-day 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 ) I n f o r m a t i o n n o t p r e s e n t e d t o t h e 7 - d a y

reviewing officer establishes that the prisoner should

be released under subsection (h)(2)(B) of this rule;

or

(C) The provisions of subsection (i)(1) or (2)

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 failure to comply with the

provisions of subsections (f), (h), or (i) of this rule.

(k) Remedy. The remedy for noncompliance with

subsections (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 1 day credit for each day of confinement

served as a result of such noncompliance. The military judge may order additional credit for each day

of pretrial confinement that involves an abuse of

d i s c r e t i o n o r u n u s u a l l y h a r s h c i r c u m s t a n c e s . T h i s

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 shall be applied against

hard labor without confinement, restriction, fine, and

forfeiture of pay, in that order, using the conversion

formula under R.C.M. 1003(b)(6) and (7). 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.

(l) 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 discovery, after the order of release,

II-24

R.C.M. 305(i)(2)
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 ) A t s e a . S u b s e c t i o n s ( e ) ( 2 ) a n d ( 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-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.)

Rule 306. Initial disposition

(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 interest

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

the commander should consider, to the extent they are known,

include:

(A) the character and military service of the accused;

(B) the nature of and circumstances surrounding the

offense and the extent of the harm caused by the offense, including the offense’s effect on morale, health, safety, welfare, and

discipline;

(C) appropriateness of the authorized punishment to the

particular accused or offense;

(D) possible improper motives of the accuser;

(E) reluctance of the victim or others to testify;

(F) cooperation of the accused in the apprehension or

conviction of others;

(G) availability and likelihood of prosecution of the

same or similar and related charges against the accused by another jurisdiction;

(H) availability and admissibility of evidence;

(I) existence of jurisdiction over the accused and the

offense; and

II-25

R.C.M. 306(b)
(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

P r o m p t d i s p o s i t i o n o f c h a r g e s i s e s s e n t i a l . S e e R . C . M . 7 0 7

(speedy trial requirements).

Before determining an appropriate disposition, a commander

should ensure that a preliminary inquiry under R.C.M. 303 has

been conducted. If charges have not already been preferred, the

commander may, if appropriate, prefer them and dispose of them

under this rule. But see R.C.M. 601 (c) regarding disqualification

of an accuser.

If charges have been preferred, the commander should ensure that the accused has been notified in accordance with R.C.M.

308, and that charges are in proper form. See R.C.M. 307. Each

commander who forwards or disposes of charges may make minor changes therein. See R.C.M. 603(a) and (b). If major changes

are necessary, the affected charge should be preferred anew. See

R.C.M. 603(d).

When charges are brought against two or more accused with

a v i e w t o a j o i n t o r c o m m o n t r i a l , s e e R . C . M . 3 0 7 ( c ) ( 5 ) ;

601(e)(3). If it appears that the accused may lack mental capacity

to stand trial or may not have been mentally responsible 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 stage

does not bar later disposition of the offenses under subsection

(c)(2) through (5) of this rule.

See R.C.M. 401(a) concerning who may dismiss charges,

and R.C.M. 401(c)(1) concerning dismissal of charges.

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 regulations of

t h e S e c r e t a r y c o n c e r n e d , i n c l u d e m a t t e r s r e l a t e d t o e f f i c i e n c y

reports, academic reports, and other ratings; rehabilitation and

reassignment; career field reclassification; administrative reduction for inefficiency; bar to reenlistment; personnel reliability

program reclassification; security classification changes; pecuniary liability for negligence or misconduct; 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.

Discussion

If charges have not been preferred, they may be preferred. See

R . C . M . 3 0 7 c o n c e r n i n g p r e f e r r a l o f c h a r g e s . H o w e v e r , s e e

R.C.M. 601(c) concerning disqualification of an accuser.

Charges may be disposed of by dismissing them, forwarding

them to another commander for disposition, or referring them to a

summary, special, or general court-martial. Before charges may

be referred to a general court-martial, compliance with R.C.M.

405 and 406 is necessary. Therefore, if appropriate, an investigation under R.C.M. 405 may be directed. Additional guidance on

these matters is found in R.C.M. 401-407.

( 5 ) F o r w a r d i n g f o r d i s p o s i t i o n . A c o m m a n d e r

m a y f o r w a r d a m a t t e r c o n c e r n i n g a n o f f e n s e , o r

charges, to a superior or subordinate authority for

disposition.

Discussion

The immediate commander may lack authority to take action

which that commander believes is an appropriate disposition. In

such cases, the matter should be forwarded to a superior officer

w i t h a r e c o m m e n d a t i o n a s t o d i s p o s i t i o n . S e e a l s o R . C . M .

401(c)(2) concerning forwarding charges. If allegations are forwarded to a higher authority for disposition, because of lack of

authority or otherwise, the disposition decision becomes a matter

within the discretion of the higher authority.

A matter may be forwarded for other reasons, such as for

investigation of allegations and preferral of charges, if warranted

(see R.C.M. 303; 307), or so that a subordinate can 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

II-26

R.C.M. 306(b)
matter shall be forwarded to the general court-mart i a l c o n v e n i n g a u t h o r i t y f o r a c t i o n u n d e r 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 person

is unable to make truthfully the required oath. See Article 30(a)

and subsection (b) of this rule. A person who has been the

accuser or nominal accuser (see Article 1(9)) may not also serve

as the convening authority of a general or special court-martial to

which the charges are later referred. See Articles 22(b) and 23(b);

R.C.M. 601; however, see R.C.M. 1302(b) (summary court-martial convening authority is not disqualified by being the accuser).

A person authorized to dispose of offenses (see R.C.M. 306(a);

401–404 and 407) should not be ordered to prefer charges when

this would disqualify that person from exercising that persons’s

authority or would improperly restrict that person’s discretion to

act on the case. See R.C.M. 104 and 504(c).

Charges may be preferred against a person subject to trial by

court-martial at any time but should be preferred without unnecessary delay. See the statute of limitations prescribed by Article

43. Preferral of charges should not be unnecessarily delayed.

When a good reason exists—as when a person is permitted to

continue a course of conduct so that a ringleader or other conspirators may also be discovered or when a suspected counterfeiter

goes uncharged until guilty knowledge becomes apparent—a reasonable delay is permissible. However, 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

f a c t t o t h e b e s t o f t h a t p e r s o n ’ s k n o w l e d g e a n d

belief.

Discussion

See Article 136 for authority to administer oaths. The following

form may be used to administer the oath:

“You (swear) (affirm) that you are a person subject to the

Uniform Code of Military Justice, that you have personal knowledge of or have investigated the matters set forth in the foregoing

charge(s) and specification(s), and that the same are true in fact to

the best of your knowledge and belief. (So help you God.)”

The accuser’s belief may be based upon reports of others in

whole or in part.

(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 ) C h a r g e . A c h a r g e s t a t e s t h e a r t i c l e o f t h e

code, law of war, or local penal law of an occupied

t e r r i t o r y w h i c h t h e a c c u s e d i s a l l e g e d t o h a v e

violated.

Discussion

The particular subdivision of an article of the code (for example,

Article 118(1)) should not be included in the charge. When there

are numerous infractions of the same article, there will be only

one charge, but several specifications thereunder. There may also

be several charges, but each must allege a violation of a different

article of the code. For violations of the law of war, see (D)

below.

(A) Numbering charges. If there is only one charge, it is not

numbered. When there is more than one charge, each charge is

numbered by a Roman numeral.

(B) Additional charges. Charges preferred after others have

been preferred are labeled “additional charges” and are also numbered with Roman numerals, beginning with “I” if there is more

than one additional charge. These ordinarily relate to offenses not

known at the time or committed after the original charges were

preferred. Additional charges do not require a separate trial if

incorporated in the trial of the original charges before arraignment. See R.C.M. 601(e)(2).

(C) Preemption. An offense specifically defined by Articles

81 through 132 may not be alleged as a violation of Article 134.

See paragraph 60c(5)(a) of Part IV. But see subsection (d) of this

rule.

(D) Charges under the law of war. In the case of a person

subject to trial by general court-martial for violations of the law

of war ( see Article 18), the charge should be: “Violation of the

Law of War”; or “Violation of , ”

referring to the local penal law of the occupied territory. See

R.C.M. 201(f)(1)(B). But see subsection (d) of this rule. Ordinarily persons subject to the code should be charged with a specific

violation of the code rather than a violation of the law of war.

(3) Specification. 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

II-27

R.C.M. 307(c)(3)
offense expressly or by necessary implication. Except for aggravating factors under R.C.M 1003(d)

and R.C.M. 1004, facts that increase the maximum

authorized punishment must be alleged in order to

permit the possible increased punishment. No particular format is required.

Discussion

How to draft specifications.

(A) Sample specifications. Before drafting a specification,

the drafter should read the pertinent provisions of Part IV, where

the elements of proof of various offenses and forms for specifications appear.

(B) Numbering specifications. If there is only one specification under a charge it is not numbered. When there is more than

one specification under any charge, the specifications are numbered in Arabic numerals. The term “additional” is not used in

connection with the specifications under an additional charge.

(C) Name and description of the accused.

(i) Name. The specification should state the accused’s

full name: first name, middle name or initial, last name. If the

accused is known by more than one name, the name acknowledged by the accused should be used. If there is no such acknowledgment, the name believed to be the true name should be listed

first, followed by all known aliases. For example: Seaman John P.

Smith, U.S. Navy, alias Lt. Robert R. Brown, U.S. Navy.

(ii) Military association. The specification should state

the accused’s rank or grade. If the rank or grade of the accused

has changed since the date of an alleged offense, and the change

is pertinent to the offense charged, the accused should be identified by the present rank or grade followed by rank or grade on

the date of the alleged offense. For example: In that Seaman

, t h e n S e a m a n A p p r e n -

tice , etc.

(iii) Social security number or service number. The

social security number or service number of an accused should

not be stated in the specification.

(iv) Basis of personal jurisdiction.

(a) Military members on active duty. Ordinarily, no

allegation of the accused’s armed force or unit or organization is

necessary for military members on active duty.

(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 acc u s e d ’ s a r m e d f o r c e , u n i t o r o r g a n i z a t i o n , p o s i t i o n , o r s t a t u s

which will indicate the basis of jurisdiction. For example: John

Jones, (a person employed by and serving with the U.S. Army in

the field in time of war) (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.

( i v ) E x t e n d e d p e r i o d s . W h e n t h e a c t s s p e c i f i e d e x -

tend(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 divers occasions

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. Pleading the accused’s rank or grade along with the proper elements of the

offense normally will be sufficient to establish subject-matter

jurisdiction.

(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

“ w r o n g f u l l y , ” “ u n l a w f u l l y , ” o r “ w i t h o u t a u t h o r i t y ” ( d e p e n d i n g

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 prepare 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.

( i v ) D u p l i c i t o u s n e s s . O n e s p e c i f i c a t i o n s h o u l d n o t a l l e g e

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 drafting 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.

( i i i ) P r o p e r t y . I n d e s c r i b i n g p r o p e r t y g e n e r i c t e r m s

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

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R.C.M. 307(c)(3)
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 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 amounts.

(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 spec i f i c a l l e g a t i o n n e g a t i n g t h e e x c e p t i o n s . H o w e v e r , w o r d s o f

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.

(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 tried 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. Matters in aggravation that

do not increase the maximum authorized punishment ordinarily

should not be alleged in the specification. Prior convictions need

not be alleged in the specification to permit increased punishment. Aggravating factors in capital cases should not be alleged

in the specification. Notice of such factors is normally provided

in accordance with R.C.M. 1004(b)(1).

(x) Abbreviations. Commonly used and understood abbreviations may be used, particularly abbreviations for ranks,

grades, units and organizations, components, and geographic or

political entities, such as the names of states or countries.

(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. What is substantially one

transaction should not be made the basis for an unr e a s o n a b l e m u l t i p l i c a t i o n o f c h a r g e s a g a i n s t o n e

person.

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)(1)(C). For example, a person

should not be charged with both 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

i n t h e o f f e n s e w h i c h i s t h e s u b j e c t o f t h e

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

II-29

R.C.M. 307(c)(5)
j o i n t o f f e n s e s t h e p a r t i c i p a n t s m a y b e s e p a r a t e l y o r j o i n t l y

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.

(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 ) I m m e d i a t e c o m m a n d e r . T h e i m m e d i a t e c o m -

mander 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.

II-30

R.C.M. 307(c)(5)
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

c h a r g e s i n i n d i v i d u a l c a s e s , t y p e s o f c a s e s , o r

generally.

Discussion

See R.C.M. 504 as to who may convene courts-martial and paragraph 2 of Part V as to who may administer nonjudicial punishment. If the power to convene courts-martial and to administer

nonjudicial punishment has been withheld, a commander may not

dispose of charges under this rule.

Ordinarily charges should be forwarded to the accused’s

immediate commander for initial consideration as to disposition.

Each commander has independent discretion to determine how

charges will be disposed of, except to the extent that the commander’s authority has been withheld by superior competent authority. See also R.C.M. 104.

Each commander who forwards or disposes of charges may

make minor changes therein. See R.C.M. 603(a) and (b). If major

changes are necessary, the affected charge should be preferred

anew. See R.C.M. 603(d). If a commander is an accuser (see

Article 1(9); 307(a)) that commander is ineligible to refer such

charges to a general or special court-martial. See R.C.M. 601(c).

However, see R.C.M. 1302(b) (accuser may refer charges to a

summary court-martial).

(b) Prompt determination. When a commander with

authority to dispose of charges receives charges, that

commander shall promptly determine what disposit i o n w i l l b e m a d e i n t h e i n t e r e s t o f j u s t i c e a n d

discipline.

Discussion

I n d e t e r m i n i n g w h a t l e v e l o f d i s p o s i t i o n i s a p p r o p r i a t e , s e e

R.C.M. 306(b) and (c). When charges are brought against two or

more accused with a view to a joint or common trial, see R.C.M.

307(c)(5); 601(e)(3). If it appears that the accused may lack

mental capacity to stand trial or may not have been mentally

responsible at the times of the offenses, see R.C.M. 706; 909;

916(k).

As to the rules concerning speedy trial, see R.C.M. 707. See

also Articles 10; 30; 33; 98.

Before determining an appropriate disposition, a commander

who receives charges should ensure that: (1) a preliminary inquiry

under R.C.M. 303 has been conducted; (2) the accused has been

notified in accordance with R.C.M. 308; and (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 collectively. If charges are referred to a court-martial, ordinarily all known

charges should be referred to a single court-martial.

See Appendix 3 when the charges may involve matters in

which the Department of Justice has an interest.

( 1 ) D i s m i s s a l . W h e n a c o m m a n d e r d i s m i s s e s

charges further disposition under R.C.M. 306(c) of

the offenses is not barred.

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 a 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 nonjudicial punishment unless the accused has indicated willingness to

a c c e p t n o n j u d i c i a l p u n i s h m e n t i f a g a i n o f f e r e d . T h e d e c i s i o n

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.

I t i s a p p r o p r i a t e t o d i s m i s s a c h a r g e a n d p r e f e r a n o t h e r

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.

(2) Forwarding charges.

II-31
( A ) F o r w a r d i n g t o a s u p e r i o r c o m m a n d e r .

W h e n c h a r g e s a r e f o r w a r d e d t o a s u p e r i o r c o m -

mander 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 comm a n d e r . O t h e r m a t t e r s w h i c h m a y b e a p p r o p r i a t e i n c l u d e

information concerning the accused’s background and character

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 conveni n g a u t h o r i t y p r o m p t l y a n d s h o u l d b e n o t e d i n t h e l e t t e r o f

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

E x c e p t w h e n d i r e c t e d t o f o r w a r d c h a r g e s , a s u b o r d i n a t e

commander may not be required to take any specific action to

dispose of charges. See R.C.M. 104. See also paragraph 1d(2) of

Part V. When appropriate, charges may be sent or returned to a

subordinate commander for compliance with procedural requirem e n t s . S e e , f o r e x a m p l e , R . C . M . 3 0 3 ( p r e l i m i n a r y i n q u i r y ) ;

R.C.M. 308 (notification to accused of charges).

( 3 ) R e f e r r a l o f c h a r g e s . S e e R . C . M . 4 0 3 , 4 0 4 ,

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 offic e r e x e r c i s i n g g e n e r a l c o u r t - m a r t i a l c o n v e n i n g

authority.

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)(1) concerning dismissal of charges, the effect

of dismissal, and options for further action.

( 2 ) F o r w a r d t h e m t o a s u p e r i o r c o m m a n d e r f o r

disposition.

Discussion

See R.C.M. 401(c)(2) for additional guidance concerning forwarding charges. See generally R.C.M. 303 (preliminary inquiry); 308

(notification to accused of charges) concerning other duties of the

immediate commander when in receipt of charges.

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 courtmartial jurisdiction over the command shall cause

II-32

R.C.M. 401(c)(2)(A)
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 exercise

summary court-martial jurisdiction.

The entry indicating receipt is important because it stops the

running of the statute of limitations. See Article 43; R.C.M.

907(b)(2)(B). Charges may be preferred and forwarded to an

o f f i c e r e x e r c i s i n g s u m m a r y c o u r t - m a r t i a l j u r i s d i c t i o n o v e r t h e

command to stop the running of the statute of limitations even

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)(1) concerning dismissal of charges, the effect

of dismissing charges, and options for further action.

(2) Forward charges (or, after dismissing charges,

t h e m a t t e r ) t o a s u b o r d i n a t e c o m m a n d e r f o r

disposition;

Discussion

See R.C.M. 401(c)(2)(B) concerning forwarding charges to a subordinate. When appropriate, charges may be forwarded to a subordinate even if the subordinate previously considered them.

(3) Forward any charges to a superior commander

for disposition;

Discussion

S e e R . C . M . 4 0 1 ( c ) ( 2 ) ( A ) f o r g u i d a n c e c o n c e r n i n g f o r w a r d i n g

charges to a superior.

(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) concerning referral of charges to a summary

court-martial.

(5) Unless otherwise prescribed by the Secretary

c o n c e r n e d , d i r e c t a p r e t r i a l i n v e s t i g a t i o n u n d e r

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 the

charges are of such a serious nature that trial by general courtmartial may be warranted. See R.C.M. 405. If an investigation of

t h e s u b j e c t m a t t e r a l r e a d y h a s b e e n c o n d u c t e d , s e e R . C . M .

405(b).

Rule 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)(1) concerning dismissal of charges, the effect

of dismissing charges, and options for further action.

(b) Forward charges (or, after dismissing charges,

t h e m a t t e r ) t o a s u b o r d i n a t e c o m m a n d e r f o r

disposition;

Discussion

See R.C.M. 401(c)(2)(B) concerning forwarding charges to a subordinate. When appropriate, charges may be forwarded to a subordinate even if that subordinate previously considered them.

(c) Forward any charges to a superior commander

for disposition;

Discussion

S e e R . C . M . 4 0 1 ( c ) ( 2 ) ( A ) f o r g u i d a n c e c o n c e r n i n g f o r w a r d i n g

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 convene special courts-martial.

See R.C.M. 601 concerning referral of charges to a special

court-martial. See R.C.M. 1302(c) concerning referral of charges

to a summary court-martial.

II-33

R.C.M. 404(d)
( e ) U n l e s s o t h e r w i s e p r e s c r i b e d b y t h e S e c r e t a r y

c o n c e r n e d , d i r e c t a p r e t r i a l i n v e s t i g a t i o n u n d e r

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 the

charges are of such a serious nature that trial by general courtmartial may be warranted. See R.C.M. 405. If an investigation of

t h e s u b j e c t m a t t e r a l r e a d y h a s b e e n c o n d u c t e d , s e e R . C . M .

405(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 Article 32

and this rule is to inquire into the truth of the matters set forth in

the charges, the form of the charges, and to secure information on

which to determine what disposition should be made of the case.

The investigation also serves as a means of discovery. The function of the investigation is to ascertain and impartially weigh all

available facts in arriving at conclusions and recommendations,

not to perfect a case against the accused. The investigation should

be limited to the issues raised by the charges and necessary to

proper disposition of the case. The investigation is not limited to

examination of the witnesses and evidence mentioned in the accompanying allied papers. See subsection (e) of this rule. Recommendations of the investigating officer are advisory.

If at any time after an investigation under this rule the

charges are changed to allege a more serious or essentially different offense, further investigation should be directed with respect

to the new or different matters alleged.

Failure to comply substantially with the requirements of Article 32, which failure prejudices the accused, may result in delay

in disposition of the case or disapproval of the proceedings. See

R.C.M. 905(b)(1) and 906(b)(3) concerning motions for appropriate relief relating to the pretrial investigation.

The accused may waive the pretrial investigation. See subsection (k) of this rule. In such case, no investigation need be

held. The commander authorized to direct the investigation may

direct that it be conducted notwithstanding the waiver.

(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 crossexamination 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 invest i g a t i o n m a y b e d i r e c t e d u n d e r t h i s r u l e b y a n y

c o u r t - m a r t i a l c o n v e n i n g a u t h o r i t y . T h a t a u t h o r i t y

may also give procedural instructions not inconsistent with these rules.

(d) Personnel.

(1) Investigating officer. 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.

Discussion

The investigating officer should be an officer in the grade of

major or lieutenant commander or higher or one with legal training. The investigating officer may seek legal advice concerning

t h e i n v e s t i g a t i n g o f f i c e r ’ s r e s p o n s i b i l i t i e s f r o m a n i m p a r t i a l

source, but may not obtain such advice from counsel for 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 ) I n d i v i d u a l m i l i t a r y c o u n s e l . T h e a c c u s e d

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 repr e s e n t e d b y i n d i v i d u a l m i l i t a r y c o u n s e l , c o u n s e l

detailed to represent the accused shall ordinarily be

excused, unless the authority who detailed the defense counsel, as a matter of discretion, approves a

r e q u e s t b y t h e a c c u s e d f o r r e t e n t i o n o f d e t a i l e d

II-34

R.C.M. 404(e)
counsel. The investigating officer shall forward any

request by the accused for individual military counsel to the commander who directed the investigation.

T h a t c o m m a n d e r s h a l l f o l l o w t h e p r o c e d u r e s i n

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

h a v e s u c h c o u n s e l p r e s e n t f o r t h e i n v e s t i g a t i o n .

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 r e c o m m e n d a t i o n a s t o t h e d i s p o s i t i o n o f t h e

charges. If evidence adduced during the investigation indicates that the accused committed an uncharged offense, the investigating officer may investigate

the subject matter of such offense and make a recommendation as to its disposition, without the accused first having been charged with the offense.

The accused’s rights under subsection (f) are the

same with regard to investigation of both charged

and uncharged offenses.

Discussion

The investigation may properly include such inquiry into issues

raised directly by the charges as is necessary to make an appropriate recommendation. For example, inquiry into the legality of a

search or the admissibility of a confession may be appropriate.

However, the investigating officer is not required to rule on the

admissibility of evidence and need not consider such matters

except as the investigating officer deems necessary to an informed recommendation. When the investigating officer is aware

that evidence may not be admissible, this should be noted in the

report. See also subsection (i) of this rule.

In investigating uncharged misconduct identified during the

pretrial investigation, the investigating officer will inform the

accused of the general nature of each uncharged offense investigated, and otherwise afford the accused the same opportunity for

representation, cross examination, and presentation afforded during the investigation of any charge offense.

(f) Rights of the accused. At any pretrial investigation under this rule the accused shall have the right

to:

( 1 ) B e i n f o r m e d o f t h e c h a r g e s u n d e r

investigation;

(2) Be informed of the identity of the accuser;

(3) Except in circumstances described in R.C.M.

8 0 4 ( b ) ( 2 ) , b e p r e s e n t t h r o u g h o u t t h e t a k i n g o f

evidence;

(4) Be represented by counsel;

(5) Be informed of the witnesses and other evidence then known to the investigating officer;

( 6 ) B e i n f o r m e d o f t h e p u r p o s e o f t h e

investigation;

(7) Be informed of the right against self-incrimination under Article 31;

( 8 ) C r o s s - e x a m i n e w i t n e s s e s w h o a r e p r o d u c e d

under subsection (g) of this rule;

(9) Have witnesses produced as provided for in

subsection (g) of this rule;

( 1 0 ) H a v e e v i d e n c e , i n c l u d i n g d o c u m e n t s o r

physical evidence, within the control of military authorities produced as provided under subsection (g)

of this rule;

(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.

(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 acc u s e d , i f t h e r e q u e s t i s t i m e l y . A w i t n e s s i s

“reasonably available” when the witness is located

within 100 miles of the situs of the investigation and

the significance of the testimony and personal appearance of the witness outweighs the difficulty, expense, delay, and effect on military operations of

II-35

R.C.M. 405(g)(1)(A)
obtaining the witness’ appearance. A witness who is

unavailable under Mil. R. Evid. 804(a)(1)-(6), is not

“reasonably available.”

Discussion

A witness located beyond the 100-mile limit is not per se unavailable. To determine if a witness beyond 100 miles is reasonably

available, the significance of the witness’ live testimony must be

balanced against the relative difficulty and expense of obtaining

the witness’ presence at the hearing.

(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. As soon as

practicable after receipt of a request by the accused

for information which may be protected under Mil.

R. Evid. 505 or 506, the investigating officer shall

notify the person who is authorized to issue a protective order under subsection (g)(6) of this rule, and

the convening authority, if different. 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 should

consider what evidence will be necessary to prepare a thorough

and impartial investigation. The investigating officer should consider, as to potential witnesses, whether their personal appearance

will be necessary. Generally, personal appearance is preferred, but

the investigating officer should consider whether, in light of the

probable importance of a witness’ testimony, an alternative to

testimony under subsection (g)(4)(A) of this rule would be sufficient.

After making a preliminary determination of what witnesses

will be produced and other evidence considered, the investigating

officer should notify the defense and inquire whether it requests

the production of other witnesses or evidence. In addition to

witnesses for the defense, the defense may request production of

witnesses whose testimony would favor the prosecution.

Once it is determined what witnesses the investigating officer intends to call it must be determined whether each witness is

reasonably available. That determination is a balancing test. The

more important the testimony of the witness, the greater the

difficulty, expense, delay, or effect on military operations must be

to permit nonproduction. For example, the temporary absence of a

witness on leave for 10 days would normally justify using an

alternative to that witness’ personal appearance if the sole reason

for the witness’ testimony was to impeach the credibility of another witness by reputation evidence, or to establish a mitigating

character trait of the accused. On the other hand, if the same

witness was the only eyewitness to the offense, personal appearance would be required if the defense requested it and the witness

is otherwise reasonably available. The time and place of the

investigation may be changed if reasonably necessary to permit

the appearance of a witness. Similar considerations apply to the

production of evidence.

If the production of witnesses or evidence would entail substantial costs or delay, the investigating officer should inform the

commander who directed the investigation.

The provision in (B), requiring the investigating officer to

notify the appropriate authorities of requests by the accused for

information privileged under Mil. R. Evid. 505 or 506, is for the

purpose of placing the appropriate authority on notice that an

order, as authorized under subparagraph(g)(6), may be required to

protect whatever information the government may decide to release to the accused.

(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 reas o n a b l y a v a i l a b l e , t h e i n v e s t i g a t i n g o f f i c e r s h a l l

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 reasonable

availability with the immediate commander of the requested witness and with others. If the immediate commander determined

that the witness is not reasonably available, the reasons for that

determination should be provided to the investigating 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 a

civilian witness is reasonably available without regard to whether

the witness is willing to appear. If the investigating officer determines that a civilian witness is apparently reasonably available,

the witness should be invited to attend and when appropriate,

informed that necessary expenses will be paid.

If the witness refuses to testify, the witness is not reasonably

available because civilian witnesses may not be compelled to

attend a pretrial investigation. Under subsection (g)(3) of this

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R.C.M. 405(g)(1)(A)
rule, civilian witnesses may be paid for travel and associated

expenses to testify at a pretrial investigation.

( C ) E v i d e n c e . T h e i n v e s t i g a t i n g o f f i c e r s h a l l

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 rev i e w e d b y t h e m i l i t a r y j u d g e u n d e r R . C . M .

906(b)(3).

Discussion

The investigating officer may discuss factors affecting reasonable

availability with the custodian and with others. If the custodian

d e t e r m i n e s t h a t t h e e v i d e n c e i s n o t r e a s o n a b l y a v a i l a b l e , t h e

reasons for that determination should be provided to the investigating officer.

(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 ) W i t n e s s e x p e n s e s . T r a n s p o r t a t i o n e x p e n s e s

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

S e e D e p a r t m e n t o f D e f e n s e J o i n t T r a v e l R e g u l a t i o n s , V o l 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;

( i i ) S t a t e m e n t s u n d e r o a t h t a k e n b y t e l e -

phone, 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 ) S t i p u l a t i o n s o f f a c t o r e x p e c t e d

testimony;

(vi) Unsworn statements; and

(vii) Offers of proof of expected testimony

of that witness.

( B ) T h e i n v e s t i g a t i n g o f f i c e r m a y c o n s i d e r ,

over objection of the defense, when the witness is

not reasonably available:

(i) Sworn statements;

( i i ) S t a t e m e n t s u n d e r o a t h t a k e n b y t e l e -

phone, 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 a

claimed;

(iii) Prior testimony under oath; and

(iv) Deposition of that witness; and

(v) In time of war, unsworn statements.

(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;

( i i ) A n a u t h e n t i c a t e d c o p y , p h o t o g r a p h , o r

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 ) T h e i n v e s t i g a t i n g o f f i c e r m a y c o n s i d e r ,

over objection of the defense, when the evidence is

not reasonably available:

(i) Testimony describing the evidence;

( i i ) A n a u t h e n t i c a t e d c o p y , p h o t o g r a p h , o r

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.

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R.C.M. 405(g)(5)(B)(iii)
(6) Protective order for release of privileged inf o r m a t i o n . I f , p r i o r t o r e f e r r a l , t h e G o v e r n m e n t

a g r e e s t o d i s c l o s e t o t h e a c c u s e d i n f o r m a t i o n t o

which the protections afforded by Mil. R. Evid. 505

or 506 may apply, the convening authority, or other

person designated by regulation of the Secretary of

the service concerned, may enter an appropriate protective order, in writing, to guard against the compromise of information disclosed to the accused. The

t e r m s o f a n y s u c h p r o t e c t i v e o r d e r m a y i n c l u d e

prohibiting the disclosure of the information except

as authorized by the authority issuing the protective

order, as well as those terms specified by Mil. R.

Evid. 505(g)(1)(B) through (F) or 506(g)(2) through

(5).

(h) Procedure.

(1) Presentation of evidence.

( A ) T e s t i m o n y . A l l t e s t i m o n y s h a l l b e t a k e n

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:

“Do you (swear) (affirm) that the evidence you give shall be

the truth, the whole truth, and nothing but the truth (, so help you

God)?”

The investigating officer is required to include in the report

of the investigation a summary of the substance of all testimony.

See subsection (j)(2)(B) of this rule. After the hearing, the investigating officer should, whenever possible, reduce the substance of

the testimony of each witness to writing and, unless it would

unduly delay completion of the investigation, have each witness

sign and swear to the truth of the respective summaries. The

following oath may be given to a witness in such cases:

“You (swear) (affirm) that this statement is the truth, the

whole truth, and nothing but the truth (, so help you God)?”

If the accused testifies, the investigating officer may invite but

not require the accused to swear to the truth of a summary of that

testimony. If substantially verbatim notes of a testimony or record i n g s o f t e s t i m o n y w e r e t a k e n d u r i n g t h e i n v e s t i g a t i o n , t h e y

should be preserved until the end of trial.

If it appears that material witnesses for either side will not

be available at the time anticipated for trial, the investigating

officer should notify the commander who directed the investigation so that depositions may be taken if necessary.

If during the investigation any witness subject to the code is

suspected of an offense under the code, the investigating officer

should comply with the warning requirements of Mil. R. Evid.

305(c), (d), and, if necessary, (e).

( B ) O t h e r e v i d e n c e . T h e i n v e s t i g a t i n g o f f i c e r

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.

Discussion

See also subsection (k) of this rule.

Although the investigating officer is not required to rule on

objections, the investigating officer may take corrective action in

response to an objection as to matters relating to the conduct of

the proceedings when the investigating officer believes such action is appropriate.

If an objection raises a substantial question about a matter

within the authority of the commander who directed the investigation (for example, whether the investigating officer was properly

appointed) the investigating officer should promptly inform the

commander who directed the investigation.

(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.

Discussion

Article 32 investigations are public hearings and should remain

open to the public whenever possible. When an overriding interest exists that outweighs the value of an open investigation, the

hearing may be closed to spectators. Any closure must be narrowly tailored to achieve the overriding interest that justified the

closure. Commanders or investigating officers must conclude that

no lesser methods short of closing the Article 32 can be used to

protect the overriding interest in the case. Commanders or investigating officers must conduct a case-by-case, witness-by-witness,

circumstance-by-circumstance analysis of whether closure is necessary. If a commander or investigating officer believes closing

the Article 32 investigation is necessary, the commander or investigating officer must make specific findings of fact in writing that

support the closure. The written findings of fact must be included

in the Article 32 investigating officer’s report. Examples of overriding interests may include: preventing psychological harm or

trauma to a child witness or an alleged victim of a sexual crime,

protecting the safety of a witness or alleged victim, protecting

II-38

R.C.M. 405(g)(6)
classified material, and receiving evidence where a witness is

incapable of testifying in an open setting.

(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, 412 and Section V—shall not apply in

pretrial investigations under this rule.

Discussion

The investigating officer should exercise reasonable control over

the scope of the inquiry. See subsection (e) of this rule. An

investigating officer may consider any evidence, even if that evidence would not be admissible at trial. However, see subsection

(g)(4) of this rule as to limitations on the ways in which testimony may be presented.

Certain rules relating to the form of testimony which may be

considered by the investigating officer appear in subsection (g) of

this rule.

(j) Report of investigation.

( 1 ) I n g e n e r a l . T h e i n v e s t i g a t i n g o f f i c e r s h a l l

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 should

be forwarded to the general court-martial convening authority

within 8 days after an accused is ordered into arrest or confinement. Article 33.

( 2 ) C o n t e n t s . T h e r e p o r t o f i n v e s t i g a t i o n s h a l l

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;

(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 ) A n e x p l a n a t i o n o f a n y d e l a y s i n t h e

investigation;

( G ) T h e i n v e s t i g a t i n g o f f i c e r ’ s c o n c l u s i o n

whether the charges and specifications are in proper

form;

( H ) T h e i n v e s t i g a t i n g o f f i c e r ’ s c o n c l u s i o n

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 the

charges and specifications be amended or that additional charges

be preferred. See R.C.M. 306 and 401 concerning other possible

dispositions.

See Appendix 5 for a sample of the Investigating Officer’s

Report (DD Form 457).

(3) Distribution of the report. The investigating

officer shall cause the report to be delivered to the

c o m m a n d e r w h o d i r e c t e d t h e i n v e s t i g a t i o n . T h a t

c o m m a n d e r s h a l l p r o m p t l y c a u s e a c o p y o f t h e

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

II-39

R.C.M. 405(k)
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)(1); 906(b)(3).

If the report fails to include reference to objections which

were made under subsection (h)(2) of this rule, failure to object to

the report will constitute waiver of such objections in the absence

of good cause for relief from the waiver.

The commander who receives an objection may direct that

the investigation be reopened or take other action, as appropriate.

Even if the accused made a timely objection to failure to

produce a witness, a defense request for a deposition may be

necessary to preserve the issue for later review.

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 special

or summary courts-martial. A convening authority may, however,

seek the advice of a lawyer before referring charges to such a

court-martial. When charges have been withdrawn from a general

court-martial (see R.C.M. 604) or when a mistrial has been declared in a general court-martial ( see R.C.M. 915), supplementary advice is necessary before the charges may be referred to

another general court-martial.

The staff judge advocate may make changes in the charges

and specifications in accordance with R.C.M. 603.

(b) Contents. The advice of the staff judge advocate

shall include a written and signed statement which

sets forth that person’s:

(1) 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 courtmartial 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 pretrial

advice and must make an independent and informed appraisal of

the charges and evidence in order to render the advice. Another

person may prepare the advice, but the staff judge advocate is,

unless disqualified, responsible for it and must sign it personally.

Grounds for disqualification in a case include previous action in

that case as investigating officer, military judge, trial counsel,

defense counsel, or member.

The advice need not set forth the underlying analysis or

rationale for its conclusions. Ordinarily, the charge sheet, forwarding letter, endorsements, and report of investigation are forwarded with the pretrial advice. In addition, the pretrial advice

should include when appropriate: a brief summary of the evidence; discussion of significant aggravating, extenuating, or mitigating factors; any recommendations for disposition of the case

by commanders or others who have forwarded the charges; and

the recommendation of the Article 32 investigating officer. However, there is no legal requirement to include such information,

and failure to do so is not error.

Whatever matters are included in the advice, whether or not

they are required, should be accurate. Information which is incorrect or so incomplete as to be misleading may result in a determination that the advice is defective, necessitating appropriate relief.

See R.C.M. 905(b)(1);906(b)(3).

The standard of proof to be applied in R.C.M. 406(b)(2) is

probable cause. See R.C.M. 601(d)(1). Defects in the pretrial

advice are not jurisdictional and are raised by pretrial motion. See

R.C.M.905(b)(1) and its Discussion.

(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)(1) concerning dismissal of charges and the

effect of dismissing charges.

(2) Forward charges (or, after dismissing charges,

t h e m a t t e r ) t o a s u b o r d i n a t e c o m m a n d e r f o r

disposition;

II-40

R.C.M. 405(k)
Discussion

See R.C.M. 401(c)(2)(B) concerning forwarding charges to a subordinate.

A subordinate commander may not be required to take any

specific action or to dispose of charges. See R.C.M. 104. See also

paragraph 1d(2) of Part V. When appropriate, charges may be

sent or returned to a subordinate commander for compliance with

procedural requirements. See, for example, R.C.M. 303 (preliminary inquiry); R.C.M. 308 (notification to accused of charges).

(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.

(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

c o n c e r n e d , d i r e c t a p r e t r i a l i n v e s t i g a t i o n u n d e r

R.C.M. 405, after which additional action under this

rule may be taken;

Discussion

An investigation should be directed when it appears the charges

are of such a serious nature that trial by general court-martial may

be warranted. See R.C.M. 405. If an investigation of the subject

matter already has been conducted. See R.C.M. 405(b).

(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)(1)concerning who may exercise

general court-martial jurisdiction.

See R.C.M. 601 concerning referral of charges. See R.C.M.

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 harmf u l t o n a t i o n a l s e c u r i t y , t h a t c o m m a n d e r , u n l e s s

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 concerned for disposition under Article 43(e). Under Article 43(e),

the Secretary may take action suspending the statute of limitations

in time of war.

II-41

R.C.M. 407(b)
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.

(A) Except in capital cases, general courts-martial shall consist of a military judge and not less than

five members, or of the military judge alone if requested and approved under R.C.M. 903.

(B) In all capital cases, general courts-martial

shall consist of a military judge and no fewer than

12 members, unless 12 members are not reasonably

available because of physical conditions or military

exigencies. If 12 members are not reasonably available, the convening authority shall detail the next

l e s s e r n u m b e r o f r e a s o n a b l y a v a i l a b l e m e m b e r s

under 12, but in no event fewer than five. In such a

case, the convening authority shall state in the convening order the reasons why 12 members are not

reasonably available.

(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

i s d e t a i l e d a n d i f r e q u e s t e d a n d a p p r o v e d u n d e r

R.C.M. 903.

Discussion

See R.C.M. 1301(a) concerning composition of summary courtsmartial.

(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 used in

special courts-martial. Regulations of the Secretary concerned

may also require or restrict the use of reporters in special courtsmartial.

Rule 502. Qualifications and duties of

personnel of courts-martial

(a) Members.

( 1 ) Q u a l i f i c a t i o n s . T h e m e m b e r s d e t a i l e d t o 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 of

Reserve components of the armed forces are eligible to serve as

members if they are on active duty.

Members of the National Oceanic and Atmospheric Administration and of the Public Health Service are eligible to serve as

members when assigned to and serving with an armed force. The

Public Health Service includes both commissioned and warrant

officers. The National Oceanic and Atmospheric Administration

includes only commissioned officers.

(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

II-42
court-martial without a military judge may use such

materials in open session.

Discussion

Members should avoid any conduct or communication with the

military judge, witnesses, or other trial personnel during the trial

which might present an appearance of partiality. Except as provided in these rules, members should not discuss any part of a

case with anyone until the matter is submitted to them for determination. Members should not on their own visit or conduct a

view of the scene of the crime and should not investigate or

gather evidence of the offense. Members should not form an

opinion on any matter in connection with a case until that matter

has been submitted to them for determination.

(b) President.

(1) Qualifications. 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

t h e m i l i t a r y j u d g e e x c e p t a s o t h e r w i s e e x p r e s s l y

provided.

( c ) Q u a l i f i c a t i o n s o f m i l i t a r y j u d g e . A m i l i t a r y

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. 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 Advoc a t e G e n e r a l o r t h e J u d g e A d v o c a t e G e n e r a l ’ s

designee. The Secretary concerned may prescribe

additional qualifications for military judges in spec i a l c o u r t s - m a r t i a l . A s u s e d i n t h i s s u b s e c t i o n

“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 duties of

the military judge.

Military judges assigned as general court-martial judges may

perform duties in addition to the primary duty of judge of a

general court-martial only when such duties are assigned or approved by the Judge Advocate General, or a designee, of the

service of which the military judge is a member. Similar restrictions on other duties which a military judge in special courtsmartial may perform may be prescribed in regulations of the

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 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 under

Article 27(b), a person must be a member of the bar of a Federal

court or the highest court of a State. The Judge Advocate General

concerned may establish additional requirements for certification.

When the accused has individual military or civilian defense

counsel, the detailed counsel is “associate counsel” unless excused from the case. See R.C.M. 506(b)(3).

(2) Other military counsel. Any commissioned off i c e r m a y b e d e t a i l e d a s t r i a l c o u n s e l i n s p e c i a l

courts-martial, or as assistant trial counsel or assistant defense counsel in general or special courtsmartial. The Secretary concerned may establish additional qualifications for such counsel.

(3) Qualifications of individual military and civilian defense counsel. Individual military or civilian

d e f e n s e c o u n s e l w h o r e p r e s e n t s a n a c c u s e d i n 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

t o b e q u a l i f i e d t o r e p r e s e n t t h e a c c u s e d u p o n a

showing to the satisfaction of the military judge that

the counsel has appropriate training and familiarity

II-43

R.C.M. 502(d)(3)(B)
with the general principles of criminal law which

apply in a court-martial.

Discussion

In making such a determination—particularly in the case of civilian defense counsel who are members only of a foreign bar—the

military judge also should inquire into:

(i) the availability of the counsel at times at which sessions

of the court-martial have been scheduled;

(ii) whether the accused wants the counsel to appear with

military defense counsel;

(iii) the familiarity of the counsel with spoken English;

(iv) practical alternatives for discipline of the counsel in the

event of misconduct;

(v) whether foreign witnesses are expected to testify with

whom the counsel may more readily communicate than might

military counsel; and

(vi) whether ethnic or other similarity between the accused

and the counsel may facilitate communication and confidence

between the accused and civilian defense counsel.

(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 that a

person who, between referral and trial of a case, has been detailed

as counsel for any party to the court-martial to which 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 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 upon receipt of

referred charges, trial counsel should cause a copy of the charges

to be served upon accused. See R.C.M. 602.

Trial counsel should: examine the charge sheet and allied

papers for completeness and correctness; correct (and initial) minor errors or obvious mistakes in the charges but may not without

authority make any substantial changes (see R.C.M. 603); and

assure that the information about the accused on the charge sheet

and any evidence of previous convictions are accurate.

( B ) R e l a t i o n s h i p w i t h c o n v e n i n g a u t h o r i t y . T r i a l c o u n s e l

should: report to the convening authority any substantial irregularity in the convening orders, charges, or allied papers; report an

actual or anticipated reduction of the number of members below

quorum to the convening authority; bring to the attention of the

convening authority any case in which trial counsel finds trial

inadvisable for lack of evidence or other reasons.

(C) Relations with the accused and defense counsel. Trial

c o u n s e l m u s t c o m m u n i c a t e w i t h a r e p r e s e n t e d a c c u s e d o n l y

through the accused’s defense counsel. However, see R.C.M. 602.

Trial counsel may not attempt to induce an accused to plead

guilty or surrender other important rights.

(D) Preparation for trial. Trial counsel should: ensure that a

suitable room, a reporter (if authorized), and necessary equipment

and supplies are provided for the court-martial; obtain copies of

the charges and specifications and convening orders for each

member and all personnel of the court-martial; give timely notice

to the members, other parties, other personnel of the court-martial, and witnesses for the prosecution and (if known) defense of

the date, time, place, and uniform of the meetings of the courtmartial; ensure that any person having custody of the accused is

a l s o i n f o r m e d ; c o m p l y w i t h a p p l i c a b l e d i s c o v e r y r u l e s ( s e e

R.C.M. 701); prepare to make a prompt, full, and orderly presentation of the evidence at trial; consider the elements of proof of

each offense charged, the burden of proof of guilt and the burdens

of proof on motions which may be anticipated, and the Military

Rules of Evidence; secure for use at trial such legal texts as may

be available and necessary to sustain the prosecution’s contentions; arrange for the presence of witnesses and evidence in accordance with R.C.M. 703; prepare to make an opening statement

of the prosecution’s case ( see R.C.M. 913); prepare to conduct

the examination and cross-examination of witnesses; and prepare

to make final argument on the findings and, if necessary, on

sentencing (see R.C.M. 919; 1001(g)).

(E) Trial. Trial counsel should bring to the attention of the

m i l i t a r y j u d g e a n y s u b s t a n t i a l i r r e g u l a r i t y i n t h e p r o c e e d i n g s .

Trial counsel should not allude to or disclose to the members any

evidence not yet admitted or reasonably expected to be admitted

in evidence or intimate, transmit, or purport to transmit to the

military judge or members the views of the convening authority

or others as to the guilt or innocence of the accused, an appropriate sentence, or any other matter within the discretion of the

court-martial.

(F) Post-trial duties. Trial counsel must promptly provide

written notice of the findings and sentence adjudged to the convening authority or a designee, the accused’s immediate comm a n d e r , a n d ( i f a p p l i c a b l e ) t h e o f f i c e r i n c h a r g e o f t h e

c o n f i n e m e n t f a c i l i t y ( s e e R . C . M . 1 1 0 1 ( a ) ) , a n d s u p e r v i s e t h e

preparation, authentication, and distribution of copies of the record as required by these rules and regulations of the Secretary

concerned (see R.C.M. 1103; 1104).

(G) Assistant trial counsel. An assistant trial counsel may act

in that capacity only under the supervision of the detailed trial

II-44

R.C.M. 502(d)(3)(B)
counsel. Responsibility for trial of a case may not devolve to an

assistant not qualified to serve as trial counsel. Unless the contrary appears, all acts of an assistant trial counsel are presumed to

have been done by the direction of the trial counsel. An assistant

trial counsel may not act in the absence of trial counsel at trial in

a general court-martial unless the assistant has the qualifications

required of a trial counsel. See R.C.M. 805(c).

(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.

Discussion

(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 indiv i d u a l m i l i t a r y c o u n s e l o r r e t e n t i o n o f c i v i l i a n c o u n s e l . S e e

R.C.M. 506.

( B ) G e n e r a l d u t i e s o f d e f e n s e c o u n s e l . D e f e n s e c o u n s e l

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 unsworn

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)(1)(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 Criminal Appeals,

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 counsel should

also explain the possibility of further review by the Court of

A p p e a l s f o r t h e A r m e d F o r c e s a n d t h e S u p r e m e C o u r t . S e e

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 . 1 2 0 1 ( b ) ( 1 ) . D e f e n s e c o u n s e l m u s t e x p l a i n t h e c o n s e -

quences 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. 1110. 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

II-45

R.C.M. 502(d)(6)
and should submit any appropriate matters for consideration by

the judge advocate. See R.C.M. 1112. 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 served 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 the general direction of the defense counsel. A detailed

defense counsel becomes associate defense counsel when the accused has individual military or civilian counsel and detailed

counsel is not excused. Although associate counsel acts under the

g e n e r a l s u p e r v i s i o n o f t h e d e f e n s e c o u n s e l , a s s o c i a t e d e f e n s e

counsel may act without such supervision when circumstances

require. See, for example, R.C.M. 805(c). An assistant defense

counsel may do this only if such counsel has the qualifications to

act as defense counsel. Responsibility for trial of a case may not

devolve upon an assistant who is not qualified to serve as defense

counsel. An assistant defense counsel may not act in the absence

of the defense counsel at trial unless the assistant has the qualifications required of a defense counsel. See also R.C.M. 805. Unless the contrary appears, all acts of an assistant or associate

defense counsel are presumed to have been done under the supervision of the defense counsel.

(e) Interpreters, reporters, escorts, bailiffs, clerks,

and guards.

(1) 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 ) R e p o r t e r s . R e p o r t e r s s h a l l r e c o r d t h e

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 Secret a r y c o n c e r n e d m a y p r e s c r i b e r e g u l a t i o n s f o r t h e

p a y m e n t o f a l l o w a n c e s , e x p e n s e s , p e r d i e m , a n d

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 qualifications. 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.

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.

912(f) and should not be detailed as members: any person who is,

in the same case, an accuser, witness, investigating officer, or

counsel for any party; any person who, in the case of a new trial,

other trial, or rehearing, was a member of any court-martial which

previously heard the case; any person who is junior to the accused, unless this is unavoidable; an enlisted member from the

s a m e u n i t a s t h e a c c u s e d ; a n y p e r s o n w h o i s i n a r r e s t o r

confinement.

(2) Enlisted members. An enlisted accused may,

II-46

R.C.M. 502(d)(6)
before assembly, request orally on the record or in

writing that enlisted persons serve as members 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 comp r i s i n g a t l e a s t o n e - t h i r d o f t h e t o t a l n u m b e r o f

members unless eligible enlisted members cannot be

obtained because of physical conditions or military

e x i g e n c i e s . I f t h e a p p r o p r i a t e n u m b e r o f e n l i s t e d

members cannot be obtained, the court-martial may

be assembled, and the trial may proceed without

them, but the convening authority shall make a det a i l e d w r i t t e n e x p l a n a t i o n w h y e n l i s t e d m e m b e r s

could not be obtained which must be appended to

the record of trial.

Discussion

When such a request is made, the convening authority should:

(1) Detail an appropriate number of enlisted members to the

court-martial and, if appropriate, relieve an appropriate number of

commissioned or warrant officers previously detailed;

(2) Withdraw the charges from the court-martial to which

they were originally referred and refer them to a court-martial

which includes the proper proportion of enlisted members; or

(3) Advise the court-martial before which the charges are

then pending to proceed in the absence of enlisted members if

eligible enlisted members cannot be detailed because of physical

conditions or military exigencies.

See also R.C.M. 1103(b)(2)(D)(iii).

( 3 ) M e m b e r s f r o m a n o t h e r c o m m a n d o r a r m e d

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 need not

be shown by the record of trial.

Members should ordinarily be of the same armed force as

the accused. When a court-martial composed of members of different armed forces is selected, at least a majority of the members

should be of the same armed force as the accused unless exigent

circumstances make it impractical to do so without manifest injury to the service.

(b) Military judge.

(1) 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 by whom the military judge was

detailed. The Secretary concerned may require that

the order be reduced to writing.

(3) Military judge from a different armed force.

A military judge from one armed force may be det a i l e d t o a c o u r t - m a r t i a l c o n v e n e d i n a d i f f e r e n t

armed force, a combatant command or joint command 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 different armed force. A person from one armed force may be detailed to serve

as counsel in a court-martial in a different armed

f o r c e , a c o m b a t a n t c o m m a n d o r j o i n t c o m m a n d

when permitted by the Judge Advocate General of

the armed force of which the counsel is a member.

II-47

R.C.M. 503(c)(3)
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 courtsmartial 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 rank

and is retained as long as the convening authority remains a

commander in one of the designated positions. The rule by which

c o m m a n d d e v o l v e s a r e f o u n d i n r e g u l a t i o n s o f t h e S e c r e t a r y

concerned.

(2) Special courts-martial. Unless otherwise limited by superior competent authority, special courtsmartial may be convened by persons occupying positions designated in Article 23(a) and by commanders designated by the Secretary concerned.

Discussion

S e e t h e d i s c u s s i o n o f s u b s e c t i o n ( b ) ( 1 ) o f t h i s r u l e . P e r s o n s

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

c o m m a n d e r s p r i m a r i l y r e s p o n s i b l e f o r d i s c i p l i n e .

“ S e p a r a t e o r d e t a c h e d ” i s u s e d i n a d i s c i p l i n a r y

sense and not necessarily in a tactical or physical

sense. A subordinate joint command or joint task

f o r c e i s o r d i n a r i l y c o n s i d e r e d t o b e “ s e p a r a t e o r

detached.”

Discussion

The power of a commander of a separate or detached unit to

convene courts-martial, like that of any other commander, may be

limited by superior competent authority.

(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; or

(iii) In a combatant command or joint command, by the officer exercising general court-martial

jurisdiction over the command.

(3) Summary courts-martial. See R.C.M. 1302(a).

Discussion

See the discussion under subsection (b)(1) 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

S e e a l s o A r t i c l e 1 ( 9 ) ; 3 0 7 ( a ) ; 6 0 1 ( c ) . H o w e v e r , s e e 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

court-martial 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 disqualified. When a commander

who would otherwise convene a general or special

court-martial 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.

II-48

R.C.M. 503(c)(3)
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 courtmartial will meet. If the convening authority has

b e e n d e s i g n a t e d b y t h e S e c r e t a r y c o n c e r n e d , t h e

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 courtmartial will meet. If the convening authority has

b e e n d e s i g n a t e d b y t h e S e c r e t a r y c o n c e r n e d , t h e

convening order shall so state.

Discussion

See also R.C.M. 1302(c).

(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

a l s o m a y b e e x c u s e d a s p r o v i d e d i n s u b s e c t i o n s

(c)(1)(B)(ii) and (c)(2)(A) of this rule.

Discussion

Changes of the members of the court-martial should be kept to a

minimum. If extensive changes are necessary and no session of

the court-martial has begun, it may be appropriate to withdraw

the charges from one court-martial and refer them to another. See

R.C.M. 604.

( b ) P r o c e d u r e . W h e n n e w p e r s o n s a r e a d d e d a s

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

w i t h o u t r e p l a c e m e n t , s h a l l b e r e d u c e d t o w r i t i n g

before authentication of the record of trial.

Discussion

When members or counsel have been excused and the excusal is

not reduced to writing, the excusal should be announced on the

record. A member who has been temporarily excused need not be

formally reappointed to the court-martial.

(c) Changes of members.

(1) Before assembly.

(A) By convening authority. Before the courtmartial 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

d e l e g a t e , u n d e r r e g u l a t i o n s o f t h e S e c r e t a r y c o n -

cerned, 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) After assembly.

(A) Excusal. After assembly no member may

be excused, except:

( i ) B y t h e c o n v e n i n g a u t h o r i t y f o r g o o d

cause shown on the record;

( i i ) B y t h e m i l i t a r y j u d g e f o r g o o d c a u s e

shown on the record; or

(iii) As a result of challenge under R.C.M.

912.

(B) New members. New members may be deII-49

R.C.M. 505(c)(2)(B)
tailed 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 onethird of the total membership.

(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 ) B e f o r e f o r m a t i o n o f a t t o r n e y - c l i e n t r e l a -

tionship. 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

formed 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

( i i i ) F o r o t h e r g o o d c a u s e s h o w n o n t h e

record.

(e) Change of military judge.

(1) Before assembly. Before the court-martial is

assembled, the military judge may be changed by an

a u t h o r i t y c o m p e t e n t t o d e t a i l t h e m i l i t a r y j u d g e ,

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 subsect i o n , t h e S e c r e t a r y c o n c e r n e d s h a l l d e f i n e

“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 ) A n a p p e l l a t e d e f e n s e o r g o v e r n m e n t

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;

(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,

J u d g e A d v o c a t e D i v i s i o n , H e a d q u a r t e r s , M a r i n e

Corps.

T h e S e c r e t a r y c o n c e r n e d m a y d e t e r m i n e o t h e r

persons to be not reasonably available because of

the nature or responsibilities of their assignments,

geolineart considerations, exigent circumstances, or

military necessity. A person who is a member of an

armed force different from that of which the accused

II-50

R.C.M. 505(c)(2)(B)
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 attorneyclient relationship arose solely because the counsel

represented the accused on review under Article 70,

this exception shall not apply.

( 2 ) P r o c e d u r e . S u b j e c t t o t h i s s u b s e c t i o n , t h e

Secretary concerned shall prescribe procedures for

d e t e r m i n i n g w h e t h e r a r e q u e s t e d p e r s o n i s

“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)(1) 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 req u e s t e d w i l l n o t , a t t h e t i m e o f t h e t r i a l o r

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

a v a i l a b l e i n a c c o r d a n c e w i t h t h e p r o c e d u r e p r e -

scribed by the Secretary concerned. This determination is a matter within the sole discretion of that

a u t h o r i t y . A n a d v e r s e d e t e r m i n a t i o n m a y b e r e -

viewed 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 assoc i a t e c o u n s e l . T h e a c t i o n o f t h e a u t h o r i t y w h o

detailed the counsel is subject to review only for

abuse of discretion.

Discussion

A request under subsection (b)(3) should be considered in light of

the general statutory policy that the accused is not entitled to be

represented by more than one military counsel. Among the factors

that may be considered in the exercise of discretion are the

seriousness of the case, retention of civilian defense counsel,

complexity of legal or factual issues, and the detail of additional

trial counsel.

See R.C.M. 905(b)(6) and 960(b)(2) as to motions concerning denial of a request for individual military counsel or 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 thereaft e r c o n d u c t t h e d e f e n s e p e r s o n a l l y . S u c h w a i v e r

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.

(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.

II-51

R.C.M. 506(e)
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 authority

who is authorized to convene the court-martial and is not disqualified ( see R.C.M. 601(b) and (c)); preferred charges which

have been received by the convening authority for disposition

(see R.C.M. 307 as to preferral of charges and Chapter IV as to

disposition); and a court-martial convened by that convening authority or a predecessor (see R.C.M. 504).

If trial would be warranted but would be detrimental to the

prosecution of a war or inimical to national security, see 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

c o n v e n i n g a u t h o r i t y o r a p r e d e c e s s o r , u n l e s s t h e

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 may be of any command, including

a command different from that of the accused, but as a practical

matter the accused must be subject to the orders of the convening

authority or otherwise under the convening authority’s control to

assure the appearance of the accused at trial. The convening

authority’s power over the accused may be based upon agreements between the commanders concerned.

( c ) D i s q u a l i f i c a t i o n . A n a c c u s e r m a y n o t r e f e r

charges to a general or special court-martial.

Discussion

Convening authorities are not disqualified from referring charges

by prior participation in the same case except when they have

acted as accuser. For a definition of “accuser,” see Article 1(9). A

convening authority who is disqualified may forward the charges

and allied papers for disposition by competent authority superior

in rank or command. See R.C.M. 401(c) concerning actions which

the superior may take.

See R.C.M. 1302 for rules relating to convening summary

courts-martial.

(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.

Discussion

For a discussion of selection among alternative dispositions, see

R.C.M. 306. The convening authority is not obliged to refer all

charges which the evidence might support. The convening authority should consider the options and considerations under R.C.M.

306 in exercising the discretion to refer.

(2) General courts-martial. The convening authority may not refer a specification under a charge to a

general court-martial unless—

( A ) T h e r e h a s b e e n s u b s t a n t i a l c o m p l i a n c e

w i t h t h e p r e t r i a l i n v e s t i g a t i o n r e q u i r e m e n t s o f

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 of

capital offenses to special courts-martial. See R.C.M. 103(3) for

the definition of a capital offense.

See R.C.M. 1301(c) concerning limitations on the referral of

certain cases to summary courts-martial.

(e) How charges shall be referred.

(1) Order, instructions. Referral shall be by the

personal order of the convening authority. The conII-52
vening authority may include proper instructions in

the order.

Discussion

Referral is ordinarily evidenced by an indorsement on the charge

sheet. Although the indorsement should be completed on all copies of the charge sheet, only the original must be signed. The

signature may be that of a person acting by the order or direction

of the convening authority. In such a case the signature element

must reflect the signer’s authority.

If, for any reason, charges are referred to a court-martial

different from that to which they were originally referred, the new

referral is ordinarily made by a new indorsement attached to the

original charge sheet. The previous indorsement should be lined

out and initialed by the person signing the new referral. The

original indorsement should not be obliterated. See also R.C.M.

604.

If the only officer present in a command refers the charges

to a summary court-martial and serves as the summary courtmartial under R.C.M. 1302, the indorsement should be completed

with the additional comments, “only officer present in the command.”

T h e c o n v e n i n g a u t h o r i t y m a y i n s t r u c t t h a t t h e c h a r g e s

against the accused be tried with certain other charges against the

accused. See subsection (2) below.

The convening authority may instruct that charges against

one accused be referred for joint or common trial with another

accused. See subsection (3) below.

Capital offenses may be referred as noncapital if the death

penalty is not mandatory. When a convening authority has discretion to refer a capital case as noncapital, the convening authority

should be guided by the criteria for adjudging capital punishment

found at R.C.M. 1004.

The convening authority should acknowledge by an instruction that a bad-conduct discharge, confinement for more than six

months, or forfeiture of pay for more than six months, may not be

adjudged when the prerequisites under Article 19 will not be met.

See R.C.M. 201(f)(2)(B)(ii). For example, this instruction may be

given when a court reporter is not detailed.

Any special instructions must be stated in the referral indorsement.

When the charges have been referred to a court-martial, 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 off e n s e s o r b o t h , r e g a r d l e s s w h e t h e r r e l a t e d . A d d i -

tional charges may be joined with other charges for

a single trial at any time before arraignment if all

n e c e s s a r y p r o c e d u r a l r e q u i r e m e n t s c o n c e r n i n g t h e

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.

Discussion

Ordinarily all known charges should be referred to a single courtmartial.

(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

t r a n s a c t i o n s c o n s t i t u t i n g a n o f f e n s e o r o f f e n s e s .

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 acting

together with a common intent. Joint offenses may be referred for

joint trial, along with all related offenses against each of the

accused. A common trial may be used when the evidence of

several offenses committed by several accused separately is essentially the same, even though the offenses were not jointly

committed. See R.C.M. 307(c)(5) Discussion. Convening authorities should consider that joint and common trials may be complicated by procedural and evidentiary rules.

(f) Superior convening authorities. Except as otherwise provided in these rules, a superior competent

a u t h o r i t y m a y c a u s e c h a r g e s , w h e t h e r o r n o t r e -

ferred, to be transmitted to the authority for further

consideration, including, if appropriate, referral.

Rule 602. Service of charges

The trial counsel detailed to the court-martial to

w h i c h c h a r g e s h a v e b e e n r e f e r r e d f o r t r i a l s h a l l

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.

II-53

R.C.M. 602
Discussion

Trial counsel should comply with this rule immediately upon

receipt of the charges. Whenever after service the charges are

amended or changed the trial counsel must give notice of the

changes to the defense counsel. Whenever such amendments or

changes add a new party, a new offense, or substantially new

allegations, the charge sheet so amended or changed must be

served anew. See also R.C.M. 603.

Service may be made only upon the accused; substitute service upon defense counsel is insufficient. The trial counsel should

promptly inform the defense counsel when charges have been

served.

If the accused has questions when served with charges, the

accused should be told to discuss the matter with defense counsel.

Rule 603. Changes to charges and

specifications

( a ) M i n o r c h a n g e s d e f i n e d . M i n o r c h a n g e s i n

c h a r g e s a n d s p e c i f i c a t i o n s a r e a n y e x c e p t t h o s e

which add a party, offenses, or substantial matter not

f a i r l y i n c l u d e d i n t h o s e p r e v i o u s l y p r e f e r r e d , o r

which are likely to mislead the accused as to the

offenses charged.

Discussion

Minor changes include those necessary to correct inartfully drafted or redundant specifications; to correct a misnaming of the

accused; to allege the proper article; or to correct other slight

errors. Minor charges also include those which reduce the seriousness of an offense, as when the value of an allegedly stolen item

in a larceny specification is reduced, or when a desertion specification is amended to allege only unauthorized absence.

(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 min o r c h a n g e s t o c h a r g e s o r s p e c i f i c a t i o n s b e f o r e

arraignment.

Discussion

Charges forwarded or referred for trial should be free from defects of form and substance. Minor errors may be corrected and

the charge may be redrafted without being sworn anew by the

accuser. Other changes should be signed and sworn to by an

accuser. All changes in the charges should be initialed by the

person who makes them. A trial counsel acting under this provision ordinarily should consult with the convening authority before

making any changes which, even though minor, change the nature

or seriousness of the offense.

(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 ) M a j o r c h a n g e s . C h a n g e s o r a m e n d m e n t s t o

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 accused’s objection to a charge already referred, a new referral is

necessary. Similarly, in the case of a general court-martial, a new

investigation under R.C.M. 405 will be necessary if the charge as

amended or changed was not covered in the prior investigation. If

t h e s u b s t a n c e o f t h e c h a r g e o r s p e c i f i c a t i o n a s a m e n d e d o r

changed has not been referred or, in the case of a general courtmartial, investigated, a new referral and, if appropriate, investigation are necessary. When charges are re-referred, they must be

served 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 c o u r t - m a r t i a l a t a n y t i m e b e f o r e f i n d i n g s a r e

announced.

Discussion

Charges which are withdrawn from a court-martial should be

dismissed (see R.C.M. 401(c)(1)) unless it is intended to refer

them anew promptly or to forward them to another authority for

disposition.

Charges should not be withdrawn from a court-martial arbitrarily or unfairly to an accused. See also subsection (b) of this

rule.

Some or all charges and specifications may be withdrawn. In

a joint or common trial the withdrawal may be limited to charges

against one or some of the accused.

Charges which have been properly referred to a court-martial

may be withdrawn only by the direction of the convening authority or a superior competent authority in the exercise of that offic e r ’ s i n d e p e n d e n t j u d g m e n t . W h e n d i r e c t e d t o d o s o b y t h e

convening authority or a superior competent authority, trial counsel may withdraw charges or specifications by lining out the

affected charges or specifications, renumbering remaining charges

or specifications as necessary, and initialing the changes. Charges

and specifications withdrawn before commencement of trial will

not be brought to the attention of the members. When charges or

specifications are withdrawn after they have come to the attention

of the members, the military judge must instruct them that the

II-54

R.C.M. 602
withdrawn charges or specifications may not be considered for

any reason.

(b) Referral of withdrawn charges. Charges which

have been withdrawn from a court-martial may be

r e f e r r e d t o a n o t h e r c o u r t - m a r t i a l u n l e s s t h e

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).

When charges which have been withdrawn from a courtmartial are referred to another court-martial, the reasons for the

withdrawal and later referral should be included in the record of

the later court-martial, if the later referral is more onerous to the

accused. Therefore, if further prosecution is contemplated at the

time of the withdrawal, the reasons for the withdrawal should be

included in or attached to the record of the earlier proceeding.

Improper reasons for withdrawal include an intent to interfere with the free exercise by the accused of constitutional or

c o d a l r i g h t s , o r w i t h t h e i m p a r t i a l i t y o f a c o u r t - m a r t i a l . A

withdrawal is improper if it was not directed personally and

independently by the convening authority or by a superior competent authority.

Whether the reason for a withdrawal is proper, for purposes

of the propriety of a later referral, depends in part on the stage in

the proceedings at which the withdrawal takes place. Before arraignment, there are many reasons for a withdrawal which will

not preclude another referral. These include receipt of additional

charges, absence of the accused, reconsideration by the convening

authority or by a superior competent authority of the seriousness

of the offenses, questions concerning the mental capacity of the

accused, and routine duty rotation of the personnel constituting

the court-martial. Charges withdrawn after arraignment may be

referred to another court-martial under some circumstances. For

example, it is permissible to refer charges which were withdrawn

pursuant to a pretrial agreement if the accused fails to fulfill the

terms of the agreement. See R.C.M. 705. Charges withdrawn after

some evidence on the general issue of guilty is introduced may be

re-referred only under the narrow circumstances described in the

rule.

II-55

R.C.M. 604(b)
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 ) D o c u m e n t s , t a n g i b l e o b j e c t s , r e p o r t s . A f t e r

service of charges, upon request of the defense, the

Government shall permit the defense to inspect:

( A ) A n y b o o k s , p a p e r s , d o c u m e n t s , p h o t o -

graphs, tangible objects, buildings, or places, or copi e s o f p o r t i o n s t h e r e o f , w h i c h a r e w i t h i n t h e

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 or third party patients, see R.C.M. 701(f), R.C.M. 706,

Mil. R. Evid. 302 and Mil. R. Evid. 513.

(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, innocent ingest i o n , o r l a c k o f m e n t a l r e s p o n s i b i l i t y , w h e n t r i a l

counsel has received timely notice under subsection

(b)(1) 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 offered at sentencing. Upon

request of the defense the trial counsel shall:

(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 subsection (a) of this rule, the Government is required to notify the

defense of or provide to the defense certain information under

other rules. Mil. R. Evid. 506 covers the disclosure of unclassified

II-56
information which is under the control of the Government. Mil.

R. Evid. 505 covers disclosure of classified information.

Other R.C.M. and Mil. R. Evid. concern disclosure of other

specific matters. See R.C.M. 308 (identification of accuser), 405

(report of Article 32 investigation), 706(c)(3)(B) (mental examination of accused), 914 (production of certain statements), and

1004(b)(1) (aggravating circumstances in capital cases); Mil. R.

Evid. 301(c)(2) (notice of immunity or leniency to witnesses),

302 (mental examination of accused), 304(d)(1) (statements by

accused), 311(d)(1) (evidence seized from accused), 321(c)(1)

(evidence based on lineups), 507 (identity of informants), 612

(memoranda used to refresh recollection), and 613(a) (prior inconsistent statements).

Requirements for notice of intent to use certain evidence are

found in: Mil. R. Evid. 201A(b) (judicial notice of foreign law),

301(c)(2) (immunized witnesses), 304(d)(2) (notice of intent to

use undisclosed confessions), 304(f) (testimony of accused for

limited purpose on confession), 311(d)(2)(B) (notice of intent to

use undisclosed evidence seized), 311(f) (testimony of accused

for limited purpose on seizures), 321(c)(2)(B) (notice of intent to

use undisclosed line-up evidence), 321(e) (testimony of accused

for limited purpose of line-ups), 412(c)(1) and (2) (intent of

defense to use evidence of sexual misconduct by a victim); 505(h)

(intent to disclose classified information), 506(h) (intent to disclose privilege government information), and 609(b) (intent to

impeach with conviction over 10 years 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) Names of witnesses and statements.

(A) Before the beginning of trial on the merits,

t h e d e f e n s e s h a l l n o t i f y t h e t r i a l c o u n s e l o f t h e

names and addresses of all witnesses, other than the

accused, whom the defense intends to call during the

d e f e n s e c a s e i n c h i e f , a n d p r o v i d e a l l s w o r n o r

signed statements known by the defense to have

been made by such witnesses in connection with the

case.

(B) Upon request of the trial counsel, the defense shall also

(i) Provide the trial counsel with the names

and addresses of any witnesses whom the defense

i n t e n d s t o c a l l a t t h e p r e s e n t e n c i n g p r o c e e d i n g s

under R.C.M. 1001(c); and

(ii) Permit the trial counsel to inspect any

written material that will be presented by the defense at the presentencing proceeding.

Discussion

Such notice shall be in writing except when impracticable. See

R . C . M . 7 0 1 ( f ) f o r s t a t e m e n t s t h a t w o u l d n o t b e s u b j e c t t o

disclosure.

(2) Notice of certain defenses. The defense shall

notify the trial counsel before the beginning of trial

on the merits of its intent to offer the defense of

alibi, innocent ingestion, or lack of mental responsibility, or its intent to introduce expert testimony as

to the accused’s mental condition. Such notice by

the defense shall disclose, in the case of an alibi

defense, the place or places at which the defense

claims the accused to have been at the time of the

alleged offense, and, in the case of an innocent ingestion defense, the place or places where, and the

circumstances under which the defense claims the

accused innocently ingested the substance in question, and the names and addresses of the witnesses

upon whom the accused intends to rely to establish

any such defenses.

Discussion

Such notice should be in writing except when impracticable. See

R.C.M. 916(k) concerning the defense of lack of mental responsibility. See R.C.M. 706 concerning inquiries into the mental responsibility of the accused. See Mil. R. Evid. 302 concerning

statements by the accused during such inquiries. If the defense

needs more detail as to the time, date, or place of the offense to

comply with this rule, it should request a bill of particulars. See

R.C.M. 906(b)(6).

(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 trial counsel,

s h a l l p e r m i t t h e t r i a l c o u n s e l t o i n s p e c t b o o k s ,

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

t h e G o v e r n m e n t , t h e d e f e n s e , o n r e q u e s t o f t r i a l

counsel, shall (except as provided in R.C.M. 706,

Mil. R. Evid. 302, and Mil. R. Evid. 513) 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, that are within the

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R.C.M. 701(b)(4)
possession, custody, or control of the defense that

the defense intends to introduce as evidence in the

defense case-in-chief at trial or that 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 int e n t i o n t o r e l y u p o n a d e f e n s e u n d e r s u b s e c t i o n

(b)(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, in any court-martial, admissible against the accused who gave notice of the intention.

Discussion

In addition to the matters covered in subsection (b) of this rule,

defense counsel is required to give notice or disclose evidence

under certain Military Rules of Evidence: Mil. R. Evid. 201A(b)

(judicial notice of foreign law), 304(f) (testimony by the accused

for a limited purpose in relation to a confession), 311(b) (same,

search), 321(e) (same, lineup), 412(c)(1) and (2) (intent to offer

evidence of sexual misconduct by a victim), 505(h) (intent to

disclose classified information), 506(h) (intent to disclose privileged government information), 609(b) (intent to impeach a witness with a conviction older than 10 years), 612(2) (writing used

to refresh recollection), and 613(a) (prior 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.

Discussion

Convening authorities, commanders and members of their immediate staffs should make no statement, oral or written, and take no

action which could reasonably be understood to discourage or

prevent witnesses from testifying truthfully before a court-martial,

or as a threat of retribution for such testimony.

(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

m a y , c o n s i s t e n t w i t h t h i s r u l e , s p e c i f y t h e t i m e ,

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 any 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 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 ) P r o h i b i t t h e p a r t y f r o m i n t r o d u c i n g e v i -

dence, calling a witness, 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 an

exception to exclusion under subsection (3)(C) include: the extent

of disadvantage that resulted from a failure to disclose; the reason

for the failure to disclose; the extent to which later events mitiII-58

R.C.M. 701(b)(4)
gated the disadvantage caused by the failure to disclose; and any

other relevant factors.

The sanction of excluding the testimony of a defense witness

should be used only upon finding that the defense counsel’s

failure to comply with this rule was willful and motivated by a

desire to obtain a tactical advantage or to conceal a plan to

present fabricated testimony. Moreover, the sanction of excluding

the testimony of a defense witness should only be used if alternative sanctions could not have minimized the prejudice to the

Government. Before imposing this sanction, the military judge

must weigh the defendant’s right to compulsory process against

the countervailing public interests, including (1) the integrity of

the adversary process; (2) the interest in the fair and efficient

administration of military justice; and (3) the potential prejudice

to the truth-determining function of the trial process.

Procedures governing refusal to disclose classified information are in Mil. R. Evid. 505. Procedures governing refusal to

disclose other government information are in Mil. R. Evid. 506.

Procedures governing refusal to disclose an informant’s identity

are in Mil. R. Evid. 507.

(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 under oath

in response to questions by the parties, which is reduced to

writing or recorded on videotape or audiotape or similar material.

A deposition taken on oral examination is an oral deposition, and

a deposition taken on written interrogatories is a written deposition. Written interrogatories are questions, prepared by the prosecution, defense, or both, which are reduced to writing before

submission to a witness whose testimony is to be taken by deposition. The answers, reduced to writing and properly sworn to,

constitute the deposition testimony of the witness.

Note that under subsection (i) of this rule a deposition may

be taken by agreement of the parties without necessity of an

order.

A deposition may be taken to preserve the testimony of a

witness who is likely to be unavailable at the investigation under

Article 32 (see R.C.M. 405(g)) or at the time of trial (see R.C.M.

703(b)). Part of all of a deposition, so far as otherwise admissible

under the Military Rules of Evidence, may be used on the merits

or on an interlocutory question as substantive evidence if the

witness is unavailable under Mil. R. Evid. 804(a) except that a

deposition may be admitted in a capital case only upon offer by

the defense. See Mil. R. Evid. 804(b)(1). In any case, a deposition

may be used by any party for the purpose of contradicting or

impeaching the testimony of the deponent as a witness. See Mil.

R. Evid. 613. If only a part of a deposition is offered in evidence

by a party, an adverse party may require the proponent to offer all

which is relevant to the part offered, and any party may offer

other parts. See Mil. R. Evid. 106.

A deposition which is transcribed is ordinarily read to the

court-martial by the party offering it. See also subsection (g)(3) of

this rule. The transcript of a deposition may not be inspected by

the members. Objections may be made to testimony in a written

deposition in the same way that they would be if the testimony

were offered through the personal appearance of a witness.

Part or all of a deposition so far as otherwise admissible

under the Military Rules of Evidence may be used in presentencing proceedings as substantive evidence as provided in R.C.M.

1001.

DD Form 456 (Interrogatories and Deposition) may be used

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 ) S u b m i s s i o n o f r e q u e s t . A t a n y t i m e a f t e r

charges have been preferred, any party may request

in writing that a deposition be taken.

Discussion

A copy of the request and any accompanying papers ordinarily

s h o u l d b e s e r v e d o n t h e o t h e r p a r t i e s w h e n t h e r e q u e s t i s

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 ground

for taking a deposition; failure to show the probable relevance of

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R.C.M. 702(c)(3)(A)
the witness’ testimony, or that the witness’ testimony would be

unnecessary. The fact that the witness is or will be available for

trial is good cause for denial in the absence of unusual circumstances, such as improper denial of a witness request at an Article

32 hearing, unavailability of an essential witness at an Article 32

hearing, or when the Government has improperly impeded defense access to a witness.

(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 review 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).

When a deposition will be at a point distant from the command, an appropriate authority may be requested to make 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

e n s u r e t h a t c o u n s e l q u a l i f i e d a s r e q u i r e d u n d e r

R.C.M. 502(d) are assigned to represent each party.

Discussion

The counsel who represents the accused at a deposition ordinarily

will form an attorney-client relationship with the accused which

will continue through a later court-martial. See R.C.M. 506.

If the accused has formed an attorney-client relationship with

military counsel concerning the charges in question, ordinarily

that counsel should be appointed to represent the accused.

( 3 ) I n s t r u c t i o n s . T h e c o n v e n i n g a u t h o r i t y m a y

give instructions not inconsistent with this rule to

the deposition officer.

Discussion

Such instruction 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 officer. 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 ) A r r a n g e f o r t h e p r e s e n c e o f a n y w i t n e s s

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, embarrassment, 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

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R.C.M. 702(c)(3)(A)
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 counsel

or a witness, prevents an orderly and fair proceeding, the deposition officer should adjourn the proceedings and inform the convening authority.

The authority who ordered the deposition should forward

copies to the parties.

(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

i s d i s r u p t i v e w i t h i n t h e m e a n i n g o f 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 courtmartial can be served adequately by an oral deposition without the presence of the accused; and

(ii) Be represented by counsel as provided in

R.C.M. 506.

( B ) E x a m i n a t i o n o f w i t n e s s e s . E a c h w i t n e s s

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 (f)(7) and (h) of this rule. As to

production of prior statements of witnesses, see R.C.M. 914; Mil.

R. Evid. 612, 613.

A sample oath for a deposition follows.

“You (swear) (affirm) that the evidence you give shall be

the truth, the whole truth, and nothing but the truth (so help you

God)?”

(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 reasonab l e t i m e t o p r e p a r e c r o s s - i n t e r r o g a t o r i e s a n d

objections, if any.

Discussion

The interrogatories and cross-interrogatories should be sent to the

deposition officer by the party who requested the deposition. See

subsection (h)(3) of this rule concerning objections.

( D ) E x a m i n a t i o n o f w i t n e s s e s . T h e d e p o s i t i o n

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.

T h e c e r t i f i c a t e o f a u t h e n t i c a t i o n s h a l l t h e n b e

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

o f t h e m i l i t a r y j u d g e , d e p o s i t i o n s r e c o r d e d b y

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 a

court-martial, is recorded and transcribed by the reporter in the

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R.C.M. 702(g)(3)
same way as any other testimony. The deposition need not 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 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 p a r t y m a y s h o w t h a t a n o b j e c t i o n w a s m a d e d u r i n g t h e

deposition but not recorded, but, in the absence of such evidence,

the transcript of the deposition governs.

(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

w i t n e s s e s a n d e v i d e n c e , i n c l u d i n g t h e b e n e f i t o f

compulsory process.

Discussion

See also R.C.M. 801(c) concerning the opportunity of the courtmartial 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. With the consent of both the

accused and Government, the military judge may

authorize any witness to testify via remote means.

Over a party’s objection, the military judge may

a u t h o r i z e a n y w i t n e s s t o t e s t i f y o n i n t e r l o c u t o r y

questions via remote means or similar technology if

the practical difficulties of producing the witness

outweigh the significance of the witness’ personal

appearance (although such testimony will not be admissible over the accused’s objection as evidence on

the ultimate issue of guilt). Factors to be considered

include, but are not limited to, the costs of producing the witness; the timing of the request for product i o n o f t h e w i t n e s s ; t h e p o t e n t i a l d e l a y i n t h e

interlocutory proceeding that may be caused by the

production of the witness; the willingness of the

witness to testify in person; the likelihood of significant interference with military operational deployment, mission accomplishment, or essential training;

and, for child witnesses, the traumatic effect of providing in-court testimony.

Discussion

See Mil. R. Evid. 401 concerning relevance.

Relevant testimony is necessary when it is not cumulative

and when it would contribute to a party’s presentation of the case

in some positive way on a matter in issue. A matter is not in issue

when it is stipulated as a fact.

(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)(1) 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

s u b s t i t u t e f o r s u c h t e s t i m o n y , t h e m i l i t a r y j u d g e

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R.C.M. 702(g)(3)
shall grant a continuance or other relief in order to

a t t e m p t t o s e c u r e t h e w i t n e s s ’ p r e s e n c e o r s h a l l

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.

(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 ) W i t n e s s e s o n m e r i t s o r i n t e r l o c u t o r y

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 that 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

p r o d u c e t h e w i t n e s s o r t h e p r o c e e d i n g s s h a l l b e

abated.

Discussion

When significant or unusual costs would be involved in producing witnesses, the trial counsel should inform the convening authority, as the convening authority may elect to dispose of the

matter by means other than a court-martial. See R.C.M. 906(b)(7).

See also R.C.M. 905(j).

(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

c o n v e n i n g a u t h o r i t y t o a u t h o r i z e t h e e m p l o y m e n t

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

c o m m a n d e r t o i s s u e a n y n e c e s s a r y o r d e r s t o t h e

witness.

Discussion

When military witnesses are located near the court-martial, their

presence can usually be obtained through informal coordination

with them and their commander. If the witness is not near the

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R.C.M. 703(e)(1)
court-martial and attendance would involve travel at government

expense, or if informal coordination is inadequate, the appropriate

superior should be requested to issue the necessary order.

If practicable, a request for the attendance of a military

witness should be made so that the witness will have at least 48

hours notice before starting to travel to attend the court-martial.

The attendance of persons not on active duty should be

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 voluntarily at

no expense to the United States.

Civilian employees of the Department of Defense may be

d i r e c t e d b y a p p r o p r i a t e a u t h o r i t i e s t o a p p e a r a s w i t n e s s e s i n

courts-martial as an incident of their employment. Appropriate

travel orders may be issued for this purpose.

A subpoena may not be used to compel a civilian to travel

outside the United States and its territories.

A witness must be subject to United States jurisdiction to be

subject to a subpoena. Foreign nationals in a foreign country are

not subject to subpoena. Their presence may be obtained 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,

p a p e r s , d o c u m e n t s o r o t h e r o b j e c t s d e s i g n a t e d

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 at an

examination or interview before trial, but a subpoena may be used

to obtain witnesses for a deposition or a court of inquiry.

A subpoena normally is prepared, signed, and issued in duplicate on the official forms. See Appendix 7 for an example of a

Subpoena with certificate of service (DD Form 453) and a Travel

Order (DD Form 453-1).

(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.

If practicable, a subpoena should be issued in time to permit

service at least 24 hours before the time the witness will have to

travel to comply with the subpoena.

Informal service. Unless formal service is advisable, the person who issued the subpoena may mail it to the witness in

duplicate, enclosing a postage-paid envelope bearing a return address, with the request that the witness sign the acceptance of

service on the copy and return it in the envelope provided. The

return envelope should be addressed to the person who issued the

subpoena. The person who issued the subpoena should include

with it a statement to the effect that the rights of the witness to

fees and mileage will not be impaired by voluntary compliance

with the request and that a voucher for fees and mileage will be

delivered to the witness promptly on being discharged from attendance.

Formal service. Formal service is advisable whenever it is

anticipated that the witness will not comply voluntarily with the

subpoena. Appropriate fees and mileage must be paid or tendered.

See Article 47. If formal service is advisable, the person who

issued the subpoena must assure timely and economical service.

That person may do so by serving the subpoena personally when

the witness is in the vicinity. When the witness is not in the

vicinity, the subpoena may be sent in duplicate to the commander

of a military installation near the witness. Such commanders

should give prompt and effective assistance, issuing travel orders

for their personnel to serve the subpoena when necessary.

Service should ordinarily be made by a person subject to the

code. The duplicate copy of the subpoena must have entered upon

it proof of service as indicated on the form and must be promptly

returned to the person who issued the subpoena. If service cannot

be made, the person who issued the subpoena must be informed

promptly. A stamped, addressed envelope should be provided for

these purposes.

(E) Place of service.

(i) In general. A subpoena requiring the attendance of a witness at a deposition, court-martial,

o r c o u r t o f i n q u i r y m a y b e s e r v e d a t a n y p l a c e

within the United States, it Territories, Commonwealths, or possessions.

(ii) Foreign territory. In foreign territory, the

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R.C.M. 703(e)(1)
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 (DD Form 454) may be used when

necessary to compel a witness to appear or produce evidence

under this rule. A warrant of attachment is a legal order addressed

to an official directing that official to have the person named in

the order brought before a court.

Subpoenas issued under R.C.M. 703 are Federal process and

a person not subject to the code may be prosecuted in a Federal

civilian court under Article 47 for failure to comply with a subpoena issued in compliance with this rule and formally served.

Failing to comply with such a subpoena is a felony offense,

and may result in a fine or imprisonment, or both, at the discretion of the district court. The different purposes of the warrant of

attachment and criminal complaint under Article 47 should be

borne in mind. The warrant of attachment, available without the

intervention of civilian judicial proceedings, has as its purpose the

obtaining of the witness’ presence, testimony, or documents. The

c r i m i n a l c o m p l a i n t , p r o s e c u t e d t h r o u g h t h e c i v i l i a n F e d e r a l

courts, has as its purpose punishment for failing to comply with

process issued by military authority. It serves to vindicate the

military interest in obtaining compliance with its lawful process.

( i i ) R e q u i r e m e n t s . A w a r r a n t o f a t t a c h m e n t

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

t h e w i t n e s s b e f o r e t h e c o u r t - m a r t i a l o r o t h e r

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

a n d s h a l l t e s t i f y a s s o o n a s p r a c t i c a b l e a n d b e

released.

Discussion

In executing a warrant of attachment, no more force than necessary to bring the witness to the court-martial, deposition, or court

of inquiry may be used.

( v ) D e f i n i t i o n . F o r p u r p o s e s o f s u b s e c t i o n

(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.

Relevant evidence is necessary when it is not cumulative and

when it would contribute to a party’s presentation of the case in

some positive way on a matter in issue. A matter is not in issue

when it is stipulated as a fact.

As to the discovery and introduction of classified or other

government information, see Mil. R. Evid. 505 and 506.

( 2 ) U n a v a i l a b l e e v i d e n c e . N o t w i t h s t a n d i n g s u b -

section (f)(1) of this rule, a party is not entitled to

the production of evidence which is destroyed, lost,

o r o t h e r w i s e n o t s u b j e c t t o c o m p u l s o r y p r o c e s s .

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.

II-65

R.C.M. 703(f)(2)
(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.

(C) 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 ) T r a n s a c t i o n a l i m m u n i t y . A p e r s o n m a y b e

granted transactional immunity from trial by courtmartial 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 court-martial.

Discussion

“Testimonial” immunity is also called “use” immunity.

Immunity ordinarily should be granted only when testimony

or other information from the person is necessary to the public

interest, including the needs of good order and discipline, and

when the person has refused or is likely to refuse to testify or

provide other information on the basis of the privilege against

self-incrimination.

Testimonial immunity is preferred because it does not bar

prosecution of the person for the offenses about which testimony

or information is given under the grant of immunity.

In any trial of a person granted testimonial immunity after

the testimony or information is given, the Government must meet

a heavy burden to show that it has not used in any way for the

prosecution of that person the person’s statements, testimony, or

information derived from them. In many cases this burden makes

difficult a later prosecution of such a person for any offense that

was the subject of that person’s testimony or statements. Therefore, if it is intended to prosecute a person to whom testimonial

immunity has been or will be granted for offenses about which

that person may testify or make statements, it may be necessary

to try that person before the testimony 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)(1)

of this rule of testimony or statements derived from

such testimony or statements.

( c ) A u t h o r i t y t o g r a n t i m m u n i t y . O n l y a g e n e r a l

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 authorized to

grant immunity. However, in some circumstances, when a person

testifies or makes statements pursuant to a promise of immunity,

or a similar promise, by a person with apparent authority to make

it, such testimony or statements and evidence derived from them

may be inadmissible in a later trial. Under some circumstances a

promise of immunity by someone other than a general courtmartial convening authority may bar prosecution altogether. Persons not authorized to grant immunity should exercise care when

dealing with accused or suspects to avoid inadvertently causing

statements to be inadmissible or prosecution to be barred.

A convening authority who grants immunity to a prosecution

witness in a court-martial may be disqualified from taking posttrial action in the case under some circumstances.

(1) Persons subject to the code. A general courtmartial 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 AttorII-66

R.C.M. 703(f)(3)
ney 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 to the

code may be granted immunity may relate to an offense for which

that person could be prosecuted in a United States District Court,

immunity should not be granted without prior coordination with

the Department of Justice. Ordinarily coordination with the local

United States Attorney is appropriate. Unless the Department of

Justice indicates it has no interest in the case, authorization for

the grant of immunity should be sought from the Attorney General. A request for such authorization should be forwarded through

the office of the Judge Advocate General concerned. Service

regulations may provide additional guidance. Even if the Department of Justice expresses no interest in the case, authorization by

the Attorney General for the grant of immunity may be necessary

to compel the person to testify or make a statement if such

testimony or statement 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

s p e c i f i c a l l y a u t h o r i z e d t o d o s o b y t h e A t t o r n e y

General of the United States or other authority designated under 18 U.S.C. § 6004.

Discussion

See the discussion under subsection (c)(1) of this rule concerning

forwarding a request for authorization to grant immunity to the

Attorney General.

(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.

Discussion

Department of Defense Directive 1355.1 (21 July 1981) provides:

“A proposed grant of immunity in a case involving espionage,

subversion, aiding the enemy, sabotage, spying, or violation of

rules or statutes concerning classified information or the foreign

relations of the United States, shall be forwarded to the General

Counsel of the Department of Defense for the purpose of consultation with the Department of Justice. The General Counsel shall

obtain the view of other appropriate elements of the Department

of defense in furtherance of such consultation.”

(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

proper authority may be ordered to testify. In addition, a servicemember who has received a valid grant of immunity may be

ordered to answer questions by investigators or counsel pursuant

to that grant. See Mil. R. Evid. 301(c). A person who refuses to

testify despite a valid grant of immunity may be prosecuted for

such refusal. Persons subject to the code may be charged under

Article 134. See paragraph 108, Part IV. A grant of immunity

removes the right to refuse to testify or make a statement on selfincrimination grounds. It does not, however, remove other privileges against disclosure of information. See Mil. R. Evid., Section

V.

An immunity order or grant must not specify the contents of

the testimony it is expected the witness will give.

When immunity is granted to a prosecution witness, the

a c c u s e d m u s t b e n o t i f i e d i n a c c o r d a n c e w i t h M i l . R . E v i d .

301(c)(2).

(e) Decision to grant immunity. Unless limited by

superior competent authority, the decision 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 ) T h e w i t n e s s i n t e n d s t o i n v o k e t h e r i g h t

against self-incrimination to the extent permitted by

law if called to testify; and

(2) The Government has engaged in discriminatory use of immunity to obtain a tactical advantage,

or the Government, through its own overreaching,

h a s f o r c e d t h e w i t n e s s t o i n v o k e t h e p r i v i l e g e

against self-incrimination; and

(3) The witness’ testimony is material, clearly exculpatory, not cumulative, not obtainable from any

other source and does more than merely affect the

credibility of other witnesses.

Rule 705. Pretrial agreements

(a) In general. Subject to such limitations as the

Secretary concerned may prescribe, an accused and

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R.C.M. 705(a)
the convening authority may enter into a pretrial

agreement in accordance with this rule.

Discussion

The authority of convening authorities to refer cases to trial and

approve pretrial agreements extends only to trials by courts-martial. To ensure that such actions do not preclude appropriate

action by Federal civilian authorities in cases likely to be prosecuted in the United States district courts, convening authorities

shall ensure that appropriate consultation under the “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 ”

has taken place prior to trial by court-martial or approval of a

pretrial agreement in cases where such 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:

( A ) R e f e r t h e c h a r g e s t o a c e r t a i n t y p e o f

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 specifications and/or

charges from a court-martial and dismiss them if the accused

fulfills the accused’s promises in the agreement. Except when

jeopardy has attached (see R.C.M. 907(b)(2)(C)), such withdrawal

and dismissal does not bar later reinstitution of the charges by the

same or a different convening authority. A judicial determination

that the accused breached the pretrial agreement is not required

prior to reinstitution of withdrawn or dismissed specifications

and/or charges. If the defense moves to dismiss the reinstituted

specifications and/or charges on the grounds that the government

remains bound by the terms of the pretrial agreement, the government will be required to prove, by a preponderance of the evidence, that the accused has breached the terms of the pretrial

agreement. If the agreement is 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 no

sentence in excess of a specified maximum, to suspend all or part

of a sentence, to defer confinement, or to mitigate certain 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

post-trial and appellate rights.

Discussion

A pretrial agreement provision which prohibits the accused from

making certain pretrial motions (see R.C.M. 905–907) may be

improper.

( 2 ) P e r m i s s i b l e t e r m s o r c o n d i t i o n s . S u b j e c t t o

s u b s e c t i o n ( c ) ( 1 ) ( A ) o f t h i s r u l e , s u b s e c t i o n

(c)(1)(B) of this rule does not prohibit either party

from proposing the following additional conditions:

(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

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R.C.M. 705(a)
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 p r o m i s e t o w a i v e p r o c e d u r a l r e q u i r e -

ments such as the Article 32 investigation, the right

to trial 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 ) N e g o t i a t i o n . P r e t r i a l a g r e e m e n t n e g o t i a t i o n s

may be initiated by the accused, defense counsel,

trial counsel, the staff judge advocate, convening

authority, or their duly authorized representatives.

Either the defense or the government may propose

any term or condition not prohibited by law or public policy. Government representatives shall negotia t e w i t h d e f e n s e c o u n s e l u n l e s s t h e a c c u s e d h a s

waived the right to counsel.

(2) Formal submission. After negotiation, if any,

under subsection (d)(1) 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 to

plead guilty and a description of the offenses to which the offer

extends. It must also contain a complete and accurate statement of

any other agreed terms or conditions. For example, if the convening authority agrees to withdraw certain specifications, or if the

accused agrees to waive the right to an Article 32 investigation,

this should be stated. The written agreement should contain a

statement by the accused that the accused enters it freely and

voluntarily and may contain a statement that the accused has been

advised of certain rights in connection with the agreement.

(3) Acceptance. The convening authority may either accept or reject an offer of the accused to enter

into a pretrial agreement or may propose by counteroffer any terms or conditions not prohibited by

law or public policy. The decision whether to accept

or reject an offer 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 advocate or trial counsel before acting on an offer to enter into a

pretrial agreement.

(4) 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 confess i o n a l s t i p u l a t i o n e n t e r e d p u r s u a n t t o a p r e t r i a l

agreement only as provided in R.C.M. 910(h) or

811(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.

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,

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R.C.M. 706(a)
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 to stand

trial and R.C.M. 916(k) concerning mental responsibility of the

accused.

(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

o f a n y e a r l i e r d e t e r m i n a t i o n b y t h e c o n v e n i n g

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 consisting of one

or more persons. Each member of the board shall be

either a physician or a clinical psychologist. Normally, at least one member of the board shall be either a

psychiatrist or a clinical psychologist. The board

shall report as to the mental capacity or mental responsibility or both of the accused.

(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 severe mental disease

or defect? (The term “severe mental disease or defect” does not include an abnormality manifested

only by repeated criminal or otherwise antisocial

conduct, or minor disorders such as nonpsychotic

behavior disorders and personality defects.)

(B) What is the clinical psychiatric diagnosis?

(C) Was the accused, at the time of the alleged

criminal conduct and as a result of such severe mental disease or defect, unable to appreciate the nature

and quality or wrongfulness of his or her conduct?

(D) Is the accused presently suffering from a

mental disease or defect rendering the accused unab l e t o u n d e r s t a n d t h e n a t u r e o f t h e p r o c e e d i n g s

against the accused or 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 to the board shall specify:

(A) That upon completion of the board’s investigation, a statement consisting only of the board’s

ultimate conclusions as to all questions specified 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.

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R.C.M. 706(a)
Discussion

Based on the report, further action in the case may be suspended,

the charges may be dismissed by the convening authority, administrative action may be taken to discharge the accused from the

service or, subject to Mil. R. Evid. 302, the charges may be tried

by court-martial.

(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

t h e b o a r d o r a n y e v i d e n c e d e r i v e d f r o m s u c h

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 the earlier of:

(1) Preferral of charges;

Discussion

Delay from the time of an offense to preferral of charges or the

imposition of pretrial restraint is not considered for speedy trial

purposes. See also Article 43 (statute of limitations). In some

circumstances such delay may prejudice the accused and may

result in dismissal of the charges or other relief. Offenses ordinarily should be disposed of promptly to serve the interests of good

order and discipline. Priority shall be given to persons in arrest or

confinement.

( 2 ) T h e i m p o s i t i o n o f r e s t r a i n t u n d e r R . C . M .

304(a)(2)–(4); or

(3) Entry on active duty under R.C.M. 204.

(b) Accountability.

(1) In general. The date of preferral of charges,

the date on which pretrial restraint under R.C.M.

304 (a)(2)-(4) is imposed, or the date of entry on

active duty under R.C.M. 204 shall not count for

purpose of computing time under subsection (a) of

this rule. The date on which the accused is brought

to trial shall count. The accused is brought to trial

within the meaning of this rule at the time of arraignment under R.C.M. 904.

(2) Multiple Charges. When charges are preferred

a t d i f f e r e n t t i m e s , a c c o u n t a b i l i t y f o r e a c h c h a r g e

shall be determined from the appropriate date under

subsection (a) of this rule for that charge.

(3) Events which affect time periods.

(A) Dismissal or mistrial. If charges are dismissed, or if a mistrial is granted, a new 120-day

time period under this rule shall begin on the date of

dismissal or mistrial for cases in which there is no

repreferral and cases in which the accused is in

pretrial restraint. In all other cases, a new 120-day

time period under the rule shall begin on the earlier

of

(i) the date of repreferral;

(ii) the date of imposition of restraint under

R.C.M. 304(a)(2)–(4).

(B) Release from restraint. If the accused is

released from pretrial restraint for a significant period, the 120-day time period under this rule shall

begin on the earlier of

(i) the date of preferral of charges;

(ii) the date on which restraint under R.C.M.

304(a) (2)-(4) is reimposed; or

(iii) the date of entry on active duty under

R.C.M. 204.

(C) Government appeals. If notice of appeal

under R.C.M. 908 is filed, a new 120-day time period under this rule shall begin, for all charges neit h e r p r o c e e d e d o n n o r s e v e r e d u n d e r R . C . M .

908(b)(4), on the date of notice to the parties under

R.C.M. 908(b)(8) or 908(c)(3), 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. After the decision of the

Court of Criminal Appeals under R.C.M. 908, if

there is a further appeal to the Court of Appeals for

the Armed Forces or, subsequently, to the Supreme

Court, a new 120-day time period under this rule

shall begin on the date the parties are notified of the

final decision of the Court of Appeals for the Armed

Forces, or, if appropriate, the Supreme Court.

(D) Rehearings. If a rehearing is ordered or

authorized by an appellate court, a new 120-day

time period under this rule shall begin on the date

that the responsible convening authority receives the

record of trial and the opinion authorizing or directing a rehearing. An accused is brought to trial within

the meaning of this rule at the time of arraignment

under R.C.M. 904 or, if arraignment is not required

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R.C.M. 707(b)(3)(D)
(such as in the case of a sentence-only rehearing), at

the time of the first session under R.C.M. 803.

(E) Commitment of the incompetent accused. If

the accused is committed to the custody of the Att o r n e y G e n e r a l f o r h o s p i t a l i z a t i o n a s p r o v i d e d i n

R.C.M. 909(f), all periods of such commitment shall

be excluded when determining whether the period in

subsection (a) of this rule has run. If, at the end of

the period of commitment, the accused is returned to

the custody of the general court-martial convening

authority, a new 120-day time period under this rule

shall begin on the date of such return to custody.

(c) Excludable delay. All periods of time during

w h i c h a p p e l l a t e c o u r t s h a v e i s s u e d s t a y s i n t h e

proceedings, or the accused is absent without authority, or the accused is hospitalized due to incompetence, or is otherwise in the custody of the Attorney

G e n e r a l , s h a l l b e e x c l u d e d w h e n d e t e r m i n i n g

whether the period in subsection (a) of this rule has

run. All other pretrial delays approved by a military

judge or the convening authority shall be similarly

excluded.

(1) Procedure. Prior to referral, all requests for

pretrial delay, together with supporting reasons, will

be submitted to the convening authority or, if authorized under regulations prescribed by the Secretary concerned, to a military judge for resolution.

After referral, such requests for pretrial delay will be

submitted to the military judge for resolution.

Discussion

The decision to grant or deny a reasonable delay is a matter

within the sole discretion of the convening authority or a military

judge. This decision should be based on the facts and circumstances then and there existing. Reasons to grant a delay might,

for example, include the need for: time to enable counsel to

prepare for trial in complex cases; time to allow examination into

the mental capacity of the accused; time to process a member of

the reserve component to active duty for disciplinary action; time

to complete other proceedings related to the case; time requested

by the defense; time to secure the availability of the accused,

substantial witnesses, or other evidence; time to obtain appropriate security clearances for access to classified information or time

to declassify evidence; or additional time for other good cause.

Pretrial delays should not be granted ex parte, and when

practicable, the decision granting the delay, together with supporting reasons and the dates covering the delay, should be reduced to

writing.

Prior to referral, the convening authority may delegate the

authority to grant continuances to an Article 32 investigating

officer.

(2) Motions. Upon accused’s timely motion to a

military judge under R.C.M. 905 for speedy trial

relief, counsel should provide the court a chronology

detailing the processing of the case. This chronology

should be made a part of the appellate record.

(d) Remedy. A failure to comply with this rule will

result in dismissal of the affected charges, or, in a

s e n t e n c e - o n l y r e h e a r i n g , s e n t e n c e r e l i e f a s

appropriate.

(1) Dismissal. Dismissal will be with or without

p r e j u d i c e t o t h e g o v e r n m e n t ’ s r i g h t t o r e i n s t i t u t e

court-martial proceedings against the accused for the

same offense at a later date. The charges must be

dismissed with prejudice where the accused has been

d e p r i v e d o f h i s o r h e r c o n s t i t u t i o n a l r i g h t t o a

s p e e d y t r i a l . I n d e t e r m i n i n g w h e t h e r t o d i s m i s s

charges with or without prejudice, the court shall

consider, among others, each of the following factors: the seriousness of the offense; the facts and

circumstances of the case that lead to dismissal; the

impact of a re-prosecution on the administration of

justice; and any prejudice to the accused resulting

from the denial of a speedy trial.

( 2 ) S e n t e n c e r e l i e f . I n d e t e r m i n i n g w h e t h e r o r

how much sentence relief is appropriate, the military

judge shall consider, among others, each of the following factors: the length of the delay, the reasons

for the delay, the accused’s demand for speedy trial,

and any prejudice to the accused from the delay.

Any sentence relief granted will be applied against

the sentence approved by the convening authority.

Discussion

See subsection (c)(1) and the accompanying Discussion concerning reasons for delay and procedures for parties to request delay.

(e) Waiver. Except as provided in R.C.M. 910(a)(2),

a plea of guilty which results in a finding of guilty

waives any speedy trial issue as to that offense.

Discussion

Speedy trial issues may also be waived by a failure to raise the

issue at trial. See R.C.M. 905(e) and 907(b)(2).

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R.C.M. 707(b)(3)(D)
CHAPTER VIII. TRIAL PROCEDURE GENERALLY

Rule 801. Military judge’s responsibilities;

other matters

(a) Responsibilities of military judge. The military

judge is the presiding officer in a court-martial.

Discussion

The military judge is responsible for ensuring that court-martial

proceedings are conducted in a fair and orderly manner, without

unnecessary delay or waste of time or resources. Unless otherwise

specified, the president of a special court-martial without a military judge has the same authority and responsibility 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 the

scheduling of sessions and the uniform to be worn. The military

judge recesses or adjourns the court-martial as appropriate. Subject to R.C.M. 504(d)(1), the military judge may also determine

the place of trial. See also R.C.M. 906(b)(11).

(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 conducted

in an atmosphere which is conducive to calm and detached deliberation and determination of the issues presented 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 framework

established by the code and this Manual, prescribe the manner

and order in which the proceedings may take place. Thus, the

military judge may determine: when, and in what order, motions

will be litigated ( see R.C.M. 905); the manner in which voir dire

will be conducted and challenges made (see R.C.M. 902(d) and

912); the order in which witnesses may testify (see R.C.M. 913;

Mil. R. Evid. 611); the order in which the parties may argue on a

motion or objection; and the time limits for argument (see R.C.M.

905; 919; 1001(g)).

The military judge should prevent unnecessary waste of time

and promote the ascertainment of truth, but must avoid undue

interference with the parties’ presentations or the appearance of

partiality. The parties are entitled to a reasonable opportunity to

properly present and support their contentions 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 findings (

see R.C.M. 920) and sentence (see R.C.M. 1005), and when

otherwise appropriate. For example, preliminary instructions to

the members concerning their duties and the duties of other trial

p a r t i c i p a n t s a n d o t h e r m a t t e r s a r e n o r m a l l y a p p r o p r i a t e . S e e

R.C.M. 913. Other instructions (for example, instructions on the

limited purpose for which evidence has been introduced, see Mil.

R. Evid. 105) may be given whenever the need arises.

(b) Rules of court; contempt. The military judge

may:

(1) Subject to R.C.M. 108, promulgate and enforce rules of court.

( 2 ) S u b j e c t t o R . C . M . 8 0 9 , e x e r c i s e c o n t e m p t

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 require that

a witness be recalled, or that a new witness be summoned, or

other evidence produced. The members or military judge may

direct trial counsel to make an inquiry along certain lines to

discover and produce additional evidence. See also Mil. R. Evid.

614. In taking such action, the court-martial must not depart from

an impartial role.

(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

t h e c o u r t - m a r t i a l , t h e c o u r t - m a r t i a l s h a l l p r o c e e d

with the trial of the offense charged.

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Discussion

A report of the matter may be made to the convening authority

after trial. If charges are preferred for an offense indicated by the

evidence referred to in this subsection, no member of the courtmartial who participated in the first trial should sit in any later

trial. Such a member would ordinarily be subject to a challenge

for cause. See R.C.M. 912. See also Mil. R. Evid. 105 concerning

instructing the members on evidence of uncharged misconduct.

( e ) I n t e r l o c u t o r y q u e s t i o n s a n d q u e s t i o n s o f l a w .

F o r p u r p o s e s o f t h i s s u b s e c t i o n “ m i l i t a r y j u d g e ”

does not include the president of a special courtmartial 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 mot i o n f o r a f i n d i n g o f n o t g u i l t y , o r u p o n a n y

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 questions, questions of law, and instructions. See also Mil. R. Evid.

103; 304; 311; 321. Such sessions should be used to the extent

possible consistent with the orderly, expeditious progress of the

proceedings.

(2) Ruling by the president of a special courtmartial 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.

(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 spec i a l c o u r t - m a r t i a l w i t h o u t a m i l i t a r y j u d g e m a y

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

m i l i t a r y j u d g e w h i c h i s s u b j e c t t o o b j e c t i o n , t h e

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

court-martial 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

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R.C.M. 801(d)
making the motion or raising the objection shall bear

the burden of persuasion.

Discussion

A ruling on an interlocutory question should be preceded by any

necessary inquiry into the pertinent facts and law. For example,

the party making the objection, motion, or request may be required to furnish evidence or legal authority in support of the

contention. An interlocutory issue may have a different standard

of proof. See, for example, Mil. R. Evid. 314(e)(5), which requires consent for a search to be proved by clear and convincing

evidence.

Most of the common motions are discussed in specific rules

in this Manual, and the burden of persuasion is assigned therein.

The prosecution usually bears the burden of persuasion (see Mil.

R. Evid. 304(e); 311(e); see also R.C.M. 905 through 907) once

an issue has been raised. What “raises” an issue may vary with

the issue. Some issues may be raised by a timely motion or

objection. See, for example, Mil. R. Evid. 304(e). Others may not

be raised until the defense has made an offer of proof or presented evidence in support of its position. See, for example, Mil.

R. Evid. 311(g)(2). The rules in this Manual and relevant decisions should be consulted when a question arises as to whether an

issue is raised, as well as which side has the burden of persuasion. The military judge or president of a special court-martial

may require a party to clarify a motion or objection or to make an

offer of proof, regardless of the burden of persuasion, when it

appears that the motion or objection is vague, inapposite, irrelevant, or spurious.

(5) Scope. Subsection (e) of this rule applies to

the disposition of questions of law and interlocutory

q u e s t i o n s a r i s i n g d u r i n g t r i a l e x c e p t t h e q u e s t i o n

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, 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 issued 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 or 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

t h i s s u b s e c t i o n [ R . C . M . 8 0 1 ( f ) ] “ m i l i t a r y j u d g e ”

does not include the president of a special courtmartial 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.

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R.C.M. 801(g)
Rule 802. Conferences

( a ) I n g e n e r a l . A f t e r r e f e r r a l , t h e m i l i t a r y j u d g e

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.

( b ) M a t t e r s o n r e c o r d . C o n f e r e n c e s n e e d n o t b e

made part of the record, but matters agreed upon at

a conference shall be included in the record orally or

in writing. Failure of a party to object at trial to

failure to comply with this subsection shall waive

this requirement.

(c) Rights of parties. No party may be prevented

under this rule from presenting evidence or from

making any argument, objection, or motion at trial.

(d) Accused’s presence. The presence of the accused

is neither required nor prohibited at a conference.

Discussion

Normally the defense counsel may be presumed to speak for the

accused.

(e) Admission. No admissions made by the accused

or defense counsel at a conference shall be used

against the accused unless the admissions are reduced to writing and signed by the accused and

defense counsel.

(f) Limitations. This rule shall not be invoked in the

case of an accused who is not represented by counsel, or in special court-martial without a military

judge.

Rule 803. Court-martial sessions without

members under Article 39(a)

A military judge who has been detailed to the

court-martial may, under Article 39(a), after service

of charges, call the court-martial into session without the presence of members. Such sessions may be

held before and after assembly of the court-martial,

and when authorized in these rules, after adjournment and before action by the convening authority.

All such sessions are a part of the trial and shall be

conducted in the presence of the accused, defense

c o u n s e l , a n d t r i a l c o u n s e l , i n a c c o r d a n c e w i t h

R.C.M. 804 and 805, and shall be made a part of the

record. For purposes of this rule “military judge”

does not include the president of a special courtmartial without a military judge.

Discussion

The purpose of Article 39(a) is “to give statutory sanction to

pretrial and other hearings without the presence of the members

concerning those matters which are amenable to disposition on

either a tentative or final basis by the military judge.” The military judge and members may, and ordinarily should, call the

court-martial into session without members to ascertain the accused’s understanding of the right to counsel, the right to request

trial by military judge alone, or when applicable, enlisted members, and the accused’s choices with respect to these matters;

dispose of interlocutory matters; hear objections and motions; rule

upon other matters that may legally be ruled upon by the military

judge, such as admitting evidence; and perform other procedural

functions which do not require the presence of members. See, for

example, R.C.M. 901–910. The military judge may, if permitted

by regulations of the Secretary concerned, hold the arraignment,

receive pleas, and enter findings of guilty upon an accepted plea

of guilty.

Evidence may be admitted and process, including a subpoena, may be issued to compel attendance of witnesses and production of evidence at such sessions. See R.C.M. 703.

Article 39(a) authorizes sessions only after charges have

been referred to trial and served on the accused, but the accused

has an absolute right to object, in time of peace, to any session

until the period prescribed by Article 35 has run.

See R.C.M. 804 concerning waiver by the accused of the

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R.C.M. 802
right to be present. See also R.C.M. 802 concerning conferences.

Rule 804. Presence of the accused at trial

proceedings

(a) Presence required. The accused shall be present

at the arraignment, the time of the plea, every stage

of the trial including sessions conducted under Article 39(a), voir dire and challenges of members, the

return of the findings, sentencing proceedings, and

post-trial sessions, if any, except as otherwise provided by this rule.

(b) Presence by remote means. If authorized by the

regulations of the Secretary concerned, the military

judge may order the use of audiovisual technology,

such as videoteleconferencing technology, between

the parties and the military judge for purposes of

Article 39(a) sessions. Use of such audiovisual technology will satisfy the “presence” requirement of the

accused only when the accused has a defense counsel physically present at his location. Such technology may include two or more remote sites as long as

all parties can see and hear each other.

(c) Continued presence not required. The further

progress of the trial to and including the return of

the findings and, if necessary, determination of a

s e n t e n c e s h a l l n o t b e p r e v e n t e d a n d t h e a c c u s e d

shall be considered to have waived the right to be

present whenever an accused, initially present:

( 1 ) I s v o l u n t a r i l y a b s e n t a f t e r a r r a i g n m e n t

(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 rem o v e d f r o m t h e c o u r t r o o m , p e r s i s t s i n c o n d u c t

w h i c h i s s u c h a s t o j u s t i f y e x c l u s i o n f r o m t h e

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

a b s e n c e u n l e s s t h e a c c u s e d w a s a w a r e t h a t t h e c o u r t - m a r t i a l

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

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.

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R.C.M. 804(c)(2)
(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.

(d) Voluntary absence for limited purpose of child

testimony.

(1) Election by accused. Following a determination by the military judge that remote live testimony

of a child is appropriate pursuant to Mil. R. Evid.

611(d)(3), the accused may elect to voluntarily absent himself from the courtroom in order to preclude

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

( 2 ) P r o c e d u r e . T h e a c c u s e d ’ s a b s e n c e w i l l b e

conditional upon his being able to view the witness’

testimony from a remote location. Normally, transmission of the testimony will include a system that

will transmit the accused’s image and voice into the

courtroom from a remote location as well as transmission of the child’s testimony from the courtroom

to the accused’s location. A one-way transmission

may be used if deemed necessary by the military

judge. The accused will also be provided private,

contemporaneous communication with his counsel.

The procedures described herein shall be employed

unless the accused has made a knowing and affirmative waiver of these procedures.

(3) Effect on accused’s rights generally. An election by the accused to be absent pursuant to subsection (c)(1) shall not otherwise affect the accused’s

right to be present at the remainder of the trial in

accordance with this rule.

(e) Appearance and security of accused.

(1) Appearance. The accused shall be properly

attired in the uniform or dress prescribed by the

m i l i t a r y j u d g e . A n a c c u s e d s e r v i c e m e m b e r s h a l l

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 obligation, of

an accused servicemember to present a good military appearance

at trial. An accused servicemember who refuses to present a

proper military appearance before a court-martial may be compelled to do so.

(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

court-martial 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. If authorized by regulations of the Secretary

concerned, for purposes of Article 39(a) sessions

solely, the presence of the military judge at Article

39(a) sessions may be satisfied by the use of audiov i s u a l t e c h n o l o g y , s u c h a s v i d e o t e l e c o n f e r e n c i n g

technology.

(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.

912(d); when the member has been excused under

R.C.M. 505 or 912(f); or as otherwise provided in

R.C.M. 1102. No general court-martial proceeding

r e q u i r i n g t h e p r e s e n c e o f m e m b e r s m a y b e c o n -

ducted unless at least five members are present, or

in capital cases, at least 12 members are present

except as provided in R.C.M. 501(a)(1)(B), where

12 members are not reasonably available because of

physical conditions or military exigencies. No special court-martial proceeding requiring the presence

of members may be conducted unless at least three

members are present except as provided in R.C.M.

9 1 2 ( h ) . E x c e p t a s p r o v i d e d i n R . C . M . 5 0 3 ( a ) ( 2 ) ,

w h e n a n e n l i s t e d a c c u s e d h a s r e q u e s t e d e n l i s t e d

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.

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R.C.M. 804(c)(2)
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.

If authorized by regulations of the Secretary concerned, for purposes of Article 39(a) sessions solely,

the presence of counsel at Article 39(a) sessions

may be satisfied by the use of audiovisual technolog y , s u c h a s v i d e o t e l e c o n f e r e n c i n g t e c h n o l o g y . A t

least one qualified defense counsel shall be physically present with the accused.

Discussion

See R.C.M. 504(d) concerning qualifications of counsel.

Ordinarily, no court-martial proceeding should take place if

any defense or assistant defense counsel is absent unless the

accused expressly consents to the absence. The military judge

may, however proceed in the absence of one or more defense

counsel, without the consent of the accused, if the military judge

finds that, under the circumstances, a continuance is not warranted and that the accused’s right to be adequately represented

would not be impaired.

See R.C.M. 502(d)(6) and 505(d)(2) concerning withdrawal

or substitution of counsel. See R.C.M. 506(d) concerning the right

of the accused to proceed without counsel.

( d ) E f f e c t o f r e p l a c e m e n t o f m e m b e r o r m i l i t a r y

judge.

( 1 ) M e m b e r s . W h e n a f t e r p r e s e n t a t i o n o f e v i -

dence on the merits has begun, a new member is

detailed under R.C.M. 505(c)(2)(B), trial may not

p r o c e e d u n l e s s t h e t e s t i m o n y a n d e v i d e n c e

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

At a rehearing, the trier of fact is not bound by the sentence

previously adjudged or approved. The members should not be

advised of the sentence limitation under this rule. See R.C.M.

1005(e)(1). An appropriate sentence on a retried or reheard offense should be adjudged without regard to any credit to which

the accused may be entitled. See R.C.M. 103(2) and R.C.M.

103(3) as to when a rehearing may be a capital case.

(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

t h e a c c u s e d r e q u e s t s , a n d t h e m i l i t a r y j u d g e a p -

proves, 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.

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 accommodate 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, servicemembers 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 and closure.

(1) 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, and exclude specific persons from

the courtroom. When excluding specific persons, the

military judge must make findings on the record

establishing the reason for the exclusion, the basis

for the military judge’s belief that exclusion is necessary, and that the exclusion is as narrowly tailored

as possible.

Discussion

The military judge must 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, specific persons excluded from the

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R.C.M. 806(b)(1)
courtroom, and, under unusual circumstances, a session may be

closed.

Exclusion of specific persons, if unreasonable under the circumstances, may violate the accused’s right to a public trial, even

though other spectators remain. Whenever specific persons or

some members of the public are excluded, exclusion must be

limited in time and scope to the minimum extent necessary to

achieve the purpose for which it is ordered. Prevention of overcrowding or noise may justify limiting access to the courtroom.

Disruptive or distracting appearance or conduct may justify excluding specific persons. Specific persons may be excluded when

necessary to protect witnesses from harm or intimidation. Access

may be reduced when no other means is available to relieve a

witness’ inability to testify due to embarrassment or extreme

n e r v o u s n e s s . W i t n e s s e s w i l l o r d i n a r i l y b e e x c l u d e d f r o m t h e

courtroom so that they cannot hear the testimony of other witnesses. See Mil. R. Evid. 615.

(2) Closure. Courts-martial shall be open to the

public unless (1) there is a substantial probability

that an overriding interest will be prejudiced if the

proceedings remain open; (2) closure is no broader

than necessary to protect the overriding interest; (3)

reasonable alternatives to closure were considered

and found inadequate; and (4) the military judge

makes case-specific findings on the record justifying

closure.

Discussion

The military judge is responsible for protecting both the accused’s

right to, and the public’s interest in, a public trial. 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, as long as the exclusion is not so broad as to effectively

bar everyone who might attend the sessions and is put into place

for a proper purpose.

A session may be closed over the objection of the accused or

the public upon meeting the constitutional standard set forth in

this Rule. See also Mil. R. Evid. 412(c), 505(i), and 513(e)(2).

The accused may waive his right to a public trial. The fact

that the prosecution and defense jointly seek to have a session

closed does not, however, automatically justify closure, for the

public has a right in attending courts-martial. Opening trials to

public scrutiny reduces the chance of arbitrary and capricious

decisions and enhances public confidence in the court-martial

process.

The most likely reason for a defense request to close courtmartial proceedings is to minimize the potentially adverse effect

of publicity on the trial. 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 accordance with

this Rule, 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 alternative means of protecting the proceedings

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)(1)).

Alternatives that may occasionally be appropriate and are usually

preferable to closing a session include: directing members not to

read, listen to, or watch any accounts concerning the case; issuing

a protective order (see R.C.M. 806(d)); selecting members from

recent arrivals in the command, or from outside the immediate

a r e a ( s e e R . C . M . 5 0 3 ( a ) ( 3 ) ) ; c h a n g i n g t h e p l a c e o f t r i a l ( s e e

R.C.M.906(b)(11)); or sequestering the members.

( c ) P h o t o g r a p h y a n d b r o a d c a s t i n g p r o h i b i t e d .

V i d e o a n d a u d i o r e c o r d i n g a n d t h e t a k i n g o f

photographs—except for the purpose of preparing

t h e r e c o r d o f t r i a l — i n t h e c o u r t r o o m d u r i n g t h e

proceedings and radio or television broadcasting of

proceedings from the courtroom shall not be permitted. However, the military judge may, as a matter of

d i s c r e t i o n p e r m i t c o n t e m p o r a n e o u s c l o s e d - c i r c u i t

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 inadeq u a t e t o a c c o m m o d a t e a r e a s o n a b l e n u m b e r o f

spectators.

(d) Protective orders. The military judge may, upon

request of any party or sua sponte, issue an appropriate protective order, in writing, to prevent parties

and witnesses from making extrajudicial statements

that present a substantial likelihood of material prejudice to a fair trial by impartial members. For purposes of this subsection, “military judge” does not

include the president of a special court-martial without a military judge.

Discussion

A protective order may proscribe extrajudicial statements by

counsel, parties, and witnesses that might divulge prejudicial matter not of public record in the case. Other appropriate matters may

also be addressed by such a protective order. Before issuing a

protective order, the military judge must consider whether other

available remedies would effectively mitigate the adverse effects

that any publicity might create, and consider such an order’s

likely effectiveness in ensuring an impartial court-martial panel.

A military judge should not issue a protective order without first

providing notice to the parties and an opportunity to be heard.

The military judge must state on the record the reasons for issuing the protective order. If the reasons for issuing the order

change, the military judge may reconsider the continued necessity

for a protective order.

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R.C.M. 806(b)(1)
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 ) C o u r t - m a r t i a l p e r s o n n e l . T h e m i l i t a r y

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 concerned

shall prescribed: the form of the oath; the time and place of the

taking thereof; the manner of recording it; and whether the oath

shall be taken for all cases in which the duties are to be performed or in each case separately. In the case of certified legal

personnel (Article 26(b); Article 27(b)) these regulations may

provide for the administration of an oath on a one-time basis. See

also R.C.M. 813 and 901 concerning the point in the proceedings

at which it is ordinarily determined whether the required oaths

have been taken or are then administered.

(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 in preferr a l o f c h a r g e s . S e e R . C . M . 4 0 5 a n d 7 0 2 c o n c e r n i n g t h e

requirements for an oath in Article 32 investigations and depositions.

An accused making an unsworn statement is not a “witness.”

See R.C.M. 1001(c)(2)(C).

(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 judge,

members, or any counsel, all persons in the courtroom should

stand. In those rare circumstances in which the trial counsel

testifies as a witness, the military judge administers the oath.

Unless otherwise prescribed by the Secretary concerned the

forms below may be used, as appropriate, to administer an oath.

(A) Oath for military judge. When the military judge is not

previously sworn, the trial counsel will administer the following

oath to the military judge:

“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) Oath 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 findings or sentence unless required to do so in due

course of law (, so help you God)?”

(C) Oaths for counsel. 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) Oath for reporter. The trial counsel will administer the

following oath to every reporter of a court-martial who has not

been previously sworn:

“Do you (swear) (affirm) that you will faithfully perform the

duties of reporter to this court-martial (, so help you God)?”

(E) Oath 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 witnesses. 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 courtmartial and will well and truly point out to them (the place in

which the offense charged in this case is alleged to have been

committed) ( ); and that you will not speak to the

members concerning (the alleged offense) ( ), exII-81

R.C.M. 807(b)(2)
cept to describe (the place aforesaid) ( ) (, so help

you God)?”

See Article 136 concerning persons authorized to administer

oaths.

Rule 808. Record of trial

The trial counsel of a general or special courtmartial 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 badconduct discharge, confinement for more than six months, or

forfeiture of pay for more than six months, 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. 1103(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.

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. 1103(f). If the interruption 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 Trial-Article

39(a) Session).

Rule 809. Contempt proceedings

( a ) I n g e n e r a l . C o u r t s - m a r t i a l m a y e x e r c i s e c o n -

tempt power under Article 48.

Discussion

Article 48 provides: “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.”

Article 48 makes punishable “direct” contempt, that is, contempt which is committed in the presence of the court-martial or

its immediate proximity. “Presence” includes those places outside

the courtroom itself, such as waiting areas, deliberation room, and

other places set aside for the use of the court-martial while it is in

session. A “direct” contempt may be actually seen or heard by the

court-martial, in which case it may be punished summarily. See

subsection (b)(1) below. A “direct” contempt may also be a contempt not actually observed by the court-martial, for example,

when an unseen person makes loud noises, whether inside or

outside the courtroom, which impede the orderly progress of the

proceedings. In such a case the procedures for punishing for

contempt are more extensive. See subsection (b)(2) below.

The words “any person,” as used in Article 48, include all

persons, whether or not subject to military law, except the military judge, members, and foreign nationals outside the territorial

limits of the United States who are not subject to the code.

Each contempt may be separately punished.

A person subject to the code who commits contempt may be

tried by court-martial or otherwise disciplined for such misconduct in addition to or instead of punishment for contempt. The

military judge may order the offender removed whether or not

contempt proceedings are held. In some cases it may be appropriate to warn a person whose conduct is improper that persistence

therein may result in removal or punishment for contempt. See

R.C.M. 804, 806.

The military judge may issue orders when appropriate to

ensure the orderly progress of the trial. Violation of such orders is

not punishable under Article 48, but may be prosecuted as a

violation of Article 90 or 92. See also Article 98.

Refusal to appear or to testify is not punishable under Article

48. Persons not subject to military law having been duly subpoenaed, may be prosecuted in Federal civilian court under Article

47 for neglect or refusal to appear or refusal to qualify as a

witness or to testify or to produce evidence. Persons subject to the

code may be punished under Article 134 for such offenses. See

paragraph 108, Part IV.

A summary court-martial may punish for contempt.

(b) Method of disposition.

(1) Summary disposition. When conduct constituting contempt is directly witnessed by the courtmartial, the conduct may be punished summarily.

(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. The military judge shall in all cases

determine whether to punish for contempt and, if so,

what the punishment shall be. The military judge

shall also determine when during the court-martial

the contempt proceedings shall be conducted; however, if the court-martial is composed of members,

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R.C.M. 807(b)(2)
t h e m i l i t a r y j u d g e s h a l l c o n d u c t t h e c o n t e m p t

p r o c e e d i n g s o u t s i d e t h e m e m b e r s ’ p r e s e n c e . T h e

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. Otherwise, the provisions

of subsection (b)(2) shall apply.

( d ) R e c o r d ; r e v i e w . A r e c o r d o f t h e c o n t e m p t

proceedings shall be part of the record of the courtmartial during 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, or, in

the case of a civilian, the convening authority should be notified

immediately so that the necessary action on the sentence 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 other

persons including the immediate commander of the offender as

may be concerned with the execution of the punishment. A copy

shall be included with the record of both the trial and the contempt proceeding.

Rule 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 the

merits or improperly admitted on the merits must not be brought

to the attention of the members as a part of the original 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 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

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R.C.M. 810(a)(3)
trial, except as otherwise provided in this rule. A

single sentence shall be adjudged for all offenses.

(b) Composition.

( 1 ) M e m b e r s . N o m e m b e r o f t h e c o u r t - m a r t i a l

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

o t h e r t r i a l , e x a m i n e t h e r e c o r d o f a n y f o r m e r

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).

When a rehearing is ordered, the trial counsel should be

provided a record of the former proceedings, accompanying documents, and any decision or review relating to the case, as well as

a statement of the reason for the rehearing.

(d) Sentence limitations.

(1) In general. Sentences at rehearings, new trials, or other trials shall be adjudged within the limit a t i o n s s e t f o r t h i n R . C . M . 1 0 0 3 . E x c e p t a s

otherwise provided in subsection (d)(2) of this rule,

offenses on which a rehearing, new trial, or other

trial has been ordered shall not be the basis for an

approved sentence in excess of or more severe than

the sentence ultimately approved by the convening

or higher authority following the previous trial or

hearing, unless the sentence prescribed for the offense is mandatory. When a rehearing or sentencing

is combined with trial on new charges, the maximum punishment that may be approved by the convening authority shall be the maximum punishment

under R.C.M. 1003 for the offenses being reheard as

limited above, plus the total maximum punishment

under R.C.M. 1003 for any new charges of which

the accused has been found guilty. In the case of an

“ o t h e r t r i a l ” n o s e n t e n c e l i m i t a t i o n s a p p l y i f t h e

original trial was invalid because a summary or special court-martial improperly tried an offense involvi n g a m a n d a t o r y p u n i s h m e n t o r o n e o t h e r w i s e

considered capital.

Discussion

In approving a sentence not in excess of one more severe than

one imposed previously, a convening authority is not limited to

approving the same or lesser amount of the same type of punishment formerly approved. An appropriate sentence on a retried or

reheard offense should be adjudged without regard to any credit

to which the accused may be entitled.

See R.C.M. 201(f)(2)(C); 1301(c).

See R.C.M. 103(2) and (3) as to when a rehearing may be a

capital case.

The members should not be advised of the basis for the

sentence limitation under this rule.

(2) Pretrial agreement. If, after the earlier courtmartial, the sentence was approved in accordance

with a pretrial agreement and at the rehearing the

accused fails to comply with the pretrial agreement,

by failing to enter a plea of guilty or otherwise, the

approved sentence resulting at a rehearing of the

affected charges and specifications may include any

otherwise lawful punishment not in excess of or

more serious than lawfully adjudged at the earlier

court-martial.

(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.

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R.C.M. 810(a)(3)
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 the

parties, the military judge should not accept a stipulation if there

is any doubt of the accused’s or any other party’s understanding

of the nature and effect of the stipulation. The military judge

should also refuse to accept a stipulation which is unclear or

ambiguous. A stipulation of fact which amounts to a complete

defense to any offense charged should not be accepted nor, if a

plea of not guilty is outstanding, should one which practically

amounts to a confession, except as described in the discussion

under subsection (c) of this rule. If a stipulation is rejected, the

parties may be entitled to a continuance.

(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 judge

should inquire to ensure that the accused understands the right not

to stipulate, understands the stipulation, and consents to it.

If the stipulation practically amounts to a confession to an

offense to which a not guilty plea is outstanding, it may not be

accepted unless the military judge ascertains: (A) from the accused that the accused understands the right not to stipulate and

that the stipulation will not be accepted without the accused’s

consent; that the accused understands the contents and effect of

the stipulation; that a factual basis exists for the stipulation; and

that the accused, after consulting with counsel, consents to the

stipulation; and (B) from the accused and counsel for each party

whether there are any agreements between the parties in connection with the stipulation, and, if so, what the terms of such

agreements are.

A stipulation practically amounts to a confession when it is

the equivalent of a guilty plea, that is, when it establishes, directly

or by reasonable inference, every element of a charged offense

and when the defense does not present evidence to contest any

potential remaining issue of the merits. Thus, a stipulation which

tends to establish, by reasonable inference, every element of a

charged offense does not practically amount to a confession if the

defense contests an issue going to guilt which is not foreclosed by

the stipulation. For example, a stipulation of fact that contraband

drugs were discovered in a vehicle owned by the accused would

normally practically amount to a confession if no other evidence

were presented on the issue, but would not if the defense presented evidence to show that the accused was unaware of the

presence of the drugs. Whenever a stipulation establishes the

elements of a charged offense, the military judge should conduct

an inquiry as described above.

If, during an inquiry into a confessional stipulation the military judge discovers that there is a pretrial agreement, the military

judge must conduct an inquiry into the pretrial agreement. See

R.C.M. 910(f). See also R.C.M. 705.

( d ) W i t h d r a w a l . A p a r t y m a y w i t h d r a w f r o m a n

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 a

stipulation, before or after it has been accepted, the opposing

party may be entitled to a continuance to obtain proof of the

matters which were to have been stipulated.

I f a p a r t y i s p e r m i t t e d t o w i t h d r a w f r o m a s t i p u l a t i o n

previously accepted, the stipulation must be disregarded by the

court-martial, and an instruction to that effect should be given.

(e) Effect of stipulation. Unless properly withdrawn

or ordered stricken from the record, a stipulation of

fact that has been accepted is binding on the courtmartial and may not be contradicted by the parties

thereto. The contends 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.

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R.C.M. 811(f)
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 specifications for joint trials. See R.C.M. 601(e)(3) concerning referral of

charges for joint or common trials, and the distinction between

the two. See R.C.M. 906(b)(9) concerning motions to sever and

other appropriate motions in joint or common trials.

In a joint or common trial, each accused may be represented

by separate counsel, make challenges for cause, make peremptory

c h a l l e n g e s ( s e e R . C . M . 9 1 2 ) , c r o s s - e x a m i n e w i t n e s s e s , e l e c t

whether to testify, introduce evidence, request that the membership of the court include enlisted persons, if an enlisted accused,

and, if a military judge has been detailed, request trial by military

judge alone.

Where different elections are made (and, when necessary,

approved) as to court-martial composition a severance is necessary. Thus, if one co-accused elects to be tried by a court-martial

composed of officers, and a second requests that enlisted members be detailed to the court, and a third submits a request for trial

by military judge alone, which request is approved, three separate

trials must be conducted.

In a joint or common trial, evidence which is admissible

against only one or some of the joint or several accused may be

c o n s i d e r e d o n l y a g a i n s t t h e a c c u s e d c o n c e r n e d . F o r e x a m p l e ,

when a stipulation is accepted which was made by only one or

some of the accused, the stipulation does not apply to those

accused who did not join it. See also Mil. R. Evid. 306. In such

instances the members must be instructed that the stipulation or

evidence may be considered only with respect to the 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 ) T h e o r d e r , i n c l u d i n g a n y a m e n d m e n t , b y

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;

(7) The names and ranks (if any) of counsel who

are absent; and

(8) The name and rank (if any) of any detailed

court reporter.

( b ) L a t e r p r o c e e d i n g s . W h e n t h e c o u r t - m a r t i a l i s

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 courtmartial 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

a p p e a r a n c e o f n e w p e r s o n n e l o r p e r s o n n e l

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.

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R.C.M. 812
CHAPTER IX. TRIAL PROCEDURES 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, convening

order, and any amending orders before calling the initial session

to order.

Article 35 provides that in time of peace, no proceedings,

including Article 39(a) sessions, may be conducted over the accused’s objection until five days have elapsed from the service of

charges on the accused in the case of a general court-martial. The

period is three days for a special court-martial. In computing

these periods, the date of service and the date of the proceedings

are excluded. Holidays and Sundays are not excluded. Failure to

object waives the right to the waiting period, but if it appears that

the waiting period has not elapsed, the military judge should

bring this to the attention of the defense 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

p a r t i e s , m i l i t a r y j u d g e , a n d m e m b e r s s h a l l b e

announced.

Discussion

If the orders detailing the military judge and counsel have not

been reduced to writing, an oral announcement of such detailing

is required. See R.C.M. 503(b) and (c).

(c) Swearing reporter and interpreter. After the personnel have been accounted for as required in subs e c t i o n ( b ) o f t h i s r u l e , t h e t r i a l c o u n s e l s h a l l

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 to a court

reporter or interpreter. If a reporter or interpreter is replaced at

any time during trial, this should be noted for the record, and the

procedures in this subsection should be repeated.

(d) Counsel.

( 1 ) T r i a l c o u n s e l . T h e t r i a l c o u n s e l s h a l l a n -

nounce 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

c o u n s e l ’ s l e g a l q u a l i f i c a t i o n s , a n d w h e t h e r t h a t

counsel has acted in any manner which might tend

to disqualify the 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 qualifications, or because of duties or actions which are inconsistent

with the role of counsel. See R.C.M. 502(d) concerning qualifications of counsel.

If it appears that any counsel may be disqualified, the military judge should conduct an inquiry or hearing. If any detailed

counsel is disqualified, the appropriate authority should be informed. If any defense counsel is disqualified, the accused should

be so informed.

If the disqualification of trial or defense counsel is one

which the accused may waive, the accused should be so informed

b y t h e m i l i t a r y j u d g e , a n d g i v e n t h e o p p o r t u n i t y t o d e c i d e

whether to waive the disqualification. In the case of defense

counsel, if the disqualification is not waivable or if the accused

elects not to waive the disqualification, the accused should be

informed of the choices available and given the opportunity to

exercise such options.

If any counsel is disqualified, the military judge should ensure that the accused is not prejudiced by any actions of the

disqualified counsel or any break in representation of the accused.

Disqualification of counsel is not a jurisdictional defect; such

error must be tested for prejudice.

If the membership of the prosecution or defense changes at

any time during the proceedings, the procedures in this subsection

should be repeated as to the new counsel. In addition, the military

judge should ascertain on the record whether the accused objects

to a change of defense counsel. See R.C.M. 505(d)(2) and 506(c).

( 4 ) I n q u i r y . T h e m i l i t a r y j u d g e s h a l l , i n o p e n

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 assoII-87
ciation 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 ret e n t i o n o f d e t a i l e d c o u n s e l a s a s s o c i a t e c o u n s e l ,

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 conflict

of interest, the military judge should inquire into the matter,

advise the accused of the right to effective assistance of counsel,

and ascertain the accused’s choice of counsel. When defense

counsel is aware of a potential conflict of interest, counsel should

discuss the matter with the accused. If the accused elects to waive

such conflict, counsel should inform the military judge of the

matter at an Article 39(a) session so that an appropriate record

can be made.

(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 milit a r y j u d g e h a s b e e n d e t a i l e d , t h e p r o c e d u r e s d e -

s c r i b e d i n R . C . M . 9 0 1 t h r o u g h 9 0 3 , 9 0 4 w h e n

a u t h o r i z e d b y t h e S e c r e t a r y c o n c e r n e d , a n d 9 0 5

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) Specific grounds. A military judge shall also disq u a l i f y h i m s e l f o r h e r s e l f i n t h e f o l l o w i n g

circumstances:

(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 recomm e n d a t i o n a s t o d i s p o s i t i o n , o r , e x c e p t i n t h e

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 relat i o n s h i p t o e i t h e r o f t h e m o r a s p o u s e o f s u c h

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 his or her

financial interests, and make a reasonable effort to inform himself

or herself about the financial interests of his or 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—

II-88

R.C.M. 901(d)(4)(A)
(1) “Proceeding” includes pretrial, trial, post-trial,

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 children,

grandchildren, great grandchildren, parents, grandparents, great

grandparents, brothers, sisters, uncles, aunts, nephews, 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

p a r t y o r s u a s p o n t e , d e c i d e w h e t h e r t h e m i l i t a r y

judge is disqualified.

Discussion

There is no peremptory challenge against a military judge. A

m i l i t a r y j u d g e s h o u l d c a r e f u l l y c o n s i d e r w h e t h e r a n y o f t h e

grounds for disqualification in this rule exist in each case. The

military judge should broadly construe grounds for challenge but

should not step down from a case unnecessarily.

Possible grounds for disqualification should be raised at the

earliest reasonable opportunity. They may be raised at any time,

and an earlier adverse ruling does not bar later consideration of

the same issue, as, for example, when additional 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.

Discussion

Nothing in this rule prohibits the military judge from reasonably

limiting the presentation of evidence, the scope of questioning,

and argument on the subject so as to ensure that only matters

material to the central issue of the military judge’s possible disqualification are considered, thereby, preventing the proceedings

from becoming a forum for unfounded opinion, speculation or

innuendo.

(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.

(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

o f s u c h a s e s s i o n , b e f o r e a s s e m b l y , t h e m i l i t a r y

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 ) R e q u e s t f o r t r i a l b y m i l i t a r y j u d g e a l o n e .

Before the end of the initial Article 39(a) session, or,

in the absence of such a session, before assembly,

t h e m i l i t a r y j u d g e s h a l l a s c e r t a i n , a s a p p l i c a b l e ,

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 members be

detailed to a court-martial. Trial by military judge alone is not

permitted in capital cases (see R.C.M. 201(f)(1)(C)) or in special

courts-martial in which no military judge has been detailed.

(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 or shall be made orally on the record.

(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 notice of

a timely request for enlisted members by an enlisted

accused, the convening authority shall detail enlisted

m e m b e r s t o t h e c o u r t - m a r t i a l i n a c c o r d a n c e w i t h

R.C.M. 503 or prepare a detailed written statement

explaining why physical conditions or military exiII-89

R.C.M. 903(c)(1)
gencies 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 ) A s c e r t a i n w h e t h e r t h e a c c u s e d h a s c o n -

sulted 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 the

accused to ensure that the accused’s waiver of the right to trial by

members is knowing and understanding. Failure to do so is not

error, however, where such knowledge and understanding otherwise appear on the record.

DD Form 1722 (Request for Trial Before Military Judge

Alone (Art.16, UCMJ)) should normally be used for the purpose

of requesting trial by military judge alone under this rule, if a

written request is used.

(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 of

justice, the military judge should not sit as factfinder. The military judge may hear arguments from counsel before acting on the

request. The basis for denial of a request must be made a matter

of record.

(3) Other. In the absence of a request for enlisted

members or a request 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 military

j u d g e a l o n e i s s u b m i t t e d , t h e m i l i t a r y j u d g e s h o u l d i n q u i r e

whether such a request will be made ( see subsection (a)(1) of

this rule) unless these elections are not available to the accused.

(d) Right to withdraw request.

( 1 ) E n l i s t e d m e m b e r s . A r e q u e s t f o r e n l i s t e d

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 request

or withdrawal of a request, the military judge should balance the

reason for the request (for example, whether it is a mere change

of tactics or results from a substantial change of circumstances)

against any expense, delay, or inconvenience which would result

from granting the request.

(f) Scope. For purposes of this rule, “military judge”

does not include the president of a special courtmartial 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 to

plead; the entry of pleas is not part of the arraignment.

When authorized by regulations of the Secretary concerned,

the arraignment should be conducted at an Article 39(a) session

when a military judge has been detailed. The accused may not be

arraigned at a conference under R.C.M. 802.

Once the accused has been arraigned, no additional charges

against that accused may be referred to that court-martial for trial

with the previously referred charges. See R.C.M. 601(e)(2).

The defense should be asked whether it has any motions to

make before pleas are entered. Some motions ordinarily must be

made before a plea is entered. See R.C.M. 905(b).

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R.C.M. 903(c)(1)
Rule 905. Motions generally

(a) Definitions and form. A motion is an application

to the military judge for particular relief. Motions

may be oral or, at the discretion of the military

j u d g e , w r i t t e n . A m o t i o n s h a l l s t a t e t h e g r o u n d s

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))];

motions for appropriate relief (see R.C.M. 906); motions to dismiss (see R.C.M. 907); or motions for findings of not guilty (see

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, inadequate Article 32 investigation, and inadequate pretrial advice. See

R.C.M. 307; 401–407; 601–604.

(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 admissibility of confessions and admissions, evidence obtained from unlawf u l s e a r c h e s a n d s e i z u r e s , a n d e y e w i t n e s s i d e n t i f i c a t i o n ,

respectively. Questions concerning the admissibility of evidence

on other grounds may be raised by objection at trial or by motions in limine. See R.C.M. 906(b)(13); Mil. R. Evid. 103(c);

104(a) and (c).

(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

d e f e n s e c o u n s e l w h e n i n d i v i d u a l m i l i t a r y c o u n s e l

has been granted.

Discussion

See R.C.M. 506(b); 906(b)(2).

(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. 908

and Mil. R. Evid. 304(e), 311(e), and 321(d) for provisions specifically assigning the burden of proof.

(B) In the case of a motion to dismiss for lack

of jurisdiction, denial of the right to speedy trial

II-91

R.C.M. 905(c)(2)(B)
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

a r e e n t e r e d s h a l l b e d e t e r m i n e d b e f o r e p l e a s a r e

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 or

other rulings on motions, the court-martial should adjourn and a

record of the proceedings should be prepared for the convening

authority. See R.C.M. 908(b)(4) regarding automatic stay of certain rulings and orders subject to appeal under that rule. Notwithstanding the dismissal of some specifications, trial may proceed

in the normal manner as long as one or more charges and specifications remain. The promulgating orders should reflect the action

taken by the court-martial on each charge and specification, including any which were dismissed by the military judge on a

motion. See R.C.M. 1114.

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

Failure by a party to raise defenses or objections or

to make motions or 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 motions, requests, defenses, or objections, except lack of jurisdiction or failure of a charge to

allege an offense, must be raised before the courtmartial is 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, prior to authentication of the record of trial, reconsider any ruling,

other than one amounting to a finding of not guilty,

made by the military judge.

Discussion

Subsection (f) permits the military judge to reconsider any ruling

that affects the legal sufficiency of any finding of guilt or the

sentence. See R.C.M. 917(d) for the standard to be used to determine the legal sufficiency of evidence. See also R.C.M. 1102

c o n c e r n i n g p r o c e d u r e s f o r p o s t - t r i a l r e c o n s i d e r a t i o n . D i f f e r e n t

standards may apply depending on the nature of the ruling. See

United States v. Scaff, 29 M.J. 60 (C.M.A. 1989).

(g) Effect of final determinations. Any matter put in

i s s u e a n d f i n a l l y d e t e r m i n e d b y a c o u r t - m a r t i a l ,

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 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 finally

determined in another judicial proceeding with jurisdiction to

decide it, and whether such determination binds the United States

in another proceeding are interlocutory questions. See R.C.M.

801(e). It does not matter whether the earlier proceeding ended in

an acquittal, conviction, or otherwise, as long as the determination is final. Except for a ruling which is, or amounts to, a finding

of not guilty, a ruling ordinarily is not final until action on the

court-martial is completed. See Article 76; R.C.M. 1209. The

accused is not bound in a court-martial by rulings in another

court-martial. But see Article 3(b); R.C.M. 202.

The determination must have been made by a court-martial,

reviewing authority, or appellate court, or by another judicial

body, such as a United States court. A pretrial determination by a

convening authority is not a final determination under this rule,

although some decisions by a convening authority may bind the

Government under other rules. See, for example, R.C.M. 601,

604, 704, 705.

The United States is bound by a final determination by a

court of competent jurisdiction even if the earlier determination is

e r r o n e o u s , e x c e p t w h e n t h e o f f e n s e s c h a r g e d a t t h e s e c o n d

proceeding arose out of a different transaction from those charged

at the first and the ruling at the first proceeding was based on an

incorrect determination of law.

A final determination in one case may be the basis for a

motion to dismiss or a motion for appropriate relief in another

case, depending on the circumstances. The nature of the earlier

II-92

R.C.M. 905(c)(2)(B)
determination and the grounds for it will determine its effect in

other proceedings.

Examples:

(1) The military judge dismissed a charge for lack of personal jurisdiction, on grounds that the accused was only 16 years

old at the time of enlistment and when the offenses occurred. At a

second court-martial of the same accused for a different offense,

the determination in the first case would require dismissal of the

new charge unless the prosecution could show that since that

determination the accused had effected a valid enlistment or constructive enlistment. See R.C.M. 202. Note, however, that if the

initial ruling had been based on an error of law (for example, if

the military judge had ruled the enlistment invalid because the

accused was 18 at the time of enlistment) this would not require

dismissal in the second court-martial for a different offense.

(2) The accused was tried in United States district court for

assault on a Federal officer. The accused defended solely on the

basis of alibi and was acquitted. The accused is then charged in a

court-martial with assault on a different person at the same time

and place as the assault on a Federal officer was alleged to have

occurred. The acquittal of the accused in Federal district court

would bar conviction of the accused in the court-martial. In cases

of this nature, the facts of the first trial must be examined to

determine whether the finding of the first trial is logically inconsistent with guilt in the second case.

(3) At a court-martial for larceny, the military judge excluded evidence of a statement made by the accused relating to

the larceny and other uncharged offenses because the statement

was obtained by coercion. At a second court-martial for an unrelated offense, the statement excluded at the first trial would be

inadmissible, based on the earlier ruling, if the first case had

become final. If the earlier ruling had been based on an incorrect

interpretation of law, however, the issue of admissibility could be

litigated anew at the second proceeding.

(4) At a court-martial for absence without authority, the

charge and specification were dismissed for failure to state an

offense. At a later court-martial for the same offense, the earlier

dismissal would be grounds for dismissing the same charge and

specification, but would not bar further proceedings on a new

specification not containing the same defect as the original specification.

(h) Written motions. Written motions may be submitted to the military judge after referral and when

a p p r o p r i a t e t h e y m a y b e s u p p o r t e d b y a f f i d a v i t s ,

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.

( j ) A p p l i c a t i o n t o c o n v e n i n g a u t h o r i t y . E x c e p t a s

o t h e r w i s e p r o v i d e d i n t h i s M a n u a l , a n y m a t t e r s

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.

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 cause,

grant a continuance to any party for as long and as often as is

just. Article 40. Whether a request for a continuance should be

granted is a matter within the discretion of the military judge.

Reasons for a continuance may include: insufficient opportunity

to prepare for trial; unavailability of an essential witness; the

interest of Government in the order of trial of related cases; and

illness of an accused, counsel, military judge, or member. See

also R.C.M. 602; 803.

(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 matII-93

R.C.M. 906(b)(2)
ter is included in the record of trial, and may make

findings. The trial counsel may request a continua n c e t o i n f o r m t h e c o n v e n i n g a u t h o r i t y o f t h o s e

findings. The military judge may not dismiss the

c h a r g e s o r o t h e r w i s e e f f e c t i v e l y p r e v e n t f u r t h e r

proceedings based on 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

s h o u l d o r d i n a r i l y g r a n t a c o n t i n u a n c e s o t h e d e f e c t m a y b e

corrected.

( 4 ) A m e n d m e n t o f c h a r g e s o r s p e c i f i c a t i o n s . A

charge 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.

An amendment may be appropriate when a specification is

unclear, redundant, inartfully drafted, misnames an accused, or is

laid under the wrong article. A specification may be amended by

s t r i k i n g s u r p l u s a g e , o r s u b s t i t u t i n g o r a d d i n g n e w l a n g u a g e .

Surplusage may include irrelevant or redundant details or aggravating circumstances which are not necessary to enhance the

maximum authorized punishment or to explain the essential facts

of the offense. When a specification is amended after the accused

has entered a plea to it, the accused should be asked to plead

anew to the amended specification. A bill of particulars (see

subsection (b)(6) of this rule) may also be used when a specification is indefinite or ambiguous.

If a specification, although stating an offense, is so defective

that the accused appears to have been misled, the accused should

be given a continuance upon request, or, in an appropriate case

(see R.C.M. 907(b)(3)), the specification may be dismissed.

(5) Severance of a duplicitous specification into

two or more specifications.

Discussion

Each specification may state only one offense. R.C.M. 307(c)(4).

A duplicitous specification is one which alleges two or more

separate offenses. Lesser included offenses (see Part IV, paragraph 2) are not separate, nor is a continuing offense involving

several separate acts. The sole remedy for a duplicitous specification is severance of the specification into two or more specifications, each of which alleges a separate offense contained in the

duplicitous specification. However, if the duplicitousness is combined with or results in other defects, such as misleading the

accused, other remedies may be appropriate. See subsection (b)(3)

of this rule. See also R.C.M. 907(B)(3).

(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 accused of

the nature of the charge with sufficient precision to enable the

accused to prepare for trial, to avoid or minimize the danger of

surprise at the time of trial, and to enable the accused to plead the

acquittal or conviction in bar of another prosecution for the same

offense when the specification itself is too vague and indefinite

for such purposes.

A bill of particulars should not be used to conduct discovery

of the Government’s theory of a case, to force detailed disclosure

of acts underlying a charge, or to restrict the Government’s proof

at trial.

A bill of particulars need not be sworn because it is not part

of the specification. A bill of particulars cannot be used to repair

a specification which is otherwise not legally sufficient.

( 7 ) D i s c o v e r y a n d p r o d u c t i o n o f e v i d e n c e a n d

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.

Discussion

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 accused

against whom charges have been referred to a joint or common

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R.C.M. 906(b)(2)
trial be tried separately. Such a request should be liberally considered in a common trial, and should be granted if good cause is

shown. For example, a severance is ordinarily appropriate when:

the moving party wishes to use the testimony of one or more of

the coaccused or the spouse of a coaccused; a defense of a

coaccused is antagonistic to the moving party; or evidence as to

any other accused will improperly prejudice the moving accused.

If a severance is granted by the military judge, the military

judge will decide which accused will be tried first. See R.C.M.

801(a)(1). In the case of joint charges, the military judge will

direct an appropriate amendment of the charges and specifications.

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 courtmartial. Joinder of minor and major offenses, or of unrelated

offenses is not alone a sufficient ground to sever offenses. For

example, when an essential witness as to one offense is unavailable, it might be appropriate to sever that offense to 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.

Discussion

A change of the place of trial may be necessary when there exists

in the place where the court-martial is pending so great a prejudice against the accused that the accused cannot obtain a fair and

impartial trial there, or to obtain compulsory process over an

essential witness.

When it is necessary to change the place of trial, the choice

of places to which the court-martial will be transferred will be left

to the convening authority, as long as the choice is not inconsistent with the ruling of the military judge.

(12) Determination of multiplicity of offenses for

sentencing purposes.

Discussion

See R.C.M. 1003 concerning determination of the maximum punishment. See also R.C.M. 907(b)(3)(B) concerning dismissal of

charges on grounds of multiplicity.

A ruling on this motion ordinarily should be deferred until

after findings are entered.

( 1 3 ) P r e l i m i n a r y r u l i n g o n a d m i s s i b i l i t y o f

evidence.

Discussion

See Mil. R. Evid. 104(c)

A request for a preliminary ruling on admissibility is a request that certain matters which are ordinarily decided during trial

of the general issue be resolved before they arise, outside the

presence of members. The purpose of such a motion is to avoid

the prejudice which may result from bringing inadmissible matters to the attention of court members.

Whether to rule on an evidentiary question before it arises

during trial is a matter within the discretion of the military judge.

But see R.C.M. 905(b)(3) and (d); and Mil. R. Evid. 304(e)(2);

311(e)(2); 321(d)(2). Reviewability of preliminary rulings will be

controlled by the Supreme Court’s decision in Luce v. United

States, 469 U.S. 38 (1984).

(14) Motions relating to mental capacity or responsibility of the accused.

Discussion

See R.C.M. 706, 909, and 916(k) regarding procedures and standa r d s c o n c e r n i n g t h e m e n t a l c a p a c i t y o r r e s p o n s i b i l i t y o f t h e

accused.

Rule 907. Motions to dismiss

(a) In general. A motion to dismiss is a request to

t e r m i n a t e f u r t h e r p r o c e e d i n g s a s t o o n e o r m o r e

charges and specifications on grounds capable of

resolution without trial of the general issue of guilt.

Discussion

D i s m i s s a l o f a s p e c i f i c a t i o n t e r m i n a t e s t h e p r o c e e d i n g w i t h

respect to that specification unless the decision to dismiss is

reconsidered and reversed by the military judge. See R.C.M.

905(f). Dismissal of a specification on grounds stated in subsection (b)(1) or (b)(3)(A) below does not ordinarily bar a later

court-martial for the same offense if the grounds for dismissal no

longer exist. See also R.C.M. 905(g) and subsection (b)(2) below.

See R.C.M. 916 concerning defenses.

(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

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R.C.M. 907(b)(1)(A)
Discussion

See R.C.M. 201-203.

(B) The specification fails to state an offense.

Discussion

See R.C.M. 307(c)

(2) Waivable grounds. 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 required 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 as to

time, see Article 43(a), a person charged with an offense under

the code may not be tried by court-martial over objection if sworn

charges have not been received by the officer exercising summary

court-martial jurisdiction over the command within five years. See

Article 43(b). This period may be tolled (Article 43(c) and (d)),

extended (Article 43(e) and (g)), or suspended (Article 43(f))

under certain circumstances. The prosecution bears the burden of

proving that the statute of limitations has been tolled, extended, or

suspended if it appears that is has run.

Some offenses are continuing offenses and any period of the

offense occurring within the statute of limitations is not barred.

Absence without leave, desertion, and fraudulent enlistment are

not continuing offenses and are committed, respectively, on the

day the person goes absent, deserts, or first receives pay or allowances under the enlistment.

When computing the statute of limitations, periods in which

the accused was fleeing from justice or periods when the accused

was absent without leave or in desertion are excluded. The military judge must determine by a preponderance, as an interlocutory

matter, whether the accused was absent without authority or fleeing from justice. It would not be necessary that the accused be

charged with the absence offense. In cases where the accused is

charged with both an absence offense and a non-absence offense,

but is found not guilty of the absence offense, the military judge

would reconsider, by a preponderance, his or her prior determination whether that period of time is excludable.

If sworn charges have been received by an officer exercising

summary court-martial jurisdiction over the command within the

period of the statute, minor amendments ( see R.C.M. 603(a))

may be made in the specification after the statute of limitations

has run. However, if new charges are drafted or a major amendment made (see R.C.M. 603(d)) after the statute of limitations has

run, prosecution is barred. The date of receipt of sworn charges is

excluded when computing the appropriate statutory period. The

date of the offense is included in the computation of the elapsed

t i m e . A r t i c l e 4 3 ( g ) a l l o w s t h e g o v e r n m e n t t i m e t o r e i n s t a t e

charges dismissed as defective or insufficient for any cause. The

government would have up to six months to reinstate the charges

if the original period of limitations has expired or will expire

within six months of the dismissal.

In some cases, the issue whether the statute of limitations

has run will depend on the findings on the general issue of guilt.

For example, where the date of an offense is in dispute, a finding

by the court-martial that the offense occurred at an earlier time

may affect a determination as to the running of the statute of

limitations.

When the statute of limitations has run as to a lesser included offense, but not as to the charged offense, see R.C.M.

920(e)(2) with regard to instructions on the lesser offense.

(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;

Discussion

See R.C.M. 704.

(iii) Constructive condonation of desertion established by unconditional restoration to duty withII-96

R.C.M. 907(b)(1)(A)
out 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 1e 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 ) T h e s p e c i f i c a t i o n i s s o d e f e c t i v e t h a t i t

substantially misled the accused, and the military

judge finds that, in the interest of justice, trial should

p r o c e e d o n r e m a i n i n g c h a r g e s a n d s p e c i f i c a t i o n s

without undue delay; or

(B) The specification is multiplicious with ano t h e r s p e c i f i c a t i o n , i s u n n e c e s s a r y t o e n a b l e t h e

prosecution 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 the same

offense, or an offense necessarily included in the other. A specification may also be multiplicious with another if they describe

substantially the same misconduct in two different ways. For

example, assault and disorderly conduct may be multiplicious if

the disorderly conduct consists solely of the assault. See also

R.C.M. 1003(c)(1)(C).

Ordinarily, a specification should not be dismissed for multiplicity before trial unless it clearly alleges the same offense, or

one necessarily included therein, as is alleged in another specification. It may be appropriate to dismiss the less serious of any

multiplicious specifications after findings have been reached. Due

consideration must be given, however, to possible post-trial or

appellate action with regard to the remaining specification.

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 excludes evidence that is substantial proof of

a fact material in the proceedings, or directs the

disclosure of classified information, or that imposes

sanctions for nondisclosure of classified information.

The United States may also appeal a refusal by the

military judge to issue a protective order sought by

the United States to prevent the disclosure of classified information or to enforce such an order that has

previously been issued by the appropriate authority.

However, the United States may not appeal an order

or ruling that is, or amounts to, a finding of not

guilty with respect to the charge or specification.

(b) Procedure.

(1) Delay. After an order or ruling which may be

subject to an appeal by the United States, the courtmartial 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

c h a r g e s a n d s p e c i f i c a t i o n s a f f e c t e d . T r i a l c o u n s e l

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 rule, the ruling or order that is the subject of the

appeal is automatically stayed and no session of the

court-martial may proceed pending disposition by

the Court of Criminal Appeals 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

o f t h e m i l i t a r y j u d g e , a t a n y p o i n t i n t h e

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

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R.C.M. 908(b)(4)(B)(ii)
(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

w i t h R . C . M . 1 1 0 4 ( a ) . T h e m i l i t a r y j u d g e o r t h e

Court of Criminal Appeals may direct that additional

parts of the proceeding be included in the record;

R.C.M. 1104(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 Criminal Appeals 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

Criminal Appeals, in accordance with the rules of

that court.

(8) Appeal not filed. If the United States elects

not to file an appeal, trial counsel promptly shall

notify the military judge and the other parties.

(9) Pretrial confinement of accused pending appeal. If an accused is in pretrial confinement at the

time the United States files notice of its intent to

appeal under subsection (3) above, the commander,

in determining whether the accused should be conf i n e d p e n d i n g t h e o u t c o m e o f a n a p p e a l b y t h e

U n i t e d S t a t e s , s h o u l d c o n s i d e r t h e s a m e f a c t o r s

w h i c h w o u l d a u t h o r i z e t h e i m p o s i t i o n o f p r e t r i a l

confinement under R.C.M. 305(h)(2)(B).

(c) Appellate proceedings.

(1) Appellate counsel. The parties shall be represented before appellate courts in proceedings under

t h i s r u l e a s p r o v i d e d i n R . C . M . 1 2 0 2 . A p p e l l a t e

G o v e r n m e n t c o u n s e l s h a l l d i l i g e n t l y p r o s e c u t e a n

appeal under this rule.

(2) Court of Criminal Appeals. An appeal under

Article 62 shall, whenever practicable, have priority

over all other proceedings before the Court of Criminal Appeals. In determining an appeal under Article

62, the Court of Criminal Appeals may take action

only with respect to matters of law.

(3) Action following decision of Court of Criminal Appeals. After the Court of Criminal Appeals

has decided any appeal under Article 62, the accused

may petition for review by the Court of Appeals for

the Armed Forces, or the Judge Advocate General

may certify a question to the Court of Appeals for

the Armed Forces. The parties shall be notified of

t h e d e c i s i o n o f t h e C o u r t o f C r i m i n a l A p p e a l s

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 Appeals for the

Armed Forces 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 Appeals for the

Armed Forces when required by the Court. If the

decision by the Court of Criminal Appeals permits

it, the court-martial may proceed as to the affected

charges and specifications pending further review by

the Court of Appeals for the Armed Forces or the

S u p r e m e C o u r t , u n l e s s e i t h e r c o u r t o r d e r s t h e

proceedings stayed. Unless the case is reviewed by

the Court of Appeals for the Armed Forces, it shall

be returned to the military judge or the convening

authority for appropriate action in accordance with

the decision of the Court of Criminal Appeals. If the

case is reviewed by the Court of Appeals for the

Armed Forces, R.C.M. 1204 and 1205 shall apply.

( d ) M i l i t a r y j u d g e . F o r p u r p o s e s o f t h i s r u l e ,

“military judge” does not include the president of a

special court-martial without a military judge.

Rule 909. Capacity of the accused to stand

trial by court-martial

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

c o u r t - m a r t i a l i f t h a t p e r s o n i s p r e s e n t l y s u f f e r i n g

from a mental disease or defect rendering him or her

mentally incompetent to the extent that he or she is

unable to understand the nature of the proceedings

II-98

R.C.M. 908(b)(4)(C)
against them or 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

is established.

(c) Determination before referral. If an inquiry pursuant to R.C.M. 706 conducted before referral concludes that an accused is suffering from a mental

disease or defect that renders him or her mentally

incompetent to stand trial, the convening authority

before whom the charges are pending for disposition

may disagree with the conclusion and take any action authorized under R.C.M. 401, including referral

of the charges to trial. If that convening authority

concurs with the conclusion, he or she shall forward

the charges to the general court-martial convening

authority. If, upon receipt of the charges, the general

court-martial convening authority similarly concurs,

then he or she shall commit the accused to the custody of the Attorney General. If the general courtmartial convening authority does not concur, that

authority may take any action that he or she deems

appropriate in accordance with R.C.M. 407, including referral of the charges to trial.

(d) Determination after referral. After referral, the

military judge may conduct a hearing to determine

the mental capacity of the accused, either sua sponte

or upon request of either party. If an inquiry pursuant to R.C.M. 706 conducted before or after referral concludes that an accused is suffering from a

mental disease or defect that renders him or her

m e n t a l l y i n c o m p e t e n t t o s t a n d t r i a l , t h e m i l i t a r y

judge shall conduct a hearing to determine the mental capacity of the accused. Any such hearing shall

be conducted in accordance with paragraph (e) of

this rule.

(e) Incompetence determination hearing.

(1) Nature of issue. The mental capacity of the

accused is an interlocutory question of fact.

(2) Standard. Trial may proceed unless it is established by a preponderance of the evidence that

the accused is presently suffering from a mental

disease or defect rendering him or her mentally incompetent to the extent that he or she is unable to

understand the nature of the proceedings or to conduct or cooperate intelligently in the defense of the

c a s e . I n m a k i n g t h i s d e t e r m i n a t i o n , t h e m i l i t a r y

judge is not bound by the rules of evidence except

with respect to privileges.

(3) If the military judge finds the accused is incompetent to stand trial, the judge shall report this

finding to the general court-martial convening authority, who shall commit the accused to the custody

of the Attorney General

(f) Hospitalization of the accused. An accused who

is found incompetent to stand trial under this rule

shall be hospitalized by the Attorney General as

provided in section 4241(d) of title 18, United States

Code. If notified that the accused has recovered to

such an extent that he or she is able to understand

the nature of the proceedings and to conduct or

cooperate intelligently in the defense of the case,

then the general court-martial convening authority

shall promptly take custody of the accused. If, at the

end of the period of hospitalization, the accused’s

mental condition has not so improved, action shall

be taken in accordance with section 4246 of title 18,

United States Code.

Discussion

Under section 4241(d) of title 18, the initial period of hospitalization for an incompetent accused shall not exceed four months.

However, in determining whether there is a substantial probability

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

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

additional reasonable period of time. This additional period of

time ends either when the accused’s mental condition is improved

so that trial may proceed, or when the pending charges against the

accused are dismissed. If charges are dismissed solely due to the

accused’s mental condition, the accused is subject to hospitalization as provided in section 4246 of title 18.

(g) Excludable delay. All periods of commitment

shall be excluded as provided by R.C.M. 707(c).

The 120-day time period under R.C.M. 707 shall

begin anew on the date the general court-martial

convening authority takes custody of the accused at

the end of any period of commitment.

Rule 910. Pleas

(a) Alternatives.

(1) In general. An accused may plead as follows:

guilty; not guilty to an offense as charged, but guilty

of a named lesser included offense; guilty with exceptions, with or without substitutions, not guilty of

the exceptions, but guilty of the substitutions, if any;

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R.C.M. 910(a)(1)
or, not guilty. A plea of guilty may not be received

as to an offense for which the death penalty may be

adjudged by the court-martial.

Discussion

See paragraph 2, Part IV, concerning lesser included offenses.

When the plea is to a named lesser included offense without the

use of exceptions and substitutions, the defense counsel should

provide a written revised specification accurately reflecting the

plea and request that the revised specification be included in the

record as an appellate exhibit. A plea of guilty to a lesser included offense does not bar the prosecution from proceeding on

the offense as charged. See also subsection (g) of this rule.

A plea of guilty does not prevent the introduction of evidence, either in support of the factual basis for the plea, or, after

findings are entered, in aggravation. See R.C.M. 1001(b)(4).

(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,

reserving 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

w i t h d r a w t h e p l e a o f g u i l t y . T h e S e c r e t a r y c o n -

cerned may prescribe who may consent for 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.

Discussion

An irregular plea includes pleas such as guilty without criminality

or guilty to a charge but not guilty to all specifications thereunder. When a plea is ambiguous, the military 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 pleaded

guilty should be described to the accused. See also subsection (e)

of this rule.

(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 courtmartial, and that at such trial the accused has the

r i g h t t o c o n f r o n t a n d c r o s s - e x a m i n e w i t n e s s e s

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 a court-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 conII-100

R.C.M. 910(a)(1)
vening authority, or trial counsel, and the accused or

defense counsel.

( e ) D e t e r m i n i n g a c c u r a c y o f p l e a . T h e m i l i t a r y

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 the plea

is accepted, the accused must admit every element of the offense(s) to which the accused pleaded guilty. Ordinarily, the elements should be explained to the accused. If any potential defense

is raised by the accused’s account of the offense or by other

matter presented to the military judge, the military judge should

explain such a defense to the accused and should not accept the

plea unless the accused admits facts which negate the defense. If

the statute of limitations would otherwise bar trial for the offense,

the military judge should not accept a plea of guilty to it without

an affirmative waiver by the accused. See R.C.M. 907(b)(2)(B).

The accused need not describe from personal recollection all

the circumstances necessary to establish a factual basis for the

plea. Nevertheless the accused must be convinced of, and able to

describe all the facts necessary to establish guilt. For example, an

accused may be unable to recall certain events in an offense, but

may still be able to adequately describe the offense based on

witness statements or similar sources which the accused believes

to be true.

The accused should remain at the counsel table during 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 exists.

See subsection (d) of this rule. Even if the military judge fails to

so inquire or the accused answers incorrectly, counsel have an

obligation to bring any agreements or understandings in connection with the plea to the attention of the military judge.

(3) Disclosure. If a plea agreement exists, the mili t a r y j u d g e s h a l l r e q u i r e d i s c l o s u r e o f t h e e n t i r e

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 terms,

the military judge should obtain clarification from the parties. If

there is doubt about the accused’s understanding of any terms in

the agreement, the military judge should explain those terms to

the accused.

(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

court-martial 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 offenses but not to

others, the military judge should ordinarily defer informing the

members of the offenses to which the accused has pleaded guilty

until after findings on the remaining offenses have been entered.

See R.C.M. 913(a), Discussion and R.C.M. 920(e), Discussion,

paragraph 3.

(h) Later action.

(1) Withdrawal by the accused. If after accepta n c e o f t h e p l e a b u t b e f o r e t h e s e n t e n c e i s a n -

nounced the 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.

I f a f t e r f i n d i n g s b u t b e f o r e t h e s e n t e n c e i s a n -

nounced the accused makes a statement to the courtmartial, in testimony or otherwise, or presents evidence which is inconsistent with a plea of guilty on

II-101

R.C.M. 910(h)(2)
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

b e e n t e r e d a s t o t h e a f f e c t e d c h a r g e s a n d

specifications.

Discussion

When the accused withdraws a previously accepted plea for guilty

or a plea of guilty is set aside, counsel should be given a reasonable time to prepare to proceed. In a trial by military judge alone,

recusal of the military judge or disapproval of the request for trial

by military judge alone will ordinarily be necessary when a plea

is rejected or withdrawn after findings; in trial with members, a

mistrial will ordinarily be necessary.

(3) Pretrial agreement inquiry. After sentence is

announced the military judge shall inquire into any

p a r t s o f a p r e t r i a l a g r e e m e n t w h i c h w e r e n o t

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.

(j) 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-martial

is ordinarily assembled immediately after the members are sworn.

The members are ordinarily sworn at the first session at which

they appear, as soon as all parties and personnel have been announced. The members are seated with the president, who is the

senior member, in the center, and the other members alternately

to the president’s right and left according to rank. If the rank of a

member is changed, or if the membership of the court-martial

changes, the members should be reseated accordingly.

When trial is by military judge alone, the court-martial is

ordinarily assembled immediately following approval of the request for trial by military judge alone.

Assembly of the court-martial is significant because it marks

the point after which: substitution of the members and military

judge may no longer take place without good cause (see Article

29; R.C.M. 505; 902; 912); the accused may no longer, as a

matter of right, request trial by military judge alone or withdraw

s u c h a r e q u e s t p r e v i o u s l y a p p r o v e d ( s e e A r t i c l e 1 6 ; R . C . M .

903(a)(2)(d)); and the accused may no longer request, even with

the permission of the military judge, or withdraw from a request

for, enlisted members (see Article 25(c)(1); R.C.M. 903(a)(1)(d)).

Rule 912. Challenge of selection of

members; examination and challenges of

members

(a) Pretrial matters.

(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,

w h e n a v a i l a b l e , m a j o r a r e a s o f s t u d y , n a m e o f

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 conII-102

R.C.M. 910(h)(2)
vening 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 and may

permit more informed exercise of challenges.

If the questionnaire is marked or admitted as an exhibit at

the court-martial it must be attached to or included in the record

of trial. See R.C.M. 1103(b)(2)(D)(iv) and (b)(3)(B).

( 2 ) O t h e r m a t e r i a l s . A c o p y o f a n y w r i t t e n

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 of members.

(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 members.

Members are also improperly selected when, for example, a certain group or class is arbitrarily excluded from consideration as

members.

(2) Procedure. Upon a motion under subsection

(b)(1) 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 proceedi n g s r e q u i r i n g t h e p r e s e n c e o f m e m b e r s u n t i l

members are properly selected.

( 3 ) W a i v e r . F a i l u r e t o m a k e a t i m e l y m o t i o n

under this subsection shall waive the improper select i o n u n l e s s i t c o n s t i t u t e s a v i o l a t i o n o f R . C . M .

501(a), 502(a)(1), or 503(a)(2).

(c) Stating grounds for challenge. The trial counsel

s h a l l s t a t e a n y g r o u n d f o r c h a l l e n g e f o r c a u s e

against any member of which the trial counsel is

aware.

( d ) E x a m i n a t i o n o f m e m b e r s . T h e m i l i t a r y j u d g e

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

p r o p e r o r t h e m i l i t a r y j u d g e s h a l l s u b m i t t o t h e

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 members

have not already been placed under oath for the purpose of voir

dire (see R.C.M. 807(b)(2) Discussion (B)), they should be sworn

before they are questioned.

The opportunity for voir dire should be used to obtain information for the intelligent exercise of challenges; counsel should

not purposely use voir dire to present factual matter which will

not be admissible or to argue the case.

The nature and scope of the examination of members is

within the discretion of the military judge. Members may be

questioned individually or collectively. Ordinarily, the military

judge should permit counsel to personally question the members.

Trial counsel ordinarily conducts an inquiry before the defense.

Whether trial counsel will question all the members before the

defense begins or whether some other procedure will be followed

depends on the circumstances. For example, when members are

questioned individually outside the presence of other members,

each party would ordinarily complete questioning that member

before another member is questioned. The military judge and

each party may conduct additional questioning, after initial questioning by a party, as necessary.

Ordinarily the members should be asked whether they are

aware of any ground for challenge against them. This may expedite further questioning. The members should be cautioned, howe v e r , n o t t o d i s c l o s e i n f o r m a t i o n i n t h e p r e s e n c e o f o t h e r

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.

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R.C.M. 912(f)
( 1 ) G r o u n d s . A m e m b e r s h a l l b e e x c u s e d f o r

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,

u n l e s s i t i s e s t a b l i s h e d t h a t t h i s c o u l d n o t b e

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;

(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 under

subsection (N) are that the member: has a direct personal interest

in the result of the trial; is closely related to the accused, a

counsel, or a witness in the case; has participated as a member or

counsel in the trial of a closely related case; has a decidedly

friendly or hostile attitude toward a party; or has an inelastic

o p i n i o n c o n c e r n i n g a n a p p r o p r i a t e s e n t e n c e f o r t h e o f f e n s e s

charged.

(2) When made.

( A ) U p o n c o m p l e t i o n o f e x a m i n a t i o n . U p o n

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)(1)(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 the successful use of a peremptory challenge by either party, excusing the challenged member from further participation in the court-martial,

shall preclude further consideration of the challenge

of that excused member upon later review. Further,

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.

Discussion

See also Mil. R. Evid. 606(b) when a member may be a witness.

(g) Peremptory challenges.

( 1 ) P r o c e d u r e . E a c h p a r t y m a y c h a l l e n g e o n e

member peremptorily. Any member so challenged

shall be excused. No party may be required to exerII-104

R.C.M. 912(f)(1)
cise 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

Generally, no reason is necessary for a peremptory challenge. But

see Batson v. Kentucky 476 U.S. 79 (1986); United States v.

Curtis, 33 M.J. 101 (C.M.A. 1991), cert. denied, 112 S.Ct. 1177

(1992); United States v. Moore, 28 M.J. 366 (C.M.A. 1989);

United States v. Santiago-Davilla, 26 M.J. 380 (C.M.A. 1988).

(2) Waiver. Failure to exercise a peremptory chall e n g e w h e n p r o p e r l y c a l l e d u p o n t o d o s o s h a l l

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

n o t b e m a d e a f t e r t h e p r e s e n t a t i o n o f e v i d e n c e

before the members has begun. However, nothing in

this subsection shall bar the exercise of a previously

unexercised peremptory challenge 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 reduced

below a quorum (see R.C.M. 501) or, when enlisted members

have been requested, the fraction of enlisted members has been

reduced below one-third, the proceedings should be adjourned

and the convening authority notified so that new members may be

detailed. See R.C.M. 505. See also R.C.M. 805(d) concerning

other procedures when new members are detailed.

(h) Special courts-martial without a military 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 ) M i l i t a r y j u d g e . F o r p u r p o s e o f t h i s r u l e ,

“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 otherwise

authenticated an official record or other writing introduced in

evidence is a witness.

(3) Investigating officer. 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. If mixed pleas have been entered, the military

judge should ordinarily defer informing the members

of the offenses to which the accused pleaded guilty

until after the findings on the remaining contested

offenses have been entered.

Discussion

Preliminary instructions may include a description of the duties of

members, procedures to be followed in the court-martial, and

other appropriate matters.

Exceptions to the rule requiring the military judge to defer

informing the members of an accused’s prior pleas of guilty

include cases in which the accused has specifically requested, on

the record, that the military judge instruct the members of the

prior pleas of guilty and cases in which a plea of guilty was to a

lesser included offense within the contested offense charged in

t h e s p e c i f i c a t i o n . S e e R . C . M . 9 1 0 ( g ) , D i s c u s s i o n a n d R . C . M .

920(e), Discussion, paragraph 3.

(b) Opening statements. Each party may make one

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R.C.M. 913(b)
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 def e n s e . T h e m i l i t a r y j u d g e m a y , a s a m a t t e r o f

discretion, permit the parties to address the courtmartial at other times.

Discussion

Counsel should confine their remarks to evidence they expect to

be offered which they believe in good faith will be available and

admissible and a brief statement of the issues in the case.

(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 ) P r e s e n t a t i o n o f e v i d e n c e f o r t h e

prosecution;

(B) Presentation of evidence for the defense;

( C ) P r e s e n t a t i o n o f p r o s e c u t i o n e v i d e n c e i n

rebuttal;

( D ) P r e s e n t a t i o n o f d e f e n s e e v i d e n c e i n

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. 611 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. 807(b)(1)(B);

Mil. R. Evid. 603. After a witness is sworn, the witness should be

identified for the record (full name, rank, and unit, if military, or

full name and address, if civilian). The party calling the witness

conducts direct examination of the witness, followed by crossexamination of the witness by the opposing party. Redirect and

re-cross-examination are conducted as necessary, followed by any

questioning by the military judge and members. See Mil. R. Evid.

611; 614.

All documentary and real evidence (except marks or wounds

on a person’s body) should be marked for identification when

first referred to in the proceedings and should be included in the

record of trial whether admitted in evidence or not. See R.C.M.

1103(b)(2)(C), (c). “Real evidence” include physical objects, such

as clothing, weapons, and marks or wounds on a person’s body. If

it is impracticable to attach an item of real evidence to the record,

the item should be clearly and accurately described by testimony,

photographs, or other means so that it may be considered on

review. Similarly, when documentary evidence is used, if the

document cannot be attached to the record (as in the case of an

original official record or a large map), a legible copy or accurate

extract should be included in the record. When a witness points to

or otherwise refers to certain parts of a map, photograph, diagram, chart, or other exhibit, the place to which the witness

pointed or referred should be clearly identified for the record,

either by marking the exhibit or by an accurate description of the

witness’ actions with regard to the exhibit.

( 3 ) V i e w s a n d i n s p e c t i o n s . T h e m i l i t a r y j u d g e

may, as a matter of discretion, permit the courtmartial 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 extraordinary

circumstances. The fact that a view or inspection has been made

does not necessarily preclude the introduction in evidence of

photographs, diagrams, maps, or sketches of the place or item

viewed, if these are otherwise admissible.

(4) Evidence subject to exclusion. When offered

evidence would be subject to exclusion upon objection, 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 not

objected to by a party except in extraordinary circumstances.

Counsel should be permitted to try the case and present the

evidence without unnecessary interference by the military judge.

See also Mil. R. Evid. 103.

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R.C.M. 913(b)
(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 ) M o t i o n f o r p r o d u c t i o n . A f t e r a w i t n e s s o t h e r

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).

Counsel should anticipate legitimate demands for statements

under this and similar rules and avoid delays in the proceedings

by voluntary disclosure before arraignment.

This rule does not apply to investigations under Article 32.

As to procedures for certain government information as to

which a privilege is asserted, see Mil. R. Evid. 505; 506.

(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 ) P r o d u c t i o n o f e x c i s e d s t a t e m e n t . I f t h e p a r t y

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

t h e m i l i t a r y j u d g e . U p o n i n s p e c t i o n , t h e m i l i t a r y

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

preserved 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.

(e) 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 s u b s t a n t i a l l y v e r b a t i m r e c i t a l o f a n o r a l

statement made by the witness that is recorded contemporaneously with the making of the oral statement and contained in a stenolineart, mechanical,

electrical, or other recording or a transcription thereof; or

(3) A statement, however taken or recorded, or a

transcription thereof, made by the witness to a Federal grand jury.

Rule 914A. Use of remote live testimony of a

child

(a) General procedures. A child shall be allowed to

testify out of the presence of the accused after the

military judge has determined that the requirements

of Mil. R. Evid. 611(d)(3) have been satisfied. The

procedure used to take such testimony will be determined by the military judge based upon the exigencies of the situation. At a minimum, the following

procedures shall be observed:

(1) The witness shall testify from a remote location outside the courtroom;

(2) Attendance at the remote location shall be

limited to the child, counsel for each side (not including an accused pro se), equipment operators, and

other persons, such as an attendant for the child,

whose presence is deemed necessary by the military

judge;

( 3 ) S u f f i c i e n t m o n i t o r s s h a l l b e p l a c e d i n t h e

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R.C.M. 914A(a)(3)
courtroom to allow viewing and hearing of the testimony by the military judge, the accused, the members, the court reporter and the public;

(4) The voice of the military judge shall be transmitted into the remote location to allow control of

the proceedings; and

(5) The accused shall be permitted private, contemporaneous communication with his counsel.

(b) Definition. As used in this rule, “remote live

testimony” includes, but is not limited to, testimony

by videoteleconference, closed circuit television, or

similar technology.

( c ) P r o h i b i t i o n s . T h e p r o c e d u r e s d e s c r i b e d a b o v e

shall not be used where the accused elects to absent

h i m s e l f f r o m t h e c o u r t r o o m p u r s u a n t t o R . C . M .

804(c).

Rule 914B. Use of remote testimony

(a) General procedures. The military judge shall determine the procedures used to take testimony via

remote means. At a minimum, all parties shall be

able to hear each other, those in attendance at the

remote site shall be identified, and the accused shall

be permitted private, contemporaneous communication with his counsel.

(b) Definition. As used in this rule, testimony via

“remote means” includes, but is not limited to, testimony by videoteleconference, closed circuit television, telephone, or similar technology.

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 caution,

under urgent circumstances, and for plain and obvious reasons.

As examples, a mistrial may be appropriate when inadmissible

matters so prejudicial that a curative instruction would be inadequate are brought to the attention of the members or when memb e r s e n g a g e i n p r e j u d i c i a l m i s c o n d u c t . A l s o a m i s t r i a l i s

appropriate when the proceedings must be terminated because of

a legal defect, such as a jurisdictional defect, which can be cured;

for example, when the referral is jurisdictionally defective. See

a l s o R . C . M . 9 0 5 ( g ) c o n c e r n i n g t h e e f f e c t o f r u l i n g s i n o n e

proceeding on later proceedings.

(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, the

hearing on a mistrial should be conducted out of the presence of

the members.

(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 courtmartial.

Discussion

Upon declaration of a mistrial, the affected charges are returned

to the convening authority who may refer them anew or otherwise

dispose of them. See R.C.M. 401-407.

(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 ) A n a b u s e o f d i s c r e t i o n a n d w i t h o u t t h e

consent of the defense; or

( B ) T h e d i r e c t r e s u l t o f i n t e n t i o n a l

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.”

“Alibi” and “good character” are not special defenses, as

they operate to deny that the accused committed one or more of

the acts constituting the offense. As to evidence of the accused’s

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good character, see Mil. R. Evid. 404(a)(1). See R.C.M. 701(b)(1)

concerning notice of alibi.

(b) Burden of proof.

(1) General rule. Except as listed below in paragraphs (2), (3), and (4), the prosecution shall have

the burden of proving beyond a reasonable doubt

that the defense did not exist.

( 2 ) L a c k o f m e n t a l r e s p o n s i b i l i t y . T h e a c c u s e d

has the burden of proving the defense of lack of

m e n t a l r e s p o n s i b i l i t y b y c l e a r a n d c o n v i n c i n g

evidence.

(3) Mistake of fact as to age. In the defense of

mistake of fact as to age as described in Part IV,

para. 45a(o)(2) in a prosecution of a sexual offense

with a child under Article 120, the accused has the

burden of proving mistake of fact as to age by a

preponderance of the evidence. After the accused

meets his or her burden, the prosecution shall have

the burden of proving beyond a reasonable doubt

that the defense did not exist.

(4) Mistake of fact as to consent. In the defense

of mistake of fact as to consent in Article 120(a),

rape, Article 120(c), aggravated sexual assault, Article 120(e), aggravated sexual contact, and Article

120(h), abusive sexual contact, the accused has the

burden of proving mistake of fact as to consent by a

preponderance of the evidence. After the defense

meets its burden, 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 defense,

the prosecution, or the court-martial. For example, in a prosecution for assault, testimony by prosecution witnesses that the victim brandished a weapon toward the accused may raise a defense

of self-defense. See subsection (e) below. More than one defense

may be raised as to a particular offense. The defenses need not

necessarily be consistent.

See R.C.M. 920(e)(3) concerning instructions on defenses.

(c) Justification. 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. For

example, the use of force by a law enforcement officer when

reasonably necessary in the proper execution of a lawful apprehension is justified because the duty to apprehend is imposed by

lawful authority. Also, killing an enemy combatant 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 the

military judge. See R.C.M. 801(e). An exception might exist

when the sole issue is whether the person who gave the order in

fact occupied a certain position at the time.

An act performed pursuant to a lawful order is justified. See

subsection (c) of this rule. An act performed pursuant to an

unlawful order is excused unless the accused knew it to be unlawful or a person of ordinary sense and understanding would have

known it to be unlawful.

(e) Self-defense.

(1) Homicide or assault cases involving deadly

force. It is a defense to a homicide, assault involving

deadly force, or battery involving deadly force 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 harm.

Discussion

The words “involving deadly force” described the factual circumstances of the case, not specific assault offenses. If the accused is

charged with simple assault, battery or any form of aggravated

assault, or if simple assault, battery or any form of aggravated

assault is in issue as a lesser included offense, the accused may

rely on this subsection if the test specified in subsections (A) and

(B) is satisfied.

The test for the first element of self-defense is objective.

Thus, the accused’s apprehension of death or grievous bodily

harm must have been one which a reasonable, prudent person

would have held under the circumstances. Because this test is

objective, such matters as intoxication or emotional instability of

the accused are irrelevant. On the other hand, such matters as the

relative height, weight, and general build of the accused and the

alleged victim, and the possibility of safe retreat are ordinarily

among the circumstances which should be considered in determining the reasonableness of the apprehension of death or grievous bodily harm.

The test for the second element is entirely subjective. The

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R.C.M. 916(e)(1)(B)
accused is not objectively limited to the use of reasonable force.

Accordingly, such matters as the accused’s emotional control,

education, and intelligence are relevant in determining the accused’s actual belief as to the force necessary to repel the attack.

See also Mil. R. Evid. 404(a)(2) as to evidence concerning

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:

(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

d i d n o t a c t u a l l y a p p l y o r a t t e m p t t o a p p l y s u c h

means or force as would be likely to cause death or

grievous bodily harm.

Discussion

The principles in the discussion of subsection (e)(1) 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 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 injury must have been an unintended and unexpected result of

the accused’s exercise of the right of self-defense.

(3) Other assaults. It is a defense to any assault

punishable under Article 90, 91, or 128 and not

listed in subsections (e)(1) or (2) of this rule that the

accused:

( A ) A p p r e h e n d e d , u p o n r e a s o n a b l e g r o u n d s ,

that bodily harm was about to be inflicted wrongfully on the accused; and

(B) Believed that the force that 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)(1) 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 selfdefense is lost and the defenses described in subsections (e)(1), (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 provocateur 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 self-defense 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 harm 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 subsection (e)(1) 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

d e f e n d e d w a s l a w f u l l y e n t i t l e d t o u s e u n d e r t h e

circumstances.

Discussion

The accused acts at the accused’s peril when defending another.

Thus, if the accused goes to the aid of an apparent assault victim,

the accused is guilty of any assault the accused commits on the

apparent assailant if, unbeknownst to the accused, the apparent

victim was in fact the aggressor and not entitled to use selfdefense.

(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.

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R.C.M. 916(e)(1)(B)
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 and persons cooperating with them (for example, informants). The fact

that persons acting for the Government merely afford opportunities or facilities for the commission of the offense does not constitute entrapment. Entrapment occurs only when the criminal

conduct is the product of the creative activity of law enforcement

officials.

When the defense of entrapment is raised, evidence of uncharged misconduct by the accused of a nature similar to that

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

i n n o c e n t p e r s o n w o u l d b e i m m e d i a t e l y k i l l e d o r

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 circumstances. For example, a threat to kill a person’s wife the next day

may be immediate if the person has no opportunity to contact law

enforcement officials or otherwise protect the intended victim or

avoid committing the offense before then.

(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 opinion

that a physical impairment prevented performance of the duty will

not suffice unless the opinion is reasonable under all the circumstances.

If the physical or financial inability of the accused occurred

through the accused’s own fault or design, it is not a defense. For

example, if the accused, having knowledge of an order to get a

haircut, spends money on other nonessential items, the accused’s

inability to pay for the haircut would not be a defense.

(j) Ignorance or mistake of fact.

(1) Generally. 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

o t h e r e l e m e n t r e q u i r i n g o n l y g e n e r a l i n t e n t o r

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.

(2) Child Sexual Offenses. It is a defense to a

prosecution for Article 120(d), aggravated sexual assault of a child, Article 120(f), aggravated sexual

abuse of a child, Article 120(i), abusive sexual contact with a child, or Article 120 (j), indecent liberty

with a child that, at the time of the offense, the child

was at least 12 years of age, and the accused reasonably believed the person was at least 16 years of

age. The accused must prove this defense by a preponderance of the evidence.

Discussion

Examples of ignorance or mistake which need only exist in fact

include: ignorance of the fact that the person assaulted was an

officer; belief that property allegedly stolen belonged to the accused; belief that a controlled substance was really sugar.

Examples of ignorance or mistake which must be reasonable

as well as actual include: belief that the accused charged with

unauthorized absence had permission to go; belief that the accused had a medical “profile” excusing shaving as otherwise

required by regulation. Some offenses require special standards of

conduct (see, for example, paragraph 68, Part IV, Dishonorable

failure to maintain sufficient funds); the element of reasonableness must be applied in accordance with the standards imposed by

such offenses.

E x a m p l e s o f o f f e n s e s i n w h i c h t h e a c c u s e d ’ s i n t e n t o r

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R.C.M. 916(j)(2)
knowledge is immaterial include: rape of a child, aggravated

sexual contact with a child, or indecent liberty with a child (if the

victim is under 12 years of age, knowledge or belief as to age is

immaterial). However, such ignorance or mistake may be relevant

in extenuation and mitigation.

See subsection (l)(1) of this rule concerning ignorance or

mistake of law. The statutory text of Article 120(r) specifically

limits the affirmative defense for mistake of fact as to consent to

Article 120(a) (Rape), Article 120(c) (Aggravated sexual assault),

Article 120(e) (Aggravated sexual contact), and Article 120(h)

(Abusive sexual contact). For all other offenses under Article 120,

consent is not an issue and mistake of fact as to consent is not an

affirmative defense.

(3) Sexual offenses. It is an affirmative defense to

a p r o s e c u t i o n f o r A r t i c l e 1 2 0 ( a ) , r a p e , A r t i c l e

120(c), aggravated sexual assault, Article 120(e), aggravated sexual contact, and Article 120(h), abusive

sexual contact that the accused held, as a result of

ignorance or mistake, an incorrect belief that the

other person engaging in the sexual conduct consented. The ignorance or mistake must have existed

in the mind of the accused and must have been

reasonable under all the circumstances. To be reasonable the ignorance or mistake must have been

based on information, or lack of it, which would

indicate to a reasonable person that the other person

consented. Additionally, the ignorance or mistake

cannot be based on the negligent failure to discover

the true facts. Negligence is the absence of due care.

Due care is what a reasonably careful person would

do under the same or similar circumstances. The

accused’s state of intoxication, if any, at the time of

the offense is not relevant to mistake of fact. A

mistaken belief that the other person consented must

be that which a reasonably careful, ordinary, prudent, sober adult would have had under the circumstances at the time of the offense.

(k) Lack of mental responsibility.

(1) Lack of mental responsibility. It is an affirmative defense to any offense that, at the time of the

commission of the acts constituting the offense, the

accused, as a result of a severe mental disease or

defect, was unable to appreciate the nature and quality or the wrongfulness of his or her acts. Mental

disease or defect does not otherwise constitute a

defense.

Discussion

See R.C.M. 706 concerning sanity inquiries; R.C.M. 909 concerning the capacity of the accused to stand trial; and R.C.M. 1102A

concerning any post-trial hearing for an accused found not guilty

only by reason of lack of mental responsibility.

(2) Partial mental responsibility. A mental condition not amounting to a lack of mental responsibility

under subsection (k)(1) of this rule is not an affirmative defense.

Discussion

Evidence of a mental condition not amounting to a lack of mental

responsibility may be admissible as to whether the accused entertained a state of mind necessary to be proven as an element of the

offense. The defense must notify the trial counsel before the

beginning of trial on the merits if the defense intends to introduce

expert testimony as to the accused’s mental condition. See R.C.M.

701(b)(2).

(3) Procedure.

(A) Presumption. The accused is presumed to

have been mentally responsible at the time of the

alleged offense. This presumption continues until the

accused establishes, by clear and convincing evidence, that he or she was not mentally responsible at

the time of the alleged offense.

Discussion

The accused is presumed to be mentally responsible, and this

p r e s u m p t i o n c o n t i n u e s t h r o u g h o u t t h e p r o c e e d i n g s u n l e s s t h e

finder of fact determines that the accused has proven lack of

mental responsibility by clear and convincing evidence. See subsection (b) of this rule.

(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 rulings of

the president of a special court-martial without a military judge.

If an inquiry is directed, priority should be given to it.

(C) Determination. The issue of mental responsibility shall not be considered as an interlocutory

question.

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R.C.M. 916(j)(2)
(l) Not defenses generally.

(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 marijuana is

not a defense to wrongful possession of marijuana.

Ignorance or mistake of law may be a defense in some

limited circumstances. If the accused, because of a mistake as to a

separate nonpenal law, lacks the criminal intent or state of mind

necessary to establish guilt, this may be a defense. For example,

if the accused, under mistaken belief that the accused is entitled

to take an item under property law, takes an item, this mistake of

law (as to the accused’s legal right) would, if genuine, be a

defense to larceny. On the other hand, if the accused disobeyed

an order, under the actual but mistaken belief that the order was

unlawful, this would not be a defense because the accused’s

mistake was as to the order itself, and not as to a separate

nonpenal law. Also, mistake of law may be a defense when the

mistake results from reliance on the decision or pronouncement of

an authorized public official or agency. For example, if an accused, acting on the advice of an official responsible for administering benefits that the accused is entitled to those benefits,

applies for and receives those benefits, the accused may have a

defense even though the accused was not legally eligible for the

benefits. On the other hand, reliance on the advice of counsel that

a certain course of conduct is legal is not, of itself, a defense.

(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

Intoxication may reduce premeditated murder to unpremeditated

murder, but it will not reduce murder to manslaughter or any

other lesser offense. See paragraph 43c(2)(c), Part IV.

Although voluntary intoxication is not a defense, evidence of

voluntary intoxication may be admitted in extenuation.

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 counsel to

reopen the case as to the insufficiency specified in the motion.

See R.C.M. 801(e)(2) and (3) for additional procedures to

be followed in a special court-martial without a military judge.

See R.C.M. 1102(b)(2) for the military judge’s authority, upon

motion or sua sponte, to enter finding of not guilty after findings

but prior to authentication of the record.

(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 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 prior to authentication of the record of trial.

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R.C.M. 917(f)
(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 ) G e n e r a l f i n d i n g s . T h e g e n e r a l f i n d i n g s o f 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; not guilty of an offense

as charged, but guilty of a named lesser included

offense; guilty with exceptions, with or without substitutions, not guilty of the exceptions, but guilty of

the substitutions, if any; not guilty only by reason of

lack of mental responsibility; 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 may

be excepted from a specification and, when necessary, others

substituted, if the remaining language of the specification, with or

without substitutions, states an offense by the accused which is

punishable by court-martial. Changing the date or place of the

offense may, but does not necessarily, change the nature or identity of an offense.

If A and B are joint accused and A is convicted but B is

acquitted of the offense charged, A should be found guilty be

excepting the name of B from the specification as well as any

other words indicating the offense was a joint one.

Lesser included offenses. If the evidence fails to prove the

offense charged but does prove an offense necessarily included in

the offense charged, the factfinder may find the accused not

guilty of the offense charged but guilty of a named lesser offense,

which is included in the offense charged, without the use of

exceptions and substitutions. Ordinarily an attempt is a lesser

included offense even if the evidence establishes that the offense

charged was consummated. See Part IV concerning lesser included offenses.

Offenses arising from the same act or transaction. The accused may be found guilty of two or more offenses arising from

the same act or transaction, whether or not the offenses are

separately punishable. But see R.C.M. 906(b)(12); 907(b)(3)(B);

1003(c)(1)(C).

( 2 ) A s t o a c h a r g e . G e n e r a l f i n d i n g s a s t o a

charge may be: guilty; not guilty, but guilty of a

violation of Article ; not guilty only by

reason of lack of mental responsibility; or not guilty.

Discussion

Where there are two or more specifications under one charge,

conviction of any of those specifications requires a finding of

guilty of the corresponding charge. Under such circumstances any

findings of not guilty as to the other specifications do not affect

that charge. If the accused is found guilty of one specification and

of a lesser included offense prohibited by a different Article as to

another specification under the same charge, the findings as to the

corresponding charge should be: Of the Charge as the specification 1: Guilty; as to specification 2; not guilty, but guilty of a

violation of Article .

An attempt should be found as a violation of Article 80

unless the attempt is punishable under Articles 85, 94, 100, 104,

or 128, in which case it should be found as a violation of that

Article.

A court-martial may not find an offense as a violation of an

article under which it was not charged solely for the purpose of

increasing the authorized punishment or for the purpose of adjudging less than the prescribed mandatory punishment.

(b) Special findings. 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 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 courtmartial 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 elements of

the offenses of which the accused has been found guilty, and any

affirmative defense relating thereto.

See also R.C.M. 905(d); Mil. R. Evid. 304(d)(4); 311(d)(4);

321(f) concerning other findings to be made by the military

judge.

Members may not make special findings.

(c) Basis of findings. Findings may be based on

direct or circumstantial evidence. Only matters propII-114

R.C.M. 917(g)
erly 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

c h a r g e d ) . C i r c u m s t a n t i a l e v i d e n c e i s e v i d e n c e w h i c h t e n d s

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 determini n g o r c o m p a r i n g t h e w e i g h t t o b e g i v e n t o d i r e c t o r

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 advanced 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 witn e s s e s . A f a c t f i n d e r m a y p r o p e r l y b e l i e v e o n e w i t n e s s a n d

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.

Rule 919. Argument by counsel on findings

(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 personnel 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.

(c) Waiver of objection to improper argument. Failure to object to improper argument before the milit a r y j u d g e b e g i n s t o i n s t r u c t t h e m e m b e r s o n

findings shall constitute waiver of the objection.

Discussion

If an objection that an argument is improper is sustained, the

military judge should immediately instruct the members that the

argument was improper and that they must disregard it. In extraordinary cases improper argument may require a mistrial. See

R.C.M. 915. The military judge should be alert to improper 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 and an

explanation of the legal standards and procedural requirements by

which the members will determine findings. Instructions should

be tailored to fit the circumstances of the case, and should fairly

and adequately cover the issues presented.

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R.C.M. 920(a)
(b) When given. Instructions on findings shall be

given before or after arguments by counsel, or at

both times, 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, instructions may not be given on an offense included therein which was

not described in an earlier instruction unless the finding is illegal.

This is true even if the finding has not been announced. When

instructions are to be given is a matter within the sole discretion

of the military trial judge.

(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

a c t i o n o n s u c h r e q u e s t s b e f o r e t h e i r c l o s i n g

arguments.

Discussion

Requests for and objections to instructions should be resolved at

an Article 39(a) session. But see R.C.M 801(e)(3); 803.

If an issue has been raised, ordinarily the military judge must

instruct on the issue when requested to do so. The military judge

is not required to give the specific instruction requested by counsel, however, as long as the issue is adequately covered in the

instructions.

The military judge should not identify the source of any

instruction when addressing the members.

All written requests for instructions should be marked as

appellate exhibits, whether or not they are given.

( d ) H o w g i v e n . I n s t r u c t i o n s o n f i n d i n g s s h a l l b e

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 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, unless trial of a lesser

included offense is barred by the statute of limitations (Article 43) and the accused refuses to waive

the bar;

(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 not reasonable doubt;

and

(D) The burden of proof to establish the guilt

of the accused is upon the Government. [When the

issue of lack of mental responsibility is raised, add:

The burden of proving the defense of lack of mental

responsibility by clear and convincing evidence is

upon the accused. When the issue of mistake of fact

under R.C.M. 916(j)(2) or (j)(3) is raised, add: The

accused has the burden of proving the defense of

mistake of fact as to consent or age by a preponderance of the evidence.]

(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

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R.C.M. 920(b)
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 to its

source or credibility, has been admitted upon which members

might rely if they choose. An instruction on a lesser included

offense is proper when an element from the charged offense

which distinguishes thatoffense from the lesser offense is in dispute.

See R.C.M. 918(c) and discussion as to reasonable doubt and

other matters relating to the basis for findings which may be the

subject of an instruction.

Other matters which may be the subject of instruction in

appropriate cases included: inferences (see the explanations in

Part IV concerning inferences relating to specific offenses); the

limited purpose for which evidence was admitted (regardless of

whether such evidence was offered by the prosecution of defense)

(see Mil. R. Evid. 105); the effect of character evidence (see Mil.

R. Evid. 404; 405); the effect of judicial notice (see Mil. R. Evid.

201, 201A); the weight to be given a pretrial statement (see Mil.

R. Evid. 340(e)); the effect of stipulations (see R.C.M. 811); that,

when a guilty plea to a lesser included offense has been accepted,

the members should accept as proved the matters admitted by the

plea, but must determine whether the remaining elements are

established; that a plea of guilty to one offense may not be the

basis for inferring the existence of a fact or element of another

offense; the absence of the accused from trial should not be held

against the accused; and that no adverse inferences may be drawn

from an accused’s failure to testify (see Mil. R. Evid. 301(g)).

The military judge may summarize and comment upon evidence in the case in instructions. In doing so, the military judge

should present an accurate, fair, and dispassionate statement of

what the evidence shows; not depart from an impartial role; not

assume as true the existence or nonexistence of a fact in issue

when the evidence is conflicting or disputed, or when there is no

evidence to support the matter; and make clear that the members

must exercise their independent judgment as to 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 of 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 ) D e l i b e r a t i o n s . D e l i b e r a t i o n s p r o p e r l y i n c l u d e

full and free discussion of the merits of the case.

U n l e s s o t h e r w i s e d i r e c t e d b y t h e m i l i t a r y j u d g e ,

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 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) Numbers of votes required to convict.

( A ) D e a t h p e n a l t y m a n d a t o r y . A f i n d i n g o f

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 mandatory.

(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 fraction of a vote is rounded up to the next whole number. For

example, if there are five members, the concurrence of at least

four would be required to convict. The military judge should

instruct the members on the specific number of votes required to

convict.

( 3 ) A c q u i t t a l . I f f e w e r t h a n t w o - t h i r d s o f t h e

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) Not guilty only by reason of lack of mental

responsibility. When the defense of lack of mental

responsibility is in issue under R.C.M. 916(k)(1), the

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R.C.M. 921(c)(4)
members shall first vote on whether the prosecution

has proven the elements of the offense beyond a

reasonable doubt. If at least two-thirds of the members present (all members for offenses where the

death penalty is mandatory) vote for a finding of

guilty, then the members shall vote on whether the

accused has proven lack of mental responsibility. If

a majority of the members present concur that the

accused has proven lack of mental responsibility by

c l e a r a n d c o n v i n c i n g e v i d e n c e , a f i n d i n g o f n o t

guilty only by reason of lack of mental responsibility results. If the vote on lack of mental responsibility does not result in a finding of not guilty only by

reason of lack of mental responsibility, then the defense of lack of mental responsibility has been rejected and the finding of guilty stands.

Discussion

If lack of mental responsibility is in issue with regard to more

than one specification, the members should determine the issue of

lack of mental responsibility on each specification separately.

(5) 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

o f s e v e r i t y b e g i n n i n g w i t h t h e m o s t s e v e r e . T h e

members shall continue the 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.

(6) Procedure for voting.

(A) Order. Each specification shall be voted on

separately before the corresponding charge. The ord e r o f v o t i n g o n s e v e r a l s p e c i f i c a t i o n s u n d e r a

charge or on several charges shall be determined by

t h e p r e s i d e n t u n l e s s a m a j o r i t y o f t h e m e m b e r s

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 ) A c t i o n a f t e r f i n d i n g s a r e r e a c h e d . A f t e r t h e

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 findings 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.

Discussion

Ordinarily a findings worksheet should be provided to the members as an aid to putting the findings in proper form. See Appendix 10 for a format for findings. If the military judge examines

any writing by the members or otherwise assists them to put

findings in proper form, this must be done in an open session and

counsel should be given the opportunity to examine such a writing and to be heard on any instructions the military judge may

give. See Article 39(b).

The president should not disclose any specific number of

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.

(1) If a finding is based on a plea of guilty, the

president shall so state.

(2) In a capital case, if a finding of guilty is

u n a n i m o u s w i t h r e s p e c t t o a c a p i t a l o f f e n s e , t h e

president shall so state. This provision shall not apply during reconsideration under R.C.M. 924(a) of a

finding of guilty previously announced in open court

u n l e s s t h e p r i o r f i n d i n g w a s a n n o u n c e d a s

unanimous.

Discussion

I f t h e f i n d i n g s a n n o u n c e d a r e a m b i g u o u s , t h e m i l i t a r y j u d g e

should seek clarification. See also R.C.M. 924. A nonunanimous

finding of guilty as to a capital offense may be reconsidered, but

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R.C.M. 921(c)(4)
not for the purpose of rendering a unanimous verdict in order to

authorize a capital sentencing proceeding. The president shall not

make a statement regarding unanimity with respect to reconsideration of findings as to an offense in which the prior findings

were not unanimous.

(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 upon

R.C.M. 910(g).

(d) Erroneous announcement. If an error was made

in the announcement of the findings of the courtmartial, the error may be corrected by a new announcement in accordance with this rule. The error

m u s t b e d i s c o v e r e d a n d t h e n e w a n n o u n c e m e n t

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 disclosure. See Mil. R. Evid. 606. Unsound reasoning by a member,

misconception of the evidence, or misapplication of the law is not

a proper basis for challenging the findings. However, when a

showing of a ground for impeaching the verdict has been made,

members may be questioned about such a ground. The military

judge determines, as an interlocutory matter, whether such an

i n q u i r y w i l l b e c o n d u c t e d a n d w h e t h e r a f i n d i n g h a s b e e n

impeached.

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.

(b) Procedure. Any member may propose that a

finding be reconsidered. If such a proposal is made

in a timely manner the question whether to reconsider shall be determined 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 findi n g r e q u i r e s r e c o n s i d e r a t i o n . A n y f i n d i n g o f n o t

guilty only by reason of lack of mental responsibility shall be reconsidered on the issue of the finding

of guilty of the elements if more than one-third of

the members vote for reconsideration, and on the

issue of mental responsibility if a majority vote for

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 session,

no other vote may be taken on that finding unless a vote to

reconsider succeeds.

(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 and may reconsider the issue of the

finding of guilty of the elements in a finding of not

guilty only by reason of lack of mental responsibility at any time before announcement of sentence or

authentication of the record of trial in the case of a

complete acquittal.

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R.C.M. 924(c)
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

s h a l l o r d i n a r i l y b e p r e s e n t e d i n t h e f o l l o w i n g

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 ) A r g u m e n t b y t h e d e f e n s e c o u n s e l o n

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 unsworn 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 ) S e r v i c e d a t a f r o m t h e c h a r g e s h e e t . T r i a l

counsel shall inform the court-martial of the data on

the charge sheet relating to the 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 court-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 any

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 docum e n t a s i n a c c u r a t e o r i n c o m p l e t e i n a s p e c i f i e d

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.

(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. In a civilian case, a “conviction”

includes any disposition following an initial judicial

determination or assumption of guilt, such as when

guilt has been established by guilty plea, trial, or

plea of nolo contendere, regardless of the subsequent

disposition, sentencing procedure, or final judgment.

However, a “civilian conviction” does not include a

diversion from the judicial process without a finding

or admission of guilt; expunged convictions; juveni l e a d j u d i c a t i o n s ; m i n o r t r a f f i c v i o l a t i o n s ; f o r e i g n

convictions; tribal court convictions; or convictions

reversed, vacated, invalidated or pardoned because

of errors of law or because of subsequently discovered evidence exonerating the accused.

Discussion

A vacation of a suspended sentence (see R.C.M. 1109) is not a

conviction and is not admissible as such, but may be admissible

under subsection (b)(2) of this rule as reflective of the character

of the prior service of the accused.

Whether a civilian conviction is admissible is left to the

discretion of the military judge. As stated in the rule, a civilian

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“conviction” includes any disposition following an initial judicial

determination or assumption of guilt regardless of the sentencing

procedure and the final judgment following probation or other

sentence. Therefore, convictions may be admissible regardless of

whether a court ultimately suspended judgment upon discharge of

t h e a c c u s e d f o l l o w i n g p r o b a t i o n , p e r m i t t e d w i t h d r a w a l o f t h e

guilty plea, or applies some other form of alternative sentencing.

Additionally, the term “conviction” need not be taken to mean a

final judgment of conviction and sentence.

(B) Pendency of appeal. The pendency of an

appeal therefrom does not render evidence of a conv i c t i o n i n a d m i s s i b l e e x c e p t t h a t a c o n v i c t i o n b y

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 64 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 the

personnel records of the accused, by the record of the conviction,

or by the order promulgating the result of trial. See DD Form 493

(Extract of Military Records of Previous Convictions).

( 4 ) E v i d e n c e i n a g g r a v a t i o n . T h e t r i a l c o u n s e l

may present evidence as to any aggravating circumstances directly relating to or resulting from the offenses of which the accused has been found guilty.

Evidence in aggravation includes, but is not limited

to, evidence of financial, social, psychological, and

medical impact on or cost to any person or entity

who was the victim of an offense committed by the

accused and evidence of significant adverse impact

on the mission, discipline, or efficiency of the command directly and immediately resulting from the

accused’s offense. In addition, evidence in aggravation may include evidence that the accused intentionally selected any victim or any property as the

object of the offense because of the actual or perc e i v e d r a c e , c o l o r , r e l i g i o n , n a t i o n a l o r i g i n , e t h -

nicity, gender, disability, or sexual orientation of any

person. Except in capital cases a written or oral

deposition taken in accordance with R.C.M. 702 is

admissible in aggravation.

Discussion

See also R.C.M. 1004 concerning aggravating circumstances in

capital cases.

( 5 ) E v i d e n c e o f r e h a b i l i t a t i v e p o t e n t i a l .

Rehabilitative potential refers to the accused’s potential to be restored, through vocational, correctiona l , o r t h e r a p e u t i c t r a i n i n g o r o t h e r c o r r e c t i v e

m e a s u r e s t o a u s e f u l a n d c o n s t r u c t i v e p l a c e i n

society.

(A) In general. The trial counsel may present,

by testimony or oral deposition in accordance with

R.C.M. 702(g)(1), evidence in the form of opinions

concerning the accused’s previous performance as a

servicemember and potential for rehabilitation.

(B) Foundation for opinion. The witness or deponent providing opinion evidence regarding the acc u s e d ’ s r e h a b i l i t a t i v e p o t e n t i a l m u s t p o s s e s s

sufficient information and knowledge about the accused to offer a rationally-based opinion that is helpful to the sentencing authority. Relevant information

and knowledge include, but are not limited to, information and knowledge about the accused’s character, performance of duty, moral fiber, determination

to be rehabilitated, and nature and severity of the

offense or offenses.

Discussion

See generally Mil. R. Evid. 701, Opinion testimony by lay witnesses. See also Mil. R. Evid. 703, Bases of opinion testimony by

experts, if the witness or deponent is testifying as an expert. The

t y p e s o f i n f o r m a t i o n a n d k n o w l e d g e r e f l e c t e d i n t h i s s u b -

paragraph are illustrative only.

(C) Bases for opinion. An opinion regarding the

a c c u s e d ’ s r e h a b i l i t a t i v e p o t e n t i a l m u s t b e b a s e d

upon relevant information and knowledge possessed

by the witness or deponent, and must relate to the

accused’s personal circumstances. The opinion of

the witness or deponent regarding the severity or

nature of the accused’s offense or offenses may not

serve as the principal basis for an opinion of the

accused’s rehabilitative potential.

( D ) S c o p e o f o p i n i o n . A n o p i n i o n o f f e r e d

under this rule is limited to whether the accused has

rehabilitative potential and to the magnitude or quality of any such potential. A witness may not offer an

opinion regarding the appropriateness of a punitive

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R.C.M. 1001(b)(5)(D)
discharge or whether the accused should be returned

to the accused’s unit.

Discussion

On direct examination, a witness or deponent may respond aff i r m a t i v e l y o r n e g a t i v e l y r e g a r d i n g w h e t h e r t h e a c c u s e d h a s

rehabilitative potential. The witness or deponent may also opine

succinctly regarding the magnitude or quality of the accused

rehabilitative potential; for example, the witness or deponent may

opine that the accused has “great” or “little” rehabilitative potential. The witness or deponent, however, generally may not further

elaborate on the accused’s rehabilitative potential, such as describing the particular reasons for forming the opinion.

( E ) C r o s s - e x a m i n a t i o n . O n c r o s s - e x a m i n a t i o n ,

inquiry is permitted into relevant and specific instances of conduct.

(F) Redirect. Notwithstanding any other provision in this rule, the scope of opinion testimony

permitted on redirect may be expanded, depending

upon the nature and scope of the cross-examination.

Discussion

For example, on redirect a witness or deponent may testify regarding specific instances of conduct when the cross-examination

of the witness or deponent concerned specific instances of misconduct. Similarly, for example, on redirect a witness or deponent

may offer an opinion on matters beyond the scope of the accused’s rehabilitative potential if an opinion about such matters

was elicited during cross-examination of the witness or deponent

and is otherwise admissible.

(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

m i t i g a t i o n r e g a r d l e s s w h e t h e r t h e d e f e n s e o f f e r e d

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

w h i c h d o n o t c o n s t i t u t e a l e g a l j u s t i f i c a t i o n o r

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

t h e s e r v i c e f o r e f f i c i e n c y , f i d e l i t y , s u b o r d i n a t i o n ,

temperance, courage, or any other trait that is desirable in a servicemember.

(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 ) T e s t i m o n y o f t h e a c c u s e d . T h e a c c u s e d

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

court-martial, or both.

( C ) U n s w o r n s t a t e m e n t . T h e a c c u s e d m a y

make an unsworn statement and may not be crossexamined by the trial counsel upon it or examined

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 is properly argument, but inclusion of such matter by the accused when

p e r s o n a l l y m a k i n g a n o r a l s t a t e m e n t n o r m a l l y s h o u l d n o t b e

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 subII-122

R.C.M. 1001(b)(5)(D)
section (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

t e s t i f y d u r i n g p r e s e n t e n c e p r o c e e d i n g s t h r o u g h 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, former testimony, or

testimony by remote means 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 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 ) E v i d e n c e r e l a t i n g t o a n y m e n t a l i m p a i r -

ment or deficiency of the accused.

Discussion

The fact that the accused is of low intelligence or that, because of

a mental or neurological condition the accused’s ability to adhere

to the right is diminished, may be extenuating. On the other hand,

in determining the severity of a sentence, the court-martial may

consider evidence tending to show that 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

o b j e c t t o i m p r o p e r a r g u m e n t b e f o r e t h e m i l i t a r y

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 court-martial; except when a mandatory minimum sentence is prescribed by the code, a courtmartial may adjudge any punishment authorized in

this Manual, including the maximum punishment or

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R.C.M. 1002
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 ) I n g e n e r a l . S u b j e c t t o t h e l i m i t a t i o n s i n t h i s

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, person in custody of the armed forces serving a sentence imposed by a courtmartial, and, insofar as the punishments are applicable, 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;

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.

A l l o w a n c e s s h a l l b e s u b j e c t t o f o r f e i t u r e o n l y

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, retired pay, or retainer pay, as applicable,

or, in the case of reserve component personnel on

inactive-duty, compensation for periods of inactiveduty training, authorized by the cumulative years of

service of the accused, and, if no confinement is

adjudged, any sea or hardship 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 (and

a l l o w a n c e s ) s p e c i f i e d a s i t a c c r u e s . F o r f e i t u r e s a c c r u e t o t h e

United States.

Forfeitures of pay and allowances adjudged as part of a

court-martial sentence, or occurring by operation of Article 58b

are effective 14 days after the sentence is adjudged or when the

sentence is approved by the convening authority, whichever is

earlier.

“Basic pay” does not include pay for special qualifications,

such as diving pay, or incentive pay such as flying, parachuting,

or duty on board a submarine.

Forfeiture of pay and allowances under Article 58b is not a

part of the sentence, but is an administrative result thereof.

At general courts-martial, if both a punitive discharge and

confinement are adjudged, then the operation of Article 58b results in total forfeiture of pay and allowances during that period

of confinement. If only confinement is adjudged, then if that

confinement exceeds six months, the operation of Article 58b

results in total forfeiture of pay and allowances during that period

of confinement. If only a punitive discharge is adjudged, Article

58b has no effect on pay and allowances. A death sentence results

in total forfeiture of pay and allowances.

At a special court-martial, if a bad-conduct discharge and

confinement are adjudged, then the operation of Article 58b results in a forfeiture of two-thirds of pay only (not allowances)

during that period of confinement. If only confinement is adjudged, and that confinement exceeds six months, then the operation of Article 58b results in a forfeiture of two-thirds of pay only

(not allowances) during the period of confinement. If only a bad

conduct discharge is adjudged, Article 58b has no effect on pay.

If the sentence, as approved by the convening authority or

other competent authority, does not result in forfeitures by the

operation of Article 58b, then only adjudged forfeitures are effective.

Article 58b has no effect on summary courts-martial.

(3) Fine. Any court-martial may adjudge a fine in

lieu of or in addition to forfeitures. Special and

summary courts-martial may not adjudge any fine or

combination of fine and forfeitures in excess of the

total amount of forfeitures that 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

e x p i r e d . T h e t o t a l p e r i o d o f c o n f i n e m e n t s o a d -

judged shall not exceed the jurisdictional limitations

of the court-martial;

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R.C.M. 1002
Discussion

A fine is in the nature of a judgement and, when ordered executed, makes the accused immediately liable to the United States

for the entire amount of money specified in the sentence. A fine

normally should not be adjudged against a member of the armed

forces unless the accused was unjustly enriched as a result of the

offense of which convicted. Ordinarily, a fine, rather than a forfeiture, is the proper monetary penalty to be adjudged against a

civilian subject to military law.

See R.C.M. 1113(d)(3) concerning imposition of confinement when the accused fails to pay a fine.

Where the sentence adjudged at a special court-martial includes a fine, see R.C.M. 1107(d)(5) for limitations on convening

authority action on the sentence.

(4) 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.

(5) 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 imposed

from any military duty. Restriction and hard labor without confinement may be adjudged in the same case provided they do not

exceed the maximum limits for each. See subsection (c)(1)(A)(ii)

of this rule. The sentence adjudged should specify the limits of

the restriction.

(6) Hard labor without confinement. Hard labor

without confinement may be adjudged for no more

than 1-1/2 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 courtmartial 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 to other

regular duties and does not excuse or relieve a person from

performing regular duties. Ordinarily, the immediate commander

of the accused will designate the amount and character of the

labor to be performed. Upon completion of the daily assignment,

the accused should be permitted to take leave or liberty to which

entitled.

See R.C.M. 1301(d) concerning limitations on hard labor

without confinement in summary courts-martial.

(7) Confinement. The place of confinement shall

not be designated by the court-martial. When confinement for life is authorized, it may be with or

without eligibility for parole. 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 require

hard labor whether or not the words “at hard labor” are included

in the sentence. See Article 58(b). To promote uniformity, the

w o r d s “ a t h a r d l a b o r ” s h o u l d b e o m i t t e d i n a s e n t e n c e t o

confinement.

(8) 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 ) D i s h o n o r a b l e d i s c h a r g e . A d i s h o n o r a b l e

discharge applies only to enlisted persons and warrant officers who are not commissioned 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 dishonorable discharge

may be adjudged for any offense of which a warrant

officer who is not commissioned has been found

guilty. A dishonorable discharge should be reserved

for those who should be separated under conditions

of dishonor, after having been convicted of offenses

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R.C.M. 1003(b)(8)(B)
usually recognized in civilian jurisdictions as felonies, or of offenses of a military nature requiring

severe punishment; and

Discussion

See also subsection (d)(1) of this rule regarding when a dishonorable discharge is authorized as an additional punishment.

See Article 56a.

(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

c o u r t - m a r t i a l w h i c h h a s m e t t h e r e q u i r e m e n t s o f

R . C . M . 2 0 1 ( f ) ( 2 ) ( B ) . A b a d - c o n d u c t d i s c h a r g e i s

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.

(9) Death. Death may be adjudged only in accordance with R.C.M. 1004; and

(10) 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 ) M a x i m u m p u n i s h m e n t . T h e m a x i m u m

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)(1), (3), (4), (5),

(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 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 included 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 courtmartial 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 ) M u l t i p l i c i t y . W h e n t h e a c c u s e d i s f o u n d

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 carrying the

greatest maximum punishment.

Discussion

See also R.C.M. 906(b)(12);907(b)(3)(B).

The basis of the concept of multiplicity in sentencing is that

an accused may not be punished twice for what is, in effect, one

offense. Offenses arising out of the same act or transaction may

be multiplicious for sentencing depending on the evidence. No

single test or formula has been developed which will resolve the

question of multiplicity.

The following tests have been used for determining whether

offenses are separate. Offenses are not separate if one is included

in the other or unless each requires proof of an element not

required to prove the other. For example, if an accused is found

guilty of escape from confinement (see paragraph 19, Part IV)

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R.C.M. 1003(b)(8)(B)
and desertion (see paragraph 9, Part IV) which both arose out of

the same act or transaction, the offenses would be separate because intent to remain permanently absent is not an element of

escape from confinement and a freeing from restraint is not an

element of desertion. However, if the accused had been found

guilty of unauthorized absence instead of desertion, the offenses

would not be separate because unauthorized absence does not

require proof of any element not also required to prove escape.

Even if each offense requires proof of an element not required to prove the other, they may not be separately punishable

if the offenses were committed as the result of a single impulse or

intent. For example, if an accused found guilty of larceny (see

paragraph 46, Part IV) and of unlawfully opening mail matter

(see paragraph 93, Part IV) opened the mail bag for the purpose

of stealing money in a letter in the bag, the offenses would not be

separately punishable. Also, if there was a unity of time and the

existence of a connected chain of events, the offenses may not be

separately punishable, depending on all the circumstances, even if

each required proof of a different element.

(2) Based on rank of accused.

(A) Commissioned or warrant officers, 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 comm i s s i o n e d o f f i c e r s , c a d e t s , m i d s h i p m e n , a n d

commissioned warrant officers, the separation shall

be by dismissal. In the case of all other warrant

o f f i c e r s , t h e s e p a r a t i o n s h a l l b y d i s h o n o r a b l e

discharge.

(B) Enlisted persons. See subsection (b)(9) of

this rule and R.C.M. 1301(d).

(3) Based on reserve status in certain circumstances.

(A) Restriction on liberty. A member of a reserve component whose order to active duty is approved pursuant to Article 2(d)(5) may be required

to serve any adjudged restriction on liberty during

that period of active duty. Other members of a reserve component ordered to active duty pursuant to

Article 2(d)(1) or tried by summary court-martial

while on inactive duty training may not—

(i) by sentenced to confinement; or

(ii) be required to serve a court-martial punishment consisting of any other restriction on liberty

except during subsequent periods of inactive-duty

training or active duty.

(B) Forfeiture. A sentence to forfeiture of pay

of a member not retained on active duty after completion of disciplinary proceedings may be collected

from active duty and inactive-duty training pay during subsequent periods of duty.

Discussion

For application of this subsection, see R.C.M. 204. At the conclusion of nonjudicial punishment proceedings or final adjournment

of the court-martial, the reserve component member who was

ordered to active duty for the purpose of conducting disciplinary

proceedings should be released from active duty within one working day unless the order to active duty was approved by the

Secretary concerned and confinement or other restriction on liberty was adjudged. Unserved punishments may be carried over to

subsequent periods of inactive-duty training or active duty.

(4) 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 jurisdictional

limits of the court-martial (see R.C.M. 201(f) and 1301(d)); the

nature of the proceedings ( see R.C.M. 810(d) (sentence limitations in rehearings, new trials, and other trials)); and by instructions by a convening authority (see R.C.M. 601(e)(1)). See also

R.C.M. 1107(d)(4) concerning limits on the maximum punishment which may be approved depending on the nature of the

record.

( d ) C i r c u m s t a n c e s p e r m i t t i n g i n c r e a s e d p u n i s h -

ments.

(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 court-martial during the year next

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R.C.M. 1003(d)(1)
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 of any offense, periods of unauthorized absence

shall be excluded. For purposes of this subsection,

the court-martial 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

t h e c o m m i s s i o n o f a n y o f f e n s e , p e r i o d s o f u n -

authorized 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 limitations on punishments set forth elsewhere in this rule. Convictions

by summary court-martial may not be used to increase the maximum punishment under this rule. However they may be admitted

and considered under R.C.M. 1001.

Rule 1004. Capital cases

(a) In general. Death may be adjudged only when:

(1) Death is expressly authorized under Part IV 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 accused was convicted of such an offense

by the concurrence of all the members of the courtmartial present at the time the vote was taken; and

(3) The requirements of subsections (b) and (c) of

this rule have been met.

( b ) P r o c e d u r e . I n a d d i t i o n t o t h e p r o v i s i o n s i n

R.C.M. 1001, the following procedures shall apply

in capital cases—

(1) Notice.

(A) Referral. The convening authority shall indicate that the case is to be tried as a capital case by

including a special instruction in the referral block

of the charge sheet. Failure to include this special

instruction at the time of the referral shall not bar

the convening authority from later adding the required special instruction, provided:

(i) that the convening authority has otherwise complied with the notice requirement of subsection (B); and

(ii) that if the accused demonstrates specific

prejudice from such failure to include the special

instruction, a continuance or a recess is an adequate

remedy.

( B ) A r r a i g n m e n t . B e f o r e a r r a i g n m e n t , t r i a l

c o u n s e l s h a l l g i v e t h e d e f e n s e w r i t t e n n o t i c e o f

which aggravating factors under subsection (c) of

this rule the prosecution intends to prove. Failure to

provide timely notice under this subsection of any

aggravating factors under subsection (c) of this rule

shall not bar later notice and proof of such additional aggravating factors 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 factors. Trial counsel

may present evidence in accordance with R.C.M.

1001(b)(4) tending to establish one or more of the

aggravating factors 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).

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R.C.M. 1003(d)(1)
( 4 ) N e c e s s a r y f i n d i n g s . D e a t h m a y n o t b e a d -

judged unless—

(A) The members find that at least one of the

aggravating factors under subsection (c) existed;

(B) Notice of such factor was provided in accordance with paragraph (1) of this subsection and

all members concur in the finding with respect to

such factor; and

(C) All members concur that any extenuating

o r m i t i g a t i n g c i r c u m s t a n c e s a r e s u b s t a n t i a l l y o u t -

weighed by any aggravating circumstances admissible under R.C.M. 1001(b)(4), including the factors

under subsection (c) of this rule.

(5) Basis for findings. 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 of such aggravating factors

under subsection (c) of this rule as may be in issue

in the case, and on the requirements and procedures

under subsections (b)(4), (5), (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 factor under

subsection (c) 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 factor. After voting on all

the aggravating factors 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.

1 0 0 7 , a n n o u n c e w h i c h a g g r a v a t i n g f a c t o r s u n d e r

s u b s e c t i o n ( c ) o f t h i s r u l e w e r e f o u n d b y t h e

members.

( c ) A g g r a v a t i n g f a c t o r s . D e a t h m a y b e a d j u d g e d

o n l y i f t h e m e m b e r s f i n d , b e y o n d a r e a s o n a b l e

doubt, one or more of the following aggravating

factors:

(1) That the offense was committed before or in

the presence of the enemy, except that this factor

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—

(A) Knowingly created a grave risk of substantial damage to the national security of the United

States; or

(B) Knowingly created a grave risk of substantial damage to a mission, system, or function of the

United States, provided that this subparagraph 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 factor shall not apply in case of a violation of

Article 118 or 120;

(4) That the offense was committed in such a

way or under circumstances that the life of one or

more persons other than the victim was unlawfully

and substantially endangered, except that this factor

shall not apply to a violation of Articles 104, 106a,

or 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 ) T h e a c c u s e d w a s s e r v i n g a s e n t e n c e o f

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, rape of a child,

aggravated sexual assault, aggravated sexual assault

of a child, aggravated sexual contact, aggravated

sexual abuse of a child, aggravated sexual contact

with a child, aggravated arson, sodomy, burglary,

II-129

R.C.M. 1004(c)(7)(B)
kidnapping, mutiny, sedition, or piracy of an aircraft

or vessel; or while the accused was engaged in the

commission or attempted commission of any offense

involving the wrongful distribution, manufacture, or

introduction or possession, with intent to distribute,

of a controlled substance; or, while the accused was

engaged in flight or attempted flight after the comm i s s i o n o r a t t e m p t e d c o m m i s s i o n o f a n y s u c h

offense.

(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 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 (including a Delegate to, or Resident Commiss i o n e r i n , t h e C o n g r e s s ) o r M e m b e r - o f - C o n g r e s s

elect, justice or judge of the United States, a chief of

state or head of government (or the political equivalent) of a foreign nation, or a foreign official (as

such term is defined in section 1116(b)(3)(A) of title

18, United States Code), if the official was on official business at the time of the offense and was in

the United States or in a place described in Mil. R.

Evid.315(c)(2), 315(c)(3);

(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

a c t i v i t y o r a g e n c y , m i l i t a r y o r c i v i l i a n , i n c l u d i n g

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. For purposes of this section, “substantial

physical harm” means fractures or dislocated bones,

deep cuts, torn members of the body, serious damage to internal organs, or other serious bodily injuries. The term “substantial physical harm” does not

mean minor injuries, such as a black eye or bloody

nose. The term “substantial mental or physical pain

or suffering” is accorded its common meaning and

includes torture.

(J) The accused has been found guilty in the

same case of another violation of Article 118;

(K) The victim of the murder was under 15

years of age.

(8) That only in the case of a violation of Article

118(4), the accused was the actual perpetrator of the

killing or was a principal whose participation in the

burglary, sodomy, rape, rape of a child, aggravated

sexual assault, aggravated sexual assault of a child,

aggravated sexual contact, aggravated sexual abuse

of a child, aggravated sexual contact with a child,

robbery, or aggravated arson was major and who

manifested a reckless indifference for human life.

Discussion

Conduct amounts to “reckless indifference” when it evinces a

wanton disregard of consequences under circumstances involving

grave danger to the life of another, although no harm is necessarily intended. The accused must have had actual knowledge of the

grave danger to others or knowledge of circumstances that would

cause a reasonable person to realize the highly dangerous character of such conduct. In determining whether participation in the

offense was major, the accused’s presence at the scene and the

extent to which the accused aided, abetted, assisted, encouraged,

or advised the other participants should be considered. See United

S t a t e s v . B e r g , 3 1 M . J . 3 8 ( C . M . A . 1 9 9 0 ) ; U n i t e d S t a t e s v .

McMonagle 38 M.J. 53 (C.M.A. 1993).

(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;

(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;

(11) That, only in the case of a violation of Article 104 or 106a:

(A) The accused has been convicted of another

offense involving espionage or treason for which

either a sentence of death or imprisonment for life

was authorized by statute; or

( B ) T h a t i n c o m m i t t i n g t h e o f f e n s e , t h e a c -

II-130

R.C.M. 1004(c)(7)(B)
cused knowingly created a grave risk of death to a

person other than the individual who was the victim.

F o r p u r p o s e s o f t h i s r u l e , “ n a t i o n a l s e c u r i t y ”

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 of the national security of the

United States include: impeding the performance of a combat

mission or operation; impeding the performance of an important

mission in a hostile fire or imminent danger pay area (see 37

U.S.C. § 310(a)); and disclosing military plans, capabilities, or

intelligence such as to jeopardize any combat mission or operation of the armed services of the United States or its allies 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

o f f e n s e , a l l o t h e r p u n i s h m e n t s a u t h o r i z e d u n d e r

R.C.M. 1003 are also authorized for that offense,

including confinement for life, with or without eligibility for parole, 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.

Discussion

A sentence of death may not be ordered executed until approved

by the President. See R.C.M. 1207. A sentence to death which has

been finally ordered executed will be carried out in the manner

prescribed by the Secretary concerned. See R.C.M. 1113(d)(1).

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 resolved at

an Article 39(a) session. But see R.C.M. 801(e)(1)(C); 803.

The military judge is not required to give the specific instruction requested by counsel if the matter is adequately covered

in the instructions.

The military judge should not identify the source of any

instruction when addressing the members.

All written requests for instructions should be marked as

appellate exhibits, whether or not they are given.

(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 ins t r u c t i o n s , o r u n l e s s a p a r t y o b j e c t s , p o r t i o n s o f

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.

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R.C.M. 1005(d)
(e) Required instructions. Instructions on sentence

shall include:

(1) A statement of the maximum authorized punishment that may be adjudged and of the mandatory

minimum punishment, if any;

Discussion

The maximum punishment that may be adjudged is the lowest of

the total permitted by the applicable paragraph(s) in Part IV for

each separate offense of which the accused was convicted (see

also R.C.M. 1003 concerning additional limits on punishments

and additional punishments which may be adjudged) or the jurisdictional limit of the court-martial (see R.C.M. 201(f) and R.C.M.

1301(d)). See also Discussion to R.C.M. 810(d). The military

judge may upon request or when otherwise appropriate instruct on

lesser punishments. See R.C.M. 1003. If an additional punishment

is authorized under R.C.M. 1003(d), the members must be informed of the basis for the increased punishment.

A carefully drafted sentence worksheet ordinarily should be

used and should include reference to all authorized punishments

in the case.

(2) A statement of the effect any sentence announced including a punitive discharge and confinement, or confinement in excess of six months, will

h a v e o n t h e a c c u s e d ’ s e n t i t l e m e n t t o p a y a n d

allowances;

(3) 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.

(4) 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.

(5) 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)(1), (2), (3)

and (5).

Discussion

For example, tailored instructions on sentencing should bring

attention to the reputation or record of the accused in the service

for good conduct, efficiency, fidelity, courage, bravery, or other

traits of good character, and any pretrial restraint imposed on the

accused.

(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 duri n g d e l i b e r a t i o n s a n d v o t i n g . S u p e r i o r i t y i n r a n k

shall not be used in any manner to control the indep e n d e n c e o f m e m b e r s i n t h e e x e r c i s e o f t h e i r

judgment.

( b ) D e l i b e r a t i o n s . D e l i b e r a t i o n s m a y p r o p e r l y i n -

clude 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

m a y , i n t h e e x e r c i s e o f d i s c r e t i o n , g r a n t s u c h

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, where approp r i a t e , a m o u n t o f a u t h o r i z e d p u n i s h m e n t p r o p o s e d b y t h a t

member. For example, a proposal of confinement for life would

state whether it is with or without eligibility for parole. See

R.C.M.1003(b).

II-132

R.C.M. 1005(e)
(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 ) S e c r e t b a l l o t . P r o p o s e d s e n t e n c e s s h a l l b e

voted on by secret written ballot.

(3) Procedure.

(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

c o n c u r r e n c e o f t h e n u m b e r o f m e m b e r s r e q u i r e d

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, with or without eligibility for parole, or more than 10 years. A sentence

that includes confinement for life, with or without

eligibility for parole, or more than 10 years may be

adjudged only if at least three-fourths of the members present vote for that sentence.

( C ) O t h e r . A s e n t e n c e o t h e r t h a n t h o s e d e -

scribed 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 sentence,

any fraction of a vote is rounded up to the next whole number.

For example, if there are seven members, at least six would have

to concur to impose a sentence requiring a three-fourths vote,

while at least five would have to concur to impose 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 of failure 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 courtmartial 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 memb e r s a s a n a i d t o p u t t i n g t h e s e n t e n c e i n p r o p e r f o r m . S e e

Appendix 11 for a format for forms of sentences. If a sentence

worksheet has been provided, the military judge should examine

it before the president announces the sentence. If the military

judge intends to instruct the members after such examination,

counsel should be permitted to examine the worksheet and to be

heard on any instructions the military judge may give.

The president should not disclose any specific number of

votes for or against any sentence.

I f t h e s e n t e n c e i s a m b i g u o u s o r a p p a r e n t l y i l l e g a l , s e e

R.C.M. 1009.

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.

II-133

R.C.M. 1007(a)
Discussion

See Appendix 11.

An element of a sentence adjudged by members about which

no instructions were given and which is not listed on a sentence

worksheet is not proper.

(b) Erroneous announcement. If the announced sent e n c e i s n o t t h e o n e a c t u a l l y d e t e r m i n e d b y t h e

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, see

R.C.M. 1009. See also R.C.M. 1102 concerning the action to be

taken if the error in the announcement is discovered after the

record is authenticated and forwarded to the convening authority.

(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) Reconsideration. Subject to this rule, a sentence

may be reconsidered at any time before such sentence is announced in open session of the court.

(b) Exceptions.

(1) If the sentence announced in open session was

less than the mandatory minimum prescribed for an

offense of which the accused has been found guilty,

the court that announced the sentence may reconsider such sentence upon reconsideration in accordance with subsection (e) of this rule.

(2) If the sentence announced in open session exceeds the maximum permissible punishment for the

offense or the jurisdictional limitation of the courtmartial, the sentence may be reconsidered after announcement in accordance with subsection (e) of

this rule.

(c) Clarification of sentence. A sentence may be

clarified at any time prior to action of the convening

authority on the case.

( 1 ) S e n t e n c e a d j u d g e d b y t h e m i l i t a r y j u d g e .

When a sentence adjudged by the military judge is

ambiguous, the military judge shall call a session for

clarification as soon as practical after the ambiguity

is discovered.

(2) Sentence adjudged by members. When a sentence adjudged by members is ambiguous, the military judge shall bring the matter to the attention of

the members if the matter is discovered before the

court-martial is adjourned. If the matter is discovered after adjournment, the military judge may call a

session for clarification by the members who adjudged the sentence as soon as practical after the

ambiguity is discovered.

(d) Action by the convening authority. When a sentence adjudged by the court-martial is ambiguous,

the convening authority may return the matter to the

court-martial for clarification. When a sentence adjudged by the court-martial is apparently illegal, the

convening authority may return the matter to the

court-martial for reconsideration or may approve a

s e n t e n c e n o m o r e s e v e r e t h a n t h e l e g a l , u n a m -

biguous portions of the adjudged sentence.

(e) Reconsideration procedure. Any member of the

court-martial may propose that a sentence reached

by the members be reconsidered.

( 1 ) I n s t r u c t i o n s . W h e n a s e n t e n c e h a s b e e n

reached by members and reconsideration has been

initiated, the military judge shall instruct the members on the procedure for reconsideration.

( 2 ) V o t i n g . T h e m e m b e r s s h a l l v o t e b y s e c r e t

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.

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R.C.M. 1007(a)
(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, with or without eligibility for

parole, 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 closed

session, no other vote may be taken on the sentence unless a vote

to reconsider succeeds.

For example, if six of nine (two-thirds) members adopt a

sentence, a vote of at least five would be necessary to reconsider

to increase it; four would have to vote to reconsider in order to

decrease it. If seven of nine (three-fourths) members is required

to adopt a sentence, a vote of at least five would be necessary to

reconsider to increase it, while three would be necessary to reconsider to decrease it.

(4) Successful vote. If a vote to reconsider a sentence succeeds, the procedures in R.C.M. 1006 shall

apply.

Rule 1010. Notice concerning post-trial and

appellate rights

In each general and special court-martial, prior to

adjournment, the military judge shall ensure that the

defense counsel has informed the accused orally and

in writing of:

(a) The right to submit matters to the convening

authority to consider before taking action;

(b) The right to appellate review, as applicable, and

the effect of waiver or withdrawal of such right;

(c) The right to apply for relief from the Judge

Advocate General if the case is neither reviewed by

a Court of Criminal Appeals nor reviewed by the

Judge Advocate General under R.C.M. 1201(b)(1);

and

(d) The right to the advice and assistance of counsel

in the exercise of the foregoing rights or any decision to waive them.

T h e w r i t t e n a d v i c e t o t h e a c c u s e d c o n c e r n i n g

post-trial and appellate rights shall be signed by the

accused and the defense counsel and inserted in the

record of trial as an appellate exhibit.

Discussion

The post-trial duties of the defense counsel concerning the appellate rights of the accused are set forth in paragraph (E)(iv) of the

Discussion accompanying R.C.M. 502(d)(6). The defense counsel

shall explain the appellate rights to the accused and prepare the

written document of such advisement prior to or during trial.

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 responsibilities following the trial. See, for example, R.C.M. 502(d)(5)

Discussion (F); 502(d)(6) Discussion (E); 808; 1007; 1009; Chapter XI.

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R.C.M. 1011
CHAPTER XI. POST-TRIAL PROCEDURE

Rule 1101. Report of result of trial; post-trial

restraint; deferment of confinement,

forfeitures and reduction in grade; waiver of

Article 58b forfeitures

(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 ) I n g e n e r a l . A n a c c u s e d m a y b e p l a c e d i n

post-trial confinement if the sentence adjudged by

the court-martial 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)(1) 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 confinement, or

order other appropriate restraint. Regardless whether the accused

is ordered into confinement, a sentence to confinement begins to

run on the date it is adjudged unless it is deferred under subsection (c) of this rule. See Article 57.

(3) Confinement on other grounds. Nothing in this

rule shall prohibit confinement of a person after a

court-martial on proper grounds other than the offenses for which the accused was tried at the courtmartial.

Discussion

See R.C.M. 304, 305, and paragraph 5b(2), Part V, for other

grounds for confinement.

(c) Deferment of confinement, forfeitures or reduction in grade.

(1) In general. Deferment of a sentence to confinement, forfeitures, or reduction in grade is a postponement of the running of the sentence.

Discussion

D e f e r m e n t i s n o t s u s p e n s i o n o f t h e s e n t e n c e o r a f o r m o f

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 sent e n c e t o c o n f i n e m e n t , f o r f e i t u r e s , o r r e d u c t i o n i n

grade that 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 conf i n e m e n t , f o r f e i t u r e s , o r r e d u c t i o n i n g r a d e . T h e

accused shall have the burden of showing that the

interests of the accused and the community in deferral outweigh the community’s interests in imposition

of the punishment on its effective date. Factors that

the authority acting on a deferment request may consider in determining whether to grant the deferment

request include, where applicable: 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 conv i c t e d ; t h e s e n t e n c e a d j u d g e d ; t h e c o m m a n d ’ s

immediate need for the accused; the effect of deferment on good order and discipline in the command;

the accused’s character, mental condition, family situation, and service record. The decision of the aut h o r i t y a c t i n g o n t h e d e f e r m e n t r e q u e s t s h a l l b e

subject to judicial review only for abuse of discretion. The action of the authority acting on the deferment request shall be in writing 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). If the

request for deferment is denied, the basis for the denial should be

in writing and attached to the record of trial.

(4) Orders. The action granting deferment shall be

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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 . 1 1 0 7 s h a l l b e r e p o r t e d i n o r d e r s u n d e r

R.C.M. 1114 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, forfeitures, or reduction in grade ends

when:

(A) The convening authority takes action under

R . C . M . 1 1 0 7 , u n l e s s t h e c o n v e n i n g a u t h o r i t y

specifies in the action that service of confinement

after the action is deferred;

(B) The confinement, forfeitures, or reduction

in grade are 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

When the sentence is ordered executed, forfeitures or reduction in

grade may be suspended, but may not be deferred; deferral of

confinement may continue after action in accordance with R.C.M.

1107. A form of punishment cannot be both deferred and suspended at the same time. When deferment of confinement, forfeitures, or reduction in grade ends, the sentence to confinement,

forfeitures, or reduction in grade begins to run or resumes running, as appropriate. When the convening authority has specified

in the action that confinement will be deferred after the action,

the deferment may not be terminated, except under subsections

(6)(B), (C), or (D), until the conviction is final under R.C.M.

1209.

See R.C.M. 1203 for deferment of a sentence to confinement

pending review under Article 67(a)(2).

(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 exerc i s i n g g e n e r a l c o u r t - m a r t i a l j u r i s d i c t i o n o v e r t h e

command to which the accused is assigned, may

rescind the deferment.

(B) Action. Deferment of confinement, forfeitures, or reduction in grade may be rescinded when

additional information is presented to a proper authority which, when considered with all other inform a t i o n i n t h e c a s e , t h a t a u t h o r i t y f i n d s , i n t h a t

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, forfeitures, or reduction in grade pending this action.

(C) Execution. When deferment of confinement

is rescinded after the convening authority’s action

under R.C.M. 1107, the confinement may be ordered

executed. However, no such order to rescind a deferment of confinement may be issued within 7 days of

notice of the rescission of a deferment of confinement 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

s h a l l b e r e p o r t e d i n t h e a c t i o n u n d e r R . C . M .

1107(f)(4)(E), which action shall include the dates

of the granting of the deferment and the rescission.

Rescission of a deferment of confinement after the

c o n v e n i n g a u t h o r i t y ’ s a c t i o n s h a l l b e r e p o r t e d i n

s u p p l e m e n t a r y o r d e r s i n a c c o r d a n c e w i t h 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.

(d) Waiving forfeitures resulting from a sentence to

confinement to provide for dependent support.

(1) With respect to forfeiture of pay and allowances resulting only by operation of law and not

adjudged by the court, the convening authority may

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R.C.M. 1101(d)(1)
waive, for a period not to exceed six months, all or

part of the forfeitures for the purpose of providing

support to the accused’s dependent(s). The convening authority may waive and direct payment of any

such forfeitures when they become effective by operation of Article 57(a).

(2) Factors that may be considered by the convening authority in determining the amount of forfeitures, if any, to be waived include, but are not

limited to, the length of the accused’s confinement,

the number and age(s) of the accused’s family memb e r s , w h e t h e r t h e a c c u s e d r e q u e s t e d w a i v e r , a n y

debts owed by the accused, the ability of the accused’s family members to find employment, and

t h e a v a i l a b i l i t y o f t r a n s i t i o n a l c o m p e n s a t i o n f o r

abused dependents permitted under 10 U.S.C. 1059.

(3) For the purposes of this Rule, a “dependent”

means any person qualifying as a “dependent” under

37 U.S.C. 401.

Discussion

Forfeitures resulting by operation of law, rather than those adjudged as part of a sentence, may be waived for six months or for

the duration of the period of confinement, whichever is less. The

waived forfeitures are paid as support to dependent(s) designated

by the convening authority. When directing waiver and payment,

the convening authority should identify by name the dependent(s)

to whom the payments will be made and state the number of

months for which the waiver and payment shall apply. In cases

where the amount to be waived and paid is less than the jurisdictional limit of the court, the monthly dollar amount of the waiver

and payment should be stated.

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, a

proceeding in revision may not be conducted for the purpose of

presenting additional evidence.

Examples when a proceeding in revision is appropriate include: correction of an ambiguous or apparently illegal action by

the court-martial; inquiry into the terms of a pretrial agreement;

and inquiry to establish the accused’s awareness of certain rights.

See also R.C.M. 1104(d) concerning correction of the record by certificate of correction.

(2) Article 39(a) sessions. An Article 39(a) session under this rule may be called, upon motion of

either party or sua sponte by the military judge, for

the purpose of inquiring into, and, when appropriate,

resolving any matter that arises after trial and that

s u b s t a n t i a l l y a f f e c t s t h e l e g a l s u f f i c i e n c y o f a n y

findings of guilty or the sentence. The military judge

may also call an Article 39(a) session, upon motion

of either party or sua sponte, to reconsider any trial

ruling that substantially affects the legal sufficiency

of any findings of guilty or the sentence. The military judge may, sua sponte, at any time prior to

authentication of the record of trial, enter a finding

of not guilty of one or more offenses charged, or

may enter a finding of not guilty of a part of a

specification as long as a lesser offense charged is

alleged in the remaining portion of the specification.

Prior to entering such a finding or findings, the

military judge shall give each party an opportunity

to be heard on the matter in a post-trial Article 39(a)

session.

Discussion

For example, an Article 39(a) session may be called to permit a

military judge to reconsider a trial ruling, or to examine allegations of misconduct by a counsel, a member, or a witness. See

R.C.M. 917(d) for the standard to be used to determine the legal

sufficiency of evidence.

(c) Matters not subject to post-trial sessions. Posttrial session 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

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R.C.M. 1101(d)(1)
u n l e s s t h e s e n t e n c e p r e s c r i b e d f o r t h e o f f e n s e i s

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.

(e) Procedure.

(1) Personnel. The requirements of R.C.M. 505

a n d 8 0 5 s h a l l a p p l y a t p o s t - t r i a l s e s s i o n s e x c e p t

that—

(A) For a proceeding in revision, if trial was

b e f o r e m e m b e r s a n d t h e m a t t e r s u b j e c t t o t h e

p r o c e e d i n g i n r e v i s i o n r e q u i r e s t h e p r e s e n c e o f

members:

(i) The absence of any members does not

invalidate the proceedings if, in the case of a general

court-martial, at least five members are present, or,

in the case of a special court-martial, at least three

members are present; and

(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.

Prior to the military judge sua sponte entering a

f i n d i n g o f n o t g u i l t y o f o n e o r m o r e o f f e n s e s

charged or entering a finding of not guilty of a part

of a specification as long as a lesser offense charged

is alleged in the remaining portion of the specification, the military judge shall give each party an

opportunity to be heard on the matter.

(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 1102A. Post-trial hearing for person

found not guilty only by reason of lack of

mental responsibility

(a) In general. The military judge shall conduct a

hearing not later than forty days following the finding that an accused is not guilty only by reason of a

lack of mental responsibility.

( b ) P s y c h i a t r i c o r p s y c h o l o g i c a l e x a m i n a t i o n a n d

report. Prior to the hearing, the military judge or

convening authority shall order a psychiatric or psyc h o l o g i c a l e x a m i n a t i o n o f t h e a c c u s e d , w i t h t h e

resulting psychiatric or psychological report transmitted to the military judge for use in the post-trial

hearing.

(c) Post-trial hearing.

(1) The accused shall be represented by defense

counsel and shall have the opportunity to testify,

present evidence, call witnesses on his or her behalf,

and to confront and cross-examine witnesses who

appear at the hearing.

(2) The military judge is not bound by the rules

of evidence except with respect to privileges.

(3) An accused found not guilty only by reason

of a lack of mental responsibility of an offense involving bodily injury to another, or serious damage

to the property of another, or involving a substantial

risk of such injury or damage, has the burden of

proving by clear and convincing evidence that his or

her release would not create a substantial risk of

bodily injury to another person or serious damage to

property of another due to a present mental disease

or defect. With respect to any other offense, the

accused has the burden of such proof by a preponderance of the evidence.

(4) If, after the hearing, the military judge finds

the accused has satisfied the standard specified in

subsection (3) of this section, the military judge

shall inform the general court-martial convening authority of this result and the accused shall be released. If, however, the military judge finds after the

hearing that the accused has not satisfied the standard specified in subsection (3) of this section, then

the military judge shall inform the general courtmartial convening authority of this result and that

authority may commit the accused to the custody of

the Attorney General.

Rule 1103. Preparation of record of trial

(a) In general. Each general, special, and summary

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R.C.M. 1103(a)
c o u r t - m a r t i a l s h a l l k e e p a s e p a r a t e r e c o r d o f t h e

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 stenolineart 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 ) V e r b a t i m t r a n s c r i p t r e q u i r e d . E x c e p t a s

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 exc e e d s s i x m o n t h s c o n f i n e m e n t , f o r f e i t u r e o f p a y

greater than two-thirds pay per month, or any forfeiture of pay for more than six months or other punishments that may be adjudged by a special courtmartial; or

( i i ) A b a d - c o n d u c t d i s c h a r g e h a s b e e n

adjudged.

Discussion

A verbatim transcript includes: all proceedings including sidebar

conferences, arguments of counsel, and rulings and instructions

by the military judge; matter which the military judge orders

stricken from the record or disregarded; and when a record is

amended in revision proceedings ( see R.C.M. 1102), the part of

the original record changed and the changes made, without physical alteration of the original record. Conferences under R.C.M.

802 need not be recorded, but matters agreed upon at such confere n c e s m u s t b e i n c l u d e d i n t h e r e c o r d . I f t e s t i m o n y i s g i v e n

through an interpreter, a verbatim transcript must so reflect.

(C) Verbatim transcript not required. If a verbat i m t r a n s c r i p t i s n o t r e q u i r e d u n d e r s u b s e c t i o n

(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;

(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 courtmartial 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);

(iv) The original dated, signed action by the

convening authority; and

(v) 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;

(iii) If the trial was a rehearing or new or

other trial of the case, the record of the former

hearing(s); and

(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 ) A n y m a t t e r f i l e d b y t h e a c c u s e d u n d e r

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

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R.C.M. 1103(a)
o n d e f e n s e c o u n s e l i n a c c o r d a n c e w i t h R . C . M .

1106(f)(1);

(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) Any waiver or withdrawal of appellate review under R.C.M. 1110; and

(M) 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, confinement for more than six months, or forfeiture of pay

for more than six months. The requirements of subsections (b)(1), (b)(2)(A), (b)(2)(B), (b)(2)(D), and

(b)(3) of this rule shall apply in a special courtmartial in which a bad-conduct discharge, confinement for more than six months, or forfeiture of pay

for more than six months, has been adjudged.

(2) All other special courts-martial. If the special

court-martial resulted in findings of guilty but a badconduct discharge, confinement for more than six

m o n t h s , o r f o r f e i t u r e o f p a y f o r m o r e t h a n s i x

months, was not adjudged, the requirements of subsections (b)(1), (b)(2)(D), and (b)(3)(A)-(F) and (I)-

(M) of this rule shall apply.

( d ) S u m m a r y c o u r t s - m a r t i a l . T h e s u m m a r y c o u r t -

martial record of trial shall be prepared as prescribed

in R.C.M. 1305.

(e) Acquittal; courts-martial resulting in findings of

not guilty only by reason of lack of mental responsibility; termination prior to findings. Notwithstanding

subsections (b), (c), and (d) of this rule, if proceedings resulted in an acquittal of all charges and specifications or in a finding of not guilty only by reason

of lack of mental responsibility of all charges and

specifications, or if 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). The convening authority or

h i g h e r a u t h o r i t y m a y p r e s c r i b e a d d i t i o n a l

requirements.

Discussion

The notes or recordings of court-martial proceedings described in

this subsection should be retained if reinstitution and re-referral of

the affected charges is likely or when they may be necessary for

the trial of another accused in a related case. See R.C.M. 905(g)

and 914.

(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)(1) 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 that

could be adjudged by a special court-martial, except

that a bad-conduct discharge, confinement for more

than six months, or forfeiture of two-thirds pay per

month for more than six months, may not 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 convening authority

may not approve any sentence imposed at such a

rehearing more severe than or 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 courtsmartial which require a verbatim transcript under

subsections (b) or (c) of this rule and are subject to a

review by a Court of Criminal Appeals under Article

66, the trial counsel shall cause to be prepared an

original and four copies of the record of trial. In all

o t h e r g e n e r a l a n d s p e c i a l c o u r t s - m a r t i a l t h e t r i a l

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

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R.C.M. 1103(g)(1)(B)
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) Security classification. 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)(1)(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 necessary

changes or, if major changes are necessary, direct the reporter to

rewrite the entire record or the portion of the record which is

defective.

The trial counsel must ensure that the reporter makes a true,

complete, and accurate record of the proceedings such that the

record will meet the applicable requirements of this rule.

( B ) E x a m i n a t i o n b y d e f e n s e c o u n s e l . E x c e p t

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 record,

the defense counsel may suggest to the trial counsel appropriate

changes to make the record accurate, forward for attachment to

the record under Article 38(c) any objections to the record, or

bring any suggestions for correction of the record to the attention

of the person who authenticates the record.

The defense counsel should be granted reasonable access to

the reporter’s notes and tapes to facilitate the examination of the

record.

A suitable notation that the defense counsel has examined

the record should be made on the authentication page. See Appendix 13 or 14 for sample forms.

(2) Summary courts-martial. The summary courtm a r t i a l s h a l l e x a m i n e a n d c o r r e c t t h e s u m m a r y

court-martial 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 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 ) P r e p a r a t i o n o f w r i t t e n r e c o r d . W h e n t h e

c o u r t - m a r t i a l , o r a n y p a r t o f i t , i s r e c o r d e d b y

videotape, audiotape, or similar material under subsection (j)(1) of this rule, a written transcript or

s u m m a r y a s r e q u i r e d i n s u b s e c t i o n ( 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

u n d e r R . C . M . 1 1 0 4 ( e ) , u n l e s s m i l i t a r y e x i g e n c i e s

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)(1) 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 authority 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 Criminal

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R.C.M. 1103(g)(1)(B)
Appeals. Before review, if any, by a Court of Criminal Appeals 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 Criminal Appeals. 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. 1104(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; or

(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.

Rule 1103A. Sealed exhibits and

proceedings.

(a) In general. If the record of trial contains exhibits, proceedings, or other matter ordered sealed by

the military judge, the trial counsel shall cause such

materials to be sealed so as to prevent indiscriminate

viewing or disclosure. Trial counsel shall ensure that

such materials are properly marked, including an

annotation that the material was sealed by order of

the military judge, and inserted at the appropriate

place in the original record of trial. Copies of the

r e c o r d s h a l l c o n t a i n a p p r o p r i a t e a n n o t a t i o n s t h a t

matters were sealed by order of the military judge

and have been inserted in the original record of trial.

This Rule shall be implemented in a manner consistent with Executive Order 12958, as amended, concerning classified national security information.

(b) Examination of sealed exhibits and proceedings.

Except as provided in the following subsections to

this rule, sealed exhibits may not be examined.

(1) Examination of sealed matters. For the purpose of this rule, “examination” includes reading,

v i e w i n g , p h o t o c o p y i n g , p h o t o g r a p h i n g , d i s c l o s i n g ,

or manipulating the documents in any way.

(2) Prior to authentication. Prior to authentication

of the record by the military judge, sealed materials

may not be examined in the absence of an order

from the military judge based on good cause shown.

(3) Authentication through action. After authentication and prior to disposition of the record of trial

pursuant to Rule for Courts-Martial 1111, sealed

materials may not be examined in the absence of an

order from the military judge upon a showing of

good cause at a post-trial Article 39a session directed by the Convening Authority.

(4) Reviewing and appellate authorities.

(A) Reviewing and appellate authorities may

examine sealed matters when those authorities determine that such action is reasonably necessary to a

proper fulfillment of their responsibilities under the

Uniform Code of Military Justice, the Manual for

C o u r t s - M a r t i a l , g o v e r n i n g d i r e c t i v e s , i n s t r u c t i o n s ,

regulations, applicable rules for practice and procedure, or rules of professional responsibility.

(B) Reviewing and appellate authorities shall

not, however, disclose sealed matter or information

in the absence of:

(i) Prior authorization of the Judge Advocate

General in the case of review under Rule for CourtsMartial 1201(b); or

(ii) Prior authorization of the appellate court

before which a case is pending review under Rules

for Courts-Martial 1203 and 1204.

(C) In those cases in which review is sought or

pending before the United States Supreme Court,

authorization to disclose sealed materials or information shall be obtained under that Court’s rules of

practice and procedure.

( D ) T h e a u t h o r i z i n g o f f i c i a l s i n p a r a g r a p h

(B)(ii) above may place conditions on authorized

disclosures in order to minimize the disclosure.

(E) For purposes of this rule, reviewing and

appellate authorities are limited to:

(i) Judge advocates reviewing records pursuant to Rule for Courts-Martial 1112;

(ii) Officers and attorneys in the office of the

Judge Advocate General reviewing records pursuant

to Rule for Courts-Martial 1201(b);

(iii) Appellate government counsel;

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R.C.M. 1103A(b)(4)(E)(iii)
(iv) Appellate defense counsel;

(v) Appellate judges of the Courts of Criminal Appeals and their professional staffs;

(vi) The judges of the United States Court of

Appeals for the Armed Forces and their professional

staffs;

( v i i ) T h e J u s t i c e s o f t h e U n i t e d S t a t e s

Supreme Court and their professional staffs; and

( v i i i ) A n y o t h e r c o u r t o f c o m p e t e n t

jurisdiction.

Rule 1104. Records of trial: Authentication;

service; loss; correction; forwarding

(a) Authentication.

(1) In general. A record is authenticated by the

s i g n a t u r e o f a p e r s o n s p e c i f i e d i n t h i s r u l e w h o

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 ) A u t h e n t i c a t i o n b y t h e m i l i t a r y j u d g e . I n

special courts-martial in which a bad-conduct discharge, confinement for more than six months, or

forfeiture of pay for more than six months, 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 a bad-conduct discharge, confinement for

more than six months, or forfeiture of pay for more

than six months, was not adjudged shall be authenticated in accordance with regulations of the Secretary

concerned.

( B ) S u b s t i t u t e a u t h e n t i c a t i o n . I f t h e m i l i t a r y

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.

Substitute authentication is authorized only in emergencies.

A brief, temporary absence of the military judge from the situs of

the preparation of the record of trial does not justify a substitute

authentication. Prolonged absence, including permanent change of

station, ordinarily justifies substitute authentication.

The person who authenticates the record of trial instead of

the military judge should attach to the record of trial an explanation for the substitute authentication. See R.C.M. 1103(b)(3) (E).

(3) Summary courts-martial. The summary courtmartial 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

e a c h g e n e r a l a n d s p e c i a l c o u r t - m a r t i a l , e x c e p t a s

provided in subsection (b)(1)(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 imp r a c t i c a b l e t o s e c u r e a r e c e i p t f r o m t h e a c c u s e d

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

t h e m e a n s o f t r a n s m i s s i o n a n d t h e a d d r e s s , a n d

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

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R.C.M. 1103A(b)(4)(E)(iv)
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 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)(1)(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 certificate. 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 ) t h e p a g e s o f t h e r e c o r d o f t r i a l f r o m

which matter has been deleted;

(c) the pages of the record of trial which

have been entirely deleted; and

(d) the exhibits which have been withdrawn.

Discussion

See R.C.M. 1103(h) concerning classified information.

(2) Summary courts-martial. The summary courtmartial record of trial shall be disposed of as provided in R.C.M. 1305(d). Subsection (b)(1)(D) of

this rule shall apply if classified information is included in the record of trial of a summary courtmartial.

(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 rule 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 correction.

See Appendix 13 or 14 for a form for a certificate of

correction. A certificate of correction may be used only to make

the record of trial correspond to the actual proceedings. If the

members were not sworn, for example, the error cannot be cured

by a certificate of correction. If the members were sworn but the

record did not so reflect, the record could be corrected.

(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 court-martial 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 and

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R.C.M. 1104(d)(2)
scope of the proposed correction. In many instances an adequate

opportunity can be provided by allowing the respective parties to

present affidavits and other documentary evidence to the person

authenticating the certificate of correction or by a conference

telephone call among the authenticating person, the parties, and

the reporter. In other instances, an evidentiary hearing with witnesses may be required. The accused need not be present at any

hearing on a certificate of correction.

( 3 ) A u t h e n t i c a t i o n o f c e r t i f i c a t e o f c o r r e c t i o n ;

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 badconduct discharge or confinement for one year was

adjudged or a general court-martial, the convening

authority shall refer the record to the staff judge

advocate or legal officer for 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.

(1) The accused may submit to the convening authority any matters that may reasonably tend to affect the convening authority’s decision whether to

disapprove any findings of guilty or to approve the

sentence. The convening authority is only required

to consider written submissions.

(2) Submissions are not subject to the Military

Rules of Evidence and may include:

(A) Allegations of errors affecting the legality

of the findings or sentence;

(B) Portions or summaries of the record and

copies of documentary evidence offered or introduced at trial;

(C) 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

r e s t i t u t i o n t o t h e v i c t i m o r e x e m p l a r y b e h a v i o r , m i g h t b e

appropriate.

(D) Clemency recommendations by any member, the military judge, or any other person. The

d e f e n s e m a y a s k a n y p e r s o n f o r s u c h a

recommendation.

Discussion

A clemency recommendation should state reasons for the recommendation and should specifically indicate the amount and character of the clemency recommended.

A c l e m e n c y r e c o m m e n d a t i o n b y a m e m b e r s h o u l d n o t

disclose the vote or opinion of any member expressed in deliberations. Except as provided in R.C.M. 923 and 1008 and Mil. R.

Evid. 606(b), a clemency recommendation does not impeach the

findings or the sentence. If the sentencing authority makes a

clemency recommendation in conjunction with the announced

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

Although only written submissions must be considered, the

convening authority may consider any submission by the accused,

including, but not limited to, videotapes, photographs, and oral

presentations.

(c) Time periods.

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

general or special court-martial, the accused may

submit matters under this rule within the later of 10

days after a copy of the authenticated record of trial

or, if applicable, the recommendation of the staff

judge advocate or legal officer, or an addendum to

the recommendation containing new matter is served

on the accused. If, within the 10-day period, the

accused shows that additional time is required for

the accused to submit such matters, the convening

a u t h o r i t y o r t h a t a u t h o r i t y ’ s s t a f f j u d g e a d v o c a t e

may, for good cause, extend the 10-day period for

not more than 20 additional days; however, only the

convening authority may deny a request for such an

extension.

( 2 ) S u m m a r y c o u r t s - m a r t i a l . A f t e r a s u m m a r y

court-martial, the accused may submit matters under

this rule within 7 days after the sentence is announced. If the accused shows that additional time is

required for the accused to submit such comments,

the convening authority may, for good cause, extend

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R.C.M. 1104(d)(2)
the period in which comments may be submitted for

up to 20 additional days.

(3) 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,

i n w h i c h c a s e t h e p e r i o d s h a l l r u n f r o m t h a t

announcement.

(4) 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 within the time prescribed by this rule shall

be deemed a waiver of the right to submit such

matters.

( 2 ) S u b m i s s i o n o f m a t t e r s . S u b m i s s i o n o f a n y

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

t h i s r u l e . O n c e f i l e d , s u c h w a i v e r m a y n o t b e

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)(1) 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

T h e a c c u s e d i s n o t r e q u i r e d t o r a i s e o b j e c t i o n s t o t h e t r i a l

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 that includes a sentence to a bad-conduct discharge or confinement for one year, 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 to any reviewing or convening authority in

the same case.

Discussion

The staff judge advocate or legal officer may also be ineligible

when, for example, the staff judge advocate or legal officer;

served as the defense counsel in a companion case; testified as to

a contested matter (unless the testimony is clearly uncontroverted); has other than an official interest in the same case; or must

review that officer’s own pretrial action (such as the pretrial

advice under Article 34; see R.C.M. 406) when the sufficiency or

correctness of the earlier action has been placed in issue.

(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

d i s q u a l i f i e d . I f t h e c o n v e n i n g a u t h o r i t y d o e s n o t

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 ) R e q u e s t t h e a s s i g n m e n t o f a n o t h e r s t a f f

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 officer but wants the recommendation of a staff judge

advocate. If the convening authority has a legal officer but no staff judge advocate, the convening aut h o r i t y m a y , a s a m a t t e r o f d i s c r e t i o n , r e q u e s t

designation of a staff judge advocate to prepare the

recommendation.

(d) Form and content of recommendation.

(1) 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

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R.C.M. 1106(d)(1)
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 r e c o m m e n d a t i o n f o r c l e m e n c y b y t h e

sentencing authority, made in conjunction with the

announced sentence;

Discussion

The recommendation required by this rule need not include inform a t i o n r e g a r d i n g o t h e r r e c o m m e n d a t i o n s f o r c l e m e n c y . S e e

R.C.M. 1105(b)(4), which pertains to clemency recommendations

that may be submitted by the accused to the convening authority.

(C) 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;

(D) A statement of the nature and duration of

any pretrial restraint;

(E) If there is a pretrial agreement, a statement

of any action the convening authority is obligated to

t a k e u n d e r t h e a g r e e m e n t o r a s t a t e m e n t o f t h e

reasons why the convening authority is not obligated

to take specific action under the agreement; and

(F) A specific recommendation as to the action

t o b e t a k e n b y t h e c o n v e n i n g a u t h o r i t y o n t h e

sentence.

( 4 ) L e g a l e r r o r s . T h e s t a f f j u d g e a d v o c a t e o r

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 matter 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 this rule, appropriate corrective action shall

be taken by appellate authorities without returning

the case for further action by a convening authority.

(e) No findings of guilty; findings of not guilty only

by reason of lack of mental responsibility. If the

proceedings resulted in an acquittal or in a finding

of not guilty only by reason of lack of mental responsibility 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

and accused; defense response.

(1) Service of recommendation on defense counsel and accused. Before forwarding the recommend a t i o n a n d t h e r e c o r d o f t r i a l t o t h e c o n v e n i n g

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. A separate copy will be served on the accused. If it is impracticable to serve the recommendation on the accused for reasons including but not

limited to 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 shall be forwarded to the accused’s

defense counsel. A statement shall be attached to the

record explaining why the accused was not served

personally.

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R.C.M. 1106(d)(1)
Discussion

The method of service and the form of the proof of service are

not prescribed and may be by any appropriate means. See R.C.M.

1103(b)(3)(G). For example, a certificate of service, attached to

the record of trial, would be appropriate when the accused is

served personally.

(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: (1)

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 repr e s e n t t h e a c c u s e d s h a l l b e d e t a i l e d b y a n

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, the

military judge should inquire of the accused and counsel before

the end of the court-martial as to who will act for the 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 10 days from service of the record of trial

under R.C.M. 1104(b) or receipt of the recommendation, whichever is later, in which to submit comm e n t s o n t h e r e c o m m e n d a t i o n . T h e c o n v e n i n g

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

T h e a c c u s e d i s n o t r e q u i r e d t o r a i s e o b j e c t i o n s t o t h e t r i a l

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 the accused and

counsel for the accused have been served with the

recommendation and given an opportunity to comment. When new matter is introduced after the accused and counsel for the accused have examined

t h e r e c o m m e n d a t i o n , h o w e v e r , t h e a c c u s e d a n d

counsel for the accused must be served with the new

matter and given 10 days from service of the addendum in which to submit comments. Substitute service of the accused’s copy of the addendum upon

counsel for the accused is permitted in accordance

with the procedures outlined in subparagraph (f)(1)

of this rule.

Discussion

“New matter” includes discussion of the effect of new decisions

on issues in the case, matter from outside the record of trial, and

issues not previously discussed. “New matter” does not ordinarily

include any discussion by the staff judge advocate or legal officer

of the correctness of the initial defense comments on the recommendation. The method of service and the form of the proof of

service are not prescribed and may be by any appropriate means.

See R.C.M. 1103(b)(3)(G). For example, a certificate of service,

attached to the record of trial, would be appropriate when the

accused is served personally.

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 conII-149

R.C.M. 1107(a)
v e n i n g a u t h o r i t y t o a c t , t h e c o n v e n i n g a u t h o r i t y

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 taking

action on the findings or sentence. The convening authority who

convened the court-martial may take action on the case regardless

whether the accused is a member of or present in the convening

authority’s command.

It would be impracticable for the convening authority to take

initial action when, for example, a command has been decommissioned or inactivated before the convening authority’s action;

when a command has been alerted for immediate overseas movement; or when the convening authority is disqualified because the

convening authority has other than an official interest in the case

or because a member of the court-martial which tried the accused

later became the convening authority.

If the convening authority forwards the case to an officer

exercising general court-martial jurisdiction for initial review and

action, the record should include a statement of the reasons why

the convening authority did not act.

(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

t o r e v i e w t h e c a s e f o r l e g a l e r r o r s o r f a c t u a l

sufficiency.

Discussion

The action is taken in the interests of justice, discipline, mission

requirements, clemency, and other appropriate reasons. If errors

are noticed by the convening authority, the convening 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

u n d e r R . C . M . 1 1 0 5 o r , i f a p p l i c a b l e , R . C . M .

1106(f).

( B ) A d d i t i o n a l m a t t e r s . B e f o r e t a k i n g a c t i o n

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 conveni n g a u t h o r i t y c o n s i d e r s m a t t e r s a d v e r s e t o t h e

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 not guilty only by reason of lack of mental

responsibility, or there was a ruling amounting to a

finding of not guilty. The convening authority shall

not take action disapproving a finding of not guilty,

a finding of not guilty only by reason of lack of

mental responsibility, or a ruling amounting to a

finding of not guilty. When an accused is found not

guilty only by reason of lack of mental responsibility, the convening authority, however, shall commit

the accused to a suitable facility pending a hearing

and disposition in accordance with R.C.M. 1102A.

Discussion

Commitment of the accused to the custody of the Attorney General for hospitalization is discretionary.

(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. In the absence of substantial

evidence to the contrary, the accused is presumed to

have the capacity to understand and to conduct or

cooperate intelligently in the post-trial proceedings.

If a substantial question is raised as to the requisite

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R.C.M. 1107(a)
mental capacity of the accused, the convening authority may direct an examination of the accused in

a c c o r d a n c e w i t h R . C . M . 7 0 6 b e f o r e d e c i d i n g

whether the accused lacks mental capacity, but the

examination may be limited to determining the accused’s present capacity to understand and cooperate

in the post-trial proceedings. The convening authority may approve the sentence unless it is established,

by a preponderance of the evidence—including matters outside the record of trial—that the accused

does not have the requisite 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 disapprove a finding of guilty or approve a finding of guilty only of a

l e s s e r o f f e n s e . H o w e v e r , s e e s u b s e c t i o n ( e ) o f t h i s r u l e i f a

rehearing is ordered. The convening authority is not required to

review the findings for legal or factual sufficiency and is not

required to explain a decision to order or not to order a rehearing,

except as provided in subsection (e) of this rule. The power to

order a rehearing, or to take other corrective action on the findings, is designed solely to provide an expeditious means to correct errors that are identified in the course of exercising discretion

under the rule.

(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

p u n i s h m e n t i m p o s e d b y a c o u r t - m a r t i a l . T h e a p -

proval or disapproval shall be explicitly stated.

Discussion

A sentence adjudged by a court-martial may be approved if it was

within the jurisdiction of the court-martial to adjudge (see R.C.M.

201(f)) and did not exceed the maximum limits prescribed in Part

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

accused legally has been found guilty.

When mitigating forfeitures, the duration and amounts of

forfeiture may be changed as long as the total amount forfeited is

not increased and neither the amount nor duration of the forfeitures exceeds the jurisdiction of the court-martial. When mitigati n g c o n f i n e m e n t o r h a r d l a b o r w i t h o u t c o n f i n e m e n t , t h e

c o n v e n i n g a u t h o r i t y s h o u l d u s e t h e e q u i v a l e n c i e s a t R . C . M .

1003(b)(6) and (7), as appropriate. One form of punishment may

be changed to a less severe punishment of a different nature, as

long as the changed punishment is one that the court-martial

could have adjudged. For example, a bad-conduct discharge adjudged by a special court-martial could be changed to confinement for up to one year (but not vice versa). A pretrial agreement

may also affect what punishments may be changed by the convening authority.

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

a rehearing or new or other trial.

( 2 ) D e t e r m i n i n g w h a t s e n t e n c e s h o u l d b e a p -

proved. 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 convening

authority should consider all relevant factors including the possibility of rehabilitation, the deterrent effect of the sentence, and all

matters relating to clemency, such as pretrial confinement. See

also R.C.M. 1001 through 1004.

When an accused is not serving confinement, the accused

should not be deprived of more than two-thirds pay for any

month as a result of one or more sentences by court-martial and

other stoppages or involuntary deductions, unless requested by the

accused. Since court-martial forfeitures constitute a loss of entitlement of the pay concerned, they take precedence over all debts.

(3) Deferring service of a sentence to confinement.

(A) In a case in which a court-martial sentences an accused referred to in subsection (B), below, to confinement, the convening authority may

defer service of a sentence to confinement by a

court-martial, without the consent of the accused,

until after the accused has been permanently released to the armed forces by a state or foreign

country.

II-151

R.C.M. 1107(d)(3)(A)
(B) Subsection (A) applies to an accused who,

while in custody of a state or foreign country, is

temporarily returned by that state or foreign country

to the armed forces for trial by court-martial; and

after the court-martial, is returned to that state or

f o r e i g n c o u n t r y u n d e r t h e a u t h o r i t y o f a m u t u a l

agreement or treaty, as the case may be.

( C ) A s u s e d i n s u b s e c t i o n ( d ) ( 3 ) , t h e t e r m

“state” means a state of the United States, the District of Columbia, a territory, and a possession of the

United States.

Discussion

The convening authority’s decision to postpone service of a courtmartial sentence to confinement normally should be reflected in

the action.

(4) 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)(1), the conv e n i n g a u t h o r i t y m a y n o t a p p r o v e a s e n t e n c e i n

excess of that which may be adjudged by a special

court-martial, or one that includes a bad-conduct discharge, confinement for more than six months, forfeiture of pay exceeding two-thirds pay per month,

or any forfeiture of pay for more than six months.

Discussion

See also R.C.M. 1103(f).

(5) Limitations on sentence of a special courtmartial where a fine has been adjudged. A convening authority may not approve in its entirety a sentence adjudged at a special court-martial when, if

approved, the cumulative impact of the fine and

forfeitures, whether adjudged or by operation of Article 58b, would exceed the jurisdictional maximum

dollar amount of forfeitures that may be adjudged at

that court-martial.

(e) Ordering rehearing or other trial.

(1) Rehearing.

(A) In general. Subject to subsections (e)(1)(B)

through (e)(1)(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 affecting the findings or sentence is noticed by the convening authority. The severity of the findings or the sentence of the original

court-martial may not be increased at a rehearing unless the

sentence prescribed for the offense is mandatory. See R.C.M.

810(d). If the accused is placed under restraint pending a rehearing, see R.C.M. 304; 305.

(B) When the convening authority may order a

r e h e a r i n g . T h e c o n v e n i n g a u t h o r i t y m a y o r d e r a

rehearing:

(i) When taking action on the court-martial

under this rule;

(ii) In cases subject to review by the Court

of Criminal Appeals, before the case is forwarded

under R.C.M. 1111(a)(1) or (b)(1), but only as to

any sentence which 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

c o n v e n i n g a u t h o r i t y m a y d i s m i s s t h o s e s p e c i f i c a -

tions and, when appropriate, charges.

Discussion

A sentence rehearing, rather than a reassessment, may be more

appropriate in cases where a significant part of the government’s

case has been dismissed. The convening authority may not take

any actions inconsistent with directives of superior competent

authority. Where that directive is unclear, appropriate clarification

should be sought from the authority issuing the original directive.

(iv) Sentence reassessment. If a superior authority has approved some of the findings of guilty

and has authorized a rehearing as to other offenses

and the sentence, the convening authority may, unless otherwise directed, reassess the sentence based

on the approved findings of guilty and dismiss the

remaining charges. Reassessment is appropriate only

where the convening authority determines that the

accused’s sentence would have been at least of a

certain magnitude had the prejudicial error not been

committed and the reassessed sentence is appropriate

in relation to the affirmed findings of guilty.

(C) Limitations.

(i) Sentence approved. A rehearing shall not

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R.C.M. 1107(d)(3)(B)
b e o r d e r e d i f , i n t h e s a m e a c t i o n , a s e n t e n c e i s

approved.

(ii) Lack of sufficient 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 improperly

authenticated documentary evidence admitted over the objection

of the defense, the convening authority may disapprove the findings of guilty and sentence and order a rehearing if there is reason

to believe that properly authenticated documentary evidence or

other admissible evidence of guilt will be available at the rehearing. On the other hand, if no proof of unauthorized absence was

introduced at trial, a rehearing may not be ordered.

(iii) Rehearing on sentence only. A rehearing

on sentence only shall not be referred to a different

kind of court-martial from that which made the original findings. If the convening authority determines

a rehearing on sentence is impracticable, the convening authority may approve a sentence of no punishment without conducting a rehearing.

( D ) A d d i t i o n a l c h a r g e s . A d d i t i o n a l c h a r g e s

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

f o u n d . I f , h o w e v e r , a r e h e a r i n g i s o r d e r e d i m -

properly 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 ) I n g e n e r a l . T h e c o n v e n i n g a u t h o r i t y s h a l l

state in writing and insert in the record of trial 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. The convening authority may also

recall and modify any action at any time prior to

forwarding the record for review, as long as the

modification does not result in action less favorable

to the accused than the earlier action. In addition, in

any special court-martial, the convening authority

may recall and correct an illegal, erroneous, incomplete, or ambiguous action at any time before completion of review under R.C.M. 1112, as long as the

correction does not result in action less favorable to

the accused than the earlier action. When so directed

by a higher reviewing authority or the Judge Advocate General, the convening authority shall modify

any incomplete, ambiguous, void, or inaccurate action noted in review of the record of trial under

Article 64, 66, 67, or examination of the record of

trial under Article 69. The convening authority shall

p e r s o n a l l y s i g n a n y s u p p l e m e n t a r y o r c o r r e c t i v e

action.

Discussion

For purposes of this rule, a record is considered to have been

forwarded for review when the convening authority has either

delivered it in person or has entrusted it for delivery to a third

party over whom the convening authority exercises no lawful

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

(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 specificaII-153

R.C.M. 1107(f)(3)
tions shall 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.

Discussion

If a rehearing or other trial is not directed, the reasons for disapproval need not be stated in the action, but they may be when

appropriate. It may be appropriate to state them when the reasons

may affect administrative disposition of the accused; for example,

when the finding is disapproved because of the lack of mental

responsibility of the accused or the running of the statute of

limitations.

No express action is necessary to approve findings of guilty.

See subsection (c) of this rule.

(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

a c t i o n s h a l l s t a t e w h i c h p a r t s a r e a p p r o v e d . A

rehearing may not be directed if any sentence is

approved.

Discussion

See Appendix 16 for forms.

See R.C.M. 1108 concerning suspension of sentences.

See R.C.M. 1113 concerning execution 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 execut i o n , t h e c o n v e n i n g a u t h o r i t y s h a l l d e s i g n a t e t h e

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 otherwise prescribed by the

Secretary concerned.

Discussion

See R.C.M. 1113(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 conf i n e m e n t h a s b e e n o r d e r e d i n t o e x e c u t i o n a n d 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 ) C r e d i t f o r i l l e g a l p r e t r i a l c o n f i n e m e n t .

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)(1) 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

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

II-154

R.C.M. 1107(f)(3)
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.

In approving a sentence not in excess of or more severe than

one previously approved (see R.C.M. 810(d)), a convening authority is prohibited from approving a punitive discharge more

severe than one formerly approved, e.g., a convening authority is

prohibited from approving a dishonorable discharge if a bad conduct discharge had formerly been approved. Otherwise, in approving a sentence not in excess of or more severe than one

previously imposed, a convening authority is not limited to approving the same or lesser type of “other punishments” formerly

approved.

( g ) I n c o m p l e t e , a m b i g u o u s , o r e r r o n e o u s a c t i o n .

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 served 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) Who may suspend and remit. The convening authority may, after approving the sentence, suspend

the execution of all or any part of the sentence of a

court-martial, except for a sentence of death. The

general court-martial convening authority over the

accused at the time of the court-martial may, when

taking the action under R.C.M. 1112(f), suspend or

remit any part of the sentence. The Secretary concerned and, when designated by the Secretary concerned, any Under Secretary, Assistant Secretary,

J u d g e A d v o c a t e G e n e r a l , o r c o m m a n d i n g o f f i c e r

may suspend or remit any part or amount of the

unexecuted part of any sentence other than a sentence approved by the President or a sentence of

confinement for life without eligibility for parole

that has been ordered executed. The Secretary concerned may, however, suspend or remit the unexecuted part of a sentence of confinement for life

without eligibility for parole only after the service of

a period of confinement of not less than 20 years.

The commander of the accused who has the authority to convene a court-martial of the kind that adjudged the sentence may suspend or remit any part

of the unexecuted part of any sentence by summary

court-martial or of any sentence by special courtm a r t i a l t h a t d o e s n o t i n c l u d e a b a d - c o n d u c t d i s -

charge regardless of whether the person acting has

previously approved the sentence. The “unexecuted

part of any sentence” is that part that has been approved and ordered executed but that has not actually been carried out.

II-155

R.C.M. 1108(b)
Discussion

See R.C.M. 1113 (execution of sentences); R.C.M. 1201 (action

by the Judge Advocate General); R.C.M. 1206 (powers and responsibilities of the Secretary).

The military judge and members of courts-martial may not

suspend sentences.

( c ) C o n d i t i o n s o f s u s p e n s i o n . T h e a u t h o r i t y w h o

suspends the execution of the sentence of a courtmartial shall:

( 1 ) S p e c i f y i n w r i t i n g t h e c o n d i t i o n s o f t h e

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

u n r e a s o n a b l y l o n g . T h e S e c r e t a r y c o n c e r n e d m a y

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

o f t h e p e r i o d o f s u s p e n s i o n s h a l l r e m i t t h e s u s -

pended 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 ) V i o l a t i o n o f c o n d i t i o n s . V a c a t i o n s h a l l b e

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 before

the end of suspension even though, in certain cases, it may not be

effective as an order of execution of the suspended sentence until

the completion of appellate review or action by the President or

the Secretary concerned. See R.C.M. 1113 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 ) C o n f i n e m e n t o f p r o b a t i o n e r p e n d i n g v a c a t i o n

proceedings.

(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 this subsection.

(2) Who may order confinement. Any person who

m a y o r d e r p r e t r i a l r e s t r a i n t u n d e r R . C . M . 3 0 4 ( 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

p r o b a t i o n e r v i o l a t e d a n y c o n d i t i o n s o f t h e

suspension.

Discussion

A determination that confinement is necessary to ensure the presII-156

R.C.M. 1108(b)
ence of the probationer or to prevent further misconduct is not

required.

If the violation of the conditions also constitutes an offense

under the code for which trial by court-martial is considered, an

appropriate form of pretrial restraint may be imposed as an alternative to confinement under this rule. See R.C.M. 304 and 305.

( 4 ) R e v i e w o f c o n f i n e m e n t . U n l e s s p r o c e e d i n g s

under subsection (d)(1), (e), (f), or (g) 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 in writing 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 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

t o m a t t e r s c o n s i d e r e d a t t h e p r e l i m i n a r y h e a r i n g

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 issue a written order directing that 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 writt e n m e m o r a n d u m , d e t a i l i n g t h e r e i n t h e e v i d e n c e

relied upon and reasons for making the decision.

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 ) V a c a t i o n o f s u s p e n d e d g e n e r a l c o u r t - m a r t i a l

sentence.

(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, the officer having special court-martial jurisdiction over the

probationer shall personally hold a hearing on the

alleged violation of the conditions of suspension. If

there is no officer having special court-martial jurisdiction over the probationer who is subordinate to

the officer having general court-martial jurisdiction

over the probationer, the officer exercising general

court-martial jurisdiction over the probationer shall

personally hold a hearing under subsection (d)(1) of

this rule. In such cases, subsection (d)(1)(D) of this

rule shall not apply.

(B) Notice to probationer. Before the hearing,

the officer conducting the hearing shall cause the

probationer to be notified in writing of:

( i ) T h e t i m e , p l a c e , a n d p u r p o s e o f t h e

hearing;

(ii) The right to be present at the hearing;

(iii) The alleged violation(s) of the conditions of suspension 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.

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R.C.M. 1109(d)(1)(B)(v)
Discussion

The notice should be provided sufficiently in advance of the

hearing to permit adequate preparation.

( C ) H e a r i n g . T h e p r o c e d u r e f o r t h e v a c a t i o n

h e a r i n g s h a l l f o l l o w t h a t p r e s c r i b e d i n R . C . M .

405(g), (h)(1), and (i).

(D) Record and recommendation. The officer

who conducts the vacation proceeding shall make a

summarized record of the proceeding and forward

the record and that officer’s written 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

court-martial 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)(1)(D) of this rule.

Discussion

See Appendix 18 for a sample of a Report of Proceedings to

Vacate Suspension of a General Court-Martial Sentence under

Article 72, UCMJ, and R.C.M. 1109 (DD Form 455).

( 2 ) A c t i o n b y o f f i c e r e x e r c i s i n g g e n e r a l c o u r t -

martial jurisdiction over probationer.

(A) In general. The officer exercising general

court-martial jurisdiction over the probationer shall

review 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, decide whether to vacate the suspended sentence. If the officer exercising general court-martial

j u r i s d i c t i o n d e c i d e s t o v a c a t e t h e s u s p e n d e d s e n -

tence, that officer shall prepare a written statement

of the evidence relied on and the reasons for vacating the suspended sentence.

(B) Execution. Any unexecuted part of a susp e n d e d s e n t e n c e o r d e r e d v a c a t e d u n d e r t h i s r u l e

s h a l l , s u b j e c t t o R . C . M . 1 1 1 3 ( c ) , b e o r d e r e d

executed.

(e) Vacation of a suspended special court-martial

sentence wherein a bad-conduct discharge or confinement for one year was not adjudged.

(1) In general. Before vacating the suspension of

a special court-martial punishment that does not include a bad-conduct discharge or confinement for

one year, the special court-martial convening authority for the command in which the probationer is

serving or assigned shall cause a hearing to be held

o n t h e a l l e g e d v i o l a t i o n ( s ) o f t h e c o n d i t i o n s o f

suspension.

(2) Notice to probationer. The person conducting

the hearing shall notify the probationer, in writing,

before the hearing of the rights specified in subsection (d)(1)(B) of this rule.

(3) Hearing. The procedure for the vacation hearing shall follow that prescribed in R.C.M. 405(g),

(h)(1), and (i).

(4) Authority to vacate suspension. The special

court-martial convening authority for the command

in which the probationer is serving or assigned shall

have the authority to vacate any punishment that the

officer has the authority to order executed.

(5) Record and recommendation. If the hearing is

not held by the commander with authority to vacate

the suspension, the person who conducts the hearing

shall make a summarized record of the hearing and

forward the record and that officer’s written recommendation concerning vacation to the commander

with authority to vacate the suspension.

(6) Decision. The special court-martial convening

authority shall review the record produced by and

the recommendation of the person who conducted

the vacation proceeding, decide whether the probationer violated a condition of suspension, and, if so,

decide whether to vacate the suspended sentence. If

the officer exercising jurisdiction decides to vacate

the suspended sentence, that officer shall prepare a

written statement of the evidence relied on and the

reasons for vacating the suspended sentence.

( 7 ) E x e c u t i o n . A n y u n e x e c u t e d p a r t o f a s u s -

pended sentence ordered vacated under this subsection shall be ordered executed.

(f) Vacation of a suspended special court-martial

sentence that includes a bad-conduct discharge or

confinement for one year.

(1) The procedure for the vacation of a suspended

approved bad-conduct discharge or of any suspended

portion of an approved sentence to confinement for

II-158

R.C.M. 1109(d)(1)(B)(v)
one year, shall follow that set forth in subsection (d)

of this rule.

(2) The procedure for the vacation of a suspension of any lesser special court-martial punishment

shall follow that set forth in subsection (e) of this

rule.

Discussion

An officer exercising special court-martial jurisdiction may vacate

any suspended punishments other than an approved suspended

bad-conduct discharge or any suspended portion of an approved

sentence to confinement for one year, regardless of whether they

are contained in the same sentence as the bad-conduct discharge

or confinement for one year. See Appendix 18 for a sample of a

Report of Proceedings to Vacate Suspension of a Special CourtMartial Sentence including a bad-conduct discharge or confinement for one year under Article 72, UCMJ, and R.C.M. 1109

(DD Form 455).

(g) Vacation of a suspended summary court-martial

sentence.

(1) Before vacation of the suspension of a summ a r y c o u r t - m a r t i a l s e n t e n c e , t h e s u m m a r y c o u r t -

m a r t i a l c o n v e n i n g a u t h o r i t y f o r t h e c o m m a n d i n

which the probationer is serving or assigned 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

h e a r i n g o f t h e r i g h t s s p e c i f i e d i n s u b s e c t i o n s

(d)(1)(B)(i), (ii), (iii), and (v) of this rule.

(3) Hearing. The procedure for the vacation hearing shall follow that prescribed in R.C.M. 405(g),

(h)(1), and (i).

(4) Authority to vacate suspension. The summary

court-martial convening authority for the command

in which the probationer is serving or assigned shall

have the authority to vacate any punishment that the

officer had the authority to order executed.

(5) Record and 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 written recommendation concerning vacation

t o t h e c o m m a n d e r w i t h a u t h o r i t y t o v a c a t e t h e

suspension.

(6) Decision. A commander with authority to vacate the suspension shall review the record produced

by and the recommendation of the person who conducted the vacation proceeding, decide whether the

probationer violated a condition of suspension, and,

if so, decide whether to vacate the suspended sentence. If the officer exercising jurisdiction decides to

vacate the suspended sentence, that officer shall prepare a written statement of the evidence relied on

and the reasons for vacating the suspended sentence.

( 7 ) E x e c u t i o n . A n y u n e x e c u t e d p a r t o f a s u s -

pended sentence ordered vacated under this subsection shall be ordered executed.

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 or confinement for one year, the accused may

waive or withdraw appellate review.

Discussion

Appellate review is not available for special courts-martial in

which a bad-conduct discharge or confinement for one year was

not adjudged or approved or for summary courts-martial. Cases

not subject to appellate review, or in which appellate review is

waived or withdrawn, are reviewed by a judge advocate under

R.C.M. 1112. Such cases may also be submitted to the Judge

Advocate General for review. See R.C.M. 1201(b)(3). Appellate

review is mandatory when the approved sentence includes death.

(b) Right to counsel.

(1) In general. The accused shall have the right to

c o n s u l t w i t h c o u n s e l q u a l i f i e d u n d e r R . C . M .

502(d)(1) 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

court-martial 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

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R.C.M. 1110(b)(2)(B)
r e p r e s e n t e d t h e a c c u s e d a t t h e c o u r t - m a r t i a l , a n d

s h a l l a d v i s e t h e a c c u s e d c o n c e r n i n g w h e t h e r t o

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.

(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

c o u n s e l a n d s h a l l a d v i s e t h e a c c u s e d w h e t h e r t o

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 repres e n t e d t h e a c c u s e d a t t h e c o u r t - m a r t i a l s h a l l b e

detailed.

(4) Civilian counsel. Whether or not the accused

was represented by civilian counsel at the courtmartial, the accused may consult with civilian counsel, at no expense to the United States, concerning

whether to waive or withdraw appellate review.

( 5 ) R e c o r d o f t r i a l . A n y d e f e n s e c o u n s e l w i t h

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 record. If

this is not possible, as when the accused and counsel are physic a l l y s e p a r a t e d , a n o t h e r c o p y s h o u l d b e m a d e a v a i l a b l e t o

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 ) C o m p u l s i o n , c o e r c i o n , i n d u c e m e n t p r o h i b i t e d .

No person may compel, coerce, or induce an accused by force, promises of clemency, or otherwise

to waive or withdraw appellate review.

( d ) F o r m o f w a i v e r o r w i t h d r a w a l . A w a i v e r o r

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 app e l l a t e r e v i e w a n d t h a t t h e a c c u s e d u n d e r s t a n d s

these matters;

(3) State that the waiver or withdrawal is submitted voluntarily; and

( 4 ) B e s i g n e d b y t h e a c c u s e d a n d b y d e f e n s e

counsel.

Discussion

See Appendix 19 (DD Form 2330) or Appendix 20 (DD Form

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

c o u r t - m a r t i a l j u r i s d i c t i o n o v e r t h e a c c u s e d , w h o

shall promptly forward it to the Judge Advocate

G e n e r a l , o r d i r e c t l y w i t h t h e J u d g e A d v o c a t e

General.

(f) Time limit.

(1) Waiver. The accused may sign a waiver of

appellate review at any time after the sentence is

announced. The waiver must be filed within 10 days

after the accused or defense counsel is served with a

c o p y o f t h e a c t i o n u n d e r R . C . M . 1 1 0 7 ( h ) . U p o n

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) Effect of waiver or withdrawal; substantial compliance required.

(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)(1)

and by the Court of Criminal Appeals. Once submitII-160

R.C.M. 1110(b)(2)(B)
ted, 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. 1112.

(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

Criminal Appeals, 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.

1112.

(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

t h e c o n v e n i n g a u t h o r i t y ’ s a c t i o n s h a l l b e s e n t

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,

o r m i d s h i p m a n , d i s h o n o r a b l e o r b a d - c o n d u c t d i s -

charge, 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. 1112 if the

sentence does not include death and if the accused

has waived appellate review under R.C.M. 1110.

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 ) C a s e s i n c l u d i n g a n a p p r o v e d b a d - c o n d u c t

discharge or confinement for one year. If the approved sentence of a special court-martial includes a

bad-conduct discharge or confinement for one year,

the record shall be disposed of as provided in subsection (a) of this rule.

(2) Other cases. The record of trial by a special

court-martial in which the approved sentence does

not include a bad-conduct discharge or confinement

for one year shall be forwarded directly to a judge

advocate for review under R.C.M. 1112. 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 by R.C.M. 1306.

Discussion

See DD Form 494 (Court-Martial Data Sheet).

Rule 1112. Review by a judge advocate

(a) In general. Except as provided in subsection (b)

of this rule, under regulations of the Secretary concerned, a judge advocate shall review:

(1) Each general court-martial in which the acc u s e d h a s w a i v e d o r w i t h d r a w n a p p e l l a t e r e v i e w

under R.C.M. 1110.

(2) Each special court-martial in which the acc u s e d h a s w a i v e d o r w i t h d r a w n a p p e l l a t e r e v i e w

under R.C.M. 1110 or in which the approved sentence does not include a bad-conduct discharge or

confinement for one year; and

(3) Each summary court-martial.

(b) Exception. If the accused was found not guilty

or not guilty only by reason of lack of mental responsibility of all offenses 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

o t h e r w i s e a c t e d o n b e h a l f o f t h e p r o s e c u t i o n o r

defense.

(d) Form and content of review. The judge advoII-161

R.C.M. 1112(d)
cate’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, 1106(f), or directly with

the judge advocate who reviews the case; and

(3) If the case is sent for action to the officer

e x e r c i s i n g g e n e r a l c o u r t - m a r t i a l j u r i s d i c t i o n u n d e r

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.

Copies of the judge advocate’s review under

this rule shall be attached to the original and all

copies of the record of trial. A copy of the review

shall be forwarded to the accused.

(e) Forwarding to officer exercising general courtmartial jurisdiction. In cases reviewed under subsection (a) of this rule, the record of trial shall be sent

for action to the officer exercising general courtmartial 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 badconduct discharge, or confinement for more than 6

months; or

(3) Such action is otherwise required by regulations of the Secretary concerned.

(f) Action by officer exercising general court-martial jurisdiction.

(1) Action. The officer exercising general courtmartial 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.

Discussion

See R.C.M. 1113 concerning when the officer exercising general

court-martial jurisdiction may order parts of the sentence executed. See R.C.M. 1114 concerning orders promulgating the action of the officer exercising general court-martial jurisdiction.

See also Appendix 16 (Forms for actions) and Appendix 17

(Forms for court-martial orders).

( 2 ) R e h e a r i n g . I f t h e o f f i c e r e x e r c i s i n g g e n e r a l

court-martial jurisdiction orders a rehearing, but the

convening authority finds a rehearing impracticable,

the convening authority shall dismiss the charges.

(3) Notification. After the officer exercising general court-martial jurisdiction has taken action, the

accused shall be notified of the action and the accused shall be provided with a copy of the judge

advocate’s review.

(g) Forwarding following review under this rule.

( 1 ) R e c o r d s f o r w a r d e d t o t h e J u d g e A d v o c a t e

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 court-martial 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. 1201(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)(1)

of this rule shall be disposed of as prescribed by the

Secretary concerned.

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R.C.M. 1112(d)
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 be

carried out. Except as provided in subsections (d)(2), (3), and (5)

of this rule, no part of a sentence may be carried out until it is

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 ) D i s h o n o r a b l e o r a b a d - c o n d u c t d i s c h a r g e .

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. 1112(f), as part of the action approving the

sentence, except when that action must be forwarded

under R.C.M. 1112(g)(1); or

(B) The officer then exercising general courtmartial jurisdiction over the accused.

A dishonorable or 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 on the date of final judgment a servicemember is not on appellate leave and more than

6 months have elapsed since approval of 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 servicemember shall consider the adv i c e o f t h a t o f f i c e r ’ s s t a f f j u d g e a d v o c a t e a s t o

whether retention of the servicemember would be in

the best interest of the service. Such advice shall

i n c l u d e t h e f i n d i n g s a n d s e n t e n c e a s f i n a l l y a p -

proved, the nature and character of duty since approval of the sentence by the convening authority,

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

d e a t h m a y b e o r d e r e d e x e c u t e d o n l y b y t h e

President.

Discussion

See R.C.M. 1207 concerning approval by the President.

(d) Other considerations concerning the execution

of certain sentences.

(1) Death.

(A) Manner carried out. A sentence to death

which has been finally ordered executed shall be

carried out in the manner prescribed by the Secretary concerned.

(B) Action when accused lacks mental capacity. An accused lacking the mental capacity to understand the punishment to be suffered or the reason for

imposition of the death sentence may not be put to

death during any period when such incapacity exists.

The accused is presumed to have such mental capacity. If a substantial question is raised as to whether

the accused lacks capacity, the convening authority

t h e n e x e r c i s i n g g e n e r a l c o u r t - m a r t i a l j u r i s d i c t i o n

over the accused shall order a hearing on the question. A military judge, counsel for the government,

and counsel for the accused shall be detailed. The

convening authority shall direct an examination of

the accused in accordance with R.C.M. 706, but the

examination may be limited to determining whether

the accused understands the punishment to be suffered and the reason therefore. The military judge

shall consider all evidence presented, including evidence provided by the accused. The accused has the

burden of proving such lack of capacity by a preponderance of the evidence. The military judge shall

II-163

R.C.M. 1113(d)(1)(B)
make findings of fact, which will then be forwarded

to the convening authority ordering the hearing. If

the accused is found to lack capacity, the convening

authority shall stay the execution until the accused

regains appropriate capacity.

Discussion

A verbatim transcript of the hearing should accompany the findings of fact.

(2) Confinement.

(A) Effective date of confinement. Any period

of confinement included in the sentence of a courtmartial begins to run from the date the sentence is

a d j u d g e d b y t h e c o u r t - m a r t i a l , b u t t h e f o l l o w i n g

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 is in

custody of civilian or foreign authorities after the

convening authority, pursuant to Article 57(e), has

postponed the service of a sentence to confinement.

Discussion

The convening authority’s decision to postpone service of a courtmartial sentence to confinement normally should be reflected in

the action.

(iv) 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 confinem e n t u p o n t h e p r i s o n e r ’ s p e t i t i o n f o r a w r i t o f

habeas corpus under a court order which is later

reversed; and

( v ) P e r i o d s d u r i n g w h i c h a n o t h e r s e n t e n c e

b y c o u r t - m a r t i a l t o c o n f i n e m e n t i s b e i n g s e r v e d .

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

s u c h r e g u l a t i o n s a s t h e S e c r e t a r y c o n c e r n e d m a y

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 ord e r e d t o b e s e r v e d i n a n y p l a c e o f c o n f i n e m e n t

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. 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

S e e R . C . M . 1 1 0 1 ( c ) c o n c e r n i n g d e f e r m e n t o f a s e n t e n c e t o

confinement.

(3) Confinement in lieu of fine. Confinement may

not be executed for failure to pay a fine if the

a c c u s e d d e m o n s t r a t e s t h a t t h e a c c u s e d h a s m a d e

good faith efforts to pay but cannot because of inII-164

R.C.M. 1113(d)(1)(B)
digency, unless the authority considering imposition

of confinement determines, after giving the accused

notice and opportunity to be heard, that there is no

o t h e r p u n i s h m e n t a d e q u a t e t o m e e t t h e G o v e r n -

ment’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) 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. The

subsequent action and the supplementary order may

be the same document if signed personally by the

appropriate convening or higher authority.

(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.

(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

f i n d i n g s o r o t h e r d i s p o s i t i o n o f e a c h c h a r g e a n d

specification; the sentence, if any; and the action of

the convening authority, or a summary thereof. Supplementary orders shall recite, verbatim, the action

or order of the appropriate authority, or a summary

thereof.

(2) Dates. A promulgating order shall bear the

date of the initial action, if any, of the convening

a u t h o r i t y . A n o r d e r p r o m u l g a t i n g a n a c q u i t t a l , a

c o u r t - m a r t i a l t e r m i n a t e d b e f o r e f i n d i n g s , a c o u r t -

martial resulting in a finding of not guilty only by

reason of lack of mental responsibility of all charges

and specifications, 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.

II-165

R.C.M. 1114(d)
(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.

II-166

R.C.M. 1114(e)
CHAPTER XII. APPEALS AND REVIEW

Rule 1201. Action by the Judge Advocate

General

(a) Cases required to be referred to a Court of

C r i m i n a l A p p e a l s . T h e J u d g e A d v o c a t e G e n e r a l

shall refer to a Court of Criminal Appeals 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 midshipm a n , d i s h o n o r a b l e o r b a d - c o n d u c t d i s c h a r g e , o r

confinement for 1 year or longer; and

(B) The accused has not waived or withdrawn

appellate review.

Discussion

See R.C.M. 1110 concerning waiver or withdrawal of appellate

review.

See also subsection (b)(1) of this rule concerning cases reviewed by the Judge Advocate General which may be referred to

a Court of Criminal Appeals.

See R.C.M. 1203 concerning review by the Court of Criminal Appeals and the powers and responsibilities of the Judge

Advocate General after such review. See R.C.M. 1202 concerning

appellate counsel.

(b) Cases reviewed by the Judge Advocate General.

( 1 ) M a n d a t o r y e x a m i n a t i o n o f c e r t a i n g e n e r a l

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 Criminal Appeals in accordance with R.C.M. 1203. If the case is forwarded

to a Court of Criminal Appeals, the accused shall be

informed and shall have the rights under R.C.M.

1202(b)(2).

Discussion

A case forwarded to a Court of Criminal Appeals under this

subsection is subject to review by the Court of Appeals for the

Armed Forces upon petition by the accused under Article 67(a)(3)

or when certified by the Judge Advocate General under Article

67(a)(2).

(2) Mandatory review of cases forwarded under

R . C . M . 1 1 1 2 ( g ) ( 1 ) . T h e J u d g e A d v o c a t e G e n e r a l

s h a l l r e v i e w e a c h c a s e f o r w a r d e d u n d e r R . C . M .

1112(g)(1). 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,

t h e J u d g e A d v o c a t e G e n e r a l m a y , s u a s p o n t e o r

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 either by a Court of Criminal

Appeals or by the Judge Advocate General under

s u b s e c t i o n ( b ) ( 1 ) o f t h i s r u l e , o n t h e g r o u n d o f

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.

Discussion

See R.C.M. 1210 concerning petition for new trial. Review of a

case by a Judge Advocate General under this subsection is not

part of appellate review within the meaning of Article 76 or

R.C.M. 1209.

Review of a finding of not guilty only by reason of lack of

mental responsibility under this rule may not extend to the determination of lack of mental responsibility. Thus, modification of a

finding of not guilty only by reason of lack of mental responsibility under this rule is limited to changing the finding to not guilty

or not guilty only by reason of lack of mental responsibility of a

lesser included offense.

(B) Procedure. Each Judge Advocate General

shall provide procedures for considering all cases

II-167
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 or the

date the findings are announced for cases which do

not proceed to sentencing, unless the accused establishes good cause for failure to file within that

time.

( 4 ) R e h e a r i n g . I f t h e J u d g e A d v o c a t e G e n e r a l

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 Adv o c a t e G e n e r a l s h a l l o r d e r t h a t t h e c h a r g e s b e

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

m o r e c o m m i s s i o n e d o f f i c e r s a s a p p e l l a t e d e f e n s e

counsel who are qualified under Article 27(b)(1).

(b) Duties.

( 1 ) A p p e l l a t e G o v e r n m e n t c o u n s e l . A p p e l l a t e

G o v e r n m e n t c o u n s e l s h a l l r e p r e s e n t t h e U n i t e d

States before the Court of Criminal Appeals or the

U n i t e d S t a t e s C o u r t o f A p p e a l s f o r t h e A r m e d

Forces when directed to do so by the Judge Advoc a t e G e n e r a l c o n c e r n e d . A p p e l l a t e G o v e r n m e n t

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 Criminal Appeals, the Court of Appeals for the

Armed Forces, 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 Appeals for the

Armed Forces. 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 ext r a o r d i n a r y r e l i e f f r o m a r u l i n g i n f a v o r o f t h e

accused at trial.

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)

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 Criminal Appeals, appellate defense counsel should advise the accused whether the accused should petition for further

review in the United States Court of Appeals for the Armed

Forces and concerning which issues should be raised.

The accused may be represented by civilian counsel before

the Court of Criminal Appeals, the Court of Appeals for the

Armed Forces, 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 Appeals for the Armed

Forces, the accused may apply for a writ of certiorari (see R.C.M.

1 2 0 5 ) , a p p e l l a t e d e f e n s e c o u n s e l s h o u l d a d v i s e t h e a c c u s e d

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

II-168

R.C.M. 1201(b)(3)(B)
to request that the detailed appellate defense counsel be replaced

by another appellate defense counsel.

See also R.C.M. 1204(b)(1) concerning detailing counsel

with respect to the right to petition the Court of Appeals for the

Armed Forces for review.

Rule 1203. Review by a Court of Criminal

Appeals

(a) In general. Each Judge Advocate General shall

establish a Court of Criminal Appeals composed of

appellate military judges.

Discussion

See Article 66 concerning the composition of the Courts of Criminal Appeals, the qualifications of appellate military judges, the

grounds for their ineligibility, and restrictions upon the official

relationship of the members of the court to other members. Uniform rules of court for the Courts of Criminal Appeals prescribed

by the Judge Advocates General.

(b) Cases reviewed by a Court of Criminal Appeals.

A Court of Criminal Appeals shall review cases referred to it by the Judge Advocate General under

R.C.M. 1201(a) or (b)(1).

Discussion

See R.C.M. 1110 concerning withdrawal of a case pending before

a Court of Criminal Appeals.

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 Crimin a l A p p e a l s m a y a c t o n l y w i t h r e s p e c t t o t h e f i n d i n g s a n d

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 Criminal Appeals 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.C.M. 1201, a Court of Criminal Appeals 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 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. Article 59(a).

If a Court of Criminal Appeals 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 Criminal Appeals 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 Criminal Appeals 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 Criminal Appeals for extraordinary relief.

(c) Action on cases reviewed by a Court of Criminal

Appeals.

(1) Forwarding by the Judge Advocate General

to the Court of Appeals for the Armed Forces. The

Judge Advocate General may forward the decision

of the Court of Criminal Appeals to the Court of

A p p e a l s f o r t h e A r m e d F o r c e s f o r r e v i e w w i t h

respect to any matter of law. In such a case, the

Judge Advocate General shall cause a copy of the

decision of the Court of Criminal Appeals and the

order forwarding the case to be served on the accused and on appellate defense counsel. While a

review of a forwarded case is pending, the Secretary

concerned may defer further service of a sentence to

confinement that has been ordered executed in such

a case.

(2) Action when sentence is set aside. In a case

reviewed by it under this rule in which the Court of

Criminal Appeals has set aside the sentence and

which is not forwarded to the Court of Appeals for

the Armed Forces under subsection (c)(1) 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 Criminal

Appeals. If the Court of Criminal Appeals 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 restoration

of rights, privileges, and property. See R.C.M. 1114 concerning

promulgating orders.

(3) Action when sentence is affirmed in whole or

part.

(A) Sentence requiring approval by the PresiII-169

R.C.M. 1203(c)(3)(A)
dent. If the Court of Criminal Appeals affirms any

sentence which includes death, the Judge Advocate

General shall transmit the record of trial and the

decision of the Court of Criminal Appeals directly to

the Court of Appeals for the Armed Forces when

any period for reconsideration provided by the rules

of the Courts of Criminal Appeals has expired.

(B) Other cases. If the Court of Criminal Appeals affirms any sentence other than one which

includes death, the Judge Advocate General shall

cause a copy of the decision of the Court of Criminal Appeals 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 Criminal Appeals, 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)(1) or (3)

of this rule, transmit the record of trial and the

decision of the Court of Criminal Appeals 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.

(5) Action when accused lacks mental capacity.

An appellate authority may not affirm the proceedings while the accused lacks mental capacity to understand and to conduct or cooperate intelligently in

the appellate proceedings. In the absence of substantial evidence to the contrary, the accused is presumed to have the capacity to understand and to

conduct or cooperate intelligently in the appellate

proceedings. If a substantial question is raised as to

the requisite mental capacity of the accused, the

appellate authority may direct that the record be

forwarded to an appropriate authority for an examination of the accused in accordance with R.C.M.

706, but the examination may be limited to determining the accused’s present capacity to understand

and cooperate in the appellate proceedings. The order of the appellate authority will instruct the appropriate authority as to permissible actions that may be

taken to dispose of the matter. If the record is thereafter returned to the appellate authority, the appellate

authority may affirm part or all of the findings or

sentence unless it is established, by a preponderance

of the evidence—including matters outside the record of trial—that the accused does not have the

requisite mental capacity. If the accused does not

have the requisite mental capacity, the appellate authority shall stay the proceedings until the accused

regains appropriate capacity, or take other appropriate action. Nothing in this subsection shall prohibit

the appellate authority from making a determination

in favor of the accused which will result in the

setting aside of a conviction.

(d) Notification to accused.

(1) Notification of decision. The accused shall be

notified of the decision of the Court of Criminal

Appeals in accordance with regulations of the Secretary concerned.

Discussion

The accused may be notified personally, or a copy of the decision

may be sent, after service on appellate counsel of record, if any,

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 the accused’s official service record.

If the Judge Advocate General has forwarded the case to the

Court of Appeals for the Armed Forces, the accused should be so

notified. See subsection (c)(1) of this rule.

(2) Notification of right to petition the Court of

Appeals for the Armed Forces for review. If the

accused has the right to petition the Court of Appeals for the Armed Forces for review, the accused

shall be provided with a copy of the decision of the

Court of Criminal Appeals 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 the Court of Criminal Appeals 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 Appeals for the Armed Forces.

Discussion

See Article 67(c).

See also R.C.M. 1204(b).

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R.C.M. 1203(c)(3)(A)
T h e a c c u s e d m a y p e t i t i o n t h e C o u r t o f A p p e a l s f o r t h e

Armed Forces for review, as to any matter of law, of any decision

of the Court of Criminal Appeals except: (1) a case which was

referred to the Court of Criminal Appeals by the Judge Advocate

General under R.C.M. 1201(b)(1); (2) a case in which the Court

of Criminal Appeals has set aside the sentence; and (3) a case in

which the sentence includes death (because review by the Court

of Appeals for the Armed Forces is mandatory).

The placing of a petition for review in proper military channels divests the Court of Criminal Appeals of jurisdiction over the

case, and jurisdiction is thereby conferred on the Court of Appeals for the Armed Forces. See R.C.M. 1113 concerning action

to be taken if the accused does not file or the Court of Appeals

for the Armed Forces denies a petition for review.

(3) Receipt by the accused—disposition. When the

accused has the right to petition the Court of Appeals for the Armed Forces for review, the receipt of

the accused for the copy of the decision of the Court

of Criminal Appeals, 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 Appeals for the Armed Forces when

required by the court.

(e) Cases not reviewed by the Court of Appeals for

the Armed Forces. If the decision of the Court of

Criminal Appeals is not subject to review by the

Court of Appeals for the Armed Forces, or if the

Judge Advocate General has not forwarded the case

to the Court of Appeals for the Armed Forces and

the accused has not filed or the Court of Appeals for

the Armed Forces has denied a petition for review,

the Judge Advocate General shall—

(1) If the sentence affirmed by the Court of Criminal Appeals includes a dismissal, transmit the record, the decision of the Court of Criminal Appeals,

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 Criminal Appeals 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. 1113(c)(1), may order into execution any

unexecuted sentence affirmed by the Court of Criminal Appeals or take other action, as authorized.

Discussion

See R.C.M. 1113, 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

Government under R.C.M. 908.

Rule 1204. Review by the Court of Appeals

for the Armed Forces

(a) Cases reviewed by the Court of Appeals for the

Armed Forces. Under such rules as it may prescribe,

the Court of Appeals for the Armed Forces shall

review the record in all cases:

(1) In which the sentence, as affirmed by a Court

of Criminal Appeals, extends to death;

(2) Reviewed by a Court of Criminal Appeals

which the Judge Advocate General orders sent to the

Court of Appeals for the Armed Forces for review;

and

(3) Reviewed by a Court of Criminal Appeals,

except those referred to it by the Judge Advocate

General under R.C.M. 1201(b)(1), in which, upon

petition by the accused and on good cause shown,

the Court of Appeals for the Armed Forces has granted a review.

Discussion

See Article 67(a) concerning the composition of the Court of

Appeals for the Armed Forces. In any case reviewed by it, the

Court of Appeals for the Armed Forces 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 Court of

Criminal Appeals. See Article 67(d) and (e). The rules of practice

and procedure before the Court of Appeals for the Armed Forces

are published in the Military Justice Reporter.

The Court of Appeals for the Armed Forces may entertain

petitions for extraordinary relief and may issue all writs necessary

or appropriate in aid of its jurisdiction and agreeable to the usages

and principles of law. Any party may petition the Court of Appeals for the Armed Forces for extraordinary relief. However, in

the interest of judicial economy, such petitions usually should be

filed with and adjudicated before the appropriate Court of Criminal Appeals prior to submission to the Court of Appeals for the

Armed Forces.

(b) Petition by the accused for review by the Court

of Appeals for the Armed Forces.

II-171

R.C.M. 1204(b)
(1) Counsel. When the accused is notified of the

right to forward a petition for review by the Court of

Appeals for the Armed Forces, if requested by the

accused, associate counsel qualified under R.C.M.

502(d)(1) 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 defense at

trial may perform these duties. The counsel detailed to represent

the accused should communicate with the appellate defense counsel representing the accused. See R.C.M. 1202.

( 2 ) F o r w a r d i n g p e t i t i o n . T h e a c c u s e d s h a l l f i l e

any petition for review by the Court of Appeals for

the Armed Forces under subsection (a)(3) of this

r u l e d i r e c t l y w i t h t h e C o u r t o f A p p e a l s f o r t h e

Armed Forces.

Discussion

See Article 67(c) and R.C.M. 1203(d)(2) concerning notifying the

accused of the right to petition the Court of Appeals for the

Armed Forces for review and the time limits for submitting a

petition. See also the rules of the Court of Appeals for the Armed

Forces concerning when the time for filing a petition begins to

run and when a petition is now timely.

(c) Action on decision by the Court of Appeals for

the Armed Forces.

(1) In general. After it has acted on a case, the

Court of Appeals for the Armed Forces may direct

the Judge Advocate General to return the record to

the Court of Criminal Appeals 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.

Discussion

See R.C.M. 1114 concerning final orders in the case. See also

R.C.M. 1206 and Article 74(a).

(2) Sentence requiring approval of the President.

( A ) I f t h e C o u r t o f A p p e a l s f o r t h e A r m e d

Forces has affirmed a sentence that 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 Criminal Appeals, the decision of the Court of Appeals for the

Armed Forces, and the recommendation of the Judge

Advocate General to the Secretary concerned.

(B) If the Secretary concerned is the Secretary

of a military department, the Secretary concerned

shall forward the material received under paragraph

(A) to the Secretary of Defense, together with the

r e c o m m e n d a t i o n o f t h e S e c r e t a r y c o n c e r n e d . T h e

Secretary of Defense shall forward the material, with

the recommendation of the Secretary concerned and

the recommendation of the Secretary of Defense, to

the President for the action of the President.

(C) If the Secretary concerned is the Secretary

of Homeland Security, the Secretary concerned shall

forward the material received under paragraph (A) to

the President, together with the recommendation of

t h e S e c r e t a r y c o n c e r n e d , f o r t h e a c t i o n o f t h e

President.

Discussion

See Article 71(a) and R.C.M. 1207.

(3) Sentence requiring approval of the Secretary

concerned. If the Court of Appeals for the Armed

Forces has affirmed 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)(1).

Discussion

See Article 71(b) and R.C.M. 1206.

( 4 ) D e c i s i o n s u b j e c t t o r e v i e w b y t h e S u p r e m e

Court. If the decision of the Court of Appeals for

t h e A r m e d F o r c e s i s s u b j e c t t o r e v i e w b y t h e

Supreme Court, the Judge Advocate General shall

take no action under subsections (c)(1), (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

II-172

R.C.M. 1204(b)(1)
shall take action under subsection (c)(1), (2), or (3).

If the Supreme Court grants a writ of certiorari, the

J u d g e A d v o c a t e G e n e r a l s h a l l t a k e a c t i o n u n d e r

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 Appeals for the Armed Forces may

be reviewed by the Supreme Court by writ of certiorari in the following cases:

(1) Cases reviewed by the Court of Appeals for

the Armed Forces under Article 67(b)(1);

(2) Cases certified to the Court of Appeals for the

Armed Forces by the Judge Advocate General under

Article 67(b)(2);

(3) Cases in which the Court of Appeals for the

Armed Forces granted a petition for review under

Article 67(b)(3); and

(4) Cases other than those described in subsections (a)(1), (2), and (3) of this rule in which the

Court of Appeals for the Armed Forces granted relief.

The Supreme Court may not review by writ of

certiorari any action of the Court of Appeals for the

Armed Forces 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 Appeals for the Armed Forces 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 ) I n g e n e r a l . T h e S e c r e t a r y c o n c e r n e d a n d ,

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 administ r a t i v e d i s c h a r g e f o r a d i s c h a r g e o r d i s m i s s a l

executed in accordance with the sentence of a courtmartial.

(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.

Rule 1207. Sentences requiring approval by

the President

No part of a court-martial sentence extending to

d e a t h m a y b e e x e c u t e d u n t i l a p p r o v e d b y t h e

President.

Discussion

See Article 71(a). See also R.C.M. 1203 and 1204 concerning

review by the Court of Criminal Appeals and Court of Appeals

for the Armed Forces in capital cases.

Rule 1208. Restoration

(a) New trial. All rights, privileges, and property

affected by an executed portion of a court-martial

sentence—except 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

a n d s e n t e n c e a t t h e n e w t r i a l . O r d i n a r i l y , a c t i o n

taken under this subsection shall be announced in

II-173

R.C.M. 1208(a)
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-mart i a l o r d e r p r o m u l g a t i n g t h e f i n a l r e s u l t s o f t h e

proceedings.

Discussion

See R.C.M. 1114 concerning promulgating orders.

Rule 1209. Finality of courts-martial

(a) When a conviction is final. A court-martial conviction is final when:

(1) Review is completed by a Court of Criminal

Appeals and—

(A) The accused does not file a timely petition

for review by the Court of Appeals for the Armed

Forces 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 Appeals for the Armed

Forces; or

(C) Review is completed in accordance with

the judgment of the Court of Appeals for the Armed

Forces and—

(i) A petition for a writ of certiorari is not

f i l e d w i t h i n t h e t i m e l i m i t s p r e s c r i b e d b y t h e

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 subject

to review by a Court of Criminal Appeals, the Court of Appeals

for the Armed Forces, and the Supreme Court. See also R.C.M.

1110.

(2) In cases not reviewed by a Court of Criminal

Appeals—

(A) The findings and sentence have been found

legally sufficient by a judge advocate and, when

action 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. 1112(g)(1) or 1201(b)(1).

(b) Effect of finality. The appellate review of records of trial provided by the code, the proceedings,

f i n d i n g s , a n d s e n t e n c e s o f c o u r t s - m a r t i a l a s a p -

proved, 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

t h e p r o c e e d i n g s o f c o u r t s - m a r t i a l a n d a l l a c t i o n

t a k e n p u r s u a n t t o t h o s e p r o c e e d i n g s a r e b i n d i n g

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 courtmartial. A petition may not be submitted after the

death of the accused. A petition for a new trial of

the facts may not be submitted on the basis of newly

discovered evidence when the petitioner was found

guilty of the relevant offense pursuant to a guilty

plea.

(b) Who may petition. A petition for a new trial may

II-174

R.C.M. 1208(a)
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 Criminal Appeals or the

Court of Appeals for the Armed Forces, 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 persons who, at the time

of trial and sentence from which the petitioner seeks

relief, were members of the Coast Guard, and who,

and who were 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.

(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 ) T h e e v i d e n c e w a s d i s c o v e r e d a f t e r t h e

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 pertin e n t e v i d e n c e , w o u l d p r o b a b l y p r o d u c e a

substantially more favorable result for the accused.

( 3 ) F r a u d o n c o u r t - m a r t i a l . N o f r a u d o n t h e

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 granting

a new trial are: confessed or proved perjury in testimony or

forgery of documentary evidence which clearly had a substantial

contributing effect on a finding of guilty and without which there

probably would not have been a finding of guilty of the offense;

willful concealment by the prosecution from the defense of evidence favorable to the defense which, if presented to the courtmartial, would probably have resulted in a finding of not guilty;

and willful concealment of a material ground for challenge of the

military judge or any member or of the disqualification of counsel

or the convening authority, when the basis for challenge or disqualification was not known to the defense at the time of trial (

see R.C.M. 912).

(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 Criminal Appeals; Court of Appeals

for the Armed Forces. The Courts of Criminal App e a l s a n d t h e C o u r t o f A p p e a l s f o r t h e A r m e d

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R.C.M. 1210(g)(2)
Forces 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

J u d g e A d v o c a t e G e n e r a l . I f t h e J u d g e A d v o c a t e

G e n e r a l b e l i e v e s m e r i t o r i o u s g r o u n d s f o r r e l i e f

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 Criminal Appeals, 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.

Discussion

See also R.C.M. 810 concerning additional special rules which

apply at a new trial. In other respects a new trial is conducted like

any other court-martial.

(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 courtsmartial.

( 5 ) C o u r t - m a r t i a l o r d e r s . C o u r t - m a r t i a l o r d e r s

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. 1114.

Discussion

See Article 75 and R.C.M. 1208 concerning restoration of rights

when the executed portion of a sentence is not sustained in a new

trial or action following it.

(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

c r e d i t t h e a c c u s e d w i t h a n y e x e c u t e d p o r t i o n o r

amount of the original sentence included in the new

sentence in computing the term or amount of puni s h m e n t a c t u a l l y t o b e e x e c u t e d p u r s u a n t t o t h e

sentence.

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R.C.M. 1210(g)(2)
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. Summary courts-martial

shall be conducted in accordance with the regulations of the military service to which the accused

belongs. Whenever practicable, a summary courtmartial 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 courtm a r t i a l i s t o p r o m p t l y a d j u d i c a t e m i n o r o f f e n s e s

under a simple procedure. The summary court-mart i a l s h a l l t h o r o u g h l y a n d i m p a r t i a l l y i n q u i r e i n t o

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

p e r s o n o n f a c t u a l c o n c l u s i o n s w h i c h s h o u l d b e

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 1e, Part V.

( c ) J u r i s d i c t i o n . S u b j e c t t o C h a p t e r I I , s u m m a r y

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, dism i s s a l , d i s h o n o r a b l e o r b a d - c o n d u c t d i s c h a r g e ,

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 summary

court-martial is confinement for 30 days, forfeiture of two-thirds

pay per month for one month, and reduction to the lowest pay

grade. See subsection (2) below for additional limits on enlisted

persons serving in pay grades above the fourth enlisted pay grade.

A summary court-martial may not suspend all or part of a

sentence, although the summary court-martial may recommend to

the convening authority that all or part of a sentence be suspended. If a sentence includes both reduction in grade and forfeitures, the maximum forfeiture is calculated at the reduced pay

grade. See also R.C.M. 1003 concerning other punishments which

may be adjudged, the effects of certain types of punishment, and

combination of certain types of punishment. The summary courtmartial should ascertain the effect of Article 58a in that armed

force.

(2) Limitations—pay grade. In the case of enlisted

members above the fourth enlisted pay grade, summary 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 the fifth

enlisted pay grade who is reduced to the fourth enlisted pay grade

by the summary court-martial.

(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 unII-177
r e a s o n a b l y d e l a y t h e p r o c e e d i n g s a n d i f m i l i t a r y

exigencies do not preclude it.

Discussion

Neither the Constitution nor any statute establishes any right to

counsel at summary courts-martial. Therefore, it is not error to

deny an accused the opportunity to be represented by counsel at a

summary court-martial. However, appearance of counsel is not

prohibited. The detailing authority may, as a matter of discretion,

detail, or otherwise make available, a military attorney to represent the accused at a summary court-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 prosecution and the defense pursuant to the standards in R.C.M. 703.

The summary court-martial rules on any request by the accused

for witnesses or evidence in accordance with the procedure in

R.C.M. 703(c) and (f).

(g) Secretarial limitations. The Secretary concerned

may prescribe procedural or other rules for summary

courts-martial not inconsistent with this Manual or

the code.

Rule 1302. Convening a summary courtmartial

(a) Who may convene summary courts-martial. Unless limited by competent authority summary courtsmartial 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

a u t h o r i t y w i t h a r e c o m m e n d a t i o n t o c o n v e n e t h e

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

III and IV of this Part have been satisfied, summary

courts-martial 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.

Discussion

When the convening authority is the summary court-martial because the convening authority is the only commissioned officer

present with the command or detachment, see R.C.M. 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

d e m a n d e d t r i a l b y c o u r t - m a r t i a l f o r t h e s a m e

offenses.

Discussion

If the accused objects to trial by summary court-martial, the

convening authority may dispose of the case in accordance with

R.C.M. 401.

Rule 1304. Trial procedure

(a) Pretrial duties.

(1) Examination of file. 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 accused

which are maintained locally and are immediately available. “Allied papers” in a summary court-martial include convening orders,

investigative reports, correspondence relating to the case, and

witness statements.

( 2 ) R e p o r t o f i r r e g u l a r i t y . T h e s u m m a r y c o u r t -

martial shall report to the convening authority any

II-178

R.C.M. 1301(e)
substantial irregularity in the charge sheet, allied

papers, or personnel records.

Discussion

The summary court-martial should examine the charge sheet, allied papers, and personnel records to ensure that they are comp l e t e a n d f r e e f r o m e r r o r s o r o m i s s i o n s w h i c h m i g h t a f f e c t

a d m i s s i b i l i t y . T h e s u m m a r y c o u r t - m a r t i a l s h o u l d c h e c k t h e

charges and specifications to ensure that each alleges personal

jurisdiction over the accused (see R.C.M. 202) and an offense

under the code ( see R.C.M. 203 and Part IV). Substantial defects

or errors in the charges and specifications must be reported to the

convening authority, since such defects cannot be corrected except by preferring and referring the affected charge and specification anew in proper form. A defect or error is substantial if

correcting it would state an offense not otherwise stated, or include an offense, person, or matter not fairly included in the

specification as preferred. See subsection (3) below concerning

minor errors.

( 3 ) C o r r e c t i o n a n d a m e n d m e n t . T h e s u m m a r y

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 . 1 3 0 4 ( a ) , t h e s u m m a r y c o u r t - m a r t i a l s h a l l

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;

(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 courtm a r t i a l w i l l n o t c o n s i d e r a n y m a t t e r s , i n c l u d i n g

statements previously made by the accused to the

officer detailed as summary court-martial unless adm i t t e d i n a c c o r d a n c e w i t h t h e M i l i t a r y R u l e s o f

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 crossexamine witnesses on behalf of the accused;

(J) The accused’s right to call witnesses and

produce evidence with the assistance of the summary court-martial 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 courtmartial 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 ) O b j e c t i o n t o t r i a l . T h e s u m m a r y c o u r t -

martial shall give the accused a reasonable period of

time to decide whether to object to trial by summary

c o u r t - m a r t i a l . T h e s u m m a r y c o u r t - m a r t i a l s h a l l

thereafter record the response. If the accused objects

t o t r i a l b y s u m m a r y c o u r t - m a r t i a l , t h e s u m m a r y

c o u r t - m a r t i a l s h a l l r e t u r n t h e c h a r g e s h e e t , a l l i e d

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)(1) 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 acII-179

R.C.M. 1304(b)(2)(C)
cused, 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

t o a n y o f f e n s e , t h e s u m m a r y c o u r t - m a r t i a l s h a l l

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 cann o t b e r e s o l v e d , t h e s u m m a r y c o u r t - m a r t i a l s h a l l

enter not guilty pleas as to the affected charges and

specifications.

(iv) No plea. If the accused refuses to plead,

t h e s u m m a r y c o u r t - m a r t i a l s h a l l e n t e r n o t g u i l t y

pleas.

(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 III)

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.

( i i i ) W i t n e s s e s f o r t h e p r o s e c u t i o n s h a l l b e

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 ) T h e s u m m a r y c o u r t - m a r t i a l s h a l l a p p l y

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.

( i i i ) I f t h e s e n t e n c e i n c l u d e s c o n f i n e m e n t ,

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 convening authority, the summary court-martial should ensure that the

immediate commanding officer is informed of the findings, sentence, and any recommendations pertaining thereto. See R.C.M.

1101 concerning post-trial confinement.

Rule 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.

II-180

R.C.M. 1304(b)(2)(C)
Discussion

See Appendix 15 for a sample of a Record of Trial by Summary

Court-Martial (DD Form 2329).

Any petition submitted under R.C.M. 1306(a) should be appended to the record of trial.

(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

court-martial, a notation to that effect;

(2) The fact that the accused was advised of the

matters set forth in R.C.M. 1304(b)(1);

(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 the original record

of trial.

Discussion

“ A u t h e n t i c a t i o n ” m e a n s a t t e s t i n g t h a t t h e r e c o r d a c c u r a t e l y

reports the proceedings. See R.C.M. 1104(a).

(d) 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.

(B) 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 summ a r y c o u r t - m a r t i a l , R . C . M . 1 1 0 4 ( b ) ( 1 ) ( D ) s h a l l

apply.

(2) Forwarding to the convening authority. The

original and one copy of the record of trial shall be

forwarded to the convening authority after compliance with subsection (d)(1) of this rule.

( 3 ) F u r t h e r d i s p o s i t i o n . A f t e r c o m p l i a n c e w i t h

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

n o t t a k e a c t i o n b e f o r e t h e p e r i o d p r e s c r i b e d i n

R.C.M. 1105(c)(2) has expired, unless the right to

s u b m i t m a t t e r s h a s b e e n w a i v e d u n d e r 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 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 ) S u b s e q u e n t a c t i o n . A n y a c t i o n t a k e n o n 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,

t h e o r i g i n a l r e c o r d o f t h e s u m m a r y c o u r t - m a r t i a l

shall be reviewed by a judge advocate in accordance

with R.C.M. 1112.

(d) Review by the Judge Advocate General. The acII-181

R.C.M. 1306(d)
cused 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).

II-182

R.C.M. 1306(d)
PART III

MILITARY RULES OF EVIDENCE

SECTION I

GENERAL PROVISIONS

Rule 101. Scope

( a ) A p p l i c a b i l i t y . T h e s e r u l e s a r e a p p l i c a b l e i n

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 ) S e c o n d , w h e n n o t i n c o n s i s t e n t w i t h s u b -

division(b)(1), the rules of evidence at common law.

(c) Rule of construction. Except as otherwise provided in these rules, the term “military judge” inc l u d e s t h e p r e s i d e n t o f a s p e c i a l c o u r t - m a r t i a l

without a military judge and a summary court-martial officer.

Rule 102. Purpose and construction

These rules shall be construed to secure fairness

i n a d m i n i s t r a t i o n , e l i m i n a t i o n o f u n j u s t i f i a b l e e x -

pense and delay, and promotion of growth and development of the law of evidence to the end that the

t r u t h m a y b e a s c e r t a i n e d a n d p r o c e e d i n g s j u s t l y

determined.

Rule 103. Ruling 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. Once the military judge makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not

renew an objection or offer of proof to preserve a

claim of error for appeal. The standard provided in

this subdivision does not apply to errors involving

r e q u i r e m e n t s i m p o s e d b y t h e C o n s t i t u t i o n o f t h e

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

w a s o f f e r e d , t h e o b j e c t i o n m a d e , a n d t h e r u l i n g

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 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 ) R e l e v a n c y c o n d i t i o n e d o n f a c t . W h e n t h e

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 eviIII-1
dence 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 ) H e a r i n g o f m e m b e r s . E x c e p t i n c a s e s t r i e d

b e f o r e a s p e c i a l c o u r t - m a r t i a l w i t h o u t a m i l i t a r y

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

W h e n a w r i t i n g o r r e c o r d e d s t a t e m e n t o r p a r t

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

a c c u r a t e a n d r e a d y d e t e r m i n a t i o n b y r e s o r t t o

s o u r c e s w h o s e a c c u r a c y c a n n o t r e a s o n a b l y b e

questioned.

( c ) W h e n d i s c r e t i o n a r y . T h e m i l i t a r y j u d g e m a y

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 ) O p p o r t u n i t y t o b e h e a r d . A p a r t y i s e n t i t l e d

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 fact that is of consequence to the determination of the action, the procedural requirements of

Mil. R. Evid. 201—except Mil. R. Evid. 201(g)—

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 III

EXCLUSIONARY RULES AND RELATED

MATTERS CONCERNING SELFINCRIMINATION, SEARCH AND SEIZURE,

AND EYEWITNESS IDENTIFICATION

III-2

M.R.E. 104(b)
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

t h e i n d i v i d u a l a s s e r t i n g t h e p r i v i l e g e s h a l l b e

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 incrimin a t e t h e w i t n e s s a n d t h a t a n y s e l f - i n c r i m i n a t i n g

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 making 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) Notification 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

q u e s t i o n w i t h o u t h a v i n g a s s e r t e d t h e p r i v i l e g e

against self-incrimination and thereby admits a selfincriminating 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 crossexamined as to guilt or innocence 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) Effect 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.

III-3

M.R.E. 301(f)(2)
(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 req u e s t e d t h a t t h e q u e s t i o n i n g b e t e r m i n a t e d i s

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

a n y d e r i v a t i v e e v i d e n c e o b t a i n e d t h r o u g h u s e o f

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 ) N o n c o m p l i a n c e b y t h e a c c u s e d . T h e m i l i t a r y

judge may prohibit an accused who refuses to coope r a t e i n a m e n t a l e x a m i n a t i o n a u t h o r i z e d u n d e r

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. Except as provided in subsection

(b), an involuntary statement or any derivative evidence therefrom may not be received in evidence

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) Exceptions.

(1) Where the statement is involuntary only in

terms of noncompliance with the requirements of

Mil. R. Evid. 305(c) or 305(f), or the requirements

c o n c e r n i n g c o u n s e l u n d e r M i l . R . E v i d . 3 0 5 ( d ) ,

305(e), and 305(g), this rule does not prohibit use of

the statement to impeach by contradiction the incourt 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.

(2) Evidence that was obtained as a result of an

involuntary statement may be used when the evidence would have been obtained even if the involuntary statement had not been made.

( 3 ) D e r i v a t i v e e v i d e n c e . E v i d e n c e t h a t i s c h a l -

lenged 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

statement was made voluntarily, that the evidence

was not obtained by use of the statement, or that the

III-4

M.R.E. 301(f)(3)
evidence would have been obtained even if the statement had not been made.

(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 fallingshort of an acknowledgment

of guilt, even if it was intended by its maker to be

exculpatory.

(3) Involuntary. A statement is “involuntary” if it

i s o b t a i n e d i n v i o l a t i o n o f t h e s e l f - i n c r i m i n a t i o n

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) Effect of guilty plea. Except as otherwise exp r e s s l y p r o v i d e d i n R . C . M . 9 1 0 ( a ) ( 2 ) , a p l e a o f

guilty to an offense that results in a finding of guilty

waives all privileges against self-incrimination and

a l l m o t i o n s a n d o b j e c t i o n s u n d e r t h i s r u l e w i t h

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.

(1) 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 statem e n t a s i t d e s e r v e s u n d e r a l l t h e c i r c u m s t a n c e s .

When trial is by military judge without members,

the military judge shall determine the appropriate

weight to give the statement.

III-5

M.R.E. 304(e)(2)
( 3 ) D e r i v a t i v e e v i d e n c e . E v i d e n c e t h a t i s c h a l -

lenged 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

statement was made voluntarily, that the evidence

was not obtained by use of the statement, or that the

evidence would have been obtained even if the statement had not been made.

(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 corroborates

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 independe n t e v i d e n c e n e c e s s a r y t o e s t a b l i s h c o r r o b o r a t i o n

need not be sufficient of itself to establish beyond a

reasonable doubt the truth of facts stated in the adm i s s i o n o r c o n f e s s i o n . T h e i n d e p e n d e n t e v i d e n c e

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

w e i g h t , i f a n y , t o b e g i v e n t o t h e a d m i s s i o n o r

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 acc u s e d , t h e d e f e n s e , b y c r o s s - e x a m i n a t i o n o r

otherwise, may introduce the remaining portions of

the statement.

( 3 ) C e r t a i n a d m i s s i o n s b y s i l e n c e . A p e r s o n ’ 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.

(4) Refusal to obey order to submit body substance. If an accused refuses a lawful order to submit for chemical analysis a sample of his or her

blood, breath, urine or other body substance, evidence of such refusal may be admitted into evidence

on:

(A) A charge of violating an order to submit

such a sample; or

(B) Any other charge on which the results of

the chemical analysis would have been admissible.

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) Definitions. As used in this rule:

(1) Person subject to the code. A “person subject

to the code” includes a person acting as a knowing

III-6

M.R.E. 304(e)(3)
agent of a military unit or of a person subject to the

code.

( 2 ) I n t e r r o g a t i o n . “ I n t e r r o g a t i o n ” i n c l u d e s a n y

formal or informal questioning in which an incriminating response either is sought or is a reasonable

consequence of such questioning.

( c ) W a r n i n g s c o n c e r n i n g t h e a c c u s a t i o n , r i g h t t o

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 the agent of such a person, the interrogation is conducted subsequent to the preferral of

charges, and the interrogation concerns the offenses

or matters that were the subject of the preferral of

the charges.

(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) Presence of Counsel.

( 1 ) C u s t o d i a l i n t e r r o g a t i o n . A b s e n t a v a l i d

waiver of counsel under subdivision (g)(2)(B), when

an accused or person suspected of an offense is

subjected to custodial interrogation under circumstances described under subdivision (d)(1)(A) of this

rule, and the accused or suspect requests counsel,

counsel must be present before any subsequent custodial interrogation may proceed.

(2) Post-preferral interrogation. Absent a valid

waiver of counsel under subdivision (g)(2)(C), when

an accused or person suspected of an offense is

subjected to interrogation under circumstances described in subdivision (d)(1)(B) of this rule, and the

accused or suspect either requests counsel or has an

appointed or retained counsel, counsel must be present before any subsequent interrogation concerning

that offense may proceed.

(f) Exercise of rights.

(1) The privilege against self-incrimination. If a

person chooses to exercise the privilege against selfincrimination under this rule, questioning must cease

immediately.

(2) The right to counsel. If a person subjected to

interrogation under the circumstances described in

subdivision (d)(1) of this rule chooses to exercise

the right to counsel, questioning must cease until

counsel is present.

(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 or she understands the rights

involved, affirmatively decline the right to counsel

and affirmatively consent to making a statement.

(2) Counsel.

(A) If the right to counsel in subdivision (d) is

applicable and the accused or suspect does not decline affirmatively the right to counsel, the prosecuIII-7

M.R.E. 305(g)(2)(A)
tion must demonstrate by a preponderance of the

e v i d e n c e t h a t t h e i n d i v i d u a l w a i v e d t h e r i g h t t o

counsel.

(B) If an accused or suspect interrogated under

circumstances described in subdivision (d)(1)(A) requests counsel, any subsequent waiver of the right to

c o u n s e l o b t a i n e d d u r i n g a c u s t o d i a l i n t e r r o g a t i o n

concerning the same or different offenses is invalid

unless the prosecution can demonstrate by a preponderance of the evidence that—

(i) the accused or suspect initiated the communication leading to the waiver; or

( i i ) t h e a c c u s e d o r s u s p e c t h a s n o t c o n -

tinuously had his or her freedom restricted by confinement, or other means, during the period between

the request for counsel and the subsequent waiver.

(C) If an accused or suspect interrogated under

circumstances described in subdivision (d)(1)(B) requests counsel, any subsequent waiver of the right to

counsel obtained during an interrogation concerning

the same offenses is invalid unless the prosecution

can demonstrate by a preponderance of the evidence

that the accused or suspect initiated the communication leading to the waiver.

(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 warning 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

U n i t e d S t a t e s d i s t r i c t c o u r t s i n v o l v i n g s i m i l a r

interrogations.

( 2 ) F o r e i g n i n t e r r o g a t i o n s . N e i t h e r w a r n i n g s

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)(1). 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)(1) 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 311. 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) Exceptions.

(1) Evidence that was obtained as a result of an

unlawful search or seizure may be used to impeach

b y c o n t r a d i c t i o n t h e i n - c o u r t t e s t i m o n y o f t h e

accused.

(2) Evidence that was obtained as a result of an

unlawful search or seizure may be used when the

evidence would have been obtained even if such

unlawful search or seizure had not been made.

III-8

M.R.E. 305(g)(2)(A)
(3) Evidence that was obtained as a result of an

unlawful search or seizure may be used if:

(A) The search or seizure resulted from an authorization to search, seize or apprehend issued by

an individual competent to issue the authorization

under Mil. R. Evid. 315(d) or from a search warrant

o r a r r e s t w a r r a n t i s s u e d b y c o m p e t e n t c i v i l i a n

authority;

(B) The individual issuing the authorization or

warrant had a substantial basis for determining the

existence of probable cause; and

(C) The officials seeking and executing the aut h o r i z a t i o n o r w a r r a n t r e a s o n a b l y a n d w i t h g o o d

faith relied on the issuance of the authorization or

warrant. Good faith shall be determined on an objective standard.

(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

t h e U n i t e d S t a t e s a s a p p l i e d t o m e m b e r s o f t h e

armed forces, an Act of Congress applicable to trials

by court-martial that requires exclusion of evidence

o b t a i n e d i n v i o l a t i o n t h e r e o f , o r M i l . R . E v i d .

312–317;

(2) Other officials. 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) Officials of a foreign government. Officials of

a foreign government or their agents and was obtained as a result of a foreign search or seizure

w h i c h s u b j e c t e d t h e a c c u s e d t o g r o s s a n d b r u t a l

m a l t r e a t m e n t . A s e a r c h o r s e i z u r e i s n o t “ p a r -

ticipated 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)(1), 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 intere s t s o f j u s t i c e , i n c l u d i n g a u t h o r i z a t i o n f o r t h e

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.

III-9

M.R.E. 311(e)
(1) In general. When an 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, that the evidence would have been

obtained even if the unlawful search or seizure had

not been made, or that the evidence was obtained by

officials who reasonably and with good faith relied

on the issuance of an authorization to search, seize,

o r a p p r e h e n d o r a s e a r c h w a r r a n t o r a n a r r e s t

warrant.

( 2 ) D e r i v a t i v e e v i d e n c e . E v i d e n c e t h a t i s c h a l -

lenged 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, that the evidence ultimately would

have been obtained by lawful means even if the

unlawful search or seizure had not been made, or

that the evidence was obtained by officials who reasonably and with good faith relied on the issuance of

an authorization to search, seize or apprehend or a

search warrant or an arrest warrant. Notwithstanding

other provisions of this Rule, an apprehension made

in a dwelling in a manner that violates R.C.M. 302

(d)(2) and (e) does not preclude the admission into

e v i d e n c e o f a s t a t e m e n t o f a n i n d i v i d u a l a p p r e -

hended provided (1) that the apprehension was based

on probable cause, (2) that the statement was made

subsequent to the apprehension at a location outside

the dwelling, and (3) that the statement was otherwise in compliance with these rules.

(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.

(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 ) S c o p e o f m o t i o n s a n d o b j e c t i o n s c h a l l e n g i n g

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 authorizat i o n w a s n o t b a s e d u p o n p r o b a b l e c a u s e , t h e

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 subs t a n t i a l p r e l i m i n a r y s h o w i n g t h a t a g o v e r n m e n t

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

p r e p o n d e r a n c e o f t h e e v i d e n c e t h e a l l e g a t i o n o f

knowing and intentional falsity or reckless disregard

for the truth. If the defense meets its burden, the

prosecution has the burden of proving by a preponderance of the evidence, with the false information

set aside, that the remaining information presented

to the authorizing officer is sufficient to establish

probable cause. If the prosecution does not meet its

burden, the objection or motion shall be granted

unless the search is otherwise lawful under these

rules.

(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

j u d g e m u s t i n s t r u c t t h e m e m b e r s t o d i s r e g a r d

evidence.

(i) Effect of guilty plea. Except as otherwise exp r e s s l y p r o v i d e d i n R . C . M . 9 1 0 ( a ) ( 2 ) , a p l e a o f

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 the offense whether or

not raised prior to plea.

III-10

M.R.E. 311(e)(1)
Rule 312. Body views and intrusions

( a ) G e n e r a l r u l e . E v i d e n c e o b t a i n e d f r o m b o d y

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 ) C o n s e n s u a l . V i s u a l e x a m i n a t i o n o f t h e u n -

clothed 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 unc l o t h e d b o d y , i n c l u d i n g a v i s u a l e x a m i n a t i o n o f

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 necessary to maintain the security of the

institution or its personnel; searches incident to lawful apprehension under Mil. R. Evid. 314(g); emerg e n c y s e a r c h e s u n d e r M i l . R . E v i d . 3 1 4 ( i ) ; a n d

probable cause searches under Mil. R. Evid. 315. An

examination 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. 311.

(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:

(1) For purposes of seizure. When there is a clear

indication that weapons, contraband, or other evidence or crime is present, to remove weapons, cont r a b a n d , o r e v i d e n c e o f c r i m e d i s c o v e r e d u n d e r

subdivisions (b) and (c)(2) of this rule or under Mil.

R. Evid. 316(d)(4)(C) if such intrusion is made in a

r e a s o n a b l e f a s h i o n b y a p e r s o n w i t h a p p r o p r i a t e

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 authorizat i o n , n o t w i t h s t a n d i n g M i l . R . E v i d . 3 1 5 ( g ) , o n l y

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 qualifications. The Secretary concerned

may prescribe appropriate medical qualifications for

III-11

M.R.E. 312(g)
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 examin a t i o n c o n d u c t e d a t e n t r a n c e a n d e x i t p o i n t s ,

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

o f r e a d i n e s s , s e a o r a i r w o r t h i n e s s , s a n i t a t i o n a n d

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 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 relev a n t a n d n o t o t h e r w i s e i n a d m i s s i b l e u n d e r t h e s e

rules.

(b) Border searches. Border searches for customs or

immigration purposes may be conducted when authorized by Act of Congress.

( c ) S e a r c h e s u p o n e n t r y t o o r e x i t f r o m U n i t e d

States installations, aircraft, and vessels abroad. In

a d d i t i o n t o t h e a u t h o r i t y t o c o n d u c t i n s p e c t i o n s

u n d e r M i l . R . E v i d . 3 1 3 ( b ) , a c o m m a n d e r o f 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. 311. A search

made for the primary purpose of obtaining evidence

for use in a trial by court-martial or other disciplin a r y p r o c e e d i n g i s n o t a u t h o r i z e d b y t h i s

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

III-12

M.R.E. 312(g)
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

v o l u n t a r i n e s s , t h e p r o s e c u t i o n i s n o t r e q u i r e d t o

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

consent, but it does not affect the burden of proof.

(f) Searches incident to a lawful stop.

( 1 ) S t o p s . A p e r s o n a u t h o r i z e d t o a p p r e h e n d

under R.C.M. 302(b) and others performing law enforcement 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 ) M o t o r v e h i c l e s . W h e n a p e r s o n l a w f u l l y

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,

a n d c o n t a i n e r s w i t h i n t h e p a s s e n g e r c o m p a r t m e n t

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.

(A) When an apprehension takes place at a location in which other persons might be present who

might endanger those conducting the apprehension

and others in the area of the apprehension, a reasonable examination may be made of the general area in

which such other persons might be located. A reasonable examination under this rule is permitted if

the apprehending officials have a reasonable suspicion based on specific and articulable facts that the

area to be examined harbors an individual posing a

danger to those in the area of the apprehension.

(B) Apprehending officials may, incident to apprehension, as a precautionary matter and without

probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place

of apprehension from which an attack could be immediately launched.

(h) Searches within jails, confinement facilities, or

similar facilities. Searches within jails, confinement

III-13

M.R.E. 314(h)
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

o f o p e n f i e l d s o r w o o d l a n d s i s n o t a n u n l a w f u l

search within the meaning of Mil. R. Evid. 311.

(k) Other searches. A search of a type not otherwise

i n c l u d e d i n t h i s r u l e a n d n o t r e q u i r i n g p r o b a b l e

cause under Mil. R. Evid. 315 may be conducted

w h e n p e r m i s s i b l e u n d e r t h e C o n s t i t u t i o n o f t h e

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;

( 2 ) M i l i t a r y p r o p e r t y . M i l i t a r y p r o p e r t y o f t h e

United States or of nonappropriated fund activities

of an armed force of the United States wherever

located;

(3) Persons and property 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 app r o p r i a t e r e p r e s e n t a t i v e o f t h e a g e n c y c o n c e r n e d .

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

a p p r o p r i a t e r e p r e s e n t a t i v e o f t h e f o r e i g n c o u n t r y

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. 311.

(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

i f a u t h o r i z e d u n d e r r e g u l a t i o n s p r e s c r i b e d b y t h e

Secretary of Defense or the Secretary concerned. An

otherwise impartial authorizing official does not lose

the character merely because he or she is present at

the scene of a search or is otherwise readily availab l e t o p e r s o n s w h o m a y s e e k t h e i s s u a n c e o f a

search authorization; nor does such an official lose

i m p a r t i a l c h a r a c t e r m e r e l y b e c a u s e t h e o f f i c i a l

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.

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M.R.E. 314(h)
( e ) P o w e r t o s e a r c h . A n y c o m m i s s i o n e d o f f i c e r ,

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

s u c h p e r s o n , m a y c o n d u c t o r a u t h o r i z e a s e a r c h

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 ) W r i t t e n s t a t e m e n t s c o m m u n i c a t e d t o t h e

authorizing officer;

( B ) O r a l s t a t e m e n t s c o m m u n i c a t e d t o t h e

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 Secret a r y o f D e f e n s e o r t h e S e c r e t a r y c o n c e r n e d m a y

prescribe additional requirements.

(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

v e h i c l e w a s n o t f u n c t i o n a l f o r p u r p o s e s o f

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. 311.

(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. 311.

(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 ) S e a r c h w a r r a n t s . A n y c i v i l i a n o r m i l i t a r y

c r i m i n a l i n v e s t i g a t o r a u t h o r i z e d t o r e q u e s t s e a r c h

warrants pursuant to applicable law or regulation is

authorized to serve and execute search warrants. The

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M.R.E. 315(h)(4)
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 ) S e i z u r e o f p r o p e r t y . P r o b a b l e c a u s e t o s e i z e

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 ) A p p r e h e n s i o n . A p p r e h e n s i o n i s g o v e r n e d b y

R.C.M. 302.

(d) Seizure of property or evidence.

( 1 ) A b a n d o n e d p r o p e r t y . A b a n d o n e d p r o p e r t y

may be seized without probable cause and without a

search warrant or search authorization. Such seizure

may be made by any person.

(2) Consent. Property or evidence may be seized

with consent consistent with the requirements applicable to consensual searches under Mil. R. Evid.

314.

( 3 ) G o v e r n m e n t p r o p e r t y . G o v e r n m e n t p r o p e r t y

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 ) E x i g e n t c i r c u m s t a n c e s . T h e p e r s o n h a s

probable cause to seize the property or evidence and

u n d e r M i l . R . E v i d . 3 1 5 ( g ) a s e a r c h w a r r a n t o r

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 person has

probable cause to seize.

( 5 ) T e m p o r a r y d e t e n t i o n . N o t h i n g i n t h i s r u l e

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.

(f) Other 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

t h e U n i t e d S t a t e s a s a p p l i e d t o m e m b e r s o f t h e

armed forces or if such evidence must be excluded

under a statute applicable to members of the armed

forces.

( b ) A u t h o r i z a t i o n f o r j u d i c i a l a p p l i c a t i o n s i n t h e

United States. Under 18 U.S.C. § 2516(1), the Attorney General, or any Assistant Attorney General spec i a l l y d e s i g n a t e d b y t h e A t t o r n e y G e n e r a l m a y

authorize an application to a federal judge of competent jurisdiction for, and such judge may grant in

c o n f o r m i t y w i t h 1 8 U . S . C . § 2 5 1 8 , a n o r d e r

authorizing or approving the interception of wire or

oral communications by the Department of Defense,

the Department of Homeland Security, or any Military Department for purposes of obtaining evidence

concerning the offenses enumerated in 18 U.S.C. §

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);

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M.R.E. 315(h)(4)
(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. § 2511.

Rule 321. Eyewitness identification

(a) General rule.

( 1 ) A d m i s s i b i l i t y . T e s t i m o n y c o n c e r n i n g a r e l e -

vant 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. 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

s u s p e c t a n d w i t h o u t r e g a r d t o i n d i g e n c y o r l a c k

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

III-17

M.R.E. 321(c)(2)(A)
c a u s e s h o w n . F a i l u r e t o s o m o v e c o n s t i t u t e s a

waiver of the motion or objection.

(B) If the prosecution intends to offer such evidence and the evidence was not disclosed prior to

a r r a i g n m e n t , t h e p r o s e c u t i o n s h a l l p r o v i d e t i m e l y

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) 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 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 identification. 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 identific a t i o n i s n o t t h e r e s u l t o f t h e i n a d m i s s i b l e

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 def e n s e s h a l l i n f o r m t h e m i l i t a r y j u d g e t h a t t h e

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) Effect of guilty pleas. Except as otherwise exp r e s s l y p r o v i d e d i n R . C . M . 9 1 0 ( a ) ( 2 ) , a p l e a o f

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

III-18

M.R.E. 321(c)(2)(A)
tendency to make the existence of any fact that is of

consequence to the determination of the action more

probable or less probable than it would be without

the evidence.

Rule 402. Relevant evidence general

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

C o n g r e s s a p p l i c a b l e t o m e m b e r s o f t h e a r m e d

f o r c e s . E v i d e n c e w h i c h i s n o t r e l e v a n t i s n o t

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 ) C h a r a c t e r e v i d e n c e g e n e r a l l y . E v i d e n c e o f a

person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:

(1) Character of the accused. Evidence of a pertinent trait of character offered by an accused, or by

the prosecution to rebut the same, or if evidence of a

pertinent trait of character of the alleged victim of

the crime is offered by an accused and admitted

under Mil. R. Evid. 404(a)(2), evidence of the same

trait of character, if relevant, of the accused offered

by the prosecution;

( 2 ) C h a r a c t e r o f a l l e g e d v i c t i m E v i d e n c e o f a

pertinent trait of character of the alleged 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 alleged victim offered by

the prosecution in a homicide or assault case to

r e b u t e v i d e n c e t h a t t h e a l l e g e d v i c t i m w a s a n

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 action in

conformity therewith. It may, however, be admissible for other purposes, such as proof of motive,

o p p o r t u n i t y , i n t e n t , p r e p a r a t i o n , p l a n , k n o w l e d g e ,

identity, or absence of mistake or accident, provided,

that upon request by the accused, the prosecution

shall provide reasonable notice in advance of trial,

or during trial if the military judge excuses pretrial

notice on good cause shown, of the general nature of

any such evidence it intends to introduce at trial.

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) Affidavits. The defense may introduce affidavits

or other written statements of persons other than the

accused concerning the character of the accused. If

t h e d e f e n s e i n t r o d u c e s a f f i d a v i t s o r o t h e r w r i t t e n

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 corroborated or

not and regardless of the presence of eyewitnesses,

III-19

M.R.E. 406
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.

Rule 407. Subsequent remedial measures

When, after an injury or harm allegedly caused by

an event, measures are taken that, if taken previously, would have made the injury or harm less likely

to occur, evidence of the subsequent measures is not

admissible to prove negligence, culpable conduct, a

defect in a product, a defect in a product’s design, or

a need for a warning or instruction. 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 promi s i n g t o a c c e p t , a v a l u a b l e c o n s i d e r a t i o n i n

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, negating 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

p a y m e d i c a l , h o s p i t a l , o r s i m i l a r e x p e n s e s o c c a -

sioned 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

a n y c o u r t - m a r t i a l p r o c e e d i n g a g a i n s t t h e a c c u s e d

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 where in 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 proceedings 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,

o w n e r s h i p , o r c o n t r o l , o r b i a s o r p r e j u d i c e o f a

witness.

Rule 412. Sex offense cases; relevance of

alleged victim’s sexual behavior or sexual

predisposition

(a) Evidence generally inadmissible. The following

evidence is not admissible in any proceeding involving an alleged sexual offense except as provided in

subdivisions (b) and (c):

III-20

M.R.E. 406
(1) Evidence offered to prove that any alleged

victim engaged in other sexual behavior.

(2) Evidence offered to prove any alleged victim’s sexual predisposition.

(b) Exceptions.

(1) In a proceeding, the following evidence is admissible, if otherwise admissible under these rules:

(A) evidence of specific instances of sexual behavior by the alleged victim offered to prove that a

person other than the accused was the source of

semen, injury, or other physical evidence;

(B) evidence of specific instances of sexual behavior by the alleged victim with respect to the

person accused of the sexual misconduct offered by

the accused to prove consent or by the prosecution;

and

(C) evidence the exclusion of which would violate the constitutional rights of the accused.

(c) Procedure to determine admissibility.

(1) A party intending to offer evidence under subsection (b) must—

(A) file a written motion at least 5 days prior

to entry of pleas specifically describing the evidence

and stating the purpose for which it is offered unless

the military judge, for good cause shown, requires a

different time for filing or permits filing during trial;

and

(B) serve the motion on the opposing party and

the military judge and notify the alleged victim or,

when appropriate, the alleged victim’s guardian or

representative.

(2) Before admitting evidence under this rule, the

military judge must conduct a hearing, which shall

be closed. At this hearing, the parties may call witnesses, including the alleged victim, and offer relevant evidence. The alleged victim must be afforded

a reasonable opportunity to attend and be heard. In a

case before a court-martial composed of a military

judge and members, the military judge shall conduct

the hearing outside the presence of the members

p u r s u a n t t o A r t i c l e 3 9 ( a ) . T h e m o t i o n , r e l a t e d

papers, and the record of the hearing must be sealed

a n d r e m a i n u n d e r s e a l u n l e s s t h e c o u r t o r d e r s

otherwise.

(3) If the military judge determines on the basis

of the hearing described in paragraph (2) of this

subsection that the evidence that the accused seeks

to offer is relevant for a purpose under subsection

(b) and that the probative value of such evidence

outweighs the danger of unfair prejudice to the alleged victim’s privacy, such evidence shall be admissible under this rule to the extent an order made

by the military judge specifies evidence that may be

offered and areas with respect to which the alleged

victim may be examined or cross-examined. Such

evidence is still subject to challenge under Mil. R.

Evid. 403.

(d) For purposes of this rule, the term “sexual offense” includes any sexual misconduct punishable

under the Uniform Code of Military Justice, federal

law or state law. “Sexual behavior” includes any

sexual behavior not encompassed by the alleged offense. The term “sexual predisposition” refers to an

alleged victim’s mode of dress, speech, or lifestyle

that does not directly refer to sexual activities or

thoughts but that may have a sexual connotation for

the factfinder.

(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 attempts to

commit such offenses.

Rule 413. Evidence of similar crimes in

sexual assault cases

( a ) I n a c o u r t - m a r t i a l i n w h i c h t h e a c c u s e d i s

charged with an offense of sexual assault, evidence

of the accused’s commission of one or more offenses of sexual assault is admissible and may be

considered for its bearing on any matter to which it

is relevant.

(b) In a court-martial in which the Government intends to offer evidence under this rule, the Governm e n t s h a l l d i s c l o s e t h e e v i d e n c e t o t h e a c c u s e d ,

including statements of witnesses or a summary of

the substance of any testimony that is expected to be

offered, at least 5 days before the scheduled date of

trial, or at such later time as the military judge may

allow for good cause.

(c) This rule shall not be construed to limit the

admission or consideration of evidence under any

other rule.

(d) For purposes of this rule, “offenses of sexual

assault” means an offense punishable under the UniIII-21

M.R.E. 413(d)
form Code of Military Justice, or a crime under

Federal law or the law of a State that involved—

(1) any sexual act or sexual contact, without consent, proscribed by the Uniform Code of Military

Justice, Federal law, or the law of a State;

(2) contact, without consent of the victim, between any part of the accused’s body, or an object

held or controlled by the accused, and the genitals or

anus of another person;

(3) contact, without consent of the victim, between the genitals or anus of the accused and any

part of another person’s body;

(4) deriving sexual pleasure or gratification from

the infliction of death, bodily injury, or physical

pain on another person; or

(5) an attempt or conspiracy to engage in conduct

described in paragraphs (1) through (4).

(e) For purposes of this rule, the term “sexual act”

means:

(1) contact between the penis and the vulva or the

penis and the anus, and for purposes of this rule,

contact occurs upon penetration, however slight, of

the penis into the vulva or anus;

(2) contact between the mouth and the penis, the

mouth and the vulva, or the mouth and the anus;

(3) the penetration, however slight, of the anal or

genital opening of another by a hand or finger or by

any object, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of

any person; or

( 4 ) t h e i n t e n t i o n a l t o u c h i n g , n o t t h r o u g h t h e

clothing, of the genitalia of another person who has

not attained the age of 16 years, with an intent to

abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.

(f) For purposes of this rule, the term “sexual contact” means the intentional touching, either directly

or through clothing, of the genitalia, anus, groin,

breast, inner thigh, or buttocks of any person with an

intent to abuse, humiliate, harass, degrade, or arouse

or gratify the sexual desire of any person.

(g) For purposes of this rule, the term “State” includes a State of the United States, the District of

Columbia, Puerto Rico, Guam, the Virgin Islands,

and any other territory or possession of the United

States.

Rule 414. Evidence of similar crimes in child

molestation cases

( a ) I n a c o u r t - m a r t i a l i n w h i c h t h e a c c u s e d i s

charged with an offense of child molestation, evidence of the accused’s commission of one or more

offenses of child molestation is admissible and may

be considered for its bearing on any matter to which

it is relevant.

(b) In a court-martial in which the Government intends to offer evidence under this rule, the Governm e n t s h a l l d i s c l o s e t h e e v i d e n c e t o t h e a c c u s e d ,

including statements of witnesses or a summary of

the substance of any testimony that is expected to be

offered, at least 5 days before the scheduled date of

trial or at such later time as the military judge may

allow for good cause.

(c) This rule shall not be construed to limit the

admission or consideration of evidence under any

other rule.

(d) For purposes of this rule, “child” means a person below the age of sixteen, and “offense of child

molestation” means an offense punishable under the

Uniform Code of Military Justice, or a crime under

Federal law or the law of a State that involved—

(1) any sexual act or sexual contact with a child

proscribed by the Uniform Code of Military Justice,

Federal law, or the law of a State;

(2) any sexually explicit conduct with children

proscribed by the Uniform Code of Military Justice,

Federal law, or the law of a State;

( 3 ) c o n t a c t b e t w e e n a n y p a r t o f t h e a c c u s e d ’ s

body, or an object controlled or held by the accused,

and the genitals or anus of a child;

(4) contact between the genitals or anus of the

accused and any part of the body of a child;

(5) deriving sexual pleasure or gratification from

the infliction of death, bodily injury, or physical

pain on a child; or

(6) an attempt or conspiracy to engage in conduct

d e s c r i b e d i n p a r a g r a p h s ( 1 ) t h r o u g h ( 5 ) o f t h i s

subdivision.

(e) For purposes of this rule, the term “sexual act”

means:

(1) contact between the penis and the vulva or the

penis and the anus, and for purposes of this rule,

contact occurs upon penetration, however slight, of

the penis into the vulva or anus;

III-22

M.R.E. 413(d)
(2) contact between the mouth and the penis, the

mouth and the vulva, or the mouth and the anus;

(3) the penetration, however slight, of the anal or

genital opening of another by a hand or finger or by

any object, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of

any person; or

( 4 ) t h e i n t e n t i o n a l t o u c h i n g , n o t t h r o u g h t h e

clothing, of the genitalia of another person who has

not attained the age of 16 years, with an intent to

abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.

(f) For purposes of this rule, the term “sexual contact” means the intentional touching, either directly

or through clothing, of the genitalia, anus, groin,

breast, inner thigh, or buttocks of any person with an

intent to abuse, humiliate, harass, degrade, or arouse

or gratify the sexual desire of any person.

(g) For purposes of this rule, the term “sexually

explicit conduct” means actual or simulated:

( 1 ) s e x u a l i n t e r c o u r s e , i n c l u d i n g g e n i t a l - g e n i t a l ,

oral-genital, anal-genital, or oral-anal, whether between person of the same or opposite sex;

(2) bestiality;

(3) masturbation;

(4) sadistic or masochistic abuse; or

(5) lascivious exhibition of the genitals or pubic

area of any person.

(h) For purposes of this rule, the term “State” includes a State of the United States, the District of

Columbia, Puerto Rico, Guam, the Virgin Islands,

and any other territory or possession of the United

States.

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

(4) Prevent another from being a witness or disc l o s i n g a n y m a t t e r o r p r o d u c i n g a n y o b j e c t o r

writing.

(c) The term “person” includes an appropriate representative of the Federal Government, a State, or pol i t i c a l s u b d i v i s i o n t h e r e o f , o r a n y o t h e r e n t i t y

claiming to be the holder of a privilege.

( d ) N o t w i t h s t a n d i n g a n y o t h e r p r o v i s i o n o f t h e s e

rules, information not otherwise privileged does not

become privileged on the basis that it was acquired

b y a m e d i c a l o f f i c e r o r c i v i l i a n p h y s i c i a n i n 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 perIII-23

M.R.E. 502(b)(2)
son in a court-martial 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 court-martial

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 rend e r s p r o f e s s i o n a l l e g a l s e r v i c e s d u r i n g o f f - d u t y

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 “confidential” 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

t o c o m m i t w h a t t h e c l i e n t k n e w o r r e a s o n a b l y

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

clients if the communication was made by any of

them to a lawyer retained or consulted in common,

w h e n o f f e r e d i n a n a c t i o n b e t w e e n a n y o f t h e

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 “ c l e r g y m a n ” i s a m i n i s t e r , p r i e s t , r a b b i ,

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 “ c l e r g y m a n ’ s a s s i s t a n t ” i s a p e r s o n e m -

ployed by or assigned to assist a clergyman in his

capacity as a spiritual advisor.

(3) 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 pers o n i s d e c e a s e d . T h e c l e r g y m a n o r c l e r g y m a n ’ s

a s s i s t a n t w h o r e c e i v e d t h e c o m m u n i c a t i o n m a y

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.

III-24

M.R.E. 502(b)(2)
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 ) G e n e r a l r u l e o f p r i v i l e g e . A p e r s o n h a s 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.

(1) 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

p a r t i e s a r e d i v o r c e d o r t h e m a r r i a g e h a s b e e n

annulled.

(2) Spousal incapacity and confidential communications. There is no privilege under subdivisions (a)

or (b):

( A ) I n p r o c e e d i n g s i n w h i c h o n e s p o u s e i s

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

( C ) I n p r o c e e d i n g s i n w h i c h a s p o u s e i s

charged, in accordance with Article 133 or 134, with

importing the other spouse as an alien for prostitut i o n o r o t h e r i m m o r a l p u r p o s e i n v i o l a t i o n o f 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.

(d) Definitions. As used in this rule:

(1) The term “a child of either” includes not only

a biological child, adopted child, or ward of one of

the spouses but also includes a child who is under

the permanent or temporary physical custody of one

of the spouses, regardless of the existence of a legal

parent-child relationship. For purposes of this rule

only, a child is: (i) an individual under the age of

18; or (ii) an individual with a mental handicap who

functions under the age of 18.

(2) The term “temporary physical custody” includes instances where a parent entrusts his or her

child with another. There is no minimum amount of

time necessary to establish temporary physical custody nor must there be a written agreement. Rather,

the focus is on the parent’s agreement with another

for assuming parental responsibility for the child.

For example, temporary physical custody may include instances where a parent entrusts another with

the care of their child for recurring care or during

absences due to temporary duty or deployments.

Rule 505. Classified information

(a) General rule of privilege. Classified information

is privileged from disclosure if disclosure would be

detrimental to the national security. As with other

rules of privilege this rule applies to all stages of the

proceedings.

(b) Definitions. As used in this rule:

( 1 ) C l a s s i f i e d i n f o r m a t i o n . “ C l a s s i f i e d i n f o r m a -

tion” means any information or material that has

been determined by the United States Government

pursuant to an executive order, statute, or regulations, to require protection against unauthorized disIII-25

M.R.E. 505(b)(1)
closure for reasons of national security, and any

restricted data, as defined in 42 U.S.C. § 2014(y).

(2) National security. “National security” means

t h e n a t i o n a l d e f e n s e a n d f o r e i g n r e l a t i o n s o f t h e

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 ) W i t h h o l d d i s c l o s u r e i f a c t i o n s u n d e r ( 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;

(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) All persons requiring security clearances

shall cooperate with investigatory personnel in any

investigations which are necessary to obtain a security clearance.

(E) Requiring the maintenance of logs regarding access by all persons authorized by the military

III-26

M.R.E. 505(b)(1)
judge to have access to the classified information in

connection with the preparation of the defense;

( F ) R e g u l a t i n g t h e m a k i n g a n d h a n d l i n g o f

notes taken from material containing classified information; or

(G) Requesting the convening authority to authorize the assignment of government security pers o n n e l a n d t h e p r o v i s i o n o f g o v e r n m e n t s t o r a g e

facilities.

(2) Limited disclosure. The military judge, upon

motion of the Government, shall authorize (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 prepare 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 ) D i s c l o s u r e a t t r i a l o f c e r t a i n s t a t e m e n t s

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

U n i t e d S t a t e s u n d e r R . C . M . 9 1 4 . T h i s p r o v i s i o n

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 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 ) N o t i c e o f t h e a c c u s e d ’ s i n t e n t i o n t o d i s c l o s e

classified information.

(1) 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. The description, to be sufficient, must be more than a mere general statement

of the areas about which evidence may be introduced. The accused must state, with particularity,

which items of classified information he reasonably

expects will be revealed by his defense.

(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

III-27

M.R.E. 505(h)(4)
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

G o v e r n m e n t l e a v e t o m o v e f o r a n i n c a m e r a

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 and an affidavit ex

parte for examination by the military judge only.

The affidavit shall demonstrate 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 informat i o n p r e v i o u s l y h a s b e e n m a d e a v a i l a b l e t o t h e

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 class i f i e d i n f o r m a t i o n w h e n t h e G o v e r n m e n t h a s n o t

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

t h e c o u r t - m a r t i a l p r o c e e d i n g . W h e r e t h e G o v e r n -

ment’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.

( B ) S t a n d a r d . C l a s s i f i e d i n f o r m a t i o n i s n o t

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. In presentencing proceedings, relevant and material classified

information pertaining to the appropriateness of, or

the appropriate degree of, punishment shall be admitted only if no unclassified version of such information is available.

(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

d i s c l o s e d o r o t h e r w i s e e l i c i t e d a t a c o u r t - m a r t i a l

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 by

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

III-28

M.R.E. 505(h)(4)
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 to which the information relates.

A n y s u c h o r d e r s h a l l p e r m i t t h e G o v e r n m e n t t o

avoid the sanction for nondisclosure by permitting

the accused to disclose the information at the pertinent court-martial proceeding.

(j) Introduction of classified information.

( 1 ) C l a s s i f i c a t i o n s t a t u s . W r i t i n g s , r e c o r d i n g s ,

a n d p h o t o g r a p h s c o n t a i n i n g c l a s s i f i e d i n f o r m a t i o n

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 ) C o n t e n t s o f w r i t i n g , r e c o r d i n g , o r p h o t o -

graph. The military judge may permit proof of the

contents of a writing, recording, or photograph that

contains classified information without requiring int r o d u c t i o n i n t o e v i d e n c e o f t h e o r i g i n a l o r 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 or 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. The military judge may exclude the public during that portion of the presentat i o n o f e v i d e n c e t h a t d i s c l o s e s c l a s s i f i e d

information.

( 6 ) R e c o r d o f t r i a l . T h e r e c o r d o f t r i a l w i t h

respect to any classified matter will be prepared

under R.C.M. 1103(h) and 1104(b)(1)(D).

(k) Security procedures to safeguard against comp r o m i s e o f c l a s s i f i e d i n f o r m a t i o n d i s c l o s e d t o

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 records and information of the Inspector General may be claimed by the immediate superior of the inspector general officer responsible for

creation of the records or information, the Inspector

General, or any other 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;

III-29

M.R.E. 506(d)(1)
(2) substitute a portion or summary of the information for such documents;

(3) substitute a statement admitting relevant facts

t h a t t h e g o v e r n m e n t i n f o r m a t i o n w o u l d t e n d t o

prove;

(4) provide the document subject to conditions

similar to those set forth in subdivision (g) of this

rule; or

( 5 ) w i t h h o l d d i s c l o s u r e i f a c t i o n s u n d e r ( 1 )

through (4) cannot be taken without causing identifiable damage to the public interest.

(e) Pretrial session. At any time after referral of

charges and prior to arraignment, any party may

move for a session under Article 39(a) to consider

matters relating to government information that may

arise in connection with the trial. Following such

motion, or sua sponte, the military judge promptly

shall hold a pretrial session under Article 39(a) to

establish the timing of requests for discovery, the

provision of notice under 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.

(f) Action after motion for disclosure of information. After referral of charges, if the defense moves

for disclosure of government information for which

a claim of privilege has been made under this rule,

the matter shall be reported to the convening authority. The convening authority may:

(1) institute action to obtain the information for

use by the military judge in making a determination

under subdivision (i);

(2) dismiss the charges;

(3) dismiss the charges or specifications or both

to which the information relates; or

(4) take other action as may be required in the

interests of justice.

If, after a reasonable period of time, the information

is not provided to the military judge, the military

judge shall dismiss the charges or specifications or

both to which the information relates.

(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

a p p r o p r i a t e p r o t e c t i v e o r d e r t o g u a r d a g a i n s t t h e

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;

(2) Requiring storage of the material in a manner

appropriate for the nature of the material to be disclosed; upon reasonable notice;

( 3 ) R e q u i r i n g c o n t r o l l e d a c c e s s t o t h e m a t e r i a l

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

unless the military judge authorizes such disclosure.

(i) In camera proceedings.

(1) Definition. For the purpose 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 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

i n f o r m a t i o n . I n o r d e r t o o b t a i n a n i n c a m e r a

proceeding under this rule, the Government shall

demonstrate, through the submission of affidavits

and information for examination only by the military

judge, that disclosure of the information reasonably

could be expected to cause identifiable damage to

the public interest.

(4) In camera proceeding.

III-30

M.R.E. 506(d)(2)
(A) Finding of identifiable damage. Upon finding that the disclosure of some or all of the information submitted by the Government under subsection

(i)(3) reasonably could be expected to cause identifiable damage to the public interest, the military judge

shall conduct an in camera proceeding.

(B) Disclosure of the information to the defense. Subject to subdivision (F), below, the Governm e n t s h a l l d i s c l o s e g o v e r n m e n t i n f o r m a t i o n f o r

which a claim of privilege has been made to the

a c c u s e d , f o r t h e l i m i t e d p u r p o s e o f l i t i g a t i n g , i n

camera, the admissibility of the information at trial.

The military judge shall enter an appropriate protective order to the accused and all other appropriate

trial participants concerning the disclosure of the

information according to subsection (g), above. The

accused shall not disclose any information provided

under this subsection unless, and until, such information has been admitted into evidence by the military judge. In the in camera proceeding, both parties

shall have the opportunity to brief and argue the

admissibility of the government information at trial.

(C) Standard. Government information is subj e c t t o d i s c l o s u r e a t t h e c o u r t - m a r t i a l p r o c e e d i n g

under this subsection if the party making the request

demonstrates a specific need for information containing evidence that is relevant to the guilt or innoc e n c e o r t o p u n i s h m e n t o f t h e a c c u s e d , a n d i s

otherwise admissible in the court-martial proceeding.

(D) Ruling. No information may be disclosed

at the court-martial proceeding or otherwise unless

the military judge makes a written determination that

the information is subject to disclosure under the

standard set forth in subsection (C), above. The military judge will specify in writing any information

that he or she determines is subject to disclosure.

The record of the in camera proceeding shall be

sealed and attached to the record of trial as an appellate exhibit. The accused may seek reconsideration

of the determination prior to or during trial.

(E) Alternatives to full disclosure. If the military judge makes a determination under this subsection that the information is subject to disclosure, or

if the Government elects not to contest the relevance, necessity, and admissibility of the government information, the Government may proffer a

statement admitting for purposes of the court-martial

any relevant facts such information would tend to

prove or may submit a portion or summary to be

used in lieu of the information. The military judge

shall order that such statement, portion, summary, or

some other form of information which the military

judge finds to be consistent with the interests of

justice, be used by the accused in place of the government information, unless the military judge finds

that use of the government information itself is necessary to afford the accused a fair trial.

( F ) S a n c t i o n s . G o v e r n m e n t i n f o r m a t i o n m a y

not be disclosed over the Government’s objection. If

the Government continues to object to disclosure of

the information following rulings by the military

judge, the military judge shall issue any order that

the interests of justice require. Such an order may

include:

(i) striking or precluding all or part of the

testimony of a witness;

(ii) declaring a mistrial;

(iii) finding against the Government on any

issue as to which the evidence is relevant and necessary to the defense;

(iv) dismissing the charges, with or without

prejudice; or

(v) dismissing the charges or specifications

or both to which the information relates.

(j) Appeals of orders and rulings. In a court-martial

in which a punitive discharge may be adjudged, the

Government may appeal an order or ruling of the

military judge that terminates the proceedings with

respect to a charge or specification, directs the disclosure of government information, or imposes sanctions for nondisclosure of government information.

The government may also appeal an order or ruling

in which the military judge refuses to issue a protective order sought by the United States to prevent the

disclosure of government information, or to enforce

such an order previously issued by appropriate authority. The Government may not appeal an order or

ruling that is, or amounts to, a finding of not guilty

with respect to the charge or specification.

(k) Introduction of government information subject

to a claim of privilege.

(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

III-31

M.R.E. 506(k)(1)
excision of some or all of the government information contained therein.

( 2 ) C o n t e n t s o f w r i t i n g , r e c o r d i n g , o r p h o t o -

graph. 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

d i s c l o s e g o v e r n m e n t i n f o r m a t i o n n o t p r e v i o u s l y

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.

(l) 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 identity

of 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 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 reaIII-32

M.R.E. 506(k)(1)
sonable 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

f u r t h e r p r o c e e d i n g s w o u l d m a t e r i a l l y p r e j u d i c e 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

o f t h e p r i v i l e g e i f d i s c l o s u r e w a s c o m p e l l e d e r -

roneously 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 communic a t i o n i s n e c e s s a r y a n d i n f u r t h e r a n c e o f t h e

communication.

Rule 512. Comment upon or inference from

claim of privilege; instruction

(a) Comment or inference not permitted.

( 1 ) T h e c l a i m o f a p r i v i l e g e b y t h e a c c u s e d

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

d r a w n t h e r e f r o m e x c e p t w h e n d e t e r m i n e d b y t h e

military judge to be required by the interests of

justice.

(b) Claiming privilege 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 courtmartial without a military judge.

( c ) I n s t r u c t i o n . U p o n r e q u e s t , a n y p a r t y a g a i n s t

whom the members might draw an adverse inference

from a claim of privilege is entitled to an instruction

that no inference may be drawn therefrom except as

provided in subdivision (a)(2).

Rule 513. Psychotherapist-patient privilege

(a) General rule of privilege. A patient has a privilege to refuse to disclose and to prevent any other

person from disclosing a confidential communication made between the patient and a psychotherapist

or an assistant to the psychotherapist, in a case arising under the UCMJ, if such communication was

III-33

M.R.E. 513(a)
made for the purpose of facilitating diagnosis or

t r e a t m e n t o f t h e p a t i e n t ’ s m e n t a l o r e m o t i o n a l

condition.

(b) Definitions. As used in this rule of evidence:

(1) A “patient” is a person who consults with or

is examined or interviewed by a psychotherapist for

p u r p o s e s o f a d v i c e , d i a g n o s i s , o r t r e a t m e n t o f a

mental or emotional condition.

(2) A “psychotherapist” is a psychiatrist, clinical

psychologist, or clinical social worker who is licensed in any state, territory, possession, the District

of Columbia or Puerto Rico to perform professional

services as such, or who holds credentials to provide

such services from any military health care facility,

or is a person reasonably believed by the patient to

have such license or credentials.

(3) An “assistant to a psychotherapist” is a person

directed by or assigned to assist a psychotherapist in

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

(4) A communication is “confidential” if not intended to be disclosed to third persons other than

those to whom disclosure is in furtherance of the

rendition of professional services to the patient or

those reasonably necessary for such transmission of

the communication.

(5) “Evidence of a patient’s records or communications” is testimony of a psychotherapist, or assistant to the same, or patient records that pertain to

communications by a patient to a psychotherapist, or

assistant to the same for the purposes of diagnosis or

t r e a t m e n t o f t h e p a t i e n t ’ s m e n t a l o r e m o t i o n a l

condition.

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

be claimed by the patient or the guardian or conservator of the patient. A person who may claim the

p r i v i l e g e m a y a u t h o r i z e t r i a l c o u n s e l o r d e f e n s e

counsel to claim the privilege on his or her behalf.

T h e p s y c h o t h e r a p i s t o r a s s i s t a n t t o t h e

p s y c h o t h e r a p i s t w h o r e c e i v e d t h e c o m m u n i c a t i o n

may claim the privilege on behalf of the patient. The

authority of such a psychotherapist, assistant, guardian, or conservator to so assert the privilege is presumed in the absence of evidence to the contrary.

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

(1) when the patient is dead;

( 2 ) w h e n t h e c o m m u n i c a t i o n i s e v i d e n c e o f

s p o u s e a b u s e , c h i l d a b u s e , o r n e g l e c t o r i n a

proceeding in which one spouse is charged with a

crime against the person of the other spouse or a

child of either spouse;

(3) when federal law, state law, or service regulation imposes a duty to report information contained

in a communication;

( 4 ) w h e n a p s y c h o t h e r a p i s t o r a s s i s t a n t t o a

psychotherapist believes that a patient’s mental or

emotional condition makes the patient a danger to

any person, including the patient;

(5) if the communication clearly contemplated the

future commission of a fraud or crime or if the

services of the psychotherapist are sought or obtained to enable or aid anyone to commit or plan to

commit what the patient knew or reasonably should

have known to be a crime or fraud;

(6) when necessary to ensure the safety and security of military personnel, military dependents, milit a r y p r o p e r t y , c l a s s i f i e d i n f o r m a t i o n , o r t h e

accomplishment of a military mission;

(7) when an accused offers statements or other

evidence concerning his mental condition in defense,

extenuation, or mitigation, under circumstances not

covered by R.C.M. 706 or Mil. R. Evid. 302. In

such situations, the military judge may, upon motion, order disclosure of any statement made by the

accused to a psychotherapist as may be necessary in

the interests of justice; or

(8) when admission or disclosure of a communication is constitutionally required.

(e) Procedure to determine admissibility of patient

records or communications.

(1) In any case in which the production or admission of records or communications of a patient other

than the accused is a matter in dispute, a party may

seek an interlocutory ruling by the military judge. In

order to obtain such a ruling, the party shall:

(A) file a written motion at least 5 days prior

to entry of pleas specifically describing the evidence

and stating the purpose for which it is sought or

offered, or objected to, unless the military judge, for

good cause shown, requires a different time for filing or permits filing during trial; and

(B) serve the motion on the opposing party, the

military judge and, if practical, notify the patient or

the patient’s guardian, conservator, or representative

that the motion has been filed and that the patient

has an opportunity to be heard as set forth in subparagraph (e)(2).

(2) Before ordering the production or admission

III-34

M.R.E. 513(a)
of evidence of a patient’s records or communication,

the military judge shall conduct a hearing. Upon the

motion of counsel for either party and upon good

cause shown, the military judge may order the hearing closed. At the hearing, the parties may call witnesses, including the patient, and offer other relevant

evidence. The patient shall be afforded a reasonable

opportunity to attend the hearing and be heard at the

patient’s own expense unless the patient has been

otherwise subpoenaed or ordered to appear at the

hearing. However, the proceedings shall not be unduly delayed for this purpose. In a case before a

c o u r t - m a r t i a l c o m p o s e d o f a m i l i t a r y j u d g e a n d

members, the military judge shall conduct the hearing outside the presence of the members.

(3) The military judge shall examine the evidence

or a proffer thereof in camera, if such examination

is necessary to rule on the motion.

( 4 ) T o p r e v e n t u n n e c e s s a r y d i s c l o s u r e o f e v i -

dence of a patient’s records or communications, the

military judge may issue protective orders or may

admit only portions of the evidence.

(5) The motion, related papers, and the record of

the hearing shall be sealed and shall remain under

seal unless the military judge or an appellate court

orders otherwise.

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.

7 0 3 , r e l a t i n g t o o p i n i o n t e s t i m o n y b y e x p e r t

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 courtmartial 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

o p p o s i n g p a r t y , e x c e p t i n a s p e c i a l c o u r t - m a r t i a l

without a military judge, shall be afforded an opportunity to object out of the presence of the members.

( b ) I n q u i r y i n t o v a l i d i t y o f f i n d i n g s o r s e n t e n c e .

Upon an inquiry into the validity of the findings or

sentence, a member may not testify as to any matter

or statement occurring 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

a n y o u t s i d e i n f l u e n c e w a s i m p r o p e r l y b r o u g h t t o

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.

III-35

M.R.E. 606(b)
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 reputat i o n , b u t s u b j e c t t o t h e s e l i m i t a t i o n s : ( 1 ) t h e

evidence may refer only 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) Specific instances of conduct. Specific instances

of the conduct of a witness, for the purpose of attacking or supporting the witness’ character for truthfulness, 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 that relate only to character

for truthfulness.

(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, (1) evidence that a witness

other than the accused has been convicted of a crime

shall be admitted, subject to Mil. R. Evid. 403, if the

crime was punishable by death, dishonorable discharge, or imprisonment in excess of one year under

the law under which the witness was convicted, and

evidence that an accused has been convicted of such

a crime shall be admitted if the military judge determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused;

and (2) evidence that any witness has been convicted of a crime shall be admitted if it 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, or 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 certificate 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

III-36

M.R.E. 607
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 64 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.

Rule 611. 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)

p r o t e c t w i t n e s s e s f r o m h a r a s s m e n t o r u n d u e

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

a d v e r s e p a r t y , i n t e r r o g a t i o n m a y b e b y l e a d i n g

questions.

(d) Remote live testimony of a child.

(1) In a case involving abuse of a child or domestic violence, the military judge shall, subject to the

requirements of subsection (3) of this rule, allow a

child victim or witness to testify from an area outside the courtroom as prescribed in R.C.M. 914A.

( 2 ) T h e t e r m “ c h i l d ” m e a n s a p e r s o n w h o i s

under the age of 16 at the time of his or her testimony. The term “abuse of a child” means the physical

or mental injury, sexual abuse or exploitation, or

n e g l i g e n t t r e a t m e n t o f a c h i l d . T h e t e r m

“ e x p l o i t a t i o n ” m e a n s c h i l d p o r n o g r a p h y o r c h i l d

prostitution. The term “negligent treatment” means

the failure to provide, for reasons other than poverty,

adequate food, clothing, shelter, or medical care so

as to endanger seriously the physical health of the

child. The term “domestic violence” means an offense that has as an element the use, attempted use,

or threatened use of physical force against a person

and is committed by a current or former spouse,

parent, or guardian of the victim; by a person with

whom the victim shares a child in common; by a

person who is cohabiting with or has cohabited with

the victim as a spouse, parent, or guardian; or by a

p e r s o n s i m i l a r l y s i t u a t e d t o a s p o u s e , p a r e n t , o r

guardian of the victim.

( 3 ) R e m o t e l i v e t e s t i m o n y w i l l b e u s e d o n l y

where the military judge makes a finding on the

record that a child is unable to testify in open court

in the presence of the accused, for any of the following reasons:

(A) The child is unable to testify because of

fear;

(B) There is substantial likelihood, established

b y e x p e r t t e s t i m o n y , t h a t t h e c h i l d w o u l d s u f f e r

emotional trauma from testifying;

(C) The child suffers from a mental or other

infirmity; or

(D) Conduct by an accused or defense counsel

causes thechild to be unable to continue testifying.

(4) Remote live testimony of a child shall not be

utilized where the accused elects to absent himself

f r o m t h e c o u r t r o o m i n a c c o r d a n c e w i t h R . C . M .

804(c).

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 ) b e f o r e t e s t i f y i n g , i f t h e m i l i t a r y j u d g e d e t e r -

mines 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

III-37

M.R.E. 612(2)
subject matter of the testimony, the military judge

s h a l l e x a m i n e t h e w r i t i n g i n c a m e r a , e x c i s e a n y

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 required, 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 him at that time, but on request the same

shall be shown or disclosed to opposing counsel.

(b) Extrinsic evidence of prior inconsistent statement of witness. Extrinsic evidence of a prior incons i s t e n t s t a t e m e n t b y a w i t n e s s i s n o t a d m i s s i b l e

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

p a r t y - o p p o n e n t a s d e f i n e d i n M i l . R . E v i d .

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

j u d g e o r m e m b e r s m a y i n t e r r o g a t e w i t n e s s e s ,

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 ) O b j e c t i o n s . O b j e c t i o n s t o t h e c a l l i n g o f w i t -

nesses by the military judge or the members or to

the interrogation 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,

a n d t h e m i l i t a r y j u d g e m a y m a k e t h e o r d e r s u a

sponte. This rule does not authorize exclusion of (1)

the accused, or (2) a member of an armed service or

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

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

to be essential to the presentation of the party’s case,

or (4) a person authorized by statute to be present at

courts-martial, or (5) any victim of an offense from

the trial of an accused for that offense because such

victim may testify or present any information in

relation to the sentence or that offense during the

presentencing proceedings.

SECTION VII

OPINIONS AND EXPERT TESTIMONY

Rule 701. Opinion testimony by lay

witnesses

If the witness is not testifying as an expert, the

witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences that

are (a) rationally based on the perception of the

witness, (b) helpful to a clear understanding of the

witness’ testimony or the determination of a fact in

issue, and (c) not based in scientific, technical, or

o t h e r s p e c i a l i z e d k n o w l e d g e w i t h i n t h e s c o p e o f

Rule 702.

III-38

M.R.E. 612(2)
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 if (1) the testimony

is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles

and methods reliably to the facts of the case.

Rule 703. Bases of opinion testimony by

experts

T h e f a c t s o r d a t a i n t h e p a r t i c u l a r c a s e u p o n

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 in order

for the opinion or inference to be admitted. Facts or

data that are otherwise inadmissible shall not be

disclosed to the members by the proponent of the

opinion or inference unless the military judge determ i n e s t h a t t h e i r p r o b a t i v e v a l u e i n a s s i s t i n g t h e

members to evaluate the expert’s opinion substantially outweighs their prejudicial effect.

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

i n f e r e n c e a n d g i v e t h e e x p e r t ’ s r e a s o n s t h e r e f o r

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.

Rule 707. Polygraph Examinations

(a) Notwithstanding any other provision of law, the

results of a polygraph examination, the opinion of a

polygraph examiner, or any reference to an offer to

take, failure to take, or taking of a polygraph examination, shall not be admitted into evidence.

(b) Nothing in this section is intended to exclude

from evidence statements made during a polygraph

examination which are otherwise admissible.

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 an 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:

(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to crossexamination 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

III-39

M.R.E. 801(d)(1)
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. The

contents of the statement shall be considered but are

not alone sufficient to establish the declarant’s authority under subdivision (C), the agency or employm e n t r e l a t i o n s h i p a n d t h e s c o p e t h e r e o f u n d e r

subdivision (D), or the existence of the conspiracy

and the participation therein of the declarant and the

party against whom the statement is offered under

subdivision (E).

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 ) T h e n e x i s t i n g m e n t a l , e m o t i o n a l , o r p h y s i c a l

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

e x e c u t i o n , r e v o c a t i o n , i d e n t i f i c a t i o n , o r t e r m s o f

declarant’s will.

(4) Statements for purposes of medical diagnosis or

treatment. Statements made for purposes of medical

diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations,

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 rec o r d c o n c e r n i n g a m a t t e r a b o u t w h i c h a w i t n e s s

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’ 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 ) R e c o r d s o f r e g u l a r l y c o n d u c t e d a c t i v i t y . 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

t h a t b u s i n e s s a c t i v i t y t o m a k e t h e m e m o r a n d u m ,

report, record, or data compilation, all as shown by

the testimony of the custodian or other qualified

witness, or by certification that complies with Mil.

R. Evid. 902(11) or any other statute permitting certification in a criminal proceeding in a court of the

United States, unless the source of the information

or the method or circumstances of preparation indicate a 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

c o n d u c t e d f o r p r o f i t . A m o n g t h o s e m e m o r a n d a ,

reports, records, or data compilations normally admissible pursuant to this paragraph are enlistment

papers, physical examination papers, outline-figure

a n d f i n g e r p r i n t c a r d s , f o r e n s i c l a b o r a t o r y r e p o r t s ,

chain of custody documents, morning reports and

o t h e r p e r s o n n e l a c c o u n t a b i l i t y d o c u m e n t s , s e r v i c e

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

III-40

M.R.E. 801(d)(1)
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 memorand u m , r e p o r t , r e c o r d , o r d a t a c o m p i l a t i o n w a s

regularly made and preserved, unless the sources of

information or other circumstances indicate lack of

trustworthiness.

( 8 ) P u b l i c r e c o r d s a n d r e p o r t s . R e c o r d s , r e p o r t s ,

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 circ u m s t a n c e s i n d i c a t e l a c k o f t r u s t w o r t h i n e s s . N o t -

withstanding (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

t o a s c e r t a i n t h r o u g h a p p r o p r i a t e a n d t r u s t w o r t h y

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 diar i e s , i n d i v i d u a l e q u i p m e n t r e c o r d s , g u a r d r e p o r t s ,

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 certificates.

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 the kind in

that office.

(15) Statements in documents affecting 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.

( 1 7 ) M a r k e t r e p o r t s , c o m m e r c i a l p u b l i c a t i o n s .

Market quotations, tabulations, directories, lists (including 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 examinaIII-41

M.R.E. 803(18)
t i o n , s t a t e m e n t s c o n t a i n e d i n p u b l i s h e d t r e a t i s e s ,

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, div o r c e , d e a t h , l e g i t i m a c y , r e l a t i o n s h i p b y b l o o d ,

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 puni s h a b l e b y d e a t h , d i s h o n o r a b l e d i s c h a r g e , o r

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 court-martial.

(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. [Transferred to M.R.E. 807]

Rule 804. Hearsay exceptions; declarant

unavailable

(a) Definitions 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 attendance (or in the case of a

hearsay exception under subdivision (b)(2), (3), or

( 4 ) , t h e d e c l a r a n t ’ s a t t e n d a n c e o r t e s t i m o n y ) b y

process or other reasonable means; or

(6) is unavailable within the meaning of Article

49(d)(2).

A declarant is not unavailable as a witness if the

d e c l a r a n t ’ s e x e m p t i o n , r e f u s a l , c l a i m o f l a c k o f

memory, inability, or absence is due to the procurem e n t o r w r o n g d o i n g o f t h e p r o p o n e n t o f t h e

declarant’s statement for 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 deposition taken in compliance

w i t h l a w i n t h e c o u r s e o f t h e s a m e o r a n o t h e r

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

b e f o r e c o u r t s - m a r t i a l , c o u r t s o f i n q u i r y , m i l i t a r y

c o m m i s s i o n s , o t h e r m i l i t a r y t r i b u n a l s , a n d b e f o r e

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 resultIII-42

M.R.E. 803(18)
ing in the death of the alleged victim, a statement

m a d e b y a d e c l a r a n t w h i l e b e l i e v i n g t h a t t h e

d e c l a r a n t ’ s d e a t h w a s i m m i n e n t , c o n c e r n i n g t h e

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 proprietary 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

s t a t e m e n t c o n c e r n i n g t h e d e c l a r a n t ’ s o w n b i r t h ,

adoption, marriage, divorce, legitimacy, relationship

by blood, adoption, or marriage, ancestry, or other

s i m i l a r f a c t o f p e r s o n a l o r f a m i l y h i s t o r y , e v e n

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 or was so

intimately associated with the other’s family as to be

likely to have accurate information concerning the

matter declared.

(5) Other exceptions. [Transferred to M.R.E. 807]

( 6 ) F o r f e i t u r e b y w r o n g d o i n g . A s t a t e m e n t o f -

fered against a party that has engaged or acquiesced

in wrongdoing that was intended to, and did, procure

the unavailability of the declarant as a witness.

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,

b y a n y e v i d e n c e w h i c h w o u l d b e a d m i s s i b l e f o r

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

w i t n e s s , t h e p a r t y i s e n t i t l e d t o e x a m i n e t h e

declarant on the statement as if under cross-examination.

Rule 807. Residual exception.

A statement not specifically covered by Rule 803

or 804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hears a y r u l e , i f t h e c o u r t d e t e r m i n e s t h a t ( A ) t h e

statement is offered as evidence of a material fact;

(B) the statement is more probative on the point for

which it is offered than 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 proponent’s intention to offer

the statement and the particulars of it, including the

name and address of the declarant.

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

III-43

M.R.E. 901(b)(2)
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 identification. Identification of a voice,

whether heard firsthand or through mechanical or

e l e c t r o n i c t r a n s m i s s i o n o r r e c o r d i n g , b y o p i n i o n

based upon hearing the voice at any time under

c i r c u m s t a n c e s c o n n e c t i n g i t w i t h t h e a l l e g e d

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 ) P r o c e s s o r s y s t e m . E v i d e n c e d e s c r i b i n g a

p r o c e s s o r s y s t e m u s e d t o p r o d u c e a r e s u l t a n d

showing that the process or system produces an accurate result.

(10) Methods provided by statute or rule. Any

method of authentication or identification provided

b y A c t o f C o n g r e s s , b y r u l e s p r e s c r i b e d b y t h e

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

p r e c e d e n t t o a d m i s s i b i l i t y i s n o t r e q u i r e d w i t h

respect to the following:

(1) Domestic public documents under seal. A document bearing a seal purporting to be that of the

United States, or any State, district, Commonwealth,

t e r r i t o r y , o r i n s u l a r p o s s e s s i o n t h e r e o f , o r t h e

Panama Canal Zone, or the Trust Territory of the

Pacific Islands, or a political subdivision, department, officer, or agency thereof, and a signature

purporting to be an attestation or execution.

(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

a c c o m p a n i e d b y a f i n a l c e r t i f i c a t i o n a s t o t h e

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 relating to the execution of attestation. A final certification may be made by a secretary of embassy or

legation, consul 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

III-44

M.R.E. 901(b)(2)
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 (1), (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

p u b l i c a t i o n s p u r p o r t i n g t o b e i s s u e d b y p u b l i c

authority.

( 6 ) N e w s p a p e r s a n d p e r i o d i c a l s . P r i n t e d m a t e r i a l

purporting to be newspapers or periodicals.

( 7 ) T r a d e i n s c r i p t i o n s a n d t h e l i k e . I n s c r i p t i o n s ,

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 acknowledgment executed in

the manner provided by law by a notary public or

o t h e r o f f i c e r a u t h o r i z e d b y l a w t o t a k e

acknowledgments.

(9) Commercial paper and related documents. Commercial paper, signatures thereon, and documents rel a t i n g t h e r e t o t o t h e e x t e n t p r o v i d e d b y g e n e r a l

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.

(11) Certified domestic records of regularly conducted activity. The original or a duplicate of a domestic record of regularly conducted activity that

would be admissible under Mil. R. Evid. 803(6) if

accompanied by a written declaration of its custodian or other qualified person, in a manner complying with any Act of Congress or rule prescribed by

the Supreme Court pursuant to statutory authority,

certifying that the record (A) was made at or near

the time of the occurrence of the matters set forth

by, or from information transmitted by, a person

with knowledge of those matters; (B) was kept in

the course of the regularly conducted activity; and

(C) was made by the regularly conducted activity as

a regular practice. A party intending to offer a record into evidence under this paragraph must provide written notice of that intention to all adverse

parties, and must make the record and declaration

available for inspection sufficiently in advance of

their offer into evidence to provide an adverse party

with a fair opportunity to challenge them.

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 photog r a p h s , X - r a y f i l m s , v i d e o t a p e s , a n d m o t i o n

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

III-45

M.R.E. 1001(4)
r e p r o d u c t i o n , o r b y o t h e r e q u i v a l e n t t e c h n i q u e s

which accurately reproduce the original.

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,

b y t h e p l e a d i n g s o r o t h e r w i s e , t h a t t h e c o n t e n t s

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 accordance

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)

w h e t h e r t h e a s s e r t e d w r i t i n g e v e r e x i s t e d , o r ( 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.

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

courts-martial, including summary courts-martial; to

p r o c e e d i n g s p u r s u a n t t o A r t i c l e 3 9 ( a ) ; t o l i m i t e d

f a c t f i n d i n g p r o c e e d i n g s o r d e r e d o n r e v i e w ; t o

proceedings in revision; and to contempt proceedIII-46

M.R.E. 1001(4)
i n g s e x c e p t t h o s e i n w h i c h t h e j u d g e m a y a c t

summarily.

( b ) R u l e s o f p r i v i l e g e . T h e r u l e s w i t h r e s p e c t t o

privileges in Section III and V apply at all stages of

all actions, cases, and proceedings.

( c ) R u l e s r e l a x e d . T h e a p p l i c a t i o n o f t h e s e r u l e s

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 and Mil. R. Evid. 412) do not

apply in investigative hearings pursuant to Article

32; proceedings for vacation of suspension of sentence pursuant to Article 72; proceedings for search

a u t h o r i z a t i o n s ; p r o c e e d i n g s i n v o l v i n g p r e t r i a l r e -

straint; and in other proceedings authorized under

the code or this Manual and not listed in subdivision

(a).

Rule 1102. Amendments.

(a) Amendments to the Federal Rules of Evidence

shall apply to the Military Rules of Evidence 18

months after the effective date of such amendments,

u n l e s s a c t i o n t o t h e c o n t r a r y i s t a k e n b y t h e

President.

(b) Rules Determined Not To Apply. The President

has determined that the following Federal Rules of

Evidence do not apply to the Military Rules of Evidence: Rules 301, 302, 415, and 902(12).

Rule 1103. Title

These rules may be known and cited as the Military Rules of Evidence.

III-47

M.R.E. 1102(b)

PART IV

PUNITIVE ARTICLES

(Statutory text of each Article is in bold)

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 term “elements,” as used in Part IV, includes both the

statutory elements of the offense and any aggravating factors

listed under the President’s authority which increases the maximum permissible punishment when specified aggravating factors

are pleaded and proven.

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 of statute. Any person punishable under

this chapter who—

( 1 ) c o m m i t s a n o f f e n s e p u n i s h a b l e b y t h i s

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

t h e s c e n e o f t h e c r i m e ) . A l l o f t h e s e a r e n o w

“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 ass i s t , e n c o u r a g e , a d v i s e , c o u n s e l , o r c o m m a n d

another in the commission of the offense; and

(ii) Share in the criminal purpose of 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

i n t h e e x a m p l e s i n p a r a g r a p h 1 b ( 2 ) ( a ) a b o v e . I n

some circumstances, inaction may make one liable

IV-1
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 a

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 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 1b(2)(a) or (b) have been

met.

(4) Parties whose intent differs 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

c h a r g e d a s a p e r p e t r a t o r o r a n “ o t h e r p a r t y ” t o

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 ) I t m u s t o c c u r b e f o r e t h e o f f e n s e i s

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 78—Accessory after the fact

a. Text of statute. 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.

(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 ) T h a t t h e r e a f t e r t h e a c c u s e d r e c e i v e d , c o m -

forted, 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 princip a l ( f o r e x a m p l e , b y c o n c e a l i n g e v i d e n c e o f t h e

offense).

(2) Failure to report offense. The mere failure to

IV-2

¶1.b.(2)(b)(ii)
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

o f f e n s e i n v o l v e d i s a s e r i o u s o f f e n s e , f a i l u r e t o

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 ) C o n v i c t i o n o r a c q u i t t a l o f p r i n c i p a l . T h e

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 after 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 req u i r e d b u t m a y b e p r o v e d b y c i r c u m s t a n t i a l

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

10 years in any case, including offenses for which

life imprisonment may be adjudged.

f. Sample specification.

In that (personal jurisdiction data), knowi n g t h a t ( a t / o n b o a r d — l o c a t i o n ) , o n o r

a b o u t 2 0 , h a d

committed an offense punishable by the Uniform

Code of Military Justice, to wit: , did,

(at/on board—location) (subject-matter jurisdiction

data, if required), on or about 20 ,

in order to (hinder) (prevent) the (apprehension) (trial) (punishment) of the said , (rec e i v e ) ( c o m f o r t ) ( a s s i s t ) t h e

said by .

3. Article 79—Conviction of lesser included

offenses

a. Text of statute. 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

a g a i n s t i t i n a d d i t i o n t o t h e o f f e n s e s p e c i f i c a l l y

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 a 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 court-martial may find an accused not guilty of

IV-3

¶3.b.(2)
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

A r t i c l e 1 1 8 , b u t f o u n d g u i l t y o f v o l u n t a r y m a n -

slaughter in violation of Article 119. Such a finding

may be worded as follows:

( 4 ) S p e c i f i c l e s s e r i n c l u d e d o f f e n s e s . S p e c i f i c

lesser included offenses, if any, are listed for each

offense discussed in this Part, but the lists are not

all-inclusive.

4. Article 80—Attempts

a. Text of statute.

(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 ) I n g e n e r a l . T o c o n s t i t u t e a n a t t e m p t t h e r e

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 burn a haystack is not an attempt to commit

arson, but it is an attempt to commit arson to applying 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 ) F a c t u a l i m p o s s i b i l i t y . A p e r s o n w h o p u r -

posely 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 defect i v e a n d w i l l n o t f i r e . S i m i l a r l y , a p e r s o n w h o

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) Voluntary abandonment. It is a defense to an

attempt offense that the person voluntarily and comp l e t e l y a b a n d o n e d t h e i n t e n d e d c r i m e , s o l e l y b e -

cause of the person’s own sense that it was wrong,

prior to the completion of the crime. The voluntary

abandonment defense is not allowed if the abandonment results, in whole or in part, from other reasons,

for example, the person feared detection or apprehension, decided to await a better opportunity for

success, was unable to complete the crime, or enc o u n t e r e d u n a n t i c i p a t e d d i f f i c u l t i e s o r u n e x p e c t e d

resistance. A person who is entitled to the defense of

voluntary abandonment may nonetheless be guilty of

a lesser included, completed offense. For example, a

p e r s o n w h o v o l u n t a r i l y a b a n d o n e d a n a t t e m p t e d

armed robbery may nonetheless be guilty of assault

with a dangerous weapon.

(5) Solicitation. Soliciting another to commit an

IV-4

¶3.b.(2)
offense does not constitute an attempt. See paragraph 6 for a discussion of article 82, solicitation.

(6) Attempts not under Article 80. While most

attempts should be charged under Article 80, the

f o l l o w i n g a t t e m p t s a r e s p e c i f i c a l l y a d d r e s s e d b y

s o m e o t h e r a r t i c l e , a n d s h o u l d b e c h a r g e d

accordingly:

(a) Article 85—desertion

(b) Article 94—mutiny or sedition.

(c) Article 100—subordinate compelling

(d) Article 104—aiding the enemy

(e) Article 106a—espionage

(f) Article 119a-attempting to kill an unborn

child

(g) Article 128—assault

(7) 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

t h e a c c u s e d i n t e n d e d t o c o m m i t t h e p r o h i b i t e d

conduct.

d . L e s s e r i n c l u d e d o f f e n s e s . I f t h e a c c u s e d i s

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 be adjudged, nor shall any mandatory minimum

punishment provisions apply; and in no case, other

than attempted murder, shall confinement exceeding

20 years be adjudged.

f. Sample specification.

In that (personal jurisdiction data)

did, (at/on board—location) (subject-matter jurisdict i o n d a t a , i f r e q u i r e d ) , o n o r

about 20 , attempt to (describe offense with sufficient detail to include expressly or

by necessary implication every element).

5. Article 81—Conspiracy

a. Text of statute. 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 courtmartial 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-conspirat o r s p e r f o r m e d a n o v e r t a c t f o r t h e p u r p o s e o f

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

e s t a b l i s h e d . T h e a c c u s e d m u s t b e s u b j e c t t o t h e

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

f u r t h e r a n c e o f t h e o b j e c t o f t h e a g r e e m e n t i s

committed.

( 2 ) A g r e e m e n t . T h e a g r e e m e n t i n a c o n s p i r a c y

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

IV-5

¶5.c.(3)
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 cons p i r a c y b y a n y o f t h e c o - c o n s p i r a t o r s w h i l e t h e

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

t h e r e a f t e r b y t h e r e m a i n i n g c o n s p i r a t o r s . T h e

w i t h d r a w a l o f a c o n s p i r a t o r f r o m t h e c o n s p i r a c y

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

o v e r t a c t . T h e s e c o n s p i r a c i e s s h o u l d b e c h a r g e d

under Article 134. Examples include conspiracies to

impede or injure any Federal officer in the discharge

o f d u t i e s u n d e r 1 8 U . S . C . § 3 7 2 , c o n s p i r a c i e s

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, (at/on board—location) (subject-matter jurisdict i o n d a t a , i f r e q u i r e d ) , o n o r

a b o u t 2 0 , c o n s p i r e

w i t h ( a n d ) t o c o m m i t a n

offense under the Uniform Code of Military Justice,

to wit: (larceny of , of a value of (about)

$ , the property of ), and in

o r d e r t o e f f e c t t h e o b j e c t o f t h e c o n s p i r a c y t h e

s a i d ( a n d )

did .

IV-6

¶5.c.(3)
6. Article 82—Solicitation

a. Text of statute.

(a) Any person subject to this chapter who solicits or advises another or other 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 adv i s e d i s a t t e m p t e d o r c o m m i t t e d , b e p u n i s h e d

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 ) T h a t t h e o f f e n s e s o l i c i t e d o r a d v i s e d w a s

(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

t h e f o u r o f f e n s e s n a m e d i n A r t i c l e 8 2 m a y b e

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 ) T o m u t i n y — D i s h o n o r a b l e d i s c h a r g e , f o r f e i -

ture of all pay and allowances, and confinement for

10 years.

(3) To commit an act of misbehavior before the

e n e m y — D i s h o n o r a b l e d i s c h a r g e , f o r f e i t u r e o f a l l

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),

d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r

about 20 , (a time of

war) by (here state the manner and form of solicitat i o n o r a d v i c e ) , ( s o l i c i t ) ( a d -

vise) (and ) to (desert

in violation of Article 85) (mutiny in violation of

Article 94)

[Note: If the offense solicited or advised is attempted

IV-7

¶6.f.(1)
or committed, add the following at the end of the

specification: ]

and, as a result of such (solicitation) (advice), the

o f f e n s e ( s o l i c i t e d ) ( a d v i s e d ) w a s , o n o r

a b o u t , 2 0 , ( a t / o n

b o a r d — l o c a t i o n ) , ( a t t e m p t e d ) ( c o m m i t t e d )

by (and ).

(2) For soliciting an act of misbehavior before

the enemy (Article 99) or sedition (Article 94).

In that (personal jurisdiction data)

d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r

a b o u t 2 0 , ( a t i m e o f w a r ) b y

(here state the manner and form of solicitation or

a d v i c e ) , ( s o l i c i t ) ( a d v i s e ) , 

(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 committ e d , a d d t h e f o l l o w i n g a t t h e e n d o f t h e

specification:]

and, as a result of such (solicitation) (advice), the

o f f e n s e ( s o l i c i t e d ) ( a d v i s e d ) w a s , o n o r

a b o u t 2 0 , ( a t / o n

b o a r d — l o c a t i o n ) , c o m m i t t e d

by (and ).

7. Article 83—Fraudulent enlistment,

appointment, or separation

a. Text of statute.

Any person who—

( 1 ) p r o c u r e s h i s o w n e n l i s t m e n t o r a p p o i n t -

ment 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 ) p r o c u r e s h i s o w n s e p a r a t i o n f r o m t h e

armed forces by knowingly false representation

or deliberate concealment as to his eligibility for

that separation;

s h a l l b e p u n i s h e d a s a c o u r t - m a r t i a l m a y

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

that 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, appointm e n t , o r s e p a r a t i o n i s o n e p r o c u r e d b y e i t h e r a

knowingly false representation as to any of the qualifications 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

e n l i s t m e n t , a p p o i n t m e n t , o r s e p a r a t i o n b y s e v e r a l

IV-8

¶6.f.(1)
misrepresentations or concealment 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 ) F r a u d u l e n t e n l i s t m e n t o r a p p o i n t m e n t . D i s -

honorable discharge, forfeiture of all pay and allowances, and confinement for 2 years.

( 2 ) F r a u d u l e n t s e p a r a t i o n . D i s h o n o r a b l e d i s -

charge, forfeiture of all pay and allowances, and

confinement for 5 years.

f. Sample specifications.

(1) For fraudulent enlistment or appointment. 

I n t h a t ( p e r s o n a l j u r i s d i c t i o n d a t a ) ,

d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r

a b o u t 2 0 , b y m e a n s

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 of facts)) (deliberate

concealment of the fact that (here state the fact or

facts disqualifying the accused for enlistment or appointment which were concealed)), procure himself/

herself 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, (at/on board—locat i o n ) , r e c e i v e ( p a y ) ( a l l o w a n c e s ) ( p a y a n d

allowances) under the enlistment) (appointment) so

procured.

(2) For fraudulent separation.

In that (personal jurisdiction data),

d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r

a b o u t 2 0 , b y m e a n s

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

himself/herself to be separated from the (here state

the armed force from which the accused procured

his/her separation).

8. Article 84—Effecting unlawful enlistment,

appointment, or separation

a. Text of statute. 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

t h e t i m e o f t h e e n l i s t m e n t , a p p o i n t m e n t , o r

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

a c c u s e d t h e n k n e w t h a t t h e p e r s o n e n l i s t e d , a p -

pointed, or separated was ineligible for the enlistment, appointment, or separation.

d. Lesser included offense. Article 80—attempts

e . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e ,

forfeiture of all pay and allowances, and confinement for 5 years.

f. Sample specification.

I n t h a t ( p e r s o n a l j u r i s d i c t i o n d a t a ) ,

d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r

a b o u t 2 0 , e f f e c t ( t h e

( e n l i s t m e n t ) ( a p p o i n t m e n t ) o f a s

a i n ( h e r e s t a t e t h e a r m e d f o r c e i n

which the person was enlisted or appointed)) (the

separation of from (here state 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 of statute.

(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

IV-9

¶9.a.(a)(2)
(3) without being regularly separated from

one of the armed forces enlists or accepts an app o i n t m e n t i n t h e s a m e o r a n o t h e r o n e o f t h e

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

M i l i t a r y A p p e a l s i n U n i t e d S t a t e s v . H u f f , 7

U.S.C.M.A. 247, 22 C.M.R. 37 (1956)]; is guilty of

desertion.

( b ) A n y c o m m i s s i o n e d o f f i c e r o f t h e a r m e d

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

o t h e r t i m e , b y s u c h p u n i s h m e n t , o t h e r t h a n

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

i n t e n t t o r e m a i n a w a y t h e r e f r o m p e r m a n e n t l y . A

prompt repentance 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

IV-10

¶9.a.(a)(3)
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.

( i i ) T h e a c c u s e d m u s t h a v e i n t e n d e d t o

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

m a y b e e s t a b l i s h e d b y c i r c u m s t a n t i a l e v i d e n c e .

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

i n t e n t i o n t o d e s e r t ; t h a t t h e a c c u s e d w a s u n d e r

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 separated, 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, an unauthorized absence, even of extended duration, does

not, without more, prove guilt of desertion.

(d) Effect 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. Furthermore, 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

a c c e p t s a n a p p o i n t m e n t i n t h e s a m e o r a n o t h e r

armed force, and deserts while serving the enlistment or appointment, the person may be tried and

convicted for each desertion.

(2) Quitting unit, organization, or place of duty

with intent to avoid hazardous duty or to shirk important service.

( a ) H a z a r d o u s d u t y o r i m p o r t a n t s e r v i c e .

“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

practice, maneuvers, and practice marches are not

o r d i n a r i l y “ h a z a r d o u s d u t y o r i m p o r t a n t s e r v i c e . ”

Whether a duty is hazardous or a service is important depends upon the circumstances of the particular case, and is a question of fact for the courtmartial to decide.

(b) Quits. “Quits” in Article 85 means “goes

absent without authority.”

(c) Actual knowledge. Article 85 a(2) requires

proof that the accused actually knew of the hazardIV-11

¶9.c.(2)(c)
ous duty or important service. Actual knowledge

may be proved by circumstantial evidence.

( 3 ) A t t e m p t i n g t o d e s e r t . O n c e t h e a t t e m p t i s

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(1)(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 . L e s s e r i n c l u d e d o f f e n s e . A r t i c l e 8 6 — a b s e n c e

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 ) T e r m i n a t e d o t h e r w i s e . D i s h o n o r a b l e d i s -

charge, 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 specifications.

(1) Desertion with intent to remain away permanently.

I n t h a t ( p e r s o n a l j u r i s d i c t i o n d a t a ) ,

did, on or about 20 , (a time of

war) without authority and with intent to remain

away therefrom permanently, absent himself/herself

from his/her (unit) (organization) (place of duty), to

wit: , located at ( ), and did

remain so absent in desertion until (he/she was apprehended) on or about 20 .

(2) Desertion with intent to avoid hazardous duty

or shirk important service.

I n t h a t ( p e r s o n a l j u r i s d i c t i o n d a t a ) ,

did, on or about 20 , (a time of

war) with intent to (avoid hazardous duty) (shirk

important service), namely: , quit his/her

( u n i t ) ( o r g a n i z a t i o n ) ( p l a c e o f d u t y ) , t o

wit: , located at ( ), and did

r e m a i n s o a b s e n t i n d e s e r t i o n u n t i l o n o r

about 20 .

(3) Desertion prior to acceptance of resignation.

I n t h a t ( p e r s o n a l j u r i s d i c t i o n d a t a )

having tendered his/her resignation and prior to due

notice of the acceptance of the same, did, on or

about 20 , (a time of

war) without leave and with intent to remain away

therefrom permanently, quit his/her (post) (proper

duties), to wit: , and did remain so

absent in desertion until (he/she was apprehended)

on or about 20 .

(4) Attempted desertion.

I n t h a t ( p e r s o n a l j u r i s d i c t i o n d a t a ) ,

d i d ( a t / o n b o a r d - l o c a t i o n ) , o n o r

about 20 , (a time of

war) attempt to (absent himself/herself from his/her

( u n i t ) ( o r g a n i z a t i o n ) ( p l a c e o f d u t y ) t o

wit: , without authority and with intent

to remain away therefrom permanently) (quit his/her

( u n i t ) ( o r g a n i z a t i o n ) ( p l a c e o f d u t y ) , t o

wit: , located at , with

intent to (avoid hazardous duty) (shirk important

service) namely ) ( ).

10. Article 86—Absence without leave

a. Text of statute. 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;

IV-12

¶9.c.(2)(c)
(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 ) T h a t t h e a b s e n c e w a s w i t h o u t a u t h o r i t y

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 ) T h a t t h e a b s e n c e w a s t e r m i n a t e d b y

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 absence of the accused was without

authority; and

[Note: If the absence was with intent to abandon the

accused’s guard, watch, or duty section, add the

following element]

(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 or field 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 ) T h a t t h e a c c u s e d k n e w t h a t t h e a b s e n c e

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 and 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 ) A g g r a v a t e d f o r m s o f u n a u t h o r i z e d a b s e n c e .

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

s p e c i f i c i n t e n t w h i c h a c c o m p a n i e s t h e a b s e n c e .

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 ) U n a u t h o r i z e d a b s e n c e f o r m o r e t h a n 3 0

days (duration).

(c) Unauthorized absence from a guard, watch,

or duty (special type of duty).

(d) Unauthorized absence from guard, watch,

IV-13

¶10.c.(4)(d)
or duty section with the intent to abandon it (special

type of duty and specific intent).

( e ) U n a u t h o r i z e d a b s e n c e w i t h t h e i n t e n t t o

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, tried, and acquitted by civilian authorities, the

m e m b e r ’ s s t a t u s a s a b s e n t w i t h l e a v e , o r a b s e n t

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

p r o b a t i o n a r y p e r i o d d o e s n o t e x c u s e a n y u n -

authorized 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 ) I n a b i l i t y t o r e t u r n . T h e s t a t u s o f a b s e n c e

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

m a x i m u m p u n i s h m e n t a u t h o r i z e d f o r t h e o f f e n s e .

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 and return 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 an 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 withIV-14

¶10.c.(4)(d)
out 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

o n e s p e c i f i c a t i o n . A n a c c u s e d m a y p r o p e r l y b e

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 appointed

place of duty. Confinement for 1 month and forfeiture of two-thirds pay per month for 1 month.

( 2 ) A b s e n c e f r o m u n i t , o r g a n i z a t i o n , o r o t h e r

place of duty.

(a) For not more than 3 days. Confinement for

1 month 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 6months.

(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

a l l p a y a n d a l l o w a n c e s , a n d c o n f i n e m e n t f o r 1 8

months.

( 3 ) F r o m g u a r d o r w a t c h . C o n f i n e m e n t f o r 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 or field 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

t h a t ( p e r s o n a l j u r i s d i c t i o n d a t a ) , d i d

( a t / o n b o a r d — l o c a t i o n ) , o n o r

about 20 , without authority, (fail to go at the time prescribed to) (go

from) his/her appointed place of duty, to wit: (here

set forth the appointed place of duty).

(2) Absence from unit, organization, or place of

d u t y . I n t h a t ( p e r s o n a l j u r i s d i c t i o n

data), did, on or about 20 , witho u t a u t h o r i t y , a b s e n t h i m s e l f / h e r s e l f f r o m h i s / h e r

(unit) (organization) (place of duty at which he/she

w a s r e q u i r e d t o b e ) , t o w i t : , l o c a t e d

at , and did remain so absent until (he/

s h e w a s a p p r e h e n d e d ) o n o r

about 20 .

(3) Absence from unit, organization, or place of

duty with intent to avoid maneuvers or field exerc i s e s . I n t h a t ( p e r s o n a l j u r i s d i c t i o n

data), did, on or about 20 , without authority and with intent to avoid (maneuvers)

(field exercises), absent himself/herself from his/her

(unit) (organization) (place of duty at which he/she

was required to be), to wit: located at

( ), and did remain so absent until

on or about 20 .

( 4 ) A b a n d o n i n g w a t c h o r g u a r d . I n t h a t -

( p e r s o n a l j u r i s d i c t i o n d a t a ) , b e i n g a

member of the (guard) (watch) (duty

s e c t i o n ) , d i d , ( a t / o n b o a r d - l o c a t i o n ) , o n o r

about 20 , without authority, go from his/her (guard) (watch) (duty section) (with intent to abandon the same).

11. Article 87—Missing movement

a. Text of statute.

A n y p e r s o n s u b j e c t t o t h i s c h a p t e r w h o

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 ) T h a t t h e a c c u s e d k n e w o f t h e p r o s p e c t i v e

movement of the ship, aircraft or unit;

(3) That the accused missed the movement of the

ship, aircraft or unit; and

( 4 ) T h a t t h e a c c u s e d m i s s e d t h e m o v e m e n t

through design or neglect.

IV-15

¶11.b.(4)
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

n o t c o n s t i t u t e a “ m o v e m e n t ” i n c l u d e p r a c t i c e

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

e s s e n t i a l t o e s t a b l i s h t h e o f f e n s e o f m i s s i n g

movement.

(3) Design. “Design” means on purpose, intentionally, or according to plan and requires specific

intent to miss the movement.

( 4 ) N e g l e c t . “ N e g l e c t ” m e a n s t h e o m i s s i o n t o

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

t h e p r o s p e c t i v e m o v e m e n t t o s u c h a d i s t a n c e a s

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 ) A r t i c l e 8 7 — m i s s i n g m o v e m e n t t h r o u g h

neglect

(b) Article 86—absence without authority

(c) Article 80—attempts

( 2 ) N e g l e c t . A r t i c l e 8 6 — a b s e n c e w i t h o u t

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.

I n t h a t ( p e r s o n a l j u r i s d i c t i o n d a t a ) ,

d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r

about 20 , through (negl e c t ) ( d e s i g n ) m i s s t h e m o v e m e n t o f ( A i r c r a f t

N o . ) ( F l i g h t ) ( t h e

USS ) (Company A, 1st Battalion, 7th Infantry) ( ) with which he/she was

required in the course of duty to move.

12. Article 88—Contempt toward officials

a. Text of statute.

Any commissioned officer who uses contemptuous words against the President, the Vice Presid e n t , C o n g r e s s , t h e S e c r e t a r y o f D e f e n s e , t h e

Secretary of a military department, the Secretary

of Homeland Security, 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.

IV-16

¶11.c.
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 ) T h a t t h e a c c u s e d w a s t h e n p r e s e n t i n t h e

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

A r t i c l e 8 8 a t t h e t i m e o f t h e o f f e n s e . N e i t h e r

“Congress” nor “legislature” includes its members

i n d i v i d u a l l y . “ G o v e r n o r ” d o e s n o t i n c l u d e

“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

d i s c u s s i o n , e v e n t h o u g h e m p h a t i c a l l y e x p r e s s e d ,

may not be charged as a violation of the article.

Similarly, expressions of opinion made in a purely

p r i v a t e c o n v e r s a t i o n s h o u l d n o t o r d i n a r i l y b e

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 specification.

I n t h a t ( p e r s o n a l j u r i s d i c t i o n d a t a ) ,

d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r

about 20 , [use (orally and

publicly) ( ) the following contemptuous words] [in a contemptuous manner, use (orally

a n d p u b l i c l y ) ( ) t h e f o l l o w i n g w o r d s ]

against the [(President) (Vice President) (Congress)

(Secretary of )] [(Governor) (legislature)

o f t h e ( S t a t e o f ) ( T e r r i t o r y

o f ) ( ) , a ( S t a t e ) ( T e r r i t o r y )

( ) i n w h i c h h e / s h e , t h e

said , was then (on duty), (present)],

to wit: “ ,” or words to that effect.

13. Article 89—Disrespect toward a superior

commissioned officer

a. Text of statute.

Any person subject to this chapter who behaves with disrespect toward his superior commissioned officer shall be punished as a courtmartial 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

w o r d s w e r e d i r e c t e d w a s t h e a c c u s e d ’ s s u p e r i o r

commissioned officer; and

(5) That, under the circumstances, the behavior or

l a n g u a g e w a s d i s r e s p e c t f u l t o t h a t c o m m i s s i o n e d

officer.

c. Explanation.

(1) Superior commissioned officer.

(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 ) A c c u s e d a n d v i c t i m i n d i f f e r e n t a r m e d

forces. If the accused and the victim are in different

a r m e d f o r c e s , t h e v i c t i m i s a “ s u p e r i o r c o m m i s -

sioned 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

IV-17

¶13.c.(1)(b)
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 office. It is not necessary that

the “superior commissioned officer” be in the execut i o n o f o f f i c e a t t h e t i m e o f t h e d i s r e s p e c t f u l

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 ) D i s r e s p e c t . D i s r e s p e c t f u l b e h a v i o r i s t h a t

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. Disr e s p e c t b y w o r d s m a y b e c o n v e y e d b y a b u s i v e

epithets or other contemptuous or denunciatory language. Truth is no defense. Disrespect by acts includes neglecting the customary salute, or showing a

m a r k e d d i s d a i n , i n d i f f e r e n c e , i n s o l e n c e , i m p e r t i -

nence, 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 . M a x i m u m p u n i s h m e n t . B a d - c o n d u c t d i s c h a r g e ,

forfeiture of all pay and allowances, and confinement for 1 year.

f. Sample specification.

I n t h a t ( p e r s o n a l j u r i s d i c t i o n d a t a ) ,

d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r

about 20 , behave himself/

herself with disrespect toward , his/

her superior commissioned officer, then known by

the said to be his/her superior commissioned officer, by (saying to him/her “ ,”

o r w o r d s t o t h a t e f f e c t ) ( c o n t e m p t u o u s l y t u r n i n g

f r o m a n d l e a v i n g h i m / h e r w h i l e h e / s h e , t h e

s a i d , w a s t a l k i n g t o h i m / h e r , t h e

said ) ( ).

14. Article 90—Assaulting or willfully

disobeying superior commissioned officer

a. Text of statute. 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.

b. Elements.

(1) Striking or assaulting superior commissioned

officer.

(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 officer.

(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

IV-18

¶13.c.(1)(b)
(d) That the accused willfully disobeyed the

lawful command.

c. Explanation.

(1) Striking or assaulting superior commissioned

officer.

(a) Definitions.

(i) Superior commissioned officer. The definitions in paragraph 13c(1)(a) and( b) apply here

and in subparagraph c(2).

( i i ) S t r i k e s . “ S t r i k e s ” m e a n s a n i n t e n t i o n a l

blow, and includes any offensive touching of the

person of an officer, however slight.

(iii) Draws or lifts 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 striking 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 officer.

(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) Determination of lawfulness. The lawfulness of an order is a question of law to be determined by the military judge.

(iii) Authority of issuing officer. 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.

(iv) 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.

( v ) R e l a t i o n s h i p t o s t a t u t o r y o r c o n s t i t u -

tional 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

IV-19

¶14.c.(2)(b)
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

o n e ’ s m i l i t a r y d u t y d o e s n o t c o n s t i t u t e a n o r d e r

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

c o m m i s s i o n e d o f f i c e r . A c t u a l k n o w l e d g e m a y b e

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 ) C i v i l i a n s a n d d i s c h a r g e d p r i s o n e r s . A d i s -

charged 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 ) A r t i c l e 1 2 8 — a s s a u l t o r a s s a u l t c o n s u m -

mated 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 office.

( a ) A r t i c l e 1 2 8 — a s s a u l t , a s s a u l t w i t h d a n -

gerous 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 offic e r i n t h e e x e c u t i o n o f o f f i c e . D i s h o n o r a b l e d i s -

charge, forfeiture of all pay and allowances, and

confinement for 10 years.

(2) Willfully disobeying a lawful order of superior commissioned officer. 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 specifications.

(1) Striking superior commissioned officer.

In that (personal jurisdiction data),

did, (at/on board—location) (subject-matter jurisdict i o n d a t a , i f r e q u i r e d ) , o n o r

a b o u t 2 0 , ( a t i m e o f w a r )

s t r i k e , h i s / h e r s u p e r i o r c o m m i s s i o n e d

officer, then known by the said to be

his/her superior commissioned officer, who was then

i n t h e e x e c u t i o n o f h i s / h e r o f f i c e , ( i n ) ( o n )

the with (a) (his/her) .

(2) Drawing or lifting up a weapon against superior commissioned officer.

In that (personal jurisdiction data),

did, (at/on board—location) (subject-matter jurisdict i o n d a t a , i f r e q u i r e d ) , o n o r

about 20 , (a time of war) (draw)

l i f t u p ) a w e a p o n , t o w i t : a ,

IV-20

¶14.c.(2)(b)
against , his/her superior commissioned

officer, then known by the said to be

his/her superior commissioned officer, who was then

in the execution of his/her office.

(3) Offering violence to superior commissioned

officer.

In that (personal jurisdiction data),

did, (at/on board—location) (subject-matter jurisdict i o n d a t a , i f r e q u i r e d ) , o n o r

about 20 , (a time of war) offer

violence against , his/her superior comm i s s i o n e d o f f i c e r , t h e n k n o w n b y t h e s a i d -

to be his/her superior commissioned

officer, who was then in the execution of his/her

office, by .

( 4 ) W i l l f u l d i s o b e d i e n c e o f s u p e r i o r c o m m i s -

sioned officer.

In that (personal jurisdiction data),

h a v i n g r e c e i v e d a l a w f u l c o m m a n d

f r o m , h i s / h e r s u p e r i o r c o m m i s s i o n e d

officer, then known by the said to be

h i s / h e r s u p e r i o r c o m m i s s i o n e d o f f i c e r ,

to , or words to that effect, did, (at/on

b o a r d — l o c a t i o n ) , o n o r

a b o u t 2 0 , w i l l f u l l y d i s o b e y

the same.

15. Article 91—Insubordinate conduct

toward warrant officer, noncommissioned

officer, or petty officer

a. Text of statute. 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 offic e r , n o n c o m m i s s i o n e d o f f i c e r , o r p e t t y o f f i c e r

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 officer.

(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 officer.

(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 ) T h a t t h e a c c u s e d w i l l f u l l y d i s o b e y e d t h e

order.

(3) Treating with contempt or being disrespectful

in language or deportment toward a warrant, noncommissioned, or petty officer.

(a) That the accused was a warrant officer or

enlisted member;

( b ) T h a t t h e a c c u s e d d i d o r o m i t t e d c e r t a i n

acts, or used certain language;

(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

IV-21

¶15.b.(3)(f)
or was disrespectful to said warrant, noncommissioned, or petty officer.

[Note: If the victim was the superior noncommiss i o n e d , o r p e t t y o f f i c e r o f t h e a c c u s e d , a d d t h e

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

w a s t h e a c c u s e d ’ s s u p e r i o r n o n c o m m i s s i o n e d , o r

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

A r t i c l e 9 1 r e q u i r e t h a t t h e a c c u s e d h a v e a c t u a l

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 officer. 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 officer. 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, or petty 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 officer in the execution of office.

(a) Article 128—assault; assault consummated

by a battery; assault with a dangerous weapon

( b ) A r t i c l e 1 2 8 — a s s a u l t u p o n w a r r a n t , n o n -

commissioned, or petty officer not in the execution

of office

(c) Article 80—attempts

(2) Disobeying a warrant, noncommissioned, or

petty officer.

(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 ) S t r i k i n g o r a s s a u l t i n g s u p e r i o r n o n c o m m i s -

sioned 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 ) W i l l f u l l y d i s o b e y i n g t h e l a w f u l o r d e r o f a

warrant officer. Dishonorable discharge, forfeiture

of all pay and allowances, and confinement for 2

years.

(5) Willfully disobeying the lawful order of a nonc o m m i s s i o n e d o r p e t t y o f f i c e r . B a d - c o n d u c t d i s -

charge, forfeiture of all pay and allowances, and

confinement for 1 year.

( 6 ) C o n t e m p t o r d i s r e s p e c t t o w a r r a n t o f f i c e r .

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.

IV-22

¶15.b.(3)(f)
(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 specifications.

(1) Striking or assaulting warrant, noncommissioned, or petty officer.

In that (personal jurisdiction data),

did, (at/on board—location) (subject-matter jurisdict i o n d a t a , i f r e q u i r e d ) , o n o r

a b o u t 2 0 , ( s t r i k e ) ( a s -

s a u l t ) , a o f f i c e r , t h e n

k n o w n t o t h e s a i d t o b e a ( s u p e r -

ior) officer who was then in the

e x e c u t i o n o f h i s / h e r o f f i c e ,

b y h i m / h e r ( i n ) ( o n )

( t h e ) w i t h ( a ) ( h i s /

her) .

(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 saidt o b e a o f f i c e r ,

to , an order which it was his/her duty

t o o b e y , d i d ( a t / o n b o a r d — l o c a t i o n ) , o n o r

a b o u t 2 0 , w i l l f u l l y d i s o b e y t h e

same.

(3) Contempt or disrespect toward warrant, noncommissioned, or petty officer.

In that (personal jurisdiction data)

( a t / o n b o a r d — l o c a t i o n ) , o n o r

a b o u t 2 0 , [ d i d t r e a t

with contempt] [was disrespectful in (language) (dep o r t m e n t ) t o w a r d ] ,

a o f f i c e r , t h e n k n o w n b y t h e s a i d -

t o b e a ( s u p e r i o r ) -

officer, who was then in the execution

o f h i s / h e r o f f i c e , b y ( s a y i n g t o h i m / h e r ,

“ ,” or words to that effect) (spitting at his/her feet) ( )

16. Article 92—Failure to obey order or

regulation

a. Text of statute. 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 ) T h a t t h e a c c u s e d h a d k n o w l e d g e o f t h e

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 performance of duties.

(a) That the accused had certain duties;

( b ) T h a t t h e a c c u s e d k n e w o r r e a s o n a b l y

should have known 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 Homeland Security,

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 ) a n o f f i c e r h a v i n g g e n e r a l c o u r t - m a r t i a l

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) reIV-23

¶16.c.(1)(b)
tains 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

b y a n o t h e r o f f i c e r w h o i s n o t a g e n e r a l o r f l a g

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

o r r e g u l a t i o n n e e d n o t b e a l l e g e d o r p r o v e d , a s

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 guidel i n e s o r a d v i c e f o r c o n d u c t i n g m i l i t a r y f u n c t i o n s

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 (1)(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 ) F r o m a s u p e r i o r . A m e m b e r o f o n e

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(1).

(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 ) K n o w l e d g e . A c t u a l k n o w l e d g e o f d u t i e s

may be proved by circumstantial evidence. Actual

knowledge need not be shown if the individual reasonably should have known of the duties. This may

be demonstrated by regulations, training or operating

manuals, customs of the service, academic literature

or testimony, testimony of persons who have held

similar or superior positions, or similar 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 ineffic i e n t m a n n e r . “ W i l l f u l l y ” m e a n s i n t e n t i o n a l l y . I t

refers to the doing of an act knowingly and purposely, specifically intending the natural and probable

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 of 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

IV-24

¶16.c.(1)(b)
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 specific a l l y p r e s c r i b e d e l s e w h e r e f o r t h a t p a r t i c u l a r

offense.]

(3) Dereliction in the performance 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, (at/on board—location) (subject-matter jurisdict i o n d a t a , i f r e q u i r e d ) , o n o r

about 20 , (violate) (fail to obey)

a lawful general (order) (regulation), to wit: (paragraph , (Army) (Air Force) Regulat i o n , d a t e d 2 0 )

( A r t i c l e , U . S . N a v y R e g u l a t i o n s ,

d a t e d 2 0 ) ( G e n e r a l O r -

d e r N o . , U . S . N a v y ,

d a t e d 2 0 ) ( ) , b y

(wrongfully) .

(2) Violation or failure to obey other lawful written order.

In that (personal jurisdiction data),

h a v i n g k n o w l e d g e o f a l a w f u l o r d e r i s s u e d

b y , t o w i t : ( p a r a g r a p h ,

( t h e C o m b a t G r o u p R e g u l a t i o n

N o . ) ( U S S ,

R e g u l a t i o n t i o n ) , d a t e d )

( ), an order which it was his/her duty to

obey, did, (at/on board—location) (subject-matter jur i s d i c t i o n d a t a , i f r e q u i r e d ) , o n o r

about 20 , fail to obey

the same by (wrongfully) .

(3) Failure to obey other lawful order.

In that , (personal jurisdiction data)

h a v i n g k n o w l e d g e o f a l a w f u l o r d e r i s s u e d

b y ( t o s u b m i t t o c e r t a i n m e d i c a l t r e a t -

m e n t ) ( t o ) ( n o t t o )

( ), an order which it was his/her duty to

obey, did (at/on board—location) (subject-matter jur i s d i c t i o n d a t a , i f r e q u i r e d ) , o n o r

about 20 , fail to obey the

same (by (wrongfully) .)

(4) Dereliction in the performance of duties.

In that , (personal jurisdiction data), who (knew) (should have known) of his/her dut i e s ( a t / o n b o a r d — l o c a t i o n ) ( s u b j e c t - m a t t e r

j u r i s d i c t i o n d a t a , i f r e q u i r e d ) , ( o n o r

a b o u t 2 0 ) ( f r o m

a b o u t 2 0 t o

a b o u t 2 0 ) , w a s d e r e l i c t i n t h e

p e r f o r m a n c e o f t h o s e d u t i e s i n t h a t h e / s h e

( n e g l i g e n t l y ) ( w i l l f u l l y ) ( b y c u l p a b l e i n e f f i c i e n c y )

failed , as it was his/her duty to do.

17. Article 93—Cruelty and maltreatment

a. Text of statute.

A n y p e r s o n s u b j e c t t o t h i s c h a p t e r w h o i s

g u i l t y o f c r u e l t y t o w a r d , o r o p p r e s s i o n o r

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 ) N a t u r e o f a c t . T h e c r u e l t y , o p p r e s s i o n , o r

m a l t r e a t m e n t , a l t h o u g h n o t n e c e s s a r i l y p h y s i c a l ,

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

IV-25

¶17.c.(2)
even though the duties are arduous or hazardous or

both.

d. Lesser included offense. Article 80—attempts

e . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e ,

forfeiture of all pay and allowances, and confinement for 1 year.

f. Sample specification.

In that (personal jurisdiction data),

(at/on board—location) (subject-matter jurisdiction

data, if required), on or about 20 ,

( w a s c r u e l t o w a r d ) ( d i d ( o p p r e s s ) ( m a l -

treat)) , a person subject to his/her orders, by (kicking him/her in the stomach) (confining

him/her for twenty-four hours without water)

( ).

18. Article 94—Mutiny and sedition

a. Text of statute.

Any person subject to this chapter who—

(1) with intent to usurp or override lawful military authority, refuse, 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 p e r s o n w h o i s f o u n d g u i l t y o f a t -

tempted 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 override lawful

military authority.

(2) Mutiny by refusing to obey orders or 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 override 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

u t m o s t t o p r e v e n t a n d s u p p r e s s t h e m u t i n y o r

sedition.

(5) Failure to report a mutiny or sedition.

( a ) T h a t a n o f f e n s e o f m u t i n y o r s e d i t i o n

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)(1) defines two types of

mutiny, both requiring an intent to usurp or override

military authority.

(a) Mutiny by creating violence or disturbance.

IV-26

¶17.c.(2)
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

p e r f o r m d u t i e s r e q u i r e s c o l l e c t i v e i n s u b o r d i n a t i o n

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 override 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(1)(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.

W h e n t h e c i r c u m s t a n c e s k n o w n t o t h e a c c u s e d

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 ) A t t e m p t e d m u t i n y . F o r a d i s c u s s i o n o f a t -

tempts, see paragraph 4.

d. Lesser included offenses.

(1) Mutiny by creating violence or disturbance.

( a ) A r t i c l e 9 0 — a s s a u l t o n c o m m i s s i o n e d

officer

( b ) A r t i c l e 9 1 — a s s a u l t o n w a r r a n t , n o n c o m -

missioned, 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 ) A r t i c l e 9 0 — w i l l f u l d i s o b e d i e n c e o f c o m -

missioned officer

( b ) A r t i c l e 9 1 — w i l l f u l d i s o b e d i e n c e o f w a r -

rant, noncommissioned, or petty officer

(c) Article 92—failure to obey lawful order

(d) Article 94—attempted mutiny

(3) Sedition.

(a) Article 116—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 courtmartial may direct.

f. Sample specifications.

(1) Mutiny by creating violence or disturbance.

In that (personal jurisdiction data),

with intent to (usurp) (override) (usurp and override)

lawful military authority, did, (at/on board—location) (subject-matter jurisdiction data, if required),

on or about 20 , create (violence)

(a disturbance) by (attacking the officers of the said

ship) (barricading himself/herself in Barracks T7,

f i r i n g h i s / h e r r i f l e a t , a n d e x h o r t i n g

o t h e r p e r s o n s t o j o i n h i m / h e r i n d e f i a n c e

of ) ( ).

(2) Mutiny by refusing to obey orders or perform

duties.

In that (personal jurisdiction data),

with intent to (usurp) (override) (usurp and override)

lawful military authority, did, (at/on board— locat i o n ) o n o r a b o u t 2 0 , r e -

f u s e , i n c o n c e r t

w i t h ( a n d ) ( o t h e r s

whose names are unknown), to (obey the orders

o f t o ) ( p e r f o r m h i s / h e r

duty as ).

(3) Sedition.

In that (personal jurisdiction data),

IV-27

¶18.f.(3)
with intent to cause the (overthrow) (destruction)

(overthrow and destruction) of lawful civil authority,

t o w i t : , d i d , ( a t / o n b o a r d — l o c a t i o n )

(subject-matter jurisdiction data, if required), on or

a b o u t 2 0 , i n c o n c e r t w i t h

( ) a n d ( ) ( o t h e r s w h o s e

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

t h e s u r r e n d e r o f t h e p o l i c e o f )

( ).

(4) Failure to prevent and suppress a mutiny or

sedition.

In that (personal jurisdiction data),

did, (at/on board—location) (subject-matter jurisdict i o n d a t a , i f r e q u i r e d ) , o n o r

about 20 , fail to do his/her utmost to prevent and suppress a (mutiny) (sedition)

a m o n g t h e ( s o l d i e r s ) ( s a i l o r s ) ( a i r m e n ) ( m a r i n e s )

( ) of , which (mutiny) (sedition) was being committed in his/her presence, in

that (he/she took no means to compel the dispersal

o f t h e a s s e m b l y ) ( h e / s h e m a d e n o e f f o r t t o a s -

sist 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 jurisdict i o n d a t a , i f r e q u i r e d ) , o n o r

about 20 , fail to take all reasonable means to inform his/her superior commissioned

officer or his/her commander of a (mutiny) (sedition) among the (soldiers) (sailors) (airmen) (mar i n e s ) ( ) o f , w h i c h

( m u t i n y ) ( s e d i t i o n ) h e / s h e , t h e

s a i d ( k n e w ) ( h a d r e a s o n t o b e l i e v e )

was taking place.

(6) Attempted mutiny.

In that (personal jurisdiction data),

with intent to (usurp) (override) (usurp and override)

lawful military authority, did, (at/on board— location) (subject-matter jurisdiction data, if required),

on or about 20 , attempt to (create

( v i o l e n c e ) ( a d i s t u r b a n c e )

by ) ( ).

19. Article 95—Resistance, flight, breach of

arrest, and escape

a. Text of statute.

Any person subject to this chapter who— 

( 1 ) r e s i s t s a p p r e h e n s i o n ; ( 2 ) f l e e s f r o m a p -

prehension; (3) breaks arrest; or (4) 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 ) T h a t t h e a c c u s e d a c t i v e l y r e s i s t e d t h e

apprehension.

(2) Flight from apprehension.

(a) That a certain person attempted to apprehend the accused;

(b) That said person was authorized to apprehend the accused; and

( c ) T h a t t h e a c c u s e d f l e d f r o m t h e

apprehension.

(3) 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

a r r e s t b e f o r e b e i n g r e l e a s e d f r o m t h a t a r r e s t b y

proper authority.

(4) Escape from custody.

( a ) T h a t a c e r t a i n p e r s o n a p p r e h e n d e d t h e

accused;

(b) That said person was authorized to apprehend the accused; and

(c) That the accused freed himself or herself

f r o m c u s t o d y b e f o r e b e i n g r e l e a s e d b y p r o p e r

authority.

(5) 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. [Note: If the escape was post-trial confineIV-28

¶18.f.(3)
ment, add the following element]

(d) That the confinement was the result of a

court-martial conviction.

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 ) N a t u r e o f t h e r e s i s t a n c e . T h e r e s i s t a n c e

must be active, such as assaulting the person attempting to apprehend. 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) Flight from apprehension. The flight must be

active, such as running or driving away.

(3) 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,

MCM). This article prohibits breaking any arrest.

( b ) A u t h o r i t y t o o r d e r a r r e s t . S e e R . C . M .

304(b) and paragraphs 2 and 5b, Part V, MCM 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 ) B r e a k i n g . B r e a k i n g a r r e s t i s c o m m i t t e d

when the person in arrest infringes the limits set by

orders. The reason for the infringement is immateria l . F o r e x a m p l e , i n n o c e n c e o f t h e o f f e n s e w i t h

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.

(4) 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

(1)(b) above.

(c) Escape. For a discussion of escape, see subparagraph c(5)( 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.

(5) Escape from confinement.

(a) Confinement. Confinement is physical restraint imposed under R.C.M. 305, 1101, or parag r a p h 5 b , P a r t V , M C M . F o r p u r p o s e s o f t h e

e l e m e n t o f p o s t - t r i a l c o n f i n e m e n t ( s u b p a r a g r a p h

b(5)(d), above) and increased punishment therefrom

(subparagraph e(4), below), the confinement must

have been imposed pursuant to an adjudged sentence

of a court-martial and not as a result of pretrial

restraint or nonjudicial punishment.

(b) Authority to order confinement. See R.C.M.

304(b); 1101; and paragraphs 2 and 5b, Part V,

MCM concerning who may order confinement.

(c) Escape. An escape may be either with or

IV-29

¶19.c.(5)(c)
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

f r o m c o n f i n e m e n t . S e e a l s o p a r a g r a p h 2 0 c ( 1 ) ( 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 eluded.

( d ) S t a t u s w h e n t e m p o r a r i l y o u t s i d e c o n f i n e -

ment 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

m e a n s t o p r e v e n t t h a t p r i s o n e r f r o m e s c a p i n g ,

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 134—breaking restriction

(b) Article 80—attempts

(3) Escape from custody. Article 80—attempts

( 4 ) E s c a p e f r o m c o n f i n e m e n t . A r t i c l e 8 0 — a t -

tempts

e. Maximum punishment.

( 1 ) R e s i s t i n g a p p r e h e n s i o n . B a d - c o n d u c t d i s -

charge, forfeiture of all pay and allowances, and

confinement for 1 year.

(2) Flight from apprehension. Bad-conduct discharge, forfeiture of all pay and allowances, and

confinement for 1 year.

(3) Breaking arrest. Bad-conduct discharge, forfeiture of all pay and allowances, and confinement

for 6 months.

(4) Escape from custody, pretrial confinement, or

confinement on bread and water or diminished rations imposed pursuant to Article 15. Dishonorable

discharge, forfeiture of all pay and allowances, and

confinement for 1 year.

(5) Escape from post-trial confinement. Dishonorable discharge, forfeiture of all pay and allowances,

and confinement for 5 years.

f. Sample specifications.

(1) Resisting apprehension.

In that (personal jurisdiction data),

did, (at/on board—location) (subject-matter jurisdict i o n d a t a , i f r e q u i r e d ) , o n o r

a b o u t 2 0 , r e s i s t b e i n g a p p r e -

hended by , (an armed force policeman)

( ), a person authorized to apprehend the

accused.

(2) Flight from apprehension.

In that (personal jurisdiction data),

did, (at/on board—location) (subject-matter jurisdict i o n d a t a , i f r e q u i r e d ) , o n o r

a b o u t 2 0 , f l e e a p p r e h e n s i o n

b y , ( a n a r m e d f o r c e p o l i c e m a n )

( ), a person authorized to apprehend the

accused.

(3) 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 board—

l o c a t i o n ) o n o r

a b o u t 2 0 , b r e a k s a i d

arrest.

(4) Escape from custody.

In that (personal jurisdiction data),

did, (at/on board—location) (subject-matter jurisdict i o n d a t a , i f r e q u i r e d ) , o n o r

a b o u t 2 0 , e s c a p e f r o m t h e c u s -

tody of , a person authorized to apprehend the accused.

(5) Escape from confinement.

In that (personal jurisdiction data),

having been placed in (post-trial) confinement in

(place of confinement), by a person authorized to

o r d e r s a i d a c c u s e d i n t o c o n f i n e m e n t d i d , ( a t / o n

board—location) (subject-matter jurisdiction data, if

required), on or about 20 , escape

from confinement.

IV-30

¶19.c.(5)(c)
20. Article 96—Releasing prisoner without

proper authority

a. Text of statute.

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

b e p u n i s h e d a s a c o u r t - m a r t i a l m a y d i r e c t ,

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 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

l o w e s t a u t h o r i t y c o m p e t e n t t o o r d e r r e l e a s e o f a

post-trial prisoner is the commander who convened

the court-martial 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 conf i n e d , t h e p r i s o n e r h a s b e e n “ c o m m i t t e d ” i n t h e

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

t h e a b s e n c e o f c o n d u c t w h i c h w o u l d h a v e b e e n

taken by a reasonably careful person in the same or

similar circumstances.

( c ) E s c a p e . E s c a p e i s d e f i n e d i n p a r a g r a p h

19c(4)(c).

(d) Status of prisoner after escape not a defense. After escape, the fact that a prisoner returns,

i s c a p t u r e d , k i l l e d , o r o t h e r w i s e d i e s i s n o t 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.

IV-31

¶20.e.(3)
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),

d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r

about 20 , without proper

authority, release , a prisoner committed to his/her charge.

(2) Suffering a prisoner to escape through neglect

or design.

In that (personal jurisdiction data),

d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r

about 20 , through (neglect) (design), suffer , a prisoner committed to his/her charge, to escape.

21. Article 97—Unlawful detention

a. Text of statute.

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.

b. Elements.

( 1 ) T h a t t h e a c c u s e d a p p r e h e n d e d , a r r e s t e d , o r

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 1101, 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 . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e ,

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 20 ,

u n l a w f u l l y ( a p p r e h e n d )

( p l a c e i n a r r e s t )

(confine in ).

22. Article 98—Noncompliance with

procedural rules

a. Text of statute.

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 ) K n o w i n g l y a n d i n t e n t i o n a l l y f a i l s t o e n -

force 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 ) T h a t , u n d e r t h e c i r c u m s t a n c e s , t h e d e l a y

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 ) T h a t t h e a c c u s e d ’ s f a i l u r e t o e n f o r c e o r

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

expeditious disposition of cases of persons accused

of offenses under the code. A person may be responIV-32

¶20.e.(3)
sible 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.

(1) Unnecessary delay in disposing of case. Badconduct 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 specifications.

(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) ( ), was, (at/on

board—location), on or about 20 ,

responsible for unnecessary delay in (investigating

said charges) (determining the proper disposition of

s a i d c h a r g e s ( ) , i n t h a t h e / s h e

( d i d ) ( f a i l e d t o )

( ).

(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, (at/

o n b o a r d — l o c a t i o n ) , o n o r

a b o u t 2 0 , k n o w i n g l y a n d i n t e n -

t i o n a l l y f a i l t o ( e n f o r c e ) ( c o m p l y w i t h ) A r t i -

c l e , U n i f o r m C o d e o f M i l i t a r y

Justice, in that he/she .

23. Article 99—Misbehavior before the

enemy

a. Text of statute.

Any member of the armed forces who before

or in the presence of the enemy—

(1) runs away;

( 2 ) s h a m e f u l l y a b a n d o n s , s u r r e n d e r s , o r

delivers up any command, unit, place, or military

property which it is his duty to defend;

( 3 ) t h r o u g h d i s o b e d i e n c e , n e g l e c t , o r i n t e n -

t i o n a l m i s c o n d u c t e n d a n g e r s t h e s a f e t y o f a n y

such command, unit, place, or military property;

(4) casts away his arms or ammunition;

(5) is guilty of cowardly conduct;

( 6 ) q u i t s h i s p l a c e o f d u t y t o p l u n d e r o r

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

a i r c r a f t o f t h e a r m e d f o r c e s b e l o n g i n g t o t h e

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 ) S h a m e f u l l y a b a n d o n i n g , s u r r e n d e r i n g , o r

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 ) T h a t , w i t h o u t j u s t i f i c a t i o n , t h e a c c u s e d

shamefully abandoned, surrendered, or delivered up

that command, unit, place, ship, or military property;

and

IV-33

¶23.b.(2)(b)
(c) That this act occurred while the accused

was before or in the presence of the enemy.

( 3 ) E n d a n g e r i n g s a f e t y o f a c o m m a n d , u n i t ,

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 ) T h a t t h e a c c u s e d c o m m i t t e d a n a c t o f

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.

(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 afford 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

a s w e l l a s m e m b e r s o f m i l i t a r y o r g a n i z a t i o n s .

“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 ) B e f o r e t h e e n e m y . W h e t h e r a p e r s o n i s

“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.

IV-34

¶23.b.(2)(c)
( 2 ) S h a m e f u l l y a b a n d o n i n g , s u r r e n d e r i n g , o r

delivering up of command.

( a ) S c o p e . T h i s p r o v i s i o n c o n c e r n s p r i m a r i l y

c o m m a n d e r s c h a r g e a b l e w i t h r e s p o n s i b i l i t y f o r

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 ) S u r r e n d e r ; d e l i v e r u p . “ S u r r e n d e r ” a n d

“deliver 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 can be justified only by

the utmost necessity or extremity.

( 3 ) E n d a n g e r i n g s a f e t y o f a c o m m a n d , u n i t ,

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 ) I n t e n t i o n a l m i s c o n d u c t . “ I n t e n t i o n a l m i s -

conduct” does not include a mere error in judgment.

(4) Casting away arms or ammunition. Self-explanatory.

(5) Cowardly conduct.

( a ) C o w a r d i c e . “ C o w a r d i c e ” i s m i s b e h a v i o r

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 fear 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

p l a c e o f d u t y , w h e t h e r p e r m a n e n t o r t e m p o r a r y ,

fixed or mobile.

( b ) P l u n d e r o r p i l l a g e . “ P l u n d e r o r p i l l a g e ”

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 ) S h a m e f u l l y a b a n d o n i n g , s u r r e n d e r i n g , o r

delivering up command. Article 80—attempts

( 3 ) E n d a n g e r i n g s a f e t y o f a c o m m a n d , u n i t ,

place, ship, or military property.

( a ) T h r o u g h d i s o b e d i e n c e o f o r d e r . A r t i c l e

92—failure to obey lawful order

(b) Article 80—attempts

(4) Casting away arms or ammunition.

( a ) A r t i c l e 1 0 8 — m i l i t a r y p r o p e r t y o f t h e

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

IV-35

¶23.d.(6)(a)
(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 afford 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),

d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r

about 20 , (before) (in the presence of) the enemy, run away (from his/her company) (and hide) ( ), (and did not return

u n t i l a f t e r t h e e n g a g e m e n t h a d b e e n c o n c l u d e d )

( ).

( 2 ) S h a m e f u l l y a b a n d o n i n g , s u r r e n d e r i n g , o r

delivering up command.

In that (personal jurisdiction data),

d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r

about 20 , (before) (in the presence of) the enemy, shamefully (abandon) (surrender) (deliver up) , which it was his/her

duty to defend.

( 3 ) E n d a n g e r i n g s a f e t y o f a c o m m a n d , u n i t ,

place, ship, or military property.

In that (personal jurisdiction data),

d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r

about 20 , (before) (in

t h e p r e s e n c e o f ) t h e e n e m y , e n d a n g e r t h e s a f e t y

of , which it was his/her duty to defend,

by (disobeying an order from to engage the enemy)(neglecting his/her duty as a sentinel

by engaging in a card game while on his/her post)

(intentional misconduct in that he/she became drunk

and fired flares, thus revealing the location of his/her

unit) ( ).

(4) Casting away arms or ammunition.

In that (personal jurisdiction data),

d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r

about 20 , (before) (in

the presence of) the enemy, cast away his/her (rifle)

(ammunition) ( ).

(5) Cowardly conduct.

In that (personal jurisdiction data),

( a t / o n b o a r d — l o c a t i o n ) , o n o r

about 20 , (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),

d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r

about 20 , (before) (in

the presence of) the enemy, quit his/her place of

d u t y f o r t h e p u r p o s e o f ( p l u n d e r i n g ) ( p i l l a g i n g )

(plundering and pillaging).

(7) Causing false alarms.

In that (personal jurisdiction data),

d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r

about 20 , (before) (in the prese n c e o f ) t h e e n e m y , c a u s e a f a l s e a l a r m i n

( F o r t ) ( t h e s a i d s h i p ) ( t h e c a m p )

( ) by (needlessly and without authority

(causing the call to arms to be sounded) (sounding

the general alarm)) ( ).

(8) Willfully failing to do utmost to encounter enemy.

In that (personal jurisdiction data),

being (before) (in the presence of) the enemy, did,

( a t / o n b o a r d — l o c a t i o n ) , o n o r

a b o u t 2 0 , b y , ( o r d e r i n g h i s / h e r

troops to halt their advance)

( ), willfully fail to do his/her utmost to

(encounter) (engage) (capture) (destroy), as it was

his/her duty to do, (certain enemy troops which were

in retreat) ( ).

(9) Failing to afford relief and assistance.

In that (personal jurisdiction data),

d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r

about 20 , (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 he/she failed to take her in tow) (certain troops

o f t h e g r o u n d f o r c e s o f , w h i c h

were engaged in battle and were pinned down by

enemy fire, in that he/she failed to furnish air cover)

( ) as he/she properly should have done.

24. Article 100—Subordinate compelling

surrender

a. Text of statute.

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,

IV-36

¶23.d.(6)(b)
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

f o r c e s w a s a c t u a l l y g i v e n u p t o t h e e n e m y o r

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 ) T h a t t h e a c t a p p a r e n t l y t e n d e d t o b r i n g

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) That 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 mutiny

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 offense. 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 making 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 or 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(1)(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 courtmartial may direct.

f. Sample specifications.

(1) Compelling surrender or attempting to compel surrender.

In that (personal jurisdiction data),

d i d , ( a t / o n — b o a r d l o c a t i o n ) , o n o r

about 20 , (attempt to)

c o m p e l , t h e c o m m a n d e r

IV-37

¶24.f.(1)
of , (to give up to the enemy) (to abandon) said , by .

(2) Striking the colors or flag.

In that (personal jurisdiction data),

d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r

about 20 , without proper authority, offer to surrender to the enemy by (striking the

(colors)(flag)) ( ).

25. Article 101—Improper use of countersign

a. Text of statute.

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 different from

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),

d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r

about 20 , a time of war, disclose

t h e ( p a r o l e ) ( c o u n t e r s i g n ) , t o w i t : ,

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),

d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r

about 20 , a time of war, give

to , a person entitled to receive and use

the (parole)(countersign), a (parole) (countersign),

namely: which was different from that

which, to his/her knowledge, he/she was authorized

and required to give, to wit: .

26. Article 102—Forcing a safeguard

a. Text of statute.

Any person subject to this chapter who forces

a safeguard shall suffer death or such other punIV-38

¶24.f.(1)
ishment 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 ) S a f e g u a r d . A s a f e g u a r d i s a d e t a c h m e n t ,

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

e s t a b l i s h a s a f e g u a r d u n l e s s a c o m m a n d e r t a k e s

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 ) K n o w l e d g e . A c t u a l k n o w l e d g e o f t h e

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 20 ,

force a safeguard, (known by him/her to have been

placed over the premises occupied by -

at by (overwhelming the guard posted

for the protection of the same)

( )) ( ).

27. Article 103—Captured or abandoned

property

a. Text of statute.

(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

n o t i c e a n d t u r n o v e r t o t h e p r o p e r a u t h o r i t y

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

IV-39

¶27.b.(3)(a)
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 territory, 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

a n y o t h e r p e r s o n h a s a n y p r i v a t e r i g h t i n t h i s

property.

( b ) N a t u r e o f d u t y . E v e r y p e r s o n s u b j e c t t o

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

a b a n d o n e d p r o p e r t y a r e t o b e m a d e d i r e c t l y o r

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 territory.

(5) Enemy. For a discussion of “enemy,” see paragraph 23c(1)(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 $500.00 or less. Bad-conduct

discharge, forfeiture of all pay and allowances, and

confinement for 6 months.

(b) of a value of more than $500.00 or any

firearm or explosive. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for

5 years.

(2) Looting or pillaging. Any punishment, other

t h a n d e a t h , t h a t a c o u r t - m a r t i a l m a y d i r e c t . S e e

R.C.M. 1003.

f. Sample specifications.

(1) Failing to secure public property taken from

the enemy.

In that (personal jurisdiction data),

d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r

about 20 , 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),

d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r

about 20 , fail to give notice and

turn over to proper authority without delay certain

( c a p t u r e d ) ( a b a n d o n e d ) p r o p e r t y w h i c h h a d c o m e

i n t o h i s / h e r ( p o s s e s s i o n ) ( c u s t o d y ) ( c o n t r o l ) , t o

w i t : , o f a v a l u e o f ( a b o u t ) ,

$ .

(3) Dealing in captured or abandoned property.

IV-40

¶27.b.(3)(a)
In that (personal jurisdiction data),

d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r

a b o u t 2 0 , ( b u y ) ( s e l l ) ( t r a d e )

( d e a l i n ) ( d i s p o s e o f ) ( ) c e r t a i n ( c a p -

t u r e d ) ( a b a n d o n e d ) p r o p e r t y , t o

wit: , (a firearm) (an explosive), of

a value of (about) $ , thereby (receiving) (expecting) a (profit) (benefit) (advantage)

to (himself/herself)

( , his/her accomplice) ( , his/

her brother)

( ).

(4) Looting or pillaging.

In that (personal jurisdiction data),

d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r

a b o u t 2 0 , e n g a g e i n ( l o o t i n g )

(pillage) (looting and pillaging) by unlawfully (seizing) (appropriating) , (property which had

been left behind) (the property of ), (an

inhabitant of ) ( )).

28. Article 104—Aiding the enemy

a. Text of statute.

Any person who—

(1) aids, or attempts to aid, the enemy with

a r m s , a m m u n i t i o n , s u p p l i e s , m o n e y , o r o t h e r

things; or

(2) without proper authority, knowingly harbors or protects or gives intelligence to or comm u n i c a t e s o r c o r r e s p o n d s w i t h o r h o l d s a n y

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 ) T h a t t h e a c t a p p a r e n t l y t e n d e d t o b r i n g

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,

c o m m u n i c a t e d , c o r r e s p o n d e d , o r h e l d i n t e r c o u r s e

with the enemy, and;

(b) That the accused knew that the accused was

c o m m u n i c a t i n g , c o r r e s p o n d i n g , o r h o l d i n g i n t e r -

course with the enemy.

c. Explanation.

(1) Scope of Article 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(1)(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 offense. 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

IV-41

¶28.c.(5)(a)
i n f o r m a t i o n v a l u a b l e t o b e l l i g e r e n t s . T h i s i n t e l l i -

gence 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 ) N a t u r e o f t h e o f f e n s e . N o u n a u t h o r i z e d

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 complete

the 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

v i o l a t e t h i s A r t i c l e b y e n g a g i n g i n u n a u t h o r i z e d

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 neutral powers. Citizens of neutral powers resident in or visiting invaded or occup i e d t e r r i t o r y c a n c l a i m n o i m m u n i t y f r o m t h e

customary laws of war relating to communication

with the enemy.

d. Lesser included offense. For harboring or protecting the enemy, giving intelligence to the enemy, or

c o m m u n i c a t i n g w i t h t h e e n e m y . A r t i c l e 8 0 — a t -

tempts

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),

d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r

a b o u t 2 0 , ( a t t e m p t t o ) a i d t h e

enemy with (arms) (ammunition) (supplies) (money)

( ) , b y ( f u r n i s h i n g a n d d e l i v e r i n g

t o , m e m b e r s o f t h e e n e m y ’ s a r m e d

forces ) ( ).

(2) Harboring or protecting the enemy.

In that (personal jurisdiction data),

d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r

about 20 , without proper authority, knowingly (harbor) (protect) , an ene m y , b y ( c o n c e a l i n g t h e s a i d i n

his/her house)

( ).

(3) Giving intelligence to the enemy.

In that (personal jurisdiction data),

d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r

about 20 , 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) ( ).

(4) Communicating with the enemy.

In that (personal jurisdiction data),

d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r

about 20 , without proper authori t y , k n o w i n g l y ( c o m m u n i c a t e w i t h ) ( c o r r e s p o n d

with) (hold intercourse with) the enemy (by writing

a n d t r a n s m i t t i n g s e c r e t l y t h r o u g h t h e l i n e s t o

o n e , w h o m h e / s h e , t h e

said , knew to be (an officer of the enemy’s armed forces)( ) a communication

in words and figures substantially as follows, to

w i t : ) ) ( ( i n d i r e c t l y b y p u b l i s h i n g

i n , a n e w s p a p e r p u b l i s h e d

at , a communication in words and

figures as follows, to wit: , which

c o m m u n i c a t i o n w a s i n t e n d e d t o r e a c h t h e

enemy))(( )).

29. Article 105—Misconduct as a prisoner

a. Text of statute.

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

IV-42

¶28.c.(5)(a)
a c t e d i n a m a n n e r c o n t r a r y t o l a w , c u s t o m , o r

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(1)(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

r e s u l t s i n c l o s e r c o n f i n e m e n t o r o t h e r m e a s u r e s

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 ) M a l t r e a t m e n t . T h e m a l t r e a t m e n t m u s t b e

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 . M a x i m u m p u n i s h m e n t . A n y p u n i s h m e n t o t h e r

t h a n d e a t h t h a t a c o u r t - m a r t i a l m a y d i r e c t . S e e

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, (at/on board—

location) on or about 20 , a time

of war, without proper authority and for the purpose

of securing favorable treatment by his/her captors,

( r e p o r t t o t h e c o m m a n d e r o f

C a m p t h e p r e p a r a t i o n s

by , a prisoner at said camp, to escape,

as a result of which report the said was

placed in solitary confinement) ( ).

(2) Maltreating prisoner while in a position of

authority.

In that (personal jurisdiction data),

d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r

about 20 , a time of ward, while

in the hands, of the enemy and in a position of

a u t h o r i t y o v e r , a p r i s o n e r

at , as (officer in charge of prisoners

a t ) ( ) , m a l t r e a t t h e

s a i d b y ( d e p r i v i n g h i m / h e r

o f ) ( ) , w i t h o u t j u s t i f i a b l e

cause.

30. Article 106—Spies

a. Text of statute.

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 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

IV-43

¶30.a.
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(1)(b).

( 3 ) S c o p e o f o f f e n s e . T h e w o r d s “ a n y p e r s o n ”

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

c o m p l e t e w i t h l u r k i n g o r a c t i n g c l a n d e s t i n e l y o r

under false pretenses with intent to accomplish these

objects.

(5) Intent. It is necessary to prove an 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 ) M e m b e r s o f a m i l i t a r y o r g a n i z a t i o n n o t

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,

w i t h o u t l u r k i n g , o r a c t i n g c l a n d e s t i n e l y o r u n d e r

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 communic a t i n g w i t h t h e e n e m y , b u t m a y n o t b e c h a r g e d

under this article as being a spy.

d. Lesser included offenses. None.

e. Mandatory punishment. Death

f. Sample specification. In that (-

personal jurisdiction data), was, (at/on board—location), on or about 20 ,

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)

o f a n a r m e d f o r c e o f t h e U n i t e d S t a t e s , t o

wit: ) (a (shipyard) (manufacturing

p l a n t ) ( i n d u s t r i a l p l a n t ) ( ) e n g a g e d i n

work in aid of the prosecution of the war by the

United States) ( ), for the purpose of (collecting) (attempting to collect) information in regard

to the ((numbers) (resources) (operations)

( ) o f t h e a r m e d f o r c e s o f t h e U n i t e d

States) ((military production) ( ) of the

United States) ( ), with intent to impart

the same to the enemy.

30a. Article 106a—Espionage

a. Text of statute.

(a)(1) Any person subject to this chapter who,

with intent or reason to believe that it is to be

used to the injury of the United States or to the

a d v a n t a g e o f a f o r e i g n n a t i o n , c o m m u n i c a t e s ,

delivers, or transmits, or attempts to communicate, deliver, or transmit, to any entity described

in paragraph (2), either directly or indirectly, anything described in paragraph (3) shall be punished as a court-martial may direct, except that if

the accused is found guilty of an offense that

directly concerns (A) nuclear weaponry, military

spacecraft or satellites, early warning systems, or

o t h e r m e a n s o f d e f e n s e o r r e t a l i a t i o n a g a i n s t

IV-44

¶30.a.
large scale attack, (B) war plans, (C) communications intelligence or cryptolineart information, or

(D) any other major weapons system or major

element of defense strategy, the accused shall be

punished by death or such other punishment as a

court-martial may direct.

(2) An entity referred to in paragraph (1)

is—

(A) a foreign government;

(B) a faction or party or military or naval

force within a foreign country, whether recognized or unrecognized by the United States; or

( C ) a r e p r e s e n t a t i v e , o f f i c e r , a g e n t , e m -

ployee, subject, or citizen of such a government,

faction, party, or force.

(3) A thing referred to in paragraph (1) is a

d o c u m e n t , w r i t i n g , c o d e b o o k , s i g n a l b o o k ,

sketch, photograph, photolineart negative, blueprint, plan, map, model, note, instrument, applia n c e , o r i n f o r m a t i o n r e l a t i n g t o t h e n a t i o n a l

defense.

(b)(1) No person may be sentenced by courtmartial to suffer death for an offense under this

section (article) unless—

( A ) t h e m e m b e r s o f t h e c o u r t - m a r t i a l u n -

animously find at least one of the aggravating

factors set out in subsection (c); and

( B ) t h e m e m b e r s u n a n i m o u s l y d e t e r m i n e

that any extenuating or mitigating circumstances

are substantially outweighed by any aggravating

circumstances, including the aggravating factors

set out under subsection (c).

( 2 ) F i n d i n g s u n d e r t h i s s u b s e c t i o n m a y b e

based on—

(A) evidence introduced on the issue of guilt

or innocence;

(B) evidence introduced during the sentencing proceeding; or

(C) all such evidence.

(3) The accused shall be given broad latitude

to present matters in extenuation and mitigation.

(c) A sentence of death may be adjudged by a

court-martial for an offense under this section

(article) only if the members unanimously find,

beyond a reasonable doubt, one or more of the

following aggravating factors:

(1) The accused has been convicted of another offense involving espionage or treason for

which either a sentence of death or imprisonment

for life was authorized by statute.

(2) In the commission of the offense, the accused knowingly created a grave risk of substantial damage to the national security.

(3) In the commission of the offense, the accused knowingly created a grave risk of death to

another person.

(4) Any other factor that may be prescribed

by the President by regulations under section 836

of this title (Article 36).

b. Elements.

(1) Espionage.

(a) That the accused communicated, delivered,

or transmitted any document, writing, code book,

signal book, sketch, photograph, photolineart negative, blueprint, plan, map, model, note, instrument,

a p p l i a n c e , o r i n f o r m a t i o n r e l a t i n g t o t h e n a t i o n a l

defense;

( b ) T h a t t h i s m a t t e r w a s c o m m u n i c a t e d ,

delivered, or transmitted to any foreign government,

or to any faction or party or military or naval force

within a foreign country, whether recognized or unrecognized by the United States, or to any representative, officer, agent, employee, subject or citizen

thereof, either directly or indirectly; and

( c ) T h a t t h e a c c u s e d d i d s o w i t h i n t e n t o r

reason to believe that such matter would be used to

the injury of the United States or to the advantage of

a foreign nation.

(2) Attempted espionage.

(a) That the accused did a certain overt act;

(b) That the act was done with the intent to

commit the offense of espionage;

(c) That the act amounted to more than mere

preparation; and

( d ) T h a t t h e a c t a p p a r e n t l y t e n d e d t o b r i n g

about the offense of espionage.

(3) Espionage as a capital offense.

(a) That the accused committed espionage or

attempted espionage; and

(b) That the offense directly concerned (1) nuc l e a r w e a p o n r y , m i l i t a r y s p a c e c r a f t o r s a t e l l i t e s ,

early warning systems, or other means of defense or

retaliation against large scale attack, (2) war plans,

(3) communications intelligence or cryptolineart information, or (4) any other major weapons system or

major element of defense strategy.

IV-45

¶30a.b.(3)(b)
c. Explanation.

(1) Intent. “Intent or reason to believe” that the

information “is to be used to the injury of the United

S t a t e s o r t o t h e a d v a n t a g e o f a f o r e i g n n a t i o n ”

means that the accused acted in bad faith and without lawful authority with respect to information that

is not lawfully accessible to the public.

( 2 ) N a t i o n a l d e f e n s e i n f o r m a t i o n . “ I n s t r u m e n t ,

appliance, or information relating to the national defense” includes the full range of modern technology

and matter that may be developed in the future,

including chemical or biological agents, computer

technology, and other matter related to the national

defense.

(3) Espionage as a capital offense. Capital punishment is authorized if the government alleges and

proves that the offense directly concerned (1) nuc l e a r w e a p o n r y , m i l i t a r y s p a c e c r a f t o r s a t e l l i t e s ,

early warning systems, or other means of defense or

retaliation against large scale attack, (2) war plans,

(3) communications intelligence or cryptolineart information, or (4) any other major weapons system or

major element of defense strategy. See R.C.M. 1004

concerning sentencing proceedings in capital cases.

d. Lesser included offense. Although no lesser included offenses are set forth in the Code, federal

civilian offenses on this matter may be incorporated

through the third clause of Article 134.

e. Maximum punishment.

(1) Espionage as a capital offense. Death or such

other punishment as a court-martial may direct. See

R.C.M. 1003.

(2) Espionage or attempted espionage. Any punishment, other than death, that a court-martial may

direct. See R.C.M. 1003.

f. Sample specification.

In that (personal jurisdiction data),

d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r

about 20 , with intent or reason

to believe it would be used to the injury of the

U n i t e d S t a t e s o r t o t h e a d v a n t a g e

of , a foreign nation, (attempt to)

( c o m m u n i c a t e ) ( d e l i v e r ) ( t r a n s m i t -

) ( d e s c r i p t i o n o f i t e m ) , ( a d o c u -

m e n t ) ( a w r i t i n g ) ( a c o d e b o o k ) ( a s k e t c h ) ( a

photograph) (a photolineart negative) (a blueprint) (a

plan) (a map) (a model) (a note) (an instrument) (an

appliance) (information) relating to the national defense, ((which directly concerned (nuclear weaponry) (military spacecraft) (military satellites) (early

warning systems) ( , a means of defense or retaliation against a large scale attack) (war

plans) (communications intelligence) (cryptolineart

information) ( , a major weapons system)

( , a major element of defense strategy))

to ((a representative of) (an officer of)

(an agent of) (an employee of) (a subject of) (a

citizen of)) ((a foreign government) (a faction within

a foreign country) (a party within a foreign country)

(a military force within a foreign country) (a naval

f o r c e w i t h i n a f o r e i g n c o u n t r y ) ) ( i n d i r e c t l y

by ).

31. Article 107—False official statements

a. Text of statute.

Any person subject to this chapter who, with

intent to deceive, signs any false record, return,

r e g u l a t i o n , o r d e r , o r o t h e r o f f i c i a l d o c u m e n t ,

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 ) T h a t t h e f a l s e d o c u m e n t o r s t a t e m e n t w a s

made with the intent to deceive.

c. Explanation.

( 1 ) O f f i c i a l d o c u m e n t s a n d s t a t e m e n t s . O f f i c i a l

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 ) I n t e n t t o d e c e i v e . T h e f a l s e r e p r e s e n t a t i o n

must be made with the intent to deceive. It is not

necessary that the false statement be material to the

issue inquiry. If, however, the falsity is in respect to

a material matter, it may be considered as some

e v i d e n c e o f t h e i n t e n t t o d e c e i v e , w h i l e i m -

materiality may tend to show an absence of this

intent.

IV-46

¶30a.c.
( 4 ) M a t e r i a l g a i n . T h e e x p e c t a t i o n o f m a t e r i a l

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 ) K n o w l e d g e t h a t t h e d o c u m e n t o r s t a t e m e n t

w a s f a l s e . T h e f a l s e r e p r e s e n t a t i o n m u s t b e o n e

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.

d. Lesser included offense. Article 80—attempts

e . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e ,

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 20 , with intent to dec e i v e , ( s i g n a n o f f i c i a l ( r e c o r d ) ( r e t u r n )

( ) , t o w i t : ) ( m a k e

t o , a n o f f i c i a l s t a t e m e n t , t o

w i t : ) , w h i c h ( r e c o r d ) ( r e t u r n ) ( s t a t e -

m e n t ) ( ) w a s ( t o t a l l y f a l s e ) ( f a l s e i n

that ), and was then known by the saidto be so false.

32. Article 108—Military property of the

United States—sale, loss, damage,

destruction, or wrongful disposition

a. Text of statute.

Any person subject to this chapter who, without proper authority—

(1) sells or otherwise disposes of;

( 2 ) w i l l f u l l y o r t h r o u g h n e g l e c t d a m a g e s ,

destroys, or loses; or

(3) willfully or through neglect suffers to be

lost, damaged, destroyed, sold, or wrongfully disp o s e d o f , a n y m i l i t a r y p r o p e r t y o f t h e U n i t e d

States, shall be punished as a court-martial may

direct.

b. Elements.

( 1 ) S e l l i n g o r o t h e r w i s e d i s p o s i n g o f m i l i t a r y

property.

(a) That the accused sold or otherwise disposed

o f c e r t a i n p r o p e r t y ( w h i c h w a s a f i r e a r m o r

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 ) D a m a g i n g , d e s t r o y i n g , o r l o s i n g m i l i t a r y

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 the 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 ) M i l i t a r y p r o p e r t y . M i l i t a r y p r o p e r t y i s a l l

property, real or personal, owned, held, or used by

one of the armed forces of the United States. If is

i m m a t e r i a l w h e t h e r t h e p r o p e r t y s o l d , d i s p o s e d ,

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

e v i d e n c e , t h a t t h e d a m a g e , d e s t r u c t i o n , o r l o s s

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

n e g l i g e n t s u f f e r a n c e s p e c i f i e d b y t h i s a r t i c l e i n -

IV-47

¶32.c.(2)
cludes: 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

t h e p r o p e r t y c o n t r o l s t h e m a x i m u m p u n i s h m e n t

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.

(a) Article 80—attempts

(b) Article 134—sale or disposition of non-military government property

(2) Willfully damaging military property.

( a ) A r t i c l e 1 0 8 — d a m a g i n g m i l i t a r y p r o p e r t y

through neglect

(b) Article 109—willfully damaging non-military property

(c) Article 80—attempts

( 3 ) W i l l f u l l y s u f f e r i n g m i l i t a r y p r o p e r t y t o b e

damaged.

(a) Article 108—through neglect suffering military property to be damaged

(b) Article 80—attempts

(4) Willfully destroying military property.

( a ) A r t i c l e 1 0 8 — t h r o u g h n e g l e c t d e s t r o y i n g

military property

(b) Article 109—willfully destroying non-military property

( c ) A r t i c l e 1 0 8 — w i l l f u l l y d a m a g i n g m i l i t a r y

property

(d) Article 109—willfully damaging non-military property

( e ) A r t i c l e 1 0 8 — t h r o u g h n e g l e c t d a m a g i n g

military property

(f) Article 80—attempts

( 5 ) W i l l f u l l y s u f f e r i n g m i l i t a r y p r o p e r t y t o b e

destroyed.

(a) Article 108—through neglect suffering military property to be destroyed

( b ) A r t i c l e 1 0 8 — w i l l f u l l y s u f f e r i n g m i l i t a r y

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 ) A r t i c l e 1 0 8 — t h r o u g h n e g l e c t , s u f f e r i n g

military property to be lost

(b) Article 80—attempts

( 8 ) W i l l f u l l y s u f f e r i n g m i l i t a r y p r o p e r t y t o b e

sold.

( a ) A r t i c l e 1 0 8 — t h r o u g h n e g l e c t , s u f f e r i n g

military property to be sold

(b) Article 80—attempts

( 9 ) W i l l f u l l y s u f f e r i n g m i l i t a r y p r o p e r t y t o b e

wrongfully disposed of.

( a ) A r t i c l e 1 0 8 — t h r o u g h n e g l e c t , s u f f e r i n g

military property to be wrongfully disposed of in the

manner alleged

(b) Article 80—attempts

e. Maximum punishment.

( 1 ) S e l l i n g o r o t h e r w i s e d i s p o s i n g o f m i l i t a r y

property.

(a) Of a value of $500.00 or less. Bad-conduct

discharge, forfeiture of all pay and allowance, and

confinement for 1 year.

(b) Of a value of more than $500.00 or any

firearm or explosive. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for

10 years.

( 2 ) T h r o u g h n e g l e c t d a m a g i n g , d e s t r o y i n g , o r

losing, or through neglect suffering to be lost, damaged, destroyed, sold, or wrongfully disposed of,

military property.

(a) Of a value or damage of $500.00 or less.

Confinement for 6 months, and forfeiture of twothirds pay per month for 6 months.

( b ) O f a v a l u e o r d a m a g e o f m o r e t h a n

IV-48

¶32.c.(2)
$500.00. Bad-conduct discharge, forfeiture of all pay

and allowances, and confinement for 1 year.

(3) Willfully 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 $500.00 or less.

Bad-conduct discharge, forfeiture of all pay and allowances, and confinement for 1 year.

( b ) O f a v a l u e o r d a m a g e o f m o r e t h a n

$500.00, 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, (at/on board—location) (subject-matter jurisdict i o n d a t a , i f r e q u i r e d ) , o n o r

about 20 , without proper authorit y , ( s e l l t o ) ( d i s p o s e o f

b y ) , ( ( a f i r e a r m ) ( a n

explosive)) of a value of (about) $ , military property of the United States.

( 2 ) D a m a g i n g , d e s t r o y i n g , o r l o s i n g m i l i t a r y

property.

In that (personal jurisdiction data),

did, (at/on board—location) (subject-matter jurisdict i o n d a t a , i f r e q u i r e d ) , o n o r

about 20 , without proper authorit y , ( ( w i l l f u l l y ) ( t h r o u g h n e g l e c t ) ) ( ( d a m a g e

b y ) ( d e s t r o y b y ) )

( l o s e ) ) ( o f a v a l u e o f ( a b o u t )

$ ,) military property of the United States

(the amount of said damage being in the sum of

(about) $ ).

(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 jurisdict i o n d a t a , i f r e q u i r e d ) , o n o r

about 20 , without proper authorit y , ( w i l l f u l l y ) ( t h r o u g h n e g l e c t ) s u f -

fer , ((a firearm) (an explosive))

(of a value of (about) $ ) military

property of the United States, to be (lost) (damaged

b y ) ( d e s t r o y e d b y ) ( s o l d

t o ) ( w r o n g f u l l y d i s p o s e d o f

by ) (the amount of said damage being

in the sum of (about $ ).

33. Article 109—Property other than military

property of the United States—waste,

spoilage, or destruction

a. Text of statute.

Any person subject to this chapter who willf u l l y o r r e c k l e s s l y w a s t e s , s p o i l s , o r o t h e r w i s e

willfully and wrongfully destroys or damages any

p r o p e r t y o t h e r t h a n m i l i t a r y p r o p e r t y o f t h e

United States shall be punished as a court-martial may direct.

b. Elements.

(1) Wasting or spoiling of non-military property.

( a ) T h a t t h e a c c u s e d w i l l f u l l y o r r e c k l e s s l y

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 ) W a s t i n g o r s p o i l i n g n o n - m i l i t a r y p r o p e r t y .

This portion of Article 109 proscribes willful or

reckless waste or spoliation 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

in 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

IV-49

¶33.c.(2)
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

c i r c u m s t a n t i a l e v i d e n c e , s u c h a s t h e m a n n e r i n

which the acts were done.

(3) Value and damage. In the case of destruction,

t h e v a l u e o f t h e p r o p e r t y d e s t r o y e d c o n t r o l s t h e

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(1)(

g).

d. Lesser included offense. 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 $500.00 or less. Bad-conduct discharge,

forfeiture of all pay and allowances, and confinement for 1 year.

( 2 ) O f m o r e t h a n $ 5 0 0 . 0 0 . D i s h o n o r a b l e d i s -

charge, 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 jurisdict i o n d a t a , i f r e q u i r e d ) , o n o r

about 20 , ((willfully) recklessly)

waste) ((willfully) (recklessly) spoil) (willfully and

w r o n g f u l l y ( d e s t r o y ) ( d a m a g e )

by ) , (of a value of

(about) $ ) (the amount of said damage

being in the sum of (about $ ), the property of .

34. Article 110—Improper hazarding of

vessel

a. Text of statute.

( a ) A n y p e r s o n s u b j e c t t o t h i s c h a p t e r w h o

willfully and wrongfully hazards or suffers to be

hazarded any vessel of the armed forces shall

suffer death or such other punishment as a courtmartial may direct.

( b ) A n y p e r s o n s u b j e c t t o t h i s c h a p t e r w h o

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

t h a t t h e v e s s e l i s f a s t f o r a t i m e . I f t h e v e s s e l

“ t o u c h e s a n d g o e s , ” s h e i s n o t s t r a n d e d ; i f s h e

“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

IV-50

¶33.c.(2)
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

s u f f e r i n g t h r o u g h n e g l e c t i m p l i e s a n o m i s s i o n t o

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 110—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 ) N e g l i g e n t l y . D i s h o n o r a b l e d i s c h a r g e , f o r f e i -

ture of all pay and allowances, and confinement for

2 years.

f. Sample specifications.

(1) Hazarding or suffering to be hazarded any

vessel, willfully and wrongfully.

In that (personal jurisdiction data),

d i d , o n 2 0 , w h i l e s e r v i n g

a s a b o a r d t h e i n t h e v i -

cinity of , willfully and wrongfully (hazard the said vessel) (suffer the said vessel to be

h a z a r d e d ) b y ( c a u s i n g t h e s a i d v e s s e l t o c o l l i d e

with ) (allowing the said vessel to run

aground) ( ).

(2) Hazarding of vessel, negligently.

(a) Example 1.

In that (personal jurisdiction data),

on 20 , while serving in command

of the , making entrance to (Boston Harbor), did negligently hazard the said vessel by faili n g a n d n e g l e c t i n g t o m a i n t a i n o r c a u s e t o b e

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, bec a m e s t r a n d e d i n t h e v i c i n i t y o f ( C h a n n e l B u o y

Number Three).

(b) Example 2.

In that (personal jurisdiction data),

on 20 , while serving as navigator

of the , cruising on special service in

t h e O c e a n o f f t h e c o a s t

o f , n o t w i t h s t a n d i n g t h e f a c t t h a t a t

a b o u t m i d n i g h t , 2 0 , t h e

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 app r o a c h i n g I s l a n d , i n t h a t h e / s h e

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

s o u t h w e s t c o a s t o f I s l a n d , a t

a b o u t h o u r s , ,

2 0 , i n c o n s e q u e n c e o f w h i c h t h e s a i d -

was lost.

(c) Example 3.

In that (personal jurisdiction data),

on 20 , while serving as navigator

of the and well knowing that at about

sunset of said day the said ship had nearly run her

e s t i m a t e d d i s t a n c e f r o m t h e p o s i t i o n ,

o b t a i n e d a n d p l o t t e d b y h i m / h e r , t o t h e p o s i t i o n

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 his/her

commanding officer to lay a safe course for said

ship to the northward before continuing on a weste r l y c o u r s e , a s i t w a s t h e d u t y o f s a i d -

to do; in consequence of which the

said ship was, at about hours on the

day above mentioned, run upon bank

i n t h e S e a , a b o u t

l a t i t u d e d e g r e e s , m i n u t e s ,

n o r t h , a n d l o n g i t u d e d e g r e e s ,

minutes, west, and seriously injured.

(3) Suffering a vessel to be hazarded, negligently.

In that (personal jurisdiction data),

while serving as combat intelligence center officer

on board the , making passage from

B o s t o n t o P h i l a d e l p h i a , a n d h a v i n g , b e t -

IV-51

¶34.f.(3)
w e e n a n d h o u r s

on , 20 , 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 his/her duty to do, and

h e / s h e , t h e s a i d , t h r o u g h n e g l i -

gence, did cause the said to coll i d e w i t h t h e a t o r

about hours on said date, with resultant damage to both vessels.

35. Article 111–Drunken or reckless

operation of vehicle, aircraft, or vessel

a. Text of statute.

(a) Any person subject to this chapter who—

(1) operates or physically controls any vehicle,

aircraft, or vessel in a reckless or wanton manner

or while impaired by a substance described in

section 912a(b) of this title (Article 112a(b)); or

(2) operates or is in actual physical control of

any vehicle, aircraft, or vessel while drunk or

when the alcohol concentration in the person’s

blood or breath is equal to or exceeds the applicable limit under subsection (b), shall be punished as a court-martial may direct.

(b)(1) For purposes of subsection (a), the applicable limit on the alcohol concentration in a person’s blood or breath is as follows:

(A) In the case of the operation or control of a

vehicle, aircraft, or vessel in the United States,

such limit is the lesser of—

(i) the blood alcohol content limit under the

law of the State in which the conduct occurred,

except as may be provided under paragraph (2)

for conduct on a military installation that is in

more than one State; or

(ii) the blood alcohol content limit specified

in paragraph (3).

(B) In the case of the operation or control of a

v e h i c l e , a i r c r a f t , o r v e s s e l o u t s i d e t h e U n i t e d

States, the applicable blood alcohol content limit

is the blood alcohol content limit specified in paragraph (3) or such lower limit as the Secretary of

Defense may by regulation prescribe.

(2) In the case of a military installation that is in

more than one State, if those States have different

blood alcohol content limits under their respective State laws, the Secretary may select one such

blood alcohol content limit to apply uniformly on

that installation.

(3) For purposes of paragraph (1), the blood alcohol content limit with respect to alcohol concent r a t i o n i n a p e r s o n ’ s b l o o d i s 0 . 1 0 g r a m s o f

a l c o h o l p e r 1 0 0 m i l l i l i t e r s o f b l o o d a n d w i t h

r e s p e c t t o a l c o h o l c o n c e n t r a t i o n i n a p e r s o n ’ s

breath is 0.10 grams of alcohol per 210 liters of

breath, as shown by chemical analysis.

(4) In this subsection:

( A ) T h e t e r m “ b l o o d a l c o h o l c o n t e n t l i m i t ”

means the amount of alcohol concentration in a

person’s blood or breath at which operation or

c o n t r o l o f a v e h i c l e , a i r c r a f t , o r v e s s e l i s

prohibited.

(B) The term “United States” includes the District of Columbia, the Commonwealth of Puerto

Rico, the Virgin Islands, Guam, and American

S a m o a a n d t h e t e r m “ S t a t e ” i n c l u d e s e a c h o f

those jurisdictions.

b. Elements.

(1) That the accused was operating or in physical

control of a vehicle, aircraft, or vessel; and

(2) That while operating or in physical control of

a vehicle, aircraft, or vessel, the accused:

(a) did so in a wanton or reckless manner, or

(b) was drunk or impaired, or

(c) the alcohol concentration in the accused’s

blood or breath equaled to or exceeded the applicable limit under subparagraph (b) of paragraph 35a.

[ N O T E : I f i n j u r y r e s u l t e d a d d t h e f o l l o w i n g

element]

(3) That the accused thereby caused the vehicle,

aircraft, or vessel to injure a person.

c. Explanation.

(1) Vehicle. See 1 U.S.C. § 4.

(2) Vessel. See. 1 U.S.C. § 3.

(3) Aircraft. Any contrivance used or designed

for transportation in the air.

(4) Operates. Operating a vehicle, aircraft, or vessel includes not only driving or guiding a vehicle,

aircraft or vessel while it is in motion, either in

person or through the agency of another, but also

setting of its motive power in action or the manipuIV-52

¶34.f.(3)
lation of its controls so as to cause the particular

vehicle, aircraft or vessel to move.

(5) Physical control and actual physical control.

These terms as used in the statute are synonymous.

They describe the present capability and power to

dominate, direct or regulate the vehicle, vessel, or

aircraft, either in person or through the agency of

another, regardless of whether such vehicle, aircraft,

or vessel is operated. For example, the intoxicated

person seated behind the steering wheel of a vehicle

with the keys of the vehicle in or near the ignition

but with the engine not turned on could be deemed

in actual physical control of that vehicle. However,

the person asleep in the back seat with the keys in

his or her pocket would not be deemed in actual

physical control. Physical control necessarily encompasses operation.

(6) Drunk or impaired. “Drunk” and “impaired”

mean any intoxication which is sufficient to impair

the rational and full exercise of the mental or physical faculties. The term drunk is used in relation to

intoxication by alcohol. The term impaired is used in

relation to intoxication by a substance described in

Article 112(a), Uniform Code of Military Justice.

(7) Reckless. The operation or physical control of

a vehicle, vessel, or aircraft is “reckless” when it

exhibits a culpable disregard of foreseeable consequences to others from the act or omission involved.

Recklessness is not determined solely by reason of

the happening of an injury, or the invasion of the

rights of another, nor by proof alone of excessive

speed or erratic operation, but all these factors may

be admissible and relevant as bearing upon the ultimate question: whether, under all the circumstances,

the accused’s manner of operation or physical control of the vehicle, vessel, or aircraft was of that

h e e d l e s s n a t u r e w h i c h m a d e i t a c t u a l l y o r i m -

minently dangerous to the occupants, or to the rights

or safety of others. It is operating or physically controlling a vehicle, vessel, or aircraft with such a high

degree of negligence that if death were caused, the

a c c u s e d w o u l d h a v e c o m m i t t e d i n v o l u n t a r y m a n -

slaughter, at least. The nature of the conditions in

which the vehicle, vessel, or aircraft is operated or

controlled, the time of day or night, the proximity

and number of other vehicles, vessels, or aircraft and

the condition of the vehicle, vessel, or aircraft, are

often matters of importance in the proof of an offense charged under this article and, where they are

of importance, may properly be alleged.

(8) Wanton. “Wanton” includes “reckless”, but in

describing the operation or physical control of a

vehicle, vessel, or aircraft “wanton” may, in a proper

case, connote willfulness, or a disregard of probable

consequences, and thus describe a more aggravated

offense.

(9) Causation. The accused’s drunken or reckless

driving must be a proximate cause of injury for the

accused to be guilty of drunken or reckless driving

resulting in personal injury. To be proximate, the

accused’s actions need not be the sole cause of the

injury, nor must they be the immediate cause of the

injury, that is, the latest in time and space preceding

the injury. A contributing cause is deemed proximate only if it plays a material role in the victim’s

injury.

(10) Separate offenses. While the same course of

conduct may constitute violations of both subsections (1) and (2) of the Article, e.g., both drunken

and reckless operation or physical control, this article proscribes the conduct described in both subsections as separate offenses, which may be charged

separately. However, as recklessness is a relative

m a t t e r , e v i d e n c e o f a l l t h e s u r r o u n d i n g c i r c u m -

stances that made the operation dangerous, whether

alleged or not, may be admissible. Thus, on a charge

of reckless driving, for example, evidence of drunkenness might be admissible as establishing one asp e c t o f t h e r e c k l e s s n e s s , a n d e v i d e n c e t h a t t h e

vehicle exceeded a safe speed, at a relevant prior

point and time, might be admissible as corroborating

other evidence of the specific recklessness charged.

Similarly, on a charge of drunken driving, relevant

evidence of recklessness might have probative value

as corroborating other proof of drunkenness.

d. Lesser included offense.

(1) Reckless or wanton or impaired operation or

physical control of a vessel. Article 110—improper

hazarding of a vessel.

(2) Drunken operation of a vehicle, vessel, or aircraft while drunk or with a blood or breath alcohol

concentration in violation of the described per se

standard.

( a ) A r t i c l e 1 1 0 — i m p r o p e r h a z a r d i n g o f a

vessel

(b) Article 112—drunk on duty

(c) Article 134—drunk on station

e. Maximum punishment.

( 1 ) R e s u l t i n g i n p e r s o n a l i n j u r y . D i s h o n o r a b l e

IV-53

¶35.e.(1)
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 required), on or about 20 , (in

the motor pool area) (near the Officer’s Club) (at the

intersection of and ) (while

in the Gulf of Mexico) (while in flight over North

America) physically control [a vehicle, to wit: (a

truck) (a passenger car)( )] [an aircraft, to

wit: (an AH-64 helicopter)(an F-14A fighter)(a KC135 tanker)( )] [a vessel, to wit: (the airc r a f t c a r r i e r U S S ) ( t h e C o a s t G u a r d

Cutter)( )], [while drunk] [while impaired

by ] [while the alcohol concentration in his

(blood)(breath) was, as shown by chemical analysis,

equal to or exceeded (.10)( ) grams of alcohol

per (100 milliliters of blood)(210 liters of breath),

which is the limit under (cite applicable State law-

)(cite applicable statute or regulation)] [in a (reckl e s s ) ( w a n t o n ) m a n n e r b y ( a t t e m p t i n g t o p a s s

another vehicle on a sharp curve)(by ordering that

the aircraft be flown below the authorized altitude)]

[ a n d d i d t h e r e b y c a u s e s a i d ( v e h i c l e ) ( a i r c r a f t ) -

(vessel) to (strike and)(injure )].

36. Article 112—Drunk on duty

a. Text of statute.

Any person subject to this chapter other than

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(6).

(2) Duty. “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 or routine or

detail, in garrison, 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

a l l e g e d , a n d t h e f a c t t h e a c c u s e d b e c a m e d r u n k

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 results from an

accidental over dosage 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 . M a x i m u m p u n i s h m e n t . B a d - c o n d u c t d i s c h a r g e ,

forfeiture of all pay and allowances, and confinement for 9 months.

f. Sample specification.

In that (personal jurisdiction data),

w a s , ( a t / o n b o a r d — l o c a t i o n ) , o n o r

a b o u t 2 0 , f o u n d

drunk while on duty as .

IV-54

¶35.e.(1)
37. Article 112a—Wrongful use, possession,

etc., of controlled substances

a. Text of statute.

( a ) A n y p e r s o n s u b j e c t t o t h i s c h a p t e r w h o

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

a i r c r a f t u s e d b y o r u n d e r t h e c o n t r o l o f t h e

armed forces a substance described in subsection

( b ) s h a l l b e p u n i s h e d a s a c o u r t - m a r t i a l m a y

direct.

(b) The substances referred to in subsection (a)

are the following:

( 1 ) o p i u m , h e r o i n , c o c a i n e , a m p h e t a m i n e ,

l y s e r g i c a c i d d i e t h y l a m i d e , m e t h a m p h e t a m i n e ,

p h e n c y c l i d i n e , b a r b i t u r i c a c i d , a n d m a r i j u a n a ,

a n d a n y c o m p o u n d o r d e r i v a t i v e o f a n y s u c h

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 ) A n y o t h e r s u b s t a n c e n o t s p e c i f i e d i n

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 ) T h a t t h e a c c u s e d p o s s e s s e d a c e r t a i n

amount of a controlled substance; and

( b ) T h a t t h e p o s s e s s i o n b y t h e a c c u s e d w a s

wrongful.

(2) Wrongful use of controlled substance.

( a ) T h a t t h e a c c u s e d u s e d a c o n t r o l l e d s u b -

stance; and

(b) That the use by the accused was wrongful.

(3) Wrongful distribution of controlled substance.

( a ) T h a t t h e a c c u s e d d i s t r i b u t e d a c e r t a i n

amount of a controlled substance; and

(b) That the distribution by the accused was

wrongful.

( 4 ) W r o n g f u l i n t r o d u c t i o n o f a c o n t r o l l e d s u b -

stance.

(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 ) T h a t t h e a c c u s e d m a n u f a c t u r e d a c e r t a i n

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 ) T h a t t h e a c c u s e d ( p o s s e s s e d ) ( m a n u f a c -

tured) (introduced) a certain amount of a controlled

substance;

(b) 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 ) T h a t t h e ( i m p o r t a t i o n ) ( e x p o r t a t i o n ) w a s

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

diethylamide, marijuana, methamphetamine, opium,

phencyclidine, and barbituric acid, including phenob a r b i t a l a n d s e c o b a r b i t a l . “ C o n t r o l l e d s u b s t a n c e ”

a l s o m e a n s a n y s u b s t a n c e w h i c h i s i n c l u d e d i n

Schedules I through V established by the Controlled

Substances Act of 1970 (21 U.S.C. 812).

(2) Possess. “Possess” means to exercise control

o f s o m e t h i n g . P o s s e s s i o n m a y b e d i r e c t p h y s i c a l

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

a n i t e m s i m u l t a n e o u s l y , a s w h e n s e v e r a l p e o p l e

share control of an item. An accused may not be

convicted of possession of a controlled substance if

IV-55

¶37.c.(2)
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

p r o c e s s i n g o f a d r u g o r o t h e r s u b s t a n c e , e i t h e r

d i r e c t l y o r i n d i r e c t l y o r b y e x t r a c t i o n f r o m s u b -

stances 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, cultivati n g , g r o w i n g , o r h a r v e s t i n g o f a d r u g o r o t h e r

substance.

(5) Wrongfulness. To be punishable under Article

112a, possession, use, distribution, introduction, or

m a n u f a c t u r e o f a c o n t r o l l e d s u b s t a n c e m u s t b e

wrongful. Possession, use, distribution, introduction,

or manufacture of a controlled substance is wrongful

if it is without legal justification or authorization.

Possession, 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 courtmartial 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 poss e s s e d , d i s t r i b u t e d , i n t r o d u c e d , o r m a n u f a c t u r e d

“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.

(10) Use. “Use” means to inject, ingest, inhale, or

otherwise introduce into the human body, any controlled substance. Knowledge of the presence of the

controlled substance is a required component of use.

Knowledge of the presence of the controlled substance may be inferred from the presence of the

controlled substance in the accused’s body or from

other circumstantial evidence. This permissive inference may be legally sufficient to satisfy the government’s burden of proof as to knowledge.

(11) Deliberate ignorance. An accused who consciously avoids knowledge of the presence of a controlled substance or the contraband nature of the

substance is subject to the same criminal liability as

one who has actual knowledge.

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

IV-56

¶37.c.(2)
(b) Article 80—attempts

(3) Wrongful distribution of controlled substance.

Article 80—attempts

( 4 ) W r o n g f u l m a n u f a c t u r e o f c o n t r o l l e d s u b -

stance.

(a) Article 112a—wrongful possession of controlled substance

(b) Article 80—attempts

( 5 ) W r o n g f u l i n t r o d u c t i o n o f c o n t r o l l e d s u b -

stance.

(a) Article 112a—wrongful possession of controlled substance

(b) Article 80—attempts

(6) Wrongful possession, 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, manufacture, or introduction of controlled substance.

( a ) A m p h e t a m i n e , c o c a i n e , h e r o i n , l y s e r g i c

acid diethylamide, marijuana (except possession of

less than 30 grams or use of marijuana), methamphetamine, opium, phencyclidine, secobarbital, and

Schedule I, II, III controlled substances. Dishonorable discharge, forfeiture of all pay and allowances,

and confinement 5 years.

( b ) M a r i j u a n a ( p o s s e s s i o n o f l e s s t h a n 3 0

grams or use), phenobarbital, and Schedule IV and

V c o n t r o l l e d s u b s t a n c e s . D i s h o n o r a b l e d i s c h a r g e ,

forfeiture of all pay and allowances, and confinement for 2 years.

( 2 ) W r o n g f u l d i s t r i b u t i o n , p o s s e s s i o n , m a n u f a c -

ture, or introduction of controlled substance with

intent to distribute, or wrongful importation or exportation of a controlled substance.

( a ) A m p h e t a m i n e , c o c a i n e , h e r o i n , l y s e r g i c

a c i d d i e t h y l a m i d e , m a r i j u a n a , m e t h a m p h e t a m i n e ,

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; in time of war; or in a confinement

facility used by or under the control of the armed

forces, the maximum period of confinement authorized for such offense shall be increased by 5 years.

f. Sample specifications.

(1) Wrongful possession, manufacture, or distribution of controlled substance.

In that (personal jurisdiction data)

did, (at/on board—location) (subject-matter jurisdict i o n d a t a , i f r e q u i r e d ) , o n o r a b o u t ,

20 , wrongfully (possess) (distribute) (manufact u r e ) ( g r a m s ) ( o u n c e s )

(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

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. § 310) (during time of

war).

(2) Wrongful use of controlled substance.

In that (personal jurisdiction data),

did, (at/on board—location) (subject-matter jurisdict i o n d a t a , i f r e q u i r e d ) , o n o r a b o u t ,

2 0 , w r o n g f u l l y u s e ( a S c h e d -

u l e c o n t r o l l e d s u b s t a n c e ) ( w h i l e o n

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. § 310) (during

time of war).

( 3 ) W r o n g f u l i n t r o d u c t i o n o f c o n t r o l l e d s u b -

stance.

In that (personal jurisdiction data)

d i d , ( a t / o n b o a r d — l o c a t i o n ) o n o r

a b o u t , 2 0 , w r o n g f u l l y i n t r o -

d u c e ( g r a m s ) ( o u n c e s ) ( p o u n d s )

( ) o f ( a S c h e d u l e

( ) controlled substance) onto a vessel,

IV-57

¶37.f.(3)
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

l o o k o u t ) ( w h i l e r e c e i v i n g s p e c i a l p a y u n d e r 3 7

U.S.C. § 310) (during a time of war).

(4) Wrongful importation or exportation of controlled substance.

In that (personal jurisdiction data)

d i d , ( a t / o n b o a r d — l o c a t i o n ) o n o r

a b o u t , 2 0 , w r o n g f u l l y ( i m p o r t )

( e x p o r t ) ( g r a m s ) ( o u n c e s )

( p o u n d s ) ( ) o f ( a

Schedule ( ) controlled substance) (into

the customs territory of) (from) the United States

(while on board a vessel/aircraft 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 of statute.

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

d i r e c t , b u t i f t h e o f f e n s e i s c o m m i t t e d a t a n y

other time, by such punishment other than death

as a court-martial may direct.

b. Elements.

(1) 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

o r w h i l e t h e a c c u s e d w a s r e c e i v i n g s p e c i a l p a y

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. This 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 approach 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

c o m a t o s e c o n d i t i o n . T h e f a c t t h a t t h e a c c u s e d ’ 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 offenses.

IV-58

¶37.f.(3)
(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 20 (a time of war)

(at/on board—location), (while receiving special pay

under 37 U.S.C. § 310), being (posted) (on post) as

a (sentinel) (lookout) at (warehouse no. 7) (post no.

11) (for radar observation) ( ) (was

f o u n d ( d r u n k ) ( s l e e p i n g ) u p o n h i s / h e r p o s t ) ( d i d

l e a v e h i s / h e r p o s t b e f o r e h e / s h e w a s r e g u l a r l y

relieved).

39. Article 114—Dueling

a. Text of statute.

A n y p e r s o n s u b j e c t t o t h i s c h a p t e r w h o

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 ) T h a t t h e a c c u s e d f o u g h t a n o t h e r p e r s o n

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 ) T h a t t h e a c c u s e d d i d s o i n a c e r t a i n

manner.

(3) Conniving at fighting a duel.

(a) That certain persons intended to and were

about to engage in a duel;

( b ) T h a t t h e a c c u s e d h a d k n o w l e d g e o f t h e

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.

(1) 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 at fighting 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 . M a x i m u m p u n i s h m e n t . F o r a l l A r t i c l e 1 1 4 o f -

fenses: dishonorable discharge, forfeiture of all pay

and allowances, and confinement for 1 year.

f. Sample specifications.

(1) Dueling.

In that (personal jurisdiction data)

( a n d ) , d i d , ( a t / o n b o a r d — l o c a t i o n )

(subject-matter jurisdiction data, if required), on or

about 20 , fight a duel

IV-59

¶39.f.(1)
(with ), using as weapons therefor (pistols) (swords) ( ).

(2) Promoting a duel.

In that (personal jurisdiction data),

did, (at/on board—location) (subject-matter jurisdict i o n d a t a , i f r e q u i r e d ) , o n o r

a b o u t 2 0 , p r o m o t e a d u e l b e t -

w e e n a n d b y ( t e l l i n g

said he/she would be a coward if he/

she failed to challenge said to a duel)

( k n o w i n g l y c a r r y i n g f r o m s a i d t o

said a challenge to fight a duel).

(3) Conniving at fighting a duel.

In that (personal jurisdiction data),

h a v i n g k n o w l e d g e

that and were about

t o e n g a g e i n a d u e l , d i d ( a t / o n b o a r d — l o c a t i o n )

(subject-matter jurisdiction data, if required), on or

a b o u t 2 0 , c o n n i v e a t t h e

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

( h a d b e e n s e n t ) ( w a s a b o u t t o b e s e n t )

by to , did, (at/on board—

l o c a t i o n ) ( s u b j e c t - m a t t e r j u r i s d i c t i o n d a t a , i f r e -

q u i r e d ) , o n o r a b o u t 2 0 f a i l t o

report that fact promptly to the proper authority.

40. Article 115—Malingering

a. Text of statute.

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 ) i n t e n t i o n a l l y i n f l i c t s s e l f - i n j u r y ; s h a l l b e

punished as a court-martial may direct. 

b. Elements.

( 1 ) T h a t t h e a c c u s e d w a s a s s i g n e d t o , o r w a s

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 the 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 selfinflicted 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 ) A r t i c l e 1 3 4 — s e l f - i n j u r y w i t h o u t i n t e n t t o

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 hostile fire

pay zone or in time of war. Dishonorable discharge,

forfeiture of all pay and allowances, and confinement for 10 years.

f. Sample specification.

In that (personal jurisdiction data),

IV-60

¶39.f.(1)
did, (at/on board—location) (in a hostile fire pay

zone) (subject-matter jurisdiction data, if required)

( o n o r a b o u t 2 0 )

( f r o m a b o u t 2 0 t o

about 20 ), (a time of war) for the

purpose of avoiding (his/her duty as officer of the

day) (his/her duty as aircraft mechanic) (work in the

m e s s h a l l ) ( s e r v i c e a s a n e n l i s t e d p e r s o n )

( ) (feign (a headache) (a sore back) (illn e s s ) ( m e n t a l l a p s e ) ( m e n t a l d e r a n g e m e n t )

( ) ) ( i n t e n t i o n a l l y i n j u r e h i m s e l f /

herself by ).

41. Article 116—Riot or breach of peace

a. Text of statute.

A n y p e r s o n s u b j e c t t o t h i s c h a p t e r w h o

causes or participates in any riot or breach of the

peace shall be punished as a court-martial may

direct.

b. Elements.

(1) Riot.

(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 ) T h a t t h e p e a c e w a s t h e r e b y u n l a w f u l l y

disturbed.

c. Explanation.

(1) Riot. “Riot” is a tumultuous disturbance of the

peace by three or more persons assembled together

i n f u r t h e r a n c e o f a c o m m o n p u r p o s e t o e x e c u t e

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

l a w f u l . F u r t h e r m o r e , i t i s n o t n e c e s s a r y t h a t t h e

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 by 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 ) C o m m u n i t y a n d p u b l i c . “ C o m m u n i t y ” a n d

“public” include a military organization, post, camp,

ship, aircraft, or station.

d. Lesser included offenses.

(1) 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.

(1) Riot. Dishonorable discharge, forfeiture of all

pay and allowances, and confinement for 10 years.

( 2 ) B r e a c h o f t h e p e a c e . C o n f i n e m e n t f o r 6

months and forfeiture of two-thirds pay per month

for 6 months.

f. Sample specifications.

(1) Riot.

In that (personal jurisdiction data),

did, (at/on board—location) (subject-matter jurisdict i o n d a t a , i f r e q u i r e d ) , o n o r

about 20 , (cause) (participate in)

a r i o t b y u n l a w f u l l y a s s e m b l i n g

IV-61

¶41.f.(1)
w i t h ( a n d ) ( a n d )

( o t h e r s t o t h e n u m b e r o f

about whose names are unknown)

f o r t h e p u r p o s e o f ( r e s i s t i n g t h e p o l i c e

o f ) ( a s s a u l t i n g p a s s e r s - b y )

( ), and in furtherance of said purpose did (fight with said police) (assault certain pers o n s , t o w i t : ) ( ) , t o

the terror and disturbance of .

(2) Breach of the peace.

In that (personal jurisdiction data),

did, (at/on board—location) (subject-matter jurisdict i o n d a t a , i f r e q u i r e d ) , o n o r

about 20 , (cause) (participate in)

a breach of the peace by (wrongfully engaging in a

fist fight in the dayroom with ) (using

t h e f o l l o w i n g p r o v o k i n g l a n g u a g e ( t o -

ward ), to wit: “ ,” or

words to that effect) (wrongfully shouting and singi n g i n a p u b l i c p l a c e , t o w i t : )

( ).

42. Article 117—Provoking speeches or

gestures

a. Text of statute.

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 ) I n g e n e r a l . A s u s e d i n t h i s a r t i c l e ,

“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 administ e r e d i n t h e i n t e r e s t s o f t r a i n i n g , e f f i c i e n c y , o r

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. Article 80—attempts

e. Maximum punishment. Confinement for 6 months

and forfeiture of two-thirds pay per month for 6

months.

f. Sample specification.

In that (personal jurisdiction data),

did, (at/on board—location) (subject-matter jurisdict i o n d a t a , i f r e q u i r e d ) , o n o r

a b o u t 2 0 , w r o n g f u l l y u s e ( p r o -

v o k i n g ) ( r e p r o a c h f u l ) ( w o r d s , t o w i t ;

“ :” or words to that effect) (and)

( g e s t u r e s , t o w i t : ) t o w a r d s ( S e r -

geant , U.S. Air Force) ( ).

43. Article 118—Murder

a. Text of statute.

A n y p e r s o n s u b j e c t t o t h i s c h a p t e r w h o ,

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 that is inherently dangerous to another and evinces a wanton disregard

of human life; or 

(4) is engaged in the perpetration or attempted

perpetration of burglary, sodomy, rape, rape of a

child, aggravated sexual assault, aggravated sexual assault of a child, aggravated sexual contact,

aggravated sexual abuse of a child, aggravated

sexual contact with a child, 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 ) T h a t t h e d e a t h r e s u l t e d f r o m t h e a c t o r

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.

IV-62

¶41.f.(1)
(a) That a certain named or described person is

dead;

( b ) T h a t t h e d e a t h r e s u l t e d f r o m t h e a c t o r

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 another.

(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

another 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 ) T h a t t h e d e a t h r e s u l t e d f r o m t h e a c t o r

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, rape of a child,

aggravated sexual assault, aggravated sexual assault

of a child, aggravated sexual contact, aggravated

sexual abuse of a child, aggravated sexual contact

with a child, robbery, or aggravated arson.

c. Explanation.

(1) In general. Killing a human being is unlawful

w h e n d o n e w i t h o u t j u s t i f i c a t i o n o r e x c u s e . S e e

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

b y t h e v i c t i m w h i c h r e s u l t e d f r o m t h e a c t o r

omission.

(2) Premeditated murder.

(a) Premeditation. A murder is not premedit a t e d u n l e s s t h e t h o u g h t o f t a k i n g l i f e w a s c o n -

sciously 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

p r e m e d i t a t i o n m a y b e i n f e r r e d f r o m t h e

circumstances.

( b ) T r a n s f e r r e d p r e m e d i t a t i o n . W h e n a n a c -

cused 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 ) I n t o x i c a t i o n . V o l u n t a r y i n t o x i c a t i o n ( s e e

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 inflict great bodily harm.

( a ) I n t e n t . A n u n l a w f u l k i l l i n g w i t h o u t

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

h e a t o f a s u d d e n p a s s i o n c a u s e d b y a d e q u a t e

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, torn

IV-63

¶43.c.(3)(b)
members of the body, serious damage to internal

organs, and other serious bodily injuries. It is synonymous with the term “grievous bodily harm.”

( c ) I n t o x i c a t i o n . V o l u n t a r y i n t o x i c a t i o n n o t

a m o u n t i n g t o l e g a l i n s a n i t y d o e s n o t r e d u c e u n -

premeditated murder to manslaughter (Article 119)

or any other lesser offense.

(4) Act inherently dangerous to others.

(a) Wanton disregard of human life. Intentiona l l y e n g a g i n g i n a n a c t i n h e r e n t l y d a n g e r o u s t o

another—although without an intent to cause the

death of or great bodily harm to any particular person, or even with a wish that death will not be

caused—may also constitute murder if the act shows

wanton disregard of human life. Such disregard is

characterized by heedlessness of the probable consequences of the act or omission, or indifference to the

likelihood of death or great bodily harm. Examples

include throwing a live grenade toward another in

jest or flying an aircraft very low over one or more

persons to cause alarm.

(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,

r o b b e r y , o r a g g r a v a t e d a r s o n m a y b e c h a r g e d

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—involuntary manslaughter

(b) Article 128—assault; assault consummated

by a battery; aggravated assault

(c) Article 134—negligent homicide

(3) Murder as defined in Article 118(1), (2), and

(4).

(a) Article 80—attempts

(b) Article 119—voluntary manslaughter

(c) Article 134—assault with intent to commit

murder

(d) Article 134—assault with intent to commit

voluntary manslaughter

e. Maximum punishment.

(1) Article 118(1) or (4)—death. Mandatory minim u m — i m p r i s o n m e n t f o r l i f e w i t h e l i g i b i l i t y f o r

parole.

(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, (at/on board—location) (subject-matter jurisdict i o n d a t a , i f r e q u i r e d ) , o n o r

a b o u t 2 0 , ( w i t h p r e m e d i t a t i o n )

( w h i l e ( p e r p e t r a t i n g ) ( a t t e m p t i n g t o p e r p e -

t r a t e ) ) m u r d e r b y

m e a n s o f ( s h o o t i n g h i m / h e r w i t h a r i f l e )

( ).

44. Article 119—Manslaughter

a. Text of statute.

(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 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 ) T h a t t h e d e a t h r e s u l t e d f r o m t h e a c t o r

omission of the accused;

(c) That the killing was unlawful; and

IV-64

¶43.c.(3)(b)
(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 ) T h a t t h e d e a t h r e s u l t e d f r o m t h e a c t o r

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, rape of a child, aggravated sexual assault, aggravated sexual assault of a

child, aggravated sexual contact, aggravated sexual

abuse of a child, aggravated sexual contact with a

child, 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 manslaught e r i f c o m m i t t e d i n t h e h e a t o f s u d d e n p a s s i o n

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 ) N a t u r e o f p r o v o c a t i o n . T h e p r o v o c a t i o n

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

p a s s i o n p e r s i s t s . E x a m p l e s o f a c t s w h i c h m a y ,

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,

w h e n v i e w e d i n t h e l i g h t o f h u m a n e x p e r i e n c e ,

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

a f f e c t i n g s o m e p a r t i c u l a r p e r s o n a s d i s t i n g u i s h e d

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 119—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

IV-65

¶44.d.(2)(b)
e. Maximum punishment.

( 1 ) V o l u n t a r y m a n s l a u g h t e r . D i s h o n o r a b l e d i s -

charge, forfeiture of all pay and allowances, and

confinement for 15 years.

(2) Involuntary manslaughter. Dishonorable discharge, forfeiture of all pay and allowances, and

confinement for 10 years.

f. Sample specifications.

(1) Voluntary manslaughter.

In that (personal jurisdiction data),

did, (at/on board—location) (subject-matter jurisdict i o n d a t a , i f r e q u i r e d ) , o n o r

a b o u t 2 0 , w i l l f u l l y a n d u n l a w -

fully kill by him/her (in)

(on) the with a .

(2) Involuntary manslaughter.

In that (personal jurisdiction data),

did, (at/on board—location) (subject-matter jurisdict i o n d a t a , i f r e q u i r e d ) , o n o r

a b o u t 2 0 , ( b y c u l p a b l e n e g l i -

gence) (while (perpetrating) (attempting to perpet r a t e ) a n o f f e n s e d i r e c t l y a f f e c t i n g t h e p e r s o n

o f , t o w i t : ( m a i m i n g ) ( a b a t t e r y )

( ) ) u n l a w f u l l y

k i l l b y h i m / h e r ( i n )

(on) the with a .

44a. Article 119a.--Death or injury of an

unborn child

a. Text of statute.

(a)(1) Any person subject to this chapter who

engages in conduct that violates any of the provisions of law listed in subsection (b) and thereby

causes the death of, or bodily injury (as defined

in section 1365 of title 18) to, a child, who is in

utero at the time the conduct takes place, is guilty

of a separate offense under this section and shall,

u p o n c o n v i c t i o n , b e p u n i s h e d b y s u c h p u n i s h -

ment, other than death, as a court-martial may

direct, which shall be consistent with the punishments prescribed by the President for that conduct had that injury or death occurred to the

unborn child’s mother.

(2) An offense under this section does not require proof that—

(i) the person engaging in the conduct had

knowledge or should have had knowledge that

the victim of the underlying offense was pregnant; or 

(ii) the accused intended to cause the death

of, or bodily injury to, the unborn child.

( 3 ) I f t h e p e r s o n e n g a g i n g i n t h e c o n d u c t

thereby intentionally kills or attempts to kill the

unborn child, that person shall, instead of being

punished under paragraph (1), be punished as

provided under sections 880, 918, and 919(a) of

this title (articles 80, 118, and 119(a)) for intent i o n a l l y k i l l i n g o r a t t e m p t i n g t o k i l l a h u m a n

being.

( 4 ) N o t w i t h s t a n d i n g a n y o t h e r p r o v i s i o n o f

law, the death penalty shall not be imposed for

an offense under this section.

(b) The provisions referred to in subsection (a)

are sections 918, 919(a), 919(b)(2), 920(a), 922,

924, 926, and 928 of this title (articles 118, 119(a),

119(b)(2), 120(a), 122, 124, 126, and 128).

(c) Nothing in this section shall be construed to

permit the prosecution—

(1) of any person authorized by state or federal law to perform abortions for conduct relating to an abortion for which the consent of the

pregnant woman, or a person authorized by law

to act on her behalf, has been obtained or for

which such consent is implied by law;

(2) of any person for any medical treatment

of the pregnant woman or her unborn child; or

(3) of any woman with respect to her unborn child.

(d) As used in this section, the term “unborn

c h i l d ” m e a n s a c h i l d i n u t e r o , a n d t h e t e r m

“child in utero” or “child, who is in utero” means

a member of the species homo sapiens, at any

s t a g e o f d e v e l o p m e n t , w h o i s c a r r i e d i n t h e

womb.

b. Elements.

(1) Injuring an unborn child.

( a ) T h a t t h e a c c u s e d w a s e n g a g e d i n t h e

[(murder (article 118)), (voluntary manslaughter (art i c l e 1 1 9 ( a ) ) ) , ( i n v o l u n t a r y m a n s l a u g h t e r ( a r t i c l e

1 1 9 ( b ) ( 2 ) ) ) , ( r a p e ( a r t i c l e 1 2 0 ) ) , ( r o b b e r y ( a r t i c l e

1 2 2 ) ) , ( m a i m i n g ( a r t i c l e 1 2 4 ) ) , ( a s s a u l t ( a r t i c l e

128)), of] or [burning or setting afire, as arson (article 126), of (a dwelling inhabited by) (a structure or

property (known to be occupied by) (belonging to))]

a woman;

IV-66

¶44.e.
(b) That the woman was then pregnant; and

(c) That the accused thereby caused bodily injury to the unborn child of that woman.

(2) Killing an unborn child.

( a ) T h a t t h e a c c u s e d w a s e n g a g e d i n t h e

[(murder (article 118)), (voluntary manslaughter (art i c l e 1 1 9 ( a ) ) ) , ( i n v o l u n t a r y m a n s l a u g h t e r ( a r t i c l e

1 1 9 ( b ) ( 2 ) ) ) , ( r a p e ( a r t i c l e 1 2 0 ) ) , ( r o b b e r y ( a r t i c l e

1 2 2 ) ) , ( m a i m i n g ( a r t i c l e 1 2 4 ) ) , ( a s s a u l t ( a r t i c l e

128)), of ] or [burning or setting afire, as arson

(article 126), of (a dwelling inhabited by) (a structure or property known to (be occupied by) (belong

to))] a woman;

(b) That the woman was then pregnant; and

(c) That the accused thereby caused the death

of the unborn child of that woman.

(3) Attempting to kill an unborn child.

( a ) T h a t t h e a c c u s e d w a s e n g a g e d i n t h e

[(murder (article 118)), (voluntary manslaughter (art i c l e 1 1 9 ( a ) ) ) , ( i n v o l u n t a r y m a n s l a u g h t e r ( a r t i c l e

1 1 9 ( b ) ( 2 ) ) ) , ( r a p e ( a r t i c l e 1 2 0 ) ) , ( r o b b e r y ( a r t i c l e

1 2 2 ) ) , ( m a i m i n g ( a r t i c l e 1 2 4 ) ) , ( a s s a u l t ( a r t i c l e

128)), of] or [burning or setting afire, as arson (article 126), of (a dwelling inhabited by) (a structure or

property (known to be occupied by) (belonging to))]

a woman;

(b) That the woman was then pregnant; and

(c) That the accused thereby intended and attempted to kill the unborn child of that woman.

(4) Intentionally killing an unborn child.

( a ) T h a t t h e a c c u s e d w a s e n g a g e d i n t h e

[(murder (article 118)), (voluntary manslaughter (art i c l e 1 1 9 ( a ) ) ) , ( i n v o l u n t a r y m a n s l a u g h t e r ( a r t i c l e

1 1 9 ( b ) ( 2 ) ) ) , ( r a p e ( a r t i c l e 1 2 0 ) ) , ( r o b b e r y ( a r t i c l e

1 2 2 ) ) , ( m a i m i n g ( a r t i c l e 1 2 4 ) ) , ( a s s a u l t ( a r t i c l e

128)), of] or [burning or setting afire, as arson (article 126), of (a dwelling inhabited by) (a structure or

property (known to be occupied by) (belonging to))]

a woman;

(b) That the woman was then pregnant; and

(c) That the accused thereby intentionally killed the unborn child of that woman.

c. Explanation.

(1) Nature of offense. This article makes it a separate, punishable crime to cause the death of or

bodily injury to an unborn child while engaged in

a r s o n ( a r t i c l e 1 2 6 , U C M J ) ; m u r d e r ( a r t i c l e 1 1 8 ,

U C M J ) ; v o l u n t a r y m a n s l a u g h t e r ( a r t i c l e 1 1 9 ( a ) ,

UCMJ); involuntary manslaughter (article 119(b)(2),

UCMJ); rape (article 120(a), UCMJ); robbery (article 122, UCMJ); maiming (article 124, UCMJ); or

assault (article 128, UCMJ) against a pregnant woman. For all underlying offenses, except arson, this

article requires that the victim of the underlying offense be the pregnant mother. For purposes of arson,

the pregnant mother must have some nexus to the

arson such that she sustained some “bodily injury”

due to the arson. For the purposes of this article the

term “woman” means a female of any age. This

article does not permit the prosecution of any—

(a) person for conduct relating to an abortion

for which the consent of the pregnant woman, or a

person authorized by law to act on her behalf, has

been obtained or for which such consent is implied

by law;

( b ) p e r s o n f o r a n y m e d i c a l t r e a t m e n t o f t h e

pregnant woman or her unborn child; or

(c) woman with respect to her unborn child.

(2) The offenses of “injuring an unborn child”

and “killing an unborn child” do not require proof

that—

(a) the person engaging in the conduct (the accused) had knowledge or should have had knowledge that the victim of the underlying offense was

pregnant; or

(b) the accused intended to cause the death of,

or bodily injury to, the unborn child.

(3) The offense of “attempting to kill an unborn

child” requires that the accused intended by his conduct to cause the death of the unborn child (See

paragraph b(3)(c) above).

(4) Bodily injury. For the purpose of this offense,

the term “bodily injury” is that which is provided by

section 1365 of title 18, to wit: a cut, abrasion,

bruise, burn, or disfigurement; physical pain; illness;

impairment of the function of a bodily member, organ, or mental faculty; or any other injury to the

body, no matter how temporary.

(5) Unborn child. “Unborn child” means a child

in utero or a member of the species homo sapiens

who is carried in the womb, at any stage of development, from conception to birth.

d. Lesser included offenses.

(1) Killing an unborn child. Article 119a — injuring an unborn child

(2) Intentionally killing an unborn child.

IV-67

¶44a.d.(2)
(a) Article 119a — killing an unborn child

(b) Article 119a — injuring an unborn child

(c) Article 119a — attempts (attempting to kill

an unborn child)

e. Maximum punishment.

The maximum punishment for (1) Injuring an unborn child; (2) Killing an unborn child; (3) Attempti n g t o k i l l a n u n b o r n c h i l d ; o r ( 4 ) I n t e n t i o n a l l y

killing an unborn child is such punishment, other

than death, as a court-martial may direct, but shall

be consistent with the punishment had the bodily

injury, death, attempt to kill, or intentional killing

occurred to the unborn child’s mother.

f. Sample specifications.

(1) Injuring an unborn child.

In that (personal jurisdiction data), did (at/on board—location), (subject-matt e r j u r i s d i c t i o n d a t a , i f r e q u i r e d ) , o n o r

about 20 , cause bodily injury to

the unborn child of , a pregnant woman, by engaging in the [(murder) (voluntary manslaughter) (involu n t a r y m a n s l a u g h t e r ) ( r a p e ) ( r o b b e r y ) ( m a i m i n g )

(assault) of] [(burning) (setting afire) of (a dwelling

inhabited by) (a structure or property known to (be

occupied by) (belong to))] that woman.

(2) Killing an unborn child.

In that (personal jurisdiction data), did (at/on board—location), (subject-matt e r j u r i s d i c t i o n d a t a , i f r e q u i r e d ) , o n o r

about 20 , cause the death of the

unborn child of , a pregnant woman, by engaging in

the [(murder) (voluntary manslaughter) (involuntary

manslaughter) (rape) (robbery) (maiming) (assault)

of] [(burning) (setting afire) of (a dwelling inhabited

by) (a structure or property known to (be occupied

by) (belong to))] that woman.

(3) Attempting to kill an unborn child.

In that (personal jurisdiction data), did (at/on board—location), (subject-matt e r j u r i s d i c t i o n d a t a , i f r e q u i r e d ) , o n o r

about 20 , attempt to kill the unborn child of , a pregnant woman, by engaging in

the [(murder) (voluntary manslaughter) (involuntary

manslaughter) (rape) (robbery) (maiming) (assault)

of] [(burning) (setting afire) of (a dwelling inhabited

by) (a structure or property known to (be occupied

by) (belong to))] that woman.

(4) Intentionally killing an unborn child.

In that (personal jurisdiction data), did (at/on board—location), (subject-matt e r j u r i s d i c t i o n d a t a , i f r e q u i r e d ) , o n o r

a b o u t 2 0 , i n t e n t i o n a l l y k i l l t h e

unborn child of , a pregnant woman, by engaging in

the [(murder) (voluntary manslaughter) (involuntary

manslaughter) (rape) (robbery) (maiming) (assault)

of] [(burning) (setting afire) of (a dwelling inhabited

by) (a structure or property known to (be occupied

by) (belong to))] that woman.

45. Article 120—Rape, sexual assault, and

other sexual misconduct

a. Text of statute.

(a) Rape. Any person subject to this chapter

who causes another person of any age to engage

in a sexual act by—

(1) using force against that other person;

( 2 ) c a u s i n g g r i e v o u s b o d i l y h a r m t o a n y

person;

(3) threatening or placing that other person

in fear that any person will be subjected to death,

grievous bodily harm, or kidnapping; 

( 4 ) r e n d e r i n g a n o t h e r p e r s o n u n c o n s c i o u s ;

or 

(5) administering to another person by force

or threat of force, or without the knowledge or

permission of that person, a drug, intoxicant, or

other similar substance and thereby substantially

impairs the ability of that other person to appraise or control conduct; is guilty of rape and

shall be punished as a court-martial may direct. 

(b) Rape of a child. Any person subject to this

chapter who—

(1) engages in a sexual act with a child who

has not attained the age of 12 years; or 

(2) engages in a sexual act under the circ u m s t a n c e s d e s c r i b e d i n s u b s e c t i o n ( a ) w i t h a

child who has attained the age of 12 years; is

guilty of rape of a child and shall be punished as

a court-martial may direct.

(c) Aggravated sexual assault. Any person subject to this chapter who—

(1) causes another person of any age to engage in a sexual act by—

(A) threatening or placing that other person in fear (other than by threatening or placing

that other person in fear that any person will be

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¶44a.d.(2)(a)
subjected to death, grievous bodily harm, or kidnapping); or

(B) causing bodily harm; or 

(2) engages in a sexual act with another person of any age if that other person is substantially

incapacitated or substantially incapable of—

( A ) a p p r a i s i n g t h e n a t u r e o f t h e s e x u a l

act; 

( B ) d e c l i n i n g p a r t i c i p a t i o n i n t h e s e x u a l

act; or

( C ) c o m m u n i c a t i n g u n w i l l i n g n e s s t o e n -

gage in the sexual act; is guilty of aggravated

sexual assault and shall be punished as a courtmartial may direct.

(d) Aggravated sexual assault of a child. Any

person subject to this chapter who engages in a

sexual act with a child who has attained the age

of 12 years is guilty of aggravated sexual assault

of a child and shall be punished as a court-martial may direct.

(e) Aggravated sexual contact. Any person subject to this chapter who engages in or causes

sexual contact with or by another person, if to do

so would violate subsection (a) (rape) had the

sexual contact been a sexual act, is guilty of aggravated sexual contact and shall be punished as

a court-martial may direct.

(f) Aggravated sexual abuse of a child. Any person subject to this chapter who engages in a lewd

act with a child is guilty of aggravated sexual

abuse of a child and shall be punished as a courtmartial may direct.

(g) Aggravated sexual contact with a child. Any

person subject to this chapter who engages in or

causes sexual contact with or by another person,

if to do so would violate subsection (b) (rape of a

child) had the sexual contact been a sexual act, is

guilty of aggravated sexual contact with a child

and shall be punished as a court-martial may

direct.

(h) Abusive sexual contact. Any person subject

to this chapter who engages in or causes sexual

contact with or by another person, if to do so

would violate subsection (c) (aggravated sexual

assault) had the sexual contact been a sexual act,

is guilty of abusive sexual contact and shall be

punished as a court-martial may direct.

(i) Abusive sexual contact with a child. Any person subject to this chapter who engages in or

causes sexual contact with or by another person,

if to do so would violate subsection (d) (aggravated sexual assault of a child) had the sexual

contact been a sexual act, is guilty of abusive

sexual contact with a child and shall be punished

as a court-martial may direct.

(j) Indecent liberty with a child. Any person subject to this chapter who engages in indecent liberty in the physical presence of a child—

(1) with the intent to arouse, appeal to, or

gratify the sexual desire of any person; or

(2) with the intent to abuse, humiliate, or

degrade any person; is guilty of indecent liberty

with a child and shall be punished as a courtmartial may direct.

( k ) I n d e c e n t a c t . A n y p e r s o n s u b j e c t t o t h i s

chapter who engages in indecent conduct is guilty

of an indecent act and shall be punished as a

court-martial may direct.

(l) Forcible pandering. Any person subject to

this chapter who compels another person to engage in an act of prostitution with another person

to be directed to said person is guilty of forcible

pandering and shall be punished as a court-martial may direct.

(m) Wrongful sexual contact. Any person subject to this chapter who, without legal justification or lawful authorization, engages in sexual

contact with another person without that other

person’s permission is guilty of wrongful sexual

contact and shall be punished as a court-martial

may direct.

( n ) I n d e c e n t e x p o s u r e . A n y p e r s o n s u b j e c t t o

this chapter who intentionally exposes, in an indecent manner, in any place where the conduct

i n v o l v e d m a y r e a s o n a b l y b e e x p e c t e d t o b e

viewed by people other than members of the act o r ’ s f a m i l y o r h o u s e h o l d , t h e g e n i t a l i a , a n u s ,

buttocks, or female areola or nipple is guilty of

i n d e c e n t e x p o s u r e a n d s h a l l b e p u n i s h e d a s a

court-martial may direct.

(o) Age of child.

(1) Twelve years. In a prosecution under subsection (b) (rape of a child), subsection (g) (aggravated sexual contact with a child), or subsection

(j) (indecent liberty with a child), it need not be

proven that the accused knew that the other person engaging in the sexual act, contact, or liberty

IV-69

¶45.a.(o)(1)
had not attained the age of 12 years. It is not an

affirmative defense that the accused reasonably

believed that the child had attained the age of 12

years.

( 2 ) S i x t e e n y e a r s . I n a p r o s e c u t i o n u n d e r

s u b s e c t i o n ( d ) ( a g g r a v a t e d s e x u a l a s s a u l t o f a

child), subsection (f) (aggravated sexual abuse of

a c h i l d ) , s u b s e c t i o n ( i ) ( a b u s i v e s e x u a l c o n t a c t

with a child), or subsection (j) (indecent liberty

with a child), it need not be proven that the accused knew that the other person engaging in the

sexual act, contact, or liberty had not attained the

age of 16 years. Unlike in paragraph (1), however, it is an affirmative defense that the accused

reasonably believed that the child had attained

the age of 16 years.

(p) Proof of threat. In a prosecution under this

s e c t i o n , i n p r o v i n g t h a t t h e a c c u s e d m a d e a

threat, it need not be proven that the accused

actually intended to carry out the threat.

(q) Marriage.

(1) In general. In a prosecution under paragraph (2) of subsection (c) (aggravated sexual assault), or under subsection (d) (aggravated sexual

assault of a child), subsection (f) (aggravated sexual abuse of a child), subsection (i) (abusive sexual contact with a child), subsection (j) (indecent

liberty with a child), subsection (m) (wrongful

sexual contact), or subsection (n) (indecent exposure), it is an affirmative defense that the accused

and the other person when they engaged in the

sexual act, sexual contact, or sexual conduct were

married to each other.

(2) Definition. For purposes of this subsection, a marriage is a relationship, recognized by

the laws of a competent State or foreign jurisdiction, between the accused and the other person as

spouses. A marriage exists until it is dissolved in

accordance with the laws of a competent State or

foreign jurisdiction.

(3) Exception. Paragraph (1) shall not apply

if the accused’s intent at the time of the sexual

conduct is to abuse, humiliate, or degrade any

person.

(r) Consent and mistake of fact as to consent.

Lack of permission is an element of the offense in

subsection (m) (wrongful sexual contact). Consent

and mistake of fact as to consent are not an issue,

or an affirmative defense, in a prosecution under

any other subsection, except they are an affirmative defense for the sexual conduct in issue in a

prosecution under subsection (a) (rape), subsection (c) (aggravated sexual assault), subsection (e)

(aggravated sexual contact), and subsection (h)

(abusive sexual contact).

(s) Other affirmative defenses not precluded. The

enumeration in this section of some affirmative

defenses shall not be construed as excluding the

existence of others.

(t) Definitions. In this section:

( 1 ) S e x u a l a c t . T h e t e r m “ s e x u a l a c t ”

means—

( A ) c o n t a c t b e t w e e n t h e p e n i s a n d t h e

v u l v a , a n d f o r p u r p o s e s o f t h i s s u b p a r a g r a p h

contact involving the penis occurs upon penetration, however slight; or

(B) the penetration, however slight, of the

genital opening of another by a hand or finger or

by any object, with an intent to abuse, humiliate,

harass, or degrade any person or to arouse or

gratify the sexual desire of any person.

(2) Sexual contact. The term “sexual contact”

means the intentional touching, either directly or

through the clothing, of the genitalia, anus, groin,

breast, inner thigh, or buttocks of another person, or intentionally causing another person to

touch, either directly or through the clothing, the

genitalia, anus, groin, breast, inner thigh, or buttocks of any person, with an intent to abuse, humiliate, or degrade any person or to arouse or

gratify the sexual desire of any person.

(3) Grievous bodily harm. The term “grievous

bodily harm” means serious bodily injury. It includes fractured or dislocated bones, deep cuts,

torn members of the body, serious damage to

internal organs, and other severe bodily injuries.

It does not include minor injuries such as a black

eye or a bloody nose. It is the same level of injury

as in section 928 (article 128) of this chapter, and

a lesser degree of injury than in section 2246(4)

of title 18.

( 4 ) D a n g e r o u s w e a p o n o r o b j e c t . T h e t e r m

“dangerous weapon or object” means—

( A ) a n y f i r e a r m , l o a d e d o r n o t , a n d

whether operable or not;

(B) any other weapon, device, instrument,

material, or substance, whether animate or inanimate, that in the manner it is used, or is intended

IV-70

¶45.a.(o)(1)
to be used, is known to be capable of producing

death or grievous bodily harm; or

( C ) a n y o b j e c t f a s h i o n e d o r u t i l i z e d i n

such a manner as to lead the victim under the

circumstances to reasonably believe it to be capable of producing death or grievous bodily harm.

(5) Force. The term “force” means action to

compel submission of another or to overcome or

prevent another’s resistance by—

(A) the use or display of a dangerous

weapon or object;

(B) the suggestion of possession of a dangerous weapon or object that is used in a manner

t o c a u s e a n o t h e r t o b e l i e v e i t i s a d a n g e r o u s

weapon or object; or

(C) physical violence, strength, power, or

r e s t r a i n t a p p l i e d t o a n o t h e r p e r s o n , s u f f i c i e n t

that the other person could not avoid or escape

the sexual conduct.

(6) Threatening or placing that other person in

fear. The term “threatening or placing that other

person in fear” under paragraph (3) of subsection (a) (rape), or under subsection (e) (aggravated sexual contact), means a communication or

action that is of sufficient consequence to cause a

reasonable fear that non-compliance will result in

the victim or another person being subjected to

death, grievous bodily harm, or kidnapping.

(7) Threatening or placing that other person in

fear.

(A) In general. The term “threatening or

placing that other person in fear” under paragraph (1)(A) of subsection (c) (aggravated sexual

assault), or under subsection (h) (abusive sexual

contact), means a communication or action that is

of sufficient consequence to cause a reasonable

fear that non-compliance will result in the victim

or another being subjected to a lesser degree of

h a r m t h a n d e a t h , g r i e v o u s b o d i l y h a r m , o r

kidnapping.

(B) Inclusions. Such lesser degree of harm

includes—

(i) physical injury to another person or

to another person’s property; or

(ii) a threat—

(I) to accuse any person of a crime;

(II) to expose a secret or publicize an

asserted fact, whether true or false, tending to

subject some person to hatred, contempt, or ridicule; or

(III) through the use or abuse of milit a r y p o s i t i o n , r a n k , o r a u t h o r i t y , t o a f f e c t o r

threaten to affect, either positively or negatively,

the military career of some person.

( 8 ) B o d i l y h a r m . T h e t e r m “ b o d i l y h a r m ”

means any offensive touching of another, however slight.

(9) Child. The term “child” means any person who has not attained the age of 16 years.

(10) Lewd act. The term “lewd act” means—

(A) the intentional touching, not through

the clothing, of the genitalia of another person,

with an intent to abuse, humiliate, or degrade

any person, or to arouse or gratify the sexual

desire of any person; or

( B ) i n t e n t i o n a l l y c a u s i n g a n o t h e r p e r s o n

to touch, not through the clothing, the genitalia of

any person with an intent to abuse, humiliate or

degrade any person, or to arouse or gratify the

sexual desire of any person.

(11) Indecent liberty. The term “indecent liberty” means indecent conduct, but physical contact is not required. It includes one who with the

requisite intent exposes one’s genitalia, anus, buttocks, or female areola or nipple to a child. An

indecent liberty may consist of communication of

indecent language as long as the communication

is made in the physical presence of the child. If

words designed to excite sexual desire are spoken

to a child, or a child is exposed to or involved in

s e x u a l c o n d u c t , i t i s a n i n d e c e n t l i b e r t y ; t h e

child’s consent is not relevant.

( 1 2 ) I n d e c e n t c o n d u c t . T h e t e r m “ i n d e c e n t

conduct” means that form of immorality relating

to sexual impurity that is grossly vulgar, obscene,

and repugnant to common propriety, and tends

to excite sexual desire or deprave morals with

respect to sexual relations. Indecent conduct includes observing, or making a videotape, photograph, motion picture, print, negative, slide, or

other mechanically, electronically, or chemically

reproduced visual material, without another person’s consent, and contrary to that other person’s

reasonable expectation of privacy, of—

(A) that other person’s genitalia, anus, or

buttocks, or (if that other person is female) that

person’s areola or nipple; or

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¶45.a.(t)(12)(A)
(B) that other person while that other person is engaged in a sexual act, sodomy (under

section 925 (article 125) of this chapter), or sexual

contact.

( 1 3 ) A c t o f p r o s t i t u t i o n . T h e t e r m “ a c t o f

prostitution” means a sexual act, sexual contact,

or lewd act for the purpose of receiving money or

other compensation.

( 1 4 ) C o n s e n t . T h e t e r m “ c o n s e n t ” m e a n s

w o r d s o r o v e r t a c t s i n d i c a t i n g a f r e e l y g i v e n

agreement to the sexual conduct at issue by a

competent person. An expression of lack of consent through words or conduct means there is no

consent. Lack of verbal or physical resistance or

submission resulting from the accused’s use of

force, threat of force, or placing another person

in fear does not constitute consent. A current or

previous dating relationship by itself or the manner of dress of the person involved with the accused in the sexual conduct at issue shall not

constitute consent. A person cannot consent to

sexual activity if—

(A) under 16 years of age; or

(B) substantially incapable of—

(i) appraising the nature of the sexual

conduct at issue due to—

( I ) m e n t a l i m p a i r m e n t o r u n c o n -

sciousness resulting from consumption of alcohol,

drugs, a similar substance, or otherwise; or

(II) mental disease or defect that renders the person unable to understand the nature

of the sexual conduct at issue;

(ii) physically declining participation in

the sexual conduct at issue; or

( i i i ) p h y s i c a l l y c o m m u n i c a t i n g u n w i l l -

ingness to engage in the sexual conduct at issue.

(15) Mistake of fact as to consent. The term

“mistake of fact as to consent” means the accused

held, as a result of ignorance or mistake, an incorrect belief that the other person engaging in

the sexual conduct consented. The ignorance or

mistake must have existed in the mind of the

accused and must have been reasonable under all

the circumstances. To be reasonable, the ignorance or mistake must have been based on information, or lack of it, that would indicate to a

r e a s o n a b l e p e r s o n t h a t t h e o t h e r p e r s o n c o n -

s e n t e d . A d d i t i o n a l l y , t h e i g n o r a n c e o r m i s t a k e

cannot be based on the negligent failure to discover the true facts. Negligence is the absence of

due care. Due care is what a reasonably careful

person would do under the same or similar circumstances. The accused’s state of intoxication, if

any, at the time of the offense is not relevant to

mistake of fact. A mistaken belief that the other

person consented must be that which a reasonably careful, ordinary, prudent, sober adult would

have had under the circumstances at the time of

the offense.

(16) Affirmative defense. The term “affirmative defense” means any special defense that, although not denying that the accused committed

t h e o b j e c t i v e a c t s c o n s t i t u t i n g t h e o f f e n s e

charged, denies, wholly, or partially, criminal responsibility for those acts. The accused has the

burden of proving the affirmative defense by a

p r e p o n d e r a n c e o f e v i d e n c e . A f t e r t h e d e f e n s e

meets this burden, the prosecution shall have the

burden of proving beyond a reasonable doubt

that the affirmative defense did not exist.

b. Elements.

(1) Rape.

(a) Rape by using force.

(i) That the accused caused another person,

who is of any age, to engage in a sexual act by

using force against that other person.

(b) Rape by causing grievous bodily harm.

(i) That the accused caused another person,

who is of any age, to engage in a sexual act by

causing grievous bodily harm to any person.

(c) Rape by using threats or placing in fear.

(i) That the accused caused another person,

who is of any age, to engage in a sexual act by

threatening or placing that other person in fear that

any person will be subjected to death, grievous bodily harm, or kidnapping.

(d) Rape by rendering another unconscious.

(i) That the accused caused another person,

who is of any age, to engage in a sexual act by

rendering that other person unconscious.

(e) Rape by administration of drug, intoxicant,

or other similar substance.

(i) That the accused caused another person,

who is of any age, to engage in a sexual act by

administering to that other person a drug, intoxicant,

or other similar substance;

(ii) That the accused administered the drug,

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¶45.a.(t)(12)(B)
intoxicant or other similar substance by force or

threat of force or without the knowledge or permission of that other person; and

( i i i ) T h a t , a s a r e s u l t , t h a t o t h e r p e r s o n ’ s

ability to appraise or control conduct was substantially impaired.

(2) Rape of a child.

(a) Rape of a child who has not attained the

age of 12 years.

(i) That the accused engaged in a sexual act

with a child; and

(ii) That at the time of the sexual act the

child had not attained the age of twelve years.

(b) Rape of a child who has attained the age of

12 years but has not attained the age of 16 years by

using force.

(i) That the accused engaged in a sexual act

with a child;

(ii) That at the time of the sexual act the

child had attained the age of 12 years but had not

attained the age of 16 years; and

(iii) That the accused did so by using force

against that child.

(c) Rape of a child who has attained the age of

12 years but has not attained the age of 16 years by

causing grievous bodily harm.

(i) That the accused engaged in a sexual act

with a child;

(ii) That at the time of the sexual act the

child had attained the age of 12 years but had not

attained the age of 16 years; and

( i i i ) T h a t t h e a c c u s e d d i d s o b y c a u s i n g

grievous bodily harm to any person.

(d) Rape of a child who has attained the age of

12 years but has not attained the age of 16 years by

using threats or placing in fear.

(i) That the accused engaged in a sexual act

with a child;

(ii) That at the time of the sexual act the

child had attained the age of 12 years but had not

attained the age of 16 years; and

(iii) That the accused did so by threatening

or placing that child in fear that any person will be

s u b j e c t e d t o d e a t h , g r i e v o u s b o d i l y h a r m , o r

kidnapping.

(e) Rape of a child who has attained the age of

12 years but has not attained the age of 16 years by

rendering that child unconscious.

(i) That the accused engaged in a sexual act

with a child;

(ii) That at the time of the sexual act the

child had attained the age of 12 years but had not

attained the age of 16 years; and

(iii) That the accused did so by rendering

that child unconscious.

(f) Rape of a child who has attained the age of

12 years but has not attained the age of 16 years by

administration of drug, intoxicant, or other similar

substance.

(i) That the accused engaged in a sexual act

with a child;

(ii) That at the time of the sexual act the

child had attained the age of 12 years but had not

attained the age of 16 years; and

( i i i ) ( a ) T h a t t h e a c c u s e d d i d s o b y a d -

ministering to that child a drug, intoxicant, or other

similar substance;

(b) That the accused administered the drug,

intoxicant, or other similar substance by force or

threat of force or without the knowledge or permission of that child; and

(c) That, as a result, that child’s ability to

a p p r a i s e o r c o n t r o l c o n d u c t w a s s u b s t a n t i a l l y

impaired.

(3) Aggravated sexual assault.

(a) Aggravated sexual assault by using threats

or placing in fear.

(i) That the accused caused another person,

who is of any age, to engage in a sexual act; and

(ii) That the accused did so by threatening or

placing that other person in fear that any person

would be subjected to bodily harm or other harm

(other than by threatening or placing that other person in fear that any person would be subjected to

death, grievous bodily harm, or kidnapping).

(b) Aggravated sexual assault by causing bodily harm.

(i) That the accused caused another person,

who is of any age, to engage in a sexual act; and

(ii) That the accused did so by causing bodily harm to another person.

(c) Aggravated sexual assault upon a person

substantially incapacitated or substantially incapaIV-73

¶45.b.(3)(c)
ble of appraising the act, declining participation, or

communicating unwillingness.

(i) That the accused engaged in a sexual act

with another person, who is of any age; and

(Note: add one of the following elements)

(ii) That the other person was substantially

incapacitated;

(iii) That the other person was substantially

incapable of appraising the nature of the sexual act;

(iv) That the other person was substantially

incapable of declining participation in the sexual act;

or

(v) That the other person was substantially

incapable of communicating unwillingness to engage

in the sexual act.

(4) Aggravated sexual assault of a child who has

attained the age of 12 years but has not attained the

age of 16 years.

(a) That the accused engaged in a sexual act

with a child; and

(b) That at the time of the sexual act the child

had attained the age of 12 years but had not attained

the age of 16 years.

(5) Aggravated sexual contact.

(a) Aggravated sexual contact by using force.

( i ) ( a ) T h a t t h e a c c u s e d e n g a g e d i n s e x u a l

contact with another person; or

(b) That the accused caused sexual contact

with or by another person; and

(ii) That the accused did so by using force

against that other person.

( b ) A g g r a v a t e d s e x u a l c o n t a c t b y c a u s i n g

grievous bodily harm.

( i ) ( a ) T h a t t h e a c c u s e d e n g a g e d i n s e x u a l

contact with another person; or

(b) That the accused caused sexual contact

with or by another person; and

( i i ) T h a t t h e a c c u s e d d i d s o b y c a u s i n g

grievous bodily harm to any person.

(c) Aggravated sexual contact by using threats

or placing in fear.

( i ) ( a ) T h a t t h e a c c u s e d e n g a g e d i n s e x u a l

contact with another person; or

(b) That the accused caused sexual contact

with or by another person; and

(ii) That the accused did so by threatening or

placing that other person in fear that any person will

b e s u b j e c t e d t o d e a t h , g r i e v o u s b o d i l y h a r m , o r

kidnapping.

(d) Aggravated sexual contact by rendering

another unconscious.

( i ) ( a ) T h a t t h e a c c u s e d e n g a g e d i n s e x u a l

contact with another person; or

(b) That the accused caused sexual contact

with or by another person; and

(ii) That the accused did so by rendering that

other person unconscious.

(e) Aggravated sexual contact by administration of drug, intoxicant, or other similar substance.

( i ) ( a ) T h a t t h e a c c u s e d e n g a g e d i n s e x u a l

contact with another person; or

(b) That the accused caused sexual contact

with or by another person; and

(ii)(a) That the accused did so by administering to that other person a drug, intoxicant, or other

similar substance;

(b) That the accused administered the drug,

intoxicant, or other similar substance by force or

threat of force or without the knowledge or permission of that other person; and

(c) That, as a result, that other person’s ability to appraise or control conduct was substantially

impaired.

(6) Aggravated sexual abuse of a child.

(a) That the accused engaged in a lewd act;

and

(b) That the act was committed with a child

who has not attained the age of 16 years.

(7) Aggravated Sexual Contact with a Child.

(a) Aggravated sexual contact with a child who

has not attained the age of 12 years.

( i ) ( a ) T h a t t h e a c c u s e d e n g a g e d i n s e x u a l

contact with a child; or

(b) That the accused caused sexual contact

with or by a child or by another person with a child;

and

(ii) That at the time of the sexual contact the

child had not attained the age of twelve years.

(b) Aggravated sexual contact with a child who

has attained the age of 12 years but has not attained

the age of 16 years by using force.

( i ) ( a ) T h a t t h e a c c u s e d e n g a g e d i n s e x u a l

contact with a child; or

(b) That the accused caused sexual contact

IV-74

¶45.b.(3)(c)
with or by a child or by another person with a child;

and

(ii) That at the time of the sexual contact the

child had attained the age of 12 years but had not

attained the age of 16 years; and

(iii) That the accused did so by using force

against that child.

(c) Aggravated sexual contact with a child who

has attained the age of 12 years but has not attained

t h e a g e o f 1 6 y e a r s b y c a u s i n g g r i e v o u s b o d i l y

harm.

( i ) ( a ) T h a t t h e a c c u s e d e n g a g e d i n s e x u a l

contact with a child; or

(b) That the accused caused sexual contact

with or by a child or by another person with a child;

and

(ii) That at the time of the sexual contact the

child had attained the age of 12 years but had not

attained the age of 16 years; and

( i i i ) T h a t t h e a c c u s e d d i d s o b y c a u s i n g

grievous bodily harm to any person.

(d) Aggravated sexual contact with a child who

has attained the age of 12 years but has not attained

the age of 16 years by using threats or placing in

fear.

( i ) ( a ) T h a t t h e a c c u s e d e n g a g e d i n s e x u a l

contact with a child; or

(b) That the accused caused sexual contact

with or by a child or by another person with a child;

and

(ii) That at the time of the sexual contact the

child had attained the age of 12 years but had not

attained the age of 16 years; and

(iii) That the accused did so by threatening

or placing that child or that other person in fear that

any person will be subjected to death, grievous bodily harm, or kidnapping.

(e) Aggravated sexual contact with a child who

has attained the age of 12 years but has not attained

the age of 16 years by rendering another or that

child unconscious.

( i ) ( a ) T h a t t h e a c c u s e d e n g a g e d i n s e x u a l

contact with a child; or

(b) That the accused caused sexual contact

with or by a child or by another person with a child;

and

(ii) That at the time of the sexual contact the

child had attained the age of 12 years but had not

attained the age of 16 years; and

(iii) That the accused did so by rendering

that child or that other person unconscious.

(f) Aggravated sexual contact with a child who

has attained the age of 12 years but has not attained

the age of 16 years by administration of drug, intoxicant, or other similar substance.

( i ) ( a ) T h a t t h e a c c u s e d e n g a g e d i n s e x u a l

contact with a child; or

(b) That the accused caused sexual contact

with or by a child or by another person with a child;

and

(ii) That at the time of the sexual contact the

child had attained the age of 12 years but had not

attained the age of 16 years; and

( i i i ) ( a ) T h a t t h e a c c u s e d d i d s o b y a d -

ministering to that child or that other person a drug,

intoxicant, or other similar substance;

(b) That the accused administered the drug,

intoxicant, or other similar substance by force or

threat of force or without the knowledge or permission of that child or that other person; and

(c) That, as a result, that child’s or that other

person’s ability to appraise or control conduct was

substantially impaired.

(8) Abusive sexual contact.

(a) Abusive sexual contact by using threats or

placing in fear.

( i ) ( a ) T h a t t h e a c c u s e d e n g a g e d i n s e x u a l

contact with another person; or

(b) That the accused caused sexual contact

with or by another person; and

(ii) That the accused did so by threatening or

placing that other person in fear that any person

would be subjected to bodily harm or other harm

(other than by threatening or placing that other person in fear that any person would be subjected to

death, grievous bodily harm, or kidnapping).

(b) Abusive sexual contact by causing bodily

harm.

( i ) ( a ) T h a t t h e a c c u s e d e n g a g e d i n s e x u a l

contact with another person; or

(b) That the accused caused sexual contact

with or by another person; and

(ii) That the accused did so by causing bodily harm to another person.

(c) Abusive sexual contact upon a person subIV-75

¶45.b.(8)(c)
stantially incapacitated or substantially incapable of

appraising the act, declining participation, or communicating unwillingness.

( i ) ( a ) T h a t t h e a c c u s e d e n g a g e d i n s e x u a l

contact with another person; or

(b) That the accused caused sexual contact

with or by another person; and

(Note: add one of the following elements)

(ii) That the other person was substantially

incapacitated;

(iii) That the other person was substantially

i n c a p a b l e o f a p p r a i s i n g t h e n a t u r e o f t h e s e x u a l

contact;

(iv) That the other person was substantially

incapable of declining participation in the sexual

contact; or

(v) That the other person was substantially

incapable of communicating unwillingness to engage

in the sexual contact.

(9) Abusive sexual contact with a child.

(i)(a) That the accused engaged in sexual contact with a child; or

(b) That the accused caused sexual contact

with or by a child or by another person with a child;

and

(ii) That at the time of the sexual contact the

child had attained the age of 12 years but had not

attained the age of 16 years.

(10) Indecent liberty with a child.

(a) That the accused committed a certain act or

communication;

( b ) T h a t t h e a c t o r c o m m u n i c a t i o n w a s

indecent;

(c) That the accused committed the act or comm u n i c a t i o n i n t h e p h y s i c a l p r e s e n c e o f a c e r t a i n

child;

(d) That the child was under 16 years of age;

and

(e) That the accused committed the act or communication with the intent to:

(i) arouse, appeal to, or gratify the sexual

desires of any person; or

(ii) abuse, humiliate, or degrade any person.

(11) Indecent act.

(a) That the accused engaged in certain conduct; and

(b) That the conduct was indecent conduct.

(12) Forcible pandering.

(a) That the accused compelled a certain person to engage in an act of prostitution; and

(b) That the accused directed another person to

s a i d p e r s o n , w h o t h e n e n g a g e d i n a n a c t o f

prostitution.

(13) Wrongful sexual contact.

(a) That the accused had sexual contact with

another person;

(b) That the accused did so without that other

person’s permission; and

(c) That the accused had no legal justification

or lawful authorization for that sexual contact.

(14) Indecent exposure.

( a ) T h a t t h e a c c u s e d e x p o s e d h i s o r h e r

genitalia, anus, buttocks, or female areola or nipple;

(b) That the accused’s exposure was in an indecent manner;

( c ) T h a t t h e e x p o s u r e o c c u r r e d i n a p l a c e

where the conduct involved could reasonably be expected to be viewed by people other than the accused’s family or household; and

(d) That the exposure was intentional.

c. Explanation.

(1) Definitions. The terms are defined in Paragraph 45a.(t), supra.

(2) Character of victim. See Mil. R. Evid. 412

concerning rules of evidence relating to the character

of the victim of an alleged sexual offense.

(3) Indecent. In conduct cases, “indecent” generally signifies that form of immorality relating to

sexual impurity that is not only grossly vulgar, obscene, and repugnant to common propriety, but also

tends to excite lust and deprave the morals with

respect to sexual relations. Language is indecent if it

tends reasonably to corrupt morals or incite libidinous thoughts. The language must violate community standards.

d. Lesser included offenses. The following lesser included offenses are based on internal cross-references provided in the statutory text of Article 120.

See subsection (e) for a further listing of possible

lesser included offenses.

(1) Rape.

(a) Article 120—Aggravated sexual contact

(b) Article 134—Assault with intent to commit

rape

IV-76

¶45.b.(8)(c)
(c) Article 128—Aggravated assault; Assault;

Assault consummated by a battery

(d) Article 80—Attempts

(2) Rape of a child.

( a ) A r t i c l e 1 2 0 — A g g r a v a t e d s e x u a l c o n t a c t

with a child; Indecent act

(b) Article 134—Assault with intent to commit

rape

(c) Article 128—Aggravated assault; Assault;

Assault consummated by a battery; Assault consummated by a battery upon a child under 16

(d) Article 80—Attempts

(3) Aggravated sexual assault.

(a) Article 120—Abusive sexual contact

(b) Article 128—Aggravated assault; Assault;

Assault consummated by a battery

(c) Article 80—Attempts

(4) Aggravated sexual assault of a child.

(a) Article 120—Abusive sexual contact with a

child; Indecent act

(b) Article 128—Aggravated assault; Assault;

Assault consummated by a battery; Assault consummated by a battery upon a child under 16

(c) Article 80—Attempts

(5) Aggravated sexual contact.

(a) Article 128—Aggravated assault; Assault;

Assault consummated by a battery

(b) Article 80—Attempts

(6) Aggravated sexual abuse of a child.

(a) Article 120—Indecent act

( b ) A r t i c l e 1 2 8 — A s s a u l t ; A s s a u l t c o n s u m -

mated by a battery; Assault consummated by a battery upon a child under 16

(c) Article 80—Attempts

(7) Aggravated sexual contact with a child.

(a) Article 120—Indecent act

( b ) A r t i c l e 1 2 8 — A s s a u l t ; A s s a u l t c o n s u m -

mated by a battery; Assault consummated by a battery upon a child under 16

(c) Article 80—Attempts

(8) Abusive sexual contact.

( a ) A r t i c l e 1 2 8 — A s s a u l t ; A s s a u l t c o n s u m -

mated by a battery

(b) Article 80—Attempts

(9) Abusive sexual contact with a child.

(a) Article 120—Indecent act

( b ) A r t i c l e 1 2 8 — A s s a u l t ; A s s a u l t c o n s u m -

mated by a battery; Assault consummated by a battery upon a child under 16

(c) Article 80—Attempts

(10) Indecent liberty with a child.

(a) Article 120—Indecent act

(b) Article 80—Attempts

(11) Indecent act. Article 80—Attempts

(12) Forcible pandering. Article 80—Attempts

( 1 3 ) W r o n g f u l s e x u a l c o n t a c t A r t i c l e 8 0 — A t -

tempts

(14) Indecent exposure. Article 80—Attempts

e. Additional lesser included offenses. Depending on

the factual circumstances in each case, to include the

type of act and level of force involved, the following

offenses may be considered lesser included in addition to those offenses listed in subsection d. (See

subsection (d) for a listing of the offenses that are

specifically cross-referenced within the statutory text

of Article 120.) The elements of the proposed lesser

included offense should be compared with the elements of the greater offense to determine if the elements of the lesser offense are derivative of the

greater offense and vice versa. See Appendix 23 for

further explanation of lesser included offenses.

(1)(a) Rape by using force. Article 120—Indecent

act; Wrongful sexual contact

(1)(b) Rape by causing grievous bodily harm. Art i c l e 1 2 0 — A g g r a v a t e d s e x u a l a s s a u l t b y c a u s i n g

b o d i l y h a r m ; A b u s i v e s e x u a l c o n t a c t b y c a u s i n g

bodily harm; Indecent act; Wrongful sexual contact

(1)(c) Rape by using threats or placing in fear.

A r t i c l e 1 2 0 — A g g r a v a t e d s e x u a l a s s a u l t b y u s i n g

threats or placing in fear; Abusive sexual contact by

u s i n g t h r e a t s o r p l a c i n g i n f e a r ; I n d e c e n t a c t ;

Wrongful sexual contact

( 1 ) ( d ) R a p e b y r e n d e r i n g a n o t h e r u n c o n s c i o u s .

Article 120—Aggravated sexual assault upon a person substantially incapacitated; Abusive sexual cont a c t u p o n a p e r s o n s u b s t a n t i a l l y i n c a p a c i t a t e d ;

Indecent act; Wrongful sexual contact

(1)(e) Rape by administration of drug, intoxicant,

or other similar substance. Article 120—Aggravated

sexual assault upon a person substantially incapacitated; Abusive sexual contact upon a person substantially incapacitated; Indecent act; Wrongful sexual

contact

IV-77

¶45.e.(1)(e)
(2)(a) - (f) Rape of a child who has not attained

12 years; Rape of a child who has attained the age

of 12 years but has not attained the age of 16 years.

Article 120—Aggravated sexual assault of a child;

Aggravated sexual abuse of a child; Abusive sexual

contact with a child; Indecent liberty with a child;

Wrongful sexual contact

( 3 ) A g g r a v a t e d s e x u a l a s s a u l t . A r t i c l e 1 2 0 —

Wrongful sexual contact; Indecent act

(4) Aggravated sexual assault of a child. Article

120—Aggravated sexual abuse of a child; Indecent

liberty with a child; Wrongful sexual contact

(5)(a) Aggravated sexual contact by force. Article

120—Indecent act; Wrongful sexual contact

( 5 ) ( b ) A g g r a v a t e d s e x u a l c o n t a c t b y c a u s i n g

grievous bodily harm. Article 120—Abusive sexual

c o n t a c t b y c a u s i n g b o d i l y h a r m ; I n d e c e n t a c t ;

Wrongful sexual contact

(5)(c) Aggravated sexual contact by using threats

or placing in fear. Article 120—Abusive sexual contact by using threats or placing in fear; Indecent act;

Wrongful sexual contact

( 5 ) ( d ) A g g r a v a t e d s e x u a l c o n t a c t b y r e n d e r i n g

another unconscious. Article 120—Abusive sexual

contact upon a person substantially incapacitated;

Indecent act; Wrongful sexual contact

(5)(e) Aggravated sexual contact by administration of drug, intoxicant, or other similar substance.

Article 120—Abusive sexual contact upon a person

substantially incapacitated; Indecent act; Wrongful

sexual contact

(6) Aggravated sexual abuse of a child. Article

120—Aggravated sexual contact with a child; Aggravated sexual abuse of a child; Indecent liberty

with a child; Wrongful sexual contact

(7) Aggravated sexual contact with a child. Article 120—Abusive sexual contact with a child; Indecent liberty with a child; Wrongful sexual contact

(8) Abusive sexual contact. Article 120—Wrongful sexual contact; Indecent act

(9) Abusive sexual contact with a child. Article

120—Indecent liberty with a child; Wrongful sexual

contact

(10) Indecent liberty with a child. Article 120—

Wrongful sexual contact

f. Maximum punishment.

(1) Rape and rape of a child. Death or such other

punishment as a court martial may direct.

(2) Aggravated sexual assault. Dishonorable discharge, forfeiture of all pay and allowances, and

confinement for 30 years.

(3) Aggravated sexual assault of a child who has

attained the age of 12 years but has not attained the

age of 16 years, aggravated sexual abuse of a child,

aggravated sexual contact, and aggravated sexual

contact with a child. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for

20 years.

(4) Abusive sexual contact with a child and indecent liberty with a child. Dishonorable discharge,

forfeiture of all pay and allowances, and confinement for 15 years.

( 5 ) A b u s i v e s e x u a l c o n t a c t . D i s h o n o r a b l e d i s -

charge, forfeiture of all pay and allowances, and

confinement for 7 years.

(6) Indecent act or forcible pandering. Dishonorable discharge, forfeiture of all pay and allowances,

and confinement for 5 years.

(7) Wrongful sexual contact or indecent exposure.

Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 1 year.

g. Sample specifications.

(1) Rape.

(a) Rape by using force.

( i ) R a p e b y u s e o r d i s p l a y o f d a n g e r o u s

weapon or object. In that (personal jurisdiction data), did (at/on board-location) (subjectm a t t e r j u r i s d i c t i o n d a t a , i f r e q u i r e d ) , o n o r

about 20 , cause to engage in a sexual act, to wit: , by (using

a d a n g e r o u s w e a p o n o r o b j e c t , t o

w i t : a g a i n s t ( h i m ) ( h e r ) ) ( d i s p l a y i n g a

dangerous weapon or object, to wit: to

(him)(her)).

(ii) Rape by suggestion of possession of dang e r o u s w e a p o n o r o b j e c t . I n t h a t ( -

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

(subject-matter jurisdiction data, if required), on or

about 20 , cause to engage in a sexual act, to wit: , by the

suggestion of possession of a dangerous weapon or

an object that was used in a manner to cause (him-

) ( h e r ) t o b e l i e v e i t w a s a d a n g e r o u s w e a p o n o r

object.

( i i i ) R a p e b y u s i n g p h y s i c a l v i o l e n c e ,

strength, power, or restraint to any person. In that-

(personal jurisdiction data), did (at/on

IV-78

¶45.e.(2)(a) - (f)
board-location) (subject-matter jurisdiction data, if

r e q u i r e d ) , o n o r a b o u t 2 0 ,

c a u s e t o e n g a g e i n a s e x u a l a c t , t o

w i t : , b y u s i n g ( p h y s i c a l v i o l e n c e )

(strength) (power) (restraint applied to ),

sufficient that (he)(she) could not avoid or escape

the sexual conduct.

(b) Rape by causing grievous bodily harm. In

t h a t ( p e r s o n a l j u r i s d i c t i o n d a t a ) , d i d

(at/on board-location) (subject-matter jurisdiction data, if required), on or about 20 ,

c a u s e t o e n g a g e i n a s e x u a l a c t , t o

wit: , by causing grievous bodily harm

upon (him)(her)( ), to wit: a (broken leg-

)(deep cut)(fractured skull)( ).

(c) Rape by using threats or placing in fear. In

t h a t ( p e r s o n a l j u r i s d i c t i o n d a t a ) , d i d

(at/on board-location) (subject-matter jurisdiction data, if required), on or about 20 ,

c a u s e t o e n g a g e i n a s e x u a l a c t , t o

w i t : , b y [ t h r e a t e n i n g ] [ p l a c i n g ( h i m -

)(her) in fear] that (he)(she) ( ) will be

subjected to (death)(grievous bodily harm) (kidnapping) by .

(d) Rape by rendering another unconscious. In

t h a t ( p e r s o n a l j u r i s d i c t i o n d a t a ) , d i d

(at/on board-location) (subject-matter jurisdiction data, if required), on or about 20 ,

c a u s e t o e n g a g e i n a s e x u a l a c t , t o

w i t : , b y r e n d e r i n g ( h i m ) ( h e r )

unconscious.

(e) Rape by administration of drug, intoxicant,

or other similar substance. In that (personal

jurisdiction data), did (at/on board-location) (subjectm a t t e r j u r i s d i c t i o n d a t a , i f r e q u i r e d ) , o n o r

about 20 , cause to engage in a sexual act, to wit: , by administering to (him)(her) a drug, intoxicant, or other

similar substance, (by force) (by threat of force)

(without (his)(her) knowledge or permission), and

thereby substantially impaired (his)(her) ability to

[(appraise) (control)][(his) (her)] conduct.

(2) Rape of a child.

(a) Rape of a child who has not attained the

age of 12 years. In that (personal jurisd i c t i o n d a t a ) , d i d ( a t / o n b o a r d - l o c a t i o n ) ( s u b j e c t -

m a t t e r j u r i s d i c t i o n d a t a , i f r e q u i r e d ) , o n o r

about 20 , engage in a sexual act,

to wit: with , a child who

had not attained the age of 12 years.

(b) Rape of a child who has attained the age of

12 years but has not attained the age of 16 years by

using force.

(i) Rape of a child who has attained the age

of 12 years but has not attained the age of 16 years

by use or display of dangerous weapon or object. In

t h a t ( p e r s o n a l j u r i s d i c t i o n d a t a ) , d i d ( a t / o n

board-location) (subject-matter jurisdiction data, if

required), on or about 20 , engage in a

sexual act, to wit: , with , a child who had

attained the age of 12 years, but had not attained the

age of 16 years, by (using a dangerous weapon or

object, to wit: against (him)(her)) (displaying a

d a n g e r o u s w e a p o n o r o b j e c t , t o w i t : t o

(him)(her)).

(ii) Rape of a child who has attained the age

of 12 years but has not attained the age of 16 years

by suggestion of possession of dangerous weapon or

o b j e c t . I n t h a t ( p e r s o n a l j u r i s d i c t i o n d a t a ) ,

did (at/on board-location) (subject-matter jurisdiction

data, if required), on or about 20 , engage in a sexual act, to wit: , with , a

child who had attained the age of 12 years, but had

not attained the age of 16 years, by the suggestion of

possession of a dangerous weapon or an object that

was used in a manner to cause (him)(her) to believe

it was a dangerous weapon or object.

(iii) Rape of a child who has attained the

age of 12 years but has not attained the age of 16

years by using physical violence, strength, power, or

restraint to any person. In that (personal jurisdiction data), did (at/on board-location) (subjectm a t t e r j u r i s d i c t i o n d a t a , i f r e q u i r e d ) , o n o r

about 20 , engage in a sexual act, to

wit: with , a child who had attained the

age of 12 years, but had not attained the age of 16

y e a r s , b y u s i n g ( p h y s i c a l v i o l e n c e ) ( s t r e n g t h )

(power) (restraint applied to ) sufficient that

( h e ) ( s h e ) c o u l d n o t a v o i d o r e s c a p e t h e s e x u a l

conduct.

(c) Rape of a child who has attained the age of

12 years but has not attained the age of 16 years by

causing grievous bodily harm. In that (personal jurisdiction data), did (at/on board-location)

(subject-matter jurisdiction data, if required), on or

about 20 , engage in a sexual act, to

wit: , with , a child who had attained

the age of 12 years, but had not attained the age of

IV-79

¶45.g.(2)(c)
16 years, by causing grievous bodily harm upon

( h i m ) ( h e r ) ( ) , t o w i t : a ( b r o k e n l e g ) ( d e e p

cut)(fractured skull)( ).

(d) Rape of a child who has attained the age of

12 years but has not attained the age of 16 years by

using threats or placing in fear. In that (personal jurisdiction data), did (at/on board-location)

(subject-matter jurisdiction data, if required), on or

about 20 , engage in a sexual act, to

wit: , with , a child who had attained

the age of 12 years, but had not attained the age of

1 6 y e a r s , b y [ t h r e a t e n i n g ] [ p l a c i n g ( h i m ) ( h e r ) i n

fear] that (he)(she) ( ) would be subjected to

( d e a t h ) ( g r i e v o u s b o d i l y h a r m ) ( k i d n a p p i n g )

by .

(e) Rape of a child who has attained the age of

12 years but has not attained the age of 16 years by

rendering that child unconscious. In that (personal jurisdiction data), did (at/on board-location)

(subject-matter jurisdiction data, if required), on or

about 20 , engage in a sexual act, to

wit: , with , a child who had attained

the age of 12 years, but had not attained the age of

16 years, by rendering (him)(her) unconscious.

(f) Rape of a child who has attained the age of

12 years but has not attained the age of 16 years by

administration of drug, intoxicant, or other similar

substance. In that (personal jurisdiction data), did (at/on board-location) (subject-matter jurisd i c t i o n d a t a , i f r e q u i r e d ) , o n o r

about 20 , engage in a sexual act, to

wit: ,with , a child who had attained the

age of 12 years, but had not attained the age of 16

years, by administering to (him)(her) a drug, intoxicant, or other similar substance (by force) (by threat

of force) (without (his)(her) knowledge or permission), and thereby substantially impaired (his)(her)

ability to [(appraise)(control)][(his)(her)] conduct.

(3) Aggravated sexual assault.

(a) Aggravated sexual assault by using threats

or placing in fear. In that (personal jurisdiction data), did (at/on board-location) (subject-matter

j u r i s d i c t i o n d a t a , i f r e q u i r e d ) , o n o r

about 20 , cause to engage in a

s e x u a l a c t , t o w i t : , b y [ t h r e a t e n i n g ]

[ p l a c i n g ( h i m ) ( h e r ) i n f e a r o f ] [ ( p h y s i c a l i n j u r y

to ) (injury to ’s property)(accusation of

c r i m e ) ( e x p o s i t i o n o f s e c r e t ) ( a b u s e o f m i l i t a r y

position)( )].

(b) Aggravated sexual assault by causing bodily harm. In that (personal jurisdiction data),

did (at/on board-location) (subject-matter jurisdiction

d a t a , i f r e q u i r e d ) , o n o r a b o u t 2 0 ,

cause to engage in a sexual act, to wit: ,

by causing bodily harm upon (him)(her)( ), to

wit: .

(c) Aggravated sexual assault upon a person

substantially incapacitated or substantially incapable of appraising the act, declining participation, or

c o m m u n i c a t i n g u n w i l l i n g n e s s . I n t h a t ( p -

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

(subject-matter jurisdiction data, if required), on or

about 20 , engage in a sexual act, to

wit: with , who was (substantially incapacitated) [substantially incapable of (appraising

the nature of the sexual act)(declining participation

in the sexual act) (communicating unwillingness to

engage in the sexual act)].

(4) Aggravated sexual assault of a child who has

attained the age of 12 years but has not attained the

age of 16 years. In that (personal jurisdiction

data), did (at/on board-location) (subject-matter jur i s d i c t i o n d a t a , i f r e q u i r e d ) , o n o r

about 20 , engage in a sexual act, to

wit: with , who had attained the age

of 12 years, but had not attained the age of 16 years.

(5) Aggravated sexual contact.

(a) Aggravated sexual contact by using force.

(i) Aggravated sexual contact by use or disp l a y o f d a n g e r o u s w e a p o n o r o b j e c t . I n t h a t -

(personal jurisdiction data), did (at/on boardl o c a t i o n ) ( s u b j e c t - m a t t e r j u r i s d i c t i o n d a t a , i f r e -

q u i r e d ) , o n o r a b o u t 2 0 , [ ( e n g a g e i n

sexual contact, to wit: with ) (cause

t o e n g a g e i n s e x u a l c o n t a c t , t o w i t : ,

with ) (cause sexual contact with or by ,

to wit: )] by (using a dangerous weapon or

object, to wit: against (him)(her)) (displaying

a d a n g e r o u s w e a p o n o r o b j e c t , t o w i t : t o

(him)(her)).

(ii) Aggravated sexual contact by suggestion

of possession of dangerous weapon or object. In

t h a t ( p e r s o n a l j u r i s d i c t i o n d a t a ) , d i d ( a t / o n

board-location) (subject-matter jurisdiction data, if

required), on or about 20 , [(engage in

s e x u a l c o n t a c t , t o w i t : w i t h -

)(cause to engage in sexual contact, to

wit: , with ) (cause sexual contact with

or by , to wit: )] by the suggestion of

IV-80

¶45.g.(2)(c)
possession of a dangerous weapon or an object that

was used in a manner to cause (him)(her)( ) to

believe it was a dangerous weapon or object.

( i i i ) A g g r a v a t e d s e x u a l c o n t a c t b y u s i n g

physical violence, strength, power, or restraint to

any person. In that (personal jurisdiction data), did (at/on board-location) (subject-matter jurisd i c t i o n d a t a , i f r e q u i r e d ) , o n o r

about 20 , [(engage in sexual contact, to

w i t : w i t h ) ( c a u s e t o e n g a g e i n

s e x u a l c o n t a c t , t o w i t : , w i t h ) ( c a u s e

sexual contact with or by , to wit: )]

by using (physical violence) (strength) (power) (res t r a i n t a p p l i e d t o ) , s u f f i c i e n t t h a t

(he)(she)( ) could not avoid or escape the sexual conduct.

( b ) A g g r a v a t e d s e x u a l c o n t a c t b y c a u s i n g

grievous bodily harm. In that (personal jurisd i c t i o n d a t a ) , d i d ( a t / o n b o a r d - l o c a t i o n ) ( s u b j e c t -

m a t t e r j u r i s d i c t i o n d a t a , i f r e q u i r e d ) , o n o r

about 20 , [(engage in sexual contact, to

wit: with )(cause to engage in sexual contact, to wit: , with ) (cause sexual

contact with or by , to wit: )] by causing

g r i e v o u s b o d i l y h a r m u p o n ( h i m ) ( h e r ) ( ) , t o

wit: a (broken leg)(deep cut)(fractured skull)( ).

(c) Aggravated sexual contact by using threats

or placing in fear. In that (personal jurisdiction data), did (at/on board-location) (subject-matter

j u r i s d i c t i o n d a t a , i f r e q u i r e d ) , o n o r

about 20 , [(engage in sexual contact, to

w i t : w i t h ) ( c a u s e t o e n g a g e i n

sexual contact, to wit: , with ) (cause

sexual contact with or by , to wit: )] by

[(threatening (him)(her)( )] [(placing(him)(her)

( ) in fear] that (he)(she)( ) will be subjected to (death)(grievous bodily harm)(kidnapping)

by .

(d) Aggravated sexual contact by rendering another unconscious. In that (personal jurisdiction data), did (at/on board-location) (subject-matter

j u r i s d i c t i o n d a t a , i f r e q u i r e d ) , o n o r

about 20 , [(engage in sexual contact, to

w i t : w i t h ) ( c a u s e t o e n g a g e i n

sexual contact, to wit: , with ) (cause

sexual contact with or by , to wit: )] by

rendering (him)(her)( ) unconscious.

(e) Aggravated sexual contact by administration of drug, intoxicant, or other similar substance.

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

board-location) (subject-matter jurisdiction data, if

required), on or about 20 , [(engage in

s e x u a l c o n t a c t , t o w i t : w i t h -

)(cause to engage in sexual contact, to

wit: , with ) (cause sexual contact with

or by , to wit: )] by administering to

(him)(her)( ) a drug, intoxicant, or other similar

substance, (by force) (by threat of force) (without

( h i s ) ( h e r ) ( ) k n o w l e d g e o r p e r m i s s i o n ) , a n d

thereby substantially impaired (his)(her)( ) ability to [(appraise) (control)] [(his) (her)] conduct.

( 6 ) A g g r a v a t e d s e x u a l a b u s e o f a c h i l d . I n

t h a t ( p e r s o n a l j u r i s d i c t i o n d a t a ) , d i d ( a t / o n

board-location) (subject-matter jurisdiction data, if

required), on or about 20 , engage in a

lewd act, to wit: with , a child who had

not attained the age of 16 years.

(7) Aggravated sexual contact with a child.

(a) Aggravated sexual contact with a child who

has not attained the —age of 12 years. In that

(personal jurisdiction data), did (at/on board-location) (subject-matter jurisdiction data, if required),

on or about 20 , [(engage in sexual contact, to wit: with , a child who had not

attained the age of 12 years)(cause to engage

in sexual contact, to wit: , with , a child

who had not attained the age of 12 years) (cause

sexual contact with or by , a child who had

not attained the age of 12 years, to wit: )].

(b) Aggravated sexual contact with a child who

has attained the age of 12 years but has not attained

the age of 16 years by using force.

(i) Aggravated sexual contact with a child

who has attained the age of 12 years but has not

attained the age of 16 years by use or display of

dangerous weapon or object. In that (personal

jurisdiction data), did (at/on board-location) (subjectm a t t e r j u r i s d i c t i o n d a t a , i f r e q u i r e d ) , o n o r

about 20 , [(engage in sexual contact, to

wit: with , a child who had attained

the age of 12 years, but had not attained the age of

16 years)(cause to engage in sexual contact,

to wit: , with , a child who had attained

the age of 12 years, but had not attained the age of

16 years) (cause sexual contact with or by , a

child who had attained the age of 12 years, but had

not attained the age of 16 years, to wit: )] by

( u s i n g a d a n g e r o u s w e a p o n o r o b j e c t , t o

IV-81

¶45.g.(7)(b)(i)
wit: against (him)(her)( )) (displaying a

d a n g e r o u s w e a p o n o r o b j e c t , t o w i t : t o

(him)(her)( )).

(ii) Aggravated sexual contact with a child

who has attained the age of 12 years but has not

attained the age of 16 years by suggestion of possession of dangerous weapon or object. In that

(personal jurisdiction data), did (at/on board-location) (subject-matter jurisdiction data, if required),

on or about 20 , [(engage in sexual contact, to wit: with , a child who had attained the age of 12 years, but had not attained the

age of 16 years)(cause to engage in sexual

contact, to wit: , with , a child who had

attained the age of 12 years, but had not attained the

a g e o f 1 6 y e a r s ) ( c a u s e s e x u a l c o n t a c t w i t h o r

by , a child who had attained the age of 12

years, but had not attained the age of 16 years, to

wit: )] by the suggestion of possession of a

dangerous weapon or an object that was used in a

manner to cause (him)(her)( ) to believe it was

a dangerous weapon or object.

(iii) Aggravated sexual contact with a child

who has attained the age of 12 years but has not

attained the age of 16 years by using physical violence, strength, power, or restraint to any person. In

t h a t ( p e r s o n a l j u r i s d i c t i o n d a t a ) , d i d ( a t / o n

board-location) (subject-matter jurisdiction data, if

required), on or about 20 , [(engage in

sexual contact, to wit: with , a child

who had attained the age of 12 years, but had not

attained the age of 16 years)(cause to engage

in sexual contact, to wit: , with , a child

who had attained the age of 12 years, but had not

attained the age of 16 years) (cause sexual contact

with or by , a child who had not attained the

age of 12 years, but had not attained the age of 16

years, to wit: )] by using (physical violence)

(strength) (power) (restraint applied to ) sufficient that (he)(she)( ) could not avoid or escape

the sexual conduct.

(c) Aggravated sexual contact with a child who

has attained the age of 12 years but has not attained

t h e a g e o f 1 6 y e a r s b y c a u s i n g g r i e v o u s b o d i l y

harm. In that (personal jurisdiction data), did

(at/on board-location) (subject-matter jurisdiction dat a , i f r e q u i r e d ) , o n o r a b o u t 2 0 ,

[ ( e n g a g e i n s e x u a l c o n t a c t , t o w i t -

: with , a child who had attained the

age of 12 years, but had not attained the age of 16

years)(cause to engage in sexual contact, to

wit: , with , a child who had attained

the age of 12 years, but had not attained the age of

16 years) (cause sexual contact with or by , a

child who had attained the age of 12 years, but had

not attained the age of 16 years, to wit: )] by

c a u s i n g g r i e v o u s b o d i l y h a r m u p o n ( h i m -

)(her)( ), to wit: a (broken leg)(deep cut)(fractured skull)( ).

(d) Aggravated sexual contact with a child who

has attained the age of 12 years but has not attained

the age of 16 years by using threats or placing in

fear. In that (personal jurisdiction data), did

(at/on board-location) (subject-matter jurisdiction data, if required), on or about 20 , [(engage

in sexual contact, to wit: with , a child

who had attained the age of 12 years, but had not

attained the age of 16 years)(cause to engage

in sexual contact, to wit: , with , a child

who had attained the age of 12 years, but had not

attained the age of 16 years) (cause sexual contact

with or by , a child who had attained the age of

12 years, but had not attained the age of 16 years, to

w i t : ) ] b y [ t h r e a t e n i n g ] [ p l a c i n g ( h i m -

)(her)( ) in fear] that (he)(she)( ) will be

s u b j e c t e d t o ( d e a t h ) ( g r i e v o u s b o d i l y h a r m ) ( k i d n -

apping) by .

(e) Aggravated sexual contact with a child who

has attained the age of 12 years but has not attained

the age of 16 years by rendering that child or another unconscious. In that (personal jurisdiction data), did (at/on board-location) (subject-matter

j u r i s d i c t i o n d a t a , i f r e q u i r e d ) , o n o r

about 20 , [(engage in sexual contact, to

wit: with , a child who had attained

the age of 12 years, but had not attained the age of

16 years)(cause to engage in sexual contact,

to wit: , with , a child who had attained

the age of 12 years, but had not attained the age of

16 years) (cause sexual contact with or by , a

child who had attained the age of 12 years, but had

not attained the age of 16 years, to wit: )] by

rendering (him)(her)( ) unconscious.

(f) Aggravated sexual contact with a child who

has attained the age of 12 years but has not attained

the age of 16 years by administration of drug, intoxicant, or other similar substance. In that (personal jurisdiction data), did (at/on board-location)

(subject-matter jurisdiction data, if required), on or

about 20 , [(engage in sexual contact, to

IV-82

¶45.g.(7)(b)(i)
wit: with , a child who had attained

the age of 12 years but had not attained the age of

16 years)(cause to engage in sexual contact, to

wit: , with , a child who had attained

the age of 12 years but had not attained the age of

16 years) (cause sexual contact with or by , a

child who had attained the age of 12 years but had

not attained the age of 16 years, to wit: )] by

administering to (him)(her)( ) a drug, intoxicant, or other similar substance (by force) (by threat

of force) (without (his)(her)( ) knowledge or

p e r m i s s i o n ) , a n d t h e r e b y s u b s t a n t i a l l y i m p a i r e d

( h i s ) ( h e r ) ( ) a b i l i t y t o [ ( a p p r a i s e ) ( c o n t r o l ) ]

[(his) (her)] conduct.

(8) Abusive sexual contact.

(a) Abusive sexual contact by using threats or

placing in fear. In that (personal jurisdiction

data), did (at/on board-location) (subject-matter jur i s d i c t i o n d a t a , i f r e q u i r e d ) , o n o r

about 20 , [(engage in sexual contact, to

wit: with ) (cause to engage in

sexual contact, to wit: , with ) (cause

sexual contact with or by , to wit: )] by

[(threatening) (placing (him)(her)( ) in fear of)]

[ ( p h y s i c a l i n j u r y t o ) ( i n j u r y t o ’ s

p r o p e r t y ) ( a c c u s a t i o n o f c r i m e ) ( e x p o s i t i o n o f

secret)(abuse of military position)( )].

(b) Abusive sexual contact by causing bodily

harm. In that (personal jurisdiction data), did

(at/on board-location) (subject-matter jurisdiction dat a , i f r e q u i r e d ) , o n o r a b o u t 2 0 ,

[(engage in sexual contact, to wit: with )

( c a u s e t o e n g a g e i n s e x u a l c o n t a c t , t o

wit: , with ) (cause sexual contact with or

by , to wit: )] by causing bodily harm

upon (him)(her)( ), to wit: ( ).

(c) Abusive sexual contact by engaging in a

sexual act with a person substantially incapacitated

or substantially incapable of appraising the act, declining participation, or substantially incapable of

c o m m u n i c a t i n g u n w i l l i n g n e s s . I n t h a t ( -

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

(subject-matter jurisdiction data, if required), on or

about 20 , [(engage in sexual contact, to

wit: with ) (cause to engage in

sexual contact, to wit: , with ) (cause

sexual contact with or by , to wit: )]

while (he)(she)( ) was [substantially incapacitated] [substantially incapable of (appraising the nature of the sexual contact) (declining participation in

the sexual contact) (communicating unwillingness to

engage in the sexual contact)].

(9) Abusive sexual contact with a child. In that-

( p e r s o n a l j u r i s d i c t i o n d a t a ) , d i d ( a t / o n

board-location) (subject-matter jurisdiction data, if

required), on or about 20 , [(engage in

sexual contact, to wit: with , a child

who had attained the age of 12 years but had not

attained the age of 16 years)(cause to engage

in sexual contact, to wit: , with , a child

who had attained the age of 12 years but had not

attained the age of 16 years) (cause sexual contact

with or by , a child who had attained the age

of 12 years but had not attained the age of 16 years,

to wit: )].

( 1 0 ) I n d e c e n t l i b e r t i e s w i t h a c h i l d . I n t h a t -

( p e r s o n a l j u r i s d i c t i o n d a t a ) , d i d , ( a t / o n

board-location) (subject-matter jurisdiction data, if

r e q u i r e d ) , o n o r a b o u t 2 0 , ( t a k e i n d e -

cent liberties) (engage in indecent conduct) in the

physical presence of , a (female) (male) under

16 years of age, by (communicating the words: to

w i t : ) ( e x p o s i n g o n e ’ s p r i v a t e p a r t s , t o

wit: ) ( ), with the intent to [(arouse) (appeal to) (gratify) the (sexual desire) of the

(or )] [(abuse)(humiliate)(degrade) ].

(11) Indecent act. In that (personal jurisd i c t i o n d a t a ) , d i d ( a t / o n b o a r d - l o c a t i o n ) ( s u b j e c t -

m a t t e r j u r i s d i c t i o n d a t a , i f r e q u i r e d ) , o n o r

a b o u t 2 0 , w r o n g f u l l y c o m m i t i n d e c e n t

conduct, to wit .

(12) Forcible pandering. In that (personal

jurisdiction data), did (at/on board-location), (subj e c t - m a t t e r j u r i s d i c t i o n d a t a , i f r e q u i r e d ) , o n o r

about 20 , compel to engage in

[ ( a s e x u a l a c t ) ( s e x u a l c o n t a c t ) ( l e w d a c t ) , t o

wit: ] for the purpose of receiving money or

other compensation with (a) person(s) to be

directed to (him)(her) by the said .

( 1 3 ) W r o n g f u l s e x u a l c o n t a c t . I n t h a t ( p -

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

(subject-matter jurisdiction data, if required), on or

a b o u t 2 0 , e n g a g e i n s e x u a l c o n t a c t

with , to wit: , and such sexual contact

was without legal justification or lawful authorization and without the permission of .

( 1 4 ) I n d e c e n t e x p o s u r e . I n t h a t ( p e r s o n a l

jurisdiction data), did (at/on board-location), (subj e c t - m a t t e r j u r i s d i c t i o n d a t a , i f r e q u i r e d ) , o n o r

a b o u t 2 0 , i n t e n t i o n a l l y ( e x p o s e i n a n

IV-83

¶45.g.(14)
indecent manner (his) (her) ( ) ( ) while

( a t t h e b a r r a c k s w i n d o w ) ( i n a p u b l i c p l a c e )

( ).”

45a. Article 120a—Stalking

a. Text of statute.

(a) Any person subject to this section: 

(1) who wrongfully engages in a course of

conduct directed at a specific person that would

cause a reasonable person to fear death or bodily

harm, including sexual assault, to himself or herself or a member of his or her immediate family;

( 2 ) w h o h a s k n o w l e d g e , o r s h o u l d h a v e

knowledge, that the specific person will be placed

in reasonable fear of death or bodily harm, including sexual assault, to himself or herself or a

member of his or her immediate family; and 

(3) whose acts induce reasonable fear in the

specific person of death or bodily harm, including

sexual assault, to himself or herself or to a member of his or her immediate family; is guilty of

stalking and shall be punished as a court-martial

may direct.

(b) In this section:

(1) The term “course of conduct” means:

(A) a repeated maintenance of visual or

physical proximity to a specific person; or 

( B ) a r e p e a t e d c o n v e y a n c e o f v e r b a l

threat, written threats, or threats implied by conduct, or a combination of such threats, directed

at or towards a specific person.

(2) The term “repeated,” with respect to

conduct, means two or more occasions of such

conduct.

(3) The term “immediate family,” in the

case of a specific person, means a spouse, parent,

child, or sibling of the person, or any other family member, relative, or intimate partner of the

person who regularly resides in the household of

the person or who within the six months preceding the commencement of the course of conduct

regularly resided in the household of the person.

b. Elements.

( 1 ) T h a t t h e a c c u s e d w r o n g f u l l y e n g a g e d i n a

course of conduct directed at a specific person that

would cause a reasonable person to fear death or

bodily harm to himself or herself or a member of his

or her immediate family;

(2) That the accused had knowledge, or should

have had knowledge, that the specific person would

be placed in reasonable fear of death or bodily harm

to himself or herself or a member of his or her

immediate family; and

(3) That the accused’s acts induced reasonable

fear in the specific person of death or bodily harm to

himself or herself or to a member of his or her

immediate family.

c. Explanation. See Paragraph 54.c(1)(a) for an explanation of “bodily harm”.

d. Lesser included offenses. Article 80 — attempts.

e . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e ,

forfeiture of all pay and allowances, and confinement for 3 years.

f. Sample Specification.

In that (personal jurisdiction data), who

( k n e w ) ( s h o u l d h a v e k n o w n ) t h a t w o u l d b e

placed in reasonable fear of (death)(bodily harm) to

(himself) (herself) ( , a member of his or her

i m m e d i a t e f a m i l y ) d i d ( a t / o n b o a r d - - l o c a t i o n ) ,

(subject-matter jurisdiction data, if required), (on or

a b o u t 2 0 ) ( f r o m a b o u t t o

a b o u t 2 0 ) , w r o n g f u l l y e n g a g e i n a

c o u r s e o f c o n d u c t d i r e c t e d a t , t o

wit: thereby inducing in , a

r e a s o n a b l e f e a r o f ( d e a t h ) ( b o d i l y h a r m ) t o ( h i m -

self)(herself) ( , a member of his or her immediate family).”

46. Article 121—Larceny and wrongful

appropriation

a. Text of statute.

( a ) A n y p e r s o n s u b j e c t t o t h i s c h a p t e r w h o

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 ) A n y p e r s o n f o u n d g u i l t y o f l a r c e n y o r

IV-84

¶45.g.(14)
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 ) T h a t t h e p r o p e r t y b e l o n g e d t o a c e r t a i n

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.

[Note: If the property is alleged to be military property, as defined in paragraph 32c(1), add the following element]

(e) That the property was military property.

(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 ) T h a t t h e p r o p e r t y b e l o n g e d t o a c e r t a i n

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

p e r m a n e n t l y t o d e f r a u d i n c l u d e s t h e o f f e n s e

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 121 may be charged and proved under

a specification alleging that the accused “did steal”

the property in question.

( b ) T a k i n g , o b t a i n i n g , o r w i t h h o l d i n g . T h e r e

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(1)(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.

IV-85

¶46.c.(1)(c)(i)
( i i ) O w n e r . “ O w n e r ” r e f e r s t o t h e p e r s o n

who, at the time of the taking, obtaining, or withholding, had the superior right to possession of the

p r o p e r t y i n t h e l i g h t o f a l l c o n f l i c t i n g i n t e r e s t s

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 referring to

one from whose possession property has been taken,

obtained, or withheld, and to any 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 principal, 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 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

o b t a i n i n g . A f a l s e r e p r e s e n t a t i o n m a d e a f t e r t h e

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

t h e p r o p e r t y . T h u s , a p e r s o n w h o g e t s a n o t h e r ’ 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 ) I n g e n e r a l . T h e o f f e n s e o f l a r c e n y r e -

quires 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.

IV-86

¶46.c.(1)(c)(ii)
( i i ) I n f e r e n c e o f i n t e n t . A n i n t e n t t o s t e a l

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(1)(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

b e g u i l t y o f w r o n g f u l a p p r o p r i a t i o n , n o t l a r c e n y .

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

o w n e r , l a r c e n y o r w r o n g f u l a p p r o p r i a t i o n i s n o t

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 ) R e t u r n o f p r o p e r t y n o t a d e f e n s e .

Once a larceny is committed, a return of the prope r t y o r p a y m e n t f o r i t i s n o d e f e n s e . S e e s u b -

paragraph 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 determined 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 official 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

v a l u e o f o t h e r s t o l e n p r o p e r t y i s i t s l e g i t i m a t e

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 evid e n c e f r o m a n y p e r s o n w h o i s f a m i l i a r t h r o u g h

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 of 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 courtmartial, 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 $500.00, the court-martial may

f i n d a v a l u e o f m o r e t h a n $ 5 0 0 . 0 0 . W r i t i n g s

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

IV-87

¶46.c.(1)(h)(i)
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

l a r c e n y , w h i c h s h o u l d b e a l l e g e d i n b u t o n e

specification.

( i i i ) S p e c i a l k i n d s o f p r o p e r t y w h i c h m a y

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.

(vi) Credit, Debit, and Electronic Transact i o n s . W r o n g f u l l y e n g a g i n g i n a c r e d i t , d e b i t , o r

electronic transaction to obtain goods or money is an

obtaining-type larceny by false pretense. Such use to

obtain goods is usually a larceny of those goods

from the merchant offering them. Such use to obtain

money or a negotiable instrument (e.g., withdrawing

cash from an automated teller or a cash advance

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

entity presenting the money or a negotiable instrum e n t . F o r t h e p u r p o s e o f t h i s s e c t i o n , t h e t e r m

æcredit, debit, or electronic transactionÆ includes

the use of an instrument or device, whether known

as a credit card, debit card, automated teller machine

(ATM) card or by any other name, including access

devices such as code, account number, electronic

serial number or personal identification number, issued for the use in obtaining money, goods, or anything else of value.

(2) Wrongful appropriation.

(a) In general. Wrongful appropriation requires

a n i n t e n t t o t e m p o r a r i l y — a s o p p o s e d t o p e r -

manently—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

r e s p e c t s w r o n g f u l a p p r o p r i a t i o n a n d l a r c e n y a r e

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 miss i o n t o d e l i v e r s u p p l i e s , w i t h h o l d i n g t h e v e h i c l e

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 ret u r n a b o r r o w e d b o a t a t t h e t i m e a g r e e d u p o n

because the boat inadvertently went aground is not

guilty of this offense.

d. Lesser included offenses.

(1) Larceny.

(a) Article 121—wrongful appropriation

(b) Article 80—attempts

(2) Larceny of military property.

(a) Article 121—wrongful appropriation

(b) Article 121—larceny of property other than

military property

(c) Article 80—attempts

(3) Wrongful appropriation. Article 80—attempts

e. Maximum punishment.

(1) Larceny.

(a) Military property of a value of $500 or less.

Bad-conduct discharge, forfeiture of all pay and allowances, and confinement for 1 year.

(b) Property other than military property of a

value of $500 or less. Bad-conduct discharge, forfeiture of all pay and allowances, and confinement for

6 months.

(c) Military property of a value of more than

$500 or of any military motor vehicle, aircraft, vessel, firearm, or explosive. Dishonorable discharge,

forfeiture of all pay and allowances, and confinement for 10 years.

(d) Property other than military property of a

value of more than $500 or any motor vehicle, aircraft, vessel, firearm, or explosive not included in

subparagraph e(1)(c). Dishonorable discharge, forfeiture of all pay and allowances, and confinement

for five years.

(2) Wrongful appropriation.

IV-88

¶46.c.(1)(h)(i)
(a) Of a value of $500.00 or less. Confinement

for 3 months, and forfeiture of two-thirds pay per

month for 3 months.

(b) Of a value of more than $500.00. 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 specifications.

(1) Larceny.

In that (personal jurisdiction data),

did, (at/on board—location) (subject-matter jurisdict i o n d a t a , i f r e q u i r e d ) , o n o r

a b o u t 2 0 , s t e a l ,

( m i l i t a r y p r o p e r t y ) , o f a v a l u e o f ( a b o u t )

$ , the property of .

(2) Wrongful appropriation.

In that (personal jurisdiction data),

did, (at/on board—location) (subject matter jurisdict i o n d a t a , i f r e q u i r e d ) , o n o r

a b o u t 2 0 , w r o n g f u l l y a p p r o p r i -

a t e , o f a v a l u e o f ( a b o u t )

$ , the property of .

47. Article 122—Robbery

a. Text of statute.

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.

( 1 ) T h a t t h e a c c u s e d w r o n g f u l l y t o o k c e r t a i n

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.

(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 torn 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

p e r s o n ’ s w a t c h , e v e n t h o u g h t h e p e r s o n h a d n o

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.

IV-89

¶47.c.(2)
(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 menace 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 suffic i e n t g r a v i t y t o w a r r a n t g i v i n g u p t h e p r o p e r t y

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(1).

(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 r t i c l e 1 2 8 — a s s a u l t w i t h a d a n g e r o u s

weapon

( 5 ) A r t i c l e 1 2 8 — a s s a u l t i n t e n t i o n a l l y i n f l i c t i n g

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 a firearm. Dishonorable

discharge, forfeiture of all pay and allowances, and

confinement for 15 years.

(2) Other cases. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for

10 years.

f. Sample specifications.

In that (personal jurisdiction data),

did, (at/on board—location) (subject-matter jurisdict i o n d a t a , i f r e q u i r e d ) , o n o r

a b o u t 2 0 , b y m e a n s o f ( f o r c e )

(violence) (force and violence) (and) (putting him/

her in fear) (with a firearm) steal from the (person)

(presence) of , against his/her will,

( a w a t c h ) ( ) o f v a l u e o f ( a b o u t )

$ , the property of .

48. Article 123—Forgery

a. Text of statute.

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.

(2) Forgery—uttering.

( a ) T h a t a c e r t a i n s i g n a t u r e o r w r i t i n g w a s

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 the intent to defraud.

c. Explanation.

IV-90

¶47.c.(3)
(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; and apparent capability of the writing as falsely made or altered to impose a legal

l i a b i l i t y o n a n o t h e r o r t o c h a n g e a n o t h e r ’ s l e g a l

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 the prejudice of another. If

under all the circumstances the instrument 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. If is immaterial that nobody was actually

defrauded, or that no further step was made toward

carrying 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 . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e ,

forfeiture of all pay and allowances, and confinement for 5 years.

f. Sample specifications.

IV-91

¶48.f.
(1) Forgery—making or altering.

In that (personal jurisdiction data),

did, (at/on board—location) (subject-matter jurisdict i o n d a t a , i f r e q u i r e d ) , o n o r

about 20 , with intent to defraud,

f a l s e l y [ m a k e ( i n i t s e n t i r e t y ) ( t h e s i g n a t u r e

of as an indorsement to) (the signature

of to)

( ) a c e r t a i n ( c h e c k ) ( w r i t i n g )

( ) in the following words and figures, to

wit: ] [alter a certain (check) (writing)

( ) in the following words and figures, to

w i t : , b y ( a d d i n g t h e r e t o )

( ) ] , w h i c h s a i d ( c h e c k ) ( w r i t i n g )

( ) w o u l d , i f g e n u i n e , a p p a r e n t l y

operate to the legal harm of another[*and which-

(could be) (was) used to the legal harm

of , in that ].

[*Note: This allegation should be used when the

document specified is not one which by its nature

w o u l d c l e a r l y o p e r a t e t o t h e l e g a l p r e j u d i c e o f

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.]

(2) Forgery—uttering.

In that (personal jurisdiction data),

did, (at/on board—location) (subject-matter jurisdict i o n d a t a , i f r e q u i r e d ) , o n o r

about 20 , with intent to defraud,

( u t t e r ) ( o f f e r ) ( i s s u e ) ( t r a n s f e r ) a c e r t a i n ( c h e c k )

(writing) ( ) in the following words and

figures, to wit: , a writing which would,

if genuine, apparently operate to the legal harm of

a n o t h e r , ( w h i c h s a i d ( c h e c k ) ( w r i t i n g )

( ) ) ( t h e s i g n a t u r e t o w h i c h s a i d

(check) (writing) ( ))

( ) was, as he/she, the said ,

t h e n w e l l k n e w , f a l s e l y ( m a d e ) ( a l t e r e d ) ( * a n d

w h i c h ( c o u l d b e ) ( w a s ) u s e d t o t h e

l e g a l h a r m o f , i n

that ). [*Note: See the note following

(1), above]

49. Article 123a—Making, drawing, or

uttering check, draft, or order without

sufficient funds

a. Text of statute.

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;

m a k e s , d r a w s , u t t e r s , o r d e l i v e r s a n y c h e c k ,

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 bec a u s e o f i n s u f f i c i e n t f u n d s o f t h e m a k e r o r

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 delivery 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;

IV-92

¶48.f.(1)
(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 ) U t t e r i n g o r d e l i v e r i n g . “ U t t e r i n g ” a n d

“ d e l i v e r i n g ” h a v e s i m i l a r m e a n i n g s . B o t h m e a n

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 obligation. 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) Sufficient 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.

IV-93

¶49.c.(12)
( 1 3 ) U p o n i t s p r e s e n t m e n t . “ U p o n i t s p r e s e n t -

ment” 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) Intent 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

a n i n t e n t t o m i s l e a d , c h e a t , o r t r i c k a n o t h e r b y

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

t h e b a n k o r o t h e r d e p o s i t o r y f o r p a y m e n t . W i t h

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

d u e . W i t h r e s p e c t t o ( b ) , i f i t c a n o t h e r w i s e b e

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

d a y s a f t e r r e c e i v i n g e i t h e r o r a l o r w r i t t e n n o t i c e

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

n o t i c e h a s b e e n g i v e n , p r e c l u d e s t h e p r o s e c u t i o n

from using the statutory rule of evidence but does

not preclude conviction of this offense if all the

elements are otherwise proved.

(18) Affirmative defense. Honest mistake is an affirmative defense to offenses under this article. See

R.C.M. 916(j).

d. Lesser included offenses.

( 1 ) A r t i c l e 1 3 4 — m a k i n g , d r a w i n g , u t t e r i n g o r

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 ) $ 5 0 0 . 0 0 o r l e s s . B a d - c o n d u c t d i s c h a r g e ,

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

( b ) M o r e t h a n $ 5 0 0 . 0 0 . D i s h o n o r a b l e d i s -

charge, 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.

Bad-conduct discharge, forfeiture of all pay and allowances, and confinement for 6 months.

f. Sample specifications.

(1) For the procurement of any article or thing of

value, with intent to defraud.

I n t h a t ( p e r s o n a l j u r i s d i c t i o n d a t a ) ,

did, (at/on board—location) (subject-matter jurisdict i o n d a t a , i f r e q u i r e d ) , o n o r

about 20 , 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) ( dep o s i t o r y ) i n w o r d s a n d f i g u r e s a s f o l l o w s , t o

w i t : , t h e n k n o w i n g t h a t ( h e / s h e )

IV-94

¶49.c.(13)
( ) , t h e ( m a k e r ) ( d r a w e r ) t h e r e o f ,

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.

I n t h a t ( p e r s o n a l j u r i s d i c t i o n d a t a ) ,

did, (at/on board—location) (subject-matter jurisdict i o n d a t a , i f r e q u i r e d ) , o n o r

about 20 , with intent to deceive

and for the payment of a past due obligation, to wit:

( f o r t h e p u r p o s e o f )

wrongfully and unlawfully ((make) (draw)) (utter)

( d e l i v e r ) t o , a c e r t a i n ( c h e c k ) ( d r a f t )

(money order) for the payment of money upon

( B a n k ) ( d e p o s i t o r y ) ,

in words and figures as follows, to wit: ,

t h e n k n o w i n g t h a t ( h e / s h e ) ( ) , t h e

(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 of statute.

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; 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.

b. Elements.

( 1 ) T h a t t h e a c c u s e d i n f l i c t e d a c e r t a i n i n j u r y

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 mutilate 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

e v i d e n c e m a y b e c o n s i d e r e d o n t h e q u e s t i o n o f

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 ) A r t i c l e 1 2 8 — a s s a u l t w i t h a d a n g e r o u s

weapon

( 3 ) A r t i c l e 1 2 8 — a s s a u l t i n t e n t i o n a l l y i n f l i c t i n g

grievous bodily harm

(4) Article 80—attempts

e . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e ,

forfeiture of all pay and allowances, and confinement for 20 years.

f. Sample specification.

In that (personal jurisdiction data), did,

(at/on board—location) (subject-matter jurisdiction

IV-95

¶50.f.
data, if required) on or about 20 ,

maim by (crushing his/her foot with a

sledge hammer) ( ).

51. Article 125—Sodomy

a. Text of statute.

(a) Any person subject to this chapter who eng a g e s i n u n n a t u r a l c a r n a l c o p u l a t i o n w i t h a n -

other 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 by

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 any of the following as applicable)

(2) That the act was done with a child under the

age of 12.

(3) That the act was done with a child who had

attained the age of 12 but was under the age of 16.

(4) 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 offenses.

(1) With a child under the age of 16.

(a) Article 125—forcible sodomy (and offenses

included therein; see subparagraph (2) below)

(b) Article 80—attempts

(2) Forcible sodomy.

( a ) A r t i c l e 1 2 5 — s o d o m y ( a n d o f f e n s e s i n -

cluded therein; see subparagraph (3) below)

(b) Article 134—assault with intent to commit

sodomy

(c) Article 80—attempts.

(3) Sodomy. Article 80—attempts

( N o t e : C o n s i d e r l e s s e r i n c l u d e d o f f e n s e s u n d e r

Art. 120, depending on the factual circumstances in

each case.)

e. Maximum punishment.

(1) By force and without consent. Dishonorable

discharge, forfeiture of all pay and allowances, and

confinement for life without eligibility for parole.

(2) With a child who, at the time of the offense,

has attained the age of 12 but is under the age of 16

years. Dishonorable discharge, forfeiture of all pay

and allowances, and confinement for 20 years.

(3) With a child under the age of 12 years at the

time of the offense. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for

life without eligibility for parole.

(4) Other cases. 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 20 ,

commit sodomy with , (a child under

the age of 12) (a child who had attained the age of

12 but was under the age of 16) (by force and

without the consent of the said ).

52. Article 126—Arson

a. Text of statute.

( a ) A n y p e r s o n s u b j e c t t o t h i s c h a p t e r w h o

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 ) A n y p e r s o n s u b j e c t t o t h i s c h a p t e r w h o

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.

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.

IV-96

¶50.f.
(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,

n o r i s a h o u s e t h a t h a s n e v e r b e e n o c c u p i e d o r

which has been temporarily abandoned. A person

may be guilty of aggravated arson of the 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 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

o t h e r t h a n t h e o f f e n d e r . S e e a l s o p a r a g r a p h 6 7

(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 ) A g g r a v a t e d a r s o n . D i s h o n o r a b l e d i s c h a r g e ,

forfeiture of all pay and allowances, and confinement for 20 years.

(2) Simple arson, where the property is—

(a) Of a value of $500.00 or less. Dishonorable

discharge, forfeiture of all pay and allowances, and

confinement for 1 year.

(b) Of a value of more than $500.00. Dishonorable discharge, forfeiture of all pay and allowances,

and confinement for 5 years.

f. Sample specifications.

(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 20 ,

willfully and maliciously (burn) (set on fire) an inh a b i t e d d w e l l i n g , t o w i t : ( t h e r e s i d e n c e

o f ) ( ) , ( t h e p r o p e r t y

o f ) o f a v a l u e o f ( a b o u t )

$ .

(b) Structure.

In that (personal jurisdiction data), did,

(at/on board—location) (subject-matter jurisdiction

data, if required), on or 20 , willfully and maliciously (burn) (set on fire), knowing

that a human being was therein at the time, (the Post

IV-97

¶52.f.(1)(b)
T h e a t e r ) ( , t h e p r o p e r t y

o f ) , o f a v a l u e o f ( a b o u t )

$ .

(2) Simple arson.

In that (personal jurisdiction data), did,

(at/on board— location) (subject-matter jurisdiction

data, if required), on or about 20 ,

willfully and maliciously (burn) (set fire to) (an aut o m o b i l e ) ( ) , t h e p r o p e r t y

of , of a value of (about) $ .

53. Article 127—Extortion

a. Text of statute.

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 ) T h a t t h e a c c u s e d c o m m u n i c a t e d a c e r t a i n

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 persons’s family or any other person held dear

to that person, of any crime; a threat to expose or

i m p u t e a n y d e f o r m i t y o r d i s g r a c e t o t h e p e r s o n

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 ) A d v a n t a g e o r i m m u n i t y . U n l e s s i t i s c l e a r

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 . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e ,

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 20 ,

with intent unlawfully to obtain (something of value)

(an acquittance) (an advantage, to wit )

(an immunity, to wit ), communic a t e t o a t h r e a t t o ( h e r e d e s c r i b e t h e

threat).

54. Article 128—Assault

a. Text of statute.

(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 ) c o m m i t s a n a s s a u l t w i t h a d a n g e r o u s

weapon or other means or force likely to produce

death or grievous bodily harm; or

(2) commits an assault and intentionally inf l i c t s g r i e v o u s b o d i l y h a r m w i t h o r w i t h o u t 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

IV-98

¶52.f.(1)(b)
(b) That the bodily harm was done with unlawful force or violence.

( 3 ) A s s a u l t s p e r m i t t i n g i n c r e a s e d p u n i s h m e n t

based on status of victim.

( a ) A s s a u l t u p o n a c o m m i s s i o n e d , w a r r a n t ,

noncommissioned, or petty officer.

(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 pers o n w a s a c o m m i s s i o n e d , w a r r a n t , n o n c o m m i s -

sioned, 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 of 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: Add any of the following as applicable)

(v) That the weapon was a loaded firearm.

(vi) That the person was a child under the

age of 16 years.

(b) Assault in which grievous bodily harm is

intentionally inflicted.

( i ) T h a t t h e a c c u s e d a s s a u l t e d a c e r t a i n

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: Add any of the following as applicable)

(v) That the injury was inflicted with a loaded

firearm.

(vi) That the person was a child under the age

of 16 years.

c. Explanation.

(1) 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) Difference 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

IV-99

¶54.c.(1)(b)(ii)
r e a s o n a b l e a p p r e h e n s i o n o f r e c e i v i n g i m m e d i a t e

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 ) M e r e p r e p a r a t i o n . P r e p a r a t i o n n o t

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

i n s t a n t l y i f t h a t p e r s o n d o e s n o t c o m p l y w i t h 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 ) I n g e n e r a l . A “ b a t t e r y ” i s a n a s s a u l t i n

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

p e r s o n , s h o o t a p e r s o n , c a u s e a p e r s o n t o t a k e

poison, or drive an automobile into a person. A

person who, although excused in using force, uses

m o r e f o r c e t h a n i s r e q u i r e d , c o m m i t s a b a t t e r y .

Throwing an object into a crowd may be a battery

on anyone whom the object hits.

(d) Situations not constituting battery. If bodily

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¶54.c.(1)(b)(ii)
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 ) A s s a u l t s p e r m i t t i n g i n c r e a s e d p u n i s h m e n t

based on status of victims.

( a ) A s s a u l t u p o n a c o m m i s s i o n e d , w a r r a n t ,

noncommissioned, or petty officer. 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 elem e n t o f t h i s o f f e n s e a n d m a y b e p r o v e d b y

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 ) D a n g e r o u s w e a p o n . A w e a p o n i s d a n -

gerous 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 of 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, torn members of the body, serious dama g e t o i n t e r n a l o r g a n s , a n d o t h e r s e r i o u s b o d i l y

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.

(v) When committed upon a child under 16

years of age. The maximum punishment is increased

when aggravated assault with a dangerous weapon

or means likely to produce death or grievous bodily

harm is inflicted upon a child under 16 years of age.

Knowledge that the person assaulted was under the

age of 16 years is not an element of the offense.

(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 grievo u s b o d i l y h a r m . C u l p a b l e n e g l i g e n c e w i l l n o t

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,

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¶54.c.(4)(b)(ii)
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).

(iv) When committed on a child under 16

years of age. The maximum punishment is increased

when aggravated assault with intentional infliction

of grievous bodily harm is inflicted upon a child

under 16 years of age. Knowledge that the person

assaulted was under the age of 16 years is not an

element of the offense.

d. Lesser included offenses.

(1) Simple assault. None

( 2 ) A s s a u l t c o n s u m m a t e d b y a b a t t e r y . A r t i c l e

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 ) A s s a u l t c o n s u m m a t e d b y a b a t t e r y u p o n 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

b o d i l y h a r m . A r t i c l e 1 2 8 — s i m p l e a s s a u l t ; a s s a u l t

consummated by a battery; (when committed upon a

child under the age of 16 years; assault consummated by a battery upon a child under the age of 16

years).

(7) Assault in which grievous bodily harm is intentionally inflicted. Article 128—simple assault; ass a u l t c o n s u m m a t e d b y a b a t t e r y ; a s s a u l t w i t h a

dangerous weapon; (when committed upon a child

under the age of 16 years -- assault consummated by

a battery upon a child under the age of 16 years).

e. Maximum punishment.

(1) Simple assault.

(A) Generally. Confinement for 3 months and

forfeiture of two-thirds pay per month for 3 months.

(B) When committed with an unloaded firearm.

Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 3 years.

(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 of office. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 3 years.

(4) Assault upon a warrant officer, 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 ) A s s a u l t c o n s u m m a t e d b y a b a t t e r y u p o n a

child under 16 years. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for

2 years.

(8) Aggravated assault with a dangerous weapon

or other means of force likely to produce death or

grievous bodily harm.

( a ) W h e n c o m m i t t e d w i t h a l o a d e d f i r e a r m .

Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 8 years.

( b ) A g g r a v a t e d a s s a u l t w i t h a d a n g e r o u s

weapon or other means of force likely to produce

death or grievous bodily harm when committed upon

a child under the age of 16 years. Dishonorable

discharge, total forfeitures, and confinement for 5

years.

(c) Other cases. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for

3 years.

(9) Aggravated 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) Aggravated assault in which grievous bodily harm is intentionally inflicted when committed

upon a child under the age of 16 years. DishonoraIV-102

¶54.c.(4)(b)(ii)
ble discharge, total forfeitures, and confinement for

8 years.

(c) 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-matter jurisdiction

data, if required), on or about 20 ,

a s s a u l t b y ( s t r i k i n g a t h i m / h e r w i t h

a ) ( ).

(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 20 ,

u n l a w f u l l y ( s t r i k e ) ( ) ( o n )

(in) the with .

(3) Assault upon a commissioned officer.

In that (personal jurisdiction data), did,

(at/on board—location) (subject-matter jurisdiction

data, if required), on or about 20 ,

assault , who then was and was then

known by the accused to be a commissioned officer

o f ( , a f r i e n d l y f o r e i g n p o w e r ) ( t h e

U n i t e d S t a t e s ( A r m y ) ( N a v y ) ( M a r i n e C o r p s ) ( A i r

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 20 ,

assault , who then was and was then

known by the accused to be a (warrant) (noncommissioned) (petty) officer of the United States (Arm y ) ( N a v y ) ( M a r i n e C o r p s ) ( A i r F o r c e ) ( C o a s t

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 20 ,

a s s a u l t , w h o t h e n w a s a n d w a s

then known by the accused to be a (sentinel) (looko u t ) i n t h e e x e c u t i o n o f h i s / h e r d u t y , ( ( i n ) ( o n )

the ) 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 20 ,

a s s a u l t , w h o t h e n w a s a n d w a s

then known by the accused to be a person then

having and in the execution of (Air Force security

p o l i c e ) ( m i l i t a r y p o l i c e ) ( s h o r e p a t r o l ) ( m a s t e r a t

arms) ((military) (civilian) law enforcement)) duties,

by .

( 7 ) A s s a u l t c o n s u m m a t e d b y a b a t t e r y u p o n a

child under 16 years.

In that (personal jurisdiction data), did,

(at/on board—location) (subject-matter jurisdiction

data, if required), on or about 20 ,

unlawfully (strike) ( ) a child

u n d e r t h e a g e o f 1 6 y e a r s , ( i n ) ( o n )

the with .

(8) Assault, aggravated—with a dangerous weapon, means or force.

In that (personal jurisdiction data), did,

(at/on board-location)(subject matter jurisdiction data, if required), on or about 20 ,

commit an assault upon (a child under

the age of 16 years) by (shooting)(pointing)(striking ) ( c u t t i n g ) ( ) ( a t h i m / h e r ) ( h i m / h e r ) ( i n -

) ( o n ) ( t h e ) w i t h ( a d a n g e r o u s w e a p o n ) ( a

(means)(force) likely to produce death or grievous

b o d i l y h a r m ) , t o w i t : a ( l o a d e d

firearm)(pickax)(bayonet)(club)( ).

(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 20 ,

commit an assault upon (a child under the age

of 16 years) by (shooting)(striking)(cutting)( )

( h i m / h e r ) ( o n ) t h e w i t h a ( l o a d e d

f i r e a r m ) ( c l u b ) ( r o c k ) ( b r i c k ) ( ) a n d d i d t h e r e b y

intentionally inflict grievous bodily harm upon him/

h e r , t o w i t : a ( b r o k e n l e g ) ( d e e p c u t ) ( f r a c t u r e d

skull)( ).

55. Article 129—Burglary

a. Text of statute.

Any person subject to this chapter who, with intent to commit an offense punishable under sect i o n s 9 1 8 - 9 2 8 o f t h i s t i t l e ( a r t i c l e s 1 1 8 - 1 2 8 ) ,

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.

IV-103

¶55.b.
( 1 ) T h a t t h e a c c u s e d u n l a w f u l l y b r o k e a n d

entered the dwelling house of another;

( 2 ) T h a t b o t h t h e b r e a k i n g a n d e n t e r i n g w e r e

done in the nighttime; and

( 3 ) T h a t t h e b r e a k i n g a n d e n t e r i n g w e r e d o n e

w i t h t h e i n t e n t t o c o m m i t a n o f f e n s e p u n i s h a b l e

under Article 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 Article 118 through 128, nece s s a r i l y i n c l u d e s a n o f f e n s e w i t h i n o n e o f t h e s e

articles, satisfies the intent element of this article.

T h i s i n c l u d e s , f o r e x a m p l e , a s s a u l t s p u n i s h a b l e

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

p e r s o n h a s c o m m i t t e d a “ b r e a k i n g . ” O p e n i n g a

c l o s e d d o o r o r w i n d o w o r o t h e r s i m i l a r f i x t u r e ,

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 concealing 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 ano t h e r . “ D w e l l i n g h o u s e ” i n c l u d e s o u t b u i l d i n g s

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 in habitually slept

i n b y f a m i l y m e m b e r s o r e m p l o y e e s . T h e h o u s e

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 118

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 warr a n t s , t h e i n t e n d e d o f f e n s e m a y b e s e p a r a t e l y

charged. It is immaterial whether the offense intended is committed or even attempted. If the off e n s e i s i n t e n d e d , i t i s n o d e f e n s e t h a t i t s

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 . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e ,

IV-104

¶55.b.(1)
forfeiture of all pay and allowances, and confinement for 10 years.

f. Sample specification.

In that (personal jurisdiction data), did,

at , (subject-matter jurisdiction data, if

required), on or about 20 , in the

nighttime, unlawfully break and enter the (dwelling

h o u s e ) ( w i t h i n t h e c u r t i l a g e )

of , with intent to commit (murder) (larceny) ( ) therein.

56. Article 130—Housebreaking

a. Text of statute.

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 comm i t t e d a c r i m i n a l o f f e n s e i n s i d e t h e b u i l d i n g o r

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 ) B u i l d i n g , s t r u c t u r e . “ B u i l d i n g ” i n c l u d e s 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 . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e ,

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 20 ,

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 of statute.

Any person subject to this chapter who in a judicial proceeding or in a course of justice willfully

and corruptly—

(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;

IV-105

¶57.b.(1)(b)
(c) That the oath or affirmation was administered by a person having authority to do so;

(d) That upon the oath or affirmation that 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

t r i a l b y c o u r t - m a r t i a l a n d “ c o u r s e o f j u s t i c e ” i n -

cludes 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 continua n c e , a s w e l l a s b y g i v i n g f a l s e t e s t i m o n y w i t h

respect to a fact from which a legitimate inference

may be drawn as to the existence or nonexistence of

a fact in issue.

(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 accused—or

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 ) S u b s c r i b i n g f a l s e s t a t e m e n t . S e e s u b -

paragraphs (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

u n d e r p e n a l t y o f p e r j u r y s u m m a r i z e d t e s t i m o n y

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

s i t u a t i o n w h e r e a n o a t h i s r e q u i r e d t o b e t a k e n

before a specific person.

IV-106

¶57.b.(1)(c)
d. Lesser included offense. Article 80—attempts.

e . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e ,

forfeiture of all pay and allowances, and confinement for 5 years.

f. Sample specifications.

(1) Giving false testimony.

I n t h a t ( p e r s o n a l j u r i s d i c t i o n d a t a ) ,

having taken a lawful (oath) (affirmation) in a (trial

b y c o u r t - m a r t i a l o f )

( t r i a l b y a c o u r t o f c o m p e t e n t j u r i s d i c t i o n , t o

w i t : o f ) ( d e p o s i t i o n

f o r u s e i n a t r i a l

b y o f ) ( )

that he/she would (testify) (depose) truly, did, (at/on

board—location) (subject-matter jurisdiction data, if

required), on or about 20 , willfully, corruptly, and contrary to such (oath) (affirmat i o n ) , ( t e s t i f y ) ( d e p o s e ) f a l s e l y i n s u b s t a n c e

t h a t , w h i c h ( t e s t i m o n y ) ( d e p o s i t i o n )

was upon a material matter and which he/she 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 20 ,

in a (judicial proceeding) (course of justice), and in

a ( d e c l a r a t i o n ) ( c e r t i f i c a t i o n ) ( v e r i f i c a t i o n ) ( s t a t e -

ment) under penalty of perjury pursuant to section

1746 of title 28, United States Code, willfully and

corruptly subscribed a false statement material to the

( i s s u e ) ( m a t t e r o f i n q u i r y ) , t o w i t : ,

which statement was false in that , and

which statement he/she did not then believe to be

true.

58. Article 132—Frauds against the United

States

a. Text of statute.

Any person subject to this chapter—

(1) who, knowing it to be false or fraudulent—

( a ) m a k e s a n y c l a i m a g a i n s t t h e U n i t e d

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 app r o v a l , a l l o w a n c e , o r p a y m e n t o f a n y c l a i m

against the United States or any officer thereof—

(a) makes or uses any writing or other paper

k n o w i n g i t t o c o n t a i n a n y f a l s e o r f r a u d u l e n t

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

s i g n a t u r e k n o w i n g i t t o b e f o r g e d o r

counterfeited;

(3) who, having charge, possession, custody, or

control of any money, or other property of the

U n i t e d S t a t e s , f u r n i s h e d o r i n t e n d e d f o r t h e

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 cont a i n e d a n d w i t h i n t e n t t o d e f r a u d t h e U n i t e d

States; shall, upon conviction, be punished as a

court-martial may direct.

b. Elements.

(1) Making a false or fraudulent claim.

( a ) T h a t t h e a c c u s e d m a d e a c e r t a i n c l a i m

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.

IV-107

¶58.b.(2)(c)
( 3 ) M a k i n g o r u s i n g a f a l s e w r i t i n g o r o t h e r

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

p u r p o s e o f o b t a i n i n g t h e a p p r o v a l , a l l o w a n c e , o r

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 ) T h a t t h e o a t h w a s f a l s e i n c e r t a i n

particulars;

(c) That the accused then knew it was false;

and

(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 ) F o r g e r y o f s i g n a t u r e i n c o n n e c t i o n w i t h

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 ) U s i n g f o r g e d s i g n a t u r e i n c o n n e c t i o n w i t h

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 thereof.

(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

t h e U n i t e d S t a t e s f u r n i s h e d o r i n t e n d e d f o r t h e

armed forces thereof;

(b) That the accused obtained a certificate or

r e c e i p t f o r a c e r t a i n a m o u n t o r q u a n t i t y o f t h a t

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 ) T h a t t h e u n d e l i v e r e d m o n e y o r p r o p e r t y

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 ) T h a t t h e p r o p e r t y c e r t i f i e d a s b e i n g r e -

ceived 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

p l a c i n g t h e c l a i m i n o f f i c i a l c h a n n e l s c o n s t i t u t e s

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.

IV-108

¶58.b.(3)
T h i s a r t i c l e d o e s n o t p r o s c r i b e c l a i m s , h o w e v e r

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 aut h o r i z e d t o p r e s e n t o r u p o n w h i c h t h e c l a i m a n t

knows the claimant has no right to collect.

( b ) P r e s e n t i n g a c l a i m . T h e c l a i m m u s t b e

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 inc l u d e s a n a m o u n t f o r a d e p e n d e n c y a l l o w a n c e ,

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 (1), above.

( 3 ) M a k i n g o r u s i n g a f a l s e w r i t i n g o r o t h e r

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 ) F a l s e o a t h i n c o n n e c t i o n w i t h c l a i m s . S e e

subparagraphs (1) and (2), above.

( 5 ) F o r g e r y o f s i g n a t u r e i n c o n n e c t i o n w i t h

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

p a r a g r a p h 4 8 ( c ) a n d s u b p a r a g r a p h ( 1 ) a n d ( 2 ) ,

above.

(6) Delivering less than amount called for by rec e i p t . I t i s i m m a t e r i a l b y w h a t m e a n s — w h e t h e r

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 ) A r t i c l e 1 3 2 ( 1 ) a n d ( 2 ) . D i s h o n o r a b l e d i s -

charge, forfeiture of all pay and allowances, and

confinement for 5 years.

(2) Article 132(3) and (4).

(a) When amount is $500.00 or less. Bad-conduct discharge, forfeiture of all pay and allowances,

and confinement for 6 months.

(b) When amount is over $500.00. Dishonorable discharge, forfeiture of all pay and allowances,

and confinement for 5 years.

f. Sample specifications.

(1) Making false claim.

In that (personal jurisdiction data), did,

(at/on board—location) (subject-matter jurisdiction

data, if required), on or about 20 ,

(by preparing (a voucher) ( ) for presentation for approval or payment) ( ), make a

claim against the (United States) (finance officer

a t ) ( ) i n t h e a m o u n t o f

$ for (private property alleged to have

b e e n ( l o s t ) ( d e s t r o y e d ) i n t h e m i l i t a r y s e r v i c e )

( ), which claim was (false) (fraudulent)

IV-109

¶58.f.(1)
( f a l s e a n d f r a u d u l e n t ) i n t h e a m o u n t o f

$ i n t h a t a n d

w a s t h e n k n o w n b y t h e s a i d t o b e

(false) (fraudulent) (false and fraudulent).

(2) Presenting false claim.

In that (personal jurisdiction data), did,

(at/on board—location) (subject-matter jurisdiction

data, if required), on or about 20 ,

b y p r e s e n t i n g ( a v o u c h e r ) ( )

to , an officer of the United States duly

a u t h o r i z e d t o ( a p p r o v e ) ( p a y ) ( a p p r o v e a n d p a y )

such claim, present for (approval) (payment) (approval and payment) a claim against the (United

S t a t e s ) ( f i n a n c e o f f i c e r a t )

( ) i n t h e a m o u n t o f $ f o r

( s e r v i c e s a l l e g e d t o h a v e b e e n r e n d e r e d t o t h e

U n i t e d S t a t e s b y d u -

r i n g ) ( ) , w h i c h c l a i m w a s

( f a l s e ) ( f r a u d u l e n t ) ( f a l s e a n d f r a u d u l e n t ) i n t h e

a m o u n t o f $ i n t h a t ,

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 (at/on board— location) (subjectm a t t e r j u r i s d i c t i o n d a t a , i f r e q u i r e d ) , o n o r

a b o u t 2 0 , ( m a k e )

(use) (make and use) a certain (writing) (paper), to

wit: , which said (writing) (paper), as

he/she, the said , then knew, contained a

s t a t e m e n t t h a t , w h i c h s t a t e m e n t

w a s ( f a l s e ) ( f r a u d u l e n t ) ( f a l s e a n d f r a u d u l e n t ) i n

that , and was then known by the said

t o b e ( f a l s e ) ( f r a u d u l e n t ) ( f a l s e a n d

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, (at/on board—

l o c a t i o n ) ( s u b j e c t - m a t t e r j u r i s d i c t i o n d a t a , i f r e -

quired), on or about 20 , make an

o a t h ( t o t h e f a c t t h a t ) ( t o a c e r t a i n

(writing) (paper), to wit: , to the effect

t h a t ) , w h i c h s a i d o a t h w a s f a l s e i n

that , and was then known by the saidto be false.

(5) Forging or counterfeiting 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 board—

l o c a t i o n ) ( s u b j e c t - m a t t e r j u r i s d i c t i o n d a t a , i f r e -

quired), on or about 20 , (forge)

( c o u n t e r f e i t ) ( f o r g e a n d c o u n t e r f e i t ) t h e s i g n a t u r e

o f u p o n a i n w o r d s

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 board—location) (subject-matter

j u r i s d i c t i o n d a t a , i f r e q u i r e d ) , o n o r

about 20 , use the signature of on a certain (writing) (paper),

to wit: , then knowing such signature to

b e ( f o r g e d ) ( c o u n t e r f e i t e d ) ( f o r g e d a n d

counterfeited).

(7) Paying amount less than called for by receipt.

I n t h a t ( p e r s o n a l j u r i s d i c t i o n d a t a ) ,

having (charge) (possession) (custody) (control) of

(money) ( ) of the United States,

(furnished) (intended) (furnished and intended) for

the armed forces thereof, did, (at/on board—location) (subject-matter jurisdiction data, if required),

o n o r a b o u t 2 0 ,

k n o w i n g l y d e l i v e r t o , t h e s a i d -

h a v i n g a u t h o r i t y t o r e c e i v e t h e

same, (an amount) ( ), which, as he/

s h e , , t h e n k n e w , w a s ( $ )

( ) less than the (amount) ( )

for which he/she received a (certificate) (receipt)

from the said .

( 8 ) M a k i n g r e c e i p t w i t h o u t k n o w l e d g e o f t h e

facts.

In that (personal jurisdiction data), bei n g a u t h o r i z e d t o ( m a k e ) ( d e l i v e r ) ( m a k e a n d

deliver) a paper certifying the receipt of property of

the United States (furnished) (intended) (furnished

and intended) for the armed forces thereof, did, (at/

on board—location) (subject-matter jurisdiction data,

i f r e q u i r e d ) , o n o r

a b o u t 2 0 , w i t h o u t h a v i n g

full knowledge of the statement therein contained

and with intent to defraud the United States, (make)

(deliver) (make and deliver) to , such a

w r i t i n g , i n w o r d s a n d f i g u r e s a s f o l -

IV-110

¶58.f.(1)
lows: , the property therein certified as

received being of a value of about $ .

59. Article 133—Conduct unbecoming an

officer and gentleman

a. Text of statute.

Any commissioned officer, cadet, or midshipman

who is convicted of conduct unbecoming an officer and a gentleman shall be punished as a courtmartial 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 ) G e n t l e m a n . A s u s e d i n t h i s a r t i c l e ,

“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 c o m m i s s i o n e d o f f i c e r , c a d e t , o r m i d s h i p m a n

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 cons t i t u t e s c o n d u c t u n b e c o m i n g a n o f f i c e r a n d

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 without authority; using insulting or defamat o r y l a n g u a g e t o a n o t h e r o f f i c e r i n t h a t o f f i c e r ’ s

presence or about that officer to other military persons; being drunk and disorderly in a public place;

public association with known prostitutes; committ i n g o r a t t e m p t i n g t o c o m m i t a c r i m e i n v o l v i n g

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,

( a t / o n b o a r d — l o c a t i o n ) , o n o r

a b o u t 2 0 , w h i l e u n -

d e r g o i n g a w r i t t e n e x a m i n a t i o n o n t h e s u b j e c t

o f , w r o n g f u l l y a n d d i s h o n o r a b l y ( r e -

ceive) (request) unauthorized aid by ((using) (copying) the examination paper of ))

( ).

(2) Drunk or disorderly.

I n t h a t ( p e r s o n a l j u r i s d i c t i o n d a t a ) ,

w a s , ( a t / o n b o a r d — l o c a t i o n ) , o n o r

about 20 , in a public

p l a c e , t o w i t : , ( d r u n k ) ( d i s o r d e r l y )

(drunk and disorderly) while in uniform, to the disgrace of the armed forces.

60. Article 134—General article

a. Text of statute.

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

IV-111

¶60.a.
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 1 offenses involve disorders and neglects to

the prejudice of good order and discipline in the

armed forces. Clause 2 offenses involve conduct of a

n a t u r e t o b r i n g d i s c r e d i t u p o n t h e a r m e d f o r c e s .

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 59 c for offenses committed by

commissioned officers, cadets, and midshipmen.

(2) Disorders and neglects to the prejudice of

g o o d o r d e r a n d d i s c i p l i n e i n t h e a r m e d f o r c e s

(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. Howe v e r , s e e R . C . M . 2 0 3 c o n c e r n i n g s u b j e c t - m a t t e r

jurisdiction.

(b) Breach of custom of the service. 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

b e e n g e n e r a l l y a b a n d o n e d . M a n y c u s t o m s o f t h e

service are now set forth in regulations of the vario u s a r m e d f o r c e s . V i o l a t i o n s o f t h e s e c u s t o m s

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

s u b p a r a g r a p h ( 4 ) ( c ) b e l o w ) . F o r t h e p u r p o s e o f

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 ofIV-112

¶60.a.
fenses of local application (crimes which are punisha b l e o n l y i f c o m m i t t e d i n a r e a s o f f e d e r a l

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. § 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).

( i i ) F e d e r a l A s s i m i l a t i v e C r i m e s A c t ( 1 8

U.S.C. § 13). The Federal Assimilative Crimes Act

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

b e f o r e o r a f t e r p a s s a g e o f t h e A c t , a n d w h e t h e r

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 def i n e d b y f e d e r a l l a w ( i n c l u d i n g t h e U C M J ) , t h a t

person could be punished for that act by a courtmartial 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

m i l i t a r y i n s t a l l a t i o n i s l o c a t e d a n d a p p l i e s i t a s

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

S t a t e , T e r r i t o r y , P o s s e s s i o n , o r D i s t r i c t i n w h i c h

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 ) D r a f t i n g s p e c i f i c a t i o n s f o r A r t i c l e 1 3 4 o f -

fenses.

(a) In general. A specification alleging a violation of Article 134 need not expressly allege that 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 1 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.

IV-113

¶60.c.(6)(c)
61. Article 134—(Abusing public animal)

a. Text of statute. 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 . E x p l a n a t i o n . A p u b l i c a n i m a l i s a n y a n i m a l

owned or used by the United States; and animal

owned or used by a local or State government in the

United States, its territories or possessions; or any

w i l d a n i m a l l o c a t e d o n a n y p u b l i c l a n d s i n t h e

U n i t e d S t a t e s , i t s t e r r i t o r i e s o r p o s s e s s i o n s . T h i s

would include, for example, drug detector dogs used

by the government.

d. Lesser included offenses. 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 20 ,

wrongfully (kick a public drug detector dog in the

nose) ( ).

62. Article 134—(Adultery)

a. Text of statute. 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.

(1) Nature of offense. Adultery is clearly unacceptable conduct, and it reflects adversely on the

service record of the military member.

(2) Conduct prejudicial to good order and discipline or of a nature to bring discredit upon the

armed forces. To constitute an offense under the

U C M J , t h e a d u l t e r o u s c o n d u c t m u s t e i t h e r b e

directly prejudicial to good order and discipline or

s e r v i c e d i s c r e d i t i n g . A d u l t e r o u s c o n d u c t t h a t i s

directly prejudicial includes conduct that has an obvious, and measurably divisive effect on unit or org a n i z a t i o n d i s c i p l i n e , m o r a l e , o r c o h e s i o n , o r i s

clearly detrimental to the authority or stature of or

respect toward a servicemember. Adultery may also

be service discrediting, even though the conduct is

only indirectly or remotely prejudicial to good order

and discipline. Discredit means to injure the reputation of the armed forces and includes adulterous

conduct that has a tendency, because of its open or

notorious nature, to bring the service into disrepute,

make it subject to public ridicule, or lower it in

public esteem. While adulterous conduct that is private and discreet in nature may not be service discrediting by this standard, under the circumstances,

it may be determined to be conduct prejudicial to

good order and discipline. Commanders should consider all relevant circumstances, including but not

limited to the following factors, when determining

whether adulterous acts are prejudicial to good order

and discipline or are of a nature to bring discredit

upon the armed forces:

(a) The accused’s marital status, military rank,

grade, or position;

(b) The co-actor’s marital status, military rank,

grade, and position, or relationship to the armed

forces;

(c) The military status of the accused’s spouse

or the spouse of co-actor, or their relationship to the

armed forces;

(d) The impact, if any, of the adulterous relationship on the ability of the accused, the co-actor,

or the spouse of either to perform their duties in

support of the armed forces;

(e) The misuse, if any, of government time and

r e s o u r c e s t o f a c i l i t a t e t h e c o m m i s s i o n o f t h e

conduct;

(f) Whether the conduct persisted despite counseling or orders to desist; the flagrancy of the conduct, such as whether any notoriety ensued; and

w h e t h e r t h e a d u l t e r o u s a c t w a s a c c o m p a n i e d b y

other violations of the UCMJ;

(g) The negative impact of the conduct on the

units or organizations of the accused, the co-actor or

the spouse of either of them, such as a detrimental

effect on unit or organization morale, teamwork, and

efficiency;

IV-114

¶61.
(h) Whether the accused or co-actor was legally separated; and

(i) Whether the adulterous misconduct involves

an ongoing or recent relationship or is remote in

time.

(3) Marriage. A marriage exists until it is dissolved in accordance with the laws of a competent

state or foreign jurisdiction.

(4) Mistake of fact. A defense of mistake of fact

exists if the accused had an honest and reasonable

belief either that the accused and the co-actor were

both unmarried, or that they were lawfully married

to each other. If this defense is raised by the evidence, then the burden of proof is upon the United

States to establish that the accused’s belief was unreasonable or not honest.

d. Lesser included offense. Article 80—attempts

e . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e ,

forfeiture of all pay and allowances, and confinement for 1 year.

f. Sample specification.

In that (personal jurisdiction data), (a

married man/a married woman), did, (at/on board—

l o c a t i o n ) ( s u b j e c t - m a t t e r j u r i s d i c t i o n d a t a , i f r e -

quired), on or about 20 , wrongfully have

sexual intercourse with , a (married) (woman/

man) not (his wife) (her husband).

63. Deleted – see Appendix 27.

64. Article 134—(Assault—with intent to

commit murder, voluntary manslaughter,

rape, robbery, sodomy, arson, burglary, or

housebreaking)

a. Text of statute. See paragraph 60.

b. Elements.

(1) 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 and 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 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

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¶64.c.(6)
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.

Article 128—assault; assault consummated by a battery; assault with a dangerous weapon

(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. Dish o n o r a b l e d i s c h a r g e , f o r f e i t u r e o f a l l p a y a n d

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 specification.

In that (personal jurisdiction data), did,

(at/on board—location) (subject-matter jurisdiction

data, if required), on or about 20 ,

w i t h i n t e n t t o c o m m i t ( m u r d e r ) ( v o l u n t a r y m a n -

slaughter) (rape) (robbery) (sodomy) (arson) (burglar y ) ( h o u s e b r e a k i n g ) , c o m m i t a n a s s a u l t

upon by .

65. Article 134—(Bigamy)

a. Text of statute. 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

o t h e r s p o u s e , o r o t h e r w i s e , c o n s t i t u t e s a d e f e n s e

o n l y i f t h e b e l i e f w a s r e a s o n a b l e . S e e R . C . M .

916(j)(1).

d. Lesser included offense. Article 80—attempts

e . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e ,

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 20 , wrongfully marry , having at the time of his/her

said marriage to a lawful wife/husband

then living, to wit: .

66. Article 134—(Bribery and graft)

a. Text of statute. See paragraph 60.

b. Elements.

(1) Asking, accepting, or receiving.

( a ) T h a t t h e a c c u s e d w r o n g f u l l y a s k e d , a c -

cepted, 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

t h e a c c u s e d ’ s d e c i s i o n o r a c t i o n i n f l u e n c e d w i t h

respect to a certain matter)* (as compensation for or

IV-116

¶64.c.(6)
in recognition of services rendered, to be rendered,

o r b o t h , b y t h e a c c u s e d i n r e l a t i o n t o a c e r t a i n

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

p e r s o n n e l o f f i c e r o f ) ( ) , d i d , ( a t / o n

board—location) (subject-matter jurisdiction data, if

r e q u i r e d ) , o n o r a b o u t 2 0 , w r o n g f u l l y

(ask) (accept) (receive) from , (a contracting

c o m p a n y ) e n g a g e d i n ( ) , ( t h e s u m o f

$ ) ( , o f a v a l u e o f ( a b o u t ) $ )

( ), (with intent to have his/her (decision) (action) influenced with respect to*) ((as compensation

for) (in recognition of)) service (rendered) (to be

rendered) (rendered and to be rendered) by him/her

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 ( ) ( ).

(*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

(at/on board—location) (subject-matter jurisdiction

data, if required), on or about 20 ,

wrongfully (promise) (offer) (give) to ,

( h i s / h e r c o m m a n d i n g o f f i c e r ) ( t h e c l a i m s o f f i c e r

o f ) ( ) , ( t h e s u m o f

$ ) ( , o f a v a l u e o f ( a b o u t

$ ) ( , (with intent to influence

t h e ( d e c i s i o n ) ( a c t i o n ) o f t h e s a i d -

w i t h r e s p e c t t o * ) ( ( a s

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

a n d i s i n t e r e s t e d , t o w i t : ( t h e g r a n t i n g o f l e a v e

t o ) ( t h e p r o c e s s i n g o f a

c l a i m a g a i n s t t h e U n i t e d S t a t e s i n f a v o r

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 of statute. See paragraph 60.

b. Elements.

( 1 ) T h a t t h e a c c u s e d w i l l f u l l y a n d m a l i c i o u s l y

burned or set fire to certain property owned by a

certain person or organization;

(2) That such burning or setting on fire was with

IV-117

¶67.b.(2)
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 offense. Article 80—attempts

e . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e ,

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 20 ,

w i l l f u l l y a n d m a l i c i o u s l y ( b u r n ) ( s e t f i r e t o ) ( a

d w e l l i n g ) ( a b a r n ) ( a n a u t o m o b i l e ) , t h e p r o p e r t y

o f , w i t h i n t e n t t o d e f r a u d

( t h e i n s u r e r t h e r e o f , t o w i t : )

( ).

68. Article 134—(Check, worthless, making

and uttering—by dishonorably failing to

maintain funds)

a. Text of statute. 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

a f t e r u t t e r i n g t h e i n s t r u m e n t . M e r e n e g l i g e n c e i n

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 . M a x i m u m p u n i s h m e n t . B a d - c o n d u c t d i s c h a r g e ,

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 20 ,

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

o f s u c h c h e c k i n f u l l u p o n i t s p r e s e n t m e n t f o r

payment.

68a. Article 134—(Child endangerment)

a. Text of statute. See paragraph 60.

b. Elements.

(1) That the accused had a duty for the care of a

certain child;

(2) That the child was under the age of 16 years;

(3) That the accused endangered the child’s mental or physical health, safety, or welfare through

design or culpable negligence; 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) In general. This offense is intended to prohibit and therefore deter child endangerment through

design or culpable negligence.

(2) Design. Design means on purpose, intentionally, or according to plan and requires specific intent

to endanger the child.

(3) Culpable negligence. Culpable negligence is a

d e g r e e o f c a r e l e s s n e s s g r e a t e r t h a n s i m p l e n e g l i -

gence. It is a negligent act or omission accompanied

IV-118

¶67.b.(2)
by a culpable disregard for the foreseeable consequences to others of that act or omission. In the

context of this offense, culpable negligence may include acts that, when viewed in the light of human

experience, might foreseeably result in harm to a

child, even though such harm would not necessarily

be the natural and probable consequences of such

acts. In this regard, the age and maturity of the

child, the conditions surrounding the neglectful conduct, the proximity of assistance available, the nature of the environment in which the child may have

been left, the provisions made for care of the child,

and the location of the parent or adult responsible

for the child relative to the location of the child,

among others, may be considered in determining

whether the conduct constituted culpable negligence.

(4) Harm. Actual physical or mental harm to the

child is not required. The offense requires that the

a c c u s e d ’ s a c t i o n s r e a s o n a b l y c o u l d h a v e c a u s e d

physical or mental harm or suffering. However, if

the accused’s conduct does cause actual physical or

mental harm, the potential maximum punishment increases. See Paragraph 54(c)(4)(a)(iii) for an explanation of “grievous bodily harm”.

(5) Endanger. “Endanger” means to subject one

to a reasonable probability of harm.

(6) Age of victim as a factor. While this offense

may be committed against any child under 16, the

age of the victim is a factor in the culpable negligence determination. Leaving a teenager alone for

an evening may not be culpable (or even simple)

negligence; leaving an infant or toddler for the same

period might constitute culpable negligence. On the

other hand, leaving a teenager without supervision

for an extended period while the accused was on

temporary duty outside commuting distance might

constitute culpable negligence.

(7) Duty required. The duty of care is determined

by the totality of the circumstances and may be

established by statute, regulation, legal parent-child

r e l a t i o n s h i p , m u t u a l a g r e e m e n t , o r a s s u m p t i o n o f

control or custody by affirmative act. When there is

no duty of care of a child, there is no offense under

this paragraph. Thus, there is no offense when a

stranger makes no effort to feed a starving child or

an individual/neighbor not charged with the care of

a child does not prevent the child from running and

playing in the street.

d. Lesser included offenses.

(1) Child Endangerment by Design. Article 134-

Child endangerment by culpable negligence

(2) Article 80—Attempts

e. Maximum punishment.

(1) Endangerment by design resulting in grievous

bodily harm. Dishonorable discharge, forfeiture of

all pay and allowances, and confinement for 8 years.

(2) Endangerment by design resulting in harm.

Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years.

( 3 ) O t h e r c a s e s b y d e s i g n . D i s h o n o r a b l e d i s -

charge, forfeiture of all pay and allowances and confinement for 4 years.

(4) Endangerment by culpable negligence resulti n g i n g r i e v o u s b o d i l y h a r m . D i s h o n o r a b l e d i s -

charge, forfeiture of all pay and allowances, and

confinement for 3 years.

(5) Endangerment by culpable negligence resulting in harm. Bad-conduct discharge, forfeiture of all

pay and allowances, and confinement for 2 years.

(6) Other cases by culpable negligence. Bad-conduct discharge, forfeiture of all pay and allowances,

and confinement for 1 year.

f. Sample specification.

( 1 ) R e s u l t i n g i n g r i e v o u s b o d i l y h a r m . I n

that (personal jurisdiction data),(at/on boardl o c a t i o n ) ( s u b j e c t m a t t e r j u r i s d i c t i o n d a t a , i f r e -

quired) on or about , 20 , had a duty for

the care of , a child under the age of 16 years

a n d d i d e n d a n g e r t h e ( m e n t a l h e a l t h ) ( p h y s i c a l

health)(safety)(welfare) of said , by (leaving the

said unattended in his quarters for over

hours/days with no adult present in the home) (by

failing to obtain medical care for the said ’s

diabetic condition) ( ), and that such conduct

( w a s b y d e s i g n ) ( c o n s t i t u t e d c u l p a b l e n e g l i g e n -

ce)(which resulted in grievous bodily harm, to wit:)

(broken leg)(deep cut)(fractured skull)( ).

(2) Resulting in harm. In that (personal

jurisdiction data),(at/on board-location) (subject matter jurisdiction data, if required) on or about ,

20 , had a duty for the care of , a child

under the age of 16 years, and did endanger the

(mental health) (physical health)(safety)(welfare) of

said , by (leaving the said unattended in

his quarters for over hours/days with no adult

present in the home) (by failing to obtain medical

care for the said ’s diabetic condition) ( ),

and that such conduct (was by design)(constituted

IV-119

¶68a.f.(2)
culpable negligence) (which resulted in (harm, to

wit:) (a black eye)(bloody nose)(minor cut)( ).

(3) Other cases. In that (personal jurisdiction data),(at/on board-location) (subject matter jur i s d i c t i o n d a t a , i f r e q u i r e d ) o n o r a b o u t ,

20 , was responsible for the care of , a

child under the age of 16 years, and did endanger

the (mental health) (physical health)(safety)(welfare)

of said , by (leaving the said unattended

in his quarters for over hours/days with no

adult present in the home) (by failing to obtain medi c a l c a r e f o r t h e s a i d ’ s d i a b e t i c c o n d i t i o n )

( ) , a n d t h a t s u c h c o n d u c t ( w a s b y

design)(constituted culpable negligence).

69. Article 134—(Cohabitation, wrongful)

a. Text of statute. 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 married 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 martial relationship exists.

d. Lesser included offense. 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,

(at/on board—location) (subject-matter jurisdiction

data, if required), from about 20 ,

t o a b o u t 2 0 , w r o n g f u l l y c o h a b i t

with , (a woman not his wife) (a man

not her husband).

70. Article 134—(Correctional custody—

offenses against)

a. Text of statute. 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 ) E s c a p e f r o m c o r r e c t i o n a l c u s t o d y . E s c a p e

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

P a r t V c o n c e r n i n g w h o m a y i m p o s e c o r r e c t i o n a l

custody. Whether the status of a person authorized

that person to impose correctional custody is a quesIV-120

¶68a.f.(2)
tion 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.

I n t h a t ( p e r s o n a l j u r i s d i c t i o n d a t a ) ,

w h i l e u n d e r g o i n g t h e p u n i s h m e n t o f c o r r e c t i o n a l

custody imposed by a person authorized to do so,

d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r

about 20 , escape from correctional custody.

(2) Breach of correctional custody.

I n t h a t ( p e r s o n a l j u r i s d i c t i o n d a t a ) ,

while duly undergoing the punishment of correctional custody imposed by a person authorized to do

s o , d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r

a b o u t 2 0 ,

b r e a c h t h e r e s t r a i n t i m p o s e d t h e r e u n d e r

by .

71. Article 134—(Debt, dishonorably failing

to pay)

a. Text of statute. 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

t h e a c c u s e d ’ s c o n d u c t w a s d i s h o n o r a b l e , b u t t h e

court-martial may convict only if it finds from all of

t h e e v i d e n c e t h a t t h e c o n d u c t w a s i n f a c t

dishonorable.

d. Lesser included offenses. None.

e . M a x i m u m p u n i s h m e n t . B a d - c o n d u c t d i s c h a r g e ,

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

f. Sample specification.

In that (personal jurisdiction data),

b e i n g i n d e b t e d t o i n t h e s u m o f

$ f o r , w h i c h a m o u n t

b e c a m e d u e a n d p a y a b l e ( o n ) ( a b o u t ) ( o n o r

a b o u t ) 2 0 , d i d ( a t / o n b o a r d —

l o c a t i o n ) ( s u b j e c t - m a t t e r j u r i s d i c t i o n d a t a , i f r e -

q u i r e d ) , f r o m 2 0 ,

to 20 , dishonorably fail to

pay said debt.

72. Article 134—(Disloyal statements)

a. Text of statute. 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

t o p r o m o t e d i s l o y a l t y o r d i s a f f e c t i o n t o w a r d t h e

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

IV-121

¶72.b.(5)
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. §§ 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

s e r v i c e s . A d e c l a r a t i o n o f p e r s o n a l b e l i e f c a n

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 . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e ,

forfeiture of all pay and allowances, and confinement for 3 years.

f. Sample specification.

In that (personal jurisdiction data),

d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r

a b o u t 2 0 , w i t h i n t e n t

t o ( p r o m o t e ( d i s l o y a l t y ) ( d i s a f f e c t i o n ) ( d i s l o y a l t y

and disaffection)) ((interfere with) (impair) the (loyalty) (good order and discipline)) of any member of

the armed forces of the United States communicate

t o , t h e f o l l o w i n g s t a t e m e n t , t o w i t :

“ ,” or words to that effect, which

statement was disloyal to the United States.

73. Article 134—(Disorderly conduct,

drunkenness)

a. Text of statute. 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(6) 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 dist u r b e d o r p r o v o k e d t o r e s e n t m e n t t h e r e b y . I t i n -

c l u d e s c o n d u c t t h a t e n d a n g e r s p u b l i c m o r a l s o r

outrages public decency and any disturbance of a

contentious or turbulent character.

( 3 ) S e r v i c e d i s c r e d i t i n g . U n l i k e m o s t o f f e n s e s

under Article 134, “conduct of a nature to bring

discredit upon the armed forces” must be included in

the specification and proved in order to authorized

the higher maximum punishment when the offense is

service discrediting.

d. Lesser included offense. 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, (at/on board—location) (subject-matter jurisdict i o n d a t a , i f r e q u i r e d ) , o n o r

a b o u t 2 0 , ( d r u n k ) ( d i s o r d e r l y )

(drunk and disorderly) (which conduct was of a nature to bring discredit upon the armed forces).

IV-122

¶72.b.(5)
74. Article 134—(Drinking liquor with

prisoner)

a. Text of statute. 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 ) L i q u o r . F o r t h e p u r p o s e s o f t h i s o f f e n s e ,

“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 specification.

In that (personal jurisdiction data),

a (sentinel) ( ) in charge of prisoners, did,

(at/on board—location), on or about 20 , unlawfully drink intoxicating liquor with ,

a prisoner under his/her charge.

75. Article 134—(Drunk prisoner)

a. Text of statute. 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(1).

(2) Drunk. See paragraph 35c(6) for a discussion

of intoxication.

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 specification.

In that (personal jurisdiction data),

a p r i s o n e r , w a s ( a t / o n b o a r d — l o c a t i o n ) , o n o r

about 20 , found drunk.

76. Article 134—(Drunkenness—

incapacitation for performance of duties

through prior wrongful indulgence in

intoxicating liquor or any drug)

a. Text of statute. See paragraph 60.

b. Elements.

( 1 ) T h a t t h e a c c u s e d h a d c e r t a i n d u t i e s t o

perform;

(2) That the accused was incapacitated for the

proper 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 to

bring discredit upon the armed forces.

c. Explanation.

(1) Liquor. See paragraph 74c(2).

( 2 ) I n c a p a c i t a t e d . I n c a p a c i t a t e d m e a n s u n f i t o r

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

p r e v i o u s o v e r i n d u l g e n c e i s a n e x a m p l e o f b e i n g

“ u n a b l e ” t o p e r f o r m d u t i e s . F o r a d i s c u s s i o n o f

“drunk” see paragraph 35c(6).

( 3 ) A f f i r m a t i v e d e f e n s e . T h e a c c u s e d ’ s l a c k o f

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 specification.

In that (personal jurisdiction data),

IV-123

¶76.f.
w a s , ( a t / o n b o a r d — l o c a t i o n ) , o n o r

about 20 , as a result

of wrongful previous overindulgence in intoxicating

liquor or drugs incapacitated for the proper performance of his/her duties.

77. Article 134—(False or unauthorized pass

offenses)

a. Text of statute. See paragraph 60.

b. Elements.

(1) Wrongful making, altering, counterfeiting, or

tampering with a military or official pass, permit,

discharge certificate, or identification card.

( a ) T h a t t h e a c c u s e d w r o n g f u l l y a n d f a l s e l y

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 official pass, permit, discharge certificate, or identification card.

( a ) T h a t t h e a c c u s e d w r o n g f u l l y s o l d , g a v e ,

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 una u t h o r i z e d m i l i t a r y o r o f f i c i a l p a s s , p e r m i t , d i s -

charge certificate, 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

a c c u s e d u s e d o r p o s s e s s e d t h e p a s s , p e r m i t , d i s -

charge 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 una u t h o r i z e d m i l i t a r y o r o f f i c i a l p a s s , p e r m i t , d i s -

charge certificate, or identification card, with the

intent to defraud or deceive. Article 134—same off e n s e s , e x c e p t w i t h o u t t h e i n t e n t t o d e f r a u d o r

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 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 20 , wrongf u l l y a n d f a l s e l y ( m a k e ) ( f o r g e ) ( a l t e r

b y ) ( c o u n t e r f e i t ) ( t a m p e r w i t h

by ) (a certain instrument purporting to

be) (a) (an) (another’s) (naval) (military) (official)

(pass) (permit) (discharge certificate) (identification

IV-124

¶76.f.
c a r d ) ( ) i n w o r d s a n d f i g u r e s a s

follows: .

(2) Wrongful sale, gift, loan, or disposition of a

military or official pass, permit, discharge certificate, or identification card.

In that (personal jurisdiction data),

did, (at/on board—location) (subject-matter jurisdict i o n d a t a , i f r e q u i r e d ) , o n o r

a b o u t 2 0 , w r o n g f u l l y ( s e l l

t o ) ( g i v e t o ) ( l o a n

to ) (dispose of by ) (a certain instrument purporting to be) (a) (an) (another’s)

(naval) (military) (official) (pass) (permit)(discharge

c e r t i f i c a t e ) ( i d e n t i f i c a t i o n c a r d ) ( ) i n

words and figures as follows: , he/

s h e , t h e s a i d , t h e n w e l l k n o w i n g t h e

same to be (false) (unauthorized).

(3) Wrongful use or possession of a false or una u t h o r i z e d m i l i t a r y o r o f f i c i a l p a s s , p e r m i t , d i s -

charge certificate, or identification card.

In that (personal jurisdiction data),

did (at/on board—location) (subject-matter jurisdict i o n d a t a , i f r e q u i r e d ) , o n o r

a b o u t 2 0 ,

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)

( ) , h e / s h e , t h e

said , then well knowing the same to be

(false) (unauthorized).

78. Article 134—(False pretenses, obtaining

services under)

a. Text of statute. 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 off e n s e s o f l a r c e n y a n d w r o n g f u l a p p r o p r i a t i o n b y

false pretenses, except that the object of the obtaini n g i s s e r v i c e s ( f o r e x a m p l e , t e l e p h o n e s e r v i c e )

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 $500.00 or less. Bad-conduct

discharge, forfeiture of all pay and allowances, and

confinement for 6 months.

(2) Of a value of more than $500.00. 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 jurisdict i o n d a t a , i f r e q u i r e d ) , o n o r

about 20 , with intent to defraud,

f a l s e l y p r e t e n d

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 of statute. 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 authority to do so;

(4) That upon this oath or equivalent the accused

made or subscribed a certain statement;

(5) That the statement was false;

( 6 ) T h a t t h e a c c u s e d d i d n o t t h e n b e l i e v e t h e

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 makIV-125

¶79.c.(1)
ing 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(1),

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 III (Military Rules of Evidence) concerning

proof of the signatures of persons authorized to adm i n i s t e r o a t h s . A n o a t h i n c l u d e s a n a f f i r m a t i o n

when authorized in lieu of an oath.

d. Lesser included offense. Article 80—attempts

e . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e ,

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 jurisdict i o n d a t a , i f r e q u i r e d ) , o n o r

a b o u t 2 0 , ( i n a n a f f i d a v i t )

(in ), wrongfully and unlawfully (make)

(subscribe) under lawful (oath) (affirmation) a false

s t a t e m e n t i n s u b s t a n c e a s f o l l o w s : ,

which statement he/she did not then believe to be

true.

80. Article 134—(Firearm, discharging—

through negligence)

a. Text of statute. 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 specification.

In that (personal jurisdiction data),

did, (at/on board—location) (subject-matter jurisdict i o n d a t a , i f r e q u i r e d ) , o n o r

a b o u t 2 0 , t h r o u g h n e g l i g e n c e ,

d i s c h a r g e a ( s e r v i c e r i f l e ) ( ) i n t h e

( s q u a d r o n ) ( t e n t ) ( b a r r a c k s ) ( )

of .

81. Article 134—(Firearm, discharging—

willfully, under such circumstances as to

endanger human life)

a. Text of statute. 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 ) A r t i c l e 1 3 4 — f i r e a r m , d i s c h a r g i n g — t h r o u g h

negligence

(2) Article 80—attempts

e . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e ,

forfeiture of all pay and allowances, and confinement for 1 year.

f. Sample specification.

In that (personal jurisdiction data),

did, (at/on board—location) (subject-matter jurisdict i o n d a t a , i f r e q u i r e d ) , o n o r

a b o u t 2 0 , w r o n g f u l l y a n d w i l l -

f u l l y d i s c h a r g e a f i r e a r m , t o

w i t : , ( i n t h e m e s s h a l l

o f ) ( ) , u n d e r c i r c u m s t a n c e s

such as to endanger human life.

IV-126

¶79.c.(1)
82. Article 134—(Fleeing scene of accident)

a. Text of statute. See paragraph 60.

b. Elements.

(1) Driver.

( a ) T h a t t h e a c c u s e d w a s t h e d r i v e r o f a

vehicle;

(b) That while the accused was driving the vehicle was involved in an accident;

(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 prope r t y o t h e r t h a n t h e d r i v e r ’ s v e h i c l e o r i n j u r y t o

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 . M a x i m u m p u n i s h m e n t . B a d - c o n d u c t d i s c h a r g e ,

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

f. Sample specification.

In that (personal jurisdiction data),

(the driver of) (a passenger in*) (the senior

o f f i c e r / n o n c o m m i s s i o n e d o f f i c e r i n )

( in) a vehicle at the time of an accident

i n w h i c h s a i d v e h i c l e w a s i n v o l v e d , a n d h a v i n g

knowledge of said accident, did, at (-

subject-matter jurisdiction data, if required), on or

a b o u t 2 0 ( w r o n g f u l l y l e a v e )

(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 his/her (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 of statute. 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 violaIV-127

¶83.c.(1)
tion of the custom of the armed forces against fratern i z a t i o n . N o t a l l c o n t a c t o r a s s o c i a t i o n b e t w e e n

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 be 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 specification.

In that (personal jurisdiction data),

d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r

a b o u t , 2 0 , k n o w i n g l y f r a t e r n i z e

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 of statute. See paragraph 60.

b. Elements.

( 1 ) T h a t t h e a c c u s e d g a m b l e d w i t h a c e r t a i n

servicemember;

( 2 ) T h a t t h e a c c u s e d w a s t h e n a n o n c o m m i s -

sioned 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.

I n t h a t ( p e r s o n a l j u -

risdiction data), did (at/on board—location) (subjectm a t t e r j u r i s d i c t i o n d a t a , i f r e q u i r e d ) , o n o r

a b o u t 2 0 , g a m b l e

w i t h , t h e n k n o w i n g t h a t t h e s a i d -

w a s n o t a n o n c o m m i s s i o n e d o r

p e t t y o f f i c e r a n d w a s s u b o r d i n a t e t o t h e

said .

85. Article 134—(Homicide, negligent)

a. Text of statute. 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

IV-128

¶83.c.(1)
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 . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e ,

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 20 , unl a w f u l l y k i l l , ( b y n e g l i g e n t l y t h e

said (in) (on) the with a ) (by driving a (motor vehicle) ( ) against the said

in a negligent manner) ( ).

86. Article 134—(Impersonating a

commissioned, warrant, noncommissioned,

or petty officer, or an agent or official)

a. Text of statute. See paragraph 60.

b. Elements.

( 1 ) T h a t t h e a c c u s e d i m p e r s o n a t e d a c o m m i s -

sioned, 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 ) T h a t t h e i m p e r s o n a t i o n w a s w r o n g f u l a n d

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 ) N a t u r e o f o f f e n s e . I m p e r s o n a t i o n d o e s n o t

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 ) W i t h i n t e n t t o d e f r a u d . D i s h o n o r a b l e d i s -

charge, 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,

(at/on board—location) (subject-matter jurisdiction

data, if required), on or about 20 , 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 ) by

(publicly wearing the uniform and insignia of rank

of a (lieutenant of the ) ( )) (showing the

c r e d e n t i a l s o f ) ( ) ( w i t h i n t e n t t o d e -

fraud by *) (and (exercised) (asserted)

the authority of by **).

(*See subsection b note 1.)

(**See subsection b note 2.)

87. Deleted – see Appendix 27.

88. Deleted – see Appendix 27.

89. Article 134—(Indecent language)

a. Text of statute. 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

IV-129

¶89.b.(3)
discipline in the armed forces or was of a nature to

bring discredit upon the armed forces.

[Note: In appropriate 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. Language is indecent if it tends reas o n a b l y t o c o r r u p t m o r a l s o r i n c i t e l i b i d i n o u s

t h o u g h t s . T h e l a n g u a g e m u s t v i o l a t e c o m m u n i t y

standards. See paragraph 45 if the communication

was made in the physical presence of a child.

d. Lesser included offenses.

(1) Article 117—provoking speeches

(2) Article 80—attempts

e . M a x i m u m p u n i s h m e n t . I n d e c e n t o r i n s u l t i n g

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 jurisdict i o n d a t a , i f r e q u i r e d ) , o n o r

a b o u t 2 0 , ( o r a l l y ) ( i n w r i t i n g )

communicate to , (a child under the age

o f 1 6 y e a r s ) , c e r t a i n i n d e c e n t l a n g u a g e , t o

wit: .

90. Deleted – see Appendix 27.

91. Article 134—(Jumping from vessel into

the water)

a. Text of statute. 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 . M a x i m u m p u n i s h m e n t . B a d - c o n d u c t d i s c h a r g e ,

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

f. Sample specification.

In that (personal jurisdiction data),

d i d , o n b o a r d , a t ( l o c a t i o n ) , o n o r

about 20 , wrongfully and intentionally jump from , a vessel in use

by the armed forces, into the (sea) (lake) (river).

92. Article 134—(Kidnapping)

a. Text of statute. See paragraph 60.

b. Elements.

(1) That the accused seized, confined, inveigled,

decoyed, or carried away a certain person;

( 2 ) T h a t t h e a c c u s e d t h e n h e l d s u c h p e r s o n

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 car 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 ) H e l d . “ H e l d ” m e a n s d e t a i n e d . T h e h o l d i n g

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,

IV-130

¶89.b.(3)
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

t h e k i d n a p p i n g w a s f o r r a n s o m , h o w e v e r . S e e

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 the 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 . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e ,

forfeiture of all pay and allowances, and confinement for life without eligibility for parole.

f. Sample specification.

In that , (personal jurisdiction data), did, (at/on board—location) (subject-matter jur i s d i c t i o n d a t a , i f r e q u i r e d ) , o n o r

a b o u t 2 0 , w i l l f u l l y a n d w r o n g -

f u l l y ( s e i z e ) ( c o n f i n e ) ( i n v e i g l e ) ( d e c o y ) ( c a r r y

away) and hold (a minor whose parent

or legal guardian the accused was not) (a person not

a minor) against his/her will.

93. Article 134—(Mail: taking, opening,

secreting, destroying, or stealing)

a. Text of statute. 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 ) T h a t t h e a c c u s e d o p e n e d , s e c r e t e d ,

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

a g e n c y t h e r e o f i n c l u d i n g t h e a r m e d f o r c e s . T h e

value of the mail matter is not an element. See

paragraph 46c(1) concerning “steal.”

d. Lesser included offenses.

(1) Article 121—larceny; wrongful appropriation

(2) Article 80—attempts

e . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e ,

forfeiture of all pay and allowances, and confinement for 5 years.

f. Sample specifications.

IV-131

¶93.f.
(1) Taking.

In that (personal jurisdiction data),

did, (at/on board—location) (subject-matter jurisdict i o n d a t a , i f r e q u i r e d ) , o n o r

a b o u t 2 0 ,

wrongfully take certain mail matter, to wit: (a) (lett e r ( s ) ) ( p o s t a l c a r d ( s ) ) ( p a c k a g e ( s ) ) , a d d r e s s e d

to , (out of the ( Post

O f f i c e ) ( o r d e r l y r o o m

o f ) ( u n i t m a i l b o x o f

) ( ) )

( f r o m ) b e f o r e ( i t ) ( t h e y )

(was) (were) (delivered) (actually received) (to) (by)

the (addressee) with intent to (obstruct the corres p o n d e n c e ) ( p r y i n t o t h e ( b u s i n e s s ) ( s e c r e t s ) )

of .

(2) Opening, secreting, destroying, or stealing.

In that (personal jurisdiction data),

did, (at/on board—location) (subject-matter jurisdict i o n d a t a , i f r e q u i r e d ) , o n o r

about 20 , (wrongfully (open) (secret) (destroy)) (steal) certain mail matter, to wit: (a)

( l e t t e r ( s ) ) ( p o s t a l c a r d ( s ) ) ( p a c k a g e ( s ) ) a d d r e s s e d

t o , w h i c h s a i d ( l e t t e r ( s ) )

( ) ( w a s ) ( w e r e ) t h e n ( i n

t h e 

f i c e ) ( o r d e r l y r o o m

o f ) ( u n i t m a i l b o x

o f ) ( c u s t o d y o f )

( ) ) ( h a d p r e v i o u s l y b e e n c o m m i t t e d

t o , ( a r e p r e s e n t a t i v e o f , )

(an official agency for the transmission of communications)) before said (letter(s)) ( ) (was)

(were) (delivered) (actually received) (to) (by) the

(addressee).

94. Article 134—(Mails: depositing or

causing to be deposited obscene matters in)

a. Text of statute. 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 ) T h a t t h e a c t w a s d o n e w r o n g f u l l y a n d

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 . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e ,

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 jurisdict i o n d a t a , i f r e q u i r e d ) , o n o r

about 20 , wrongfully and knowingly (deposit) (cause to be deposited) in the (United

States) ( ) mails, for mailing and delivery

a ( l e t t e r ) ( p i c t u r e ) ( ) ( c o n t a i n i n g )

(portraying) (suggesting) ( ) certain obscene matters, to wit: .

95. Article 134—(Misprision of serious

offense)

a. Text of statute. 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.

IV-132

¶93.f.(1)
(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

p o s i t i v e a c t o f c o n c e a l m e n t d o e s n o t m a k e o n e

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 . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e ,

forfeiture of all pay and allowances, and confinement for 3 years.

f. Sample specification.

In that (personal jurisdiction data),

h a v i n g k n o w l e d g e t h a t h a d a c t u a l l y

c o m m i t t e d a s e r i o u s o f f e n s e t o w i t : ( t h e m u r d e r

o f ) ( ) , d i d , ( a t / o n

board—location) (subject-matter jurisdiction data, if

r e q u i r e d f r o m a b o u t 2 0 , t o

a b o u t 2 0 , w r o n g f u l l y c o n c e a l

s u c h s e r i o u s o f f e n s e b y a n d f a i l t o

make the same known to the civil or military authorities as soon as possible.

96. Article 134—(Obstructing justice)

a. Text of statute. 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

p r o c e e d i n g s ” i n c l u d e s n o n j u d i c i a l p u n i s h m e n t

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 . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e ,

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 jurisdict i o n d a t a , i f r e q u i r e d ) , o n o r

a b o u t 2 0 , w r o n g f u l l y ( e n d e a v o r

to) (impede (a trial by court-martial) (an investigat i o n ) ( ) ) [ i n f l u e n c e t h e a c t i o n s

of , (a trial counsel of the courtmartial) (a defense counsel of the court-martial) (an

o f f i c e r r e s p o n s i b l e f o r m a k i n g a r e c o m m e n d a t i o n

c o n c e r n i n g d i s p o s i t i o n o f c h a r g e s ) ( ) ]

[(influence) (alter) the testimony of as

a witness before a (court-martial) (an investigating

o f f i c e r ) ( ) ] i n t h e c a s e

of by [(promising) (offering) (giving)

to the said , (the sum of $ )

( , o f a v a l u e o f a b o u t $ ) ]

[ c o m m u n i c a t i n g t o t h e s a i d a t h r e a t

to ] [ ], (if) (unless) he/

she, the said , would [recommend dism i s s a l o f t h e c h a r g e s a g a i n s t s a i d ]

[(wrongfully refuse to testify) (testify falsely conc e r n i n g ) ( ) ] [ ( a t s u c h

t r i a l ) ( b e f o r e s u c h i n v e s t i g a t i n g o f f i c e r ) ]

[ ].

96a. Art 134 (Wrongful interference with an

adverse administrative proceeding)

a. Text of statute. 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 cerIV-133

¶96a.b.(2)
tain person against whom the accused had reason to

believe there was or would be an adverse administrative proceeding pending;

(3) That the act was done with the intent to influence, impede, or obstruct the conduct of such administrative proceeding, or otherwise obstruct the

due administration of justice;

(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. For purposes of this paragraph “adverse administrative proceeding” includes any administrative proceeding or action, initiated against a

servicemember, that could lead to discharge, loss of

special or incentive pay, administrative reduction in

grade, loss of a security clearance, bar to reenlistment, or reclassification. Examples of wrongful int e r f e r e n c e i n c l u d e w r o n g f u l l y i n f l u e n c i n g ,

intimidating, impeding, or injuring a witness, an investigator, or other person acting on an adverse adm i n i s t r a t i v e a c t i o n ; b y m e a n s o f b r i b e r y ,

intimidation, misrepresentation, or force or threat of

force delaying or preventing communication of information relating to such administrative proceeding;

and, the wrongful destruction or concealment of inf o r m a t i o n r e l e v a n t t o s u c h a d v e r s e a d m i n i s t r a t i v e

proceeding.

d. Lesser included offenses. None.

e . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e ,

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 20 ,

(wrongfully endeavor to) [impede (an adverse adm i n i s t r a t i v e p r o c e e d i n g ) ( a n i n v e s t i g a t i o n )

( )] [influence the actions of ,

(an officer responsible for making a recommendation concerning the adverse administrative action)(an

individual responsible for making a decision concerning an adverse administrative proceeding) (an

individual responsible for processing an adverse adm i n i s t r a t i v e p r o c e e d i n g ) ( ) ]

[ ( i n f l u e n c e ) ( a l t e r ) t h e t e s t i m o n y o f a

witness before (a board established to consider an

administrative proceeding or elimination) (an invest i g a t i n g o f f i c e r ) ( ) ] i n t h e c a s e

of , by ](promising) (offering) (giving)

to the said , (the sum of $ )

( , o f a v a l u e o f a b o u t $ ) ]

[ c o m m u n i c a t i n g t o t h e s a i d a t h r e a t

t o ] [ ] , ( i f ) ( u n l e s s ) t h e

said , would [recommend dismissal

of the action against said ] [(wrongfully

r e f u s e t o t e s t i f y ) ( t e s t i f y f a l s e l y c o n c e r n -

ing ) ( )] [(at such administ r a t i v e p r o c e e d i n g ) ( b e f o r e s u c h i n v e s t i g a t i n g

o f f i c e r ) ( b e f o r e s u c h a d m i n i s t r a t i v e b o a r d ) ]

[ ].

97. Article 134—(Pandering and prostitution)

a. Text of statute. See paragraph 60.

b. Elements.

(1) Prostitution.

( a ) T h a t t h e a c c u s e d h a d s e x u a l i n t e r c o u r s e

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) Patronizing a prostitute.

( a ) T h a t t h e a c c u s e d h a d s e x u a l i n t e r c o u r s e

with another person not the accused’s spouse;

(b) That the accused compelled, induced, enticed, or procured such person to engage in an act of

sexual intercourse in exchange for money or other

compensation; and

(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.

(3) Pandering by inducing, enticing, or procuring

act of prostitution.

(a) That the accused 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 inducing, enticing, or procuring

was wrongful;

(c) That, under the circumstances, the conduct

of the accused was to the prejudice of good order

IV-134

¶96a.b.(2)
and discipline in the armed forces or was of a nature

to bring discredit upon the armed forces.

(4) 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. Maximum punishment.

(1) Prostitution and patronizing a prostitute. 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 specifications.

(1) Prostitution.

In that (personal jurisdiction data),

did, (at/on board-location) (subject-matter jurisdiction data, if required), on or about 20 ,

wrongfully engage in (an act) (acts) of sexual intercourse with , a person not his/her

s p o u s e , f o r t h e p u r p o s e o f r e c e i v i n g ( m o n e y )

( ).

(2) Patronizing a prostitute.

In that (personal jurisdiction data),

did, (at/on board location) (subject-matter jurisdiction data, if required), on or about 20 ,

w r o n g f u l l y ( c o m p e l ) ( i n d u c e ) ( e n t i c e ) ( p r o -

cure) , a person not his/her spouse, to engage

in (an act) (acts) of sexual intercourse with the accused in exchange for (money) ( ).

(3) Inducing, enticing, or procuring act of prostitution.

In that (personal jurisdiction data),

did (at/on board-location) (subject-matter jurisdiction

d a t a , i f r e q u i r e d ) , o n o r a b o u t 2 0 ,

w r o n g f u l l y ( i n d u c e ) ( e n t i c e ) ( p r o c u r e ) t o e n -

gage in (an act)(acts) of (sexual intercourse for hire

and reward) with persons to be directed to him/her

by the said .

(4) Arranging, or receiving consideration for arranging for sexual intercourse or sodomy.

In that (personal jurisdiction data),

did, (at/on board-location) (subject-matter jurisdiction data, if required), on or about 20 ,

wrongfully (arrange for) (receive valuable considerat i o n , t o w i t : o n a c c o u n t o f a r r a n g i n g f o r -

) t o e n g a g e i n ( a n a c t ) ( a c t s ) o f ( s e x u a l

intercourse) (sodomy) with .

97a. Article 134—(Parole, Violation of)

a. Text of statute. See paragraph 60.

b. Elements.

(1) That the accused was a prisoner as the result

o f a c o u r t - m a r t i a l c o n v i c t i o n o r o t h e r c r i m i n a l

proceeding;

(2) That the accused was on parole;

(3) That there were certain conditions of parole

that the parolee was bound to obey;

(4) That the accused violated the conditions of

parole by doing an act or failing to do an act; 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” refers only to those in confinement

resulting from conviction at a court-martial or other

criminal proceeding.

(2) ’Parole’ is defined as “word of honor.” A

prisoner on parole, or parolee, has agreed to adhere

to a parole plan and conditions of parole. A “parole

plan” is a written or oral agreement made by the

prisoner prior to parole to do or refrain from doing

certain acts or activities. A parole plan may include

a r e s i d e n c e r e q u i r e m e n t s t a t i n g w h e r e a n d w i t h

whom a parolee will live, and a requirement that the

prisoner have an offer of guaranteed employment.

“Conditions of parole” include the parole plan and

other reasonable and appropriate conditions of paIV-135

¶97a.c.(2)
role, such as paying restitution, beginning or continuing treatment for alcohol or drug abuse, or paying a

fine ordered executed as part of the prisoner’s courtm a r t i a l s e n t e n c e . I n r e t u r n f o r g i v i n g h i s o r h e r

“word of honor” to abide by a parole plan and conditions of parole, the prisoner is granted parole.

d. Lesser included offense. Article 80—attempts

e . M a x i m u m p u n i s h m e n t . B a d - c o n d u c t d i s c h a r g e ,

confinement for 6 months, and forfeiture of twothirds pay per month for 6 months.

f. Sample specifications.

I n t h a t ( p e r s o n a l j u r i s d i c t i o n

data), a prisoner on parole, did, (at/on board—location), on or about 20 ,

v i o l a t e t h e c o n d i t i o n s o f h i s / h e r p a r o l e

by .

98. Article 134—(Perjury: subornation of)

a. Text of statute. 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 . E x p l a n a t i o n . S e e p a r a g r a p h 5 7 c f o r a p p l i c a b l e

principles. “Induce and procure” means to influence,

persuade, or cause.

d. Lesser included offense. Article 80—attempts

e . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e ,

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 jurisdict i o n d a t a , i f r e q u i r e d ) , o n o r

a b o u t 2 0 ,

procure to commit perjury by inducing

h i m / h e r , t h e s a i d , t o t a k e a l a w f u l

( o a t h ) ( a f f i r m a t i o n ) i n a ( t r i a l b y c o u r t - m a r t i a l

of ) (trial by a court of comp e t e n t j u r i s d i c t i o n , t o

w i t : o f )

( d e p o s i t i o n f o r u s e i n a t r i a l

b y o f )

( ) t h a t h e / s h e , t h e

s a i d , w o u l d ( t e s t i f y ) ( d e p o s e )

( ) t r u l y , a n d t o ( t e s t i f y ) ( d e p o s e )

( ) willfully, corruptly, and contrary to

s u c h ( o a t h ) ( a f f i r m a t i o n ) i n s u b s t a n c e

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 of statute. See paragraph 60.

b. Elements.

(1) That the accused altered, concealed, removed,

mutilated, obliterated, destroyed, or took with the

intent to 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 armed forces.

c . E x p l a n a t i o n . “ P u b l i c r e c o r d s ” i n c l u d e r e c o r d s ,

r e p o r t s , s t a t e m e n t s , o r d a t a c o m p i l a t i o n s , i n a n y

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 offense. Article 80—attempts

e . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e ,

forfeiture of all pay and allowances, and confinement for 3 years.

f. Sample specification.

IV-136

¶97a.c.(2)
In that (personal jurisdiction data),

did, (at/on board—location) (subject-matter jurisdict i o n d a t a , i f r e q u i r e d ) , o n o r

a b o u t 2 0 , w i l l f u l l y a n d u n l a w -

fully ((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 of statute. 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 offenses.

(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 specification.

In that (personal jurisdiction data)

having been placed in medical quarantine by a person authorized to order the accused into medical

q u a r a n t i n e , d i d , ( a t / o n b o a r d — l o c a t i o n ) ( s u b j e c t -

m a t t e r j u r i s d i c t i o n d a t a , i f r e q u i r e d ) , o n o r

about 20 , break said medical quarantine.

100a. Article 134—(Reckless endangerment)

a. Text of statute. See paragraph 60.

b. Elements.

(1) That the accused did engage in conduct;

(2) That the conduct was wrongful and reckless

or wanton;

(3) That the conduct was likely to produce death

or grievous bodily harm to another person; 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) In general. This offense is intended to prohibit and therefore deter reckless or wanton conduct

that wrongfully creates a substantial risk of death or

grievous bodily harm to others.

(2) Wrongfulness. Conduct is wrongful when it is

without legal justification or excuse.

(3) Recklessness. “Reckless” conduct is conduct

that exhibits a culpable disregard of foreseeable consequences to others from the act or omission involved. The accused need not intentionally cause a

resulting harm or know that his conduct is substantially certain to cause that result. The ultimate quest i o n i s w h e t h e r , u n d e r a l l t h e c i r c u m s t a n c e s , t h e

accused’s conduct was of that heedless nature that

made it actually or imminently dangerous to the

rights or safety of others.

( 4 ) W a n t o n n e s s . “ W a n t o n ” i n c l u d e s “ R e c k l e s s ”

but may connote willfulness, or a disregard of probable consequences, and thus describe a more aggravated offense.

(5) Likely to produce. When the natural or probab l e c o n s e q u e n c e o f p a r t i c u l a r c o n d u c t w o u l d b e

death or grievous bodily harm, it may be inferred

that the conduct is “likely” to produce that result.

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

( 6 ) G r i e v o u s b o d i l y h a r m . “ G r i e v o u s b o d i l y

harm” means serious bodily injury. It does not include minor injuries, such as a black eye or a bloody

nose, but does include fractured or dislocated bones,

deep cuts, torn members of the body, serious dama g e t o i n t e r n a l o r g a n s , a n d o t h e r s e r i o u s b o d i l y

injuries.

(7) Death or injury not required. It is not necessary that death or grievous bodily harm be actually

inflicted to prove reckless endangerment.

d. Lesser included offenses. None.

e . M a x i m u m p u n i s h m e n t . B a d - c o n d u c t d i s c h a r g e ,

forfeiture of all pay and allowances, and confinement for 1 year.

IV-137

¶100a.e.
f. Sample specification.

In that (personal jurisdiction data),

did, (at/on board—location) (subject-matter jurisdict i o n d a t a , i f r e q u i r e d ) , o n o r

about 20 , wrongfully and (recklessly) (wantonly) engage in conduct, to wit: (describe conduct), conduct likely to cause death or

grievous bodily harm to .

101. Article 134—(Requesting commission

of an offense)

Paragraph 101 was deleted pursuant to Executive

Order 12708.

102. Article 134—(Restriction, breaking)

a. Text of statute. 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 courtmartial (see R.C.M. 1003( b) (6)), and administrative

restriction in the interest of training, operations, security, or safety.

d. Lesser included offenses. Article 80—attempts

e. Maximum punishment. Confinement for 1 month

and forfeiture of two-thirds pay per month for 1

month.

f. Sample specification.

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 20 , break

said restriction.

103. Article 134—(Seizure: destruction,

removal, or disposal of property to prevent)

a. Text of statute. 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 offense. Article 80—attempts

e . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e ,

forfeiture of all pay and allowances, and confinement for 1 year.

f. Sample specification.

I n t h a t ( p e r s o n a l j u -

risdiction data), did, (at/on board—location) (subject

m a t t e r j u r i s d i c t i o n d a t a , i f r e q u i r e d ) , o n o r

about 20 , with intent to prevent

i t s s e i z u r e , ( d e s t r o y ) ( r e m o v e ) ( d i s p o s e

o f ) , p r o p e r t y w h i c h , a s -

then knew, (a) person(s) authorized to

make searches and seizures were (seizing) (about to

seize) (endeavoring to seize).

103a. Article 134—(Self-injury without intent

to avoid service)

a. Text of statute. See paragraph 60.

b. Elements.

(1) That the accused intentionally inflicted injury

upon himself or herself;

(2) That, under the circumstances, the conduct of

the accused was to the prejudice of good order and

IV-138

¶100a.f.
discipline in the armed forces or was of a nature to

bring discredit upon the armed forces.

[Note: If the offense was committed in time of war

or in a hostile fire pay zone, add the following

element]

(3) That the offense was committed (in time of

war) (in a hostile fire pay zone).

c. Explanation.

(1) Nature of offense. This offense differs from

malingering (see paragraph 40) in that for this offense, the accused need not have harbored a design

to avoid performance of any work, duty, or service

which may properly or normally be expected of one

in the military service. This offense is characterized

by intentional self-injury under such circumstances

as prejudice good order and discipline or discredit

the armed forces. It is not required that the accused

be unable to perform duties, or that the accused

actually be absent from his or her place of duty as a

result of the injury. For example, the accused may

inflict the injury while on leave or pass. The circumstances and extent of injury, however, are relevant to

a determination that the accused’s conduct was prejudicial to good order and discipline, or service-discrediting.

(2) How injury inflicted. The injury may be inflicted by nonviolent as well as by violent means

and may be accomplished by any act or omission

that produces, prolongs, or aggravates a sickness or

disability. Thus, voluntary starvation that results in a

debility is a self-inflicted injury. Similarly, the injury may be inflicted by another at the accused’s

request.

d. Lesser included offense. Article 80—attempts

e. Maximum punishment.

(1) Intentional self-inflicted injury. Dishonorable

discharge, forfeiture of all pay and allowances, and

confinement for 2 years.

(2) Intentional self-inflicted injury in time of war

o r i n a h o s t i l e f i r e p a y z o n e . D i s h o n o r a b l e d i s -

charge, forfeiture of all pay and allowances, and

confinement for 5 years.

f. Sample specification.

In that (personal jurisdiction data),

did, (at/on board—location) (in a hostile fire pay

zone) on or about 20 , (a time of

w a r , ) i n t e n t i o n a l l y i n j u r e h i m s e l f / h e r s e l f

b y ( n a t u r e a n d c i r c u m s t a n c e s o f

injury).

104. Article 134—(Sentinel or lookout:

offenses against or by)

a. Text of statute. See paragraph 60.

b. Elements.

(1) Disrespect to a sentinel or lookout.

( a ) T h a t a c e r t a i n p e r s o n w a s a s e n t i n e l o r

lookout;

(b) That the accused knew that said person was

a sentinel or lookout;

(c) That the accused used certain disrespectful

l a n g u a g e o r b e h a v e d i n a c e r t a i n d i s r e s p e c t f u l

manner;

( d ) T h a t s u c h l a n g u a g e o r b e h a v i o r w a s

wrongful;

( e ) T h a t s u c h l a n g u a g e o r b e h a v i o r w a s d i -

rected toward and within the sight or hearing of the

sentinel or lookout;

(f) That 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

o r w h i l e t h e a c c u s e d w a s r e c e i v i n g s p e c i a l p a y

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. § 310).]

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 paraIV-139

¶104.c.(2)(a)
graph 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 lag 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 special

pay 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),

d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r

a b o u t 2 0 , t h e n k n o w i n g t h a t -

was a sentinel or lookout, (wrongfully

u s e t h e f o l l o w i n g d i s r e s p e c t f u l l a n g u a g e

“ , ” o r w o r d s t o t h a t e f f e c t ,

to ) (wrongfully behave in a disres p e c t f u l m a n n e r t o w a r d ,

by ) a (sentinel) (lookout) in the execution of his/her duty.

(2) Loitering or wrongfully sitting down on post

by a sentinel or lookout.

I n t h a t ( p e r s o n a l j u -

risdiction data), while posted as a (sentinel) (lookout), did, (at/on board—location) (while receiving

special pay under 37 U.S.C. § 310) on or about

2 0 , ( a t i m e o f w a r ) ( l o i t e r )

(wrongfully sit down) on his/her post.

105. Article 134—(Soliciting another to

commit an offense)

a. Text of statute. 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 a nature to

bring discredit upon the armed forces.

c. Explanation. See paragraph 6c. If the offense solicited was actually committed, see also paragraph 1.

d. Lesser included offenses. Article 80 —attempts.

e. Maximum punishment. Any person subject to the

code who is found guilty 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. However, any person subject to the code who is found

guilty of soliciting or advising another person to

commit the offense of espionage (Article 106a) shall

be subject to any punishment, other than death, that

a court-martial may direct.

f. Sample specification.

In that (personal jurisdiction data),

did, (at/on board—location) (subject-matter jurisdict i o n d a t a , i f r e q u i r e d ) , o n o r

a b o u t 2 0 , w r o n g f u l l y ( s o l i c i t )

(advise) (to disobey a general regulat i o n , t o w i t : ) ( t o

s t e a l , o f a v a l u e o f ( a b o u t )

$ , t h e p r o p e r t y

o f ) ( t o ) ,

by .

106. Article 134—(Stolen property:

knowingly receiving, buying, concealing)

a. Text of statute. See paragraph 60.

b. Elements.

IV-140

¶104.c.(2)(a)
(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

principal to the larceny (see paragraph 1), 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 prope r t y w a s s t o l e n i s r e q u i r e d . K n o w l e d g e m a y b e

proved by circumstantial evidence.

( 3 ) W r o n g f u l n e s s . R e c e i v i n g s t o l e n p r o p e r t y i s

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 offense. Article 80—attempts

e . M a x i m u m p u n i s h m e n t . S t o l e n p r o p e r t y , k n o w -

ingly receiving, buying, or concealing.

(1) Of a value of $500.00 or less. Bad-conduct

discharge, forfeiture of all pay and allowances, and

confinement for 6 months.

(2) Of a value of more than $500.00. 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 jurisdict i o n d a t a , i f r e q u i r e d ) , o n o r

a b o u t 2 0 , w r o n g f u l l y ( r e c e i v e )

(buy) (conceal) , of a value of (about)

$ , t h e p r o p e r t y o f , w h i c h

property, as he/she, the said , then knew,

had been stolen.

107. Article 134—(Straggling)

a. Text of statute. See paragraph 60.

b. Elements.

(1) That the accused, while accompanying the accuse’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.

I n t h a t ( p e r s o n a l j u -

r i s d i c t i o n d a t a ) , d i d , a t , o n o r

a b o u t 2 0 , w h i l e a c c o m p a -

nying his/her organization on (a march) (maneuvers)

( ), wrongfully straggle.

108. Article 134—(Testify: wrongful refusal)

a. Text of statute. 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

t h e w i t n e s s d e c l a r e s t h a t t h e w i t n e s s w i l l t e s t i f y

truthfully. See R.C.M. 807; Mil. R. Evid. 603. A

good faith but legally mistaken belief in the right to

r e m a i n s i l e n t d o e s n o t c o n s t i t u t e a d e f e n s e t o a

IV-141

¶108.c.
charge of wrongful to testify. See also Mil. R. Evid.

301 and Section V.

d. Lesser included offenses. None.

e . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e ,

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

o f M i l i t a r y J u s t i c e ) ( o f f i c e r t a k i n g a d e p o s i t i o n )

( ) (of) (for) the United States, of whichw a s ( m i l i t a r y j u d g e ) ( p r e s i d e n t ) ,

( ), (and having been directed by the saidto qualify as a witness) (and having

qualified as a witness and having been directed by

the said to answer the following quest i o n ( s ) p u t t o h i m / h e r a s a w i t n e s s ,

“ ” ) , d i d , ( a t / o n b o a r d — l o c a t i o n ) ,

on or about 20 , wrongfully

r e f u s e ( t o q u a l i f y a s a w i t n e s s ) ( t o a n s w e r s a i d

question(s)).

109. Article 134—(Threat or hoax designed

or intended to cause panic or public fear)

a. Text of statute. See paragraph 60.

b. Elements.

(1) Threat.

( a ) T h a t t h e a c c u s e d c o m m u n i c a t e d c e r t a i n

language;

( b ) T h a t t h e i n f o r m a t i o n c o m m u n i c a t e d

amounted to a threat;

(c) That the harm threatened was to be done by

means of an explosive; weapon of mass destruction;

biological or chemical agent, substance, or weapon;

or hazardous material;

(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) Hoax.

( a ) T h a t t h e a c c u s e d c o m m u n i c a t e d o r c o n -

veyed certain information;

(b) That the information communicated or conveyed concerned an attempt being made or to be

made by means of an explosive; weapon of mass

destruction; biological or chemical agent, substance,

or weapon; or hazardous material, to unlawfully kill,

injure, or intimidate a person or to unlawfully damage or destroy certain property;

(c) That the information communicated or conveyed by the accused was false and that the accused

then knew it to be 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” means an expressed present determination or intent to kill, injure, or intimid a t e a p e r s o n o r t o d a m a g e o r d e s t r o y c e r t a i n

property presently or in the future. Proof that the

accused actually intended to kill, injure, intimidate,

damage, or destroy is not required.

( 2 ) E x p l o s i v e . “ E x p l o s i v e ” m e a n s g u n p o w d e r ,

powders used for blasting, all forms of high explosives, blasting materials, fuses (other than electrical

circuit breakers), detonators, and other detonating

a g e n t s , s m o k e l e s s p o w d e r s , a n y e x p l o s i v e b o m b ,

grenade, missile, or similar device, and any incendiary bomb or grenade, fire bomb, or similar device,

and any other explosive compound, mixture, or similar material.

(3) Weapon of mass destruction. A weapon of

mass destruction means any device, explosive or

otherwise, that is intended, or has the capability, to

cause death or serious bodily injury to a significant

number of people through the release, dissemination,

or impact of: toxic or poisonous chemicals, or their

p r e c u r s o r s ; a d i s e a s e o r g a n i s m ; o r r a d i a t i o n o r

radioactivity.

(4) Biological agent. The term “biological agent”

m e a n s a n y m i c r o - o r g a n i s m ( i n c l u d i n g b a c t e r i a ,

viruses, fungi, rickettsiac, or protozoa), pathogen, or

infectious substance, and any naturally occurring,

b i o e n g i n e e r e d , o r s y n t h e s i z e d c o m p o n e n t o f a n y

such micro-organism, pathogen, or infectious substance, whatever its origin or method of production,

that is capable of causing—

(a) death, disease, or other biological malfunction in a human, an animal, a plant, or another living

organism;

IV-142

¶108.c.
( b ) d e t e r i o r a t i o n o f f o o d , w a t e r , e q u i p m e n t ,

supplies, or materials of any kind; or

(c) deleterious alteration of the environment.

( 5 ) C h e m i c a l a g e n t , s u b s t a n c e , o r w e a p o n . A

chemical agent, substance, or weapon refers to a

toxic chemical and its precursors or a munition or

device, specifically designed to cause death or other

harm through toxic properties of those chemicals

that would be released as a result of the employment

of such munition or device, and any equipment specifically designed for use directly in connection with

the employment of such munitions or devices.

(6) Hazardous material. A substance or material

(including explosive, radioactive material, etiologic

a g e n t , f l a m m a b l e o r c o m b u s t i b l e l i q u i d o r s o l i d ,

poison, oxidizing or corrosive material, and compressed gas, or mixture thereof) or a group or class

of material designated as hazardous by the Secretary

of Transportation.

(7) Malicious. A communication is “malicious” if

t h e a c c u s e d b e l i e v e d t h a t t h e i n f o r m a t i o n w o u l d

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.

d. Lesser included offenses.

(1) Threat.

(a) Article 134—communicating a threat

(b) Article 80—attempts

(c) Article 128—assault

(2) Hoax. Article 80—attempts

e . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e ,

forfeitures of all pay and allowances, and confinement for 10 years.

f. Sample specifications.

(1) Threat.

In that (personal jurisdiction dat a ) d i d , ( a t / o n b o a r d - - l o c a t i o n ) o n o r a b o u t

2 0 , w r o n g f u l l y c o m m u n i c a t e c e r t a i n

i n f o r m a t i o n , t o w i t : , w h i c h l a n g u a g e

constituted a threat to harm a person or property by

means of a(n) [explosive; weapon of mass destruction; biological agent, substance, or weapon; chemic a l a g e n t , s u b s t a n c e , o r w e a p o n ; a n d / o r ( a )

hazardous material(s)].

(2) Hoax.

In that (personal jurisdiction dat a ) d i d , ( a t / o n b o a r d - - l o c a t i o n ) , o n o r a b o u t

2 0 , m a l i c i o u s l y ( c o m m u n i c a t e )

(convey) certain information concerning an attempt

being made or to be made to unlawfully [(kill) (inj u r e ) ( i n t i m i d a t e ) ] [ ( d a m a g e )

(destroy) ] by means of a(n) [explosive;

weapon of mass destruction; biological agent, substance, or weapon; chemical agent, substance, or

w e a p o n ; a n d / o r ( a ) h a z a r d o u s m a t e r i a l ( s ) ] , t o

wit: , which information was false and

which the accused then knew to be false.

110. Article 134—(Threat, communicating)

a. Text of statute. 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) That the 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

i n j u r y t h r e a t e n e d . H o w e v e r , a d e c l a r a t i o n m a d e

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 . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e ,

forfeiture of all pay and allowances, and confinement for 3 years.

f. Sample specification.

In that (personal jurisdiction data), did, (at/on board—location) (subjectm a t t e r j u r i s d i c t i o n d a t a , i f r e q u i r e d ) , o n o r

a b o u t 2 0 , w r o n g f u l l y c o m m u n i -

c a t e t o a t h r e a t ( i n -

j u r e b y )

IV-143

¶110.f.
( a c c u s e o f h a v i n g c o m m i t t e d t h e o f -

fense of ) ( ).

111. Article 134—(Unlawful entry)

a. Text of statute. See paragraph 60.

b. Elements.

(1) That the accused entered the real property of

a n o t h e r o r c e r t a i n p e r s o n a l p r o p e r t y o f a n o t h e r

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 offense. Article 80—attempts

e . M a x i m u m p u n i s h m e n t . B a d - c o n d u c t d i s c h a r g e ,

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 jurisdict i o n d a t a , i f r e q u i r e d ) , o n o r

a b o u t 2 0 , u n l a w f u l l y e n t e r t h e

(dwelling house) (garage) (warehouse) (tent) (veget a b l e g a r d e n ) ( o r c h a r d ) ( s t a t e r o o m ) ( )

of .

112. Article 134—(Weapon: concealed,

carrying)

a. Text of statute. See paragraph 60.

b. Elements.

( 1 ) T h a t t h e a c c u s e d c a r r i e d a c e r t a i n w e a p o n

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 ) O n o r a b o u t . “ O n o r a b o u t ” m e a n s t h e

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 . M a x i m u m p u n i s h m e n t . B a d - c o n d u c t d i s c h a r g e ,

forfeiture of all pay and allowances, and confinement for 1 year.

f. Sample specification.

In that (personal jurisdiction data),

did, (at/on board—location) (subject-matter jurisdict i o n d a t a , i f r e q u i r e d ) , o n o r

about 20 , unlawfully carry on or

about his/her person a concealed weapon, to wit:

a .

113. Article 134—(Wearing unauthorized

insignia, decoration, badge, ribbon, device,

or lapel button)

a. Text of statute. 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

IV-144

¶110.f.
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 . M a x i m u m p u n i s h m e n t . B a d - c o n d u c t d i s c h a r g e ,

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

f. Sample specification.

In that (personal jurisdiction data),

d i d , ( a t / o n b o a r d — l o c a t i o n ) , o n o r

a b o u t 2 0 , w r o n g f u l l y

and without authority wear upon his/her (uniform)

(civilian clothing) (the insignia or 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) ( ).

IV-145

¶113.f.

PART V

NONJUDICIAL 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 1g, but less

serious than trial by court-martial.

c. Purpose. Nonjudicial punishment provides comm a n d e r s w i t h a n e s s e n t i a l a n d p r o m p t m e a n s o f

m a i n t a i n i n g g o o d o r d e r a n d d i s c i p l i n e a n d a l s o

promotes positive behavior changes in servicememb e r s w i t h o u t t h e s t i g m a o f a c o u r t - m a r t i a l

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

o n a n i n d i v i d u a l b a s i s . C o m m a n d e r s c o n s i d e r i n g

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, ord e r s , o r “ g u i d e s ” w h i c h s u g g e s t t o s u b o r d i n a t e

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 ) C o m m a n d e r ’ s s u s p e n s i o n a u t h o r i t y . C o m -

manders 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 off e n s e s u n d e r t h e p u n i t i v e a r t i c l e s ( s e e P a r t I V ) .

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 which the maximum

sentence imposable would not include a dishonorable discharge or confinement for longer than 1 year

i f t r i e d b y g e n e r a l c o u r t - m a r t i a l . T h e d e c i s i o n

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

c o u r t - m a r t i a l f o r t h e s a m e o f f e n s e . S e e R . C . M .

907(b)(2)(D)(iv). However, the accused may 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. 1001(c)(1)(B).

f. Limitations on nonjudicial punishment.

( 1 ) D o u b l e p u n i s h m e n t p r o h i b i t e d . W h e n n o n -

judicial punishment has been imposed for an offense, punishment may not again be imposed for the

same offense under Article 15. But see paragraph 1e

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

a p p r o p r i a t e f o r a p a r t i c u l a r s e r v i c e m e m b e r , a l l

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,

V-1
s h a l l o r d i n a r i l y b e c o n s i d e r e d t o g e t h e r , a n d n o t

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 off e n s e t r i e d b y a S t a t e o r f o r e i g n c o u r t u n l e s s

a u t h o r i z e d b y r e g u l a t i o n s o f t h e S e c r e t a r y

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

c o u n s e l i n g , a d m o n i t i o n s , r e p r i m a n d s , e x h o r t a t i o n s ,

disapprovals, criticisms, censures, reproofs, rebukes,

extra military instruction, and administrative withholding of privileges. See also R.C.M. 306. Admini s t r a t i v e c o r r e c t i v e m e a s u r e s a r e n o t p u n i s h m e n t ,

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. Applicable standards. Unless otherwise provided,

the service regulations and procedures of the service

member shall apply.

i. 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

The following persons may serve as a nonjudicial

punishment authority for the purposes of administering nonjudicial punishment proceedings under this

Part:

a. Commander. As provided by regulations of the

Secretary concerned, a commander may impose nonjudicial punishment upon any military personnel of

t h a t c o m m a n d . “ C o m m a n d e r ” m e a n s a c o m m i s -

sioned or warrant officer who, by virtue of rank and

a s s i g n m e n t , e x e r c i s e s p r i m a r y c o m m a n d a u t h o r i t y

over a military organization or prescribed territorial

area, which under pertinent official directives is recognized as a “command.” “Commander” includes a

commander of a joint command. Subject to subparagraph 1d(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 in” 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, det a c h m e n t , s q u a d r o n , t e a m , a i r g r o u p , o r o t h e r

regularly organized body.

4. Procedure

a. Notice. If, after a preliminary inquiry (see R.C.M.

3 0 3 ) , t h e n o n j u d i c i a l p u n i s h m e n t a u t h o r i t y d e t e r -

m i n e s t h a t d i s p o s i t i o n b y n o n j u d i c i a l p u n i s h m e n t

proceedings is appropriate (see R.C.M. 306: paragraph 1 of this Part), the nonjudicial punishment

authority shall cause the servicemember to be notified. The notice shall include:

(1) a statement that the nonjudicial punishment

V-2

¶1.f.(3)
authority 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 b r i e f s u m m a r y o f t h e i n f o r m a t i o n u p o n

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(1) 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 nonjudicial punishment authority may impose by nonjudicial punishment; a statement that, if trial by court-martial 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 servicemember.

(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

t r i a l b y c o u r t - m a r t i a l ( s e e R . C . M . 3 0 6 ; 3 0 7 ;

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

servicemember 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 court-martial is not applicable, the nonjudicial

punishment authority may proceed under paragraph

4c of this Part.

c. Nonjudicial punishment accepted.

( 1 ) P e r s o n a l a p p e a r a n c e r e q u e s t e d ; p r o c e d u r e .

Before nonjudicial punishment may be imposed, the

servicemember shall be entitled to appear personally

before the nonjudicial punishment authority who offered nonjudicial punishment, except when appeara n c e i s p r e v e n t e d b y t h e u n a v a i l a b i l i t y o f t h e

nonjudicial punishment authority or by extraordinary

c i r c u m s t a n c e s , i n w h i c h c a s e t h e s e r v i c e m e m b e r

shall be entitled to appear before a person designated by the nonjudicial punishment authority 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 nonjudicial punishment authority. If the servicemember

r e q u e s t s p e r s o n a l a p p e a r a n c e , t h e s e r v i c e m e m b e r

shall be entitled to:

( A ) B e i n f o r m e d i n a c c o r d a n c e w i t h A r t i c l e

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

e n t i t l e d t o t r a v e l o r s i m i l a r e x p e n s e s , a n d t h e

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 nonjudicial punishment authority 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 nonjudic i a l p u n i s h m e n t a u t h o r i t y h a s e x a m i n e d i n

connection with the case and on which the nonjudicial punishment authority intends to rely in deciding

whether and how much nonjudicial punishment to

impose;

( E ) P r e s e n t m a t t e r s i n d e f e n s e , e x t e n u a t i o n ,

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 nonjudicial punishment authority determines that the proceeding should be closed for good

V-3

¶4.c.(1)(G)
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 ) P e r s o n a l a p p e a r a n c e w a i v e d ; p r o c e d u r e .

Subject to the approval of the nonjudicial punishment authority, the servicemember may request not

to appear personally under subparagraph 4c(1) of

this Part. If such request is granted, the servicemember may submit written matters for consideration by

the nonjudicial punishment authority before such authority’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 courtmartial.

( 3 ) E v i d e n c e . T h e M i l i t a r y R u l e s o f E v i d e n c e

(Part III), other than with respect to privileges, do

n o t a p p l y a t n o n j u d i c i a l p u n i s h m e n t p r o c e e d i n g s .

Any relevant matter may be considered, after compliance with subparagraphs 4c(1)(C) and (D) of this

Part.

(4) Decision. After considering all relevant matt e r s p r e s e n t e d , i f t h e n o n j u d i c i a l p u n i s h m e n t

authority—

(A) Does not conclude that the servicemember

committed the offenses alleged, the nonjudicial punishment authority shall so inform the member and

terminate the proceedings;

(B) Concludes that the servicemember committed one or more of the offenses alleged, the nonjudicial punishment authority 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

i n q u i r y o r o t h e r i n v e s t i g a t i v e b o d y , i n w h i c h

proceeding the member was accorded the rights of a

party. No additional proceeding under subparagraph

4c(1) 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 . G e n e r a l l i m i t a t i o n s . T h e S e c r e t a r y c o n c e r n e d

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 subject to the limitation of

paragraph 5d of this Part, may be imposed 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, an officer of general or

flag rank in command, or a principal assistant as

defined in paragraph 2c of this Part—

(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 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 nonjudicial punishment authority—

(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;

V-4

¶4.c.(1)(G)
(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;

( v i ) r e s t r i c t i o n t o s p e c i f i e d l i m i t s , w i t h o r

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 or

a principal assistant as defined in paragraph 2c of

this Part—

(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;

( v i ) r e s t r i c t i o n t o s p e c i f i e d l i m i t s , w i t h o r

without suspension from duty, for not more than 60

consecutive days.

c. Nature of punishment.

(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

1g 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 ) R e s t r i c t i o n . R e s t r i c t i o n i s t h e l e a s t s e v e r e

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

geolineartal 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 otherw i s e s p e c i f i e d b y t h e n o n j u d i c i a l p u n i s h m e n t

authority, 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 SecreV-5

¶5.c.(4)
tary 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 orrectional 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

w h e r e t h e p e r s o n s o c o n f i n e d m a y c o m m u n i c a t e

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

p u n i s h m e n t h a s b e e n s p e c i f i c a l l y i m p o s e d . W h e n

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 ) E x t r a d u t i e s . E x t r a d u t i e s i n v o l v e t h e p e r -

formance 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

n o n c o m m i s s i o n e d o f f i c e r s , p e t t y o f f i c e r s , o r a n y

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 offic e r i m p o s i n g t h e r e d u c t i o n o r a n y o f f i c e r

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) Forfeiture 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 to the basic pay of the person or, in the

case of reserve component personnel on inactived u t y , c o m p e n s a t i o n f o r p e r i o d s o f i n a c t i v e - d u t y

training, plus any sea or hardship 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 combination of punishments.

( 1 ) A r r e s t i n q u a r t e r s m a y n o t b e i m p o s e d i n

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. Punishments imposed on reserve component personnel while on inactive-duty training. When a punishment under Article 15 amounting to a deprivation

of liberty (for example, restriction, correctional custody, extra duties, or arrest in quarters) is imposed

on a member of a reserve component during a period of inactive-duty training, the punishment may

be served during one or both of the following:

(1) a normal period of inactive-duty training; or

V-6

¶5.c.(4)
(2) a subsequent period of active duty (not including a period of active duty under Article 2(d)(1),

unless such active duty was approved by the Secretary concerned).

Unserved punishments may be carried over to subseq u e n t p e r i o d s o f i n a c t i v e - d u t y t r a i n i n g o r a c t i v e

duty. A sentence to forfeiture of pay may be collected from active duty and inactive-duty training pay

during subsequent periods of duty.

f. Punishments imposed on reserve component personnel when ordered to active duty for disciplinary

purposes. When a punishment under Article 15 is

imposed on a member of a reserve component during a period of active duty to which the reservist

was ordered pursuant to R.C.M. 204 and which constitutes a deprivation of liberty (for example, restriction, correctional custody, extra duties, or arrest in

quarters), the punishment may be served during any

or all of the following:

(1) that period of active duty to which the reservist was ordered pursuant to Article 2(d), but only

where the order to active duty was approved by the

Secretary concerned;

(2) a subsequent normal period of inactive-duty

training; or

(3) a subsequent period of active duty (not including a period of active duty pursuant to R.C.M.

204 which was not approved by the Secretary concerned).

Unserved punishments may be carried over to subseq u e n t p e r i o d s o f i n a c t i v e - d u t y t r a i n i n g o r a c t i v e

duty. A sentence to forfeiture of pay may be collected from active duty and inactive-duty training pay

during subsequent periods of duty.

g. 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 nonjudicial punishment authority

w h o i m p o s e s n o n j u d i c i a l p u n i s h m e n t , t h e c o m -

mander 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 inv o l v e d a u t o m a t i c a l l y t e r m i n a t e s t h e p e r i o d o f

suspension.

(3) Unless the suspension is sooner vacated, susp e n d e d p o r t i o n s o f t h e p u n i s h m e n t a r e r e m i t t e d ,

without further action, upon the termination of the

period of suspension.

(4) Unless otherwise stated, an action suspending

a p u n i s h m e n t i n c l u d e s a c o n d i t i o n t h a t t h e s e r -

vicemember not violate any punitive article of the

c o d e . T h e n o n j u d i c i a l p u n i s h m e n t a u t h o r i t y m a y

s p e c i f y i n w r i t i n g a d d i t i o n a l c o n d i t i o n s o f t h e

suspension.

(5) A suspension may be vacated by any nonjudicial punishment authority or commander competent

to impose upon the servicemember concerned punishment of the kind and amount involved in the

vacation of suspension. Vacation of suspension may

be based only on a violation of the conditions of

suspension which occurs within 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 is

of the kind set forth in Article 15(e)(1)-(7), the servicemember should, unless impracticable, be given

an opportunity to appear before the officer authorized to vacate suspension of the punishment to prese n t a n y m a t t e r s i n d e f e n s e , e x t e n u a t i o n , o r

mitigation of the violation 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 a violation of a punitive article of

the code 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.

V-7

¶6.b.
The nonjudicial punishment authority who imposes

n o n j u d i c i a l p u n i s h m e n t , t h e c o m m a n d e r w h o i m -

p o s e s n o n j u d i c i a l p u n i s h m e n t , o r a s u c c e s s o r i n

command may, at any time, mitigate any part or

amount of the unexecuted portion of the punishment

imposed. The nonjudicial punishment authority who

i m p o s e s n o n j u d i c i a l p u n i s h m e n t , t h e c o m m a n d e r

who imposes nonjudicial punishment, or a successor

in command 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

t h e o f f i c e r w h o i n i t i a l l y i m p o s e d t h e n o n j u d i c i a l

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 nonjudicial punishment

authority who imposes punishment, 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

t h e p u n i s h m e n t o r a n y p a r t o r a m o u n t t h e r e o f ,

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 nonjudicial punishment authority who imposed punishm e n t , t h e c o m m a n d e r w h o i m p o s e s n o n j u d i c i a l

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 circumstances of the case, the punishment has resulted

in 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

r e a s o n a b l e t i m e i n t h e a b s e n c e o f u n u s u a l

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

w a s s u b m i t t e d , a n d i f t h e s e r v i c e m e m b e r s o r e -

q u e s t s , a n y u n e x e c u t e d p u n i s h m e n t i n v o l v i n g r e -

straint or extra duty shall be stayed until action on

the appeal is taken.

e. Legal review. Before acting on an appeal from

a n y p u n i s h m e n t o f t h e k i n d s e t f o r t h i n A r t i c l e

15(e)(1)-(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 Homeland Security 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

V-8

¶6.b.
o f a n y w r i t t e n m a t t e r c o m p r i s i n g t h e r e c o r d o f

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 of 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

l e g a l r e v i e w , i f a n y , a n d a n y o t h e r a p p r o p r i a t e

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, the commander, or a successor in command,

f o r t h e s a m e o f f e n s e s i n v o l v e d i n t h e o r i g i n a l

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

t h e s u p e r i o r a u t h o r i t y , t h e s e r v i c e m e m b e r u p o n

whom punishment was imposed shall be promptly

notified of the result.

(5) Delegation to principal assistant. If authorized by regulation of the Secretary concerned a sup e r i o r a u t h o r i t y w h o i s a c o m m a n d e r e x e r c i s i n g

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.

V-9

¶8.

APPENDIX 1

CONSTITUTION OF THE UNITED STATES—1787

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 of the United States of

America.

ARTICLE I

Section 1. All legislative Powers herein granted shall be vested

in a Congress of the United States, which shall consist of a

Senate and a House of Representatives.

Section 2. 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. 1 Representative 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 Representative 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 choose three, Massachusetts eight,

Rhode Island and Providence Plantations one, Connecticut five,

New York six, New Jersey four, Pennsylvania eight, Delaware

o n e , M a r y l a n d s i x , V i r g i n i a t e n , N o r t h C a r o l i n a f i v e , S o u t h

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 choose the Speaker and

other officers; and shall have the sole power of Impeachment.

Section 3. 2 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, 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 choose 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 Purpose, they shall be on 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.

Judgement in Cases of Impeachment shall not extend further

than to removal from Office 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.

Section 4. 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

choosing Senators. 3 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 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.

1 This clause has been affected by the 14th and 16th amendments.

2 This section has been affected by the 17th amendment

3 This clause has been affected by the 20th amendment

A1-1
Section 6. 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 is 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 increased 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 become 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 is 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 President

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 Representative 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.

Section 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

S t a t e s ; b u t a l l D u t i e s , I m p o s t s a n d E x c i s e s s h a l l b e u n i f o r m

throughout the United States.

To borrow Money on the credit of the United States; To regul a t e C o m m e r c e w i t h f o r e i g n N a t i o n s , a n d a m o n g t h e s e v e r a l

States, and with the Indian Tribes;

To establish an uniform rule of Naturalization, and uniform

L a w s o n t h e s u b j e c t o f B a n k r u p t c i e s t h r o u g h o u t t h e U n i t e d

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 Offenses 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;

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 States 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

c a r r y i n g i n t o E x e c u t i o n t h e f o r e g o i n g P o w e r s , a n d a l l o t h e r

Powers vested by the Constitution in the Government of the

United States, or in any Department or Officer thereof.

Section 9. 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.

Privilege of the Writ of Habeas Corpus shall not be suspended,

unless when in Cases of Rebellion or Invasion the public Safety

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

a n d A c c o u n t o f t h e R e c e i p t s a n d E x p e n d i t u r e s o f a l l p u b l i c

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,

A1-2

Art. 1, § 5 APPENDIX 1
Emolument, Office, or Title, of any kind whatever, from any

King, Prince, or foreign State.

Section 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 Payment 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; all such Laws shall be subject to the Revision and

Control 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

Section 1. The executive Power shall be vested in a President

of the United States and, together with the Vice President,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 Office of Trust or Profit under the United

States, shall be appointed an Elector. 4 The 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 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 choose by Ballot one of them for

President; and if no Person have a Majority, then from the five

highest on the List the said House shall in like Manner choose the

President. But in choosing the President, 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. 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 choose from

them by Ballot the Vice President.

The Congress may determine the Time of the choosing the

Electors, and the Day on which they shall give their Votes; which

Day shall be the same throughout the United States.

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 President;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 Case of the Removal of the President from Office, or 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 be elected.

The President shall, at stated Times, receive for his Services,a

Compensation, which shall neither be increased nor diminished

during the Period for which he shall have been elected, and he

shall not receive within a 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. ”

Section 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 Offenses 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 Appointm e n t o f s u c h i n f e r i o r O f f i c e r s , a s t h e y t h i n k p r o p e r , i n t h e

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 Session.

Section 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

4 This clause has been affected by the 12th amendment.

A1-3

CONSTITUTION Art. 2, § 3
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.

Section 4. The President, Vice President and all civil Officers

of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high

Crimes and Misdemeanors.

ARTICLE III

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 Behavior, and shall, at stated Times, receive for their

Services a Compensation which shall not be diminished during

their Continuance in Office.

Section 2. The judicial Power shall extend to all Cases, in Law

a n d E q u i t y , a r i s i n g u n d e r t h i s C o n s t i t u t i o n , t h e L a w s o f t h e

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 a Party, the Supreme

C o u r t s h a l l h a v e o r i g i n a l J u r i s d i c t i o n . I n a l l t h e o t h e r C a s e s

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.

Section 3. Treason against the United States shall consist only

in levying War against them, or in adhering 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 Corruption of

Blood, or Forfeiture except during the Life of the Person attained.

ARTICLE IV

Section 1. Full Faith and Credit shall be given in each State to

the public Act, 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.

Section 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

Labor, but shall be delivered up on Claim of the Party to whom

such Service or Labor may be due.

Section 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 Parts 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.

Section 4. The United States shall guarantee to every State in

this Union a Republican Form of Government, 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 House 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, Anything 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

A1-4

Art. 2, § 3 APPENDIX 1
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 of, the Constitution of

the United States of America, Proposed by Congress, and Ratified

by the Legislatures of the Several States Pursuant to the Fifth

Article of the Original Constitution

AMENDMENT I

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 II

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 III

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.

AMENDMENT IV

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

p r i v a t e p r o p e r t y b e t a k e n f o r p u b l i c u s e , w i t h o u t j u s t

compensation.

AMENDMENT VI

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 proce s s f o r o b t a i n i n g w i t n e s s e s i n h i s f a v o r ; a n d t o h a v e t h e

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 VIII

Excessive bail shall not be required, nor excessive fines imposed,

nor cruel and unusual punishment 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 XII

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 President, 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 the 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 a

majority, then, from the persons having the highest numbers, not

exceeding three, on the list of those voted for a President, the

House of Representatives shall choose immediately, by ballot, the

President. But in choosing the President, 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, the Vice-President shall act as President, as in case of 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

A1-5

CONSTITUTION Amdt. XII
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; 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-President of the United States.

AMENDMENT XIII

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

Section 1. 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 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.

Section 3. 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.

Section 4. 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 inc o m e s , f r o m w h a t e v e r s o u r c e d e r i v e d , w i t h o u t a p p o r t i o n m e n t

among the several States and without regard to any census or

enumeration.

AMENDMENT XVII

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 legislatures.

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

appointment 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.

AMENDMENT XVIII

5

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.

Section 3. 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 of the date of the submission hereof to the States by

Congress.

5 This article was replaced by the 21st amendment

A1-6

Amdt. XII APPENDIX 1
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.

Section 2. 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.

Section 3. If, at the time fixed for the beginning of the term of

the President, the President-elect shall have died, the Vice President-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 President, 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.

Section 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 President 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.

Section 6. This article shall be inoperative unless it shall have

been ratified as an amendment to the Constitution by three fourths

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 XXII

Section 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 his

Article becomes operative from holding the office of President or

acting as President during the remainder of such term.

Section 2. This article shall be inoperative unless it shall have

been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years

from the date of its submission to the States by the Congress.

AMENDMENT XXIII

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 President equal to

the whole number of Senators and Representative 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 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.

AMENDMENT XXIV

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 President shall become

President.

Section 2. Whenever there is a vacancy in the office of the

Vice President, the President shall nominate a Vice President who

A1-7

CONSTITUTION Amdt. XXV, § 1
shall take office upon confirmation by a majority vote of both

Houses of Congress.

Section 3. Whenever the President transmits to the President

pro tempore of the Senate and the Speakers 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

d u t i e s s h a l l b e d i s c h a r g e d b y t h e V i c e P r e s i d e n t a s A c t i n g

President.

Section 4. 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 President.

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 principal officers of the executive

department or of such other body as Congress may by law provide, transmit within four days 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. 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

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 President shall continue

to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.

AMENDMENT XXVI

Section 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 the power to enforce this

article by appropriate legislation.

AMENDMENT XXVII

No law, varying the compensation for the services of the Senators

and Representatives, shall take effect, until an election of Representatives shall have intervened.

A1-8

Amdt. XXV, § 1 APPENDIX 1
APPENDIX 2

UNIFORM CODE OF MILITARY JUSTICE

CHAPTER 47. UNIFORM CODE OF MILITARY

JUSTICE

Subchapter Sec. Art.

I. General Provisions . . . . . . . . . . . . . . . . . 801 1

II. Apprehension and Restraint . . . . . . . . . . 807 7

III. Non-Judicial Punishment . . . . . . . . . . . . 815 15

IV. Court-Martial Jurisdiction . . . . . . . . . . . . 816 16

V. Composition of Courts-Martial . . . . . . . 822 22

VI. Pretrial Procedure . . . . . . . . . . . . . . . . . . 830 30

VII. Trial Procedure . . . . . . . . . . . . . . . . . . . . 836 36

VIII. Sentences . . . . . . . . . . . . . . . . . . . . . . . . . 855 55

IX. Post-Trial Procedure and Review of 859 59

Courts-Martial . . . . . . . . . . . . . . . . . . . . .

X. Punitive Articles . . . . . . . . . . . . . . . . . . . 877 77

XI. Miscellaneous Provisions . . . . . . . . . . . . 935 135

XII. Court of Appeals for the Armed Forces 941 141

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.

806a. 6a. Investigations and disposition of matters pertaining to

the fitness of military judges.

§ 801. Art. 1. Definitions

In this chapter—

(1) The term “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

N a v y , t h e G e n e r a l C o u n s e l o f t h e D e p a r t m e n t o f H o m e l a n d

Security.

(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) The term “commanding officer ” includes only commissioned

officers.

(4) The term “officer in charge ” means a member of the Navy,

the Marine Corps, or the Coast Guard designated as such by

appropriate authority.

(5) The term “superior commissioned officer ” means a commissioned officer superior in rank or command.

(6) The term “cadet” means a cadet of the United States Military

Academy, the United States Air Force Academy, or the United

States Coast Guard Academy.

(7) The term “midshipman” means a midshipman of the United

States Naval Academy and any other midshipman on active duty

in the naval service.

(8) The term “military” refers to any or all of the armed forces.

(9) The term “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) The term “military judge” means an official of a general or

special court-martial detailed in accordance with section 826 of

this title (article 26).

(11) The term “law specialist ” means a commissioned officer of

the Coast Guard designated for special duty (law).

(12) The term “legal officer ” means any commissioned officer

of the Navy, Marine Corps, or Coast Guard designated to perform

legal duties for a command.

(13) The term “judge advocate” means—

(A) an officer of the Judge Advocate General’s Corps of the

Army 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.

( 1 4 ) T h e t e r m “ r e c o r d ” , w h e n u s e d i n c o n n e c t i o n w i t h t h e

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.

(15) The term “classified information” means—

(A) any information or material that has been determined by

an official of the United States pursuant to law, an Executive

order, or regulation to require protection against unauthorized

disclosure for reasons of national security, and

(B) any restricted data, as defined in section 11(y) of the

Atomic Energy Act of 1954 (42 U.S.C. 2014(y)).

(16) The term “national security” means the national defense and

foreign relations of the United States.

§ 802. Art. 2. Persons subject to this 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 on inactive-duty

training, but in the case of members of the Army National Guard

of the United States or the Air National Guard of the United

States only when in Federal service.

A2-1
(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 declared war or contingency operation, 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 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

c o n t r o l o f t h e S e c r e t a r y c o n c e r n e d a n d w h i c h i s o u t s i d e t h e

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 competence and minimum age qualifications of sections 504 and 505 of this title at the time of voluntary

submission to military 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.

(d)(1) A member of a reserve component who is not on active

duty and who is made the subject of proceedings under section 81

(article 15) or section 830 (article 30) with respect to an offense

against this chapter may be ordered to active duty involuntarily

for the purpose of

(A) investigation under section 832 of this title (article 32);

(B) trial by court-martial; or

(C) nonjudicial punishment under section 815 of this title

(article 15).

(2) A member of a reserve component may not be ordered to

active duty under paragraph (1) except with respect to an offense

committed while the member was

(A) on active duty; or

(B) on inactive-duty training, but in the case of members

of the Army National Guard of the United States or the Air

National Guard of the United States only when in Federal service.

(3) Authority to order a member to active duty under paragraph

( 1 ) s h a l l b e e x e r c i s e d u n d e r r e g u l a t i o n s p r e s c r i b e d b y t h e

President.

(4) A member may be ordered to active duty under paragraph

(1) only by a person empowered to convene general courts-martial in a regular component of the armed forces.

(5) A member ordered to active duty under paragraph (1), unless the order to active duty was approved by the Secretary

concerned, may not

(A) be sentenced to confinement; or

(B) be required to serve a punishment consisting of any

restriction on liberty during a period other than a period of inactive-duty training or active duty (other than active duty ordered

under paragraph (l)).

(e) The provisions of this section are subject to section 876(d)(2)

of this title (article 76b(d)(2).

§ 803. Art. 3. Jurisdiction to try certain personnel

(a) Subject to section 843 of this title (article 43), a person who

is in a status in which the person is subject to this chapter and

who committed an offense against this chapter while formerly in

a status in which the person was subject to this chapter is not

relieved from amenability to the jurisdiction of this chapter for

that offense by reason of a termination of that person’s former

status.

(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 armed forces for that trial.

Upon conviction of that charge he is subject to trial by courtmartial 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.

(d) A member of a reserve component who is subject to this

chapter is not, by virtue of the termination of a period of active

duty or inactive-duty training, relieved from amenability to the

jurisdiction of this chapter for an offense against this chapter

committed during such period of active duty or inactive-duty

training.

§ 804. Art. 4. Dismissed officer’s right to trial by

court-martial

(a) If any commissioned officer, dismissed by order of the President, 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 courtmartial 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 which he is charged. The court-martial

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§ 802. Art. 2.(a)(4) APPENDIX 2
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 affirmed, 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 President fails to convene a general court-martial within

six months from the preparation of an application for trial under

this article, the Secretary concerned shall substitute for the dismissal order by the President 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 President, 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 President, he has no right to trial under this article.

§ 805. Art. 5. Territorial applicability of this

chapter

This chapter applies in all places.

§ 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.

(d)(1) A judge advocate who is assigned or detailed to perform

the functions of a civil office in the Government of the United

States under section 973(b)(2)(B) of this title may perform such

duties as may be requested by the agency concerned, including

representation of the United States in civil and criminal cases.

(2) The Secretary of Defense, and the Secretary of Homeland

Security with respect to the Coast Guard when it is not operating

as a service in the Navy, shall prescribe regulations providing that

reimbursement may be a condition of assistance by judge advocates assigned or detailed under section 973(b)(2)(B) of this title.

§ 806a. Art. 6a. Investigation and disposition of

matters pertaining to the fitness of military judges

(a) The President shall prescribe procedures for the investigation

and disposition of charges, allegations, or information pertaining

to the fitness of a military judge or military appellate judge to

perform the duties of the judge’s position. To the extent practicable, the procedures shall be uniform for all armed forces.

(b) The President shall transmit a copy of the procedures prescribed pursuant to this section to the Committees on Armed

Services of the Senate and the House of Representatives.

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.

§ 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.

§ 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, 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.

§ 809. Art. 9. Imposition of restraint

(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

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UNIFORM CODE OF MILITARY JUSTICE § 809. Art. 9.(b)
o f h i s c o m m a n d o r s u b j e c t t o h i s a u t h o r i t y i n t o a r r e s t o r

confinement.

(c) A commissioned officer, a warrant officer, or a civilian subject to this chapter or to trial 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. Restraint of persons charged with

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.

§ 811. Art. 11. Reports and receiving of prisoners

(a) No provost marshal, commander or 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.

§ 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.

§ 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.

§ 814. Art. 14. Delivery of offenders to civil

authorities

(a) Under such regulations as the Secretary concerned may prescribe, a member of the armed 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 III. NON-JUDICIAL PUNISHMENT

§ 815. Art. 15. Commanding Officer’s non-judicial

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 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 concerned, 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;

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§ 809. Art. 9.(b) APPENDIX 2
(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;

(F) 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 subordin a t e t o t h e o n e w h o i m p o s e s t h e r e d u c t i o n , b u t a n e n l i s t e d

member in a pay grade above E4 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 punishments authorized under subsection (b)(2)(A)-(G) as the Secretary

concerned 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;

(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 Homeland Security 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.

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UNIFORM CODE OF MILITARY JUSTICE SUBCHAPTER IV.
Sec. Art.

819. 19. Jurisdiction of special courts-martial.

820. 20. Jurisdiction of summary courts-martial.

821. 21. Jurisdiction of courts-martial not exclusive.

§ 816. Art. 16. Courts-martial classified

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, in a

case in which the accused may be sentenced to a penalty of death,

the number of members determined under section 825a of this

title (article 25a); 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 military 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 ) s u m m a r y c o u r t s - m a r t i a l , c o n s i s t i n g o f o n e c o m m i s s i o n e d

officer.

§ 817. Art. 17. Jurisdiction of courts-martial 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.

§ 818. Art. 18. Jurisdiction of general courtsmartial

Subject to section 817 of this title (article 17), general courtsmartial have jurisdiction to try persons subject to this chapter for

any offense made punishable by this chapter and may, under such

limitations as the President 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.

§ 819. Art. 19. Jurisdiction of special courtsmartial

Subject to section 817 of this title (article 17), special courtsmartial have jurisdiction to try persons subject to this chapter for

a n y n o n c a p i t a l o f f e n s e m a d e p u n i s h a b l e b y t h i s c h a p t e r a n d ,

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 one year, 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 one

year. A bad-conduct discharge, confinement for more than six

months, or forfeiture of pay for more than six months 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.

§ 820. Art. 20. Jurisdiction of summary courtsmartial

Subject to section 817 of this title (article 17), summary courtsmartial 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

c o u r t - m a r t i a l a s m a y b e a p p r o p r i a t e . S u m m a r y c o u r t s - m a r t i a l

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.

§ 821. Art. 21. Jurisdiction of courts-martial not

exclusive

T h e p r o v i s i o n s o f t h i s c h a p t e r c o n f e r r i n g j u r i s d i c t i o n u p o n

c o u r t s - m a r t i a l d o n o t d e p r i v e m i l i t a r y c o m m i s s i o n s , p r o v o s t

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.

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SUBCHAPTER IV. APPENDIX 2
SUBCHAPTER V. COMPOSITION OF COURTSMARTIAL

Sec. Art.

822. 22. Who may convene general courts-martial.

823. 23. Who may convene special courts-martial.

824. 24. Who may convene summary courts-martial.

825. 25. Who may serve on courts-martial.

826. 26. Military judge of a general or special courts-martial.

827. 27. Detail of trial counsel and defense counsel.

828. 28. Detail or employment of reporters and interpreters.

829. 29. Absent and additional members.

§ 822. Art. 22. Who may convene general courtsmartial

(a) General courts-martial may be convened by—

(1) the President of the United States;

(2) the Secretary of Defense;

(3) the commanding officer of a unified or specified combatant

command;

(4) the Secretary concerned;

(5) the commanding officer of an Army Group, an Army, an

Army Corps, a division, a separate brigade, or a corresponding

unit of the Army or Marine Corps;

(6) 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;

(7) the commanding officer of an air command, an air force,

an air division, or a separate wing of the Air Force or Marine

Corps;

(8) any other commanding officer designated by the Secretary

concerned; or

(9) 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.

§ 823. Art. 23. Who may convene special courtsmartial

(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 Air Force are on duty;

(3) the commanding officer of a brigade, regiment, detached

battalion, or corresponding unit of the Army;

( 4 ) t h e c o m m a n d i n g o f f i c e r o f a w i n g , g r o u p , o r s e p a r a t e

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

u n i t ; t h e c o m m a n d i n g o f f i c e r o f a n y M a r i n e b a r r a c k s , w i n g ,

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.

§ 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 courtmartial;

(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 courtsmartial 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 orally on the record or 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.

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UNIFORM CODE OF MILITARY JUSTICE § 825. Art. 25.(b)(c)(1)
(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.

(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 Secretary

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.

§ 825a. Art. 25a. Number of members in capital

cases

In a case in which the accused may be sentenced to a penalty

of death, the number of members shall be not less than 12, unless

12 members are not reasonably available because of physical

conditions or military exigencies, in which case the convening

authority shall specify a lesser number of members not less than

five, and the court may be assembled and the trial held with not

less than the number of members so specified. In such a case, the

convening authority shall make a detailed written statement, to be

appended to the record, stating why a greater number of members

were not reasonably available.

§ 826. Art. 26. Military judge of a general or

special court-martial

(a) A military judge shall be detailed to each general courtmartial. 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 courtsmartial 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 m i l i t a r y j u d g e s h a l l b e a c o m m i s s i o n e d o f f i c e r o f t h e

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.

§ 827. Art. 27. Detail of trial 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

may 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 courtmartial—

(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;

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§ 825. Art. 25.(b)(2) APPENDIX 2
(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.

§ 828. Art. 28. Detail 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.

§ 829. Art. 29. Absent and additional 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.

(b) Whenever a general court-martial, other than a general courtmartial 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 courtmartial 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

i n t r o d u c e d b e f o r e t h e m e m b e r s o f t h e c o u r t o r a s t i p u l a t i o n

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

8 16(l)(B) or (2)(C) of this title (article 16(1)(B) or (2)(C)), after

t h e d e t a i l o f a n e w m i l i t a r y j u d g e a s i f n o e v i d e n c e h a d

previously been introduced, unless a verbatim 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.

§ 830. Art. 30. Charges and specifications

(a) Charges and specifications shall be signed by a person subject

to this chapter under oath before a commissioned 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 preferring 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.

§ 831. Art. 31. Compulsory self-incrimination

prohibited

(a) No person subject to this chapter may compel any 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 trial 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.

§ 832. Art. 32. Investigation

(a) No charge or specification may be referred to a general courtmartial 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

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UNIFORM CODE OF MILITARY JUSTICE § 832. Art. 32.(b)
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) If evidence adduced in an investigation under this article

indicates that the accused committed an uncharged offense, the

investigating officer may investigate the subject matter of that

offense without the accused having first been charged with the

offense if the accused—

(1) is present at the investigation;

(2) is informed of the nature of each uncharged offense investigated; and

(3) is afforded the opportunities for representation, cross-examination, and presentation prescribed in subsection (b).

(e) The requirements of this article are binding on all persons

administering this chapter but failure to follow them does not

constitute jurisdictional error.

§ 833. Art. 33. Forwarding 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 court-martial jurisdiction. If that is not

practicable, he shall report in writing to that officer the reasons

for delay.

§ 834. Art. 34. Advice of staff judge advocate and

reference for trial

(a) Before directing the trial of any charge by general courtmartial, 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 courtmartial 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 staff judge 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.

§ 835. Art. 35. Service 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

Sec. Art.

836. 36. President may prescribe rules.

837. 37. Unlawfully influencing action of court.

838. 38. Duties of trial counsel and defense counsel.

839. 39. Sessions.

840. 40. Continuances.

841. 41. Challenges.

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.

850a. 50a. Defense of lack of mental responsibility.

851. 51. Voting and rulings.

852. 52. Number of votes required.

853. 53. Court to announce action.

854. 54. Record of trial.

§ 836. Art. 36. President 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

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§ 832. Art. 32.(b) APPENDIX 2
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.

§ 837. Art. 37. Unlawfully influencing action of

court

(a) No authority convening a general, special, or summary courtmartial, nor any other commanding 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

t h i s c h a p t e r m a y a t t e m p t t o c o e r c e o r , b y a n y u n a u t h o r i z e d

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 judicial 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 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 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.

§ 838. Art. 38. Duties of trial 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 of the 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

i s r e a s o n a b l y a v a i l a b l e ( a s d e t e r m i n e d u n d e r r e g u l a t i o n s p r e -

scribed 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 parag r a p h ( 3 ) ( B ) , a n y m i l i t a r y c o u n s e l d e t a i l e d u n d e r p a r a g r a p h

(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.

( 7 ) T h e S e c r e t a r y c o n c e r n e d s h a l l , b y r e g u l a t i o n , d e f i n e

“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 courtmartial 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.

§ 839. Art. 39. Sessions

(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

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UNIFORM CODE OF MILITARY JUSTICE § 839. Art. 39.(a)
this title (article 35), 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 this chapter, whether or not the

matter is appropriate for later consideration or decision by the

members of the court;

( 3 ) i f p e r m i t t e d b y r e g u l a t i o n s o f t h e S e c r e t a r y c o n c e r n e d ,

holding the arraignment and receiving the pleas of the accused;

and

(b) 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.

Proceedings under subsection (a) 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. These proceedings may be

conducted notwithstanding the number of members of the court

and without regard to section 829 of this title (article 29). If

authorized by regulations of the Secretary concerned, and if at

least one defense counsel is physically in the presence of the

accused, the presence required by this subsection may otherwise

be established by audiovisual technology (such as videoteleconferencing technology).

(c) 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.

§ 840. Art. 40. Continuances

The military judge or a court-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.

§ 841. Art. 41. Challenges

(a)(1) 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.

(2) If exercise of a challenge for cause reduces the court below

the minimum number of members required by section 816 of this

title (article 16), all parties shall (notwithstanding section 829 of

this title (article 29)) either exercise or waive any challenge for

cause then apparent against the remaining members of the court

before additional members are detailed to the court. However,

peremptory challenges shall not be exercised at that time.

(b)(1) Each accused and the trial counsel are entitled initially to

one peremptory challenge of the members of the court. The military judge may not be challenged except for cause.

(2) If exercise of a peremptory challenge reduces the court below the minimum number of members required by section 816 of

this title (article 16), the parties shall (notwithstanding section

829 of this title (article 29)) either exercise or waive any remaining peremptory challenge (not previously waived) against the

remaining members of the court before additional members are

detailed to the court.

(c) Whenever additional members are detailed to the court, and

after any challenges for cause against such additional members

are presented and decided, each accused and the trial counsel are

e n t i t l e d t o o n e p e r e m p t o r y c h a l l e n g e a g a i n s t m e m b e r s n o t

previously subject to peremptory challenge.

(As amended Nov. 5, 1990, Pub.L. 101–510, Div. A, Title V,

§ 541(b)–(d), 104 Stat. 1565.)

§ 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.

(b) Each witness before a court-martial shall be examined on

oath.

§ 843. Art. 43. Statute of limitations

(a) A person charged with absence without leave or missing

movement in time of war, with murder, rape, or rape of a child,

or with any other offense punishable by death, may be tried and

punished at any time without limitation.

(b)(1) Except as otherwise provided in this section (article), a

person charged with an offense is not liable to be tried by courtmartial if the offense was committed more than five years before

the receipt of sworn charges and specifications by an officer

exercising summary court-martial jurisdiction over the command.

(2)(A) A person charged with having committed a child abuse

offense against a child is liable to be tried by court-martial if the

sworn charges and specifications are received during the life of

the child or within five years after the date on which the offense

was committed, whichever provides a longer period, by an officer

exercising summary court-martial jurisdiction with respect to that

person.

(B) In subparagraph (A), the term “child abuse offense”

means an act that involves abuse of a person who has not attained

the age of 16 years and constitutes any of the following offenses:

(i) Any offense in violation of section 920 of this title

(article 120).

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§ 839. Art. 39.(a) APPENDIX 2
(ii) Maiming in violation of section 924 of this title (article 124).

(iii) Sodomy in violation of section 925 of this title (article 125).

(iv) Aggravated assault or assault consummated by a battery in violation of section 928 of this title (article 128).

(v) Kidnapping; indecent assault; assault with intent to

commit murder, voluntary manslaughter, rape, or sodomy, or indecent acts or liberties with a child in violation of section 934 of

this title (article 134).

(C) In subparagraph (A), the term ’child abuse offense’ includes an act that involves abuse of a person who has not attained

the age of 18 years and would constitute an offense under chapter

110 or 117, or under section 1591, of title 18.

(3) A person charged with an offense is not liable to be punished under section 815 of this title (article 15) if the offense was

c o m m i t t e d m o r e t h a n t w o y e a r s b e f o r e t h e i m p o s i t i o n o f

punishment.

(c) Periods in which the accused is absent without authority or

fleeing from justice shall be excluded in computing the period of

limitation prescribed in this section (article).

(d) Periods in which the accused was absent from territory 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

President 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 ) i n v o l v i n g f r a u d o r a t t e m p t e d f r a u d a g a i n s t t h e U n i t e d

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.

(g)(1) If charges or specifications are dismissed as defective or

insufficient for any cause and the period prescribed by the applicable statute of limitations—

(A) has expired; or

(B) will expire within 180 days after the date of dismissal of

the charges and specifications, trial and punishment under new

charges and specifications are not barred by the statute of limitations if the conditions specified in paragraph (2) are met.

(2) The conditions referred to in paragraph (1) are that the new

charges and specifications must—

(A) be received by an officer exercising summary courtmartial jurisdiction over the command within 180 days after the

dismissal of the charges or specifications; and

(B) allege the same acts or omissions that were alleged in

the dismissed charges or specifications (or allege acts or omiss i o n s t h a t w e r e i n c l u d e d i n t h e d i s m i s s e d c h a r g e s o r

specifications).

§ 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.

§ 846. Art. 46. Opportunity to obtain witnesses

and other evidence

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

a n y p a r t o f t h e U n i t e d S t a t e s , o r t h e C o m m o n w e a l t h s a n d

possessions.

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UNIFORM CODE OF MILITARY JUSTICE § 846. Art. 46.
§ 847. Art. 47. Refusal to appear or testify

(a) Any person not subject to this chapter who—

(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;

(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 indictment or information in a United States

district court or in a court of original criminal jurisdiction in any

of the Commonwealths or possessions of the United States, and

jurisdiction is conferred upon those courts for that purpose. Upon

conviction, such a person shall be fined or imprisoned, or both, at

the court’s discretion.

(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.

§ 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.

§ 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

w r i t t e n d e p o s i t i o n s u n l e s s t h e m i l i t a r y j u d g e o r c o u r t - m a r t i a l

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, 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

i n f i r m i t y , i m p r i s o n m e n t , m i l i t a r y n e c e s s i t y , n o n a m e n a b i l i t y t o

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 courtmartial.

§ 850. Art. 50. Admissibility 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.

§ 850a. Art. 50a. Defense of lack of mental

responsibility

(a) It is an affirmative defense in a trial by court-martial that, at

the time of the commission of the acts constituting the offense,

the accused, as a result of a severe mental disease or defect, was

unable to appreciate the nature and quality or the wrongfulness of

the acts. Mental disease or defect does not otherwise constitute a

defense.

(b) The accused has the burden of proving the defense of lack of

mental responsibility by clear and convincing evidence.

(c) Whenever lack of mental responsibility of the accused with

respect to an offense is properly at issue, the military judge, or

the president of a court-martial without a military judge, shall

instruct the members of the court as to the defense of lack of

mental responsibility under this section and shall charge them to

find the accused—

(1) guilty;

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§ 847. Art. 47. APPENDIX 2
(2) not guilty; or

(3) not guilty only by reason of lack of mental responsibility.

(d) Subsection (c) does not apply to a court-martial composed of

a military judge only. In the case of a court-martial composed of

a military judge only, whenever lack of mental responsibility of

the accused with respect to an offense is properly at issue, the

military judge shall find the accused—

(1) guilty;

(2) not guilty; or

(3) not guilty only by reason of lack of mental responsibility.

(e) Notwithstanding the provisions of section 852 of this title

(article 52), the accused shall be found not guilty only by reason

of lack of mental responsibility if—

(1) a majority of the members of the court-martial present at

the time the vote is taken determines that the defense of lack of

mental responsibility has been established; or

(2) in the case of court-martial composed of a military judge

only, the military judge determines that the defense of lack of

mental responsibility has been established.

§ 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 courtmartial 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 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 a reasonable

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 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 shall determine 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 courtmartial 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.

§ 852. Art. 52. Number of votes required

(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 three-fourths 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.

§ 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

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UNIFORM CODE OF MILITARY JUSTICE § 854. Art. 54.(a)
the same conditions which would impose such a duty on a member under the 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, confinement for more

than six months, or forfeiture of pay for more than six months.

(2) In all other court-martial cases, the record shall contain

such matters as may be prescribed by regulations of the President.

(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.

856a. 56a. Sentence of confinement for life without eligibility

for parole.

857. 57. Effective date of sentences.

857a. 57a. Deferment of sentences.

858. 58. Execution of confinement.

858a. 58a. Sentences: reduction in enlisted grade upon approval.

858b. 58b. Sentences: forfeiture of pay and allowances during

confinement.

§ 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.

§ 856. Art. 56. Maximum limits

The punishment which a court-martial may direct for an offense may not exceed such limits as the President may prescribe

for that offense.

§ 856a. Art. 56a. Sentence of confinement for life

without eligibility for parole

(a) For any offense for which a sentence of confinement for life

may be adjudged, a court-martial may adjudge a sentence of

confinement for life without eligibility for parole.

(b) An accused who is sentenced to confinement for life without

eligibility for parole shall be confined for the remainder of the

accused’s life unless—

(1) the sentence is set aside or otherwise modified as a result

of—

(A) action taken by the convening authority, the Secretary

concerned, or another person authorized to act under section 860

of this title (article 60); or

(B) any other action taken during post-trial procedure and

review under any other provision of subchapter IX;

(2) the sentence is set aside or otherwise modified as a result

of action taken by a Court of Criminal Appeals, the Court of

Appeals for the Armed Forces, or the Supreme Court; or

(3) the accused is pardoned.

§ 857. Art. 57. Effective date of sentences

(a) 

(1) Any forfeiture of pay or allowances or reduction in grade

that is included in a sentence of a court-martial takes effect on the

earlier of—

(A) the date that is 14 days after the date on which the

sentence is adjudged; or

(B) the date on which the sentence is approved by the convening authority.

(2) On application by an accused, the convening authority may

defer a forfeiture of pay or allowances or reduction in grade that

would otherwise become effective under paragraph (1)(A) until

the date on which the sentence is approved by the convening

authority. Such a deferment may be rescinded at any time by the

convening authority.

(3) A forfeiture of pay and allowances shall be applicable to

pay and allowances accruing on and after the date on which the

sentence takes effect.

(4) In this subsection, the term “convening authority ”, with

respect to a sentence of a court-martial, means any person authorized to act on the sentence under section 860 of this title (article

60).

(b) Any period of confinement included in a sentence of a courtmartial begins to run from the date the sentence is adjudged by

the court-martial, 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.

§ 857a. Art. 57a. Deferment of sentences

(a) 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 longer under his jurisdiction, by

the officer exercising general court-martial jurisdiction over the

command to which the accused is currently assigned.

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§ 854. Art. 54.(a) APPENDIX 2
(b) 

(1) In any case in which a court-martial sentences a person

referred to in paragraph (2) to confinement, the convening authority may defer the service of the sentence to confinement, without

the consent of that person, until after the person has been permanently released to the armed forces by a state or foreign country referred to in that paragraph.

(2) Paragraph (1) applies to a person subject to this chapter

who—

(A) While in the custody of a state or foreign country is

temporarily returned by that state or foreign country to the armed

forces for trial by court-martial; and

(B) After the court-martial, is returned to that state or foreign country under the authority of a mutual agreement or treaty,

as the case may be.

(3) In this subsection, the term “state ” means a state of the

United States, the District of Columbia, a territory, or a possession of the United States.

(c) In any case in which a court-martial sentences a person to

confinement and the sentence to confinement has been ordered

executed, but in which review of the case under section 867(a)(2)

of this title (article 67(a)(2)) is pending, the Secretary concerned

may defer further service of sentence to confinement while that

review is pending.

§ 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, 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.

§ 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-1, 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.

§ 858b. Art. 58b. Sentences: forfeiture of pay and

allowances during confinement

(a) 

(1) A court-martial sentence described in paragraph (2) shall

result in the forfeiture of pay, or of pay and allowances, due that

member during any period of confinement or parole. The forfeiture pursuant to this section shall take effect on the date determined under section 857(a) of this title (article 57(a)) and may be

deferred as provided in that section. The pay and allowances

forfeited, in the case of a general court-martial, shall be all pay

and allowances due that member during such period and, in the

case of a special court-martial, shall be two-thirds of all pay due

that member during such period.

(2) A sentence covered by this section is any sentence that

includes—

(A) confinement for more than six months or death; or

(B) confinement for six months or less and a dishonorable

or bad-conduct discharge or dismissal.

(b) In a case involving an accused who has dependents, the

convening authority or other person acting under section 860 of

this title (article 60) may waive any or all of the forfeitures of pay

and allowances required by subsection (a) for a period not to

exceed six months. Any amount of pay or allowances that, except

for a waiver under this subsection, would be forfeited shall be

paid, as the convening authority or other person taking action

directs, to the dependents of the accused.

(c) If the sentence of a member who forfeits pay and allowances

under subsection (a) is set aside or disapproved or, as finally

approved, does not provide for a punishment referred to in subsection (a)(2), the member shall be paid the pay and allowances

which the member would have been paid, except for the forfeiture, for the period which the forfeiture was in effect.

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 Criminal Appeals.

867. 67. Review by the Court of Appeals for the Armed

Forces.

867a. 67a. Review by the Supreme Court.

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.

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UNIFORM CODE OF MILITARY JUSTICE SUBCHAPTER IX.
Sec. Art.

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.

876b. 76b. Lack of mental capacity or mental responsibility:

commitment of accused for examination and treatment.

§ 859. Art. 59. Error of law; lesser included

offense

(a) A finding or sentence of 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.

§ 860. Art. 60. Action by the Convening authority

(a) The findings and sentence of a court-martial shall be reported

promptly to the convening authority after the announcement of

the sentence. Any such submission shall be in writing.

(b)(1) The accused may submit to the convening authority matters for consideration by the convening authority with respect to

the findings and the sentence. Any such submissions shall be in

writing. Except in a summary court-martial case, such a submission shall be made within 10 days after the accused has been

given an authenticated record of trial and, if applicable, the recommendation of the staff judge advocate or legal officer under

subsection (d). In a summary court-martial case, such a submiss i o n s h a l l b e m a d e w i t h i n s e v e n d a y s a f t e r t h e s e n t e n c e i s

announced.

(2) 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 applicable period under paragraph (1) for not more

than an additional 20 days.

( 3 ) I n a s u m m a r y c o u r t - m a r t i a l c a s e , t h e a c c u s e d s h a l l b e

promptly provided a copy of the record of trial for use in preparing a submission authorized by paragraph (1).

(4) The accused may waive his right to make a submission to

the convening authority under paragraph (1). 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. Subject to regulations of the Secretary concerned, such action may be taken only after consideration of any

matters submitted by the accused under subsection (b) 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.

(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 his 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 may submit any matter in

response under subsection (b). 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 a proceeding

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

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SUBCHAPTER IX. APPENDIX 2
rehearing as to the sentence may be ordered if the convening

authority or other person taking action under this subsection disapproves the sentence.

§ 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 10 days 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)).

§ 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 the following (other than an order or

ruling that is, or that amounts to, a finding of not guilty with

respect to the charge or specification):

(A) An order or ruling of the military judge which terminates the proceedings with respect to a charge or specification.

(B) An order or ruling which excludes evidence that is substantial proof of a fact material in the proceeding.

(C) An order or ruling which directs the disclosure of classified information.

(D) An order or ruling which imposes sanctions for nondisclosure of classified information.

(E) A refusal of the military judge to issue a protective order

sought by the United States to prevent the disclosure of classified

information.

(F) A refusal by the military judge to enforce an order

described in subparagraph (E) that has previously been issued by

appropriate authority.

(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 Criminal Appeals and shall, whenever practicable, have priority over all other proceedings before that court. In ruling on an

appeal under this section, the Court of Criminal Appeals may act

o n l y w i t h r e s p e c t t o m a t t e r s o f l a w , n o t w i t h s t a n d i n g s e c t i o n

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.

§ 863. Art. 63. Rehearings

Each rehearing under this chapter shall take place before a

court-martial composed of members not members of the courtmartial 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 approved, 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

w i t h a p r e t r i a l a g r e e m e n t a n d t h e a c c u s e d a t t h e r e h e a r i n g

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 approved sentence as

to those charges or specifications may include any punishment

not in excess of that lawfully adjudged at the first court-martial.

§ 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

a c c u s e r , i n v e s t i g a t i n g o f f i c e r , m e m b e r o f t h e c o u r t , m i l i t a r y

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 ) t h e c o u r t h a d j u r i s d i c t i o n o v e r t h e a c c u s e d a n d t h e

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;

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UNIFORM CODE OF MILITARY JUSTICE § 864. Art. 64.(b)(1)
(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

a matter 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 Judge Advocate

G e n e r a l f o r r e v i e w u n d e r s e c t i o n 8 6 9 ( b ) o f t h i s t i t l e ( a r t i c l e

69(b)).

§ 865. Art. 65. Disposition of 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.

§ 866. Art. 66. Review by Court of Criminal

Appeals

(a) Each Judge Advocate General shall establish a Court of Criminal Appeals 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 (f). 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 Criminal Appeals 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 chief judge one of the appellate military judges of

the Court of Criminal Appeals established by him. The chief

judge shall determinate 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 Criminal Appeals 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 Criminal Appeals 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 Criminal 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.

(e) The Judge Advocate General shall, unless there is to be further action by the President, the Secretary concerned, the Court of

Appeals for the Armed Forces, or the Supreme Court, instruct the

convening authority to take action in accordance with the decision

of the Court of Criminal Appeals. If the Court of Criminal Appeals 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 Criminal Appeals 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 Criminal Appeals.

(g) No member of a Court of Criminal Appeals 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 Criminal Appeals, 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 Criminal Appeals 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 courtmartial before which such trial was conducted, or served as military judge, trial or defense counsel, or reviewing officer of such

trial.

§ 867. Art. 67. Review by the Court of Appeals for

the Armed Forces

(a) The Court of Appeals for the Armed Forces shall review the

record in—

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§ 864. Art. 64.(b)(2) APPENDIX 2
(1) all cases in which the sentence, as affirmed by a Court of

Criminal Appeals, extends to death;

(2) all cases reviewed by a Court of Criminal Appeals which

the Judge Advocate General orders sent to the Court of Appeals

for the Armed Forces for review; and

(3) all cases reviewed by a Court of Criminal Appeals in

which, upon petition of the accused and on good cause shown,

the Court of Appeals for the Armed Forces has granted a review.

(b) The accused may petition the Court of Appeals for the Armed

Forces for review of a decision of a Court of Criminal Appeals

within 60 days from the earlier of—

(1) the date on which the accused is notified of the decision of

the Court of Criminal Appeals; or

(2) the date on which a copy of the decision of the Court of

Criminal Appeals, 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 Appeals for the

Armed Forces shall act upon such a petition promptly in accordance with the rules of the court.

(c) In any case reviewed by it, the Court of Appeals for the

Armed Forces 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 Court of Criminal Appeals.

In a case which the Judge Advocate General orders sent to the

Court of Appeals for the Armed Forces, 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

Appeals for the Armed Forces shall take action only with respect

to matters of law.

(d) If the Court of Appeals for the Armed Forces 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) After it has acted on a case, the Court of Appeals for the

Armed Forces may direct the Judge Advocate General to return

the record to the Court of Criminal Appeals 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.

§ 867a. Art. 67a. Review by the Supreme Court

( a ) D e c i s i o n s o f t h e U n i t e d S t a t e s C o u r t o f A p p e a l s f o r t h e

Armed Forces 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 certiorari under this section

any action of the Court of Appeals for the Armed Forces in

refusing to grant a petition for review.

(b) 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.

§ 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 Criminal Appeals with one or more panels. That Assistant Judge Advocate General and any Court of Criminal Appeals

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 Criminal

Appeals 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. Review 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 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.

(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

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.

(d) A Court of Criminal Appeals may review, under section 866

of this title (article 66)—

(1) any court-martial case which (A) is subject to action by the

Judge Advocate General under this section, and (B) is sent to the

Court of Criminal Appeals by order of the Judge Advocate General; and,

(2) any action taken by the Judge Advocate General under this

section in such case.

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UNIFORM CODE OF MILITARY JUSTICE § 869. Art. 69.(d)(2)
(e) Notwithstanding section 866 of this title (article 66), in any

case reviewed by a Court of Criminal Appeals under this section,

the Court may take action only with respect to matters of law.

§ 870. Art. 70. Appellate counsel

(a) The Judge Advocate General shall detail in his office one or

more commissioned officers as appellate Government counsel,

a n d o n e o r m o r e c o m m i s s i o n e d o f f i c e r s a s a p p e l l a t e d e f e n s e

counsel, who are qualified under section 827(b)(l) of this title

(article 27(b)(l)).

( b ) A p p e l l a t e G o v e r n m e n t c o u n s e l s h a l l r e p r e s e n t t h e U n i t e d

States before the Court of Criminal Appeals or the Court of

Appeals for the Armed Forces 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 Criminal Appeals, the Court of Appeals for the

Armed Forces, 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

Court of Appeals for the Armed Forces.

(d) The accused has the right to be represented before the Court

of Criminal Appeals, the Court of Appeals for the Armed Forces,

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 General directs.

§ 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 providing 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 providing for dismissal may not be executed until

approved by the 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 Assista n t S e c r e t a r y , a s t h e c a s e m a y b e , m a y c o m m u t e , r e m i t , o r

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 badconduct 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 Criminal

Appeals and—

(A) the time for the accused to file a petition for review by

the Court of Appeals for the Armed Forces 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 Appeals for

the Armed Forces; or

(C) review is completed in accordance with the judgment of

the Court of Appeals for the Armed Forces 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 badconduct 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 of 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.

§ 872. Art. 72. Vacation of suspension

(a) Before the vacation of the suspension of a special courtmartial 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.

§ 873. Art. 73. Petition for a new trial

At any time within two years after approval by the convening

authority of a court-martial sentence, the accused may petition the

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§ 869. Art. 69.(e) APPENDIX 2
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 Criminal Appeals or before the Court

of Appeals for the Armed Forces, 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. Remission and suspension

(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. However, in the case of a sentence of confinement for life without

eligibility for parole, after the sentence is ordered executed, the

authority of the Secretary concerned under the preceding sentence

(1) may not be delegated, and (2) may be exercised only after the

service of a period of confinement of not less than 20 years.

(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 President 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 badconduct 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 President alone to such commissioned grade and with

such rank as in the opinion of the President 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.

§ 876. Art. 76. Finality of proceedings, findings,

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 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 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.

§ 876a. Art. 76a. Leave required to be taken

pending review of certain court-martial

convictions

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.

§ 876b. Art. 76b. Lack of mental capacity or

mental responsibility: commitment of accused for

examination and treatment

(a) Persons incompetent to stand trial—

(1) In the case of a person determined under this chapter to be

presently suffering from a mental disease or defect rendering the

person mentally incompetent to the extent that the person is

unable to understand the nature of the proceedings against that

person or to conduct or cooperate intelligently in the defense of

the case, the general court-martial convening authority for that

person shall commit the person to the custody of the Attorney

General.

(2) The Attorney General shall take action in accordance with

section 4241(d) of title 18.

(3) If at the end of the period for hospitalization provided for

in section 4241(d) of title 18, it is determined that the committed

person’s mental condition has not so improved as to permit the

trial to proceed, action shall be taken in accordance with section

4246 of such title.

(4) 

(A) When the director of a facility in which a person is

hospitalized pursuant to paragraph (2) determines that the person

has recovered to such an extent that the person is able to understand the nature of the proceedings against the person and to

conduct or cooperate intelligently in the defense of the case, the

director shall promptly transmit a notification of that determination to the Attorney General and to the general court-martial

convening authority for the person. The director shall send a copy

of the notification to the person’s counsel.

(B) Upon receipt of a notification, the general court-martial

convening authority shall promptly take custody of the person

unless the person covered by the notification is no longer subject

to this chapter. If the person is no longer subject to this chapter,

the Attorney General shall take any action within the authority of

the Attorney General that the Attorney General considers appropriate regarding the person.

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UNIFORM CODE OF MILITARY JUSTICE § 876b. Art. 76b.(a)(4)(B)
(C) The director of the facility may retain custody of the

person for not more than 30 days after transmitting the notifications required by subparagraph (A).

(5) In the application of section 4246 of title 18 to a case

under this subsection, references to the court that ordered the

commitment of a person, and to the clerk of such court, shall be

deemed to refer to the general court-martial convening authority

for that person. However, if the person is no longer subject to this

chapter at a time relevant to the application of such section to the

person, the United States district court for the district where the

person is hospitalized or otherwise may be found shall be considered as the court that ordered the commitment of the person.

( b ) P e r s o n s f o u n d n o t g u i l t y b y r e a s o n o f l a c k o f m e n t a l

responsibility—

(1) If a person is found by a court-martial not guilty only by

reason of lack of mental responsibility, the person shall be committed to a suitable facility until the person is eligible for release

in accordance with this section.

(2) The court-martial shall conduct a hearing on the mental

condition in accordance with subsection (c) of section 4243 of

title 18. Subsections (b) and (d) of that section shall apply with

respect to the hearing.

(3) A report of the results of the hearing shall be made to the

general court-martial convening authority for the person.

(4) If the court-martial fails to find by the standard specified in

subsection (d) of section 4243 of title 18 that the person’s release

would not create a substantial risk of bodily injury to another

person or serious damage of property of another due to a present

mental disease or defect—

(A) the general court-martial convening authority may commit the person to the custody of the Attorney General; and

(B) the Attorney General shall take action in accordance

with subsection (e) of section 4243 of title 18.

(5) Subsections (f), (g), and (h) of section 4243 of title 18 shall

apply in the case of a person hospitalized pursuant to paragraph

(4)(B), except that the United States district court for the district

where the person is hospitalized shall be considered as the court

that ordered the person’s commitment.

(c) General provisions—

(1) Except as otherwise provided in this subsection and subsection (d)(1), the provisions of section 4247 of title 18 apply in

the administration of this section.

(2) In the application of section 4247(d) of title 18 to hearings

conducted by a court-martial under this section or by (or by order

of) a general court-martial convening authority under this section,

the reference in that section to section 3006A of such title does

not apply.

(d) Applicability—

(1) The provisions of chapter 313 of title 18 referred to in this

section apply according to the provisions of this section notwithstanding section 4247(j) of title 18.

(2) If the status of a person as described in section 802 of this

title (article 2) terminates while the person is, pursuant to this

section, in the custody of the Attorney General, hospitalized, or

on conditional release under a prescribed regimen of medical,

psychiatric, or psychological care or treatment, the provisions of

this section establishing requirements and procedures regarding a

person no longer subject to this chapter shall continue to apply to

that person notwithstanding the change of status.

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.

881. 81. Conspiracy.

882. 82. Solicitation.

883. 83. Fraudulent enlistment, appointment, or separation.

884. 84. Unlawful enlistment, appointment, or separation.

885. 85. Desertion.

886. 86. Absence without leave.

887. 87. Missing movement.

888. 88. Contempt toward officials.

889. 89. Disrespect toward superior commissioned officer.

890. 90. Assaulting or willfully disobeying superior commissioned officer.

891. 91. Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer.

892. 92. Failure to obey order or regulation.

893. 93. Cruelty and maltreatment.

894. 94. Mutiny or sedition.

895. 95. Resistance, flight, breach of arrest, and escape.

896. 96. Releasing prisoner without proper authority.

897. 97. Unlawful detention.

898. 98. Noncompliance with procedural rules.

899. 99. Misbehavior before the enemy.

900. 100. Subordinate compelling surrender.

901. 101. Improper use of countersign.

902. 102. Forcing a safeguard.

903. 103. Captured or abandoned property.

904. 104. Aiding the enemy.

905. 105. Misconduct as prisoner.

906. 106. Spies.

906a. 106a. Espionage.

907. 107. False official statements.

908. 108. Military property of United States—Loss, damage,

destruction, or wrongful disposition.

909. 109. Property other than military property of United

States—Waste, spoilage, or destruction.

910. 110. Improper hazarding of vessel.

911. 111. Drunken or reckless operation of a vehicle, aircraft,

or vessel

912. 112. Drunk on duty.

912a. 112a. Wrongful use, possession, etc., of controlled substances.

913. 113. Misbehavior of sentinel.

914. 114. Dueling.

915. 115. Malingering.

916. 116. Riot or breach of peace.

917. 117. Provoking speeches or gestures.

918. 118. Murder.

919. 119. Manslaughter.

920. 120. Rape and carnal knowledge.

921. 121. Larceny and wrongful appropriation.

922. 122. Robbery.

923. 123. Forgery.

923a. 123a. Making, drawing, or uttering check, draft, or order

without sufficient funds.

924. 124. Maiming.

925. 125. Sodomy.

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§ 876b. Art. 76b.(a)(4)(C) APPENDIX 2
Sec. Art.

926. 126. Arson.

927. 127. Extortion.

928. 128. Assault.

929. 129. Burglary.

930. 130. Housebreaking.

931. 131. Perjury.

932. 132. Frauds against the United States.

933. 133. Conduct unbecoming an officer and a gentleman.

934. 134. General article.

§ 877. Art. 77. Principals

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.

§ 878. Art. 78. Accessory after the fact

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 courtmartial may direct.

§ 879. Art. 79. Conviction 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.

§ 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.

(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.

§ 881. Art. 81. Conspiracy

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.

§ 882. Art. 82. Solicitation

(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 courtmartial 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.

§ 883. Art. 83. Fraudulent enlistment,

appointment, or separation

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.

§ 884. Art. 84. Unlawful enlistment, 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.

§ 885. Art. 85. Desertion

(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.

§ 886. Art. 86. Absence without leave

Any member of the armed forces who, without authority—

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UNIFORM CODE OF MILITARY JUSTICE § 886. Art. 86.
( 1 ) f a i l s t o g o t o h i s a p p o i n t e d p l a c e o f d u t y a t t h e t i m e

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.

§ 887. Art. 87. Missing 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.

§ 888. Art. 88. Contempt toward officials

A n y c o m m i s s i o n e d o f f i c e r w h o u s e s c o n t e m p t u o u s w o r d s

against the President, the Vice President, Congress, the Secretary

of Defense, the Secretary of a military department, the Secretary

of Homeland Security, or the Governor or legislature of any State,

Commonwealth, or possession in which he is on duty or present

shall be punished as a court-martial may direct.

§ 889. Art. 89. Disrespect toward superior

commissioned 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.

§ 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.

§ 891. Art. 91. Insubordinate 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.

§ 892. Art. 92. Failure to obey order or regulation

Any person subject to this chapter who—

( 1 ) v i o l a t e s o r f a i l s t o o b e y a n y l a w f u l g e n e r a l o r d e r o r

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.

§ 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.

§ 894. Art. 94. Mutiny or sedition

(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.

§ 895. Art. 95. Resistance, flight, breach of arrest,

and escape

Any person subject to this chapter who—

(1) resists apprehension;

(2) flees from apprehension;

(3) breaks arrest; or

(4) 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.

§ 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 court-martial may direct.

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§ 886. Art. 86.(1) APPENDIX 2
§ 898. Art. 98. Noncompliance with procedural

rules

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.

§ 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 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 courtmartial 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.

§ 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 courtmartial may direct.

§ 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.

§ 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.

§ 904. Art. 104. Aiding 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.

§ 905. Art. 105. Misconduct 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.

§ 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 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.

§ 906a. Art. 106a. Espionage

(a)(1) Any person subject to this chapter who, with intent or

reason to believe that it is to be used to the injury of the United

States or to the advantage of a foreign nation, communicates,

delivers, or transmits, or attempts to communicate, deliver, or

transmit, to any entity described in paragraph (2), either directly

or indirectly, any thing described in paragraph (3) shall be punished as a court-martial may direct, except that if the accused is

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UNIFORM CODE OF MILITARY JUSTICE § 906a. Art. 106a.(a)(1)
found guilty of an offense that directly concerns (A) nuclear

weaponry, military spacecraft or satellites, early warning systems,

or other means of defense or retaliation against large scale attack,

(B) war plans, (C) communications intelligence or cryptolineart

information, or (D) any other major weapons system or major

element of defense strategy, the accused shall be punished by

death or such other punishment as a court-martial may direct.

(2) An entity referred to in paragraph (1) is—

(A) a foreign government;

(B) a faction or party or military or naval force within a

f o r e i g n c o u n t r y , w h e t h e r r e c o g n i z e d o r u n r e c o g n i z e d b y t h e

United States; or

(C) a representative, officer, agent, employee, subject, or

citizen of such a government, faction, party, or force.

(3) A thing referred to in paragraph (1) is a document, writing,

code book, signal book, sketch, photograph, photolineart negative,

blueprint, plan, map, model, note, instrument, appliance, or information relating to the national defense.

(b)(1) No person may be sentenced by court-martial to suffer

death for an offense under this section (article) unless—

(A) the members of the court-martial unanimously find at

least one of the aggravating factors set out in subsection (c); and

(B) the members unanimously determine that any extenuating or mitigating circumstances are substantially outweighed by

any aggravating circumstances, including the aggravating factors

set out under subsection (c).

(2) Findings under this subsection may be based on—

(A) evidence introduced on the issue of guilt or innocence;

(B) evidence introduced during the sentencing proceeding;

or

(C) all such evidence.

(3) The accused shall be given broad latitude to present matters in extenuation and mitigation.

(c) A sentence of death may be adjudged by a court-martial for

an offense under this section (article) only if the members unanimously find, beyond a reasonable doubt, one or more of the

following aggravating factors:

(1) The accused has been convicted of another offense involving espionage or treason for which either a sentence of death or

imprisonment for life was authorized by statute.

(2) In the commission of the offense, the accused knowingly

created a grave risk of substantial damage to the national security.

(3) In the commission of the offense, the accused knowingly

created a grave risk of death to another person.

(4) Any other factor that may be prescribed by the President

by regulations under section 836 of this title (Article 36).

§ 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 courtmartial may direct.

§ 908. Art. 108. Military property of United

States—Loss, damage, destruction, or wrongful

disposition

A n y p e r s o n s u b j e c t t o t h i s c h a p t e r w h o , w i t h o u t p r o p e r

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, sold,

or wrongfully disposed of;

any military property of the United States, shall be punished as a

court-martial may direct.

§ 909. Art. 109. Property other than military

property of United States - Waste, spoilage, or

destruction

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.

§ 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 direct.

§ 911. Art. 111. Drunken or reckless operation of

a vehicle, aircraft, or vessel

(a) Any person subject to this chapter who—

(1) operates or physically controls any vehicle, aircraft, or vessel in a reckless or wanton manner or while impaired by a substance described in section 912a(b) of this title (article 112a(b)),

or

(2) operates or is in actual physical control of any vehicle,

aircraft, or vessel while drunk or when the alcohol concentration

in the person’s blood or breath is equal to or exceeds the applicable limit under subsection (b), shall be punished as a court-martial

may direct.

(b)(1) For purposes of subsection (a), the applicable limit on the

alcohol concentration in a person’s blood or breath is as follows:

(A) In the case of the operation or control of a vehicle,

aircraft, or vessel in the United States, such limit is the lesser

of—

(i) the blood alcohol content limit under the law of the State

in which the conduct occurred, except as may be provided under

paragraph (2) for conduct on a military installation that is in more

than one State; or

(ii) the blood alcohol content limit specified in paragraph

(3).

(B) In the case of the operation or control of a vehicle,

aircraft, or vessel outside the United States, the applicable blood

alcohol content limit is the blood alcohol content limit specified

A2-28

§ 906a. Art. 106a.(a)(1) APPENDIX 2
in paragraph (3) or such lower limit as the Secretary of Defense

may by regulation prescribe.

(2) In the case of a military installation that is in more than one

State, if those States have different blood alcohol content limits

under their respective State laws, the Secretary may select one

s u c h b l o o d a l c o h o l c o n t e n t l i m i t t o a p p l y u n i f o r m l y o n t h a t

installation.

(3) For purposes of paragraph (1), the blood alcohol content

limit with respect to alcohol concentration in a person’s blood is

0.10 grams of alcohol per 100 milliliters of blood and with

respect to alcohol concentration in a person’s breath is 0.10 grams

of alcohol per 210 liters of breath, as shown by chemical analysis.

(4) In this subsection:

(A) The term “blood alcohol content limit” means the amount

of alcohol concentration in a person’s blood or breath at which

operation or control of a vehicle, aircraft, or vessel is prohibited.

(B) The term “United States” includes the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam,

and American Samoa and the term “State” includes each of those

jurisdictions.

§ 912. Art. 112. Drunk on duty

Any person subject to this chapter other than a sentinel or lookout, who is found drunk on duty, shall be punished as a courtmartial may direct.

§ 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 referred to in subsection (a) are the following:

( 1 ) O p i u m , h e r o i n , c o c a i n e , a m p h e t a m i n e , l y s e r g i c a c i d

diethylamide, methamphetamine, phencyclidine, barbituric acid,

a n d m a r i j u a n a a n d a n y c o m p o u n d o r d e r i v a t i v e o f a n y s u c h

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).

§ 913. Art. 113. Misbehavior of sentinel

Any sentinel or lookout who is found drunk or sleeping upon

his post or leaves it before being 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 at any other time, by such punishment other than death

as a court-martial may direct.

§ 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.

§ 915. Art. 115. Malingering

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.

§ 916. Art 116. Riot 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 courtmartial may direct.

§ 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.

§ 918. Art. 118. Murder

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 that is inherently dangerous to another

and evinces a wanton disregard of human life; or

(4) is engaged in the perpetration or attempted perpetration of

burglary, sodomy, rape, rape of a child, aggravated sexual assault,

aggravated sexual assault of a child, aggravated sexual contact,

aggravated sexual abuse of a child, aggravated sexual contact

with a child, 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.

§ 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 courtmartial 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 118), directly affecting the person;

is guilty of involuntary manslaughter and shall be punished as a

court-martial may direct.

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UNIFORM CODE OF MILITARY JUSTICE § 919. Art. 119.(b)(2)
§ 919a. Art. 119a. Death or injury of an unborn

child

(a)(1) Any person subject to this chapter who engages in conduct

that violates any of the provisions of law listed in subsection (b)

and thereby causes the death of, or bodily injury (as defined in

section 1365 of title 18) to, a child, who is in utero at the time the

conduct takes place, is guilty of a separate offense under this

section and shall, upon conviction, be punished by such punishment, other than death, as a court-martial may direct, which shall

be consistent with the punishments prescribed by the President for

that conduct had that injury or death occurred to the unborn

child’s mother.

(2) An offense under this section does not require proof that—

(i) the person engaging in the conduct had knowledge or

should have had knowledge that the victim of the underlying

offense was pregnant; or

(ii) the accused intended to cause the death of, or bodily

injury to, the unborn child.

(3) If the person engaging in the conduct thereby intentionally

kills or attempts to kill the unborn child, that person shall, instead

of being punished under paragraph (1), be punished as provided

under sections 880, 918, and 919(a) of this title (articles 80, 118,

and 119(a)) for intentionally killing or attempting to kill a human

being.

(4) Notwithstanding any other provision of law, the death penalty shall not be imposed for an offense under this section.

(b) The provisions referred to in subsection (a) are sections 918,

919(a), 919(b)(2), 920(a), 922, 924, 926, and 928 of this title

(articles 118, 119(a), 119(b)(2), 120(a), 122, 124, 126, and 128).

( c ) N o t h i n g i n t h i s s e c t i o n s h a l l b e c o n s t r u e d t o p e r m i t t h e

prosecution—

(1) of any person for conduct relating to an abortion for which

the consent of the pregnant woman, or a person authorized by law

to act on her behalf, has been obtained or for which such consent

is implied by law;

(2) of any person for any medical treatment of the pregnant

woman or her unborn child; or

(3) of any woman with respect to her unborn child.

(d) In this section, the term “unborn child” means a child in

utero, and the term “child in utero” or “child, who is in utero”

means a member of the species homo sapiens, at any stage of

development, who is carried in the womb.

§ 920. Art. 120. Rape, sexual assault, and other

sexual misconduct

(a) Rape. Any person subject to this chapter who causes another

person of any age to engage in a sexual act by—

(1) using force against that other person;

(2) causing grievous bodily harm to any person;

(3) threatening or placing that other person in fear that any

p e r s o n w i l l b e s u b j e c t e d t o d e a t h , g r i e v o u s b o d i l y h a r m , o r

kidnaping;

(4) rendering another person unconscious; or

(5) administering to another person by force or threat of force,

or without the knowledge or permission of that person, a drug,

intoxicant, or other similar substance and thereby substantially

impairs the ability of that other person to appraise or control

conduct; is guilty of rape and shall be punished as a court-martial

may direct.

(b) Rape of a Child. Any person subject to this chapter who—

(1) engages in a sexual act with a child who has not attained

the age of 12 years; or

(2) engages in a sexual act under the circumstances described

in subsection (a) with a child who has attained the age of 12

years; is guilty of rape of a child and shall be punished as a courtmartial may direct.

(c) Aggravated Sexual Assault. Any person subject to this chapter

who—

(1) causes another person of any age to engage in a sexual act

by—

(A) threatening or placing that other person in fear (other

than by threatening or placing that other person in fear that any

person will be subjected to death, grievous bodily harm, or kidnapping); or

(B) causing bodily harm; or

(2) engages in a sexual act with another person of any age if

that other person is substantially incapacitated or substantially

incapable of—

(A) appraising the nature of the sexual act;

(B) declining participation in the sexual act; or

(C) communicating unwillingness to engage in the sexual

act; is guilty of aggravated sexual assault and shall be punished as

a court-martial may direct.

(d) Aggravated Sexual Assault of a Child. Any person subject to

this chapter who engages in a sexual act with a child who has

attained the age of 12 years is guilty of aggravated sexual assault

of a child and shall be punished as a court-martial may direct.

(e) Aggravated Sexual Contact. Any person subject to this chapter who engages in or causes sexual contact with or by another

person, if to do so would violate subsection (a) (rape) had the

sexual contact been a sexual act, is guilty of aggravated sexual

contact and shall be punished as a court-martial may direct.

(f) Aggravated Sexual Abuse of a Child. Any person subject to

this chapter who engages in a lewd act with a child is guilty of

aggravated sexual abuse of a child and shall be punished as a

court-martial may direct.

(g) Aggravated Sexual Contact With a Child. Any person subject

to this chapter who engages in or causes sexual contact with or by

another person, if to do so would violate subsection (b) (rape of a

child) had the sexual contact been a sexual act, is guilty of

aggravated sexual contact with a child and shall be punished as a

court-martial may direct.

(h) Abusive Sexual Contact. Any person subject to this chapter

who engages in or causes sexual contact with or by another

person, if to do so would violate subsection (c) (aggravated sexual assault) had the sexual contact been a sexual act, is guilty of

abusive sexual contact and shall be punished as a court-martial

may direct.

(i) Abusive Sexual Contact With a Child. Any person subject to

this chapter who engages in or causes sexual contact with or by

another person, if to do so would violate subsection (d) (aggraA2-30

§ 919a. Art. 119a. APPENDIX 2
vated sexual assault of a child) had the sexual contact been a

sexual act, is guilty of abusive sexual contact with a child and

shall be punished as a court-martial may direct.

(j) Indecent Liberty With a Child. Any person subject to this

chapter who engages in indecent liberty in the physical presence

of a child—

(1) with the intent to arouse, appeal to, or gratify the sexual

desire of any person; or

(2) with the intent to abuse, humiliate, or degrade any person;

is guilty of indecent liberty with a child and shall be punished as

a court-martial may direct.

(k) Indecent Act. Any person subject to this chapter who engages

in indecent conduct is guilty of an indecent act and shall be

punished as a court-martial may direct.

(l) Forcible Pandering. Any person subject to this chapter who

compels another person to engage in an act of prostitution with

another person to be directed to said person is guilty of forcible

pandering and shall be punished as a court-martial may direct.

(m) Wrongful Sexual Contact. Any person subject to this chapter

who, without legal justification or lawful authorization, engages

in sexual contact with another person without that other person’s

permission is guilty of wrongful sexual contact and shall be

punished as a court-martial may direct.

(n) Indecent Exposure. Any person subject to this chapter who

intentionally exposes, in an indecent manner, in any place where

the conduct involved may reasonably be expected to be viewed

by people other than members of the actor’s family or household,

the genitalia, anus, buttocks, or female areola or nipple is guilty

of indecent exposure and shall by punished as a court-martial may

direct.

(o) Age of Child.

(1) Twelve years. In a prosecution under subsection (b) (rape

of a child), subsection (g) (aggravated sexual contact with a

child), or subsection (j) (indecent liberty with a child), it need not

be proven that the accused knew that the other person engaging in

the sexual act, contact, or liberty had not attained the age of 12

years. It is not an affirmative defense that the accused reasonably

believed that the child had attained the age of 12 years.

(2) Sixteen years. In a prosecution under subsection (d) (aggravated sexual assault of a child), subsection (f) (aggravated sexual

abuse of a child), subsection (i) (abusive sexual contact with a

child), or subsection (j) (indecent liberty with a child), it need not

be proven that the accused knew that the other person engaging in

the sexual act, contact, or liberty had not attained the age of 16

years. Unlike in paragraph (1), however, it is an affirmative defense that the accused reasonably believed that the child had

attained the age of 16 years.

(p) Proof of Threat. In a prosecution under this section, in proving that the accused made a threat, it need not be proven that the

accused actually intended to carry out the threat.

(q) Marriage.

(1) In general. In a prosecution under paragraph (2) of subsection (c) (aggravated sexual assault), or under subsection (d) (aggravated sexual assault of a child), subsection (f) (aggravated

sexual abuse of a child), subsection (i) (abusive sexual contact

with a child), subsection (j) (indecent liberty with a child), subsection (m) (wrongful sexual contact), or subsection (n) (indecent

exposure), it is an affirmative defense that the accused and the

other person when they engaged in the sexual act, sexual contact,

or sexual conduct are married to each other.

(2) Definition. For purposes of this subsection, a marriage is a

relationship, recognized by the laws of a competent State or

foreign jurisdiction, between the accused and the other person as

spouses. A marriage exists until it is dissolved in accordance with

the laws of a competent State or foreign jurisdiction.

(3) Exception. Paragraph (1) shall not apply if the accused’s

intent at the time of the sexual conduct is to abuse, humiliate, or

degrade any person.

(r) Consent and Mistake of Fact as to Consent. Lack of permission is an element of the offense in subsection (m) (wrongful

sexual contact). Consent and mistake of fact as to consent are not

an issue, or an affirmative defense, in a prosecution under any

other subsection, except they are an affirmative defense for the

sexual conduct in issue in a prosecution under subsection (a)

(rape), subsection (c) (aggravated sexual assault), subsection (e)

(aggravated sexual contact), and subsection (h) (abusive sexual

contact).

(s) Other Affirmative Defenses not Precluded. The enumeration

in this section of some affirmative defenses shall not be construed

as excluding the existence of others.

(t) Definitions. In this section:

(1) Sexual act. The term ‘sexual act’ means—

(A) contact between the penis and the vulva, and for purposes of this subparagraph contact involving the penis occurs

upon penetration, however slight; or

(B) the penetration, however slight, of the genital opening of

another by a hand or finger or by any object, with an intent to

abuse, humiliate, harass, or degrade any person or to arouse or

gratify the sexual desire of any person.

(2) Sexual contact. The term ‘sexual contact’ means the intentional touching, either directly or through the clothing, of the

genitalia, anus, groin, breast, inner thigh, or buttocks of another

person, or intentionally causing another person to touch, either

directly or through the clothing, the genitalia, anus, groin, breast,

inner thigh, or buttocks of any person, with an intent to abuse,

humiliate, or degrade any person or to arouse or gratify the sexual

desire of any person.

(3) Grievous bodily harm. The term ‘grievous bodily harm’

means serious bodily injury. It includes fractured or dislocated

bones, deep cuts, torn members of the body, serious damage to

internal organs, and other severe bodily injuries. It does not include minor injuries such as a black eye or a bloody nose. It is

the same level of injury as in section 928 (article 128) of this

chapter, and a lesser degree of injury than in section 2246(4) of

title 18.

(4) Dangerous weapon or object. The term ‘dangerous weapon

or object’ means—

(A) any firearm, loaded or not, and whether operable or not;

(B) any other weapon, device, instrument, material, or substance, whether animate or inanimate, that in the manner it is

used, or is intended to be used, is known to be capable of

producing death or grievous bodily harm; or

(C) any object fashioned or utilized in such a manner as to

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UNIFORM CODE OF MILITARY JUSTICE § 920. Art. 120.(t)(4)(C)
lead the victim under the circumstances to reasonably believe it to

be capable of producing death or grievous bodily harm.

(5) Force. The term ‘force’ means action to compel submission of another or to overcome or prevent another’s resistance

by—

(A) the use or display of a dangerous weapon or object;

(B) the suggestion of possession of a dangerous weapon or

object that is used in a manner to cause another to believe it is a

dangerous weapon or object; or

(C) physical violence, strength, power, or restraint applied to

another person, sufficient that the other person could not avoid or

escape the sexual conduct.

(6) Threatening or placing that other person in fear. The term

‘threatening or placing that other person in fear’ under paragraph

(3) of subsection (a) (rape), or under subsection (e) (aggravated

sexual contact), means a communication or action that is of sufficient consequence to cause a reasonable fear that non-compliance

will result in the victim or another person being subjected to

death, grievous bodily harm, or kidnapping.

(7) Threatening or placing that other person in fear.

(A) In general. The term ‘threatening or placing that other

person in fear’ under paragraph (1)(A) of subsection (c) (aggravated sexual assault), or under subsection (h) (abusive sexual

contact), means a communication or action that is of sufficient

consequence to cause a reasonable fear that non-compliance will

result in the victim or another being subjected to a lesser degree

of harm than death, grievous bodily harm, or kidnapping.

(B) Inclusions. Such lesser degree of harm includes—

(i) physical injury to another person or to another person’s property; or

(ii) a threat—

(I) to accuse any person of a crime;

(II) to expose a secret or publicize an asserted fact,

whether true or false, tending to subject some person to hatred,

contempt or ridicule; or

(III) through the use or abuse of military position, rank,

or authority, to affect or threaten to affect, either positively or

negatively, the military career of some person.

(8) Bodily harm. The term ‘bodily harm’ means any offensive

touching of another, however slight.

(9) Child. The term ‘child’ means any person who has not

attained the age of 16 years.

(10) Lewd act. The term ‘lewd act’ means—

(A) the intentional touching, not through the clothing, of the

genitalia of another person, with an intent to abuse, humiliate, or

degrade any person, or to arouse or gratify the sexual desire of

any person; or

( B ) i n t e n t i o n a l l y c a u s i n g a n o t h e r p e r s o n t o t o u c h , n o t

through the clothing, the genitalia of any person with an intent to

abuse, humiliate or degrade any person, or to arouse or gratify the

sexual desire of any person.

(11) Indecent liberty. The term ‘indecent liberty’ means indecent conduct, but physical contact is not required. It includes one

who with the requisite intent exposes one’s genitalia, anus, buttocks, or female areola or nipple to a child. An indecent liberty

may consist of communication of indecent language as long as

the communication is made in the physical presence of the child.

If words designed to excite sexual desire are spoken to a child, or

a child is exposed to or involved in sexual conduct, it is an

indecent liberty; the child’s consent is not relevant.

(12) Indecent conduct. The term ‘indecent conduct’ means that

form of immorality relating to sexual impurity which is grossly

vulgar, obscene, and repugnant to common propriety, and tends to

excite sexual desire or deprave morals with respect to sexual

r e l a t i o n s . I n d e c e n t c o n d u c t i n c l u d e s o b s e r v i n g , o r m a k i n g a

videotape, photograph, motion picture, print, negative, slide, or

other mechanically, electronically, or chemically reproduced visual material, without another person’s consent, and contrary to

that other person’s reasonable expectation of privacy, of—

(A) that other person’s genitalia, anus, or buttocks, or (if

that other person is female) that person’s areola or nipple; or

(B) that other person while that other person is engaged in a

sexual act, sodomy (under section 925 (article 125)), or sexual

contact.

(13) Act of prostitution. The term ‘act of prostitution’ means a

sexual act, sexual contact, or lewd act for the purpose of receiving money or other compensation.

(14) Consent. The term ‘consent’ means words or overt acts

indicating a freely given agreement to the sexual conduct at issue

by a competent person. An expression of lack of consent through

words or conduct means there is no consent. Lack of verbal or

physical resistance or submission resulting from the accused’s use

of force, threat of force, or placing another person in fear does

not constitute consent. A current or previous dating relationship

by itself or the manner of dress of the person involved with the

accused in the sexual conduct at issue shall not constitute consent.

A person cannot consent to sexual activity if—

(A) under 16 years of age; or

(B) substantially incapable of—

(i) appraising the nature of the sexual conduct at issue due

to—

( I ) m e n t a l i m p a i r m e n t o r u n c o n s c i o u s n e s s r e s u l t i n g

from consumption of alcohol, drugs, a similar substance, or otherwise; or

(II) mental disease or defect which renders the person

unable to understand the nature of the sexual conduct at issue;

(ii) physically declining participation in the sexual conduct at issue; or

(iii) physically communicating unwillingness to engage in

the sexual conduct at issue.

(15) Mistake of fact as to consent. The term ‘mistake of fact as

to consent’ means the accused held, as a result of ignorance or

mistake, an incorrect belief that the other person engaging in the

sexual conduct consented. The ignorance or mistake must have

existed in the mind of the accused and must have been reasonable

under all the circumstances. To be reasonable the ignorance or

mistake must have been based on information, or lack of it, which

would indicate to a reasonable person that the other person consented. Additionally, the ignorance or mistake cannot be based on

the negligent failure to discover the true facts. Negligence is the

absence of due care. Due care is what a reasonably careful person

would do under the same or similar circumstances. The accused’s

state of intoxication, if any, at the time of the offense is not

A2-32

§ 920. Art. 120.(t)(4)(C) APPENDIX 2
relevant to mistake of fact. A mistaken belief that the other

person consented must be that which a reasonably careful, ordinary, prudent, sober adult would have had under the circumstances at the time of the offense.

(16) Affirmative defense. The term ‘affirmative defense’ means

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.

The accused has the burden of proving the affirmative defense by

a preponderance of evidence. After the defense meets this burden,

the prosecution shall have the burden of proving beyond a reasonable doubt that the affirmative defense did not exist.

§ 920a. Art. 120a. Stalking

(a) Any person subject to this section—

(1) who wrongfully engages in a course of conduct directed at

a specific person that would cause a reasonable person to fear

death or bodily harm, including sexual assault, to himself or

herself or a member of his or her immediate family;

(2) who has knowledge, or should have knowledge, that the

specific person will be placed in reasonable fear of death or

bodily harm, including sexual assault, to himself or herself or a

member of his or her immediate family; and

(3) whose acts induce reasonable fear in the specific person of

death or bodily harm, including sexual assault, to himself or

herself or to a member of his or her immediate family; is guilty

of stalking and shall be punished as a court-martial may direct.

(b) In this section:

(1) The term ‘course of conduct’ means—

(A) a repeated maintenance of visual or physical proximity

to a specific person; or

(B) a repeated conveyance of verbal threat, written threats,

or threats implied by conduct, or a combination of such threats,

directed at or toward a specific person.

(2) The term ‘repeated’, with respect to conduct, means two or

more occasions of such conduct;

(3) The term ‘immediate family’, in the case of a specific

person, means a spouse, parent, child, or sibling of the person, or

any other family member, relative, or intimate partner of the

person who regularly resides in the household of the person or

who within the six months preceding the commencement of the

c o u r s e o f c o n d u c t r e g u l a r l y r e s i d e d i n t h e h o u s e h o l d o f t h e

person.

§ 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.

§ 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

A n y p e r s o n s u b j e c t t o t h i s c h a p t e r w h o , w i t h i n t e n t t o

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.

§ 923a. Art. 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.

§ 924. Art. 124. Maiming

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;

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UNIFORM CODE OF MILITARY JUSTICE § 924. Art. 124.(1)
(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.

§ 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.

§ 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.

(b) 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.

§ 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.

§ 928. Art. 128. Assault

(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 ) c o m m i t s a n a s s a u l t w i t h a d a n g e r o u s w e a p o n o r o t h e r

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 courtmartial may direct.

§ 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 courtmartial may direct.

§ 930. Art. 130. Housebreaking

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.

§ 931. Art. 131. Perjury

Any person subject to this chapter who in a judicial proceeding

or in a course of justice willfully and corruptly—

(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 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.

§ 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 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.

§ 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 direct.

§ 934. Art. 134. General article

Though not specifically mentioned in this chapter, all disorders

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§ 924. Art. 124.(2) APPENDIX 2
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 cogniz a n c e o f b y a g e n e r a l , s p e c i a l , o r s u m m a r y c o u r t - m a r t i a l ,

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 President.

§ 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 a party 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.

(h) Each court of inquiry shall keep a record 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.

§ 936. Art. 136. Authority to administer oaths and

to act as notary

(a) The following persons on active duty or performing inactiveduty training may administer oaths for the purposes of military

administration, including military justice:

(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 or performing inactiveduty training 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.

§ 937. Art. 137. Articles to be explained

(a)(1) The sections of this title (articles of the Uniform Code of

Military Justice) specified in paragraph (3) shall be carefully

explained to each enlisted member at the time of (or within

fourteen days after)—

(A) the member’s initial entrance on active duty; or

(B) the member’s initial entrance into a duty status with a

reserve component.

(2) Such sections (articles) shall be explained again—

(A) after the member has completed six months of active duty

or, in the case of a member of a reserve component, after the

member has completed basic or recruit training; and

(B) at the time when the member reenlists.

(3) This subsection applies with respect to sections 802, 803,

807–815, 825, 827, 831, 837, 838, 855,877–934, and 937–939 of

this title(articles 2, 3, 7–15, 25, 27, 31, 37, 38, 55, 77–134, and

137–139).

(b) The text of the Uniform Code of Military Justice and of the

regulations prescribed by the President under such Code shall be

made available to a member on active duty or to a member of a

reserve component, upon request by the member, for the member’s personal examination.

§ 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

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UNIFORM CODE OF MILITARY JUSTICE § 938. Art. 138.
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 concerned a

t r u e s t a t e m e n t o f t h a t c o m p l a i n t , w i t h t h e p r o c e e d i n g s h a d

thereon.

§ 939. Art. 139. Redress of injuries to property

(a) Whenever complaint is made to any commanding 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.

§ 940. Art. 140. Delegation by the President

The President may delegate any authority vested in him under

t h i s c h a p t e r , a n d p r o v i d e f o r t h e s u b d e l e g a t i o n o f a n y s u c h

authority.

SUBCHAPTER XII. UNITED STATES COURT OF

APPEALS FOR THE ARMED FORCES

Sec. Art.

941. 141. Status.

942. 142. Judges.

943. 143. Organization and employees.

944. 144. Procedure.

945. 145. Annuities for judges and survivors.

946. 146. Code committee.

§ 941. Art. 141. Status

There is a court of record known as the United States Court of

Appeals for the Armed Forces. The court is established under

article I of the Constitution. The court is located for administrative purposes only in the Department of Defense.

§ 942. Art. 142. Judges

(a) Number. The United States Court of Appeals for the Armed

Forces consists of five judges.

(b) Appointment; qualification.

(1) Each judge of the court shall be appointed from civilian

life by the President, by and with the advice and consent of the

Senate, for a specified term determined under paragraph (2). A

judge may serve as a senior judge as provided in subsection (e).

(2) The term of a judge shall expire as follows:

(A) In the case of a judge who is appointed after March 31

and before October 1 of any year, the term shall expire on

September 30 of the year in which the fifteenth anniversary of the

appointment occurs.

(B) In the case of a judge who is appointed after September

30 of any year and before April 1 of the following year, the term

shall expire fifteen years after such September 30.

(3) Not more than three of the judges of the court may be

appointed from the same political party, and no person may be

appointed to be a judge of the court unless the person is a

member of the bar of a Federal court or the highest court of a

State.

(4) For purposes of appointment of judges to the court, a

person retired from the armed forces after 20 or more years of

active service (whether or not such person is on the retired list)

shall not be considered to be in civilian life.

(c) Removal. Judges of the court may be removed from office by

the President, upon notice and hearing, for—

(1) neglect of duty;

(2) misconduct; or

(3) mental or physical disability.

A judge may not be removed by the President for any other

cause.

(d) Pay and allowances. Each judge of the court is entitled to the

same salary and travel allowances as are, and from time to time

m a y b e , p r o v i d e d f o r j u d g e s o f t h e U n i t e d S t a t e s C o u r t o f

Appeals.

(e) Senior judges.

(1)(A) A former judge of the court who is receiving retired pay

or an annuity under section 945 of this title (article 145) or under

subchapter III of chapter 83 or chapter 84 of title 5 shall be a

senior judge. The chief judge of the court may call upon an

individual who is a senior judge of the court under this subparagraph, with the consent of the senior judge, to perform judicial duties with the court—

(i) during a period a judge of the court is unable to perform

his duties because of illness or other disability;

(ii) during a period in which a position of judge of the court

is vacant; or

( i i i ) i n a n y c a s e i n w h i c h a j u d g e o f t h e c o u r t r e c u s e s

himself.

(B) If, at the time the term of a judge expires, no successor

to that judge has been appointed, the chief judge of the court may

call upon that judge (with the judge’s consent) to continue to

perform judicial duties with the court until the vacancy is filled.

A judge who, upon the expiration of the judge’s term, continues

to perform judicial duties with the court without a break in service under this subparagraph shall be a senior judge while such

service continues.

(2) A senior judge shall be paid for each day on which he

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§ 938. Art. 138. APPENDIX 2
performs judicial duties with the court an amount equal to the

daily equivalent of the annual rate of pay provided for a judge of

the court. Such pay shall be in lieu of retired pay and in lieu of an

annuity under section 945 of this title (Article 145), subchapter III

of chapter 83 or subchapter II of chapter 84 of title 5, or any

o t h e r r e t i r e m e n t s y s t e m f o r e m p l o y e e s o f t h e F e d e r a l

Government.

(3) A senior judge, while performing duties referred to in paragraph (2), shall be provided with such office space and staff

assistance as the chief judge considers appropriate and shall be

entitled to the per diem, travel allowances, and other allowances

provided for judges of the court.

(4) A senior judge shall be considered to be an officer or

employee of the United States with respect to his status as a

senior judge, but only during periods the senior judge is performing duties referred to in paragraph (2). For the purposes of section

205 of title 18, a senior judge shall be considered to be a special

Government employee during such periods. Any provision of law

that prohibits or limits the political or business activities of an

employee of the United States shall apply to a senior judge only

during such periods.

(5) The court shall prescribe rules for the use and conduct of

senior judges of the court. The chief judge of the court shall

transmit such rules, and any amendments to such rules, to the

Committees on Armed Services of the Senate and the House of

Representatives not later than 15 days after the issuance of such

rules or amendments, as the case may be.

(6) For purposes of subchapter III of chapter 83 of title 5

(relating to the Civil Service Retirement and Disability System)

and chapter 84 of such title (relating to the Federal Employees’

Retirement System) and for purposes of any other Federal Gove r n m e n t r e t i r e m e n t s y s t e m f o r e m p l o y e e s o f t h e F e d e r a l

Government—

(A) a period during which a senior judge performs duties

referred to in paragraph (1) shall not be considered creditable

service;

(B) no amount shall be withheld from the pay of a senior

j u d g e a s a r e t i r e m e n t c o n t r i b u t i o n u n d e r s e c t i o n 8 3 3 4 , 8 3 4 3 ,

8422, or 8432 of title 5 or under other such retirement system for

any period during which the senior judge performs duties referred

to in paragraph (1);

(C) no contribution shall be made by the Federal Government to any retirement system with respect to a senior judge for

any period during which the senior judge performs duties referred

to in paragraph (1); and

(D) a senior judge shall not be considered to be a reemployed annuitant for any period during which the senior judge

performs duties referred to in paragraph (1).

(f) Service of article III judges.

(1) The Chief Justice of the United States, upon the request of

the chief judge of the court, may designate a judge of a United

States Court of Appeals or of a United States District Court to

perform the duties of judge of the United States Court of Appeals

for the Armed Forces—

(A) during a period a judge of the court is unable to perform

his duties because of illness or other disability; or

(B) in any case in which a judge of the court recuses himself; or

(C) during a period when there is a vacancy on the court

and in the opinion of the chief judge of the court such a designation is necessary for the proper dispatch of the business of the

court.

(2) The chief judge of the court may not request that a designation be made under paragraph (1) unless the chief judge has

determined that no person is available to perform judicial duties

with the court as a senior judge under subsection (e).

(3) A designation under paragraph (1) may be made only with

the consent of the designated judge and the concurrence of the

chief judge of the court of appeals or district court concerned.

(4) Per diem, travel allowances, and other allowances paid to

the designated judge in connection with the performance of duties

for the court shall be paid from funds available for the payment

of per diem and such allowances for judges of the court.

(g) Effect of vacancy on court. A vacancy on the court does not

impair the right of the remaining judges to exercise the powers of

the court.

§ 943. Art. 143. Organization and employees

(a) Chief judge.

(1) The chief judge of the United States Court of Appeals for

the Armed Forces shall be the judge of the court in regular active

service who is senior in commission among the judges of the

court who—

(A) have served for one or more years as judges of the

court; and

(B) have not previously served as chief judge.

(2) In any case in which there is no judge of the court in

regular active service who has served as a judge of the court for

at least one year, the judge of the court in regular active service

who is senior in commission and has not served previously as

chief judge shall act as the chief judge.

(3) Except as provided in paragraph (4), a judge of the court

shall serve as the chief judge under paragraph (1) for a term of

five years. If no other judge is eligible under paragraph (1) to

serve as chief judge upon the expiration of that term, the chief

judge shall continue to serve as chief judge until another judge

becomes eligible under that paragraph to serve as chief judge.

(4)(A) The term of a chief judge shall be terminated before

the end of five years if—

(i) The chief judge leaves regular active service as a judge

of the court; or

(ii) The chief judge notifies the other judges of the court

in writing that such judge desires to be relieved of his duties as

chief judge.

(B) The effective date of a termination of the term under

subparagraph (A) shall be the date on which the chief judge

leaves regular active service or the date of the notification under

subparagraph (A)(ii), as the case may be.

(5) If a chief judge is temporarily unable to perform his duties

as achief judge, the duties shall be performed by the judge of the

court in active service who is present, able, and qualified to act,

and is next in precedence.

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UNIFORM CODE OF MILITARY JUSTICE § 943. Art. 143.(a)(5)
(b) Precedence of judges. The chief judge of the court shall have

precedence and preside at any session that he attends. The other

judges shall have precedence and preside according to the seniority of their original commissions. Judges whose commissions bear

the same date shall have precedence according to seniority in age.

(c) Status of Certain positions.

(1) Attorney positions of employment under the Court of Appeals for the Armed Forces are excepted from the competitive

service. A position of employment under the court that is provided primarily for the service of one judge of the court, reports

directly to the judge, and is a position of a confidential character

is excepted from the competitive service. Appointments to positions referred to in the preceding sentences shall be made by the

court, without the concurrence of any other officer or employee

of the executive branch, in the same manner as appointments are

made to other executive branch positions of a confidential or

policy-determining character for which it is not practicable to

examine or to hold a competitive examination. Such positions

shall not be counted as positions of that character for purposes of

any limitation on the number of positions of that character provided in law.

(2) In making appointments to the positions described in paragraph (1), preference shall be given, among equally qualified

persons, to persons who are preference eligibles (as defined in

section 2108(3) of title 5).

§ 944. Art. 144. Procedure

The United States Court of Appeals for the Armed Forces may

prescribe its rules of procedure and may determine the number of

judges required to constitute a quorum.

§ 945. Art. 145. Annuities for judges and

survivors

(a) Retirement annuities for judges.

(1) A person who has completed a term of service for which

he was appointed as a judge of the United States Court of Appeals for the Armed Forces is eligible for an annuity under this

section upon separation from civilian service in the Federal Government. A person who continues service with the court as a

s e n i o r j u d g e u n d e r s e c t i o n 9 4 3 ( e ) ( 1 ) ( B ) o f t h i s t i t l e ( a r t .

143(e)(1)(B)) upon the expiration of the judge’s term shall be

considered to have been separated from civilian service in the

Federal Government only upon the termination of that continuous

service.

(2) A person who is eligible for any annuity under this section

shall be paid that annuity if, at the time he becomes eligible to

receive that annuity, he elects to receive that annuity in lieu of

any other annuity for which he may be eligible at the time of

such election (whether an immediate or a deferred annuity) under

subchapter III of chapter 83 or subchapter II of chapter 84 of title

5 or any other retirement system for civilian employees of the

Federal Government. Such an election may not be revoked.

(3)(A) The Secretary of Defense shall notify the Director of

the Office of Personnel Management whenever an election under

paragraph (2) is made affecting any right or interest under subchapter III of chapter 83 or subchapter 11 of chapter 85 of title 5

based on service as a judge of the United States Court of Appeals

for the Armed Forces.

(B) Upon receiving any notification under subparagraph (A)

in the case of a person making an election under (2), the Director

shall determine the amount of the person’s lump-sum credit under

subchapter 111 of chapter 83 or subchapter II of chapter 84 of

title 5, as applicable, and shall request the Secretary of the Treasury to transfer such amount from the Civil Service Retirement

and Disability Fund to the Department of Defense Military Retirement Fund. The Secretary of the Treasury shall make any

transfer so requested.

(C) In determining the amount of a lump-sum credit under

section 8331(8) of title 5 for purposes of this paragraph -

(i) interest shall be computed using the rates under section

8334(e)(3) of such title; and

( i i ) t h e c o m p l e t i o n o f 5 y e a r s o f c i v i l i a n s e r v i c e ( o r

longer) shall not be a basis for excluding interest.

(b) Amount of annuity. The annuity payable under this section to

a person who makes an election under subsection (a)(2) is 80

percent of the rate of pay for a judge in active service on the

United States Court of Appeals for the Armed Forces as of the

date on which the person is separated from civilian service.

(c) Relation to thrift savings plan. Nothing in this section affects

any right of any person to participate in the thrift savings plan

under section 8351 of title 5 of subchapter III of chapter 84 of

such title.

(d) Survivor annuities. The Secretary of Defense shall prescribe

by regulation a program to provide annuities for survivors and

former spouses of persons receiving annuities under this section

by reason of elections made by such persons under subsection

(a)(2). That program shall, to the maximum extent practicable,

provide benefits and establish terms and conditions that are similar to those provided under survivor and former spouse annuity

programs under other retirement systems for civilian employees

of the Federal Government. The program may include provisions

for the reduction in the annuity paid the person as a condition for

the survivor annuity. An election by a judge (including a senior

judge) or former judge to receive an annuity under this section

terminates any right or interest which any other individual may

have to a survivor annuity under any other retirement system for

civilian employees of the Federal Government based on the service of that judge or former judge as a civilian officer or employee

of the Federal Government (except with respect to an election

under subsection (g)(1)(B)).

(e) Cost-of-living increases. The Secretary of Defense shall periodically increase annuities and survivor annuities paid under this

section in order to take account of changes in the cost of living.

The Secretary shall prescribe by regulation procedures for increases in annuities under this section. Such system shall, to the

maximum extent appropriate, provide cost-of-living adjustments

that are similar to those that are provided under other retirement

systems for civilian employees of the Federal Government.

(f) Dual compensation. A person who is receiving an annuity

under this section by reason of service as a judge of the court and

who is appointed to a position in the Federal Government shall,

during the period of such person’s service in such position, be

entitled to receive only the annuity under this section or the pay

for that position, whichever is higher.

A2-38

§ 943. Art. 143.(b) APPENDIX 2
(g) Election of judicial retirement benefits.

(1) A person who is receiving an annuity under this section by

reason of service as a judge of the court and who later is appointed as a justice or judge of the United States to hold office

during good behavior and who retires from that office, or from

regular active service in that office, shall be paid either—

(A) the annuity under this section, or

(B) the annuity or salary to which he is entitled by reason of

his service as such a justice or judge of the United States, as

determined by an election by that person at the time of his

retirement from the office, or from regular active service in the

office, of justice or judge of the United States. Such an election

may not be revoked.

(2) An election by a person to be paid an annuity or salary

p u r s u a n t t o p a r a g r a p h ( 1 ) ( B ) t e r m i n a t e s ( A ) a n y e l e c t i o n

previously made by such person to provide a survivor annuity

pursuant to subsection (d), and (B) any right of any other individual to receive a survivor annuity pursuant to subsection (d) on the

basis of the service of that person.

(h) Source of payment of annuities. Annuities and survivor annuities paid under this section shall be paid out of the Department of

Defense Military Retirement Fund.

(i) Eligibility to elect between retirement systems.

(1) This subsection applies with respect to any person who—

(A) prior to being appointed as a judge of the United States

Court of Appeals for the Armed Forces, performed civilian service of a type making such person subject to the Civil Service

Retirement System; and

(B) would be eligible to make an election under section

301(a)(2) of the Federal Employees’ Retirement System Act of

1986, by virtue of being appointed as such a judge, but for the

fact that such person has not had a break in service of a sufficient

duration to be considered someone who is being reemployed by

the Federal Government.

(2) Any person with respect to whom this subsection applies

shall be eligible to make an election under section 301(a)(2) of

the Federal Employees’ Retirement System Act of 1986 to the

same extent and in the same manner (including subject to the

condition set forth in section 301(d) of such Act) as if such

person’s appointment constituted reemployment with the Federal

Government.

(Added Pub.L. 101–189, Div. A, Title XIII, § 1301(c), Nov. 29,

1989, 103 Stat. 1572, and amended Pub.L. 102–190, Div. A, Title

X , § 1 0 6 1 ( b ) ( 1 ) ( C ) , D e c . 5 , 1 9 9 1 , 1 0 5 S t a t . 1 4 7 4 ; P u b . L .

102–484, Div. A, Title X, §§ 1052(11), 1062(a)(1), Oct. 23, 1992,

106 Stat. 2499, 2504.)

§ 946. Art. 146. Code committee

(a) Annual survey. A committee shall meet at least annually and

shall make an annual comprehensive survey of the operation of

this chapter.

(b) Composition of committee. The committee shall consist of—

(1) the judges of the United States Court of Appeals for the

Armed Forces;

(2) the Judge Advocates General of the Army, Navy, and Air

Force, the Chief Counsel of the Coast Guard, and the Staff Judge

Advocate to the Commandant of the Marine Corps; and

(3) two members of the public appointed by the Secretary of

Defense.

(c) Reports.

( 1 ) A f t e r e a c h s u c h s u r v e y , t h e c o m m i t t e e s h a l l s u b m i t a

report—

(A) to the Committees on Armed Services of the Senate and

House of Representatives; and

(B) to the Secretary of Defense, the Secretaries of the military departments, and the Secretary of Homeland Security.

( 2 ) E a c h r e p o r t u n d e r p a r a g r a p h ( 1 ) s h a l l i n c l u d e t h e

following:

(A) Information on the number and status of pending cases.

(B) Any recommendation of the committee relating to—

(i) uniformity of policies as to sentences;

(ii) amendments to this chapter; and

(iii) any other matter the committee considers appropriate.

(d) Qualifications and terms of appointed members. Each member of the committee appointed by the Secretary of Defense under

subsection (b)(3) shall be a recognized authority in military justice or criminal law. Each such member shall be appointed for a

term of three years.

(e) Applicability of Federal Advisory Committee Act. The Federal

Advisory Committee Act (5 U.S.C.App. 1) shall not apply to the

committee.

A2-39

UNIFORM CODE OF MILITARY JUSTICE § 946. Art. 146.(e)

APPENDIX 3

DoD Directive 5525.7

Department of Defense

DIRECTIVE

January 22, 1985

NUMBER 5525.7

GC/IG, DoD

SUBJECT:

Implementation of the Memorandum of Understanding Between the Department of Justice and the

Department of Defense Relating to the Investigation

and Prosecution of Certain Crimes

References:

(a) DoD Directive 1355.1, “Relationships with

the Department of Justice on Grants of Immunity

a n d t h e I n v e s t i g a t i o n a n d P r o s e c u t i o n o f C e r t a i n

~Crimes,” July 21, 1981 (hereby canceled)

(b) Memorandum of Understanding Between the

Department Relating to the Investigation and Prosecution of Certain Crimes, August 1984

(c) Title 18, United State Code

(d) Title 10, United States Code, Sections 801-

940 (Articles 1-140), “Uniform Code of Military

Justice (UCMJ)”

( e ) M a n u a l f o r C o u r t s - M a r t i a l , U n i t e d S t a t e s ,

1984 (R.C.M. 704)

A. REISSUANCE AND PURPOSE

This Directive reissues reference (a), updates

policy and procedures, assigns responsibilities, and

implements the 1984 Memorandum of Understanding (MOU) between the Department of Justice (DoJ)

and the Department of Defense (DoD).

B. APPLICABILITY

This Directive applies to the Office of the Secretary of Defense, the Military Departments, the Office of Inspector General, DoD, the Organization of

the Joint Chiefs of Staff, the Defense Agencies, and

Unified and Specified Commands (hereafter referred

to collectively as “DoD Components”). The term

“DoD criminal investigative organizations,” as used

herein, refers collectively to the United States Army

Criminal Investigation Command (USACIDC); Naval Investigative Service (NIS); U.S. Air Force Office of Special Investigations (AFOSI), and Defense

Criminal Investigative Service (DCIS), Office of the

Inspector General, DoD.

C. POLICY

It is DoD policy to maintain effective working

relationships with the DoJ in the investigation and

prosecution of crimes involving the programs, operations, or personnel of the Department of Defense.

D. PROCEDURES

With respect to inquiries for which the DoJ has

a s s u m e d i n v e s t i g a t i v e r e s p o n s i b i l i t y b a s e d o n t h e

MOU, DoD investigative agencies should seek to

participate jointly with DoJ investigative agencies

whenever the inquiries relate to the programs, operations, or personnel of the Department of Defense.

This applies to cases referred to the Federal Bureau

of Investigation (FBI) under paragraph C.1.a. of the

attached MOU (see enclosure 1) as well as to those

cases for which a DoJ investigative agency is assigned primary investigative responsibility by a DoJ

prosecutor. DoD components shall comply with the

terms of the MOU and DoD Supplemental Guidance

( see enclosure 1).

E. RESPONSIBILITIES

1. The Inspector General, Department of Defense

(IG, DoD), shall:

a. Establish procedures to implement the investigative policies set forth in this Directive.

b. Monitor compliance by DoD criminal investigative organizations to the terms of the MOU.

c. Provide specific guidance regarding investigative matters, as appropriate.

2. The General Counsel, Department of Defense,

shall:

a. Establish procedures to implement the prosecutive policies set forth in this Directive.

b. Monitor compliance by the DoD Components

regarding the prosecutive aspects of the MOU.

c. Provide specific guidance, as appropriate.

d. Modify the DoD Supplemental Guidance at enA3-1
closure 1, with the concurrence of the IG, DoD,

a f t e r r e q u e s t i n g c o m m e n t s f r o m a f f e c t e d D o D

Components.

3. The Secretaries of the Military Departments shall

establish procedures to implement the policies set

forth in this Directive.

F. EFFECTIVE DATE AND

IMPLEMENTATION

T h i s D i r e c t i v e i s e f f e c t i v e i m m e d i a t e l y . T h e

Military Departments shall forward two copies of

implementing documents to the Inspector General,

Department of Defense, within 90 days. Other DoD

Components shall disseminate this Directive to appropriate personnel.

Signed by William H. Taft, IV

Deputy Secretary of Defense

Enclosure—1

Memorandum of Understanding Between the Departments of Justice And Defense Relating to the

Investigation and Prosecution of Certain Crimes

MEMORANDUM OF UNDERSTANDING

BETWEEN THE DEPARTMENTS OF

JUSTICE AND DEFENSE

This enclosure contains the verbatim text of the

1 9 8 4 M e m o r a n d u m o f U n d e r s t a n d i n g B e t w e e n

the Departments of Justice and Defense Relating

to the Investigation and Prosecution of Certain

Crimes (reference (b)). Matter that is identified as

“DoD Supplemental Guidance” has been added by

t h e D e p a r t m e n t o f D e f e n s e . D o D C o m p o n e n t s

shall comply with the MOU and the DoD Supplemental Guidance.

MEMORANDUM OR UNDERSTANDING

BETWEEN THE DEPARTMENTS OF

JUSTICE AND DEFENSE RELATING TO

THE

INVESTIGATION AND

PROSECUTION OF CERTAIN CRIMES

A. PURPOSE, SCOPE AND AUTHORITY

T h i s M e m o r a n d u m o f U n d e r s t a n d i n g ( M O U )

establishes policy for the Department of Justice

and the Department of Defense with regard to the

investigation and prosecution of criminal matters

over which the two Departments have jurisdiction.

This memorandum is not intended to confer any

rights, benefits, privileges or form of due process

procedure upon individuals, associations, corporations or other persons or entities.

This Memorandum applies to all components

and personnel of the Department of Justice and

the Department of Defense. The statutory bases

for the Department of Defense and the Department of Justice investigation and prosecution responsibilities include, but are not limited to:

1. Department of Justice: Titles 18, 21 and 28 of

the United States Code; and

2. Department of Defense: The Uniform Code of

M i l i t a r y J u s t i c e , T i t l e 1 0 , U n i t e d S t a t e s C o d e ,

Sections 801-940; the Inspector General Act of

1978, Title 5 United States Code, Appendix 3;

and Title 5 United States Code, Section 301.

B. POLICY

The Department of Justice has primary responsibility for enforcement of federal laws in the

United States District Courts. The Department of

Defense has responsibility for the integrity of its

programs, operations and installations and for the

discipline of the Armed Forces. Prompt administrative actions and completion of investigations

within the two (2) year statute of limitations under

the Uniform Code of Military Justice require the

Department of Defense to assume an important

role in federal criminal investigations. To encourage joint and coordinated investigative efforts, in

appropriate cases where the Department of Justice

assumes investigative responsibility for a matter

relating to the Department of Defense, it should

share information and conduct the inquiry jointly

with the interested Department of Defense investigative agency.

It is neither feasible nor desirable to establish

inflexible rules regarding the responsibilities of

the Department of Defense and the Department of

Justice as to each matter over which they may

have concurrent interest. Informal arrangements

and agreements within the spirit of this MOU are

p e r m i s s i b l e w i t h r e s p e c t t o s p e c i f i c c r i m e s o r

investigations.

A3-2

APPENDIX 3
C. INVESTIGATIVE AND PROSECUTIVE

JURISDICTION

1 . C R I M E S A R I S I N G F R O M T H E D E P A R T -

MENT OF DEFENSE OPERATIONS

a. Corruption Involving the Department of Defense Personnel The Department of Defense investigative agencies will refer to the FBI on receipt

all significant allegations of bribery and conflict of

interest involving military or civilian personnel of

the Department of Defense. In all corruption matters

the subject of a referral to the FBI, the Department

of Defense shall obtain the concurrence of the Department of Justice prosecutor or the FBI before

initiating any independent investigation preliminary

to any action under the Uniform code of Military

Justice. If the Department of Defense is not satisfied

with the initial determination, the matter will be

reviewed by the Criminal Division of the Department of Justice.

The FBI will notify the referring agency promptly

regarding whether they accept the referred matters

for investigation. The FBI will attempt to make such

decision in one (1) working day of receipt in such

matters.

DoD Supplemental Guidance

A. Certain bribery and conflict of interest allegations (also referred to as “corruption” offenses in the

MOU) are to be referred immediately to the FBI.

B. For the purposes of this section, bribery and conflict of interest allegations are those which would, if

proven, violate 18 U.S.C., Sections 201, 203, 205,

208, 209, or 219 (reference (c)).

C. Under paragraph C.1.a., DoD criminal investigative organizations shall refer to the FBI those “sign i f i c a n t ” a l l e g a t i o n s o f b r i b e r y a n d c o n f l i c t o f

interest that implicate directly military or civilian

personnel of the Department of Defense, including

allegations of bribery or conflict of interest that arise

during the course of an ongoing investigation.

1. All bribery and conflict of interest allegations

against present, retired, or former General or Flag

officers and civilians in grade GS-16 and above, the

Senior Executive Service and the Executive Level

will be considered “significant” for purposes of referral to the FBI.

2. In cases not covered by subsection C.1., above,

t h e d e t e r m i n a t i o n o f w h e t h e r t h e m a t t e r i s “ s i g -

nificant” for purposes of referral to the FBI should

be made in light of the following factors: sensitivity

of the DoD program, involved, amount of money in

the alleged bribe, number of DoD personnel implicated, impact on the affected DoD program, and

with respect to military personnel, whether the matter normally would be handled under the Uniform

Code of Military Justice (reference (d)). Bribery and

conflicts of interest allegations warranting consideration of Federal prosecution, which were not referred

to the FBI based on the application of these guidelines and not otherwise disposed of under reference

(d), will be developed and brought to the attention

of the Department of Justice through the “conference” mechanism described in paragraph C.1.b. of the

MOU(reference (b)).

D. Bribery and conflict of interest allegations when

military or DoD civilian personnel are not subjects

of the investigation are not covered by the referral

r e q u i r e m e n t o f p a r a g r a p h C . 1 . a o f r e f e r e n c e ( b ) .

Matters in which the suspects are solely DoD contractors and their subcontractors, such as commercial

bribery between a DoD subcontractor and a DoD

prime contractor, do not require referral upon receipt

to the FBI. The “conference” procedure described in

paragraph C.1.b. of reference (b) shall be used in

these types of cases.

E. Bribery and conflict of interest allegations that

a r i s e f r o m e v e n t s o c c u r r i n g o u t s i d e t h e U n i t e d

States, its territories, and possessions, and requiring

investigation outside the United States, its territories,

and possessions need not be referred to the FBI.

b. Frauds Against the Department of Defense and

Theft and Embezzlement of Government Property 

The Department of Justice and the Department of

Defense have investigative responsibility for frauds

against the Department of Defense and theft and

embezzlement of Government property from the Department of Defense. The Department of Defense

will investigate frauds against the Department of Defense and theft of government property from the

Department of Defense. Whenever a Department of

D e f e n s e i n v e s t i g a t i v e a g e n c y i d e n t i f i e s a m a t t e r

which, if developed by investigation, would warrant

federal prosecution, it will confer with the United

States Attorney or the Criminal Division, the Department of Justice, and the FBI field office. At the

time of this initial conference, criminal investigative

responsibility will be determined by the Department

A3-3

MEMORANDUM OF UNDERSTANDING BETWEEN THE DEPARTMENTS OF JUSTICE AND DEFENSE
of Justice in consultation with the Department of

Defense.

DoD Supplemental Guidance

A. Unlike paragraph C.1.a. of the MOU (reference

(b)), paragraph C.1.b. does not have an automatic

referral requirement. Under paragraph C.1.b., DoD

criminal investigative organizations shall confer with

the appropriate federal prosecutor and the FBI on

matters which, if developed by investigation, would

w a r r a n t F e d e r a l p r o s e c u t i o n . T h i s “ c o n f e r e n c e ”

serves to define the respective roles of DoD criminal

investigative organizations and the FBI on a caseby-case basis. Generally, when a conference is warranted, the DoD criminal investigative organization

shall arrange to meet with the prosecutor and shall

provide notice to the FBI that such meeting is being

held. Separate conferences with both the prosecutor

and the FBI normally are not necessary.

B. When investigations are brought to the attention

of the Defense Procurement Fraud Unit (DPFU),

such contact will satisfy the “conference” requirements of paragraph C.1.b. (reference (b)) as to both

the prosecutor and the FBI.

C. Mere receipt by DoD criminal investigative organizations of raw allegations of fraud or theft does

not require conferences with the DoJ and the FBI.

Sufficient evidence should be developed before the

conference to allow the prosecutor to make an informed judgment as to the merits of a case depende n t u p o n f u r t h e r i n v e s t i g a t i o n . H o w e v e r , D o D

criminal investigative organizations should avoid delay in scheduling such conferences, particularly in

complex fraud cases, because an early judgment by

a prosecutor can be of assistance in focusing the

investigation on those matters that most likely will

result in criminal prosecution.

2. CRIMES COMMITTED ON MILITARY INSTALLATIONS

a. Subject(s) can be Tried by Court-Martial or

are Unknown Crimes (other than those covered by

paragraph C.1.) committed on a military installation

will be investigated by the Department of Defense

investigative agency concerned and, when committed by a person subject to the Uniform Code of

Military Justice, prosecuted by the Military Department concerned. The Department of Defense will

provide immediate notice to the Department of Justice of significant cases in which an individual subj e c t / v i c t i m i s o t h e r t h a n a m i l i t a r y m e m b e r o r

dependent thereof.

b . O n e o r M o r e S u b j e c t s c a n n o t b e T r i e d b y

Court-Martial When a crime (other than those

covered by paragraph C.1.) has occurred on a military installation and there is reasonable basis to believe that it has been committed by a person or

persons, some or all of whom are not subject to the

Uniform Code of Military Justice, the Department of

Defense investigative agency will provide immediate

notice of the matter to the appropriate Department of

Justice investigative agency unless the Department

of Justice has relieved the Department of Defense of

the reporting requirement for that type or class of

crime.

DoD Supplemental Guidance

A. Subsection C.2. of the MOU (reference (b)) addresses crimes committed on a military installation

other than those listed in paragraphs C.1.a. (bribery

and conflict of interest) and C.1.b. (fraud, theft, and

embezzlement against the Government).

B. Unlike paragraph C.1.a. of reference (b), which

requires “referral” to the FBI of certain cases, and

paragraph C.1.b., which requires “conferences” with

r e s p e c t t o c e r t a i n c a s e s , s u b s e c t i o n C . 2 . r e q u i r e s

only that “notice” be given to DoJ of certain cases.

Relief from the reporting requirement of subsection

C.2. may be granted by the local U.S. attorney as to

types or classes of cases.

C. For purposes of paragraph C.2.a. (when the subjects can be tried by court-martial or are unknown),

a n a l l e g a t i o n i s “ s i g n i f i c a n t ” f o r p u r p o s e s o f r e -

quired notice to the DoJ only if the offense falls

within the prosecutorial guidelines of the local U.S.

attorney. Notice should be given in other cases when

the DoD Component believes that Federal prosecution is warranted or otherwise determines that the

case may attract significant public attention.

3 . C R I M E S C O M M I T T E D O U T S I D E M I L I T A R Y

I N S T A L L A T I O N S B Y P E R S O N S W H O C A N B E

TRIED BY COURT-MARTIAL

a. Offense is Normally Tried by Court-Martial 

Crimes (other than those covered by paragraph

C.1.) committed outside a military installation by

persons subject to the Uniform Code of Military

Justice which, normally, are tried by court-martial

will be investigated and prosecuted by the Department of Defense. The Department of Defense will

A3-4

APPENDIX 3
provide immediate notice of significant cases to the

a p p r o p r i a t e D e p a r t m e n t o f J u s t i c e i n v e s t i g a t i v e

agency. The Department of Defense will provide

immediate notice in all cases where one or more

subjects is not under military jurisdiction unless the

Department of Justice has relieved the Department

of Defense of the reporting requirement for that type

or class of crime.

DoD Supplemental Guidance

For purposes of this paragraph, an allegation is

“significant” for purposes of required notice to the

DoJ only if the offense falls within prosecutorial

guidelines of the local U.S. attorney. Notice should

be given in other cases when the DoD Component

believes that Federal prosecution is warranted, or

otherwise determines that the case may attract significant public attention.

b. Crimes Related to Scheduled Military Activities

C r i m e s r e l a t e d t o s c h e d u l e d M i l i t a r y a c t i v i t i e s

outside of a military installation, such as organized

maneuvers in which persons subject to the Uniform

C o d e o f M i l i t a r y J u s t i c e a r e s u s p e c t s , s h a l l b e

treated as if committed on a military installation for

purposes of this Memorandum. The FBI or other

Department of Justice investigative agency may assume jurisdiction with the concurrence of the United

States Attorney or the Criminal Division, Department of Justice.

c. Offense is not Normally Tried by Court-Martial When there are reasonable grounds to believe

that a Federal crime (other than those covered by

paragraph C.1.) normally not tried by court-martial,

has been committed outside a military installation by

a person subject to the Uniform Code of Military

J u s t i c e , t h e D e p a r t m e n t o f D e f e n s e i n v e s t i g a t i v e

agency will immediately refer the case to the approp r i a t e D e p a r t m e n t o f J u s t i c e i n v e s t i g a t i v e a g e n c y

unless the Department of Justice has relieved the

Department of Defense of the reporting requirement

for that type or class of crime.

D. REFERRALS AND INVESTIGATIVE

ASSISTANCE

1 . R E F E R R A L S R e f e r r a l s , n o t i c e s , r e p o r t s , r e -

quests and the general transfer of information under

this Memorandum normally should be between the

F B I o r o t h e r D e p a r t m e n t o f J u s t i c e i n v e s t i g a t i v e

agency and the appropriate Department of Defense

investigative agency at the field level.

If a Department of Justice investigative agency

does not accept a referred matter and the referring

Department of Defense investigative agency then, or

subsequently, believes that evidence exists supporting prosecution before civilian courts, the Department of Defense agency may present the case to the

United States Attorney or the Criminal Division, Department of Justice, for review.

2. INVESTIGATIVE ASSISTANCE In cases where

a Department of Defense or Department of Justice

investigative agency has primary responsibility and

it requires limited assistance to pursue outstanding

leads, the investigative agency requiring assistance

will promptly advise the appropriate investigative

agency in the other Department and, to the extent

authorized by law and regulations, the requested assistance should be provided without assuming responsibility for the investigation.

E. PROSECUTION OF CASES

1. With the concurrence of the Department of Defense, the Department of Justice will designate such

Department of Defense attorneys as it deems desirable to be Special Assistant United States Attorneys

for use where the effective prosecution of cases may

b e f a c i l i t a t e d b y t h e D e p a r t m e n t o f D e f e n s e

attorneys.

2. The Department of Justice will institute civil actions expeditiously in United States District Courts

whenever appropriate to recover monies lost as a

result of crimes against the Department of Defense;

the Department of Defense will provide appropriate

assistance to facilitate such actions.

3. The Department of Justice prosecutors will solicit

the views of the Department of Defense prior to

initiating action against an individual subject to the

Uniform Code of Military Justice.

4. The Department of Justice will solicit the views

of the Department of Defense with regard to its

Department of Defense-related cases and investigations in order to effectively coordinate the use of

civil, criminal and administrative remedies.

DoD Supplemental Guidance

Prosecution of Cases and Grants of Immunity

A. The authority of court-martial convening authoriA3-5

MEMORANDUM OF UNDERSTANDING BETWEEN THE DEPARTMENTS OF JUSTICE AND DEFENSE
ties to refer cases to trial, approve pretrial agreem e n t s , a n d i s s u e g r a n t s o f i m m u n i t y u n d e r t h e

U C M J ( r e f e r e n c e ( d ) ) e x t e n d s o n l y t o t r i a l s b y

court-martial. In order to ensure that such actions do

not preclude appropriate action by Federal civilian

authorities in cases likely to be prosecuted in the

U.S. district courts, court-martial convening authorities shall ensure that appropriate consultation as required by this enclosure has taken place before trial

by court-martial, approval of a pretrial agreement, or

issuance of a grant of immunity in cases when such

consultation is required.

B. Only a general court-martial convening authority

m a y g r a n t i m m u n i t y u n d e r t h e U C M J ( r e f e r e n c e

(d)), and may do so only in accordance with R.C.M.

704 (reference (e)).

1. Under reference (d), there are two types of

immunity in the military justice system:

a. A person may be granted transactional immunity from trial by court-martial for one or more

offenses under reference (d).

b. A person may be granted testimonial immunity, which is immunity from the use of testimony,

s t a t e m e n t s , a n d a n y i n f o r m a t i o n d i r e c t l y o r i n -

directly derived from such testimony or statements

by that person in a later court-martial.

2. Before a grant of immunity under reference

(d), the general court-martial convening authority

shall ensure that there has been appropriate consultation with the DoJ with respect to offenses in which

consultation is required by this enclosure.

3. A proposed grant of immunity in a case inv o l v i n g e s p i o n a g e , s u b v e r s i o n , a i d i n g t h e e n e m y ,

sabotage, spying, or violation of rules or statutes

concerning classified information or the foreign relations of the United States shall be forwarded to the

General Counsel of the Department of Defense for

the purpose of consultation with the DoJ. The General Counsel shall obtain the views of other appropriate elements of the Department of Defense in

furtherance of such consultation.

C. The authority of court-martial convening authorities extends only to grants of immunity from action

under reference (d). Only the Attorney General or

other authority designated under 18 U.S.C. Secs.

6001-6005 (reference (c)) may authorize action to

obtain a grant of immunity with respect to trials in

the U.S. district courts.

F. MISCELLANEOUS MATTERS

1. THE DEPARTMENT OF DEFENSE ADMINISTRATIVE ACTIONS Nothing in this Memorandum limits the Department of Defense investigations

conducted in support of administrative actions to be

taken by the Department of Defense. However, the

Department of Defense investigative agencies will

coordinate all such investigations with the appropriate Department of Justice prosecutive agency and

obtain the concurrence of the Department of Justice

prosecutor or the Department of Justice investigative

agency prior to conducting any administrative investigation during the pendency of the criminal investigation or prosecution.

2. SPECIAL UNIFORM CODE OF MILITARY JUSTICE FACTORS In situations where an individual

subject to the Uniform Code of Military Justice is a

suspect in any crime for which a Department of

Justice investigative agency has assumed jurisdict i o n , i f a D e p a r t m e n t o f D e f e n s e i n v e s t i g a t i v e

agency believes that the crime involves special factors relating to the administration and discipline of

the Armed Forces that would justify its investigat i o n , t h e D e p a r t m e n t o f D e f e n s e i n v e s t i g a t i v e

agency will advise the appropriate Department of

Justice investigative agency or the Department of

Justice prosecuting authorities of these factors. Investigation of such a crime may be undertaken by

the appropriate Department of Defense investigative

agency with the concurrence of the Department of

Justice.

3. ORGANIZED CRIME The Department of Defense investigative agencies will provide to the FBI

all information collected during the normal course of

agency operations pertaining to the element generally known as “organized crime ” including both

traditional (La Cosa Nostra) and nontraditional organizations whether or not the matter is considered

prosecutable. The FBI should be notified of any

i n v e s t i g a t i o n i n v o l v i n g a n y e l e m e n t o f o r g a n i z e d

crime and may assume jurisdiction of the same.

4. DEPARTMENT OF JUSTICE NOTIFICATIONS

TO DEPARTMENT OF DEFENSE INVESTIGATIVE

AGENCIES

a. The Department of Justice investigative agencies will promptly notify the appropriate Department

of Defense investigative agency of the initiation of

t h e D e p a r t m e n t o f D e f e n s e r e l a t e d i n v e s t i g a t i o n s

which are predicated on other than a Department of

Defense referral except in those rare instances where

A3-6

APPENDIX 3
notification might endanger agents or adversely affect the investigation. The Department of Justice investigative agencies will also notify the Department

of Defense of all allegations of the Department of

Defense related crime where investigation is not initiated by the Department of Justice.

b. Upon request, the Department of Justice investigative agencies will provide timely status reports

on all investigations relating to the Department of

D e f e n s e u n l e s s t h e c i r c u m s t a n c e s i n d i c a t e s u c h

reporting would be inappropriate.

c. The Department of Justice investigative agencies will promptly furnish investigative results at the

conclusion of an investigation and advise as to the

n a t u r e o f j u d i c i a l a c t i o n , i f a n y , t a k e n o r

contemplated.

d . I f j u d i c i a l o r a d m i n i s t r a t i v e a c t i o n i s b e i n g

considered by the Department of Defense, the Department of Justice will, upon written request, prov i d e e x i s t i n g d e t a i l e d i n v e s t i g a t i v e d a t a a n d

documents (less any federal grand jury material, disclosure of which would be prohibited by Rule 6(e),

Federal Rules of Criminal Procedure), as well as

agent testimony for use in judicial or administrative

proceedings, consistent with Department of Justice

and other federal regulations. The ultimate use of the

information shall be subject to the concurrence of

the federal prosecutor during the pendency of any

related investigation or prosecution.

5. TECHNICAL ASSISTANCE

a. The Department of Justice will provide to the

Department of Defense all technical services normally available to federal investigative agencies.

b. The Department of Defense will provide assistance to the Department of Justice in matters not

relating to the Department of Defense as permitted

by law and implementing regulations.

6. JOINT INVESTIGATIONS

a. To the extent authorized by law, the Department of Justice investigative agencies and the Dep a r t m e n t o f D e f e n s e i n v e s t i g a t i v e a g e n c i e s m a y

agree to enter into joint investigative endeavors, including undercover operations, in appropriate circumstances. However, all such investigations will be

subject to Department of Justice guidelines.

b. The Department of Defense, in the conduct of

any investigation that might lead to prosecution in

Federal District Court, will conduct the investigation

consistent with any Department of Justice guidelines. The Department of Justice shall provide copies

of all relevant guidelines and their revisions.

DoD Supplemental Guidance

When DoD procedures concerning apprehension,

search and seizure, interrogation, eyewitnesses, or

identification differ from those of DoJ, DoD procedures will be used, unless the DoJ prosecutor has

directed that DoJ procedures be used instead. DoD

criminal investigators should bring to the attention

o f t h e D o J p r o s e c u t o r , a s a p p r o p r i a t e , s i t u a t i o n s

when use of DoJ procedures might impede or preclude prosecution under the UCMJ (reference (d)).

7. APPREHENSION OF SUSPECTS To the extent authorized by law, the Department of Justice

and the Department of Defense will each promptly

deliver or make available to the other suspects, accused individuals and witnesses where authority to

investigate the crimes involved is lodged in the other

Department. This MOU neither expands nor limits

the authority of either Department to perform appreh e n s i o n s , s e a r c h e s , s e i z u r e s , o r c u s t o d i a l

interrogations.

G. EXCEPTION

This Memorandum shall not affect the investigative authority now fixed by the 1979 “Agreement

Governing the Conduct of the Defense Department

Counter intelligence Activities in Conjunction with

the Federal Bureau of Investigation” and the 1983

Memorandum of Understanding between the Department of Defense, the Department of Justice and the

FBI concerning “Use of Federal Military Force in

Domestic Terrorist Incidents.”

A3-7

MEMORANDUM OF UNDERSTANDING BETWEEN THE DEPARTMENTS OF JUSTICE AND DEFENSE

APPENDIX 3.1

MEMORANDUM OF UNDERSTANDING BETWEEN THE DEPARTMENTS OF

JUSTICE AND TRANSPORTATION (COAST GUARD) RELATING TO THE

INVESTIGATIONS AND PROSECUTION OF CRIMES OVER WHICH THE TWO

DEPARTMENTS HAVE CONCURRENT JURISDICTION.

Whereas, certain crimes committed by Coast Guard

personnel subject to the Uniform Code of Military

Justice may be prosecuted by Coast Guard tribunals

under the Code or by civilian authorities in the Federal Courts; and

Whereas, it is recognized that although the administration and discipline of the Coast Guard requires

that certain types of crimes committed by its personnel be investigated by that service and prosecuted

before Coast Guard military tribunals other types of

crimes committed by such 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 Coast Guard 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 Transportation (Coast

Guard) as to the general areas in which they will

investigate and prosecute crimes to which both civil

a n d m i l i t a r y j u r i s d i c t i o n a t t a c h w i l l , n e v e r t h e l e s s ,

tend to make the investigation and prosecution of

crimes more expeditious and efficient and give appropriate effect to the policies of civil government

a n d t h e r e q u i r e m e n t s o f t h e U n i t e d S t a t e s C o a s t

Guard;

It is hereby agreed and understood between the

Department of Justice and the Department of Transportation (Coast Guard) as follows:

1. Crimes committed on military installations (including aircraft and vessels). Except as hereinafter

indicated, all crimes committed on a military installation by Coast Guard personnel subject to the Uniform Code of Military Justice shall be investigated

and prosecuted by the Coast Guard if the Coast

Guard makes a determination that there is a reasonable likelihood that only Coast Guard personnel subject to the Uniform Code of Military justice are

involved in such crimes as principles 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.

U n l e s s s u c h a d e t e r m i n a t i o n i s m a d e , t h e C o a s t

Guard 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 Federal Bureau of Investigation. The

Federal Bureau of Investigation shall investigate any

serious crime of which it 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 Coast Guard. Even if the

determination provided for in the first sentence of

this paragraph is made by the Coast Guard, it shall

promptly advise the Federal Bureau of Investigation

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 bona fide

dependent or member of the household of military

or civilian personnel residing on the installation and

that the Coast Guard is investigating the crime because it has been determined to be extraordinary.

The Coast Guard shall promptly advise the Federal

Bureau of Investigation whenever the crime, except

in minor offenses, involves fraud against the government, misappropriation, robbery, or theft of government property of funds, or is of a similar nature. All

such crimes shall be investigated by the Coast Guard

unless it receives prompt advise that the Department

of Justice has determined that the crime should be

investigated by the Federal Bureau of Investigation

and that the Federal Bureau of Investigation will

undertake the investigation for the purpose of prosecution in the civil courts.

2 . C r i m e s c o m m i t t e d o u t s i d e o f m i l i t a r y i n s t a l l a -

t i o n s . E x c e p t a s h e r e i n a f t e r i n d i c a t e d , a l l c r i m e s

committed outside of military installations, which

fall within the investigative jurisdiction of the Federal Bureau of Investigation and in which there is

involved as a suspect an individual subject to the

Uniform Code of Military Justice, shall be investigated by the Federal Bureau of Investigation for the

purpose of prosecution in civil courts, unless the

A3.1-1
Department of Justice determines that investigation

and prosecution may be conducted more efficiently

a n d e x p e d i t i o u s l y b y o t h e r a u t h o r i t i e s . A l l s u c h

crimes which come first to the attention of Coast

Guard authorities shall be referred promptly by them

to the Federal Bureau of Investigation, unless relieved of this requirement by the Federal Bureau of

I n v e s t i g a t i o n a s t o p a r t i c u l a r t y p e s o r c l a s s e s o f

c r i m e . H o w e v e r , w h e n e v e r C o a s t G u a r d m i l i t a r y

personnel are engaged in scheduled military activities outside of military installations such as organi z e d m a n e u v e r s o r o r g a n i z e d m o v e m e n t , t h e

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 Federal Bureau of Investigation,

an individual who is subject to the Uniform Code of

Military Justice and if the Coast Guard authorities

believe that the crime involves special factors relating to the administration and discipline of the Coast

Guard which would justify investigation by them for

the purpose of prosecution before a Coast Guard

military tribunal, they shall promptly advise the Federal Bureau of Investigation of the crime and indicate their views on the matter. Investigation of such

a crime may be undertaken by the Coast Guard

m i l i t a r y a u t h o r i t i e s i f t h e D e p a r t m e n t o f J u s t i c e

agrees.

3. Transfer of investigative authority. An investigative body of the Coast Guard 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

Coast Guard 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

t h a t o r b y a n y o t h e r i n v e s t i g a t i v e b o d y , i t s h a l l

p r o m p t l y a d v i s e t h e o t h e r i n t e r e s t e d i n v e s t i g a t i v e

body of its views. By agreement between the Dep a r t m e n t s o f J u s t i c e a n d T r a n s p o r t a t i o n ( C o a s t

~ G u a r d ) , ~ i n v e s t i g a t i v e a u t h o r i t y m a y t h e n b e

transferred.

4. Administrative action. Exercise of exclusive investigative authority by the Federal Bureau of Investigation pursuant to this agreement shall not preclude

Coast Guard military authorities from making inquiries for the purpose of administrative action related to the crime being investigated. The Federal

Bureau of Investigation will make the results of its

investigations available to Coast Guard 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

I n v e s t i g a t i o n a n d t h e l o c a l C o a s t G u a r d m i l i t a r y

commander.

5. Surrender of suspects. To the extent of the legal

authority conferred upon them, the Department of

J u s t i c e a n d C o a s t G u a r d m i l i t a r y a u t h o r i t i e s w i l l

each deliver to the other promptly suspects and acc u s e d i n d i v i d u a l s i f a u t h o r i t y t o i n v e s t i g a t e t h e

crimes in which such accused individuals and suspects are involved is lodged in the other by paragraphs 1 and 2 hereof.

Nothing in this memorandum shall prevent the

Coast Guard 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 if such action is required pursuant to

this memorandum.

APPROVED:

/s/ Ramsey Clark /s/ Alan S. Boyd

Ramsey Clark Alan S. Boyd

Attorney General Secretary of Transportation

Date: 9 October 1967 Date: 24 October 1967

A3.1-2

APPENDIX 3.1
APPENDIX 4

Charge Sheet (DD FORM 458)

A4-1
A4-2

APPENDIX 4
APPENDIX 5

Investigating Officer Report (DD FORM 457)

A5-1
A5-2

APPENDIX 5
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)

[ P u r s u a n t t o ( p a r a . G e n e r a l

O r d e r N o . , D e p a r t m e n t o f

t h e , ) ( S E C N A V l t r

ser of ) a] (A) (general)

( s p e c i a l ) c o u r t - m a r t i a l i s c o n v e n e d w i t h t h e

f o l l o w i n g m e m b e r s ( a n d s h a l l m e e t

at , unless otherwise directed): (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.]

[Note 4. 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) courtm a r t i a l c o n v e n e d b y o r d e r n o . t h i s

( h e a d q u a r t e r s ) ( s h i p ) ( ) ,

dated , in which the proceedings

have not begun, will be brought to trial before the

court-martial hereby convened.

(2) Order amending convening orders.

[ N o t e 5 . T h e s a m e h e a d i n g a n d

authentication used on convening order should be

used on amending orders.]

[Note 6. A succession of amending orders

m a y r e s u l t i n e r r o r . C a r e s h o u l d b e u s e d i n

amending convening orders.]

(a) Adding members.

[ N o t e 7 . M e m b e r s m a y b e a d d e d i n

specific cases or for all cases.]

The following members are detailed to the (general)

( s p e c i a l ) c o u r t - m a r t i a l c o n v e n e d b y o r d e r

n o . , t h i s ( h e a d q u a r t e r s ) ( s h i p )

( ), dated

(for the trial of only).

(b) Replacing members.

A6-1
[ N o t e 8 . M e m b e r s m a y b e r e p l a c e d i n

specific cases or for all cases.]

(Captain) (Colonel) , is detailed as a

m e m b e r o f t h e ( g e n e r a l ) ( s p e c i a l ) c o u r t - m a r t i a l

c o n v e n e d b y o r d e r n o . , t h i s

( h e a d q u a r t e r s ) ( s h i p ) ( ) ,

d a t e d , r e l i e v e d ( f o r t h e c a s e

of only).

b. Summary court-martial convening orders

(Date)

(Designation of command of officer convening

court-martial)

[ P u r s u a n t t o ( p a r a . ,

G e n e r a l O r d e r N o . , D e p a r t m e n t o f

t h e , , ) ( S E C N A V l t r

s e r o f , ) ]

( L i e u t e n a n t C o m m a n d e r ) ( M a j o r ) i s

d e t a i l e d a s u m m a r y c o u r t - m a r t i a l ( a n d s h a l l s i t

at , unless otherwise directed).

[Note 9. The name, rank, and position of

the convening authority should be shown. The order

m a y b e a u t h e n t i c a t e d b y t h e s i g n a t u r e o f t h e

convening authority or a person acting under the

direction of the convening authority.]

[ N o t e 1 0 . T h e s u m m a r y c o u r t - m a r t i a l

c o n v e n i n g o r d e r m a y b e a s e p a r a t e p a g e o r a

notation on the charge sheet. See R.C.M. 504(d)(2)

and 1302(c).]

A6-2

APPENDIX 6
APPENDIX 7

Subpoena (DD FORM 453)

A7-1
A7-2

APPENDIX 7
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.]

[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.]

Sessions called to order MJ: This Article 39(a) session is called to order. (Be seated.)

Convening orders and referral of

charges

TC: The court-martial is convened by (general) (special) court-martial convening order(s) number , (HQ )

(USS ) ( ), (as amended by )

copies of which have been furnished to 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) ad 1103. See also Appendices 13 and 14.]

[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

court-martial (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 on the convening orders: ).

[Note 7. Only minor changes, such as typolineartal 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.]

TC: The accused and the following persons detailed to this court-martial are

present: . The members and the following persons detailed

to this court-martial are absent: .

Reporter 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).

A8-1
[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 TC: (I am) (All members of the prosecution are) Prosecution qualified and

certified under Article 27(b) and sworn under Article 42(a).

( .)

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

court-martial by .)

Qualifications of defense DC: (All detailed members of the defense are) (I Counsel 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

counsel when present

IDC: My qualifications are . I have not acted in any 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.]

MJ: , you have the right to be represented in this court-martial

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 detailing 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?

A8-2

App. 8 APPENDIX 8
ACC: .

MJ: Who do you want to represent you?

ACC: .

[Note 14. If appropriate, the court-martial should be continued to permit the accused to obtain individual military or civilian counsel.]

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 TC: The general nature of the charge(s) in this case is .

The charge(s) were preferred by , forwarded with recommendations as to disposition by (, and investigated

by ). ( is also an accuser in this case.)

Challenge of military judge [Note 16. See R.C.M. 902.]

TC: Your honor, are you aware of any matter which may be a ground for

challenge against you?

MJ: (I am aware of none.) ( .)

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: .

A8-3

GUIDE FOR GENERAL AND SPECIAL COURTS-MARTIAL App. 8
[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 38–17 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 he 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) ( )

.) . 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.]

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: ( .)

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.]

A8-4

App. 8 APPENDIX 8
DC: The defense has (no) (the following) motion(s). ( .)

[Note 24. After any motions are disposed of pleas are ordinarily entered. See R.C.M. 910.]

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.]

[Note 26. If trial 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.

9l0(a)(2).]

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?

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. You have

the right to plead not guilty and place the burden upon the prosecution

to prove your guilt. Do you understand that?

ACC: .

Waiver of rights 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 prosecution 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?

A8-5

GUIDE FOR GENERAL AND SPECIAL COURTS-MARTIAL App. 8
ACC: .

Maximum penalty 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?

ACC: .

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: .

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.]

MJ: In a moment, you will be placed under oath and we will discuss the

facts of your case. If what you say is not true, your statements may be

used against you in a prosecution for perjury or false statement. Do you

understand?

ACC: .

A8-6

App. 8 APPENDIX 8
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 3l. 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) , 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: .

[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: .

A8-7

GUIDE FOR GENERAL AND SPECIAL COURTS-MARTIAL App. 8
[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 plead 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: (l) 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 which appears (on the bottom of page ), ( ) and did you read this part of

the agreement?

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: .

A8-8

App. 8 APPENDIX 8
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

Exhibit , which you have just read) ( ).

[In addition, (you have agreed to testify against )

( ) (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: is this agreement, Appellate Exhibit(s)

(and ) 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 agreement 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?

A8-9

GUIDE FOR GENERAL AND SPECIAL COURTS-MARTIAL App. 8
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?

ACC: .

MJ: , although you believe you are guilty, you have a legal

and a moral right to plead not guilty and to require the Government 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 on a guilty plea

[Note 39. Findings of guilty may, and ordinarily should, be entered at this point except when: (l) not

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. 9l0(g)(l) and (2). See

also R.C.M. 9l0(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 court-martial finds you (of all charges and specifications) (of Specification

of Charge and Charge ):

Guilty.

A8-10

App. 8 APPENDIX 8
[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. 100l(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.]

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 convening 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.

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

) ( ), 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 he 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).

Oath of members MJ: The members will now be sworn.

TC: All persons please rise.

A8-11

GUIDE FOR GENERAL AND SPECIAL COURTS-MARTIAL App. 8
“Do you [name(s) of member(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.

Assembly/preliminary

instructions

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, l006), 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. 611, 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.]

General nature of charges [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 .)

Challenges TC: The records of this case disclose (no grounds for challenge) (grounds

for challenge of , on the following grounds .)

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 members 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.]

A8-12

App. 8 APPENDIX 8
[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 )

(and ), to which the accused has pleaded not guilty.

You may not consider the fact that the accused pleaded guilty to (one)

(some) offense(s) 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.]

SECTION III. TRIAL

[Note 57. See R.C.M. 913.]

MJ: Will the prosecution make an opening statement?

TC: (No) (Yes. .)

A8-13

GUIDE FOR GENERAL AND SPECIAL COURTS-MARTIAL App. 8
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.]

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).

WIT: .

[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. 611.]

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 Mil. 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.]

A8-14

App. 8 APPENDIX 8
[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.]

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.

Prosecution 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 witness. Redirect and recross-examination may be

conducted as appropriate. The military judge and members may question each witness. See note 64.]

[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. 9l3(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), 9l3(c)(l)(F).]

[Note 75. When a witness is recalled, the following is appropriate.]

TC: Are you the same who testified earlier in this court-martial?

A8-15

GUIDE FOR GENERAL AND SPECIAL COURTS-MARTIAL App. 8
WIT: 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. 919. After arguments, proceed to announcement of findings.]

Out of court hearing on findings

instructions

[Note 77. Ordinarily the military judge will conducts 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.]

Closing arguments [Note 78. See R.C.M. 919.]

TC: .

DC: .

TC: .

Instructions [Note 79. See R.C.M. 920.]

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

court-martial 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 ?

PRES: Yes.

MJ: Would (the bailiff) (trial counsel), without examining it please bring

me Appellate Exhibit ?

A8-16

App. 8 APPENDIX 8
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 .

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)(1).]

MJ: The court-martial will now hear the data concerning the accused shown

on the charge sheet.

TC: .

Matters presented by

prosecution

MJ: Does the prosecution have other matters to present?

[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: .

A8-17

GUIDE FOR GENERAL AND SPECIAL COURTS-MARTIAL App. 8
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).]

Out of court hearing on

sentencing instructions

[Note 91. If trial is by military judge alone, counsel should be permitted to make arguments on sentencing. 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.]

Closing arguments [Note 93. See R.C.M. 1001(g).]

TC: .

DC: .

Instructions [Note 94. See R.C.M. 1005.]

MJ: .

MJ: Does any member have any questions concerning these instructions?

MEMBERS: .

MJ: Do counsel have any objections concerning these instructions not

previously raised?

TC: .

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.

A8-18

App. 8 APPENDIX 8
MJ: Would (the bailiff) (trial counsel), without examining it, please bring

me Appellate Exhibit .

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 are additional matters

to be considered (e.g., punishment limitation in a pretrial agreement in a trial by military judge alone,

see R.C.M. 9l0(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.]

Advice of post-trial and

appellate rights

[Note 99. The military judge must advise the accused of the accused’s post-trial and appellate rights.

See R.C.M. 1010.]

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

which BCD or confinement for

one year is adjudged

[Note 100. In cases subject to review by a Court of Criminal Appeals, the following advice should be

given. In other cases proceed to Note 101 or 102 as appropriate.]

A8-19

GUIDE FOR GENERAL AND SPECIAL COURTS-MARTIAL App. 8
MJ: , I will now advise you of your post-trial and appellate

rights. Remember that in exercising these rights you have the right to

the advice and assistance of military counsel provided free of charge or

civilian counsel provided at your own expense.

You have the right to submit any matters you wish the convening authority to consider in deciding whether to approve all, part, or any of

the findings and sentence in your case. Such matters must be submitted

within 10 days after you or your counsel receive a copy of the record

of trial and the recommendation of the (staff judge advocate) (legal officer).

If the convening authority approves the discharge or confinement at

hard labor for a year or more, your case will be reviewed by a Court of

Criminal Appeals.

After the Court of Criminal Appeals completes its review, you may request that your case be reviewed by the Court of Appeals for the

Armed Forces; if your case is reviewed by that Court, you may request

review by the United States Supreme Court.

You also have the right to give up review by the Court of Criminal Appeals, or to withdraw your case from appellate review at any time

before such review is completed.

If you give up your right to review by the Court of Criminal Appeals

or later withdraw your case from appellate review.

(a) That decision is final and you cannot change your mind later.

(b) Your case will be reviewed by a military lawyer for legal error. It

will also be sent to the (general court-martial*) convening authority for

final action.

(*Use only for special court-martial.)

(c) Within 2 years after final action is taken on your case, you may request The Judge Advocate General to take corrective action.

ACC: .

MJ: The court-martial is adjourned.

GCM subject to review under

Article 69

[Note 101. In general courts-martial subject to review under Article 69, the following advice should be

given. In other cases, proceed to Note 102.]

A8-20

App. 8 APPENDIX 8
MJ: , I will now advise you of your post-trial and appellate

rights. Remember that in exercising these rights you have the right to

the advice and assistance of military counsel provided free of charge or

civilian counsel provided at your own expense.

You have the right to submit any matters you wish the convening authority to consider in deciding whether to approve all, part, or any of

the findings and sentence in your case. Such matters must be submitted

within 10 days after you or your counsel receive a copy of the record

of trial and the recommendation of the (staff judge advocate) (legal officer). If the convening authority approves any part of your sentence,

your case will be examined in the Office of The Judge Advocate General for any legal errors and to determine whether your sentence is fair.

The Judge Advocate General may take corrective action, if appropriate.

You also have the right to give up examination by The Judge Advocate

General or to withdraw your case from such examination at any time

before such examination is completed. If you give up your right to examination by The Judge Advocate General or later withdraw your case

from such examination:

(a) That decision is final and you cannot change your mind later.

(b) Your case will be reviewed by a military lawyer for legal error. It

will also be sent to the convening authority for final action.

(c) Within 2 years after action is taken on your case, you may request

The Judge Advocate General to take corrective action.

ACC: .

MJ: The court-martial is adjourned.

SPCM not involving a BCD or

confinement for one year

[Note 102. In special courts-martial not involving BCD or confinement for one year, the following advice should be given.]

MJ: , I will now advise you of your post-trial and appellate

rights. Remember that in exercising these rights, you have the right to

the advice and assistance of military counsel provided free of charge or

civilian counsel provided at your own expense. You have the right to

submit any matters you wish the convening authority to consider in deciding whether to approve all, part, or any of the findings and sentence

in your case. Such matters must be submitted within l0 days after you

or your counsel receive a copy of the record of trial. If the convening

authority approves any part of the findings or sentence, your case will

be reviewed by a military lawyer for legal error. It may be sent to the

general court-martial convening authority for final action on any recommendation by the lawyer for corrective action. Within 2 years after

final action is taken on your case, you may request The Judge Advocate General to take corrective action. Do you have any questions?

ACC: .

A8-21

GUIDE FOR GENERAL AND SPECIAL COURTS-MARTIAL App. 8
MJ: The court-martial is adjourned.

A8-22

App. 8 APPENDIX 8
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: I am . I have been detailed to conduct a summary courtmartial (by Summary Court-Martial Convening Order (Number ), Headquarters, , dated [ seeconvening order]).

Referral of charges to trial Charges against you have been referred to me for trial by summary

court-martial by ([name and title of convening authority]) on ([date of

referral]) [see block IV on page 2 of charge sheet].

[Note 1. Hand copy of charge sheet to the accused.]

Providing the accused with

charge sheet

I suggest that you keep this copy of the charge sheet and refer to it during 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?

A9-1
ACC: .

Right to object to SCM SCM: 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 courtmartial, 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.] Do you understand that?

ACC: .

Right to inspect allied papers

and personnel records.

SCM: 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 inspect [identify personnel records or other

documents which are not present] which are located at .

You may have time to examine these if you wish.)

Witnesses/other evidence for the

government

SCM: The following witnesses will probably appear and testify against

you: . The following documents and physical evidence will

probably be introduced: .

Right to cross-examine 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?

ACC: .

Right to present evidence SCM: 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?

ACC: .

Evidence to be considered SCM: 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?

ACC: .

Right to remain silent SCM: 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).

A9-2

App. 9 APPENDIX 9
Right to testify concerning the

offense(s)

However, if you choose, you may be sworn and testify as a witness

concerning the offense(s) charged against you. If you do that, I will

consider your testimony just like the testimony of any other witness.

[Note 2. Use the following if there is only one specification.]

If 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: .

[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(s) 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 unsworn

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 (l) reduction to lowest enlisted pay grade; and

(2) forfeiture of two-thirds of 1 month’s pay; and

(3) confinement for l month.

[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.

A9-3

GUIDE FOR SUMMARY COURTS-MARTIAL App. 9
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: .

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 at . 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.

Objection/consent to trial by

SCM

SCM: Do you object to trial by summary court-martial?

ACC: .

A9-4

App. 9 APPENDIX 9
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(s)?

ACC: .

SCM: Do you want me to read them to you?

ACC: [If accused requests, read the charge(s) 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. l304(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)]

[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(s). 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: .

A9-5

GUIDE FOR SUMMARY COURTS-MARTIAL App. 9
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 11. Re-read the appropriate sentencing section at notes 4 or 5 above unless the summary courtmartial 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: .

SCM: Has anyone made any threat or tried in any other way to force you to

plead guilty?

ACC: .

Pretrial 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 35 through 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

included offenses

SCM: Do you understand that your pleas of guilty to the lesser included offense of confess all the elements of the offense charged

except , and that no proof is necessary to establish those

elements admitted by your pleas?

A9-6

App. 9 APPENDIX 9
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(s) 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 he 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

inquiry

SCM: 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: .

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

[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 court-martial, 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.]

A9-7

GUIDE FOR SUMMARY COURTS-MARTIAL App. 9
Acceptance of guilty pleas 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

self-incrimination, 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: .

If any not guilty pleas remain [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.]

Witnesses for the accused 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.]

Calling witnesses SCM: I call as a witness .

Witness oath 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 recrossexamination.]

[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 this case with you, refuse to do so and report the attempt to me

immediately. Do you understand that?

A9-8

App. 9 APPENDIX 9
WIT: .

SCM: [To the witness]You are excused.

Recalling witnesses [Note 2l. 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.

Presentation of defense case [Note 23. 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.]

Closing argument 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.

Deliberations on findings [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(s) 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.]

Announcing the findings [Note 26. The summary court-martial should recall the accused, who will stand before the court-martial

when findings 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.]

Not guilty of all offenses SCM: I find you of (the) (all) Charge(s) and Specification(s): Not Guilty.

Guilty of all offenses I find you of (the) (all) Charge(s) and Specification(s): Guilty.

Guilty of some but not all

offenses

I find you of (the) Specification ( ) of (the) Charge

( ): Not Guilty; of (the) Specification ( ) of (the)

Charge ( ): Guilty; of (the) Charge ( ): Guilty.

Guilty of lesser included offense

or with exceptions and

substitutions

I find you of (the Specification ( ) of (the) Charge

( ): Guilty, except the words -

and ; (substituting therefor, 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.]

A9-9

GUIDE FOR SUMMARY COURTS-MARTIAL App. 9
Procedure 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.]

Procedure if any findings of

guilty

[Note 29. If the accused has been found guilty of any offense, proceed as follows.]

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 also R.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 I can help you get them. Do you understand that?

ACC: .

Rights of accused to testify,

remain silent, and make an

unsworn statement

SCM: I informed you earlier of your right to testify under oath, to remain silent, and to make an unsworn statement about these matters.

SCM: Do you understand these rights?

ACC: .

SCM: Do you wish to call witnesses or introduce anything in writing?

ACC: .

A9-10

App. 9 APPENDIX 9
[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: .

Questions concerning pleas of

guilty

[Note 35. If as a result of matters received on sentencing, including the accused’s testimony or an unsworn 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.]

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 concerning 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 convening authority approves an extension of up to 20 days.

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.

A9-11

GUIDE FOR SUMMARY COURTS-MARTIAL App. 9
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.]

A9-12

App. 9 APPENDIX 9
APPENDIX 10

FORMS OF FINDINGS

a. Announcement of findings

SeeR.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 .”

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. Findings of Not Guilty only by Reason

of Lack of Mental Responsibility

Of (the) Specification ( ) of (the) Charge

( ) and of (the) Charge

( ): Not Guilty only by Reason of Lack of

Mental Responsibility

III. Conviction of all Charges

Of all Specifications and Charges: Guilty

IV. 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 II: Not Guilty

Of Charge II: Not Guilty

V. 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

VI. Conviction by exceptions

Of (the) Specification ( ) of Charge I:

Guilty except the words

“ ”;

Of the excepted words: Not Guilty

Of Charge I: (Guilty) (Not Guilty, but Guilty of a

violation of Article )

VII. Conviction by exceptions and

substitutions

Of (the) Specification ( ) 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 )

VIII. Conviction under one Charge of

offenses under different Articles

Of Specification 1 of (the) Charge

( ): Guilty, of Specification 2 of (the)

Charge ( ): Guilty, except the words

“ .”

Of (the) Charge ( ), as to Specification 1:

Guilty, as to Specification 2: Not Guilty, but Guilty

of a violation of Article .

A10-1

APPENDIX 11

FORMS OF SENTENCES

a. Announcement of sentence

See R.C.M. 1007.

In announcing the sentence, the president or, in

c a s e s t r i e d b y m i l i t a r y j u d g e a l o n e , t h e m i l i t a r y

judge should announce:

“ ( N a m e o f a c c u s e d ) , t h i s c o u r t - m a r t i a l s e n t e n c e s

you .”

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 punishments 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 conf i n e d f o r s i x m o n t h s , a n d t o f o r f e i t

$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

“ T o p e r f o r m h a r d l a b o r w i t h o u t

confinement for one month and to forf e i t $ 2 5 . 0 0 p a y p e r m o n t h f o r o n e

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

$ (and to serve (additional) confinement

of (days) (months) (years) if the fine is

not paid).

Reduction of Enlisted Personnel

6. To be reduced to .

Restraint and Hard Labor

7. To be restricted to the limits offor (days) (months).

8. To perform hard labor without confinement for (days) (months).

9. To be confined for (days)

(months) (years) (the length of your natural life with

eligibility) (the length of your natural life without eligibility for parole).

10. To be confined on (bread and water) (diminished rations) for days.

Punitive Discharge

A11-1
11. To be discharged from the service with a

bad-conduct discharge (Enlisted Personnel only).

12. To be dishonorably discharged from the

service (Enlisted Personnel and Noncommissioned

Warrant Officers only).

13. To be dismissed from the service

(Commissioned Officers, Commissioned Warrant

Officers, Cadets, and Midshipmen only).

Death

14. To be put to death.

[Note: A court-martial has no authority to

suspend a sentence or any part of a sentence.]

A11-2

App. 11 APPENDIX 11
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 information concerning maximum punishments.

Article Offense Discharge Confinement Forfeitures

77 Principals (see Part IV, Para. 1 and pertinent offenses)

78 Accessory after the fact (see Part IV, Para. 3.e.)

79 Lesser included offenses (see Part IV, Para. 2 and pertinent offenses)

80 Attempts (see Part IV, Para. 4.e.)

81 Conspiracy (see Part IV, Para. 5.e.)

82 Solicitation

If solicited offense committed, or attempted, see Part IV, Para. 6.e.

If solicited offense not committed:

Solicitation to desert1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD 3 yrs.1 Total

Solicitation to mutiny1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD 10 yrs.1 Total

Solicitation to commit act of misbehavior before enemy1 . . . . . . . DD, BCD 10 yrs.1 Total

Solicitation to commit act of sedition 1 . . . . . . . . . . . . . . . . . . . . . . DD, BCD 10 yrs.1 Total

83 Fraudulent enlistment, appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD 2 yrs. Total

Fraudulent separation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD 5 yrs. Total

84 Effecting unlawful enlistment, appointment, separation . . . . . . . . . . . . . DD, BCD 5 yrs. Total

85 Desertion

In time of war . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Death, DD, BCD Life4 Total

Intent to avoid hazardous duty, shirk important service 1 . . . . . . . . . DD, BCD 5 yrs.1 Total

Other cases

Terminated by apprehension . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD 3 yrs.1 Total

Otherwise terminated . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD 2 yrs.1 Total

86 Absence without leave, etc.

Failure to go, going from place of duty . . . . . . . . . . . . . . . . . . . . . . . None 1 mo. 2/3 1 mo.

Absence from unit, organization, etc.

Not more than 3 days . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . None 1 mo. 2/3 1 mo.

More than 3, not more than 30 days . . . . . . . . . . . . . . . . . . . . . . . . None 6 mos. 2/3 6 mos.

More than 30 days . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD 1 yr. Total

More than 30 days and terminated by apprehension . . . . . . . . . . . DD, BCD 1 yr., 6 mos. Total

Absence from guard or watch . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . None 3 mos. 2/3 3 mos.

Absence from guard or watch with intent to abandon . . . . . . . . . . . . BCD 6 mos. Total

Absence with intent to avoid maneuvers, field exercises . . . . . . . . . . BCD 6 mos. Total

87 Missing movement

Through design . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD 2 yrs. Total

Through neglect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . BCD 1 yr. Total

88 Contempt toward officials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Dismissal 1 yr. Total

89 Disrespect toward superior commissioned officer . . . . . . . . . . . . . . . . . . BCD 1 yr. Total

90 Assaulting, willfully disobeying superior commissioned officer

In time of war . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Death, DD, BCD Life4 Total

Striking, drawing or lifting up any weapon or offering any violence

toward superior commissioned officer execution of duty1 . . . . . . .

DD, BCD 10 yrs.1 Total

Willfully disobeying lawful order of superior commissioned officer1 DD, BCD 5 yrs.1 Total

91 Insubordinate conduct toward warrant, noncommissioned, petty officer

Striking or assaulting:

Warrant officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD 5 yrs. Total

Superior noncommissioned officer . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD 3 yrs. Total

Other noncommissioned or petty officer . . . . . . . . . . . . . . . . . . . . . DD, BCD l yr. Total

Willfully disobeying:

Warrant officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD 2 yrs. Total

Noncommissioned or petty officer . . . . . . . . . . . . . . . . . . . . . . . . . . BCD l yr. Total

Contempt, disrespect toward:

Warrant Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . BCD 9 mos. Total

Superior noncommissioned or petty officer . . . . . . . . . . . . . . . . . . . BCD 6 mos. Total

Other noncommissioned or petty officer . . . . . . . . . . . . . . . . . . . . .. None 3 mos. 2/3 3 mos.

A12-1
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 information concerning maximum punishments.

Article Offense Discharge Confinement Forfeitures

92 Failure to obey order, regulation

Violation, failure to obey general order or regulation 2 . . . . . . . . . . . DD, BCD 2 yrs. Total

Violation, failure to obey other order 2 . . . . . . . . . . . . . . . . . . . . . . . . BCD 6 mos. Total

Dereliction in performance of duties

Through neglect, culpable inefficiency . . . . . . . . . . . . . . . . . . . . . . None 3 mos. 2/3 3 mos.

Willful . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . BCD 6 mos. Total

93 Cruelty, maltreatment of subordinates . . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD 1 yr. Total

94 Mutiny & sedition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Death, DD, BCD Life4 Total

95 Resisting apprehension, flight, breach of arrest, escape

Resisting apprehension . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . BCD 1 yr. Total

Flight from apprehension . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . BCD 1 yr. Total

Breaking arrest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . BCD 6 mos. Total

Escape from custody, pretrial confinement, or confinement on bread

and water or diminished rations . . . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD 1 yr. Total

Escape from post-trial confinement . . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD 5 yrs. Total

96 Releasing prisoner without proper authority . . . . . . . . . . . . . . . . . . . . . . DD, BCD 2 yrs. Total

Suffering prisoner to escape through neglect . . . . . . . . . . . . . . . . . . . . . BCD 1 yr. Total

Suffering prisoner to escape through design . . . . . . . . . . . . . . . . . . . . . . DD, BCD 2 yrs. Total

97 Unlawful detention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD 3 yrs. Total

98 Noncompliance with procedural rules, etc.

Unnecessary delay in disposition of case . . . . . . . . . . . . . . . . . . . . . . BCD 6 mos. Total

Knowingly, intentionally failing to comply, enforce code . . . . . . . . . DD, BCD 5 yrs. Total

99 Misbehavior before enemy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Death, DD, BCD Life4 Total

100 Subordinate compelling surrender . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Death, DD, BCD Life4 Total

101 Improper use of countersign . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Death, DD, BCD Life4 Total

102 Forcing safeguard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Death, DD, BCD Life4 Total

103 Captured, abandoned property; failure to secure, etc.

Of value of $500.00 or less . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . BCD 6 mos. Total

Of value of more than $500.00 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD 5 yrs. Total

Any firearm or explosive . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD 5 yrs. Total

Looting, pillaging . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD Life4 Total

104 Aiding the enemy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Death, DD, BCD Life4 Total

105 Misconduct as prisoner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD Life4 Total

106 Spying . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mandatory Death,

DD, BCD

Not

applicable

Total

106a Espionage

Cases listed in Art. 106a(a)(l)(A)–(D) . . . . . . . . . . . . . . . . . . . . . . . . . Death, DD, BCD Life4 Total

Other cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD Life4 Total

107 False official statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD 5 yrs. Total

108 Military property; loss, damage, destruction, disposition

Selling, otherwise disposing

Of value of $500.00 or less . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . BCD 1 yr. Total

Of value of more than $500.00 . . . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD 10 yrs. Total

Any firearm, explosive or incendiary device DD, BCD 10 yrs. Total

Damaging, destroying, losing or suffering to be lost, damaged,

destroyed, sold, or wrongfully disposed:

Through neglect, of a value of:

$500.00 or less . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . None 6 mos. 2/3 6 mos.

More than $500.00 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . BCD 1 yr. Total

Willfully, of a value of

$500.00 or less . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . BCD 1 yr. Total

More than $500.00 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD 10 yrs. Total

Any firearm, explosive, or incendiary device DD, BCD 10 yrs. Total

A12-2

App. 12, Art. 92
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 information concerning maximum punishments.

Article Offense Discharge Confinement Forfeitures

109 Property other than military property of U.S.: loss, damage, destruction,

disposition:

Wasting, spoiling, destroying, or damaging property of a value of:

$500.00 or less . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . BCD 1 yr. Total

More than $500.00 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD 5 yrs. Total

110 Hazarding a vessel

Willfully and wrongfully . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Death, DD, BCD Life4 Total

Negligently . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD 2 yrs. Total

111 Drunken driving

Resulting in personal injury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD 1 yr., 6 mos. Total

Other cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . BCD 6 mos. Total

112 Drunk on duty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . BCD 9 mos. Total

112a Wrongful use, possession, etc. of controlled substances 3

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, II, and III controlled substances . . . . . . . . . . . . . . . . . . DD, BCD 5 yrs. Total

Marijuana (possession of less than 30 grams or use), phenobarbital,

and Schedule IV and V controlled substances . . . . . . . . . . . . . . DD, BCD 2 yrs. Total

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 I, II, and III controlled substances . . . . . . . . . . . . . . DD, BCD 15 yrs. Total

Phenobarbital and Schedule IV and V controlled substances . . . . DD, BCD 10 yrs. Total

113 Misbehavior of sentinel or lookout

In time of war . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Death, DD, BCD Life4 Total

In other time:

While receiving special pay under 37 U.S.C. 310 . . . . . . . . . . . . . DD, BCD 10 yrs. Total

Other places . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD 1 yr. Total

114 Dueling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD 1 yr. Total

115 Malingering

Feigning illness, etc.

In time of war, or while receiving special pay under 37 U.S.C. 310 DD, BCD 3 yrs. Total

Other . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD 1 yr. Total

Intentional self-inflicted injury

In time of war, or while receiving special pay under 37 U.S.C. 310 DD, BCD 10 yrs. Total

Other . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD 5 yrs. Total

116 Riot . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD 10 yrs. Total

Breach of peace . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . None 6 mos. 2/3 6 mos.

117 Provoking speech, gestures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . None 6 mos. 2/3 6 mos.

118 Murder

Article 118(1) or (4) . . . . . . . . . . . . . . . . .Death, mandatory minimum life with parole, DD, BCD Life4 Total

Article 118(2) or (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD Life4 Total

119 Manslaughter

Voluntary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD 15 yrs. Total

Involuntary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD 10 yrs. Total

119a Death or injury to an Unborn Child (see Part IV, Para. 44a.(a)(1))

120 Rape and Rape of a Child . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Death, DD, BCD Life Total

Aggravated Sexual Assault . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD 30 yrs Total

Aggravated Sexual Assault of a Child . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD 20 yrs Total

Aggravated Sexual Abuse of a Child . . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD 20 yrs Total

Aggravated Sexual Contact . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD 20 yrs Total

Aggravated Sexual Contact with a Child . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD 20 yrs Total

Abusive Sexual Contact with a Child . . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD 15 yrs Total

A12-3

App. 12, Art. 120
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 information concerning maximum punishments.

Article Offense Discharge Confinement Forfeitures

Indecent Liberty with a Child . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD 15 yrs Total

Abusive Sexual Contact . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD 7 yrs Total

Indecent Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD 5 yrs Total

Forcible Pandering . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD 5 yrs Total

Wrongful Sexual Contact . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD 1 yr Total

Indecent Exposure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD 1 yr Total

120a Stalking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD 3 yrs Total

121 Larceny

Of military property of a value of $500.00 or less . . . . . . . . . . . . . . . BCD 1 yr. Total

Of property other than military property of a value of $500.00 or less BCD 6 mos. Total

Of military property of a value of more than $500.00 or of any

military motor vehicle, aircraft, vessel, firearm, or explosive . . . . . . DD, BCD 10 yrs. Total

Of property other than military property of a value of more than

$500.00 or any motor vehicle, aircraft, vessel, firearm, or explosive DD, BCD 5 yrs. Total

Wrongful appropriation

Of value of $500.00 or less . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . None 3 mos. 2/3 3 mos.

Of value of more than $500.00 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . BCD 6 mos. Total

Of any motor vehicle, aircraft, vessel, firearm, or explosive . . . . . . . DD, BCD 2 yrs. Total

122 Robbery

Committed with a firearm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD 15 yrs. Total

Other cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD 10 yrs. Total

123 Forgery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD 5 yrs. Total

123a Checks, etc., insufficient funds, intent to deceive

To procure anything of value of:

$500.00 or less . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . BCD 6 mos. Total

More than $500.00 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD 5 yrs. Total

For payment of past due obligation, and other cases . . . . . . . . . . . . . BCD 6 mos. Total

124 Maiming . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD 20 yrs Total

125 Sodomy

By force and without consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD Life4 Total

With child under age of 16 years and at least 12 . . . . . . . . . . . . . . . . DD, BCD 20 yrs. Total

With child under the age of 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD Life4 Total

Other cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD 5 yrs. Total

126 Arson

Aggravated . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD 20 yrs. Total

Other cases, where property value is:

$500.00 or less . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD 1 yr. Total

More than $500.00 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD 5 yrs. Total

127 Extortion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD 3 yrs. Total

128 Assaults

Simple Assault:

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . None 3 mos. 2/3 3 mos.

With an unloaded firearm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD 3 yrs. Total

Assault consummated by battery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . BCD 6 mos. Total

Assault upon commissioned officer of U.S. or friendly power not in

execution of office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD 3 yrs. Total

Assault upon warrant officer, not in execution of office . . . . . . . . . . DD, BCD 1 yr., 6 mos. Total

Assault upon noncommissioned or petty officer not in execution of

office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . BCD 6 mos. Total

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 3 yrs. Total

Assault consummated by battery upon child under age of l6 years . DD, BCD 2 yrs. Total

Assault with dangerous weapon or means likely to produce grievous

bodily harm or death:

Committed with loaded firearm . . . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD 8 yrs. Total

Other cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD 3 yrs. Total

Assault in which grievous bodily harm is intentionally inflicted:

A12-4

App. 12, Art. 120
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 information concerning maximum punishments.

Article Offense Discharge Confinement Forfeitures

With a loaded firearm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD 10 yrs. Total

Other cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD 5 yrs. Total

Aggravated assault with a dangerous weapon or other means of force

to produce death or grievous bodily harm when committed upon a

child under the age of 16 years . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD 5 yrs Total

Aggravated assault in which grievous bodily harm is intentionally

inflicted when committed upon a child under the age of 16 years . . DD, BCD 8 yrs Total

129 Burglary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD 10 yrs. Total

130 Housebreaking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD 5 yrs. Total

131 Perjury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD 5 yrs. Total

132 Frauds against the United States

Offenses under article 132(1) or (2) . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD 5 yrs. Total

Offenses under article 132(3) or (4)

$500.00 or less . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . BCD 6 mos. Total

More than $500.00 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD 5 yrs. Total

133 Conduct unbecoming officer (see Part IV, para. 59e) . . . . . . . . . . . . . . Dismissal l yr. or as

prescribed

Total

134 Abusing public animal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . None 3 mos. 2/3 3 mos.

Adultery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD 1 yr. Total

Assault

With intent to commit murder or rape . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD 20 yrs. Total

With intent to commit voluntary manslaughter, robbery, sodomy,

arson, or burglary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD 10 yrs. Total

With intent to commit housebreaking . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD 5 yrs. Total

Bigamy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD 2 yrs. Total

Bribery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD 5 yrs. Total

Graft . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD 3 yrs. Total

Burning with intent to defraud . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD 10 yrs. Total

Check, worthless, making and uttering—by dishonorably failing to

maintain funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . BCD 6 mos. Total

Child Endangerment:

Endangerment by design resulting in grievous bodily harm . . . . . . . DD, BCD 8 yrs Total

Endangerment by design resulting in harm . . . . . . . . . . . . . . . . . . . . . DD, BCD 5 yrs Total

Other cases by design . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD 4 yrs Total

Endangerment by culpable negligence resulting in grievous bodily

harm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD 3 yrs Total

Endangerment by culpable negligence resulting in

harm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . BCD 2 yrs Total

Other cases by culpable negligence . . . . . . . . . . . . . . . . . . . . . . . . . . . BCD 1 yr Total

Cohabitation, wrongful . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . None 4 mos. 2/3 4 mos.

Correctional custody, escape from . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD 1 yr. Total

Correctional custody, breach of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . BCD 6 mos. Total

Debt, dishonorably failing to pay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . BCD 6 mos. Total

Disloyal statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD 3 yrs. Total

Disorderly conduct

Under such circumstances as to bring discredit . . . . . . . . . . . . . . . . . None 4 mos. 2/3 4 mos.

Other cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . None 1 mo. 2/3 1 mo.

Drunkenness

Aboard ship or under such circumstances as to bring discredit . . . . . None 3 mos. 2/3 3 mos.

Other cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . None 1 mo. 2/3 1 mo.

Drunk and disorderly

Aboard ship . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . BCD 6 mos. Total

Under such circumstances as to bring discredit . . . . . . . . . . . . . . . . . None 6 mos. 2/3 6 mos.

Other cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . None 3 mos. 2/3 3 mos.

Drinking liquor with prisoner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . None 3 mos. 2/3 3 mos.

Drunk prisoner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . None 3 mos. 2/3 3 mos.

Drunkenness—incapacitating oneself for performance of duties through

prior indulgence in intoxicating liquor or drugs . . . . . . . . . . . . . . . . . . . None 3 mos. 2/3 3 mos.

Endangerment, reckless . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . BCD 1 yr. Total

False or unauthorized pass offenses

A12-5

App. 12, Art. 134
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 information concerning maximum punishments.

Article Offense Discharge Confinement Forfeitures

Possessing or using with intent to defraud or deceive, or making,

altering, counterfeiting, tampering with, or selling . . . . . . . . . . . . . . . DD, BCD 3 yrs. Total

All other cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . BCD 6 mos. Total

False pretenses, obtaining services under

Of a value of $500.00 or less . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . BCD 6 mos. Total

Of a value of more than $500.00 . . . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD 5 yrs. Total

False swearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD 3 yrs. Total

Firearm, discharging—through negligence . . . . . . . . . . . . . . . . . . . . . . . None 3 mos. 2/3 3 mos.

Firearm, discharging—willfully, under such circumstances as to

endanger human life . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD 1 yr. Total

Fleeing scene of accident . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . BCD 6 mos. Total

Fraternization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Dismissal 2 yrs. Total

Gambling with subordinates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . None 3 mos. 2/3 3 mos.

Homicide, negligent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD 3 yrs. Total

Impersonation

With intent to defraud . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD 3 yrs. Total

All other cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . BCD 6 mos. Total

Indecent language

Communicated to child under 16 yrs . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD 2 yrs. Total

Other cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . BCD 6 mos. Total

Jumping from vessel into the water . . . . . . . . . . . . . . . . . . . . . . . . . . . . . BCD 6 mos. Total

Kidnapping . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD Life4 Total

Mail, taking, opening, secreting, destroying, or stealing . . . . . . . . . . . . DD, BCD 5 yrs. Total

Mails, depositing or causing to be deposited obscene matters in . . . . . DD, BCD 5 yrs. Total

Misprision of serious offense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD 3 yrs. Total

Obstructing justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD 5 yrs. Total

Wrongful interference with an adverse administrative proceeding . . DD, BCD 5 yrs. Total

Pandering . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD 5 yrs. Total

Prostitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD 1 yr. Total

Parole, violation of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . BCD 6 mos. 2/3 6 mos.

Perjury, subornation of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD 5 yrs. Total

Public record, altering, concealing, removing, mutilating, obliterating,

or destroying . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

DD, BCD 3 yrs. Total

Quarantine, breaking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . None 6 mos. 2/3 6 mos.

Reckless endangerment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . BCD 1 yr. Total

Restriction, breaking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . None 1 mo. 2/3 1 mo.

Seizure, destruction, removal, or disposal of property to prevent . . . . . DD, BCD 1 yr. Total

Self-injury without intent to avoid service

In time of war, or in a hostile fire pay zone . . . . . . . . . . . . . . . . . . . DD 5 yrs. Total

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

Sentinel, lookout

Disrespect to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . None 3 mos. 2/3 3 mos.

Loitering or wrongfully sitting on post by

In time of war or while receiving special pay . . . . . . . . . . . . . . . . DD, BCD 2 yrs. Total

Other cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . BCD 6 mos. Total

Soliciting another to commit an offense (see Part IV, para. 105e)

134

Of a value of $500.00 or less . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . BCD 6 mos. Total

Of a value of more than $500.00 . . . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD 3 yrs. Total

Straggling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . None 3 mos. 2/3 3 mos.

Testify, wrongfully refusing to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD 5 yrs. Total

Threat, bomb, or hoax . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD 5 yrs. Total

Threat, communicating . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DD, BCD 3 yrs. Total

Unlawful entry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . BCD 6 mos. Total

Weapon, concealed, carrying . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . BCD 1 yr. Total

A12-6

App. 12, Art. 134
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 information concerning maximum punishments.

Article Offense Discharge Confinement Forfeitures

Wearing unauthorized insignia, decoration, badge, ribbon, device, or lapel button . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .BCD 6 mos. Total

Notes:

1. Suspended in time of war.

2. See paragraph 16e(1) & (2) Note, Part IV

3. When any offense under paragraph 37, Part IV, 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. sec. 310; in time of war; or in a confinement facility used by or under the control of the armed forces, the

maximum period of confinement authorized for such offense shall be increased by 5 years.

4. With or without eligibility for parole.

A12-7

App. 12, Art. 134

APPENDIX 13

GUIDE FOR PREPARATION OF RECORD OF TRIAL BY GENERAL COURTMARTIAL AND BY SPECIAL COURT-MARTIAL WHEN A VERBATIM RECORD

IS NOT REQUIRED

a. Record of trial

I f a v e r b a t i m r e c o r d i s n o t r e q u i r e d ( s e e

R . C . M . 1 1 0 3 ( h ) ( 2 ) ( C ) a n d ( c ) ( 2 ) ) , a s u m m a r i z e d

report of testimony, objections, and other proceedings is permitted. In the event of an acquittal of all

c h a r g e s a n d s p e c i f i c a t i o n s , o r t e r m i n a t i o n o f t h e

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 shown in Appendix 14 a.

N o t e . A l l p e n a n d i n k c h a n g e s t o t h e t r a n -

scribed record of trial shall be initialed. All pages in

the transcribed record of trial shall be numbered

consecutively, beginning with “1.” The page number

shall be centered on the page 1/2 inch from the

bottom. A margin of 1 1/2 inches, or more as necessary, will be left at the top to permit binding. A oneinch margin will be left on the bottom of the page

and on the left side of each page. The left margin

will be increased as necessary in the event that lefthand binding is used rather than top binding. If lefthand binding is used, the top margin should be decreased to one-inch. Words on the margins of this

appendix are not part of the form of record. All

records of trial should begin as follows:

Title

RECORD OF TRIAL

of

___________________________________________________________________

(Name-last, first, middle initial) (SSN) (Grade)

___________________________________________________________________

(Organization and armed force) (Station or ship)

by

____________________________________________________ COURT-MARTIAL

Convened by __________________________________________________________

(Title of convening authority)

___________________________________________________________________

(Command of convening authority)

Tried at

_________________________________ on _________________________________

(Place or places of trial) (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

A13-1
Receipt for record I hereby acknowledge receipt of a copy of the above-described record of trial,

delivered to me at this day

of .

 (Signature of accused or defense counsel)

(Name of accused or defense counsel)

Note. See R.C.M. 1104(b)(1) concerning service of record on the accused or defense Counsel.

CERTIFICATE

.

(Place) (Date)

Certificate in lieu of receipt 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 trial 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)(1)(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 trial counsel)

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)

Article 39(a) session 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-martial” for “Article 39(a) session.”

A13-2

App. 13 APPENDIX 13
Convening orders The military judge called the Article 39(a) session to order (at) (on [nb) A] board) , at hours, , 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.

Time of session 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,

.

The session (adjourned) (recessed) at hours,

.

PERSONS PRESENT

Military judge, counsel members present and absentNote. 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.

Accused and defense counsel

present

The accused and the following (detailed defense counsel and associate or assistant

defense counsel) (civilian or individual military counsel) were present:

Swearing reporter;

interpreter

The following detailed (reporter) (and) (interpreter) (was) (were) (had previously

been) sworn:

Note. Applicable only when a reporter or interpreter is used.

Qualification of trial counsel The trial counsel announced the legal qualifications and status as to oaths of all

members of the prosecution (and that (he) (she) (they) had been detailed

by ).

Prior participation of trial

counsel

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.

Qualification of defense

counsel

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 .)

Note. Legal qualifications of any civilian or individual military counsel will be shown.

A13-3

GUIDE FOR PREPARATION OF RECORD App. 13
Prior participation of defense

counsel

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.

Inquiry concerning Article

38(b)

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 he/she understood the rights with respect to counsel, and

that he/she chose to be defended by .

Personnel sworn The military judge and the personnel of the prosecution 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.

Challenge: military judge 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.

Request for trial by military

judge alone

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.

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:

Request for enlisted members 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.

Convening authority

identified

(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.

A13-4

App. 13 APPENDIX 13
Arraignment 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.

Motions 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.

Pleas 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.

Guilty plea inquiry 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

cross-examine witnesses, and against self-incrimination; and that the military judge

would question the accused, under oath, about the offense(s) to which the accused

pleaded guilty and that if the accused answered those questions under oath, on the

record, and 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

he/she 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

he/she 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 judges’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.

A13-5

GUIDE FOR PREPARATION OF RECORD App. 13
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(s) 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,

. The court-martial (recessed) (adjourned) (closed)

at hours, .

Note. Whenever the court-martial reopens after a recess or adjournment, 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 , detailed defense counsel who had been excused

by . , certified in accordance with Article 27(b) was

present as individual military counsel, and was previously sworn.

INITIAL SESSION WITH MEMBERS

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 he 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.

Members sworn 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.

Preliminary instructions The military judge instructed the members concerning their duties, the conduct of

the proceedings, ( ).

A13-6

App. 13 APPENDIX 13
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 he 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. , member was questioned concerning , 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 for cause. The challenge was denied. Neither

side had any further challenges for cause. The trial counsel challengedperemptorily.

The defense counsel challenged peremptorily (and stated that it would

have challenged another member had the challenge of for cause been

sustained).

and 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 accused pleaded 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 guilty the record should so state.

Announcement of pleas The military judge informed the members that the accused had entered pleas of (Not

Guilty) (Guilty) to (the) (all) Charge(s) and Specification(s) ( ).

PRESENTATION OF PROSECUTION CASE

Opening statement 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:

Testimony The following witnesses for the prosecution were sworn and testified in substance as

follows:

(name of witness, rank, and organization)

DIRECT EXAMINATION

I know the accused, , 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

October 7, 1984, I put my wallet under my pillow. The wallet had $7.00 in it; a

$5.00 bill and two $1.00 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

A13-7

GUIDE FOR PREPARATION OF RECORD App. 13
I don’t know the serial numbers on any of the bills. One of the $1.00 bills was

patched together with scotch tape and one of the fellows told me that the accused

had used a $1.00 bill just like that in a poker game the day after my wallet was missing.

Objection and ruling Upon objection by the defense, so much of the answer of the witness as pertained to

what he had been told was stricken.

Stipulation 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

Opening statement 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

Closing argument The trial counsel made (an) (no) argument.

The defense counsel made (an) (no) argument.

The trial counsel made (an) (no) argument in rebuttal.

Instructions 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 evidentiary matters,) the presumption of innocence, reasonable doubt, and burden of proof as required by Article

51(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.

Closing The court-martial closed at hours, .

The court-martial reopened at hours, .

Note. If the military judge examined a findings worksheet and gave additional instructions, these should

be summarized.

FINDINGS

Findings by members 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 II: Not Guilty

etc.

A13-8

App. 13 APPENDIX 13
Findings by military judge

alone

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:

Announcement 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 ):

Of all the Specifications and Charges: Guilty

or

Of the Specification of Charge I: Guilty.

Of Charge I: Guilty

Of the Specification of Charge II: Not Guilty.

Of Charge II: Not Guilty

Note. All 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 adjournment.

SENTENCING PROCEEDINGS

Data as to service 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.

Introduction of exhibits The trial counsel offered Prosecution Exhibits , ,

and for identification, matters from the accused’s personnel records.

(The defense did not object.) (The defense objected to Prosecution Exhibitfor identification on grounds that it was not properly authenticated.)

(The objection was (overruled) (sustained).)

(Prosecution Exhibits , , and 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.

Inquiry of accused 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 he/she

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.

Argument The prosecution made (an) (no) argument on sentence. The defense made (an) (no)

argument on sentence.

A13-9

GUIDE FOR PREPARATION OF RECORD App. 13
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, .

Reopening The court-martial reopened at hours, .

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 appellate rights

The military judge informed the accused of: the right to submit matters to the 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 at hours, .

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:

A13-10

App. 13 APPENDIX 13
Form “I have examined the record of trial in the foregoing case.

(Grade) (Name), 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)(1)(B).

c. Authentication of record of trial

Military judge (1) By general or special court-martial with members and a military judge

(Captain) (Colonel) , Military Judge [or (LTJG) (1LT) , Trial

Counsel, because of (death) (disability) (absence) of the military judge.] [(LCDR)

(Major) or , 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

(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 trial counsel.]

President 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).

f. Certificate of correction

Note. See Appendix 14f

A13-11

GUIDE FOR PREPARATION OF RECORD App. 13

APPENDIX 14

GUIDE FOR PREPARATION OF RECORD OF TRIAL BY GENERAL COURTMARTIAL AND BY SPECIAL COURT-MARTIAL WHEN A VERBATIM RECORD

IS REQUIRED

a. Record of trial. The following guidelines apply to

the preparation of all records of trial by general and

s p e c i a l c o u r t s - m a r t i a l w h e n a v e r b a t i m r e c o r d o f

t r i a l i s r e q u i r e d b y R u l e f o r C o u r t s - M a r t i a l

1103(b)(2)(B) and (c)(1).

1. Paper. All transcription will be completed only

on one side of 8 1/2 x 11 inch paper. Use 15-pound

or other high quality paper. Red-lined margins and

other legal formats, such as numbered lines, are acceptable so long as they otherwise comport with the

guidelines set forth herein.

2. Margins. A margin of 1 1/2 inches, or more as

necessary, will be left at the top to permit binding.

A one inch margin will be left on the bottom of the

page and on the left side of each page. The left

margin will be increased as necessary in the event

that left hand binding is used rather than top binding. If left-hand binding is used, the top margin

should be decreased to 1 inch.

3. Font. Use 10-pitch (pica) on typewriters and

12 point type on computers. Only Courier, TimesRoman, or Times-New Roman fonts may be used.

Do not use cursive, script, or italic fonts, except

when appropriate in specific situations (e.g., citation). Use bold print for initial identification of the

members, military judge, court reporter, and the parties to the trial. Certain standard stock entries (SSEs)

will be in bold print within verbatim records of trial,

as reflected in this appendix’s Guide for Preparation

of Trial (i.e., calling a witness, stage of examination,

and questions by counsel, members or the military

judge.

4. Line Spacing. Double-space text, returning to

the left margin on second and subsequent lines, with

the exception of pleas, findings, and sentence, which

should be single spaced, indented, and in bold print.

Indent the elements of separate offenses in guilty

plea cases.

5. Justification. Use left justification only with

the exception of pleas, findings, and sentence, which

may be justified both left and right.

6. Page Numbering. All pages in the transcribed

record of trial shall be numbered consecutively, beginning with “1”. The page number shall be centered

on the page 1/2 inch from the bottom.

7. Additional/Inserted Pages. Use preceding page

number plus either an alphanumeric letter after the

corresponding whole numbered page (e.g. “19a”) or

a decimal and an Arabic number after the corresponding whole numbered page (e.g. “19.1”). Annotate

the bottom of the preceding page to reflect the following inserted page (e.g. “next page 19a” or “next

page 19.1”). Be consistent throughout the record of

trial using either the alphanumeric or decimal system. Annotate the return to consecutive numbering

at the bottom of the last inserted page (e.g. “next

page 20”).

8. Omitted Page Numbers. If a page number is

omitted, but no page is actually missing from the

transcript, note the missing page at the bottom of the

p a g e p r e c e d i n g t h e m i s s i n g p a g e n u m b e r ( e . g .

“there is no page 22; next page 23”).

9. Printing. All records of trial forwarded for review under UCMJ Articles 66 and 69(a) shall be

printed in such a manner as to produce a letter

quality manuscript—a clear, solid, black imprint. All

pen and ink changes to the transcribed record of trial

shall be initialed.

10. Organization of Contents of Record of Trial.

The contents of a record of trial, including allied

papers accompanying the record, are set forth in

R.C.M. 1103(b)(2)(B), (2)(D), and (3). To the extent

applicable, the original record of trial shall contain

signed originals of pertinent documents. Absence of

an original document will be explained, and a certified true copy or signed duplicate original copy inserted in the record of trial. Arrangement of the

contents of the record shall be as set forth on DD

Form 490, with heavy stock dividers used to separate major components of the record as follows:

D D F o r m 4 9 0 , F r o n t C o v e r . T h e f r o n t

cover will be followed by: (1) any orders transferring the accused to a confinement facility or paperw o r k p e r t a i n i n g t o e x c e s s / a p p e l l a t e l e a v e ; ( 2 ) 

appellate rights statement and the accused’s election

a s t o a p p e l l a t e c o u n s e l o r a n y w a i v e r t h e r e o f ;

(3) DD Form 494, “Court-Martial Data Sheet”, if

any; (4) any briefs of counsel submitted after trial;

(5) court-martial orders promulgating the result of

A14-1
trial; (6) proof of service on the defense counsel of

the Staff Judge Advocate’s recommendation and any

response to the recommendation (if the defense response to the recommendation is combined into one

document with the matters submitted by the accused

pursuant to R.C.M. 1105, then the document should

be placed in the record of trial as if it were solely

matters submitted by the accused pursuant to R.C.M.

1105); (7) either proof of service on the accused of

the Staff Judge Advocate’s recommendation or a

s t a t e m e n t e x p l a i n i n g w h y t h e a c c u s e d w a s n o t

served personally; (8) signed review of the Staff

Judge Advocate including any addenda and attached

clemency matters; (9) matters submitted by the accused pursuant to R.C.M. 1105; (10) any request for

deferment of post-trial confinement and action thereon; (11) any request for deferment/waiver of automatic forfeitures and any action thereon; (12) any

request for deferment of reduction in grade and any

action thereon.

D D F o r m 4 5 7 , “ I n v e s t i g a t i n g O f f i c e r ’ s

Report,” pursuant to Article 32, if any, and all

r e l a t e d e x h i b i t s a n d a t t a c h m e n t s . T h e o r i g i n a l ,

signed investigation will be placed in the original

copy of the record of trial.

Pretrial Allied Papers. These papers should

include: (1) advice of the Staff Judge Advocate or

legal officer; (2) requests by counsel and action of

the convening authority taken thereon; (3) any other

papers, endorsements, investigations which accomp a n i e d t h e c h a r g e s w h e n r e f e r r e d f o r t r i a l ;

(4) record of any former trial.

Record of Proceedings of Court-Martial ,

in the following order: (1) errata sheet; (2) index

sheet with reverse side containing receipt of accused

or defense counsel for copy of record or certificate

in lieu of receipt;

Note. The preprinted index may be inadequate to properly reflect

the proceedings, witnesses, and exhibits. Court reporters should

liberally expand the index and use additional sheets as necessary.

Special attention should be paid to noting the pages at which

exhibits are offered and accepted/rejected, to include annotating

those page numbers on the bottom of an exhibit, as appropriate.

( 3 ) c o n v e n i n g a n d a l l a m e n d i n g o r d e r s ; ( 4 ) a n y

written orders detailing the military judge or counsel; (5) request for trial by military judge alone if

not marked as an appellate exhibit; (6) any written

request for enlisted members if not marked as an

a p p e l l a t e e x h i b i t ; ( 7 ) v e r b a t i m t r a n s c r i p t o f t h e

proceedings of the court, including all Article 39(a)

sessions and original DD Form 458, “Charge Sheet”;

(8) authentication sheet followed by Certificate of

Correction, if any; (9) action of convening authority

and, if appropriate, action of officer exercising general court-martial jurisdiction.

Note. Any necessary assumption of command orders should be

included in the record of trial.

Post-trial sessions. Post-trial sessions will be

authenticated and served in accordance with R.C.M.

1103, and are part of the record of trial. Page numbering should continue in sequence from the end of

the transcript of the original proceedings, and will be

s e p a r a t e l y a u t h e n t i c a t e d i f t h e i n i t i a l p r o c e e d i n g s

have been previously authenticated. Additional exhibits should be lettered or numbered in sequence,

following those already marked/admitted.

P r o s e c u t i o n E x h i b i t s a d m i t t e d i n t o e v i -

dence. [The page(s) at which an exhibit is offered

and admitted should be noted at the bottom of the

exhibit, as appropriate, as well as noting those pages

on the DD Form 490.]

Defense Exhibits admitted into evidence.

[The page(s) at which an exhibit is offered and admitted should be noted at the bottom of the exhibit,

as appropriate, as well as noting those pages on the

DD Form 490.]

Prosecution Exhibits marked but not offered and/or admitted into evidence. [The page(s)

at which an exhibit is offered and rejected should be

noted at the bottom of the exhibit, as appropriate, as

well as noting those pages on the DD Form 490.]

Defense Exhibits marked but not offered

a n d / o r a d m i t t e d i n t o e v i d e n c e . [ T h e p a g e ( s ) a t

which an exhibit is offered and rejected should be

noted at the bottom of the exhibit, as appropriate, as

well as noting those pages on the DD Form 490.]

Appellate Exhibits. [The page(s) at which

an exhibit is marked should be noted at the bottom

A14-2

App. 14 APPENDIX 14
of the exhibit, as appropriate, as well as noting those

pages on the DD Form 490.]

Any records of proceedings in connection

with vacation of suspension.

11. Stock Dividers. The foregoing bullets will be

separated by the use of heavy stock dividers, colored, and labeled with gummed labels.

12. Binding. Volumes of the record will be bound

at the top with metal or plastic fasteners. Top or leftside binding is acceptable with sufficient adjustment

to the top or left margin. Volumes shall be bound to

withstand repeated handling, utilizing DD Form 490.

Do not sew or stack fasteners together in gangs to

bind thick volumes.

13. Dividing Records into Volumes. Divide ROTs

that are over 11/2 inches thick into separate volumes. Make the first volume of a multi-volume record an inch thick or smaller. This will allow for

i n c l u s i o n o f t h e S J A r e c o m m e n d a t i o n , c l e m e n c y

matters, and other post-trial documents. Limit subsequent volumes to 11/2 inches thick, unless dividing

t h e m r e q u i r e s a s s e m b l i n g a n a d d i t i o n a l v o l u m e

smaller than 1/2 inch thick. If the transcript is split

into two or more volumes, indicate on the front

cover which pages of the transcript are in which

volume. ( e.g. Volume 1 of 4, Transcript, pages 1-

300). Number each volume of the ROT as follows:

“ V o l u m e 1 o f . ” I n t h e u p p e r r i g h t - h a n d

corner of the DD Form 490, label the ROT to reflect

which copy it is, i.e., “ORIGINAL,” “ACCUSED,”

et cetera.

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.

Following this appendix does not necessarily

produce 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) (SSN) (Rank or grade)

(Organization and armed force) (Station or ship)

by

_________________________________________________________________________ COURT-MARTIAL

Convened by_______________________________________________________________________________

(Title of convening authority)

(Command of convening authority)

___________________________________________ on ___________________________________________

(Place or places of trial) (Date or dates of trial)

Note. The title should be followed by an index. The form and content of this index will be as prescribed in publications of the Secretary concerned.

However, it should cover important phases of the trial such as: introductory matters, arraignment,

motions, pleas, providence inquiry, pretrial agreement inquiry, prosecution case-in-chief, defense case,

prosecution case in rebuttal, trial counsel argument, defense counsel argument, instructions, findings, allocution rights, prosecution matters in aggravation, defense sentencing case, prosecution rebuttal, trial

counsel argument, defense counsel argument, sentencing instructions, appellate rights, sentencing, and review of the sentencing terms of any pretrial agreement.

Moreover, the index should also reflect all exhibits (prosecution, defense, and appellate) whether offered/accepted into evidence or not.

A14-3

GUIDE FOR PREPARATION OF RECORD OF TRIAL App. 14
COPIES OF RECORD

Copies of record copy of record furnished the accused as per attached certificate or receipt.

copies 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 , .

(Signature of accused)

(Name of accused)

CERTIFICATE

,

(Place) (Date)

Certificate in lieu of receipt I certify that on this day delivery of a copy of the above-described record of trial

was made to the accused, , at

(Name of accused)

, by and that the receipt of the accused had

(Place of delivery) (Means of Delivery)

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 trial 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)(1)(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 trial counsel)

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)(1)(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)

GUIDE FOR PREPARATION OF RECORD OF TRIAL

Note. While entries in this guide below are single-spaced, all records are to be double-spaced with the exception of the pleas, findings, and sentence.

A14-4

App. 14 APPENDIX 14
PROCEEDINGS OF A SPECIAL/GENERAL COURT-MARTIAL

[The military judge called the Article 39(a) session to order at/on board

at, hours, ,

pursuant to the following orders:]

[Court-Martial Convening Order Number , ,

dated .] (command that issued the order)

[END OF PAGE]

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 unless marked as an appellate exhibit. 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 unless marked as an appellate exhibit.

MJ: This Article 39(a) session is called to order.

TC: This court-martial is convened by ....

Note. The reporter records all the proceedings verbatim from the time the military judge calls the court to

order. Thereafter, the reporter will use only standard stock entries, reporter’s notes, or gestures.

SSEs, Reporter’s Notes and

Gestures

Note. SSEs, reporter’s notes, and gestures (non-verbatim observations) will be placed in brackets, with the

exception of SSEs identifying witnesses, stages of examination, and individual voir dire.

Paragraphing Note. The court reporter shall utilize proper paragraphing techniques (i.e., a new line of thought starts a

new paragraph) when typing long narratives, such as the military judge’s instructions, counsel arguments,

and lengthy “Q and A.” Additionally, start a new paragraph for each separate element in a list; i.e., elements of an offense, legal definitions, accused’s rights, and oral stipulations.

Punctuation Marks Note. Do not use exclamation marks, capital letters, bolding, or italics to inject emphasis into the record

of trial. Two hyphens (--) or a one em dash (—) may be used where the speaker changes thought or subject and four hyphens (----) or a two em dashes (— —) may be used where one participant interrupts another. Use periods at the end of complete thoughts to avoid lengthy sentences. Avoid phonetic spelling.

Prefixes Note. Indent 5 spaces from the left margin and type the appropriate prefix to indicate identity of the

speaker followed by a colon and two spaces.

Questions and Answer Note. When typing “Q and A,” ensure at least two lines, or the entire text of a question or answer appear

at the bottom of a page. Page break in appropriate places where necessary. Do not repeat the “Q” or “A”

prefix at the top of the next page. To the extent practicable, use page breaks so that the answer to a question does not appear on a page separate from the question.

Sessions of court Note. Each session of court, as well as each Article 39(a) session or bench conference, shall commence

on a new page, separate from the other transcribed proceedings. 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 hours,

.]

[The court-martial closed at hours, .]

A14-5

GUIDE FOR PREPARATION OF RECORD OF TRIAL App. 14
Administration of oaths 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 reporter, , was sworn.]

[The detailed interpreter, , was sworn.]

[The military judge and the personnel of the prosecution and defense were sworn.]

[The members were sworn.]

Accounting for personnel

during trial

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 his/her seat at the

counsel table).]

[ , the challenged member, withdrew from the courtroom.]

[ , resumed his/her seat as a member of the court-martial.]

Arraignment Note. The original charge sheet or a duplicate should be inserted here. If the charges are read, the charges

should also be transcribed as read. See R.C.M. 1103(b)(2)(D)(i).

Recording testimony 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 (trial counsel) (assistant trial counsel):

Q. State your full name, (etc.) ___________________________________________ .

A. __________________________________________________________________ .

Q. __________________________________________________________________?

A. __________________________________________________________________ .

CROSS-EXAMINATION

Questions by the (defense counsel) (assistant defense counsel) (individual military counsel) (civilian defense counsel):

Q. __________________________________________________________________?

A. __________________________________________________________________ .

REDIRECT EXAMINATION

Questions by the (trial counsel) (assistant trial counsel):

Q. __________________________________________________________________?

A. __________________________________________________________________ .

RECROSS-EXAMINATION

A14-6

App. 14 APPENDIX 14
Questions by the (defense counsel) (assistant defense counsel) (individual military counsel) (civilian defense counsel):

Q. __________________________________________________________________?

A. __________________________________________________________________ .

EXAMINATION BY THE COURT-MARTIAL

Questions by (the military judge) (member’s name):

Q. __________________________________________________________________?

A. __________________________________________________________________ .

REDIRECT EXAMINATION

Questions by the (trial counsel) (assistant trial counsel):

Q. __________________________________________________________________?

A. __________________________________________________________________ .

RECROSS-EXAMINATION

Questions by the (defense counsel) (assistant defense counsel) (individual military counsel) (civilian defense counsel):

Q. __________________________________________________________________?

A. __________________________________________________________________ .

Bench conferences and

Article 39(a) sessions

Note. Bench conferences and Article 39(a) sessions should be recorded and incorporated in 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 of record of trial

Note. The authentication should be dated.

(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.

A14-7

GUIDE FOR PREPARATION OF RECORD OF TRIAL App. 14
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) (lLT) ,

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 he indicated, followed by “formerly (list the former rank).”

d. Exhibits.See R.C.M. 1103(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, followed by exhibits marked/offered, but not admitted, and any appellate exhibits.

e. Attachments

Note. Attach to the record the matters listed in R.C.M. 1103(b)(3).

f. Certificate of correction. See R.C.M. 1104(d)

Note. The certificate should be dated.

United States

v.

The record of trial in the above case, which was tried by the court-martial convened by , dated , (at)

(on board) , on , is corrected by the insertion on page , immediately following line , of the

following:

“[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 of ,

.

(Signature of accused)

(Name of accused)

A14-8

App. 14 APPENDIX 14
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 the record An original and a minimum of four copies of the record will be prepared of a verbatim record. Individual services may require additional copies. In a joint or common trial, an

additional copy of the record must be prepared for each accused. See R.C.M. 1103(g)(1)(A).

A14-9

GUIDE FOR PREPARATION OF RECORD OF TRIAL App. 14

APPENDIX 15

Record of Trial by Summary Court-Martial (DD Form 2329)

A15-1
A15-2

APPENDIX 15
APPENDIX 16

FORMS FOR ACTION

The forms in this appendix are guides for preparation of the convening authority’s initial action. Guida n c e i s a l s o p r o v i d e d f o r a c t i o n s u n d e r 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.

W h e n t h e s e n t e n c e i n c l u d e s c o n f i n e m e n t , t h e

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. 1113(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 COURT-MARTIAL

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 modified. See R.C.M. 1107(d)(1),

(f)(4).

—Adjudged sentence approved in part and ordered executed.

2. In the case of , only so much of the

s e n t e n c e a s p r o v i d e s f o r i s a p p r o v e d

and will be executed. ( is designated as

the place of confinement.)

— Adjudged sentence approved; part of confinement 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

p e r m o n t h f o r m o n t h s . T h e s e n -

tence 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

c r e d i t e d w i t h d a y s o f c o n f i n e m e n t

a g a i n s t t h e s e n t e n c e t o c o n f i n e m e n t .

( is designated as the place of confinement.)

Suspension of sentence. See R.C.M. 1107(f)(4)(B);

1108(d).

— Adjudged sentence approved and suspended.

5. In the case of , the sentence 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.

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) (forf e i t u r e o f p a y ) ( ) i s s u s p e n d e d f o r -

(months) (years), at which time,

unless the suspension is sooner vacated, the suspended part of the sentence will be remitted without

f u r t h e r a c t i o n . ( i s d e s i g n a t e d a s t h e

place of confinement.)

A16-1
Deferment of confinement 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

t o c o n f i n e m e n t ( i s ) ( w a s ) d e f e r r e d e f f e c -

tive , and will not beg i n u n t i l ( t h e c o n v i c t i o n i s f i n a l ) ( ) ,

unless sooner rescinded by competent authority.

—Adjudged sentence approved; deferment of confinement terminated.

8. In the case of , the sentence is approved and will be executed. The service of the

s e n t e n c e t o c o n f i n e m e n t w a s d e f e r r e d

o n 

. ( ) i s

designated as the place of confinement.)

— A d j u d g e d s e n t e n c e a p p r o v e d ; d e f e r m e n t o f

confinement terminated previously.

9. In the case of , the sentence is approved and will be executed. The service of the

s e n t e n c e t o c o n f i n e m e n t w a s d e f e r r e d

on , and

t h e d e f e r m e n t e n d e d o n 

2 0 ; ( i s

designated as the place of confinement.)

Disapproval of sentence; 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

t o t h e s e n t e n c e . T h e s e n t e n c e i s d i s a p p r o v e d . A

rehearing is ordered before a (summary) (special)

(general) court-martial to be designated.

When the adjudged sentence includes death, dism i s s a l , o r a d i s h o n o r a b l e o r a b a d - c o n d u c t d i s -

charge, 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, dismissal,

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

d e a t h ) ( d i s m i s s a l ) ( d i s h o n o r a b l e d i s c h a r g e ) ( b a d -

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,

d i s m i s s a l , o r d i s c h a r g e , o r d e r e d e x e c u t e d . S e e

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 modified. See R.C.M. 1107(d)(1),

(f)(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 dish o n o r a b l e d i s c h a r g e ) ( a b a d - c o n d u c t d i s c h a r g e )

( a n d ) i s a p p r o v e d a n d , e x -

cept for the part of the sentence extending to (death)

( d i s m i s s a l ) ( d i s h o n o r a b l e d i s c h a r g e ) ( b a d - c o n d u c t

discharge), will be executed.

( is designated as the

place of confinement.)

— A d j u d g e d s e n t e n c e a p p r o v e d ; d i s c h a r g e

changed to confinement.

13. In the case of , so much of the sentence extending to a (dishonorable discharge) (bad

conduct discharge) is changed to confinement formonths (thereby making the period of

c o n f i n e m e n t t o t a l m o n t h s ) . T h e s e n -

tence 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 5 or 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,

A16-2

App. 16 APPENDIX 16
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

e x e c u t i o n o f t h a t p a r t o f t h e s e n t e n c e a d j u d g i n g

( c o n f i n e m e n t ) ( c o n f i n e m e n t i n e x c e s s o f

) ( f o r f e i t u r e o f p a y ) 

( ) i s s u s p e n d e d f o r -

(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 I is dismissed. The sentence is

approved and (except for that part of the sentence

extending to (dismissal) (a dishonorable discharge)

( a b a d - c o n d u c t d i s c h a r g e ) ) w i l l b e e x e c u t e d .

( is designated as the place of confinement.)

F i n d i n g o f g u i l t y o f l e s s e r i n c l u d e d o f f e n s e a p -

proved; adjudged sentence modified.

16. In the case of , the finding of guilty

of Specification 1, Charge II is 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

to

( i n v i o l a t i o n o f A r t i c l e 8 6 ) )

( ) . O n l y s o m u c h o f t h e s e n t e n c e a s

provides for is approved and (, except

f o r t h e ( d i s m i s s a l ) ( d i s h o n o r a b l e d i s c h a r g e ) ( b a d -

c o n d u c t d i s c h a r g e ) ) , w i l l b e e x e c u t e d .

( is designated as the place of confinement.)

Some findings of guilty and sentence disapproved;

combined rehearing ordered. See 1107(e). A rehearing may not be ordered if any sentence is approved.

See R.C.M. 1107(c)(2)(B); (e)(1)(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

a d m i t t e d o v e r t h e o b j e c t i o n o f t h e d e -

fense) . 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 II and

the sentence are disapproved. A combined rehearing

is ordered before a court-martial to be designated.

A l l f i n d i n g s o f g u i l t y a n d s e n t e n c e d i s a p p r o v e d ;

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.

A l l f i n d i n g s o f g u i l t y a n d s e n t e n c e d i s a p p r o v e d

based on jurisdictional error; another 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

t h e c o n v e n i n g a u t h o r i t y ) ( ) . T h e

proceedings, findings, and sentence are invalid. Another trial is ordered before a court-martial to be

designated.

A l l f i n d i n g s o f g u i l t y a n d s e n t e n c e d i s a p p r o v e d ;

charges dismissed. See R.C.M. 1107(c)(2)(B).

2 0 . I n t h e c a s e o f , t h e f i n d i n g s o f

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

A16-3

FORMS FOR ACTION App. 16
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

d i s c h a r g e ) ( b a d - c o n d u c t d i s c h a r g e ) ) , w i l l b e e x e -

cuted. The accused will be credited with any portion

o f t h e p u n i s h m e n t s e r v e d

f r o m 2 0 t o 2 0 u n 

the sentence adjudged at the former trial of this case.

Action on rehearing; restoration of rights.

2 2 . I n t h e c a s e o f , t h e f i n d i n g s o f

g u i l t y a n d t h e s e n t e n c e a r e d i s a p p r o v e d a n d t h e

c h a r g e s a r e d i s m i s s e d . A l l r i g h t s , p r i v i l e g e s , a n d

property of which the accused has been deprived by

virtue of the execution of the sentence adjudged at

t h e f o r m e r t r i a l o f t h i s c a s e

on 20 will be restored.

2 3 . I n t h e c a s e o f , t h e a c c u s e d w a s

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 onwill 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. Form 24a is appropriate

for withdrawal of previous action pursuant to ins t r u c t i o n s f r o m r e v i e w i n g a u t h o r i t y p u r s u a n t t o

R.C.M. 1107(f)(2) or (g). When the action of a predecessor in command is withdrawn due to ambiguity,

see United States v. Lower, 10 M.J. 263 (C.M.A.

1981).

24. In the case of , the action taken by

( m e ) ( m y p r e d e c e s s o r i n c o m m a n d )

on is withdrawn and

the following substituted therefor:

.

24a. In the case of , in accordance with

i n s t r u c t i o n s f r o m ( T h e J u d g e A d v o c a t e G e n e r a l )

(the Court of Criminal Appeals) purs u a n t t o R u l e f o r C o u r t s - M a r t i a l [ 1 1 0 7 ( f ) ( 2 ) ]

[1107(g)], the action taken by (me) (my predecessor

in command) is withdrawn. The following is 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 court-martial 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.

I f t h e c o n v e n i n g a u t h o r i t y o r h i g h e r a u t h o r i t y

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

specifically 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) (confinem e n t ) ( h a r d l a b o r w i t h o u t c o n f i n e m e n t )

A16-4

App. 16 APPENDIX 16
( a n d ) i s s u s p e n d e d f o r

(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-l

s u s p e n d e d ; a c c u s e d r e t a i n e d i n g r a d e p r e v i o u s l y

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) (confinem e n t ) ( h a r d l a b o r w i t h o u t c o n f i n e m e n t )

( ), and reduction to the grade of E-1 is

s u s p e n d e d f o r ( m o n t h s ) ( y e a r s ) , a t

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-l

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

t o t h e g r a d e o f i s s u s p e n d e d f o r -

(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 E-1 at that

time.

ACTION UNDER R.C.M. 1112(f). The forms for

action for the officer taking action under R.C.M.

1112(f) are generally similar to the foregoing actions. The officer taking action under R.C.M. 1112

(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. 1112(g)(1). See R.C.M.

1113(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 . ( is designated as the place of confinement.)

Sentence includes unsuspended dishonorable or badconduct discharge; order of execution. See R.C.M.

1113(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).

3 1 . I n t h e c a s e o f , t h e f i n d i n g s o f

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. 1112(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

w a s a d m i t t e d o v e r t h e o b j e c t i o n o f t h e d e f e n s e )

( ) . T h i s e r r o r w a s p r e j u d i c i a l t o t h e

rights of the accused as to the findings and the

sentence. The case is returned to the convening auA16-5

FORMS FOR ACTION App. 16
thority who may order a rehearing or dismiss the

charges.

Action taken is less favorable to the accused than

t h a t r e c o m m e n d e d b y t h e j u d g e a d v o c a t e . S e e

R.C.M. 1112(e), (f).

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 .

A16-6

App. 16 APPENDIX 16
APPENDIX 17

FORMS FOR COURT-MARTIAL ORDERS

a. Forms for initial promulgating orders

[ N o t e . T h e f o l l o w i n g i s a f o r m a p p l i c a b l e i n

promulgating the results of trial and the action of the

convening authority in all general and special courtmartial cases. Omit the marginal side notes in drafting orders. See R.C.M. 1114(c).]

Heading (General) (Special) (Headquarters) (USS)

Court-Martial Order No. 

[Note. The date must be the same as the date of the convening authority’s action, if any.]

(Grade) (Name) (SSN) (Armed Force)

(Unit)

Arraignment was arraigned (at/on board ) on the following offenses at a court-martial

convened by (this command) (Commander, ).

Offenses CHARGE I. ARTICLE 86. Plea: G. Finding: G.

Specification 1: Unauthorized absence from unit from 1 April 1984 to 31 May 1984.

Plea: G. Finding: G.

[Note. Specifications may be reproduced verbatim or may be summarized. Specific factors, such as value, amount, and other circumstances which affect the maximum punishment should be indicated in a summarized specification. Other significant matters contained in the specification may be included. If the

specification is copied verbatim, include any amendment made during trial. Similarly, information included in a summarized specification should reflect any amendment to that information made during the

trial.]

Specification 2: Failure to repair on 18 March 1984. Plea: None entered. Finding:

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. Plea: NG. Finding: NG, but G of a violation of

ARTICLE 92.

Specification: Disobedience of superior noncommissioned officer on 30 March 1984

by refusing to inspect sentinels on perimeter of bivouac site. Plea: NG. Finding: G,

except for disobedience of superior noncommissioned officer, substituting failure to

obey a lawful order to inspect sentinels on perimeter of bivouac site.

CHARGE III. ARTICLE 112a. Plea: G. Finding: G.

Specification 1: Wrongful possession of 150 grams of marijuana on 24 March 1984.

Plea: G. Finding: G.

Specification 2: Wrongful use of marijuana while on duty as a sentinel on 24 March

1984. Plea: G. Finding G.

Specification 3: Wrongful possession of heroin with intent to distribute on 24 March

1984. Plea: NG.Finding: G.

CHARGE IV. ARTICLE 121. Plea: NG. Finding: G.

A17-1
Specification: Larceny of property of a value of $150.00 on 27 March 1984. Plea:

NG. Finding: G, except the word “steal,” substituting “wrongfully appropriate.”

Acquittal If the accused was acquitted of all charges and specifications, the date of the

acquittal should be shown: “The findings were announced

on .”

SENTENCE

Sentence adjudged on : Dishonorable discharge, forfeiture of all pay and allowances, confinement for 2 years, and reduction to the

lowest enlisted grade.

Action of convening authorityACTION

[Note. Summarize or enter verbatim the action of the convening authority. Whether or not the action is

recited verbatim, the heading, date, and signature block of the convening authority need not be copied

from the action if the same heading and date appear at the top of this order and if the name and rank of

the convening authority are shown in the authentication.]

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 trial 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 co-accused.]

b. Forms for supplementary orders promulgating results of affirming 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

-Affirmed

In the (general) (special) court-martial case of (name, grade or rank, branch of service, and SSN of 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 , has been finally

affirmed. Article 71(c) having been complied with, the bad-conduct discharge will

be executed.

or

A17-2

App. 17 APPENDIX 17
-Affirmed in part In the (general) (special) court-martial case of (name, grade or rank, branch of service, and SSN of accused,) only so much of the sentence promulgated in (General)

(Special) Court-Martial Order No. , (Headquarters) (Commandant,

Naval District) , dated , as

provides for , has been finally affirmed. Article 71(c) having been complied with, the bad-conduct discharge will be executed.

or

In the (general) (special) court-martial case of (name, grade or rank, branch of service, and SSN of accused,) the findings of guilty of Charge II and its 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 , as provides for , has been

finally affirmed. Article 71(c) having been complied with, the bad-conduct discharge

will be executed.

or

Affirmed in part; prior order

of execution set aside in part

In the (general) (special) court-martial case of (name, grade or rank, branch of service, and SSN of accused,) the proceedings of which are promulgated in (General)

(Special) Court-Martial Order No. , (Headquarters) (Commandant,

Naval District) , dated , 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.

Finding and sentence set

aside

In the (general)(special) court-martial case of (name, grade or rank, branch of service, and SSN, of accused,) the findings of guilty and the sentence promulgated by

(General) (Special) Court-Martial Order No. , (Headquarters) (Commandant, Naval District), ,

dated , were set aside

on . (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.

A17-3

FORMS FOR COURT-MARTIAL ORDERS App. 17
Remissions; suspension

See R.C.M. 1108

The unexecuted portion of the sentence to , in the case of (Name, grade

or rank, branch of service and SSN of accused,) promulgated in (General) (Special)

Court-Martial Order No. , (this headquarters) (this ship) (Headquarters ) (USS ), , , 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. 1114(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 that as approved and affirmed includes a bad-conduct discharge or confinement for one year, will be promulgated by the officer exercising general court-martial

jurisdiction over the probationer (Article 72(b)). The vacation of suspension of any other sentence may be

promulgated by an appropriate convening authority under Article 72(c). See R.C.M. 1109.]

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 ),

. , in the case of (name, grade or rank, branch of

service, and SSN), as suspends, effective , execution

of the approved sentence to (a bad-conduct discharge) (confinement for-

(months) (years)) (forfeiture of ), (and subsequently

modified by (General) (Special) Court-Martial Order No. , (this

headquarters) (this ship) (Headquarters ) (USS ),

. , is vacated. (The unexecuted portion of the sentence to will be executed.) ( is designated as the

place of confinement.)

[Note. See R.C.M. 1113 concerning execution of the sentence.]

Authentication See R.C.M.1114(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.

A17-4

App. 17 APPENDIX 17
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 ), , in the case of (name, grade or

rank, branch of service, and SSN of accused) (is rescinded) (was rescinded

on .) The portion of the sentence to confinement will

be executed. ( is designated as the place of confinement.)

Authentication See R.C.M. 1114(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 SSN of accused,) the sentence to confinement (and ), as

promulgated in (General) (Special) Court-Martial Order No. ,

(Headquarters) (Commandant, Naval District) , dated

, has been finally affirmed. Service of confinement

was deferred on . 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. 1114(e).

A17-5

FORMS FOR COURT-MARTIAL ORDERS App. 17

APPENDIX 18

Report of Proceedings to Vacate Suspension of a General Court-Martial or of

a Special Court-Martial Sentence Including a Bad-Conduct Discharge or

Confinement for One Year Under Article 72, UCMJ, and R.C.M. 1109 (DD Form

455)

A18-1
A18-2

APPENDIX 18
A18-3

APPENDIX 18
A18-4

APPENDIX 18
APPENDIX 19

Waiver/Withdrawal of Appellate Rights in General and Special Courts-Martial

Subject to Review by a Court of Military Review (DD Form 2330)

A19-1
A19-2

APPENDIX 19
APPENDIX 20

Waiver/Withdrawal of Appellate Rights in General Courts-Martial Subject to

Examination in the Office of the Judge Advocate General (DD Form 2331)

A20-1
A20-2

APPENDIX 20
APPENDIX 21

ANALYSIS OF RULES FOR COURTS-MARTIAL

Introduction

T h e M a n u a l f o r C o u r t s - M a r t i a l , U n i t e d S t a t e s , 1 9 8 4 , i n -

cludes Executive Order No. 12473 signed by President Reagan on

13 April 1984. This publication also contains various supplementary materials for the convenience of the user.

History of 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 courtsmartial. See W. Winthrop, Military Law and Precedents 27–28

(2d ed. 1920 reprint). Such rules have been promulgated under

the President’s authority as commander-in-chief, see U.S. Const.,

Art. II, sec. 2, cl.1., and, at least since 1813, such power also has

been provided for in statutes. SeeW. Winthrop, supra at 26–27. In

1875 Congress specifically provided for the President 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. of the House Comm. on Armed Services, 96th

Cong., 1st Sess. 5–6, 14, 17–18, 20–21, 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. 810,811. 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 publ i s h e d i n v a r i o u s f o r m s , i n c l u d i n g “ M a n u a l s ” . W . W i n t h r o p ,

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 III. See also MCM,

1921 at XIX.

The forerunner of the modern 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

Manual for Courts-Martial (3d ed. 1893); H. Coppee, Field manu a l f o r C o u r t s - M a r t i a l ( 1 8 6 3 ) ) . S u b s e q u e n t M a n u a l s t h r o u g h

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 the Manual for Courts-Martial as such in 1921. See

MCM, 1921 at XXVI.

Background of this Manual. During the drafting of the Military

Rules of Evidence ( see Analysis, Part III, introduction, infra), the

drafters identified several portions of 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. First, 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

opposed 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.

T h e s e g o a l s w e r e i n t e n d e d t o e n s u r e t h a t t h e M a n u a l f o r

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 CourtsMartial 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-Service 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 (later Brigadier

General) Donald W. Hansen, USA, 1980-July 1981 (Chairman,

October 1980–July 1981); Colonel Kenneth A. Raby, USA, July

A21-1
1981–January 1984 (Chairman, July 1981–September 1982); Captain Edward M. Byrne, USN, 1980–July 1981 (Chairman through

S e p t e m b e r 1 9 8 0 ) ; C a p t a i n J o h n J . G r e g o r y , U S N , J u l y

1 9 8 1 – J a n u a r y 1 9 8 4 ; C o l o n e l R i c h a r d T . Y e r y U S A F ,

1 9 8 0 – M a r c h 1 9 8 2 ; C o l o n e l J o h n E . H i l l i a r d , U S A F , M a r c h

1 9 8 2 – O c t o b e r 1 9 8 3 ( C h a i r m a n , O c t o b e r 1 9 8 2 – O c t o b e r 1 9 8 3 ) ;

Colonel Thomas L. Hemingway, USAF, October 1983-January

1984 (Chairman, October 1983–January 1984); Lieutenant Colonel A.F. Mielczarski, USMC, 1980–July 1982; Lieutenant Colonel G.W. Bond, USMC, July 1982–October 1982, Lieutenant

Colonel Gary D. Solis, USMC, October 1982–March 1983; Lieutenant Colonel George Lange, III, USMC, June 1983–January

1984; Commander William H. Norris, USCG, 1980–August 1981;

Commander Thomas B. Snook, USCG, August 1981–September

1 9 8 3 ; C a p t a i n W i l l i a m B . S t e i n b a c h , U S C G , O c t o b e r

1983–January 1984; and Mr. Robert H. Mueller of the Court of

Military Appeals (1980–January 1984).

In the summer of 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,

U S N ; L i e u t e n a n t C o l o n e l R i c h a r d R . J a m e s , U S A F

( 1 9 8 0 – D e c e m b e r 1 9 8 2 ) ; L i e u t e n a n t C o l o n e l R o b e r t L e o n a r d ,

USAF (December 1982 to January 1984); Major Jonathan R.

Rubens, USMC; and Mr. John Cutts, and Mr. Robert Mueller of

t h e s t a f f o f t h e C o u r t o f M i l i t a r y A p p e a l s . M r . F r a n c i s 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 Joint-Service 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 O. 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. Tiernan, 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 and

other 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 submiss i o n t o t h e P r e s i d e n t a f t e r c o o r d i n a t i o n b y t h e O f f i c e o f

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

theUniform System of Citation (13th ed. 1981), copyrighted by

the Columbia, Harvard, and University of Pennsylvania Law 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. The Military Rules of Evidence are

cited, e.g., as Mil. R. Evid. 101. Other provisions of this Manual

are cited to the applicable part and paragraph, e.g., MCM, Part V,

paragraph 1a(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, 45 Fed. Reg.16,932 (1980); Exec. Order

No. 12223, 45 Fed. Reg. 58,503 (1980); Exec. Order No. 12306,

46 Fed. Reg. 29,693 (1981); Exec. Order No. 12315, 46 Fed.

Reg. 39,107 (1981); Exec. Order No. 12340, 47 Fed. Reg. 3,071

(1982); Exec. Order No. 12383, 47 Fed. Reg. 42,317 (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

A21-2

APPENDIX 21
this analysis was drafted, the specific page numbers in the statutes

at large were not available.

Composition of the 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

As a supplement to the Manual, the Department of Defense, in

conjunction with the Department of Homeland Security, 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 courts-martial. If the

President had 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 courtsmartial. 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 interp r e t a t i o n . A t t h e s a m e t i m e , t h e u s e r i s r e m i n d e d t h a t t h e

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

u n a n i m o u s s u p p o r t o f t h e d r a f t e r s . T o t h e e x t e n t t h a t f u t u r e

c h a n g e s a r e m a d e i n t h e R u l e s o r D i s c u s s i o n , c o r r e s p o n d i n g

materials will be included in the Analysis.

The Appendices contain various nonbinding materials to assist

u s e r s o f t h i s M a n u a l . T h e A p p e n d i c e s a l s o c o n t a i n i n d e n t

t y p e = ’ h ’ a m t = ’ 1 0 . ’ s f r o m p e r t i n e n t s t a t u t e s . T h e s e i n d e n t

type=’h’ amt=’10.’s are appropriated 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 of Courts-Martial , DA PAM 27–174, chapter 1 (May 1980.)

1. Sources of military jurisdiction

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. II, sec. 2; Art. IV, sec. 4; and the fifth amendment.

As to sources in international law, see e.g., Ex Parte Quirin, 317

U.S. 1 (1942); Geneva Convention Relative to the Treatment of

Prisoners of War, Aug. 12, 1949, arts. 82–84, 6 U.S.T. 3316,

3382, T.I.A.S. No. 3365, 75 U.N.T.S. 287. See generally DA

PAM 27–174, supra at paragraph 1–3.

A21-3

ANALYSIS
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 and Precedent 817–30 (2d ed. 1920 reprint); Ex parte

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).

F o r a d d i t i o n a l m a t e r i a l s o n m i l i t a r y g o v e r n m e n t , s e e 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 831–46; Trials of

War Criminals Before the Nuremberg Tribunals (U.S. Gov’t Printing Off., 1950–51); Trials of the Major War Criminals Before

the International Military Tribunal (International Military Tribunal, Nuremberg 1947);In re Yamashita, 327 U.S. 1 (1946);Ex

parte Quirin, supra; Ex parte Milligan, supra; Articles 18 and 21.

Subsection (b) is based on the second paragraph of paragraph 2

of MCM, 1969 (Rev.). See also Article 21; DA PAM 27–174,

s u p r a a t p a r a g r a p h 1 – 5 a ; W . W i n t h r o p , s u p r a a t 8 0 2 – 0 5 ,

835–36. As to provost courts, see also Hearings on H.R. 2498

Before a Subcomm. of the 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. Purpose of military law

See generally Chappel v. Wallace, 462 U.S. 296, 103 S.Ct.

2362 (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 of the United States (1956); J. Bishop, Justice

U n d e r F i r e ( 1 9 7 4 ) ; H o d s o n , M i l i t a r y J u s t i c e : A b o l i s h o r

Change?, 22 Kan. L. Rev. 31 (1975), reprinted in Mil. L. Rev.

Bicent. Issue 579 (1976); Hansen,Judicial Functions for the Commander, 41 Mil.L.Rev. 1 (1968); Hearings on H.R. 2498 Before a

Subcomm. of the House Comm. on Armed Services, 81st Cong.,

1st Sess. 606, 778–86 (1949); H. Moyer, Justice and the Military

5–23 (1972).

4. Structure and application of the Manual for

Courts-Martial

Self-explanatory. See also the Introduction of the Analysis.

PART II. RULES FOR COURTS-MARTIAL

CHAPTER I. GENERAL PROVISIONS

Rule 101 Scope

(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 courtmartial 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 Definitions

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 phases. 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 15 a (3) of MCM, 1969 (Rev.).

(3) “Capital offense.” This definition is based on the first sentence of paragraph 15 a(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 1(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); 844(j).

(12) “Firearm.” 18 U.S.C. § 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).

(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

A21-4

APPENDIX 21
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.

( 1 9 ) “ W a r , t i m e o f . ” T h i s d e f i n i t i o n a p p l i e s o n l y t o

R.C.M.1004(c)(6) and to Parts IV and V of the Manual. Parts II

(except for R.C.M. 1004(c)(6) and III 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 (f);

71(b). The discussions of several rules address “time of war” in

r e l a t i o n t o t h e s e a r t i c l e s . S e e R . C . M . 2 0 2 ( a ) D i s c u s s i o n ( 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 that can occur only in

time of war—Articles 101 and 106 are capital offenses), and

Articles 85, 90, and 113 (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. § 3287; 37 U.S.C. §§ 301(d); 301a(c), 301(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.

§ 310(a). Compare 37 U.S.C. § 310(a) with 37 U.S.C. § 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. of the House of Comm. on Armed Services, 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 of War in the United

States Court of Military Appeals, 22 A.F.L. Rev. 120 (1980–81);

S t e v e n s , T i m e o f W a r a n d V i e t n a m , 8 A . F . J A G L . R e v . 2 3

(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 circumstances surrounding application

of that article. See United States 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

b e c o n s t r u e d n a r r o w l y ) ; U n i t e d S t a t e s v . A n d e r s o n , 1 7

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

Article 43(a)); accord Broussard v. Patton, 466 F.2d 816 (9th Cir.

1972)); United States v. Anderten, 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

statue of limitations under Article 43(f)); United States v. Ayers,

supra (Korea 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); United States v. Bancroft,

3 U.S.C.M.A. 3. 11 C.M.R. 3 (1953) (Korean war was time of

war for purpose of Article 113).

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;” United States v. Shell, 7 U.S.C.M.A. 646, 650,

23 C.M.R. 110, 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;

U n i t e d S t a t e s v . S a n d e r s , 7 U . S . C . M . A . 2 1 , 2 1 C . M . R . 1 4 7

(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 United States 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 geolineartally limited with respect to Article 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 suggests, however, that for some purposes “time

of war” may be geolineartally 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 geolineart

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

A21-5

ANALYSIS App. 21, R.C.M. 103(19)
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. 811 (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-article 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. Bancroft, supra at 5, 11 C.M.R. at 5.

Instead, it provides a mechanism by which the President 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. Cf. United States v. Bancroft, 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 127c of MCM, 1951 provided for suspension of the Table

of Maximum Punishments as to certain articles upon a declaration

of war. The President 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. §§ 1

through 5 and in 10 U.S.C. §§ 101 and 801.” Self-explanatory.

1990 Amendment: The change to the discussion corrects a

previous typolineartal omission of clause (20) and misplacement

of definitions of rank and rating. The note following clause (19)

is not part of the definitions of 10 U.S.C. § 101 and was added to

clarify usage of the terms “rank” and “grade” in this Manual.

1998 Amendment: The Discussion was amended to include

new definitions of “classified information” in (14) and “national

security” in (15). They are identical to those used in the Classified Information Procedures Act (18 U.S.C. App. III § 1, et. seq.).

T h e y w e r e a d d e d i n c o n n e c t i o n w i t h t h e c h a n g e t o A r t i c l e

62(a)(1) (Appeals Relating to Disclosure of Classified Information). See R.C.M. 908 (Appeal by the United States) and M.R.E.

505 (Classified Information).

Rule 104 Unlawful command influence

This rule 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);

United States v. Wright, 17 U.S.M.A. 110, 37 C.M.R. 374 (1967);

United States v. 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. 8–6b (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 of judicial 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

authorities 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. First, 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 turn would 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.

R e c . H . 5 7 2 1 ( 1 9 4 9 ) ; 9 6 C o n g . R e c . S 1 3 5 6 ( 1 9 5 0 ) . S e e a l s o

Cooke v. Orser, 12 M.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 of 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 II. 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. Occas i o n a l l y w h e n c i v i l i a n a u t h o r i t i e s r e q u e s t d e l i v e r y o f a

servicemember, the delivery cannot be effected immediately, e.g.,

when the offender is overseas. In such situations, reasonable reA21-6

App. 21, R.C.M. 103(19) APPENDIX 21
straint 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).

Rule 107 Dismissed officer’s right to request trial

by court-martial

This rule is based on Article 4 and paragraph 111 of MCM,

1969 (Rev.). See also H.R. Rep. No. 491, 81st Cong., 1st Sess. 12

(1949); W. Winthrop, Military Law and Precedents 64 (2d ed.

1920 reprint). The text of 10 U.S.C. § 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 communication of a sentence of a general court-martial; or

(3) in time of war, by order of the President.

Rule 108 Rules of court

This rule is new and is based on Fed.R.Crim. P. 57(a) and

Article 140. Cf. 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 or journals. 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

p r e j u d i c e w i t h i n t h e m e a n i n g o f A r t i c l e 5 9 . C f . 5 U . S . C .

§ 552(a)(1).

Rule 109 Professional supervision of military

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.

1993 Amendment: Subsection (a) was amended to conform

with subsection (c). The amendment to subsection (a) clarifies

that the Judge Advocates General are responsible for the supervision and discipline of judges and attorneys. The amendment to

subsection (a) is not intended to limit the authority of a Judge

Advocate General in any way.

New subsection (c) is based on Article 6a, Uniform Code of

Military Justice. Article 6a, U.C.M.J. was enacted by the Defense

Authorization Act for Fiscal Year 1990. “Military Appellate Procedures,” Tit. XIII, § 1303, National Defense Authorization Act

for Fiscal Year 1990, Pub. L. No. 101-189, 103 Stat. 1352, 1576

(1989). The legislative history reveals Congressional intent that,

to the extent consistent with the Uniform Code of Military Justice, the procedures to investigate and dispose of allegations concerning judges in the military should emulate those procedures

found in the civilian sector. See H.R. Conf. Rep. No. 331, 101st

Cong., 1st Sess. 656 (1989) [hereinafter Conf. Rep. No. 331]. The

procedures established by subsection (c) are largely patterned

after the pertinent sections of the American Bar Association’s

Model Standards Relating to Judicial Discipline and Disability

Retirement (1978) [hereinafter ABA Model Standard] and the

procedures dealing with the investigation of complaints against

federal judges in 28 U.S.C. § 372 (1988). The rule recognizes,

however, the overall responsibility of the Judge Advocates General for the certification, assignment, professional supervision,

and discipline of military trial and appellate military judges. See

Articles 6, 26 & 66, Uniform Code of Military Justice.

Subsection (c)(2) is based on the committee report accompanying the FY 90 Defense Authorization Act. See Conf. Rep. No.

331 at 658. This subsection is designed to increase public confidence in the military justice system while contributing to the

integrity of the system. See, Landmark Communications v. Virginia, 435 U.S. 829 (1978).

The first sentence of the Discussion to subsection (c)(2) is

based on the committee report accompanying the Defense Authorization Act. Conf. Rep. No. 331 at 358. The second and third

sentences of the discussion are based on the commentary to ABA

Model Standard 3.4. See also, Chandler v. Judicial Council, 398

U.S. 74 (1970).

Subsection (c)(3), (c)(5), and (c)(7) reflect, and adapt to the

conditions of military practice, the general principle that judges

should investigate judges.

The first paragraph of the Discussion to subsection (c)(3) is

based on the commentary to ABA Model Standard 4.1.

The discussion to subsection (c)(4) is based on the commentary

to ABA Model Standard 4.6.

The clear and convincing standard found in subsection (c)(6)(c)

is based on ABA Model Standard 7.10.

Under subsection (c)(7), the principle purpose of the commission is to advise the Judge Advocate General concerned as to

whether the allegations contained in a complaint constitute a

A21-7

ANALYSIS App. 21, R.C.M. 109
violation of applicable ethical standards. This subsection is not

intended to preclude use of the commission for other functions

such as rendering advisory opinions on ethical questions. See,

ABA Model Standard 9 on the establishment and role of an

advisory committee.

Subsection (c)(7)(a) is based on ABA Model Standard 2.3,

which provides that one-third of the members of a commission

should be active or retired judges.

CHAPTER II. JURISDICTION

Rule 201 Jurisdiction in general

Introduction. 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 of court-martial jurisdiction. Subsection (1) reiterates

the first sentence of the second paragraph of paragraph 8 of

MCM, 1969 (Rev.). The discussion is based on paragraph 8 of

M C M , 1 9 6 9 ( R e v . ) . C f . F e d R . C r i m . P . 7 ( c ) ( 2 ) ; 1 8 U . S . C .

§§ 3611–20. 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, geolineartal considerations

may affect court-martial jurisdiction. See R.C.M. 202 and 203.

Subsection (3) restates the third paragraph of paragraph 8 of

M C M , 1 9 6 9 ( R e v . ) . S e e a l s o C h e n o w e t h v . V a n A r s d a l l , 2 2

U.S.C.M.A. 183, 46 C.M.R. 183 (1973), which held that Art. III,

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.

(b) Requisites of court-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. See Rosado 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. Ex parte 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 a referral are jurisdictional. See United States

v. Blaylock, 15 M.J. 190 (C.M.A. 1983). Requisite (5) is listed

s e p a r a t e l y f o r t h e f i r s t t i m e . T h i s r e q u i s i t e m a k e s c l e a r t h a t

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. 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); United States 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 courtmartial 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 is 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 to be mentioned in

rules pertaining to courts-martial.

( d ) E x c l u s i v e a n d n o n e x c l u s i v e j u r i s d i c t i o n . S u b s e c t i o n ( d ) i s

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 the 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

t r i s e r v i c e r e g u l a t i o n , A R 2 7 – 5 0 / S E C N A V I N S T 5 8 2 0 . 4 E / A F R

110–12, Dec. 1, 1978, that the United States seeks to maximize

jurisdiction over its personnel.

The second paragraph in the discussion restates the third paragraph in paragraph 12 of MCM, 1969 (Rev.), which was based on

A21-8

App. 21, R.C.M. 109 APPENDIX 21
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 Subcommittee of the

H o u s e C o m m i t t e e o n A r m e d S e r v i c e s , 8 1 s t C o n g . , 1 s t S e s s .

612–615; 957–958 (1949)) and is designed to protect the integrity

of intraservice lines of authority. See United States v. Hooper,

supra (Brosman, J. and Latimer, J., concurring in the result).

1986 Amendment: Subsections (e)(2) and (e)(3) were revised

to implement the Goldwater-Nichols Department of Defense Reorganization Act of 1986, Pub.L. No. 99 - 433, tit. II, § 211(b),

100 Stat. 992. Because commanders of unified and specified

commands (the combatant commands) derive court-martial convening authority from Article 22(a)(3), as added by this legislation, they need not be established as convening authorities in the

Manual.

Paragraph (2)(A), which sets forth the authority of the combatant commanders to convene courts-martial over members of any

of the armed forces, is an exercise of the President’s authority

under Article 17(a). In paragraph (2)(B), the first clause is a

delegation from the President to the Secretary of Defense of the

President’s authority to designate general court-martial convening

authorities. This provision, which reflects the current Manual,

may be used by the Secretary of Defense to grant general courtmartial convening authority to commanders of joint commands or

joint task forces who are not commanders of a unified or specified command. The second clause of paragraph 2(b) is an exercise

of the President’s authority under Article 17(a).

Nothing in this provision affects the authority of the President

or Secretary of Defense, as superior authorities, to withhold courtmartial convening authority from the combatant commanders in

whole or in part.

Subsection (4) has been added to avoid possible questions

concerning detailing military judges from different services.

Subsection (5) restates Article 17(b).

1986 Amendment: Subsection (6) was inserted in the context of

t h e G o l d w a t e r - N i c h o l s D e p a r t m e n t o f D e f e n s e R e o r g a n i z a t i o n

Act of 1986, Pub. L. No. 99-433, tit. II, 100 Stat. 992, to specify

the process for resolving disagreements when two organizations,

at the highest levels of each, assert competing claims for jurisdiction over an individual case or class of cases. Under this legislation, the commanders of unified and specified commands are

authorized to convene courts-martial. At the same time, the military departments retain authority over all aspects of personnel

administration, including administration of discipline, with respect

to all persons assigned to joint duty or otherwise assigned to

organizations within joint commands. In effect, the combatant

commands and the military departments have concurrent jurisdiction over persons assigned to such commands. Under most circumstances, any issues as to jurisdiction will be resolved between

the military department and the joint command. Paragraph (6) has

been added to provide a means for resolving the matter when the

Service Secretary and the commander of the joint organization

cannot reach agreement. See H.R. Rep. No. 824, 99th Cong., 2d

Sess. (1986), at 125. Paragraph (6) also requires use of the same

procedure when there is a disagreement between two Service

Secretaries as to the exercise of reciprocal jurisdiction.

Subsection (7) was added to ensure that the Secretaries of the

military departments retain responsibility for the administration of

discipline, including responsibility for all persons in their departments assigned to joint duty.

Paragraphs (6) and (7) apply only when the commander is

acting solely in his joint capacity or when he is seeking to assert

jurisdiction over a member of a different armed force. There are

various provisions of the Manual addressing the duties or responsibilities of superior authorities, and it was considered more useful to establish who may act as a superior authority as a general

proposition rather than to specify in great detail the relationship

between joint commanders and Service Secretaries as to each

such matter. Accordingly, when action is required to be taken by

an authority superior to a combatant commander, the responsibility is given to the Secretary of the Military Department that

includes the armed force of which the accused is a member. This

includes responsibility for acting on matters such as a request for

counsel of the accused’s own selection. An exception is expressly

set forth in paragraph (6), however, which specifically provides

the procedure for resolving disagreements as to jurisdiction. The

Service Secretary cannot withhold or limit the exercise of jurisdiction under R.C.M. 504(b) or under Part V (Nonjudicial Punishm e n t P r o c e d u r e ) b y a c o m b a t a n t c o m m a n d e r o v e r p e r s o n s

assigned to the joint command. Such action may be taken, however, by the Secretary of Defense, who may assign responsibility to

the military department or the unified command for any case or

class of cases as he deems appropriate.

The amendments to R.C.M. 201 are designed to govern organizational relationships between joint commands and military

departments over a range of issues, and are not intended to confer

rights on accused servicemembers. These provisions reflect the

P r e s i d e n t ’ s i n h e r e n t a u t h o r i t y a s C o m m a n d e r - i n - C h i e f t o p r e -

scribe or modify the chain of command, his specific authority

under Article 17 to regulate reciprocal jurisdiction, and his authority (and that of the Secretary of Defense) under 10 U.S.C.

§§ 161-65 (as added by the 1986 legislation) to prescribe or

modify the chain of command.

To the extent that a commander of a joint organization is

“dual-hatted” (i.e., simultaneously serving as commander of a

joint organization and a separate organization within a military

department), subsections (6) and (7) apply only to the actions

taken in a joint capacity.

(f) Types of courts-martial. The source for subsection (1) is ArtiA21-9

ANALYSIS App. 21, R.C.M. 201(f)
cle 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 punishm e n t s b y g e n e r a l c o u r t s - m a r t i a l h a v e b e e n p l a c e d i n t h e

discussion. As to the second sentence in subsection (1)(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 15 a(1) 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

a u t h o r i t y h a d t o m a k e t h e r e f e r r a l p e r s o n a l l y . S u b s e c t i o n

(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 gene r a l c o u r t - m a r t i a l c o n v e n i n g a u t h o r i t y . S e v e r a l s t a t e m e n t s i n

MCM, 1969 (Rev.) have been placed in the discussion.

2002 Amendment: Subsections (f)(2)(B)(i) and (f)(2)(B)(ii)

were amended to remove previous limitations and thereby implement the amendment to 10 U.S.C. Sec. 819 (Article 19, UCMJ)

contained in section 577 of the National Defense Authorization

Act for Fiscal Year 2000, P. L. No. 106-65, 113 Stat. 512 (1999).

Subject to limitations prescribed by the President, the amendment

i n c r e a s e d t h e j u r i s d i c t i o n a l m a x i m u m p u n i s h m e n t a t s p e c i a l

courts-martial to confinement for one year and forfeitures not

exceeding two-thirds pay per month for one year, vice the previous six-month jurisdictional limitation.

A s t o s u b s e c t i o n ( 3 ) s u m m a r y c o u r t s - m a r t i a l a r e t r e a t e d

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 described some of the

more important requirements for court-martial jurisdiction over

persons. Standards governing active duty servicemembers (Article

2(a)(1)) are emphasized, although subsection (4) brings attention

to limitations on jurisdiction over civilians established by judicial

decisions.

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 the area of the law in the wake

of the amendment of Article 2 in 1979. Act of November 9, 1979,

Pub.L. No. 96–107, § 801(a), 93 Stat. 810–11. 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. §§ 504

and 505 thus become critical, along with the issue of voluntariness. As to whether an enlistment is compelled or voluntary,

compare United States 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

S t a t e s v . B e a n , 1 3 U . S . C . M . A . 2 0 3 , 3 2 C . M . R . 2 0 3 ( 1 9 6 2 ) ;

United States v. Overton, 9 U.S.C.M.A. 684, 26 C.M.R. 464

(1958); and 10 U.S.C. § 1170. The last sentence is based on

Article 2(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

i n d i c a t e s t h a t U n i t e d S t a t e s v . K i n g , 1 1 U . S . C . M . A . 1 9 , 2 8

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. Heflebower, 145

F.2d 864 (5th Cir. 1944), cert. denied, 325 U.S. 854 (1945).

The second paragraph under (ii) Induction is based on United

S t a t e s v . S c h e u n e m a n n , 1 4 U . S . C . M . A . 4 7 9 , 3 4 C . M . R . 2 5 9

( 1 9 6 4 ) . S e e a l s o U n i t e d S t a t e s v . W i l s o n , 4 4 C . M . R . 8 9 1

(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. §§ 672, 673 and

673(a), See also United States 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).

1986 Amendment: Paragraph (2)(A)(iii) of the Discussion was

amended and paragraph (5) was added to reflect amendments to

Articles 2 and 3 of the UCMJ contained in the “Military Justice

Amendment of 1986,” tit. VIII, § 804, National Defense Authorization Act for fiscal year 1987, Pub.L. No. 99–661, 100 Stat.

3905 (1986), which, among other things, preserves the exercise of

jurisdiction over reservists for offenses committee in a duty status, notwithstanding their release from duty status, if they have

time remaining on their military obligation. The legislation also

provides express statutory authority to order reservists, including

members of the National Guard of the United States and the Air

National Guard of the United States who commit offenses while

serving on duty under Title 10 of the United States Code, to

active duty for disciplinary action, including the service of any

punishment imposed.

The first paragraph under (B)Termination of jurisdiction 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. Griffin, 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.

A21-10

App. 21, R.C.M. 201(f) APPENDIX 21
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);

U n i t e d S t a t e s v . H o u t , 1 9 U . S . C . M . A . 2 9 9 , 4 1 C . M . R . 2 9 9

(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 ex rel. Toth v. Quarles, 350

U.S. 11 (1955). See also United States v. Clardy, 13 M.J. 308

(C.M.A. 1982).

The exceptions is subsection (B)(iii) are restated in slightly

different language for clarity from paragraph 11 b of MCM, 1969

(Rev.). Exception ( b) is based on United States 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 F.2d 745 (10th Cir. 1944), cert. denied, 323 U.S. 800

(1945). Although it has not been judicially interpreted, the sentence of paragraph 11b of MCM, 1969 (Rev.) has been included

here. The principle it expressed has long been recognized. See the

last sentence in paragraph 11b of MCM, 1951; 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. § 855; 42 U.S.C. § 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). United States 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

t h a t A r t i c l e 2 ( a ) ( 1 0 ) c o u l d b e i n v o k e d d u r i n g p e r i o d o f u n -

declared 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 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. Kilpatrick,

53 F.Supp. 80 (E.D. Va. 1943). See also Ex parte Gerlach, 247

F.616 (S.D.N.Y. 1917); United States v. Burney, 6 U.S.C.M.A.

776, 21 C.M.R. 98 (1956); Hearings on H.R. 2498 Before a

Subcomm. of the 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.

Kilpatrick, 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 F.Supp. 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—Exservicemen, Civilian Employees and Dependents, 13 A.F.JAG L.

Rev. 184 (1971). Civilians may be tried by general court-martial

under Article 18 and the law of war. See R.C.M. 201(f)(1)(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

t e c h n i c a l l y e x i s t e d ( s e e P r o c l a m a t i o n N o . 2 9 5 0 , 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) Offenses under the law of war. 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

A21-11

ANALYSIS App. 21, R.C.M. 202(b)
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 of jurisdiction over the person. This subsection is

based on paragraph 11d 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, J.); 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. 313

(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 11 d 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. Self, 13 M.J. 132

(C.M.A. 1982); United States v. Douse, supra; United States v.

Smith, supra. See also United States v. Fitzpatrick, 14 M.J. 394

(C.M.A. 1983); United States v. Handy, 14 M.J. 202 (C.M.A.

1 9 8 2 ) ; U n i t e d S t a t e s v . W h e e l e y , s u p r a ; U n i t e d S t a t e s v .

Rubenstein, supra; United States v. Mansbarger, 20 C.M.R. 449

(A.B.R. 1955).

Rule 203 Jurisdiction over the offense

This rule is intended to provide for the maximum possible

court-martial jurisdiction over offenses. Since the constitutional

limits of subject-matter 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. Alef, 3 M.J. 414

(C.M.A. 1977) to plead and prove jurisdiction. See also R.C.M.

907(b)(1)(A). The last three sentences in subsection (b) of the

discussion are based onUnited States v. Lockwood, 15 M.J. 1

( C . M . A . 1 9 8 3 ) . T h e r e m a i n d e r o f t h e d i s c u s s i o n r e f l e c t s t h e

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 theRelford factors, which

are starting points in service-connection analysis, although the

n i n e a d d i t i o n a l c o n s i d e r a t i o n s i n R e l f o r d a r e a l s o s i g n i f i c a n t .

These factors are not exhaustive. United States v. Lockwood,

supra. See also United States v. Trottier, 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 third 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 F.2d 265

(3d Cir. 1971). With respect to the fourth sentence of (c)(3), see

United States v. Hedlund, supra; United States v. Riehle, 18

U.S.C.M.A. 603, 40 C.M.R. 315 (1969). But cf. United States v.

Lockwood, supra. Although much of the reasoning in United

States v. McCarthy, 2 M.J. 26 (C.M.A. 1976) has been repudiated

by United States 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 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.

Whatley, 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: serviceconnection 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 service-connection).

Subsection (c)(6) of the discussion indicates that virtually all

offenses by servicemembers in time of declared war are serviceconnected. 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 Warner v. 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’ court-martial 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 serviceconnected. 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 lines 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,

A21-12

App. 21, R.C.M. 202(b) APPENDIX 21
4 1 C . M . R . 2 9 ( 1 9 6 9 ) . S e e a l s o U n i t e d S t a t e s v . K e a t o n , 1 9

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

service-connection limitation 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.

516 (A.C.M.R. 1973). The last sentence in the discussion of the

overseas exception is based on United States v. Black, 1 M.J. 340

( C . M . A . 1 9 7 6 ) . S e e a l s o U n i t e d S t a t e s v . G l a d u e , 4 M . J .

1(C.M.A. 1977); United States v. Lazzaro, 2 M.J. 76 (C.M.A.

1976). Some federal courts have suggested that the existence of

c o u r t - m a r t i a l j u r i s d i c t i o n o v e r a n o v e r s e a s o f f e n s e d o e s n o t

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); Wimberly v. Laird, 472 F.2d 923 (7th Cir.), cert.

denied, 413 U.S. 921 (1973); Gallagher v. United States, 423

F.2d 1371 (Ct. Cl.), cert. denied, 400 U.S. 849 (1970); Bell v.

Clark, 308 F.Supp. 384(E.D. Va. 1970), aff’d, 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 of

such special court-martial makes an offense referred to such a

court-martial petty has not been judicially determined.

1995 Amendment : The discussion was amended in light of

Solorio v. United States, 483 U.S. 435 (1987). O’Callahan v.

Parker, 395 U.S. 258 (1969), held that an offense under the code

could not be tried by court-martial unless the offense was “service

connected.” Solorio overruled O’Callahan.

Rule 204 Jurisdiction over certain reserve

component personnel

1987 Amendment: R.C.M. 204 and its discussion were added to

implement the amendments to Articles 2 and 3, UCMJ, contained

in the “Military Justice Amendments of 1986,” tit. VIII, § 804,

National Defense Authorization Act for fiscal year 1987, Pub. L.

No. 99-661, 100 Stat. 3905 (1986). Use of the term “member of a

reserve component” in Article 3(d) means membership in the

reserve component at the time disciplinary action is initiated. The

l i m i t a t i o n i n s u b s e c t i o n ( b ) ( 1 ) r e s t r i c t i n g g e n e r a l a n d s p e c i a l

courts-martial to periods of active duty is based upon the practical

problems associated with conducting a court-martial only during

periods of scheduled inactive-duty training, and ensures that the

exercise of court-martial jurisdiction is consistent with the policies set forth in Article 2(d). The last sentence of subsection (d)

r e f l e c t s l e g i s l a t i v e i n t e n t “ n o t t o d i s t u r b t h e j u r i s p r u d e n c e o f

United States ex rel. Hirshberg v. Cooke, 336 U.S. 210 (1949)”

(H.R. Rep. No. 718, 99th Cong., 2d Sess. at 227 (1986)).

CHAPTER III. INITIATION OF CHARGES;

APPREHENSION;PRETRIAL RESTRAINT;

RELATED MATTERS

Rule 301 Report of offense

The primary sources of this rule are paragraphs 29 a 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 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, “[w]ith 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

t h a t o r d i n a r i l y i n f o r m a t i o n r e l a t i n g t o o f f e n s e s i s c o n v e y e d

promptly to the suspect’s immediate commander.

Rule 302 Apprehension

(a) Definition and scope. The definition of “apprehension” in

A21-13

ANALYSIS App. 21, R.C.M. 302(a)
subsection (1) is taken from Article 7(a), as was its predecessor,

paragraph 18 a 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 States 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. 1981) (Everett, C.J., concurring).

The discussion of “apprehension” is also consistent with paragraphs 18 a 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); Terry v.

Ohio, 392 U.S. 1 (1968); United States v. Schneider, 14 M.J. 189

( C . M . A . 1 9 8 2 ) ; U n i t e d S t a t e s v . T e x i d o r - P e r e z , 7 M . J . 3 5 6

(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 arrest. 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 19 a 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.

1987 Amendment: The Discussion was amended to clarify that

special agents of the Defense Criminal Investigative Service have

the authority to apprehend persons subject to trial by courtsmartial.

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 19 a of MCM, 1969 (Rev.). The accompanying discussion is based on the second sentence of paragraph 19 a of MCM,

1969 (Rev.).

1990 Amendment: The words “or inactive-duty training” were

added in conjunction with the enactment of the “Military Justice

Amendments of 1986,” tit. VIII, 804 National Defense Authorization for Fiscal Year 1987, Pub. L. No. 99–661, 100 Stat. 3905

(1986) expanding jurisdiction over reserve component personnel.

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 of apprehension. 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 trial 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 19 a 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 19 b of MCM, 1969 (Rev.), changed

only as necessary to accommodate format. Cf. paragraph 19 a 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 20 c (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.

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

general statement of procedure to make an apprehension is based

on paragraph 19 c, 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

A21-14

App. 21, R.C.M. 302(a) APPENDIX 21
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. §§ 3052, 3053, and 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 19 d 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 decision making 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, 451 U.S. 204 (1981);

United States v. Mitchell, 12 M.J. 265 (C.M.A. 1982); United

S t a t e s v . D a v i s , 8 M . J . 7 9 ( C . M . A . 1 9 7 9 ) ; U n i t e d S t a t e s 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 paragraph in

subsection (2) is based on Steagald v. United States, supra . The

Working Group does not regard Steagald as requiring an exclusionary 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.).

M u c h o f t h e p r e d e c e s s o r n o w a p p e a r s i n t h e a c c o m p a n y i n g

discussion.

Rule 304 Pretrial restraint

(a) Types of pretrial restraint. Except for the “conditions on

liberty” provision, which is new, this subsection is based on

paragraphs 20 a, b, and c of MCM, 1969 (Rev.). Some 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

United States v. Heard, 3 M.J. 14, 20 (C.M.A. 1977); cf. 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

p a r a l l e l t h e c o n d i t i o n s o n r e l e a s e d e s c r i b e d i n 1 8 U . S . C . §

3 1 4 6 ( a ) . S e e a l s o A B A S t a n d a r d s , P r e t r i a l R e l e a s e § 1 0 - 5 . 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 United States v. Weisenmuller, 17 U.S.C.M.A. 636, 38

C.M.R. 434 (1968); United States 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 . 1 8 9 ( C . M . A . 1 9 7 8 ) ; U n i t e d S t a t e s v . P o w e l l , 2 M . J . 6

(C.M.A. 1976).

1986 Amendment: A fourth paragraph was added to the Discuss i o n t o p r o v i d e a c r o s s - r e f e r e n c e t o t h e s p e e d y t r i a l r u l e i n

R.C.M. 707(a).

(b) Who may order pretrial restraint. This subsection restates, in

a reorganized format, paragraph 21 a 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 United States 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 “delegation,” it would be a rescission

of the earlier withholding. The limits of subsection (3) would not

apply.

(c) When a person 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. §§ 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 ordering pretrial restraint. This subsection is

based on Article 9(b) and (c) and on paragraph 20 d(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 of basis for restraint. This subsection is based on

Article 10. Since all forms of restraint other than confinement

A21-15

ANALYSIS App. 21, R.C.M. 304(e)
involve some form of communication with the accused or suspect, this subsection will impose no undue burden on commande r s . T h e D i s c u s s i o n r e f e r s t o R . C . M . 3 0 5 ( e ) w h i c h c o n t a i n s

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.

Cf. United States v. Jernigan, 582 F. 2d 1211 (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).

Pretrial restraint other than pretrial confinement ( see R.C.M.

305(e)(2) and (f)) 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 (f) (pretrial confinement); 406

(detailing counsel for an accused in an investigation under Article

32); 503 and 506 (detailing counsel for an accused in courtsmartial); 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.

(f) Punishment prohibited. This section is based on Article 13;

paragraph 18 b (3) of MCM, 1969 (Rev.);Hearings on H.R. 2498

Before a Subcomm. of the 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 21 d and on the second

and third sentences of paragraph 22 of MCM, 1969 (Rev.).

1986 Amendment: The Discussion was amended to clarify that

pretrial restraint may be imposed not only when charges are to be

reinstated but also when a convening authority intends to order a

rehearing or an “other” trial. See R.C.M. 1107(e). Restraint imp o s e d d u r i n g a n y o f t h e s e s i t u a t i o n s i s c o n s i d e r e d “ i m p o s e d

before and during disposition of offenses.” See R.C.M. 304(a).

(h) Administrative restraint. This subsection clarifies the scope of

this rule.

Rule 305 Pretrial confinement

Introduction. This rule clarifies the basis 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. 14 (C.M.A. 1977); Cortney

v. Williams, 1 M.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

f o r i m p o s i t i o n a n d r e v i e w o f p r e t r i a l c o n f i n e m e n t . N u m e r o u s

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 20 c 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 19 d and 174 c

and d of MCM, 1969 (Rev.). Article 9(e) expressly distinguishes

confinement from measures to “secure the custody of an alleged

offender until proper authority may be notified”. Such periods of

custody are not confinement within the meaning of this 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

A21-16

App. 21, R.C.M. 304(e) APPENDIX 21
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)(1), which is based on Article 10 and appeared in subparagraph 20 d (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 to the defendant at the initial appearance. The

rule does not specify who shall inform the accused. This affords

considerable flexibility in implementing this provision.

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 § 23-1322(c)(4)). See

generally United States v. Jackson, 5 M.J. 223 (C.M.A. 1978);

United States v. Mason, 21 U.S.C.M.A. 389, 45 C.M.R. 163

(1972); United States v. Przybycien, 19 U.S.C.M.A. 120, 122n. 2,

41 C.M.R. 120, 122n. 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 the outset. See United States v. Timberlake, 22 U.S.C.M.A. 117, 46 C.M.R. 117 (1973); Stanten v.

United States, 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 termin a t e t h e r e l a t i o n s h i p f o r t h e c o n v e n i e n c e o f t h e g o v e r n m e n t .

United States v. Catt, 1 M.J. 41 (C.M.A. 1975); 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).

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 matt e r s w i t h o u t p e r s o n a l c o n t a c t w i t h e i t h e r t h e p r i s o n e r o r t h e

reviewing officer.

1993 Amendment: The amendment to subsection (f) provides a

specific time period by which to measure compliance. Because it

is possible to obtain credit for violations of this section under

subsection (k), a standard of compliance was thought necessary.

See e.g., United States v. Chapman, 26 M.J. 515 (A.C.M.R.

1988), pet. denied 27 M.J. 404 (C.M.A. 1989). This amendment,

while protecting the rights of the prisoner, also gives reasonable

protection to the Government in those cases where the prisoner is

confined in a civilian facility and the request is never, or is

belatedly, communicated to military authorities. While it is expected that military authorities will have procedures whereby civilian confinement authorities communicate such requests in a

timely fashion, the failure to communicate such a request, or the

failure to notify military authorities in a timely manner should be

tested for prejudice under Article 59 U.C.M.J., and should not be

considered as invoking the credit provisions of subsection (k) of

this rule.

(g) Who may direct release from confinement. 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, 96-99 (1970); see also United States v. Pringle,

19 U.S.C.M.A. 324, 41 C.M.R. 324 (1970). More recently, the

a u t h o r i t y o f m i l i t a r y j u d g e s ( s e e P o r t e r v . R i c h a r d s o n , 2 3

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 conf i n e m e n t h a s b e e n r e c o g n i z e d . T h e s u b s e c t i o n e x p r e s s l y e s -

tablishes the authority of such officials to direct release from

pretrial confinement.

( h ) N o t i f i c a t i o n a n d a c t i o n b y c o m m a n d e r . S u b s e c t i o n ( 1 ) i s

b a s e d o n A r t i c l e 1 1 ( b ) , a l t h o u g h t h e t e r m i n o l o g y h a s b e e n

changed somewhat since the terms “commander of a guard” and

“master at arms” no longer accurately describes 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 confinement. See also, Fed.R.Crim.

P.5(a). The discussion is based on Hearings on H.R. 2498 Before

a Subcomm. of the Comm. on Armed Services of the House of

Representatives, 81st Cong., 1st Sess. 913 (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

A21-17

ANALYSIS App. 21, R.C.M. 305(h)
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.

S u b s e c t i o n ( 2 ) ( B ) p r o v i d e s a d d i t i o n a l g u i d a n c e f o r t h e c o m -

mander in making this decision.

T h e 7 2 - h o u r r e q u i r e m e n t i s i n t e n d e d t o e n s u r e r e a s o n a b l y

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); United States 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.

1993 Amendment: The amendment to subsection (h)(2)(A)

clarifies that the 72-hour period operates in two distinct situations: (a) if the commander orders the prisoner into pretrial confinement, the commander has 72 hours to decide whether pretrial

confinement will continue; but (b) if someone other than the

prisoner’s commander orders the prisoner into pretrial confinement, the prisoner’s commander has 72 hours from receipt of a

report that the prisoner has been confined to decide whether

pretrial confinement will continue.

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 20

d(1) of MCM, 1969 (Rev.). Preventing flight is also well established as basis for confinement. See paragraph 20 c 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 20 c. 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 independe n t j u s t i f i c a t i o n f o r p r e t r i a l c o n f i n e m e n t i n U n i t e d S t a t e s 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).

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.

I n d e e d t h e p h r a s e “ f o r e s e e a b l e s e r i o u s c r i m i n a l m i s c o n d u c t ”

c o m e s f r o m H e a r d . S e e a l s o U n i t e d S t a t e s v . N i x o n , s u p r a ;

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,455 U.S. 1022 (1982). See also U.S. Dep’t of

Justice, Attorney General’s Task Force on Violent Crime, Final

Report 50-53 (August 1981); Burger, Report of the Chief Justice

to the American 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” (United States v. Heard, supra) may not be

confined before trial solely on that basis, the accused whose

behavior 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,

reprinted at 50 U.S.C.A. § 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 July 79).

The factors for consideration in the discussion are taken from

18 U.S.C. § 3146(b), with minor modifications. See also ABA

S t a n d a r d s , P r e t r i a l R e l e a s e § § 1 0 - 3 . 2 , 1 0 - 3 . 3 , 1 0 - 4 . 4 ( d ) , 1 0 -

5.1(b) (1979), “embraced” inUnited 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. § 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 possibility of bail exists in potential flight cases,

the two determinations involve the same fundamental considerations. See United States v. Edwards, supra at 1336-37.

The requirement for a memorandum in subsection (2)(C) is

new although not to military practice. See e.g., AR 27–10, para.

9-5 b(1), 16-5 a (1 September 1982); SECNAVINST 1640.10,

para. 6 (16 August 1978). The memorandum is important to the

A21-18

App. 21, R.C.M. 305(h) APPENDIX 21
r e m a i n i n g p r e t r i a l c o n f i n e m e n t p r o c e d u r e s s i n c e i t o r d i n a r i l y

provides the primary basis for subsequent decisions concerning

pretrial confinement.

(i) Procedures for review of pretrial 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 ofCourtney v. Williams, supra. Although in United States v. Malia,

s u p r a , t h e C o u r t o f M i l i t a r y A p p e a l s i d e n t i f i e d t h e t e r m

“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 (j). 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. Shadwick v. City

of Tampa, 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, 552

F.2d 1330 (9th Cir. 1977), cert. denied, 435 U.S. 947 (1978); see

generally 8 J. Moore, Moore’s Federal Practice, 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

§ 23-1322(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 writt e n d o c u m e n t s , w i t h o u t t h e p r i s o n e r ’ s p r e s e n c e w h e n

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 running

from the time confinement is imposed by a person authorized do

so under subsection (c) of this rule.

1 9 9 3 A m e n d m e n t : T h e a m e n d m e n t t o s u b s e c t i o n ( i ) ( 1 )

provides that the required review only becomes applicable whenever the accused is confined under military control. For example,

if the prisoner was apprehended and is being held by civilian

authorities as a military deserter in another state from where the

prisoner’s unit is located and it takes three days to transfer the

prisoner to an appropriate confinement facility, the seven day

period under this rule would not begin to run until the date of the

prisoner’s transfer to military authorities. Any unreasonable period of time that it may take to bring a prisoner under military

control should be tested for prejudice under Article 59, U.C.M.J.,

and should not be considered as invoking the credit provisions of

subsection (k) of this rule absent evidence of bad faith by military

authorities in utilizing civilian custody. But see United States v.

Ballesteros, 29 M.J. 14 (C.M.A. 1989). However, any time spent

in civilian custody at the request of military authorities would be

subject to pretrial confinement credit mandated by United States

v. Allen, 17 M.J. 126 (C.M.A. 1984).

The amendment further clarifies the method of calculation to

determine if the rule has been violated. See United States v.

DeLoatch, 25 M.J. 718 (A.C.M.R. 1987); contra, United States v.

New, 23 M.J. 889 (A.C.M.R. 1987).

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 (United States v. Heard, supra at 25 (Fletcher, C.J., concurr i n g ) ; A B A S t a n d a r d s , P r e t r i a l R e l e a s e § 1 0 - 5 . 9 ( 1 9 7 9 ) ) , a n

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. Cf. Wolff v. McDonnell, 418 U.S. 539 (1974). See

Middendorf v. Henry, 425 U.S. 25 (1976); Parker v. Levy, 417

U.S. 733 (1974). The procedures in the review include the opportunity for representation by counsel, access to all information

presented to the reviewing officer, the right to present matters for

the defense, and, ordinarily, the opportunity for the prisoner and

d e f e n s e c o u n s e l t o p e r s o n a l l y a d d r e s s t h e r e v i e w i n g o f f i c e r .

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)(1). The

only requirement inMorrissey 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, 411 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 Gerstein v. Pugh, supra, the Supreme Court,

noting the burden of adversary hearings at this pretrial stage (

A21-19

ANALYSIS App. 21, R.C.M. 305(i)
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 deciding that this holding

i n G e r s t e i n a p p l i e s t o p r e v e n t i v e d e t e n t i o n h e a r i n g s a s w e l l .

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. § 3146(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. § 3148. 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. § 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.).

T h i s s u b s e c t i o n e s t a b l i s h e s t h a t t h e m i l i t a r y j u d g e h a s t h e

power after referral (United States v. 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)(1)(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. § 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 (f), (h), (i), or (j) 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 United

States 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.

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 adjusted, and then

against several other specified penalties. Thus an accused entitled

to sentence relief whose adjusted sentence includes no confinement usually will receive 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

w h i c h w a s t e c h n i c a l l y i l l e g a l s h o u l d n o t a u t o m a t i c a l l y a f f e c t

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

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App. 21, R.C.M. 305(i) APPENDIX 21
after trial. It is the responsibility of the convening authority to

apply credit when action is taken on the sentence. See Article 57.

(l) 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 then 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 of offenses. This rule and the first paragraph

of the discussion are based on Articles 15, 22-24, and 30(b), and

paragraphs 30-33, 35, and 128 of MCM, 1969 (Rev.). The second

sentence of the rule and the discussion are also based on paragraphs 5 b(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; 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).

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 conv e n i n g a u t h o r i t y o r s u p e r i o r c o m p e t e n t a u t h o r i t y . S e e U n i t e d

States v. Charette, 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 different 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 Courts-Martial, United States, 1951, 47. Cf. United

States v. Thompson, 251 U.S. 407 (1920); Fed.R.Crim. P. 48;

United States v. Clay, 481 F.2d 133 (7th Cir.), cert, denied, 414

U . S . 1 0 0 9 ( 1 9 7 3 ) ; M a n n v . U n i t e d S t a t e s , 3 0 4 F . 2 d 3 9 4

(D.C.Cir.), cert, 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 bar

a superior commander from referring the same offenses, if they

are serious, to a court-martial (Article 15(f); see also United

States v. Fretwell, 11 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 30 g 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 33 h of MCM, 1969 (Rev.). Guidelines

(B) through (G) are based on ABA Standards, Prosecution Function § 3-3.9(b) (1979). The other guidelines in § 3-3.9 are not

needed here: § 3-3.9(a) (probable cause) is followed in the rule: §

3-3.9(b)(i) is inconsistent with the convening authority’s judicial

function; §§ 3-3.9(c) and (d) are unnecessary in military practice;

and § 3-3.9(e) is implicit in § 3-3.9(a) and in the rule requiring

probable cause. Guidelines (H), (I), and (J) were added to acknowledge other practical considerations.

(c) How offenses may be disposed of. 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 29 b 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 29 c 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

warns 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 basis. W. Winthrop, Military Law and

Precedents 154 (2d ed. 1920 reprint); but cf. Hearings on H.R.

2498 Before a Subcommittee of the House Committee 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 the 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 are preferred; oath. This subsection is taken

f r o m A r t i c l e 3 0 ( a ) . T h i s s u b s e c t i o n i s s i m i l a r i n p u r p o s e t o

Fed.R.Crim. P. 7(c)(1)’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.).

T h e l a s t p a r a g r a p h o f t h e d i s c u s s i o n i s c o n s i s t e n t w i t h

A21-21

ANALYSIS App. 21, R.C.M. 307(b)
Fed.R.Crim. P. 4(b).

(c) How to allege offenses. Subsection (1) is based on paragraph

24a of MCM, 1969 (Rev.). The nomenclature of charge and

s p e c i f i c a t i o n i s i m b e d d e d i n t h e c o d e . C o m p a r e A r t i c l e s 3 0 ,

34(b), 43(b), 45(b), 54(a), 61, and 62 with Fed.R.Crim. P. 7(c)(1).

Taking both the charge and specifications 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 conc e r n e d . F i n a l l y , m i l i t a r y p r a c t i c e d o e s n o t i n v o l v e c r i m i n a l

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)(1) 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 6 a 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)(1) in military terms.

That definition is consistent with paragraph 24 a and Chapter VI

of MCM, 1969 (Rev.). The test of sufficiency of a specification

follows United States v. Sell, 3 U.S.C.M.A. 202, 11 C.M.R. 202

(1953); paragraph 87 a(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.

2004 Amendment: The Rule was amended by modifying language in the Discussion at (H)(ix), and moving it in to the text of

the Rule, to emphasize that facts that increase maximum authorized punishments must be alleged and proven beyond a reasonable doubt. Jones v. United States, 526 U.S. 227 (1999); see also

Apprendi v. New Jersey, 530 U.S. 466 (2000). Prior convictions

are not required to be alleged in a specification because Apprendi

and Jones exempt prior convictions from those aggravating factors that must be included in charging documents and proven

beyond a reasonable doubt. R.C.M. 1004 already establishes capital sentencing procedures that satisfy an accused’s constitutional

rights in this area. See Ring v. Arizona, 536 U.S. 584 (2002).

The sources of the lettered subsection of the accompanying

discussion are:

(A) Sample specifications —paragraph 26 a of MCM, 1969

(Rev.);

(B) Numbering specifications —paragraph 3 of appendix 6 a

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 6 a 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 of personal 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 of offense —paragraph 7 of appendix 6 a

of MCM, 1969 (Rev.). As to “on or about,” see United States v.

Heard, 443 F.2d 856, 859 (6th Cir. 1971);

(E) Place of offense —paragraph 7 of appendix 6 a of MCM,

1969 (Rev.);

(F) Subject-matter jurisdiction —United States v. Alef, supra.

A s t o s u b s e c t i o n ( i i i ) , U n i t e d S t a t e s v . T r o t t i e r , 9 M . J . 3 3 7

(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.

9 6 0 ( 1 9 7 4 ) ; U n i t e d S t a t e s v . K e a t o n , 1 9 U . S . C . M . R . 6 4 , 4 1

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, a reminder and not as a requirement. The

Working Group does not consider any particular format for such

pleadings required by Alef.

Questions of jurisdiction are interlocutory questions to be decided by the military judge applying a preponderance standard.

See R.C.M. 905(c); 907(b)(1)(A), and United States v. Ruiz, 4

M . J . 8 5 ( C . M . A . 1 9 7 7 ) ; U n i t e d S t a t e s v . K u r i g e r , 4 M . J . 8 4

( C . M . A . 1 9 7 7 ) ; U n i t e d S t a t e s v . C h e r r y , 4 M . J . 8 3 ( C . M . A .

1977); United States v. McCarthy, 2 M.J. 26, 28n.1 (C.M.A.

1976); United States v. Jessie, 5 M.J. 573 (A.C.M.R.), pet. denied, 5 M.J. 300 (1978). See also United States v. Laws, 11 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

d e t e r m i n a t i o n s . S e e g e n e r a l l y J a m e s , P l e a d i n g s a n d P r a c t i c e

under United States v. Alef, 20 A.F.L. Rev. 22 (1978).

1995 Amendment: The discussion was amended in conformance

with a concurrent change to R.C.M. 203, in light of Solorio v.

United States, 483 U.S. 435 (1987). O’Callahan v. Parker , 395

U.S. 258 (1969), held that an offense under the code could not be

tried by court-martial unless the offense was “service connected.”

Solorio overruled O’Callahan.

(G) Description of offense. —The sources of the section are:

(i) Elements —paragraph 28 a(3) of MCM, 1969 (Rev.);

(ii) Words indicating criminality — id.;

(iii) Specificity —paragraphs 28 a, 69 b, and 87 a(2) of

MCM, 1969 (Rev.);

(iv) Duplicity —paragraph 28 b of MCM, 1969 (Rev.); accord, Fed.R.Crim. P.7,8.

( H ) O t h e r c o n s i d e r a t i o n s i n d r a f t i n g s p e c i f i c a t i o n s . — T h e

sources of the sections are:

A21-22

App. 21, R.C.M. 307(b) APPENDIX 21
( i ) P r i n c i p a l s — p a r a g r a p h 9 o f a p p e n d i x 6 a o f M C M ,

1969(Rev.);

(ii) Victim —paragraph 10 of appendix 6 a of MCM, 1969

(Rev.);

(iii) Property —paragraph 13 of appendix 6 a of MCM,

1969 (Rev.);

(iv) Value —paragraph 11 of appendix 6 a of MCM, 1969

(Rev.);

(v) Documents —paragraph 28 c, and paragraph 14 of appendix 6 a 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);

( v i i ) O r a l S t a t e m e n t s — p a r a g r a p h 2 8 c o f M C M , 1 9 6 9

(Rev.);

(viii) Joint offenses —paragraph 26 d and paragraph 8 of

appendix 6 a of MCM, 1969 (Rev.);

(ix) Matters in aggravation —paragraph 127 c (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, 26 b 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

a u t h o r i t y w h i c h c h a r g e s a n d s p e c i f i c a t i o n s w i l l b e t r i e d . S e e

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 26 d of 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 33 1 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 28 c, and paragraph 12 of appendix 6 a of

MCM, 1969 (Rev.). It is not intended to provide a comprehensive

rule on harmless error in drafting specifications.

Rule 308 Notification to accused of charges

( a ) I m m e d i a t e c o m m a n d e r . T h i s s u b s e c t i o n p a r a p h r a s e s p a r a -

graphs 32 f(1) and 33 c 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 1(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 civilian

rules, 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 inform a t i o n ) a l l p r o v i d e a c i v i l i a n d e f e n d a n t w i t h n o t i c e o f t h e

impending prosecution.

The purpose of the subsection is to permit the accused to begin

preparing a defense. United States 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. United States

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).

(b) Commanders at higher echelons. This subsection reflects the

same continuing duty to give notice of the preferred charges that

appeared at paragraph 33 c 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 disposition of charges

in general

(a) Who may dispose of charges. This subsection is based on

paragraphs 5, 32, 33, 35, and 128 a 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 United States 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 30 i of MCM, 1969

(Rev.). The discussion is also based on paragraphs 30 f, 32 b, c,

f(1), 33 a, d, m, and 35 a 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 requirem e n t s a n d a d d i t i o n a l d e t a i l s m a y b e p r o v i d e d b y s e r v i c e

regulations.

(d) National security matters. This subsection is based on the

first sentence in the second paragraph of paragraph 33 f of MCM,

1969 (Rev.). See also R.C.M. 407(b) and Article 43(e).

A21-23

ANALYSIS App. 21, R.C.M. 401(d)
Rule 402 Action 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, the 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 Action 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 33 j(1) of MCM, 1969 (Rev.); Analysis, R.C.M.

403.

Rule 405 Pretrial investigation

(a) In general. This subsection is based on Article 32(a) and (d)

and paragraph 34 a 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 (1970). 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 34 a of MCM, 1969 (Rev.). The second sentence has

been added based on Hutson v. United States, 19 U.S.C.M.A.

4 3 7 , 4 2 C . M . R . 3 9 ( 1 9 7 0 ) ; U n i t e d S t a t e s v . S a m u e l s , 1 0

U.S.C.M.A. 206, 27 C.M.R. 280 (1959); Hearings on H.R. 2498

Before a Subcomm. of 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 33 e(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 ) E a r l i e r i n v e s t i g a t i o n . T h i s s u b s e c t i o n i s b a s e d o n A r t i c l e

32(c) and paragraph 33 e(1) 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 33 e of MCM,

1969 (Rev.) suggested that the summary or special court-martial

convening authority 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) with Fed.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 based on 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 34 c of MCM, 1969 (Rev.).

See also Article 27(a). Subsections (3)(B) and (C) are new to the

Manual but conform to current practice. Fed.R.Crim. P.6(c) also

provides for using reporters.

(e) Scope of investigation. This subsection and the discussion are

based on Article 32(a) and paragraph 34 a of MCM, 1969 (Rev.).

1998 Amendment: This change is based on the amendments to

Article 32 enacted by Congress in section 1131, National Defense

Authorization Act for Fiscal Year 1996, Pub. L. No. 104-106, 110

Stat. 186, 464 (1996). It authorizes the Article 32 investigating

officer to investigate uncharged offenses when, during the course

of the Article 32 investigation, the evidence indicates that the

accused may have committed such offenses. Permitting the investigating officer to investigate uncharged offenses and recommend

an appropriate disposition benefits both the government and the

accused. It promotes judicial economy while still affording the

accused the same rights the accused would have in the investigation of preferred charges.

(f) Rights of the accused. This subsection is based on Article 32

and paragraph 34 b, 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. Cf. R.C.M. 804(b) and

Analysis. As to subsection (6), see Fed.R.Crim. P.5.

(g) Production of witnesses 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

A21-24

App. 21, R.C.M. 402 APPENDIX 21
third paragraph of paragraph 34 d of MCM, 1969 (Rev.) as

amplified in United States v. Ledbetter, 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); United States

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), aff’d., 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.

1 9 9 1 A m e n d m e n t : S u b s e c t i o n ( g ) ( 1 ) ( A ) w a s a m e n d e d b y

adding a requirement that a witness be located within 100 miles

of the situs of the investigation to be “reasonably available.”

Given the alternatives to testimony available under subsection

( g ) ( 4 ) , a b r i g h t - l i n e r u l e o f 1 0 0 s t a t u t e m i l e s s i m p l i f i e s t h e

“reasonably available” determination and improves the efficiency

of the investigation without diminishing the quality or fairness of

the investigation. If a witness is located within 100 statute miles

of the situs of the investigation, the investigating officer must

consider the other factors in subsection (g)(1)(A) in determining

availability. The remaining provisions of section (g) remain applicable. The production of witnesses located more than 100 statute

miles from the situs of the investigation is within the discretion of

the witness’ commander (for military witnesses) or the commander ordering the investigation (for civilian witnesses).

1994 Amendment: Subparagraph (B)was amended to require

the investigating officer to notify the appropriate authority of any

r e q u e s t s b y t h e a c c u s e d f o r p r i v i l e g e d i n f o r m a t i o n p r o t e c t e d

under Mil. R. Evid. 505 or 506. This puts the convening authority

and other appropriate authorities on notice that a protective order,

under subsection (g)(6) of this rule, may be necessary for the

protection of any such privileged information that the government

agrees to release to the accused. The Discussion was amended to

reflect the purpose of the notice requirement.

2004 Amendment: The Discussion to subsection (g)(1)(A) is

new. It was added in light of the decision in United States v.

Marrie, 43 M.J. 35 (1995), that a witness beyond 100 miles from

the site of the investigation is not per se unavailable.

Subsection (2) is new. The second sentence of the first paragraph of paragraph 34 d of MCM, 1969 (Rev.) recognized that

the final decision on availability of a military witness 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 witness can

be spared without unduly impending 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 witness will be on leave.)

Ultimately, the witness’ importance to the witness’ unit may outweigh all other factors; consequently, the commander of the witn e s s m a y m a k e a d e t e r m i n a t i o n o f n o n a v a i l a b i l i t y w h i c h i s

reviewable only at trial. Therefore, subsection (2)(A) allocates the

responsibilities for determining reasonable availability in accordance with the practical considerations involved. See generally

United States v. Chestnut and United States v. Ledbetter, both

supra; United States v. Cox, 48 C.M.R. 723 (A.F.C.M.R.), pet.

denied, 23 U.S.C.M.A. 616 (1974).

S u b s e c t i o n ( 2 ) ( B ) a n d t h e d i s c u s s i o n a r e b a s e d o n U n i t e d

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 34 d 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 comm a n d e r w h o d i r e c t e d t h e i n v e s t i g a t i o n . W h e n a p p r o p r i a t e t h e

matter can be pursued in command channels. It remains subject to

judicial review on motion at trial.

S u b s e c t i o n ( 3 ) i s b a s e d o n p a r a g r a p h 3 4 d o f M C M , 1 9 6 9

(Rev.).

Subsection (4) is based on the third and fourth paragraphs of

paragraph 34 d of MCM, 1969 (Rev.). See also United States v.

Samuels, supra.

1991 Amendment: Subsection (4)(B) was amended by adding a

new clause (v) which authorizes the investigating officer to consider, during time of war, unsworn statements of unavailable

witnesses over objection of the accused. The burdens of wartime

exigencies outweigh the benefits to be gained from requiring

sworn statements when unsworn statements are available. Article

32, U.C.M.J., does not require the investigating officer to consider only sworn evidence or evidence admissible at courts-martial. The investigating officer should consider the lack of an oath

in determining the credibility and weight to give an unsworn

statement.

Subsection (5) is new. It parallels subsection (4).

1994 Amendment. Subsection (6) was added to allow the

convening authority, or other person designated by service Secretary regulations, to attach conditions to the release of privileged

information protected under Mil. R. Evid. 505 and 506 through

the issuance of a protective order similar in nature to that which

t h e m i l i t a r y j u d g e m a y i s s u e u n d e r t h o s e r u l e s . T h o u g h t h e

prereferral authority to attach conditions already exists in Mil. R.

Evid. 505(d)(4) and 506(d)(4), these rules did not specify who

may take such action on behalf of the government or the manner

in which the conditions may be imposed.

(h) Procedure. The second and fourth sentences in subsection (1)

are based on Article 32(b). The first sentence is based on the first

two sentences in the second paragraph of paragraph 34 d 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 34 d of MCM, 1969 (Rev.) except that now the

investigating officer must allow the defense to examine all matters considered by the investigation officer, without exception.

See United States v. Craig, 22 C.M.R. 466 (A.B.R. 1956), aff’d, 8

U.S.C.M.A. 218, 24 C.M.R. 28 (1957).

The first paragraph in the discussion is based on paragraph 114

j of MCM, 1969 (Rev.), except that the former oath has been

A21-25

ANALYSIS App. 21, R.C.M. 405(h)
divided into two oaths, one for the witness testifying at the investigation, the second to be given when the witness 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 witness 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 paragraph in the discussion are based on the

second paragraph of paragraph 34 d 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 Analysis.

The fourth paragraph in the discussion of subsection (1) is

based on United States v. Pruitt, 48 C.M.R. 495 (A.F.C.M.R.

1974). Cf. United States v. Washington, 431 U.S. 181 (1977).

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 United States v. Collins , 6 M.J.

256 (C.M.A. 1979); United States v. 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.

S e e g e n e r a l l y U n i t e d S t a t e s v . N i x , 1 5 U . S . C . M . A . 5 7 8 , 3 6

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.

S u b s e c t i o n ( 3 ) i s n o t i n t e n d e d t o e x p r e s s a n y p r e f e r e n c e f o r

closed or open hearings.

(i) Military Rules of Evidence. This subsection is solely a crossreference 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

General civilian practice. See Office of the United States Attorney

for the Southern District of Ohio, Proving Federal Crimes 3-3

(1980).

1993 Amendment: The amendment to R.C.M. 405(i) makes the

p r o v i s i o n s o f M i l . R . E v i d . 4 1 2 a p p l i c a b l e a t p r e t r i a l

investigations.

(j) Report of investigation. This subsection is based on paragraphs 34 d and e of MCM, 1969 (Rev.). The provision for

informal reports in paragraph 34 f of MCM, 1969 (Rev.) has been

deleted. Because R.C.M. 405 applies only if charges are ultimately referred to a general court-martial, there is no need to

describe informal reports. It if 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

34 e of MCM, 1969 (Rev.).

Subsections (2)(A) through (E) are based on Article 32(b) and

paragraph 34 e 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 34

a 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. of the House Comm.

on Armed Services, 81st Sess. 997 (1949). Subsection (2)(I) is

based on Article 32(a) and paragraph 34 e(6) of MCM, 1969

(Rev.).

Subsection (3) is based on the first sentence of paragraph 34 e

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 ) W a i v e r . T h e f i r s t s e n t e n c e i s b a s e d o n A r t i c l e 3 4 ( a ) , a s

a m e n d e d . M i l i t a r y J u s t i c e A c t o f 1 9 8 3 , P u b . L . N o . 9 8 - 2 0 9 , §

4(a)(2), 97 Stat. 1393 (1983), which expressly permits waiver of

the Article 32 investigation. This is consistent with previous practice. See United States 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, § 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

f o r w h i c h i t h a s n o t r e c e i v e d s a t i s f a c t o r y r e l i e f . S e e 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, bothsupra.

A21-26

App. 21, R.C.M. 405(h) APPENDIX 21
Rule 406 Pretrial advice

( a ) I n g e n e r a l . T h i s s u b s e c t i o n i s b a s e d o n A r t i c l e 3 4 ( a ) a s

amended, Military Justice Act of 1983, Pub.L.No. 98–209, § 4, 97

Stat. 1393 (1983); and on paragraph 35 b of MCM, 1969 (Rev.).

(b) Contents. This subsection is based on Article 34(a). It is

consistent with paragraph 35 c of MCM, 1969 (Rev.) (except

insofar as Article 34 is modified). Matters which paragraph 35 c

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 35

c of MCM, 1969 (Rev.) and United States v. Hardin, 7 M.J. 399

(C.M.A. 1979); United States v. Greenwalt, supra; United States

v. Schuller, 5 U.S.C.M.A. 101, 17 C.M.R. 101 (1954); United

States v. Pahl, 50 C.M.R. 885 (C.G.C.M.R. 1975).

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 35 c 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 . 1 9 8 ( 1 9 7 0 ) ; U n i t e d S t a t e s v . H e n r y , 5 0 C . M . R . 6 8 5

(A.F.C.M.R.), pet. denied, 23 U.S.C.M.A. 666, 50 C.M.R. 903

(1975); United States v. Barton, 41 C.M.R. 464 (A.C.M.R. 1969).

1 9 9 1 A m e n d m e n t : T h e D i s c u s s i o n t o R . C . M . 4 0 6 ( b ) w a s

amended to state explicitly the applicable standard of proof. See

United States v. Engle, 1 M.J. 387, 389 n.4 (C.M.A. 1976). The

sentence concerning pretrial advice defects is based upon United

States v. Murray, 25 M.J. 445 (C.M.A. 1988), in which the court

reviewed the legislative history to the 1983 amendment to Article

34, U.C.M.J., and held that lack of a pretrial advice in violation

of the article is neither jurisdictional nor per se prejudicial.

2 0 0 4 A m e n d m e n t : T h e D i s c u s s i o n t o R . C . M . 4 0 6 ( b ) w a s

amended to add as additional, non-binding guidance that the SJA

should include the recommendation of the Article 32 investigating

officer.

(c) Distribution. This subsection is based on Article 34(b), as

a m e n d e d , M i l i t a r y J u s t i c e A c t o f 1 9 8 3 , P u b . L . N o . 9 8 – 2 0 9 ,

§ 4(b), 97 Stat. 1393 (1983). Paragraph 35 c 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 exercising

general court-martial jurisdiction

(a) Disposition. This subsection is based on Article 34(a) and

paragraph 35 a 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

3 3 f o f M C M , 1 9 6 9 ( R e v . ) a n d A r t i c l e 4 3 ( e ) . I t h a s b e e n

broadened to expressly recognize the authority of service Secretaries to promulgate regulations governing disposition of sensitive

cases. Note that the rule applies regardless of 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 COURTMARTIAL

Rule 501 Composition and personnel of courtsmartial

(a) Composition of courts-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 4 a 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 6 a 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, § 3(c), (f), 97 Stat.

1393 (1983).

(c) Other personnel. This subsection is based on paragraph 7 of

MCM, 1969 (Rev.).

Rule 502 Qualifications 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 4 b and paragraph 4 d of

MCM, 1969 (Rev.). Factors which disqualify a person from serving as a member are listed in R.C.M. 912(f)(1).

The discussion is based on the second paragraph of paragraph 4

b 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 4 b of MCM,

1969 (Rev.). Similar provisions have been included in naval practice since at least 1937. See, e.g., Naval Courts and Boards § 347

(1937, 1945 reprint). The similar provision in MCM, 1951 was

upheld in United States v. Braud, 11 U.S.C.M.A. 192, 29 C.M.R.

8 (1960) (Public Health Service commissioned officer served as

m e m b e r o f C o a s t G u a r d c o u r t - m a r t i a l ) , d e c i s i o n b e l o w , 2 8

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. 42 U.S.C. § 217 (1976) (P.H.S.

may be declared to be a military service in time of war; members

become subject to personal jurisdiction of Code); 33 U.S.C. § 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 Publ i c H e a l t h S e r v i c e a n d o f E n v i r o n m e n t a l S c i e n c e S e r v i c e s

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. § 2(f); 33 U.S.C.A. § 851 (Supp. 1981). P.H.S.

A21-27

ANALYSIS App. 21, R.C.M. 502(a)
has both commissioned and warrant officers. 42 § 204 (Supp.

1981).

Subsection (2) and the discussion are based on paragraph 41 a

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 (1) is based on paragraph 40 a of

MCM, 1969 (Rev.). Subsections (2)(A) and (B) are based on

paragraphs 40 b(1)(c) and (d) of MCM, 1969 (Rev.). Paragraphs

40 b(1) (a) and (b) are deleted. Paragraph 40 b(1)(a) conflicts

with the authority of the military judge under R.C.M. 801(a)(1).

Paragraph 40 b(1)(b) is unnecessary. Subsection (2)(c) is based on

paragraph 40 b(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 of military judge. This subsection and the discussion are based on Article 26(b) and (c) and paragraph 4 e of

MCM, 1969 (Rev.). Reasons for disqualification are described in

R.C.M. 902.

1999 Amendment: R.C.M. 502(c) was amended to delete the

requirement that military judges be “on active duty” to enable

Reserve Component judges to conduct trials during periods of

inactive duty for training (IDT) and inactive duty training travel

(IATT). The active duty requirement does not appear in Article

26, UCMJ which prescribes the qualifications for military judges.

It appears to be a vestigial requirement from paragraph 4 e of the

1951 and 1969 MCM. Neither the current MCM nor its predecessors provide an explanation for this additional requirement. It was

deleted to enhance efficiency in the military justice system.

(d) Counsel. Subsection (1) is based on Article 27(b) and paragraph 6 of MCM, 1969 (Rev.). The possibility of detailing associate counsel has been added based on the amendment of Article

27(a) and 42(a). See Military Justice Act of 1983, Pub.L. No.

98–209, § 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

o t h e r s u b s t a n t i v e c h a n g e f r o m M C M , 1 9 6 9 ( R e v . ) . h a s b e e n

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 United States 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 6 c of MCM, 1969 (Rev.).

Subsection (3) is based on the first sentence of the second

p a r a g r a p h o f p a r a g r a p h 4 8 a o f M C M , 1 9 6 9 ( R e v . ) a n d o n

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 6 a 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 , §§ 3–1(c); 3–3.9(c)(1979).

Subsection (5) is based on paragraph 44 d and 45 a 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 44 e, f, g,

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 explanations have been deleted as unnecessary.

The first sentence of subsections (6) is new. Cf. paragraphs 46

d and 48 c 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 46 d, 47, and 48 c, d, e, f, g, h,

j, and k of MCM, 1969 (Rev.). The matters covered in paragraph

48 k(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, §§ 3(e)(3),

5(b)(1), 97 Stat. 1393 (1983). See R.C.M. 1105; 1110. As to

associate counsel, see the Analysis subsection (d)(1) 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 of disqualification or lack of qualification. This subsection is based on paragraphs 41 c, 44 b, 46 b 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 detail personally the military judge and

counsel. Military Justice Act of 1983, Pub.L. No. 98–209, § 3(c),

97 Stat. 1393 (1983). The last sentence of paragraph 4 b of

MCM, 1969 (Rev.) is deleted as unnecessary. The second paragraph in the discussion serves the same purpose as the third

paragraph of paragraph 4 b of MCM, 1969 (Rev.): to alert the

A21-28

App. 21, R.C.M. 502(a) APPENDIX 21
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 4 c of MCM, 1969 (Rev.). The discussion is based

on paragraph 36 c(2) of MCM, 1969 (Rev.).

1986 Amendment: Subsection (2) was amended to reflect an

amendment to Article 25(c)(1), UCMJ, in the “Military Justice

Amendments of 1986,” tit. VIII, § 803, National Defense Authorization Act for fiscal year 1987, Pub. L. No. 99–661, 100 Stat.

3905, (1986) which authorizes enlisted accused to request orally

on the record that at least one-third of the members of courtsmartial be enlisted.

Subsection (3) is based on paragraphs 4 f 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 4 g(1) of MCM,

1969 (Rev.). Permission for 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, § 3(c)(1), 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

j u d g e s w i l l b e i n j u d i c i a l c h a n n e l s . S e e H e a r i n g s o n S . 2 5 2 1

Before the Subcomm. on Manpower and Personnel of the 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 were shown. See S. Rep. No. 53, 98th Cong.,

1st Sess. 12 (1983).

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,

§ 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 org a n i z a t i o n a l s t r u c t u r e a n d o p e r a t i o n a l r e q u i r e m e n t s o f e a c h

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 were 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 36 b of MCM, 1969 (Rev.).

(b) Who may convene courts-martial. Subsection (1) is based on

Article 22 and paragraph 5 a(1) of MCM, 1969 (Rev.). The

power of superiors to limit the authority of subordinate convening

authorities is based on paragraph 5 b(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, 4

M . J . 2 0 ( C . M . A . 1 9 7 7 ) ; U n i t e d S t a t e s v . H a w t h o r n e , 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). The discussion is based on the second and third sentences

of paragraph 5 a(5) of MCM, 1969 (Rev.).

Subsection (2) is based on Article 23 and paragraphs 5 b(1),

(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 5

a(5) 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) Disqualification. This subsection is based on Articles 22(b)

and 23(b) and on paragraph 5 a(3) of MCM, 1969 (Rev.). See

a l s o A r t i c l e 1 ( 5 ) a n d ( 9 ) ; U n i t e d S t a t e s v . H a y g o o d , 1 2

U . S . C . M . A . 4 8 1 , 3 1 C . M . R . 6 7 ( 1 9 6 1 ) ; U n i t e d S t a t e s 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 36

b 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, § 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 36 b are not included here. These may be required by service regulations. Summ a r y c o u r t s - m a r t i a l a r e t r e a t e d s e p a r a t e l y f r o m g e n e r a l a n d

special courts-martial because of their different composition.

(e) Place. This subsection is new. It derives from the convening

a u t h o r i t y ’ s p o w e r t o f i x t h e p l a c e o f t r i a l ( s e e a l s o 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 37 a 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,

§ 3(c), 97 Stat. 1393 (1983). The discussion is based on the third

and fourth sentences of paragraph 37 c of MCM, 1969 (Rev.).

(b) Procedure. This subsection is based on the first two sentences

of paragraph 37 c(1) and on paragraph 37 c(2) of MCM, 1969

A21-29

ANALYSIS App. 21, R.C.M. 505(b)
(Rev.). See also United States 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 37 b

to excusal as a result of challenges are deleted here as challenges

are covered in R.C.M. 902 and 912.

(c) Changes of members. This subsection is based on Articles

25(e) and 29, and paragraphs 37 b and c, and 39 e 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 of detailed counsel. Subsection (1) is based on that

part of the second sentence of paragraph 37 a 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 37 a

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 . 4 1 ( C . M . A . 1 9 7 5 ) ; U n i t e d S t a t e s v . T i m b e r l a k e , 2 2

U . S . C . M . A . 1 1 7 , 4 6 C . M . R . 1 1 7 ( 1 9 7 3 ) ; U n i t e d S t a t e s 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 of military judge. This subsection is based on Articles

26(a) and 29(d) and on paragraph 39 e of MCM, 1969 (Rev.). See

also United States v. Smith, 3 M.J. 490 (C.M.A. 1975).

(f) Good cause. This subject is based on Article 29 and on

United States v. Greenwell, 12 U.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); Unites States v. Grow, 3 U.S.C.M.A. 77, 11 C.M.R.

77 (1953). See S. Rep. No. 53, 98th Cong., 1st Sess. 13 (1983).

As to defense counsel, see also United States v. Catt, 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 48 a 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

3 8 ( b ) e f f e c t i v e l y o v e r r u l e d U n i t e d S t a t e s v . J o r d a n , 2 2

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, 461 U.S. (1983), 33 Cr.L.

R p t r . 3 0 1 3 ( 1 9 8 3 ) ; U n i t e d S t a t e s v . M o n t o y a , 1 3 M . J . 2 6 8

(C.M.A. 1982); United States v. Kinard, 21 U.S.C.M.A. 300, 45

C . M . R . 7 4 ( 1 9 7 2 ) ; U n i t e d S t a t e s v . B r o w n , 1 0 M . J . 6 3 5

( A . C . M . R . 1 9 8 0 ) ; U n i t e d S t a t e s v . A l i c e a - B a e z , 7 M . J . 9 8 9

( A . C . M . R . 1 9 7 9 ) ; U n i t e d S t a t e s v . L i v i n g s t o n , 7 M . J . 6 3 8

( A . C . M . R . 1 9 7 9 ) , a f f ’ d 8 M . J . 8 2 8 ( C . M . A . 1 9 8 0 ) . S e e a l s o

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 48 b(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 . 3 2 3 ( C . M . A . 1 9 7 8 ) ; U n i t e d S t a t e s v . E a s o n , 2 1

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, § 3(e)(2), 97 Stat. 1393 (1983).

Subsection (2) is taken from paragraph 48 b(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 46 d of MCM, 1969 (Rev.)

and on Article 38(b)(6). See also H.R. Rep. No. 306, supra at

4–7. 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. 98–209, § 3(e)(1), 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); United States 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 48 a 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 48 a 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. 29 (C.M.A.

1977). Paragraphs 5 b(4) and 5 c of MCM, 1969 (Rev.) contained

similar provisions.

(c) Disqualification. 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

33 i 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. 5.1(a). Accord ABA Standards Prosecution

A21-30

App. 21, R.C.M. 505(b) APPENDIX 21
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 determin a t i o n i n a l l c o u r t s - m a r t i a l , i n c l u d i n g s p e c i a l a n d s u m m a r y

courts-martial. Because of the judicial 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, of the

House Comm. on Armed Services, 81st Cong., 1st Sess. 997 –98

(1949). Nothing suggests that the standard governing referral to

inferior courts-martial should be different from that applicable to

g e n e r a l c o u r t s - m a r t i a l . I t a p p e a r s t h a t t h e r e a s o n a b l e g r o u n d s

standard has been in operation even without an explicit requirement. See, e.g., United States v. Eagle, 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 . ) , r e v ’ d o n o t h e r g r o u n d s , 1 4 U . S . C . M . A . 2 8 3 , 3 4

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 30 c and d, 34 a, 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. Schaffer, 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 changes shall be referred. Subsection (1) is consistent

with paragraph 33 j(1) 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 are based

on paragraph 33 j(1) of MCM, 1969 (Rev.).

The special case of referrals to summary courts-martial by the

only officer present in command follows paragraph 33 j(1) of

MCM, 1969 (Rev.) and Article 24(b).

The discussion of limiting instructions follows paragraphs 33

j(1) 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 on transmitting the referred charges and allied papers to the trial counsel is based on

paragraph 33 j(2) of MCM, 1969 (Rev.).

Subsection (2) is less restrictive than the previous military rule

found at paragraphs 26 b 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 65 b of MCM, 1969 (Rev.). The

discussion encourages economy, following paragraph 33 h 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 of such

referral is for the accused’s benefit, the accused may forego it

when it would be 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 26 d of MCM, 1969 (Rev.). The last

sentence is based on paragraph 33 l 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 different dispositions by superior convening authorities. See United States v. Charette, 15 M.J. 197

(C.M.A. 1983); United States v. Blaylock, 15 M.J. 190 (C.M.A.

1 9 8 3 ) . S e e a l s o A n a l y s i s , R . C . M . 3 0 6 ( a ) , A n a l y s i s , R . C . M .

905(g), and Analysis, R.C.M. 907(b)(2)(C).

Rule 602 Service of charges

This rule is based on Article 35 and paragraph 44 h 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)(1), 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 33 d, 44

f(1), and 69 b(1) of MCM, 1969 (Rev.). They are consistent with

Fed. R. Crim. 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 33 d and 44 f(1) 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

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ANALYSIS App. 21, R.C.M. 603(b)
for the staff judge advocate or legal officer to amend charges or

specifications for the reasons stated therein.

(c) Minor changes after 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 33 d

and 33 e(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 5 a(6) and 56 a

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

j u r i s d i c t i o n o f a c o u r t - m a r t i a l o v e r t h e m , a n d d i s m i s s a l o f

charges, which extinguishes the charges themselves. The discussion cautions that withdrawn charges, like any other unreferred

charges, should be disposed of promptly. Dismissal of charges

disposes of those charges; it does not necessarily bar subsequent

d i s p o s i t i o n o f t h e u n d e r l y i n g o f f e n s e s ( s e e A n a l y s i s , 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 56 a of MCM, 1969 (Rev.).

The third paragraph in the discussion is based on the second

and fourth sentences in paragraph 56 a of MCM, 1969 (Rev.).

The first sentence of the fourth paragraph is based on the third

sentence of paragraph 56 a 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 56 a and

paragraph 56 d of MCM, 1969 (Rev.).

(b) Referral of withdrawn charges. This rule is based on paragraphs 33 j(1) and 56 of MCM, 1969 (Rev.) and numerous decis i o n s . S e e , e . g . , U n i t e d S t a t e s v . C h a r e t t e , U n i t e d S t a t e s v .

Blaylock, and United States v. Hardy, all supra; United States v.

Jackson, 1 M.J. 242 (C.M.A. 1976); United States v. Walsh, 22

U.S.C.M.A. 509, 47 C.M.R. 926 (1973); Petty v. Convening Authority, 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 56 b

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 56 b 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.

6 4 1 , 3 6 C . M . R . 1 3 9 ( 1 9 6 6 ) ) s h o u l d b e d i s t i n g u i s h e d f r o m

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

56 b of MCM, 1969 (Rev.). Unlike paragraph 56 b, the current

rules 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 56 b and c of MCM, 1969 (Rev.), but more specificity

is provided as to proper reasons for withdrawal and its effect at

c e r t a i n s t a g e s o f t h e p r o c e e d i n g s . T h e g r o u n d s f o r p r o p e r

w i t h d r a w a l a n d l a t e r r e f e r r a l a r e b a s e d o n U n i t e d S t a t e s 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 court-martial, 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 codal 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 genera l l y A B A S t a n d a r d s , D i s c o v e r y a n d P r o c e d u r e B e f o r e T r i a l

(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. § 3500.

Military discovery practice has been quite liberal, although the

sources of this practice are somewhat scattered. See Articles 36

and 46; paragraphs 34, 44 h, and 115 c 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).

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App. 21, R.C.M. 603(b) APPENDIX 21
Providing broad discovery at an early stage reduces pretrial motions practice and surprise and delay at trial. It leads to better

informed judgment 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 truth-finding

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 matters known

to the trial counsel or in the possession of military authorities.

Except 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 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 § 11–2.1 (1978). Where a

request is necessary, it is required to trigger the duty to disclose

as a means of specifying what must be produced. Without the

request, a trial counsel 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

s p e c i f i c i t y w h a t m a t e r i a l s a r e s o u g h t . W h e n o b v i o u s l y d i s -

coverable 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)(1)(A) is not included here because the

matter is covered in Mil. R. Evid. 304(d)(1). The discussion under

subsection (a)(6) of this rule lists other discovery and notice

provisions in the Military of Evidence.

Subsection (1) is based on paragraph 44 h of MCM, 1969

(Rev.). See also paragraph 33 i, id. 18 U.S.C. § 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 115 c of MCM, 1969

(Rev.) and parallels Fed. R. Crim. P. 16(a)(1)(C) and (D).

Subsection (3)(A) is based on the last sentence in the second

paragraph of paragraph 44 h of MCM, 1969 (Rev.). See also

Appendix 5 at A5–1 of MCM, 1969 (Rev.); United States v.

Webster, 1 M.J. 216 (C.M.A. 1975). Subsection (3)(B) is based

on Fed. R. Crim. P. 12.1(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 particip a t i o n i n a n y c o u r t - o r d e r e d e x a m i n a t i o n , s o t h e d i s t i n c t i o n

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.

1991 Amendment: Subsection (a)(3)(B) was amended to provide for prosecution disclosure of rebuttal witnesses to a defense

of innocent ingestion. This conforms to the amendment to R.C.M.

701(b).

Subsection (4) is based on Fed. R. Crim. P. 16(a)(1)(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, howeve r . S e e A B A C o d e o f P r o f e s s i o n a l R e s p o n s i b i l i t y , D R

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 are covered 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 75 b(5) of MCM, 1969

(Rev.) Cf. Fed. R. Crim. P. 32(c)(3).

Subsection (6) is based on ABA Standards, The Prosecution

Function § 3–3.11(a) (1979); ABA Standards, Discovery and Procedure Before Trial § 11–2.1(c) (1978). See also United States v.

Agurs, 427 U.S. 97 (1976); Brady v. Maryland, 373 U.S. 83

(1963); United States v. Brickey, 16 M.J. 258 (C.M.A. 1983);

United States v. Horsey, 6 M.J. 112 (C.M.A. 1979); United States

v. Lucas, 5 M.J. 167 (C.M.A. 1978); ABA Code of Professional

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)(1)(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

opportunity to request a bill of particulars.

1986 Amendment. The phrase “a mental disease, defect, or

other condition bearing upon the guilt of the accused” was deleted

from this subsection, with other language substituted, in conjunction with the implementation of Article 50a, and the phrase “or

partial mental responsibility” was deleted from the discussion to

conform to the amendment to R.C.M. 916(k)(2).

1991 Amendment: Subsection (b)(1) has been revised to expand the open discovery that is characteristic of military practice.

It provides the trial counsel with reciprocal discovery and equal

opportunity to interview witnesses and inspect evidence as that

available to the defense under subsection (a). See Article 46,

U.C.M.J., and R.C.M. 701(e). Enhanced disclosure requirements

for the defense are consistent with a growing number of state

jurisdictions that give the prosecution an independent right to

receive some discovery from the defense. See Mosteller, Discovery Against the Defense: Tilting the Adversarial Balance, 74

Calif. L. Rev. 1567, 1579–1583 (1986). Mandatory disclosure

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ANALYSIS App. 21, R.C.M. 701(b)
requirements by the defense will better serve to foster the truthfinding process.

1991 Amendment: Subsection (b)(2) was revised to add the

requirement that the defense give notice of its intent to present

the defense of innocent ingestion. The innocent ingestion defense,

often raised during trials for wrongful use of a controlled substance, poses similar practical problems (e.g., substantial delay in

proceedings) as those generated by an alibi defense, and thus

merits similar special treatment.

2002 Amendment: Subsection (b)(4) was amended to take into

c o n s i d e r a t i o n t h e p r o t e c t i o n s a f f o r d e d b y t h e n e w

psychotherapist-patient privilege under Mil. R. Evid. 513.

1991 Amendment: Subsection (b)(5) was amended to clarify

that when the defense withdraws notice of an intent to rely upon

the alibi, innocent ingestion, or insanity defenses, or to introduce

expert testimony of the accused’s mental condition, neither evidence of such intention, nor statements made in connection therewith, are admissible against the servicemember who gave notice.

This rule applies regardless of whether the person against whom

the evidence is offered is an accused or a witness. Fed. R. Crim.

P. 12.1 and 12.2, upon which the subsection is based, were

similarly amended [ See H.R. Doc. No. 64, 99th Cong., 1st Sess.

17–18 (1985)].

(c) Failure to call witness. This subsection is based on repealed

subsection (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, § 5, 89 Stat. 806. But

see Fed. R. Crim. 12.1(f). Because notice of witnesses under

R . C . M . 7 0 1 i s r e q u i r e d o r o t h e r w i s e e n c o u r a g e d ( s e e a l s o

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 § 11–4.2 (1978).

(e) Access to witnesses and other evidence. This subsection is

based on Article 46; paragraphs 42 c and 48 h of MCM, 1969

(Rev.); United States v. Killebrew, supra; Halfacre, v. Chambers,

supra; United States v. Enloe, 15 U.S.C.M.A. 256, 35 C.M.R.

228 (1965); United States 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 United

States v. Cumberledge, both supra. See also subsection (f) of this

rule; Mil. R. Evid. 507.

1986 Amendment. The discussion was added, based on United

States v. Treakle, 18 M.J. 646 (A.C.M.R. 1984). See also United

States v. Tucker, 17 M.J. 519 (A.F.C.M.R. 1984); United States v.

L o w e r y , 1 8 M . J . 6 9 5 ( A . F . C . M . R . 1 9 8 4 ) ; U n i t e d S t a t e s v .

Charles, 15 M.J. 509 (A.F.C.M.R. 1982); United States v. Estes,

28 C.M.R. 501 (A.B.R. 1959).

(f) Information 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,

4 2 5 U . S . 9 4 ( 1 9 7 6 ) ; U n i t e d S t a t e s v . N o b l e s , 4 2 2 U . S . 2 2 5

(1975); Hickman v. Taylor, 329 U.S. 495 (1947). It differs from

Fed. R. Crim. P. 16(a)(2) because of the broader discovery requirements under this rule. Production under the Jencks Act, 18

U.S.C. § 3500, is covered under R.C.M. 914.

(g) Regulation of 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)(1). Cf.

Mil. R. Evid. 505; 506. See also ABA Standards, Discovery and

Procedures Before Trial § 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.12.1(d) and 12.2(d). But see Williams v. Florida, supra at 83 n.

14; Alicea v. Gagnon, 675 F. 2d 913 (7th Cir. 1982). The discussion is based on United States v. Myers, 550 F.2d 1036 (5th Cir.

1977), cert. denied, 439 U.S. 847 (1978).

1993 Amendment. The amendment to R.C.M. 701(g)(3)(C),

based on the decision of Taylor v. Illinois, 484 U.S. 400 (1988),

recognizes that the Sixth Amendment compulsory process right

does not preclude a discovery sanction that excludes the testimony of a material defense witness. This sanction, however,

should be reserved to cases where the accused has willfully and

blatantly violated applicable discovery rules, and alternative sanctions could not have minimized the prejudice to the Government.

See Chappee v. Commonwealth Massachusetts, 659 F.Supp. 1220

(D. Mass. 1988). The Discussion to R.C.M. 701(g)(3)(C) adopts

the test, along with factors the judge must consider, established

by the Taylor decision.

(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 Para. 15.02[1]; 15.03 (1982 rev.ed.);

United States v. Singleton, 460 F.2d 1148 (2d Cir. 1972). A

deposition is not a discovery device under the Federal rule. 8.J.

Moore, supra Para. 15.02[1]. See also United States v. Rich, 580

F.2d 929 (9th Cir.), cert. denied, 439 U.S. 935 (1978); United

States v. Adcock, 558 F.2d. 397 (8th Cir.), 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 courtsmartial. 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. of the

C o m m . o n A r m e d S e r v i c e s 8 1 s t C o n g . 1 s t S e s s . 1 0 6 4 – 1 0 7 0

(1949).

The first paragraph in the discussion is based on Article 49(d)

and (f) and on paragraph 117 a of MCM, 1969 (Rev.). The

second and third paragraphs are based on Article 49(d), (e), and

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App. 21, R.C.M. 701(b) APPENDIX 21
(f); paragraph 117 b(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 (f) so it is unnecessary to

prescribe further rules governing their use in R.C.M. 702. As to

Article 49(d)(1), see United States v. Davis, 19 U.S.C.M.A. 217,

41 C.M.R. 217 (1970). See also United States v. Bennett , 12 M.J.

463, 471 (C.M.A. 1982); United States v. Gaines, 20 U.S.C.M.A.

5 5 7 , 4 3 C . M . R . 3 9 7 ( 1 9 7 1 ) ; U n i t e d S t a t e s v . B r y s o n , 3

U.S.C.M.A. 329, 12 C.M.R. 85 (1953). The fourth paragraph in

the discussion is based on paragraphs 75 b(4) and 75 e of MCM,

1969 (Rev.).

(b) Who may order. This subsection is based on Article 49(a) and

on the second and third sentences of paragraph 117 b(1) 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 personnel 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 117 b(1) 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 117

b(1).

Subsection (3)(A) is based on Article 49(a). The discussion

provides guidance 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); United States v.

Chuculate, 5 M.J. 143, 145 (C.M.A. 1978) (deposition may be an

appropriate means to allow sworn cross-examination of an essent i a l w i t n e s s w h o w a s u n a v a i l a b l e a t t h e A r t i c l e 3 2 h e a r i n g ) ;

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 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

117 b(1) and on paragraphs 75 b(4) and e of MCM, 1969 (Rev.).

See also United States v. Jacoby, 11 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, bothsupra.

(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 so long as the deposition officer is qualified.

Cf. United States v. Ciarletta, supra.

Subsection (2) is based on paragraph 117 b 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 court-martial should be

d e t a i l e d a n d p r o c e e d t o c a l l t h e w i t n e s s . U n d e r s u b s e c t i o n

(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);

United States v. Timberlake, 22 U.S.C.M.A. 117, 46 C.M.R. 117

( 1 9 7 3 ) ; U n i t e d S t a t e s v . G a i n e s , s u p r a . S e e a l s o R . C . M .

505(d)(2)(B) and analysis. The second paragraph in the discussion

is based on the second sentence in paragraph 117 b(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 117 b(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).

(f) Duties of the deposition officer. This subsection is based on

paragraphs 117 b(5), (7), 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 (1)(A) is based on paragraph 117 b(2)

of MCM, 1969 (Rev.); Fed. R. Crim. P. 15(b). See also United

States v. Donati, supra. Subsection (1)(B) is based on paragraph

117 b (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 117 b(2) and paragraph 117 c of MCM, 1969 (Rev.).

Subsection (2)(B) is based on paragraph 117 c 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 (f), as

amended, Military Justice Act of 1983, Pub. L. No. 98–209,

§ 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., concurring in the result).

(h) Objections. This subsection is based on the second and third

sentences of the penultimate paragraph of paragraph 117 b of

MCM, 1969 (Rev.) and on Fed. R. Crim. P. 15(f). The waiver

provisions are more specific than in paragraph 117 b in order to

A21-35

ANALYSIS App. 21, R.C.M. 702(h)
ensure that objections are made when the defect arises. This

promotes efficiency by permitting prompt corrective action. See

Fed. R. Crim. 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 United States v. Ciarletta supra.

See also United States v. Gaines and United States v. Bryson,

bothsupra. 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 115 a of MCM, 1969 (Rev.). The

second paragraph in the discussion is based on United States v.

Roberts, 10 M.J. 308 (C.M.A. 1981). See also United States v.

Jefferson, 13 M.J. 1 (C.M.A. 1982); United States v. Bennett, 12

M.J. 463 (C.M.A. 1982); United States v. Credit, 8 M.J. 190

(C.M.A. 1980) (Cook, J.); United States 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); United States v. Williams, 3 M.J. 239 (C.M.A. 1977);

United States v. Carpenter, 1 M.J. 384 (C.M.A. 1976); United

States v. Iturralde-Aponte, 1 M.J. 196 (C.M.A. 1975). Cf. Fed. R.

Crim. P. 17(b). See generally 8 J.Moore, Moore’s Federal Practice Para. 17.05 (1982 rev.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. ValenzuelaBernal, 458 U.S. 858, 102 S. Ct. 3440 (1982).

(c) Determining which witnesses will be produced. This subsection is based generally on paragraph 115 a 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 (1) is based on the first three sentences in the fourth

paragraph of paragraph 115 a of MCM, 1969 (Rev.).

Subsection (2) is based generally on the remainder of paragraph 115 a of MCM, 1969 (Rev.). The procedure for production

of defense witnesses prescribed in paragraph 115 a 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.,

concurring in the result).

Subsection (2) modifies the former procedures to reduce the

criticized aspects of the earlier practice while retaining its practical advantages. For reasons states 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 for

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. This 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 a

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 115 a of MCM,

1969 (Rev.). See also United States v. Valenzuela-Bernal, supra;

United States v. Wagner, 5 M.J. 461 (C.M.A. 1978); United

States v. Lucas, 5 M.J. 167 (C.M.A. 1978). Cf. United States v.

Hedgwood, 562 F.2d 946 (5th Cir. 1977), cert, denied, 434 U.S.

1079 (1978); United States v. Barker, 553 F.2d 1013 (6th Cir.

1977). Subsection (2)(C) is new. See generally United States v.

M e n o k e n , 1 4 M . J . 1 0 ( C . M . A . 1 9 8 2 ) ; a n d U n i t e d S t a t e s 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. 905(j). The last sentence in this subsection is based on

United States 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. § 3006A(e).

See also Ms. Comp. Gen. B–49109 (June 25, 1949). This subsection does not apply to persons who are government employees or

A21-36

App. 21, R.C.M. 702(h) APPENDIX 21
u n d e r c o n t r a c t t o t h e G o v e r n m e n t t o p r o v i d e s e r v i c e s w h i c h

would otherwise fall within this subsection. The reference in

paragraph 116 of MCM, 1969 (Rev.), to service regulations has

been deleted as unnecessary.

(e) Procedures for production. Subsection (1) and the discussion

are based on paragraph 115 b 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 115 a 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 Bowman Dairy Co. v.

United States, 341 U.S. 214 (1951). See generally United States

v. Nixon, 418 683 (1974).

Subsection (2)(C) is based on paragraph 79 b, the third paragraph of paragraph 115 a, and the first sentence of paragraph 115

d (1) 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 gap left by MCM, 1969 (Rev). in regard

to these procedures. See Article 47(a)(1), 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 115 d(1)

of MCM, 1969 (Rev.). See also 28 U.S.C. § 569(b). The discussion is based on paragraph 115 d(1) of MCM, 1969 (Rev.).

Subsection (2)(E) is based on Article 46 and the first sentence

of paragraph 115 d(1) of MCM, 1969 (Rev.). It parallels Fed. R.

C r i m . P . 1 7 ( e ) ( 1 ) . P r o c e s s i n c o u r t s - m a r t i a l d o e s n o t e x t e n d

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; United States v. Bennett, supra; United States v.

Daniels, supra; United States 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. § 1783(a) to secure presence of witness

overseas to testify in a court-martial). The discussion is based on

the last paragraph of paragraph 115 d(1) of MCM, 1969 (Rev.).

Note that under subsection (2)(E)(iii) any civilians in occupied

t e r r i t o r y a r e s u b j e c t t o c o m p u l s o r y p r o c e s s o f t h e o c c u p y i n g

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. 17(f)(2).

Subsection (2)(G) and the discussion are based on paragraphs

115 d(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. Atty. Gen. 501 (1868) (construing

Act of 3 March 1863, ch. 79, § 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

200–202, 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., United States v. Shibley, 112 F. Supp. 734 (S.D.

C a l . 1 9 5 3 ) ( c o u r t o f i n q u i r y ) . F e d e r a l c i v i l i a n c o u r t s h a v e

previously used the warrant of attachment but no longer do because the power to issue an arrest warrant is implied from Fed. R.

Crim. P. 46(b) and 18 U.S.C. § 3149. See Bacon 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.

S e e g e n e r a l l y U n i t e d S t a t e s v . S e v a a e t a s i , 4 8 C . M . R . 9 6 4

(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. 581 (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

for depositions and courts of inquiry, the convening authority.

Paragraph 115 d(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 115 d(3) of MCM, 1969 (Rev.). That

p a r a g r a p h w a s s e e m i n g l y a d v i s o r y i n n a t u r e . S u b s e c t i o n

(e)(2)(G)(iv) is based on the second paragraph and the first sentence of the last paragraph of paragraph 115 d(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).

1998 Amendment. The Discussion was amended to reflect the

amendment of Article 47, UCMJ, in section 1111 of the National

Defense Authorization Act for Fiscal Year 1996, Pub. L. No. 104-

106, 110 Stat. 186, 461 (1996). The amendment removes limitations on the punishment that a federal district court may impose

for a civilian witness’ refusal to honor a subpoena to appear or

testify before a court-martial. Previously, the maximum sentence

for a recalcitrant witness was “a fine of not more than $500.00, or

imprisonment for not more than six months, or both.” The law

now leaves the amount of confinement or fine to the discretion of

the federal district court.

(f) Evidence. This subsection is based generally on paragraph 115

a 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

f l e x i b i l i t y a s t o w h a t e v i d e n c e m u s t b e p r o d u c e d a t t h o s e

proceedings.

A21-37

ANALYSIS App. 21, R.C.M. 703(f)
Rule 704 Immunity

(a) Types of immunity. This subsection recognizes both transactional and testimonial or use immunity. See Pillsbury Co. v.

Conboy, 459 U.S. 248 (1983); Kastigar v. United States, 406 U.S.

441 (1972); Murphy v. Waterfront Commission, 378 U.S. 52

(1964). See also 18 U.S.C. §§ 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 of Immunity and

Military Law, 1971–1976, 73 Mil. L. Rev. 1 (1976) (hereinafter

cited as Green II); Green, Grants of Immunity and Military Law,

53 Mil. L. Rev. 1 (1971) (hereinafter cited as Green I).

Paragraph 68 h 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); United States 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)(1).

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. Cf. 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. §§ 6002 and 6004. See subsection (c) and Analysis.

The second paragraph in the discussion is based on 18 U.S.C.

§ 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 68 h of MCM, 1969 (Rev.) and on United States v.

Kirsch, 15 U.S.C.M.A. 84, 35 C.M.R. 56 (1964). See also United

States v. Villines, supra. Kirsch recognized codal authority for a

convening authority to grant immunity (see Articles 30, 44, and

60) and found implementing Manual provisions to be a proper

exercise of authority under Article 36. (At the time Kirsch was

decided, the convening authority’s powers now contained in Artic l e 6 0 w e r e i n A r t i c l e 6 4 . ) T h e e n a c t m e n t o f 1 8 U . S . C .

§ § 6001–6005 did not remove this power. See United States v.

Villines, supra; Department of Justice Memorandum, Subject:

G r a n t s o f I m m u n i t y b y C o u r t - M a r t i a l C o n v e n i n g A u t h o r i t i e s

(Sept. 22, 1971) discussed in Grants of Immunity, 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.

§§ 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,

1 1 M . J . 3 3 3 ( C . M . A . 1 9 8 1 ) ; U n i t e d S t a t e s v . C a l i e n d o , 1 3

U . S . C . M . A . 4 0 5 , 3 2 C . M . R . 4 0 5 ( 1 9 6 2 ) ; U n i t e d S t a t e s v .

Thompson, 11 U.S.C.M.A. 252, 29 C.M.R. 68 (1960); United

States v. Werthman, 5 U.S.C.M.A. 440, 18 C.M.R. 64 (1955). Cf.

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 the 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

p u r s u a n t t o t h e p r e t r i a l a g r e e m e n t ; i n s t e a d , s u c h a n a c c u s e d

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 the discussion,see United

States v. Newman, 14 M.J. 474 (C.M.A. 1983). The discussion

under subsection (c)(1) is based on Grants of 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, 411 F.2d 1067 (10th Cir. 1969),

vacated as moot, 397 U.S. 96 (1970); Green II, supra at 12–14.

But see In re Cardassi, 351 F. Supp. 1080 (D. Conn. 1972);

M c C o r m i c k ’ s H a n d b o o k o f t h e L a w o f E v i d e n c e 2 6 2 – 6 3 ( E .

Cleary ed. 1972). The Supreme Court has not decided the issue.

See Zicarelli v. New Jersey State Commission of Investigation ,

406 U.S. 472 (1974).

(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. Cf.

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);

U n i t e d S t a t e s v . S t o l t z , 1 4 U . S . C . M . A . 4 6 1 , 3 4 C . M . R . 2 4 1

A21-38

App. 21, R.C.M. 704 APPENDIX 21
(1964). See also United States v. Scoles, 14 U.S.C.M.A. 14, 33

C.M.R. 226 (1963); Green I, 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 ) D e c i s i o n t o g r a n t i m m u n i t y . T h i s s u b s e c t i o n i s b a s e d o n

United States 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.

1993 Amendment. Subsection (e) to R.C.M. 704 was amended

to make the military practice for granting immunity for defense

witnesses consistent with the majority rule within the Federal

Courts. United States v. Burns, 684 F.2d 1066 (2d Cir. 1982),

cert. denied, 459 U.S. 1174 (1983); United States v. Shandell, 800

F.2d 322 (2d Cir. 1986); United States v. Turkish, 623 F.2d 769

(2d Cir. 1980), cert. denied, 449 U.S. 1077 (1981); United States

v. Thevis, 665 F.2d 616 (5th Cir. 1982), cert. denied, 459 U.S.

825 (1982); United States v. Pennell, 737 F.2d 521 (6th Cir.

1984); United States v. Taylor, 728 F.2d 930 (7th Cir. 1984);

United States v. Brutzman, 731 F.2d 1449 (9th Cir. 1984); McGee

v. Crist, 739 F.2d 505 (10th Cir. 1984); United States v. Sawyer,

799 F.2d 1494 (11th Cir. 1986). The amended rule conforms

R.C.M. 704(e) with case law requiring the military judge to consider the Government’s interest in not granting immunity to the

defense witness. See United States v. Smith, 17 M.J. 994, 996

(A.C.M.R. 1984), pet. denied, 19 M.J. 71 (C.M.A. 1984); United

States v. O’Bryan, 16 M.J. 775 (A.F.C.M.R. 1983), pet. denied,

218 M.J. 16 (C.M.A. 1984).

The majority rule recognizes that an accused has no Sixth

Amendment right to immunized testimony of defense witnesses

and, absent prosecutorial misconduct which is intended to disrupt

the judicial fact-finding process, an accused is not denied Fifth

Amendment due process by the Government’s failure to immunize a witness. If the military judge finds that the witness is a

target for prosecution, there can be no claim of Government

overreaching or discrimination if the grant of immunity is denied.

United States v. Shandell, supra.

The prior military rule was based on United States v. Villines,

supra, which had adopted the minority view espoused in Government of Virgin Islands v. Smith, 615 F.2d 964 (3d Cir. 1980).

This view permitted the court to immunize also a defense witness

when the witness’ testimony was clearly exculpatory, was essential to the defense case and there was no strong Government

interest in withholding testimonial immunity. This rule has been

s h a r p l y c r i t i c i z e d . S e e , e . g . , U n i t e d S t a t e s v . T u r k i s h , s u p r a ;

United States v. Taylor, supra; United States v. Pennel, supra;

United States v. Zayas, 24 M.J. 132, 137 (C.M.A. 1987) (dissenting opinion by Judge Cox).

The current rule continues to recognize that a military judge is

not empowered to immunize a witness. Upon a finding that all

three prerequisites exist, a military judge may only abate the

proceedings for the affected charges and specifications unless the

convening authority grants immunity to the witness.

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, Pretrial Agreements, 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 accused

and the interests of the Government. See also Santobello v. New

York, 404 U.S. 257 (1971); Fed. R. Crim. P. 11(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. 111–1, para. 4–8 (May 13,

1980); JAGMAN Section 0114 (June 11, 1982). Subsection (a)

expressly continues such authority. The discussion is based on

Dept. of Defense Dir. 1355.1 (July 21, 1981).

(b) Nature of agreement. This subsection recognizes the matters

contained in pretrial agreements. See United States v. Cooke, 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. This discussion under subsection (2)(C) is based on United States v. Cook,

supra.

1994 Amendment: The amendment to the Discussion accompanying R.C.M. 705(b)(2)(C), regarding reinstitution of offenses

withdrawn or dismissed pursuant to a pretrial agreement and the

standard of proof required of the government to withstand a

defense motion to dismiss the reinstituted offenses, is based on

United States v. Verrusio, 803 F.2d 885 (7th Cir. 1986). Alternative procedures available in Federal civilian practice, such as a

motion by the government for relief from its obligation under the

agreement before it proceeds to the indictment stage (see United

States v. Ataya, 864 F.2d 1324, 1330 n.9 (7th Cir. 1988)), are

inapposite in military practice and thus are not required. See

generally R.C.M. 801(a).

(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 (1)(B) lists certain matters which cannot

be bargained away. This is because to give up these matters

would leave no substantial means to ensure judicially that the

accused’s plea was provident, that the accused entered the pretrial

agreement voluntarily, and that the sentencing proceedings met

a c c e p t a b l e s t a n d a r d s . S e e U n i t e d S t a t e s v . M i l l s , 1 2 M . J . 1

A21-39

ANALYSIS App. 21, R.C.M. 705(c)
(C.M.A. 1981); United States v. Green, 1 M.J. 453 (C.M.A.

1976); United States v. Holland, 1 M.J. 58 (C.M.A. 1975); United

States v. Care, 18 U.S.C.M.A., 40 C.M.R. 247 (1969); United

States v. Cummings, 17 U.S.C.M.A. 376, 38 C.M.R. 174 (1968);

United States v. Allen, supra. The discussion under subsection (2)

is based on United States v. 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

t r i a l . C f . U n i t e d S t a t e s v . S c h a f f e r , s u p r a . S u b s e c t i o n ( 1 ) ( A )

provides that any term or condition, even if not otherwise prohibited, must be agreed to by the accused freely and voluntarily. Cf.

United States v. Green, supra; United States v. Care, supra.

Subsection (2) makes clear that certain terms or conditions are

not included in subsection (1)(B) and are permissible so 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). Cf. 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.

8 0 4 ( N . C . M . R . 1 9 8 0 ) ; U n i t e d S t a t e s v . B r o w n , 4 M . J . 6 5 4

(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 United States 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

arbitrary revocation of the agreement are provided. However, see

United States v. Connell, 13 M.J. 156 (C.M.A. 1982) in which a

post-trial misconduct provision was held unenforceable without

detailed analysis. Subsection (D) provides the same protections as

revocation of a suspended sentence requires. See R.C.M. 1109

and Analysis. Given such protections, there is no reason why an

accused who has bargained for 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 post-trial misconduct provisions. See

United States v. Goode, 1 M.J. 3 (C.M.A. 1975); United States v.

Thomas, supra; United States 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. Schaffer, supra;

United States v. Mills, supra; United States 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.

1991 Amendment: Subsection (2) was amended to clarify that

either side can propose the inclusion of the listed terms in a

pretrial agreement. This conforms to the amendment to R.C.M.

705(d).

(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 inquiry into the agreement, should

prevent prosecutorial pressure or improper inducements to the

accused to plead guilty or to waive rights against the accused’s

w i s h e s o r i n t e r e s t . S e e U n i t e d S t a t e s v . S c h a f f e r , s u p r a a t

428–429.

Subsection (2) provides that once plea discussions are 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)(1)), 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)(1)(A)). It is of no legal consequence whether the accused’s

counsel or someone else conceived the idea for a specific provision so 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 parties. See United

States v. Cooke, 11 M.J. 257 (C.M.A. 1981); United States v.

L a n z e r , 3 M . J . 6 0 ( C . M . A . 1 9 7 7 ) ; U n i t e d S t a t e s v . C o x , 2 2

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. In some circumstances, it may not be practicable or even physically possible to present the written agreement

to the convening authority for approval. The rule 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 by 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 United States v.

Kazena, 11 M.J. 28 (C.M.A. 1981). In Shepardson v. Roberts, 14

A21-40

App. 21, R.C.M. 705(c) APPENDIX 21
M.J. 354 (C.M.A. 1983), the Court stated that the convening

authority may be bound by a pretrial agreement before entry of a

plea of 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 in Shepardson 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 performance is not limited to

entry of a plea. 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 811(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.

1991 Amendment: R.C.M. 705(d) was amended to authorize

either party to initiate pretrial agreement negotiations and propose

terms and conditions. The amendment does not change the general rule that all terms and conditions of a pretrial agreement

proposed pursuant to this rule must not violate law, public policy,

or regulation. Subparagraph (1) was eliminated and subparagraphs

(2)–(5), as amended, were renumbered (1)–(4), respectively. This

amendment is patterned after federal civilian practice [ see Fed.

R. Crim. P. 11(e)] where there is no requirement that negotiations

for plea agreements originate with the defense. In courts-martial

the military judge is required to conduct an exhaustive inquiry

into the providence of an accused’s guilty plea and the voluntariness of the pretrial agreement. R.C.M. 705(c) ensures that certain

fundamental rights of the accused cannot be bargained away.

Furthermore it can be difficult to determine which side originated

negotiations or proposed a particular clause. Cf. United States v.

J o n e s , 2 3 M . J . 3 0 5 , 3 0 8 – 3 0 9 ( C . M . A . 1 9 8 7 ) ( C o x , J . ,

concurring).

(e) Nondisclosure of existence of agreement. This subsection is

based on United States v. Green, supra; United States v. Wood,

2 3 U . S . C . M . A . 5 7 , 4 8 C . M . R . 5 2 8 ( 1 9 7 4 ) . S e e a l s o 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 United States

v. Cortes-Crespo, 13 M.J. 420 (1982); United States 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.

1987 Amendment: Subsection (c)(1) was modified, in light of

changes to federal law, to allow the use of available clinical

psychologists. See 18 U.S.C. §§ 4241, 4242, and 4247. Subsection (c)(2) was revised to implement Article 50a, which was

added to the UCMJ in the [nb, N] “Military Justice Amendments

of 1986,” tit. [nb, A] VIII, § 802, National Defense Authorization

Act for fiscal year 1987, Pub. L. No. 99–661, 100 Stat. 3905

(1986). Article 50a adopted some provisions of the Insanity Defense Reform Act, ch. IV, Pub. L. No. 98–473, 98 Stat. 2057

(1984). See also Analysis of R.C.M. 916(k). The subsection dealing with the volitional prong of the American Law Institute’s

Model Penal Code test was deleted. Subsection (A) was amended

by adding and defining the word “severe.” See R.C.M. 916(k)(1);

S. Rep. No. 225, 98th Cong., 1st Sess. 229 (1983), reprinted in

1984 U.S. Code Cong. & Ad. News 1, 231. Subsection (C) was

amended to state the cognitive test as now set out in R.C.M.

916(k)(1).

1998 Amendment. Subsection (c)(2)(D) was amended to reflect

the standard for incompetence set forth in Article 76b, UCMJ.

Rule 707 Speedy trial

Introduction. This rule applies the accused’s speedy trial

rights under the 6th Amendment and Article 10, UCMJ, and

protects the command and societal interest in the 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

purpose of this rule is to provide guidance for granting pretrial

delays and to eliminate after-the-fact determinations as to whether

certain periods of delay are excludable. This rule amends the

former rule, which excluded from accountable time periods covered by certain exceptions.

(a) In general. This subsection is based on ABA Standards for

Criminal Justice, Speedy Trial, 12–2.1, 12–2.2 (1986). The ABA

Standards set no time limit but leave the matter open depending

on local conditions. The basic period from arrest or summons to

trial under The Federal Speedy Trial Act, 18 U.S.C. § 3161, is

100 days. The period of 120 days was selected for courts-martial

as a reasonable outside limit given the wide variety of locations

and conditions in which courts-martial occur. The dates of the

events which begin government accountability are easily ascertainable and will avoid the uncertainty involved in Thomas v.

Edington, 26 M.J. 95 (C.M.A. 1988).

The 90-day rule previously established in R.C.M. 707(d) has

been eliminated. As such, the 120-day rule established in subsection (a) of this rule applies to all cases, not just cases where the

accused is in pretrial confinement. Judicial decisions have held,

however, that when an accused has been held in pretrial confinement for more than 90 days, a presumption arises that the accused’s right to a speedy trial under Article 10, UCMJ has been

violated. In such cases, the government must demonstrate due

diligence in bringing the case to trial. United States v. Burton, 44

C.M.R. 166 (C.M.A. 1971). Unless Burton and its progeny are

reexamined, it would be possible to have a Burton violation

despite compliance with this rule.

2002 Amendment: Burton and its progeny were re-examined in

United States v. Kossman, 38 M.J. 258 (C.M.A. 1993), where the

A21-41

ANALYSIS App. 21, R.C.M. 707(a)
Court of Military Appeals specifically overruled Burton and reinstated the earlier rule from United States v. Tibbs, 15 C.M.A. 350,

353, 35 C.M.R. 322, 325 (1965). See Kossman, 38 M.J. at 262. In

Kossman, the Court reinstated the “reasonable diligence” standard

in determining whether the prosecution’s progress toward trial for

a confined accused was sufficient to satisfy the speedy trial requirement of Article 10, UCMJ.

The discussion is based on United States v. McDonald, 456

U.S. 1 (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 referral of charges could raise due process issues. See

id.; United States v. McGraner, 13 M.J. 408 (C.M.A. 1982). 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). The reference to R.C.M.

304(a)(2)–(4) conforms to the language of R.C.M. 707(a)(2).

Subsection (2) is based on ABA Standards, supra at 12–2.2(a)

(1986). See also United States v. Talaveraz, 8 M.J. 14 (C.M.A.

1979).

Subsection (3)(A) establishes that a mistrial or dismissal by any

p r o p e r a u t h o r i t y b e g i n s a n e w t r i a l p e r i o d . T h i s s u b s e c t i o n

clarifies the date from which to begin measuring new time periods in cases involving rereferral, restraint, or no restraint.

Subsection (3)(B) clarifies the intent of this portion of the rule.

T h e h a r m t o b e a v o i d e d i s c o n t i n u o u s p r e t r i a l r e s t r a i n t . S e e

United States v. Gray, 21 M.J. 1020 (N.M.C.M.R. 1986). Where

an accused is released from pretrial restraint for a substantial

period, he will be treated the same as an accused who was not

restrained. Therefore, unless the restraint is reimposed, the 120-

day time period will run from the date of preferral or entry on

active duty regardless of whether that event occurs before or after

the accused was released from restraint.

Subsection (3)(C) clarifies the effect of government appeals on

this rule. This subsection treats all government appeals the same.

Once the parties are given notice of either the government’s

decision not to appeal under R.C.M. 908(b)(8) or the decision of

the Court of Criminal Appeals under R.C.M. 908(c)(3), a new

120-day period begins.

This subsection clarifies how time should be counted for those

charges not affected by the ruling that is subject to appeal. Under

R.C.M. 908(b)(4), trial on such charges may in some circumstances proceed notwithstanding the appeal, or trial may await

resolution of the appeal. Since the traditional policy of resolving

all known charges at a single trial has not changed (see R.C.M.

906(b)(10), Discussion), charges not the subject of the appeal

may be properly delayed without violating this rule. Accordingly

where the trial is interrupted by a government appeal, all charges

may be treated the same and proceeded upon at the same time

once the appeal is resolved.

2004 Amendment: Subsection (3)(D) was amended in light of

United States v. Becker, 53 M.J. 229 (2000), to clarify that the

1 2 0 - d a y t i m e p e r i o d a p p l i e s t o s e n t e n c e - o n l y r e h e a r i n g s . T h e

amendment also designates the first session under R.C.M. 803 as

the point at which an accused is brought to trial in a sentenceonly rehearing.

(c) Excludable delays. This subsection, based on ABA Standards

for Criminal Justice, Speedy Trial, 12–1.3 (1986), follows the

principle that the government is accountable for all time prior to

trial unless a competent authority grants a delay. See United

States v. Longhofer, 29 M.J. 22 (C.M.A. 1989). The rule of

procedure established in subsection (1) is based on United States

v. Maresca, 28 M.J. 328 (C.M.A. 1989). See also United States v.

Carlisle, 25 M.J. 426, 428 (C.M.A. 1988).

The discussion to subsection (1) provides guidance for judges

a n d c o n v e n i n g a u t h o r i t i e s t o e n s u r e t h e f u l l d e v e l o p m e n t o f

speedy trial issues at trial. See United States v. Maresca, supra.

This amendment follows ABA guidance and places responsibility

on a military judge or the convening authority to grant reasonable

pretrial delays. Military judges and convening authorities are required, under this subsection, to make an independent determination as to whether there is in fact good cause for a pretrial delay,

and to grant such delays for only so long as is necessary under

t h e c i r c u m s t a n c e s . A B A S t a n d a r d s , s u p r a a t 1 2 – 1 . 3 ; U n i t e d

States v. Longhofer, supra. Decisions granting or denying pretrial

delays will be subject to review for both abuse of discretion and

the reasonableness of the period of delay granted. Id.; United

States v. Maresca, supra.

1998 Amendment. In creating Article 76b, UCMJ, Congress

mandated the commitment of an incompetent accused to the custody of the Attorney General. As an accused is not under military

control during any such period of custody, the entire period is

excludable delay under the 120-day speedy trial rule.

2004 Amendment: Subsection (c) was amended to treat periods

of the accused’s unauthorized absence as excludable delay for

purposes of speedy trial. See United States v. Dies, 45 M.J. 376

(1996). The Discussion was deleted as superfluous.

(d) Remedy. This subsection is based on The Federal Speedy

Trial Act, 18 U.S.C. § 3162. The Federal Rule provides dismissal

as the sanction for speedy trial violations but permits the judge to

dismiss with or without prejudice. Accordingly, this subsection

permits the judge to dismiss charges without prejudice for nonconstitutional violations of this rule. If, however, the accused has

been denied his or her constitutional right to a speedy trial, the

o n l y a v a i l a b l e r e m e d y i s d i s m i s s a l w i t h p r e j u d i c e . S t r u n k v .

United States, 412 U.S. 434 (1973).

2 0 0 4 A m e n d m e n t : S u b s e c t i o n ( d ) w a s a m e n d e d i n l i g h t o f

United States v. Becker, 53 M.J. 229 (2000), to provide for

sentence relief as a sanction for violation of the 120-day rule in

sentence-only rehearings. The amendment sets forth factors for

the court to consider to determine whether or to what extent

sentence relief is appropriate and provides for the sentence credit

t o b e a p p l i e d t o t h e s e n t e n c e a p p r o v e d b y t h e c o n v e n i n g

authority.

(e) Waiver. A lack of a demand for immediate trial will not

constitute waiver and will not preclude an accused from raising

speedy trial issues at trial. See Barker v. Wingo, supra.

CHAPTER VIII. TRIAL PROCEDURE GENERALLY

Rule 801 Military judge’s responsibility; other

matters

(a) Responsibilities of military judge. This subsection is based on

paragraphs 39 b and 40 b(2) and the first sentence of paragraph

57 a 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 estabA21-42

App. 21, R.C.M. 707(a) APPENDIX 21
lish the outlines of their responsibilities. Much of the discussion

is also derived from paragraphs 39 b, 40 b(2), and 53 g 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.

(b) Obtaining evidence. This subsection is taken from paragraph

54 b of the MCM, 1969 (Rev.). Some of the language in paragraph 54 b has been placed in the discussion.

(c) Uncharged offenses. This subsection is taken from paragraph

55 a of MCM, 1969 (Rev.). The discussion is designed to accomplish the same purpose as paragraph 55 b of MCM, 1969 (Rev.),

although the language is no longer in terms which could be

construed as jurisdictional.

(d) Interlocutory questions and questions of law. 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)(1)(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 States 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. United

States 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 from paragraph 57 c, d, f, and g of MCM, 1969 (Rev.).

Some language from paragraph 57 g has been placed in the

discussion.

Subsection (4) is taken from paragraph 57 g(1) 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. 314(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 67 e 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 non persuasion once an issue is raised

from the burden of production necessary to raise it. See McCormick’s Handbook of the Law of Evidence § 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 between questions of fact and questions of law. It is taken, substantially, from paragraph 57 b 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 57 b 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 of

Contents, Manual for Courts-Martial, 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 United States v. Laws, 11 M.J. 475 (C.M.A. 1981). The

discussion clarifies that when a military 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

armed 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 a question 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); United States v. McDonagh, 14 M.J. 415 (C.M.A. 1983).

Thus it would be possible, in a case where larceny 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 67 e 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; and 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.

Laws, supra. Cf. 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. United

States v. McGinnis and United States v. Marsh, both supra.

(f) Rulings on record. This subsection is based on paragraph 39 c

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ANALYSIS App. 21, R.C.M. 801(f)
of MCM, 1969 (Rev.). Paragraph 39 c did not include a reference

to rulings and instructions by the president of a special courtmartial 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 1103 to indicate what must be recorded at trial. Concerning

requirements for verbatim records, see United States v. Douglas,

1 M . J . 3 5 4 ( C . M . A . 1 9 7 6 ) ; U n i t e d S t a t e s v . B o x d a l e , 2 2

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 of failure 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.

United States, 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 39 c of MCM,

1969 (Rev.).

Like Fed. R. Crim. P. 17.1, this rule provides express 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 Procedural

Before Trial § 11–5.4 (1978). After the trial has begun, there is

often a need to discuss matters in chambers. Cf. Fed. R. Crim. P.

43(c); United States v. Gregorio, 497 F.2d 1253 (4th Cir.), 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 be the subject of rules of court. See R.C.M. 108; 801.

This is also true under the federal rule. See Committee on Pretrial

Procedure of the Judicial Conference of the United States, Reco m m e n d e d P r o c e d u r e s i n C r i m i n a l T r i a l s , 3 7 F . R . D . 9 5 , 9 8

( 1 9 6 5 ) ; C . W r i g h t , W r i g h t ’ s F e d e r a l P r a c t i c e a n d P r o c e d u r e

Para. 292 (1969). Cf. United States v. Westmoreland, 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). Cf. United States v.

Allen, 8 U.S.C.M.A. 504, 25 C.M.R. 8 (1957). But, cf. ABA

Standards, Pleas of Guilty § 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 a

condition of 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 the 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 of parties. 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

permits the parties to be bound by matters resolved at the conference. See C. Wright, supra at Para. 292.

1991 Amendment: The prohibition against conferences proceeding over the objection of any party was eliminated as it conflicted

with the military judge’s specific authority to order conferences

under section (a) of this rule and general authority to control the

conduct of court-martial proceedings. While the military judge

may compel the attendance of the parties, neither party may be

compelled to resolve any issue or be pressured to make any

concessions.

(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 Para. 17.1.02 [1]; 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 and Procedure Before Trial § 11–5.4(a) (1978). The

presence of the accused is not necessary in most 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

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App. 21, R.C.M. 801(f) APPENDIX 21
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.

(f) Limitations. 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 without

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 53 d(1) 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 paragraphs 80 b 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 53 d(1) 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

p r a c t i c e , a s i t c o n c e r n s c o r p o r a t e d e f e n d a n t s , m i s d e m e a n o r

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

United States 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) Continued presence 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 a sentence determination 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 point 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, § 43.02[2] (1982 rev. ed.):

[Rule 43] 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 (Diaz v. United States, 223 U.S. 442 (1912))

cited as authority for the “voluntary absence” provision itself

involved 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); United States v.

Crutcher, 405 F.2d 239 (2d Cir. 1968), cert. denied, 394 U.S. 908

(1969); Pearson v. United States, 325 F.2d 625 (D.C. Cir. 1963);

Cross v. United States, 325 F.2d 629 (D.C. Cir. 1963). Such

waiver should be made expressly by the accused in open court.

Compare Cross v. United States, supra, with Pearson v. United

States, supra. Federal cases also establish that there is no right to

waive presence, see, e.g., United States v. Durham, 587 F.2d 799

(5th Cir. 1979); United States v. Fitzpatrick, 437 F.2d 19 (2d Cir.

1970). InIn re United States, supra, the court stated that there is a

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ANALYSIS App. 21, R.C.M. 804(b)
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, United States v. Blair, 36 C.M.R.

750 (N.B.R. 1965), rev’d on other grounds, 16 U.S.C.M.A. 257,

3 6 C . M . R . 4 1 3 ( 1 9 6 6 ) . S e e e . g . , U n i t e d S t a t e s v . H o l l y , 4 8

C.M.R. 990 (A.F.C.M.R. 1974). Cf. 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 11 c 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. Cf. 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 of

the Trial Judge § 6–3.8 and Commentary (1978). With respect to

binding an accused, see United States v. Gentile, 1 M.J. 69

( C . M . A . 1 9 7 5 ) . S e e a l s o U n i t e d S t a t e s v . H e n d e r s o n , 1 1

U.S.C.M.A. 556, 29 C.M.R. 372 (1960).

(c) Voluntary absence for limited purpose of child testimony.

1999 Amendment: The amendment provides for two-way closed

circuit television to transmit a child’s testimony from the courtroom to the accused’s location. The use of two-way closed circuit

television, to some degree, may defeat the purpose of these alternative procedures, which is to avoid trauma to children. In such

cases, the judge has discretion to direct one-way television communication. The use of one-way closed circuit television was

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

836 (1990). This amendment also gives the accused the election

to absent himself from the courtroom to prevent remote testimony. Such a provision gives the accused a greater role in determining how this issue will be resolved.

(d) Appearance and security of accused. This subsection is similar to paragraph 60 of MCM, 1969 (Rev.).

In subsection (1), 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 United States 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

r e f e r r e d t o b y R . C . M . 8 0 4 ( c ) ( 2 ) . I n s o f a r a s p a r a g r a p h 6 0 o f

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 39 d of

MCM, 1969 (Rev.).

(b) Members. This subsection is based on paragraphs 41 c and 41

d(1) and (2) and the first sentence of the second paragraph 62 b

of MCM, 1969 (Rev.) and on Article 29(c). See also United

States v. Colon, 6 M.J. 73 (C.M.A. 1978).

1986 Amendment: References to R.C.M. “911” were changed

to R.C.M. “912” to correct an error in MCM, 1984.

(c) Counsel. This subsection modifies paragraphs 44 c and 46 c

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 noted

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. Sarafite, 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. Griffiths, 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, 461 U.S. 1 (1983); Dennis v. United

States, 340 U.S. 887 (1950) (statement of Frankfurter, J.); United

States v. Batts, 3 M.J. 440 (C.M.A. 1977); 17 AM. Jur. 2d

§§ 34–37 (1964).

(d) Effect of replacement of member or military judge. This subsection is based on Article 29(b), (c), and (d) and on paragraphs

39 e and 41 e and f of MCM, 1969 (Rev.). MCM, 1969 (Rev.)

also provided a similar procedure when a member of a courtmartial was temporarily excused from the trial. This rule 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

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App. 21, R.C.M. 804(b) APPENDIX 21
remains. Trial may not proceed with less than a quorum 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.

Rule 806 Public trial

I n t r o d u c t i o n . T h i s r u l e r e c o g n i z e s a n d c o d i f i e s t h e b a s i c

principle that, with limited exceptions, court-martial proceedings

will be open to the public. The thrust of the rule is similar to

paragraph 53 e 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 ) I n g e n e r a l . T h i s s u b s e c t i o n r e f l e c t s t h e h o l d i n g i n U n i t e d

States v. Grunden, supra, that the accused has a right to a public

t r i a l u n d e r t h e S i x t h A m e n d m e n t . S e e a l s o U n i t e d S t a t e s v .

Brown, 7 U.S.C.M.A. 251, 22 C.M.R. 41 (1956); United States v.

Zimmerman, 19 C.M.R. 806 (A.F.B.R. 1955).

Although the Sixth Amendment right to a public trial is personal to the accused (see Gannett Co., Inc. v. DePasquale, 443

U.S. 368 (1979)), the 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

United States v. Czarnecki, 10 M.J. 570 (A.F.C.M.R. 1980) (dicta)), especially in view of the practical differences between civili a n c o u r t s a n d c o u r t s - m a r t i a l ( i . e . , c o u r t s - m a r t i a l d o n o t

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 of spectators. 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 United States

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. Sielaff, 561 F.2d

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. American

Cyanamid Co., 506 F.2d 532 (2d Cir. 1974).

The third 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 or other disturbances is clearly established and does

not conflict with the right to a public trial. See Richmond Newspapers, Inc. v. Virginia, supra at 581 n. 18. Cf. 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 Cir.), 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.

Sielaff, 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 Gannett 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

Cir. 1949).

Subsection (b) authorizes closure of court-martial proceedings

over the accused’s objection only when otherwise authorized in

t h i s M a n u a l . E f f e c t i v e l y , t h i s m e a n s t h a t t h e o n l y t i m e t r i a l

proceedings may be closed without the consent of the accused is

when classified information is to be introduced. See Mil. R. Evid.

505(j). 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 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 effect of publicity

on criminal trials, as treated in the discussion, see Nebraska Press

Association v. Stuart, 427 U.S. 539 (1976); Sheppard v. 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, 46

C.M.R. 1131 (A.C.M.R.), aff’d, 22 U.S.C.M.A. 534, 48 C.M.R.

19 (1973); Caley v. Callaway, 519 F.2d 184 (5th Cir. 1975), cert.

denied, 425 U.S. 911 (1976). See also ABA Standards, Fair Trial

and Free Press part III (1972).

2004 Amendment: Subsection (b) was divided to separate the

provisions addressing control of spectators and closure and to

clarify that exclusion of specific individuals is not a closure. The

rules for control of spectators now in subsection (b)(1) were

amended to require the military judge to articulate certain findings on the record prior to excluding specific spectators. See

United States v. Short, 41 M.J. 42 (1994). The rules on closure

now in subsection (b)(2) and the Discussion were amended in

light of military case law that has applied the Supreme Court’s

constitutional test for closure to courts-martial. See ABC, Inc. v.

Powell, 47 M.J. 363 (1997); United States v. Hershey, 20 M.J.

4 3 3 ( C . M . A . 1 9 8 5 ) ; U n i t e d S t a t e s v . G r u n d e n , 2 M . J . 1 1 6

(C.M.A. 1977).

(c) Photography and broadcasting prohibited. This subsection is

based on Fed. R. Crim. P. 53, and is consistent with paragraph 53

e of MCM, 1969 (Rev.) and practice thereunder. See C. Wright,

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ANALYSIS App. 21, R.C.M. 806(c)
Wright’s Federal Practice and Procedure § 861 (1969); 8 B J.

Moore, Moore’s Federal Practice Para. 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

courtrooms 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 United States v. Garwood,

NMC 81–1982 (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

Cir. 1967).

2002 Amendment: Section (d) was added to codify the military

judge’s power to issue orders limiting trial participants’ extrajudicial statements in appropriate cases. See United States v. Garwood, 16 M.J. 863, 868 (N.M.C.M.R. 1983) (finding military

judge was justified in issuing restrictive order prohibiting ext r a j u d i c i a l s t a t e m e n t s b y t r i a l p a r t i c i p a n t s ) , a f f ’ d o n o t h e r

grounds, 20 M.J. 148 (C.M.A. 1985), cert. denied, 474 U.S. 1005

(1985); United States v. Clark, 31 M.J. 721, 724 (A.F.C.M.R.

1990) (suggesting, but not deciding, that the military judge properly limited trial participants’ extrajudicial statements).

The public has a legitimate interest in the conduct of military

justice proceedings. Informing the public about the operations of

the criminal justice system is one of the “core purposes” of the

First Amendment. In the appropriate case where the military

judge is considering issuing a protective order, absent exigent

circumstances, the military judge must conduct a hearing prior to

issuing such an order. Prior to such a hearing the parties will have

been provided notice. At the hearing, all parties will be provided

an opportunity to be heard. The opportunity to be heard may be

extended to representatives of the media in the appropriate case.

Section (d) is based on the first Recommendation Relating to

the Conduct of Judicial Proceedings in Criminal Cases, included

in the Revised Report of the Judicial Conference Committee on

the Operation of the Jury System on the “Free Press--Fair Trial”

Issue, 87 F.R.D. 519, 529 (1980), which was approved by the

Judicial Conference of the United States on September 25, 1980.

The requirement that the protective order be issued in writing is

based on Rule for Courts-Martial 405(g)(6). Section (d) adopts a

“substantial likelihood of material prejudice” standard in place of

the Judicial Conference recommendation of a “likely to interfere”

standard. The Judicial Conference’s recommendation was issued

before the Supreme Court’s decision in Gentile v. State Bar of

Nev., 501 U.S. 1030 (1991). Gentile, which dealt with a Rule of

Professional Conduct governing extrajudicial statements, indicates

that a lawyer may be disciplined for making statements that

present a substantial likelihood of material prejudice to an accused’s right to a fair trial. While the use of protective orders is

distinguishable from limitations imposed by a bar’s ethics rule,

the Gentile decision expressly recognized that the “speech of

lawyers representing clients in pending cases may be regulated

under a less demanding standard than that established for regulation of the press in Nebraska Press Ass’n v. Stuart, 427 U.S. 539

(1976), and the cases which preceded it.” 501 U.S. at 1074. The

Court concluded that “the substantial likelihood of material prejudice’ standard constitutes a constitutionally permissible balance

between the First Amendment rights of attorneys in pending cases

and the State’s interest in fair trials.” Id. at 1075. Gentile also

supports the constitutionality of restricting communications of

non-lawyer participants in a court case. Id. at 1072-73 (citing

Seattle Times Co. v. Rhinehart, 467 U.S. 20, 32-33 (1984)). Accordingly, a protective order issued under the “substantial likelih o o d o f m a t e r i a l p r e j u d i c e ” s t a n d a r d i s c o n s t i t u t i o n a l l y

permissible.

The first sentence of the discussion is based on the committee

comment to the Recommendations Relating to the Conduct of

Judicial Proceedings in Criminal Cases. See 87 F.R.D. at 530. For

a definition of “party,” see R.C.M. 103(16). The second sentence

of the discussion is based on the first of the Judicial Conference’s

recommendations concerning special orders. See 87 F.R.D. at

529. The third sentence of the discussion is based on the second

of the Judicial Conference’s recommendations, id. at 532, and on

United States v. Salameh, 992 F.2d 445, 447 (2d Cir. 1993) (per

curiam), and In re Application of Dow Jones & Co., 842 F.2d

603, 611 & n.1 (2d Cir.), cert. denied, 488 U.S. 946 (1988). The

fourth sentence is based on Salameh, 992 F.2d at 447. The fifth

sentence is based on Rule for Courts-Martial 905(d).

Rule 807 Oaths

(a) Definition. This rule and the discussion are taken from paragraph 112 a of MCM, 1969 (Rev.). See also Fed. R. Crim. P.

54(c).

(b) Oaths in courts-martial. Subsection (1) including the discussion is based on Article 42 and is based on paragraph 112 b and c

of MCM, 1969 (Rev.). Subsection (2) is taken from paragraph

112 d of MCM, 1969 (Rev.). The discussion is taken in part from

paragraph 112 d 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 112 a 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 82 a, b, and h, of MCM, 1969

( R e v . ) . S e e a l s o U n i t e d S t a t e s v . E i c h e n l a u b , 1 1 M . J . 2 3 9

(C.M.A. 1981); United States v. McCullah, 11 M.J. 234 (C.M.A.

1981); United States v. Boxdale, 22 U.S.C.M.A. 414, 47 C.M.R.

351 (1973); United States v. Bielecki, 21 U.S.C.M.A. 450, 45

C . M . R . 2 2 4 ( 1 9 7 2 ) ; U n i t e d S t a t e s v . D e W a y n e , 7 M . J . 7 5 5

( A . C . M . R . ) , p e t . d e n i e d , 8 M . J . 2 5 ( 1 9 7 9 ) ; U n i t e d S t a t e s 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 118 a of MCM 1969 (Rev.). The

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App. 21, R.C.M. 806(c) APPENDIX 21
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 118 a of MCM, 1951; paragraph 118 a

of MCM, 1969 (Rev.). The definition of a “direct” contempt is

also based on these sources. See also 8B J. Moore, Moore’s

Federal Practice Para. 42.02[3] (1982 rev. ed); 18 U.S. § 401; cf.

Ex parte Savin, 131 U.S. 267, witnessed by the court and other

direct contempts is based on Cooke v. United States, 267 U.S.

517 (1925), and is important for procedural purposes. See subsection (b) below.

(b) Method of disposition. The 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 courtmartial, 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. United States, 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 courtmartial. 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 Article 16 and 48. Since Article 48 authorizes summary punishment for contempt committed in the presence of the courtmartial (see Hearings of H. R. 2498 Before a Subcomm. of the

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)(1) 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 51(b). The requirement for a two-thirds

vote on findings and punishment is based on Article 52(a) and

(b)(3).

(d) Record; review. This subsection is based on the eighth paragraph of paragraph 118 b 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) and MCM

(AF), 1949, paragraph 118 of MCM, 1951; paragraph 118 b 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, 81st Cong., 1st Sess. 1060 (1949).

(e) Sentence. This subsection is based on Article 57 and paragraph 118 b 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 118 b of MCM,

1969 (Rev.) was ambiguous in this regard.

(f) Informing person held in contempt. This subsection and the

discussion are based on paragraph 118 b of MCM, 1969 (Rev.); it

has been modified for clarity.

1998 Amendment: R.C.M. 809 was amended to modernize

military contempt procedures, as recommended in United States

v. Burnett, 27 M.J. 99, 106 (C.M.A. 1988). Thus, the amendment

simplifies the contempt procedure in trials by courts-martial by

vesting contempt power in the military judge and eliminating the

m e m b e r s ’ i n v o l v e m e n t i n t h e p r o c e s s . T h e a m e n d m e n t a l s o

provides that the court-martial proceedings need not be suspended

while the contempt proceedings are conducted. The proceedings

will be conducted by the military judge in all cases, outside of the

members’ presence. The military judge also exercises discretion

as to the timing of the proceedings and, therefore, may assure that

the court-martial is not otherwise unnecessarily disrupted or the

accused prejudiced by the contempt proceedings. See Sacher v.

United States, 343 U.S. 1, 10, 72 S. Ct. 451, 455, 96 L. Ed. 717,

724 (1952). The amendment also brings court-martial contempt

procedures into line with the procedure applicable in other courts.

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 81 b of

MCM, 1969 (Rev.).

(b) Composition. This subsection is based on Article 63(b) and

the seventh paragraph of paragraph 92 a of MCM, 1969 (Rev.).

A s t o s u b s e c t i o n ( 3 ) , s e e a l s o U n i t e d S t a t e s v . S t a t e n , 2 1

U.S.C.M.A. 493, 45 C.M.R. 267 (1972).

(c) Examination of record of former proceedings. This subsection

is based on paragraph 81 c of MCM, 1969 (Rev.).

(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 81 d of

MCM, 1969 (Rev.). See also United States v. Ball, 163 U.S. 662

(1896); United States v. Culver, 22 U.S.C.M.A. 141, 46 C.M.R.

141 (1973); United States v. Eschmann, 11 U.S.C.M.A. 64, 28

C.M.R. 288 (1959); United States v. Jones, 10 U.S.C.M.A. 532,

28 C.M.R. 98 (1959); United States 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 third paragraph

of paragraph 81 d(1) of MCM, 1969 (Rev.) has been placed, in

precatory language, in the discussion. The prohibition was based

on United States v. Eschmann, supra. Analysis of Contents, 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

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ANALYSIS App. 21, R.C.M. 810(d)
result); United States 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 prohibition in the rule, users are alerted to current decisional requirements while the issue is left open to future judicial development.

1995 Amendment: Subsection (d) was amended in light of the

change to Article 63 effected by the National Defense Authorization Act for Fiscal Year 1993, Pub. L. No. 102–484, 106 Stat.

2315, 2506 (1992). The amendment reflects that subsection (d)

sentencing limitations only affect the sentence that may be approved by the convening or higher authority following the rehearing, new trial, or other trial. Subsection (d) does not limit the

maximum sentence that may be adjudged at the rehearing, new

trial, or other trial.

Subsection (2) is based on the last sentence of Article 63, as

amended, Military Justice Act of 1983, Pub. L. No. 98–209,

§ 5(d)(2)(C), 97 Stat. 1393 (1983).

(e) Definition. This definition is taken from paragraph 81 d(2) of

MCM, 1969 (Rev.). See also paragraph 92 b of MCM, 1969

(Rev.).

Rule 811 Stipulations

(a) In general. This subsection restates the first sentence of paragraph 54 f(1) 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 54 f(1) of MCM, 1969 (Rev.) which suggested that stipulations should not be accepted in certain circumstances. These examples are now included in the discussion. See

also United States 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. United States 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., United States v.

Williams, 30 C.M.R. 650 (N.B.R. 1960)), the defense counsel’s

concurrence in the stipulation will bind the accused. United States

v. Cambridge, supra. If there is any doubt, the accused should be

personally questioned. See United States v. Barbeau, 9 M.J. 569

(A.F.C.M.R. 1980).

The last three paragraphs of the discussion deal with stipulation

“which practically amount to a confession.” Paragraph 54 f(1) of

MCM, 1969 (Rev.), states 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 trial 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 has approved this procedure, but only if an

i n q u i r y o f t h e s o r t d e s c r i b e d i n t h e d i s c u s s i o n i s c o n d u c t e d .

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 withUnited States v.

Schaffer, 12 M.J. 425, 427–428 nn. 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 “de

facto” plea of guilty, rather than simply one which makes out a

prima facie case. The example in the discussion is taken from

United States v. Long, supra.

(d) Withdrawal. This subsection is taken, substantially verbatim,

from paragraph 54 f(1) 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 of stipulations. 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., Jackson v. United States, 330 F.2d 679 (8th Cir.),

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, § 8

(1974); 83 C.J.S. Stipulations, §§ 12–13 (1953). See also H. Hackfield & Co. v. United States, 197 U.S. 442 (1905). Paragraph

154 b 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 from paragraph 140

b of MCM (Army), 1949, and of MCM(AF), 1949, and can be

traced to paragraph 126 b 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. See Analysis of Contents,

Manual for Courts-Martial, 1969, Revised Edition, DA PAM

27–2 at 27–49 (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 111–8 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 agreed 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 Federal

courts, see Fed. R. Civ. P. 36 (1948) (since replaced by Fed. R.

Civ. P. 36 (1970)); see also Wigmore, supra, § 2596, and the fact

that stipulations of a documents’ contents, like 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 or other information in the

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App. 21, R.C.M. 810(d) APPENDIX 21
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 54 f(1)

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 United States 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.

(f) Procedure. This subsection is based on the second paragraph

in paragraph 54 f(2) of MCM, 1969 (Rev.).

Rule 812 Joint and common trials

This rule is taken from paragraph 53 c of MCM, 1969

(Rev.). The rule itself substantially repeats the first sentence in

paragraph 53 c. The discussion refers to other rules dealing with

joint or common trials, and includes the examples discussed in

paragraph 53 c of MCM, 1969 (Rev.). It also incorporates a

statement on stipulations which appeared at paragraph 54 f(3) of

MCM, 1969 (Rev.), and a statement concerning severances from

paragraph 61 h of MCM, 1969 (Rev.). The rule does not change

current law.

Rule 813 Announcing personnel of the courtmartial and accused

This rule is based on paragraph 61 c 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 61 c 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 61 b of MCM, 1969 (Rev.). The purpose of the subsection is to establish a definite point to indicate when a courtmartial is in session. The first paragraph in the discussion is taken

from paragraph 61 a 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

61 a and b of MCM, 1969 (Rev.), are omitted here as unnecessary.

The second paragraph in the discussion is based on paragraph

58 c of MCM, 1969 (Rev.) and serves as a reminder of the

A r t i c l e 3 5 r e q u i r e m e n t s . S e e U n i t e d S t a t e s v . P e r g a n d e , 4 9

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 of parties. This subsection is based on paragraph 61 c 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. Failure 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 61 d of MCM, 1969

(Rev.).

(d) Counsel. This subsection, except for subsection (4)(A) and

(D), is based on paragraphs 61 e and f of MCM, 1969 (Rev.). The

qualifications of counsel and matters which disqualify 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 qualification of

counsel are not jurisdictional. 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, 11 M.J. 17 (C.M.A. 1981). See also United States v.

Davis, 3 M.J. 430 (C.M.A. 1977); United States v. Blakey, 1 M.J.

247 (C.M.A. 1976); United States 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 military judge

Introduction. This rule is based on 28 U.S.C. § 455, which is

itself based on Canon III of the ABA Code of Judicial Conduct,

and on paragraph 62 of MCM, 1969 (Rev.).

T h e p r o c e d u r e s p r e s c r i b e d b y 2 8 U . S . C . § 1 4 4 w e r e n o t

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. § 455 for disqualification for prejudice or bias.

Instead, 28 U.S.C. § 144 provides a procedure mechanism by

which the disqualification determination may be made. United

States v. Sibla, 624 F.2d 864 (9th Cir. 1980); see also Parrish v.

Board of Commissioners of Alabama 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.

A21-51

ANALYSIS App. 21, R.C.M. 902
(a) In general. This subsection is, except for changes in terminology, identical to 28 U.S.C. § 455(a). See also paragraph 62 f(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 ) S p e c i f i c g r o u n d s . T h e s t e m a n d s u b s e c t i o n ( 1 ) a r e , w i t h

changes in terminology, identical to the stem and subsection (1)

of 28 U.S.C. § 455(b). See also paragraph 62 f(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. United States, 581 F.2d 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.

8 4 6 ( A . C . M . R . 1 9 7 6 ) ; U n i t e d S t a t e s v . S t e w a r t , 2 M . J . 4 2 3

(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 62 f(5), (6), and (11) of

MCM, 1969 (Rev.). See United States v. Goodman, 3 M.J. 1

(C.M.A. 1977). These grounds are analogous to the disqualifying

activities in 28 U.S.C. § 455(b)(2).

Subsection (3) is based on paragraphs 62 f(3), (4), (9), (10),

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 62 f(1) and

(2) and 62 g of MCM, 1969 (Rev). The matters in 28 U.S.C.

§ 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. § 455(b)(5),

with the added clarification that the interest in subsection (C) may

be financial or otherwise.

The discussion is based on 28 U.S.C. § 455(c).

(c) Definitions. Subsections (1) and (2) are, with changes in terminology, identical to 28 U.S.C. § 455(d)(1) and (2). Subsection

(3) has been added to clarify that the president of a special courtmartial without a military judge is treated as any other member

for purposes of qualifications and challenges. See R.C.M. 912.

Subsection (3) of 28 U.S.C. § 455(d) is unnecessary.

(d) Procedure. This section including the discussion is based on

Article 41 and paragraph 62 d, g, and h of MCM, 1969 (Rev.).

(e) Waiver. This section is, with changes in terminology, identical to 28 U.S.C. § 455(e).

Rule 903 Accused’s elections on composition of

court-martial

(a) Time of elections. This subsection is based on Articles 16, 18,

19, and 25. It is similar to paragraphs 53 d(2)(c) and 61 g and h

of MCM, 1969 (Rev.) insofar as it concerns the timing of requests for enlisted members of 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 of election. 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 53 d(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. United States, 457 F.2d 255

(7th Cir.), cert. denied, 409 U.S. 858 (1972); United States v.

Mitchell, 427 F.2d 1280 (3d Cir. 1970); United States v. Straite,

425 F.2d 594 (D.C. Cir. 1970); United States v. Hunt, 413 F.2d

983 (4th Cir. 1969); but see United States v. Scott, 583 F.2d 362

(7th Cir. 1978) (establishing requirement for personal inquiry into

j u r y w a i v e r i n S e v e n t h C i r c u i t ) . S e e g e n e r a l l y 8 A J . M o o r e ,

Moore’s Federal Practice Para. 23.03[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 United States v. Morris, supra at 324, 49 C.M.R.

at 658. The discussion is based on United States v. Butler, 14

M . J . 7 2 ( C . M . A . 1 9 8 2 ) ; U n i t e d S t a t e s v . W a r d , 3 M . J . 3 6 5

(C.M.A. 1977); United States v. Bryant, supra.

1 9 8 6 A m e n d m e n t : S u b s e c t i o n ( 3 ) w a s a m e n d e d t o r e f l e c t

clearly that requests for trial by military judge alone need not be

in writing.

(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 39 e

and on paragraph 53 d (2)(b) of MCM, 1969 (Rev.), and current

practice.

(e) Untimely requests. This subsection is based on Articles 16

A21-52

App. 21, R.C.M. 902(a) APPENDIX 21
and 25, and United States v. Jeanbaptiste, 5 M.J. 374 (C.M.A.

1 9 7 8 ) ; U n i t e d S t a t e s v . T h o r p e , 5 M . J . 1 8 6 ( C . M . A . 1 9 7 8 ) ;

United States v. Wright, 5 M.J. 106 (C.M.A. 1978); United States

v. Bryant, supra. See also United States v. Holmen, 586 F.2d 322

(4th Cir. 1978).

D e s p i t e d i c t a i n U n i t e d S t a t e s v . B r y a n t , s u p r a a t 3 2 8 , 4 9

C.M.R. at 662 n. 2, that withdrawal must be in writing, the rule

prescribes no format for withdrawal. Cf. Article 16(1)(B), as

amended, see Military Justice Act of 1983, Pub. L. No. 98–209,

§ 3(a), 97 Stat. 1393 (1983).

1987 Amendment: Subsections (b)(1), (c)(1) and (c)(3) were

amended to reflect an amendment to Article 25(c)(1) UCMJ, in

the “Military Justice Amendments of 1986,” tit. VIII, § 803, National Defense Authorization Act for fiscal year 1987, Pub. L. No.

99–661, 100 Stat. 3905 (1986). See Analysis R.C.M. 503.

Rule 904 Arraignment

This rule is based on Fed. R. Crim. P. 10 and paragraph 65 a

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) Definitions and form. The first sentence of this subsection is

taken from the first sentence of paragraph 66 b 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 67 c 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 67 c and the

fourth sentence of paragraph 69 a of MCM, 1969 (Rev.). The last

sentence in this subsection is based on the third sentence of

paragraph 67 c 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), affd, 417 F.2d 629 (5th Cir.

1969); cert. denied, 397 U.S. 962 (1970). The last sentence in

Fed. R. Crim. P. 47, allowing a motion 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 Of

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 67 b of MCM, 1969

( R e v . ) . S u b s e c t i o n ( 3 ) i s c o n s i s t e n t w i t h M i l . R . E v i d .

304(d)(2)(A); 311(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 46 d and 48 b(4) of MCM,

1969 (Rev.) andUnited States v. Redding, 11 M.J. 100 (C.M.A.

1981).

(c) Burden of proof. This subsection is based on paragraphs 57

g(1) and 67 e of MCM, 1969 (Rev.). The assignment of the

burden of persuasion to the moving party is a minor change from

the language in paragraph 67 e 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

U n i t e d S t a t e s v . G r a h a m , 2 2 U . S . C . M . A . 7 5 , 4 6 C . M . R . 7 5

(1972). The exceptions to this general rule in subsection (B) are

based on paragraphs 68 b (1), 68 c, and 215 e of MCM, 1969

(Rev.). See also United States v. McCarthy, 2 M.J. 26, 28 n. 1

(C.M.A. 1976); United States v. Graham, supra; United States v.

Garcia, 5 U.S.C.M.A. 88, 17 C.M.R. 88 (1954). The Federal

Rules of Criminal Procedure 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

c o u r t s - m a r t i a l , a r r a i g n m e n t u s u a l l y o c c u r s o n l y a s h o r t t i m e

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. Crim.

P. 12(e). It is consistent with the first sentence in paragraph 67 e

of MCM, 1969 (Rev.). The admonition in the second sentence of

that paragraph has been deleted as unnecessary. The discussion is

based on the third paragraph of paragraph 67 f of MCM, 1969

(Rev.).

1991 Amendment: The discussion was amended to reflect the

change to R.C.M. 908(b)(4).

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

sentences in the subsection are taken from Fed. R. Crim. P. 12(f)

and are consistent with paragraph 67 b of MCM, 1969 (Rev.).

The third sentence is based on paragraph 67 a 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. § 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 defense if not raised during the trial

itself.” 8A J. Moore, Moore’s Federal Practice Para. 12.03[1]

(1982 rev. ed.). “Pendency of the proceedings” has been held to

include the appellate process. See United States v. Thomas, 444

F.2d 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 of jurisdiction over the offense or

A21-53

ANALYSIS App. 21, R.C.M. 905(e)
failure to charge an offense. There is no reason why other motions should not be waived if not raised at trial. Moore’s, supra at

Para. 12.03[1]; accord C. Wright, Federal Practice and Procedure §193 (1969). See also United States 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 United

States v. Troxell, 12 U.S.C.M.A. 6, 30 C.M.R. 6 (1960) (statute of

l i m i t a t i o n s m a y b e w a i v e d ) ; U n i t e d S t a t e s v . S c h i l l i n g , 7

U.S.C.M.A. 482, 22 C.M.R. 272 (1957) (former jeopardy may be

waived). Contra United States v. Johnson, 2 M.J. 541 (A.C.M.R.

1976).

1990 Amendment: Subsection (e) was amended to clarify that

“requests” and “objections” include “motions”.

(f) Reconsideration. This subsection is new and makes clear that

the military judge may reconsider rulings except as noted. The

amendment of Article 62 ( see Military Justice Act of 1983, Pub.

L. No. 98–209, § 5(c), 97 Stat. 1393 (1983)), which deleted the

requirement for reconsideration when directed by the convening

authority’ does not preclude this. See S. Rep. No. 53, 98th Cong.,

1st Sess. 24 (1983).

1994 Amendment: The amendment to R.C.M. 905(f) clarifies

that the military judge has the authority to take remedial action to

correct any errors that have prejudiced the rights of an accused.

United States v. Griffith, 27 M.J. 42, 47 (C.M.A. 1988). Such

remedial action may be taken at a pre-trial session, during trial, or

at a post-trial Article 39(a) session. See also United States v.

Scaff, 29 M.J. 60, 65-66 (C.M.A. 1989). The amendment, consistent with R.C.M. 1102(d), clarifies that post-trial reconsideration

is permitted until the record of trial is authenticated.

The amendment to the Discussion clarifies that the amendment

to subsection (f) does not change the standard to be used to

determine the legal sufficiency of evidence. R.C.M. 917(d); see

Griffith, supra; see also Scaff, supra.

(g) Effect of final 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

S t a t e s , 2 4 2 U . S . 8 5 ( 1 9 1 6 ) ; U n i t e d S t a t e s v . M a r k s , 2 1

U.S.C.M.A. 281, 45 C.M.R. 55 (1972); Restatement of Judgements, Chapter 3 (1942). See also Commissioner of Internal Revenue v. Sunnen, 333 U.S. 591 (1948); United States v. Moser, 266

U.S. 236 (1924); United States v. Washington, 7 M.J. 78 (C.M.A.

1979); United States v. Hart, 19 U.S.C.M.A. 438, 42 C.M.R. 40

(1970); United States v. Smith, 4 U.S.C.M.A. 369, 15 C.M.R. 369

(1954).

Subsection (g) differs from paragraph 71 b in two significant

respects. 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. Res t a t e m e n t o f J u d g m e n t s , C h a p t e r 3 I n t r o d u c t o r y N o t e a t 1 6 0

( 1 9 4 2 ) . B u t s e e 1 B J . M o o r e , M o o r e ’ s F e d e r a l P r a c t i c e

Para. 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 (see paragraph 72 b of MCM (Army), 1949; paragraph 71 b of MCM, 1951, paragraph 71 b 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,

Para. 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 of Judgments, supra, §§ 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 United

States v. Smith, supra. When paragraph 71 b 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

w e r e a d d r e s s e d . S e e A n a l y s i s o f C o n t e n t s o f t h e M a n u a l f o r

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)

(Quinn, C.J., joined by Ferguson, J. concurring in the result).

The discussion is based on the sources indicated above. See

also Restatement of Judgments, supra § 49; United States v. Guzman, 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.

(j) Application to convening authority. This subsection is taken

from paragraph 66 b of MCM, 1969 (Rev.) although certain

e x c e p t i o n s p r o v i d e d e l s e w h e r e i n t h e s e r u l e s ( e . g . , R . C . M .

906(b)(1)) 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 military 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 69 a 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 69 a 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

A21-54

App. 21, R.C.M. 905(e) APPENDIX 21
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 certain 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 (1) and the accompanying discussion are based on

Article 40 and paragraphs 58 b and c of MCM, 1969 (Rev.). The

rule provides that only a military judge may grant a continuance.

P a r a g r a p h 5 8 a o f M C M , 1 9 6 9 ( R e v . ) w h i c h p r o v i d e d f o r

“postponement” has been deleted. Reposing power to postpone

proceedings in the convening authority is inconsistent with the

authority of the military judge to schedule proceedings and control the docket. See generally United States v. Wolzok, 1 M.J. 125

(C.M.A. 1975). To the extent that paragraph 58 a 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 48 b(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 69 c of MCM, 1969

(Rev.). See also Articles 32(d) and 34; United State v. Johnson, 7

M . J . 3 9 6 ( C . M . A . 1 9 7 9 ) ; U n i t e d S t a t e s v . D o n a l d s o n , 2 3

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 69 b of MCM, 1969

(Rev.). See also Article 30(a); paragraphs 29e and 33 d 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 28 b

of MCM, 1969 (Rev.); United States v. Collins, 16 U.S.C.M.A.

1 6 7 , 3 6 C . M . R . 3 2 3 ( 1 9 6 6 ) ; U n i t e d S t a t e s v . M e a n s , 1 2

U.S.C.M.A. 290, 30 C.M.R. 290 (1961); United States v. Parker,

3 U . S . C . M . A . 5 4 1 , 1 3 C . M . R . 9 7 ( 1 9 5 3 ) ; U n i t e d S t a t e s 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 United States 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. Crim. P. 7(f). Although not

expressly provided for in the previous Manual, bills of particulars

have been recognized in military practice. See United States v.

Alef, 3 M.J. 414 (C.M.A. 1977); United States 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.), aff’d, 22 U.S.C.M.A 534, 48

C.M.R. 19 (1973); James, Pleadings and Practice under United

States v. Alef, 20 A.F.L. Rev. 22 (1978); Dunn, Military Pleadings, 17 A.F.L. Rev. 17 (Fall, 1975). The discussion is based on

United States V. Mannino, 480 F. Supp. 1182, 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); United States 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 United States 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 75 e and 115 a of MCM,

1969 (Rev.). See also Fed. R. Crim. P. 12(b)(4); United States v.

Killebrew, 9 M.J. 154 (C.M.A. 1980); United States 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. 305(j).

Subsection (9) is based on paragraph 69 d 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 69 d 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 courtmartial. 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 (11) is based generally on paragraph 69 e 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. II, sec. 2, cl. 3; amend VI) does not apply in the

m i l i t a r y . C h e n o w e t h v . V a n A r s d a l l , 2 2 U . S . C . M . A . 1 8 3 , 4 6

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 76 a(5) of MCM, 1969

(Rev.). See also Analysis, R.C.M. 907(b)(3)(B) and Analysis,

R.C.M. 1003(c)(1)(C).

Subsection (13) is new to the Manual, although motions in

limine have been recognized previously. See Mil. R. Evid. 104(c);

United States v. Cofield, 11 M.J. 422 (C.M.A. 1981); Siano,

Motions in Limine, The Army Lawyer, 17 (Jan. 1976).

1994 Amendment. The Discussion to subparagraph (13) was

amended to reflect the holding in United States v. Sutton, 31 M.J.

11 (C.M.A. 1990). The Court of Military Appeals in Sutton held

that its decision inUnited States v. Cofield, 11 M.J. 422 (C.M.A.

1981), should not be relied upon to determine reviewability of

p r e l i m i n a r y r u l i n g s i n c o u r t s - m a r t i a l . I n s t e a d , r e v i e w a b i l i t y o f

A21-55

ANALYSIS App. 21, R.C.M. 906(b)
preliminary rulings will be controlled byLuce v. United States,

469 U.S. 38 (1984).

Subsection (14) is based on paragraph 69 f of MCM, 1969

(Rev.). See Analysis, R.C.M. 706, 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 the convening authority already has authority to

w i t h d r a w a n d t o d i s m i s s c h a r g e s . S e e R . C . M . 3 0 6 ( c ) ( 1 ) ;

401(c)(1); 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 (subsection (2) and (3)) motions to

dismiss (see R.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).

Subsection (1) is based on paragraph 68 b of MCM, 1969

(Rev.). See also Fed. R. Crim. P. 12(b)(2) and 34.

Subsection (2)(A) is based on paragraph 68 i of MCM, 1969

(Rev.). See also 18 U.S.C. § 3162(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 paragraph 68 c of MCM, 1969 (Rev.); United States 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 68 c and 215 d of MCM, 1969 (Rev.). See also

U n i t e d S t a t e s v . A r b i c , 1 6 U . S . C . M . A . 2 9 2 , 3 6 C . M . R . 4 4 8

(1966); United States v. Spain, 10 U.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).

1987 Amendment: The discussion under subsection (b)(2)(B)

was revised to reflect several amendments to Article 43, UCMJ,

contained in the “Military Justice Amendments of 1986,” tit. VIII,

§ 805, National Defense Authorization Act for fiscal year 1987,

Pub. L. No. 99–661, 100 Stat. 3905, (1986). These amendments

were derived, in part, from Chapter 213 of Title 18, United States

Code.

1990 Amendment: The fourth paragraph of the discussion under

subsection (b)(2)(B) was amended to reflect the holding in United

States v. Tunnell, 23 M.J. 110 (C.M.A. 1986).

Subsection (2)(C) is based on paragraph 215 b 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 constitutional standard for nonjury trial (Crist

v. Bretz, supra at 37 n. 15; Serfass v. United States, 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 United States v. McCarthy, 2 M.J. 26, 29 n.3 (C.M.A. 1976).

Members are an essential jurisdictional element of a court-martial.

United States 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 and Precedents

54–55, 173 (2d. ed., 1920 reprint). Assembling the court-martial

has not been the last step before trial on the merits. See paragraph

61 j and appendix 8 b of MCM, 1969 (Rev.); paragraph 61 h and

i and appendix 8 a 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

court-martial without a military judge, it would negate the utility

of Article 29, which provides that the assembly of the courtmartial 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 that 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 tradit i o n a l j u s t i f i c a t i o n f o r a m i s t r i a l . I d . S e e U n i t e d S t a t e s v .

Richardson, supra. Cf. 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)(ii) 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. United

States, 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 not referred 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

A21-56

App. 21, R.C.M. 906(b) APPENDIX 21
to a court-martial. Cf. Lee v. United States, 432 U.S. 23 (1977);

Illinois v. Somerville, 410 U.S. 458 (1973). See also United States

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 courtmartial 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 rule 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 81 d of MCM, 1969

(Rev.) and the automatic review structure in courts-martial as

precluding retrial on an offense of which the accused had been

acquitted. (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 courtmartial had jurisdiction when it began, but “lost” it when the

r e q u e s t f o r m i l i t a r y j u d g e a l o n e w a s n o t r e d u c e d t o w r i t i n g .

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 third judge held retrial was

barred on non constitutional grounds.

Subsection (2)(D) is based on paragraph 68 e f, g , and h of

MCM, 1969 (Rev.). As to subsection (iv) see United States v.

Williams. 10 U.S.C.M.A. 615, 28 C.M.R. 181 (1959).

Subsection (3) sets out grounds which, unlike those in subsection (1) and (2), do not require dismissal when they exist. The

military judge has discretion whether to dismiss or to apply another remedy (such as a continuance in the case of subsection

( 3 ) ( A ) , o r s e n t e n c i n g i n s t r u c t i o n s i n t h e c a s e o f s u b s e c t i o n

(3)(B)). But see United States v. Sturdivant, 13 M.J. 323 (C.M.A.

1982). See also United States v. Baker, 14 M.J. 361 (C.M.A.

1983).

Subsection (3)(A) and the discussion are based on paragraph 69

b(3) of MCM, 1969 (Rev.).

Subsection (3)(B) is based on paragraph 26 b, 74 b(4), and 76

a(5) of MCM, 1969 (Rev.); United States v. Gibson, 11 M.J. 435

(C.M.A. 1981); United States v. Stegall, 6 M.J. 176 (C.M.A.

1979); United States v. Williams, 18 U.S.C.M.A. 78, 39 C.M.R.

78 (1968).

Rule 908 Appeal by the United States

Introduction. This rule is based on Article 62, as amended,

Military Justice Act of 1983, Pub. L. No. 98–209, § 5(c)(1), 97

Stat 1393 (1983). See also S. Rep. No. 53, 98th Cong., 1st. Sess.

23 (1983); 18 U.S.C. § 3731. Article 62 now provides the Government with a means to seek review of certain rulings or orders

of the military judge. The need for such procedure has been

recognized previously. See United States v. Rowel, 1 M.J. 289,

291 (C.M.A. 1976) (Fletcher, C.J., concurring). See also Dettinger v. United States, 7 M.J. 216 (C.M.A. 1978). It is not

expected that every ruling or order which might be appealed by

the Government will be appealed. Frequent appeals by the Government would disrupt trial dockets and could interfere with military operations and other activities, and would impose a heavy

burden on appellate courts and counsel. Therefore this rule includes procedures to ensure that the Government’s right to appeal

is exercised carefully. See S. Rep. No. 53 supra at 23.

(a) In general. This subsection repeats the first sentence of Article 62(a).

1998 Amendment: The change to R.C.M. 908(a) resulted from

the amendment to Article 62, UCMJ, in section 1141, National

Defense Authorization Act for Fiscal Year 1996, Pub. L. No.

104–106, 110 Stat. 186, 466–67 (1996). It permits interlocutory

appeal of rulings disclosing classified information.

(b) Procedure. Subsection (1) provides the trial counsel with a

mechanism to ensure that further proceedings do not make an

issue moot before the Government can file notice of appeal.

The first sentence in subsection (2) is based on the second

sentence of Article 62(a). The second sentence in subsection(2)

authorizes an initial measure to ensure that a decision to file

notice of appeal is carefully considered. The Secretary concerned

may require trial counsel to secure authorization from another

person, such as the convening authority, the convening authority’s

d e s i g n e e , o r t h e s t a f f j u d g e a d v o c a t e . B e c a u s e t h e d e c i s i o n

whether to file the notice must be made within 72 hours, it

probably will not be practicable in many cases to secure authorization from a more distant authority (see subsection (b)(5) and

Analysis, below), but nothing in this subsection prohibits requiring this authorization to be secured from, for example, the chief

of appellate Government counsel or a similar official in the office

of the Judge Advocate General. Note that the Secretary concerned

is not required to require authorization by anyone before notice of

appeal is filed. The provision is intended solely for the benefit of

the Government, to avoid disrupting trial dockets and the consequences this has on command activities, and to prevent overburdening appellate courts and counsel. The accused has no right to

have the Government forego an appeal which it might take. But

see R.C.M. 707(c)(1)(D). The authorization may be oral and no

reason need be given.

Subsection (3) is based on the second and third sentences of

Article 62(a). The second sentence is added to permit decisions

by defense counsel and the military judge on how to proceed as

to any unaffected charges and specifications under subsection (4).

Subsection (4) is necessary because, unlike in Federal civilian

trials (see Fed. R. Crim. P. 8(a)), unrelated offenses may be and

often are tried together in courts-martial. Consequently, a ruling

or order which is appealable by the Government may affect only

some charges and specifications. As to those offenses, the pend e n c y o f a n a p p e a l u n d e r t h i s r u l e n e c e s s a r i l y h a l t s f u r t h e r

proceedings. It does not necessarily have the same effect on other

charges and specifications unaffected by the appeal. Subsection

(4) provides several alternatives to halting the court-martial enA21-57

ANALYSIS App. 21, R.C.M. 908(b)
tirely, even as to charges and specifications unaffected by the

appeal. Subsection (4)(A) permits motions to be litigated as to

unaffected charges and specifications, regardless of the stage of

the proceedings. Subsection (4)(B) permits unaffected charges

and specifications to be served, but only before trial on the merits

has begun, that is, before jeopardy has attached. See R.C.M.

907(b)(2)(C) and Analysis. Once jeopardy has attached, the accused is entitled to have all the charges and specification resolved

by the same court-martial. Cf. Crist v. Bretz, 437 U.S. 28 (1978).

It is expected that in most cases, rulings or orders subject to

appeal by the Government will be made before trial on the merits

has begun. See R.C.M. 905(b) and (e); Mil. R. Evid. 304(d),

311(d), and 321(c). Subsection (4)(C) provides a mechanism to

alleviate the adverse effect an appeal by the Government may

have on unaffected charges and specifications. Thus witnesses

who are present but whom it may be difficult and expensive to

recall at a later time may, at the request of the proponent party

and in the discretion of the military judge, be called to testify

during the pendency of any appeal. Such witnesses may be called

out of order. See also R.C.M. 801(a); 914; Mil. R. Evid. 611.

Note, however, that a party cannot be compelled to call such

witnesses or present evidence until the appeal is resolved. This is

because a party’s tactics may be affected by the resolution of the

appeal. Note also that if similar problems arise as to witnesses

whose testimony relates to an affected specification, a deposition

could be taken, but it could not be used at any later proceedings

unless the witness was unavailable or the parties did not object.

Subsection (5) ensures that a record will be prepared promptly.

Because the appeal ordinarily will involve only specific issues,

the record need be complete only as to relevant matters. Defense

counsel will ordinarily have the opportunity to object to any

omissions. See R.C.M. 1103(i)(1)(B). Furthermore, the military

judge and the Court of Criminal Appeals may direct preparation

of additional portions of the record.

Subsection (6) provides for the matter to be forwarded promptly. No specific time limit is established, but ordinarily the matters

specified should be forwarded within one working day. Note that

the record need not be forwarded at this point as that might delay

disposition. If the record is not ready, a summary may be forwarded for preliminary consideration before completion of the

record. An appropriate authority will then decide whether to file

the appeal, in accordance with procedures established by the

Judge Advocate General. See S.Rep. No. 53, supra at 23. This is

an administrative determination; a decision not to file the appeal

has no effect as precedent. Again, no specific time limit is set for

this decision, but it should be made promptly under the circumstances.

Subsection (7) is based on Article 62(b).

Subsection (8) ensures that trial participants are notified in the

event no appeal is filed.

1991 Amendment: Subsection (4) was amended to state explicitly that, upon timely notice of appeal, the legal effect of an

appealable ruling or order is stayed pending appellate resolution.

Although most military practitioners understood this necessary

effect of an appeal under the rule, some civilian practitioners

were confused by the absence of an explicit statement in the rule.

New subsection (9) is based on 18 U.S.C. § 3143(c) governing

the release of an accused pending appeal by the United States of

an order of dismissal of an indictment or information, or an order

suppressing evidence. Since appeals by the United States under

Article 62, U.C.M.J., contemplate a situation in which the accused has not been convicted, a commander’s decision whether to

subject the individual to continued confinement after an appeal

has been taken should be based on the same considerations which

would authorize the imposition of pretrial confinement.

(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. § 1259. Note that if the decision of the Court of Criminal

Appeals 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 Appeals for the Armed Forces 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.

1998 Amendment: The change to R.C.M. 908(a) resulted from

the amendment to Article 62, UCMJ, in section 1141, National

Defense Authorization Act for Fiscal Year 1996, Pub. L. No. 104-

106, 110 Stat. 186, 466-67 (1996). It permits interlocutory appeal

of rulings disclosing classified information.

Rule 909 Capacity of the accused to stand trial by

court-martial

This rule is based on paragraphs 120 a 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. § 4244. The standard of proof

has been changed from beyond reasonable doubt to a preponderance of the evidence. This is consistent with the holdings of those

federal courts which have addressed the issue. United States 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).

February 1986 Amendment: Following passage of the Insanity

Defense Reform Act, ch. IV, Pub.L. No. 98–473, 98 Stat. 2058

(1984), the rule was changed pursuant to Article 36, to conform

to 18 U.S.C. § 4241(d).

1998 Amendment: The rule was changed to provide for the hospitalization of an incompetent accused after the enactment of Artic l e 7 6 b , U C M J , i n s e c t i o n 1 1 3 3 o f t h e N a t i o n D e f e n s e

Authorization act for Fiscal Year 1996, Pub. L. No. 104–106, 110

Stat. 464–66 (1996).

Rule 910 Pleas

Introduction. This rule is based generally on Article 45;

paragraph 70 of MCM, 1969 (Rev.); and on Fed. R. Crim. P. 11.

See also H.Rep. No. 491, 81st Cong., 1st Sess. 23–24 (1949);

S.Rep. No. 486, 81st Cong., 1st Sess. 20–21 (1949). The format

generally follows that of Fed. R. Crim. P. 11.

A21-58

App. 21, R.C.M. 908(b) APPENDIX 21
(a) In general. Subsection (1) is based on Article 45 and paragraph 70 a of MCM, 1969 (Rev.). The first sentence parallels the

first sentence in Fed. R. Crim. P. 11(a)(1), except that no provision is made for pleas of nolo contendere. Such a plea is unnecess a r y i n c o u r t s - m a r t i a l . H e a r i n g s o n H . R . 4 0 8 0 B e f o r e A

Subcomm, of the Comm. on Armed Services of the House of

Representatives. 81st Cong., 1st Sess. 1054 (1949). See 8A.J.

Moore, Moore’s Federal Practice Para. 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(f) which

does not require that a factual basis be established in order to

accept a plea of nolo contendere; see also Moore’s supra at

Para. 11.07(1) is inconsistent with Article 45. The second sentence on Fed. R. Crim. P. 11(a) is covered under subsection (b) of

this rule insofar as it pertains to military practice.

1993 Amendment: The amendment to R.C.M. 910(a)(1) removed the necessity of pleading guilty to a lesser included off e n s e b y e x c e p t i o n s a n d s u b s t i t u t i o n s . T h i s p a r a l l e l s t h e

amendment to R.C.M. 918(a)(1), allowing a finding of guilty to a

named lesser included offense without mandating the use of exceptions and substitutions, made to correspond more closely to

verdict practice in federal district courts. See Analysis comments

for R.C.M. 918(a)(1).

Subsection (2) is based on Fed. R. Crim. P. 11(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 as to whether an accused could

preserve some issues for appellate review despite a plea of guilty.

See e.g., United States v. Schaffer, 12 M.J. 425 (C.M.A. 1982);

United States v. Mallett, 14 M.J. 631 (A.C.M.R. 1982). Now such

issues may be preserved, but only in accordance with this subsection. See also subsection (j) 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 permit or consent to a conditional guilty plea. Because the

purpose of a conditional guilty plea is to conserve judicial and

government resources, this discretion is not subject to challenge

by the accused. The rationale for this discretion is further explained in Fed. R. Crim. P. 11 advisory committee note:

(b) Refusal to plead, irregular plea. The subsection is based on

Article 45(a) and paragraph 70 a of MCM, 1969 (Rev.). It parall e l s t h e s e c o n d s e n t e n c e o f F e d . R . C r i m . P . 1 1 ( a ) , b u t i s

broadened to conform to Article 45(a). The portion of Fed. R.

Crim. P. 11(a) concerning corporate defendants does not apply in

courts-martial. The discussion is based on the last sentence of the

first paragraph of paragraph 70 a of MCM, 1969 (Rev.).

(c) Advice of accused. This subsection is taken from Fed. R.

Crim. P. 11(c) and is consistent with paragraph 70 b(2) of MCM,

1969 (Rev.). See also H.R. Rep. No. 491, supra at 23–24; S.Rep.

No. 486, supra at 20–21; Boykin v. Alabama, 395 U.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 (1), 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 United

States 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; United States v. Grecco, 5 M.J. 1018

(C.M.A. 1976); United States v. Kilgore, 21 U.S.C.M.A. 35, 44

C.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. 11(c) has been modified

because of the absence of a right to counsel in summary courtsmartial. 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 70 b(1) of MCM, 1969

(Rev.) and H.Rep. 491, supra at 23–24, S.Rep. 486, supra at

20–21.

Subsections (3), (4), and (5) have been taken without substantial change from Fed. R. Crim. P. 11(c). Subsections (3) and (4)

are consistent with the last paragraph and paragraph 70 b (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 the plea is voluntary. This subsection is based

on Fed. R. Crim. P. 11(d) and is consistent with paragraph 70

b(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 of plea. This subsection is based on

Fed. R. Crim. P. 11(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 70 b(3) of MCM,

1969 (Rev.). See also H.R. Rep. 491, supra at 23–24; S.Rep. 486,

supra at 20–21; 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 inq u i r y i n F e d . R . C r i m . P . 1 1 ( f ) i s , i n p r a c t i c e , m a n d a t o r y ,

although the means for establishing it are broader. See J. Moore,

supra at Para.11.02(2). See also ABA Standards, Pleas of Guilty

§ 1 . 6 ( 1 9 7 8 ) . T h e l a s t s e n t e n c e r e q u i r i n g t h a t t h e a c c u s e d b e

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. Jemmings, 1 M.J. 414 (C.M.A. 1976); United States v.

A21-59

ANALYSIS App. 21, R.C.M. 910(e)
Kilgore, supra; United States v. Care, supra. See also United

States v. Crouch, 11 M.J. 128 (C.M.A. 1981).

The second paragraph in the discussion is new and is based on

United States v. Moglia, 3 M.J. 216 (C.M.A. 1977); United States

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. 11(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 a improvement plea. See United States v.

Passini, supra; cf. 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. See Santobello v. New York, 404 U.S. 257 (1971); United States v. Kraffa, 11 M.J. 453 (C.M.A. 1981); United States v. Cifuentes, 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 , 11 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 70 b 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 member’s attention

the fact that the accused has pleaded guilty to some offenses

before trial on the merits of others. See United States v. Nixon, 15

M.J. 1028 (A.C.M.R. 1983). See also United States v. Wahnon, 1

M.J. 144 (C.M.A. 1975).

1 9 9 0 A m e n d m e n t : T h e d i s c u s s i o n t o t h e s u b s e c t i o n w a s

changed in light of the decision in United States v. Rivera, 23

M.J. 89 (C.M.A.), cert. denied, 479 U.S. 1091 (1986).

(h) Later action. Subsection (1) is based on the fourth and fifth

sentences of the penultimate paragraph of paragraph 70 b 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, 16

M.J. 984 (A.C.M.R. 1983); United States v. Hayes, 9 M.J. 825

(N.C.MR. 1980).

Subsection (2) is based on the first two sentences in the penultimate paragraph of paragraph 70 b 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);

United States v. Bradley, 7 M.J. 332 (C.M.A. 1979). Subsection

(3) is based on United States v. Green, supra. See also United

States v. Kraffa, supra.

( i ) R e c o r d o f p r o c e e d i n g s . T h i s s u b s e c t i o n i s b a s e d o n s u b -

paragraph (4) of the first paragraph of paragraph 70 b 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 of Guilty supra

at §1.7. This subsection parallels Fed. R. Crim. P. 11(g), except

insofar as the former allows for nonverbatim records in inferior

courts-martial. See Article 54(b).

(j) Waiver. This subsection replaces the third paragraph in paragraph 70 a 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, 3

M.J. 414 (C.M.A. 1977). This subsection is based on Menna v.

New York, 423 U.S. 61 (1975); Tollett v. Henderson, 411 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. Dusenberry, 23 U.S.C.M.A. 287,

49 C.M.R. 536 (1975); United States 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-martial

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 mark clearly for all participants the

point at which the opportunities to elect freely 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 61 j of MCM,

1969 (Rev.). It is normally appropriate to assemble the courtm a r t i a l a t t h e s e p o i n t s t o p r o t e c t t h e p a r t i e s f r o m u n t i m e l y

changes in membership or composition. In some circumstances

flexibility is desirable, as when the military judge approves a

request 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 53 d(2)(c)

and 61 b of MCM, 1969 (Rev.).

Rule 912 Challenge of selection of members;

examination and challenges of members

(a) Pretrial matters. Subsection (1) recognizes the usefulness of

questionnaires to expedite voir dire. Questionnaires are already

used in some military jurisdictions. This procedure is analogous

to the use of juror qualification forms under 28 U.S.C. § 1864(a).

See also ABA Standards, Trial by Jury § 2.1(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(b) (1979); The Defense Function § 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

A21-60

App. 21, R.C.M. 910(e) APPENDIX 21
v. Greene, 20 U.S.C.M.A. 232, 43 C.M.R. 72 (1970); United

S t a t e s v . H e r n d o n , 5 0 C . M . R . 1 6 6 ( A . C . M . R . 1 9 7 5 ) ; U n i t e d

States v. Perry, 47 C.M.R. 89 (A.C.M.R. 1973). The purpose of

this procedure is analogous to that of 18 U.S.C. §§ 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 of selection of members. This subsection is based

on 28 U.S.C. § 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); United States v. Young, 49 C.M.R. 133

(A.F.C.M.R. 1974). Except for matters affecting the composition

of the court-martial ( see Article 16 and 25(a), (b) and (c)),

i m p r o p e r s e l e c t i o n o f m e m b e r s i s n o t a j u r i s d i c t i o n a l d e f e c t .

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 of grounds for challenge. This subsection is based on

the second sentence of paragraph 62 b of MCM, 1969 (Rev.).

(d) Examination of members. This subsection is based on Fed. R.

Crim. P. 24(a). Paragraph 62 b and h of MCM, 1969 (Rev.)

discussed questioning members. Paragraph 62 b provided that “...

the trial or defense counsel may question the court, or individual

m e m b e r s t h e r e o f . ” U n i t e d S t a t e s v . S l u b o w s k i , 7 M . J . 4 6 1

(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 a right 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 62b of MCM,

1969 (Rev.) and encourages permitting counsel to question personally the members. See United States v. Slubowski, supra at

463 n.4; ABA Standards, Trial by Jury § 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 F.2d 1295 (9th Cir. 1979);

United States v. Barnes, 604 F.2d 121 (2d Cir. 1979); United

States v. Slubowski, supra; United States v. Parker, supra. The

second paragraph of the discussion is based on ABA Standards,

The Prosecution Function § 3-5.3(c). (1979); The Defense Function § 4-7.2(c) (1979).

(e) Evidence. This subsection is based on the first sentence of

paragraph 62 h(2) of MCM, 1969 (Rev.).

( f ) C h a l l e n g e s a n d r e m o v a l f o r c a u s e . S e e g e n e r a l l y A r t i c l e

41(a). Subsection (1) is based on Article 25 and paragraph 62 f of

MCM, 1969 (Rev.). The examples in the last paragraph of paragraph 62 f have been placed in the discussion.

Subsection (2) is based on paragraphs 62 d and h(1) of MCM,

1969 (Rev.).

Subsection (3) is based on Article 41(a) and paragraph 62 h 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 62 h(2) of

MCM, 1969 (Rev.) advised that the military judge “should be

liberal in passing on challenges, but need not sustain a challenge

upon the mere assertion of the challenger.” The 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.

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

S t a t e s v . D y c h e , 8 U . S . C . M . A . 4 3 0 , 2 4 C . M . R . 2 4 0 ( 1 9 5 7 ) ;

United States v. Wolfe, 8 U.S.C.M.A. 247, 24 C.M.R. 57 (1957).

Grounds (A) and (B) in subsection (f)(1) may not be waived,

except as noted. See generally H. R. Rep. No. 491, 81st Cong, 1st

Sess. 17-18 (1949); United States v. Newcomb, 5 M.J. 4 (C.M.A.

1978). Membership of enlisted members of the enlisted members

of the accused’s unit has been held not to be jurisdictional, and,

therefore, may be waived. United States v. Wilson, 16 M.J. 678

( A . C . M . R . 1 9 8 3 ) ; U n i t e d S t a t e s v . K i m b a l l , 1 3 M . J . 6 5 9

( N . M . C . M . R . 1 9 8 2 ) ; U n i t e d S t a t e s v . T a g e r t , 1 1 M . J . 6 7 7

( N . M . C . M . R . 1 9 8 1 ) ; U n i t e d S t a t e s v . S c o t t , 2 5 C . M . R . 6 3 6

(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. United States 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. of the House Comm. on Armed

Services, 81st Cong. 1st Sess. 1140, 1150-52 (1949). See also S.

Rep. No. 53, 98th Cong., 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

c o n s i s t e n t w i t h f e d e r a l p r a c t i c e . S e e , e . g . , U n i t e d S t a t e s 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

o f a c h a l l e n g e f o r c a u s e . U n i t e d S t a t e s v . H e n d e r s o n , 1 1

U.S.C.M.A. 556, 29 C.M.R. 372 (1960). Because the right to a

peremptory challenge is independent to 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 preemptory challenge against

any other member. See United States v. Harris, supra; United

States v. Shaffer, 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. Paragraph 62 e of MCM,

A21-61

ANALYSIS App. 21, R.C.M. 912(g)
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.), aff’d, 23 U.S.C.M.A. 534, 48 C.M.R. 19 (1973). But

see United States v. Harris, supra at 294 n. 3 (C.M.A. 1982)

(Everett, C.J., dissenting). Fed. R. Crim. P. 24(b) is inapplicable.

1994 Amendment. The Discussion for R.C.M. 912(g)(1) was

amended to incorporate Batson v. Kentucky, 476 U.S. 79 (1986);

United States v. Curtis, 33 M.J. 101 (C.M.A. 1991), cert. denied,

112 S.Ct. 1177 (1992); United States v. Moore, 28 M.J. 366

(C.M.A. 1989); and United States v. Santiago-Davila, 26 M.J.

380 (C.M.A. 1988).

Subsection (2) is based on United States v. White , 22 C.M.R.

892 (A.B.R. 1956); United States v. Graham, 14 C.M.R. 645

(A.F.B.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 62 d and the last sentence of paragraph 62 h(4) of

MCM, 1969 (Rev.). The last sentence in the discussion is also

based onUnited 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, 51(a), and 52(c) and on paragraph 62

h(3) of MCM, 1969 (Rev.).

(i) Definitions. Subsection (2) is based on paragraph 63 of MCM,

1969 (Rev.). See also United States v. Griffin, 8 M.J. 66 (C.M.A.

1979); United States v. Wilson, 7 U.S.C.M.A. 656, 23 C.M.R. 120

(1957); United States v. Moore, 4 U.S.C.M.A. 675, 16 C.M.R.

249 (1954). The distinction 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.). Cf. United States 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 10-11 of MCM, 1969 (Rev.). See also United States v.

Waggoner, 6 M.J. 77 (C.M.A. 1978).

1990 Amendment: The second sentence to the rule and the

discussion which follows are based on the decision in United

States v. Rivera, 23 M.J. 89 (C.M.A. 1986). See also United

States v. Wahnon, 1 M.J. 144 (C.M.A. 1975).

(b) Opening statement. This subsection is based on the first of

paragraph of paragraph 44 g(2) and the first paragraph of parag r a p h 4 8 i o f M C M , 1 9 6 9 ( R e v . ) . T h e d i s c u s s i o n i s t a k e n

fromABA Standards, The Prosecution Function § 3-5.5 (1979);

The Defense Function § 4-7.4 (1979).

(c) Presentation of evidence. 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 44 g(2), 48 i, and 54 a of MCM, 1969

(Rev.) and Mil. R. Evid. 611 and 614. The second paragraph of

the discussion is based on paragraphs 54 d and g of MCM, 1969

(Rev.).

Subsection (3) and the discussion are based on paragraph 54 e

of MCM, 1969 (Rev).

S u b s e c t i o n ( 4 ) i s b a s e d o n p a r a g r a p h 5 4 c o f M C M , 1 9 6 9

(Rev.).

Subsection (5) is based on the fourth sentence of the second

paragraph of paragraph 71 a of MCM, 1969 (Rev.) and is consistent with current practice.

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. §

3 5 0 0 , w h i c h h a s l o n g b e e n a p p l i e d i n c o u r t s - m a r t i a l . U n i t e d

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 States 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 demand at trial); United States

v. Calley, 46 C.M.R. 1131 (A.C.M.R.), aff’d, 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 , 11 The Advocate 20 (Jan- Fed 1979); Waldrop, The

Jencks Act, 20 A.F.L. Rev. 93 (1978); Bogart, Jencks Act, 27

JAG J. 427 (1973); West, Significance of the 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 a

d i s c o v e r y r u l e ( U n i t e d S t a t e s v . C i e s i e l s k i , 3 9 C . M . R . 8 3 9

(N.M.C.R. 1968)), and it does not apply to Article 32 hearings

(contra, United States 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. United States v. 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) Motion for production. This subsection is based on Fed. R.

Crim. P. 26.2(a). It has been reworded to clarify what statements

must be produced. “(I)n the possession of the United States,” and

“in the possession of the accused or defense counsel” are subA21-62

App. 21, R.C.M. 912(g) APPENDIX 21
stituted 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. § 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) (statements in possession of commander);

United States v. Boiser, 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); United States v. Brakefield, 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. Crim. P. 26.2(b).

( c ) P r o d u c t i o n o f e x c i s e d s t a t e m e n t . T h i s s u b s e c t i o n i s t a k e n

from Fed. R. Crim. P. 26.2(c). Failure of a judge to make the

required examination on request is error. United States v. White,

37 C.M.R. 791 (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. § 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 of the statement. This subsection is

taken from Fed. R. Crim. P. 26.2(d).

(e) Remedy for failure 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. Cir. 1971); United States v. Ali, and United

States v. Boiser, 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).

(f) Definitions. This subsection is taken from Fed. R. Crim. P.

26.6(f).

I n s u b s e c t i o n ( 1 ) t h e i n c l u s i o n o f s t a t e m e n t s a p p r o v e d o r

adopted by a witness is consistent with 18 U.S.C. § 3500(e)(1).

See United States v. Jarrie and United States v. Kilmon, both

supra.

In subsection (2) the inclusion of substantially verbatim recordi n g s o r t r a n s c r i p t i o n s e x c e e d s s o m e i n t e r p r e t a t i o n s u n d e r 1 8

U.S.C. § 3500. See, e.g., United States v. Matfield, 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 914A Use of remote live testimony of a child

1999 Amendment: This rule allows the military judge to determine what procedure to use when taking testimony under Mil. R.

Evid. 611(d)(3). It states that normally such testimony should be

taken via a two-way closed circuit television system. The rule

further prescribes the procedures to be used if a television system

is employed. The use of two-way closed circuit television, to

some degree, may defeat the purpose of these alternative procedures, which is to avoid trauma to children. In such cases, the

judge has discretion to direct one-way television communication.

The use of one-way closed circuit television was approved by the

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

amendment also gives the accused an election to absent himself

from the courtroom to prevent remote testimony. Such a provision gives the accused a greater role in determining how this

issue will be resolved.

Rule 915 Mistrial

(a) In general. This subsection is based on the second and third

sentences of paragraph 56 e(1) of MCM, 1969 (Rev.). See generally Oregon v. Kennedy, 456 U.S. 667 (1982); Arizona v. Washington, 434 U.S. 497 (1978); Lee v. United States, 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.

4 7 0 ( 1 9 7 1 ) ; U n i t e d S t a t e s v . P e r e z , 2 2 U . S . ( 9 W h e a t ) 5 7 9

( 1 8 2 4 ) ; U n i t e d S t a t e s v . R i c h a r d s o n , 2 1 U . S . C . M . A . 5 4 , 4 4

C.M.R. 108 (1971); 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 56 e(2) of

MCM, 1969 (Rev.). Because consent or lack thereof by 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 of a declaration of mistrial. Subsection (1) is based on

the first sentence of paragraph 56 e(1) of MCM, 1969 (Rev.).

Note that dismissal of charges may have the same effect 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 56

e(3) of MCM, 1969 (Rev). See also Oregon v. Kennedy, supra;

United States v. Scott, 437 U.S. 82 (1978); Arizona v. Washington, United States v. Dinitz, Illinois v. Somerville, and United

States v. Jorn, all supra; Gori v. United States, 367 U.S. 364

(1961); United States v. Richardson, supra. Subsection (2) notes,

as paragraph 56 e 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. Sommerville, 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.

(b) Burden of proof. This subsection is based on the fourth paragraph of paragraph 214 of MCM, 1969 (Rev.). See also paragraph

112 a 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

A21-63

ANALYSIS App. 21, R.C.M. 916(b)
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); United States v.

Walker, 21 U.S.C.M.A. 376, 45 C.M.R.150 (1972); United States

v. Ducksworth, 13 U.S.C.M.A. 515, 33 C.M.R. 47 (1963); United

States 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, supra.

1986 Amendment: The requirement that the accused prove lack

of mental responsibility was added to implement Article 50 a,

which was added to the UCMJ in the “Military Justice Amendments of 1986,” Tit. VIII, § 802, National Defense Authorization

Act for fiscal year 1987, Pub.L. No. 99-661, 100 Stat. 3905

(1986). Article 50a(b) adopted the provisions of 18 U.S.C. 20(b),

created by the Insanity Defense Reform Act, ch. IV, Pub. L. No.

98-473, 98 Stat. 2057 (1984). See generally Jones v. United

States, 463 U.S. 354, 103 S. Ct. 3043, 3051 n.17 (1983); Leland

v. Oregon, 343 U.S. 790, 799 (1952); S.Rep. No. 225, 98th

Cong., 1st Sess. 224-25 (1983), reprinted in 1984 U.S. Code

Cong. & Ad. News 1, 226-27.

1998 Amendment: In enacting section 1113 of the National

Defense Authorization Act for Fiscal Year 1996, Pub. L. No. 104-

106, 110 Stat. 186, 462 (1996), Congress amended Article 120,

UCMJ, to create a mistake of fact defense to a prosecution for

carnal knowledge. The accused must prove by a preponderance of

the evidence that the person with whom he or she had sexual

intercourse was at least 12 years of age, and that the accused

reasonably believed that this person was at least 16 years of age.

The changes to R.C.M. 916(b) and (j) implement this amendment.

2007 Amendment: Changes to this paragraph, deleting “carnal

knowledge”, are based on section 552 of the National Defense

Authorization Act for Fiscal Year 2006, P.L. 109-163, 6 January

2006, which supersedes the previous paragraph 45, Rape and

Carnal Knowledge, in its entirety and replaces paragraph 45 with

Rape, sexual assault and other sexual misconduct.

(c) Justification. This subsection and the discussion are based on

paragraph 216 a of MCM, 1969 (Rev.). See also United States v.

Evans. 17 U.S.C.M.A. 238, 38 C.M.R. 36 (1967); United States v.

Regalado, 13 U.S.C.M.A. 480, 33 C.M.R. 12 (1963); United

States 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 195 b of MCM (1951).

(d) Obedience to orders. This subsection is based on paragraph

2 1 6 d o f M C M , 1 9 6 9 ( R e v . ) ; U n i t e d S t a t e s v . C a l l e y , 2 2

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 216 c of MCM, 1969 (Rev.). The discussion is based

on the second paragraph of paragraph 216 c of MCM 1967

(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. AcostaVergas, 13 U.S.C.M.A. 388, 32 C.M.R. 388 (1962).

Subsection (3) is based on the fourth paragraph of paragraph

216 c 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).

1986 Amendment: References to subsections “(c)(1) or (2)”

was changed to “(e)(1) or (2)” to correct an error in MCM, 1984.

Subsection (4) is based on the third paragraph of paragraph 216

c of MCM, 1969 (Rev.). See also United States v. Yabut, 20

U.S.C.M.A. 393, 43 C.M.R. 233 (1971); United States v. Green,

1 3 U . S . C . M . A . 5 4 5 , 3 3 C . M . R . 7 7 ( 1 9 6 3 ) ; U n i t e d S t a t e s v .

Brown, 13 U.S.C.M.A. 485, 33 C.M.R. 7 (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 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 Law

1018-1022 (2d ed. 1969).

(f) Accident. This subsection and the discussion are based on

paragraph 216 b 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, 24 C.M.R. 22 (1963); United

S t a t e s v . S a n d o v a l , 4 U . S . C . M . A . 6 1 , 1 5 C . M . R . 6 1 ( 1 9 5 4 ) ;

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 216 e 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

216 f of MCM, 1969 (Rev.). Paragraph 216 f required 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 216 g 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);

U n i t e d S t a t e s v . H e i m s , 3 U . S . C . M . A . 4 1 8 , 1 2 C . M . R . 1 7 4

(1953).

(j) Ignorance or mistake of fact. This subsection is based on

paragraph 216 i of MCM, 1969 (Rev.); United States v. Jenkins,

22 U.S.C.M.A. 365, 47 C.M.R. 120 (1973); United States v. Hill,

13 U.S.C.M.A. 158, 32 C.M.R. 158, (1962); United States v.

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), aff’d,

22 U.S.C.M.A. 534, 48 C.M.R. 19 (1973).

1998 Amendment: In enacting section 1113 of the National

Defense Authorization Act for Fiscal Year 1996, Pub. L. No. 104-

106, 110 Stat. 186, 462(1996), Congress amended Article 120,

UCMJ to create a mistake of fact defense to a prosecution for

carnal knowledge. The accused must prove by a preponderance of

the evidence that the person with whom he or she had sexual

intercourse was at least 12 years of age, and that the accused

reasonably believed that this person was at least 12 years of age,

and that the accused reasonably believed that this person was at

A21-64

App. 21, R.C.M. 916(b) APPENDIX 21
least 16 years of age. The changes to R.C.M. 916(b) and (j)

implement this amendment.

2007 Amendment: Changes to this paragraph, deleting “carnal

knowledge” and consistent language, are based on section 552 of

the National Defense Authorization Act for Fiscal Year 2006,

P.L. 109-163, 6 January 2006, which supersedes the previous

paragraph 45, Rape and Carnal Knowledge, in its entirety and

replaces paragraph 45 with Rape, sexual assault and other sexual

misconduct.

Paragraph (j)(3) is new and is based on the mistake of fact

defense incorporated in section 552 of the National Defense Authorization Act for Fiscal Year 2006, P.L. 109-163, 6 January

2006, which supersedes the previous paragraph 45, Rape and

Carnal Knowledge, in its entirety and replaces paragraph 45 with

Rape, sexual assault and other sexual misconduct.

(k) Lack of mental responsibility. Subsection (1) is taken from

paragraph 120 b of MCM, 1969 (Rev). See also United States v.

Frederick, 3 M.J. 230 (C.M.A. 1977).

1986 Amendment: The test for lack of mental responsibility in

subsection (1) was changed to implement Article 50a, which was

added to the UCMJ in the “Military Justice Amendments of 1986,

” tit. VIII, 802, National Defense Authorization Act for fiscal

year 1987, Pub.L. No. 99-661, 100 stat. 3905 (1986). Article 50a

is modeled on 18 U.S.C. 20. See Insanity Defense Reform Act,

ch. IV, Pub. L. No. 98-473, 98 Stat. 2057 (1984). The new test

d e l e t e s t h e v o l i t i o n a l p r o n g o f t h e A m e r i c a n L a w I n s t i t u t e ’ s

Model Penal Code Standard (see United States v. Lyons, 731 F.2d

243 (5th Cir. 1984) (en banc), cert. denied, 105 S. Ct. 323

(1985)), which was applied to courts-martial in United States v.

Frederick, 3 M.J. 230 (C.M.A. 1977). The new standard also

changes the quantity of mental disability necessary to establish

the defense from “lacks substantial capacity to appreciate” to

being “unable to appreciate.” The new test is very similar to the

test in M’Naghten’s Case, 10 Cl. & F. 200, 8 Eng. Rep. 718

(House of Lords. 1843). See also Carroll, Insanity Defense Reform, 114 Mil. L. Rev. 183 (1986).

2004 Amendment: The Discussion to R.C.M. 916(k)(1) was

amended to add a cross-reference to R.C.M. 1102A.

Subsection (2) is taken from paragraph 120 c of MCM, 1969

(Rev.). See also United States v. Higgins, 4 U.S.C.M.A. 143, 15

C.M.R. 143 (1954).

1986 Amendment: Subsection (2) was amended to eliminate the

defense of partial mental responsibility in conformance with Article 50a, which was added to the UCMJ in the “Military Justice

Amendments of 1986,” tit. VIII 802, National Defense Authorization Act for fiscal year 1987, Pub.L. No. 99-661, 100 Stat. 3905

(1986). Article 50a(a) is adopted from 18 U.S.C. § 20(a). Congress wrote the last sentence of 18 U.S.C. § 20(a) (now also the

last sentence of Article 50(a)) “to insure that the insanity defense

is not improperly resurrected in the guise of showing some other

affirmative defense, such as that the defendant had has a ædiminished responsibilityÆ on some similarly asserted state of mind

which would serve to excuse the offense and open the door, once

again, to needlessly confusing psychiatric testimony.” S.Rep. No.

225, 98th Cong. 1st Sess. 229(1983), reprinted in 1984 U.S.Code

Cong. & Ad. News 1. 231. See Muench v. Israel, 715 F.2d 1124

(7th Cir. 1983), cert. denied, 104 S.Ct. 2682 (1984); State v.

Wilcox, 436 N.E. 2d 523 (Ohio 1982).

Because the language of section 20(a) and its legislative history

h a v e b e e n c o n t e n d e d t o b e s o m e w h a t a m b i g u o u s r e g a r d i n g

“diminished capacity” or “diminished responsibility,” this aspect

of the legislation has been litigated in Article III courts. United

States v. Pohlot, Crim. No. 85-00354-01 (E.D. Pa. March 31,

1986) held that section 20(a) eliminated the defense of diminished

capacity. See also United States v. White, 766 F.2d 22, 24-25 (1st

Cir. 1985); U.S. DEPARTMENT OF JUSTICE, HANDBOOK

O N T H E C O M P R E H E N S I V E C R I M E C O N T R O L A C T O F

1984 AND OTHER CRIMINAL STATUTES ENACTED BY

THE 98TH CONGRESS 58, 60 (December 1984). Contra United

States v. Frisbee, 623 F. Supp. 1217 (N.D. Cal. 1985) (holding

that Congress did not intend to eliminate the defense of diminished capacity). See also Carroll, Insanity Defense Reform, 114

Mil. L. Rev. 183, 196 (1986). The drafters concluded that Congress intended to eliminate this defense in section 20(a).

2004 Amendment: Subsection (k)(2) was modified to clarify

that evidence of an accused’s impaired mental state may be admissible. See United States v. Schap, 49 M.J. 317 (1998); United

States v. Berri, 33 M.J. 337 (C.M.A. 1991); Ellis v. Jacob, 26

M.J. 90 (C.M.A. 1988).

Subsection (3)(A) and the discussion are based on paragraph

122 a of MCM, 1969 (Rev.). Several matters in paragraph 122a

are covered in other parts of this subsection or in R.C.M. 909.

1986 Amendment: Subsection (3)(A) was amended to conform

to article 50a(b) and R.C.M. 916(b).

Subsection (3)(B) and the discussion are based on paragraph

122 b(2) of MCM, 1969 (Rev.). The procedures for an inquiry

i n t o t h e m e n t a l r e s p o n s i b i l i t y o f t h e a c c u s e d a r e c o v e r e d i n

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. Cf. 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 216 j

of MCM, 1969 (Rev.). The discussion is based on the remainder

of paragraph 216 j of 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 . 1 1 8 ( 1 9 5 5 ) ; U n i t e d S t a t e s v . B i s h o p , 2 M . J . 7 4 1

(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 (2970); United States v. Ferguson, 17 U.S.C.M.A.

441, 38 C.M.R. 239 (1968); United States v. Garcia, 41 C.M.R.

638 (A.C.M.R. 1969). See United States v. Santiago-Vargas, 5

M.J. (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 71 a of MCM, 1969

(Rev.). Paragraph 71 a did not expressly provide for a motion for

a 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

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ANALYSIS App. 21, R.C.M. 917(a)
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 of

the 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);cf. United States v. Clark,

20 U.S.C.M.A. 140, 42 C.M.R. 332 (1970)).

(b) Form of motion. This subsection is based on the first sentence

in the second paragraph of paragraph 71 a 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 71 a of MCM, 1969 (Rev.).

(d) Standard. This subsection is based on the fourth sentence of

the second paragraph of paragraph 71 a 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 offense. 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(a) and on United States v. Hitchcock, supra.

1994 Amendment. The amendment to subsection (f) clarifies

that the military judge may reconsider a ruling denying a motion

for a finding of not guilty at any time prior to authentication of

the record of trial. This amendment is consistent with United

States v. Griffith, 27 M.J. 42 (C.M.A. 1988). As stated by the

court, the reconsideration is limited to a determination as to

whether the evidence adduced is legally sufficient to establish

guilt rather than a determination based on the weight of the

evidence which remains the exclusive province of the finder of

fact.

(g) Effect of denial on review. This subsection is based on the

last sentence of the first paragraph of paragraph 71 a 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 ) G e n e r a l f i n d i n g s . T h i s s u b s e c t i o n a n d t h e d i s c u s s i o n a r e

based on paragraphs 74 b 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, 471 C.M.R. 172 (A.C.M.R. 1973).

1986 Amendment: The provisions allowing for findings of not

guilty only by reason of lack of mental responsibility were added

to subsections (a)(1) and (2) to implement Article 50a(c), which

was added to the UCMJ in the “Military Justice Amendments of

1986,” Tit. VIII, 802, National Defense Authorization Act for

Fiscal Year 1987, Pub.L. No. 99-661, 100 Stat. 3905 (1986). This

finding is modeled after 18 U.S.C. § 4242(b)(3), section 403 of

the Insanity Defense Reform Act, ch. IV, Pub.L. No. 98-473, 98

Stat. 2057, 2059. The drafters intended that adoption of the finding of “not guilty only by reason of lack of mental responsibility”

does not require conformance to the procedures that follow an

insanity acquittal in federal courts (see U.S.C. § 4243 et. seq.).

The Services are free to use available medical and administrative

procedures which address disposition of servicemembers having

psychiatric illnesses. The drafters further intended that, for purposes of subsequent appellate and other legal reviews under this

Manual, a finding of “not guilty only by reason of lack of mental

responsibility” shall be treated as any other acquittal.

1993 Amendment: The amendment to R.C.M. 918(a)(1) allows

for a finding of guilty of a named lesser included offense of the

charged offense, and eliminates the necessity of making findings

by exceptions and substitutions. This serves to conform military

p r a c t i c e t o t h a t u s e d i n c r i m i n a l t r i a l s b e f o r e f e d e r a l d i s t r i c t

courts. See Fed. R. Crim. P. 31(c); E. Devitt and C. Blackman,

Federal Jury Practice and Instructions, 18.07 (1977). The practice of using exceptions and substitutions is retained for those

cases in which the military judge or court members must conform

the findings to the evidence actually presented, e.g., a larceny

case in which the finding is that the accused stole several of the

items alleged in the specification but not others.

(b) Special findings. This subsection is based on Article 51(d),

paragraph 74 i of MCM, 1969 (Rev.); United States v. Gerard, 11

M.J. 440 (C.M.A. 1981). See also United States v. Pratcher 14

M.J. 819 (A.C.M.R. 1982); United States v. Burke, 4 M.J. 530

( N . C . M . R . 1 9 7 7 ) ; U n i t e d S t a t e s v . H u s s e y , 1 M . J . 8 0 4

( A . F . C . M . R . 1 9 7 6 ) ; U n i t e d S t a t e s v . B a k e r , 4 7 C . M . R . 5 0 6

( A . C . M . R . 1 9 7 3 ) ; U n i t e d S t a t e s v . F a l i n , 4 3 C . M . R . 7 0 2

(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. (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 74 i of MCM, 1969 (Rev.), and on Fed. R.

Crim. P.23(c). Article 51(d) is patterned after Fed. R. Crim. P.

23(c). United States 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 provide specifically that a request

for special findings be made before general findings are entered.

Pub. L. No. 95-78 § 2(b), 91 Stat. 320. This was done “to make

clear that deadline for making a request for findings of fact and to

provide that findings may be oral.” Id., Advisory Committee Note

(Supp. v. 1981). Subsection (b), therefore, continues conformity

with federal practice.

( c ) B a s i s o f f i n d i n g s . T h i s s u b s e c t i o n a n d t h e d i s c u s s i o n a r e

based on paragraph 74 a of MCM, 1969 (Rev.). The discussion of

reasonable doubt has been modified based on United States v.

A21-66

App. 21, R.C.M. 917(a) APPENDIX 21
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. United States, 348

U.S. 121, 140-41 (1954); United States v. Previte, 648 F.2d 73

(1st Cir. 1981); United States v. De Vincent, 632 F.2d 147 (1st

Cir.), cert denied, 449 U.S. 986 (1980); United States v. Cortez,

521 F.2d 1 (5th Cir. 1975); United States v. Zeigler, 14 M.J. 860

( A . C . M . R . 1 9 8 2 ) ; U n i t e d S t a t e s v . S a u e r , 1 1 M . J . 8 7 2

(N.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, § 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), aff’d, 10 M.J. 405 (C.M.A. 1981)

(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 72 a of MCM, 1969

(Rev.).

(b) Contents. This subsection is based on the first sentence of the

second paragraph of paragraph 72 b of MCM, 1969 (Rev.). The

discussion is based on paragraphs 72 a and b of MCM, 1969

(Rev.). See also paragraphs 44 g and 48 c of MCM, 1969 (Rev.);

Griffin v. California, 380 U.S. 609 (1965) (comment on accused’s

failure to testify); United States v. Saint John, 23 U.S.C.M.A. 20,

48 C.M.R. 312 (1974) (comment on unrebutted nature of prosecution evidence); United States v. Horn, 9 M.J. 429 (C.M.A. 1980)

(repeated use of “I 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

a c c u s e d p e r m i t t e d ; i n f l a m m a t o r y a r g u m e n t ; m i s l e a d i n g a r g u -

ment); 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 accused had opportunity to hear the evidence at the

Article 32 hearing is permissible); United States v. Boberg, 17

U.S.C.M.A. 401, 38 C.M.R. 199 (1968); United States v. Cook,

11 U.S.C.M.A. 99, 28 C.M.R. 323 (1959) (comment on community relations); United States 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 § 3-5.8 (1979),

The Defense Function § 4-7.8 (1979). See also United States v.

Clifton, 15 M.J. 26 (C.M.A. 1983).

(c) Waiver of objection to improper argument. This subsection is

based on Fed. R. Crim. P. 29.1 and is generally consistent with

c u r r e n t p r a c t i c e . S e e U n i t e d S t a t e s v . G r a n d y , 1 1 M . J . 2 7 0

(C.M.A. 1981). See also United States v. Doctor, 7 U.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 United States v. Nelson, both supra;

U n i t e d S t a t e s v . O ’ N e a l , 1 6 U . S . C . M . A . 3 3 , 3 6 C . M . R . 1 8 9

( 1 9 6 6 ) ; U n i t e d S t a t e s v . C a r p e n t e r , 1 1 U . S . C . M . A . 4 1 8 , 2 9

C.M.R. 234 (1960).

Rule 920 Instructions on findings

(a) In general. This subsection is based on the first sentence of

paragraph 73 a of MCM, 1969 (Rev.). The discussion is based on

the first paragraph of paragraph 73 a of MCM, 1969 (Rev.). See

United States v. Buchana, 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 73 a and on paragraph 74 e 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).

1993 Amendment: The amendment to R.C.M. 920(b) is based

on the 1987 amendments to Federal Rule of Criminal Procedure

30. Federal Rule of Criminal Procedure 30 was amended to permit instructions either before or after arguments by counsel. The

previous version of R.C.M. 920 was based on the now superseded

version of the federal rule.

The purpose of this amendment is to give the court discretion

to instruct the members before or after closing arguments or at

both times. The amendment will permit courts to continue instructing the members after arguments as Rule 30 and R.C.M.

920(b) had previously required. It will also permit courts to instruct before arguments in order to give the parties an opportunity

to argue to the jury in light of the exact language used by the

court. See United States v. Slubowski, 7 M.J. 461 (C.M.A 1979);

United States v. Pendry, 29 M.J. 694 (A.C.M.R. 1989).

(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 73 d of MCM, 1969 (Rev.). The

discussion is based on the remainder of paragraph 73 d.

(d) How given. The first sentence of this subsection is based on

the last paragraph of paragraph 73 a 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); United

States v. Sanders, 30 C.M.R. 521 (A.C.M.R. 1961). Only copies

of instructions given orally may be provided, 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

S t a t e s v . S l u b o w s k i , s u p r a ; U n i t e d S t a t e s v . C a l d w e l l , 1 1

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 73 a of MCM, 1969 (Rev.) and United States v. Caldwell,

supra. As to the use of written instructions in federal district

courts, see generally United States v. Read, 658 F.2d 1225 (7th

A21-67

ANALYSIS App. 21, R.C.M. 920(d)
Cir. 1981); United States 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 73 a of MCM, 1969

(Rev.). See also United States v. Steinruck, 11 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 otherwise 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 Reference, The Army

Lawyer (Aug. 1976) 1; Hilliard, The Waiver Doctrine: Is It Still

Viable?, 18 A.F.L. Rev. 45 (Spring 1976).

1986 Amendment: Subsection (2) was amended to require the

accused to waive the bar of the statute of limitations if the

accused desires instructions on any lesser included offense otherwise barred. Spaziano v. Florida, 468 U.S. 447 (1984). This

o v e r t u r n s t h e h o l d i n g s i n U n i t e d S t a t e s v . W i e d e m a n n , 1 6

U.S.C.M.A. 356, 36 C.M.R. 521 (1966) and United States v.

Cooper, 16 U.S.C.M.A. 390, 37 C.M.R. 10 (1966). The same rule

applies in trials by military judge alone. Article 51(d). This is

consistent with Article 79 because an offense raised by the evidence but barred by the statute of limitations is “necessarily

included in the offense charged,” unless the accused waives the

statute of limitations.

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,

1 1 M . J . 3 6 ( C . M . A . 1 9 8 1 0 ; U n i t e d S t a t e s v . E v a n s , 1 7

U.S.C.M.A. 238, 38 C.M.R. 36 (1967); United States v. Clark,

supra. See United States 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 73

a 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); United States 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, 11 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

o n o t h e r c h a r g e s ) ; U n i t e d S t a t e s v . M i n t e r , 8 M . J . 8 6 7

(N.C.M.R.), aff’d, 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. 116 (C.M.A.

1 9 7 9 ) ; U n i t e d S t a t e s v . F a r r i n g t o n , 1 4 U . S . C . M . A . 6 1 4 , 3 4

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

73 c of MCM, 1969 (Rev.). See also United States v. Grandy, 11

M.J. 270 (C.M.A. 1981).

1986 Amendment: Subsection (e)(5)(D) was amended to conform to amendments to R.C.M. 916(b).

1998 Amendment: This change to R.C.M. 920(e) implemented

Congress’ creation of a mistake of fact defense for carnal knowle d g e . A r t i c l e 1 2 0 ( d ) , U C M J , p r o v i d e s t h a t t h e a c c u s e d m u s t

prove by a preponderance of the evidence that the person with

whom he or she had sexual intercourse was at least 12 years of

age, and that the accused reasonably believed that this person was

at least 16 years of age.

2007 Amendment: Changes to this paragraph, deleting “carnal

knowledge” and consistent language, are based on section 552 of

the National Defense Authorization Act for Fiscal Year 2006,

P.L. 109-163, 6 January 2006, which supersedes the previous

paragraph 45, Rape and Carnal Knowledge, in its entirety and

replaces paragraph 45 with Rape, sexual assault and other sexual

misconduct.

(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 voting on findings

(a) In general. This subsection is based on Article 39(b) and on

the second, third, and fifth sentences of paragraph 74 d(1) 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 74 d(1) 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 sentence is based on United States v. Jackson, 6

M.J. 116, 117 (C.M.A. 1979) (Cook, J., concurring in part and

dissenting in part); United States v. Smith, 15 U.S.C.M.A. 416, 35

C.M.R. 388 (1965). See also paragraph 54 b of MCM, 1969

(Rev); United States v. Ronder, 639 F.2d 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 73 d(2) of MCM,

1969 (Rev.).

Subsection (2) is based on Article 52(a) and on the first two

sentences of paragraph 74 d(3) 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 74 d(3) of MCM, 1969

(Rev.).

Subsection (3) is based on the fourth sentence of paragraph 74

d(3) of MCM, 1969 (Rev.).

1986 Amendment: Subsections (4) and (5) were redesignated

as subsections (5) and (6) and a new subsection (4) was inserted.

New subsection (4) is based on Article 50a(e) and provides for

bifurcated voting on the elements of the offense and on mental

responsibility, and defines the procedures for arriving at a finding

of not guilty only by reason of lack on mental responsibility.

When the prosecution had the burden of proving mental responsibility beyond a reasonable doubt, the same as the burden regarding the elements of the offense, the members were unlikely to

confuse the two general issues. Without any procedure for bifurcated voting under the 1984 amendment, substantial confusion

might result if the members were required to vote simultaneously

on whether the defense has proven lack of mental responsibility

by clear and convincing evidence, and whether the prosecution

h a s p r o v e n t h e e l e m e n t s o f t h e o f f e n s e b e y o n d a r e a s o n a b l e

doubt. Each issue might result in a different number of votes.

Bifurcated voting is also necessary to provide the finding of “not

guilty only by reason of lack of mental responsibility” provided

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App. 21, R.C.M. 920(d) APPENDIX 21
for in R.C.M. 918(a). But see Carroll, Insanity Defense Reform,

114 Mil. L. Rev. 183, 216 (1986).

Subsection (4) is new to the Manual but it conforms to practice

generally followed in courts-martial. Paragraph 74 d(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

f i n d i n g o f g u i l t y h a s b e e n r e a c h e d . S e e M i l i t a r y J u d g e s

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 74 d(2) of MCM, 1969 (Rev.). See also United

States v. Dilday, 47 C.M.R. 172 (A.C.M.R. 1973).

(d) Action after findings are reached. This subsection and the

discussion are based on paragraphs 74 f(1) and 74 g 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 . H e n d e r s o n , 1 1 M . J . 3 9 5 ( C . M . A . 1 9 8 1 ) ; U n i t e d S t a t e s v .

Barclay, 6 M.J. 785 (A.C.M.R. 1978), pet. denied, 7 M.J. 71

(1979).

1986 Amendment: The word “sentence” was changed to “findings” to correct an error in MCM, 1984.

Rule 922 Announcement of findings

(a) In general. This subsection is based on Article 53 and on the

first sentence of paragraph 74 g of MCM, 1969 (Rev.). See also

United States v. Dilday, 47 C.M.R. 172 (A.C.M.R. 1973). The

d i s c u s s i o n i s b a s e d o n U n i t e d S t a t e s v . R i c k e t t s , 1 M . J . 7 8

( C . M . A . 1 9 7 5 ) ; U n i t e d S t a t e s v . S t e w a r t , 4 8 C . M . R . 8 7 7

(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,” United

States v. Ricketts, supra at 82. See United States v. Jenkins, 12

M.J. 222 (C.M.A. 1982). Cf. 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 74 g of MCM, 1969 (Rev.). The last

sentence is based on the last sentence of paragraph 70 b of MCM,

1969 (Rev.).

1986 Amendment: R.C.M. 922(b) was amended by adding a

new paragraph (2) as a conforming change to the amendment in

R.C.M. 1004(a) making unanimity on findings a precondition to a

capital sentencing proceeding. The Rule and the Discussion also

preclude use of the reconsideration procedure in R.C.M. 924 to

change a nonunanimous finding of guilty to a unanimous verdict

for purposes of authorizing a capital sentencing proceeding. Thus,

if a nonunanimous finding of guilty is reaffirmed on reconsideration and the vote happens to be unanimous, the president of the

court-martial does not make a statement as to unanimity.

(c) Findings by military judge. This subsection is based on the

second sentence of the last paragraph of paragraph 70 b and on

the second paragraph of paragraph 74 g of MCM, 1969 (Rev.)

See also Article 39(a).

(d) Erroneous announcement. This subsection is based on the

third and fourth sentences of paragraph 74 g of MCM, 1969

(Rev.).

(e) Polling prohibited. 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 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) (Duncan, C.J.); United States v. Nash, 5

U.S.C.M.A. 550, 555, 18 C.M.R. 174, 179 (1955) (Brosman, J.

concurring); United States 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 Manual for Courts-Martial Practice

and Appeal § 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 United States v. Witherspoon, 12

M.J. 588 (A.C.M.R. 1981), pet. granted, 13 M.J. 210 (C.M.A.

1982), aff’d 16 M.J. 252 (1983); United States v. Hance, 10 M.J.

622 (A.C.M.R. 1980); United States v. Zinsmeister, 48 C.M.R.

931, 935 (A.F.C.M.R.), pet. denied, 23 U.S.C.M.A. 620 (1974);

United States 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. United States, 284 U.S. 390 (1932); United

States 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

United States v. Reid, 12 U.S.C.M.A. 497, 31 C.M.R. 83 (1961);

United States 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); United States v. Cartwright, 13 M.J. 174

( C . M . A . 1 9 8 2 ) ; U n i t e d S t a t e s v . C l a r k , U . S . C . M . A . 1 4 0 , 4 2

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 74 d(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 74 d(3) of

A21-69

ANALYSIS App. 21, R.C.M. 924(b)
M C M , 1 9 6 9 ( R e v . ) . S e e a l s o U n i t e d S t a t e s v . B o l a n d , 2 0

U.S.C.M.A. 83, 42 C.M.R. 275 (1970).

1987 Amendment: R.C.M. 924(b) was amended in conjunction

with the adoption in R.C.M. 921(c)(4) of bifurcated voting on

lack of mental responsibility. It is also necessary to bifurcate the

vote on reconsideration to retain the relative burdens for reconsideration and to prevent prejudice to the accused.

(c) Military judge sitting alone. This subsection is new to the

Manual, although the power of the military judge to reconsider

findings of guilty has been recognized. United States 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).

1995 Amendment: The amendment limits reconsideration of

findings by the members to findings reached in closed session but

not yet announced in open court and provides for the military

judge, in judge alone cases, to reconsider the “guilty finding” of a

not guilty only by reason of lack of mental responsibility finding.

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 infra.

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

Article 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

i n f o r m a t i o n t o t h e c o u r t - m a r t i a l a s w o u l d b e c o n t a i n e d i n 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

a c c u s e d ’ s s e r v i c e r e c o r d s ( s e e s u b s e c t i o n ( b ) ( 2 ) o f t h i s r u l e )

provides much of the information which would be in a presentence report. Such records are not prepared for purposes of prosecution ( cf. United States v. Boles, 11 M.J. 195 (C.M.A. 1981))

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)(1) is inapposite; parallel

matters are covered in R.C.M. 1114. 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 53 h of MCM, 1969 (Rev.) and on the second sentence

of Fed. R. Crim. P. 32(a). See alsoHill v. United States, 368 U.S.

424 (1962); Green v. United States, 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 be presented by the prosecution. Subsections (3)

and (4) are modifications of paragraph 75 b(3) and (4) of MCM,

1969 (Rev.), and subsection (5) is new.

1986 Amendment: The word “age” in subsection (1) was deleted

to correct error in MCM, 1984.

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 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 case because of the lack of opportunity to rebut.

1987 Amendment: The words “all those records” were changed

to “any records” to implement more clearly the drafters’ original

intent. According to the paragraph just above, the drafters “intended to avoid the result reached in United States v. Morgan,”

supra, by allowing the trial counsel to offer only such records as

he or she desired to offer. In Morgan, the court held that, when

the trial counsel offered adverse documents from the accused’s

service record, the “rule of completeness” under Mil. R. Evid.

106 required that all documents from that record be offered.

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

s e n t e n c i n g . N o s i m i l a r r e s t r i c t i o n a p p l i e s i n F e d e r a l c i v i l i a n

courts. This subsection parallels Mil. R. Evid. 609. An exception

is provided for summary courts-martial and special courts-martial

w i t h o u t a m i l i t a r y j u d g e . S e e A n a l y s i s , M i l . R . E v i d . 6 0 9 .

Whether the adjudication of guilt in a civilian forum is a conviction will depend on the law in that jurisdiction.

1 9 8 6 A m e n d m e n t : T h e r e f e r e n c e t o “ A r t i c l e 6 5 ( c ) ” w a s

changed to “Article 64” to correct an error in MCM, 1984.

2002 Amendment: As previously written, R.C.M. 1001(b)(3)(A)

offered little guidance about what it meant by “civilian convict i o n s . ” S e e , e . g . , U n i t e d S t a t e s v . W h i t e , 4 7 M . J . 1 3 9 , 1 4 0

(C.A.A.F. 1997); United States v. Barnes, 33 M.J. 468, 472-73

(C.M.A. 1992); United States v. Slovacek, 24 M.J. 140, 141

(CMA), cert. denied, 484 U.S. 855 (1987). The present rule

addresses this void and intends to give the sentencing authority as

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App. 21, R.C.M. 924(b) APPENDIX 21
much information as the military judge determines is relevant in

order to craft an appropriate sentence for the accused.

Unlike most civilian courts, this rule does not allow admission

of more extensive criminal history information, such as arrests.

Use of such additional information is not appropriate in the military setting where court-martial members, not a military judge,

often decide the sentence. Such information risks unnecessarily

confusing the members.

The present rule clarifies the term “conviction” in light of the

complex and varying ways civilian jurisdictions treat the subject.

The military judge may admit relevant evidence of civilian convictions without necessarily being bound by the action, procedure,

or nomenclature of civilian jurisdictions. Examples of judicial

determinations admissible as convictions under this rule include

accepted pleas of nolo contendere, pleas accepted under North

Carolina v. Alford, 400 U.S. 25 (1970), or deferred sentences. If

relevant, evidence of forfeiture of bail that results in a judicial

determination of guilt is also admissible, as recognized in United

States v. Eady, 35 M.J. 15, 16 (C.M.A. 1992). While no time

limit is placed upon the admissibility of prior convictions, the

m i l i t a r y j u d g e s h o u l d c o n d u c t a b a l a n c i n g t e s t t o d e t e r m i n e

whether convictions older than ten years should be admitted or

excluded on the basis of relevance and fundamental fairness.

The two central factors in this rule are (1) judicial determination of guilt and (2) assumption of guilt. Assumption of guilt is

an all-inclusive term meaning any act by the accused in a judicial

proceeding accepting, acknowledging, or admitting guilt. As long

as either factor is present, the “conviction” is admissible, if relevant. Consequently, this rule departs from the holding in United

States v. Hughes, 26 M.J. 119, 120 (C.M.A. 1988), where the

accused pleaded guilty in a Texas court, but the judge did not

enter a finding of guilty under state law allowing “deferred adjudications.” Under the present rule, the “conviction” would be

a d m i s s i b l e b e c a u s e t h e a c c u s e d p l e a d e d g u i l t y i n a j u d i c i a l

proceeding, notwithstanding the fact that the state judge did not

enter a finding of guilty.

In contrast, “deferred prosecutions,” where there is neither an

admission of guilt in a judicial proceeding nor a finding of guilty,

would be excluded. The rule also excludes expunged convictions,

juvenile adjudications, minor traffic violations, foreign convictions, and tribal court convictions as matters inappropriate for or

unnecessarily confusing to courts-martial members. What constitutes a æminor traffic violationÆ within the meaning of this rule

is to be decided with reference only to federal law, and not to the

laws of individual states. See U.S. Sentencing Guidelines Manual

Sec. 4A1.2(c)(2); ’What ConstitutesÆ Minor Traffic Infraction’

Excludable From Calculation of Defendant’s Criminal History

under United States Sentencing Guideline Sec. 4A1.2(c)(2),’ 113

A.L.R. Fed. 561 (1993).

Additionally, because of the lack of clarity in the previous rule,

courts sometimes turned to Mil. R. Evid. 609 for guidance. See,

e.g., Slovacek, 24 M.J. at 141. We note that because the policies

behind Mil. R. Evid. 609 and the present rule differ greatly, a

conviction that may not be appropriate for impeachment purposes

under Mil. R. Evid. 609, may nevertheless be admissible under

the present rule.

The Federal Sentencing Guidelines were consulted when drafting the present rule. Although informed by those guidelines, the

present rule departs from them in many respects because of the

wide differences between the courts-martial process and practice

in federal district court.

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

c o n s i s t e n t w i t h t h e i n t e r p r e t a t i o n o f p a r a g r a p h 7 5 b ( 3 ) ( l a t e r

amended to be paragraph 75 b(4) of MCM, 1969 (Rev.) by Exec.

Order No. 12315 (July 29, 1981)) in United States 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. Crim. 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.

R o s e , 6 M . J . 7 5 4 ( N . C . M . R . 1 9 7 8 ) , p e t . d e n i e d , 7 M . J . 5 6

(C.M.A. 1979); United States v. Taliaferro, 2 M.J. 397 (A.C.M.R.

1975); United States v. Peace, 49 C.M.R. 172 (A.C.M.R. 1974).

1999 Amendment: R.C.M. 1001(b)(4) was amended by elevating to the Rule language that heretofore appeared in the Discussion to the Rule. The Rule was further amended to recognize that

evidence that the offense was a hate crime may also be presented

to the sentencing authority. The additional hate crime language

was derived in part from section 3A1.1 of the Federal Sentencing

Guidelines, in which hate crime motivation results in an upward

adjustment in the level of the offense for which the defendant is

sentenced. Courts-martial sentences are not awarded upon the

basis of guidelines, such as the Federal Sentencing Guidelines,

but rather upon broad considerations of the needs of the service

and the accused and on the premise that each sentence is individually tailored to the offender and offense. The upward adjustment

used in the Federal Sentencing Guidelines does not directly translate to the court-martial presentencing procedure. Therefore, in

o r d e r t o a d a p t t h i s c o n c e p t t o t h e c o u r t - m a r t i a l p r o c e s s , t h i s

amendment was made to recognize that ’’hate crime’’ motivation

is admissible in the court-martial presentencing procedure. This

amendment also differs from the Federal Sentencing Guideline in

that the amendment does not specify the burden of proof required

regarding evidence of ’’hate crime’’ motivation. No burden of

proof is customarily specified regarding aggravating evidence admitted in the presentencing procedure, with the notable exception

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

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

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ANALYSIS App. 21, R.C.M. 1001(b)
unreliable information by guaranteeing that the accused will have

the right to confront and cross-examine such witnesses.

1994 Amendment: The amendment is based on decisional law

interpreting subsection (b)(5), including United States v. Pompey,

33 M.J. 266 (C.M.A. 1991), United States v. Claxton, 32 M.J.

159 (C.M.A. 1991), United States v. Aurich, 31 M.J. 95 (C.M.A.

1990), United States v. Ohrt, 28 M.J. 301 (C.M.A. 1989), and

United States v. Horner, 22 M.J. 294 (C.M.A. 1986).

(e) Production of witnesses. The language of subsection (2)(C)

has been modified to clarify that only a stipulation of fact permits

n o n p r o d u c t i o n . S e e U n i t e d S t a t e s v . G o n z a l e z , 1 6 M . J . 5 8

(C.M.A. 1983).

(f) Additional matters to be considered. This subsection is based

on the third and fourth sentences of paragraph 76 a(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 paragraph 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 76 a(1)

of MCM, 1969 (Rev.).

Rule 1003 Punishments

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 (see R.C.M. 810(d)); and on referral instructions (see

R.C.M. 601(e)(1)) are contained elsewhere, but are referred to

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 of paragraph 127 c(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 court-martial, subject only to specific limitations prescribed elsewhere. It does not change current law.

(b) Authorized punishments. 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 126 f of MCM, 1969

(Rev.). Admonition has been deleted as unnecessary.

Subsection (2) is based on paragraphs 126 h(1) and (2) of

MCM, 1969 (Rev.).

1990 Amendment: Subsection (b)(2) was amended to incorporate the statutory expansion of jurisdiction over inactive-duty res e r v e c o m p o n e n t p e r s o n n e l p r o v i d e d i n t h e M i l i t a r y J u s t i c e

Amendments of 1986, tit. VIII, § 804, National Defense Authorization Act for Fiscal Year 1987, Pub. L. 99-661, 100 Stat. 3905

(1986).

1994 Amendment: The references to “retired” and “retainer”

pay was added to make clear that those forms of pay are subject

to computation of forfeiture in the same way as basic pay. Articles 17, 18, and 19, UCMJ, do not distinguish between these

types of pay. Sentences including forfeiture of these types of pay

were affirmed in United States v. Hooper, 9 U.S.C.M.A. 637, 26

C.M.R. 417 (1958) (retired pay), and United States v. Overton, 24

M.J. 309 (C.M.A. 1987) (retainer pay).

Subsection (3) is based on paragraph 126 h(3) of MCM, 1969

(Rev.). See R.C.M. 1113(d)(4) and Analysis concerning possible

issues raised by enforcing a fine through confinement.

Detention of pay (paragraph 126 h(4) of MCM, 1969 (Rev.))

has been deleted. This punishment has been used very seldom and

is administratively cumbersome.

2002 Amendment: The amendment clearly defines the authority of special and summary courts-martial to adjudge both fines

and forfeitures. See generally United States v. Tualla, 52 M.J. 228

(2000).

Subsection (4) is based on paragraph 126 i of MCM, 1969

(Rev.).

Subsection (5) is based on the second paragraph of paragraph

126 e of MCM, 1969 (Rev.). The first 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 126 e of MCM, 1969 (Rev.).

Subsection (6) is based on paragraph 126 g and on the ninth

sentence of the second paragraph 127 c(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

127 c (2) of MCM, 1969 (rev.). See also Article 20.

Subsection (7) and the discussion are based on paragraph 126 k

of MCM, 1969 (Rev.). The last sentence in the rule is new and is

based on the table of equivalent punishments at paragraph 127

c(2) of MCM, 1969 (Rev.) See also Article 20.

2002 Amendment: This change resulted from the enactment of

Article 56a, UCMJ, in section 581 of the National Defense Authorization Act for Fiscal Year 1998, Pub. L. No. 105-85, 111

Stat. 1629, 1759 (1997).

Subsection (8) is based on paragraph 126 j of MCM, 1969

(Rev.). Matters in the second paragraph of paragraph 126 j of

MCM, 1969 (Rev.) are now covered in R.C.M. 1113(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 127 c(2) of

MCM, 1969 (Rev.).

Subsection (10)(A) is based on the second paragraph of paragraph 126 d of MCM, 1969 (Rev.). Subsections (10)(B) and (C)

are based on paragraphs 76 a(3) and (4) and 127 c (4) of MCM,

1969 (Rev.).

1986 Amendment: Under R.C.M. 1003(c)(2)(A)(iv), a warrant

officer who is not commissioned can be punished by a dishonorable discharge when convicted at general court-martial of any

offense. This continued the rule of paragraph 126 d of MCM,

1969 (Rev.). The second sentence of subsection (10)(B), added in

1985, does not make any substantive change, but merely restates

the provision in subsection (10)(B) to maintain the parallelism

with subsection (10)(A), which governs dismissal of commissioned officers, commissioned warrant officers, cadets, and midshipmen.

As to subsection (11), see R.C.M. 1004.

Subsection (12) is based on Article 18.

S u b s e c t i o n s ( 6 ) , ( 7 ) , a n d ( 9 ) i n c o r p o r a t e e q u i v a l e n c i e s f o r

A21-72

App. 21, R.C.M. 1001(b) APPENDIX 21
r e s t r i c t i o n , h a r d l a b o r w i t h o u t c o n f i n e m e n t , c o n f i n e m e n t , a n d

c o n f i n e m e n t o n b r e a d a n d w a t e r o r d i m i n i s h e d r a t i o n s . T h i s

makes the table of equivalent punishments at paragraph 127 c(2)

of MCM, 1969 (Rev.) unnecessary and it had 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-thirds 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.

1999 Amendment: Loss of numbers, lineal position, or seniority

has been deleted. Although loss of numbers had the effect of

lowering precedence for some purposes, e.g., quarters priority,

board and court seniority, and actual date of promotion, loss of

numbers did not affect the officer’s original position for purposes

of consideration for retention or promotion. Accordingly, this

punishment was deleted because of its negligible consequences

and the misconception that it was a meaningful punishment.

(c) Limits on punishments. Subsections (1)(A) and (B) are based

on paragraph 127 c(1) of MCM, 1969 (Rev.). Subsection (1)(C) is

based on the first 3 sentences and the last sentence of paragraph

76 a(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 . 1 9 7 6 ) . S e e a l s o M i s s o u r i v . H u n t e r , 4 5 9 U . S . 3 5 9

(1983); United States v. Baker, 14 M.J. 361 (C.M.A. 1983). The

discussion is based on paragraph 76 a(5) of MCM, 1969 (Rev.).

As to the third paragraph in the discussion, see e.g., United States

v. Posnick, 8 U.S.C.M.A. 201, 24 C.M.R. 11 (1957). Cf. United

States v. Stegall, 6 M.J. 176 (C.M.A. 1979). As to the fourth

paragraph in the discussion, see United States v. Harrison, 4 M.J.

332 (C.M.A. 1978); United States v. Irving, 3 M.J. 6 (C.M.A.

1 9 7 7 ) ; U n i t e d S t a t e s v . H u g h e s , 1 M . J . 3 4 6 ( C . M . A . 1 9 7 6 ) ;

U n i t e d S t a t e s v . B u r n e y , 2 1 U . S . C . M . A . 7 1 , 4 4 C . M . R . 1 2 5

(1971).

Subsection (2)(A) is based on paragraph 126 d of MCM, 1969

(Rev.). Paragraph 127 a of MCM, 1969 (Rev.) provided that the

maximum punishments were “not binding” in cases of officers,

but could “be used as a guide.” Read in conjunction with paragraph 126 d of MCM, 1969 (Rev.) these provisions had the

practical effect of prescribing no limits 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 127 b 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.

1986 Amendment: Subsection (c)(3) was redesignated as subsection (c)(4) and new subsection (c)(3) was added to reflect the

legislative restrictions placed upon punishment of reserve component personnel in certain circumstances in the amendment to

Article 2, UCMJ, contained in the “Military Justice Amendments

of 1986,” tit. VIII, § 804, National Defense Authorization Act for

Fiscal Year 1987, Pub.L. No. 99-661, 100 Stat. 3905 (1986).

(d) Circumstances permitting increased punishments. This subsection is based on Section B of the Table of Maximum Punishments, paragraph 127 c 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).

1995 Amendment: Punishment of confinement on bread and

water or diminished rations (R.C.M. 1003(d)(9)), as a punishment

imposable by a court-martial, was deleted. Confinement on bread

and water or diminished rations was originally intended as an

immediate, remedial punishment. While this is still the case with

nonjudicial punishment (Article 15), it is not effective as a courtm a r t i a l p u n i s h m e n t . S u b s e c t i o n s ( d ) ( 1 0 ) t h r o u g h ( d ) ( 1 2 ) w e r e

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

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. II, 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 Matthews and other cases. See e.g., United States v. Matthews, 13 M.J. 501 (A.C.M.R. 1982), rev’d, United States v.

M a t t h e w s , s u p r a ; U n i t e d S t a t e s v . R o j a s , 1 5 M . J . 9 0 2

(N.M.C.M.R. 1983). See also United States v. Gay, 16 M.J. 586

(A.F.C.M.R. 1982),a’ffd 18 M.J. 104 (1984) (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 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

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ANALYSIS App. 21, R.C.M. 1004
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

r e q u i r e m e n t s , s e n t e n c e o f d e a t h v i o l a t e d A r t i c l e 5 5 ) . T h e

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, 463 U.S. 939 (1983); Zant v. Stephens,

462 U.S. 862 (1983); Godfrey v. Georgia, 446 U.S. 420 (1980);

Jurek v. 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 of the UCMJ 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 of the 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. Matthews,

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

A p p e a l s , w i t h f u r t h e r c o n s i d e r a t i o n b y t h e P r e s i d e n t . U n i t e d

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 inMatthews 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. II, § 2, cl. 1;

Articles 18, 36, and 56. Congress recently reaffirmed the broad

scope of this Presidential authority. See Pub.L. No. 96-107, Title

VIII, § 801(b), 93 Stat. 811 (Nov. 9, 1979); S.Rep. No. 107, 96th

Cong., 1st Sess. 123–125 (1979); Hearings on S.428 Before the

Military Personnel Subcomm. of the House Comm. on Armed

Services, 96th Cong., 1st Sess. 5–6, 14, 17–18, 20–21, 52, 106

(1979). See also United States v. Ezell, 6 M.J. 307, 316–17

( C . M . A . 1 9 7 8 ) ; W . W i n t h r o p , M i l i t a r y L a w a n d P r e c e d e n t s

27–33 (2d ed. 1920 reprint). Cf. Jurek v. Texas, supra (judicial

construction may save an otherwise defective death penalty provision). The changes made in this 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 prosecution, 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 in courts-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.

1986 Amendment: The Rule was amended to substitute the

word “factor” for the word “circumstance” with respect to the

aggravating factors under R.C.M. 1004(c). This will more clearly

distinguish such factors from the aggravating circumstances applicable to any sentencing proceeding under R.C.M. 1001(b)(4),

which may be considered in the balancing process in capital cases

under R.C.M. 1004(b)(4)(B).

(a) In general. Subsection (1) is based on the code and reflects

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App. 21, R.C.M. 1004 APPENDIX 21
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.

1986 Amendment: Subsection (2), referred to below in the

original Analysis, was redesignated as subsection (3), and a new

subsection (2) was added. The new subsection requires a unanimous verdict on findings before the death penalty may be considered. Nothing in this provision changes existing law under which

a finding of guilty may be based upon a vote of two-thirds of the

members, and a finding based upon a two-thirds vote will continue to provide the basis for sentencing proceedings in which any

sentence other than death may be imposed. This is an exercise of

the President’s powers as commander-in-chief, and is not intended to cast doubt upon the validity of the sentence in any

capital case tried before the effective date of the amendments.

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

like 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.

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. Cf. 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 ALI Model Penal Code §

201.6(3), (4) (Tent. Draft No. 9, 1959) (quoted 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 § 18–1.1 (1979). This

rule is not based on any specific state statue. 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

a d j u d g e d e a t h e n t i r e l y t o t h e j u r y . S e e G a . C o d e A n n . § §

17–10–30, 17–10–31 (1982). (In Georgia, once an aggravating

factor has been proved, 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. § 41–1302 (1977). Cf. Barclay v.

Florida, supra. See also Analysis, subsection (b)(4)(B), infra.

(b) Procedure. Subsection (1) is intended to avoid surprise and

trial delays. Cf. Ga. Code Ann. § 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. This

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) 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 Lockett v.

Ohio, both supra, Cf. 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 so

decide when a witness must be produced ( see R.C.M. 1001(e)).

Those cases, and this subsection, stand for the proposition that the

defense may not be prevented from presenting any relevant circumstances in extenuation or mitigation.

S u b s e c t i o n ( 4 ) ( A ) e s t a b l i s h e s t h e s e c o n d “ t h r e s h o l d ” w h i c h

must be passed before death may be adjudged. The requirement

that at least one specific aggravating circumstance be found bey o n d a r e a s o n a b l e d o u b t i s c o m m o n t o m a n y s t a t e s t a t u t o r y

schemes for capital punishment. See, e.g., Del. Code Ann. tit. 11,

§ 4209(d)(1977); Ark. Stat. Ann. § 41–1302(1977); Ill. Ann. Stat.

Ch. 38, § 9–1(f) (Smith-Hurd 1979), La. Code Crim. Proc. §

905.3 (West Supp 1982); Md. Ann. Code Art. 27 § 413(d)(1982);

I n d . C o d e A n n . § 3 5 – 5 0 – 2 – 9 ( a ) ( B u r n s 1 9 7 9 ) . S e e g e n e r a l l y

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)(1) and (f)(1). See also R.C.M. 1001(f)(2)(B). No

list of extenuating or mitigating circumstances can safely be considered exhaustive. See Eddings v. Oklahoma and Lockett v. Ohio,

both supra; cf.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)(1) and (f)(1)) and so instructs the members. In contrast to

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ANALYSIS App. 21, R.C.M. 1004(b)
subsection (b)(4)(A) there is no requirement that the members

a g r e e o n a l l a g g r a v a t i n g , e x t e n u a t i n g , a n d m i t i g a t i n g c i r c u m -

stances 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. Cf. 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 extenuating 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).

1986 Amendment: The following stylistic changes were made

in R.C.M. 1004(b)(4): first, subparagraph (a) was rewritten to

provide that the members must find “at least” one factor under

subsection (c); second, a new subparagraph (b) was added to

underscore the notice and unanimity requirements with respect to

the aggravating factors and to clarify that all members concur in

the same factor or factors; and third, former subparagraph (B)

was redesignated as subparagraph (C), with an express crossreference to R.C.M. 1001(b)(4), the general rule governing aggravating circumstances in sentencing proceedings.

Subsection (5) makes clear the 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 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

w h i c h t h e m e m b e r s c o u l d f i n d a n a g g r a v a t i n g c i r c u m s t a n c e

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, bothsupra.

Subsection (7) is based on Article 52(b)(1). 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 inc l u d e c e r t a i n m i l i t a r y c a p i t a l o f f e n s e s , o f c o u r s e , s u c h a s

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

r o l e o f g e n e r a l d e t e r r e n c e , e s p e c i a l l y i n c o m b a t s e t t i n g . S e e

United States v. Matthews, 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 not be 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)(1) 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 could be 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. Matthews, 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 territory. This distinguishes this subsection

from subsection (6).

Subsection (2) and (3) are based on the military’s purpose:

protection of national security. That this interest may be 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 §

6–104 (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. § 401 (West Supp 1982). The second (“includes”)

phrase is based on Joint Chiefs of Staff Publication 1. Dictionary

of Military and Associated Terms 228 (1 July 79). Note that not

all harm to national security will authorize death. Virtually all

military activities affect national security in some way. Cf. Cole

v. Young, 351 U.S. 536 (1956); United States v. Trottier, 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. Intent to harm the mission, system, or function will

suffice. It must be shown, however, that regardless of whether the

A21-76

App. 21, R.C.M. 1004(b) APPENDIX 21
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.

1986 Amendment: R.C.M. 1004(c)(2) was changed in conjunction with the enactment of the new Article 106 a.

Subsection (4) is similar to an aggravating circumstance in

many states. See, e.g., Neb. Rev. Stat. § 29-2523(1)(f)(1979);

Miss. Code. Ann. § 99–19–101(5)(c)(1981 Supp.); Ga. Code Ann.

§ 17–10–30(b)(1982). This circumstance applies to all capital

offenses (except rape) under the code; rape is excluded based

onCoker v. Georgia, supra.

1986 Amendment: R.C.M. 1004(c)(4) was amended by adding

a reference to Article 106a to distinguish this factor from the new

aggravating factor in R.C.M. 1004(c)(12). It was also considered

a p p r o p r i a t e t o e x c l u d e 1 0 4 f r o m t h i s a g g r a v a t i n g f a c t o r . S e e

R.C.M. 1004(c)(11).

1994 Amendment: R.C.M. 1004(c)(4) was amended to clarify

that only one person other than the victim need be endangered by

the inherently dangerous act to qualify as an aggravating factor.

See United States v. Berg, 31 M.J. 38 (C.M.A. 1990); United

States v. McMonagle, 38 M.J. 53 (C.M.A. 1993).

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 justified 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” runs

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. §§ 351, 1114, and 11751.

Subsection (7)(G) is modified to include certain categories of

military persons. Subsection (7)(1) uses a more objective standard

that the Georgia provision found wanting in Godfrey v. Georgia,

supra.

1994 Amendment: Subsection (7)(B) was amended by adding

an additional aggravating factor for premeditated murder--the fact

that the murder was drug-related. This change reflects a growing

awareness of the fact that the business of trafficking in controlled

substances has become increasingly deadly in recent years. Current federal statutes provide for a maximum punishment including

the death penalty for certain drug-related killings. See 21 U.S.C. §

848(e) (Pub. L. 100-690, §7001(a)(2)).

1 9 8 6 A m e n d m e n t : T h r e e c h a n g e s w e r e m a d e i n R . C . M .

1004(c)(7)(F); first, the provision involving Members of Congress

was expanded to include Delegates and Resident commissioners;

second, the word “justice” was added to ensure that justices of the

Supreme Court were covered; and third, the provision was ext e n d e d t o i n c l u d e f o r e i g n l e a d e r s i n s p e c i f i e d c i r c u m s t a n c e s .

These changes are similar to legislation approved by the Senate in

S. 1765, 98th Cong., 1st Sess. (1983).

1994 Amendment: The amendment to subsection (c)(7)(I) of

this rule defines “substantial physical harm” and was added to

clarify the type of injury that would qualify as an aggravating

factor under the subsection. The definition of “substantial physical harm” is synonymous with “great bodily harm” and “grievous

bodily harm”. See Part IV, paragraph 43(c). With respect to the

term “substantial mental or physical pain and suffering”, see

U n i t e d S t a t e s v . M u r p h y , 3 0 M . J . 1 0 4 0 , 1 0 5 6 - 1 0 5 8 ( A C M R

1990).

1999 Amendment: R.C.M. 1004(c)(7)(K) was added to afford

greater protection to victims who are especially vulnerable due to

their age.

1 9 9 1 A m e n d m e n t : S u b s e c t i o n ( c ) ( 8 ) w a s b a s e d o n t h e

Supreme Court’s decision in Enmund v. Florida, 458 U.S. 782,

797 (1982), that the cruel and unusual punishment clause of the

Eighth Amendment prohibits imposition of the death penalty on a

defendant convicted of felony-murder [who] d[id] not himself

kill, attempt to kill, or intend that a killing take place or that

lethal force ... be employed. The amendment to subsection (c)(8)

is based on the Supreme Court’s decision in Tison v. Arizona, 481

U.S. 137 (1987) distinguishing Enmund. In Tison, the Court held

that the Enmund culpability requirement is satisfied when a defendant convicted of felony-murder was a major participant in the

felony committed and manifested a reckless indifference to human life.

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 of the

Major War Criminals Before the International Military Tribunal

(International Military Tribunal, Nurenberg, 1974); Trials of War

Criminals Before the Nurenberg Military Tribunals, (U.S. Gov’t

Printing Off., 1950–51); In re Yamashita, 327 U.S. 1 (1946).

1986 Amendment: R.C.M. 1004(c)(11) was added to implement

the statutory aggravating factors found in new Article 106 a. The

aggravating factors in R.C.M. 1004(c)(11) were also considered

appropriate for violations of Article 104. It is intended that the

phrase “imprisonment for life was authorized by statute” in Article 106 a(c)(1) include offenses for which the President has

authorized confinement for life in this Manual as authorized in

Articles 18 and 55 (10 U.S.C. §§ 818 and 855).

2007 Amendment: Changes to this paragraph adding sexual

offenses other than rape are based on subsection (d) of section

552 of the National Defense Authorization Act for Fiscal Year

2006, P.L. 109-163, 6 January 2006, which supersedes the previous paragraph 45, Rape and Carnal Knowledge, in its entirety and

replaces paragraph 45 with Rape, sexual assault and other sexual

misconduct.

(d) Spying. This subsection is based on Article 106. Congress

recognized that in case of spying, no separate sentencing determiA21-77

ANALYSIS App. 21, R.C.M. 1004(d)
nation is required. See Article 52(a)(1). 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 Woodson emphasized 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 statue 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) Other penalties. The second sentence of this subsection is

based on the second sentence of the third paragraph of paragraph

126 a of MCM, 1969 (Rev.), which was in turn based on JAGA

1946/10582; SPJGA 1945/9511; United States v. Brewster, CM

238138, 24 B.R. 173 (1943). As to the third sentence of this

subsection,see also United States v. Bigger, 2 U.S.C.M.A. 297, 8

C.M.R. 97 (1953); W. Winthrop, supra at 428, 434.

2002 Amendment: This change resulted from the enactment of

Article 56a, UCMJ, in section 581 of the National Defense Authorization Act for Fiscal Year 1998, Pub. L. No. 105-85, 111

Stat. 1629, 1759 (1997).

Rule 1005 Instructions on sentence

Introduction. Except as noted below, this rule and the discussion are taken from paragraph 76 b(1) of MCM, 1969 (Rev.).

(a) In general. Regarding the discussion see generally United

States v. Mamaluy, 10 U.S.C.M.A. 102, 106-07, 27 C.M.R. 176,

180-81 (1959). See also United States v. Lania, 9 M.J. 100

( C . M . A . 1 9 8 0 ) ( u s e o f g e n e r a l d e t e r r e n c e ) ; U n i t e d S t a t e s 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);

United States 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 . 4 2 1 ( A . C . M . R . 1 9 7 0 ) ( e f f e c t o f a c c u s e d ’ s a b s e n c e ) ;

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 74 e of

MCM, 1969 (Rev.).

(c) Requests for instructions. See Fed. R. Crim. P. 30 andUnited

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 73 d 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 81 d(1) of MCM, 1969 (Rev.). The second

sentence of the first paragraph and the second paragraph of the

discussion to (1) are based on United States v. Henderson, 11

M.J. 395 (C.M.A. 1981). The last clause of subsection (3) is

based on United States v. Givens, 11 M.J. 694, 696 (N.M.C.M.R.

1981). The discussion under subsection (4) is based on the third

s e n t e n c e o f p a r a g r a p h 7 6 b ( 1 ) o f M C M , 1 9 6 9 ( R e v . ) a n d

onUnited States v. Davidson, 14 M.J. 81 (C.M.A. 1982).

1998 Amendment: The requirement to instruct members on the

effect a sentence including a punitive discharge and confinement,

or confinement exceeding six months, may have on adjudged

forfeitures was made necessary by the creation of Article 58b,

UCMJ, in section 1122, National Defense Authorization Act for

F i s c a l Y e a r 1 9 9 6 , P u b . L . N o . 1 0 4 - 1 0 6 , 1 1 0 S t a t . 1 8 6 , 4 6 3

(1996).

(f) Waived. This subsection is based on Fed. R. Crim. P. 30.

Rule 1006 Deliberations and voting on sentence

Introduction. Except as noted below, this rule and the discussion are based on Articles 51 and 52 and on paragraphs 76 b(2)

and (3) of MCM, 1969 (Rev.).

(a) In general. The first sentence is based on the first sentence of

paragraph 76 b(1) of MCM, 1969 (Rev.).

(b) Deliberations. See Analysis, R.C.M. 921(b) concerning the

second, third, and fourth sentences of this subsection. See also

United States v. Lampani, 14 M.J. 22 (C.M.A. 1982).

(c) Proposal of sentences. 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).

2002 Amendment: This change to the discussion resulted from

the enactment of Article 56a, UCMJ, in section 581 of the National Defense Authorization Act for Fiscal Year 1998, Pub. L.

No. 105-85, 111 Stat. 1629, 1759 (1997).

(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. Cates, 39

C.M.R. 474 (A.B.R. 1968).

2002 Amendment: Subsection (d)(4)(B) was amended as a result of the enactment of Article 56a, UCMJ, in section 581 of the

National Defense Authorization Act for Fiscal Year 1998, Pub. L.

No. 105-85, 111 Stat. 1629, 1759 (1997).

As to subsection (d)(5), the second sentence of the third paragraph of paragraph 76 b(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

s e n t e n c e a n d d o n o t r e q u i r e a u n a n i m o u s v o t e . S e e A r t i c l e s

52(a)(1) and (2). Thus a separate vote on sentence for an Article

105 offense is unnecessary.

A s t o s u b s e c t i o n ( d ) ( 6 ) s e e U n i t e d S t a t e s v . J o n e s , 1 4

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. 451, 453 (C.M.A. 1977). The second paragraph of the

discussion is based on the second sentence of paragraph 76 c.

Rule 1007 Announcement of sentence

Introduction. Except as noted below, this rule and the discussion are based on paragraph 76 c of MCM, 1969 (Rev.).

(a) In general. The discussion is based on United States 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 refA21-78

App. 21, R.C.M. 1004(d) APPENDIX 21
erence 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). Cf.

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 based on Mil. R. Evid. 606(b) and United States

v. West, 23 U.S.C.M.A. 77, 48 C.M.R. 548 (1974). See United

States 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 76 c and d of

MCM, 1969 (Rev.).

(c) Initiation of reconsideration. 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

changed circumstances, as long as the case remained under that

j u d g e ’ s j u r i s d i c t i o n . S i n c e t h i s a c t i o n “ u n d e r c u t s t h e r e v i e w

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 76 c,

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.

1995 Amendment: This rule was changed to prevent a sentencing authority from reconsidering a sentence announced in open

session. Subsection (b) was amended to allow reconsideration if

the sentence was less than the mandatory maximum prescribed

for the offense or the sentence exceeds the maximum permissible

punishment for the offense or the jurisdictional limitation of the

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

judge to clarify an announced sentence that is ambiguous. Subsection (d) provides for the convening authority to exercise disc r e t i o n a r y a u t h o r i t y t o r e t u r n a n a m b i g u o u s s e n t e n c e f o r

clarification, or take action consistent with R.C.M. 1107.

2002 Amendment: Subsection (e)(3)(B)(ii) was amended as a

result of the enactment of Article 56a, UCMJ, in section 581 of

the National Defense Authorization Act for Fiscal Year 1998,

Pub. L. No. 105-85, 111 Stat. 1629, 1759 (1997).

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

t o F e d . R . C r i m . P . 3 2 ( a ) ( 2 ) , b u t i s b r o a d e r i n t h a t i t a p p l i e s

whether or not the accused pleaded guilty. This is because the

accused’s post-trial and appellate rights are the same, regardless

of the pleas, and because the powers of the convening authority

and the Court of Criminal Appeals to reduce the sentence are

important even if the accused has pleaded guilty.

1986 Amendment: This rule was changed to delete subsection-

(b) which required an inquiry by the military judge. The Senate

Report addresses only advice; inquiry to determine the accused’s

understanding is deemed unnecessary in view of the defense

counsel’s responsibility in this area.

1991 Amendment: This rule was changed to place the responsibility for informing the accused of post-trial and appellate rights

on the defense counsel rather than the military judge. Counsel is

better suited to give this advisement in an atmosphere in which

the accused is more likely to comprehend the complexities of the

rights.

Rule 1011 Adjournment

This rule is based on paragraph 77 b 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 44 e of MCM, 1969 (Rev.).

(B) Post-trial confinement. Subsection (1) is based on Article

57(b) and on the last sentence of paragraph 44 e 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 21 d 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.

The purpose of subsection (2) is to provide a prompt, convenA21-79

ANALYSIS App. 21, R.C.M. 1101(B)
ient 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 first sentence of the second paragraph of paragraph 20 d(1)

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.

Teague, 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.

1 0 8 7 ( 1 9 8 1 ) , d e l e t e d t h e l a n g u a g e c o n c e r n i n g s u c h d e t e n t i o n

pending the result of trial.

(C) Deferment of confinement. Subsection (1) is based on the

first sentence of paragraph 88 f of MCM, 1969 (Rev.). The

discussion is based on the second and third sentences of paragraph 88 f 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 88 f 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,

Criminal Appeals, § 21–2.5 (1978); Trotman v. Haebel, 12 M.J.

2 7 ( C . M . A . 1 9 8 1 ) ; P e a r s o n v . C o x , s u p r a ; S t o k e s v . U n i t e d

States, 8 M.J. 819 (A.F.C.M.R. 1979), pet. denied, 9 M.J. 33

(1980). See also the first paragraph of paragraph 88 f of MCM,

1969 (Rev.). The penultimate sentence recognized the standard of

review exercised by the Courts of Criminal Appeals, the Court of

Appeals for the Armed Forces, 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 88

f of MCM, 1969 (Rev.).

Subsection (5) is based on the fifth paragraph of paragraph 88 f

of MCM, 1969 (Rev.) and on Pearson v. Cox, supra.

Subsection (6) modifies the last two paragraphs of paragraph

88 f of MCM, 1969 (Rev.) to conform to the amendment of

Article 71(c), see Pub. L. No. 98–209, § 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 88 f of MCM, 1969 (Rev.) and with Collier v.

United States, 19 U.S.C.M.A. 511, 42 C.M.R. 113 (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 subs e c t i o n ( B ) , d e f e r m e n t m a y b e t e r m i n a t e d a t a n y t i m e b y

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 88 f 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.

518, 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 ) p e r m i t s t h e a c c u s e d a n o p p o r t u n i t y t o s u b m i t m a t t e r s

before the order of execution, which precludes deferment under

Article 57(d), is issued.

1991 Amendment: The Discussion accompanying this subsection was amended to provide for the inclusion of the written basis

for any denial of deferment in the record of trial. Although written reasons for denials are not mandatory, and their absence from

the record of trial will not per se invalidate a denial decision,

their use is strongly encouraged. See Longhofer v. Hilbert, 23

M.J. 755 (A.C.M.R. 1986).

1998 Amendment: In enacting section 1121 of the National

Defense Authorization Act for Fiscal Year 1996, Pub. L. No. 104-

106, 110 Stat. 186, 462, 464 (1996), Congress amended Article

57(a) to make forfeitures of pay and allowances and reductions in

grade effective either 14 days after being adjudged by a courtmartial, or when the convening authority takes action in the case,

whichever was earlier in time. Until this change, any forfeiture or

reduction in grade adjudged by the court did not take effect until

convening authority action, which meant the accused often retained the privileges of his or her rank and pay for up to several

months. The intent of the amendment of Article 57(a) was to

change this situation so that the desired punitive and rehabilitative

impact on the accused occurred more quickly.

Congress, however, desired that a deserving accused be permitted to request a deferment of any adjudged forfeitures or reduct i o n i n g r a d e , s o t h a t a c o n v e n i n g a u t h o r i t y , i n a p p r o p r i a t e

situations, might mitigate the effect of Article 57(a).

This change to R.C.M. 1101 is in addition to the change to

R.C.M. 1203. The latter implements Congress’ creation of Article

57(a), giving the Service Secretary concerned the authority to

defer a sentence to confinement pending review under Article

67(a)(2).

(d) Waiving forfeitures resulting from a sentence to confinement

to provide for dependent support. 1998 Amendment: This new

A21-80

App. 21, R.C.M. 1101(B) APPENDIX 21
subsection implements Article 58b, UCMJ, created by section

1122, National Defense Authorization Act for Fiscal Year 1996,

Pub. L. No. 104-106, 110 Stat. 186, 463 (1996). This article

permits the convening authority (or other person acting under

Article 60) to waive any or all of the forfeiture of pay and

allowances forfeited by operation of Article 58b(a) for a period

not to exceed six months. The purpose of such waiver is to

provide support to some or all of the accused’s dependent(s)

when circumstances warrant. The convening authority directs the

waiver and identifies those dependent(s) who shall receive the

payment(s).

Rule 1102 

Introduction. This rule is based on Article 60(e) and on

paragraphs 80 c and 86 d 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 United States 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. 411

(1967).

(a) In general. This subsection is based on Article 60(e), on the

first sentence of paragraph 80 c of MCM, 1969 (Rev.), which

indicated that a court-martial could conduct proceedings in revision on its own motion, and on paragraph 86 d of MCM, 1969

(Rev.).

(b) Purpose. Subsection (1) is based on the second sentence of

paragraph 86 d of MCM, 1969 (Rev.). The discussion of subsection (1) is based on the last paragraph of paragraph 80 d of

MCM, 1969 (Rev.) and on United States v. Steck, 10 M.J. 412

(C.M.A. 1981); United States 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 21 is based on

United States v. Anderson, supra.

1994 Amendment: The amendment to subsection (b)(2) of this

rule clarifies that Article 39(a), UCMJ, authorizes the military

judge to take such action after trial and before authenticating the

record of trial as may be required in the interest of justice. See

United States v. Griffith, 27 M.J. 42, 47 (C.M.A. 1988). The

amendment to the Discussion clarifies that the military judge may

take remedial action on behalf of an accused without waiting for

an order from an appellate court. Under this subsection, the military judge may consider, among other things, misleading instructions, legal sufficiency of the evidence, or errors involving the

misconduct of members, witnesses, or counsel. Id.; See United

States v. Scaff, 29 M.J. 60, 65 (C.M.A. 1989).

(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 86 d 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). Paragraph 86 d indicated that a proceeding in revision

could be used to “make the record show the true proceedings.” A

certificate of correction is the appropriate mechanism for this, so

the former provision is deleted. Note that a trial 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.

2007 Amendment: For purposes of this rule, the list of appropriate reviewing authorities included in the 1994 amendment includes any court authorized to review cases on appeal under the

UCMJ.

(e) Procedure. Subsection (1) is based on paragraph 80 b 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 80 c 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 80 d of MCM, 1969

(Rev.).

Rule 1102A Post-trial hearing for person found

not guilty only be reason of lack of mental

responsibility.

1998 Amendment: This new Rule implements Article 76b(b),

UCMJ. Created in section 1133 of the National Defense Authorization Act for Fiscal Year 1996, Pub. L. No. 104-106, 110 Stat.

186, 464-66 (1996), it provides for a post-trial hearing within

forty days of the finding that the accused is not guilty only by

reason of a lack of mental responsibility. Depending on the offense concerned, the accused has the burden of proving either by

a preponderance of the evidence, or by clear and convincing

evidence, that his or her release would not create a substantial

risk of bodily injury to another person or serious damage to

property of another due to a present mental disease or defect. The

intent of the drafters is for R.C.M. 1102A to mirror the provisions

of sections 4243 and 4247 of title 18, United States Code.

Rule 1103 Preparation of record of trial

(a) In general. This subsection is based on Article 54(c) and on

the first sentence of paragraph 82 a of MCM, 1969 (Rev.).

(b) General courts-martial. Subsection (1)(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. § 753; Fed. R. App.P. 11

(b). The responsibility of the trial counsel for preparation of the

record is established by Article 38(a), however. Subsection (1)(B)

is based on the second paragraph of paragraph 82 a of MCM,

1969 (Rev.). See also United States 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 82 b(1) of MCM, 1969 (Rev.). Cf. Article 19.

Subsection (2)(B) is based on Article 54(c) and on the third

sentence of paragraph 82 b(1) of MCM, 1969 (Rev.). See 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; United States v.

W h i t m a n , 2 3 U . S . C . M . A . 4 8 , 4 8 C . M . R . 5 1 9 ( 1 9 7 4 ) ; U n i t e d

States 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

A21-81

ANALYSIS App. 21, R.C.M. 1103(b)
(1953). The exception in the stem of subsection (2)(B) is based

on Article 1(14). See Analysis, subsection (j) of this rule.

The first paragraph of the discussion under subsection (2)(B) is

based on the third sentence of paragraph 82 b(1), and paragraphs

82 b(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 82 b(1) of MCM, 1969 (Rev.).

2 0 0 2 A m e n d m e n t : S u b s e c t i o n ( b ) ( 2 ) ( B ) w a s a m e n d e d t o

implement the amendment to 10 U.S.C. Sec. 819 (Article 19,

UCMJ) contained in section 577 of the National Defense Authorization Act for Fiscal Year 2000, P. L. No. 106-65, 113 Stat. 512

(1999) increasing the jurisdictional maximum punishment at special courts-martial. R.C.M. 1103(b)(2)(B) was amended to prevent

an inconsistent requirement for a verbatim transcript between a

general court-martial and a special court-martial when the adjudged sentence of a general court-martial does not include a

punitive discharge or confinement greater than six months, but

does include forfeiture of two-thirds pay per month for more than

six months but not more than 12 months.

Subsection (2)(C) is based on the fourth sentence of paragraph

82 b(1) 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. § 753(b); Fed. R. Crim. P. 11(g) and

12(g); and Fed. R. App. P. 10. See also Fed. R. Crim. P. 5.1(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. United

States, 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, 11 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); United States v. McCullah, supra; United States

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);

United States v. Boxdale, supra; United States v. Richardson, 21

U.S.C.M.A. 383, 45 C.M.R. 157 (1972); United States v. Weber,

2 0 U . S . C . M . A . 8 2 , 4 2 C . M . R . 2 7 4 ( 1 9 7 0 ) ; U n i t e d S t a t e s 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).

1991 Amendment: Subsection (b)(2)(D)(iv) was redesignated as

subsection (b)(2)(D)(v), and new subsection (b)(2)(D)(iv) was

added. The 1984 rules omitted any requirement that the convening authority’s action be included in the record of trial. This

amendment corrects that omission.

Subsection (3) is based on paragraph 82 b(5), the last sentence

of paragraph 84 c, paragraph 85 d, the third sentence of the third

paragraph of paragraph 88 f, the penultimate sentence of paragraph 88 g, and the last sentence of paragraph 91 c of MCM,

1969 (Rev. ). See also S. Rep. No. 53, 98th Cong., 1st Sess. 26

(1983); R.C.M. 1106(f) and Analysis; and United States v. Lott, 9

M.J. 70 (C.M.A. 1980).

1995 Amendment: Punishment of confinement on bread and

water or diminished rations [R.C.M. 1003(d)(9)], as a punishment

imposable by a court-martial, was deleted. Consequently, the requirement to attach a Medical Certificate to the record of trial

[ R . C . M . 1 1 0 3 ( b ) ( 3 ) ( L ) ] w a s d e l e t e d . S u b s e c t i o n s ( 3 ) ( M ) a n d

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

(c) Special courts-martial. This subsection is based on Articles

19 and 54(c) and paragraph 83 of MCM, 1969 (Rev.).

2002 Amendment: Subsection (c) was amended to implement

the amendment to 10 U.S.C. Sec. 819 (Article 19, UCMJ) contained in section 577 of the National Defense Authorization Act

for Fiscal Year 2000, P. L. No. 106-65, 113 Stat. 512 (1999)

i n c r e a s i n g t h e j u r i s d i c t i o n a l m a x i m u m p u n i s h m e n t a t s p e c i a l

courts-martial. R.C.M. 1103(c) was amended to conform the requirements for a verbatim transcript with the requirements of

Article 19 for a ’complete record’ in cases where the adjudged

sentence includes a bad-conduct discharge, confinement for more

than six months, or forfeiture of pay for more than six months.

(e) Acquittal; termination prior to findings. This subsection is

based on the fifth sentence of paragraph 82 b(1) and the third

sentence of paragraph 83 b of MCM, 1969 (Rev.). The language

of paragraph 82 b(1) which referred to termination “with prejudice to the Government” has been modified. If the court-martial

t e r m i n a t e s b y r e a s o n o f m i s t r i a l , w i t h d r a w a l , o r d i s m i s s a l o f

c h a r g e s , a l i m i t e d r e c o r d i s a u t h o r i z e d , w h e t h e r o r n o t t h e

proceedings could be reinstituted at another court-martial.

(f) Loss of notes or recordings of the proceedings. This subsection is based on paragraph 82 i of MCM, 1969 (Rev. ). See also

United States v. Lashley, 14 M.J. 7 (C.M.A. 1982); United States

v. Boxdale. supra.

2002 Amendment: Subsection (f)(1) was amended to implement

the amendment to 10 U.S.C. Sec. 819 (Article 19, UCMJ) contained in section 577 of the National Defense Authorization Act

for Fiscal Year 2000, P. L. No. 106Sec. 65, 113 Stat. 512 (1999)

i n c r e a s i n g t h e j u r i s d i c t i o n a l m a x i m u m p u n i s h m e n t a t s p e c i a l

courts-martial. R.C.M. 1103(f)(1) was amended to include the

additional limitations on sentence contained in Article 19, UCMJ.

2004 Amendment: Subsection (f)(2) was amended to reflect

amendments to Article 63, UCMJ, in the National Defense Authorization Act for Fiscal Year 1993, Pub.L.No. 102-484, 106

Stat. 2315, 2506 (1992). The revisions provide that subsection

(f)(2) sentencing limitations are properly applicable only to the

sentence that may be approved by the convening authority following a rehearing. Subsection (f)(2) as revised does not limit the

maximum sentence that may be adjudged at the rehearing. See

United States v. Gibson, 43 M.J. 343 (1995); United States v.

Lawson, 34 M.J. 38 (C.M.A. 1992)(Cox, J., concurring); United

States v. Greaves, 48 M.J. 885 (A.F.Ct.Crim.App. 1998), rev.

denied, 51 M.J. 365 (1999).

(g) Copies of the record of trial. Subsection (1) is based on the

first paragraph of paragraph 49 b(2) of MCM, 1969 (Rev.). The

trial counsel is responsible for preparation of the record (see

Article 38(a)), although, as paragraph 49 b(2) of MCM, 1969

(Rev.) indicated, ordinarily the court reporter actually prepares

A21-82

App. 21, R.C.M. 1103(b) APPENDIX 21
the record. In subsection (A), the number of copies required has

been increased from two to four to conform to current practice.

1993 Amendment: Subsection (g)(1)(A) was amended by adding the phrase “and are subject to review by a Court of Criminal

Appeals under Article 66” to eliminate the need to make four

copies of verbatim records of trial for courts-martial which are

not subject to review by a Court of Criminal Appeals. These

cases are reviewed in the Office of the Judge Advocate General

under Article 69 and four copies are not ordinarily necessary.

(h) Security classification. This subsection is based on the first

sentence of paragraph 82 d of MCM, 1969 (Rev.). The remainder

of that paragraph is deleted as unnecessary.

(i) Examination of the record. Subsection (1)(A) and the first

paragraph of the discussion are based on the first paragraph of

paragraph 82 e of MCM, 1969 (Rev.).

Subsection (1)(B) is based on the first sentence of the second

paragraph of paragraph 82 e of MCM, 1969 (Rev.). The first

paragraph of the discussion is based on United States v. Anderson, supra at 197. Examination before authentication will improve the accuracy of the record, reduce the possibility of the

necessity for a certificate of correction, and obviate the problems

discussed in Anderson. The first paragraph of the discussion is

based on the fourth and fifth sentences of the second paragraph of

paragraph 82 e of MCM, 1969 (Rev.). See also United States v.

Anderson, supra at 197. The second paragraph of the discussion

is based onUnited v. Anderson, supra. See also United States v.

Everett, 3 M.J. 201, 202 (C.M.A. 1977). The third paragraph of

the discussion is based on the second sentence of the second

paragraph of paragraph 82 e of MCM, 1969 (Rev.).

(j) Videotape and similar records. This subsection is new and is

based on Article 1(14), which is also new. See Military Justice

Act of 1983, Pub.L. No. 98-209, § 6(a), 97 Stat. 1393 (1983).

T h i s s u b s e c t i o n i m p l e m e n t s A r t i c l e 1 ( 1 4 ) i n a c c o r d a n c e w i t h

guidance in S.Rep. No. 53, 98th Cong., 1st Sess. 25-26 (1983).

The concerns expressed in United States v. Barton, 6 M.J. 16

(C.M.A. 1978) were also considered.

S u b s e c t i o n ( 1 ) p r o v i d e s f o r r e c o r d i n g c o u r t s - m a r t i a l b y

videotape, audiotape, or similar means, if authorized by regulation

of the Secretary concerned. Such Secretarial authorization is necessary to ensure that this procedure will be used only when

appropriate equipment is available to permit its effective use, in

accordance with the requirements for this rule. Such equipment

includes not only devices capable of recording the proceedings

accurately, but playback equipment adequate to permit transcription by trained personnel or examination by counsel and reviewing authorities. In addition, if transcription is not contemplated,

the recording method used must be subject to production of duplicates for compliance with subsection (j)(5) of this rule.

Subsection (2) requires that, ordinarily, the record will be reduced to writing, even if recorded as described in subsection (1).

This preference for a written record is based on the fact that such

a record is easier to use by counsel, reviewing authorities, and the

accused, and is often easier to produce in multiple copies. Cf.

United States v. Barton, supra. Note, however, that the rule permits recording proceedings and transcribing them later without

using a court reporter. This adds a measure of flexibility in the

face of a possible shortage of court reporters. This subsection is

consistent with the already common practice of using “back-up”

recordings to prepare a record when the court reporter’s equipment has failed.

Subsection (3) recognizes that military exigencies may prevent

transcription of the record, especially at or near the situs of the

trial. In such instances, where an accurate record already exists,

the convening authority’s action should not be postponed for lack

of transcription, subject to the provisions in subsection (3). Thus,

the convening authority may take action, and transcription for

appellate or other reviewing authorities may occur later. See subsection (4). Note that additional copies of the record need not be

prepared in such case, except as required in subsection (j)(5)(A).

Note also, however, that facilities must be reasonably available

for use by the defense counsel (and when appropriate the staff

judge advocate or legal officer, see R.C.M. 1106) to listen to or

view and listen to the recordings to use this subsection.

Subsection (4)(A) is based on the recognition that it is impracticable for appellate courts and counsel not to have a written

record. See S.Rep. No. 53, supra at 26; United States v. Barton,

supra. Note that the transcript need not be authenticated under

R.C.M. 1104. Instead, under regulations of the Secretary concerned the accuracy of the transcript can be certified by a person

who has viewed and/or heard the authenticated recording.

Subsection (4)(B) provides flexibility in cases not reviewed by

the Court of Criminal Appeals. Depending on regulations of the

Secretary, a written record may never be prepared in some cases.

Many cases not reviewed by a Court of Criminal Appeals will be

reviewed only locally. See R.C.M. 1112. The same exigencies

which weigh against preparation of a written record may also

exist before such review. If a written record in not prepared, the

review will have to be conducted by listening to or viewing and

listening to the authenticated recording.

Subsection (5) provides alternative means for the government

to comply with the requirement to serve a copy of the record of

trial on the accused. Article 54(d). Note that if a recording is

used, the Government must ensure that it can provide the accused

reasonable opportunity to listen to or view and listen to the

recording.

Rule 1104 Records of trial: authentication;

service; correction; forwarding

(a) Authentication. Subsection (1) is new and is self-explanatory.

Subsection (2) is based on Article 54(a) and (b) and paragraph

82 f of MCM, 1969 (Rev.). The former rule has been changed to

require that the record, or even a portion of it, may be authenticated only be a person who was present at the proceedings the

record of which that person is authenticating. This means that in

some cases (e.g., when more than one military judge presided in a

case) the record may be authenticated by more than one person.

See United States v. Credit, 4 M.J. 118 (C.M.A. 1977); S.Rep.

No. 1601, 90th Cong., 2d Sess. 12-13 (1968); H.R. Rep. No.

1481, 90th Cong., 2d Sess. 10 (1968). See also United States v.

Galloway, 2 U.S.C.M.A. 433, 9 C.M.R. 63 (1953). This subsection also changes the former rule in that it authorizes the Secretary concerned to prescribe who will authenticate the record in

special courts-martial at which no bad-conduct discharge is adjudged. See Article 54(b). In some services, the travel schedules

of military judges often result in delays in authenticating the

record. Such delays are substantial, considering the relatively less

severe nature of the sentences involved in such cases. This subA21-83

ANALYSIS App. 21, R.C.M. 1104(a)
section allows greater flexibility to achieve prompt authentication

and action in such cases. The second paragraph of the discussion

is based on United States v. Credit, supra; United States v. CruzRijos, 1 M.J. 429 (C.M.A. 1976). See also United States v. Lott, 9

M.J. 70 (C.M.A. 1980); Unites States v. Green, 7 M.J. 687

( N . C . M . R . 1 9 7 9 ) ; U n i t e d S t a t e s v . L o w e r y , 1 M . J . 1 1 6 5

(N.C.M.R. 1977). The third paragraph of the discussion is based

on United States v. Lott, supra; United States v.Credit, supra.

2002 Amendment: Subsection (a)(2)(A) was amended to imp l e m e n t t h e a m e n d m e n t t o 1 0 U . S . C . S e c . 8 1 9 ( A r t i c l e 1 9 ,

UCMJ) contained in section 577 of the National Defense Authorization Act for Fiscal Year 2000, P. L. No. 106-65, 113 Stat. 512

(1999) increasing the jurisdictional maximum punishment at special courts-martial. R.C.M. 1104(a)(2)(A) was amended to ensure

that the military judge authenticates all verbatim records of trial at

special courts-martial.

(b) Service. Subsection (1)(A) is based on Article 54(d) and the

first sentence of paragraph 82 g(1) of MCM, 1969 (Rev.) See also

H.R. Rep. No. 2498, 81st Cong., 1st Sess. 1048 (1949).

Subsection (1)(B) is based on the third through fifth sentences

of the first paragraph of paragraph 82 g(1) of MCM, 1969 (Rev.).

Subsection (1)(C) is based on H.R. Rep. No. 549, 98th Cong.,

1st Sess. 15 (1983); United States 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 to the

record in order to do so. Cong. Rec. § 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 (1)(D) is based on the third and fourth paragraphs

of paragraph 82 g(1) of MCM, 1969 (Rev.).

(c) Loss of record. This subsection is based on paragraph 82 h 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 of record after authentication; certificate of correction. Subsection (1) and the discussion are based on paragraph

86 c of MCM, 1969 (Rev.). See also the first paragraph of

paragraph 95 of MCM, 1969 (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 of the Trial Judge

§ 6–1.6 (1978). The discussion is based on United States v. Anderson, supra. Subsection (3) is based on the second paragraph of

paragraph 82 g(1) and paragraph 86 c 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 84 a of

MCM, 1969 (Rev.).

2002 Amendment: Subsection (e) was amended to implement

the amendment to 10 U.S.C. Sec. 819 (Article 19, UCMJ) contained in section 577 of the National Defense Authorization Act

for Fiscal Year 2000, P. L. No. 106-65, 113 Stat. 512 (1999)

i n c r e a s i n g t h e j u r i s d i c t i o n a l m a x i m u m p u n i s h m e n t a t s p e c i a l

courts-martial. This amendment reflects the change to R.C.M.

1106 for special court- martial with an adjudged sentence that

includes confinement for one year.

Rule 1105 Matters submitted by the accused

(a) In general. This subsection is based on Articles 38(c) and

60(b). See also paragraphs 48 k(2) and 77 a 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 paragraph 48 k(3) and 77 a of MCM, 1969

(Rev.). Note that the matters the accused submits must be forwarded to the convening authority. See United States 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; United States

Bishop, 11 M.J. 7 (C.M.A. 1981); United States v. West , 23

U.S.C.M.A. 77, 48 C.M.R. 458 (1974); United States v. Bourchier, 5 U.S.C.M.A. 15, 17 C.M.R. 15 (1954).

1995 Amendment: The Discussion accompanying subsection

(b)(4) was amended to reflect the new requirement, under R.C.M.

1106(d)(3)(B), that the staff judge advocate or legal advisor inform the convening authority of a recommendation for clemency

by the sentencing authority, made in conjunction with the announced sentence.

(c) Time periods. 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).

1986 Amendment: Subsection (c) was revised to reflect amendments to Article 60, UCMJ, in the “Military Justice Amendments

of 1986,” tit. VIII, § 806, National Defense Authorization Act for

Fiscal Year 1987, Pub.L. No. 99–661, 100 Stat, 3905, (1986).

These amendments simplify post-trial submissions by setting a

simple baseline for calculating the time for submissions.

1994 Amendment: Subsection (c)(1) was amended to clarify

that the accused has 10 days to respond to an addendum to a

recommendation of the staff judge advocate or legal officer when

t h e a d d e n d u m c o n t a i n s n e w m a t t e r . S e e U n i t e d S t a t e s v .

Thompson, 25 M.J. 662 (A.F.C.M.R. 1987). An additional amendment permits the staff judge advocate to grant an extension of the

10-day period.

(d) Waiver. Subsection (1) is based on Article 60(c)(2). Subsection (2) is based on Article 60(c)(2). This subsection clarifies that

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App. 21, R.C.M. 1104(a) APPENDIX 21
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).

S u b s e c t i o n ( 4 ) e n s u r e s t h a t t h e a c c u s e d c a n n o t , b y a n u n -

authorized 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)(1)(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, §

5(a)(1), 97 Stat. 1393 (1983). The first paragraph of paragraph 85

a of MCM, 1969 (Rev.) was similar.

2002 Amendment: Subsection (a) was amended to implement

the amendment to 10 U.S.C. Sec. 819 (Article 19, UCMJ) contained in section 577 of the National Defense Authorization Act

for Fiscal Year 2000, P. L. No. 106-65, 113 Stat. 512 (1999)

i n c r e a s i n g t h e j u r i s d i c t i o n a l m a x i m u m p u n i s h m e n t a t s p e c i a l

courts-martial. This amendment requires all special courts-martial

cases subject to appellate review to comply with this rule.

(b) Disqualification. This subsection is based on Article 6(c) and

on the second paragraph of paragraph 85 a of MCM, 1969 (Rev.).

Legal officers have been included in its application based on

A r t i c l e 6 0 ( d ) . T h e d i s c u s s i o n n o t e s a d d i t i o n a l c i r c u m s t a n c e s

which have been held to disqualify a staff judge advocate. The

first example is based on United States 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 United States 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); United States v. Conn, 6 M.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 1(9); 6(c); 22(b); 23(b). The

fourth example is based on United States v. Collins, 6 M.J. 256

( C . M . A . 1 9 7 9 ) ; U n i t e d S t a t e s v . E n g l e , 1 M . J . 3 8 7 ( C . M . A .

1976). See also United States 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.

1986 Amendment: The phrase “or any reviewing officer” was

changed to “to any reviewing officer” to correct an error in

MCM, 1984.

(c) When the convening authority does not have a staff judge

advocate or legal officer or that person is disqualified. Subsection (1) is based on the third paragraph of paragraph 85 a 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 ) F o r m a n d c o n t e n t o f r e c o m m e n d a t i o n . T h i s s u b s e c t i o n i s

based on Article 60(d) and on S.Rep. No. 53, 98th Cong., 1st

Sess. 20 (1983). As to the subsection (1), 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 85 b of MCM, 1969 (Rev.) is deleted.

Paragraph 85 c 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. 1981);

United States v. Dixson, 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.

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

the staff judge advocate’s or legal advisor’s recommendation inform the convening authority of any clemency recommendation

made by the sentencing authority in conjunction with the announced sentence, absent a written request by the defense to the

contrary. Prior to this amendment, an accused was responsible for

informing the convening authority of any such recommendation.

The amendment recognizes that any clemency recommendation is

so closely related to the sentence that staff judge advocates and

legal advisors should be responsible for informing convening authorities of it. The accused remains responsible for informing the

convening authority of other recommendations for clemency, including those made by the military judge in a trial with member

sentencing and those made by individual members. See United

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

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

(d)(3)(F), respectively.,

(e) No findings of guilty. This subsection is based on Article 60

and 63. When no findings of guilty are reached, no action by the

convening authority is required. Consequently, no recommendation by the staff judge advocate or legal officer is necessary. The

last paragraph of paragraph 85 b of MCM, 1969 (Rev.), which

was based on Article 61 (before it was amended), was similar.

1990 Amendment: Subsection (e) was amended in conjunction

with the implementation of findings of not guilty only by reason

of lack of mental responsibility provided for in Article 50 a,

UCMJ (Military Justice Amendments of 1986, tit. VIII, § 802,

National Defense Authorization Act for Fiscal Year 1987, Pub. L.

99-661, 100 Stat. 3905 (1986)).

(f) Service of recommendation on 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

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ANALYSIS App. 21, R.C.M. 1106(f)
on Article 60(d). See also United States v. Hill, M.J. 295 (C.M.A.

1977); United States v. Goode, supra.

1990 Amendment: Subsection (f)(1) was added to make clear

that the accused should be provided with a personal copy of the

recommendation.

1 9 9 4 A m e n d m e n t : T h e D i s c u s s i o n t o s u b s e c t i o n ( f ) ( l ) w a s

amended to correct a grammatical error and to clarify that the

method of service of the recommendation on the accused and the

accused’s counsel should be reflected in the attachments to the

record of trial. If it is impractical to serve the accused, the record

should contain a statement justifying substitute service. Subsection (f)(1) recognizes that Congress sanctions substitute service

on the accused’s counsel. H.R. Rep. No. 549, 98th Cong., 1st

Sess. 15 (1983). See also United States v. Roland, 31 M.J. 747

(A.C.M.R. 1990).

Subsection (2) makes clear who is to be served with the posttrial 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);

United States v. Robinson, supra; United States v. Clark, 11 M.J.

70 (C.M.A. 1981); United States v. Elliot, 11 M.J. 1 (C.M.A.

1981); United States v. Marcoux, 8 M.J. 155 (C.M.A. 1980);

United States v. Brown, 5 M.J. 454 (C.M.A. 1978); United States

v. Davis, 5 M.J. 451 (C.M.A. 1978); United States v. Iverson, 5

M.J. 440 (C.M.A. 1978); United States v. Annis, 5 M.J. 351

(C.M.A. 1978). The last sentence in this subsection is based on

United States v. Robinson, United States v. Brown, and United

States v. Iverson, all supra. The discussion is based on United

States v. Robinson, supra.

Subsection (3) is based on United States v. Babcock, supra;

United States 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).

1 9 8 6 A m e n d m e n t : S u b s e c t i o n ( 5 ) w a s a m e n d e d t o r e f l e c t

a m e n d m e n t s t o A r t i c l e 6 0 , U C M J , i n t h e “ M i l i t a r y J u s t i c e

Amendments of 1986,” tit. VIII, § 806, National Defense Authorization Act for Fiscal Year 1987, Pub.L. No. 99-661, 100 Stat.

3905 (1986). See Analysis to R.C.M. 1105(c).

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

S t a t e s v . G o o d e , s u p r a . B u t s e e U n i t e d S t a t e s v . B u r r o u g h s ,

supra; United States v. Moles, 10 M.J. 154 (C.M.A. 1981) (defects not waived by failure to comment).

Subsection (7) is based onUnited States v. Narine , 14 M.J. 55

(C.M.A. 1982).

1994 Amendment: Subsection (f)(7) was amended to clarify

that when new matter is addressed in an addendum to a recommendation, the addendum should be served on the accused and

the accused’s counsel. The change also clarifies that the accused

has 10 days from the date of service in which to respond to the

new matter. The provision for substituted service was also added.

Finally, the Discussion was amended to reflect that service of the

addendum should be established by attachments to the record of

trial.

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 84 b and the

first sentence of paragraph 84 c of MCM, 1969 (Rev.) except

insofar as the amendment of Article 60 provides otherwise. See

Military Justice Act of 1983, Pub.L. No. 98-209, § 5(a)(1), 97

Stat. 1393 (1983). The first paragraph in the discussion is based

on the last two sentences of paragraph 84 a of MCM, 1969

(Rev.). The second paragraph of the discussion is based on the

second and third sentences of paragraph 84 c of MCM, 1969

(Rev.); United States v. Conn, 6 M.J. 351 (C.M.A. 1979); United

States v. Reed, 2 M.J. 64 (C.M.A. 1976); United States 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)rev’d 17 M.J. 51. The reference in the third sentence

of paragraph 84 c of MCM, 1969 (Rev.) to disqualification of a

convening authority because the convening authority granted immunity to a witness has been deleted. See United States v. Newman, 14 M.J. 474 (C.M.A. 1983). Note that although Newman

held that a convening 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 are

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).

S u b s e c t i o n ( 3 ) ( A ) ( i ) i s b a s e d o n A r t i c l e 6 0 ( a ) . S u b s e c t i o n

( 3 ) ( A ) ( i i ) i s b a s e d o n A r t i c l e 6 0 ( d ) . S u b s e c t i o n ( 3 ) ( A ) ( i i i ) i s

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 85 b 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 86 b(2) of

MCM, 1969 (Rev.) except that it does not refer to examining the

record for jurisdictional error.

1990 Amendment: Subsection (b)(4) was amended in conjunction with the implementation of findings of not guilty only by

reason of lack of mental responsibility provided for in Article 50

a, UCMJ (Military Justice Amendments of 1986, tit. VIII, § 802,

National Defense Authorization Act for Fiscal Year 1987, Pub. L.

99–661, 100 Stat. 3905 (1986)).

Subsection (5) is based on the second paragraph of paragraph

1 2 4 o f M C M , 1 9 6 9 ( R e v . ) . S e e a l s o U n i t e d S t a t e s v . K o r -

zeniewski, 7 U.S.C.M.A. 314, 22 C.M.R. 104 (1956); United

States v. Washington, 6 U.S.C.M.A.114, 19 C.M.R. 240 (1955);

United States v. Phillips, 13 M.J. 858 (N.M.C.M.R. 1982).

1986 Amendment: The fourth sentence of subsection (b)(5) was

amended to shift to the defense the burden of showing the accused’s lack of mental capacity to cooperate in post-trial proceedings. This is consistent with amendments to R.C.M. 909(c)(2) and

R.C.M. 916(k)(3)(A) which also shifted to the defense the burden

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App. 21, R.C.M. 1106(f) APPENDIX 21
of showing lack of mental capacity to stand trial and lack of

mental responsibility. The second sentence was added to establish

a presumption of capacity and the third sentence was amended to

allow limitation of the scope of the sanity board’s examination.

The word “substantial” is used in the second and third sentences

to indicate that considerable more credible evidence than merely

an allegation of lack of capacity is required before further inquiry

need be made. Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595,

2610 (1986) (Powell, J., concurring).

1998 Amendment: Congress created Article 76b, UCMJ in

section 1133 of the National Defense Authorization Act for Fiscal

Year 1996, Pub. L. No. 104-106, 110 Stat. 186, 464-66 (1996). It

gives the convening authority discretion to commit an accused

found not guilty only by reason of a lack of mental responsibility

to the custody of the Attorney General.

( c ) A c t i o n o f f i n d i n g s . T h i s s u b s e c t i o n i s b a s e d o n A r t i c l e

60(c)(2). Subsection (2)(B) is also based on Article 60(e)(1) and

(3). The first sentence in the discussion is based on Hearings on

H.R. 2498 Before a Subcomm. of the House Comm. on Armed

Services, 81st Cong., 1st Sess. 1182–85 (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 88 a of

MCM, 1969 (Rev.). The first paragraph of the discussion is based

on paragraph 88 a of MCM, 1969 (Rev.). The second paragraph

of the discussion is based on Jones v. Ignatius, 18 U.S.C.M.A. 7,

39 C.M.R. 7 (1968); United States v. Brown, 13 U.S.C.M.A. 333,

32 C.M.R. 333 (1962); United States v. Prow, 13 U.S.C.M.A. 63,

32 C.M.R. 63 (1962); United States v. Johnson, 12 U.S.C.M.A.

640, 31 C.M.R. 226 (1962); United States 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).

2002 Amendment: The Discussion accompanying subsection

(d)(1) was amended to implement the amendment to 10 U.S.C.

Sec. 819 (Article 19, UCMJ) contained in section 577 of the

National Defense Authorization Act for Fiscal Year 2000, P. L.

No. 106-65, 113 Stat. 512 (1999) increasing the jurisdictional

m a x i m u m p u n i s h m e n t a t s p e c i a l c o u r t s - m a r t i a l . R . C . M .

1107(d)(4) was amended to include the additional limitations on

sentence contained in Article 19, UCMJ.

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 88 b of MCM, 1969 (Rev.).

1995 Amendment: The last sentence in the Discussion accompanying subsection (d)(2) is new. It clarifies that forfeitures adjudged at courts-martial take precedence over all debts owed by

the accused. Department of Defense Military Pay and Allowances

Entitlement Manual, Volume 7, Part A, paragraph 70507a (12

December 1994).

Subsection (3) is based on Articles 19 and 54(c)(1) and on the

third sentence of paragraph 82 b(1) of MCM, 1969 (Rev.).

1995 Amendment: Subsection (d)(3) is new. It is based on the

recently enacted Article 57(e). National Defense Authorization

Act for Fiscal Year 1993, Pub. L. No. 102–484, 106 Stat. 2315,

2505 (1992). See generally Interstate Agreement on Detainers

Act, 18 U.S.C. App. III. It permits a military sentence to be

served consecutively, rather than concurrently, with a civilian or

f o r e i g n s e n t e n c e . T h e p r i o r s u b s e c t i o n ( d ) ( 3 ) i s r e d e s i g n a t e d

(d)(4).

1998 Amendment: All references to “postponing” service of a

sentence to confinement were changed to use the more appropriate term, “defer”.

2002 Amendment: Subsection (d)(4) was amended as a result of

the enactment of Article 56a, UCMJ, in section 581 of the National Defense Authorization Act for Fiscal Year 1998, Pub. L.

No. 105-85, 111 Stat. 1629, 1759 (1997).

Subsection (d)(5) is new. The amendment addresses the impact

of Article 58b, UCMJ. In special courts-martial, where the cumulative impact of a fine and forfeitures, whether adjudged or by

operation of Article 58b, would otherwise exceed the total dollar

amount of forfeitures that could be adjudged at the special courtmartial, the fine and/or adjudged forfeitures should be disapproved or decreased accordingly. See generally United States v.

Tualla, 52 M.J. 228, 231-32 (2000).

(e) Ordering rehearing or other trial. Subsection (1)(A) is based

on Article 60(e), and on paragraph 92 a 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 errors. Authority to order a reheari n g i s , t h e r e f o r e , “ d e s i g n e d s o l e l y t o p r o v i d e a n e x p e d i t i o u s

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 (1)(B) is based on Article 60(e).

As to subsection (1)(B)(ii), see S. Rep. No. 53, supra at 22.

Subsection (1)(B)(ii) is based on the second sentence of the second paragraph of paragraph 92 a of MCM, 1969 (Rev.). The

discussion is based on the second sentence of the fourth parag r a p h o f p a r a g r a p h 9 2 a o f M C M , 1 9 6 9 ( R e v . ) . S u b s e c t i o n

(1)(C)(i) is based on Article 62(e)(3) and on the first sentence of

the third paragraph of paragraph 92 a of MCM, 1969 (Rev.).

Subsection (1)(C)(ii) and the discussion are based on Article

60(e)(3) and on the first paragraph of paragraph 92 a of MCM,

1969 (Rev.). Subsection (1)(C)(ii) is based on the first sentence of

the tenth paragraph of paragraph 92 a of MCM, 1969 (Rev.).

Subsection (1)(D) is based on the sixth paragraph of paragraph 92

a of MCM, 1969 (Rev.). Subsection (1)(E) is based on the eighth

paragraph of paragraph 92 a of MCM, 1969 (Rev.). Because of

the modification of Article 71 (see R.C.M. 1113) and because the

convening authority may direct a rehearing after action in some

circumstances (see subsection (e)(1)(B)(ii) of this rule), the language is modified. The remaining parts of paragraph 92 a, concerning procedures for a rehearing, are now covered in R.C.M.

810.

1 9 9 5 A m e n d m e n t : T h e s e c o n d s e n t e n c e i n R . C . M .

1107(e)(1)(C)(iii) is new. It expressly recognizes that the convening authority may approve a sentence of no punishment if the

convening authority determines that a rehearing on sentence is

impracticable. This authority has been recognized by the appellate

c o u r t s . S e e e . g . , U n i t e d S t a t e s v . M o n e t e s i n o s , 2 8 M . J . 3 8

(C.M.A. 1989); United States v. Sala, 30 M.J. 813 (A.C.M.R.

1990).

2004 Amendment: The Discussion to R.C.M. 1107(e)(1)(B)(iii)

A21-87

ANALYSIS App. 21, R.C.M. 1107(e)
was moved to new subsection (1)(B)(iv) to recognize expressly

that, in cases where a superior authority has approved some findings of guilty and has authorized a rehearing as to other offenses,

the convening authority may, unless otherwise directed, reassess a

sentence based on approved findings of guilty under the criteria

established by United States v. Sales, 22 M.J. 305 (C.M.A. 1986),

and dismiss the remaining charges. See United States v. Harris,

53 M.J. 86 (2000). The power of convening authorities to reassess

had been expressly authorized in paragraph 92a of MCM, 1969.

The authorizing language was moved to the Discussion following

R.C.M. 1107(e)(1)(B)(iii) in MCM, 1984. The Discussion was

amended to advise practitioners to apply the criteria for sentence

reassessment established by United States v. Sales, 22 M.J. 305

(C.M.A. 1986). See also United States v. Harris, 53 M.J. 86

(2000); United States v. Eversole, 53 M.J. 132 (2000). The Discussion was further amended to encourage practitioners to seek

clarification from superior authority where the directive to the

convening authority is unclear.

Subsection (2) is based on paragraph 92 b of MCM, 1969

(Rev.). See also paragraph 89 c(1) 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 ) C o n t e n t s o f a c t i o n a n d r e l a t e d m a t t e r s . S u b s e c t i o n ( 1 ) i s

based on paragraph 89 a of MCM, 1969 (Rev.).

1991 Amendment: The 1984 rules omitted any requirement that

the convening authority’s action be included in the record of trial.

This amendment corrects that omission.

Subsection (2) is based on paragraph 89 b 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.

1995 Amendment: The amendment allows a convening authority to recall and modify any action after it has been published or

after an accused has been officially notified, but before a record

has been forwarded for review, as long as the new action is not

less favorable to the accused than the prior action. A convening

authority is not limited to taking only corrective action, but may

also modify the approved findings or sentence provided the modification is not less favorable to the accused than the earlier action.

Subsection (3) is based on paragraph 89 c(2) of MCM, 1969

(Rev.). The provision in paragraph 89 c(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 89 c(2) of MCM, 1969 (Rev.). Subsection (4)(A) is

based on paragraph 89 c(3) of MCM, 1969 (Rev.). The first

sentence of paragraph 89 c(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 89

c(4) of MCM, 1969 (Rev.). Subsection (4)(D) is based on paragraph 89 c(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. 1113(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 89 c(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 89 c(9) of MCM, 1969 (Rev.). Subsection

(4)(H) is modified based on the amendment of Article 71 which

permits 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)(1).

Subsection (5) is based on paragraph 89 c(8) of MCM, 1969

(Rev.). See also R.C.M. 810(d) and Analysis. The provision in

paragraph 89 c(8) requiring that the accused be credited with time

in confinement while awaiting a rehearing is deleted. Given the

p r o c e d u r e s f o r i m p o s i t i o n a n d c o n t i n u a t i o n o f r e s t r a i n t w h i l e

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. Loft, 10 J M.J. 266 (C.M.A. 1981); United States

v. Lower, 10 M.J. 263 (C.M.A. 1981).

(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,

§ 5(b)(1), 97 Stat. 1393 (1983).

Rule 1108 Suspension of execution of sentence

This rule is based on Articles 71(d) and 74, and paragraphs 88

e and 97 a 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); United States v.

Occhi, 2 M.J. 60 (C.M.A. 1976). Subsection (c) is new and based

on Article 71; United States v. Lallande, 22 U.S.C.M.A. 170, 46

C.M.R. 170 (1973); United State v. May, 10 U.S.C.M.A. 258, 27

C.M.R. 432 (1959). Cf. 18 U.S.C. § 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. 1109. The language limiting the period of

suspension to the accused’s current enlistment has been deleted.

See United States v. Thomas, 45 C.M.R. 908 (N.C.M.R. 1972).

Cf. United States v. Clardy, 13 M.J. 308 (C.M.A. 1982). See also

subsection (e) of this rule.

1990 Amendment: The third sentence was amended to delete

the limitation of Secretarial designation to an “officer exercising

general court-martial jurisdiction over the command to which the

accused is assigned” and to permit such designation to any “commanding officer.” This comports with the language of Article

74(a), UCMJ and paragraphs 97 a of MCM, 1951 and MCM,

1969. The specific designation of inferior courts-martial convening authorities to remit or suspend unexecuted portions was not

intended to limit in any other respects the Secretarial designation

power. Except for a sentence which has been approved by the

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App. 21, R.C.M. 1107(e) APPENDIX 21
President, remission or suspension authority is otherwise left entirely to departmental regulations.

The last sentence was added to clarify the authority of the

officials named in section (b) to grant clemency or mitigating

action on those parts of the sentence that have been approved and

ordered executed but that have not actually been carried out. In

the case of forfeiture the “carrying out ” involves the actual

collection after pay accrues on a daily basis. Thus, even when a

sentence to total forfeiture has been approved and ordered executed, the named officials can still grant clemency or mitigating

action. Although a prisoner may be administratively placed in a

nonpay status when total forfeiture has been ordered executed, the

total forfeiture is collected as it would otherwise accrue during

the period that the prisoner is in a nonpay status. If clemency

were granted, the prisoner could be returned administratively to a

pay status, pay would accrue, and any resulting partial forfeiture

would be collected as it accrues. Likewise, that portion of confinement which has not been served is “unexecuted”.

2004 Amendment: Subsection (b) was amended to conform to

the limitations on Secretarial authority to grant clemency for

military prisoners serving a sentence of confinement for life without eligibility for parole contained in section 553 of the Floyd D.

Spence National Defense Authorization Act for Fiscal Year 2001,

Pub.L.No. 106-398, 114 Stat. 1654, Oct 30, 2000.

Rule 1109 Vacation of suspension of sentence

(a) In general. This subsection is based on Article 72 and paragraph 97 b of MCM, 1969 (Rev.).

(b) Timeliness. This subsection is based on the fourth paragraph

of paragraph 97 b 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 of probationer pending vacation proceedings.

This subsection is new and based onGagnon v. Scarpelli, 411

U.S. 778 (1973); Morrissey v. Brewer, 408 U.S. 471 (1972);

United States v. Bingham, 3 M.J. 119 (C.M.A. 1977). It is consistent with Fed.R.Crim. P. 32.1(a)(1). Note that if the actual hearing

on vacation under subsection (d)(1) or (e)(3) and (4) is completed

within the specified time period, a separate probable cause hearing need not be held.

(d) Violation of suspended general court-martial sentence or of a

suspended court-martial sentence including a bad-conduct discharge. This subsection is based on Article 72(a) and (b); the first

two paragraphs of paragraph 97 b 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 of suspended special court-martial sentence not including a bad-conduct discharge or of 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. 32.1(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 proce s s . A t a m i n i m u m , t h e p r o b a t i o n e r m u s t b e n o t i f i e d o f t h e

changes.

1986 Amendment: Several amendments were made to R.C.M.

1109 to specify that the notice to the probationer concerning the

vacation proceedings must be in writing, and to specify that the

recommendations concerning vacation of the suspension provided

by the hearing officer must also be in writing. Black v. Romano,

471 U.S. 606, 105 S.Ct. 2254 (1985). Several references to “conditions of probation” were changed to “conditions of suspension”

for consistency of terminology.

1998 Amendment: The Rule is amended to clarify that “the

suspension of a special court-martial sentence which as approved

includes a bad-conduct discharge,” permits the officer exercising

special court-martial jurisdiction to vacate any suspended punishments other than an approved suspended bad-conduct discharge.

2002 Amendment: Subsection (e) was amended to implement

the amendment to 10 U.S.C. Sec. 819 (Article 19, UCMJ) contained in section 577 of the National Defense Authorization Act

for Fiscal Year 2000, P. L. No. 106-65, 113 Stat. 512 (1999)

i n c r e a s i n g t h e j u r i s d i c t i o n a l m a x i m u m p u n i s h m e n t a t s p e c i a l

courts-martial.

(f) Vacation of a suspended special court-martial sentence that

includes a bad-conduct discharge or confinement for one year.

Subsection (f) was amended to implement the amendment to 10

U.S.C. Sec. 819 (Article 19, UCMJ) contained in section 577 of

the National Defense Authorization Act for Fiscal Year 2000, P.

L. No. 106-65, 113 Stat. 512 (1999) increasing the jurisdictional

maximum punishment at special courts-martial. This amendment

reflects the decision to treat an approved sentence of confinement

for one year, regardless of whether any period of confinement is

suspended, as a serious offense, in the same manner as a suspended approved bad-conduct discharge at special courts-martial

under Article 72, UCMJ, and R.C.M. 1109.

Rule 1110 Waiver or withdrawal of appellate

review

Introduction. This rule is new and is based on Article 61, as

amended, see Military Justice Act of 1983, Pub.L. No. 98–209, §

5(b)(1), 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).

2002 Amendment: Subsection (a) was amended to implement

the amendment to 10 U.S.C. Sec. 819 (Article 19, UCMJ) contained in section 577 of the National Defense Authorization Act

for Fiscal Year 2000, P. L. No. 106-65, 113 Stat. 512 (1999)

i n c r e a s i n g t h e j u r i s d i c t i o n a l m a x i m u m p u n i s h m e n t a t s p e c i a l

courts-martial.

(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

c o u n s e l ( i f o n e h a s b e e n a p p o i n t e d ) w i l l d o s o c o n c e r n i n g

withdrawal. This subsection reflects this preference. It also recognizes, however, that this may not always be practicable; for examA21-89

ANALYSIS App. 21, R.C.M. 1110(b)
ple, 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)(1) as to the qualification 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.

S u b s e c t i o n ( 2 ) ( C ) p r o v i d e s f o r t h e a p p o i n t m e n t o f s u b s t i t u t e

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. 511(b). The rule, including the opportunity for

appointment of associate counsel, is intended to permit face-toface 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 and Personnel of the 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)(1)(B).

(d) Form of waiver 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) 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.

1991 Amendment: Language was added to clarify that, although

the waiver must be filed within 10 days of receipt by the accused

or defense counsel of the convening authority’s action, it may be

signed at any time after trial up to the filing deadline.

(g) Effect of waiver of withdrawal, 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 ensuring compliance with this rule. The accused

should be notified promptly if a purported waiver or withdrawal

is defective.

Rule 1111 Disposition of the record of trial after

action

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)(1)(B).

2002 Amendment: R.C.M. 1111(b) was amended to implement

the amendment to 10 U.S.C. Sec. 819 (Article 19, UCMJ) contained in section 577 of the National Defense Authorization Act

for Fiscal Year 2000, P. L. No. 106-65, 113 Stat. 512 (1999)

i n c r e a s i n g t h e j u r i s d i c t i o n a l m a x i m u m p u n i s h m e n t a t s p e c i a l

courts-martial. The amendment ensures all special courts-martial

not requiring appellate review are reviewed by a judge advocate

under R.C.M. 1112.

Rule 1112 Review by a judge advocate

This rule is based on Articles 64 and 65(b), as amended, see

Military Justice Act of 1983, Pub.L. No. 98-209, §§ 6(d)(1),

(7)(a)(1), 97 Stat. 1393 (1983).

1986 Amendment: The last paragraph of R.C.M. 1112(d) was

added to clarify the requirement that a copy of the judge advocate’s review be attached to the original and each copy of the

record of trial. The last paragraph of R.C.M. 1112(e), which

previously contained an equivalent but ambiguous requirement,

was deleted.

1990 Amendment: Subsection (b) was amended in conjunction

with the implementation of findings of not guilty only by reason

of lack of mental responsibility provided for in Article 50 a,

UCMJ (Military Justice Amendments of 1986, tit. VIII, § 802,

National Defense Authorization Act for Fiscal Year 1987, Pub. L.

99–661, 100 Stat. 3905 (1986)).

2002 Amendment:R.C.M. 1112(a)(2) was amended to implement the amendment to 10 U.S.C. Sec. 819 (Article 19, UCMJ)

contained in section 577 of the National Defense Authorization

Act for Fiscal Year 2000, P. L. No. 106-65, 113 Stat. 512 (1999)

i n c r e a s i n g t h e j u r i s d i c t i o n a l m a x i m u m p u n i s h m e n t a t s p e c i a l

courts-martial. The amendment ensures all special courts-martial

not requiring appellate review are reviewed by a judge advocate

under R.C.M. 1112.

Rule 1113 Execution of sentences

Introduction. Fed.R.Crim. P. 38 is inapplicable. The execution

of sentence 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

A21-90

App. 21, R.C.M. 1110(b) APPENDIX 21
the first paragraph of paragraph 98 of MCM, 1969 (Rev.). See

also Articles 60, 61, 64, 65, 66, and 67.

1991 Amendment: The discussion was amended by adding a

reference to subsection (5) of R.C.M. 1113(d). This brings the

d i s c u s s i o n i n t o a c c o r d w i t h t h e g e n e r a l r u l e o f R . C . M .

1113(d)(2)(A) that any court-martial sentence to confinement begins to run from the date it is adjudged.

(b) 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 88 d(1) of MCM,

1969 (Rev.). Note that under the amendment of Article 71 (see

Pub. L. No. 98-209, § 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 structure 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.

S u b s e c t i o n ( 1 ) i s b a s e d o n A r t i c l e 7 1 ( c ) . S e e a l s o A r t i c l e

64(c)(3). The last two sentences of this subsection are based on

S.Rep.No. 53, 98th Cong., 1st Sess. 25 (1983).

1991 Amendment: Language was added to the second sentence

of the paragraph following subsection (c)(1)(B) to specify that a

s t a f f j u d g e a d v o c a t e ’ s a d v i c e i s r e q u i r e d o n l y w h e n t h e s e r -

vicemember is not on appellate leave on the date of final judgment and more than six months have elapsed since the convening

authority’s approval of the sentence. The third sentence was modified to reflect this change. The subsection was not intended to

grant an additional clemency entitlement to a servicemember.

Significant duty performance since the initial approval is relevant

to the convening authority’s determination of the best interest of

the service. Since a member on appellate leave is performing no

military duty, an additional staff judge advocate’s advice would

serve no useful purpose.

Subsection (2) is based on Article 71(b).

Subsection (3) is based on Articles 66(b), 67(b)(1), and 71(a).

(d) Other considerations concerning execution of sentences. Subsection (1) is based on the third paragraph of paragraph 126 a of

MCM, 1969 (Rev.). The second paragraph of paragraph 88 d(1)

of MCM, 1969 (Rev.) is deleted as unnecessary.

1986 Amendment: Subsection (d)(1)(B) was added to incorporate the holding in Ford v. Wainwright, 477 U.S. 399, 106 S.Ct.

2595 (1986). The plurality in Ford held that the Constitution

precludes executing a person who lacks the mental capacity to

understand either that he will be executed or why he will be

executed. See also United States v. Washington, 6 U.S.C.M.A.

114, 119, 19 C.M.R. 240, 245 (1955). The Court also criticized

t h e p r o c e d u r e s s p e c i f i e d b y F l o r i d a l a w u s e d t o d e t e r m i n e

whether a person lacks such capacity because the accused was

provided no opportunity to submit matters on the issue of capacity, but the case is unclear as to what procedures would suffice.

Because of this ambiguity, the drafters elected to provide for a

judicial hearing, with representation for the government and the

accused. This is more than adequate to meet the due process

requirements of Ford v. Wainwright.

The word “substantial” is used in the third sentence to indicate

that considerably more credible evidence than merely an allegation of lack of capacity is required before further inquiry need be

made. Ford v. Wainwright, 447 U.S. 399, 426, 106 S.Ct. 2595,

2610 (1986) (Powell, J., concurring). The burden of showing the

accused’s lack of capacity is on the defense when the issue is

before the court for adjudication. This is consistent with amendments to R.C.M. 909(c)(2) and R.C.M. 916(k)(3)(A) which shifted to the defense the burden of showing lack of mental capacity

to stand trial and lack of mental responsibility. The rule also

establishes a presumption of capacity and allows limits on the

scope of the sanity board’s examination.

Subsection (2)(A) is based on Articles 14 and 57(b) and paragraph 97 c of MCM, 1969 (Rev.). See also paragraph 126 j of

MCM, 1969 (Rev.). Subsection (2)(B) is based on Article 58(b)

and the third paragraph of paragraph 126 j 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. § 951. See the second paragraph of paragraph

18 b(3) of MCM, 1969 (Rev.).

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

on the recently enacted Article 57(e). National Defense Authorization Act for Fiscal Year 1993, Pub. L. No. 102-484, 106 Stat.

2 3 1 5 , 2 5 0 5 ( 1 9 9 2 ) . S e e g e n e r a l l y I n t e r s t a t e A g r e e m e n t o n

Detainers Act, 18 U.S.C. App. III. It permits a military sentence

to be served consecutively, rather than concurrently, with a civilian or foreign sentence.The prior subsections (d)(2)(A)(iii) - (iv)

are redesignated (d)(2)(A)(iv) - (v), respectively.

Subsection (3) is based on paragraph 126 h(3) of MCM, 1969

(Rev.), but it is modified to avoid constitutional problems. See

Bearden v. Georgia, 461 U.S. 660 (1983); Tate v. Short, 401 U.S.

395 (1971); Williams v. Illinois, 399 U.S. 235 (1970). See also

United States v. Slubowski, 5 M.J. 882 (N.C.M.R. 1978), aff’d, 7

M . J . 4 6 1 ( 1 9 7 9 ) ; U n i t e d S t a t e s v . V i n y a r d , 3 M . J . 5 5 1

(A.C.M.R.), pet. denied, 3 M.J. 207 (1977); United States v.

Donaldson, 2 M.J. 605 (N.C.M.R. 1977), aff’d , 5 M.J. 212

(1978); United States v. Martinez, 2 M.J. 1123 (C.G. C.M.R.

1 9 7 6 ) ; U n i t e d S t a t e s v . K e h r l i , 4 4 C . M . R . 5 8 2 ( A . F . C . M . R .

1971), pet. denied, 44 C.M.R. 940 (1972); ABA Standards, Sentencing Alternatives and Procedures § 18–2.7 (1979).

Subsection (4) is new. See Article 57(c).

Subsection (5) is based on the last paragraph of paragraph 125

MCM, 1969 (Rev.).

Paragraph 88 d(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.

1995 Amendment: Subsection (5) was deleted when the punishment of confinement on bread and water or diminished rations

[R.C.M. 1113(d)(9)], as a punishment imposable by a court-martial, was deleted. Subsection (6) was redesignated (5).

A21-91

ANALYSIS App. 21, R.C.M. 1113(d)
Rule 1114 Promulgating orders

(a) In general. Subsections (1) and (2) are based on the first

paragraph of paragraph 90 a of MCM, 1969 (Rev.). Subsection

(3) is based on paragraph 90 e of MCM, 1969 (Rev.). This rule is

consistent in purpose with Fed.R.Crim. P. 32(b)(1).

(b) By whom issued. Subsection (1) is based on paragraph 90

b(1) 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 United States v.

Schulthise, 14 U.S.C.M.A. 31, 33 C.M.R. 243 (1963) (actions

equivalent to publication). Subsection (2) is based on paragraphs

90 b(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. Cf. Fed. R. Crim. P.

32(b)(1). See also Form 25, Appendix of Forms, Fed.R.Crim. P.

Subsection (2) is based on the third, fourth, and fifth paragraph of

paragraph 90 a 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. 811, 815 (A.F.C.M.R.

1976); United 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).

Subsection (3) is based on the first sentence of the second

paragraph of paragraph 90 a of MCM, 1969 (Rev.).

1 9 8 6 A m e n d m e n t : R e f e r e n c e t o “ s u b s e q u e n t a c t i o n s ” w a s

changed to “subsequent orders” to correct an error in MCM,

1984.

1990 Amendment: Subsection (c)(2) was amended in conjunction with the implementation of findings of not guilty only by

reason of lack of mental responsibility provided for in Article 50

a, UCMJ (Military Justice Amendments of 1986, tit. VIII, 802,

National Defense Authorization Act for Fiscal Year 1987, Pub. L.

99-661, 100 Stat. 3905 (1986)).

(d) Orders containing classified information. This subsection is

based on the first two paragraphs of paragraph 90 c of MCM,

1969 (Rev.). The second sentence of the first paragraph of paragraph 90 c 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 90 d of

MCM, 1969 (Rev.). The matters in paragraph 96 of MCM, 1969

(Rev.) are deleted. These are administrative matters better left to

service regulations.

1986 Amendment: Subsection (b)(2) was amended to clarify

that actions taken subsequent to the initial action may also comprise the supplementary order. Section (c) was amended to simplify and shorten court-martial orders. See revisions to Appendix

17.

CHAPTER XII. APPEALS AND REVIEW

Rule 1201 Action by the Judge Advocate General

(a) Cases required to be referred to a Court of Criminal Appeals.

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(b). 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, §§ 4(b), 7(a), (e), 97

S t a t . 1 3 9 3 ( 1 9 8 3 ) . T h e l a s t p a r a g r a p h o f p a r a g r a p h 1 1 0 A o f

MCM, 1969 (Rev.) was deleted as unnecessary.

1986 Amendment: Subsection (b)(3)(A) was changed to conform to the language of Article 69(b), as enacted by the Military

Justice Act of 1983, which precludes review of cases previously

reviewed under Article 69(a).

1990 Amendment: The discussion to subsection (b)(3)(A) was

amended in conjunction with the implementation of Article 50 a,

UCMJ (Military Justice Amendments of 1986, tit. VIII, § 802,

National Defense Authorization Act for Fiscal Year 1987, Pub. L.

99–661, 100 Stat. 3905 (1986)). To find an accused not guilty

only by reason of lack of mental responsibility, the fact-finder

made a determination that the accused was guilty of the elements

of the offense charged or of a lesser included offense but also

determined that, because he lacked mental responsibility at the

time of the offense, he could not be punished for his actions. See

R.C.M. 921(c)(4). Although the finding does not subject the accused to punishment by court-martial, the underlying finding of

guilt is reviewable under this rule. Review, however, does not

extend to the determination of lack of mental responsibility. Since

the accused voluntarily raised the issue and has the burden of

proving lack of mental responsibility by clear and convincing

evidence, he has waived any later review of the propriety of that

determination.

1990 Amendment: The date from which the two year period to

file an application under R.C.M. 1201(b)(3) begins to run was

amended to account for cases resulting in a finding of not guilty

only by reason of lack of mental responsibility. Such cases would

not proceed to sentencing but could be the subject of an application under this rule. As amended, the accused would have two

years from the date findings were announced in which to file an

application for review.

1995 Amendment:The Discussion accompanying subsection

(1) was amended to conform with the language of Article 69(a),

as enacted by the Military Justice Amendments of 1989, tit. XIII,

sec. 1302(a)(2), National Defense Authorization Act for Fiscal

Years 1990 and 1991, Pub. L. No. 101–189, 103 Stat. 1352, 1576

(1989).

(c) Remission and suspension. This subsection is based on Article

74. See United States v. Russo, 11 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).

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App. 21, R.C.M. 1114 APPENDIX 21
Rule 1202 Appellate counsel

(a) In general. This subsection is based on Article 70(a) and

paragraph 102 a of MCM, 1969 (Rev.).

(b) Duties. This subsection is based on Article 70(b) and (c). See

also the first two paragraphs of paragraph 102 b of MCM, 1969

(Rev.). The penultimate sentence in the rule is based on the

penultimate sentence in the fourth paragraph of paragraph 102 b

of MCM, 1969 (Rev.). The last sentence in the fourth paragraph

of paragraph 102 b 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);

United States v. Haldeman, 599 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 Para. 221.03 (2d ed.

1982).

The first two paragraphs in the discussion modify the third and

fourth paragraphs of paragraph 102 b of MCM, 1969 (Rev.). The

Court of Appeals for the Armed Forces has held that appellate

defense counsel is obligated to assign as error before the Court of

Criminal Appeals 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 Appeals for

the Armed Forces, 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, 463 U.S. 745 (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 Appeals for the Armed Forces. See

Article 67(h) and 28 U.S.C. § 1259; Military Justice Act of 1983,

Pub.L. No. 98–209, § 10, 97 Stat. 1393 (1983). The fifth paragraph in the discussion is based on United States 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, 11

U.S.C.M.A. 306, 29 C.M.R. 122 (1960).

Rule 1203 Review by a Court of Criminal Appeals

(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 100 a and paragraph 100 d of MCM,

1969 (Rev.).

(b) Cases reviewed by a Court of Criminal Appeals. 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 100 a and the

first paragraph of paragraph 100 b of MCM, 1969 (Rev.). See

also United States v. Darville, 5 M.J. 1 (C.M.A. 1978). The last

s e n t e n c e i n t h e f i r s t p a r a g r a p h i s b a s e d o n U n i t e d S t a t e s v .

Brownd, 6 M.J. 338 (C.M.A. 1979); United States v. Yoakum, 8

M.J. 763 (A.C.M.R.), aff’d, 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 Dettinger v. United States, 7

M.J. 216 (C.M.A. 1979); 28 U.S.C. § 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, 11

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 United States v. Weinstein, 411 F.2d 622

(2d. Cir. 1975), cert. denied, 422 U.S. 1042 (1976).

(c) Action on cases reviewed by a Court of Criminal Appeals.

Subsection (1) is based on Article 67(b)(2). See also paragraph

100 b(2) and the first sentence of paragraph 100 c(1)(a) of MCM,

1 9 6 9 ( R e v . ) . S e e a l s o U n i t e d S t a t e s v . L e s l i e , 1 1 M . J . 1 3 1

(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 alsoUnited States

v. Best, 4 U.S.C.M.A. 581, 16 C.M.R. 155 (1954). The discussion

is consistent with paragraph 100 b(3) of MCM, 1969 (Rev.).

Subsection (3) modifies paragraph 100 c(1)(a) of MCM, 1969

(Rev.). It allows each service to prescribe specific procedures for

service of Court of Criminal Appeals 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 105

b 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 Criminal Appeals 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.

1986 Amendment: Subsection 5 is based on the second paragraph of paragraph 124 of MCM, 1969 (Rev.). The fourth sentence is based, in part, on United States v. Williams, 18 M.J. 533

(A.F.C.M.R. 1984). See also United States v. Korzeniewski, 7

U.S.C.M.A. 314, 22 C.M.R.104(1956); United States v. Bledsoe,

16 M.J. 977 (A.F.C.M.R. 1983). The provision assigning the

b u r d e n o f p r o o f i s c o n s i s t e n t w i t h a m e n d m e n t s t o R . C . M .

909(c)(2) and R.C.M. 916(k)(3)(A) which shifted to the defense

the burden of showing lack of mental capacity to stand trial and

lack of mental responsibility.

1998 Amendment: The change to the rule implements the

creation of Article 57a, UCMJ, contained in section 1123 of the

National Defense Authorization Act for Fiscal Year 1996, Pub. L.

No. 104-106, 110 Stat. 186, 463-64 (1996). A sentence to confinement may be deferred by the Secretary concerned when it has

been set aside by a Court of Criminal Appeals and a Judge

Advocate General certifies the case to the Court of Appeals for

the Armed Forces for further review under Article 67(a)(2). Unless it can be shown that the accused is a flight risk or a potential

threat to the community, the accused should be released from

A21-93

ANALYSIS App. 21, R.C.M. 1203(c)
confinement pending the appeal. See Moore v. Akins, 30 M.J. 249

(C.M.A. 1990).

(d) Notification to accused. This subsection is based on Article

67(c) (as amended, see Military Justice Amendments of 1981,

Pub.L. 97–81, § 5, 95 Stat. 1088-89) and on the first paragraph of

paragraph 100 c (1)(a) of MCM, 1969 (Rev.) (see Exec. Order

No. 12340 (Jan. 20, 1982)). The discussion is based on Article

67(b) and on the second paragraph of paragraph 100 c(1)(a) of

MCM, 1969 (Rev.).

(e) Cases not reviewed by the Court of Appeals for the Armed

Forces. Subsection (1) is based on the first sentence of paragraph

100 c(1)(b) of MCM, 1969 (Rev.). See Article 71(b). Subsection

(2) is based on the last sentence of paragraph 100c(1)(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 Appeals for the

Armed Forces

( a ) C a s e s r e v i e w e d b y t h e C o u r t o f A p p e a l s f o r t h e A r m e d

Forces. This subsection is based on the ninth sentence of Article

67(a)(1), on Article 67(b), and on the second sentence in Article

69. It generally repeats the first paragraph of paragraph 101 of

MCM, 1969 (Rev.) except insofar as that paragraph provided for

mandatory review by the Court of Appeals for the Armed Forces

of cases affecting general and flag officers. See Article 67(b)(1),

as amended by the Military Justice Act of 1983, Pub.L. No.

98–209, § 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

based on United States v. Frischholz, 16 U.S.C.M.A. 150, 36

C.M.R. 306 (1966); 28 U.S.C. § 1651(a). See also Noyd v. 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, 12 M.J. 145 (C.M.A. 1981);

Cooke v. Ellis, 12 M.J. 17 (C.M.A. 1981); Vorbeck v. Commanding Officer, 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); Stewart v. Stevens, 5 M.J. 220 (C.M.A. 1978);

Corley v. Thurman, 3 M.J. 192 (C.M.A. 1977); McPhail v. United

S t a t e s , 1 M . J . 4 5 7 ( C . M . A . 1 9 7 6 ) ; B r o o k i n s v . C u l l i n s , 2 3

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. 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 accused for review by the Court of Appeals

for the Armed Forces. Subsection (1) is based on the last paragraph of paragraph 102 b of MCM, 1969 (Rev.). Note that if the

case reached the Court of Criminal Appeals 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 of Appeals for the Armed

Forces. 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 71(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. § 1259. See also

Article 71.

Rule 1205 Review by the Supreme Court

This rule is new and is based on Article 67(h); 28 U.S.C. §§

1259, 2101. See Military Justice Act of 1983, Pub.L. No. 98–209,

§ 10, 97 Stat. 1393 (1983).

Rule 1206 Powers and responsibilities 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 (1) is based on Article

74(a). Subsection (2) is based on Article 74(b). Subsection (3) is

based on the second paragraph of paragraph 105 b of MCM, 1969

(Rev.). See Exec. Order No. 10498 (Nov. 4, 1953), 18 Fed.Reg.

7003. The reference in paragraph 105 a of MCM, 1969 (Rev.) to

Secretarial authority to commute sentences in 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 71(a). Paragraph 105 a of MCM, 1969 (Rev.), which stated the President’s

power to commute sentences, is deleted. Such a statement is

unnecessary. See also U.S. Const. art. II, § 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 110 d of

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 110

d are omitted here. They repeated Article 75(b) 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 is final. This subsection is based on Article 71(c), as amended, see Military Justice Act of 1983, Pub.L.

No. 98–209, § 5(e)(1), 97 Stat. 1393 (1983). See also Article 64.

Note that subsection (2)(B) qualifies (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

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App. 21, R.C.M. 1203(c) APPENDIX 21
guilty, see Article 44; R.C.M. 905(g). See also Grafton v. United

States, 206U.S. 333 (1907).

(b) Effect of 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 110 a(2) and 109 d) are covered in other rules.

See R.C.M. 810; 1209. The second sentence of paragraph 109

d(1) 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 United States v. Bacon, 12 M.J. 489 (C.M.A. 1982);

U n i t e d S t a t e s v . T h o m a s , 1 1 M . J . 1 3 5 ( C . M . A . 1 9 8 1 ) . W i t h

respect to the second example under subsection (f)(3) of this rule,

it should be noted that if the information concealed by the prosec u t i o n w a s s p e c i f i c a l l y r e q u e s t e d b y t h e d e f e n s e , a d i f f e r e n t

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 110 f 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. 1113), 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.

1998 Amendment: R.C.M. 1210(a) was amended to clarify its

application consistent with interpretations of Fed. R. Crim. P. 33

that newly discovered evidence is never a basis for a new trial of

the facts when the accused has pled guilty. See United States v.

Lambert , 603 F.2d 808, 809 (10th Cir. 1979); see also United

States v. Gordon, 4 F.3d 1567, 1572 n.3 (10th Cir. 1993), cert.

denied, 510 U.S. 1184 (1994); United States v. Collins , 898 F.2d

103 (9th Cir. 1990)(per curiam); United States v. Prince, 533 F.2d

205 (5th Cir. 1976); Williams v. United States, 290 F.2d 217 (5th

Cir. 1961). But see United States v. Brown, 11 U.S.C.M.A. 207,

211, 29 C.M.R. 23, 27 (1960)(per Latimer, J.)(newly discovered

evidence could be used to attack guilty plea on appeal in era prior

to the guilty plea examination mandated by United States v. Care,

18 U.S.C.M.A. 535, 40 C.M.R. 247 (1969) and R.C.M. 910(e)).

Article 73 authorizes a petition for a new trial of the facts when

there has been a trial. When there is a guilty plea, there is no

trial. See R.C.M. 910(j). The amendment is made in recognition

of the fact that it is difficult, if not impossible, to determine

whether newly discovered evidence would have an impact on the

trier of fact when there has been no trier of fact and no previous

trial of the facts at which other pertinent evidence has been

adduced. Additionally, a new trial may not be granted on the

basis of newly discovered evidence unless “[t]he 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.” R.C.M. 1210(f)(2)(C).

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 4 g(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

u n c l e a r w h a t r u l e a p p l i e d i n o t h e r c o m m a n d s . T h e W o r k i n g

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 collocated 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 4 c of MCM,

1969 (Rev.). The fourth sentence is based on Article 24(b) and

the fifth sentence of the first paragraph of paragraph 5 c of MCM,

1969 (Rev.). The last sentence is based on the last sentence of the

first paragraph of paragraph 5 c of MCM, 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 79 a 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. § 4712 or 10

U.S.C. § 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 16 a of MCM, 1969

(Rev.). The reference to Chapter II was added to bring attention

to other jurisdictional standards which may apply to summary

courts-martial.

(d) Punishments. This subsection is based on paragraph 16 b 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 Middendorf v. 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

Argersigner v. Hamlin, 407 U.S. 25 (1972). Although the issue in

Middendorf v. 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

( i n c l u d i n g r e t a i n e d c o u n s e l ) a t s u m m a r y c o u r t s - m a r t i a l . I t i s

within the discretion of the convening authority to detail, or

A21-95

ANALYSIS App. 21, R.C.M. 1301(e)
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. United States v. Mack, supra; United States v.

Booker, 5 M.J. 238 (C.M.A. 1977). See United States v. Kuehl, 11

M.J. 126 (C.M.A. 1981).

(f) Power to obtain witnesses and evidence. This subsection is

based on Article 46 and 47 and paragraphs 79 b 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 5 c of MCM, 1969 (Rev.).

(b) When convening authority is the accuser. This subsection is

based on the second paragraph of paragraph 5 c 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 16 a 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 Trial procedure

(a) Pretrial duties. This subsection is based on paragraphs 79 c

and 33 d of MCM, 1969 (Rev.).

(b) Summary court-martial procedure. Paragraph 79 a of MCM,

1969 (Rev.), suggested that the summary court-martial use the

general court-martial trial guide. However, the general court-martial trial guide is inadequate for the person who ordinarily conducts the summary court-martial. 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 79 d(1) of MCM, 1969

(Rev.). The requirement to inform the accused of the date of

referral was added to subsection (1)(B) to assist the accused in

making motions to dismiss or for other relief. Subsection (1)(E) is

intended to more fully inform the accused of the scope of the

evidence (testimonial, documentary, and physical) expected to be

introduced. Subsection (1)(F) is new and is designed to assist the

accused in making motions and presenting evidence in defense

and in extenuation and mitigation. Subsection (1)(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 court-martial, will be considered unless admitted in

a c c o r d a n c e w i t h t h e M i l i t a r y R u l e s o f E v i d e n c e . S u b s e c t i o n

(1)(H) is new. Subsection (1)(L) is expanded to assure the acc u s e d t h a t t h e e x e r c i s e o f r i g h t s g u a r a n t e e d u n d e r t h e F i f t h

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 79 d(1) of MCM, 1969 (Rev.).

Subsection (2)(B) is based on paragraph 79 d(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 referring 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 paragraph 79 d(2) of MCM, 1969 (Rev.). The

provision in paragraph 79 d(2) which provided for hearing evidence on the offense(s) 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 79 d

(3) of MCM, 1969 (Rev.).

Subsections (2)(F)(i) through (iii) are based on paragraph 79

d(4) of MCM, 1969 (Rev.). Note that the summary court-martial

may consider otherwise admissible records from the accused’s

personnel file under R.C.M. 1001(b)(2). This was not permitted

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.

S u b s e c t i o n ( 2 ) ( F ) ( v ) i s n e w a n d d e s i g n e d t o i n f o r m t h e

convening authority of any suspension recommendation and deferment request before receipt of the record of trial. Subsection

(2)(F)(vi) modifies paragraph 79 d(4) 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 commander’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 79 e and 91 c 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

court-martial. A separate format is now provided at Appendix 15.

A21-96

App. 21, R.C.M. 1301(e) APPENDIX 21
(b) Contents. This subsection is based on paragraphs 79 e and

91c of MCM, 1969 (Rev.).

1986 Amendment: R.C.M. 1305(b)(2) was amended to delete

the requirement that the record of trial in summary courts-martial

reflect the number of previous convictions considered. The Committee concluded that this requirement had only slight utility and

also noted that DD Form 2329, which serves as the record of trial

in summary courts-martial, has no entry for this information. The

Committee also noted that the Services each have requirements

for retaining documents introduced at summary courts-martial

with the record of trial.

(c) Authentication. This subsection is based on paragraph 79 e of

MCM, 1969 (Rev.).

2004 Amendment: This subsection was amended to require that

summary courts-martial authenticate the original record of trial, as

is currently the procedure for special and general courts-martial.

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

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

paragraph 91c of MCM, 1969 (Rev.). Subsection (3) is selfexplanatory.

2001 Amendment: Subsection (d)(2) was amended to strike the

reference to “subsection (e)(1)” and insert a reference to “subsect i o n ( d ) ( 1 ) ” t o r e f l e c t t h e 1 9 9 5 a m e n d m e n t t h a t r e d e s i g n a t e d

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

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)(1). Subsections (2) through (4) are based on paragraph 90 e 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).

2004 Amendment: The cross-reference to subsection R.C.M.

1105(c)(3) is amended to R.C.M. 1105(c)(2) to conform to the

1987 Change 3 amendment that re-designated R.C.M. 1105(c)(3)

as R.C.M. 1105(c)(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.

A21-97

ANALYSIS App. 21, R.C.M. 1306(d)

APPENDIX 22

ANALYSIS OF THE MILITARY RULES OF EVIDENCE

SECTION I

General Provisions

The Military Rules of Evidence, promulgated in 1980 as Chapter

XXVII of the Manual for Courts-Martial, United States, 1969

(Rev. ed.), 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 Snook, 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 original 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 Departm e n t o f T r a n s p o r t a t i o n , t h e M i l i t a r y D e p a r t m e n t s , o r o f t h e

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 1969 Manual” and “MCM, 1969 (Rev.)” 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 prior law” and “the prior rule” refer to the

state of the law 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.

During the Manual revision project that culminated in promulgation of the Manual for Courts-Martial, 1984 (Executive Order

12473), several changes were made in the Military Rules of

Evidence, and the analysis of those changes was placed in Appendix 21. Thus, it was intended that this Appendix would remain

static. In 1985, however, it was decided that changes in the

analysis of the Military Rules of Evidence would be incorporated

into this Appendix as those changes are made so that the reader

need consult only one document to determine the drafters’ intent

regarding the current rules. Changes are made to the Analysis

only when a rule is amended. Changes to the Analysis are clearly

marked, but the original Analysis is not changed. Consequently,

the Analysis of some rules contains analysis of language subsequently deleted or amended.

In addition, because this Analysis expresses the intent of the

drafters, certain legal doctrines stated in this Analysis may have

been overturned by subsequent case law. This Analysis does not

substitute for research about current legal rules.

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 Government. 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 variat i o n s i n s t y l e o r t e r m i n o l o g y b e t w e e n t h e M i l i t a r y R u l e s o f

Evidence and other parts of the Manual. Where the same subject

is treated in similar but not identical terms in the Military Rules

of Evidence 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.

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 1101(c) and R.C.M.

1001(c)(3).

The limitation in subdivision (a) applying the Rules to courtsmartial is intended expressly to recognize that these Rules are not

applicable to military commissions, provost courts, and courts of

A22-1
inquiry unless otherwise required by competent authority. See

Part I, Para. 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 Appeals for the

Armed Forces and of the Courts of Criminal Appeals must be

utilized in interpreting these Rules. While specific decisions of

the Article III courts 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 Para. 137 of

MCM, 1969 (Rev.) which had 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,

h o w e v e r , R u l e 1 0 1 ( b ) r e c o g n i z e s t h a t r e c o u r s e t o s e c o n d a r y

sources may occasionally be necessary. Rule 101(b) prescribes

the sequence in which such sources shall be utilized.

Rule 101(b)(1) 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 President

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 III 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 III

courts.

Under Rule 1102, which concerns amendments to the Federal

Rules of Evidence, no amendment to the Federal Rules shall be

applicable to courts-martial until 180 days after the amendment’s

effective date unless the President 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 President had directed its adoption, whichever occurs first. An

amendment will not be applicable at any time if the President 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 of construction. Rule 101(c) is intended to avoid unnecessary repetition of the expressions, “president of a special courtmartial without a military judge” and “summary court-martial

o f f i c e r ” . “ S u m m a r y c o u r t - m a r t i a l o f f i c e r ” i s u s e d i n s t e a d o f

“ s u m m a r y c o u r t - m a r t i a l ” f o r p u r p o s e s o f c l a r i t y . A s u m m a r y

court-martial is considered to function in the same role as a

military judge notwithstanding possible lack of legal training. As

previously noted in Para. 137, MCM, 1969 (Rev.), “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 of present Manual. That part of Para. 137, MCM,

1969 (Rev.), not reflected in Rule 101 is found in other rules, see,

e.g., Rules 104, 401, 403. The reference in Para. 137 to privileges

arising out of treaty or executive agreement was 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 MCM, 1969 (Rev.). 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 Rulings on evidence

(a) Effect of erroneous 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 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.

R u l e 1 0 3 ( a ) ( 1 ) r e q u i r e s t h a t a t i m e l y m o t i o n o r o b j e c t i o n

generally be made in order to preserve a claim of error. This is

similar to but more specific than prior 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

p u r p o s e s o f b o t h t r i a l a n d a p p e a l . I n a p p l y i n g F e d e r a l R u l e

103(a), the Article III courts have interpreted the Rule strictly and

held the defense to an extremely high level of specificity. See,

e.g., United States v. Rubin, 609 F.2d 51, 61-63 (2d Cir. 1979)

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App. 22, M.R.E. 101(a) APPENDIX 22
(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 changed 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 R.C.M. 801(a)(3) (Discussion) states: “The parties are

entitled to reasonable opportunity to properly present and support

their contentions on any relevant matter.”

An “offer of proof” is a concise statement by counsel setting

forth the substance of the expected testimony or other evidence.

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.

2004 Amendment: Subdivision (a)(2) was modified based on

the amendment to Fed. R. Evid. 103(a)(2), effective 1 December

2000, and is virtually identical to its Federal Rule counterpart. It

is intended to provide that where an advance ruling is definitive, a

party need not renew an objection or offer of proof at trial;

otherwise, renewal is required.

(b) Record of offer, and (c) Hearing of members— 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 Preliminary questions

(a) Questions of admissibility 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, 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 MCM, 1969

(Rev.), Para. 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 are applicable to a

d e t e r m i n a t i o n o f t h e v o l u n t a r i n e s s o f a n a c c u s e d ’ s s t a t e m e n t .

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 had 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,

Para. 57, MCM, 1969 (Rev.). 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 of members. 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

m e m b e r s i n a s p e c i a l c o u r t - m a r t i a l w i t h o u t a m i l i t a r y j u d g e .

“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 Rule 304(f), 311(f) and 321(e).

(e) Weight and credibility. Rule 104(e) is taken without change

from the Federal Rule.

Rule 105 Limited 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

E V I D E N C E M A N U A L 5 0 ( 2 d e d . 1 9 7 7 ) ; U n i t e d S t a t e s v .

Sangrey, 586 F.2d 1315 (9th Cir. 1978); United States v. Barnes,

586 F.2d 1052 (5th Cir. 1978); United States 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 the Rule 306, dealing with

A22-3

ANALYSIS OF THE MILITARY RULES OF EVIDENCE App. 22, M.R.E. 105
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 Para. 140 a,

MCM, 1969 (Rev.), 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

Para. 140 a(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

d e f e n s e m a y e m p l o y b o t h R u l e s 1 0 6 a n d 3 0 4 ( h ) ( 2 ) , a s

appropriate.

SECTION II

Judicial Notice

Rule 201 Judicial notice of adjudicative facts

(a) Scope of Rule. Rule 201(a) provides that Rule 201 governs

judicial notice of adjudicative facts. In so doing, the Rule replaced MCM, 1969 (Rev.), Para. 147 a. The Federal Rules of

E v i d e n c e A d v i s o r y C o m m i t t e e d e f i n e d a d j u d i c a t i v e f a c t s a s

“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.

S A L T Z B U R G & K . R E D D E N , F E D E R A L R U L E S O F E V I -

DENCE 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) Kinds of facts. Rule 201(b) was taken generally from the

Federal Rule. The limitation with FED. R. EVID. 201(b)(1) 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 within the military environment. Notice of signatures, appropriate under Para. 147 a,

MCM, 1969 (Rev.), will normally be inappropriate under this

Rule. Rule 902(4) & (10) will, however, usually yield the same

result as under Para. 147 a.

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; general facts and laws of nature, including their

ordinary operations and effects; general facts of history; generally

known geolineartal 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 reasonable 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 ) W h e n m a n d a t o r y . R u l e 2 0 1 ( d ) p r o v i d e s t h a t t h e m i l i t a r y

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. Subdivisions (e), (f) and (g) of Rule 201 are taken from

the Federal Rule without change.

Rule 201A Judicial notice 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 a

procedural matter in the Article III 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 Para.

147 a, MCM, 1969 (Rev.).

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

i n t e n d e d t h a t “ d o m e s t i c l a w ” i n c l u d e : t r e a t i e s o f t h e U n i t e d

States; executive agreements between the United States and any

S t a t e t h e r e o f , f o r e i g n c o u n t r y o r i n t e r n a t i o n a l o r g a n i z a t i o n o r

agency; the laws and regulations pursuant thereto of the United

States, of the District of Columbia, and of a State, CommonA22-4

App. 22, M.R.E. 105 APPENDIX 22
wealth, 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 Para.

147 a except that references to the law of space have been added.

“Regulations” of the United States include regulations of the

armed 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.

1984 Amendment: Subsection (a) was modified in 1984 to

clarify that the requirements of Mil. 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).

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 organizat i o n s a n d a g e n c i e s . A n y m a t e r i a l o r s o u r c e r e c e i v e d b y t h e

military judge for use in determining foreign law, or pertinent

extracts therefrom, should be included in the record of trial as an

exhibit.

SECTION III

Exclusionary Rules and Related Matters

Concerning Self-Incrimination, Search and

Seizure, and Eyewitness Identification

Military Rules of Evidence 301–306, 311–317, and 321 were new

in 1980 and have no equivalent in the Federal Rules of Evidence.

They represent a partial codification of the law relating to selfincrimination, 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 believed 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 judgement 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).

Rule 301 Privilege concerning compulsory selfincrimination

(a) General rule. Rule 301(a) is consistent with the rule expressed in the first paragraph, Para. 150 b of MCM, 1969 (Rev.),

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 witness 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” for the purpose of Article 31 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 selfincrimination has a number of varied justifications, its primary

purposes are to shield the individual’s thought processes from

Government inquiry 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 forced 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., Para. 150

b of MCM, 1969 (Rev.); United States v. Sellers, 12 U.S.C.M.A.

2 6 2 , 3 0 C . M . R . 2 6 2 ( 1 9 6 1 ) ; U n i t e d S t a t e s v . H a s k i n s , 1 1

U.S.C.M.A. 365, 29 C.M.R. 181 (1960).

(b) Standing.

(1) In general. Rule 301(b)(1) recites the first part of the third

paragraph of Para. 150 b, MCM, 1969 (Rev.) without change

A22-5

ANALYSIS OF THE MILITARY RULES OF EVIDENCE App. 22, M.R.E. 301(b)(1)
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 Para. 150 b of MCM, 1969 (Rev.) to warn an

uninformed 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 of the privilege. The first sentence of Rule 301(c)

restates generally the first sentence of the second paragraph of

Para. 150 b, MCM, 1969 (Rev.). The language “unless 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 paragraph of Para. 150 b 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 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

definition 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. 511 (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.

(1) Immunity generally. Rule 301(c)(1) recognizes that “testimonial” or “use plus fruits” immunity is sufficient to overcome

t h e p r i v i l e g e a g a i n s t s e l f - i n c r i m i n a t i o n , c f . , U n i t e d S t a t e s 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

provisions of the Manual.

(2) Notification of immunity or leniency. The basic disclosure

p r o v i s i o n o f R u l e 3 0 1 ( c ) ( 2 ) i s t a k e n f r o m U n i t e d S t a t e s 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 paragraph of

Para. 150 b of MCM, 1969 (Rev.).

The second sentence of the Rule restates the second section of

the present rule.subparagraph but with a minor change of wording. The present text reads: “The witness 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 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 rule.subparagraph of Para. 149 b(1), MCM, 1969 (Rev.).

“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 Para. 149 b (1), MCM, 1969 (Rev.) and

Rule 608(b).

The last sentence of the third rule.subparagraph of Para. 149

b(1), MCM, 1969 (Rev.) 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 rule.subparagraph of Para.

149 b(1), MCM, 1969 (Rev.).

(f) Effect of claiming the privilege.

(1) Generally. Rule 301(f)(1) is taken without change from the

fourth rule.subparagraph of Para. 150 b, MCM, 1969 (Rev.). 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 JUST I C E , S T A N D A R D S R E L A T I N G T O T H E P R O S E C U T I O N

F U N C T I O N A N D T H E D E F E N S E F U N C T I O N , P r o s e c u t i o n

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 direct examination asserts the privilege against self-incrimination on cross-examination. It incorporates the prevailing

civilian rule, which has also been discussed in military cases. See

e . g . , U n i t e d S t a t e s v . C o l o n - A t i e n z a , 2 2 U . S . C . M . A . 3 9 9 , 4 7

C.M.R. 336 (1973); United States v. Rivas, 3 M.J. 282 (C.M.A.

1977). Where the assertion shields only “collateral” matters—

i . e . , e v i d e n c e o f m i n i m a l i m p o r t a n c e ( u s u a l l y d e a l i n g w i t h 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 privilege reaches the core of the direct testimony or

prevents a full inquiry into the credibility of the witness, however,

striking of the direct testimony would appear mandated. Crossexamination includes for the purpose of Rule 301 the testimony

of a hostile witness called as if on cross-examination. See Rule

A22-6

App. 22, M.R.E. 301(b)(1) APPENDIX 22
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 Para. 140 a

(4), MCM, 1969 (Rev.) and follows the decisions of the United

States Supreme Court in United States v. Hale, 422 U.S. 171

(1975) and Doyle v. Ohio, 426 U.S. 610 (1976). See also United

States 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 prior

Manual provision has been expanded to include a request to

terminate questioning.

( g ) I n s t r u c t i o n s . R u l e 3 0 1 ( g ) h a s n o c o u n t e r p a r t i n t h e 1 9 6 9

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, 340-41 (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 within 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 150 b, MCM,

1969 (Rev.), 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 Intrusions. The exclusionary rule previously found in

the last rule.subparagraph of Para. 150 b was 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 consequence 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

( o r o f s t r i k i n g w h a t e x p e r t t e s t i m o n y h a s a l r e a d y p r e s e n t e d ) .

However, at trial the expert may testify only as to his or her

conclusions and their basis and not as to the contents of any

statements made by the accused during the examination. See e.g.,

United States v. Albright, 388 F.2d 719 (4th Cir. 1968); United

States v. Babbidge, 18 U.S.C.M.A. 327, 40 C.M.R. 39 (1969). See

generally, Lederer, Rights Warnings in the Armed Services, 72

M i l . L . R e v . 1 ( 1 9 7 6 ) ; H o l l a d a y , P r e t r i a l M e n t a l E x a m i n a t i o n s

U n d e r M i l i t a r y L a w : A R e - E x a m i n a t i o n , 1 6 A . F . L . R e v . 1 4

(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

Procedure, FED. R. CRIM. P. 12-2, and MCM, 1969 (Rev.). Para.

140 a, 122 b, 150 b. 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 assigned 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 1969 Manual they may be studied by the prosecution and could be used to discover other evidence later admitted against the accused. This raises significant

derivative evidence problems, cf. 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 a protective 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. 401 (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 warnings 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

A22-7

ANALYSIS OF THE MILITARY RULES OF EVIDENCE App. 22, M.R.E. 302
the greatest of caution being always concerned that what may be

an innocent question may be considered to be an “open sesame.”

Under the 1969 Manual interpretation of Babbidge, supra, the

accused could refuse to submit to a Government examination

until after the actual presentation of defense expert testimony on

the insanity issue. Thus, trial might have to be adjourned for a

substantial period in the midst of the defense case. This was

conducive to neither justice nor efficiency.

A twofold solution to these problems was developed. Rule 302

provides a form of testimonial immunity intended to protect an

accused from use of anything he might say during a mental

examination ordered pursuant to Para. 121, MCM, 1969 (Rev.)

(now R.C.M. 706, MCM, 1984). Paragraph 121 was modified to

sharply limit actual disclosure of information obtained from the

accused during the examination. Together, these provisions would

adequately protect the accused from disclosure of any statements

made during the examination. This would encourage the accused

to cooperate fully in the examination while protecting the Fifth

Amendment and Article 31 rights of the accused.

Paragraph 121 was retitled to eliminate “Before Trial” and was

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 have

been 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 court-martial without a

military judge. The submission could, but needed not, be accompanied by a formal application for a mental examination. While

the convening authority could act on a submission under paragraph 121 after referral, he or she might do so only when a

military judge was not reasonably available.

Paragraph 121 was 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, could 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 was purely to protect the privilege against selfincrimination of an accused undergoing a mental examination

related to a criminal case, both paragraph 121 and Rule 302 were

inapplicable to proceedings not involving criminal consequences.

The order to the 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 release 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).

Although Rule 302(c) does not apply to determinations of the

competency of the accused to stand trial, paragraph 121 did prohibit access to the sanity board report by the trial counsel except

as specifically authorized. In the event that the competency of an

accused to stand trial was at issue, the trial counsel could request,

pursuant to paragraph 121, that the military judge disclose the

sanity board report to the prosecution. In such a case, the trial

counsel who had read the report would be disqualified from

prosecuting the case in chief if Rule 302(a) were applicable.

As indicated above, paragraph 121 required that the sanity

board report be kept within medical channels except insofar as it

would be released to the defense and, upon request, to the commanding officer of the accused. The paragraph expressly prohibited 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 explicitly 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 great 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

a n a c c u s e d a t a p a r a g r a p h 1 2 1 e x a m i n a t i o n ( n o w i n R . C . M .

706(c), MCM 1984) inadmissible even if Article 31 (b) and counsel warnings have been given. This is intended to resolve probA22-8

App. 22, M.R.E. 302 APPENDIX 22
lems arising from the literal interpretation of Article 31 discussed

above. It protects the accused and enhances the validity of the

examination.

(b) Exceptions. Rule 301(b) is taken from prior law; see Para.

1 2 2 b , M C M 1 9 6 9 ( R e v . ) . T h e w a i v e r p r o v i s i o n o f R u l e

302(b)(1) 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 of evidence. 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 trial 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 were 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-compliance by the accused. Rule 302(d) restates prior

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 violation of paragraph 121 or Rule 302 is in effect a misuse of immunized test i m o n y — t h e c o e r c e d t e s t i m o n y o f t h e a c c u s e d a t t h e s a n i t y

board—and thus results in an involuntary statement which may be

challenged under Rule 304.

Rule 303 Degrading questions

Rule 303 restates Article 31(c). The content of Para. 150 a,

MCM, 1969 (Rev.) has been omitted.

A specific application of Rule 303 is in the area of sexual

offenses. Under prior law, the victims of such offenses were often

subjected to a probing and degrading cross-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; see Rule 1101.

Rule 303 and Article 31(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 of Military

Justice, Hearings on H.R. 2498 Before a Subcomm. of the 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 the information now safeguarded by Rule 412

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)).

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 412

and the Analysis thereto. It should also be noted that it would

clearly be unreasonable to suggest that Congress in protecting the

v i c t i m s o f s e x u a l o f f e n s e s f r o m t h e d e g r a d i n g a n d i r r e l e v a n t

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.

1993 Amendment: R.C.M. 405(i) and Mil. R. Evid. 1101(d)

were amended to make the provisions of Mil. R. Evid. 412 applicable at pretrial investigations. These changes ensure that the

same protections afforded victims of nonconsensual sex offenses

at trial are available at pretrial hearings. See Criminal Justice

Subcommittee of House Judiciary Committee Report, 94th Cong.,

2d Session, July 29, 1976. Pursuant to these amendments, Mil. R.

Evid. 412 should be applied in conjunction with Mil. R. Evid.

303. As such, no witness may be compelled to answer a question

calling for a personally degrading response prohibited by Rule

303. Mil. R. Evid. 412, however, protects the victim even if the

victim does not testify. Accordingly, Rule 412 will prevent questioning of the victim or other witness if the questions call for

responses prohibited by Rule 412.

Rule 304 Confessions and admissions

(a) General rule. The exclusionary rule found in Rule 304(a) is

applicable to Rules 301–305, and basically restates prior law

which appeared in paragraphs 140 a(6) and 150 b, MCM, 1969

(Rev.). Rule 304(b) 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 Para. 150 b of the 1969 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 official or agent of the United

States, or any State thereof or political subdivision of either, who

was acting in a governmental capacity ...” (emphasis added).

A22-9

ANALYSIS OF THE MILITARY RULES OF EVIDENCE App. 22, M.R.E. 304(a)
Rule 304, however, makes all derivative evidence inadmissible.

Although some support for the 1969 Manual limitations can be

found in the literal phrasing of Article 31(d), the intent of the

A r t i c l e a s i n d i c a t e d i n t h e c o m m e n t a r y p r e s e n t e d d u r i n g t h e

House hearings, The Uniform Code of Military Justice, Hearing

on H.R. 2498 Before a Subcomm. of the House Comm. on Armed

S e r v i c e s , 8 1 s t C o n g . , 1 s t S e s s . 9 8 4 ( 1 9 4 9 ) , w a s t o e x c l u d e

“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 1969 Manual’s attempt to limit 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 civilian 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 31(a). Consequently, the attempted

1969 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 dealing with this area

has been deleted as being unnecessary.

(b) Exceptions. Rule 304(b)(1) 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 Paras. 140 a(2)

and 153b, MCM, 1969 (Rev.), use of such statements was not

permissible. United States v. Girard, 23 U.S.C.M.A. 263, 49

C.M.R. 438 (1975); United States 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 permit use of a statement

which is involuntary because thewaiver of counsel rights under

Rule 305(g) was absent or improper which is implicit in Rule

304(b)’s reference to Rule 305(d).

1986 Amendment: Rule 304(b)(2) was added to incorporate the

“inevitable discovery” exception to the exclusionary rule based on

Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501 (1984); see also

United States v. Kozak, 12 M.J. 389 (C.M.A. 1982); Analysis of

Rule 311(b)(2).

1990 Amendment: Subsection (b)(1) was amended by adding

“the requirements of Mil. R. Evid. 305(c) and 305(f), or.” This

language expands the scope of the exception and thereby permits

statements obtained in violation of Article 31(b), UCMJ, and Mil.

R. Evid. 305(c) and (f) to be used for impeachment purposes or at

a later trial for perjury, false swearing, or the making of a false

official statement. See Harris v. New York, 401 U.S. 222 (1971);

cf. United States v. Williams, 23 M.J. 362 (C.M.A. 1987). An

accused cannot pervert the procedural safeguards of Article 31(b)

into a license to testify perjuriously in reliance on the Government’s disability to challenge credibility utilizing the traditional

t r u t h - t e s t i n g d e v i c e s o f t h e a d v e r s a r y p r o c e s s . S e e W a l d e r v .

United States, 347 U.S. 62 (1954); United States v. Knox, 396

U.S. 77 (1969). Similarly, when the procedural protections of

Mil. R. Evid. 305(f) and Edwards v. Arizona, 451 U.S. 477

(1981), are violated, the deterrent effect of excluding the unlawfully obtained evidence is fully vindicated by preventing its use in

the Government’s case-in-chief, but permitting its collateral use to

impeach an accused who testifies inconsistently or perjuriously.

See Oregon v. Hass, 420 U.S. 714 (1975). Statements which are

not the product of free and rational choice, Greenwald v. Wisconsin , 390 U.S. 519 (1968), or are the result of coercion, unlawful

influence, or unlawful inducements are involuntary and thus inadmissible, because of their untrustworthiness, even as impeachment

evidence. See Mincey v. Arizona, 437 U.S. 385 (1978).

1994 Amendment: Rule 304(b)(1) 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, statements taken in violation of the

counsel warnings required under Mil R. Evid. 305(d)-(e). Under

paragraphs 140a(2) and 153b, MCM, 1969 (Rev.), use of such

s t a t e m e n t s w a s n o t p e r m i s s i b l e . U n i t e d S t a t e s v . G i r a r d , 2 3

U.S.C.M.A. 263, 49 C.M.R. 438 (1975); United States 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

a d o p t t h e h o l d i n g i n H a r r i s o n i m p e a c h m e n t . J o r d a n , 2 0

U.S.C.M.A. at 617, 44 C.M.R. at 47, and Mil R. Evid. 304(b)

adopts Harris in military law. Subsequently, in Michigan v. Harvey, 494 U.S. 344 (1990), the Supreme Court held that statements

taken in violation of Michigan v. Jackson, 475 U.S. 625 (1986),

could also be used to impeach a defendant’s false and inconsistent

testimony. In so doing, the Court extended the Fifth Amendment

rationale of Harris to Sixth Amendment violations of the right to

counsel.

(c) Definitions.

(1) Confession and admission. Rules 304(c)(1) and (2) express

without change the definitions found in Para. 140 a(1), MCM,

1969 (Rev.). 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 ) I n v o l u n t a r y . T h e d e f i n i t i o n o f “ i n v o l u n t a r y ” i n R u l e

304(c)(3) summarizes the prior definition of “not voluntary” as

A22-10

App. 22, M.R.E. 304(a) APPENDIX 22
found in Para. 140 a(2), MCM, 1969 (Rev.). The examples in

Para. 140 a(2) 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 31(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 Para. 121, MCM, 1969 (Rev.) (now R.C.M. 706,

MCM, 1984) is treated as an involuntary statement under Rule

304. See Rule 302(a). The basis for this rule is that Para. 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:

Infliction of bodily harm including questioning accompanied by

deprivation of the necessities of life such as food, sleep, or adequate clothing;

Threats of bodily harm;

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 or admission.

There is no change in the principle, set forth in the fifth

paragraph of Para. 140 a(2), MCM, 1969 (Rev.), that a statement

obtained “in an interrogation conducted in accordance with all

applicable rules 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 interrogations 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 latter statement was not “ obtained in

violation of” the rights and privileges found in Rule 304(c)(3) and

305(a) (emphasis added).

(d) Procedure. Rule 304(d) makes a significant change in prior

procedure. Under Para. 140 a(2), MCM, 1969 (Rev.), the prosecution was required to prove a statement to be voluntary before it

could 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 ) D i s c l o s u r e . P r i o r p r o c e d u r e ( P a r a . 1 2 1 , M C M , 1 9 6 9

(Rev.)) is changed 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 relevant to 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, with limited exceptions. 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.

(2) Motions and objections. The defense is required under Rule

304(d)(2) to challenge evidence disclosed prior to arraignment

under Rule 304(d)(1) 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 prior law under

which objection traditionally has been made after plea but may be

made, at the discretion of the military judge, prior to plea. This

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) Specificity. 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

communications 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 required. 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 prior law. Defense counsel is not required to meet the

A22-11

ANALYSIS OF THE MILITARY RULES OF EVIDENCE App. 22, M.R.E. 304(d)(3)
requirements of Para. 115, MCM, 1969 (Rev.), 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

t h e C o m m i t t e e t o r e q u i r e e x t r e m e l y t e c h n i c a l p l e a d i n g , b u t

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,

c o u n s e l w a r n i n g s u n d e r R u l e 3 0 5 ( d ) w e r e n e c e s s a r y a n d n o t

given (or given improperly). (Rule 305(d); United States v. Tempia, 16 U.S.C.M.A. 629, 37 C.M.R. 249 (1967).)

That despite the accused’s express refusal to make a statement,

s h e w a s q u e s t i o n e d a n d m a d e a n a d m i s s i o n . ( s e e e . g . , R u l e

305(f); Michigan v. Mosely, 423 U.S. 96 (1975); United States v.

Westmore, 17 U.S.C.M.A. 406, 38 C.M.R. 204 (1968).)

That the accused requested counsel but was interrogated by

the military police without having seen counsel. (see e.g., Rule

305(a) and (d); United States v. Gaines, 21 U.S.C.M.A. 236, 45

C.M.R. 10 (1972).)

That the accused was induced to make a statement by a

promise of leniency by his squadron commander. (see e.g., Rule

304(b)(3), Manual for Courts-Martial, United States, 1969 (Rev.

ed.), Para 140a(2); People v. Pineda, 182 Colo. 388, 513 P.2d

452 (1973).)

That an accused was threatened with prosecution of her

h u s b a n d i f s h e f a i l e d t o m a k e a s t a t e m e n t . ( s e e e . g . , R u l e

304(b)(3), Jarriel v. State, 317 So. 2d 141 (Fla. App. 1975).)

That the accused was held incommunicado and beaten until

she confessed. ( see e.g., Rule 304(b)(3); Payne v. Arkansas, 356

U.S. 560 (1958).)

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. ( see

e.g., Rule 304(b)(3); United States v. Seay, 1 M.J. 201 (C.M.A.

1978).)

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.

(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 prior law; see,

e.g., United States v. Dusenberry, 23 U.S.C.M.A. 287, 49 C.M.R.

536 (1975).

(e) Burden of proof. Rule 304(e) substantially changes military

law. Under the prior system, the armed forces did not follow the

rule applied in the civilian federal courts. Instead, MCM, 1969

( R e v . ) u t i l i z e d t h e m i n o r i t y “ M a s s a c h u s e t t s R u l e , ” s o m e t i m e s

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 system

unnecessarily 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 III courts. Pursuant to this proced u r e , t h e m i l i t a r y j u d g e d e t e r m i n e s t h e a d m i s s i b i l i t y o f

confessions or admissions using a preponderance basis. No recourse exists to the court members on the question of admissibilit y . I n t h e e v e n t o f a r u l i n g o n a d m i s s i b i l i t y a d v e r s e t o t h e

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)(1) requires that the military judge

find by a preponderance that a statement challenged under this

rule was made voluntarily. When a trial is before a special courtmartial 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. The Committee authorized use of this

procedure in view of the importance of the issue and the absence

of a legally trained presiding officer.

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App. 22, M.R.E. 304(d)(3) APPENDIX 22
(2) Weight of the 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.

February 1986 Amendment: Because of the 1986 addition of

Rule 304(b)(2), the prosecution may prove that, notwithstanding

an involuntary statement, derivative evidence is admissible under

the “inevitable discovery” exception. The standard of proof is a

preponderance of the evidence (Nix v. Williams, 467 U.S. 431,

104 S.Ct. 2501 (1984)).

(f) Defense evidence. Rule 304(f) generally restates prior law as

found in Para. 140 a(3) & (6), MCM, 1969 (Rev.). 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 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., Rule 607–609; 613.

(g) Corroboration. Rule 304(g) restates the prior law of corroboration with one major procedural change. Previously, no instruction on the requirement of corroboration was required unless the

evidence was substantially conflicting, self-contradictory, uncertain, or improbable and there was a defense request for such an

i n s t r u c t i o n . U n i t e d S t a t e s v . S e i g l e , 2 2 U . S . C . M . A . 4 0 3 , 4 7

C.M.R. 340 (1973). The holding in Seigle in consistent with the

1969 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

i n f e r e n c e o f t h e t r u t h o f t h e e s s e n t i a l f a c t s a d m i t t e d i n t h e

confession.

(h) Miscellaneous.

(1) Oral statements. Rule 304(h)(1) is taken verbatim from

1969 Manual paragraph 140 a(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

impeachment.

(2) Completeness. Rule 304(h)(2) is taken without significant

change from 1969 Manual paragraph 140 a(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 Rule 106 or 304(h)(2) to complete a written statement.

(3) Certain admission by silence. Rule 304(h)(3) is taken from

Para. 140 a(4) of the 1969 Manual. That part of the remainder of

Para. 140 a(4) dealing with the existence of the privilege against

self-incrimination is now set forth in Rule 301(f)(3). The remainder of Para. 140 a(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.

1986 Amendment: Mil. R. Evid. 304(h)(4) was added to make

clear that evidence of a refusal to obey a lawful order to submit

to a chemical analysis of body substances is admissible evidence

when relevant either to a violation of such order or an offense

which the test results would have been offered to prove. The

Supreme Court in South Dakota v. Neville, 459 U.S. 553 (1983)

held that where the government may compel an individual to

submit to a test of a body substance, evidence of a refusal to

submit to the test is constitutionally admissible. Since the results

of tests of body substances are non-testimonial, a servicemember

has no Fifth Amendment or Article 31 right to refuse to submit to

such a test. United States v. Armstrong, 9 M.J. 374 (C.M.A.

1980); Schmerber v. State of California, 384 U.S. 757 (1966). A

test of body substances in various circumstances, such as search

incident to arrest, probable cause and exigent circumstances, and

inspection or random testing programs, among others, is a reasonable search and seizure in the military. Murray v. Haldeman, 16

M.J. 74 (C.M.A. 1983); Mil. R. Evid. 312; Mil. R. Evid. 313.

Under the Uniform Code of Military Justice, a military order is a

valid means to compel a servicemember to submit to a test of a

body substance. Murray v. Haldeman, supra. Evidence of a refusal to obey such an order may be relevant as evidence of

consciousness of guilt. People v. Ellis, 65 Cal.2d 529, 421 P.2d

393 (1966). See also State v. Anderson, Or.App., 631 P.2d 822

(1981); Newhouse v. Misterly, 415 F.2d 514 (9th Cir. 1969), cert.

denied 397 U.S. 966 (1970).

This Rule creates no right to refuse a lawful order. A servicemember may still be compelled to submit to the test. See,

A22-13

ANALYSIS OF THE MILITARY RULES OF EVIDENCE App. 22, M.R.E. 304(h)(3)
e.g., Mil. R. Evid. 312. Any such refusal may be prosecuted

separately for violation of an order.

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 31(b) and the right to counsel, involuntary within the meaning

of Rule 304. This approach eliminates any distinction between

statements obtained in violation of 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 1969 Manual,

e.g., Para. 140 a(2).

(b) Definitions.

(1) Persons subject to the Uniform Code of Military Justice.

Rule 305(b)(1) 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 31(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 Para. 140 a(2) of the 1969 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 incriminating response which could not have been

foreseen. This legislative history and the cases are unclear as to

w h e t h e r A r t i c l e 3 1 a l l o w s n o n i n c r i m i n a t i n g q u e s t i o n i n g . S e e

Lederer, Rights, Warnings in the Armed Services, 72 Mil. L. Rev.

1 , 3 2 - 3 3 ( 1 9 7 6 ) , a n d t h e i s s u e i s l e f t o p e n f o r f u r t h e r

development.

(c) Warnings concerning the accusation, right to remain silent,

and use of statement. Rule 305(c) basically requires that those

persons who are required by statute to give Article 31(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)(1) 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 rejected literal application

of Article 31(b), but have not arrived at a conclusive rule. See

e.g., United States 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 in

compliance with numerous cases, as requiring warnings by those

personnel acting in an official disciplinary or law enforcement

capacity. Decisions such as United States v. French, 25 C.M.R.

851 (A.F.B.R. 1958), aff’d in relevant part, 10 U.S.C.M.A. 171,

27 C.M.R. 245 (1959) (undercover agent) are not 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 court-martial. 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 U.S.

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 Para. 140 c(2), MCM, 1969 (Rev.),

and United States v. Tempia, 16 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)(1) 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 request for bodily fluids. Compare United

States v.Dionivio, 410 U.S. 1 (1973); United States v. Mara, 410

U . S . 1 9 ( 1 9 7 3 ) ; a n d S c h m e r b e r v . C a l i f o r n i a , 3 8 4 U . S . 7 5 7

( 1 9 6 7 ) w i t h U n i t e d S t a t e s v . W h i t e , 1 7 U . S . C . M . A . 2 1 1 , 3 8

C.M.R. 9 (1967); United States v. Greer, 3 U.S.C.M.A. 576, 13

C.M.R. 132 (1953); and United States v. Ruiz, 23 U.S.C.M.A.

181, 48 C.M.R. 797 (1974). Rule 305(d)(1) requires that 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(d)(2)

and modified in this case by Rule 305(d)(1)) 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:

A22-14

App. 22, M.R.E. 304(h)(3) APPENDIX 22
(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 those warnings are in addition to

such other warnings and waiver questions as may be required by

Rule 305.

Rule 305(d)(1)(A) follows the plurality of civilian jurisdiction

by utilizing an objective test in defining “custodial” interrogation.

See also United States 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

M i r a n d a i s p r e d o m i n a t e l y a v o l u n t a r i n e s s d e c i s i o n c o n c e r n e d

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’s intent 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)(1)(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)(1)(B) with United States v. Hinkson, 17 U.S.C.M.A.

1 2 6 , 3 7 C . M . R . 3 9 0 ( 1 9 6 7 ) a n d U n i t e d S t a t e s v . G i b s o n , 3

U.S.C.M.A. 746, 14 C.M.R. 164 (1954).

1994 Amendment: Subdivision (d) was amended to conform

military practice with the Supreme Court’s decision in McNeil v.

Wisconsin, 501 U.S. 171 (1991). In McNeil, the Court clarified

the distinction between the Sixth Amendment right to counsel and

the Fifth Amendment right to counsel. The court reiterated that

the Sixth Amendment right to counsel does not attach until the

initiation of adversary proceedings. In the military, the initiation

of adversary proceedings normally occurs at preferral of charges.

See United States v. Jordan, 29 M.J. 177, 187 (C.M.A. 1989); See

United States v. Wattenbarger, 21 M.J. 41, 43 (C.M.A. 1985),

cert. denied, 477 U.S. 904 (1986). However, it is possible that,

under unusual circumstances, the courts may find that the Sixth

Amendment right attaches prior to preferral. See Wattenbarger,

21 M.J. at 43-44. Since the imposition of conditions on liberty,

r e s t r i c t i o n , a r r e s t , o r c o n f i n e m e n t d o e s n o t t r i g g e r t h e S i x t h

Amendment right to counsel, references to these events were

eliminated from the rule. These events may, however, be offered

as evidence that the government has initiated adversary proceedings in a particular case.

(2) Counsel. Rule 305(d)(2) sets forth the basic right to counsel at interrogations required under 1969 Manual Para. 140 a(2).

The Rule rejects the interpretation of Para. 140 a(2) set forth in

United States v. Hofbauer, 5 M.J. 409 (C.M.A. 1978) and United

States 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 indigency—minimum

Miranda rule.

Rule 305(d)(2) clarifies prior 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).

(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

bas 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.

1994 Amendment: Subdivision (e) was amended to conform

military practice with the Supreme Court’s decisions in Minnick

v. Mississippi, 498 U.S. 146 (1990), and McNeil v. Wisconsin,

5 0 1 U . S . 1 7 1 ( 1 9 9 1 ) . S u b d i v i s i o n ( e ) w a s d i v i d e d i n t o t w o

rule.subparagraphs to distinguish between the right to counsel

rules under the Fifth and Sixth Amendments and to make reference to the new waiver provisions of subdivision (g)(2). Subdivision (e)(1) applies an accused’s Fifth Amendment right to counsel

to the military and conforms military practice with the Supreme

A22-15

ANALYSIS OF THE MILITARY RULES OF EVIDENCE App. 22, M.R.E. 305(e)
Court’s decision in Minnick. In that case, the Court determined

that the Fifth Amendment right to counsel protected by Miranda

v. Arizona, 384 U.S. 436 (1966), and Edwards v. Arizona, 451

U.S. 477 (1981), as interpreted in Arizona v. Roberson, 486 U.S.

675 (1988), requires that when a suspect in custody requests

counsel, interrogation shall not proceed unless counsel is present.

Government officials may not reinitiate custodial interrogation in

the absence of counsel whether or not the accused has consulted

with his attorney. Minnick, 498 U.S. at 150-152. This rule does

not apply, however, when the accused or suspect initiates reinterrogation regardless of whether the accused is in custody. Minnick,

498 U.S. at 154-155; Roberson, 486 U.S. at 677. The impact of a

waiver of counsel rights upon the Minnick rule is discussed in the

analysis to subdivision (g)(2) of this rule. Subdivision (e)(2) follows McNeil and applies the Sixth Amendment right to counsel to

military practice. Under the Sixth Amendment, an accused is

entitled to representation at critical confrontations with the government after the initiation of adversary proceedings. In accordance with McNeil, the amendment recognizes that this right is

offense-specific and, in the context of military law, that it normally attaches when charges are preferred. See United States v.

Jordan, 29 M.J. 177, 187 (C.M.A. 1989); United States v. Wattenbarger, 21 M.J. 41 (C.M.A. 1985), cert. denied, 477 U.S. 904

(1986). Subdivision (e)(2) supersedes the prior notice to counsel

rule. The prior rule, based on United States v. McOmber, 1 M.J.

380 (C.M.A. 1976), is not consistent with Minnick and McNeil.

Despite the fact that McOmber was decided on the basis of

Article 27, U.C.M.J., the case involved a Sixth Amendment claim

by the defense, an analysis of the Fifth Amendment decisions of

Miranda v. Arizona, 384 U.S. 436 (1966), and United States v.

Tempia, 16 U.S.C.M.A. 629, 37 C.M.R. 249 (1967), and the Sixth

Amendment decision of Massiah v. United States, 377 U.S. 201

(1964). Moreover, the McOmber rule has been applied to claims

based on violations of both the Fifth and Sixth Amendments. See,

e.g. United States v. Fassler, 29 M.J. 193 (C.M.A. 1989). Minnick

and McNeil reexamine the Fifth and Sixth Amendment decisions

central to the McOmber decision; the amendments to subdivision

(e) are the result of that reexamination.

(f) Exercise of rights. Rule 305(f) restates prior 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); United States v. Collier, 1 M.J. 358

(C.M.A. 1976) have yet to fully resolve this matter.

1994 Amendment: The amendment to subdivision (f) clarifies

the distinction between the rules applicable to the exercise of the

privilege against self-incrimination and the right to counsel. Michigan v. Mosley, 423 U.S. 96 (1975). See also United States v.

Hsu, 852 F.2d 407, 411, n.3 (9th Cir. 1988). The added language,

contained in (f)(2), is based on Minnick v. Mississippi, 498 U.S.

146 (1990), and McNeil v. Wisconsin, 501 U.S. 171 (1991). Consequently, when a suspect or an accused undergoing interrogation

exercises the right to counsel under circumstances provided for

under subdivision (d)(l) of this rule, (f)(2) applies the rationale of

Minnick and McNeil requiring that questioning must cease until

counsel is present.

(g) Waiver. The waiver provision of Rule 305(g) restates current

military practice and is taken in part from Para. 140 a(2) of the

1969 Manual.

Rule 305(g)(1) sets forth the general rule for waiver and follows Miranda v. Arizona, 384 U.S. 436, 475 (1966). The Rule

requires that an affirmative acknowledgment of the right be made

before an adequate waiver may be found. Thus, three waiver

questions are required under Rule 305(g):

Do you understand your rights?

Do you want a lawyer?

Are you willing to make a statement?

(h) Non-military interrogations. Para. 140 a(2) of the 1969 Manual, which governed civilian interrogations of military personnel

basically restated the holding of Miranda v. Arizona, 384 U.S.

436 (1966). Recognizing that the Supreme Court may modify the

M i r a n d a r u l e , t h e C o m m i t t e e h a s u s e d t h e l a n g u a g e i n R u l e

305(h)(1) 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 31(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 a United States personnel do not participate in

an interrogation merely by being present at the scene of the

interrogation, see United States v. Jones, 6 M.J. 226 (C.M.A.

1979) and the Analysis to Rule 311(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 311(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 rule.subparagraph Para. 140 b

of the 1969 Manual 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 coaccused. This may include the granting of a severance.

The Committee was aware of the Supreme Court’s decision in

A22-16

App. 22, M.R.E. 305(e) APPENDIX 22
Parker 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 311 Evidence obtained from unlawful

searches and seizures

R u l e s 3 1 1 – 3 1 7 e x p r e s s t h e m a n n e r i n w h i c h t h e F o u r t h

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 311(a) restates the basic exclusionary rule

for evidence obtained from an unlawful search or seizure and is

taken generally from Para. 152 of the 1969 Manual although

much of the language of Para. 152 has been deleted for purposes

of both clarity and brevity. The Rule requires suppression of

derivative as well as primary evidence and follows the 1969

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 311(c) and are taken generally

from Para. 152 with some expansion for purposes of clarity. Rule

311 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 311(a)(1) 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 found in Para. 152 of the

1969 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

o f “ l e g i t i m a t e e x p e c t a t i o n o f p r i v a c y , ” o f t e n u s e d i n R a k a s ,

supra, as the Committee believed the two expressions to be ident i c a l . T h e C o m m i t t e e a l s o c o n s i d e r e d t h a t t h e e x p r e s s i o n

“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 interest 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 rights 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. United

States, 302 U.S. 257 (1960), which created what has been termed

the “automatic standing rule.” The viability of Jones after Rakas

and other cases is unclear, and the Rule will apply Jones only to

the extent that Jones is constitutionally mandated.

1986 Amendment: The words “including seizures of the person” were added to expressly apply the exclusionary rule to

unlawful apprehensions and arrests, that is, seizures of the person.

Procedures governing apprehensions and arrests are contained in

R.C.M. 302. See also Mil. R. Evid. 316(c).

( b ) E x c e p t i o n s : R u l e 3 1 1 ( b ) s t a t e s t h e h o l d i n g o f W a l d e r v .

United States, 347 U.S. 62 (1954), and restates with minor change

the rule as found in Para. 152 of the 1969 Manual.

1986 Amendment: Rule 311(b)(2) was added to incorporate the

“inevitable discovery” exception to the exclusionary rule of Nix v.

Williams, 467 U.S. 431 (1984). There is authority for the proposition that this exception applies to the primary evidence tainted by

an illegal search or seizure, as well as to evidence derived secondarily from a prior illegal search or seizure. United States v.

Romero, 692 F.2d 699 (10th Cir. 1982), cited with approval in

Nix v. Williams, supra, 467 U.S. 431, n.2. See also United States

v. Kozak, 12 M.J. 389 (C.M.A. 1982); United States v. Yandell,

13 M.J. 616 (A.F.C.M.R. 1982). Contra, United States v. Ward,

19 M.J. 505 (A.F.C.M.R. 1984). There is also authority for the

proposition that the prosecution must demonstrate that the lawful

means which made discovery inevitable were possessed by the

investigative authority and were being actively pursued prior to

the occurrence of the illegal conduct which results in discovery of

the evidence ( United States v. Satterfield, 743 F.2d 827, 846

(11th Cir. 1984)).

As a logical extension of the holdings inNix and United States

v. Kozak, supra, the leading military case, the inevitable discovery exception should also apply to evidence derived from apprehensions and arrests determined to be illegal under R.C.M. 302 (

State v. Nagel, 308 N.W.2d 539 (N.D. 1981) (alternative holding)). The prosecution may prove that, notwithstanding the illegality of the apprehension or arrest, evidence derived therefrom is

admissible under the inevitable discovery exception.

Rule 311(b)(3) was added in 1986 to incorporate the “good

faith” exception to the exclusionary rule based on United States v.

Leon, 468 U.S. 897 (1984) and Massachusetts v. Sheppard, 468

U.S. 981 (1984). The exception applies to search warrants and

authorizations to search or seize issued by competent civilian

authority, military judges, military magistrates, and commanders.

The test for determining whether the applicant acted in good faith

i s w h e t h e r a r e a s o n a b l y w e l l - t r a i n e d l a w e n f o r c e m e n t o f f i c e r

would have known the search or seizure was illegal despite the

authorization. In Leon and Sheppard, the applicant’s good faith

was enhanced by their prior consultation with attorneys.

The rationale articulated in Leon and Sheppard that the deterrence basis of the exclusionary rule does not apply to magistrates

extends with equal force to search or seizure authorizations issued

by commanders who are neutral and detached, as defined in

United States v. Ezell, 6 M.J. 307 (C.M.A. 1979). The United

A22-17

ANALYSIS OF THE MILITARY RULES OF EVIDENCE App. 22, M.R.E. 311(b)
States Court of Military Appeals demonstrated in United States v.

Stuckey, 10 M.J. 347 (C.M.A. 1981), that commanders cannot be

equated constitutionally to magistrates. As a result, commanders’

authorizations may be closely scrutinized for evidence of neutrality in deciding whether this exception will apply. In a particular

case, evidence that the commander received the advice of a judge

advocate prior to authorizing the search or seizure may be an

important consideration. Other considerations may include those

enumerated in Ezell and: the level of command of the authorizing

commander; whether the commander had training in the rules

relating to search and seizure; whether the rule governing the

search or seizure being litigated was clear; whether the evidence

supporting the authorization was given under oath; whether the

authorization was reduced to writing; and whether the defect in

the authorization was one of form or substance.

As a logical extension of the holdings inLeon and Sheppard,

the good faith exception also applies to evidence derived from

apprehensions and arrests which are effected pursuant to an authorization or warrant, but which are subsequently determined to

h a v e b e e n d e f e c t i v e u n d e r R . C . M . 3 0 2 ( U n i t e d S t a t e s v .

Mahoney, 712 F.2d 956 (5th Cir. 1983); United States v. Beck,

729 F.2d 1329 (11th Cir. 1984)). The authorization or warrant

must, however, meet the conditions set forth in Rule 311(b)(3).

It is intended that the good faith exception will apply to both

primary and derivative evidence.

(c) Nature of search or seizure. Rule 311(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) Military personnel. Rule 311(c)(1) generally restates prior

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 officials. Rule 311(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) Officials of a 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 portion of the Jordan opinion which

purported to require that such foreign 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 found in Para. 150 b of the

1969 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 311(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. This 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 311(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)(1) differs from Rule 304(c)(1) 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 311(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 of proof. Rule 311(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 prior law.

February 1986 Amendment: rule.subparagraphs (e)(1) and (2)

were amended to state the burden of proof for the inevitable

A22-18

App. 22, M.R.E. 311(b) APPENDIX 22
discovery and good faith exceptions to the exclusionary rule, as

prescribed in Nix v. Williams, 467 U.S. 431 (1984) and United

States v. Leon, 468 U.S. 897 (1984), respectively.

1993 Amendment: The amendment to Mil. R. Evid. 311(e)(2)

was made to conform Rule 311 to the rule of New York v. Harris,

495 U.S. 14 (1990). The purpose behind the exclusion of derivative evidence found during the course of an unlawful apprehension in a dwelling is to protect the physical integrity of the

dwelling not to protect suspects from subsequent lawful police

interrogation. See id. A suspect’s subsequent statement made at

another location that is the product of lawful police interrogation

is not the fruit of the unlawful apprehension. The amendment also

contains language added to reflect the “good faith” exception to

the exclusionary role set forth in United States v. Leon, 468 U.S.

897 (1984), and the “inevitable discovery” exception set forth in

Nix v. Williams, 467 U.S. 431 (1984).

(f) Defense evidence. Rule 311(f) restates prior 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 of motions and objections challenging probable cause.

Rule 311(g)(2) follows the Supreme Court decision inFranks v.

Delaware, 422 U.S. 928 (1978), see also United States v. Turck,

49 C.M.R. 49, 53 (A.F.C.M.R. 1974), with minor modifications

m a d e t o a d o p t t h e d e c i s i o n t o m i l i t a r y p r o c e d u r e s . A l t h o u g h

Franks involved perjured affidavits by police, Rule 311(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.

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

that in order for the defense to prevail on an objection or motion

under this rule, it must establish, inter alia, that the falsity of the

evidence was “knowing and intentional” or in reckless disregard

for the truth. Accord Franks v. Delaware, 438 U.S. 154 (1978).

(h) Objections to evidence seized unlawfully. Rule 311(h) is new

and is included for reasons of clarity.

(i) Effect of guilty plea. Rule 311(i) restates prior law. See, e.g.,

U n i t e d S t a t e s v . H a m i l , 1 5 U . S . C . M . A . 1 1 0 , 3 5 C . M . R . 8 2

(1964).

Rule 312 Body views and intrusions

1984 Amendment: “Body” was substituted for “bodily” in

t h e t i t l e a n d w h e r e a p p r o p r i a t e i n t e x t . S e e U n i t e d S t a t e s v .

Armstrong, 9 M.J. 374, 378 n.5 (C.M.A. 1980).

(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 311.

(b) Visual examination of the body. Rule 312(b) governs searches

and examinations of the naked body and thus controls what has

often been loosely termed “strip searches.” Rule 312(b) permits

visual examination 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 312(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), reversed sub nom Bell 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 examination of body cavities when reasonably

necessary to maintain the security of the institution or its personnel. See, 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

t h e i n d i v i d u a l i s c o n c e a l i n g p r o p e r t y w i t h i n a b o d y c a v i t y .

Frazier v. Ward, 426 F.Supp. 1354 (N.D.N.Y. 1977); Hodges v.

Klein, 412 F.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.

1984 Amendment: In subsection (b)(2) and (c), “reasonable”

replaced “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, 592 F.2d 909 (5th Cir.

1979); United States v. Asbury, 586 F.2d 973 (2d Cir. 1978);

United States v. Wardlaw, 576 F.2d 932 (1st Cir. 1978); United

States v. Himmelwright, 551 F.2d 991 (5th Cir.), cert. denied, 434

U.S. 902 (1977). But see United States v. Aman, 624 F.2d 911

(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.

(c) Intrusion 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

d i s c o v e r e d i n a c c o r d a n c e w i t h R u l e s 3 1 2 ( b ) , 3 1 2 ( c ) ( 2 ) , o r

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

A22-19

ANALYSIS OF THE MILITARY RULES OF EVIDENCE App. 22, M.R.E. 312(c)
easily located by sight can normally be easily extracted. The

requirements for appropriate medical qualifications, however, recognize 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 qualifications 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 in

Rule 312(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 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

i n d i v i d u a l i s c o n c e a l i n g w e a p o n s , c o n t r a b a n d , o r e v i d e n c e o f

crime.”

(d) Extraction of body fluids. 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 “body

fluids.”

The 1969 Manual Para. 152 authorization for seizure of bodily

fluids when there has been inadequate time to obtain a warrant or

authorization has been slightly modified. The prior 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.

1984 Amendment: 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. 1983). See also Analysis, Mil.

R. Evid. 313(b).

(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. Crowder, 513 F.2d

395 (D.C. Cir. 1976); Adams v. State, 299 N.E.2d 834 (Ind.

1973); Creamer v. State, 299 Ga. 511, 192 S.E.2d 350 (1972),

N o t e , S e a r c h a n d S e i z u r e : C o m p e l l e d S u r g i c a l I n t r u s i o n , 2 7

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 person 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 individual 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 qualificat i o n s n e c e s s a r y f o r p e r s o n s t o c o n d u c t t h e p r o c e d u r e s a n d

examinations specified in the Rule.

Rule 313 Inspections and inventories in the

armed forces

Although inspections have long been recognized as being

necessary and legitimate exercises of a commander’s powers and

r e s p o n s i b i l i t i e s , s e e , e . g . , U n i t e d S t a t e s v . G e b h a r t , 1 0

U.S.C.M.A. 606, 610 .2, 28 C.M.R. 172, 176 n.2 (1959), the 1969

Manual for Courts-Martial omitted discussion of inspections except to note that the Para. 152 restrictions on seizures were 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. Maryland, 359 .S. 360 (1959).

Inspections that have been utilized as subterfuge searches have

b e e n c o n d e m n e d . S e e , e . g . , U n i t e d S t a t e s v . L a n g e , 1 5

U.S.C.M.A. 486, 35C.M.R. 458 (1965). Recent decisions of the

United States Court of Military Appeals have attempted, generally

without success, to define “inspection” for Fourth Amendment

evidentiary purposes, see, e.g., United States v. Thomas, 1 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 311(c)(2). In general, this means that

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App. 22, M.R.E. 312(c) APPENDIX 22
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 the 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. United States v.

Thomas, supra; United States 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, 28 C.M.R. 172, 176 n.2. (1959). There are

three distinct rationales which support the constitutionality of

inspections.

The first such rationale is that inspections are not technically

“searches”within the meaning of the Fourth 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 impossible— a 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. 311 (1972);Colonnade Catering Corp. v. United

States, 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

armed 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., Committee for

G.I. Rights v. Callaway, 518 F.2d 466 (D.C. Cir. 1975). Under

Colonnade Catering, supra, and Bisell, supra, inspections are

thus reasonable searches and may be made without warrant.

An additional rationale for military inspection 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. 523 (1967); See City of Seattle, 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 reasonable 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 analogous 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. Barlow’s Inc., 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 authori t y . C a m a r a v . M u n i c i p a l C o u r t , 3 8 7 U . S . 5 2 3 , 5 3 2 ( 1 9 6 7 ) .

Within the armed forces, the warrant requirement is met automatically if an inspection is ordered by a commander, as commanders

are empowered to grant warrants. United States 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 known to all. To the extent that the search

warrant requirements are intended to prohibit inspectors from

utilizing inspections as subterfuge searches, a normal inspection

fully meets the concern, and Rule 313(b) expressly prevents such

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ANALYSIS OF THE MILITARY RULES OF EVIDENCE App. 22, M.R.E. 313(b)
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, 530–531 (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 313(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 a primary 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 a unit,

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 and welfare inspections, see, e.g., Committee for G.I. Rights v. Callaway, 518 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 . , U n i t e d S t a t e s v . G e b h a r t , 1 0 C . M . A . 6 0 6 , 6 1 0 n . 2 , 2 8

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., United States

v. Grace, 19 C.M.A. 409, 410, 42 C.M.R. 11, 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 drug use, but the

effects 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); United States v. Unrue, 22 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 a readiness 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

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App. 22, M.R.E. 313(b) APPENDIX 22
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 that 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 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

o r d i n a r i l y m o r e c o n c e r n e d w i t h r e m o v a l o f c o n t r a b a n d f r o m

u n i t s — t h e r e b y e l i m i n a t i n g i t s n e g a t i v e e f f e c t s o n u n i t

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 311 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 government’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.

R u l e 3 1 3 ( b ) r e q u i r e s t h a t i n s p e c t i o n s b e c o n d u c t e d i n 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 inspect i o n , f o r e x a m p l e , m a y b e u n r e a s o n a b l e d e p e n d i n g u p o n t h e

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 compliance with Rule 313 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 313(b) recognizes and affirms the commander’s power to

conduct administrative examinations which are primarily nonprosecutorial 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.

1984 Amendment: Much of the foregoing Analysis was rendered obsolete by amendments made in 1984. The third sentence

of Rule 313(b) was modified and the fourth and sixth sentences

are new.

The fourth sentence is new. The Military Rule of Evidence did

not previously expressly address production of body fluids, perhaps because of United States v. Ruiz, 23 U.S.C.M.A. 181, 48

C . M . R . 7 9 7 ( 1 9 7 4 ) . R u i z w a s i m p l i c i t l y o v e r r u l e d i n U n i t e d

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 United States v.

Roberts, 2 M.J. 31 (C.M.A. 1976); United States v. Thomas, 1

M.J. 397 (C.M.A. 1976). Much of the uncertainty in this area was

A22-23

ANALYSIS OF THE MILITARY RULES OF EVIDENCE App. 22, M.R.E. 313(b)
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 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 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 drink a reasonable amount of water in order to facilitate

production of a urine sample. See United States v. Mitchell, 16

M.J. 654 (N.M.C.M.R. 1983).

T h e s i x t h s e n t e n c e i s b a s e d o n U n i t e d S t a t e s v . M i d d l e t o n ,

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. 313(b) may

have established unnecessary burdens for the prosecution, yet still

have been inadequate to protect against subterfuge inspections,

under some circumstances.

T h e f o r m e r l a n g u a g e a l l o w e d a n i n s p e c t i o n f o r “ u n l a w f u l

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 a case-by-case showing of the adverse eff e c t s o f t h e w e a p o n s o r c o n t r a b a n d ( i n c l u d i n g c o n t r o l l e d

substances) in the particular unit, organization, installation, aircraft, or vehicle 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 purp o s e s t h e d i s c o v e r y o f c o n t r a b a n d — i . e . , d r u g s . S i g n i f i c a n t l y ,

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. United States 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

l e g a l i t y o f t h e r e g u l a t i o n ( c f . U n i t e d S t a t e s v . W i l s o n , 1 2

U.S.C.M.A. 165, 30 C.M.R. 165 (1961); United States v. Nation,

9 U.S.C.M.A. 724, 26 C.M.R. 504 (1958)) but this burden falls

on 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

f o r c o n t r a b a n d , a s w e l l a s o t h e r t h i n g s , “ w h e n a d e q u a t e

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.

L a n g e , 1 5 U . S . C . M . A . 4 8 6 , 3 5 C . M . R . 4 5 8 ( 1 9 6 5 ) . T h e

“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

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App. 22, M.R.E. 313(b) APPENDIX 22
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 United

States 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 categor i e s m a y b e i n s p e c t e d . C f . U n i t e d S t a t e s v . K i n g , 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 commander’s 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 of prosecution, but on neutral ground or for

an independent purpose— e.g., individuals were selected because

they were new to the 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.

T h e n e w l a n g u a g e p r o v i d e s o b j e c t i v e c r i t e r i a b y w h i c h t o

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.

(c) Inventories. Rule 313(c) codifies prior 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 nature

and is a reasonable intrusion. See, e.g., South Dakota v. Opperman, 428 U.S. 364 (1976).

An inventory may not be used as subterfuge search, United

States v. 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.,

U n i t e d S t a t e s v . B r a s h e a r s , 2 1 C . M . A . 5 5 2 , 4 5 C . M . R . 3 2 6

(1972).

The committee does not, however, express an opinion as to the

lawful scope of an inventory. See, e.g., South Dakota v. Opperman, 428 U.S. 364 (1976), in which the court did not determine

the propriety of opening the locked trunk or glove box 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 314in 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(j).

Insofar as Rule 314 expressly deals with a given type of search,

the Rule preempts the area in that the Rule must be followed even

should the 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 314(a) provides that evidence obtained

from a search conducted pursuant to Rule 314 and not in violation of another Rule, e.g. , Rule 312, Bodily Views and Intrusions, 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 314(c) follows the opinion of Chief

Judge Fletcher in United States 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

A22-25

ANALYSIS OF THE MILITARY RULES OF EVIDENCE App. 22, M.R.E. 314(c)
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 314(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.

1984 Amendment: Subsection (c) was amended by adding “or

e x i t f r o m ” b a s e d o n U n i t e d S t a t e s v . A l l e y n e , 1 3 M . J . 3 3 1

(C.M.A. 1982).

(d) Searches of government property. Rule 314(d) restates prior

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,

Rule 311(a)(2), it is more usually expressed as a non-probable

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 rule in force before 1980 was found in

Para. 152, MCM, 1969 (Rev.), 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 314(e) generally restates prior 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. 511, 37

C.M.R. 142 (1967). It was the Committee’s intent to restate prior

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 314(e)(3) restates prior 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

from Schneckloth v. Bustamonte, 412 U.S. 218, 248–49 (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, a valuable 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 of proof. Although not constitutionally required, the

burden of proof in Para.152 of the 1969 Manual for consent

searches has been retained in a slightly different form— “clear

and convincing” in place of “clear and positive”— 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 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 lawful 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 (1968), 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., Adams 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

A22-26

App. 22, M.R.E. 314(c) APPENDIX 22
relevant to the offense possibly involved. See Lederer, Rights

Warnings in the Armed Services, 72 Mil.L.Rev. 1,40–41 (1976).

1984 Amendment: Subsection (f)(3) was added based on Michigan v. Long, 463 U.S. 1032 (1983).

(g) Searches incident to a lawful apprehension. The 1969 Manual

rule was found in Para. 152 and stated:

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 ) G e n e r a l R u l e . R u l e 3 1 4 ( g ) ( 1 ) e x p r e s s l y a u t h o r i z e s t h e

search of a person of a lawfully apprehended individual without

further justification.

( 2 ) S e a r c h f o r w e a p o n s a n d d e s t r u c t i b l e e v i d e n c e . R u l e

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 Chimel 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 Chimel search must be limited

by its rationale.

That portion of the 1969 Manual rule.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.

1984 Amendment: 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 onNew 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 term “automobile” have the broadest possible meaning.

(3) Examination for other persons. 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 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).

1994 Amendment. The amendment to Mil. R. Evid. 314(g)(3),

based on Maryland v. Buie, 494 U.S. 325 (1990), specifies the

circumstances permitting the search for other persons and distinguishes between protective sweeps and searches of the attack

area.

Subsection (A) permits protective sweeps in the military. The

last sentence of this subsection clarifies that an examination under

the rule need not be based on probable cause. Rather, this subsection adopts the standard articulated in Terry v. Ohio, 392 U.S. 1

(1968) and Michigan v. Long, 463 U.S. 1032 (1983). As such,

there must be articulable facts that, taken together with the rational inferences from those facts, would warrant a reasonably

prudent officer in believing the area harbors individuals posing a

danger to those at the site of apprehension. The previous language

referring to those “who might interfere” was deleted to conform

to the standards set forth in Buie. An examination under this rule

is limited to a cursory visual inspection of those places in which a

person might be hiding.

A new subsection (B) was also added as a result of Buie,

supra. The amendment clarifies that apprehending officials may

examine the “attack area” for persons who might pose a danger to

apprehending officials. See Buie, 494 U.S. at 334. The attack area

is that area immediately adjoining the place of apprehension from

which an attack could be immediately launched. This amendment

makes it clear that apprehending officials do not need any suspicion to examine the attack area.

(h) Searches within jails, confinement facilities, or similar facilit i e s . P e r s o n n e l c o n f i n e d i n a m i l i t a r y c o n f i n e m e n t f a c i l i t y o r

housed in a facility serving a generally similar purpose will normally yield any normal Fourth Amendment protections to the

reasonable needs of the facility. See, 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 related purpose. This

type of search is not found within the 1969 Manual provision but

is in accord with prevailing civilian and military case law. See,

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 of open fields or woodlands. This type of search is

taken from 1969 Manual paragraph 152. Originally recognized in

Hester v. United States, 265 U.S. 57 (1924), this doctrine was

revived by the Supreme Court in Air Pollution 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 the 4th 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. at 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) General Rule— Rule 315 states that evidence obtained purA22-27

ANALYSIS OF THE MILITARY RULES OF EVIDENCE App. 22, M.R.E. 315(a)
suant to the Rule is admissible when relevant and not otherwise

admissible under the Rules.

(b) Definitions.

( 1 ) A u t h o r i z a t i o n t o s e a r c h . R u l e 3 1 5 ( b ) ( 1 ) d e f i n e s a n

“authorization to search” as an express permission to search issued by proper military 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 of authorization.— Rule 315(c) is taken generally from

Para. 152(1)–(3) of the 1969 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 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. §§ 3401–3422,

and DOD Directive 5400.12 (Obtaining Information From Financial Institutions).

R u l e 3 1 5 ( c ) ( 4 ) i s a m o d i f i c a t i o n o f p r i o r l a w . S u b d i v i s i o n

(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 1969 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, of course,

applicable treaty requires such approval); 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) Power 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 Lo-Ji Sales v. New

York, 442 U.S. 319 (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)(1) restates the prior 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 nonofficer 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 a person serving as officer-in-charge or in

a position designated by the Secretary as a position analogous to

an officer-in-charge 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— Former subsection (2), which purported to allow

delegation of the authority to authorize searches, was deleted in

1984, based on United States v. Kalscheuer, 11 M.J. 373 (C.M.A.

1981). Subsection (3) was renumbered as subsection (2).

(3) Military judge— Rule 315(d)(2) permits military judges to

issue search authorizations when authorized to do so by the Secretary concerned. MILITARY MAGISTRATES MAY ALSO BE

E M P O W E R E D T O G R A N T S E A R C H A U T H O R I Z A T I O N S .

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 investig a t o r ” w i t h i n R u l e 3 1 5 ( e ) i n c l u d e s m e m b e r s o f t h e A r m y

Criminal Investigation Command, the Marine Corps Criminal Investigation Division, the Naval Criminal Investigative Service, the

Air Force Office of Special Investigations, and Coast Guard special agents.

( f ) B a s i s f o r s e a r c h a u t h o r i z a t i o n s . R u l e 3 1 5 ( f ) r e q u i r e s t h a t

probable cause be present before a search can be conducted under

the Rule and utilizes the basic definition of probable cause found

in 1969 Manual Para. 152.

For reasons of clarity the Rule sets forth a simple and general

test to be used in all probable cause determinations: probable

c a u s e c a n e x i s t o n l y i f t h e a u t h o r i z i n g i n d i v i d u a l h a s 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 Para. 152 of the 1969 Manual.

The Rule expands the test beyond the hearsay and informant area.

A22-28

App. 22, M.R.E. 315(a) APPENDIX 22
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

test 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 it

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 enforcem e n t a g e n t . T h e i n d i v i d u a l m a k i n g t h e p r o b a b l e c a u s e

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 requirements for the issuance of search authorizations.

1984 Amendment: The second sentence of subsection (f)(1)

was deleted based on Illinois v. Gates, 462 U.S.213 (1983), which

overturned the mandatory two-prong test of Aguilar v. Texas,

supra. Although the second sentence may be technically compatible with Gates, it could be construed as requiring strict application of the standards of Aguilar. The former language remains

good advice for those deciding the existence of probable cause,

especially for uncorroborated tips, but is not an exclusive test. See

also Massachusetts v. Upton, 466 U.S. 767 (1984).

(g) Exigencies. Rule 315(g) restates prior law and delimits those

circumstances in which a search warrant or authorization is unnecessary despite the ordinary requirement for one. In all such

cases probable cause is required.

Rule 315(g)(1) 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 315(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).

1984 Amendment: 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

w a s i n f a c t i n o p e r a b l e ( t h a t i s , t o r e b u t t h e p r e s u m p t i o n o f

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)

s e a r c h i n g k n e w o r s h o u l d h a v e k n o w n t h a t t h e v e h i c l e w a s

inoperable.

(h) Execution. Rule 314(h)(1) 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

A22-29

ANALYSIS OF THE MILITARY RULES OF EVIDENCE App. 22, M.R.E. 315(h)
not, however, result in exclusion of the evidence. Similarly, Rule

314(h)(2) provides for the inventory of seized property and provisions 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 otherw i s e i n a d m i s s i b l e u n d e r t h e R u l e s . R u l e 3 1 6 r e c o g n i z e s t h a t

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) Seizures of property. Rule 316(b) defines probable cause in

the same fashion as defined by Rule 315 for probable cause

searches. See the Analysis of Rule 315(f)(2). The justifications for

seizing property are taken from 1969 Manual Para. 152. Their

number has, however, been reduced for reasons 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.”

1984 Amendment: The second sentence of subsection (b) was

deleted based on Illinois v. Gates, 462 U.S. 213 (1983). See

Analysis, Mil. R. Evid. 315(f)(1), supra.

(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

( 1 9 7 9 ) ; U n i t e d S t a t e s v . T e x i d o r - P e r e z , 7 M . J . 3 5 6 ( C . M . A .

1979).

(d) Seizure of property or evidence.

(1) Abandoned property. Rule 316(d) restates prior law, not

addressed specifically by the 1969 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 demonstrate 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 314(d) and its analysis.

( 4 ) O t h e r p r o p e r t y . R u l e 3 1 6 ( d ) ( 4 ) p r o v i d e s f o r s e i z u r e o f

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— notwiths t a n d i n g d i c t a , i n s o m e c o u r t c a s e s ; s e e , C o o l i d g e v . N e w

Hampshire, 403 U.S. 443 (1971). 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

M O D E L C O D E O F P R E A R R A I G N M E N T P R O C E D U R E S §

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.

1 9 8 4 A m e n d m e n t : S u b s e c t i o n ( d ) ( 5 ) w a s a d d e d b a s e d o n

United States v. Place, 462 U.S. 696 (1983).

(e) Power to seize. Rule 316(e) conforms with Rule 315(e) and

has its origin in Para. 19, MCM, 1969 (Rev.).

Rule 317 Interception of wire and oral

communication

(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. § 2516, Rule 317(b), and when applicable, by regulations issued by the Secretary of Defense or the

Secretary concerned. Rule 317(a), however, specifically requires

exclusion of evidence resulting form 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 United States 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. § 2516

by expressly recognizing the Attorney General’s authority to authorize applications to a federal court by the Department of Def e n s e , D e p a r t m e n t o f H o m e l a n d S e c u r i t y , o r t h e m i l i t a r y

d e p a r t m e n t s f o r a u t h o r i t y t o i n t e r c e p t w i r e o r o r a l

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 non

consensual under Chapter 119 of Title 18 of the United States

Code.

A22-30

App. 22, M.R.E. 315(h) APPENDIX 22
Rule 321 Eyewitness identification

(a) General Rule

(1) Admissibility. The first sentence of Rule 321(a)(1) is the

b a s i c r u l e o f a d m i s s i b i l i t y o f e y e w i t n e s s i d e n t i f i c a t i o n a n d

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 in-court identification, significant change from the prior

rule as found in Para. 153 a, MCM, 1969 (Rev.).

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)(1)(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-of-court 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)(1) 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 the basic exclusionary rule for eyewitness identification testimony. The substance of the Rule is taken from prior Manual paragraph 153 a as

modified by the new procedure for suppression motions. See

Rules 304 and 311. 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

w h i c h i s d e t e r m i n a t i v e . M a n s o n v . B r a t h w a i t e , 4 3 2 U . S . 9 8

(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.”

(1) Lineups and other identification processes. Rule 321(b)

defines “unlawful lineup 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). See also Foster v. California, 394 U.S. 440

(1969). An identification is not unnecessarily suggestive in violation 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 (1)(A) differs from subdivision (1)(B) only in that

it recognizes that the Constitution may apply differently to members of the armed forces than it does to civilians.

R u l e 3 2 1 ( b ) ( 1 ) i s a p p l i c a b l e t o a l l f o r m s o f i d e n t i f i c a t i o n

processes including showups and lineups.

1984 Amendment: Subsections (b)(1) and (d)(2) were modified

to make clear that the test for admissibility of an out-of-court

identification is reliability. See Manson v. Brathwaite, supra. This

was apparently the intent of the drafters of the former rule. See

Analysis, Mil. R. Evid. 321. The language actually used in subsection (b)(1) and (d)(2) was subject to a different interpretation,

however. See S. Salzburg, L. Schinasi, and D. Schlueter, MILITARY RULES OF EVIDENCE MANUAL at 165–167 (1981);

Gasperini, Eyewitness Identification Under the Military Rules of

Evidence, 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 shown 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, supra.

Note that the modification of subsection (b)(1) 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.

(2) Lineups: right to counsel. Rule 321(b)(2) deals only with

lineups. The Rule does declare that a lineup is “unlawful” if it is

conducted in violation of the right to counsel. Like Rule 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

A22-31

ANALYSIS OF THE MILITARY RULES OF EVIDENCE App. 22, M.R.E. 321(b)(2)
changes military law and adapts the Supreme Court’s decision in

Kirby v. Illinois, 406 U.S. 682, 689 (1972) (holding that the right

t o c o u n s e l a t t a c h e d o n l y w h e n “ a d v e r s a r y j u d i c i a l c r i m i n a l

proceedings” have been initiated or “the government has committed itself to prosecute”) to unique military criminal procedure. See

also Rule 305(d)(1)(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.” Truly accidental confrontations between victims

and suspects leading to an identification by the victim are not

generally considered “lineups”; cf. United State ex rel Ragazzin v.

Brierley, 321 F.Supp. 440 (W.D. Pa. 1970). Photolineart identifications are not “lineups” for purposes of the right to counsel.

U n i t e d S t a t e s v . A s h , 4 1 3 U . S . 3 0 0 , 3 0 1 n . 2 ( 1 9 7 3 ) . I f a

photolineart identification is used, however, the photographs employed should be preserved for use at trial in the event that the

defense should claim that the identification was “unnecessarily

suggestive.” See subdivision (b)(1) supra.

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

t h e p a r t i c i p a n t ’ s o w n s e l e c t i o n e x i s t s u n d e r t h e R u l e , U n i t e d

States 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

a d e q u a t e w a i v e r s h o u l d t h e d e f e n s e a d e q u a t e l y c h a l l e n g e t h e

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, & F. Lederer, CRIMINAL EVIDENCE 366

(1979).

1984 Amendment: 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).

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 of proof. 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 311. The subdivision distinguishes

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)(1) 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)(1) is taken in substance from 1969 Manual Para. 153 a.

( 2 ) U n n e c e s s a r i l y s u g g e s t i v e i d e n t i f i c a t i o n . R u l e 3 2 1 ( 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)(1), applies to all identification

processes whether lineups or not. The Rule recognizes that the

nature of the identification process itself may well be critical to

the reliability of the identification and provides 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 1969 Manual Para. 153 a and Kirby v. Illinois, 406 U.S. 682

(1972).

(e) Defense evidence. Rule 321(e) is identical with the analogous

provisions in Rules 304 and 311 and generally restates prior law.

(f) Rulings. Rule 321(f) is identical with the analogous provisions

in Rules 304 and 321 and substantially changes prior law. See the

Analysis to Rule 304(d)(4).

(g) Effect of guilty plea. Rule 321(g) is identical with the analogous provisions in Rules 304 and 311 and restates prior law.

SECTION IV

Relevancy and its Limits

Rule 401 Definition of “relevant evidence”

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 Para. 137, MCM, 1969 (Rev.).

The Rule’s definition may be somewhat broader than the 1969

Manual’s, as the Rule defines 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

A22-32

App. 22, M.R.E. 321(b)(2) APPENDIX 22
1969 Manual defines as “not relevant” evidence “too remote to

have any appreciable probative value ...” To the extent that the

1969 Manual’s definition includes considerations of “legal relevance,” those considerations are adequately addressed by such

other Rules as Rules 403 and 609. See, E. IMWINKELRIED, 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 item’s probative value outweighs any attendant probative dangers.”) The Rule is similar to the 1969 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 evidence generally admissible;

irrelevant evidence inadmissible.

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 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 admissibility of relevant evidence

is required by the limitations in Sections III and V and by such

other Rules as 403 and 609 which intentionally utilize matters

such as degree of probative value and judicial efficiency in determining whether relevant evidence should be admitted.

Rule 402 is not significantly different in its effect from Para.

137 of the 1969 Manual which it replaces, and procedures used

under the 1969 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

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 ) C h a r a c t e r e v i d e n c e g e n e r a l l y . R u l e 4 0 4 ( a ) r e p l a c e s 1 9 6 9

Manual Para. 138 f 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)(1) allows only evidence of a pertinent trait of

character of the accused to be offered in evidence by the defense.

This is a significant change from Para. 138 f of the 1969 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 prior 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 military environment. 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 peacefulness 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

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ANALYSIS OF THE MILITARY RULES OF EVIDENCE App. 22, M.R.E. 404(a)
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 witness pursuant to Rules 607–609.

2004 Amendment: Subdivision (a) was modified based on the

amendment to Fed. R. Evid. 404(a), effective 1 December 2000,

and is virtually identical to its Federal Rule counterpart. It is

intended to provide a more balanced presentation of character

evidence when an accused attacks the victim’s character. The

accused opens the door to an attack on the same trait of his own

character when he attacks an alleged victim’s character, giving

the members an opportunity to consider relevant evidence about

the accused’s propensity to act in a certain manner. The words “if

relevant” are added to subdivision (a)(1) to clarify that evidence

of an accused’s character under this rule must meet the requirements of Mil. R. Evid. 401 and Mil. R. Evid. 403. The drafters

believe this addition addresses the unique use of character evidence in courts-martial. The amendment does not permit proof of

the accused’s character when the accused attacks the alleged

victim’s character as a witness under Rule 608 or 609, nor does it

affect the standards for proof of character by evidence of other

sexual behavior or sexual offenses under Rules 412-415.

(b) Other crimes, wrongs, or acts. Rule 404(b) is taken without

change from the Federal Rule, and is substantially similar to the

1969 Manual rule found in Para. 138 g. While providing that

evidence of other crimes, wrongs, or acts is not admissible to

prove a predisposition to commit a crime, the Rule expressly

permits 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 Para. 138 g(4),

remain effective. Such a purpose would, for example, be an acceptable one. Rule 404(b), like Manual Para. 138 g, expressly

allows use of evidence of misconduct not amounting to conviction. Like Para. 138 g, 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.

1994 Amendment. The amendment to Mil. R. Evid. 404(b) was

based on the 1991 amendment to Fed. R. Evid. 404(b). The

previous version of Mil. R. Evid. 404(b) was based on the now

superseded version of the Federal Rule. This amendment adds the

requirement that the prosecution, upon request by the accused,

provide reasonable notice in advance of trial, or during trial if the

military judge excuses pretrial notice on good cause shown, of the

general nature of any such evidence it intends to introduce at trial.

Minor technical changes were made to the language of the Federal Rule so that it conforms to military practice.

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 prior military rule found in Para. 138 f(1) of the

1969 Manual. An individual testifying under the Rule must have

an adequate relationship with the community ( see 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 permits inquiry or cross-examination “into relevant specific instances of conduct.” This is at variance with prior military

practice under which such an inquiry was prohibited. See, Para.

138 f(2), MCM, 1969 (Rev.) (character of the accused). Reputation evidence is exempted from the hearsay rule, Rule 803(21).

(b) Specific instances of conduct. Rule 405(b) is taken without

significant 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) Affidavits. Rule 405(c) is not found within the Federal Rules

and is taken verbatim from material found in Para. 146b of the

1969 Manual. Use of affidavits or other written statements is

required due to the world wide disposition of the armed forces

which makes it difficult if not impossible to obtain witnesses—

particularly when the sole testimony of a witness is to be a brief

statement relating to the character of the accused. This is particularly 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 Rule 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 1969 Manual Para. 138 f(1) and the definition of “community” is an expansion of that now found in the same paragraph.

T h e d e f i n i t i o n o f “ c o m m u n i t y ” h a s b e e n b r o a d e n e d t o a d d

“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 wing, 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 Habit; routine practice

Rule 406 is taken without change from the Federal Rule. It is

similar in effect to Para. 138h of the 1969 Manual. It is the intent

of the Committee to include within Rule 406’s use of the word,

“organization,” military organizations regardless of size. See Rule

405 and the Analysis to that Rule.

Rule 407 Subsequent remedial measures

Rule 407 is taken from the Federal Rules without change, and

has no express equivalent in the 1969 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 1969 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

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App. 22, M.R.E. 404(a) APPENDIX 22
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 Inadmissibility of pleas, discussions,

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 a

providency inquiry, civilian or military. E.g., United States v.

Care, 18 C.M.A. 535 (1969). Subsection (b) was added to the

Rule in recognition of the unique possibility of administrative

disposition, usually separation, in lieu of court-martial. 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 of the 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 411 Liability Insurance

Rule 411 is taken from the Federal Rule without change. Although it would appear to have potential impact upon some crimin a l c a s e s , e . g . , s o m e n e g l i g e n t h o m i c i d e c a s e s , i t s a c t u a l

application to criminal cases is uncertain. It is the Committee’s

intent that Rule 411 be applicable to courts-martial only to the

extent that it is applicable to criminal cases.

Rule 412 Nonconsensual sexual offenses;

relevance of victim’s past behavior

Rule 412 is taken from the Federal Rules. 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 embarrassing and degrading cross-examination and evidence presentations common to prosecutions of such offenses. In

so doing, it recognizes that the prior 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 rule found in Para. 153 b (2)(b), MCM,

1969 (Rev.), which permits evidence of the victim’s “unchaste”

character regardless of whether he or she has testified, the Rule

will significantly change prior military practice and will restrict

d e f e n s e e v i d e n c e . T h e R u l e r e c o g n i z e s , h o w e v e r , i n R u l e

412(b)(1), the fundamental right of the defense under the Fifth

Amendment of the Constitution of the United States to present

relevant defense evidence by admitting evidence that is “constitutionally required to 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 Rule 412(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

military environment. Military life requires that large numbers of

young men and women live and work together in close quarters

which are often highly isolated. The deterrence 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 and/or 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)(1) recognizes that evidence of a victim’s past

sexual behavior may be constitutionally required to be admitted.

Although there are a number of circumstances in which this

language may be applicable, see, S. Saltzburg & K. Redden,

FEDERAL RULES OF EVIDENCE MANUAL 92–93 (2d ed.

Supp. 1979) (giving example of potential constitutional problems

offered by the American Civil Liberties Union during the House

hearings on Rule 412), one may be of particular interest. If an

individual has contracted for the sexual services of a prostitute

a n d s u b s e q u e n t t o t h e p e r f o r m a n c e o f t h e a c t t h e p r o s t i t u t e

demands increased payment on pain of claiming rape, for example, the past history 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 Rule 412(b)(2),

is unlikely to be admissible regardless of the past sexual history.

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 military cases. For similar reasons, the requirement for a

written motion has been omitted in favor of an offer of proof,

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ANALYSIS OF THE MILITARY RULES OF EVIDENCE App. 22, M.R.E. 412
which could, of course, be made in writing, at the discretion of

the military judge. 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 spectators 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

procedures 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 1969

Manual’s prohibition in Para. 153 a 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,

Rule 801(d)(1)(B), or fits within an exception to the hearsay rule.

See, subdivisions (1), (2), (3), (4), and (24) of Rule 803.

1993 Amendment. R.C.M. 405(i) and Mil. R. Evid. 1101(d)

were amended to make the provisions of Rule 412 applicable at

pretrial investigations. Congress intended to protect the victims of

nonconsensual sex crimes at preliminary hearings as well as at

trial when it passed Fed. R. Evid. 412. See Criminal Justice

Subcommittee of the House Judiciary \ Committee Report, 94th

Cong., 2d Session, July 1976.

1998 Amendment. The revisions to Rule 412 reflect changes

made to Federal Rule of Evidence 412 by section 40141 of the

Violent Crime Control and Law Enforcement Act of 1994, Pub L.

No. 103-322, 108 Stat. 1796, 1918-19 (1994). The purpose of the

amendments is to safeguard the alleged victim against the invasion of privacy and potential embarrassment that is associated

with public disclosure of intimate sexual details and the infusion

of sexual innuendo into the factfinding process.

The terminology “alleged victim” is used because there will

frequently be a factual dispute as to whether the sexual misconduct occurred. Rule 412 does not, however, apply unless the

person against whom the evidence is offered can reasonably be

characterized as a “victim of alleged sexual misconduct.”

The term “sexual predisposition” is added to Rule 412 to conform military practice to changes made to the Federal Rule. The

purpose of this change is to exclude all other evidence relating to

an alleged victim of sexual misconduct that is offered to prove a

sexual predisposition. It is designed to exclude evidence that does

not directly refer to sexual activities or thoughts but that the

accused believes may have a sexual connotation for the factfinder.

Admission of such evidence would contravene Rule 412’s objectives of shielding the alleged victim from potential embarrassment

and safeguarding the victim against stereotypical thinking. Consequently, unless an exception under (b)(1) is satisfied, evidence

s u c h a s t h a t r e l a t i n g t o t h e a l l e g e d v i c t i m ’ s m o d e o f d r e s s ,

speech, or lifestyle is inadmissible.

In drafting Rule 412, references to civil proceedings were deleted, as these are irrelevant to courts-martial practice. Otherwise,

changes in procedure made to the Federal Rule were incorporated,

but tailored to military practice. The Military Rule adopts a 5-day

notice period, instead of the 14-day period specified in the Federal Rule. Additionally, the military judge, for good cause shown,

may require a different time for such notice or permit notice

during trial. The 5-day period preserves the intent of the Federal

Rule that an alleged victim receive timely notice of any attempt

to offer evidence protected by Rule 412, however, given the

relatively short time period between referral and trial, the 5-day

period is deemed more compatible with courts-martial practice.

Similarly, a closed hearing was substituted for the in camera

hearing required by the Federal Rule. Given the nature of the in

camera procedure used in Military Rule of Evidence 505(i)(4),

and that an in camera hearing in the district courts more closely

resembles a closed hearing conducted pursuant to Article 39(a),

the latter was adopted as better suited to trial by courts-martial.

Any alleged victim is afforded a reasonable opportunity to attend

and be heard at the closed Article 39(a) hearing. The closed

hearing, combined with the new requirement to seal the motion,

related papers, and the record of the hearing, fully protects an

alleged victim against invasion of privacy and potential embarrassment.

2007 Amendment: This amendment is intended to aid practitioners in applying the balancing test of MRE 412. Specifically,

the amendment clarifies: (1) that under MRE 412, the evidence

must be relevant for one of the purposes highlighted in subdivision (b); (2) that in conducting the balancing test, the inquiry is

whether the probative value of the evidence outweighs the danger

of unfair prejudice to the victim’s privacy; and (3) that even if the

evidence is admissible under MRE 412, it may still be excluded

under MRE 403. The proposed changes highlight current practice.

See U.S. v. Banker, 60 M.J. 216, 223 (2004) (Citing “It would be

illogical if the judge were to evaluate evidence ‘offered by the

accused’ for unfair prejudice to the accused. Rather, in the context of this rape shield statute, the prejudice in question is, in part,

that to the privacy interests of the alleged victim. Sanchez, 44

M.J. at 178 (“[I]n determining admissibility there must be a

weighing of the probative value of the evidence against the interest of shielding the victim’s privacy.”).”

Moreover, the amendment clarifies that MRE 412 applies in all

c a s e s i n v o l v i n g a s e x u a l o f f e n s e w h e r e i n t h e p e r s o n a g a i n s t

whom the evidence is offered can reasonably be characterized as

a “victim of the alleged sexual offense.” Thus, the rule applies to:

“consensual sexual offense”, “nonconsensual sexual offenses”;

sexual offenses specifically proscribed under the U.C.M.J., e.g.,

rape, aggravated sexual assault, etc.; those federal sexual offenses

DoD is able to prosecute under clause 3 of Article 134, U.C.M.J.,

e.g., 18 U.S.C. § 2252A (possession of child pornography); and

state sexual offenses DoD is able to assimilate under the Federal

Assimilative Crimes Act (18 U.S.C. § 13).

Rule 413 Evidence of similar crimes in sexual

assault cases

1998 Amendment. This amendment is intended to provide for

more liberal admissibility of character evidence in criminal cases

of sexual assault where the accused has committed a prior act of

sexual assault.

Rule 413 is nearly identical to its Federal Rule counterpart. A

number of changes were made, however, to tailor the Rule to

military practice. First, all references to Federal Rule 415 were

deleted, as it applies only to civil proceedings. Second, military

justice terminology was substituted where appropriate (e.g. accused for defendant, court-martial for case). Third, the 5-day

A22-36

App. 22, M.R.E. 412 APPENDIX 22
notice requirement in Rule 413(b) replaced a 15-day notice requirement in the Federal Rule. A 5-day requirement is better

suited to military discovery practice. This 5-day notice requirement, however, is not intended to restrict a military judge’s authority to grant a continuance under R.C.M. 906(b)(1). Fourth,

Rule 413(d) has been modified to include violations of the Uniform Code of Military Justice. Also, the phrase “without consent”

was added to Rule 413(d)(1) to specifically exclude the introduction of evidence concerning adultery or consensual sodomy. Last,

all incorporation by way of reference was removed by adding

subsections (e), (f), and (g). The definitions in those subsections

were taken from title 18, United States Code §§ 2246(2), 2246(3),

and 513(c)(5), respectively.

Although the Rule states that the evidence “is admissible,” the

drafters intend that the courts apply Rule 403 balancing to such

evidence. Apparently, this also was the intent of Congress. The

legislative history reveals that “the general standards of the rules

of evidence will continue to apply, including the restrictions on

hearsay evidence and the court’s authority under evidence rule

403 to exclude evidence whose probative value is substantially

outweighed by its prejudicial effect.” 140 Cong. Rec. S12,990

(daily ed. Sept. 20, 1994) (Floor Statement of the Principal Senate

Sponsor, Senator Bob Dole, Concerning the Prior Crimes Evidence Rules for Sexual Assault and Child Molestation Cases).

When “weighing the probative value of such evidence, the

court may, as part of its rule 403 determination, consider proximity in time to the charged or predicate misconduct; similarity to

the charged or predicate misconduct; frequency of the other acts;

surrounding circumstances; relevant intervening events; and other

relevant similarities or differences.” (Report of the Judicial Conference of the United States on the Admission of Character Evidence in Certain Sexual Misconduct Cases).

2 0 0 2 A m e n d m e n t : F e d e r a l R u l e o f E v i d e n c e 4 1 5 w h i c h

created a similar character evidence rule for civil cases, became

applicable to the Military Rules of Evidence on January 6, 1996,

pursuant to Rule 1102. Federal Rule 415, however, is no longer

applicable to the Military Rules of Evidence, as stated in Section

1 o f E x e c u t i v e O r d e r , 2 0 0 2 A m e n d m e n t s t o t h e M a n u a l f o r

Court-Martial, United States, (2000) Rule 415 was deleted because it applies only to federal civil proceedings.

Rule 414 Evidence of similar crimes in child

molestation cases

1998 Amendment. This amendment is intended to provide for

more liberal admissibility of character evidence in criminal cases

of child molestation where the accused has committed a prior act

of sexual assault or child molestation.

Rule 414 is nearly identical to its Federal Rule counterpart. A

number of changes were made, however, to tailor the Rule to

military practice. First, all references to Federal Rule 415 were

deleted, as it applies only to civil proceedings. Second, military

justice terminology was substituted where appropriate (e.g. accused for defendant, court-martial for case). Third, the 5-day

notice requirement in Rule 414(b) replaced a 15-day notice requirement in the Federal Rule. A 5-day requirement is better

suited to military discovery practice. This 5-day notice requirement, however, is not intended to restrict a military judge’s authority to grant a continuance under R.C.M. 906(b)(1). Fourth,

Rule 414(d) has been modified to include violations of the Uniform Code of Military Justice. Last, all incorporation by way of

reference was removed by adding subsections (e), (f), (g), and (h).

The definitions in those subsections were taken from title 18,

United States Code §§ 2246(2), 2246(3), 2256(2), and 513(c)(5),

respectively.

Although the Rule states that the evidence “is admissible,” the

drafters intend that the courts apply Rule 403 balancing to such

evidence. Apparently, this was also the intent of Congress. The

legislative history reveals that “the general standards of the rules

of evidence will continue to apply, including the restrictions on

hearsay evidence and the court’s authority under evidence rule

403 to exclude evidence whose probative value is substantially

outweighed by its prejudicial effect.” 140 Cong. Rec. S12,990

(daily ed. Sept. 20, 1994) (Floor Statement of the Principal Senate

Sponsor, Senator Bob Dole, Concerning the Prior Crimes Evidence Rules for Sexual Assault and Child Molestation Cases).

When “weighing the probative value of such evidence, the

court may, as part of its rule 403 determination, consider proximity in time to the charged or predicate misconduct; similarity to

the charged or predicate misconduct; frequency of the other acts;

surrounding circumstances; relevant intervening events; and other

relevant similarities or differences.” (Report of the Judicial Conference of the United States on the Admission of Character Evidence in Certain Sexual Misconduct Cases).

2 0 0 2 A m e n d m e n t : F e d e r a l R u l e o f E v i d e n c e 4 1 5 w h i c h

created a similar character evidence rule for civil cases, became

applicable to the Military Rules of Evidence on January 6, 1996,

pursuant to Rule 1102. Federal Rule 415, however, is no longer

applicable to the Military Rules of Evidence, as stated in Section

1 o f E x e c u t i v e O r d e r , 2 0 0 2 A m e n d m e n t s t o t h e M a n u a l f o r

Court-Martial, United States, (2000) Rule 415 was deleted because it applies only to federal civil proceedings.

SECTION V

PRIVILEGES

Rule 501 General rule

Section V contains all of the privileges applicable to military

criminal 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. Privilege 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;

proceedings involving pretrial restraint; and in other proceedings

authorized under the Uniform Code of Military Justice of 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

expedite 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

A22-37

ANALYSIS OF THE MILITARY RULES OF EVIDENCE App. 22, M.R.E. 501
approach taken by Congress in the Federal Rules impracticable

within the armed forces. Unlike the Article III court system,

which is conducted almost entirely by attorneys functioning in

conjunction with permanent courts in fixed locations, the military

criminal legal system is characterized by its dependence upon

l a r g e n u m b e r s o f l a y m e n , t e m p o r a r y c o u r t s , a n d i n h e r e n t

g e o l i n e a r t a l a n d p e r s o n n e l i n s t a b i l i t y d u e t o t h e w o r l d w i d e

deployment of military personnel. Consequently, military law requires far more stability than civilian law. This is particularly true

because of the significant number of non-lawyers involved in the

military criminal legal system. Commanders, convening authorities, non-lawyer investigating officers, summary court-martial officers, or law enforcement personnel need specific guidance as to

what material is privileged and what is not.

Section V combines the flexible approach taken by Congress

with respect to privileges with that provided in the 1969 Manual.

Rules 502–509 set forth specific rules of privilege to provide the

certainty and stability necessary for military justice. Rule 501, on

the other hand, adopts those privileges recognized in common law

pursuant to Federal Rules of Evidence 501 with some limitations.

Specific privileges are generally taken from those proposed Federal Rules of Evidence which although not adopted by Congress

were non-controversial, or from the 1969 Manual.

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 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 court-martial is practicable and not contrary to or inconsistent with the Uniform Code of Military Justice, these rules, or

this Manual.” The latter language is taken from 1969 Manual

Para. 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 doctorpatient 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 1969 Manual

Para. 151 c

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

F e d e r a l R u l e o f E v i d e n c e 5 0 1 a s o r i g i n a l l y p r o p o s e d b y t h e

Supreme Court, and the four specific actions listed are also found

in the Uniform Rules of Evidence. The list is intentionally nonexclusive 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 a political

jurisdiction or other organizational entity may claim an applicable

privilege. The definition is intentionally non-exhaustive.

1999 Amendment: The privileges expressed in Rule 513 and

Rule 302 and the conforming Manual change in R.C.M. 706, are

not physician-patient privileges and are not affected by Rule

501(d).

Rule 502 Lawyer-client privilege

(a) General rule of privilege. Rule 502(a) continues the substance

of the attorney-client privilege found in Para. 151 b(2) of the

1969 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.

(b) Definitions—

(1) Client. Rule 502(b)(1) 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)(1) as Para.

151b(2) of the 1969 Manual lacked 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

E v i d e n c e 5 0 3 ( a ) ( 2 ) a n d e x p l i c i t l y i n c l u d e s a n y p e r s o n

“reasonably believed by the client to be authorized” to practice

law. The second clause is taken from 1969 Manual Para. 151 b(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 true during times of mobilization, that attorneys may

serve in the armed forces in a nonlegal capacity. In such a case,

the individual is not treated as an attorney 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 knows 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 of 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 Para. 151 b(2) of the 1969 Manual.

( 4 ) C o n f i d e n t i a l c o m m u n i c a t i o n . R u l e 5 0 2 ( b ) ( 4 ) d e f i n e s a

“confidential” communication in terms of the intention of the

party making the communication. The Rule is similar to the

substance of 1969 Manual Para. 151 b(2) which omitted certain

communications from privileged status. The new Rule is somewhat broader than the 1969 Manual’s provision in that it protects

information which is obtained by a third party through accident or

design when the person claiming the privilege was not aware that

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App. 22, M.R.E. 501 APPENDIX 22
a third party had access to the communication. Compare Rule

Para. 151 a of the 1969 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 1969 Manual for communications through agents.

Although Para. 151 c of the 1969 Manual precluded 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 Para. 151 b(2) of the 1969 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.

(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)(1) excludes statements contemplating the future

commission of crime or fraud and combines the substance of

1969 Manual Para. 151 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 future commission of a crime of

fraud,” and a lawyer may also disclose information 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.

S u b d i v i s i o n s ( d ) ( 2 ) t h r o u g h ( d ) ( 5 ) p r o v i d e e x c e p t i o n s w i t h

respect to claims through the same deceased client, breach of duty

by lawyer of client, documents attested by lawyers, and communications to an attorney in a matter of common interest among

joint clients. There were no parallel provisions in the 1969 Manual for these rules which are taken from proposed Federal Rule

503(d). The provisions are included in the event that the circumstances described therein arise in the military practice.

Rule 503 Communications to clergy

(a) General rule of privilege. Rule 503(a) states the basic rule of

privilege for communications to clergy and is taken from proposed Federal Rule of Evidence 506(b) and 1969 Manual Para.

151b(2). Like the 1969 Manual, the Rule protects communications to a clergyman’s assistant in specific recognition 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)(1) is taken from proposed Federal

Rule of Evidence 506(a)(1) but has been modified to include

specific reference to a chaplain. The Rule does not define “a

religious organization” and leaves resolution of that question to

precedent and the circumstances of the case. “Clergyman” includes individuals of either sex.

(2) Confidential. 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

c o m m u n i c a t i o n s t h r o u g h t h i r d p a r t i e s . T h e p r o p o s e d F e d e r a l

R u l e ’ s l i m i t a t i o n o f t h e p r i v i l e g e t o c o m m u n i c a t i o n s m a d e

“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 1969 Manual because of its application

to statements which although intended to be confidential are overheard by others. See Rule 502(b)(4) and 510(a) and the Analysis

thereto.

2007 Amendment: The previous subsection (2) of MRE 503(b)

was renumbered subsection (3) and the new subsection (2) was

inserted to define the term “clergyman’s assistant”.

(c) Who may claim the privilege. Rule 503(c) is derived from

proposed Federal Rule of Evidence 506(c) and includes the substance of 1969 Manual Para. 151 b(2) which provided 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 Rule 502(c); 504(b)(3); 505(c); 506(c).

Rule 504 Husband-wife privilege

( a ) S p o u s a l i n c a p a c i t y . R u l e 5 0 4 ( a ) i s t a k e n g e n e r a l l y f r o m

Trammel v. United States, 445 U.S. 40 (1980) and significantly

changes military law in this area. Under prior law, see 1969

Manual Para. 148 e, each spouse had a privilege to prevent the

use of the other spouse as an adverse witness. Under the new

rule, 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 marriage no longer needs the protection of the privilege. Rule 504(a) must be distinguished from Rule

5 0 4 ( b ) , C o n f i d e n t i a l c o m m u n i c a t i o n m a d e d u r i n g m a r r i a g e ,

which deals with communications rather than the ability to testify

generally at trial.

Although the witness’ spouse ordinarily has a privilege to refuse to testify against the accused spouse, under certain circumstances no privilege may exists, and the spouse may be compelled

to testify. See Rule 504(c).

( b ) C o n f i d e n t i a l c o m m u n i c a t i o n m a d e d u r i n g m a r r i a g e . R u l e

504(b) deals with communications made during a marriage and is

distinct from a spouse’s privilege to refuse to testify pursuant to

Rule 504(a). See 1969 Manual Para. 151 b(2).

(1) General rule of privilege. Rule 504(b)(1) sets forth the

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ANALYSIS OF THE MILITARY RULES OF EVIDENCE App. 22, M.R.E. 504(b)(1)
general rule of privilege for confidential spousal communications

and provides that a spouse may prevent disclosure of any confid e n t i a l s p o u s a l c o m m u n i c a t i o n m a d e d u r i n g m a r r i a g e e v e n

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 fashi o n s i m i l a r t o t h e d e f i n i t i o n u t i l i z e d i n R u l e s 5 0 2 ( b ) ( 4 ) a n d

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 third parties 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

t h e c o m m u n i c a t i o n . ” T h i s r e c o g n i z e s t h a t c i r c u m s t a n c e s m a y

arise, especially in military life, where spouses may be separated

by great distances or by operational activities, in which transmission of a communication via third parties may be reasonably

necessary.

(3) Who may claim the privilege. Rule 504(b)(3) is consistent

with 1969 Manual Para. 151 b(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.

(1) Spouse incapacity only. Rule 504(c)(1) provides exceptions

to the spousal incapacity rule of Rule 504(a). The rule is taken

from 1969 Manual Para. 148 e and declares that a spouse may not

refuse to testify 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 testify

against the other spouse. For other circumstances in which a

spouse may be compelled to testify against the other spouse, see

Rule 504(c)(2).

Confidential communications are not affected by the termination of a marriage.

(2) Spousal incapacity and confidential 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 antimarital 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 testify. This provision is

taken from proposed Federal Rule 505(c)(1) 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 testifying voluntarily. The Rule is similar to 1969 Manual Para. 148 e 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 Para. 148 e and 151 b(2) of

the 1969 Manual. The provision prevents application of the privileges 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.

2007 Amendment: (d) Definition. Rule 504(d) modifies the rule

a n d i s i n t e n d e d t o a f f o r d a d d i t i o n a l p r o t e c t i o n t o c h i l d r e n .

P r e v i o u s l y , t h e t e r m “ a c h i l d o f e i t h e r , ” r e f e r e n c e d i n R u l e

504(c)(2)(A), did not include a “de facto” child or a child who is

under the physical custody of one of the spouses but lacks a

formal legal parent-child relationship with at least one of the

spouses. See U.S. v. McCollum, 58 M.J. 323 (C.A.A.F. 2003).

Prior to this amendment, an accused could not invoke the spousal

p r i v i l e g e t o p r e v e n t d i s c l o s u r e o f c o m m u n i c a t i o n s r e g a r d i n g

crimes committed against a child with whom he or his spouse had

a formal, legal parent-child relationship; however, the accused

could invoke the privilege to prevent disclosure of communications where there was not a formal, legal parent-child relations h i p . T h i s d i s t i n c t i o n b e t w e e n l e g a l a n d “ d e f a c t o ” c h i l d r e n

resulted in unwarranted discrimination among child victims and

ran counter to the public policy of protecting children. Rule

504(d) recognizes the public policy of protecting children by

addressing disparate treatment among child victims entrusted to

another. The “marital communications privilege should not prevent ‘a properly outraged spouse with knowledge from testifying

against a perpetrator’ of child abuse within the home regardless of

whether the child is part of that family.” U.S. v. McCollum, 58

M.J. 323, 342, fn.6 (C.A.A.F. 2003) (citing U.S. v. Bahe, 128

F.3d 1440, 1446 (10th Cir. 1997)).

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,

418 U.S. 683 (1974). The rule attempts to balance the interests of

an accused who desires classified information for his or her def e n s e a n d t h e i n t e r e s t s o f t h e g o v e r n m e n t i n p r o t e c t i n g t h a t

information.

(a) General rule of privilege. Rule 505(a) is derived fromUnited

States v. Reynolds , supra and 1969 Manual Para. 151. Classified

information is only privileged when its “disclosure would be

detrimental to the national security.”

1993 Amendment: The second sentence was added to clarify

that this rule, like other rules of privilege, applies at all stages of

all actions and is not relaxed during the sentencing hearing under

M.R.E. 1101(c).

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App. 22, M.R.E. 504(b)(1) APPENDIX 22
(b) Definitions.

(1) Classified information. Rule 505(b)(1) 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 mater i a l w h i c h c o n s t i t u t e s r e s t r i c t e d d a t a p u r s u a n t t o 4 2 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

Para. 151 of the 1969 Manual and is consistent with similar

provisions in the other privilege rules. See 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 absence 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, expedited coordination with senior

headquarters is advised in any situation in which Rule 505 appears to be applicable.

(d) Action prior to referral of charges. Rule 505(d) is taken from

section 4(b)(1) 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

r e q u e s t e d i n f o r m a t i o n a s a p p e a r s r e a s o n a b l e u n d e r t h e

circumstances.

(e) Pretrial session. Rule 505(e) is derived from section 3 of

H.R. 4745.

(f) Action after referral of charges. 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 government 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 information is in fact

“relevant and material. ...”

(g) Disclosure of classified information to the accused. Paragraphs (1) and (2) of Rule 505(g) are derived from section 4 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. Paragraph (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.

1993 Amendment: Subsection (g)(1)(D) was amended to make

clear that the military judge’s authority to require security clearances extends to persons involved in the conduct of the trial as

well as pretrial preparation for it. The amendment requires persons needing security clearances to submit to investigations necessary to obtain the clearance.

(h) Notice of the accused’s intention to disclose classified information. Rule 505(h) 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 concerning the possible

disclosure of that information. Pursuant to Rule 505(h)(5), failure

to comply with subdivision (h) may result in a prohibition on the

use of the information involved.

1993 Amendment: Subsection (h)(3) was amended to require

specificity in detailing the items of classified information expected to be introduced. The amendment is based on United

States v. Collins , 720 F.2d. 1195 (11th Cir. 1983).

(i) In camera proceedings 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 proceeding. 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 military judge pursuant

to Rule 505(i)(3) in an effort to obtain an in camera proceeding

u n d e r t h i s R u l e . I f s u c h i n f o r m a t i o n h a s n o t b e e n d i s c l o s e d

previously, the government 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 subdivision (i)(4)(E).

1993 Amendment: Subsection (i)(3) was amended to clarify that

the classified material and the government’s affidavit are submitted only to the military judge. The word “only” was placed at the

end of the sentence to make it clear that it refers to “military

judge” rather than to “examination.” The military judge is to

examine the affidavit and the classified information without disclosing it before determining to hold an in camera proceeding as

defined in subsection(i)(1).

The second sentence of subsection (i)(4)(B) was added to provide a standard for admission of classified information in sentencing proceedings.

(j) Introduction of classified information. Rule 505(j) is derived

from section 8 of H.R. 4745 and United States v. Grunden, 2 M.J.

116 (C.M.A. 1977).

1993 Amendment: Subsection (j)(5) was amended to provide that

the military judge’s authority to exclude the public extends to the

presentation of any evidence that discloses classified information,

and not merely to the testimony of witnesses. See generally,

United States v. Hershey, 20 M.J. 433 (C.M.A. 1985), cert. denied, 474 U.S. 1062 (1986) (specifies factors to be considered in

the trial judge’s determination to close the proceedings).

(k) Security procedures to safeguard against compromise of classified information disclosed to courts-martial. Rule 505(k) is derived from section 9 of H.R. 4745.

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ANALYSIS OF THE MILITARY RULES OF EVIDENCE App. 22, M.R.E. 505(k)
Rule 506 Government information other than

classified information

(a) General rule of privilege. Rule 506(a) states the general rule

of privilege for nonclassified government information. 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

l i m i t a t i o n s a p p l i c a b l e t o n o n c l a s s i f i e d i n f o r m a t i o n . C o m p a r e

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 1969 Manual Para. 151 b(1) and 151 b(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. § 552 (1976). Disclosure of information will thus be broader under the Rule than

under the 1969 Manual. See United States v. Nixon, supra.

(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 be claimed only “by the head of the executive or military

department or government agency concerned.” See generally the

Analysis to Rule 505(c).

1990 Amendment: Subsection (c) was amended by substituting

the words “records and information” for “investigations”, which

is a term of art vis-a-vis Inspector General functions. Inspectors

General also conduct “inspections” and “inquiries,” and use of the

word “records and information” is intended to cover all documents and information generated by or related to the activities of

Inspectors General. “Records” includes reports of inspection, inquiry, and investigation conducted by an Inspector General and

extracts, summaries, exhibits, memoranda, notes, internal correspondence, handwritten working materials, untranscribed shorthand or stenotype notes of unrecorded testimony, tape recordings

and other supportive records such as automated data extracts. In

conjunction with this change, the language identifying the official

entitled to claim the privilege for Inspector General records was

changed to maintain the previous provision which allowed the

superiors of Inspector General officers, rather than the officers

themselves, to claim the privilege.

(d) Action prior to referral of charges. Rule 506(d) specifies

action to be taken prior to referral 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

u n d e r p a r a g r a p h ( 1 ) – ( 4 ) o f s u b d i v i s i o n ( d ) c a n n o t b e m a d e

“without causing identifiable damage to the public interest.” (Emphasis added).

(e) Action after referral of charges. See generally Rule 505(f)

and its Analysis. Note that unlike Rule 505(f), however, Rule

506(e) does not require a 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.”

1995 Amendment: It is the intent of the Committee that if

classified information arises during a proceeding under Rule 506,

the procedures of Rule 505 will be used.

The new subsection (e) was formerly subsection (f). The matters in the former subsection (f) were adopted without change.

The former subsection (e) was amended and redesignated as subsection (f) (see below).

(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 procedures of Rule 505

will be used.

1995 Amendment: See generally Rule 505(f) and its accompanying Analysis. Note that unlike Rule 505(f), however, Rule

506(f) does not require a finding that failure to disclose the

information in question “would materially prejudice a substantial

right of the accused.” Dismissal is not required when the relevant

information is not disclosed in a “reasonable period of time.”

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

amended to cover action after a defense motion for discovery,

rather than action after referral of charges. The qualification that

the government claim of privilege pertains to information “that

apparently contains evidence that is relevant and necessary to an

element of the offense or a legally cognizable defense and is

otherwise admissible in evidence in a court-martial proceeding”

was deleted as unnecessary. Action by the convening authority is

required if, after referral, the defense moves for disclosure and the

Government claims the information is privileged from disclosure.

(g) Disclosure of 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 506(h) 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.

1995 Amendment: Subsection (h) was amended to provide that

government information may not be disclosed by the accused

unless authorized by the military judge.

(i) In camera proceedings. Rule 506(i) is taken generally from

Rule 505(i), but the standard involved reflects 1969 Manual Para.

151 and the Supreme Court’s decision in United States v. Nixon,

supra. In line with Nixon, the burden is on the party claiming the

privilege to demonstrate why the information involved should not

be disclosed. References to classified material have been deleted

as being inapplicable.

1995 Amendment: Subsection (i) was amended to clarify the

procedure for in camera proceedings. The definition in subsection

(i)(1) was amended to conform to the definition of in camera

proceedings in M.R.E. 505(i)(1). Subsections (i)(2) and (i)(3)

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

was amended to include admissible evidence relevant to punishment of the accused, consistent with Brady v. Maryland, 373 U.S.

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App. 22, M.R.E. 506 APPENDIX 22
83, 87 (1963). Subsection (i)(4)(C) was redesignated as (i)(4)(D),

but was otherwise unchanged. The amended procedures provide

for full disclosure of the government information in question to

the accused for purposes of litigating the admissibility of the

i n f o r m a t i o n i n t h e p r o t e c t e d e n v i r o n m e n t o f t h e i n c a m e r a

proceeding; i.e., the Article 39(a) session is closed to the public

and neither side may disclose the information outside the in

camera proceeding until the military judge admits the information

as evidence in the trial. Under subsection (i)(4)(E), the military

judge may authorize alternatives to disclosure, consistent with a

military judge’s authority concerning classified information under

M.R.E. 505. Subsection (i)(4)(F) allows the Government to determine whether the information ultimately will be disclosed to the

accused. However, the Government’s continued objection to disclosure may be at the price of letting the accused go free, in that

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

judge under M.R.E. 505(i)(4)(E). See United States v. Reynolds,

345 U.S. 1, 12 (1953).

(k) Introduction of government information subject to a claim of

privilege. Rule 506(k) is derived from Rule 505(j) with appropriate modifications being made to reflect the nonclassified nature of

the information involved.

1995 Amendment: Subsection (j) was added to recognize the

G o v e r n m e n t ’ s r i g h t t o a p p e a l c e r t a i n r u l i n g s a n d o r d e r s . S e e

R.C.M. 908. The former subsection (j) was redesignated as subsection (k). The subsection speaks only to government appeals;

the defense still may seek extraordinary relief through interlocutory appeal of the military judge’s orders and rulings. See generally, 28 U.S.C. § 1651(a); Waller v. Swift, 30 M.J. 139 (C.M.A.

1990); Dettinger v. United States, 7 M.J. 216 (C.M.A. 1979).

(l) Procedures to safeguard against compromise of government

information disclosed to courts-martial. Rule 506(k) is derived

from Rule 505(k). Such procedures should reflect the fact that

material privileged under Rule 506 is not classified.

Rule 507 Identity of informant

(a) Rule of privilege. Rule 507(a) sets forth the basic rule of

privilege for informants and contains the substance of 1969 Manual Para. 151 b(1). The new Rule, however, provides greater

detail as to the application of the privilege than did the 1969

manual.

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 “informant” 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

“ c o n f i d e n t i a l i n f o r m a n t s ” w h o m a y b e c o n s i s t e n t s o u r c e s o f

information.

(b) Who may 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 substances to Para. 151

b(1) of the 1969 Manual which permitted “appropriate governmental authorities” to claim the privilege.

The Rule does not specify 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 specify 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)(1)

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. This is in accord with the

intent of the privilege which is to protect informants from reprisals. The Rule is taken from Para. 151 b(1) of the 1969 Manual.

( 2 ) T e s t i m o n y o n t h e i s s u e o f g u i l t o r i n n o c e n c e . R u l e

507(c)(2) is taken from 1969 Manual Para. 151 b (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

specify what circumstances would require calling the informant

and leaves resolution of the issue to each individual case.

(3) Legality 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 determining the legality of obtaining evidence

under Rule 311; see, e.g., Franks v. Delaware, 438 U.S. 154, 170

(1978); McCray v. Illinois, 386 U.S. 300 (1976) (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

specify 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

is required so that the convening authority may determine what

action, if any, should be taken. Such actions could include disclosure of the informant’s identity, 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. § 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.

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ANALYSIS OF THE MILITARY RULES OF EVIDENCE App. 22, M.R.E. 508
Rule 509 Deliberation of courts and juries

Rule 509 is taken from 1969 Manual Para. 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

511 and is similar in substance to 1969 Manual Para. 151 a which

notes that privileges may be waived. Rule 510(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(b)(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 511(b). Disclosure under

certain 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 Para. 151 b(1) of the 1969 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

a c c u s e d t e s t i f i e s v o l u n t a r i l y t o t h e p r i v i l e g e d m a t t e r o f

communication.

Rule 511 Privileged matter disclosed under

compulsion or without opportunity to claim

privilege

Rule 511(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, Rule 502(b)(4), the Rule is

substantially different from prior military law inasmuch as prior

law permitted utilization of privileged information which had

been gained by a third party through accident or design. See Para.

151 b (1), MCM, 1969 (Rev.). Such disclosures are generally

safeguarded against via the definition “confidential” used in the

new Rules. Generally, the Rules are more protective of privileged

information than was the 1969 Manual.

Rule 511(b) is new and deals with electronic transmission of

information. It recognizes that the nature of the armed forces

today often requires such information transmission. Like 1969

Manual Para. 151 b(1), 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

o t h e r w i s e p r i v i l e g e d i n f o r m a t i o n t r a n s m i t t e d b y t e l e p h o n e

remains privileged. This is in recognition of the role played by

the telephone in modern life and particularly in the armed forces

where geolineartal 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 are known to be monitored for whatever purpose.

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 the Rule as to whether the communication in question

was in fact necessary. 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

1969 Manual; United States Department of the Army, Pamphlet

No. 27–2, Analysis of Contents, Manual for Courts-Martial 1969,

Revised Edition, 27–33, 27–38 (1970).

Rule 512(a)(1) 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 ) C l a i m i n g p r i v i l e g e w i t h o u t k n o w l e d g e o f m e m b e r s . R u l e

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.” Cf. Rule 105. The military judge does not

have a duty to instruct sua sponte.

Rule 513 Psychotherapist-patient privilege

1999 Amendment: Military Rule of Evidence 513 establishes a

psychotherapist-patient privilege for investigations or proceedings

authorized under the Uniform Code of Military Justice. Rule 513

clarifies military law in light of the Supreme Court decision in

Jaffee v. Redmond, 518 U.S. 1, 116 S. Ct. 1923, 135 L.Ed.2d 337

(1996). Jaffee interpreted Federal Rule of Evidence 501 to create

a federal psychotherapist-patient privilege in civil proceedings

and refers federal courts to state laws to determine the extent of

privileges. In deciding to adopt this privilege for courts-martial,

the committee balanced the policy of following federal law and

rules, when practicable and not inconsistent with the UCMJ or

MCM, with the needs of commanders for knowledge of certain

types of information affecting the military. The exceptions to the

rule have been developed to address the specialized society of the

military and separate concerns that must be met to ensure military

readiness and national security. See Parker v. Levy, 417 U.S. 733,

743 (1974); U.S. ex rel. Toth v. Quarles, 350 U.S. 11, 17 (1955);

Dept. of the Navy v. Egan, 484 U.S. 518, 530 (1988). There is no

intent to apply Rule 513 in any proceeding other than those

A22-44

App. 22, M.R.E. 509 APPENDIX 22
authorized under the UCMJ. Rule 513 was based in part on

proposed Fed. R. Evid. (not adopted) 504 and state rules of

evidence. Rule 513 is not a physician-patient privilege. It is a

separate rule based on the social benefit of confidential counseling recognized by Jaffee, and similar to the clergy-penitent privilege. In keeping with American military law since its inception,

there is still no physician-patient privilege for members of the

Armed Forces. See the analyses for Rule 302 and Rule 501.

(a) General rule of privilege. The words “under the UCMJ” in

this rule mean Rule 513 applies only to UCMJ proceedings, and

do not limit the availability of such information internally to the

services, for appropriate purposes.

(d) Exceptions These exceptions are intended to emphasize that

military commanders are to have access to all information that is

necessary for the safety and security of military personnel, operations, installations, and equipment. Therefore, psychotherapists

are to provide such information despite a claim of privilege.

SECTION VI

WITNESSES

Rule 601 General rule of competency

Rule 601 is taken without change from 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 Para. 148 of the

1969 Manual which required, among other factors, that an individual know the difference between truth and falsehood and understand the moral importance of telling the truth in order to

testify. 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 Military Judge 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

j u d g e o f a n y d i s c r e t i o n w h a t s o e v e r t o e x c l u d e t e s t i m o n y o n

grounds of competency unless the testimony is incompetent under

those specific rules already cited supra, see, United States v.

Fowler, 605 F.2d 181 (5th Cir. 1979), a conclusion bolstered by

the Federal Rules of Evidence Advisory Committee’s Note. S.

Saltzburg & 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

a l s o U n i t e d S t a t e s v . C a l a h a n , 4 4 2 F . S u p p . 1 2 1 3 ( D . M i n n .

1978).

Rule 602 Lack of personal knowledge

Rule 602 is taken without significant change from the Federal

Rule and is similar in content to Para. 138 d, MCM, 1969 (Rev.).

Although the 1969 Manual expressly allowed an individual to

testify to his or her own age or date of birth, the Rule is silent of

the issue.

Notwithstanding that silence, however, it appears that it is

within the meaning of the Rule to allow such testimony. Rule

8 0 4 ( b ) ( 4 ) ( H e a r s a y E x c e p t i o n s ; D e c l a r a n t U n a v a i l a b l e — S t a t e -

ment of Personal or Family History) expressly permits a hearsay

statement “concerning the declarant’s own birth ... or other similar fact of personal 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, incourt 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.

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 unsworn

statement.

Rule 604 Interpreters

Rule 604 is taken from the Federal Rule without change and is

consistent with Para. 141, MCM, 1969 (Rev.). The oath found in

Paras. 114 e, MCM, 1969 (Rev.) (now R.C.M. 807(b)(2) (Discussion), MCM, 1984), satisfies the oath requirements of Rule 604.

Rule 605 Competency of military judge as

witness

R u l e 6 0 5 ( a ) r e s t a t e s t h e F e d e r a l R u l e w i t h o u t s i g n i f i c a n t

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

military judge 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

Article 26(d), does not deal with the question of eligibility to sit

as a military judge, 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

military judiciary in which military judges often control their own

dockets without clerical assistance. In view of the military’s string e n t s p e e d y t r i a l r o l e s , s e e , U n i t e d S t a t e s v . B u r t o n , 2 1

U.S.C.M.A 112, 44 C.M.R. 166 (1971), it was necessary to preclude expressly any interpretation of Rule 605 that would prohibit

the military judge 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 prior military

law only to the extent that a member of the court could testify 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

A22-45

ANALYSIS OF THE MILITARY RULES OF EVIDENCE App. 22, M.R.E. 606(a)
witnesses. See , e.g., Paras. 62 f and 63, MCM, 1969 (Rev.). The

Rule does not affect voir dire.

(b) Inquiry into validity of findings or sentence. Rule 606(b) 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 Para. 74 d(1), MCM, 1969 (Rev.). 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 ambiguous or inconsistent verdict. Rule 606(b) is in

general accord with prior military law.

Rule 607 Who may impeach

Rule 607 is taken without significant change from the Federal

Rule. It supersedes Para. 153 b(1), MCM, 1969 (Rev.), which

restricted 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 apparent 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 restrict the methods of impeachment to crossexamination. 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. Saltzburg & 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 Evidence of character, conduct, and

bias 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 Para. 153 b of the 1969 Manual except that the

Rule, unlike Para. 153 b, applies to all witnesses and does not

distinguish between the accused and other witnesses.

(b) Specific instances of conduct. Rule 608(b) is taken from the

Federal Rule without significant change. The Rule is somewhat

similar in effect to the military practice found in Para. 153 b(2) of

the 1969 Manual in that it allows use of specific instances of

conduct of a witness to be brought out on cross-examination but

prohibits use of extrinsic evidence. Unlike Para. 153 b(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 inquiry 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

“cross-examination” was an accidental substitute for “impeachment.” See S. Saltzburg & K. Redden, FEDERAL RULES OF

EVIDENCE MANUAL 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 prohibit 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 witness, the

witness 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 into specific acts, counsel

should not, as a matter of 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

F U N C T I O N A N D T H E D E F E N S E F U N C T I O N , P r o s e c u t i o n

Function 5.7(d); Defense Functions 7.6(d) (Approved draft 1971).

(c) Evidence of bias. Rule 608(c) is taken from 1969 Manual

Para. 153d and is not found within the Federal Rule. Impeachment by bias was apparently accidentally omitted from the Federal Rule, see, S. Saltzburg & K. Redden, FEDERAL RULES OF

EVIDENCE MANUAL 313–14(2d ed. 1977), but is acceptable

under the Federal Rules; see, e.g., United States v. Leja, 568 F.2d

493 (6th Cir. 1977); United States v. Alvarez-Lopez, 559 F.2d

1155 (9th Cir. 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 codify them does not mean that they are no

l o n g e r p e r m i s s i b l e . S e e , e . g . , U n i t e d s t a t e s v . A l v a r e z - L o p e z ,

supra 155; Rule 412. Thus, impeachment by contradiction, see

also Rule 304(a)(2); 311(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 III 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

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App. 22, M.R.E. 606(a) APPENDIX 22
with in Rule 412, and evidence of fresh complaint is admissible

to the extent permitted by Rules 801 and 803.

Rule 609 Impeachment by evidence 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 rule

as found in Para. 153 b(2)(b)(1) of the 1969 Manual. In determining whether a military offense may be used for purposes of

impeachment under Rule 609(a)(1), recourse must be made to the

maximum punishment imposable if the offense had been tried by

general court-martial.

Rule 609(a) differs slightly from the prior military rule. Under

Rule 609(a)(1), 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

Para. 153 b (2)(b)(3) of the 1969 Manual which allowed use of a

non-federal conviction analogous to a 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” were admissible for impeachment under Para. 153

b(2)(b) of the 1969 Manual. The list of potential convictions

expressed in Para. 153 b(2)(b) was illustrative only and nonexhaustive. Unlike the 1969 Manual rule, Rule 609(a) is exhaustive.

Although a conviction technically fits within Rule 609(a)(1), its

admissibility remains subject to finding by the military judge that

its probative value outweighs its prejudicial effect to the accused.

R u l e 6 0 9 ( a ) ( 2 ) m a k e s a d m i s s i b l e c o n v i c t i o n s i n v o l v i n g

“dishonesty or false statement, regardless of punishment.” This is

similar to intent in Para. 153b(2)(b)(4) of the 1969 Manual which

makes admissible “a conviction of any offense involving fraud,

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” being used

in the sense of untruthfulness. See generally S. Saltzburg & K.

Redden, FEDERAL RULES OF EVIDENCE MANUAL 336–45

(2d ed. 1977). Thus, a conviction for fraud, perjury, 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 military judge. 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.

1993 Amendment. The amendment to Mil. R. Evid. 609(a) is

based on the 1990 amendment to Fed. R. Evid. 609(a). The

previous version of Mil. R. Evid. 609(a) was based on the now

superseded version of the Federal Rule. This amendment removes

from the rule the limitation that the conviction may only be

elicited during cross-examination. Additionally, the amendment

clarifies the relationship between Rules 403 and 609. The amendment clarifies that the special balancing test found in Mil. R.

Evid. 609(a)(1) applies to the accused’s convictions. The convictions of all other witnesses are only subject to the Mil. R. Evid.

403 balancing test. See Green v. Bock Laundry Machine Co., 490

U.S. 504 (1989).

(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 of pardon, annulment, or certificate of rehabilitation.

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 rehabilitation. In the absence of a

certificate of rehabilitation, the extent to which the various Armed

Forces post-conviction programs, such as the Air Force’s 3320th

Correction and Rehabilitation Squadron and the Army’s Retraining Brigade, come within Rule 609(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 Para. 153b(2)(b) of the 1969

Manual which allowed 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 of appeal. The first portion of Rule 609(e) is taken

from the Federal Rule and is substantially different from Para.

153 b(2)(b) of the 1969 Manual which prohibited use of convictions for impeachment purposes while they were 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 courtmartial 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.

February 1986 Amendment: The reference in subsection (e) to

“Article 65(c)” was changed to “Article 64” to correct an error in

MCM, 1984.

(f) Definition. 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 of 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 had no equivalent in the 1969 Manual for CourtsMartial. The Rule makes religious beliefs or opinions inadmissiA22-47

ANALYSIS OF THE MILITARY RULES OF EVIDENCE App. 22, M.R.E. 610
ble 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 constitutional justification for overcoming

the Rule’s exclusion. Cf. Davis v. Alaska, 415 U.S. 308 (1974).

Rule 611 Mode and order of interrogation and

presentation

(a) Control by the military judge. Rule 611(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 1969 Manual

Para. 149 a and that part of Para. 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

prior 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 this 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 examinat i o n , c r o s s - e x a m i n a t i o n , r e d i r e c t e x a m i n a t i o n , r e c r o s s - e x a m i n a -

tion, and examination by the court, Para. 54 a, MCM, 1969

(Rev.).

1995 Amendment: When a child witness is unable to testify due

to intimidation by the proceedings, fear of the accused, emotional

trauma, or mental or other infirmity, alternative to live in-court

testimony may be appropriate. See Maryland v. Craig, 497 U.S.

836 (1990); United States v. Romey, 32 M.J. 180 (C.M.A.), cert.

denied, 502 U.S. 924 (1991); United States v. Batten, 31 M.J. 205

(C.M.A. 1990); United States v. Thompson, 31 M.J. 168 (C.M.A.

1990), cert. denied, 498 U.S.C. § 1084 (1991). This is an evolving area of law with guidance available in case law. The drafters,

after specifically considering adoption of 18 U.S.C. § 3509, determined it more appropriate to allow the case law evolutionary

process to continue.

(b) Scope of cross-examination. Rule 611(b) is taken from the

Federal Rule without change and replaces Para. 149 b(1) of the

1969 Manual which was 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 (Deg r a d i n g Q u e s t i o n s ) ; a n d R u l e 6 0 8 ( b ) ( E v i d e n c e o f C h a r a c t e r ,

Conduct, and Bias of Witness).

(c) Leading questions. Rule 611(c) is taken from the Federal

Rule without significant change and is similar to Para. 149 c of

the 1969 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 identified 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.

1999 Amendment: Rule 611(d) is new. This amendment to

Rule 611 gives substantive guidance to military judges regarding

the use of alternative examination methods for child victims and

witnesses in light of the U.S. Supreme Court’s decision in Maryland v. Craig , 497 U.S. 836 (1990) and the change in Federal

law in 18 U.S.C. section 3509. Although Maryland v. Craig dealt

with child witnesses who were themselves the victims of abuse, it

should be noted that 18 U.S.C. section 3509, as construed by

Federal courts, has been applied to allow non-victim child witnesses to testify remotely. See, e.g., United States v. Moses, 137

F.3d 894 (6th Cir. 1998) (applying section 3509 to a non-victim

child witness, but reversing a child sexual assault conviction on

other grounds) and United States v. Quintero, 21 F.3d 885 (9th

Cir. 1994) (affirming conviction based on remote testimony of

non-victim child witness, but remanding for resentencing). This

amendment recognizes that child witnesses may be particularly

traumatized, even if they are not themselves the direct victims, in

cases involving the abuse of other children or domestic violence.

This amendment also gives the accused an election to absent

himself from the courtroom to prevent remote testimony. Such a

provision gives the accused a greater role in determining how this

issue will be resolved.

Rule 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. § 3500, which would have shielded material from

disclosure to the defense under 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-martial without

a military judge under this rule is an interlocutory ruling not

subject to objection by the members, Para. 57 a, MCM, 1969

(Rev.).

Rule 612 codifies the doctrine of past recollection refreshed

and replaces that portion of Para. 146 a of the 1969 Manual

which dealt with the issue. Although the 1969 Manual rule was

similar, in that it authorized inspection by the opposing party of a

memorandum used to refresh recollection and permitted 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 testifying.

Rule 612 does not affect in any way information required to be

disclosed under any other rule or portion of the Manual. See, Rule

304(c)(1).

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App. 22, M.R.E. 610 APPENDIX 22
Rule 613 Prior statements of witnesses

(a) Examining witness concerning prior statement. Rule 613(a) is

taken from the Federal Rule without change. It alters military

practice inasmuch as it eliminates the foundation requirements

found in Para. 153 b(2)(c) of the 1969 Manual. While it will no

longer be a condition precedent to admissibility to acquaint a

witness with the prior statement and to give the witness an opportunity to either change his or her testimony or to reaffirm it, such

a procedure 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 of prior 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 specify any particular 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 ) C a l l i n g b y t h e c o u r t - m a r t i a l . T h e f i r s t s e n t e n c e o f R u l e

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 subdivision is new and

reflects the members’ 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 first 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 Para. 54 a and Para. 149a of the present

manual by requiring that questions of members be submitted to

the military judge 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 military judge in this matter. It is the Committee’s intent

that 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 prior 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 prior practice, e.g., Para. 53 f, MCM, 1969 (Rev.).

The second portion, consisting of subdivisions (2) and (3), represents a substantial departure from prior practice and will authorize

the prosecution to designate another individual to sit with the trial

counsel. Rule 615 thus modifies Para. 53 f. 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 trial would be violated.

Developing Article III practice recognizes the defense right, upon

request, to have a prosecution 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.

2002 Amendment: These changes are intended to extend to

victims at courts-martial the same rights granted to victims by the

Victims’ Rights and Restitution Act of 1990, 42 U.S.C. Sec.

10606(b)(4), giving crime victims ’[t]he right to be present at all

public court proceedings related to the offense, unless the court

determines that testimony by the victim would be materially affected if the victim heard other testimony at trial,’ and the Victim

Rights Clarification Act of 1997, 18 U.S.C. Sec. 3510, which is

restated in subsection (5). For the purposes of this rule, the term

’victim’ includes all persons defined as victims in 42 U.S.C. Sec.

10607(e)(2), which means ’a person that has suffered direct physical, emotional, or pecuniary harm as a result of the commission

of a crime, including’—(A) in the case of a victim that is an

institutional entity, an authorized representative of the entity; and

(B) in the case of a victim who is under 18 years of age, incompetent, incapacitated, or deceased, one of the following (in order

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

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

another person designated by the court. The victim’s right to

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

those regarding classified information, witness deportment, and

conduct in the courtroom. Subsection (4) is intended to capture

only those statutes applicable to courts-martial.

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 Para. 138 e, MCM, 1969 (Rev.), which

dealt with opinion evidence by lay witnesses. Unlike the prior

Manual rule which prohibited 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

A22-49

ANALYSIS OF THE MILITARY RULES OF EVIDENCE App. 22, M.R.E. 701
child, and whether or not a person was drunk” are all within the

potential scope of Rule 701.

2004 Amendment: Rule 701 was modified based on the amendment to Fed.R.Evid. 701, effective 1 December 2000, and is taken

from the Federal Rule without change. It prevents parties from

proffering an expert as a lay witness in an attempt to evade the

gatekeeper and reliability requirements of Rule 702 by providing

that testimony cannot qualify under Rule 701 if it is based on

“scientific, technical, or other special knowledge within the scope

of Rule 702.”

Rule 702 Testimony by experts

Rule 702 is taken from the Federal Rule verbatim, and replaces

that portion of Para. 138 e, MCM, 1969 (Rev.), dealing with

expert testimony. Although the Rule is similar to the prior Manual rule, it may be broader and may supersede Frye v. United

States, 293 F.1013 (C.D. Cir. 1923), an issue now being extensively litigated in the Article III courts. 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 in issue.”

Whether any particular piece of evidence comes within the test is

normally a matter within the military judge’s discretion.

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.

Para. 142 e of the 1969 Manual, “Polygraph tests and druginduced or hypnosis-induced interviews,” has been deleted as a

result of the adoption of Rule 702. Para. 142 e states, “The

conclusions based upon or lineartally 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 III courts 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 Cir.

1977); United States v. Cardarella, 570 F.2d 264 (8th Cir. 1978),

although the Seventh Circuit, see e.g., United States v. Bursten,

560 F.2d 779 (7th Cir. 1977) (holding that polygraph admissibility is within the sound discretion of the trial judge) and perhaps

the Ninth Circuit, United States v. Benveniste, 564 F.2d 335, 339

n.3 (9th Cir. 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 F.2d

1067 (9th Cir. 1975).

2004 Amendment: Rule 702 was modified based on the amendment to Fed. R. Evid. 702, effective 1 December 2000, and is

taken from the Federal Rule without change. It provides guidance

for courts and parties as to the factors to consider in determining

whether an expert’s testimony is reliable in light of Daubert v.

Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and

Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) (holding that

gatekeeper function applies to all expert testimony, not just testimony based on science).

Rule 703 Bases of opinion testimony of experts

Rule 703 is taken from the Federal Rule without change. The

Rule is similar in scope to Para. 138 e of the 1969 Manual, but is

potentially broader as it allows reliance upon “facts or data”

whereas the 1969 Manual’s limitation was phrased in terms of the

personal observation, personal examination or study, or examination or study “of reports of others of a kind customarily conside r e d i n t h e p r a c t i c e o f t h e e x p e r t ’ s s p e c i a l t y . ” H y p o t h e t i c a l

questions of the expert are not required by the Rule.

A limiting instruction may be appropriate 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 (D.C. Cir.

1923), is unclear and is now being litigated within the Article III

courts.

2004 Amendment: Rule 703 was modified based on the amendment to Fed. R. Evid. 703, effective 1 December 2000, and is

virtually identical to its Federal Rule counterpart. It limits the

disclosure to the members of inadmissible information that is

used as the basis of an expert’s opinion. Compare Mil. R. Evid.

705.

Rule 704 Opinion on ultimate issue

Rule 704 is taken from the Federal Rule verbatim. The 1969

Manual for Courts-Martial was silent on the issue. The Rule does

not permit the witness to testify as to his or her opinion as to the

guilt or innocence of the 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.

February 1986 Amendment: Fed. R. Evid. 704(b), by operation of Mil. R. Evid. 1102, became effective in the military as

Mil. R. Evid. 704(b) on 10 April 1985. The Joint-Service Committee on Military Justice considers Fed. R. Evid. 704(b) an

integral part of the Insanity Defense Reform Act, ch. IV, Pub.L.

No. 98–473, 98 Stat. 2067–68 (1984), (hereafter the Act). Because proposed legislation to implement these provisions of the

Act relating to insanity as an affirmative defense had not yet been

enacted in the UCMJ by the date of this Executive Order, the

Committee recommended that the President rescind the application of Fed. R. Evid. 704(b) to the military. Even though in effect

since 10 April 1985, this change was never published in the

Manual.

1986 Amendment: While writing the Manual provisions to implement the enactment of Article 50a, UCMJ (“Military Justice

Amendments of 1986,” National Defense Authorization Act for

fiscal year 1987, Pub.L. No. 99–661, 100 Stat. 3905 (1986)), the

drafters rejected adoption of Fed.R.Evid. 704(b). The statutory

qualifications for military court members reduce the risk that

military court members will be unduly influenced by the presentation of ultimate opinion testimony from psychiatric experts.

A22-50

App. 22, M.R.E. 701 APPENDIX 22
Rule 705 Disclosure of facts or data underlying

expert opinion

Rule 705 is taken from the Federal Rule without change and is

similar in result to the requirement in Para. 138 e of the 1969

Manual that the “expert may be required, on direct or crossexamination, to specify the data upon which his opinion was

based and to relate the details of his observation, examination, or

study.” Unlike the 1969 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 was implemented in Paras. 115 and 116,

MCM, 1969 (Rev.). 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

light of Para. 116, MCM, 1969 (Rev.).

( b ) D i s c l o s u r e o f e m p l o y m e n t . R u l e 7 0 6 ( b ) i s t a k e n f r o m

Fed.R.Evid. 706(c) without change. The 1969 Manual was silent

o n t h e i s s u e , b u t t h e s u b d i v i s i o n s h o u l d n o t c h a n g e m i l i t a r y

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 Para. 116.

Rule 707 Polygraph Examinations.

Rule 707 is new and is similar to Cal. Evid. Code 351.1 (West

1988 Supp.). The Rule prohibits the use of polygraph evidence in

courts-martial and is based on several policy grounds. There is a

real danger that court members will be misled by polygraph

evidence that “is likely to be shrouded with an aura of near

infallibility”. United States v. Alexander, 526 F.2d 161, 168-169

(8th Cir. 1975). To the extent that the members accept polygraph

evidence as unimpeachable or conclusive, despite cautionary instructions from the military judge, the members “traditional responsibility to collectively ascertain the facts and adjudge guilt or

innocence is preempted”. Id. There is also a danger of confusion

of the issues, especially when conflicting polygraph evidence

diverts the members’ attention from a determination of guilt or

innocence to a judgment of the validity and limitations of polygraphs. This could result in the court-martial degenerating into a

trial of the polygraph machine. State v. Grier, 300 S.E.2d 351

(N.C. 1983). Polygraph evidence also can result in a substantial

waste of time when the collateral issues regarding the reliability

of the particular test and qualifications of the specific polygraph

examiner must be litigated in every case. Polygraph evidence

places a burden on the administration of justice that outweighs the

probative value of the evidence. The reliability of polygraph evidence has not been sufficiently established and its use at trial

impinges upon the integrity of the judicial system. See People v.

Kegler, 242 Cal. Rptr. 897 (Cal. Ct. App. 1987). Thus, this

amendment adopts a bright-line rule that polygraph evidence is

not admissible by any party to a court-martial even if stipulated to

by the parties. This amendment is not intended to accept or reject

United States v. Gipson, 24 M.J. 343 (C.M.A. 1987), concerning

the standard for admissibility of other scientific evidence under

Mil. R. Evid. 702 or the continued vitality of Frye v. United

States, 293 F. 1013 (D.C. Cir. 1923). Finally, subsection (b) of

the rule ensures that any statements which are otherwise admissible are not rendered inadmissible solely because the statements

were made during a polygraph examination.

SECTION VIII

HEARSAY

Rule 801 Definitions

(a) Statement. Rule 801(a) is taken from the Federal Rule without

change and is similar to Para. 139 a of the 1969 Manual.

(b) Declarant. Rule 801(b) is taken from the Federal Rule verbatim and is the same definition used in prior military practice.

(c) Hearsay. Rule 801(c) is taken from the Federal Rule verbatim. It is similar to the 1969 Manual definition, found in Para.

139 a, which stated: “A statement which is offered in evidence to

prove 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

are basically 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 1969 Manual definition.

(1) Prior statement by witness. Rule 801(d)(1) is taken from

the Federal Rule without change and removes certain prior statements by the witness from the definition of hearsay. Under the

1969 Manual rule, an out-of-court statement not within an exception to the hearsay rule and unadopted by the testifying witness, is

inadmissible hearsay notwithstanding the fact that the declarant is

now on the stand and able to be cross-examined, Para. 139a;

United States v. Burge, 1 M.J. 408 (C.M.A. 1976) (Cook, J.,

c o n c u r r i n g ) . T h e j u s t i f i c a t i o n f o r t h e 1 9 6 9 M a n u a l r u l e i s

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 in-court testimony. The Federal Rules of Evidence Advisory

Committee rejected this view in part believing both that later

cross-examination is sufficient to ensure reliability and that earlier

statements are usually preferable to later ones because of the

possibility of memory loss. See generally, 4 J. Weinstein & M.

Berger, WEINSTEIN’S EVIDENCE Para. 801(d)(1)(01)(1978).

Rule 801(d)(1) 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

were either inadmissible or likely to be inadmissible under prior

military law.

Rule 801(d)(1)(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

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ANALYSIS OF THE MILITARY RULES OF EVIDENCE App. 22, M.R.E. 801(d)(1)
perjury 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

p e r j u r y . A l t h o u g h t h e d e f i n i t i o n o f “ t r i a l , h e a r i n g , o r o t h e r

proceeding” is uncertain, it is apparent that the Rule was intended

to include grand jury testimony and may be extremely broad in

scope. See, United States v. Castro-Ayon, 537 F.2d 1055 (9th

Cir.), cert. denied, 429 U.S. 983 (1976) (tape recorded statements

given under oath at a Border Patrol 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 perjury.” The mere 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 801(d)(1)(B) makes admissible on the merits a statement

consistent with the in-court testimony of the witness and “offered

to rebut an express or implied charge against the declarant of

recent fabrication or improper influence or motive.” Unlike Rule

801(d)(1)(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 offered have

been made prior to the time the improper influence or motive

arose or prior to the alleged recent fabrication. Notwithstanding

this, at least two circuits have read such a requirement into the

rule. United States v. Quinto, 582 F.2d 224 (2d Cir. 1978); United

States v. Scholle, 553 F.2d 1109 (8th Cir. 1977). See also United

States v. Dominquez, 604 F.2d 304 (4th Cir. 1979).

The propriety of this limitation is clearly open to question. See

generally United States v. Rubin, 609 F.2d 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 801(d)(1)(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 fact of fresh complaint, as is presently possible,

but also the entire portion of the consistent statement.

Under Rule 801(d)(1)(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 which governs the admissibility of statements of

pretrial identification.

(2) Admission by party opponent. Rule 801(d)(2) eliminates a

number of categories of statements from the scope of the hearsay

r u l e . U n l i k e t h o s e s t a t e m e n t s w i t h i n t h e p u r v i e w o f R u l e

802(d)(1), these statements would have come within the exceptions to the hearsay rule as recognized in the 1969 Manual.

Consequently, their “reclassification” is a matter of academic interest only. No practical differences result. The reclassification

results from a belief that the adversary system impels admissibility and that reliability 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 was treated as an admission or confession under Para. 140 a

of the 1969 Manual, and is an exception of the prior hearsay rule.

Rule 801(d)(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 was an exception to the prior

hearsay rule. Cf. Para. 140 a(4) of the 1969 Manual. While

silence may be treated as an admission on the facts of a given

case, see, Rule 304(h)(3) and the analysis thereto, under Rule

801(d)(2) that silence must have been intended by the declarant to

have been an assertion. Otherwise, the statement will not be

h e a r s a y w i t h i n t h e m e a n i n g o f R u l e 8 0 1 ( d ) ( 2 ) a n d w i l l

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 was not expressly dealt with by the 1969 Manual, it would be admissible under prior law as an admission; Cf.

Para. 140 b, utilizing agency theory.

Rule 801(d)(2)(D) 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 prior law. Statements made by interpreters,

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 coconspirator of a party during the course and in furtherance of the

conspiracy.” This is similar to the military hearsay exception

found in Para. 140 b of the 1969 Manual. Whether a conspiracy

existed for purposes of this Rule is solely a matter for the military

judge. Although this is the prevailing Article III 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 Indep e n d e n t E v i d e n c e R e q u i r e m e n t o f t h e C o c o n s p i r a t o r H e a r s a y

Exception, 127 U.Pa.L.Rev. 1439 (1979). For example, the burden of proof placed on the proponent is unclear although a prep o n d e r a n c e a p p e a r s t o b e t h e d e v e l o p i n g A r t i c l e I I I t r e n d .

Similarly, there is substantial confusion surrounding the question

of whether statements of an alleged co-conspirator may themselves be considered by the military judge when determining

whether the declarant was in fact a co-conspirator. This process,

known as bootstrapping, was not permitted under prior military

l a w . S e e e . g . , U n i t e d S t a t e s v . D u f f y , 4 9 C . M . R . 2 0 8 , 2 1 0

(A.F.C.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

a t l e a s t t w o c i r c u i t s h a v e h e l d t h a t o t h e r f a c t o r s p r o h i b i t

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 F.2d 603 (2d Cir. 1979). Until such time as the Article

III practice is settled, discretion would dictate that prior military

law be followed and that bootstrapping not be allowed. Other

procedural factors may also prove troublesome although not to

the same extent as bootstrapping. For example, it appears 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 possiA22-52

App. 22, M.R.E. 801(d)(1) APPENDIX 22
ble, the probability of serious error, likely requiring 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 coconspirators. 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.”

Official statements made by an officer—as by the commanding

officer of a battalion, squadron, or ship, or by a staff officer, in an

endorsement 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 admissibility under this Rule may

be helpful:

(1) A is being tried for assaulting B. The defense presents

the testimony of C that just before the assault C heard 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 truth 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)(1)(C) to prove that it was A who raped B.

(3) Private A is being tried for disobedience of a certain

order given him orally by Lieutenant B. C is able to testify 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 tried for 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

that facts stated by B.

(5) The accused is being tried for wrongfully selling government clothing. A policeman is able to testify that while on duty

he saw the accused go into a shop with a bundle under his arm;

that he entered the shop and the accused ran 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 him

some 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 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 struck the

alleged victim. The testimony of the witness 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 Para. 139a of the 1969 Manual, there is a

substantial change in military practice as a result of Rule 103(a).

Under the 1969 Manual, hearsay was incompetent evidence and

did 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 adaptation to military practice. Overall, the Rule is similar to practice under Manual Paras. 142 and

144 of the 1969 Manual. The Rule is, however, substantially

more detailed and broader in scope than the 1969 Manual.

(1) Present sense impression. Rule 803(1) is taken from the Federal Rule verbatim. The exception it establishes was not recognized in the 1969 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

m a y c o m e w i t h i n t h i s e x c e p t i o n d e p e n d i n g u p o n t h e

circumstances.

(2) Excited utterance. Rule 803(2) is taken from the Federal Rule

verbatim. Although similar to Para. 142 b of the 1969 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 startling event occurred. An examination of the

Federal Rules of Evidence Advisory Committee Note indicates

some uncertainty, however. S. Saltzburg & K. Redden, FEDERAL RULES 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 1969 Manual Para. 142d but may be

slightly more limited 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 of medical 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 Para. 142 d of the 1969 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 treatment. The basis for the exception is the presumption that an individual seeking relief from a medical problem

has incentive to make accurate statements. See generally, 4 J.

W e i n s t e i n & M . B e r g e r , W E I N S T E I N ’ S E V I D E N C E P a r a .

804(4)(01) (1978). The admissibility under this exception of those

portions of a statement not relevant to diagnosis or treatment is

A22-53

ANALYSIS OF THE MILITARY RULES OF EVIDENCE App. 22, M.R.E. 803(4)
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 Paras. 146 a and 149 c(1)(b)

of the 1969 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 of regularly 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 1969 Manual Para. 144 d, 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 of the

hearsay exception, see Para. 144 c, of the 1969 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 subdivision

does not eliminate the need for its proponent to show that the

particular record comes within the Rule when the record is challenged; the Rule does establish that the types of records listed are

normally business records.

Chain of custody receipts or documents have been included to

emphasize their administrative nature. Such documents perform

the critical function of accounting for property obtained by the

United States Government. 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 Para. 144 d of the 1969 Manual

with respect to chain of custody forms as set forth in United

States v. Porter, 7 M.J. 32 (C.M.A. 1979) and United States 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 “regularly 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).

Paragraph 144 d prevented a record “made principally with a

view to prosecution, or other disciplinary or legal action ...” from

being 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 that the exclusion

found in Rule 803(8)(B) for “matters observed by police officers

and other personnel acting in a law enforcement capacity” prevent

any such record from being admissible as a record of regularly

conducted activity. Otherwise the limitation in subdivision (8)

w o u l d s e r v e n o u s e f u l p u r p o s e . S e e a l s o A n a l y s i s t o R u l e

803(8)(B).

Rule 803(6) is generally similar to the 1969 Manual rule but is

potentially broader because of its use of the expression “regularly

conducted” activity in addition to “business”. It also permits records of opinion which were prohibited by Para. 144 d of the

1969 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 Para. 144 c of the 1969 Manual rule expressly did not require

such knowledge as a condition of admissibility.

2004 Amendment: Rule 803(6) was modified based on the

amendment to Fed. R. Evid. 803(6), effective 1 December 2000.

It permits a foundation for business records to be made through

certification to save the parties the expense and inconvenience of

producing live witnesses for what is often perfunctory testimony.

The Rule incorporates federal statutes that allow certification in a

criminal proceeding in a court of the United States. (See, e.g., 18

U.S.C. § 3505, Foreign records of regularly conducted activity.)

The Rule does not include foreign records of regularly conducted

business activity in civil cases as provided in its Federal Rule

counterpart. This Rule works together with Mil. R. Evid. 902(11).

(7) Absence of entry in records kept in accordance with the

provisions of paragraph (6). Rule 803(7) is taken verbatim from

the Federal Rule. The Rule is similar to Paras. 143 a(2)(h) and

143 b(3) of the 1969 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 military environment. Rule 803(8)(B) 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 ersonnel”. 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 modified to include a list of records

that, when made pursuant to a duty required by law, will be

admissible notwithstanding the fact that they may have been

made as “matters observed by police officers and other personnel

acting in a law enforcement capacity.” Their inclusion is a direct

result 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 nature and unrelated to the problems inherent in

records prepared 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 Para. 144 b of the 1969 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 know or ascertain through appropriate and

A22-54

App. 22, M.R.E. 803(4) APPENDIX 22
trustworthy channels of information the truth of the fact or event

...” Whether any given record was obtained in such a trustworthy

fashion is a question for the military judge. The explicit limitation

on admissibility of records made “principally with a view to

prosecution” found in Para. 144 d has been deleted.

The fact that a document may be admissible under another

exception to the hearsay rule, e.g., Rule 803(6), does not make it

inadmissible under this subdivision.

Military Rule of Evidence 803(8) raises numerous significant

q u e s t i o n s . R u l e 8 0 3 ( 8 ) ( A ) e x t e n d s t o “ r e c o r d s , r e p o r t s , s t a t e -

ments, 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 subdivision is defined to include any

government office or agency including 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 clearly drawn in most

cases. The same may not be true within the armed forces. It is

unlikely that every action taken by a servicemember is an “act i v i t y ” o f t h e d e p a r t m e n t o f w h i c h h e o r s h e i s a m e m b e r .

Presumably, Rule 803(8) should be restricted 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 military

regulation 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

a d m i n i s t r a t i v e m e c h a n i s m w a s i n d e e d a n “ o f f i c e o r a g e n c y ”

within the meaning of the Rule.

R u l e 8 0 3 ( 8 ) ( B ) e n c o m p a s s e s “ m a t t e r s o b s e r v e d p u r s u a n t t o

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 far more than just the normal procedures 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 officers and 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 military or civilian in origin.

A question not answered by Rule 803(8) is the extent to which

a regulation or directive 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, 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 purs u a n t t o a u t h o r i t y g r a n t e d b y l a w , u n l e s s t h e s o u r c e s o f

i n f o r m a t i o n o r o t h e r c i r c u m s t a n c e s i n d i c a t e l a c k o f t r u s t w o r -

thiness.” 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 had no express equivalent in the 1969

Manual.

(10) Absence of public record or entry. Rule 803(10) is taken

verbatim from the Federal Rules and is similar to 1969 Manual

Para. 143 a(2)(g).

(11-13) Records of religious organizations: Marriage, baptismal,

and similar certificates: Family records. Rule 802(11)–(13) are

all taken verbatim from the Federal Rules and had no express

equivalents in the 1969 Manual.

(14-16) Records of documents affecting an interest in property:

Statements in documents affecting an interest in property; Statements in ancient documents. Rules 803(14)–(16) are taken verbatim from the Federal Rules and had no express equivalents in the

1969 Manual. Although intended primarily for civil cases, they all

have potential importance to courts-martial.

(17) Market reports, commercial 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

clarify the matter by specific reference. The Rule is similar in

scope and effect to the 1969 Manual Para. 144 f 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 Para. 138 e of the 1969 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 statements may not, however, be given to the fact finder as exhibits.

(19-20) Reputation concerning personal or family history; reput a t i o n c o n c e r n i n g b o u n d a r i e s o r g e n e r a l h i s t o r y . R u l e s

A22-55

ANALYSIS OF THE MILITARY RULES OF EVIDENCE App. 22, M.R.E. 803(19-20)
803(19)–(20) are taken without change from the Federal Rules

and had no express equivalents in the 1969 Manual.

(21) Reputation as to character. Rule 803(21) is taken from the

Federal Rule without change. It is similar to Para. 138 f of the

1969 Manual in that it creates an exception to the hearsay rule for

reputation evidence. “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.

( 2 2 ) J u d g m e n t o r p r e v i o u s c o n v i c t i o n . R u l e 8 0 3 ( 2 2 ) i s t a k e n

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 military law. 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.

( 2 3 ) J u d g m e n t a s t o p e r s o n a l , f a m i l y o r g e n e r a l h i s t o r y , o r

boundaries. Rule 803(23) is taken verbatim from the Federal

Rule, and had no express equivalent in the 1969 Manual. Although intended 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 had no express equivalent in the 1969

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 three conditions 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 III 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 III 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

e x c l u d e h e a r s a y t e s t i m o n y : h o w t r u t h f u l w a s t h e o r i g i n a l

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 exception; declarant

unavailable

(a) Definition of unavailability. Subdivisions (a)(1)–(a)(5) of Rule

804 are taken from the Federal Rule without change and are

generally similar to the relevant portions of Paras. 145 a and 145

b of the 1969 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.

F e b r u a r y 1 9 8 6 A m e n d m e n t : T h e p h r a s e “ c l a i m o r l a c k o f

memory” was changed to “claim of lack of memory” to correct

an error in MCM, 1984.

Rule 804(a)(6) is new and has been added in recognition of

certain problems, such as combat operations, that are unique to

the armed forces. Thus, Rule 804(a)(6) will make unavailable a

witness who is unable to appear and testify 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 construing 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)(1) 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 clarify 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)(1) 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 Para.

145 b of the 1969 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 1969 Manual, the

Rule does not distinguish between capital and non-capital cases.

The second portion of Rule 804(b)(1) has been included to

ensure that testimony from military tribunals, many of which

ordinarily do not have verbatim records, 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)(1) 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 examinat i o n o f t h e w i t n e s s . S e e , e . g . , J . W e i n s t e i n & M . B e r g e r ,

W E I N S T E I N ’ S E V I D E N C E P a r a . 8 0 4 ( b ) ( 1 ) ( ( 0 4 ) ) ( 1 9 7 8 ) . B e -

cause 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)(1) of the Federal Rule would apply to Article

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App. 22, M.R.E. 803(19-20) APPENDIX 22
32 hearings. The specific difficulty stems from the fact that Article 32 hearings were intended by Congress to function as discove r y d e v i c e s f o r t h e d e f e n s e a s w e l l a s t o r e c o m m e n d a n

appropriate disposition of charges to the convening authority.

H u t s o n v . U n i t e d S t a t e s , 1 9 U . S . C . M . A . 4 3 7 , 4 2 C . M . R . 3 9

(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. of the 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(b)(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 at an Article

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 Article 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.” While 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 so that the

announcement may provide early notice to all concerned and

hopefully avoid the necessity for counsel to testify at the later

trial.

The Federal Rule was modified by the Committee to require

that testimony offered under Rule 804(b)(1) which was originally

“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” 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(b)(1).

(2) Statement under belief of impending 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 Para. 142 a, thus retains the 1969 Manual rule, modification

of which was viewed as being impracticable.

Rule 804(b)(2) is similar to the dying declaration exception

found in Para. 142 a of the 1969 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; uttering the hearsay statement, under a

belief of impending death, B dies, and although A recovers, A is

unavailable to testify at trial. In a 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 if the declarant had a hope of recovery. 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, Rule 403.

A dying declaration and its maker may be contradicted and

impeached in the same manner as other testimony and witnesses.

Under the prior 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

1969 Manual. It has, however, been made applicable by case law,

United States v. Johnson, 3 M.J. 143 (C.M.A. 1977). It makes

admissible statements against a declarant’s interest, whether pecuniary, proprietary, 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 true.

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 trustworthiness 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 Court’s decision in Chambers v. Mississippi, 410 U.S.

284 (1973), which may be broader than the Rule as the case may

n o t r e q u i r e e i t h e r c o r r o b o r a t i n g e v i d e n c e o r a n u n a v a i l a b l e

declarant.

In its present form, the Rule fails to address a particularly

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ANALYSIS OF THE MILITARY RULES OF EVIDENCE App. 22, M.R.E. 804(b)(3)
vexing problem— that 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. United States, 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 . W e i n s t e i n & M . B e r g e r , W E I N S T E I N ’ S E V I D E N C E

804–93, 804–16 (1978). Although the legislative history reflects

an early desire on the part of the Federal Rules of Evidence

A d v i s o r y C o m m i t t e e t o p r o h i b i t s u c h t e s t i m o n y , a p r o v i s i o n

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,

p r o h i b i t e d s u c h s t a t e m e n t s — a r g u a b l y a n e r r o n e o u s v i e w o f

Bruton, supra, see, Bruton, supra n.3 at 128, Dutton v. Evans,

4 0 0 U . S . 7 4 ( 1 9 7 0 ) . T h e C o n f e r e n c e C o m m i t t e e d e l e t e d t h e

House provision, following the Senate’s desires, because it believed it inappropriate to “codify constitutional evidentiary princip l e s . ” W E I N S T E I N ’ S E V I D E N C E a t 8 0 4 – 1 6 ( 1 9 7 8 ) c i t i n g

CONG.REC.H 11931–32 (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 ,

governs such statement. The Committee intends that the Rule

extend to such statements to the same extent that subdivision

8 0 4 ( b ) ( 4 ) i s h e l d b y t h e A r t i c l e I I I c o u r t s t o a p p l y t o s u c h

statements.

(4) Statement of personal or family history. Rule 804(b)(4) of

the Federal Rule is taken verbatim from the Federal Rule, and had

no express equivalent in the 1969 Manual. The primary feature of

Rule 803(b)(4)(A) is its application even though the “declarant

had no means of acquiring personal knowledge 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 1969 Manual did not exactly address the issue, the military

rule is identical with the new rule.

Rule 806 Attacking and supporting credibility of

declarant

Rule 806 is taken from the Federal Rule without change. It

restates the prior military rule 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

hearsay statement. As a result, Rule 806 supersedes Rule 613(b)

which would require such an opportunity for a statement inconsistent with in-court testimony.

SECTION IX

AUTHENTICATION AND INDENTIFICATION

Rule 901 Requirement of authentication or

identification

(a) General provision. Rule 901(a) is taken verbatim from the

Federal Rule, and is similar to Para. 143 b of the 1969 Manual,

which stated in pertinent part that: “A writing may be authenticated by any competent proof that it is genuine— is in fact what

it purports or is claimed to be.” Unlike the 1969 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 in

question 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 evidence— especially if fungible. Present case law would appear to be consistent with the

new Rule because the chain of custody requirement has not been

applied in a rigid fashion. A chain of custody will still be required when 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) Illustration. Rule 901(b) is taken verbatim from the Federal

Rule with the exception of a modification to Rule 901(b)(10).

Rule 901(b)(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 require statutory 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 department

is sufficient.

Rule 901(b) is a non-exhaustive list of illustrative examples of

authentication techniques. None of the examples are inconsistent

with prior military law and many are found within the 1969

Manual, see, Para. 143 b. Self-authentication is governed by Rule

902.

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App. 22, M.R.E. 804(b)(3) APPENDIX 22
Rule 902 Self-authentication

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-authentication.

(1) Domestic public documents under seal. Rule 902(1) is taken

verbatim from the Federal Rule, and is similar to aspects of Paras.

143 b(2)(c) and (d) of the 1969 Manual. The Rule does not

distinguish between original document and copies. A seal is selfauthenticating 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 Paras. 143 b(2)(c) and (d) of the 1969 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 ) F o r e i g n p u b l i c d o c u m e n t s . R u l e 9 0 2 ( 3 ) i s t a k e n w i t h o u t

change from the Federal Rule. Although the Rule is similar to

Paras. 143 b(2)(e) and (f) of the 1969 Manual, the Rule is potentially narrower than the prior military one as the Rule does not

permit “final certification” to be made by military personnel as

did the Manual rule nor does it permit authentication made by

military personnel as did 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 permits the military

judge to order foreign documents to “be treated as presumptively

authentic without final certification or permit them to be evid e n c e d b y a n a t t e s t e d s u m m a r y w i t h o r w i t h o u t f i n a l

certification.”

(4) Certified copies of public records. Rule 902(4) is taken verbatim from the Federal Rule except that it has been modified by

adding “or applicable regulations prescribed pursuant to statutory

authority.” The additional language is required by military necessity and includes the now existing statutory powers of the Presid e n t a n d v a r i o u s S e c r e t a r i e s t o p r o m u l g a t e r e g u l a t i o n s . S e e ,

generally, Analysis to Rule 901(b).

Rule 902(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 (1), (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 rule.subparagraph of Para. 143 b(2)(c) of the 1969 Manual.

It has been inserted due to the necessity to facilitate records of the

United States in general and military records in particular. Military records 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 geolineartal isolation or the

unwarranted time such a requirement could demand.

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. See Para. 143 a(2)(a) of the 1969

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) Official publications; Newspapers and periodicals; Trade

inscriptions and the like; Acknowledged documents; Commercial

paper and related documents. Rules 902(5)–(9) are taken verbatim from the Federal Rules and have no equivalents in the 1969

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(b)(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.

(11) 2004 Amendment: Rule 902(11) was modified based on the

amendment to Fed. R. Evid. 902(11), effective 1 December 2000,

and is taken from the Federal Rule without change. It provides for

self-authentication of domestic business records and sets forth

procedures for preparing a declaration of a custodian or other

qualified witness that will establish a sufficient foundation for the

admissibility of domestic business records. This Rule works together with Mil. R. Evid. 803(6).

Rule 903 Subscribing witness’ testimony

unnecessary

Rule 903 is taken verbatim from the Federal Rule and has no

express equivalent in the 1969 Manual.

SECTION X

CONTENTS OF WRITINGS, RECORDINGS,

AND PHOTOGRAPHS

Rule 1001 Definitions

(1) Writings and recordings. Rule 1001(1) is taken verbatim from

the Federal Rule and is similar in scope to Para. 143 d of the

1969 Manual. Although the 1969 Manual was 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 had no express equivalent in the 1969 Manual. It

does, however, reflect current military law.

(3) Original. Rule 1001(3) is taken verbatim from the Federal

Rule and is similar to Para. 143 a(1) of the 1969 Manual. The

1969 Manual, however, treated “duplicate originals,”i.e., carbon

a n d p h o t o l i n e a r t c o p i e s m a d e f o r u s e a s a n o r i g i n a l , a s a n

“ o r i g i n a l ” w h i l e R u l e 1 0 0 1 ( 4 ) t r e a t s s u c h a d o c u m e n t a s a

“duplicate.”

(4) Duplicate. Rule 1004(4) is taken from the Federal Rule verbatim and includes those documents Para. 143 a(1) of the 1969

Manual defined as “duplicate originals.” In view of Rule 1003’s

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ANALYSIS OF THE MILITARY RULES OF EVIDENCE App. 22, M.R.E. 1001(4)
rule of admissibility for “duplicate,” no appreciable negative result stems from the reclassification.

Rule 1002 Requirement of the original

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 Para. 143 a(19) of the 1969 Manual

except that specific reference is made in the rule to recordings

and photographs. Unlike the 1969 Manual, the Rule does not

contain the misleading reference to “best evidence” and is plainly

applicable 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 1969 Manual.

Compare Rules 1005–1007 with Para. 143 a(2)(f) of the 1969

Manual. For example, Paras. 143 a (2)(e) and 144 c of the 1969

Manual excepted 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 treatment of business records in Para. 144

a of the 1969 Manual. Omission of other 1969 Manual exceptions, e.g., certificates of fingerprint comparison and identity, see

Rule 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.

§209 (copies of District of Columbia Codes of Laws). As a rule,

such statutes permit a form of authentication as an adequate

substitute for the original document.

Rule 1003 Admissibility of duplicates

Rule 1003 is taken verbatim from the Federal Rule. It is both

similar to and distinct from the 1969 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 1969

Manual’s treatment of “duplicate originals,” Para. 143 a(1), except that under the 1969 Manual there was no distinction to be

made between originals and “duplicate originals”. Accordingly, in

this case the Rule would be narrower than the 1969 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 pre-existing documents for the purpose of litigation,

the Rule is broader than the 1969 Manual because that Manual

prohibited such evidence unless an adequate justification for the

non-production of the original existed.

Rule 1004 Admissibility of other evidence of

contents

Rule 1004 is taken from the Federal Rule without change,

and is similar in scope to the 1969 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 1969 Manual stated in Para. 143 a(2) that

“the contents may be proved by an authenticated copy or by the

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

1969 Manual except that the Rule explicitly exempts originals

destroyed in “bad faith.” Such an exemption was implicit in the

1969 Manual.

(2) Original not obtained. Rule 1004(2) is similar to the justification for nonproduction in Para. 143 a(2) of the 1969 Manual, “an

admissible writing ... cannot feasibly be produced.”

(3) Original in possession of opponent.

Rule 1004(3) is similar to the 1969 Manual provision in Para.

143 a(2) that when a document is in the possession of the accused

the original need not be produced except that the 1969 Manual

explicitly did 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

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 justify 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) acts in 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 prior 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., United States v. Parker, 13

U.S.C.M.A. 579, 33 C.M.R. 111 (1963) (validity of divorce decree of critical prosecution witness not collateral when witness

would be prevented from testifying 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 Para. 143

a(2)(c) of the 1969 Manual although some differences do exist.

The Rule is somewhat broader in that it applies to more than just

“official records.” Further, although the 1969 Manual permitted

“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 attested copy.

Rule 1006 Summaries

Rule 1006 is taken from the Federal Rule without change,

and is similar to the exception to the best evidence rule now

found in Para. 143 a(2)(b) of the 1969 Manual. Some difference

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App. 22, M.R.E. 1001(4) APPENDIX 22
between the Rule and the 1969 Manual exists, however, because

the Rule permits use of “a chart, summary, or calculation” while

the Manual permitted only “a summarization.” Additionally, the

Rule does not include the 1969 Manual requirement that the

summarization be made by a “qualified person or group of qualified persons,” nor does the Rule require, as the Manual appeared

to, that the preparer of the chart, summary, or calculation testify

in order to authenticate the document. The nature of the authentication required is not clear although some form 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,

F E D E R A L R U L E S O F E V I D E N C E M A N U A L 6 9 4 ( 2 d e d .

1977).

Rule 1007 Testimony or written admission of

party

Rule 1007 is taken from the Federal Rule without change

and had no express equivalent in the 1969 Manual. The Rule

establishes an exception to Rule 1002 by allowing 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 party’s

written admission.

Rule 1008 Functions of military judge and

members

Rule 1008 is taken from the Federal Rule without change,

and had no formal equivalent in prior military practice. The Rule

specifies three situations in which members must determine issues

which have been conditionally determined by the military judge.

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 the civil practice. Should the trial judge in a

contract action determine that an exhibit is in fact the original of

a contested contract, that admissibility decision could determine

the ultimate result of trial if the jury were not given the opportunity to be the final arbiter 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 military judge that a given version is authentic

could easily determine the trial. Rule 1008 would give the member the final decision as to accuracy. Although Rule 1008 will

rarely be relevant to the usual court-martial, it will adequately

protect the accused from having the case against him or her

depend upon a single best evidence determination by the military

judge.

SECTION XI

MISCELLANEOUS RULES

Rule 1101 Applicability of rules

The Federal Rules have been revised extensively to adapt

them 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 proceedings to be governed by the Federal

Rules. These sections are inapplicable to the military criminal

legal system and consequently were deleted. Similarly, most of

Federal Rule of Evidence 1101(d) is inapplicable to military law

due to the vastly different jurisdictions involved.

(a) Rules applicable. Rule 1101(a) specifies that the Military

R u l e s a r e a p p l i c a b l e t o a l l c o u r t s - m a r t i a l i n c l u d i n g s u m m a r y

courts-martial, to Article 39(a) proceedings, limited factfinding

proceedings ordered on review, revision proceedings, and contempt proceedings. This limited application is a direct result of

the limited jurisdiction available to courts-martial.

(b) Rules of privilege. Rule 1101(b) is taken from subdivision (c)

of the Federal Rule and is similar to prior military law. Unlike the

F e d e r a l R u l e s , t h e M i l i t a r y R u l e s c o n t a i n d e t a i l e d p r i v i l e g e s

rather than a general reference to common law. Compare Federal

Rule of Evidence 501 with Military Rule of Evidence 501–512.

(c) Rules relaxed. Rule 1101(c) conforms the rules of evidence to

military sentencing procedures as set forth in the 1969 Manual

Para. 75 c. Courts-martial are bifurcated proceedings with sentencing being an adversarial proceeding. Partial application of the

rules of evidence is thus appropriate. The Rule also recognizes

the possibility that other Manual provisions 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

R u l e i s , h o w e v e r , g e n e r a l l y i n a p p l i c a b l e t o m i l i t a r y l a w , t h e

equivalents of the Article III proceedings listed in the Federal

Rule have been listed here. They included Article 32 investigative

hearings, the partial analog to grand jury proceedings, proceedings for search authorizations, and proceedings for pretrial release.

1993 Amendment. Mil. R. Evid. 1101(d) was amended to make

the provisions of Mil. R. Evid. 412 applicable at pretrial investigations.

1998 Amendment. The Rule is amended to increase to 18

months the time period between changes to the Federal Rules of

Evidence and automatic amendment of the Military Rules of

Evidence. This extension allows for timely submission of changes

through the annual review process.

Rule 1102 Amendments.

Rule 1102 has been substantially revised from the original

Federal Rule which sets forth 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 military criminal

legal system. Further, some rules may be impracticable. As Cong r e s s m a y m a k e c h a n g e s d u r i n g t h e i n i t i a l p e r i o d f o l l o w i n g

Supreme Court publication, some period of time after an amendm e n t ’ s e f f e c t i v e d a t e w a s c o n s i d e r e d e s s e n t i a l f o r t h e a r m e d

forces to review the final form of amendments and to propose any

A22-61

ANALYSIS OF THE MILITARY RULES OF EVIDENCE App. 22, M.R.E. 1102
necessary modifications to the President. Six months was considered the minimally appropriate 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 Rule of Evidence will be automatically applicable on the

180th day after its effective date. The President may, however,

affirmatively direct that any such amendment may not apply, in

whole or in part, to the armed forces and that direction shall be

binding upon courts-martial.

1998 Amendment: The Rule is amended to increase to 18 months

the time period between changes to the Federal Rules of Evidence

and automatic amendment of the Military Rules of Evidence. This

extension allows for the timely submission of changes through the

annual review process.

2004 Amendment: See Executive Order 13365, dated 3 December 2004. The amendment to the Federal Rules of Evidence,

effective in United States District Courts, 1 December 2000, creating Rule 902(12) is not adopted. Federal Rules 301, 302, and

415, were not adopted because they were applicable only to civil

proceedings.

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.

A22-62

App. 22, M.R.E. 1102 APPENDIX 22
APPENDIX 23

ANALYSIS OF 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 127 c (Table of

Maximum Punishments), and Appendix 6c of MCM, 1969 (Rev.).

1986 Amendment: The next to last paragraph of the introduction to Part IV was added to define the term “elements,” as used

in Part IV. In MCM, 1969 (Rev.), the equivalent term used was

“proof.” Both “proof” and “elements” referred to the statutory

elements of the offense and to any additional aggravating factors

prescribed by the President under Article 56, UCMJ, to increase

the maximum permissible punishment above that allowed for the

basic offense. These additional factors are commonly referred to

as “elements,” and judicial construction has approved this usage,

as long as these “elements” are pled, proven, and instructed upon.

United States v. Flucas, 23 U.S.C.M.A. 274, 49 C.M.R. 449

( 1 9 7 5 ) ; U n i t e d S t a t e s v . N i c k a b o i n e , 3 U . S . C . M . A . 1 5 2 , 1 1

C.M.R. 152 (1953); United States v. Bernard, 10 C.M.R. 718

(AFBR 1953).

1. Article 77—Principals

b. Explanation.

(1) Purpose. Article 77 is based on 18 U.S.C. § 2. Hearings on

H. R. 2498 Before a Subcomm. of the House Comm. on Armed

Services, 81st Cong., 1st Sess. 1240-1244 (1949). The 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 1 C. Torcia, Wharton’s Criminal Law and

Procedure §§ 29–38 (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 United States v.

Burroughs, 12 M.J. 380, 384 n.4. (C.M.A. 1982); United States v.

Molina, 581 F.2d 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 offense. Subparagraph (2)(a) is

based on paragraph 156 of MCM, 1969 (Rev.). See 18 U.S.C.A. §

2 Historical and Revision Notes (West 1969). See also United

States v. Giles, 300 U.S. 41 (1937); Wharton’s, supra at §§ 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 , 6 U.S.C.M.A. 193,

19 C.M.R. 319 (1955); United States v. Wooten, 1 U.S.C.M.A.

358, 3 C.M.R. 92 (1952); United States 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 Cir. 1980), cert. denied, 450 U.S. 1000 (1981);

Morei v. United States, 127 F.2d 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 clear to the lay reader. See Black’s

Law Dictionary 5, 63 (5th ed., 1979). See also Nye and Nissen v.

United States, 336 U.S. 613, 620 (1949); Wharton’s, supra at

246-47.

The last two sentences in subparagraph (2)(b) are based on the

third paragraph and paragraph 156 of MCM, 1969 (Rev.). See

United States v. Ford, 12 U.S.C.M.A. 31, 30 C.M.R. 31 (1960);

United States v. McCarthy, 11 U.S.C.M.A. 758, 29 C.M.R. 574

(1960); United States v. 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

n e c e s s a r y n o r s u f f i c i e n t t o m a k e o n e a p r i n c i p a l . “ A i d ” a n d

“abet” as used in 18 U.S.C. § 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 such. United States v.

Burroughs, supra; United States v. Sampol, 636 F.2d 621 (D.C.

C i r . 1 9 8 0 ) ; U n i t e d S t a t e s v . M o l i n a , s u p r a ; U n i t e d S t a t e s v .

Carter, 23 C.M.R. 872 (A.F.B.R. 1957). Cf. 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 United State 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 differs from the perpetrators. 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 § 35.

(5) Responsibility for other crimes. This paragraph is based on

the first two paragraphs in paragraph 156 of MCM, 1969 (Rev.).

S e e U n i t e d S t a t e s v . C o w a n , 1 2 C . M . R . 3 7 4 ( A . B . R . 1 9 5 3 ) ;

United States v. Self, 13 C.M.R. 227 (A.B.R. 1953).

Principals independently liable. This subparagraph is new and

is based on Federal decisions. See Standefer v. United States,

supra; United States v. Chenaur , 552 F.2d 294 (9th Cir. 1977);

United States v. Frye, 548 F.2d 765 (8th Cir. 1977).

Withdrawal. This subparagraph is new and is based onUnited

States v. Williams, 19 U.S.C.M.A. 334, 41 C.M.R. 334 (1970).

See also United States v. Miasel, 8 U.S.C.M.A. 374, 24 C.M.R.

184, 188 (157); United States v. Lowell, 649 F.2d 950 (3d. Cir.,

1981); United States v. Killian, 639 F. 2d 206 (5th Cir.), cert.

denied 451 U.S. 1021 (1981).

2. Article 78—Accessory after the fact

c. Explanation.

(1) In general. This subparagraph is based on paragraph 157 of

M C M , 1 9 6 9 ( R e v . ) . S e e a l s o U n i t e d S t a t e s v . T a m a s , 6

U.S.C.M.A. 502, 20 C.M.R. 218(1955).

(2) Failure to report offense. This subparagraph is based on

paragraph 157 of MCM, 1969 (Rev.); United States v. Smith, 5

M.J. 129 (C.M.A. 1978).

(3) Offense punishable by the code. This subparagraph is based

A23-1
on Article 78; United States 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 of principal. This subparagraph is based on Article

78 and United States 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 of principal. The subparagraph is

based on paragraph 157 of MCM, 1969 (Rev.); United States v.

Marsh, 13 U.S.C.M.A. 252, 32 C.M.R. 252 (1962); andUnited

States v. Humble, 11 U.S.C.M.A. 38, 28 C.M.R. 262 (1959). See

also United States v. McConnico, 7 M.J. 302 (C.M.A. 1979).

(6) Accessory after the fact not a lesser included offense. This

s u b p a r a g r a p h i s b a s e d o n U n i t e d S t a t e s v . M c F a r l a n d , 8

U.S.C.M.A. 42, 23 C.M.R. 266 (1957).

( 7 ) A c t u a l K n o w l e d g e . T h i s p a r a g r a p h i s b a s e d o n U n i t e d

States v. Marsh, supra. See United States v. Foushee, 13 M.J. 833

(A.C.M.R. 1982). MCM, 1984, APPENDIX 21, Part IV, ARTICLE 79

3. 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 ) M u l t i p l e l e s s e r i n c l u d e d o f f e n s e s . T h i s s u b p a r a g r a p h i s

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 offense. This subparagraph is taken from paragraph 158 of MCM, 1969 (Rev.).

4. Article 80—Attempts

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); United States v. Choat, 7

U.S.C.M.A. 187, 21 C.M.R. 313 (1956); United States v. Goff, 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).

(4) Voluntary abandonment.

1995 Amendment: Subparagraph (4) is new. It recognizes voluntary abandonment as an affirmative defense as established by

the case law. See United States v. Byrd, 24 M.J. 286 (C.M.A.

1987). See also United States v. Schoof, 37 M.J. 96, 103-04

( C . M . A . 1 9 9 3 ) ; U n i t e d S t a t e s v . R i o s , 3 3 M . J . 4 3 6 , 4 4 0 - 4 1

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

1 9 9 0 ) ; U n i t e d S t a t e s v . W a l t h e r , 3 0 M . J . 8 2 9 , 8 2 9 - 3 3

(N.M.C.M.R. 1990). The prior subparagraphs (4) - (6) have been

redesignated (5) - (7), respectively.

(5) Solicitation. This subparagraph is based on paragraph 159

of MCM, 1969 (Rev.).

(6) Attempts not under Article 80. This subparagraph is based

on paragraph 159 of MCM, 1969 (Rev.).

1986 Amendment: In 4 c(5), subparagraph (e) was redesignated as subparagraph (f), and a new subparagraph (e) was added

to reflect the offense of attempted espionage as established by the

Department of Defense Authorization Act, 1986, Pub.L. No. 99-

145, § 534, 99 Stat. 583, 634-35 (1985) (art. 106a).

(7) 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).

e. Maximum punishment

1991 Amendment: This paragraph was revised to allow for the

imposition of confinement in excess of 20 years for the offense of

attempted murder. There are cases in which the aggravating factors surrounding commission of an attempted murder are so egregious that a 20 year limitation may be inappropriate. Although

life imprisonment may be imposed by the sentencing authority,

mandatory minimum punishment provisions do not apply in the

case of convictions under Article 80.

5. Article 81—Conspiracy

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 United States 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,

§ 731 (1981). See Iannelli v. United States, 420 U.S. 770 (1975);

United States v. Yarborough, 1 U.S.C.M.A. 678, 5 C.M.R. 106

(1952); United States v. Osthoff, 8 M.J. 629 (A.C.M.R. 1979);

United States v. McClelland, 49 C.M.R. 557 (A.C.M.R. 1974).

(4) Overt act. This subparagraph is taken from paragraph 160

of MCM, 1969 (Rev.); United States v. Rhodes, 11 U.S.C.M.A.

7 3 5 , 2 9 C . M . R . 5 5 1 ( 1 9 6 0 ) ; U n i t e d S t a t e s v . S a l i s b u r y , 1 4

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).

(5) Liability for offenses. This subparagraph is taken from paragraph 160 of MCM, 1969 (Rev.). See Pinkerton v. United States,

328 U.S. 640 (1946); United States 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) Withdrawal. This subparagraph is taken from paragraph

160 of MCM, 1969 (Rev.); United States v. 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 offense. 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).

A23-2

Pun. Art. 78 APPENDIX 23
(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. Article 82—Solicitation

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 paragraph is taken from paragraph 161 of

MCM, 1969 (Rev.), United States v. Wysong, 9 U.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. Article 83—Fraudulent enlistment,

appointment, or separation

c. Explanation. This paragraph is based on paragraph 162 of

MCM, 1969 (Rev.); United States v. Danley, 21 U.S.C.M.A. 486,

4 5 C . M . R . 2 6 0 ( 1 9 7 2 ) . S e e W i c k h a m v . H a l l , 1 2 M . J . 1 4 5

(C.M.A. 1981).

e. Maximum Punishment. The reference to membership in, association with, or activities in connection with organizations, associa t i o n s , e t c . , f o u n d i n t h e T a b l e o f M a x i m u m P u n i s h m e n t s ,

paragraph 127 c of MCM, 1969 (Rev.), for Article 83, was deleted as unnecessary. The maximum punishment for all fraudulent

enlistment cases was then standardized.

8. Article 84—Effecting unlawful enlistment,

appointment, 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. Maximum punishment. The reference to membership in, with,

or activities in connection with organizations, associations, etc.,

found in the Table of Maximum Punishments, paragraph 127c of

MCM, 1969 (Rev.), or Article 84, was deleted as unnecessary.

The maximum punishment for all cases was then standardized.

9. Article 85—Desertion

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 authority-inception, duration, termination. See the Analysis, paragraph 10.

(c) Intent to remain away permanently. 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 of enlistment or appointment in the same or a

different armed force. This subparagraph is based on paragraph

164 a of MCM, 1969 (Rev.); United States v. Huff, 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 from paragraph 164 a of MCM, 1969 (Rev.). See also

United States v. Smith, 18 U.S.C.M.A. 46, 39 C.M.R. 46 (1968);

U n i t e d S t a t e s v . D e l l e r , 3 U . S . C . M . A . 4 0 9 , 1 2 C . M . R . 1 6 5

(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 164 a 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 United States 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 164 b of MCM, 1969 (Rev.).

( 4 ) P r i s o n e r w i t h e x e c u t e d p u n i t i v e d i s c h a r g e . T h i s s u b -

paragraph is taken from paragraphs 164 a 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. Article 86—Absence 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). Cf. 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). See

also United States v. Gilbert, 23 C.M.R. 914 (A.F.B.R. 1957).

The language in paragraph 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

U n i t e d S t a t e s v . C u r t i n , 9 U . S . C . M . A . 4 2 7 , 2 6 C . M . R . 2 0 7

(1958).

(3) Intent. This subparagraph is based on paragraph 165 of

MCM, 1969 (Rev.).

( 4 ) A g g r a v a t e d f o r m s o f u n a u t h o r i z e d a b s e n c e . T h i s s u b -

paragraph is based on paragraphs 127 c and 165 of MCM, 1969

(Rev.).

(5) Civil authorities. This subparagraph is taken from parag r a p h 1 6 5 f M C M , 1 9 6 9 ( R e v . ) ; U n i t e d S t a t e s v . M y h r e , 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).

A23-3

ANALYSIS OF PUNITIVE ARTICLES Pun. Art. 86
(6) Inability to return. This subparagraph is taken from paragraph 165 of MCM, 1969 (Rev.).

(7) Determining the unit or organization of an accused. This

s u b p a r a g r a p h i s b a s e d o n U n i t e d S t a t e s v . P o u n d s , 2 3

U . S . C . M . A . 1 5 3 , 4 8 C . M . R . 7 6 9 ( 1 9 7 4 ) ; U n i t e d S t a t e s v .

Mitchell, 7 U.S.C.M.A. 238, 22 C.M.R. 28 (1956).

(8) Duration. This subparagraph is taken from paragraphs 127

c 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 127 c(3) of MCM, 1969 (Rev.).

(10) Termination—methods of return to military control. This

subparagraph is based on paragraph 165 of MCM, 1969 (Rev.);

United States v. Dubry, supra; United States v. Raymo, 1 M.J. 31

(C.M.A. 1975); United States v. Garner, 7 U.S.C.M.A. 578, 23

C.M.R. 42 (1957); United States v. Coates, 2 U.S.C.M.A. 625, 10

C.M.R. 123 (1953); United States v. Jackson, 1 U.S.C.M.A. 190,

2 C.M.R. 96 (1952); United States v. Petterson, 14 M.J. 608

( A . F . C . M . R . 1 9 8 2 ) ; U n i t e d S t a t e s v . C o g l i n , 1 0 M . J . 6 7 0

(A.F.C.M.R. 1981). See also United States v. Zammit, 14 M.J.

554 (N.M.C.M.R. 1982).

(11) Findings of 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) Maximum punishment. The increased maximum punishment

for unauthorized absence for more than 30 days terminated by

apprehension has been added to parallel the effect of termination

o f d e s e r t i o n b y a p p r e h e n s i o n a n d t o e n c o u r a g e a b s e n t s e r -

vicemembers to voluntarily return. A bad-conduct discharge was

added to the permissible maximum punishment for unauthorized

absence with intent to avoid maneuvers of 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.

1990 Amendment: The Note in subsection b(4) was inserted

and a conforming change was made in subsection f(4) to clarify

t h e d i s t i n c t i o n b e t w e e n “ u n a u t h o r i z e d a b s e n c e f r o m a g u a r d ,

watch, or duty section” and “unauthorized absence from guard,

watch, or duty section with the intent to abandon it.” See subsections c(4)(c) and c(4)(d).

11. Article 87—Missing movement

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).

(2) Mode of movement. This subparagraph is based on United

States v. Graham , 16 M.J. 460 (C.M.A. 1983); United States v.

Johnson, 3 U.S.C.M.A. 174, 11 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 has provided for “constructive knowledge,” and

adopts the “actual knowledge” requirement set forth in Chandler.

(6) Proof of absence. 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 absences 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. Article 88—Contempt toward officials

c. Explanation. 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 117 c of MCM (Army), 1949, and MCM (AF), 1949.

13. Article 89—Disrespect toward a superior

commissioned officer

c. Explanation. This paragraph is taken from Article 1(5); paragraph 168 of MCM, 1969 (rev.); United States v. Richardson, 7

M . J . 3 2 0 ( C . M . A . 1 9 7 9 ) ; U n i t e d S t a t e s v . F e r e n c z i , 1 0

U.S.C.M.A. 3, 27 C.M.R. 77 (1958); United States v. Sorrells, 49

C.M.R. 44 (A.C.M.R. 1974); United States v. Cheeks, 43 C.M.R.

1 0 1 3 ( A . F . C . M . R . 1 9 7 1 ) ; U n i t e d S t a t e s v . M o n t g o m e r y , 1 1

C.M.R. 308 (A.B.R. 1953).

e . M a x i m u m p u n i s h m e n t . T h e m a x i m u m p u n i s h m e n t w a s i n -

creased 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 Article 91. See paragraph 15 c.

14. Article 90—Assaulting or willfully disobeying

superior commissioned officer

c. Explanation.

(1) Striking or assaulting superior commissioned officer. This

subparagraph is based on paragraph 169 a of MCM, 1969 (Rev.)

and other authorities as noted below.

(a) Definitions. “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 otherA23-4

Pun. Art. 86 APPENDIX 23
wise outside the role of an officer before self-defense may be in

issue. See United States v. Struckman, 20 U.S.C.M.A. 493, 43

C.M.R. 333 (1971).

( 2 ) D i s o b e y i n g s u p e r i o r c o m m i s s i o n e d o f f i c e r . T h i s s u b -

paragraph is based on paragraph 169 b of MCM, 1969 (Rev.) and

other authorities as noted below.

(a) Lawfulness of the order.

(i) Inference of 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 officer. 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.

5 0 4 ( 1 9 5 8 ) ( o v e r s e a s m a r r i a g e ) ; U n i t e d S t a t e s v . L e n o x , 2 1

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); United States v.

Wilson, 19 U.S.C.M.A. 100, 41 C.M.R. 100 (1969); United States

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 31; 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 ) P e r s o n a l n a t u r e o f t h e o r d e r . S e e U n i t e d S t a t e s v .

Wartsbaugh, 21 U.S.C.M.A. 535, 45 C.M.R. 309 (1972).

(d) Specificity of the order. See United States v. Bratcher,

18 U.S.C.M.A. 125, 38 C.M.R. 125 (1969).

( e ) K n o w l e d g e . S e e U n i t e d S t a t e s v . P e t t i g r e w , 1 9

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 ) T i m e f o r c o m p l i a n c e . S e e U n i t e d S t a t e s v . S t o u t , 1

U.S.C.M.A. 639, 5 C.M.R. 67 (1952); United States v. Squire, 47

C . M . R . 2 1 4 ( N . C . M . R . 1 9 7 3 ) ; U n i t e d S t a t e s v . C l o w s e r , 1 6

C.M.R. 543 (A.F.B.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

p a r a g r a p h 1 7 0 o f M C M , 1 9 6 9 ( R e v . ) a n d p a r a g r a p h 1 7 0 o f

MCM, 1951; a review of the legislative history of Article 91;

United States v. Ransom, 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 superior-subordinate relationship in

Article 91. See Legal and Legislative Basis, Manual for CourtsMartial, United States, 1951, at 257. Analysis of 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 and H.R. 4080 Before a Subcommittee of the Senate Armed

Service Committee, 81st 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 of the 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 1(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, §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. Maximum punishment. Subparagraphs (2) and (7) are based on

the aggravating circumstances 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(1)(a), see United States

v. Tolkach, 14 M.J. 239 (C.M.A. 1982).

Subparagraph (1)(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); United States v. Hogsett , 8 U.S.C.M.A. 681,

25 C.M.R. 185 (1958). The general order or regulation 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.

5 2 9 , 4 3 C . M . R . 3 6 9 ( 1 9 7 1 ) ; U n i t e d S t a t e s v . B r o o k s , 2 0

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); United States v. Tassos,

18 U.S.C.M.A. 12, 39 C.M.R. 12 (1968); United States v. Farley,

11 U.S.C.M.A. 730, 29 C.M.R. 546 (1960); DiChiara, Article 92;

Judicial Guidelines for Identifying Punitive Orders and Regulations, 17 A.F.L. Rev. Summer 1975 at 61.

A23-5

ANALYSIS OF PUNITIVE ARTICLES Pun. Art. 92
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.

February 1986 Amendment: The rule was revised to add constructive knowledge as an alternative to the actual knowledge

requirement in paragraph (b)(3)( b) and the related explanation in

subparagraph c(3)(b). In reviewing these provisions, it was concluded that the reliance of the drafters of the 1984 revision on the

Curtin case was misplaced because the portion of that case dealt

with failure to obey under Article 92(2), not dereliction under

Article 92(3). As revised, the elements and the explanation add an

objective standard appropriate for military personnel.

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);

United States 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.

19. Article 95—Resistance, breach of arrest, and

escape

b. Elements. The elements listed for breaking arrest and escape

from custody or confinement have been modified. Paragraph 174

b, c, and d of MCM, 1969 (Rev.) provided that the accused by

“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 United States v. Carson, 15 U.S.C.M.A. 407, 35 C.M.R.

379 (1965). Thus the term includes a requirement 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 some 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. Delagado, 12 C.M.R. 651 (C.G.B.R.

1 9 5 3 ) . C f . U n i t e d S t a t e s v . C l a n s e y , 7 U . S . C . M . A . 2 3 0 , 2 2

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 United States v. Carson,

supra, that this is a question of law to be decided by the military

judge made such a presumption meaningless. Analysis of 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. Cf. 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 with Articles 90–92 which prohibit violations of “lawful orders”—which orders are presumed lawful in the absence of

evidence to the contrary. United States v. Smith, 21 U.S.C.M.A.

231, 45 C.M.R. 5 (1972)). This construction is also supported by

j u d i c i a l d e c i s i o n s . S e e U n i t e d S t a t e s v . W i l s o n , 6 M . J . 2 1 4

(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); United States 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 States v. Mackie, supra.

1991 Amendment: Subparagraph b(4) was amended by adding

an aggravating element of post-trial confinement to invoke increased punishment for escapes from post-trial confinement.

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 57 a of MCM,

1969 (Rev.); United States v. Carson, supra.

A23-6

Pun. Art. 92 APPENDIX 23
( c ) N a t u r e o f t h e r e s i s t a n c e . T h i s s u b p a r a g r a p h i s t a k e n

from paragraph 174 a of MCM, 1969 (Rev.).

(d) Mistake. This subparagraph is taken from paragraph 174

a of MCM, 1969 (Rev.). See also United States v. Nelson, 17

U.S.C.M.A. 620, 38 C.M.R. 418 (1968).

( e ) I l l e g a l a p p r e h e n s i o n . T h e f i r s t s e n t e n c e o f t h i s s u b -

paragraph is taken from paragraph 174a of MCM, 1969 (Rev.).

Although such a rule is not without criticism, see United States v.

Lewis, 7 M.J. 348 (C.M.A. 1979); United States v. Moore, 483

F.2d 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 174 a 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. 231, 45

C.M.R. 5 (1972). See also Analysis, paragraph 19 b. 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 burden of

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) Authority to order arrest. See Analysis, R.C.M. 304(b);

R.C.M. 1101; and paragraph 2, Part V.

(c) Nature of restraint imposed by arrest. This subparagraph

is based on paragraph 174 b of MCM, 1969 (Rev.). See also

Analysis, paragraph 19 b.

(d) Breaking. This subparagraph is based on paragraph 174

b of MCM, 1969 (Rev.).

(e) Illegal arrest. The first sentence in this subparagraph is

based on paragraph 174 b 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 19 b and 19

c(1)(e). The third sentence is based onUnited States v. Carson,

supra.

(3) Escape from custody.

( a ) C u s t o d y . T h i s s u b p a r a g r a p h i s t a k e n f r o m p a r a g r a p h

174d of MCM, 1969 (Rev.). As to the distinction between escape

from custody and escape from confinement,see United States v.

Ellsey, 16 U.S.C.M.A. 455, 37 C.M.R. 75 (1966). But see United

States v. Felty, 12 M.J. 438 (C.M.A. 1982).

( b ) A u t h o r i t y t o a p p r e h e n d . S e e A n a l y s i s , p a r a g r a p h 1 9

c(1)(b).

(c) Escape. This cross-reference is based on paragraph 174 c

of MCM, 1969 (rev.).

(d) Illegal custody. The first sentence in this subparagraph is

based on paragraph 174 b 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 19 b and 19 c(1)(e ). The

third 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 5c, Part v.

1991 Amendment: Subparagraph c(4)(a) was amended to specify that escape from post-trial confinement is subject to increased

punishment.

(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 174 c

of MCM, 1969 (Rev.). See also United States v. Maslanich, 13

M.J. 611 (A.F.C.M.R. 1982).

( d ) S t a t u s w h e n t e m p o r a r i l y o u t s i d e c o n f i n e m e n t f a c i l i t y .

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

174 a 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

legal sufficiency) is not in issue until raised by the defense. See

Analysis, paragraphs 19 b and 19 c(1)(e). The third sentence is

based on United States v. Carson, supra.

1991 Amendment: Subparagraphs e and f were amended to

provide increased punishment for escape from post-trial confinement. The increased punishment reflects the seriousness of the

offense and is consistent with other federal law. See 18 U.S.C.

751(a).

1998 Amendment: Subparagraphs a, b, c, and f were amended

to implement the amendment to 10 U.S.C. §895 (Article 95,

UCMJ) contained in section 1112 of the National Defense Authorization Act for Fiscal Year 1996, Pub. L. No. 104-106, 110

Stat. 186, 461 (1996). The amendment proscribes fleeing from

apprehension without regard to whether the accused otherwise

resisted apprehension. The amendment responds to the U.S. Court

of Appeals for the Armed Forces decisions in United States v.

Harris, 29 M.J. 169 (C.M.A. 1989), and United States v. Burgess,

32 M.J. 446 (C.M.A. 1991). In both cases, the court held that

resisting apprehension does not include fleeing from apprehension, contrary to the then-existing explanation in Part IV, paragraph 19c.(1)(c), MCM, of the nature of the resistance required

f o r r e s i s t i n g a p p r e h e n s i o n . T h e 1 9 5 1 a n d 1 9 6 9 M a n u a l s f o r

Courts-Martial also explained that flight could constitute resisting

apprehension under Article 95, an interpretation affirmed in the

only early military case on point, United States v. Mercer, 11

C.M.R. 812 (A.F.B.R. 1953). Flight from apprehension should be

expressly deterred and punished under military law. Military personnel are specially trained and routinely expected to submit to

lawful authority. Rather than being a merely incidental or reflexive action, flight from apprehension in the context of the armed

A23-7

ANALYSIS OF PUNITIVE ARTICLES Pun. Art. 95
forces may have a distinct and cognizable impact on military

discipline.

20. Article 96— Releasing 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 (1)(c) and (d) have been

modified to conform to rules elsewhere in this Manual and restated for clarity.

21. Article 97— Unlawful detention

c. Explanation. This paragraph is based on paragraph 176 of

M C M , 1 9 6 9 ( R e v . ) ; U n i t e d S t a t e s v . J o h n s o n , 3 M . J . 3 6 1

(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 127 c of

MCM, 1969 (Rev.) to more accurately reflect the seriousness of

this offense. See generally 18 U.S.C. § 1505, 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

1 8 3 a o f M C M , 1 9 6 9 ( R e v . ) ; U n i t e d S t a t e s v . S p e r l a n d , 1

U.S.C.M.A. 661, 5 C.M.R. 89 (1952) (discussion of “before or in

t h e p r e s e n c e o f t h e e n e m y ” ) ; U n i t e d S t a t e s v . P a r k e r , 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. 711 (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”); United States 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. 2

(1954) (discussion of illness as a defense to a charge of cowardice); United States v. Terry, 36 C.M.R. 756 (N.B.R. 1965), aff’d

16 U.S.C.M.A. 192, 36 C.M.R. 348 (1966) (discussion of “false

alarm”); United States v. Payne, 40 C.M.R. 516 (A.B.R. 1969);

pet. denied, 18 U.S.C.M.R. 327 (1969) (discussion of failure to

do utmost).

24. Article 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.).

26. Article 102— Forcing 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

t h e c o m m i s s i o n o f t h i s o f f e n s e . S e e H e a r i n g s o n H . R . 2 4 9 8

Before a Subcomm. of the House Comm. on Armed Services, 81st

Cong., 1st Sess. 1229 (1949). See also United States 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. Article 103— Captured or abandoned property

c. Explanation. This paragraph is taken from paragraph 182 of

MCM, 1969 (Rev.).

e. Maximum punishment. The maximum punishments based on

value 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.

2002 Amendment:The monetary amount affecting the maximum punishments has been revised from $100 to $500 to account

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

$100. The value has also been readjusted to realign it more

closely with the division between felony and misdemeanor penalties in civilian jurisdictions. See generally American Law Institute, Model Penal Code and Commentaries Sec. 223.1 (1980)

(suggesting $500 as the value). The amendment also adds the

phrase ’or any firearm or explosive’ as an additional criterion.

This is because, regardless of the intrinsic value of such items,

the threat to the community is substantial when such items are

wrongfully bought, sold, traded, dealt in or disposed.

28. Article 104— Aiding the enemy

c. Explanation. This paragraph is based on paragraph 183 of

M C M , 1 9 6 9 ( R e v . ) . S e e a l s o U n i t e d S t a t e s v . O l s o n , 7

U . S . C . M . A . 4 6 0 , 2 2 C . M . R . 2 5 0 ( 1 9 5 7 ) ; U n i t e d S t a t e s v .

Batchelor, 7 U.S.C.M.A. 354, 22 C.M.R. 144 (1956); United

States v. Dickenson, 6 U.S.C.M.A. 438, 20 C.M.R. 154 (1955).

29. Article 105— Misconduct as a prisoner

c. Explanation. This paragraph is based on paragraph 184 of

M C M , 1 9 6 9 ( R e v . ) . S e e a l s o U n i t e d S t a t e s v . B a t c h e l o r , 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. Article 106— Spies

c. Explanation. This paragraph is taken from paragraph 185 of

MCM, 1969 (Rev.). See generally W. Winthrop, Military Law

and Precedents 766–771 (2d ed. 1920 reprint). Subparagraphs (4)

and (6)(b) are also based on Annex to Hague Convention No. IV,

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.

30a. Article 106a— Espionage

Article 106a was added to the UCMJ in the Department of

A23-8

Pun. Art. 95 APPENDIX 23
Defense Authorization Act, 1986, Pub.L. No. 99–145, § 534, 99

Stat. 583, 634–35 (1985).

c. Explanation. The explanation is based upon H.R. Rep. No.

235, 99th Cong., 1st Sess. (1985), containing the statement of

conferees with respect to the legislation establishing Article 106a.

See also 1985 U.S. Code Cong. & Ad. News 472, 577–79.

1995 Amendment: This subparagraph was amended to clarify

that the intent element of espionage is not satisfied merely by

proving that the accused acted without lawful authority. Article

106a, Uniform Code of Military Justice. The accused must have

acted in bad faith. United States v. Richardson, 33 M.J. 127

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

(1941).

31. Article 107— False official statements

c. Explanation.

(1) Official documents and statements. 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 United States v.

Collier, 23 U.S.C.M.A. 713, 48 C.M.R. 789 (1974) (regarding

voluntary false statement to military police).

(2) Status of victim. 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

1 8 6 o f M C M , 1 9 6 9 ( R e v . ) ; U n i t e d S t a t e s v . H u t c h i n s , 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 was false. This

subparagraph is based on the language of Article 107 and on

United States v. Acosta, 19 U.S.C.M.A. 341, 41 C.M.R. 341

(1970), and clarifies— as paragraph 186 of MCM, 1969 (Rev.),

did not— that actual knowledge of the falsity is necessary. See

also United States v. DeWayne, 7 M.J. 755 (A.C.M.R. 1979);

United States v. Wright, 34 C.M.R. 518 (A.B.R. 1963); United

States v. Hughes, 19 C.M.R. 631 (A.F.B.R. 1955).

2002 Amendment: Subparagraph c(6), ’Statements made during

an interrogation,’ was removed in light of questions raised by the

Court of Appeals for the Armed Forces in United States v. Solis,

46 M.J. 31, 35 (C.A.A.F. 1997). In Solis, the court said subparagraph c(6) could be viewed as serving at least three different

purposes. It could be (1) an expansive description of dicta with no

intent to limit prosecutions; (2) protection for an accused against

overcharging; or (3) guidance for the conduct of investigations.

Subparagraph c(6) was never intended to establish either procedural rights for an accused or internal guidelines to regulate

government conduct. Subparagraph (c)(6) was based upon United

States v. Aronson, 8 U.S.C.M.A. 525, 25 C.M.R. 29 (1957);

United States v. Washington, 9 U.S.C.M.A. 131, 25 C.M.R. 393

(1958) and United States v. Davenport, 9 M.J. 364 (C.M.A. 1980)

and was intended merely to describe the rule developed in those

cases that a false statement to a law enforcement agent, when

made by a servicemember without an independent duty to speak,

was not ’official’ and therefore not within the purview of Article

107. The subparagraph is removed because the position of the

Court of Military Appeals in the three decisions noted above was

abandoned in United States v. Jackson, 26 M.J. 377 (C.M.A.

1988) and the deleted paragraph no longer accurately describes

the current state of the law.

d. Maximum punishment. The maximum penalty for all offenses

under Article 107 has been increased to include confinement for 5

years to correspond to 18 U.S.C. § 1001, the Federal civilian

counterpart of Article 107. See United States v. DeAngelo, 15

U.S.C.M.A. 423, 35 C.M.R. 395 (1965).

32. Article 108— Military property of the United

States— sale, loss, damage, destruction, or

wrongful disposition

c. Explanation. This paragraph is based on paragraph 187 of

M C M , 1 9 6 9 ( R e v . ) . S e e a l s o U n i t e d S t a t e s v . B e r n a c k i , 1 3

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)(1) is

based on United States v. Schelin, 15 M.J. 218 (C.M.A. 1983).

1986 Amendment: Subparagraph c (1) was amended to correct

an ambiguity in the definition of military property. The previous

l a n g u a g e “ m i l i t a r y d e p a r t m e n t ” i s s p e c i f i c a l l y d e f i n e d i n 1 0

U.S.C. 101(7) as consisting of the Department of the Army, Navy

and Air Force. Article 1(8), UCMJ, however, defines “military”

when used in the Code as referring to all the armed forces. Use of

the term “military department” inadvertently excluded property

owned or used by the Coast Guard. The subparagraph has been

changed to return to the state of the law prior to 1984, as including the property of all the armed forces. See United States v.

Geisler, 37 C.M.R. 530 (A.B.R. 1966); United States v. Schelin,

15 M.J. 218, 220 n.6 (C.M.A. 1983).

d . L e s s e r i n c l u d e d o f f e n s e . S e e U n i t e d S t a t e s v . M i z n e r , 4 9

C.M.R. 26 (A.C.M.R. 1974).

1986 Amendment: Subparagraph d (1) was amended to include

a lesser included offense previously omitted. See United States v.

Rivers, 3 C.M.R. 564 (A.F.B.R. 1952) and 18 U.S.C. 641. Subparagraphs d(2) and (4) were amended to include lesser included

offenses recognizing that destruction and damage of property

which is not proved to be military may be a violation of Article

109. See United States v. Suthers, 22 C.M.R. 787 (A.F.B.R.

1956).

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. § 1361. The maximum

punishment for selling or wrongfully disposing of a firearm or

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 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.

2002 Amendment:The monetary amount affecting the maxiA23-9

ANALYSIS OF PUNITIVE ARTICLES Pun. Art. 108
mum punishments has been revised from $100 to $500 to account

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

$100. The value has also been readjusted to realign it more

closely with the division between felony and misdemeanor penalties in civilian jurisdictions. See generally American Law Institute, Model Penal Code and Commentaries Sec. 223.1 (1980)

(suggesting $500 as the value). Although the monetary amount

affecting punishment in 18 U.S.C. Sec. 1361, Government property or contracts, and 18 U.S.C. Sec. 641, Public money, property

or records, was increased from $100 to $1000 pursuant to section

606 of the Economic Espionage Act of 1996, P. L. No. 104-294,

110 Stat. 3488 (1996), a value of $500 was chosen to maintain

deterrence, simplicity, and uniformity for the Manual’s property

offenses.

33. Article 109— Property other than military

property of the United States— waste, spoilage,

or destruction

c. Explanation. This paragraph is based on paragraph 188 of

M C M , 1 9 6 9 ( R e v . ) . S e e a l s o U n i t e d S t a t e s v . B e r n a c k i , 1 3

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.

2002 Amendment:The monetary amount affecting the maximum punishments has been revised from $100 to $500 to account

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

$100. The value has also been readjusted to realign it more

closely with the division between felony and misdemeanor penalties in civilian jurisdictions. See generally American Law Institute, Model Penal Code and Commentaries Sec. 223.1 (1980)

(suggesting $500 as the value).

f . S a m p l e s p e c i f i c a t i o n . S e e U n i t e d S t a t e s v . C o l l i n s , 1 6

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. Article 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);

U n i t e d S t a t e s v . M a c L a n e , 3 2 C . M . R . 7 3 2 ( C . G . B . R . 1 9 6 2 ) ;

United States v. Day, 23 C.M.R. 651 (N.B.R. 1957).

35. Article 111— Drunken or reckless driving

a. Text. 2002 Amendment: Changes to this Article are contained

in section 581 of the National Defense Authorization Act for

Fiscal Year 2002, P.L. 107-107, 115 Stat. 1012 (2001).

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 A6–13 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, United States,

1969 (Revised Edition) 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 United States v. Bull, 3 U.S.C.M.A.

6 3 5 , 1 4 C . M . R . 5 3 ( 1 9 5 4 ) ( d r u n k e n n e s s ) ; U n i t e d S t a t e s 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).

1 9 9 1 A m e n d m e n t : T h e o r d e r o f t h e l a s t a n d p e n u l t i m a t e

phrases was reversed to clarify that “so as to cause the particular

vehicle to move” modifies only “the manipulation of its controls”

and not the “setting of its motive power in action”. This change

makes clear that merely starting the engine, without movement of

the vehicle, is included within the definition of “operating”.

e. Maximum Punishment. The maximum authorized confinement

for drunk driving resulting in injury was increased from 1 year to

1 8 m o n t h s . T h i s i n c r e a s e r e f l e c t s t h e s a m e c o n c e r n f o r t h e

s e r i o u s n e s s o f t h e m i s c o n d u c t a s t h a t w h i c h h a s , b y c u r r e n t

reports, motivated almost half the states to provide more stringent

responses.

1 9 8 6 A m e n d m e n t : S u b p a r a g r a p h s b ( 2 ) , c ( 3 ) , a n d f w e r e

amended to implement the amendment to Article 111 contained in

the Anti-Drug Abuse Act of 1986, tit. III, § 3055, Pub.L. No.

99–570, enacted 27 October 1986, proscribing driving while impaired by a substance described in Article 112a(b). This amendment codifies prior interpretation of the scope of Article 111, as

previously implemented in paragraph 35c(3).

1995 Amendment: This paragraph was amended pursuant to the

changes to Article 111 included in the National Defense Authorization Act for Fiscal Year 1993, Pub. L. No. 102–484, 106 Stat.

2315, 2506 (1992). New subparagraphs c(2) and (3) were added

to include vessels and aircraft, respectively. Paragraph 35 was

also amended to make punishable actual physical control of a

vehicle, aircraft, or vessel while drunk or impaired, or in a reckless fashion, or while one’s blood or breath alcohol concentration

is in violation of the described per se standard. A new subparagraph c(5) was added to define the concept of actual physical

control. This change allows drunk or impaired individuals who

demonstrate the capability and power to operate a vehicle, aircraft, or vessel to be apprehended if in the vehicle, aircraft, or

vessel, but not actually operating it at the time.

The amendment also clarifies that culpability extends to the

person operating or exercising actual physical control through the

agency of another (e.g., the captain of a ship giving orders to a

helmsman). The amendment also provides a blood/alcohol blood/

breath concentration of 0.10 or greater as a per se standard for

illegal intoxication. The change will not, however, preclude prosecution where no chemical test is taken or even where the results

of the chemical tests are below the statutory limits, where other

evidence of intoxication is available. See United States v. Gholson, 319 F. Supp. 499 (E.D. Va. 1970).

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

show that the accused caused personal injury, the government

must prove proximate causation and not merely cause–in–fact.

Accord United States v. Lingenfelter, 30 M.J. 302 (C.M.A. 1990).

A23-10

Pun. Art. 108 APPENDIX 23
The definition of “proximate cause” is based on United States v.

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

c(2) is renumbered c(4). Previous subparagraphs c(3)–c(5) are

renumbered c(6)–c(8), respectively, and previous subparagraph

c(6) is renumbered c(10).

S u b p a r a g r a p h s d ( 1 ) a n d ( 2 ) a r e r e d e s i g n a t e d d ( 2 ) ( b ) a n d

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

a vessel) as a lesser included offense of drunken operation or

actual physical control of a vessel.

The new d(1) adds Article 110 (improper hazarding of a vessel)

as a lesser included offense of reckless or wanton or impaired

operation or physical control of a vessel.

36. Article 112— Drunk on duty

c. Explanation. This paragraph is based on paragraph 191 of

M C M , 1 9 6 9 ( R e v . ) . T h e d i s c u s s i o n o f d e f e n s e s i s b a s e d o n

United States v. Gossett, 14 U.S.C.M.A. 305, 34 C.M.R. 85

(1963); United States v. Burroughs, 37 C.M.R. 775 (C.G.B.R.

1966).

37. Article 112a— Wrongful use, possession, etc.,

of controlled substances

Introduction. This paragraph is based on Article 112a (see

Military Justice Act of 1983, Pub.L. No. 98–209, § 8, 97 Stat.

1393 (1983)), and on paragraphs 127 and 213, and Appendix 6c

of 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. § 951(a)(2) and on general headnote 2 to the Tariff

Schedules of the United States. See 21 U.S.C. § 1202. See also

H.R.Rep. No. 91–1444, 91st Cong., 2d Sess. 74 (1970). The

maximum punishments for importing or exporting a controlled

substance are based generally on 21 U.S.C. § 960. See also 21

U.S.C. §§ 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 e) amends paragraph 127 c, 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. §§ 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. § 841—15

years imprisonment— is the same as the highest maximum punishment under paragraph 127 c (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 127 c 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 mission performance. See generally Schlesinger v. Councilman, 420 U.S. 738, 760 n.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

servicemembers.

The following sentence enhancement provisions in the United

States Code were not adopted: (1) the recidivism provisions in 21

U.S.C. §§ 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. § 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. § 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 e) 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. § 310 concerning hostile fire pay zones.

Section 3 (now subparagraphs b and c) amends paragraph 213,

dealing with certain offenses under Article 134. Paragraph 213 g

replaces the discussion of offenses involving some contraband

drugs which was found in the last paragraph of paragraph 213 b

of MCM, 1969 (Rev.). It was considered necessary to treat drug

offenses more extensively in the Manual for Court-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 comprehens i v e t r e a t m e n t o f d r u g s , w i t h a c o m p l e t e s e t o f m a x i m u m

punishments, in order to eliminate the confusion, disruption, and

disparate treatment of some drug offenses among the services in

the wake of United States 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, et al. Highlights from the WorldA23-11

ANALYSIS OF PUNITIVE ARTICLES Pun. Art. 112
wide Survey of Nonmedical Drug Use and Alcohol 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. § 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

( M a y 1 9 8 2 ) . S e e a l s o U n i t e d S t a t e s v . W i l s o n , 7 M . J . 2 9 0

(C.M.A. 1979) and cases cited therein concerning the concept of

constructive possession. With respect to the inferences described

i n t h i s s u b p a r a g r a p h a n d s u b p a r a g r a p h ( 5 ) W r o n g f u l n e s s , s e e

U n i t e d S t a t e s v . A l v a r e z , 1 0 U . S . C . M . A . 2 4 , 2 7 C . M . R . 9 8

(1958); United States v. Nabors, 10 U.S.C.M.A. 27, 27 C.M.R.

101 (1958). It is important to bear in mind that distinction between inferences and presumptions. See United States v. Mahan ,

1 M.J. 303 (C.M.R. 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. § 802(8)

and (11). See also E. Devitt and C. Blackmar, 2 Federal Jury

Practice and Instructions, § 58.03 (3d ed. 1977).

“Distribution” replaces “sale” and “transfer.” This conforms

with Federal practice, see 21 U.S.C. § 841(a), and will simplify

military practice by reducing pleading, proof, and associated multiplicity problems in drug offenses. See, e.g., United States 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 Cir. 1973).

Thus, the defense of “agency” see United States v. Fruscella, 21

U.S.C.M.A. 26, 44 C.M.R. 80 (1971), no longer applies in the

military. Cf. United States v. Snow, supra; United States v. Pruitt,

487 F.2d 1241 (8th Cir. 1973); United States v. Johnson, supra

(“procuring agent” defense abolished under 21 U.S.C. § 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); cf. United States v. Johnson,

supra; see also Mil. R. Evid. 404(b)), or in aggravation (see

paragraph 75 b (4) of MCM, 1969 (Rev.); see also United States

v. Vickers, 13 M.J. 403 (C.M.A. 1982)).

( 4 ) M a n u f a c t u r e . T h i s d e f i n i t i o n i s t a k e n f r o m 2 1 U . S . C .

§ 802(14). The exception in 21 U.S.C. § 802(14) is covered in

subparagraph (5).

(5) Wrongfulness. This subparagraph is based on the last paragraph of paragraph 213 b of MCM, 1969 (Rev.). Cf. 21 U.S.C.

§ 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. §841(a)(1). 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. 1979), cert. denied, 442 U.S. 919

(1979); United States v. Ramirez-Rodriquez, 552 F.2d 883 (9th

Cir. 1977); United States v. Blake, 484 F.2d 50 (8th Cir. 1973);

cert. denied, 417 U.S. 949 (1974). Cf. United States v. Mather,

465 F.2d 1035 (5th Cir.1972), cert. denied, 409 U.S. 1085 (1972).

Possession of 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).

(7) Certain amount. This subparagraph is based on United States

v. Alvarez, 10 U.S.C.M.A. 24, 27 C.M.R. 98 (1958); United

States v. Brown, 45 C.M.R. 416 (A.C.M.R. 1972); United States

v . B u r n s , 3 7 C . M . R . 9 4 2 ( A . F . B . R . 1 9 6 7 ) ; U n i t e d S t a t e s v .

Owens, 36 C.M.R. 909 (A.B.R. 1966).

1993 Amendment. Paragraph c was amended by adding new

paragraphs (10) and (11). Subparagraph (10) defines the term

“use” and delineates knowledge of the presence of the controlled

substance as a required component of the offense. See United

States v. Mance, 26 M.J. 244 (C.M.A. 1988). The validity of a

p e r m i s s i v e i n f e r e n c e o f k n o w l e d g e i s r e c o g n i z e d . S e e U n i t e d

States v. Ford, 23 M.J. 331 (C.M.A. 1987); United States v.

Harper, 22 M.J. 157 (C.M.A. 1986). Subparagraph (11) precludes

an accused from relying upon lack of actual knowledge when

such accused has purposefully avoided knowledge of the presence

or identity of controlled substances. See United States v. Mance,

supra, (Cox, J., concurring). When an accused deliberately avoids

knowing the truth concerning a crucial fact (i.e. presence or

identity) and there is a high probability that the crucial fact does

exist, the accused is held accountable to the same extent as one

who has actual knowledge. See United States v. Newman, 14 M.J.

474 (C.M.A. 1983). Subsection (11) follows federal authority

which equates actual knowledge with deliberate ignorance. See

United States v. Ramsey, 785 F.2d 184 (7th Cir. 1986), cert.

denied , 476 U.S. 1186 (1986).

Section 4 (now subparagraph f) amends Appendix 6c. The new

s a m p l e s p e c i f i c a t i o n s a r e b a s e d o n s a m p l e s p e c i f i c a t i o n s 1 4 4

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 (1), (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. Subp a r a g r a p h ( 6 ) i s b a s e d o n U n i t e d S t a t e s v . W i l l i a m s , 4

U.S.C.M.A. 69, 15 C.M.R. 69 (1954); United States v. Cook, 31

C.M.R. 550 (A.F.B.R. 1961). See also United States v. Getman, 2

M.J. 279 (A.F.C.M.R. 1976).

A23-12

Pun. Art. 112 APPENDIX 23
39. Article 114— Duelling

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 specification. 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

M C M , 1 9 6 9 ( R e v . ) . S e e a l s o U n i t e d S t a t e s v . K i s n e r , 1 5

U . S . C . M . A . 1 5 3 , 3 5 C . M . R . 1 2 5 ( 1 9 6 4 ) ; U n i t e d S t a t e s v .

Mamaluy, 10 U.S.C.M.A. 102, 27 C.M.R. 176 (1959); United

States v. Kersten, 4 M.J. 657 (A.C.M.R. 1977).

d . L e s s e r i n c l u d e d o f f e n s e s . S e e U n i t e d S t a t e s v . T a y l o r , 1 7

U.S.C.M.A. 595, 38 C.M.R. 393 (1968).

e . M a x i m u m p u n i s h m e n t . T h e m a x i m u m p u n i s h m e n t s w e r e

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 116— Riot or breach of peace

c. Explanation. This paragraph is based on paragraph 195 of

MCM, 1969 (Rev.) and United States v. Metcalf, 16 U.S.C.M.A.

153, 36 C.M.R. 309 (1966). The reference to “use of vile or

abusive words to another in a public place” contained in paragraph 195 b 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 specifications. Riot— see United States v. Randolf, 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 . 5 1 8 ( 1 9 7 2 ) ; U n i t e d S t a t e s v . H u g h e n s , 1 4 C . M . R . 5 0 9

(N.B.R. 1954). Subparagraph (2) is based on the language of

A r t i c l e 1 1 7 a n d U n i t e d S t a t e s v . B o w d e n , 2 4 C . M . R . 5 4 0

(A.F.B.R. 1957), pet. denied, 24 C.M.R. 311 (1957). See also

United States v. Lacy, 10 U.S.C.M.A. 164, 27 C.M.R. 238 (1959).

1986 Amendment: The listing of “Article 134— indecent language” as a lesser included offense of provoking speeches was

d e l e t e d . U n i t e d S t a t e s v . L i n y e a r , 3 M . J . 1 0 2 7 ( N . M . C . M . R .

1977), held that provoking speeches is actually a lesser included

offense of indecent language. Also, indecent language carries a

greater maximum punishment than provoking speeches, which

would be unusual for a lesser offense.

e . M a x i m u m p u n i s h m e n t . T h e m a x i m u m p u n i s h m e n t w a s i n -

creased from that set forth in paragraph 127c of MCM, 1969

(Rev.) to more accurately reflect the seriousness of the offense.

43. Article 118— Murder

a. Text.

b. Elements. Element (b) in (3), 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).

2007 Amendment: Paragraph (4) of the text and elements has

been amended for consistency with the changes to Article 118

under Section 552 of the National Defense Authorization Act for

Fiscal Year 2006, P.L. 109-163, 6 January 2006. See subsection

(d) of Section 552.

c. Explanation. This paragraph is based on paragraph 197 of

MCM, 1969 (Rev.). Subparagraphs 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 offenses. As to Article 118(3), see United

States v. Roa, 12 M.J. 210 (C.M.A. 1982).

1993 Amendment: The listed lesser included offenses of murder

under Article 118(3) were changed to conform to the rationale of

United States v. Roa, 12 M.J. 210 (C.M.A. 1982). Inasmuch as

Article 118(3) does not require specific intent, attempted murder,

voluntary manslaughter, assault with intent to murder and assault

with intent to commit voluntary manslaughter are not lesser included offenses of murder under Article 118(3).

1995 Amendment: The word “others” was replaced by the word

“another” in Article 118(3) pursuant to the National Defense

Authorization Act for Fiscal Year 1993, Pub. L. No. 102—484,

106 Stat. 2315, 2506 (1992). This change addresses the limited

language previously used in Article 118(3) as identified in United

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

44. Article 119— Manslaughter

b. Elements.

2 0 0 7 A m e n d m e n t : P a r a g r a p h ( 4 ) o f t h e e l e m e n t s h a s b e e n

amended for consistency with the changes to Article 118 under

Section 552 of the National Defense Authorization Act for Fiscal

Year 2006, P.L. 109-163, 6 January 2006. See subsection (d) of

Section 552.

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).

e. Maximum punishment.

1 9 9 4 A m e n d m e n t . T h e a m e n d m e n t t o p a r a g r a p h 4 4 e ( 1 ) i n -

creased the maximum period of confinement for voluntary manslaughter to 15 years. The 10-year maximum confinement period

was unnecessarily restrictive; an egregious case of voluntary manslaughter may warrant confinement in excess of ten years.

1994 Amendment. The amendment to paragraph 44e(2) elimin a t e d t h e a n o m a l y c r e a t e d w h e n t h e m a x i m u m a u t h o r i z e d

punishment for a lesser included offense of involuntary manslaughter was greater than the maximum authorized punishment

for the offense of involuntary manslaughter. For example, prior to

the amendment, the maximum authorized punishment for the offense of aggravated assault with a dangerous weapon was greater

than that of involuntary manslaughter. This amendment also facilitates instructions on lesser included offenses of involuntary manA23-13

ANALYSIS OF PUNITIVE ARTICLES Pun. Art. 119
slaughter. See United States v. Emmons, 31 M.J. 108 (C.M.A.

1990).

45. Article 120— Rape, sexual assault, and other

sexual misconduct

b. Elements. 2004 Amendment: Paragraph 45(b)(2) was amended

to add two distinct elements of age based upon the 1994 amendment to paragraph 45(e). See also concurrent change to R.C.M.

307(c)(3) and accompanying analysis.

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); United States v. Norris, 2

U.S.C.M.A. 236, 8 C.M.R. 36 (1953). Cf. Williams v. United

States, 327 U.S. 711 (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 153 a of MCM, 1969. See Analysis, Mil. R.

Evid. 412.

d. Lesser included offenses. 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).

1993 Amendment. The amendment to para 45 d(1) represents

an administrative change to conform the Manual with case authority. Carnal knowledge is a lesser included offense of rape

where the pleading alleges that the victim has not attained the age

of 16 years. See United States v. Baker, 28 M.J. 900 (A.C.M.R.

1989); United States v. Stratton, 12 M.J. 998 (A.F.C.M.R. 1982),

pet. denied, 15 M.J. 107 (C.M.A. 1983); United States v. Smith, 7

M.J. 842 (A.C.M.R. 1979).

e. Maximum punishment.

1994 Amendment. Subparagraph e was amended by creating

two distinct categories of carnal knowledge for sentencing purposes -- one involving children who had attained the age of 12

years at the time of the offense, now designated as subparagraph

e(2), and the other for those who were younger than 12 years.

The latter is now designated as subparagraph e(3). The punishment for the older children was increased from 15 to 20 years

confinement. The maximum confinement for carnal knowledge of

a child under 12 years was increased to life. The purpose for

these changes is to bring the punishments more in line with those

for sodomy of a child under paragraph 51e of this part and with

the Sexual Abuse Act of 1986, 18 U.S.C. §§ 2241–2245. The

alignment of the maximum punishments for carnal knowledge

with those of sodomy is aimed at paralleling the concept of

gender–neutrality incorporated into the Sexual Abuse Act.

1995 Amendment. The offense of rape was made gender neutral

and the spousal exception was removed under Article 120(a).

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

No. 102–484, 106 Stat. 2315, 2506 (1992).

Rape may “be punished by death” only if constitutionally permissible. In Coker v. Georgia, 433 U.S. 584 (1977), the Court

held that the death penalty is “grossly disproportionate and excess i v e p u n i s h m e n t f o r t h e r a p e o f a n a d u l t w o m a n , ” a n d i s

“therefore forbidden by the Eighth Amendment as cruel and unusual punishment.” Id. at 592 (plurality opinion). Coker, however,

leaves open the question of whether it is permissible to impose

the death penalty for the rape of a minor by an adult. See Coker,

433 U.S. at 595. See Leatherwood v. State, 548 So.2d 389 (Miss.

1989) (death sentence for rape of minor by an adult is not cruel

and unusual punishment prohibited by the Eighth Amendment).

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

death is grossly disproportionate for sexual assault of a minor by

an adult and consequently is forbidden by Eighth Amendment as

cruel and unusual punishment).

1998 Amendment: In enacting section 1113 of the National

Defense Authorization Act for Fiscal Year 1996, Pub. L. No. 104-

106, 110 Stat. 186, 462 (1996), Congress amended Article 120,

UCMJ, to make the offense gender neutral and create a mistake

of fact as to age defense to a prosecution for carnal knowledge.

The accused must prove by a preponderance of the evidence that

the person with whom he or she had sexual intercourse was at

least 12 years of age, and that the accused reasonably believed

that this person was at least 16 years of age.

f . S a m p l e S p e c i f i c a t i o n . 2 0 0 4 A m e n d m e n t : P a r a g r a p h 4 5 ( f ) ( 2 )

was amended to aid practitioners in charging the two distinct

categories of carnal knowledge created in 1994. For the same

reason paragraph 45(f)(1) was amended to allow for contingencies of proof because carnal knowledge is a lesser-included offense of rape if properly pleaded. See also concurrent change to

R.C.M.307(c)(3) and accompanying analysis.

2007 Amendment: Changes to this paragraph are contained in

Div. A. Title V. Subtitle E, Section 552(a)(1) of the National

Defense Authorization Act for Fiscal Year 2006, P.L. 109-163,

119 Stat. 3257 (6 January 2006), which supersedes the previous

paragraph 45, Rape and Carnal Knowledge, in its entirety and

replaces paragraph 45 with Rape, sexual assault and other sexual

misconduct. In accordance with Section 552(c) of that Act, the

amendment to the Article applies only with respect to offenses

committed on or after 1 October 2007.

Nothing in these amendments invalidates any nonjudicial punishment proceeding, restraint, investigation, referral of charges,

trial in which arraignment occurred, or other action begun prior to

1 October 2007. Any such nonjudical punishment proceeding,

restraint, investigation, referral of charges, trial in which arraignment occurred, or other action may proceed in the same manner

and with the same effect as if these amendments had not been

prescribed.

This new Article 120 consolidates several sexual misconduct

offenses and is generally based on the Sexual Abuse Act of 1986,

18 U.S.C. Sections 2241-2245. The following is a list of offenses

that have been replaced by this new paragraph 45:

(1) Paragraph 63, 134 Assault - Indecent, has been replaced in

its entirety by three new offenses under paragraph 45. See subsections (e) Aggravated Sexual Contact, (h) Abusive Sexual Contact,

and (m) Wrongful Sexual Contact.

(2) Paragraph 87, 134 Indecent Acts or Liberties with a Child,

has been replaced in its entirety by three new offenses under

paragraph 45. See subsections (g) Aggravated Sexual Contact

with a Child, (i) Abusive Sexual Contact with a Child, and (j)

Indecent Liberty with a Child.

(3) Paragraph 88, Article 134 Indecent Exposure, has been

replaced in its entirety by a new offense under paragraph 45. See

subsection (n) Indecent Exposure.

(4) Paragraph 90, Article 134 Indecent Acts with Another, has

A23-14

Pun. Art. 119 APPENDIX 23
been replaced in its entirety by a new offense under paragraph 45.

See subsection (k) Indecent Act.

(5) Paragraph 97, Article 134 Pandering and Prostitution, has

been amended. The act of compelling another person to engage in

an act of prostitution with another person will no longer be an

offense under paragraph 97 and has been replaced by a new

o f f e n s e u n d e r p a r a g r a p h 4 5 . S e e s u b s e c t i o n ( l ) , F o r c i b l e

Pandering.

c . E x p l a n a t i o n . S u b p a r a g r a p h ( 3 ) , d e f i n i t i o n o f “ i n d e c e n t , ” i s

taken from paragraphs 89.c and 90.c of the Manual (2005 ed.)

and is intended to consolidate the definitions of “indecent,” as

used in the former offenses under Article 134 of “Indecent acts or

liberties with a child,” “Indecent exposure,” and “Indecent acts

with another,” formerly at paragraphs 87, 88, and 90 of the 2005

Manual, and “Indecent language,” at paragraph 89. The application of this single definition of “indecent” to the offenses of

“Indecent liberty with a child,” “Indecent act,” and “Indecent

exposure” under Article 120 is consistent with the construction

given to the former Article 134 offenses in the 2005 Manual that

were consolidated into Article 120. See e.g. United States v.

Negron, 60 M.J. 136 (C.A.A.F. 2004).

d. Additional Lesser Included Offenses. The test to determine

whether an offense is factually the same as another offense, and

therefore lesser-included to that offense, is the “elements” test.

United States v. Foster, 40 M.J. 140, 142 (C.M.A. 1994). Under

this test, the court considers “whether each provision requires

proof of a fact which the other does not.” Blockburger, 284 U.S.

299 at 304 (1932). Rather than adopting a literal application of

the elements test, the Court stated that resolution of lesser-included claims “can only be resolved by lining up elements realistically and determining whether each element of the supposed

‘lesser’ offense is rationally derivative of one or more elements of

the other offense - and vice versa.” Foster, 40 M.J. at 146.

Whether an offense is a lesser-included offense is a matter of law

that the Court will consider de novo. United States v. Palagar, 56

M.J. 294, 296 (C.A.A.F. 2002).

e. Maximum punishment. See 1995 Amendment regarding maximum punishment of death.

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 200 a (4) was deleted as ambiguous and

overbroad. The penultimate sentence in subparagraph c(1)(d) adequately covers the point. C. Torcia, 2 Wharton’s Criminal Law

and Procedure § 393 (1980); Hall v. United States, 277 Fed. 19

(8th Cir. 1921). As to subparagraph c(1)(c) see also United States

v. Leslie, 13 M.J. 170 (C.M.A. 1982). As to subparagraph c(1)(d)

see also United States v. Smith, 14 M.J. 68 (C.M.A. 1982);

United States v. Cunningham, 14 M.J. 539 (A.C.M.R. 1981). As

to subparagraph c(1)(f), see also United States v. Kastner, 17 M.J.

11 (C.M.A. 1983); United States v. Eggleton, 22 U.S.C.M.A. 504,

47 C.M.R. 920 (1973); United States v. O’Hara, 14 U.S.C.M.A.

1 6 7 , 3 3 C . M . R . 3 7 9 ( 1 9 6 3 ) ; U n i t e d S t a t e s v . H a y e s , 8

U.S.C.M.A. 627, 25 C.M.R. 131 (1958). As to subparagraph

c ( 1 ) ( h ) ( i ) s e e a l s o U n i t e d S t a t e s v . M a l o n e , 1 4 M . J . 5 6 3

(N.M.C.M.R. 1982).

2002 Amendment: Subparagraph c(1)(h)(vi) is new. It was added to provide guidance on how unauthorized credit, debit, or

e l e c t r o n i c t r a n s a c t i o n s s h o u l d u s u a l l y b e c h a r g e d . S e e U n i t e d

States v. Duncan, 30 M.J. 1284, 289 (N.M.C.M.R. 1990) (citing

United States v. Jones, 29 C.M.R. 651 (A.B.R. 1960), petition

denied, 30 C.M.R. 417 (C.M.A. 1960)) (regarding thefts from

ATM machines). Alternative charging theories are also available,

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

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

Schaper, 42 M.J. 737 (A.F. Ct. Crim. App. 1995); and United

States v. Christy, 18 M.J. 688 (N.M.C.M.R. 1984). The key under

Article 121 is that the accused wrongfully obtained goods or

money from a person or entity with a superior possessory interest.

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 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.

1986 Amendment: The maximum punishments for larceny were

revised as they relate to larceny of military property to make

them consistent with the punishments under Article 108 and paragraph 32e, Part IV, MCM, 1984. Before this amendment, a person who stole military property faced less punishment than a

person who willfully damaged, destroyed, or disposed of military

property. The revised punishments are also consistent with 18

U.S.C. § 641.

2002 Amendment: The monetary amount affecting the maximum punishments has been revised from $100 to $500 to account

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

$100. The value has also been readjusted to realign it more

closely with the division between felony and misdemeanor penalties in civilian jurisdictions. See generally American Law Institute, Model Penal Code and Commentaries Sec. 223.1 (1980)

(suggesting $500 as the value). Although the monetary amount

effecting punishment in 18 U.S.C. Sec. 1361, Government property or contracts, and 18 U.S.C. Sec. 641, Public money, property

or records, was increased from $100 to $1000 pursuant to section

606 of the Economic Espionage Act of 1996, P. L. No. 104-294,

110 Stat. 3488 (1996), a value of $500 was chosen to maintain

deterrence, simplicity, and uniformity for the Manual’s property

offenses.

47. Article 122— Robbery

c. Explanation. This paragraph is based on paragraph 201 of

MCM, 1969 (Rev.). See also United States v. Chambers, 12 M.J.

443 (C.M.A. 1982); United States v. Washington, 12 M.J. 1036

(A.C.M.R. 1982), pet. denied, 14 M.J. 170 (1982). Subparagraph

(5) is based on United States v. Parker, 17 U.S.C.M.A. 545, 38

C.M.R. 343 (1968).

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ANALYSIS OF PUNITIVE ARTICLES Pun. Art. 122
d. Lesser included offenses. 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 inc r e a s e d d a n g e r w h e n r o b b e r y i s c o m m i t t e d w i t h a f i r e a r m

whether or not loaded or operable. Cf. 18 U.S.C. §§ 2113 and

2114; United States v. Shelton, 465 F.2d 361 (4th Cir. 1972);

United States v. Thomas, 455 F.2d 320 (6th Cir. 1972); Baker v.

United States, 412 F.2d 1069 (5th Cir. 1969). See also U.S. Dep’t

of Justice, Attorney General’s Task Force 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 United States v. Callaghan, 14 U.S.C.M.A. 231, 34 C.M.R. 11

( 1 9 6 3 ) . S e e a l s o U n i t e d S t a t e s v . W e b b , 4 6 C . M . R . 1 0 8 3

(A.C.M.R. 1972). As to share drafts see also United States v.

Palmer, 14 M.J. 731 (A.F.C.M.R. 1982); United States 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 jurisdiction.

2002 Amendment: The monetary amount affecting the maximum punishments has been revised from $100 to $500 to account

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

$100. The value has also been readjusted to realign it more

closely with the division between felony and misdemeanor penalties in civilian jurisdictions. See generally American Law Institute, Model Penal Code and Commentaries Sec. 223.1 (1980)

(suggesting $500 as the value).

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).

50. Article 124— Maiming

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

third sentence of the third paragraph of paragraph 203 of MCM,

1969 (Rev.), which was based on Hicks (see Analysis of 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).

e. Maximum punishment. 2007 Amendment: The maximum punishment for the offense of maiming was increased from 7 years

confinement to 20 years confinement, consistent with the federal

offense of maiming. 18 U.S.C. § 114.

51. Article 125— Sodomy

b. Elements. 2004 Amendment: Paragraph 51(b) was amended by

adding two factors pertaining to age based upon the 1994 amendment to paragraph 51(e) that created two distinct categories of

sodomy involving a child. See also concurrent change to R.C.M.

307(c)(3) and accompanying analysis.

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 United States v. Scoby, supra.

d. Paragraph 51e. The Analysis accompanying subparagraph 51e

is amended by inserting the following at the end thereof:

1994 Amendment. One of the objectives of the Sexual Abuse

Act of 1986, 18 U.S.C. §§ 2241–2245 was to define sexual abuse

in gender-neutral terms. Since the scope of Article 125, U.C.M.J.,

accommodates those forms of sexual abuse other than the rape

provided for in Article 120, U.C.M.J., the maximum punishments

permitted under Article 125 were amended to bring them more in

line with Article 120 and the Act, thus providing sanctions that

are generally equivalent regardless of the victim’s gender. Subparagraph e(1) was amended by increasing the maximum period

of confinement from 20 years to life. Subparagraph e(2) was

amended by creating two distinct categories of sodomy involving

a child, one involving children who have attained the age of 12

but are not yet 16, and the other involving children under the age

of 12. The latter is now designated as subparagraph e(3). The

punishment for the former category remains the same as it was

for the original category of children under the age of 16. This

amendment, however, increases the maximum punishment to life

when the victim is under the age of 12 years.

Lesser included offenses.

2007 Amendment. The former Paragraph 87 (1) (b), Article 134

Indecent Acts or Liberties with a Child, has been replaced in its

entirety by paragraph 45. The former Paragraph 63 (2) (c), Article

134 Assault - Indecent, has been replaced in its entirety by paragraph 45. The former Paragraph 90 (3) (a), Article 134 Indecent

Acts with Another, has been replaced in its entirety by paragraph

45. Lesser included offenses under Article 120 should be considered depending on the factual circumstances in each case.

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.

f. Sample specifications. 2004 Amendment: Paragraph 51(f) was

amended to aid practitioners in charging the two distinct categoA23-16

Pun. Art. 122 APPENDIX 23
ries of sodomy involving a child created in 1994. See also concurrent change to R.C.M. 307(c)(3) and accompanying analysis.

52. Article 126— Arson

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); United States 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); United States 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. § 81.

The separate punishment for simple arson of property of a value

of $100 or less has been retained because 18 U.S.C. Sec. 81 does

not cover most personal property.

2002 Amendment: The monetary amount affecting the maximum punishments has been revised from $100 to $500 to account

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

$100. The value has also been readjusted to realign it more

closely with the division between felony and misdemeanor penalties in civilian jurisdictions. See generally American Law Institute, Model Penal Code and Commentaries Sec. 223.1 (1980)

(suggesting $500 as the value). A value of $500 was chosen to

maintain deterrence, simplicity, and uniformity for the Manual’s

property offenses. 18 U.S.C. Sec. 81, Arson within special maritime and territorial jurisdiction, no longer grades the offense on

the basis of value.

53. Article 127— Extortion

c. Explanation. This paragraph is based on paragraph 206 of

M C M , 1 9 6 9 ( R e v . ) . S e e a l s o U n i t e d S t a t e s v . S c h m i d t , 1 6

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. 31, 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

patrol, master at arms, or other military or civilian law enforcement duties, has been increased based on 18 U.S.C. § 111 and 18

U.S.C. § 1114. The maximum punishment for aggravated assaults

committed with firearms has been increased based on 18 U.S.C.

§ 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).

N o t e t h a t t h e h i g h e r m a x i m u m f o r a s s a u l t w i t h a d a n g e r o u s

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.

1998 Amendment: A separate maximum punishment for assault

with an unloaded firearm was created due to the serious nature of

the offense. Threatening a person with an unloaded firearm places

the victim of that assault in fear of losing his or her life. Such a

traumatic experience is a far greater injury to the victim than that

sustained in the course of a typical simple assault. Therefore, it

calls for an increased punishment.

2007 Amendment: The maximum punishments for some aggravated assault offenses were established to recognize the increased

severity of such offenses when children are the victims. These

maximum punishments are consistent with the maximum punishments of the Article 134 offense of Child Endangerment, established in 2007.

55. Article 129— Burglary

c. Explanation. This paragraph is based on paragraph 208 of

M C M , 1 9 6 9 ( R e v . ) . S e e a l s o U n i t e d S t a t e s v . K l u t z , 9

U.S.C.M.A. 20, 25 C.M.R. 282 (1958). Subparagraph 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 § 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). See also United States v. Breen, 15

U.S.C.M.A. 658, 36 C.M.R. 156 (1966); United States v. Hall, 12

U.S.C.M.A. 374, 30 C.M.R. 374 (1961); United States v. Taylor,

12 U.S.C.M.A. 44, 3O 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 States v. Williams, 4

U.S.C.M.A. 241, 15 C.M.R. 241 (1954) (“entry”).

57. Article 131— Perjury

c. Explanation. Subparagraph (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

d e l e t e d b a s e d o n U n i t e d S t a t e s v . M a n d u j a n o , 4 2 5 U . S . 5 6 4

(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)

i s n e w a n d i s b a s e d o n P u b l i c L a w 9 4 – 5 5 0 o f 1 9 7 6 w h i c h

amended Article 131 by adding a second clause based on section

A23-17

ANALYSIS OF PUNITIVE ARTICLES Pun. Art. 131
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

§ 1746. Unsworn declarations under penalty of perjury.

Whenever, 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 sworn declaration, 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, be supported,

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. § 1621.

Text of section 1621 of title 18, United States Code

§ 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 perjury

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.

2004 Amendment: Subsection (2)(b) was amended to comply

with United States v. Gaudin, 515 U.S. 506 (1995), which held

that when materiality is a statutory element of an offense, it must

be submitted to the jury for decision. Materiality cannot be removed from the members’ consideration by an interlocutory ruling that a statement is material. See Gaudin, 515 U.S. at 521 (“It

is commonplace for the same mixed question of law and fact to

be assigned to the court for one purpose, and to the jury for

another.”); and at 517 (“The prosecution’s failure to provide minimal evidence of materiality, like its failure to provide minimal

evidence of any other element, of course raises a question of

’law’ that warrants dismissal.”).

d. Lesser included offenses.

1991 Amendment: Subparagraph d was amended by deleting

false swearing as a lesser included offense of perjury. See United

States v. Smith, 26 C.M.R. 16 (C.M.A. 1958); MCM 1984, Part

IV, para. 79c(1). Although closely related to perjury, the offense

of false swearing may be charged separately.

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.

2002 Amendment: The monetary amount affecting the maximum punishments has been revised from $100 to $500 to account

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

$100. The value has also been readjusted to realign it more

closely with the division between felony and misdemeanor penalties in civilian jurisdictions. See generally American Law Institute, Model Penal Code and Commentaries Sec. 223.1 (1980)

(suggesting $500 as the value).

59. Article 133— Conduct unbecoming an officer

and gentleman

c. Explanation. This paragraph is based on paragraph 212 of

MCM, 1969 (Rev.). See Parker v. Levy, 417 U.S. 733 (1974)

(constitutionality of Article 133). For a discussion of Article 133,

see United States v. Giordano, 15 U.S.C.M.A. 163, 35 C.M.R.

135 (1964); Nelson, Conduct Expected of an Officer and a Gentleman: Ambiguity, 12 A.F.JAG L.Rev. 124 (Spring 1970). As to

subparagraph (1), see 1 U.S.C. § 1; Pub.L. No. 94–106, § 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 specifications. Some sample specifications for Article

133 in MCM, 1969 (Rev.) were deleted solely to economize on

space.

60. Article 134— General article

Introduction. Paragraph 60 introduces the General Article.

Paragraph 61–113 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).

E x c e p t a s o t h e r w i s e n o t e d i n t h e A n a l y s e s o f p a r a g r a p h s

61–113, the offenses listed below are based on paragraph 127 c

(Table of Maximum Punishments), paragraph 213 f, and Appendix 6 (sample specifications 126–187) of MCM, 1969 (Rev.).

E i g h t o f f e n s e s p r e v i o u s l y l i s t e d ( a l l o w i n g p r i s o n e r t o d o u n -

authorized acts, criminal libel, criminal nuisance, parole violation,

statutory perjury, transporting stolen vehicle in interstate commerce, unclean accoutrements, and unclean uniform) are not list e d h e r e b e c a u s e t h e y o c c u r s o i n f r e q u e n t l y o r b e c a u s e t h e

A23-18

Pun. Art. 131 APPENDIX 23
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 213 a through e of MCM, 1969 (Rev.).

(1) In general. See Secretary of the Navy v. Avrech, 418 U.S. 676

(1974); 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 United States 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 . 4 0 9 , 1 2 C . M . R . 1 6 5 ( 1 9 5 3 ) ( a b s e n c e o f f e n s e s ) ;

United States 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 U.S.C.M.A. 407, 45

C.M.R. 181 (1972) (concealing stolen property); United States v.

Maze, 21 U.S.C.M.A. 260, 45 C.M.R. 34 (1972) (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. 81 (1957)

(graft, fraudulent misrepresentation).

( 5 ) ( b ) C a p i t a l o f f e n s e . S e e U n i t e d S t a t e s v . F r e n c h , 1 0

U.S.C.M.A. 171, 27 C.M.R. 245 (1959).

( 6 ) ( b ) S p e c i f i c a t i o n s u n d e r c l a u s e 3 . S e e U n i t e d S t a t e s 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)Specifications for clause 1 or 2 offenses 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. Article 134— (Adultery)

c. Explanation.

(1) Subparagraph c(2) is based on United States. v. Snyder, 4

C.M.R. 15 (1952); United States v. Ruiz, 46 M.J. 503 (A. F. Ct.

Crim. App. 1997); United States v. Green, 39 M.J. 606 (A.C.M.R.

1994); United States v. Collier, 36 M.J. 501 (A.F.C.M.R. 1992);

United States v. Perez, 33 M.J. 1050 (A.C.M.R. 1991); United

States v. Linnear, 16 M.J. 628 (A.F.C.M.R. 1983); Part IV, paragraph 60c(2)(a) of MCM. Subparagraph c(3) is based on United

States v. Poole, 39 M.J. 819 (A.C.M.R. 1994). Subparagraph c(4)

is based on United States v. Fogarty, 35 M.J. 885 (A.C.M.R.

1992); Military Judges’ Benchbook, DA PAM 27-9, paragraph 3-

62-1 and 5-11-2 (30 Sep. 1996). See R.C.M. 916(j) and (l)(1) for

a general discussion of mistake of fact and ignorance, which

cannot be based on a negligent failure to discover the true facts.

(2) When determining whether adulterous acts constitute the

offense of adultery under Article 134, commanders should consider the listed factors. Each commander has discretion to dispose

of offenses by members of the command. As with any alleged

offense, however, under R.C.M. 306(b) commanders should dispose of an allegation of adultery at the lowest appropriate level.

As the R.C.M. 306(b) discussion states, many factors must be

taken into consideration and balanced, including, to the extent

practicable, the nature of the offense, any mitigating or extenuating circumstances, the character and military service of the milit a r y m e m b e r , a n y r e c o m m e n d a t i o n s m a d e b y s u b o r d i n a t e

commanders, the interests of justice, military exigencies, and the

effect of the decision on the military member and the command.

The goal should be a disposition that is warranted, appropriate,

and fair. In the case of officers, also consult the explanation to

paragraph 59 in deciding how to dispose of an allegation of

adultery.

63. Article 134— (Assault— indecent)

c. Explanation. This paragraph is based on paragraph 213 f(2) of

M C M , 1 9 6 9 ( R e v . ) . S e e U n i t e d S t a t e s v . C a i l l o u e t t e , 1 2

U.S.C.M.A. 149, 30 C.M.R. 149 (1961) regarding specific intent.

S e e a l s o U n i t e d S t a t e s v . H e a d s p e t h , 2 U . S . C . M . A . 6 3 5 , 1 0

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.

§ 1 (“unless the context indicates otherwise ... words importing

the masculine gender include the feminine as well ....”).

d. Lesser included offenses. 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).

2007 Amendment: This paragraph has been replaced in its entirety by paragraph 45. See Article 120 (e) Aggravated Sexual

Contact, (h) Abusive Sexual Contact, and (m) Wrongful Sexual

Contact.

64. Article 134— (Assault— with intent to commit

murder, voluntary manslaughter, rape, robbery,

sodomy, arson, burglary, or housebreaking)

c. Explanation. This paragraph is based on paragraph 213 f(1) of

MCM, 1969 (Rev.).

2007 Amendment. This paragraph has been amended for consistency with the changes to Article 118 under Section 552 of the

National Defense Authorization Act for Fiscal Year 2006, P.L.

109-163, 6 January 2006. See subsection (d) of Section 552.

65. Article 134— (Bigamy)

c. Explanation. This paragraph is based on paragraph 213 f(9) of

M C M , 1 9 6 9 ( R e v . ) . S e e a l s o U n i t e d S t a t e s v . P r u i t t , 1 7

U.S.C.M.A. 438, 38 C.M.R. 236 (1968), concerning the defense

of mistake.

66. Article 134— (Bribery and graft)

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

States v. Marshall, 18 U.S.C.M.A. 426, 40 C.M.R. 138 (1969);

A23-19

ANALYSIS OF PUNITIVE ARTICLES Pun. Art. 134
United States 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 offenses. Graft is listed as a lesser included

offense of bribery. See United States v. Raborn, 575 F.2d 688

(9th Cir. 1978); United States v. Crutchfield, 547 F.2d 496 (9th

Cir. 1977).

e. Maximum punishment. 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.

§ 201.

67. Article 134— (Burning with intent to defraud)

c. Explanation. This paragraph is new and is self-explanatory.

For a discussion of this offense see United States v. Fuller, 9

U.S.C.M.A. 143, 25 C.M.R. 405 (1958).

68. Article 134— (Check, worthless, making and

uttering— by dishonorably failing to maintain

funds)

c. Explanation. This paragraph is based on paragraph 213 f(8) of

M C M , 1 9 6 9 ( R e v . ) . S e e a l s o U n i t e d S t a t e s v . G r o o m , 1 2

U.S.C.M.A. 11, 30 C.M.R. 11 (1960).

d . L e s s e r i n c l u d e d o f f e n s e . S e e U n i t e d S t a t e s v . D o w n a r d , 6

U.S.C.M.A. 538, 20 C.M.R. 254 (1955).

68a. Article 134— (Child Endangerment)

2 0 0 7 A m e n d m e n t . T h i s o f f e n s e i s n e w t o t h e M a n u a l f o r

Courts-Martial. Child neglect was recognized in United States v.

Vaughan, 58 M.J. 29 (C.A.A.F. 2003). It is based on military

custom and regulation as well as a majority of state statutes and

captures the essence of child neglect, endangerment, and abuse.

69. Article 134— (Cohabitation, 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); United States 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)

Introduction. 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 213 f(13)

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 failing to

pay)

c. Explanation. This paragraph is based on paragraph 213 f(7) of

M C M , 1 9 6 9 ( R e v . ) . S e e a l s o U n i t e d S t a t e s v . K i r k s e y , 6

U.S.C.M.A. 556, 20 C.M.R. 272 (1955).

72. Article 134— (Disloyal statements)

c. Explanation. This paragraph is based on paragraph 213 f(5) of

MCM, 1969 (Rev.); Parker v. Levy, 417 U.S. 733 (1974); United

States v. Priest, 21 U.S.C.M.A. 564, 45 C.M.R. 338 (1972);

United States v. Gray, 20 U.S.C.M.A. 63, 42 C.M.R. 255 (1970);

United States v. Harvey, 19 U.S.C.M.A. 539, 42 C.M.R. 141

(1970).

73. Article 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)

andUnited 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 40c).

74. Article 134— (Drinking liquor with prisoner)

c. Explanation. This paragraph is new.

75. Article 134— (Drunk Prisoner)

c. Explanation. See Analysis, paragraph 35.

76. Article 134— (Drunkenness— incapacitation

for performance of duties through prior wrongful

overindulgence in intoxicating liquor or drugs)

c . E x p l a n a t i o n . T h i s p a r a g r a p h i s b a s e d o n U n i t e d S t a t e s 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).

77. Article 134— (False or unauthorized pass

offenses)

c. Explanation. This paragraph is based on paragraph 213 f(11)

of MCM, 1969 (Rev.). See also United States v. 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).

78. Article 134— (False pretenses, obtaining

services under)

c . E x p l a n a t i o n . T h i s p a r a g r a p h i s b a s e d o n U n i t e d S t a t e s 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. 1981); United States v. Case,

37 C.M.R. 606 (A.B.R. 1966).

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 similar offenses in civilian jurisdictions.

2002 Amendment: The monetary amount affecting the maximum punishments has been revised from $100 to $500 to account

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

$100. The value has also been readjusted to realign it more

closely with the division between felony and misdemeanor penalA23-20

Pun. Art. 134 APPENDIX 23
ties in civilian jurisdictions. See generally American Law Institute, Model Penal Code and Commentaries Sec. 223.1 (1980)

(suggesting $500 as the value).

79. Article 134— (False swearing)

c. Explanation. This paragraph is based on paragraph 213 f(4) of

M C M , 1 9 6 9 ( R e v . ) . S e e a l s o U n i t e d S t a t e s v . W h i t a k e r , 1 3

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. Article 134— (Firearm, discharging— through

negligence)

c . E x p l a n a t i o n . T h i s p a r a g r a p h i s b a s e d o n U n i t e d S t a t e s v .

Darisse, 17 U.S.C.M.A. 29, 37 C.M.R. 293 (1967); United States

v . B a r r i e n t e s , 3 8 C . M . R . 6 1 2 ( A . B . R . 1 9 6 7 ) . T h e t e r m

“carelessness” was changed to “negligence” because the latter is

defined in paragraph 85c(2).

81. Article 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 offense. 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 United States 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)

I n t r o d u c t i o n . T h i s p a r a g r a p h i s n e w t o t h e M a n u a l f o r

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 United

States v. Pitasi, 20 U.S.C.M.A. 601, 44 C.M.R. 31 (1971); United

S t a t e s v . F r e e , 1 4 C . M . R . 4 6 6 ( N . B . R . 1 9 5 3 ) . S e e a l s o W .

Winthrop, Military Law and Precedents 41, 716 n.44 (2d ed.

1 9 2 0 r e p r i n t ) ; S t a t o n v . F r o e h l k e , 3 9 0 F . S u p p . 5 0 3 ( 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:

Ambiguity, 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 specification. 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 . M a x i m u m p u n i s h m e n t . T h e m a x i m u m p u n i s h m e n t w a s i n -

creased from that provided in paragraph 127 c of MCM, 1969

(Rev.) to expressly authorize confinement. Cf. the second paragraph of paragraph 127 c (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. Article 134— (Homicide, negligent)

c. Explanation. This paragraph is based on paragraph 213 f(12)

of MCM, 1969 (Rev.); United States v. Kick, 7 M.J. 82 (C.M.A.

1979).

e. Maximum punishment.

1994 Amendment: Subparagraph e was amended to increase the

maximum punishment from a bad conduct discharge, total forfeitures, and confinement for 1 year, to a dishonorable discharge,

total forfeitures, and confinement for 3 years. This eliminated the

i n c o n g r u i t y c r e a t e d b y h a v i n g t h e m a x i m u m p u n i s h m e n t f o r

drunken driving resulting in injury that does not necessarily involve death exceed that of negligent homicide where the result

must be the death of the victim.

86. Article 134— (Impersonating a commissioned,

warrant, noncommissioned, 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);

U n i t e d S t a t e s v . M e s s e n g e r , 2 U . S . C . M . A . 2 1 , 6 C . M . R . 2 1

(1952).

87. Article 134— (Indecent acts or liberties with a

child)

c. Explanation. This paragraph is based on paragraph 213 f(3) of

M C M , 1 9 6 9 ( R e v . ) . S e e a l s o U n i t e d S t a t e s v . K n o w l e s , 1 5

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. 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. 813, 25 C.M.R. 486 (1958). “Lewd” and “lascivious”

were deleted because they are synonymous with indecent. See id.

See also paragraph 90c.

2007 Amendment. This paragraph has been replaced in its entirety by paragraph 45. See Article 120 (g) Aggravated Sexual

Contact with a Child, (i) Abusive Sexual Contact with a Child,

and (j) Indecent Liberty with Child.

A23-21

ANALYSIS OF PUNITIVE ARTICLES Pun. Art. 134
88. Article 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.

411 (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.

2007 Amendment. This paragraph has been replaced in its entirety by paragraph 45. See Article 120 (n) Indecent Exposure.

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. §§ (“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 United

States 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.

1986 Amendment: “Provoking speeches and gestures” was

added as a lesser included offense. United States v. Linyear, 3

M.J. 1027 (N.M.C.M.R. 1977).

1995 Amendment: The second sentence is new. It incorporates

a test for “indecent language” adopted by the Court of Military

Appeals in United States v. French, 31 M.J. 57, 60 (C.M.A.

1990). The term “tends reasonably” is substituted for the term

“calculated to” to avoid the misinterpretation that indecent language is a specific intent offense.

e . M a x i m u m p u n i s h m e n t . T h e m a x i m u m p u n i s h m e n t i n c a s e s

other than communication to a child under the age of 16 has been

reduced. It now parallels that for indecent exposure.

90. Article 134— (Indecent acts with another)

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

States v. Holland, 12 U.S.C.M.A. 444, 31 C.M.R. 30 (1961);

United States v. Gaskin, 12 U.S.C.M.A. 419, 31 C.M.R. 5 (1962);

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— (Jumping from vessel into the

water)

Introduction. This offense is new to the Manual for CourtsMartial. 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. Article 134— (Kidnapping)

Introduction. This offense is new to the Manual for CourtsMartial. It is based generally on 18 U.S.C. § 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. § 13 ( see paragraph 60), e.g., United States v. Picotte,

12 U.S.C.M.A. 196, 30 C.M.R. 196 (1961); in violation of Federal law (18 U.S.C. § 1201) as applied 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

p l e a d i n g a n d p r o v i n g k i d n a p p i n g i n c o u r t s - m a r t i a l . S e e , 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.

§ 1201 was amended to include kidnapping within the special

maritime and territorial jurisdiction of the United States. Pub.L.

92–539, § 201, 86 Stat. 1072 (1972). Consequently, reference to

state law through 18 U.S.C. § 13 is no longer necessary (or

authorized) in most cases. See United States v. Perkins, supra.

Nevertheless, there remains some uncertainty concerning kidnapping as an offense in the armed forces, as noted 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. § 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 (1964); Gooch v. United States 297 U.S. 124

(1936); Gawne v. United States, 409 F.2d 1399 (9th Cir. 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, Fede r a l J u r y P r a c t i c e a n d I n s t r u c t i o n s § 4 3 . 0 9 ( 1 9 7 7 ) ; M i l i t a r y

Judges’ Benchbook, supra at paragraph 3–190. See also Amsler v.

United States, 381 F.2d 37 (9th Cir. 1967); Davidson v. United

States, 312 F.2d 163 (8th Cir. 1963).

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 § 43.05.

Subparagraph (2) is based on United States v. DeLaMotte, 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 § 2 (1962).

Subparagraph (3) is based on Chatwin v. United States, supra;

2 E. Devitt and C. Blackmar, supra at § 43.09. See also Hall v.

A23-22

Pun. Art. 134 APPENDIX 23
United States, 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. § 1201; 2 E.

Devitt and C. Blackmar, supra § § 43.05, 43.06, 43.10. See also

U n i t e d S t a t e s v . H o o g , s u p r a . T h e s e c o n d s e n t e n c e i n s u b -

paragraph (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. § 1201. A parent

taking a child in violation of a custody decree may violate state

law or 18 U.S.C. § 1073. See 18 U.S.C.A. § 1073 Historical and

Revision Note (West Supp. 1982). See also paragraph 60 c(4).

e. Maximum punishment. The maximum punishment is based on

18 U.S.C. § 1201. See also United States v. Jackson, supra.

93. Article 134— (Mail: taking, opening, secreting,

destroying, or stealing)

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

States v. Gaudet, 11 U.S.C.M.A. 672, 29 C.M.R. 488 (1960);

United States v. 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 United

States 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 specifications. “Lewd” and “lascivious” were eliminated because they are synonymous with “obscene.” See Analysis, paragraph 90 c.

95. Article 134— (Misprision of serious offense)

c. Explanation. This paragraph is based on paragraph 213 f(6) of

MCM, 1969 (Rev.). The term “serious offense” is substituted for

“felony” to make clear that concealment of serious military offenses, as well a serious civilian offenses, is an offense. Subsection (1) is based on Black’s Law Dictionary 902 (5th ed. 1979).

See also United States v. Daddano, 432 F.2d 1119 (7th Cir.

1970); United States v. Perlstein, 126 F.2d 789 (3d Cir.), cert.

denied, 316 U.S. 678 (1942); 18 U.S.C. § 4.

96. Article 134— (Obstructing justice)

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. § § 1503, 1505, 1510, 1512, 1513; United States v. Chodkowski, 11 M.J. 605 (A.F.C.M.A. 1981).

f. Sample specification.

1991 Amendment: The form specification was amended by

deleting the parentheses encompassing “wrongfully” as this language is not optional, but is a required component of a legally

sufficient specification.

96a. Article 134— (Wrongful interference with an

adverse administrative proceeding)

1993 Amendment. Paragraph 96 a is new and proscribes

conduct that obstructs administrative proceedings. See generally

18 U.S.C. 1505, Obstruction of proceedings before departments,

agencies, and committees. This paragraph, patterned after paragraph 96, covers obstruction of certain administrative proceedings

not currently covered by the definition of criminal proceeding

found in paragraph 96 c. This paragraph is necessary given the

i n c r e a s e d n u m b e r o f a d m i n i s t r a t i v e a c t i o n s i n i t i a t e d i n e a c h

service.

97. Article 134— (Pandering and prostitution)

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

S t a t e s v . A d a m s , 1 8 U . S . C . M . A . 3 1 0 , 4 0 C . M . R . 2 2 ( 1 9 6 6 ) ;

United State 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. § 1384.

2007 Amendment: This paragraph has been amended. The act

of compelling another person to engage in an act of prostitution

with another person will no longer be punished under paragraph

97 and has been replaced by a new offense under paragraph 45.

See Article 120 (l) Forcible Pandering.

97a. Article 134— (Parole, Violation of)

1998 Amendment. The addition of paragraph 97a to Part IV,

Punitive Articles, makes clear that violation of parole is an offense under Article 134, UCMJ. Both the 1951 and 1969 Manuals

for Courts-Martial listed the offense in their respective Table of

Maximum Punishments. No explanatory guidance, however, was

contained in the discussion of Article 134, UCMJ in the Manual

for Courts-Martial. The drafters added paragraph 97a to ensure

that an explanation of the offense, to include its elements and a

sample specification, is contained in the Manual for Courts-Martial, Part IV, Punitive Articles. See generally United States v.

Faist, 41 C.M.R. 720 (ACMR 1970); United States v. Ford, 43

C.M.R. 551 (ACMR 1970).

98. Article 134— (Perjury: subornation of)

c. Explanation. This paragraph is new. It is based on 18 U.S.C.

§ 1622 which applies to any perjury. See 18 U.S.C. § 1621. See

generally R. Perkins, Criminal Law 466–67 (2d ed. 1969). See

also the Analysis, paragraph 57; United States v. Doughty, 14

U . S . C . M . A . 5 4 0 , 3 4 C . M . R . 3 2 0 ( 1 9 6 4 ) ( r e s j u d i c a t a ) ; U n i t e d

States v. Smith, 49 C.M.R. 325 (N.C.M.R. 1974) (pleading).

99. Article 134— (Public 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

r e a s o n s . S e e U n i t e d S t a t e s v . M a z e , 2 1 U . S . C . M . A . 2 6 0 , 4 5

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.

§ 2071.

f. Sample specification. The specification contained in Appendix

A23-23

ANALYSIS OF PUNITIVE ARTICLES Pun. Art. 134
6c, no. 172, from MCM, 1969 (Rev.) was modified by deleting

the word “steal” because this would be covered by “remove.”

100. Article 134— (Quarantine: medical, 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. Putting a person “on quarters” or other otherwise

excusing a person from duty because of illness does not of itself

constitute a medical quarantine.

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.

100a. Article 134— (Reckless endangerment)

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

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

Code art. 27, § 120. The definitions of “reckless” and “wanton”

have been taken from Article 111 (drunken or reckless driving).

The definition of “likely to produce grievous bodily harm” has

been taken from Article 128 (assault).

2004 Amendment: The sample specification was amended to

add the word “wantonly” to make the sample specification consistent with the elements. The phrase “serious bodily harm” has

been changed to read “grievous bodily harm” in the sample specification to parallel the language in the elements. Similarly, in the

Explanation, the phrase “serious injury” was modified to read

“grievous bodily harm.” The format of the sample specification

was also modified to follow the format of other sample specifications in the MCM.

101. Article 134— (Requesting commission of an

offense)

Introduction. This offense is new to the Manual for CourtsMartial, 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.

1990 Amendment: The offense of ’requesting the commission

of an offense’ was deleted. Solicitation of another to commit an

offense, whether prosecuted under Article 82 or 134, UCMJ, is a

specific intent offense. See United States v. Mitchell, 15 M.J. 214

(C.M.A. 1983). The preemption doctrine precludes the creation of

a lesser included offense of solicitation which does not require

specific intent. See United States v. Taylor, 23 M.J. 314 (C.M.A.

1987).

102. Article 134— (Restriction; breaking)

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

20 b , 126 g, 131 c, and 174 b 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. Article 134— (Seizure: destruction, removal,

or disposal of property to prevent)

Introduction. This offense is new. It is based on 18 U.S.C.

§ 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); United States 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 F.Supp. 970 (D.Del. 1971).

c. Explanation. The second sentence is based on United States v.

Gibbons, supra. Cf. 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. § 2232.

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

avoid service)

c. Explanation. 1995 Amendment: This offense is based on paragraph 183 a of MCM, U.S. Army, 1949; United States v. Ramsey,

35 M.J. 733 (A.C.M.R. 1992), aff’d, 40 M.J. 71 (C.M.A. 1994);

United States v. Taylor, 38 C.M.R. 393 (C.M.A. 1968); see generally TJAGSA Practice Note, Confusion About Malingering and

Attempted Suicide, The Army Lawyer, June 1992, at 38.

e. Maximum punishment. 1995 Amendment: The maximum punishment for subsection (1) reflects the serious effect that this

offense may have on readiness and morale. The maximum punishment reflects the range of the effects of the injury, both in

degree and duration, on the ability of the accused to perform

work, duty, or service. The maximum punishment for subsection

(1) is equivalent to that for offenses of desertion, missing movement through design, and certain violations of orders. The maximum punishment for subsection (2) is less than the maximum

punishment for the offense of malingering under the same circumstances because of the absence of the specific intent to avoid

work, duty, or service. The maximum punishment for subsection

(2) is equivalent to that for nonaggravated offenses of desertion,

willfully disobeying a superior commissioned officer, and nonaggravated malingering by intentional self-inflicted injury.

f. Sample specification. 1995 Amendment: See appendix 4, paragraph 177 of MCM, U.S. Army, 1949. Since incapacitation to

perform duties is not an element of the offense, language relating

to “unfitting himself for the full performance of military service”

from the 1949 MCM has been omitted. The phrase “willfully

injure” has been changed to read “intentionally injure” to parallel

the language contained in the malingering specification under

Article 115.

104. Article 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

A23-24

Pun. Art. 134 APPENDIX 23
f r o m U n i t e d S t a t e s v . M u l d r o w , 4 8 C . M . R . 6 3 , 6 5 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. Article 134— (Soliciting another to commit

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 offenses. See United States v. Benton, 7 M.J.

606 (N.C.M.R. 1979), pet. denied, 8 M.J. 227 (1980).

1990 Amendment: Listing of “Article 134 — Requesting another to commit an offense, wrongful communication of lang u a g e ” a s a l e s s e r i n c l u d e d o f f e n s e o f s o l i c i t i n g a n o t h e r t o

commit an offense was deleted in conjunction with the deletion of

such a request as a substantive offense. See United States v.

Taylor, 23 M.J. 314 (C.M.A. 1987); and, the Analysis, paragraph

101.

e. Maximum punishment. See United States v. Benton, supra.

February 1986 Amendment: The Committee considered maximum imprisonment for 5 years inappropriate for the offense of

solicitation to commit espionage under new Article 106a. A maximum punishment authorizing imprisonment for life is more consistent with the serious nature of the offense of espionage.

106. Article 134— (Stolen property: knowingly

receiving, buying, concealing)

c. Explanation. This paragraph is based on paragraph 213 f(14)

of MCM, 1969 (Rev.). and 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). 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. Maximum punishment. 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.

2002 Amendment: The monetary amount affecting the maximum punishments has been revised from $100 to $500 to account

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

$100. The value has also been readjusted to realign it more

closely with the division between felony and misdemeanor penalties in civilian jurisdictions. See generally American Law Institute, Model Penal Code and Commentaries Sec. 223.1 (1980)

(suggesting $500 as the value).

107. Article 134— (Straggling)

c. Explanation. This paragraph is new and is based on Military

J u d g e s ’ B e n c h b o o k , D A P A M 2 7 – 9 , p a r a g r a p h 3 – 1 8 0 ( M a y

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 . S a m p l e s p e c i f i c a t i o n . “ D u l y a p p o i n t e d ” w h i c h a p p e a r e d i n

front of the words “board of officers” in sample specification no.

174, Appendix 6 of MCM, 1969 (Rev.) was deleted. This is

because all of the bodies under this paragraph must be properly

convened or appointed. Summary courts-martial were expressly

added to the sample specification to make clear that this offense

may occur before a summary court-martial.

109. Article 134— (Threat or hoax: bomb)

Introduction. This offense is new to the Manual for CourtsMartial. It is based generally on 18 U.S.C. § 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.R. 1982).

c . E x p l a n a t i o n . T h i s p a r a g r a p h i s b a s e d o n M i l i t a r y J u d g e s ’

Benchbook, supra at paragraph 3–189.

e. Maximum punishment. The maximum punishment is based on

18 U.S.C. § 844(e).

110. Article 134— (Threat, communicating)

c. Explanation. This paragraph is taken from paragraph 213 f(10)

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).

111. Article 134— (Unlawful entry)

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

States v. Breen, 15 U.S.C.M.A. 658, 36 C.M.R. 156 (1966);

United States 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,

3 0 C . M . R . 4 4 ( 1 9 6 0 ) ( a i r c r a f t ) ; U n i t e d S t a t e s v . S u t t o n , 2 1

U.S.C.M.A. 344, 45 C.M.R. 118 (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 United

States v. Tobin, 17 U.S.C.M.A. 625, 38 C.M.R. 423 (1968);

United States v. Bluel, 10 U.S.C.M.A. 67, 27 C.M.R. 141 (1958);

United States v. Thompson, 3 U.S.C.M.A. 620, 14 C.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.

A23-25

ANALYSIS OF PUNITIVE ARTICLES Pun. Art. 134

APPENDIX 24

ANALYSIS OF NONJUDICIAL 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. 3–4 b (1 Sep. 1982); JAGMAN sec.

0101. Cf. Article 37. Subparagraph (3) is based on the second

paragraph 129b of MCM, 1969 (Rev.).

e. Minor offenses. This paragraph is derived from paragraph 128b

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.

(1) Double punishment prohibited. This subparagraph is taken

from the first paragraph of paragraph 128d of 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 punishment prohibited. This paragraph is taken

from the second paragraph of paragraph 128 d of MCM, 1969

(Rev.).

(3) Multiple punishment prohibited. This paragraph is based on

the guidance for court-martial offenses, found in paragraph 30g

and 33 h of MCM, 1969 (Rev.).

(4) Statute of limitations. This paragraph restates the requirements of Article 43(c) regarding nonjudicial punishment.

(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 of nonjudicial punishment to administrative corrective measures. This paragraph is derived from paragraph 128c

o f M C M , 1 9 6 9 ( R e v . ) a n d s e r v i c e r e g u l a t i o n s . S e e e . g . , A R

27–10, para. 3–4 (1 Sep. 1982).

h. Effect of errors. This paragraph is taken from paragraph 130 of

MCM, 1969 (Rev.).

2. Who may impose nonjudicial punishment

This paragraph is taken from paragraph 128a of MCM, 1969

(Rev.) and service regulations. See, e.g., AR 27–10, para. 3–7 (1

Sep. 1982); JAGMAN sec. 0101; AFR 111–9, para. 3 (31 Aug.

1979). Additional guidance in this area is left to Secretarial regulation, in accordance with the provisions of Article 15(a).

3. Right 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.

1911, 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, 9 M.J. 300, 320–21 (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 of Military Article

15 Punishments for Minor Offenses 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 punishments

where such opportunity was not afforded (except when the member was attached to or embarked in a vessel) were held inadmissible in courts-martial.

1986 Amendment: Subparagraph (c)(2) was amended to state

clearly that a servicemember has no absolute right to refuse to

appear personally before the person administering the nonjudicial

p u n i s h m e n t p r o c e e d i n g . I n a d d i t i o n , P a r t V w a s a m e n d e d

throughout to use the term “nonjudicial punishment authority” in

circumstances where the proceeding could be administered by a

commander, officer in charge, or a principal assistant to a general

court-martial convening authority or general or flag officer.

5. Punishments

This paragraph is taken from paragraph 131 of MCM, 1969

(Rev.). Subparagraph b(2)(b)4 is also based on S.Rep. 1911, 87th

Cong., 1st Sess. 7 (1962). Subparagraph c(4) is also based on id.

at 6–7 and Hearings Before a Subcomm. of the 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 131 d 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 determinA24-1
ing an appropriate punishment and make the implementation of

that punishment more efficient and understandable.

1987 Amendment: Subparagraph e was redesignated as subparagraph g and new subparagraphs e and f were added to implement the amendments to Articles 2 and 3, UCMJ, contained in

the “Military Justice Amendments of 1986,” tit. VIII, § 804, National Defense Authorization Act for fiscal year 1987, Pub. L. No.

99–661, 100 Stat. 3905 (1986).

1990 Amendment: Subsection (c)(8) was amended to incorporate the statutory expansion of jurisdiction over reserve component personnel provided in the Military Justice Amendments of

1990, tit. XIII, § 1303, National Defense Authorization Act of

Fiscal Year 1990, Pub. L. 101–189, 103 Stat. 1352 (1989).

6. Suspension, mitigation, remission, and setting

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 111–9, 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.

S u b p a r a g r a p h a ( 4 ) p r o v i d e s a p r o c e d u r e f o r v a c a t i o n o f s u s -

pended nonjudicial punishment. This procedure parallels the proc e d u r e f o u n d s u f f i c i e n t t o m a k e a d m i s s i b l e i n c o u r t s - m a r t i a l

records of vacation of suspended nonjudicial punishment. United

States v. Covington, 10 M.J. 64 (C.M.A. 1980).

1990 Amendment: A new subsection a(4) was added to permit

punishment imposed under Article 15 to be suspended based on

conditions in addition to violations of the UCMJ. This affords the

same flexibility given to authorities who suspend punishment

adjudged at court-martial under R.C.M. 1108(c). Experience has

demonstrated the necessity and utility of such flexibility in the

nonjudicial punishment context.

7. Appeals

This paragraph is taken from paragraph 135 of MCM, 1969

( R e v . ) a n d s e r v i c e r e g u l a t i o n s d e a l i n g w i t h a p p e a l s . S e e A R

27–10, paras. 3–29 through 3–35 (1 Sep. 1982); JAGMAN 0101;

AFR 111–9, para. 8 (31 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 court-martial practice and

intended to ensure that procedural errors do not prevent appropriate disposition of a disciplinary matter.

8. Records of nonjudicial punishment

This paragraph is taken from Article 15(g) and paragraph

133c of MCM, 1969 (Rev.).

A24-2

Nonjud. Pun. 5. APPENDIX 24
APPENDIX 25

HISTORICAL EXECUTIVE ORDERS

EXECUTIVE ORDER 12473

AS AMENDED BY EXECUTIVE ORDER

12484, 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 (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, 1103(j), 1105-1107, 1110-1114, 1201,

and 1203 shall not apply to any case in which the

findings and sentence were adjudged by a courtmartial 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 IV 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

a u t h o r i z e d p u n i s h m e n t s h a l l a p p l y ; A n d p r o v i d e d

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 in 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.

T h e M a n u a l f o r C o u r t s - M a r t i a l , 1 9 6 9 , U n i t e d

S t a t e s ( R e v i s e d e d i t i o n ) , p r e s c r i b e d b y E x e c u t i v e

Order No. 11476, as amended by Executive Order

Nos. 11835, 12018, 12198, 12233, 12306, 12315,

12340, 12383, and 12460 is hereby rescinded, effective August 1, 1984.

The Secretary of Defense shall cause this Manual

to be reviewed 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

July 13, 1984

A25-1
EXECUTIVE ORDER 12550

AMENDMENTS TO THE MANUAL FOR

COURTS-MARTIAL, UNITED STATES, 1984

By 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), in order to prescribe amendm e n t s t o t h e M a n u a l f o r C o u r t s - M a r t i a l , U n i t e d

S t a t e s , 1 9 8 4 , p r e s c r i b e d b y E x e c u t i v e O r d e r N o .

12473, as amended by Executive Order No. 12484,

it is hereby ordered as follows:

Section 1. Part II of the Manual for Courts-Martial,

United States, 1984, is amended as follows:

a. R.C.M. 707(a) is amended to read as follows:

b. R.C.M. 805(b) is amended by

c. R.C.M. 903(c)(3) is amended by

d. R.C.M. 909 is amended

e. R.C.M. 916(e)(3) is amended by

f. R.C.M. 920(e)(2) is amended by

g. R.C.M. 921(d) is amended by

h. R.C.M. 922(b) is amended

i. R.C.M. 1001 is amended

j. R.C.M. 1003(b)(10)(B) is amended by

k. R.C.M. 1004 is amended

l. R.C.M. 1010 is amended

m. R.C.M. 1106(b) is amended by

n. R.C.M. 1114(c) is amended by

Section 2. Part III of the Manual for Courts-Martial,

United States, 1984, is amended as follows:

a. Mil. R. Evid. 304 is amended as follows:

b. Mil. R. Evid. 311 is amended as follows:

c. Mil. R. Evid. 609(e) is amended by

d. Mil. R. Evid. 804(a) is amended by

Section 3. Part IV of the Manual for Courts-Martial,

United States, 1984, is amended as follows:

a. Paragraph 16 is amended

b. Part IV is amended by inserting the following

new paragraph after paragraph 30:

c. Part IV is amended by adding the following new

sentence at the end of paragraph 105e:

Section 4. Part V of the Manual for Courts-Martial,

United States, 1984, is amended as follows:

Section 5. The amendments to Mil. R. Evid. 704,

which were implemented on 10 April 1985 pursuant

to Mil. R. Evid. 1102, are hereby rescinded; Provided, That this rescission shall not apply in the trial

of any case in which arraignment occurred while

such amendments were in effect.

Section 6. These amendments shall take effect on 1

M a r c h 1 9 8 6 , w i t h r e s p e c t t o a l l c o u r t - m a r t i a l

processes taken on and after that date: Provided,

That nothing contained in these amendments shall be

construed to invalidate any nonjudicial punishment

p r o c e e d i n g , r e s t r a i n t , i n v e s t i g a t i o n , r e f e r r a l o f

c h a r g e s , t r i a l i n w h i c h a r r a i g n m e n t o c c u r r e d , o r

other action begun prior to that date, and any such

restraint, investigation, referral of charges, trial, or

other action may proceed in the same manner and

with the same effect as if these amendments had not

been prescribed; Provided further, That the amendments made in Rule for Court-Martial 1004(c) shall

apply in the trial of offenses committed on or after 1

March 1986; Provided further, That nothing contained in these amendments shall be construed to

i n v a l i d a t e a n y c a p i t a l s e n t e n c i n g p r o c e e d i n g c o n -

d u c t e d p r i o r t o 1 M a r c h 1 9 8 6 , a n d a n y s u c h

proceeding shall be completed and reviewed in the

same manner and with the same effect as if these

amendments had not been prescribed; Provided further, That amendments to Rule for Court-Martial

707(a) shall not apply to any condition on liberty

imposed before 1 March 1986, and the effect of

such a condition on liberty shall be considered under

Rule for Court-Martial 707(a) as it existed before 1

March 1986; Provided further, That the amendments

made in paragraph 16 of Part IV shall apply in trials

of offenses committed on or after 1 March 1986;

Provided further, That the amendments made in paragraph 30a of Part IV shall apply in the trials of

offenses committed under Article 106a on or after 1

March 1986; And provided further, That the amendments made in paragraph 30a of Part IV authorizing

capital punishment shall apply with respect to offenses under Article 106a committed on or after 1

March 1986.

Section 7. 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.

A25-2

APPENDIX 25
THE WHITE HOUSE

February 19, 1986

A25-3

HISTORICAL EXECUTIVE ORDERS
EXECUTIVE ORDER 12586

AMENDMENTS TO THE MANUAL FOR

COURTS-MARTIAL, UNITED STATES, 1984

By 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), in order to prescribe amendm e n t s t o t h e M a n u a l f o r C o u r t s - M a r t i a l , U n i t e d

S t a t e s , 1 9 8 4 , p r e s c r i b e d b y E x e c u t i v e O r d e r N o .

12473, as amended by Executive Order Nos. 12484

and 12550, it is hereby ordered as follows:

Section 1. Part II of the Manual for Courts-Martial,

United States, 1984, is amended as follows:

a. R.C.M. 201(e) is amended as follows:

b. Chapter II is amended by inserting the following

new Rule following R.C.M. 203:

c. R.C.M. 503(a)(2) is amended by

d. R.C.M. 701(b)(2) is amended by

e. R.C.M. 706(c)(1) is amended to read as follows:

f. R.C.M. 706(c)(2) is amended as follows:

g. R.C.M. 707 is amended—

h. R.C.M. 903 is amended—

i. R.C.M. 916 is amended as follows:

j. R.C.M. 918(a) is amended—

k. R.C.M. 920(e)(5)(D) is amended by

l. R.C.M. 921(c) is amended—

m. R.C.M. 924(b) is amended by

n. R.C.M. 1001(b)(2) is amended by

o. R.C.M. 1003(c) is amended—

p. R.C.M. 1010(c) is amended to read as follows:

q. R.C.M. 1105(c) is amended by—

r. R.C.M. 1106(f)(5) is amended by

s. R.C.M. 1107(b)(5) is amended to read as follows:

t. R.C.M. 1109 is amended—

u. R.C.M. 1112 is amended—

v. R.C.M. 1113(d)(1) is amended to read as follows:

w. R.C.M. 1114 is amended as follows:

x. R.C.M. 1201(b)(3)(A) is amended by

y. R.C.M. 1203(c) is amended by

z. R.C.M. 1305(b)(2) is amended by

Section 2. Part III of the Manual for Courts-Martial,

United States, 1984, is amended as follows:

a. Mil. R. Evid. 304(h) is amended by

b. Mil. R. Evid. 613(a) is amended by

c. Mil. R. Evid. 902(1) is amended by

Section 3. Part IV of the Manual for Courts-Martial,

United States, 1984, is amended as follows:

a. Paragraph 4 is amended

b. Paragraph 10 is amended

c. Paragraph 32 is amended—

d. Paragraph 35 is amended—

e. Paragraph 42 is amended

f. Paragraph 46 is amended

g. Paragraph 89 is amended

Section 4. Part V of the Manual for Courts-Martial,

United States, 1984, is amended by paragraph 5

by—

Section 5. These amendments shall take effect on 12

March 1987, subject to the following:

a. The addition of Rule for Courts-Martial 204, the

amendments made to Rules for Courts-Martial 707

and 1003(c), and the amendments made to paragraph

5 of Part V, shall apply to any offense committed on

or after 12 March 1987.

b. The amendments made to Rules for Courts-Martial 701(b), 706(c)(2), 916(b), 916(k), 918(a), 920(e),

921(c), and 924(b) shall apply to any offense committed on or after November 14, 1986, the date of

e n a c t m e n t o f t h e N a t i o n a l D e f e n s e A u t h o r i z a t i o n

Act for fiscal year 1987, Pub. L. No. 99-661.

c. The amendments made to Rules for Courts-Martial 503 and 903 shall apply only in cases in which

a r r a i g n m e n t h a s b e e n c o m p l e t e d o n o r a f t e r 1 2

March 1987.

d. The amendments made to Rules for Courts-Martial 1105 and 1106 shall apply only in cases in

which the sentence is adjudged on or after 12 March

1987.

e. Except as provided in section 5.b, nothing contained in these amendments shall be construed to

make punishable any act done or omitted prior to 12

March 1987, which was not punishable when done

or omitted.

f. The maximum punishment for an offense committed prior to 12 March 1987 shall not exceed the

applicable maximum in effect at the time of the

commission of such offense.

g. Nothing in these amendments shall be construed

to invalidate any nonjudicial punishment proceeding,

restraint, investigation, referral of charges, trial in

which arraignment occurred, or other action begun

prior to 12 March 1987, and any such restraint,

A25-4

APPENDIX 25
investigation, referral of charges, trial, or other action may proceed in the same manner and with the

same effect as if these amendments had not been

prescribed.

Section 6. 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

March 3, 1987

A25-5

HISTORICAL EXECUTIVE ORDERS
EXECUTIVE ORDER 12708

AMENDMENTS TO THE MANUAL FOR

COURTS-MARTIAL, UNITED STATES, 1984

By 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), in order to prescribe amendm e n t s t o t h e M a n u a l f o r C o u r t s - M a r t i a l , U n i t e d

S t a t e s , 1 9 8 4 , p r e s c r i b e d b y E x e c u t i v e O r d e r N o .

12473, as amended by Executive Order Nos. 12484,

12550 and 12586, it is hereby ordered as follows:

Section 1. Part II of the Manual for Courts-Martial,

United States, 1984, is amended as follows:

a. R.C.M. 302(b)(2) is amended to read as follows:

b. R.C.M. 905(e) is amended to read as follows:

c. R.C.M. 913(a) is amended by

d. R.C.M. 1003(b)(2) is amended by

e. R.C.M. 1103(b)(2)(B)(i) is amended to read as

follows:

f. R.C.M. 1103(e) is amended to read as follows:

g. R.C.M. 1106(c) is amended to read as follows:

h. R.C.M. 1106(f) is amended—

i. R.C.M. 1107(b)(4) is amended to read as follows:

j. R.C.M. 1108(b) is amended—

k. R.C.M. 1112(b) is amended to read as follows:

l. R.C.M. 1114(c)(2) is amended to read as follows:

m . R . C . M . 1 2 0 1 ( b ) ( 3 ) ( C ) i s a m e n d e d t o r e a d a s

follows:

Section 2. Part III of the Manual for Courts-Martial,

United States, 1984, is amended as follows:

a. Mil. R. Evid. 304(b)(1) is amended to read as

follows:

b . M i l . R . E v i d . 5 0 6 ( c ) i s a m e n d e d t o r e a d a s

follows:

Section 3. Part IV of the Manual for Courts-Martial,

United States, 1984, is amended as follows:

a. Paragraph 10 is amended—

b. Paragraph 101 is deleted

c. Paragraph 105 is amended by—

Section 4. Part V of the Manual for Courts-Martial,

United States, 1984, is amended as follows:

a. Paragraph 5 is amended by—

b. Paragraph 6a is amended by—

Section 5. These amendments shall take effect on 1

April 1990, subject to the following:

a. The amendment made to paragraph 10 of Part IV,

shall apply to any offense committed on or after 1

April 1990.

b. The amendments made to Rule for Courts-Martial 905 and to Military Rule of Evidence 304 shall

apply only in cases in which arraignment has been

completed on or after 1 April 1990.

c. The amendment made to Rule for Courts-Martial

1106 shall apply only in cases in which the sentence

is adjudged on or after 1 April 1990.

d. Nothing contained in these amendments shall be

construed to make punishable any act done or omitted prior to 1 April 1990 which was not punishable

when done or omitted.

e. The maximum punishment for an offense committed prior to 1 April 1990 shall not exceed the

applicable maximum in effect at the time of the

commission of such offense.

f. Nothing in these amendments shall be construed

to invalidate any nonjudicial punishment proceeding,

restraint, investigation, referral of charges, trial in

which arraignment occurred, or other action begun

prior to 1 April 1990, and any such restraint, investigation, referral of charges, trial, or other action may

proceed in the same manner and with the same effect as if these amendments had not been prescribed.

Section 6. 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

March 23, 1990

A25-6

APPENDIX 25
EXECUTIVE ORDER NO. 12767

AMENDMENTS TO THE MANUAL FOR

COURTS-MARTIAL, UNITED STATES, 1984

By the authority vested in me as President by the

Constitution of the United States of America, and by

chapter 47 of title 10 of the United States Code

(Uniform Code of Military Justice), in order to prescribe amendments to the Manual for Courts-Martial, United States, 1984, prescribed by Executive

Order No. 12473, as amended by Executive Order

No. 12484, Executive Order No. 12550, Executive

Order No. 12586, Executive Order No. 12708, it is

hereby ordered as follows:

Section 1. Part II of the Manual for Courts-Martial,

United States, 1984, is amended as follows:

a . R . C . M . 4 0 5 ( g ) ( 1 ) ( A ) i s a m e n d e d t o r e a d a s

follows:

b. R.C.M. 405(g)(4)(B) is amended—

c . R . C . M . 7 0 1 ( a ) ( 3 ) ( B ) i s a m e n d e d t o r e a d a s

follows:

d. R.C.M. 701(b) is amended—

e. R.C.M. 705(c)(2) is amended by deleting the first

s e n t e n c e a n d s u b s t i t u t i n g t h e r e f o r t h e f o l l o w i n g

sentence:

f. R.C.M. 705(d) is amended—

g. R.C.M. 707 is amended to read as follows:

h. R.C.M. 802(c) is amended to read as follows:

i. R.C.M. 908(b)(4) is amended to read as follows:

j. R.C.M. 908(b) is amended by inserting the following new sub-paragraph at the end thereof:

k. R.C.M. 1004(c)(8) is amended to read as follows:

l. R.C.M. 1010 is amended to read as follows:

m. R.C.M. 1103(b)(2)(D) is amended by—

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

o. R.C.M. 1110(f)(1) is amended to read as follows:

p. R.C.M. 1113(c)(1) is amended in the first paragraph thereof to read as follows:

Section 2. Part III of the Manual for Courts-Martial,

United States, 1984, is amended by adding the following new rule at the end of Section VII thereof:

[M.R.E. Polygraph examinations]

Section 3. Part IV of the Manual for Courts-Martial,

United States, 1984, is amended as follows:

a. Paragraph 4e is amended to read as follows:

b. Paragraph 19 is amended—

c. Paragraph 35c(2) is amended to read as follows:

d. Paragraph 57d is amended to read as follows:

e. Paragraph 96f is amended to read as follows:

Section 4. These amendments shall take effect on 6

July 1991, subject to the following:

a. The amendments made to Rule for Courts-Martial

1004(c)(8) and paragraphs 4c, 19, and 35c(2) of Part

IV shall apply to any offense committed on or after

6 July 1991.

b. Military Rule of Evidence 707 shall apply only in

cases in which arraignment has been completed on

or after 6 July 1991.

c. The amendments made to Rules for Courts-Martial 701 and 705 shall apply only in cases in which

charges are preferred on or after 6 July 1991.

d. The amendments made to Rules for Courts-Martial 707 and 1010 shall apply only to cases in which

arraignment occurs on or after 6 July 1991.

e. The amendment made to Rule for Courts-Martial

908(b)(9) shall apply only to cases in which pretrial

confinement is imposed on or after 6 July 1991.

f. The amendment made to Rule for Courts-Martial

1113(c)(1) shall apply only in cases in which the

sentence is adjudged on or after 6 July 1991.

g. Nothing contained in these amendments shall be

construed to make punishable any act done or omitted prior to 6 July 1991, which was not punishable

when done or omitted.

h. The maximum punishment for an offense committed prior to 6 July 1991 shall not exceed the

applicable maximum in effect at the time of the

commission of such offense.

i. Nothing in these amendments shall be construed

to invalidate any nonjudicial punishment proceeding,

restraint, investigation, referral of charges, trial in

which arraignment occurred, or other action begun

prior to 6 July 1991, and any such restraint, investigation, referral of charges, trial, or other action may

proceed in the same manner and with the same effect as if these amendments had not been prescribed.

Section 5. 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.

A25-7

HISTORICAL EXECUTIVE ORDERS
THE WHITE HOUSE

June 27, 1991

A25-8

APPENDIX 25
EXECUTIVE ORDER 12888

AMENDMENTS TO THE MANUAL FOR

COURTS-MARTIAL, UNITED STATES, 1984

By the authority vested in me as President by the

Constitution and the laws of the United States of

America, including chapter 47 of title 10, United

States Code (Uniform Code of Military Justice, 10

U.S.C. 801–946), in order to prescribe amendments

t o t h e M a n u a l f o r C o u r t s - M a r t i a l , U n i t e d S t a t e s ,

1984, prescribed by Executive Order No. 12473, as

amended by Executive Order No. 12484, Executive

Order No. 12550, Executive Order No. 12586, Executive Order No. 12708, and Executive Order No.

12767, it is hereby ordered as follows:

Section 1. Part II of the Manual for Courts-Martial,

United States, 1984, is amended as follows:

a. R.C.M. 109 is amended as follows:

“(a) In general. Each Judge Advocate General is

responsible for the professional supervision and discipline of military trial and appellate military judges,

judge advocates, and other lawyers who practice in

proceedings governed by the code and this Manual.

To discharge this responsibility each Judge Advoc a t e G e n e r a l m a y p r e s c r i b e r u l e s o f p r o f e s s i o n a l

conduct not inconsistent with this rule or this Manual. Rules of professional conduct promulgated purs u a n t t o t h i s r u l e m a y i n c l u d e s a n c t i o n s f o r

violations of such rules. Sanctions may include but

are not limited to indefinite suspension from practice

in courts-martial and in the Courts of Military Review. Such suspensions may only be imposed by the

Judge Advocate General of the armed service of

such courts. Prior to imposing any discipline under

this rule, the subject of the proposed action must be

provided notice and an opportunity to be heard. The

Judge Advocate General concerned may upon good

cause shown modify or revoke suspension. Procedures to investigate complaints against military trial

judges and appellate military judges are contained in

subsection (c) of this rule.

(b) Action after suspension or disbarment. 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 written notice and

opportunity to be heard in writing.

(c) Investigation of judges.

( 1 ) I n g e n e r a l . T h e s e r u l e s a n d p r o c e d u r e s

promulgated pursuant to Article 6a are established to

investigate and dispose of charges, allegations, or

information pertaining to the fitness of a military

trial judge or appellate military judge to perform the

duties of the judge’s office.

(2) Policy. Allegations of judicial misconduct

or unfitness shall be investigated pursuant to the

procedures of this rule and appropriate action shall

be taken. Judicial misconduct includes any act or

omission that may serve to demonstrate unfitness for

further duty as a judge, including but not limited to

violations of applicable ethical standards.

(3) Complaints. Complaints concerning a military trial judge or appellate military judge will be

forwarded to the Judge Advocate General of the

service concerned or to a person designated by the

Judge Advocate General concerned to receive such

complaints.

(4) Initial action upon receipt of a complaint.

Upon receipt, a complaint will be screened by the

Judge Advocate General concerned or by the individual designated in subsection (c)(3) of this rule to

receive complaints. An initial inquiry is necessary if

the complaint, taken as true, would constitute judicial misconduct or unfitness for further service as a

judge. Prior to the commencement of an initial inquiry, the Judge Advocate General concerned shall

be notified that a complaint has been filed and that

an initial inquiry will be conducted. The Judge Advocate General concerned may temporarily suspend

the subject of a complaint from performing judicial

duties pending the outcome of any inquiry or investigation conducted pursuant to this rule. Such inquiri e s o r i n v e s t i g a t i o n s s h a l l b e c o n d u c t e d w i t h

reasonable promptness.

(5) Initial inquiry.

(A) In general. An initial inquiry is necessary to determine if the complaint is substantiated. A

complaint is substantiated upon finding that it is

more likely than not that the subject judge has engaged in judicial misconduct or is otherwise unfit

for further service as a judge.

(B) Responsibility to conduct initial inquiry.

The Judge Advocate General concerned, or the person designated to receive complaints under subsection (c)(3) of this rule, will conduct or order an

initial inquiry. The individual designated to conduct

the inquiry should, if practicable, be senior to the

subject of the complaint. If the subject of the complaint is a military trial judge, the individual desigA25-9

HISTORICAL EXECUTIVE ORDERS
n a t e d t o c o n d u c t t h e i n i t i a l i n q u i r y s h o u l d , i f

practicable, be a military trial judge or an individual

with experience as a military trial judge. If the subject of the complaint is an appellate military judge,

t h e i n d i v i d u a l d e s i g n a t e d t o c o n d u c t t h e i n q u i r y

should, if practicable, have experience as an appellate military judge.

(C) Due process. During the initial inquiry,

the subject of the complaint will, at a minimum, be

given notice and an opportunity to be heard.

(D) Action following the initial inquiry. If

the complaint is not substantiated pursuant to subsection (c)(5)(A) of this rule, the complaint shall be

dismissed as unfounded. If the complaint is substantiated, minor professional disciplinary action may be

taken or the complaint may be forwarded, with findings and recommendations, to the Judge Advocate

General concerned. Minor professional disciplinary

action is defined as counseling or the issuance of an

oral or written admonition or reprimand. The Judge

Advocate General concerned will be notified prior to

taking minor professional disciplinary action or dismissing a complaint as unfounded.

(6) Action by the Judge Advocate General.

(A) In general. The Judge Advocates General are responsible for the professional supervision

and discipline of military trial and appellate military

judges under their jurisdiction. Upon receipt of findings and recommendations required by subsection

(c)(5)(D) of this rule the Judge Advocate General

concerned will take appropriate action.

(B) Appropriate Actions. The Judge Advocate General concerned may dismiss the complaint,

order an additional inquiry, appoint an ethics commission to consider the complaint, refer the matter to

another appropriate investigative agency or take appropriate professional disciplinary action pursuant to

the rules of professional conduct prescribed by the

Judge Advocate General under subsection (a) of this

rule. Any decision of a Judge Advocate General,

under this rule, is final and is not subject to appeal.

( C ) S t a n d a r d o f P r o o f . P r i o r t o t a k i n g

p r o f e s s i o n a l d i s c i p l i n a r y a c t i o n , o t h e r t h a n m i n o r

disciplinary action is defined in subsection (c)(5)(D)

of this rule, the Judge Advocate General concerned

shall find, in writing, that the subject of the complaint engaged in judicial misconduct or is otherwise

unfit for continued service as a military judge, and

that such misconduct or unfitness is established by

clear and convincing evidence.

(D) Due process. Prior to taking final action

on the complaint, the Judge Advocate General concerned will ensure that the subject of the complaint

is, at a minimum, given notice and an opportunity to

be heard.

(7) The Ethics Commission.

( A ) M e m b e r s h i p . I f a p p o i n t e d p u r s u a n t t o

subsection (c)(6)(B) of this rule, an ethics commission shall consist of at least three members. If the

subject of the complaint is a military trial judge, the

c o m m i s s i o n s h o u l d i n c l u d e o n e o r m o r e m i l i t a r y

trial judges or individuals with experience as a military trial judge. If the subject of the complaint is an

appellate military judge, the commission should include one or more individuals with experience as an

appellate military judge. Members of the commission should, if practicable, be senior to the subject of

the complaint.

( B ) D u t i e s . T h e c o m m i s s i o n w i l l p e r f o r m

those duties assigned by the Judge Advocate General

concerned. Normally, the commission will provide

an opinion as to whether the subject’s acts or omissions constitute judicial misconduct or unfitness. If

the commission determines that the affected judge

engaged in judicial misconduct or is unfit for continu e d j u d i c i a l s e r v i c e , t h e c o m m i s s i o n m a y b e r e -

quired to recommend an appropriate disposition to

the Judge Advocate General concerned.

(8) Rules of procedure. The Secretary of Defense or the Secretary of the service concerned may

establish additional procedures consistent with this

rule and Article 6A.”

b. R.C.M. 305(f) is amended to read as follows:

“ Military Counsel. If requested by the prisoner

and such request is made known to military authorities, military counsel shall be provided to the prisoner before the initial review under subsection (i) of

this rule or within 72 hours of such request being

first communicated to military authorities, whichever

occurs first. 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 othe r w i s e p r o v i d e d b y r e g u l a t i o n s o f t h e S e c r e t a r y

concerned, a prisoner does not have the right under

A25-10

APPENDIX 25
this rule to have military counsel of the prisoner’s

own selection.”

c. R.C.M. 305(h)(2)(A) is amended to read as follows:

“(A) Decision. Not later than 72 hours after the

c o m m a n d e r ’ s o r d e r i n g o f a p r i s o n e r i n t o p r e t r i a l

confinement, or after receipt of a report that a member of the commander’s unit or organization has

been confined, whichever situation is applicable, the

commander shall decide whether pretrial confinement will continue.”

d. R.C.M. 305(i)(1) is amended to read as follows:

“(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 under military control. If

the prisoner was apprehended by civilian authorities

and remains in civilian custody at the request of

military authorities, reasonable efforts will be made

to bring the prisoner under military control in a

timely fashion. In calculating the number of days of

confinement for purposes of this rule, the initial date

of confinement shall count as one day and the date

of the review shall also count as one day.”

e. R.C.M. 405(i) is amended to read as follows:

“(i) Military Rules of Evidence. The Military

Rules of Evidence—other than Mil. R. Evid. 301,

302, 303, 305, 412, and Section V—shall not apply

in pretrial investigations under this rule.”

f. R.C.M. 701(g)(3)(C) is amended to read as follows:

“ ( C ) P r o h i b i t t h e p a r t y f r o m i n t r o d u c i n g e v i -

dence, calling a witness, or raising a defense not

disclosed; and”.

g. R.C.M. 704(e) is amended to read as follows:

“(e) Decision to grant immunity. Unless limited

b y s u p e r i o r c o m p e t e n t a u t h o r i t y , t h e d e c i s i o n t o

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 of the defense, grant appropriate

r e l i e f d i r e c t i n g t h a t e i t h e r a n a p p r o p r i a t e g e n e r a l

court-martial 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 ) T h e w i t n e s s i n t e n d s t o i n v o k e t h e r i g h t

against self-incrimination to the extent permitted by

law if called to testify; and

(2) The Government has engaged in discriminatory use of immunity to obtain a tactical advant a g e , o r t h e G o v e r n m e n t , t h r o u g h i t s o w n

overreaching, has forced the witness to invoke the

privilege against self-incrimination; and

(3) The witness’ testimony is material, clearly

exculpatory, not cumulative, not obtainable from any

other source and does more than merely affect the

credibility of other witnesses.”

h. R.C.M. 910(a)(1) is amended to read as follows:

“(1) In general. An accused may plead as follows: guilty; not guilty to an offense as charged, but

guilty of a named lesser included offense; guilty

with exceptions, with or without substitutions, not

guilty of the exceptions, but guilty of the substitutions, if any; or, not guilty. A plea of guilty may not

be received as to an offense for which the death

penalty may be adjudged by the court-martial.”

i. R.C.M. 918(a)(1) is amended to read as follows:

“(1) As to a specification. General findings as to

a specification may be: guilty; not guilty of an offense as charged, but guilty of a named lesser inc l u d e d o f f e n s e ; g u i l t y w i t h e x c e p t i o n s , w i t h o r

without substitutions, not guilty of the exceptions,

but guilty of the substitutions, if any; not guilty only

by reason of lack of mental responsibility; 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.”

j. R.C.M. 920(b) is amended to read as follows:

“(b) When given. Instructions on findings shall

be given before or after arguments by counsel, or at

both times, 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.”

k. R.C.M. 1103(g)(1)(A) is amended to read as follows:

“ In general. In general and special courts-martial

which require a verbatim transcript under subsections (b) or (c) of this rule and are subject to review

by a Court of Military Review under Article 66, 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

A25-11

HISTORICAL EXECUTIVE ORDERS
shall cause to be prepared an original and one copy

of the record of trial.”

Section 2. Part III of the Manual for Courts-Martial,

United States, 1984, is amended as follows:

a. Mil. R. Evid. 311(e)(2) is amended to read as

follows:

“(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, that the evidence ultimately would

have been obtained by lawful means even if the

unlawful search or seizure had not been made, or

that the evidence was obtained by officials who reasonably and with good faith relied on the issuance of

an authorization to search, seize, or apprehend or a

search warrant or an arrest warrant. Notwithstanding

other provisions of this Rule, an apprehension made

in a dwelling in a manner that violates R.C.M. 302

(d)(2)&(e) does not preclude the admission into evidence of a statement of an individual apprehended

provided (1) that the apprehension was based on

probable cause, (2) that the statement was made

subsequent to the apprehension at a location outside

the dwelling, and (3) that the statement was otherwise in compliance with these rules.”

b. Mil. R. Evid. 505(a) is amended to read as follows:

“(a) General rule of privilege. Classified information is privileged from disclosure if disclosure would

be detrimental to the national security. As with other

rules of privilege this rule applies to all stages of the

proceedings.”

c. Mil. R. Evid. 505(g)(1)(D) is amended by adding

the following at the end:

“All persons requiring security clearance shall

cooperate with investigatory personnel in any investigations which are necessary to obtain a security

clearance.”

d. Mil. R. Evid. 505(h)(3) is amended to read as

follows:

“(3) Content of notice. The notice required by

this subdivision shall include a brief description of

the classified information. The description, to be sufficient, must be more than a mere general statement

of the areas about which evidence may be introduced. The accused must state, with particularity,

which items of classified information he reasonably

expects will be revealed by his defense.”

e. Mil. R. Evid. 505(i)(3) is amended to read as

follows:

“(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 and an affidavit ex

parte for examination by the military judge only.

The affidavit shall demonstrate 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.”

f. Mil. R. Evid. 505(i)(4)(B) is amended to read as

follows:

“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. In presentencing

proceedings, relevant and material classified information pertaining to the appropriateness of, or the

appropriate degree of, punishment shall be admitted

only if no unclassified version of such information is

available.”

g. Mil. R. Evid. 505(j)(5) is amended to read as

follows:

“(5) Closed session. The military judge may

exclude the public during that portion of the present a t i o n o f e v i d e n c e t h a t d i s c l o s e s c l a s s i f i e d

information.”

h. Mil. R. Evid. 609(a) is amended to read as follows:

“(a) General rule. For the purpose of attacking

the credibility of a witness, (1) evidence that a witness other than the accused has been convicted of a

crime shall be admitted, subject to Mil. R. Evid.

403, if the crime was punishable by death, dishonorable discharge, or imprisonment in excess of one

year under the law under which the witness was

convicted, and evidence that an accused has been

convicted of such a crime shall be admitted if the

military judge determines that the probative value of

admitting this evidence outweighs its prejudicial effect to the accused; and (2) evidence that any witness has been convicted of a crime shall be admitted

if it involved dishonesty or false statement, regardless of the punishment. In determining whether a

A25-12

APPENDIX 25
c r i m e t r i e d b y c o u r t - m a r t i a l w a s p u n i s h a b l e b y

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

court-martial.”

i. Mil. R. Evid. 1101(d) is amended to read as follows:

“(d) Rules inapplicable. These rules (other than

with respect to privileges and Mil. R. Evid. 412) do

not apply in investigative hearings pursuant to Article 32; proceedings for vacation of suspension of

s e n t e n c e p u r s u a n t t o A r t i c l e 7 2 ; p r o c e e d i n g s f o r

search authorizations; proceedings involving pretrial

restraint; and in other proceedings authorized under

the code or this Manual and not listed in subdivision

(a).”

Section 3. Part IV of the Manual for Courts-Martial,

United States, 1984, is amended as follows:

a. Paragraph 37c is amended by inserting the following new subparagraphs (10) and (11) at the end

thereof:

“(10) Use. ’Use’ means to inject, ingest, inhale,

or otherwise introduce into the human body, any

controlled substance. Knowledge of the presence of

the controlled substance is a required component of

use. Knowledge of the presence of the controlled

substance may be inferred from the presence of the

controlled substance in the accused’s body or from

other circumstantial evidence. This permissive inference may be legally sufficient to satisfy the government’s burden of proof as to knowledge.”

“(11) Deliberate ignorance. An accused who consciously avoids knowledge of the presence of a controlled substance or the contraband nature of the

substance is subject to the same criminal liability as

one who has actual knowledge.”

b. The last paragraph of paragraph 37e is amended

to read as follows:

“When an 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. Section 310; in time of war; or in a

confinement facility used by or under the control of

the armed forces, the maximum period of confinement authorized for such an offense shall be increased by 5 years.”

c. Paragraph 43d is amended to read as follows:

“(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—involuntary manslaughter

(b) Article 128—assault; assault consummated

by a battery; aggravated assault

(c) Article 134—negligent homicide

(3) Murder as defined in Article 118(1), (2), and

(4).

(a) Article 80—attempts

(b) Article 119—voluntary manslaughter

(c) Article 134—assault with intent to commit

murder

(d) Article 134—assault with intent to commit

voluntary manslaughter”.

d. Para 45d(1) is amended by adding the following

at the end thereof:

“(e) Article 120(b)—carnal knowledge”.

e. Para 45f(1) is amended to read as follows:

“(1) Rape.

In that (personal jurisdiction data),

did, (at/on board—location) (subject-matter jurisdict i o n d a t a , i f r e q u i r e d ) o n o r

a b o u t 1 9 , r a p e ( a

person who had not attained the age of 16 years).”

f. The following new paragraph is inserted after paragraph 96:

96a. Article 134 (Wrongful interference with

an adverse administrative proceeding)

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 adverse administrative proceedings pending;

(3) That the act was done with the intent to

influence, impede, or obstruct the conduct of such

adverse administrative proceeding, or otherwise obstruct the due administration of justice;

(4) That under the circumstances, the conduct

of the accused was to the prejudice of good order

A25-13

HISTORICAL EXECUTIVE ORDERS
and discipline in the armed forces or was of a nature

to bring discredit upon the armed forces.

c . E x p l a n a t i o n . F o r p u r p o s e s o f t h i s p a r a g r a p h

[adverse administrative proceeding] includes any administrative proceeding or action, initiated against a

servicemember, that could lead to discharge, loss of

special or incentive pay, administrative reduction in

grade, loss of a security clearance, bar to reenlistment, or reclassification. Examples of wrongful int e r f e r e n c e i n c l u d e w r o n g f u l l y i n f l u e n c i n g ,

intimidating, impeding, or injuring a witness, an investigator, or other person acting on an adverse adm i n i s t r a t i v e a c t i o n ; b y m e a n s o f b r i b e r y ,

intimidation, misrepresentation, or force or threat of

force delaying or preventing communication of information relating to such administrative proceeding;

and, the wrongful destruction or concealment of inf o r m a t i o n r e l e v a n t t o s u c h a d v e r s e a d m i n i s t r a t i v e

proceeding.

d. Lesser included offenses. None.

e. Maximum punishment. Dishonorable discharge,

forfeiture of all pay and allowances, and confinement for 5 years.

f . S a m p l e s p e c i f i c a t i o n . I n t h a t ( -

personal jurisdiction data), did, (at/on board—location) (subject-matter jurisdiction data, if required),

on or about 19 , wrongfully (end e a v o r t o ) [ i m p e d e ( a n a d v e r s e a d m i n i s t r a t i v e

proceeding) (an investigation)

( )] [influence the actions of ,

(an officer responsible for making a recommendation concerning the adverse administrative proceeding) (an individual responsible for making a decision

c o n c e r n i n g a n a d v e r s e a d m i n i s t r a t i v e p r o c e e d i n g )

(an individual responsible for

processing an adverse administrative proceeding)

( ) ] [ ( i n f l u e n c e ) ( a l t e r ) t h e t e s t i m o n y

o f a w i t n e s s b e f o r e ( a b o a r d e s t a b -

lished to consider an adverse administrative proceedi n g o r e l i m i n a t i o n ) ( a n i n v e s t i g a t i n g o f f i c e r )

( ) ] i n t h e c a s e o f , b y

[ ( p r o m i s i n g ) ( o f f e r i n g ) ( g i v i n g ) t o t h e

s a i d , ( t h e s u m o f $ )

( , o f a v a l u e o f a b o u t $ ) ]

[ c o m m u n i c a t i n g t o t h e s a i d a t h r e a t

to ] [ ], (if) (unless) the

said , would [recommend dismissal of

the action against said ] [(wrongfully ref u s e t o t e s t i f y ) ( t e s t i f y f a l s e l y c o n c e r n -

i n g ) ( ) ] [ ( a t s u c h

administrative proceeding) (before such investigating

o f f i c e r ) ( b e f o r e s u c h a d m i n i s t r a t i v e b o a r d ) ]

[ ]].

Section 4. These amendments shall take effect on

January 21, 1994, subject to the following:

a. The amendments made to paragraphs 37c, 37e,

43d(2), 45d(1), and 96a of Part IV shall apply to any

offense committed on or after January 21, 1994.

b. The amendments made to Section III shall apply

only in cases in which arraignment has been completed on or after January 21, 1994.

c. The amendment made to Rules for Courts-Martial 405(i), 701(g)(3)(C), and 704(e) shall apply only

in cases in which charges are preferred on or after

January 21, 1994.

d. The amendments made to Rules for Courts-Martial 910, 918, and 920 shall apply only to cases in

which arraignment occurs on or after January 21,

1994.

e. The amendments made to Rule for Courts-Martial 305 shall apply only to cases in which pretrial

c o n f i n e m e n t i s i m p o s e d o n o r a f t e r J a n u a r y 2 1 ,

1994.

f . T h e a m e n d m e n t t o R u l e f o r C o u r t s - M a r t i a l

1103(g)(1)(A) shall apply only in cases in which the

sentence is adjudged on or after January 21, 1994.

g. Nothing contained in these amendments shall be

construed to make punishable any act done or omitted prior to January 21, 1994, which was not punishable when done or omitted.

h. The maximum punishment for an offense prior

to January 21, 1994, shall not exceed the applicable

maximum in effect at the time of the commission of

such offense.

i. Nothing in these amendments shall be construed

to invalidate any nonjudicial punishment proceeding,

restraint, investigation, referral of charges, trial in

which arraignment occurred, or other action begun

prior to January 21, 1994, and any such restraint,

investigation, referral of charges, trial, or other action may proceed in the same manner and with the

same effect as if these amendments had not been

prescribed.

Section 5. 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.

A25-14

APPENDIX 25
THE WHITE HOUSE

December 23, 1993.

A25-15

HISTORICAL EXECUTIVE ORDERS
EXECUTIVE ORDER 12936

AMENDMENTS TO THE MANUAL FOR

COURTS-MARTIAL, UNITED STATES, 1984

By the authority vested in me as President by the

Constitution and the laws of the United States of

America, including chapter 47 of title 10, United

States Code (Uniform Code of Military Justice, 10

U.S.C. 801–946), in order to prescribe amendments

t o t h e M a n u a l f o r C o u r t s - M a r t i a l , U n i t e d S t a t e s ,

1984, prescribed by Executive Order No. 12473, as

amended by Executive Order No. 12484, Executive

Order No. 12550, Executive Order No. 12586, Executive Order No. 12708, Executive Order No. 12767,

and Executive Order No. 12888, it is hereby ordered

as follows:

Section 1. Part II of the Manual for Courts-Martial,

United States, 1984, is amended as follows:

a . R . C . M . 4 0 5 ( g ) ( 1 ) ( B ) i s a m e n d e d t o r e a d a s

follows:

“(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. As soon as

practicable after receipt of a request by the accused

for information which may be protected under Mil.

R. Evid. 505 or 506, the investigating officer shall

notify the person who is authorized to issue a protective order under subsection (g)(6) of this rule, and

the convening authority, if different. Evidence is reasonably available if its significance outweighs the

difficulty, expense, delay, and effect on military operations of obtaining the evidence.”

b. R.C.M. 405(g) is amended by inserting the following new subparagraph (6) at the end thereof:

“(6) Protective order for release of privileged inf o r m a t i o n . I f , p r i o r t o r e f e r r a l , t h e G o v e r n m e n t

a g r e e s t o d i s c l o s e t o t h e a c c u s e d i n f o r m a t i o n t o

which the protections afforded by Mil. R. Evid. 505

or Mil. R. Evid. 506 may apply, the convening authority, or other person designated by regulations of

the Secretary of the service concerned, may enter an

a p p r o p r i a t e p r o t e c t i v e o r d e r , i n w r i t i n g , t o g u a r d

against the compromise of information disclosed to

the accused. The terms of any such protective order

may include prohibiting the disclosure of the information except as authorized by the authority issuing

the protective order, as well as those terms specified

in Mil. R. Evid. 505(g)(1)(B) through (F) or Mil. R.

Evid. 506(g)(2) through (5).”

c. R.C.M. 905(f) is amended to read as follows:

“(f) Reconsideration. On request of any party or

sua sponte, the military judge may, prior to authentication of the record of trial, reconsider any ruling,

other than one amounting to a finding of not guilty,

made by the military judge.”

d. R.C.M. 917(f) is amended to read as follows:

“(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 prior to authentication of the record of

trial.”

e. R.C.M. 1001(b)(5) is amended to read as follows:

“ ( 5 ) E v i d e n c e o f r e h a b i l i t a t i v e p o t e n t i a l .

Rehabilitative potential refers to the accused’s potential to be restored, through vocational, correctiona l , o r t h e r a p e u t i c t r a i n i n g o r o t h e r c o r r e c t i v e

measures to a useful and constructive place in ~society.~

( A ) I n g e n e r a l . T h e t r i a l c o u n s e l m a y

present, by testimony or oral deposition in accordance with R.C.M. 702(g)(1), evidence in the form of

opinions concerning the accused’s previous performance as a servicemember and potential for rehabilitation.

(B) Foundation for opinion. The witness

or deponent providing opinion evidence regarding

the accused’s rehabilitative potential must possess

sufficient information and knowledge about the accused to offer a rationally-based opinion that is helpful to the sentencing authority. Relevant information

and knowledge include, but are not limited to, information and knowledge about the accused’s character, performance of duty, moral fiber, determination

to be rehabilitated, and nature and severity of the

offense or offenses.

(C) Bases for opinion. An opinion regarding the accused’s rehabilitative potential must

be based upon relevant information and knowledge

possessed by the witness or deponent, and must relate to the accused’s personal circumstances. The

opinion of the witness or deponent regarding the

severity or nature of the accused’s offense or ofA25-16

APPENDIX 25
fenses may not serve as the principal basis for an

opinion of the accused’s rehabilitative potential.

(D) Scope of opinion. An opinion offered

under this rule is limited to whether the accused has

rehabilitative potential and to the magnitude or quality of any such potential. A witness may not offer an

opinion regarding the appropriateness of a punitive

discharge or whether the accused should be returned

to the accused’s unit.

(E) Cross-examination. On cross-examination, inquiry is permitted into relevant and specific

instances of conduct.

(F) Redirect. Notwithstanding any other

provision in this rule, the scope of opinion testimony

permitted on redirect may be expanded, depending

upon the nature and scope of the cross-examination.”

f. R.C.M. 1003(b)(2) is amended to read as follows:

“(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, retired pay, or retainer pay, as

applicable, or, in the case of reserve component personnel on inactive-duty, compensation for periods of

inactive-duty training, 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

b e b a s e d o n t h e g r a d e t o w h i c h t h e a c c u s e d i s

reduced.”

g. R.C.M. 1004(c)(4) is amended to read as follows:

“(4) That the offense was committed in such a

way or under circumstances that the life of one or

more persons other than the victim was unlawfully

and substantially endangered, except that this factor

shall not apply to a violation of Articles 104, 106a,

or 120.”

h. R.C.M. 1004(c)(7)(B) is amended to read as follows:

“(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 while the accused

was engaged in the commission or attempted commission of any offense involving the wrongful distribution, manufacture, or introduction or possession,

with intent to distribute, of a controlled substance;

or, while the accused was engaged in flight or attempted flight after the commission or attempted

commission of any such offense.”

i. R.C.M. 1004(c)(7)(I) is amended to read as follows:

“(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.” For purposes of this section, “substantial

physical harm” means fractures or dislocated bones,

deep cuts, torn members of the body, serious damage to internal organs or other serious bodily injuries.

The term “substantial physical harm” does not

mean minor injuries, such as a black eye or a bloody

nose. The term “substantial physical harm or physic a l p a i n a n d s u f f e r i n g ” i s a c c o r d e d i t s c o m m o n

meaning and includes torture.

j. R.C.M. 1102(b)(2) is amended to read as follows:

“(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. The military judge may also

call an Article 39(a) session, upon motion of either

party or sua sponte, to reconsider any trial ruling

that substantially affects the legal sufficiency of any

findings of guilty or the sentence.”

k. R.C.M. 1105(c)(1) is amended to read as follows:

“(1) General and special courts-martial. After a

general or special court-martial, the accused may

submit matters under this rule within the later of 10

days after a copy of the authenticated record of trial,

or, if applicable, the recommendation of the staff

judge advocate or legal officer, or an addendum to

the recommendation containing new matter is served

on the accused. If, within the 10-day period, the

accused shows that additional time is required for

the accused to submit such matters, the convening

a u t h o r i t y o r t h a t a u t h o r i t y ’ s s t a f f j u d g e a d v o c a t e

may, for good cause, extend the 10-day period for

not more than 20 additional days; however, only the

convening authority may deny a request for such an

extension.”

l. R.C.M. 1106(f)(7) is amended to read as follows:

A25-17

HISTORICAL EXECUTIVE ORDERS
“(7) New matter in addendum to recommendation. The staff judge advocate or legal officer may

supplement the recommendation after the accused

and counsel for the accused have been served with

the recommendation and given an opportunity to

comment. When new matter is introduced after the

accused and counsel for the accused have examined

t h e r e c o m m e n d a t i o n , h o w e v e r , t h e a c c u s e d a n d

counsel for the accused must be served with the new

matter and given ten days from service of the addendum in which to submit comments. Substitute service of the accused’s copy of the addendum upon

counsel for the accused is permitted in accordance

with the procedures outlined in subparagraph (f)(1)

of this rule.”

Section 2. Part III of the Manual for Courts-Martial,

United States, 1984, is amended as follows:

a. Mil. R. Evid. 305(d)(1)(B) is amended to read as

follows:

“(B) The interrogation is conducted by a person

subject to the code acting in a law enforcement

capacity or the agent of such a person, the interrogat i o n i s c o n d u c t e d s u b s e q u e n t t o t h e p r e f e r r a l o f

charges, and the interrogation concerns the offenses

or matters that were the subject of the preferral of

charges.”

b. Mil. R. Evid. 305(e) is amended to read as follows:

“(e) Presence of counsel.

( 1 ) C u s t o d i a l i n t e r r o g a t i o n . A b s e n t a v a l i d

waiver of counsel under subdivision (g)(2)(B), when

an accused or person suspected of an offense is

subjected to custodial interrogation under circumstances described under subdivision (d)(1)(A) of this

rule, and the accused or suspect requests counsel,

counsel must be present before any subsequent custodial interrogation may proceed.

( 2 ) P o s t - p r e f e r r a l i n t e r r o g a t i o n . A b s e n t a

valid waiver of counsel under subdivision (g)(2)(C),

when an accused or person suspected of an offense

is subjected to interrogation under circumstances described in subdivision (d)(1)(B) of this rule, and the

accused or suspect either requests counsel or has an

appointed or retained counsel, counsel must be present before any subsequent interrogation concerning

that offense may proceed.”

c. Mil. R. Evid. 305(f) is amended to read as follows:

“(f) Exercise of rights.

(1) The privilege against self-incrimination. If

a person chooses to exercise the privilege against

self-incrimination under this rule, questioning must

cease immediately.

(2) The right to counsel. If a person subjected

to interrogation under the circumstances described in

subdivision (d)(1) of this rule chooses to exercise

the right to counsel, questioning must cease until

counsel is present.”

d. Mil. R. Evid. 305(g)(2) is amended to read as

follows:

“(2) Counsel.

(A) 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

e v i d e n c e t h a t t h e i n d i v i d u a l w a i v e d t h e r i g h t t o

counsel.

(B) If an accused or suspect interrogated under

circumstances described in subdivision (d)(1)(A) requests counsel, any subsequent waiver of the right to

c o u n s e l o b t a i n e d d u r i n g a c u s t o d i a l i n t e r r o g a t i o n

concerning the same or different offenses is invalid

unless the prosecution can demonstrate by a preponderance of the evidence that—

(i) the accused or suspect initiated the communication leading to the waiver; or

( i i ) t h e a c c u s e d o r s u s p e c t h a s n o t

continuously had his or her freedom restricted by

confinement, or other means, during the period between the request for counsel and the subsequent

waiver.

(C) If an accused or suspect interrogated under

circumstances described in subdivision (d)(1)(B) requests counsel, any subsequent waiver of the right to

counsel obtained during an interrogation concerning

the same offenses is invalid unless the prosecution

can demonstrate by a preponderance of the evidence

that the accused or suspect initiated the communication leading to the waiver.”

e. Mil. R. Evid. 314(g)(3) is amended to read as

follows:

“(3) Examination for other persons.

(A) Protective sweep. When an apprehension

takes place at a location in which other persons

might be present who might endanger those conducting the apprehension and others in the area of the

a p p r e h e n s i o n , a r e a s o n a b l e e x a m i n a t i o n m a y b e

made of the general area in which such other persons might be located. A reasonable examination

under this rule is permitted if the apprehending offiA25-18

APPENDIX 25
cials have a reasonable suspicion based on specific

and articulable facts that the area to be examined

harbors an individual posing a danger to those in the

area of the apprehension.

(B) Search of attack area. Apprehending officials may, incident to apprehension, as a precautionary matter and without probable cause or reasonable

suspicion, look in closets and other spaces immedia t e l y a d j o i n i n g t h e p l a c e o f a p p r e h e n s i o n f r o m

which an attack could be immediately launched.”

f. Mil. R. Evid. 404(b) is amended to read as follows:

“(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

action 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,

provided, that upon request by the accused, the prosecution shall provide reasonable notice in advance of

trial, or during trial if the military judge excuses

pretrial notice on good cause shown, of the general

nature of any such evidence it intends to introduce at

trial.”

Section 3. Part IV of the Manual for Courts-Martial,

United States, 1984, is amended as follows:

a. Paragraph 44e(1) is amended to read as follows:

“(1) Voluntary manslaughter. Dishonorable discharge, forfeiture of all pay and allowances, and

confinement for 15 years.”

b. Paragraph 44e(2) is amended to read as follows:

“ ( 2 ) I n v o l u n t a r y m a n s l a u g h t e r . D i s h o n o r a b l e

discharge, forfeiture of all pay and allowances, and

confinement for 10 years.”

c. Paragraph 45e is amended to read as follows:

“(e) Maximum punishment.

(1) Rape. Death or such other punishment as a

court-martial may direct.

(2) Carnal knowledge with a child who, at the

time of the offense, has attained the age of 12 years.

Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 20 years.

(3) Carnal knowledge with a child under the

age of 12 years at the time of the offense. Dishonorable discharge, forfeiture of all pay and allowances,

and confinement for life.”

d. Paragraph 51e is amended to read as follows:

“(e) Maximum punishment.

(1) By force and without consent. Dishonorable

discharge, forfeiture of all pay and allowances, and

confinement for life.

(2) With a child who, at the time of the offense, has attained the age of 12 years, but is under

the age of 16 years. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for

20 years.

(3) With a child under the age of 12 years at

the time of the offense. Dishonorable discharge, forfeiture of all pay and allowances, and confinement

for life.

(4) Other cases. Dishonorable discharge, forfeiture of all pay and allowances, and confinement

for 5 years.”

e. Paragraph 85e is amended to read as follows:

“ ( e ) M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s -

charge, forfeiture of all pay and allowances, and

confinement for 3 years.”

Section 4. These amendments shall take effect on

December 9, 1994, subject to the following:

a. The amendments made to Rule for Courts-Mart i a l 1 0 0 4 ( c ) ( 4 ) s h a l l o n l y t o o f f e n s e s c o m m i t t e d

prior to December 9, 1994.

b. Nothing contained in these amendments shall be

construed to make punishable any act done or omitted prior to December 9, 1994, which was not punishable when done or omitted.

c. The maximum punishment for an offense committed prior to December 9, 1994, shall no exceed

the applicable maximum in effect at the time of the

commission of such offense.

d. Nothing in these amendments shall be construed

to invalidate any nonjudicial punishment proceeding,

restraint, investigation, referral of charges, trial in

which arraignment occurred, or other action begun

prior to December 9, 1994, and any such restraint,

investigation, referral of charges, trial, or other action may proceed in the same manner and with the

same effect as if these amendments had not been

prescribed.

Section 5. 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.

A25-19

HISTORICAL EXECUTIVE ORDERS
THE WHITE HOUSE

November 10,1994.

A25-20

APPENDIX 25
EXECUTIVE ORDER 12960

AMENDMENTS TO THE MANUAL FOR

COURTS-MARTIAL, UNITED STATES, 1984

By the authority vested in me as President by the

Constitution and the laws of the United States of

America, including chapter 47 of title 10, United

States Code (Uniform Code of Military Justice, 10

U.S.C. 801–946), in order to prescribe amendments

t o t h e M a n u a l f o r C o u r t s - M a r t i a l , U n i t e d S t a t e s ,

1984, prescribed by Executive Order No. 12473, as

amended by Executive Order No. 12484, Executive

Order No. 12550, Executive Order No. 12586, Executive Order No. 12708, Executive Order No. 12767,

Executive Order No. 12888, and Executive Order

No. 12936, it is hereby ordered as follows:

Section 1. Part I of the Manual for Courts-Martial,

United States, 1984, is amended as follows:

Preamble, paragraph 4, is amended to read as follows:

4. Structure and application of the Manual for

Courts-Martial.

The Manual for Courts-Martial shall consist of this

Preamble, the Rules for Courts-Martial, the Military

Rules of Evidence, the Punitive Articles, and the

Nonjudicial Punishment Procedures (Parts I–V). The

Manual shall be applied consistent with the purpose

of military law.

T h e M a n u a l s h a l l b e i d e n t i f i e d a s “ M a n u a l f o r

Courts-Marital, United States (19xx edition).” Any

amendments to the Manual made by Executive Order shall be identified as “19xx Amendments to the

Manual for Courts-Martial, United States.”

Section 2 Part II of the Manual for Courts-Martial,

United States, 1984, is amended as follows:

a. R.C.M. 810(d) is amended as follows:

“(d) Sentence limitations.

(1) In general. Sentences at rehearings, new

trials, or other trials shall be adjudged within the

limitations set forth in R.C.M. 1003. Except as otherwise provided in subsection (d)(2) of this rule,

offenses on which a rehearing, new trial, or other

trial has been ordered shall not be the basis for an

approved sentence in excess of or more severe than

the sentence ultimately approved by the convening

or higher authority following the previous trial or

hearing, unless the sentence prescribed for the offense is mandatory. When a rehearing or sentencing

is combined with trial on new charges, the maximum punishment that may be approved by the convening authority shall be the maximum punishment

under R.C.M. 1003 for the offenses being reheard as

limited above, plus the total maximum punishment

under R.C.M. 1003 for any new charges of which

the accused has been found guilty. In the case of an

“ o t h e r t r i a l ” n o s e n t e n c e l i m i t a t i o n s a p p l y i f t h e

original trial was invalid because a summary or special court-martial improperly tried an offense involvi n g a m a n d a t o r y p u n i s h m e n t o r o n e o t h e r w i s e

considered capital.

( 2 ) P r e t r i a l a g r e e m e n t . I f , a f t e r t h e e a r l i e r

court-martial, the sentence was approved in accordance with a pretrial agreement and at the rehearing

the accused fails to comply with the pretrial agreement, by failing to enter a plea of guilty or otherwise, the approved sentence resulting at a rehearing

of the affected charges and specifications may include any otherwise lawful punishment not in excess

of or more serious than lawfully adjudged at the

earlier court-martial”.

b. R.C.M. 924(a) is amended as follows:

“(a) Time for reconsideration. Members may reconsider any finding reached by them before such

finding is announced in open session”.

c. R.C.M. 924(c) is amended as follows:

“(c) Military judge sitting alone. In a trial by

military judge alone, the military judge may reconsider any finding of guilty at any time before ann o u n c e m e n t o f s e n t e n c e a n d m a y r e c o n s i d e r t h e

issue of the finding of guilty of the elements in a

finding of not guilty only by reason of lack of mental responsibility at any time before announcement

of sentence or authentication of the record of trial in

the case of a complete acquittal”.

d. R.C.M. 1003(b)(9) is deleted.

e. R.C.M. 1003(b)(10), (11), and (12) are redesignated as subsections (9), (10), and (11) respectively.

f. R.C.M. 1009 is amended as follows:

“(a) Reconsideration. Subject to this rule, a sentence may be reconsidered at any time before such

sentence is announced in open session of the court.”

“(b) Exceptions.

(1) If the sentence announced in open session

was less than the mandatory minimum prescribed for

an offense of which the accused has been found

guilty, the court that announced the sentence may

r e c o n s i d e r s u c h s e n t e n c e a f t e r i t h a s b e e n a n -

nounced, and may increase the sentence upon reconA25-21

HISTORICAL EXECUTIVE ORDERS
sideration in accordance with subsection (e) of this

rule.

(2) If the sentence announced in open session

exceeds the maximum permissible punishment for

the offense or the jurisdictional limitation of the

court-martial, the sentence may be reconsidered after

announcement in accordance with subsection (e) of

this rule.”

(c) Clarification of sentence. A sentence may be

clarified at any time prior to action of the convening

authority on the case.

(1) Sentence adjudged by the military judge.

When a sentence adjudged by the military judge is

ambiguous, the military judge shall call a session for

clarification as soon as practical after the ambiguity

is discovered.

(2) Sentence adjudged by members. When a

sentence adjudged by members is ambiguous, the

military judge shall bring the matter to the attention

of the members if the matter is discovered before the

court-martial is adjourned. If the matter is discovered after adjournment, the military judge may call a

session for clarification by the members who adjudged the sentence as soon as practical after the

ambiguity is discovered.

(d) Action by the convening authority. When a

sentence adjudged by the court-martial is ambiguous, the convening authority may return the matter

to the court-martial for clarification. When a sentence adjudged by the court-martial is apparently

illegal, the convening authority may return the matter to the court-martial for reconsideration or may

approve a sentence no more severe than the legal,

unambiguous portions of the adjudged sentence.

(e) Reconsideration procedure. Any member of

t h e c o u r t - m a r t i a l m a y p r o p o s e t h a t a s e n t e n c e

reached by the members be reconsidered.

( 1 ) I n s t r u c t i o n s . W h e n a s e n t e n c e h a s b e e n

reached by members and reconsideration has been

initiated, the military judge shall instruct the members on the procedure for reconsideration.

(2) Voting. The members shall vote by secret

written ballot in closed session whether to reconsider

a sentence already reached by them.

(3) Number of votes required.

(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

l e a s t a m a j o r i t y o f t h e m e m b e r s v o t e f o r

reconsideration.

( B ) W i t h a v i e w t o d e c r e a s i n g . M e m b e r s

may reconsider a sentence with a view to decreasing

it only if:

(i) In the case of a sentence which inc l u d e s d e a t h , a t l e a s t o n e m e m b e r v o t e s t o

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,

m o r e t h a n o n e - t h i r d o f t h e m e m b e r s v o t e t o

reconsider.

(4) Successful vote. If a vote to reconsider a

sentence succeeds, the procedures in R.C.M. 1006

shall apply”.

g. R.C.M. 1103(b)(3)(L) is deleted.

h. R.C.M. 1103(b)(3)(M) and (N) are redesignated

as subsections (L) and (M), respectively.

i. R.C.M. 1103(c)(2) is amended to read as follows:

“(2) Not involving a bad-conduct discharge. If

t h e s p e c i a l c o u r t - m a r t i a l r e s u l t e d i n f i n d i n g s o f

g u i l t y b u t a b a d - c o n d u c t d i s c h a r g e w a s n o t a d -

j u d g e d , t h e r e q u i r e m e n t s o f s u b s e c t i o n s ( b ) ( 1 ) ,

(b)(2)(D), and (b)(3)(A) - (F) and (I) - (M) of this

rule shall apply”.

j. R.C.M. 1104(b)(2) is amended to read as follows:

“ ( 2 ) S u m m a r y c o u r t s - m a r t i a l . T h e s u m m a r y

court-martial record of trial shall be disposed of as

provided in R.C.M. 1305(d). Subsection (b)(1)(D) of

this rule shall apply if classified information is included in the record of trial of a summary courtmartial”.

k. R.C.M. 1106(d)(3) is amended, by adding a new

subsection (B) as follows:

“(B) A recommendation for clemency by the sentencing authority, made in conjunction with the announced sentence”;

l . R . C . M . 1 1 0 6 ( d ) ( 3 ) ( B ) - ( E ) a r e r e d e s i g n a t e d a s

subsections (C)-(F), respectively.

m. R.C.M. 1107(d) is amended by adding a new

subparagraph (3) as follows:

“(3) Postponing service of a sentence to confinement.

(A) In a case in which a court-martial sent e n c e s a n a c c u s e d r e f e r r e d t o i n s u b s e c t i o n ( B ) ,

below, to confinement, the convening authority may

A25-22

APPENDIX 25
postpone service of a sentence to confinement by a

court-martial, without the consent of the accused,

until after the accused has been permanently released to the armed forces by a state or foreign

country.

(B) Subsection (A) applies to an accused who,

while in custody of a state or foreign country, is

temporarily returned by that state or foreign country

to the armed forces for trial by court-martial; and

after the court-martial, is returned to that state or

f o r e i g n c o u n t r y u n d e r t h e a u t h o r i t y o f a m u t u a l

agreement or treaty, as the case may be.

( C ) A s u s e d i n s u b s e c t i o n ( d ) ( 3 ) , t h e t e r m

“state” means a state of the United States, the District of Columbia, a territory, and a possession of the

United States.”

n . R . C . M . 1 1 0 7 ( d ) ( 3 ) i s r e d e s i g n a t e d R . C . M .

1107(d)(4).

o. R.C.M. 1107(e)(1)(C)(iii) is amended as follows:

“(iii) Rehearing on sentence only. A rehearing

on sentence only shall not be referred to a different

kind of court-martial from that which made the original findings. If the convening authority determines

a rehearing on sentence is impracticable, the convening authority may approve a sentence of no punishment without conducting a rehearing”.

p. R.C.M. 1107(f)(2) is amended to read as follows:

“(2) Modification of initial action. The conveni n g a u t h o r i t y m a y r e c a l l a n d m o d i f y a n y a c t i o n

taken by that convening authority at any time before

it has been published or before the accused has been

officially notified. The convening authority also may

recall and modify any action at any time prior to

forwarding the record for review, as long as the

modification does not result in action less favorable

to the accused than the earlier action. In addition, in

any special court-martial 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.

1112, as long as the correction does not result in

action less favorable to the accused than the earlier

action. When so directed by a higher reviewing authority or the Judge Advocate General, the conveni n g a u t h o r i t y s h a l l m o d i f y a n y i n c o m p l e t e ,

ambiguous, void, or inaccurate action noted in review of the record of trial under Article 64, 66, 67,

or examination of the record of trial under Article

69. The convening authority shall personally sign

any supplementary or corrective action”.

q. R.C.M. 1108(b) is amended to read as follows:

“(b) Who may suspend and remit. The convening

authority may, after approving the sentence, suspend

the execution of all or any part of the sentence of a

court-martial except for a sentence of death. The

general court-martial convening authority over the

accused at the time of the court-martial may, when

taking the action under R.C.M. 1112(f), suspend or

remit any part of the sentence. The Secretary concerned and, when designated by the Secretary concerned, any Under Secretary, Assistant Secretary,

J u d g e A d v o c a t e G e n e r a l , o r c o m m a n d i n g o f f i c e r

may suspend or remit any part or amount of the

unexecuted part of any sentence other than a sentence approved by the President. The commander of

the accused who has the authority to convene a

court-martial of the kind which adjudged the sentence may suspend or remit any part or amount of

the unexecuted part of any sentence by summary

court-martial or of any sentence by special courtmartial which does not include a bad-conduct discharge regardless of whether the person acting has

p r e v i o u s l y a p p r o v e d t h e s e n t e n c e . ” T h e

“unexecuted” part of any sentence includes that part

which has been approved and ordered executed but

which has not actually been “carried out”.

r. R.C.M. 1113(d)(2)(A) is amended by adding a

new subparagraph (iii) as follows:

“(iii) Periods during which the accused is in custody of civilian or foreign authorities after the conv e n i n g a u t h o r i t y , p u r s u a n t t o A r t i c l e 5 7 ( e ) , h a s

postponed the service of a sentence to confinement”;

s. R.C.M. 1113(d)(2)(A)(iii) - (iv) are redesignated

1113(d)(A)(iv) - (v), respectively.

t. R.C.M. 1113(d)(5) is deleted.

u. R.C.M. 1113(d)(6) is redesignated as subsection

(5).

v. R.C.M. 1201(b)(3)(A) is amended to read as follows:

“(A) In general. Notwithstanding R.C.M. 1209,

the Judge Advocate General may, sua sponte or,

except when the accused has waived or withdrawn

the right to appellate review under R.C.M. 1110,

upon application of the accused or a person with

authority to act for the accused, vacate or modify, in

whole or in part, the findings, sentence, or both of a

court-martial that has been finally reviewed, but has

not been reviewed either by a Court of Military

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HISTORICAL EXECUTIVE ORDERS
Review or by the Judge Advocate General under

s u b s e c t i o n ( b ) ( 1 ) o f t h i s r u l e , o n t h e g r o u n d o f

newly discovered evidence, fraud on the court-martial, lack of jurisdiction over the accused or the

offense, error prejudicial to the substantial rights of

the accused, or the appropriateness of the sentence”.

w. R.C.M. 1305(d) is deleted.

x. R.C.M. 1305(e) is redesignated as subsection (d).

Section 3. Part III of the Manual for Courts-Martial,

United States, 1984, is amended as follows:

a. M.R.E. 311(g)(2) is amended to read as follows:

“(2) False statements. If the defense makes a subs t a n t i a l p r e l i m i n a r y s h o w i n g t h a t a g o v e r n m e n t

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

p r e p o n d e r a n c e o f t h e e v i d e n c e t h e a l l e g a t i o n o f

knowing and intentional falsity or reckless disregard

for the truth. If the defense meets its burden, the

prosecution has the burden of proving by a preponderance of the evidence, with the false information

set aside, that the remaining information presented

to the authorizing officer is sufficient to establish

probable cause. If the prosecution does not meet its

burden, the objection or motion shall be granted

unless the search is otherwise lawful under these

rules”.

b. M.R.E. 506(e) and (f) are amended to read as

follows:

“(e) Pretrial session. At any time after referral of

charges and prior to arraignment, any party may

move for a session under Article 39(a) to consider

matters relating to government information that may

arise in connection with the trial. Following such

motion, or sua sponte, the military judge promptly

shall hold a pretrial session under Article 39(a) to

establish the timing of requests for discovery, the

provision of notice under subsection (h), and the

initiation of the procedure under subsection (i). In

addition, the military judge may consider any other

matters that relate to government information or that

may promote a fair and expeditious trial.

(f) Action after motion for disclosure of information. After referral of charges, if the defense moves

for disclosure of government information for which

a claim of privilege has been made under this rule,

the matter shall be reported to the convening authority. The convening authority may:

(1) institute action to obtain the information

for use by the military judge in making a determination under subdivision (i);

(2) dismiss the charges;

(3) dismiss the charges or specifications or

both to which the information relates; or

(4) take other action as may be required in the

interests of justice.

If, after a reasonable period of time, the information is not provided to the military judge, the military judge shall dismiss the charges or specifications

or both to which the information relates”.

M.R.E. 506(h) is amended to read as follows:

“(h) Prohibition against disclosure. The accused

may not disclose any information known or believed

to be subject to a claim of privilege under this rule

u n l e s s t h e m i l i t a r y j u d g e a u t h o r i z e s s u c h

disclosure”.

d. M.R.E. 506(i) is amended to read as follows:

(i) In camera proceedings.

(1) Definition. For purposes of this subsection,

an “in camera proceeding” is a session under Article

39(a) from which the public is excluded.

(2) Motion for in camera proceeding. Within

the time specified by the military judge for the filing

of a motion under this rule, the Government may

move for an in camera proceeding concerning the

use at any proceeding of any government information that may be subject to a claim of privilege.

Thereafter, either prior to or during trial, the military

judge for good cause shown or otherwise upon a

claim of privilege may grant the Government leave

to move for an in camera proceeding concerning the

use of additional government information.

(3) Demonstration of public interest nature of

the information. In order to obtain an in camera

proceeding under this rule, the Government shall

demonstrate, through the submission of affidavits

and information for examination only by the military

judge, that disclosure of the information reasonably

could be expected to cause identifiable damage to

the public interest.

(4) In camera proceeding.

( A ) F i n d i n g o f i d e n t i f i a b l e d a m a g e . U p o n

finding that the disclosure of some or all of the

i n f o r m a t i o n s u b m i t t e d b y t h e G o v e r n m e n t u n d e r

A25-24

APPENDIX 25
subsection (i)(3) reasonably could be expected to

cause identifiable damage to the public interest, the

m i l i t a r y j u d g e s h a l l c o n d u c t a n i n c a m e r a

proceeding.”

(B) Disclosure of the information to the defense. Subject to subsection (F), below, the Governm e n t s h a l l d i s c l o s e g o v e r n m e n t i n f o r m a t i o n f o r

which a claim of privilege has been made to the

a c c u s e d , f o r t h e l i m i t e d p u r p o s e o f l i t i g a t i n g , i n

camera, the admissibility of the information at trial.

The military judge shall enter an appropriate protective order to the accused and all other appropriate

trial participants concerning the disclosure of the

information according to subsection (g), above. The

accused shall not disclose any information provided

under this subsection unless, and until, such information has been admitted into evidence by the military judge. In the in camera proceeding, both parties

shall have the opportunity to brief and argue the

admissibility of the government information at trial.

( C ) S t a n d a r d . G o v e r n m e n t i n f o r m a t i o n i s

subject to disclosure at the court-martial proceeding

under this subsection if the party making the request

demonstrates a specific need for information containing evidence that is relevant to the guilt or innoc e n c e o r t o p u n i s h m e n t o f t h e a c c u s e d , a n d i s

otherwise admissible in the court-martial proceeding.

( D ) R u l i n g . N o i n f o r m a t i o n m a y b e d i s -

closed at the court-martial proceeding or otherwise

unless the military judge makes a written determinat i o n t h a t t h e i n f o r m a t i o n i s s u b j e c t t o d i s c l o s u r e

under the standard set forth in subsection (C), above.

The military judge will specify in writing any information that he or she determines is subject to disclosure. The record of the in camera proceeding shall

be sealed and attached to the record of trial as an

appellate exhibit. The accused may seek reconsideration of the determination prior to or during trial.

(E) Alternatives to full disclosure. If the military judge makes a determination under this subsection that the information is subject to disclosure, or

if the Government elects not to contest the relevance, necessity, and admissibility of the government information, the Government may proffer a

statement admitting for purposes of the court-martial

any relevant facts such information would tend to

prove or may submit a portion or summary to be

used in lieu of the information. The military judge

shall order that such statement, portion, summary, or

some other form of information which the military

judge finds to be consistent with the interests of

justice, be used by the accused in place of the government information, unless the military judge finds

that use of the government information itself is necessary to afford the accused a fair trial.

(F) Sanctions. Government information may

not be disclosed over the Government’s objection. If

the Government continues to object to disclosure of

the information following rulings by the military

judge, the military judge shall issue any order that

the interests of justice require. Such an order may

include:

(i) striking or precluding all or part of

the testimony of a witness;

(ii) declaring a mistrial;

(iii) finding against the Government on

any issue as to which the evidence is relevant and

necessary to the defense;

(iv) dismissing the charges, with or without prejudice; or

(v) dismissing the charges or specifications or both to which the information relates.

e. A new M.R.E. 506(j) is added as follows:

“(j) Appeals of orders and rulings. In a courtmartial in which a punitive discharge may be adjudged, the Government may appeal an order or

r u l i n g o f t h e m i l i t a r y j u d g e t h a t t e r m i n a t e s t h e

proceedings with respect to a charge or specification, directs the disclosure of government informat i o n , o r i m p o s e s s a n c t i o n s f o r n o n d i s c l o s u r e o f

government information. The Government also may

appeal an order or ruling in which the military judge

refuses to issue a protective order sought by the

United States to prevent the disclosure of governm e n t i n f o r m a t i o n , o r t o e n f o r c e s u c h a n o r d e r

previously issued by appropriate authority. The Government may not appeal an order or ruling that is, or

amounts to, a finding of not guilty with respect to

the charge or specification”.

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

(l), respectively.

Section 4. Part IV of the Manual for Courts-Martial,

United States, 1984, is amended as follows:

a. Paragraph 4.c. is amended by adding a new subparagraph (4) as follows:

“(4) Voluntary abandonment. It is a defense to an

attempt offense that the person voluntarily and comp l e t e l y a b a n d o n e d t h e i n t e n d e d c r i m e , s o l e l y b e -

cause of the person’s own sense that it was wrong,

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HISTORICAL EXECUTIVE ORDERS
prior to the completion of the crime. The voluntary

abandonment defense is not allowed if the abandonment results, in whole or in part, from other reasons,

such as, the person feared detection or apprehension,

decided to await a better opportunity for success,

was unable to complete the crime, or encountered

unanticipated difficulties or unexpected resistance. A

person who is entitled to the defense of voluntary

abandonment may nonetheless be guilty of a lesser

included, completed offense. For example, a person

who voluntarily abandoned an attempted armed robbery may nonetheless be guilty of assault with a

dangerous weapon”.

b. Paragraph 4.c.(4), (5), and (6) are redesignated as

subparagraphs (5), (6) and (7), respectively.

c . P a r a g r a p h 3 0 a . c ( 1 ) , i s a m e n d e d t o r e a d a s

follows:

“(1) Intent. “Intent or reason to believe” that the

information “is to be used to the injury of the United

S t a t e s o r t o t h e a d v a n t a g e o f a f o r e i g n n a t i o n ”

means that the accused acted in bad faith and without lawful authority with respect to information that

is not lawfully accessible to the public.”

d. Paragraph 35 is amended to read as follows:

“(35) Article 111—Drunken or reckless operation of a vehicle, aircraft, or vessel

(a) Text.

Any person subject to this chapter who-

(1) operates or physically controls any vehicle, aircraft, or vessel in a reckless or wanton manner or while impaired by a substance described in

section 912a(b) of this title (Article 112a(b)), or

(2) operates or is in actual physical control of

any vehicle, aircraft, or vessel while drunk or when

the alcohol concentration in the person’s blood or

breath is 0.10 grams of alcohol per 100 milliliters of

blood or 0.10 grams of alcohol per 210 liters of

breath, as shown by chemical analysis, shall be punished as a court-martial may direct.”

(b) Elements.

( 1 ) T h a t t h e a c c u s e d w a s o p e r a t i n g o r i n

physical control of a vehicle, aircraft, or vessel; and

(2) That while operating or in physical control

of a vehicle, aircraft, or vessel, the accused:

(a) did so in a wanton or reckless manner,

(b) was drunk or impaired, or

( c ) t h e a l c o h o l c o n c e n t r a t i o n i n t h e a c -

cused’s blood or breath was 0.10 grams of alcohol

per 100 milliliters of blood or 0.10 grams of alcohol

per 210 liters of breath, or greater, as shown by

chemical analysis.

[Note: If injury resulted add the following

element]

(3) That the accused thereby caused the vehicle, aircraft, or vessel to injure a person.

(c) Explanation.

(1) Vehicle. See 1 U.S.C. § 4.

(2) Vessel. See 1 U.S.C. § 3.

(3) Aircraft. Any contrivance used or designed

for transportation in the air.

(4) Operates. Operating a vehicle, aircraft, or

vessel includes not only driving or guiding a vehicle,

aircraft, or vessel while it is in motion, either in

person or through the agency of another, but also

setting of its motive power in action or the manipulation of its controls so as to cause the particular

vehicle, aircraft, or vessel to move.

(5) Physical control and actual physical control. These terms as used in the statute are synonym o u s . T h e y d e s c r i b e t h e p r e s e n t c a p a b i l i t y a n d

power to dominate, direct, or regulate the vehicle,

vessel, or aircraft, either in person or through the

agency of another, regardless of whether such vehicle, aircraft, or vessel is operated. For example, the

intoxicated person seated behind the steering wheel

of a vehicle with the keys of the vehicle in or near

the ignition but with the engine not turned on could

be deemed in actual physical control of that vehicle.

However, the person asleep in the back seat with the

keys in his or her pocket would not be deemed in

actual physical control. Physical control necessarily

encompasses operation.

( 6 ) D r u n k o r i m p a i r e d . “ D r u n k ” a n d “ i m -

paired” mean any intoxication which is sufficient to

impair the rational and full exercise of the mental or

physical faculties. The term “drunk” is used in relation to intoxication by alcohol. The term “impaired”

is used in relation to intoxication by a substance

described in Article 112(a), Uniform Code of Military Justice.

(7) Reckless. The operation or physical control

of a vehicle, vessel, or aircraft is “reckless” when it

exhibits a culpable disregard of foreseeable consequences to others from the act or omission involved.

Recklessness is not determined solely by reason of

the happening of an injury, or the invasion of the

rights of another, nor by proof alone of excessive

A25-26

APPENDIX 25
speed or erratic operation, but all these factors may

be admissible and relevant as bearing upon the ultimate question: whether, under all the circumstances,

the accused’s manner of operation or physical control of the vehicle, vessel, or aircraft was of that

h e e d l e s s n a t u r e w h i c h m a d e i t a c t u a l l y o r i m -

minently dangerous to the occupants, or to the rights

or safety of others. It is operating or physically controlling a vehicle, vessel, or aircraft with such a high

degree of negligence that if death were caused, the

a c c u s e d w o u l d h a v e c o m m i t t e d i n v o l u n t a r y m a n -

slaughter, at least. The nature of the conditions in

which the vehicle, vessel, or aircraft is operated or

controlled, the time of day or night, the proximity

and number of other vehicles, vessels, or aircraft,

and the condition of the vehicle, vessel, or aircraft,

are often matters of importance in the proof of an

offense charged under this article and, where they

are of importance, may properly be alleged.

(8) Wanton. “Wanton” includes “reckless”, but

in describing the operation or physical control of a

v e h i c l e , v e s s e l , o r a i r c r a f t , “ w a n t o n ” m a y , i n a

proper case, connote willfulness, or a disregard of

probable consequences, and thus describe a more

aggravated offense.

(9) Causation. The accused’s drunken or reckless driving must be a proximate cause of injury for

the accused to be guilty of drunken or reckless driving resulting in personal injury. To be proximate, the

accused’s actions need not be the sole cause of the

injury, nor must they be the immediate cause of the

injury; that is, the latest in time and space preceding

the injury. A contributing cause is deemed proximate only if it plays a material role in the victim’s

injury.

(10) Separate offenses. While the same course

of conduct may constitute violations of both subsections (1) and (2) of the Article, (e.g., both drunken

and reckless operation or physical control), this article proscribes the conduct described in both subsections as separate offenses, which may be charged

separately. However, as recklessness is a relative

m a t t e r , e v i d e n c e o f a l l t h e s u r r o u n d i n g c i r c u m -

stances that made the operation dangerous, whether

alleged or not, may be admissible. Thus, on a charge

of reckless driving, for example, evidence of drunkenness might be admissible as establishing one asp e c t o f t h e r e c k l e s s n e s s , a n d e v i d e n c e t h a t t h e

vehicle exceeded a safe speed, at a relevant prior

point and time, might be admissible as corroborating

other evidence of the specific recklessness charged.

Similarly, on a charge of drunken driving, relevant

evidence of recklessness might have probative value

as corroborating other proof of drunkenness.

(d) Lesser included offense.

(1) Reckless or wanton or impaired operation

or physical control of a vessel. Article 110—improper hazarding of a vessel.

(2) Drunken operation of a vehicle, vessel, or

aircraft while drunk or with a blood or breath alcohol concentration in violation of the described per se

standard.

(a) Article 110—improper hazarding of a

vessel

(a) Article 112—drunk on duty

(a) Article 134—drunk on station

(e) Maximum punishment.

(1) Resulting in personal injury. Dishonorable discharge, forfeiture of all pay and allowances,

and confinement for 18 months.

(2) No personal injury involved. Bad-conduct

discharge, forfeiture of all pay and allowances, and

confinement for 6 months.

(f) Sample specification.

In that (personal jurisdiction data), did (at/onboard—location) (subject-matter jurisd i c t i o n d a t a , i f r e q u i r e d ) , o n o r

a b o u t 1 9 , ( i n t h e m o t o r p o o l

area) (near the Officer’s Club) (at the intersection

of and ) (while in the Gulf

of Mexico) (while in flight over North America)

physically control [a vehicle, to wit: (a truck) (a

passenger car) ( )] [an aircraft, to wit: (an

AH-64 helicopter) (an F-14A fighter) (a KC-135

tanker)( )] [a vessel, to wit: (the aircraft

carrier USS ) (the Coast Guard Cutter)

( ) ] , [ w h i l e d r u n k ] [ w h i l e i m p a i r e d

by ] [while the alcohol concentration in

his (blood was 0.10 grams of alcohol per 100 milliliters of blood or greater) (breath was 0.10 grams of

alcohol per 210 liters of breath or greater) as shown

by chemical analysis] [in a (reckless) (wanton) manner by (attempting to pass another vehicle on a sharp

curve) (by ordering that the aircraft be flown below

the authorized altitude)] [and did thereby cause said

( v e h i c l e ) ( a i r c r a f t ) ( v e s s e l ) t o ( s t r i k e a n d )

(injure )].

e. Paragraph 43.a.(3) is amended to read as follows:

“(3) is engaged in an act which is inherently danA25-27

HISTORICAL EXECUTIVE ORDERS
gerous to another and evinces a wanton disregard of

human life; or”;

f. Paragraph 43.b.(3)(c) is amended to read as follows:

“(c) That this act was inherently dangerous to another and showed a wanton disregard for human

life”;

g. Paragraph 43.c.(4)(a) is amended to read as follows:

“(a) Wanton disregard for human life. Intentiona l l y e n g a g i n g i n a n a c t i n h e r e n t l y d a n g e r o u s t o

another -- although without an intent to cause the

death of or great bodily harm to any particular person, or even with a wish that death will not be

c a u s e d - - m a y a l s o c o n s t i t u t e m u r d e r i f t h e a c t

shows wanton disregard of human life. Such disregard is characterized by heedlessness of the probable

consequences of the act or omission, or indifference

to the likelihood of death or great bodily harm. Examples include throwing a live grenade toward another or others in jest or flying an aircraft very low

over one or more persons to cause alarm”.

h. Paragraph 45.a.(a) is amended to read as follows:

“(a) Any person subject to this chapter who commits an act of sexual intercourse by force and without consent, is guilty of rape and shall be punished

by death or such other punishment as a court-martial

may direct”.

i. Paragraph 45.b.(1) is amended to read as follows:

“(a) That the accused committed an act of sexual

intercourse; and

(b) That the act of sexual intercourse was done

by force and without consent”.

j. Paragraph 45.c.(1)(a) and (b) are amended as follows:

“(a) Nature of offense. Rape is sexual intercourse

by a person, executed by force and without consent

of the victim. It may be committed on a victim of

any age. Any penetration, however slight, is sufficient to complete the offense.”

“(b) Force and lack of consent. Force and lack of

consent are necessary to the offense. Thus, if the

victim consents to the act, it is not rape. The lack of

consent required, however, is more than mere lack

of acquiescence. If a victim in possession of his or

her mental faculties fails to make lack of consent

reasonably manifest by taking such measures of resistance as are called for by the circumstances, the

inference may be drawn that the victim did consent.

Consent, however, may not be inferred if resistance

would have been futile, where resistance is overcome by threats of death or great bodily harm, or

where the victim is unable to resist because of the

lack of mental or physical faculties. In such a case

there is no consent and the force involved in penet r a t i o n w i l l s u f f i c e . A l l t h e s u r r o u n d i n g c i r c u m -

stances are to be considered in determining whether

a victim gave consent, or whether he or she failed or

ceased to resist only because of a reasonable fear of

death or grievous bodily harm. If there is actual

consent, although obtained by fraud, the act is not

rape, but if to the accused’s knowledge the victim is

of unsound mind or unconscious to an extent rendering him or her incapable of giving consent, the act is

rape. Likewise, the acquiescence of a child of such

tender years that he or she is incapable of understanding the nature of the act is not consent”.

k. Paragraph 89.c. is amended to read as follows:

“ ( c ) E x p l a n a t i o n . “ I n d e c e n t ” l a n g u a g e i s t h a t

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

i n c i t e l u s t f u l t h o u g h t . L a n g u a g e i s i n d e c e n t i f i t

tends reasonably to corrupt morals or incite libidinous thoughts. The language must violate commun i t y s t a n d a r d s . S e e p a r a g r a p h 8 7 i f t h e

communication was made in the physical presence

of a child”.

l. Paragraph 103. The following new paragraph is

added after paragraph 103:

“(a) Text. See paragraph 60.

(b) Elements.

(1) That the accused intentionally inflicted injury upon himself or herself;

(2) That, under the circumstances, the conduct

of the accused was to the prejudice of good order

and discipline in the armed forces or was of a nature

to bring discredit upon the armed forces.

[Note: If the offense was committed in time of

war or in a hostile fire pay zone, add the following

element]

(3) That the offense was committed (in time

of war) (in a hostile fire pay zone).

(c) Explanation.

(1) Nature of offense. This offense differs from

malingering (see paragraph 40) in that for this offense, the accused need not have harbored a design

to avoid performance of any work, duty, or service

A25-28

APPENDIX 25
which may properly or normally be expected of one

in the military service. This offense is characterized

by intentional self-injury under such circumstances

as prejudice good order and discipline or discredit

the armed forces. It is not required that the accused

be unable to perform duties, or that the accused

actually be absent from his or her place of duty as a

result of the injury. For example, the accused may

inflict the injury while on leave or pass. The circumstances and extent of injury, however, are relevant to

a determination that the accused’s conduct was prejudicial to good order and discipline, or service-discrediting.

(2) How injury inflicted. The injury may be

inflicted by nonviolent as well as by violent means

and may be accomplished by any act or omission

that produces, prolongs, or aggravates a sickness or

disability. Thus, voluntary starvation that results in a

debility is a self-inflicted injury. Similarly, the injury may be inflicted by another at the accused’s

request.

(d) Lesser included offense. Article 80—attempts

(e) Maximum punishment.

(1) Intentional self-inflicted injury. Dishonorable discharge, forfeiture of all pay and allowances,

and confinement for 2 years.

(2) Intentional self-inflicted injury in time of

war or in a hostile fire pay zone. Dishonorable discharge, forfeiture of all pay and allowances, and

confinement for 5 years.

(f) Sample specification.

I n t h a t ( p e r s o n a l j u r i s d i c t i o n d a t a ) ,

did, (at/on board--location) (in a hostile fire pay

zone) on or about 19 , (a time of

w a r , ) i n t e n t i o n a l l y i n j u r e h i m s e l f / h e r s e l f

b y ( n a t u r e a n d c i r c u m s t a n c e s o f

injury)”.

Section 5. These amendments shall take effect on

June 10, 1995, subject to the following:

a. Nothing in these amendments shall be construed

to make punishable any act done or omitted prior to

June 10, 1995.

b. The maximum punishment for an offense committed prior to June 10, 1995, shall not exceed the

applicable maximum in effect at the time of the

commission of such offense.

c. Nothing in these amendments shall be construed

to invalidate any nonjudicial punishment proceeding,

restraint, investigation, referral of charges, trial in

which arraignment occurred, or other action begun

prior to June 10, 1995, and any such restraint, investigation, referral of charges, trial, or other action

may proceed in the same manner and with the same

e f f e c t a s i f t h e s e a m e n d m e n t s h a d n o t b e e n

prescribed.

THE WHITE HOUSE

May 12, 1995

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HISTORICAL EXECUTIVE ORDERS
EXECUTIVE ORDER 13086

1998 AMENDMENTS TO THE MANUAL FOR

COURTS-MARTIAL, UNITED STATES

By the authority vested in me as President by the

Constitution and the laws of the United States of

America, including chapter 47 of title 10, United

States Code (Uniform Code of Military Justice, 10

U.S.C. 801–946), in order to prescribe amendments

to the Manual for Courts-Martial, United States, prescribed by Executive Order No. 12473, as amended

by Executive Order No. 12484, Executive Order No.

12550, Executive Order No. 12586, Executive Order

No. 12708, Executive Order No. 12767, Executive

Order No. 12888, Executive Order No. 12936, and

Executive Order No. 12960, it is hereby ordered as

follows:

Section 1. Part II of the Manual for Courts-Martial,

is amended as follows:

a. R.C.M. 305(g) through 305(k) are amended as

follows:

“(g) Who may direct release from confinement.

Any commander of a prisoner, an officer appointed

under regulations of the Secretary concerned to conduct the review under subsections (i) and/or (j) 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 the purposes of this subsection, “any commander” includes

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

into whose charge the prisoner was committed shall,

w i t h i n 2 4 h o u r s a f t e r t h a t c o m m i t m e n t , c a u s e a

report to be made to the commander that shall contain the name of the prisoner, the offenses charged

against the prisoner, and the name of the person who

ordered or authorized confinement.

(2) Action by commander.

(A) Decision. Not later than 72 hours after

the commander’s ordering of a prisoner into pretrial

confinement or, after receipt of a report that a member of the commander’s unit or organization has

been confined, whichever situation is applicable, the

commander shall decide whether pretrial confinem e n t w i l l c o n t i n u e . A c o m m a n d e r ’ s c o m p l i a n c e

with this subsection may also satisfy the 48-hour

probable cause determination of subsection R.C.M.

305(i)(1) below, provided the commander is a neutral and detached officer and acts within 48 hours of

the imposition of confinement under military control. Nothing in subsections R.C.M. 305(d), R.C.M.

305(i)(1), or this subsection prevents a neutral and

detached commander from completing the 48-hour

probable cause determination and the 72-hour commander’s decision immediately after an accused is

ordered into pretrial confinement.

(B) Requirements for confinement. The commander shall direct the prisoner’s release from pret r i a l c o n f i n e m e n t u n l e s s t h e c o m m a n d e r b e l i e v e s

u p o n p r o b a b l e c a u s e , t h a t i s , u p o n r e a s o n a b l e

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 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,

serious injury to others, or other offenses that 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: 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.

(C) 72-hour memorandum. If continued pretrial confinement is approved, the commander shall

p r e p a r e a w r i t t e n m e m o r a n d u m t h a t s t a t e s t h e

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,

A25-30

APPENDIX 25
such as witness statements, investigative reports, or

o f f i c i a l r e c o r d s . T h i s m e m o r a n d u m s h a l l b e f o r -

warded to the 7-day reviewing officer under subsection (i)(2) 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) 48-hour probable cause determination. Review of the adequacy of probable cause to continue

pretrial confinement shall be made by a neutral and

detached officer within 48 hours of imposition of

confinement under military control. If the prisoner is

apprehended by civilian authorities and remains in

civilian custody at the request of military authorities,

reasonable efforts will be made to bring the prisoner

under military control in a timely fashion.

( 2 ) 7 - d a y r e v i e w o f p r e t r i a l c o n f i n e m e n t .

Within 7 days of the imposition of confinement, a

neutral and detached officer appointed in accordance

with regulations prescribed by the Secretary concerned shall review the probable cause determination

and necessity for continued pretrial confinement. In

calculating the number of days of confinement for

purposes of this rule, the initial date of confinement

under military control shall count as one day and the

date of the review shall also count as one day.

(A) Nature of the 7-day review.

(i) Matters considered. The review under

this subsection shall include a review of the memor a n d u m s u b m i t t e d b y t h e p r i s o n e r ’ s c o m m a n d e r

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 7-day reviewing officer and make a statement, if practicable. A representative of the command may also appear before the reviewing officer

to make a statement.

(ii) 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.

(iii) Standard of proof. The requirements

for confinement under subsection (h)(2)(B) of this

rule must be proved by a preponderance of the evidence.

( B ) E x t e n s i o n o f t i m e l i m i t . T h e 7 - d a y

reviewing officer may, for good cause, extend the

time limit for completion of the review to 10 days

after the imposition of pretrial confinement.

(C) Action by 7-day reviewing officer. Upon

completion of review, the reviewing officer shall

approve continued confinement or order immediate

release.

(D) Memorandum. The 7-day 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 7-day reviewing

officer shall be maintained in accordance with regulations prescribed by the Secretary concerned and

provided to the accused or the Government on request.

(E) Reconsideration of approval of continued confinement. The 7-day reviewing officer shall

upon request, and after notice to the parties, reconsider the decision to confine the prisoner based upon

any significant information not previously considered.

(j) Review by military judge. Once the charges

for which the accused has been confined are referred

to trial, the military judge shall review the propriety

of the pretrial confinement upon motion for appropriate relief.

(1) Release. The military judge shall order release from pretrial confinement only if:

(A) The 7-day 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 7-day

reviewing officer establishes that the prisoner should

be released under subsection (h)(2)(B) of this rule;

or

(C) The provisions of subsection (i)(1) or (2)

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 failure to comply with the

provisions of subsections (f), (h), or (i) of this rule.

(k) Remedy. The remedy for noncompliance with

subsections (f), (h), (i), or (j) of this rule shall be an

administrative credit against the sentence adjudged

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HISTORICAL EXECUTIVE ORDERS
for any confinement served as the result of such

noncompliance. Such credit shall be computed at the

rate of 1 day credit for each day of confinement

served as a result of such noncompliance. The military judge may order additional credit for each day

of pretrial confinement that involves an abuse of

d i s c r e t i o n o r u n u s u a l l y h a r s h c i r c u m s t a n c e s . T h i s

credit is to be applied in addition to any other credit

to which 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 shall be applied

against adjudged hard labor without confinement,

restriction, fine, and forfeiture of pay, in that order,

u s i n g t h e c o n v e r s i o n f o r m u l a u n d e r R . C . M .

1003(b)(6) and (7). For purposes of this subsection,

1 day of confinement shall be equal to 1 day of total

forfeitures or a like amount of fine. The credit shall

n o t b e a p p l i e d a g a i n s t a n y o t h e r f o r m o f

punishment.”

b. R.C.M. 405(e) is amended to read as follows:

“(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. If evidence adduced during the investigation indicates that the accused committed an unc h a r g e d o f f e n s e , t h e i n v e s t i g a t i n g o f f i c e r m a y

investigate the subject matter of such offense and

make a recommendation as to its disposition, without the accused first having been charged with the

offense. The accused’s rights under subsection (f)

are the same with regard to investigation of both

charged and uncharged offenses.”

c. R.C.M. 706(c)(2)(D) is amended to read as follows:

“(D) Is the accused presently suffering from

a mental disease or defect rendering the accused

unable to understand the nature of the proceedings

against the accused or to conduct or cooperate intelligently in the defense of the case?”

d. R.C.M. 707(b)(3) is amended by adding subsection (E) which reads as follows:

“ ( E ) C o m m i t m e n t o f t h e i n c o m p e t e n t a c -

cused. If the accused is committed to the custody of

the Attorney General for hospitalization as provided

in R.C.M. 909(f), all periods of such commitment

shall be excluded when determining whether the period in subsection (a) of this rule has run. If, at the

end of the period of commitment, the accused is

returned to the custody of the general court-martial

c o n v e n i n g a u t h o r i t y , a n e w 1 2 0 - d a y t i m e p e r i o d

under this rule shall begin on the date of such return

to custody.”

e. R.C.M. 707(c) is amended to read as follows:

“(c) Excludable delay. All periods of time during

w h i c h a p p e l l a t e c o u r t s h a v e i s s u e d s t a y s i n t h e

proceedings, or the accused is hospitalized due to

incompetence, or is otherwise in the custody of the

Attorney General, shall be excluded when determining whether the period in subsection (a) of this rule

has run. All other pretrial delays approved by a

military judge or the convening authority shall be

similarly excluded.”

f. R.C.M. 809(b)(1) is amended by deleting the last

sentence, which reads:

“In such cases, the regular proceedings shall be

suspended while the contempt is disposed of.”

g. R.C.M. 809(c) is amended to read as follows:

“(c) Procedure. The military judge shall in all

cases determine whether to punish for contempt and,

if so, what the punishment shall be. The military

judge shall also determine when during the courtm a r t i a l t h e c o n t e m p t p r o c e e d i n g s s h a l l b e c o n -

ducted; however, if the court-martial is composed of

members, the military judge shall conduct the contempt proceedings outside the members’ presence.

T h e m i l i t a r y j u d g e m a y p u n i s h s u m m a r i l y u n d e r

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. Otherwise, the provisions of subsection (b)(2) shall apply.”

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

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

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

may appeal an order or ruling that terminates the

proceedings with respect to a charge or specification, or excludes evidence that is substantial proof of

a fact material in the proceedings, or directs the

disclosure of classified information, or that imposes

sanctions for nondisclosure of classified information.

The United States may also appeal a refusal by the

military judge to issue a protective order sought by

the United States to prevent the disclosure of classified information or to enforce such an order that has

previously been issued by the appropriate authority.

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APPENDIX 25
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.”

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

“(a) In general. No person may be brought to

trial by court-martial if that person is presently suffering from a mental disease or defect rendering him

or her mentally incompetent to the extent that he or

s h e i s u n a b l e t o u n d e r s t a n d t h e n a t u r e o f t h e

proceedings against them or to conduct or cooperate

intelligently in the defense of the case.

( b ) P r e s u m p t i o n o f c a p a c i t y . A p e r s o n i s p r e -

sumed to have the capacity to stand trial unless the

contrary is established.

(c) Determination before referral. If an inquiry

pursuant to R.C.M. 706 conducted before referral

concludes that an accused is suffering from a mental

disease or defect that renders him or her mentally

incompetent to stand trial, the convening authority

before whom the charges are pending for disposition

may disagree with the conclusion and take any action authorized under R.C.M. 401, including referral

of the charges to trial. If that convening authority

concurs with the conclusion, he or she shall forward

the charges to the general court-martial convening

authority. If, upon receipt of the charges, the general

court-martial convening authority similarly concurs,

then he or she shall commit the accused to the custody of the Attorney General. If the general courtmartial convening authority does not concur, that

authority may take any action that he or she deems

appropriate in accordance with R.C.M. 407, including referral of the charges to trial.

( d ) D e t e r m i n a t i o n a f t e r r e f e r r a l . A f t e r r e f e r r a l ,

the military judge may conduct a hearing to determine the mental capacity of the accused, either sua

sponte or upon request of either party. If an inquiry

pursuant to R.C.M. 706 conducted before or after

referral concludes that an accused is suffering from

a mental disease or defect that renders him or her

m e n t a l l y i n c o m p e t e n t t o s t a n d t r i a l , t h e m i l i t a r y

judge shall conduct a hearing to determine the mental capacity of the accused. Any such hearing shall

be conducted in accordance with paragraph (e) of

this rule.

(e) Incompetence determination hearing.

(1) Nature of issue. The mental capacity of the

accused is an interlocutory question of fact.

(2) Standard. Trial may proceed unless it is

established by a preponderance of the evidence that

the accused is presently suffering from a mental

disease or defect rendering him or her mentally incompetent to the extent that he or she is unable to

understand the nature of the proceedings or to conduct or cooperate intelligently in the defense of the

c a s e . I n m a k i n g t h i s d e t e r m i n a t i o n , t h e m i l i t a r y

judge is not bound by the rules of evidence except

with respect to privileges.

(3) If the military judge finds the accused is

incompetent to stand trial, the judge shall report this

finding to the general court-martial convening authority, who shall commit the accused to the custody

of the Attorney General.

( f ) H o s p i t a l i z a t i o n o f t h e a c c u s e d . A n a c c u s e d

who is found incompetent to stand trial under this

rule shall be hospitalized by the Attorney General as

provided in section 4241(d) of title 18, United States

Code. If notified that the accused has recovered to

such an extent that he or she is able to understand

the nature of the proceedings and to conduct or

cooperate intelligently in the defense of the case,

then the general court-martial convening authority

shall promptly take custody of the accused. If, at the

end of the period of hospitalization, the accused’s

mental condition has not so improved, action shall

be taken in accordance with section 4246 of title 18,

United States Code.

(g) Excludable delay. All periods of commitment

shall be excluded as provided by R.C.M. 707(c).

The 120-day time period under R.C.M. 707 shall

begin anew on the date the general court-martial

convening authority takes custody of the accused at

the end of any period of commitment.”

j. R.C.M. 916(b) is amended to read as follows:

“(b) Burden of proof. Except for the defense of

lack of mental responsibility and the defense of mistake of fact as to age as described in Part IV, para.

45c.(2) in a prosecution for carnal knowledge, the

prosecution shall have the burden of proving beyond

a reasonable doubt that the defense did not exist.

The accused has the burden of proving the defense

of lack of mental responsibility by clear and convincing evidence, and has the burden of proving

mistake of fact as to age in a carnal knowledge

prosecution by a preponderance of the evidence.”

k. R.C.M. 916(j) is amended to read as follows:

“(j) Ignorance or mistake of fact.

(1) Generally. Except as otherwise provided in

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HISTORICAL EXECUTIVE ORDERS
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

o t h e r e l e m e n t r e q u i r i n g o n l y g e n e r a l i n t e n t o r

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.

(2) Carnal knowledge. It is a defense to a

prosecution for carnal knowledge that, at the time of

the sexual intercourse, the person with whom the

accused had sexual intercourse was at least 12 years

of age, and the accused reasonably believed the person was at least 16 years of age. The accused must

p r o v e t h i s d e f e n s e b y a p r e p o n d e r a n c e o f t h e

evidence.”

l. R.C.M. 920(e)(5)(D) is amended to read as follows:

“(D) The burden of proof to establish the

guilt of the accused is upon the Government. [When

the issue of lack of mental responsibility is raised,

add: The burden of proving the defense of lack of

mental responsibility by clear and convincing evidence is upon the accused. When the issue of mist a k e o f f a c t a s t o a g e i n a c a r n a l k n o w l e d g e

prosecution is raised, add: The burden of proving the

defense of mistake of fact as to age in carnal knowledge by a preponderance of the evidence is upon the

accused.]”

m. R.C.M. 1005(e) is amended to read as follows:

“(e) Required Instructions. Instructions on sentence shall include:

( 1 ) A s t a t e m e n t o f t h e m a x i m u m a u t h o r i z e d

punishment that may be adjudged and of the mandatory minimum punishment, if any;

(2) A statement of the effect any sentence ann o u n c e d i n c l u d i n g a p u n i t i v e d i s c h a r g e a n d

confinement, or confinement in excess of six months

will have on the accused’s entitlement to pay and

allowances;

(3) A statement of the procedures for deliberation and voting on the sentence set out in R.C.M.

1006;

(4) 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

(5) A statement that the members should consider all matters in extenuation, mitigation, and agg r a v a t i o n , w h e t h e r i n t r o d u c e d b e f o r e o r a f t e r

f i n d i n g s , a n d m a t t e r s i n t r o d u c e d u n d e r R . C . M .

1001(b)(1), (2), (3), and (5).”

n. The heading for R.C.M. 1101 is amended as follows:

“Rule 1101. Report of result of trial; post-trial res t r a i n t ; d e f e r m e n t o f c o n f i n e m e n t , f o r f e i t u r e s a n d

reduction in grade; waiver of Article 58b forfeitures”

o. R.C.M. 1101(c) is amended as follows:

“(c) Deferment of confinement, forfeitures or

reduction in grade.

(1) In general. Deferment of a sentence to

confinement, forfeitures, or reduction in grade is a

postponement of the running of a sentence.

(2) Who may defer. The convening authority

or, if the accused is no longer in the convening

authority’s jurisdiction, the officer exercising general

c o u r t - m a r t i a l j u r i s d i c t i o n o v e r t h e c o m m a n d t o

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, forfeitures, or

r e d u c t i o n i n g r a d e t h a t h a s n o t b e e n o r d e r e d

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, forfeitures, or reduction in grade. The

accused shall have the burden of showing that the

interests of the accused and the community in deferral outweigh the community’s interest in imposition

of the punishment on its effective date. Factors that

the authority acting on a deferment request may consider in determining whether to grant the deferment

request include, where applicable: 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 conv i c t e d ; t h e s e n t e n c e a d j u d g e d ; t h e c o m m a n d ’ s

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APPENDIX 25
immediate need for the accused; the effect of deferment on good order and discipline in the command;

the accused’s character, mental condition, family situation, and service record. The decision of the aut h o r i t y a c t i n g o n t h e d e f e r m e n t r e q u e s t s h a l l b e

subject to judicial review only for abuse of discretion. The action of the authority acting on the deferment request shall be in writing and a copy shall be

provided to the accused.

( 4 ) O r d e r s . T h e a c t i o n g r a n t i n g d e f e r m e n t

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

d e f e r m e n t a f t e r t h e c o n v e n i n g a u t h o r i t y ’ s a c t i o n

under R.C.M. 1107 shall be reported in orders under

R.C.M. 1114 and included in the record of trial.

( 5 ) R e s t r a i n t w h e n d e f e r m e n t i s g r a n t e d .

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 sent e n c e t o c o n f i n e m e n t , f o r f e i t u r e s , o r r e d u c t i o n i n

grade 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, forfeitures, or reduction in grade are suspended;

( C ) T h e d e f e r m e n t e x p i r e s b y i t s o w n

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.

(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 exerc i s i n g g e n e r a l c o u r t - m a r t i a l j u r i s d i c t i o n o v e r t h e

command to which the accused is assigned, may

rescind the deferment.

( B ) A c t i o n . D e f e r m e n t o f c o n f i n e m e n t ,

forfeitures, or reduction in grade 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

on the accused’s behalf and to request that the rescission be reconsidered. However, the accused may

be required to serve the sentence to confinement,

forfeitures, or reduction in grade pending this action.

( C ) E x e c u t i o n . W h e n d e f e r m e n t o f c o n -

finement is rescinded after the convening authority’s

action under R.C.M. 1107, the confinement may be

ordered executed. However, no such order to rescind

a deferment of confinement may be issued within 7

days of notice of the rescission of a deferment of

c o n f i n e m e n t t o t h e a c c u s e d u n d e r s u b s e c t i o n

(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 ) O r d e r s . R e s c i s s i o n o f a d e f e r m e n t

before or concurrently with the initial action in the

case shall be reported in the action under R.C.M.

1107(f)(4)(E), which action shall include the dates

of the granting of the deferment and the rescission.

Rescission of a deferment of confinement after the

c o n v e n i n g a u t h o r i t y ’ s a c t i o n s h a l l b e r e p o r t e d i n

s u p p l e m e n t a r y o r d e r s i n a c c o r d a n c e w i t h 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.”

p. R.C.M. 1101 is amended by adding the following

new subparagraph (d):

“(d) Waiving forfeitures resulting from a sentence

to confinement to provide for dependent support.

(1) With respect to forfeiture of pay and allowances resulting only by operation of law and not

adjudged by the court, the convening authority may

waive, for a period not to exceed six months, all or

part of the forfeitures for the purpose of providing

support to the accused’s dependent(s). The convening authority may waive and direct payment of any

such forfeitures when they become effective by operation of Article 57(a).

( 2 ) F a c t o r s t h a t m a y b e c o n s i d e r e d b y t h e

convening authority in determining the amount of

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HISTORICAL EXECUTIVE ORDERS
forfeitures, if any, to be waived include, but are not

limited to, the length of the accused’s confinement,

the number and age(s) of the accused’s family memb e r s , w h e t h e r t h e a c c u s e d r e q u e s t e d w a i v e r , a n y

debts owed by the accused, the ability of the accused’s family members to find employment, and

t h e a v a i l a b i l i t y o f t r a n s i t i o n a l c o m p e n s a t i o n f o r

abused dependents permitted under 10 U.S.C. 1059.

(3) For the purposes of this Rule, a “dependent” means any person qualifying as a “dependent”

under 37 U.S.C. 401.”

q. The following new rule is added after R.C.M.

1102:

“Rule 1102A. Post-trial hearing for person found not

g u i l t y o n l y b y r e a s o n o f l a c k o f m e n t a l

responsibility

(a) In general. The military judge shall conduct a

hearing not later than forty days following the finding that an accused is not guilty only by reason of a

lack of mental responsibility.

(b) Psychiatric or psychological examination and

report. Prior to the hearing, the military judge or

convening authority shall order a psychiatric or psyc h o l o g i c a l e x a m i n a t i o n o f t h e a c c u s e d , w i t h t h e

resulting psychiatric or psychological report transmitted to the military judge for use in the post-trial

hearing.

(c) Post-trial hearing.

(1) The accused shall be represented by defense counsel and shall have the opportunity to testify, present evidence, call witnesses on his or her

behalf, and to confront and cross-examine witnesses

who appear at the hearing.

(2) The military judge is not bound by the

rules of evidence except with respect to privileges.

( 3 ) A n a c c u s e d f o u n d n o t g u i l t y o n l y b y

reason of a lack of mental responsibility of an offense involving bodily injury to another, or serious

damage to the property of another, or involving a

substantial risk of such injury or damage, has the

burden of proving by clear and convincing evidence

that his or her release would not create a substantial

risk of bodily injury to another person or serious

damage to property of another due to a present mental disease or defect. With respect to any other offense, the accused has the burden of such proof by a

preponderance of the evidence.

(4) If, after the hearing, the military judge

finds the accused has satisfied the standard specified

in subsection (3) of this section, the military judge

shall inform the general court-martial convening authority of this result and the accused shall be released. If, however, the military judge finds after the

hearing that the accused has not satisfied the standard specified in subsection (3) of this section, then

the military judge shall inform the general courtmartial convening authority of this result and that

authority may commit the accused to the custody of

the Attorney General.”

r. R.C.M. 1105(b) is amended to read as follows:

“(b) Matters that may be submitted.

(1) The accused may submit to the convening

authority any matters that may reasonably tend to

affect the convening authority’s decision whether to

disapprove any findings of guilt or to approve the

sentence. The convening authority is only required

to consider written submissions.

(2) Submissions are not subject to the Military Rules of Evidence and may include:

(A) Allegations of errors affecting the legality of the findings or sentence;

( B ) P o r t i o n s o r s u m m a r i e s o f t h e r e c o r d

and copies of documentary evidence offered or introduced at trial;

( C ) M a t t e r s i n m i t i g a t i o n t h a t w e r e n o t

available for consideration at the court-martial; and

( D ) C l e m e n c y r e c o m m e n d a t i o n s b y a n y

member, the military judge, or any other person. The

d e f e n s e m a y a s k a n y p e r s o n f o r s u c h a

recommendation.”

s. R.C.M. 1107(b)(4) is amended to read as follows:

“(4) When proceedings resulted in a finding of

not guilty or not guilty only by reason of lack of

mental responsibility, or there was a ruling amounting to a finding of not guilty. The convening authority shall not take action disapproving a finding of

not guilty, a finding of not guilty only by reason of

lack of mental responsibility, or a ruling amounting

to a finding of not guilty. When an accused is found

not guilty only by reason of lack of mental responsibility, the convening authority, however, shall comm i t t h e a c c u s e d t o a s u i t a b l e f a c i l i t y p e n d i n g a

hearing and disposition in accordance with R.C.M.

1102A.”

t . T h e s u b h e a d i n g f o r R . C . M . 1 1 0 7 ( d ) ( 3 ) i s

amended to read as follows:

“ ( 3 ) D e f e r r i n g s e r v i c e o f a s e n t e n c e t o

confinement.”

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APPENDIX 25
u. R.C.M. 1107(d)(3)(A) is amended to read as follows:

“(A) In a case in which a court-martial sent e n c e s a n a c c u s e d r e f e r r e d t o i n s u b s e c t i o n ( B ) ,

below, to confinement, the convening authority may

defer service of a sentence to confinement by a

court-martial, without the consent of the accused,

until after the accused has been permanently released to the armed forces by a state or foreign

country.”

v. R.C.M. 1109 is amended to read as follows:

“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

that occurs within the period of suspension.

( 2 ) V a c a t i o n p r o c e e d i n g s . V a c a t i o n p r o c e e d -

ings 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.

(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.

( 1 ) I n g e n e r a l . A p r o b a t i o n e r u n d e r a s u s -

pended sentence to confinement may be confined

pending action under subsection (d)(2) of this rule,

in accordance with the procedures in this subsection.

(2) Who may order confinement. Any person

w h o m a y o r d e r p r e t r i a l r e s t r a i n t u n d e r R . C . M .

3 0 4 ( b ) m a y o r d e r c o n f i n e m e n t o f a p r o b a t i o n e r

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

suspension.

(4) Review of confinement. Unless proceedings

under subsection (d)(1), (e), (f), or (g) 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 in writing

of:

(i) The time, place, and purpose of the

h e a r i n g , i n c l u d i n g t h e a l l e g e d v i o l a t i o n ( s ) o f t h e

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 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 issue a written order directing that the probationer be 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 that

decision in a written memorandum, detailing therein

the evidence relied upon and reasons for making the

decision. The hearing officer shall forward the original memorandum or release order to the probatione r ’ s c o m m a n d e r a n d f o r w a r d a c o p y t o t h e

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HISTORICAL EXECUTIVE ORDERS
probationer and the officer in charge of the confinement facility.

(d) Vacation of suspended general court-martial

sentence.

(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, the

officer having special court-martial jurisdiction over

the probationer shall personally hold a hearing on

the alleged violation of the conditions of suspension.

If there is no officer having special court-martial

jurisdiction over the probationer who is subordinate

to the officer having general court-martial jurisdiction over the probationer, the officer exercising general court-martial jurisdiction over the probationer

s h a l l p e r s o n a l l y h o l d a h e a r i n g u n d e r s u b s e c t i o n

( d ) ( 1 ) o f t h i s r u l e . I n s u c h c a s e s , s u b s e c t i o n

(d)(1)(D) of this rule shall not apply.

(B) Notice to probationer. Before the hearing, the officer conducting the hearing shall cause

the probationer to be notified in writing of:

(i) The time, place, and purpose of the

hearing;

(ii) The right to be present at the hearing;

(iii) The alleged violation(s) of the conditions of suspension 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.

(C) Hearing. The procedure for the vacation

h e a r i n g s h a l l f o l l o w t h a t p r e s c r i b e d i n R . C . M .

405(g), (h)(1), and (i).

(D) Record and recommendation. The offic e r w h o c o n d u c t s t h e v a c a t i o n p r o c e e d i n g s h a l l

make a summarized record of the proceeding and

forward the record and that officer’s written recommendation concerning vacation to the officer exerc i s i n g g e n e r a l c o u r t - m a r t i a l j u r i s d i c t i o n o v e r t h e

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

court-martial convening authority shall order the release of the probationer from confinement ordered

under subsection (c) of this rule. The special courtmartial convening authority shall, in any event, forward the record and recommendation under subsection (d)(1)(D) of this rule.

(2) Action by officer exercising general courtmartial jurisdiction over probationer.

(A) In general. The officer exercising general court-martial jurisdiction over the probationer

shall review the record produced by and the recommendation of the officer exercising special courtm a r t i a l j u r i s d i c t i o n o v e r t h e p r o b a t i o n e r , d e c i d e

whether the probationer violated a condition of suspension, and, if so, decide whether to vacate the

suspended sentence. If the officer exercising general

court-martial jurisdiction decides to vacate the suspended sentence, that officer shall prepare a written

statement of the evidence relied on and the reasons

for vacating the suspended sentence.

( B ) E x e c u t i o n . A n y u n e x e c u t e d p a r t o f a

suspended sentence ordered vacated under this subsection shall, subject to R.C.M. 1113(c), be ordered

executed.

(e) Vacation of a suspended special court-martial

sentence wherein a bad-conduct discharge was not

adjudged.

(1) In general. Before vacating the suspension

of a special court-martial punishment that does not

include a bad-conduct discharge, the special courtm a r t i a l c o n v e n i n g a u t h o r i t y f o r t h e c o m m a n d i n

which the probationer is serving or assigned 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, in writing, before the hearing of the rights specified in

subsection (d)(1)(B) of this rule.

(3) Hearing. The procedure for the vacation

h e a r i n g s h a l l f o l l o w t h a t p r e s c r i b e d i n R . C . M .

405(g), (h)(1), and (i).

(4) Authority to vacate suspension. The special

court-martial convening authority for the command

in which the probationer is serving or assigned shall

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APPENDIX 25
have the authority to vacate any punishment that the

officer has the authority to order executed.

(5) Record and recommendation. If the hearing

is not held by the commander with authority to vacate the suspension, the person who conducts the

hearing shall make a summarized record of the hearing and forward the record and that officer’s written

recommendation concerning vacation to the commander with authority to vacate the suspension.

(6) Decision. The special court-martial convening authority shall review the record produced by

and the recommendation of the person who conducted the vacation proceeding, decide whether the

probationer violated a condition of suspension, and,

if so, decide whether to vacate the suspended sentence. If the officer exercising jurisdiction decides to

vacate the suspended sentence, that officer shall prepare a written statement of the evidence relied on

and the reasons for vacating the suspended sentence.

(7) Execution. Any unexecuted part of a suspended sentence ordered vacated under this subsection shall be ordered executed.

(f) Vacation of a suspended special court-martial

sentence that includes a bad-conduct discharge.

(1) The procedure for the vacation of a suspended approved bad-conduct discharge shall follow

that set forth in subsection (d) of this rule.

(2) The procedure for the vacation of the suspension of any lesser special court-martial punishment shall follow that set forth in subsection (e) of

this rule.

(g) Vacation of a suspended summary court-martial sentence.

(1) Before vacation of the suspension of a

summary court-martial sentence, the summary courtm a r t i a l c o n v e n i n g a u t h o r i t y f o r t h e c o m m a n d i n

which the probationer is serving or assigned 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)(1)(B)(i), (ii), (iii), and (v) of this rule.

(3) Hearing. The procedure for the vacation

h e a r i n g s h a l l f o l l o w t h a t p r e s c r i b e d i n R . C . M .

405(g), (h)(1), and (i).

(4) Authority to vacate suspension. The summary court-martial convening authority for the command in which the probationer is serving or assigned

shall have the authority to vacate any punishment

that the officer had the authority to order executed.

(5) Record and 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 written recommendation concerning vacation to the commander with authority to vacate the

suspension.

(6) Decision. A commander with authority to

vacate the suspension shall review the record produced by and the recommendation of the person

w h o c o n d u c t e d t h e v a c a t i o n p r o c e e d i n g , d e c i d e

whether the probationer violated a condition of suspension, and, if so, decide whether to vacate the

suspended sentence. If the officer exercising jurisdiction decides to vacate the suspended sentence,

that officer shall prepare a written statement of the

evidence relied on and the reasons for vacating the

suspended sentence.

(7) Execution. Any unexecuted part of a suspended sentence ordered vacated under this subsection shall be ordered executed.”

w. R.C.M. 1201(b)(3)(A) is amended to read as follows:

“ ( A ) I n g e n e r a l . N o t w i t h s t a n d i n g 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 that has been finally reviewed, but has

not been reviewed either by a Court of Criminal

Appeals or by the Judge Advocate General under

s u b s e c t i o n ( b ) ( 1 ) o f t h i s r u l e , o n t h e g r o u n d o f

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.”

x. R.C.M. 1203(c)(1) is amended to read as follows:

“(1) Forwarding by the Judge Advocate General to the Court of Appeals for the Armed Forces.

The Judge Advocate General may forward the decision of the Court of Criminal Appeals to the Court

of Appeals for the Armed Forces for review with

respect to any matter of law. In such a case, the

Judge Advocate General shall cause a copy of the

decision of the Court of Criminal Appeals and the

order forwarding the case to be served on the acA25-39

HISTORICAL EXECUTIVE ORDERS
cused and on appellate defense counsel. While a

review of a forwarded case is pending, the Secretary

concerned may defer further service of a sentence to

confinement that has been ordered executed in such

a case.”

y. R.C.M. 1210(a) is amended by adding at the end

thereof the following sentence:

“A petition for a new trial of the facts may not be

submitted on the basis of newly discovered evidence

when the petitioner was found guilty of the relevant

offense pursuant to a guilty plea.”

Section 2. Part III of the Manual for Courts-Martial,

United States, is amended as follows:

a. M.R.E. 412 is amended to read as follows:

“ R u l e 4 1 2 . N o n c o n s e n s u a l s e x u a l o f f e n s e s ; r e l e -

vance of victim’s behavior or sexual predisposition

(a) Evidence generally inadmissible. The following evidence is not admissible in any proceeding

involving alleged sexual misconduct except as provided in subdivisions (b) and (c) of this rule:

(1) Evidence offered to prove that any alleged

victim engaged in other sexual behavior; and

(2) Evidence offered to prove any alleged victim’s sexual predisposition.

(b) Exceptions.

(1) In a proceeding, the following evidence is

a d m i s s i b l e , i f o t h e r w i s e a d m i s s i b l e u n d e r t h e s e

rules:

(A) Evidence of specific instances of sexual behavior by the alleged victim offered to prove

that a person other than the accused was the source

of semen, injury, or other physical evidence;

(B) Evidence of specific instances of sexual

behavior by the alleged victim with respect to the

person accused of the sexual misconduct offered by

the accused to prove consent or by the prosecution;

and

(C) Evidence the exclusion of which would

violate the constitutional rights of the accused.

(c) Procedure to determine admissibility.

(1) A party intending to offer evidence under

subdivision (b) of this rule must:

(A) file a written motion at least 5 days

prior to entry of pleas specifically describing the

evidence and stating the purpose for which it is

offered unless the military judge, for good cause

shown, requires a different time for filing or permits

filing during trial; and

(B) serve the motion on the opposing party

and the military judge and notify the alleged victim

or, when appropriate, the alleged victim’s guardian

or representative.

(2) Before admitting evidence under this rule,

the military judge must conduct a hearing, which

shall be closed. At this hearing, the parties may call

witnesses, including the alleged victim, and offer

relevant evidence. The victim must be afforded a

reasonable opportunity to attend and be heard. In a

case before a court-martial composed of a military

judge and members, the military judge shall conduct

the hearing outside the presence of the members

p u r s u a n t t o A r t i c l e 3 9 ( a ) . T h e m o t i o n , r e l a t e d

papers, and the record of the hearing must be sealed

a n d r e m a i n u n d e r s e a l u n l e s s t h e c o u r t o r d e r s

otherwise.

(3) If the military judge determines on the

basis of the hearing described in paragraph (2) of

this subdivision that the evidence that 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 that 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 “sexual

behavior” includes any sexual behavior not encompassed by the alleged offense. The term “sexual predisposition” refers to an alleged victim’s mode of

dress, speech, or lifestyle that does not directly refer

to sexual activities or thoughts but that may have a

sexual connotation for the factfinder.

(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 attempts to

commit such offenses.”

b. M.R.E. 413 is added to read as follows:

Rule 413. Evidence of Similar Crimes in Sexual

Assault Cases

(a) In a court-martial in which the accused is

charged with an offense of sexual assault, evidence

of the accused’s commission of one or more offenses of sexual assault is admissible and may be

A25-40

APPENDIX 25
considered for its bearing on any matter to which it

is relevant.

(b) In a court-martial in which the Government

intends to offer evidence under this rule, the Government shall disclose the evidence to the accused,

including statements of witnesses or a summary of

the substance of any testimony that is expected to be

offered, at least 5 days before the scheduled date of

trial, or at such later time as the military judge may

allow for good cause.

(c) This rule shall not be construed to limit the

admission or consideration of evidence under any

other rule.

(d) For purposes of this rule, “offense of sexual

assault” means an offense punishable under the Uniform Code of Military Justice, or a crime under

Federal law or the law of a State that involved—

(1) any sexual act or sexual contact, without

consent, proscribed by the Uniform Code of Military

Justice, Federal law, or the law of a State;

(2) contact, without consent of the victim, between any part of the accused’s body, or an object

held or controlled by the accused, and the genitals or

anus of another person;

(3) contact, without consent of the victim, between the genitals or anus of the accused and any

part of another person’s body;

( 4 ) d e r i v i n g s e x u a l p l e a s u r e o r g r a t i f i c a t i o n

from the infliction of death, bodily injury, or physical pain on another person; or

(5) an attempt or conspiracy to engage in conduct described in paragraphs (1) through (4).

(e) For purposes of this rule, the term “sexual

act” means:

(1) contact between the penis and the vulva or

the penis and the anus, and for purposes of this rule,

contact occurs upon penetration, however slight, of

the penis into the vulva or anus;

(2) contact between the mouth and the penis, the

mouth and the vulva, or the mouth and the anus;

(3) the penetration, however slight, of the anal

or genital opening of another by a hand or finger or

by any object, with an intent to abuse, humiliate,

harass, degrade, or arouse or gratify the sexual desire of any person; or

(4) the intentional touching, not through the

clothing, of the genitalia of another person who has

not attained the age of 16 years, with an intent to

abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.

(f) For purposes of this rule, the term “sexual

c o n t a c t ” m e a n s t h e i n t e n t i o n a l t o u c h i n g , e i t h e r

directly or through the clothing, of the genitalia,

anus, groin, breast, inner thigh, or buttocks of any

person with an intent to abuse, humiliate, harass,

degrade, or arouse or gratify the sexual desire of any

person.

(g) For purposes of this rule, the term “State”

includes a State of the United States, the District of

Columbia, Puerto Rico, Guam, the Virgin Islands,

and any other territory or possession of the United

States.’

c. M.R.E. 414 is added to read as follows:

“Rule 414. Evidence of Similar Crimes in Child

Molestation Cases

(a) In a court-martial in which the accused is

charged with an offense of child molestation, evidence of the accused’s commission of one or more

offenses of child molestation is admissible and may

be considered for its bearing on any matter to which

it is relevant.

(b) In a court-martial in which the Government

intends to offer evidence under this rule, the Government shall disclose the evidence to the accused,

including statements of witnesses or a summary of

the substance of any testimony that is expected to be

offered, at least 5 days before the scheduled date of

trial or at such later time as the military judge may

allow for good cause.

(c) This rule shall not be construed to limit the

admission or consideration of evidence under any

other rule.

(d) For purposes of this rule, “child” means a

person below the age of sixteen, and “offense of

c h i l d m o l e s t a t i o n ” m e a n s a n o f f e n s e p u n i s h a b l e

under the Uniform Code of Military Justice, or a

crime under Federal law or the law of a State that

involved—

(1) any sexual act or sexual contact with a

child proscribed by the Uniform Code of Military

Justice, Federal law, or the law of a State;

(2) any sexually explicit conduct with children proscribed by the Uniform Code of Military

Justice, Federal law, or the law of a State;

(3) contact between any part of the accused’s

body, or an object controlled or held by the accused,

and the genitals or anus of a child;

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HISTORICAL EXECUTIVE ORDERS
(4) contact between the genitals or anus of the

accused and any part of the body of a child;

( 5 ) d e r i v i n g s e x u a l p l e a s u r e o r g r a t i f i c a t i o n

from the infliction of death, bodily injury, or physical pain on a child; or

(6) an attempt or conspiracy to engage in conduct described in paragraphs (1) through (5) of this

subdivision.

(e) For purposes of this rule, the term “sexual

act” means:

(1) contact between the penis and the vulva or

the penis and the anus, and for purposes of this rule

contact occurs upon penetration, however slight, of

the penis into the vulva or anus;

(2) contact between the mouth and the penis,

the mouth and the vulva, or the mouth and the anus;

(3) the penetration, however slight, of the anal

or genital opening of another by a hand or finger or

by any object, with an intent to abuse, humiliate,

harass, degrade, or arouse or gratify the sexual desire of any person; or

(4) the intentional touching, not through the

clothing, of the genitalia of another person who has

not attained the age of 16 years, with an intent to

abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.

(f) For purposes of this rule, the term “sexual

c o n t a c t ” m e a n s t h e i n t e n t i o n a l t o u c h i n g , e i t h e r

directly or through the clothing, of the genitalia,

anus, groin, breast, inner thigh, or buttocks of any

person with an intent to abuse, humiliate, harass,

degrade, or arouse or gratify the sexual desire of any

person.

(g) For purpose of this rule, the term “sexually

explicit conduct” means actual or simulated:

(1) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether

between persons of the same or opposite sex;

(2) bestiality;

(3) masturbation;

(4) sadistic or masochistic abuse; or

(5) lascivious exhibition of the genitals or pubic area of any person.

(h) For purposes of this rule, the term “State”

includes a State of the United States, the District of

Columbia, Puerto Rico, Guam, the Virgin Islands,

and any other territory or possession of the United

States.”

d. M.R.E. 1102 is amended to read as follows:

“Amendments to the Federal Rules of Evidence

shall apply to the Military Rules of Evidence 18

months after the effective date of such amendments,

u n l e s s a c t i o n t o t h e c o n t r a r y i s t a k e n b y t h e

President.”

Section 3. Part IV of the Manual for Courts-Martial,

United States, is amended as follows:

a. Paragraph 19 is amended to read as follows:

“ 19. Article 95—Resistance, flight, breach of

arrest, and escape

a. Text.

“Any person subject to this chapter who-

(1) resists apprehension;

(2) flees from apprehension;

(3) breaks arrest; or

(4) 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) Flight from apprehension.

(a) That a certain person attempted to apprehend the accused;

(b) That said person was authorized to apprehend the accused; and

( c ) T h a t t h e a c c u s e d f l e d f r o m t h e

apprehension.

(3) 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.

(4) 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 herA25-42

APPENDIX 25
self from custody before being released by proper

authority.

(5) 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 hers e l f f r o m c o n f i n e m e n t b e f o r e b e i n g r e l e a s e d b y

proper authority. [Note: If the escape was from posttrial confinement, add the following element]

(d) That the confinement was the result of a

court-martial conviction.

c. Explanation.

(1) Resisting apprehension.

(a) Apprehension. Apprehension is the taking of a person into custody. See R.C.M. 302.

( b ) A u t h o r i t y t o a p p r e h e n d . S e e 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. 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 existed

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) Flight from apprehension. The flight must

be active, such as running or driving away.

(3) 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, MCM). This article prohibits breaking any arrest.

( b ) A u t h o r i t y t o o r d e r a r r e s t . S e e R . C . M .

304(b) and paragraphs 2 and 5b, Part V, MCM,

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 immateria l . F o r e x a m p l e , i n n o c e n c e o f t h e o f f e n s e w i t h

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.

(4) 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 ) A u t h o r i t y t o a p p r e h e n d . S e e s u b -

paragraph (1)(b) above.

(c) Escape. For a discussion of escape, see

subparagraph c(5)(c), below.

( d ) I l l e g a l c u s t o d y . A p e r s o n m a y n o t b e

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.

(5) Escape from confinement.

(a) Confinement. Confinement is physical restraint imposed under R.C.M. 305, 1101, or parag r a p h 5 b , P a r t V , M C M . F o r p u r p o s e s o f t h e

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HISTORICAL EXECUTIVE ORDERS
e l e m e n t o f p o s t - t r i a l c o n f i n e m e n t ( s u b p a r a g r a p h

b(5)(d), above) and increased punishment therefrom

(subparagraph e (4), below), the confinement must

have been imposed pursuant to an adjudged sentence

of a court-martial, and not as a result of pretrial

restraint or nonjudicial punishment.

( b ) A u t h o r i t y t o o r d e r c o n f i n e m e n t . S e e

R.C.M. 304(b), 1101, and paragraphs 2 and 5b, Part

V, MCM, 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

f r o m c o n f i n e m e n t . S e e a l s o p a r a g r a p h 2 0 c . ( 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 eluded.

(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

m e a n s t o p r e v e n t t h a t p r i s o n e r f r o m e s c a p i n g ,

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 ) R e s i s t i n g a p p r e h e n s i o n . A r t i c l e 1 2 8 — a s -

sault; assault consummated by a battery

(2) Breaking arrest.

(a) Article 134—breaking restriction

(b) Article 80—attempts

(3) Escape from custody. Article 80—attempts

(4) Escape from confinement. Article 80—attempts

e. Maximum punishment.

( 1 ) R e s i s t i n g a p p r e h e n s i o n . B a d - c o n d u c t d i s -

charge, forfeiture of all pay and allowances, and

confinement for 1 year.

(2) Flight from apprehension. Bad-conduct discharge, forfeiture of all pay and allowances, and

confinement for 1 year.

( 3 ) B r e a k i n g a r r e s t . B a d - c o n d u c t d i s c h a r g e ,

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

(4) Escape from custody, pretrial confinement,

or confinement on bread and water or diminished

rations imposed pursuant to Article 15. Dishonorable discharge, forfeiture of all pay and allowances,

and confinement for 1 year.

( 5 ) E s c a p e f r o m p o s t - t r i a l c o n f i n e m e n t . D i s -

honorable discharge, forfeiture of all pay and allowances, and confinement for 5 years.

f. Sample specifications.

(1) Resisting apprehension.

In that (personal jurisdiction data), did (at/on board—location) (subject-matter jurisd i c t i o n d a t a , i f r e q u i r e d ) , o n o r

a b o u t 1 9 , r e s i s t b e i n g a p p r e -

hended by , (an armed force policeman)

( ), a person authorized to apprehend the

accused.

(2) Flight from apprehension.

In that (personal jurisdiction data), did (at/on board—location) (subject-matter jurisd i c t i o n d a t a , i f r e q u i r e d ) , o n o r

a b o u t 1 9 , f l e e a p p r e h e n s i o n

b y ( a n a r m e d f o r c e p o l i c e m a n )

( ), a person authorized to apprehend the

accused.

(3) 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

board—location) on or about 19 ,

break said arrest.

(4) Escape from custody.

In that (personal jurisdiction data), did, (at/on board—location) (subject-matter jur i s d i c t i o n d a t a , i f r e q u i r e d ) , o n o r

about 19 , escape from the custody of , a person authorized to apprehend the accused.

(5) Escape from confinement.

In that (personal jurisdiction daA25-44

APPENDIX 25
ta), having been placed in (post-trial) confinement in

(place of confinement), by a person authorized to

o r d e r s a i d a c c u s e d i n t o c o n f i n e m e n t d i d , ( a t / o n

board—location) (subject-matter jurisdiction data, if

r e q u i r e d ) , o n o r a b o u t 1 9 , e s -

cape from confinement.”

b. The following new paragraph is added after paragraph 97:

“97a. Article 134—(Parole, Violation of)

a. Text. See paragraph 60.

b. Elements.

(1) That the accused was a prisoner as the

result of a court-martial conviction or other criminal

proceeding;

(2) That the accused was on parole;

(3) That there were certain conditions of parole that the parolee was bound to obey;

(4) That the accused violated the conditions

of parole by doing an act or failing to do an act; 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” refers only to those in confinement resulting from conviction at a court-martial or

other criminal proceeding.

(2) “Parole” is defined as “word of honor.” A

prisoner on parole, or parolee, has agreed to adhere

to a parole plan and conditions of parole. A “parole

plan” is a written or oral agreement made by the

prisoner prior to parole to do or refrain from doing

certain acts or activities. A parole plan may include

a r e s i d e n c e r e q u i r e m e n t s t a t i n g w h e r e a n d w i t h

whom a parolee will live, and a requirement that the

prisoner have an offer of guaranteed employment.

“Conditions of parole” include the parole plan and

other reasonable and appropriate conditions of parole, such as paying restitution, beginning or continuing treatment for alcohol or drug abuse, or paying a

fine ordered executed as part of the prisoner’s courtm a r t i a l s e n t e n c e . I n r e t u r n f o r g i v i n g h i s o r h e r

“word of honor” to abide by a parole plan and conditions of parole, the prisoner is granted parole.

d. Lesser included offense. Article 80—attempts.

e. Maximum punishment. Bad-conduct discharge,

confinement for 6 months, and forfeiture of twothirds pay per month for 6 months.

f. Sample specification.

In that (personal jurisdiction data), a prisoner on parole, did, (at/on board—location), on or about 20 , violate the

conditions of his/her parole by ”

c. Paragraph 45.a and b are amended to read as

follows:

“45. Article 120—Rape and carnal knowledge

a. Text.

“(a) Any person subject to this chapter who

commits an act of sexual intercourse by force and

without consent, is guilty of rape and shall be punished by death or such other punishment as a courtmartial may direct.

(b) Any person subject to this chapter who,

under circumstances not amounting to rape, commits

an act of sexual intercourse with a person—

(1) who is not his or her spouse; and

(2) 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.

( d ) ( 1 ) I n a p r o s e c u t i o n u n d e r s u b s e c t i o n

(b), it is an affirmative defense that—

(A) the person with whom the accused

committed the act of sexual intercourse had at the

t i m e o f t h e a l l e g e d o f f e n s e a t t a i n e d t h e a g e o f

twelve years; and

(B) the accused reasonably believed that

the person had at the time of the alleged offense

attained the age of 16 years.

(2) The accused has the burden of proving

a defense under subparagraph (d)(1) by a preponderance of the evidence.”

b. Elements.

(1) Rape.

(a) That the accused committed an act of

sexual intercourse; and

(b) That the act of sexual intercourse was

done by force and without consent.

(2) Carnal knowledge.

(a) That the accused committed an act of

sexual intercourse with a certain person;

(b) That the person was not the accused’s

spouse; and

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HISTORICAL EXECUTIVE ORDERS
(c) That at the time of the sexual intercourse the person was under 16 years of age.”

d. Paragraph 45c.(2) is amended to read as follows:

“ ( 2 ) C a r n a l k n o w l e d g e . “ C a r n a l k n o w l -

edge” is sexual intercourse under circumstances not

amounting to rape, with a person who is not the

accused’s spouse and who has not attained the age

of 16 years. Any penetration, however slight, is sufficient to complete the offense. It is a defense, howe v e r , w h i c h t h e a c c u s e d m u s t p r o v e b y a

preponderance of the evidence, that at the time of

the act of sexual intercourse, the person with whom

the accused committed the act of sexual intercourse

was at least 12 years of age, and that the accused

reasonably believed that this same person was at

least 16 years of age.”

e. Paragraph 54e.(l) is amended to read as follows:

“(1) Simple Assault.

(A) Generally. Confinement for 3 months and

forfeiture of two-thirds pay per month for 3 months.

(B) When committed with an unloaded firearm.

Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 3 years.”

Section 4. These amendments shall take effect on

May 27, 1998, subject to the following:

(a) The amendments made to Military Rules of

Evidence 412, 413, and 414 shall apply only to

courts-martial in which arraignment has been completed on or after June 26, 1998.

(b) Nothing contained in these amendments shall

be construed to make punishable any act done or

omitted prior to June 26, 1998, which was not punishable when done or omitted.

(c) The amendment made to Part IV, para. 45c.(2),

authorizing a mistake of fact defense as to age in

c a r n a l k n o w l e d g e p r o s e c u t i o n s i s e f f e c t i v e i n a l l

cases in which the accused was arraigned on the

offense of carnal knowledge, or for a greater offense

that is later reduced to the lesser included offense of

carnal knowledge, on or after 10 February 1996.

( d ) N o t h i n g i n t h e s e a m e n d m e n t s s h a l l b e c o n -

s t r u e d t o i n v a l i d a t e a n y n o n j u d i c i a l p u n i s h m e n t

p r o c e e d i n g , r e s t r a i n t , i n v e s t i g a t i o n , r e f e r r a l o f

c h a r g e s , t r i a l i n w h i c h a r r a i g n m e n t o c c u r r e d , o r

other action begun prior to May 27, 1998, and any

such nonjudicial punishment proceeding, restraint,

investigation, referral of charges, trial or other action

may proceed in the same manner and with the same

e f f e c t a s i f t h e s e a m e n d m e n t s h a d n o t b e e n

prescribed.

THE WHITE HOUSE

May 27, 1998

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APPENDIX 25
EXECUTIVE ORDER 13140

1999 AMENDMENTS TO THE MANUAL FOR

COURTS-MARTIAL, UNITED STATES

By the authority vested in me as President by the

Constitution and the laws of the United States of

America, including chapter 47 of title 10, United

States Code (Uniform Code of Military Justice, 10

U.S.C. 801-946), in order to prescribe amendments

to the Manual for Courts-Martial, United States, prescribed by Executive Order 12473, as amended by

Executive Order 12484, Executive Order 12550, Executive Order 12586, Executive Order 12708, Execu t i v e O r d e r 1 2 7 6 7 , E x e c u t i v e O r d e r 1 2 8 8 8 ,

Executive Order 12936, Executive Order 12960, and

E x e c u t i v e O r d e r 1 3 0 8 6 , i t i s h e r e b y o r d e r e d a s

follows:

Section 1. Part II of the Manual for Courts-Martial,

United States, is amended as follows:

a. R.C.M. 502(c) is amended to read as follows:

“(c) Qualifications of military judge. 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. 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 Advoc a t e G e n e r a l o r t h e J u d g e A d v o c a t e G e n e r a l ’ s

designee. The Secretary concerned may prescribe

additional qualifications for military judges in spec i a l c o u r t s - m a r t i a l . A s u s e d i n t h i s s u b s e c t i o n

“military judge” does not include the president of a

special court-martial without a military judge.”

b. R.C.M. 804 is amended by redesignating the current subsection (c) as subsection (d) and inserting

after subsection (b) the following new subsection

(c):

“ ( c ) V o l u n t a r y a b s e n c e f o r l i m i t e d p u r p o s e o f

child testimony.

(1) Election by accused. Following a determination by the military judge that remote live testimony of a child is appropriate pursuant to Mil. R.

Evid. 611(d)(3), the accused may elect to voluntarily

absent himself from the courtroom in order to preclude the use of procedures described in R.C.M.

914A.

(2) Procedure. The accused’s absence will be

conditional upon his being able to view the witness’

testimony from a remote location. Normally, a twoway closed circuit television system will be used to

transmit the child’s testimony from the courtroom to

the accused’s location. A one-way closed circuit television system may be used if deemed necessary by

the military judge. The accused will also be provided private, contemporaneous communication with

his counsel. The procedures described herein shall

be employed unless the accused has made a knowing and affirmative waiver of these procedures.

( 3 ) E f f e c t o n a c c u s e d ’ s r i g h t s g e n e r a l l y . A n

election by the accused to be absent pursuant to

subsection (c)(1) shall not otherwise affect the accused’s right to be present at the remainder of the

trial in accordance with this rule.”

c. The following new rule is inserted after R.C.M.

914:

“Rule 914A. Use of remote live testimony of a

child

(a) General procedures. A child shall be allowed

to testify out of the presence of the accused after the

military judge has determined that the requirements

of Mil. R. Evid. 611(d)(3) have been satisfied. The

procedure used to take such testimony will be determined by the military judge based upon the exigenc i e s o f t h e s i t u a t i o n . H o w e v e r , s u c h t e s t i m o n y

should normally be taken via a two-way closed circuit television system. At a minimum, the following

procedures shall be observed:

(1) The witness shall testify from a remote

location outside the courtroom;

(2) Attendance at the remote location shall be

limited to the child, counsel for each side (not including an accused pro se), equipment operators, and

other persons, such as an attendant for the child,

whose presence is deemed necessary by the military

judge;

(3) Sufficient monitors shall be placed in the

courtroom to allow viewing and hearing of the testimony by the military judge, the accused, the members, the court reporter and the public;

(4) The voice of the military judge shall be

transmitted into the remote location to allow control

of the proceedings; and

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HISTORICAL EXECUTIVE ORDERS
(5) The accused shall be permitted private,

contemporaneous communication with his counsel.

(b) Prohibitions. The procedures described above

shall not be used where the accused elects to absent

h i m s e l f f r o m t h e c o u r t r o o m p u r s u a n t t o R . C . M .

804(c).”

d. R.C.M. 1001(b)(4) is amended by inserting the

following sentences between the first and second

sentences:

“Evidence in aggravation includes, but is not limited to, evidence of financial, social, psychological,

and medical impact on or cost to any person or

entity who was the victim of an offense committed

by the accused and evidence of significant adverse

impact on the mission, discipline, or efficiency of

t h e c o m m a n d d i r e c t l y a n d i m m e d i a t e l y r e s u l t i n g

from the accused’s offense. In addition, evidence in

aggravation may include evidence that the accused

intentionally selected any victim or any property as

the object of the offense because of the actual or

perceived race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation of any

person.”

e. R.C.M. 1003(b) is amended-

(1) by striking subsection (4) and

(2) by redesignating subsections (5), (6), (7),

(8), (9), (10), and (11) as subsections (4), (5), (6),

(7), (8), (9), and (10), respectively.

f. R.C.M. 1004(c)(7) is amended by adding at end

the following new subsection:

“(K) The victim of the murder was under 15 years

of age.”

Sec. 2. Part III of the Manual for Courts-Martial,

United States, is amended as follows:

a. Insert the following new rule after Mil. R. Evid.

512:

“Rule 513. Psychotherapist-patient privilege

( a ) G e n e r a l r u l e o f p r i v i l e g e . A p a t i e n t h a s a

privilege to refuse to disclose and to prevent any

other person from disclosing a confidential commun i c a t i o n m a d e b e t w e e n t h e p a t i e n t a n d a

p s y c h o t h e r a p i s t o r a n a s s i s t a n t t o t h e

psychotherapist, in a case arising under the UCMJ,

if such communication was made for the purpose of

facilitating diagnosis or treatment of the patient’s

mental or emotional condition.

(b) Definitions. As used in this rule of evidence:

(1) A “patient” is a person who consults with

or is examined or interviewed by a psychotherapist

for purposes of advice, diagnosis, or treatment of a

mental or emotional condition.

(2) A “psychotherapist” is a psychiatrist, clinical psychologist, or clinical social worker who is

licensed in any state, territory, possession, the District of Columbia or Puerto Rico to perform professional services as such, or who holds credentials to

provide such services from any military health care

facility, or is a person reasonably believed by the

patient to have such license or credentials.

(3) An “assistant to a psychotherapist” is a

p e r s o n d i r e c t e d b y o r a s s i g n e d t o a s s i s t a

psychotherapist in providing professional services,

or is reasonably believed by the patient to be such.

(4) A communication is “confidential” if not

intended to be disclosed to third persons other than

those to whom disclosure is in furtherance of the

rendition of professional services to the patient or

those reasonably necessary for such transmission of

the communication.

(5) “Evidence of a patient’s records or communications” is testimony of a psychotherapist, or

assistant to the same, or patient records that pertain

to communications by a patient to a psychotherapist,

or assistant to the same for the purposes of diagnosis

or treatment of the patient’s mental or emotional

condition.

(c) Who may claim the privilege. The privilege

may be claimed by the patient or the guardian or

conservator of the patient. A person who may claim

the privilege may authorize trial counsel or defense

counsel to claim the privilege on his or her behalf.

T h e p s y c h o t h e r a p i s t o r a s s i s t a n t t o t h e

p s y c h o t h e r a p i s t w h o r e c e i v e d t h e c o m m u n i c a t i o n

may claim the privilege on behalf of the patient. The

authority of such a psychotherapist, assistant, guardian, or conservator to so assert the privilege is presumed in the absence of evidence to the contrary.

(d) Exceptions. There is no privilege under this

rule:

(1) when the patient is dead;

(2) when the communication is evidence of

s p o u s e a b u s e , c h i l d a b u s e , o r n e g l e c t o r i n a

proceeding in which one spouse is charged with a

crime against the person of the other spouse or a

child of either spouse;

(3) when federal law, state law, or service

regulation imposes a duty to report information contained in a communication;

A25-48

APPENDIX 25
(4) when a psychotherapist or assistant to a

psychotherapist believes that a patient’s mental or

emotional condition makes the patient a danger to

any person, including the patient;

(5) if the communication clearly contemplated

the future commission of a fraud or crime or if the

services of the psychotherapist are sought or obtained to enable or aid anyone to commit or plan to

commit what the patient knew or reasonably should

have known to be a crime or fraud;

(6) when necessary to ensure the safety and

security of military personnel, military dependents,

military property, classified information, or the accomplishment of a military mission;

( 7 ) w h e n a n a c c u s e d o f f e r s s t a t e m e n t s o r

other evidence concerning his mental condition in

defense, extenuation, or mitigation, under circumstances not covered by R.C.M. 706 or Mil. R. Evid.

302. In such situations, the military judge may, upon

motion, order disclosure of any statement made by

the accused to a psychotherapist as may be necessary in the interests of justice; or

(8) when admission or disclosure of a communication is constitutionally required.

(e) Procedure to determine admissibility of patient records or communications.

(1) In any case in which the production or

admission of records or communications of a patient

other than the accused is a matter in dispute, a party

may seek an interlocutory ruling by the military

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

shall:

(A) file a written motion at least 5 days

prior to entry of pleas specifically describing the

evidence and stating the purpose for which it is

sought or offered, or objected to, unless the military

judge, for good cause shown, requires a different

time for filing or permits filing during trial; and

(B) serve the motion on the opposing party,

the military judge and, if practical, notify the patient

or the patient’s guardian, conservator, or representative that the motion has been filed and that the

patient has an opportunity to be heard as set forth in

subparagraph (e)(2).

(2) Before ordering the production or admission of evidence of a patient’s records or communication, the military judge shall conduct a hearing.

Upon the motion of counsel for either party and

upon good cause shown, the military judge may

order the hearing closed. At the hearing, the parties

may call witnesses, including the patient, and offer

o t h e r r e l e v a n t e v i d e n c e . T h e p a t i e n t s h a l l b e a f -

forded a reasonable opportunity to attend the hearing

and be heard at the patient’s own expense unless the

patient has been otherwise subpoenaed or ordered to

a p p e a r a t t h e h e a r i n g . H o w e v e r , t h e p r o c e e d i n g s

shall not be unduly delayed for this purpose. In a

case before a court-martial composed of a military

judge and members, the military judge shall conduct

the hearing outside the presence of the members.

(3) The military judge shall examine the evidence or a proffer thereof in camera, if such examination is necessary to rule on the motion.

(4) To prevent unnecessary disclosure of evidence of a patient’s records or communications, the

military judge may issue protective orders or may

admit only portions of the evidence.

(5) The motion, related papers, and the record

of the hearing shall be sealed and shall remain under

seal unless the military judge or an appellate court

orders otherwise.”

b. Mil. R. Evid. 611 is amended by inserting the

following new subsection at the end:

”(d) Remote live testimony of a child.

(1) In a case involving abuse of a child or

domestic violence, the military judge shall, subject

to the requirements of subsection (3) of this rule,

allow a child victim or witness to testify from an

area outside the courtroom as prescribed in R.C.M.

914A.

(2) The term “child” means a person who is

under the age of 16 at the time of his or her testimony. The term “abuse of a child” means the physical

or mental injury, sexual abuse or exploitation, or

n e g l i g e n t t r e a t m e n t o f a c h i l d . T h e t e r m

“ e x p l o i t a t i o n ” m e a n s c h i l d p o r n o g r a p h y o r c h i l d

prostitution. The term “negligent treatment” means

the failure to provide, for reasons other than poverty,

adequate food, clothing, shelter, or medical care so

as to endanger seriously the physical health of the

child. The term “domestic violence” means an offense that has as an element the use, attempted use,

or threatened use of physical force against a person

and is committed by a current or former spouse,

parent, or guardian of the victim; by a person with

whom the victim shares a child in common; by a

person who is cohabiting with or has cohabited with

the victim as a spouse, parent, or guardian; or by a

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p e r s o n s i m i l a r l y s i t u a t e d t o a s p o u s e , p a r e n t , o r

guardian of the victim.

(3) Remote live testimony will be used only

where the military judge makes a finding on the

record that a child is unable to testify in open court

in the presence of the accused, for any of the following reasons:

(A) The child is unable to testify because

of fear;

(B) There is substantial likelihood, established by expert testimony, that the child would suffer emotional trauma from testifying;

( C ) T h e c h i l d s u f f e r s f r o m a m e n t a l o r

other infirmity; or

( D ) C o n d u c t b y a n a c c u s e d o r d e f e n s e

counsel causes the child to be unable to continue

testifying.

(4) Remote live testimony of a child shall not

be utilized where the accused elects to absent himself from the courtroom in accordance with R.C.M.

804(c).”

Sec. 3. Part IV of the Manual for Courts-Martial,

United States, is amended as follows:

a. Insert the following new paragraph after paragraph 100:

“100a. Article 134—(Reckless endangerment)

a. Text. See paragraph 60.

b. Elements.

(1) That the accused did engage in conduct;

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

(3) That the conduct was likely to produce

death or grievous bodily harm to another person;

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) In general. This offense is intended to prohibit and therefore deter reckless or wanton conduct

that wrongfully creates a substantial risk of death or

serious injury to others.

(2) Wrongfulness. Conduct is wrongful when it

is without legal justification or excuse.

( 3 ) R e c k l e s s n e s s . “ R e c k l e s s ” c o n d u c t i s c o n -

duct that exhibits a culpable disregard of foreseeable

consequences to others from the act or omission

involved. The accused need not intentionally cause a

resulting harm or know that his conduct is substantially certain to cause that result. The ultimate quest i o n i s w h e t h e r , u n d e r a l l t h e c i r c u m s t a n c e s , t h e

accused’s conduct was of that heedless nature that

made it actually or imminently dangerous to the

rights or safety of others.

(4) Wantonness. “Wanton” includes “reckless,”

but may connote willfulness, or a disregard of probable consequences, and thus describe a more aggravated offense.

( 5 ) L i k e l y t o p r o d u c e W h e n t h e n a t u r a l o r

probable consequence of particular conduct would

be death or grievous bodily harm, it may be inferred

that the conduct is “likely” to produce that result.

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

( 6 ) G r i e v o u s b o d i l y h a r m . “ G r i e v o u s b o d i l y

harm” means serious bodily injury. It does not include minor injuries, such as a black eye or a bloody

nose, but does include fractured or dislocated bones,

deep cuts, torn members of the body, serious dama g e t o i n t e r n a l o r g a n s , a n d o t h e r s e r i o u s b o d i l y

injuries.

(7) Death or injury not required. It is not necessary that death or grievous bodily harm be actually

inflicted to prove reckless endangerment.

d. Lesser included offense. None.

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, (at/on board—location) (subject-matter jur i s d i c t i o n d a t a , i f r e q u i r e d ) , o n o r

a b o u t 2 0 , w r o n g f u l l y a n d r e c k -

l e s s l y e n g a g e i n c o n d u c t , t o w i t : ( h e / s h e ) ( d e s c r i b e

conduct) and that the accused’s conduct was likely

t o c a u s e d e a t h o r s e r i o u s b o d i l y h a r m

to ”

Sec. 4. These amendments shall take effect on 1

November 1999, subject to the following:

(a) The amendments made to Military Rule of Evidence 611, shall apply only in cases in which arr a i g n m e n t h a s b e e n c o m p l e t e d o n o r a f t e r 1

November 1999.

(b) Military Rule of Evidence 513 shall only apply

to communications made after 1 November 1999.

(c) The amendments made to Rules for CourtsA25-50

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Martial 502, 804, and 914A shall only apply in cases

in which arraignment has been completed on or after

1 November 1999.

(d) The amendments made to Rules for CourtsMartial 1001(b)(4) and 1004(c)(7) shall only apply

to offenses committed after 1 November 1999.

( e ) N o t h i n g i n t h e s e a m e n d m e n t s s h a l l b e c o n -

strued to make punishable any act done or omitted

prior to 1 November 1999, which was not punishable when done or omitted.

(f) The maximum punishment for an offense committed prior to 1 November 1999, shall not exceed

the applicable maximum in effect at the time of the

commission of such offense.

( g ) N o t h i n g i n t h e s e a m e n d m e n t s s h a l l b e c o n -

s t r u e d t o i n v a l i d a t e a n y n o n j u d i c i a l p u n i s h m e n t

p r o c e e d i n g , r e s t r a i n t , i n v e s t i g a t i o n , r e f e r r a l o f

c h a r g e s , t r i a l i n w h i c h a r r a i g n m e n t o c c u r r e d , o r

other action begun prior to 1 November 1999, and

any such nonjudicial punishment, restraint, investigation, referral of charges, trial, or other action may

proceed in the same manner and with the same effect as if these amendments had not been prescribed.

THE WHITE HOUSE

October 6, 1999.

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APPENDIX 25
Executive Order 13365 of December 3, 2004

2004 Amendments to the Manual for CourtsMartial, United States

By the authority vested in me as President by the

Constitution and the laws of the United States of

America, including chapter 47 of title 10, United

States Code (Uniform Code of Military Justice, 10

U.S.C. 801-946), and in order to prescribe amendm e n t s t o t h e M a n u a l f o r C o u r t s - M a r t i a l , U n i t e d

S t a t e s , p r e s c r i b e d b y E x e c u t i v e O r d e r 1 2 4 7 3 , a s

amended, it is hereby ordered as follows:

Section 1.

(a) Paragraph 4 of the Preamble to Part I of the

M a n u a l f o r C o u r t s - M a r t i a l , U n i t e d S t a t e s , i s

amended by adding a third subparagraph to read as

follows:

The Department of Defense Joint Service Committee

(JSC) on Military Justice reviews the Manual for

Courts-Martial and proposes amendments to the Department of Defense for con-sideration by the President on an annual basis. In conducting its annual

r e v i e w , t h e J S C i s g u i d e d b y D o D D i r e c t i v e

5 5 0 0 . 1 7 , “ T h e R o l e s a n d R e s p o n s i b i l i t i e s o f t h e

Joint Service Committee (JSC) on Military Justice.”

DoD Directive 5500.17 includes provisions allowing

public participation in the annual review process.

( b ) D e p a r t m e n t o f D e f e n s e D i r e c t i v e 5 5 0 0 . 1 7

shall be included as Appendix 26 to the Manual for

Courts-Martial, United States.

Part II of the Manual for Courts-Martial, United

States, is amended as follows:

(a) R.C.M. 307(c)(3) is amended to read as follows:

Specification. 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. Except for aggravating factors under R.C.M. 1003(d) and R.C.M.

1004, facts that increase the maximum authorized

punishment must be alleged in order to permit the

possible increased punishment. No particular format

is required.

(b) R.C.M. 707(b)(3)(D) is amended to read as follows:

Rehearings. If a rehearing is ordered or authorized

by an appellate court, a new 120-day time period

under this rule shall begin on the date that the responsible convening authority receives the record of

t r i a l a n d t h e o p i n i o n a u t h o r i z i n g o r d i r e c t i n g a

rehearing. An accused is brought to trial within the

m e a n i n g o f t h i s r u l e a t t h e t i m e o f a r r a i g n m e n t

under R.C.M. 904 or, if arraignment is not required

(such as in the case of a sentence-only rehearing), at

the time of the first session under R.C.M. 803.

(c) R.C.M. 707(c) is amended to read as follows:

Excludable delay. All periods of time during which

appellate courts have issued stays in the proceedings, or the accused is absent without authority, or

the accused is hospitalized due to incompetence, or

is otherwise in the custody of the Attorney General,

shall be excluded when determining whether the period in subsection (a) of this rule has run. All other

pretrial delays approved by a military judge or the

convening authority shall be similarly excluded.

(d) R.C.M. 707(d) is amended to read as follows:

Remedy. A failure to comply with this rule will

result in dismissal of the affected charges, or, in a

s e n t e n c e - o n l y r e h e a r i n g , s e n t e n c e r e l i e f a s

appropriate.

(1) Dismissal. Dismissal will be with or without

p r e j u d i c e t o t h e g o v e r n m e n t ’ s r i g h t t o r e i n s t i t u t e

court-martial pro-ceedings against the accused for

the same offense at a later date. The charges must be

dismissed with prejudice where the accused has been

d e p r i v e d o f h i s o r h e r c o n s t i t u t i o n a l r i g h t t o a

s p e e d y t r i a l . I n d e t e r m i n i n g w h e t h e r t o d i s m i s s

charges with or without prejudice, the court shall

consider, among others, each of the following factors: the seriousness of the offense; the facts and

circumstances of the case that lead to dismissal; the

impact of a re-prosecution on the administration of

justice; and any prejudice to the accused resulting

from the denial of a speedy trial.

( 2 ) S e n t e n c e r e l i e f . I n d e t e r m i n i n g w h e t h e r o r

how much sentence relief is appropriate, the military

judge shall consider, among others, each of the following factors: the length of the delay, the reasons

for the delay, the accused’s demand for speedy trial,

and any prejudice to the accused from the delay.

Any sentence relief granted will be applied against

the sentence approved by the convening authority.

(e) R.C.M. 806(b) is amended to read as follows:

(b) Control of spectators and closure.

(1) 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, and exclude specific persons from

the courtroom. When excluding specific persons, the

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military judge must make findings on the record

establishing the reason for the exclusion, the basis

for the military judge’s belief that exclusion is necessary, and that the exclusion is as narrowly tailored

as possible.

(2) Closure. Courts-martial shall be open to the

public unless (1) there is a substantial probability

that an overriding interest will be prejudiced if the

proceedings remain open; (2) closure is no broader

than necessary to protect the over-riding interest; (3)

reasonable alternatives to closure were considered

and found inadequate; and (4) the military judge

makes case-specific findings on the record justifying

closure.

(f) R.C.M. 916(k)(2) is amended to read as follows:

(2) Partial mental responsibility. A mental condition

not amounting to a lack of mental responsibility

under subsection (k)(1) of this rule is not an affirmative defense.

(h) The following subsection (iv) is inserted after

R.C.M. 1107(e)(1)(B)(iii) to read as follows:

(iv) Sentence reassessment. If a superior authority

has approved some of the findings of guilty and has

authorized a rehearing as to other offenses and the

sentence, the convening authority may, unless otherwise directed, reassess the sentence based on the

approved findings of guilty and dismiss the remaining charges. Reassessment is appropriate only where

t h e c o n v e n i n g a u t h o r i t y d e t e r m i n e s t h a t t h e a c -

cused’s sentence would have been at least of a certain magnitude had the pre-judicial error not been

committed and the reassessed sentence is appropriate

in relation to the affirmed findings of guilty.

(i) R.C.M. 1108(b) is amended to read as follows:

(b) Who may suspend and remit. The convening

authority may, after approving the sentence, suspend

the execution of all or any part of the sentence of a

court-martial, except for a sentence of death. The

general court-martial convening authority over the

accused at the time of the court-martial may, when

taking the action under R.C.M. 1112(f), suspend or

remit any part of the sentence. The Secretary concerned and, when designated by the Secretary concerned, any Under Secretary, Assistant Secretary,

J u d g e A d v o c a t e G e n e r a l , o r c o m m a n d i n g o f f i c e r

may suspend or remit any part or amount of the

unexecuted part of any sentence other than a sentence approved by the President or a sentence of

confinement for life without eligi-bility for parole

that has been ordered executed. The Secretary concerned may, however, suspend or remit the unexecuted part of a sentence of confinement for life

without eligibility for parole only after the service of

a period of confinement of not less than 20 years.

The commander of the accused who has the authority to convene a court-martial of the kind that adjudged the sentence may suspend or remit any part

of the unexecuted part of any sentence by summary

court-martial or of any sentence by special courtm a r t i a l t h a t d o e s n o t i n c l u d e a b a d - c o n d u c t d i s -

charge regardless of whether the person acting has

previously approved the sentence. The “unexecuted

part of any sentence” is that part that has been approved and ordered executed but that has not actually been carried out.

(j) R.C.M. 1305(c) is amended to read as follows:

(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

n o t t a k e a c t i o n b e f o r e t h e p e r i o d p r e s c r i b e d i n

R.C.M. 1105(c)(2) has expired, unless the right to

s u b m i t m a t t e r s h a s b e e n w a i v e d u n d e r R . C . M .

1105(d).

Sec 3. Part III of the Manual for Courts-Martial,

United States, is amended as follows:

(a) Mil. R. Evid. 103(a)(2) is amended to read as

follows:

(2) Offer of proof. In case the ruling is one excludi n g e v i d e n c e , t h e s u b s t a n c e o f t h e e v i d e n c e w a s

made known to the military judge by offer or was

apparent from the context within which questions

were asked. Once the military judge makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not

renew an objection or offer of proof to preserve a

claim of error for appeal. The standard provided in

this subdivision does not apply to errors involving

r e q u i r e m e n t s i m p o s e d b y t h e C o n s t i t u t i o n o f t h e

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) Mil. R. Evid. 404(a) is amended to read as follows:

(a) Character evidence generally. Evidence of a pers o n ’ s c h a r a c t e r o r a t r a i t o f c h a r a c t e r i s n o t

admissible for the purpose of proving action in conformity therewith on a particular occasion, except:

(1) Character of accused. Evidence of a pertinent

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trait of character offered by an accused, or by the

prosecution to rebut the same, or if evidence of a

pertinent trait of character of the alleged victim of

the crime is offered by an accused and admitted

under Mil. R. Evid. 404(a)(2), evidence of the same

trait of character, if relevant, of the accused offered

by the prosecution;

(2) Character of alleged victim. Evidence of a

pertinent trait of character of the alleged 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 alleged victim offered by

the prosecution in a homicide or assault case to

r e b u t e v i d e n c e t h a t t h e a l l e g e d v i c t i m w a s a n

aggressor;

(3) Character of witness. Evidence of the character of a witness, as provided in Mil. R. Evid. 607,

608, and 609.

(c) Mil. R. Evid. 701 is amended to read as follows:

If the witness is not testifying as an expert, the

witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences that

are (a) rationally based on the perception of the

witness, (b) helpful to a clear understanding of the

witness’ testimony or the determination of a fact in

issue, and (c) not based in scientific, technical, or

o t h e r s p e c i a l i z e d k n o w l e d g e w i t h i n t h e s c o p e o f

Rule 702.

(d) Mil. R. Evid. 702 is amended to read as follows:

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 if (1) the testimony

is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles

and methods reliably to the facts of the case.

(e) Mil. R. Evid. 703 is amended to read as follows:

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 in order for

the opinion or inference to be admitted. Facts or

data that are otherwise inadmissible shall not be

disclosed to the members by the proponent of the

opinion or inference unless the military judge determ i n e s t h a t t h e i r p r o b a t i v e v a l u e i n a s s i s t i n g t h e

members to evaluate the expert’s opinion substantially outweighs their prejudicial effect.

(f) Mil. R. Evid. 803(6) is amended to read as follows:

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 busin e s s a c t i v i t y t o m a k e t h e m e m o r a n d u m , r e p o r t ,

record, or data compilation, all as shown by the

testimony of the custodian or other qualified witness, or by certification that complies with Mil. R.

Evid. 902(11) or any other statute permitting certification in a criminal proceeding in a court of the

United States, unless the source of the information

or the method or circumstances of preparation indicate a 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

c o n d u c t e d f o r p r o f i t . A m o n g t h o s e m e m o r a n d a ,

reports, records, or data compilations normally admissible pursuant to this paragraph are enlistment

papers, physical examination papers, outline-figure

a n d f i n g e r p r i n t c a r d s , f o r e n s i c l a b o r a t o r y r e p o r t s ,

chain of custody documents, morning reports and

o t h e r p e r s o n n e l a c c o u n t a b i l i t y d o c u m e n t s , s e r v i c e

records, officer and enlisted qualification records,

logs, unit personnel diaries, individual equipment records, daily strength records of prisoners, and rosters

of prisoners.

(g) The following subsection (11) is inserted after

Mil. R. Evid. 902(10) to read as follows:

(11) Certified domestic records of regularly conducted activity. The original or a duplicate of a

domestic record of regularly conducted activity that

would be admissible under Mil. R. Evid. 803(6) if

accompanied by a written declaration of its custodian or other qualified person, in a manner complying with any Act of Congress or rule prescribed by

the Supreme Court pursuant to statutory authority,

certifying that the record (A) was made at or near

the time of the occurrence of the matters set forth

by, or from information transmitted by, a person

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with knowledge of those matters; (B) was kept in

the course of the regularly conducted activity; and

(C) was made by the regularly conducted activity as

a regular practice. A party intending to offer a record into evidence under this paragraph must provide written notice of that intention to all adverse

parties, and must make the record and declaration

available for inspection sufficiently in advance of

their offer into evidence to provide an adverse party

with a fair opportunity to challenge them.

(h) Mil. R. Evid. 1102 is amended to read as follows:

(a) Amendments to the Federal Rules of Evidence

shall apply to the Military Rules of Evidence 18

months after the effective date of such amendments,

unless action to the contrary is taken by the President.

(b) Rules Determined Not To Apply. The President

has determined that the following Federal Rules of

Evidence do not apply to the Military Rules of Evidence: Rules 301, 302, 415, and 902(12).

Sec. 4. Part IV of the Manual for Courts-Martial,

United States, is amended as follows:

(a) Paragraph 45(b)(2) is amended by deleting paragraph 45(b)(2)(c) and inserting the following after

paragraph 45(b)(2)(b):

(c)(1) That at the time of the sexual intercourse the

person was under the age of 12; or

(2) That at the time of the sexual intercourse the

person had attained the age of 12 but was under the

age of 16.

(b) Paragraph 45(f) is amended to read as follows:

f. Sample specifications.

(1) Rape.

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

- l o c a t i o n ) ( s u b j e c t - m a t t e r j u r i s d i c t i o n d a t a , i f r e -

quired), on or about 20 , rape , (a person under the

age of 12) (a person who had attained the age of 12

but was under the age of 16).

(2) Carnal Knowledge.

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

- l o c a t i o n ) ( s u b j e c t - m a t t e r j u r i s d i c t i o n d a t a , i f r e -

quired), on or about 20 , commit the offense of

carnal knowledge with , (a person under the age of

12) (a person who attained the age of 12 but was

under the age of 16).

(c) Paragraph 51(b) is amended to read as follows:

(1) That the accused engaged in unnatural carnal

copulation with a certain other person or with an

animal.

(Note: Add any of the following as applicable)

(2) That the act was done with a child under the age

of 12.

(3) That the act was done with a child who had

attained the age of 12 but was under the age of 16.

(4) That the act was done by force and without the

consent of the other person.

(d) Paragraph 51(f) is amended to read as follows:

f. Sample specification.

I n t h a t ( p e r s o n a l j u r i s d i c t i o n d a t a ) , d i d , ( a t / o n

boardlocation) (subject-matter jurisdiction data, if required), on or about _________ 20__, commit sodomy with

, (a child under the age of 12) (a child who had

attained the age of 12 but was under the age of 16)

(by force and without the consent of the said ).

(e) Paragraph 57(c)(2)(b) is amended to read as follows:

(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 continua n c e , a s w e l l a s b y g i v i n g f a l s e t e s t i m o n y w i t h

respect to a fact from which a legitimate inference

may be drawn as to the existence or nonexistence of

a fact in issue.

(f) Paragraph 100a(c)(1) is amended to read as follows:

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

and therefore deter reckless or wanton conduct that

w r o n g f u l l y c r e a t e s a s u b s t a n t i a l r i s k o f d e a t h o r

grievous bodily harm to others.

(g) Paragraph 100a(f) is amended to read as follows:

f. Sample specification.

I n t h a t ( p e r s o n a l j u r i s d i c t i o n d a t a ) , d i d , ( a t / o n

boardlocation) (subject-matter jurisdiction data, if required), on or about 20 , wrongfully and (recklessly)

(wantonly) engage in conduct, to wit: (describe conduct), conduct likely to cause death or grievous bodily harm to __________________.’

Sec. 5. These amendments shall take effect 30 days

from the date of this order.

(a) Nothing in these amendments shall be construed

to make punishable any act done or omitted prior to

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the effective date of this order that was not punishable when done or omitted.

(b) Nothing in these amendments shall be construed

to invalidate any nonjudicial punishment proceeding,

restraint, investigation, referral of charges, trial in

which arraignment occurred, or other action begun

prior to the effective date of this order, and any such

nonjudicial proceeding, restraint, investigation, referral of charges, trial, or other action may proceed in

the same manner and with the same effect as if these

amendments had not been prescribed.

THE WHITE HOUSE

December 3, 2004.

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HISTORICAL EXECUTIVE ORDERS
Executive Order 13387: 2005 Amendments to

the Manual for Courts-Martial, United States

By the authority vested in me as President by the

Constitution and the laws of the United States of

America, including chapter 47 of title 10, United

States Code (Uniform Code of Military Justice, 10

U.S.C. 801-946), and in order to prescribe amendm e n t s t o t h e M a n u a l f o r C o u r t s - M a r t i a l , U n i t e d

S t a t e s , p r e s c r i b e d b y E x e c u t i v e O r d e r 1 2 4 7 3 , a s

amended, it is hereby ordered as follows:

Section 1. Part II of the Manual for Courts-Martial,

United States, is amended as follows:

( a ) R . C . M . 1 0 3 ( 2 ) i s a m e n d e d b y r e p l a c i n g t h e

word “without” with the word “with” and by replacing the word “noncapital” with the word “capital”.

(b) R.C.M. 201(e)(2)(B) is amended by adding the

word “general” between the words “convene” and

“ c o u r t s - m a r t i a l ” a n d b y i n s e r t i n g t h e f o l l o w i n g

words after “armed forces”:

“assigned or attached to a combatant command or

joint command”.

(c) R.C.M. 201(e)(2)(C) is amended by inserting the

words “assigned or attached to a joint command or

j o i n t t a s k f o r c e , ” i m m e d i a t e l y b e f o r e t h e w o r d s

“under regulations which the superior command may

prescribe”.

(d) R.C.M. 201(e)(3) is amended by inserting the

f o l l o w i n g i m m e d i a t e l y a f t e r t h e w o r d s “ a r m e d

force”:

“, using the implementing regulations and procedures prescribed by the Secretary concerned of the

military service of the accused,”.

( e ) R . C . M . 2 0 1 ( e ) ( 4 ) i s a m e n d e d b y a d d i n g t h e

w o r d s “ , m e m b e r , o r c o u n s e l ” a f t e r t h e w o r d s

“military judge”.

(f) R.C.M. 201(f)(1)(A)(iii)(b) is amended to read

as follows:

“(b) The case has not been referred with a special

instruction that the case is to be tried as capital.”

(g) R.C.M. 307(c)(4) is amended by inserting the

following at the end thereof:

“What is substantially one transaction should not be

made the basis for an unreasonable multiplication of

charges against one person.”

(h) R.C.M. 501(a)(1) is amended to read as follows:

“(1) General courts-martial.

(A) Except in capital cases, general courts-martial

shall consist of a military judge and not less than

five members, or of the military judge alone if requested and approved under R.C.M. 903.

( B ) I n a l l c a p i t a l c a s e s , g e n e r a l c o u r t s - m a r t i a l

shall consist of a military judge and no fewer than

12 members, unless 12 members are not reasonably

available because of physical conditions or military

exigencies. If 12 members are not reasonably available, the convening authority shall detail the next

l e s s e r n u m b e r o f r e a s o n a b l y a v a i l a b l e m e m b e r s

under 12, but in no event fewer than five. In such a

case, the convening authority shall state in the convening order the reasons why 12 members are not

reasonably available.”

(i) R.C.M. 503(a)(3) is amended by deleting “courtm a r t i a l ” a n d i n s e r t i n g “ c o u r t s - m a r t i a l ” i n l i e u

thereof.

(j) R.C.M. 503(b)(3) is amended by inserting the

words “, a combatant command or joint command”

after the words “A military judge from one armed

force may be detailed to a court-martial convened in

a different armed force”.

(k) R.C.M. 503(c)(3) is amended by inserting the

words “, a combatant command or joint command”

after the words “A person from one armed force

may be detailed to serve as counsel in a courtmartial in a different armed force”.

(l) R.C.M. 504, (b)(2)(A) is amended by inserting

the following at the end thereof:

“A subordinate joint command or joint task force is

ordinarily considered to be “separate or detached.””

(m) R.C.M. 504, (b)(2)(B) is amended by deleting

the word “or” at the end of the first element thereof,

by deleting the period and adding “; or” at the end

of the second element thereof, and by inserting the

following as a third element:

“(iii) In a combatant command or joint command, by

the officer exercising general court-martial jurisdiction over the command.”

(n) R.C.M. 805(b) is amended by replacing the current second sentence with the following:

“No general court-martial proceeding requiring the

presence of members may be conducted unless at

least five members are present, or in capital cases, at

least 12 members are present except as provided in

R.C.M. 501(a)(1)(B), where 12 members are not reasonably available because of physical conditions or

m i l i t a r y e x i g e n c i e s . N o s p e c i a l c o u r t - m a r t i a l

proceeding requiring the presence of members may

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APPENDIX 25
be conducted unless at least three members are present except as provided in R.C.M. 912(h).”

(o) R.C.M. 912(f)(4) is amended by deleting the

fifth sentence and by inserting the following words

immediately after the words “When a challenge for

cause has been denied” in the fourth sentence:

“the successful use of a peremptory challenge by

either party, excusing the challenged member from

further participation in the court-martial, shall preclude further consideration of the challenge of that

excused member upon later review. Further,”

(p) R.C.M. 1003(b)(2) is amended by replacing the

word “foreign” with the word “hardship.”

(q) R.C.M. 1004(b) is amended by inserting the foll o w i n g a f t e r “ ( 1 ) N o t i c e . ” a n d b e f o r e t h e w o r d

“Before”:

“(A) Referral. The convening authority shall indicate

that the case is to be tried as a capital case by

including a special instruction in the referral block

of the charge sheet. Failure to include this special

instruction at the time of the referral shall not bar

the convening authority from later adding the required special instruction, provided:

( i ) t h a t t h e c o n v e n i n g a u t h o r i t y h a s o t h e r w i s e

complied with the notice requirement of subsection

(B); and

(ii) that if the accused demonstrates specific prejudice from such failure to include the special instruction, a continuance or a recess is an adequate

remedy.

(B) Arraignment.”

(r) Insert the following new R.C.M. 1103A after

R.C.M. 1103:

“Rule 1103A. Sealed exhibits and proceedings.

(a) In general. If the record of trial contains exhibits, proceedings, or other matter ordered sealed

by the military judge, the trial counsel shall cause

such materials to be sealed so as to prevent indiscriminate viewing or disclosure. Trial counsel shall

ensure that such materials are properly marked, including an annotation that the material was sealed

by order of the military judge, and inserted at the

appropriate place in the original record of trial. Copies of the record shall contain appropriate annotat i o n s t h a t m a t t e r s w e r e s e a l e d b y o r d e r o f t h e

military judge and have been inserted in the original

record of trial. This Rule shall be implemented in a

manner consistent with Executive Order 12958, as

a m e n d e d , c o n c e r n i n g c l a s s i f i e d n a t i o n a l s e c u r i t y

information.

(b) Examination of sealed exhibits and proceedings. Except as provided in the following subsect i o n s t o t h i s r u l e , s e a l e d e x h i b i t s m a y n o t b e

examined.

(1) Examination of sealed matters. For the purpose of this rule, “examination” includes reading,

v i e w i n g , p h o t o c o p y i n g , p h o t o g r a p h i n g , d i s c l o s i n g ,

or manipulating the documents in any way.

(2) Prior to authentication. Prior to authenticat i o n o f t h e r e c o r d b y t h e m i l i t a r y j u d g e , s e a l e d

materials may not be examined in the absence of an

order from the military judge based on good cause

shown.

( 3 ) A u t h e n t i c a t i o n t h r o u g h a c t i o n . A f t e r a u -

thentication and prior to disposition of the record of

t r i a l p u r s u a n t t o R u l e f o r C o u r t s - M a r t i a l 1 1 1 1 ,

sealed materials may not be examined in the absence

of an order from the military judge upon a showing

of good cause at a post-trial Article 39a session

directed by the Convening Authority.

(4) Reviewing and appellate authorities.

(A) Reviewing and appellate authorities may

examine sealed matters when those authorities determine that such action is reasonably necessary to a

proper fulfillment of their responsibilities under the

Uniform Code of Military Justice, the Manual for

C o u r t s - M a r t i a l , g o v e r n i n g d i r e c t i v e s , i n s t r u c t i o n s ,

regulations, applicable rules for practice and procedure, or rules of professional responsibility.

(B) Reviewing and appellate authorities shall

not, however, disclose sealed matter or information

in the absence of:

(i) Prior authorization of the Judge Advocate General in the case of review under Rule for

Courts-Martial 1201(b); or

( i i ) P r i o r a u t h o r i z a t i o n o f t h e a p p e l l a t e

court before which a case is pending review under

Rules for Courts-Martial 1203 and 1204.

(C) In those cases in which review is sought

or pending before the United States Supreme Court,

authorization to disclose sealed materials or information shall be obtained under that Court’s rules of

practice and procedure.

( D ) T h e a u t h o r i z i n g o f f i c i a l s i n p a r a g r a p h

(B)(ii) above may place conditions on authorized

disclosures in order to minimize the disclosure.

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HISTORICAL EXECUTIVE ORDERS
(E) For purposes of this rule, reviewing and

appellate authorities are limited to:

(i) Judge advocates reviewing records pursuant to Rule for Courts-Martial 1112;

(ii) Officers and attorneys in the office of

the Judge Advocate General reviewing records pursuant to Rule for Courts-Martial 1201(b);

(iii) Appellate government counsel;

(iv) Appellate defense counsel;

( v ) A p p e l l a t e j u d g e s o f t h e C o u r t s o f

Criminal Appeals and their professional staffs;

(vi) The judges of the United States Court

of Appeals for the Armed Forces and their professional staffs;

( v i i ) T h e J u s t i c e s o f t h e U n i t e d S t a t e s

Supreme Court and their professional staffs; and

( v i i i ) A n y o t h e r c o u r t o f c o m p e t e n t

jurisdiction.”

(s) R.C.M. 1301(a) is amended by inserting the following after the second sentence:

“Summary courts-martial shall be conducted in accordance with the regulations of the military service

to which the accused belongs.”

Sec. 2. Part III of the Manual for Courts-Martial,

United States, is amended as follows:

Mil. R. Evid. 317(b) is amended by replacing the

word “Transportation” with the words “Homeland

Security.”

Sec. 3. Part IV of the Manual for Courts-Martial,

United States, is amended as follows:

(a) Paragraph 14c(2)(a) is amended by inserting the

following new subparagraph (ii) and renumbering

existing subparagraphs (a)(ii) through (iv) as (a)(iii)

through (v):

“(ii) Determination of lawfulness. The lawfulness of

an order is a question of law to be determined by the

military judge.”

(b) Paragraph 16(c)(1)(a) is amended by replacing

t h e w o r d “ T r a n s p o r t a t i o n ” w i t h t h e w o r d s

“Homeland Security”.

(c) Paragraph 35a is amended to read as follows:

“a. Text.

(a) Any person subject to this chapter who—

(1) operates or physically controls any vehicle,

aircraft, or vessel in a reckless or wanton manner or

while impaired by a substance described in section

912a(b) of this title (Article 112a(b)), or

(2) operates or is in actual physical control of

any vehicle, aircraft, or vessel while drunk or when

the alcohol concentration in the person’s blood or

breath is equal to or exceeds the level prohibited

under subsection (b), as shown by chemical analysis,

shall be punished as a court-martial may direct.

(b)(1) For purposes of subsection (a), the applicable level of the alcohol concentration in a person’s

blood or breath is as follows:

(A) In the case of the operation or control of a

vehicle, aircraft, or vessel in the United States, the

level is the blood alcohol concentration prohibited

under the law of the State in which the conduct

occurred, except as may be provided under paragraph (b)(2) for conduct on a military installation

that is in more than one State, or the prohibited

alcohol concentration level specified in paragraph

(b)(3).

(B) In the case of the operation or control of a

vehicle, aircraft, or vessel outside the United States,

the level is the blood alcohol concentration specified

in paragraph (b)(3) or such lower level as the Secretary of Defense may by regulation prescribe.

(2) In the case of a military installation that is in

more than one State, if those States have different

levels for defining their prohibited blood alcohol

concentrations under their respective State laws, the

Secretary concerned for the installation may select

o n e s u c h l e v e l t o a p p l y u n i f o r m l y o n t h a t

installation.

(3) For purposes of paragraph (b)(1), the level of

alcohol concentration prohibited in a person’s blood

is 0.10 grams or more of alcohol per 100 milliliters

of blood and with respect to alcohol concentration in

a person’s breath is 0.10 grams or more of alcohol

p e r 2 1 0 l i t e r s o f b r e a t h , a s s h o w n b y c h e m i c a l

analysis.”

(4) In this subsection, the term “United States”

i n c l u d e s t h e D i s t r i c t o f C o l u m b i a , t h e C o m m o n -

wealth of Puerto Rico, the Virgin Islands, Guam,

and American Samoa, and the term “State” includes

each of those jurisdictions.”

(d) Paragraph 35b(2)(c) is amended to read as follows:

“(c) the alcohol concentration level in the accused’s

blood or breath, as shown by chemical analysis, was

equal to or exceeded the applicable level provided in

paragraph 35a above.”

(e) Paragraph 35f is amended as follows:

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APPENDIX 25
“In that (personal jurisdiction data), did

(at/on board required), on or about 20 , (in the

motor pool area) (near the Officer’s Club) (at the

intersection of and ) (while

in the Gulf of Mexico) (while in flight over North

America) physically control [a vehicle, to wit: (a

truck) (a passenger car)( )] [an aircraft, to wit:

(an AH-64 helicopter)(an F-14A fighter)(a KC-135

tanker)( )] [a vessel, to wit: (the aircraft carrier

USS ) (the Coast Guard Cutter)( )], [while

drunk] [while impaired by ] [while the alcohol

concentration in his (blood)(breath) was, as shown

b y c h e m i c a l a n a l y s i s , e q u a l t o o r e x c e e d e d

(.10)( ) grams of alcohol per (100 milliliters of

blood)(210 liters of breath), which is the limit under

(cite applicable State law)(cite applicable statute or

regulation)][in a (reckless) (wanton) manner by (attempting to pass another vehicle on a sharp curve)(by ordering that the aircraft be flown below the

a u t h o r i z e d a l t i t u d e ) ] [ a n d d i d t h e r e b y c a u s e s a i d

( v e h i c l e ) ( a i r c r a f t ) ( v e s s e l ) t o ( s t r i k e

and)(injure )].”

(f) Paragraph 97 is amended by (1) inserting the

following new subparagraph (b)(2) and renumbering

the existing subparagraphs (b)(2) and (b)(3) as (b)(3)

and (b)(4); (2) adding the words “and patronizing a

p r o s t i t u t e ” a f t e r t h e w o r d “ P r o s t i t u t i o n ” i n s u b -

paragraph (e)(1); and (3) inserting the following new

s u b p a r a g r a p h ( f ) ( 2 ) a n d r e n u m b e r i n g t h e e x i s t i n g

subparagraphs (f)(2) and (f)(3) as (f)(3) and (f)(4):

“(b)(2) Patronizing a prostitute.

(a) That the accused had sexual intercourse with

another person not the accused’s spouse;

(b) That the accused compelled, induced, enticed,

or procured such person to engage in an act of

sexual intercourse in exchange for money or other

compensation; and

(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.”

“(f)(2) Patronizing a prostitute.

In that (personal jurisdiction data), did,

(at/on board location) (subject-matter jurisdiction data, if required), on or about 20 ,

w r o n g f u l l y ( c o m p e l ) ( i n d u c e ) ( e n t i c e ) ( p r o -

cure) , a person not his/her spouse, to engage in (an act) (acts) of sexual intercourse with the

accused in exchange for (money) ( ).”

(g) Paragraph 109 is amended to read as follows:

“109. ARTICLE 134 B (Threat or hoax designed or

intended to cause panic or public fear)

a. Text. See paragraph 60.

b. Elements.

(1) Threat.

(a) That the accused communicated certain

language;

( b ) T h a t t h e i n f o r m a t i o n c o m m u n i c a t e d

amounted to a threat;

(c) That the harm threatened was to be done

by means of an explosive; weapon of mass destruct i o n ; b i o l o g i c a l o r c h e m i c a l a g e n t , s u b s t a n c e , o r

weapon; or hazardous material;

(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) Hoax.

(a) That the accused communicated or conveyed certain information;

( b ) T h a t t h e i n f o r m a t i o n c o m m u n i c a t e d o r

conveyed concerned an attempt being made or to be

made by means of an explosive; weapon of mass

destruction; biological or chemical agent, substance,

or weapon; or hazardous material, to unlawfully kill,

injure, or intimidate a person or to unlawfully damage or destroy certain property;

( c ) T h a t t h e i n f o r m a t i o n c o m m u n i c a t e d o r

conveyed by the accused was false and that the

accused then knew it to be 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 ) T h r e a t . A “ t h r e a t ” m e a n s a n e x p r e s s e d

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.

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HISTORICAL EXECUTIVE ORDERS
(2) Explosive. “Explosive” means gunpowder,

powders used for blasting, all forms of high explosives, blasting materials, fuses (other than electrical

circuit breakers), detonators, and other detonating

a g e n t s , s m o k e l e s s p o w d e r s , a n y e x p l o s i v e b o m b ,

grenade, missile, or similar device, and any incendiary bomb or grenade, fire bomb, or similar device,

and any other explosive compound, mixture, or similar material.

(3) Weapon of mass destruction. A weapon of

mass destruction means any device, explosive or

otherwise, that is intended, or has the capability, to

cause death or serious bodily injury to a significant

number of people through the release, dissemination,

or impact of: toxic or poisonous chemicals, or their

p r e c u r s o r s ; a d i s e a s e o r g a n i s m ; o r r a d i a t i o n o r

radioactivity.

( 4 ) B i o l o g i c a l a g e n t . T h e t e r m “ b i o l o g i c a l

agent” means any micro-organism (including bacter i a , v i r u s e s , f u n g i , r i c k e t t s i a c , o r p r o t o z o a ) ,

pathogen, or infectious substance, and any naturally

occurring, bioengineered, or synthesized component

of any such micro-organism, pathogen, or infectious

substance, whatever its origin or method of production, that is capable of causing—

(a) death, disease, or other biological malfunction in a human, an animal, a plant, or another

living organism;

(b) deterioration of food, water, equipment,

supplies, or materials of any kind; or

(c) deleterious alteration of the environment.

(5) Chemical agent, substance, or weapon. A

chemical agent, substance, or weapon refers to a

toxic chemical and its precursors or a munition or

device, specifically designed to cause death or other

harm through toxic properties of those chemicals

that would be released as a result of the employment

of such munition or device, and any equipment specifically designed for use directly in connection with

the employment of such munitions or devices.

(6) Hazardous material. A substance or mater i a l ( i n c l u d i n g e x p l o s i v e , r a d i o a c t i v e m a t e r i a l ,

etiologic agent, flammable or combustible liquid or

solid, poison, oxidizing or corrosive material, and

compressed gas, or mixture thereof) or a group or

class of material designated as hazardous by the

Secretary of Transportation.

(7) 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.

d. Lesser included offenses.

(1) Threat.

(a) Article 134 — communicating a threat

(b) Article 80 — attempts

(c) Article 128 — assault

(2) Hoax. Article 80 — attempts

e. Maximum punishment. Dishonorable discharge,

forfeitures of all pay and allowances, and confinement for 10 years.

f. Sample specifications.

(1) Threat.

In that (personal jurisdiction data) did,

( a t / o n b o a r d — l o c a t i o n ) o n o r

about 20 , wrongfully communicate

certain information, to wit: , which language constituted a threat to harm a person or property by means of a(n) [explosive; weapon of mass

destruction; biological agent, substance, or weapon;

chemical agent, substance, or weapon; and/or (a)

hazardous material(s)].

(2) Hoax.

In that (personal jurisdiction data) did,

( a t / o n b o a r d — l o c a t i o n ) , o n o r

a b o u t 2 0 , m a l i c i o u s l y ( c o m m u n i -

cate) (convey) certain information concerning an attempt being made or to be made to unlawfully [(kill)

( i n j u r e ) ( i n t i m i d a t e ) ] [ ( d a m a g e )

(destroy) ] by means of a(n) [explosive;

weapon of mass destruction; biological agent, substance, or weapon; chemical agent, substance, or

w e a p o n ; a n d / o r ( a ) h a z a r d o u s m a t e r i a l ( s ) ] , t o

wit: , which information was false and

which the accused then knew to be false.”

Sec. 4. Part V of the Manual for Courts-Martial,

United States, is amended as follows:

(a) Paragraph 1(h) is amended by redesignating existing paragraph 1(h) as 1(i) and inserting the foll o w i n g n e w p a r a g r a p h 1 ( h ) : “ h . A p p l i c a b l e

s t a n d a r d s . U n l e s s o t h e r w i s e p r o v i d e d , t h e s e r v i c e

r e g u l a t i o n s a n d p r o c e d u r e s o f t h e s e r v i c e m e m b e r

shall apply.”

( b ) P a r a g r a p h 2 ( a ) i s a m e n d e d b y r e p l a c i n g t h e

words “Unless otherwise” with the word “As”.

(c) Paragraph 2(a) is amended by inserting the folA25-82

APPENDIX 25
lowing after the second sentence: “Commander includes a commander of a joint command.”

( d ) P a r a g r a p h 2 ( a ) i s a m e n d e d b y i n s e r t i n g t h e

words “of a commander” in the third sentence after

the words “the authority.”

Sec. 5. These amendments shall take effect 30 days

from the date of this order.

(a) Nothing in these amendments shall be construed

to make punishable any act done or omitted prior to

the effective date of this order that was not punishable when done or omitted.

(b) Nothing in these amendments shall be construed

to invalidate any nonjudicial punishment proceeding,

restraint, investigation, referral of charges, trial in

which arraignment occurred, or other action begun

prior to the effective date of this order, and any such

nonjudicial punishment proceeding, restraint, investigation, referral of charges, trial, or other action may

proceed in the same manner and with the same effect as if these amendments had not been prescribed.

GEORGE W. BUSH

THE WHITE HOUSE,

October 14, 2005.

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HISTORICAL EXECUTIVE ORDERS
Executive Order 13430: 2007 Amendments to

the Manual for Courts-Martial, United States

By the authority vested in me as President by the

Constitution and the laws of the United States of

America, including chapter 47 of title 10, United

States Code (Uniform Code of Military Justice, 10

U.S.C. 801-946), and in order to prescribe amendm e n t s t o t h e M a n u a l f o r C o u r t s - M a r t i a l , U n i t e d

S t a t e s , p r e s c r i b e d b y E x e c u t i v e O r d e r 1 2 4 7 3 o f

April 13, 1984, as amended, it is hereby ordered as

follows:

Section 1. Part II of the Manual for Courts-Martial,

United States, is amended as follows:

(a) R.C.M. 703(b)(1) is amended by adding at the

end the following new sentences:

“With the consent of both the accused and Government, the military judge may authorize any witness

to testify via remote means. Over a party’s objection, the military judge may authorize any witness to

testify on interlocutory questions via remote means

or similar technology if the practical difficulties of

producing the witness outweigh the significance of

the witness’ personal appearance (although such testimony will not be admissible over the accused’s

objection as evidence on the ultimate issue of guilt).

Factors to be considered include, but are not limited

to, the costs of producing the witness; the timing of

the request for production of the witness; the potential delay in the interlocutory proceeding that may

be caused by the production of the witness; the willingness of the witness to testify in person; the likelih o o d o f s i g n i f i c a n t i n t e r f e r e n c e w i t h m i l i t a r y

operational deployment, mission accomplishment, or

essential training; and, for child witnesses, the traumatic effect of providing in-court testimony.”

(b) R.C.M. 804 is amended by redesignating paragraphs (b), (c), and (d) as paragraphs (c), (d), and

(e), respectively, and inserting the following new

paragraph (b):

“(b) Presence by remote means. If authorized by the

regulations of the Secretary concerned, the military

judge may order the use of audiovisual technology,

such as videoteleconferencing technology, between

the parties and the military judge for purposes of

Article 39(a) sessions. Use of such audiovisual technology will satisfy the “presence” requirement of the

accused only when the accused has a defense counsel physically present at his location. Such technology may include two or more remote sites as long as

all parties can see and hear each other.”

( c ) R . C . M . 8 0 4 ( c ) ( 2 ) i s r e d e s i g n a t e d a s R . C . M .

804(d)(2) and amended to read as follows:

“(2) Procedure. The accused’s absence will be conditional upon his being able to view the witness’

testimony from a remote location. Normally, transmission of the testimony will include a system that

will transmit the accused’s image and voice into the

courtroom from a remote location as well as transmission of the child’s testimony from the courtroom

to the accused’s location. A one-way transmission

may be used if deemed necessary by the military

judge. The accused will also be provided private,

contemporaneous communication with his counsel.

The procedures described herein shall be employed

unless the accused has made a knowing and affirmative waiver of these procedures.”

(d) R.C.M. 805(a) is amended by adding at the end

the following new sentence:

“If authorized by regulations of the Secretary concerned, for purposes of Article 39(a) sessions solely,

the presence of the military judge at Article 39(a)

sessions may be satisfied by the use of audiovisual

t e c h n o l o g y , s u c h a s v i d e o t e l e c o n f e r e n c i n g

technology.”

(e) R.C.M. 805(c) is amended by adding at the end

the following new sentences:

“If authorized by regulations of the Secretary concerned, for purposes of Article 39(a) sessions solely,

the presence of counsel at Article 39(a) sessions

may be satisfied by the use of audiovisual technolog y , s u c h a s v i d e o t e l e c o n f e r e n c i n g t e c h n o l o g y . A t

least one qualified defense counsel shall be physically present with the accused.”

(f) R.C.M. 914A is amended by deleting the third

sentence of paragraph (a).

(g) R.C.M. 914A is further amended by redesignating paragraph (b) as paragraph (c) and inserting the

following new paragraph (b):

“(b) Definition. As used in this rule, “remote live

testimony” includes, but is not limited to, testimony

by videoteleconference, closed circuit television, or

similar technology.”

(h) New Rule R.C.M. 914B is inserted after R.C.M.

914A:

“Rule 914B. Use of remote testimony.

(a) General procedures. The military judge shall

determine the procedures used to take testimony via

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APPENDIX 25
remote means. At a minimum, all parties shall be

able to hear each other, those in attendance at the

remote site shall be identified, and the accused shall

be permitted private, contemporaneous communication with his counsel.

(b) Definition. As used in this rule, testimony via

“remote means” includes, but is not limited to, testimony by videoteleconference, closed circuit television, telephone, or similar technology.”

(i) R.C.M. 1001(e)(2)(D) is amended by deleting

the “or” before “former testimony” and inserting “,

o r t e s t i m o n y b y r e m o t e m e a n s ” a f t e r “ f o r m e r

testimony.”

Sec. 2. Part IV of the Manual for Courts-Martial,

United States, is amended as follows:

(a) Paragraph 4.c.(6) is amended by redesignating

paragraph (f) as paragraph (g) and inserting the following new paragraph (f):

“(f) Article 119a attempting to kill an unborn child”

(b) Paragraph 12a is amended by replacing the word

“ T r a n s p o r t a t i o n ” w i t h t h e w o r d s “ H o m e l a n d

Security”.

(c) Paragraph 35a is amended to read as follows:

“(a) Any person subject to this chapter who —

(1) operates or physically controls any vehicle,

aircraft, or vessel in a reckless or wanton manner or

while impaired by a substance described in section

912a(b) of this title (Article 112a(b)); or

(2) operates or is in actual physical control of any

vehicle, aircraft, or vessel while drunk or when the

alcohol concentration in the person’s blood or breath

is equal to or exceeds the applicable limit under

subsection (b), shall be punished as a court-martial

may direct.

(b)(1) For purposes of subsection (a), the applicable limit on the alcohol concentration in a person’s

blood or breath is as follows:

(A) In the case of the operation or control of a

vehicle, aircraft, or vessel in the United States, such

limit is the lesser of —

(i) the blood alcohol content limit under the

law of the State in which the conduct occurred,

except as may be provided under paragraph (2) for

conduct on a military installation that is in more

than one State; or

(ii) the blood alcohol content limit specified

in paragraph (3).

(B) In the case of the operation or control of a

vehicle, aircraft, or vessel outside the United States,

t h e a p p l i c a b l e b l o o d a l c o h o l c o n t e n t l i m i t i s t h e

blood alcohol content limit specified in paragraph

(3) or such lower limit as the Secretary of Defense

may by regulation prescribe.

(2) In the case of a military installation that is in

more than one State, if those States have different

blood alcohol content limits under their respective

State laws, the Secretary may select one such blood

a l c o h o l c o n t e n t l i m i t t o a p p l y u n i f o r m l y o n t h a t

installation.

(3) For purposes of paragraph (1), the blood alcohol content limit with respect to alcohol concentration in a person’s blood is 0.10 grams of alcohol per

100 milliliters of blood and with respect to alcohol

concentration in a person’s breath is 0.10 grams of

alcohol per 210 liters of breath, as shown by chemical analysis.

(4) In this subsection:

( A ) T h e t e r m “ b l o o d a l c o h o l c o n t e n t l i m i t ”

means the amount of alcohol concentration in a person’s blood or breath at which operation or control

of a vehicle, aircraft, or vessel is prohibited.

(B) The term “United States” includes the Dist r i c t o f C o l u m b i a , t h e C o m m o n w e a l t h o f P u e r t o

R i c o , t h e V i r g i n I s l a n d s , G u a m , a n d A m e r i c a n

Samoa and the term “State” includes each of those

jurisdictions.

(d) Paragraph 35b(2)(c) is amended to read as

follows:

“(c) the alcohol concentration in the accused’s blood

or breath equaled to or exceeded the applicable limit

under subparagraph (b) of paragraph 35a. [NOTE: If

injury resulted add the following element]”

(e) Para 35f is amended to read as follows:

“In that (personal jurisdiction data), did

(at/onboard location)(subject matter jurisdiction data,

if required), on or about 20 , (in

the motor pool area)(near the Officer’s Club)(at the

intersection of and )(while in the

Gulf of Mexico)(while in flight over North America)

physically control [a vehicle, to wit: (a truck)(a passenger car)( )] [an aircraft, to wit: (an AH

64 helicopter)(an F 14 A fighter)(a KC 135 tanker)( )][a vessel, to wit: (the aircraft carrier

U S S ) ( t h e C o a s t C u t t e r ) ( ) ] , [ w h i l e d r u n k ]

[while impaired by ][while the alcohol concentration in his (blood or breath equaled or exceeded the applicable limit under subparagraph (b)

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HISTORICAL EXECUTIVE ORDERS
of paragraph 35a) as shown by chemical analysis][in

a (reckless)(wanton) manner by (attempting to pass

another vehicle on a sharp curve)(by ordering that

the aircraft be flown below the authorized altitude)]

[ a n d d i d t h e r e b y c a u s e s a i d ( v e h i c l e ) ( a i r c r a f t ) -

(vessel) to (strike and )(injure )].”

(f) By inserting the new paragraph 44a:

“44a. Article 119a — Death or injury of an unborn

child

a. Text.

(a)(1) Any person subject to this chapter who engages in conduct that violates any of the provisions

of law listed in subsection (b) and thereby causes the

death of, or bodily injury (as defined in section 1365

of title 18 to, a child who is in utero at the time the

conduct takes place, is guilty of a separate offense

under this section and shall, upon conviction, be

punished by such punishment, other than death, as a

court-martial may direct, which shall be consistent

with the punishments prescribed by the President for

that conduct had that injury or death occurred to the

unborn child’s mother.

(2) An offense under this section does not require proof that —

(i) the person engaging in the conduct had

knowledge or should have had knowledge that the

victim of the underlying offense was pregnant; or

(ii) the accused intended to cause the death

of, or bodily injury to, the unborn child.

( 3 ) I f t h e p e r s o n e n g a g i n g i n t h e c o n d u c t

thereby intentionally kills or attempts to kill the unborn child, that person shall, instead of being punished under paragraph (1), be punished as provided

under sections 880, 918, and 919(a) of this title

(articles 80, 118, and 119(a)) for intentionally killing

or attempting to kill a human being.

( 4 ) N o t w i t h s t a n d i n g a n y o t h e r p r o v i s i o n o f

law, the death penalty shall not be imposed for an

offense under this section.

(b) The provisions referred to in subsection (a)

are sections 918, 919(a), 919(b)(2), 920(a), 922, 924,

9 2 6 , a n d 9 2 8 o f t h i s t i t l e ( a r t i c l e s 1 1 8 , 1 1 9 ( a ) ,

119(b)(2), 120(a), 122, 124, 126, and 128).

(c) Nothing in this section shall be construed to

permit the prosecution

(1) of any person authorized by state or federal

law to perform abortions for conduct relating to an

abortion for which the consent of the pregnant woman, or a person authorized by law to act on her

behalf, has been obtained or for which such consent

is implied by law;

(2) of any person for any medical treatment of

the pregnant woman or her unborn child; or

(3) of any woman with respect to her unborn

child.

( d ) A s u s e d i n t h i s s e c t i o n , t h e t e r m “ u n b o r n

child” means a child in utero, and the term “child in

utero” or “child who is in utero” means a member of

the species homo sapiens, at any stage of development, who is carried in the womb.

b. Elements.

(1) Injuring an unborn child.

( a ) T h a t t h e a c c u s e d w a s e n g a g e d i n t h e

[(murder (article 118)), (voluntary manslaughter (art i c l e 1 1 9 ( a ) ) ) , ( i n v o l u n t a r y m a n s l a u g h t e r ( a r t i c l e

1 1 9 ( b ) ( 2 ) ) ) , ( r a p e ( a r t i c l e 1 2 0 ) ) , ( r o b b e r y ( a r t i c l e

1 2 2 ) ) , ( m a i m i n g ( a r t i c l e 1 2 4 ) ) , ( a s s a u l t ( a r t i c l e

128)), of] or [burning or setting afire, as arson (article 126), of (a dwelling inhabited by) (a structure or

property (known to be occupied by) (belonging to))]

a woman;

(b) That the woman was then pregnant; and

(c) That the accused thereby caused bodily injury to the unborn child of that woman.

(2) Killing an unborn child.

( a ) T h a t t h e a c c u s e d w a s e n g a g e d i n t h e

[(murder (article 118)), (voluntary manslaughter (art i c l e 1 1 9 ( a ) ) ) , ( i n v o l u n t a r y m a n s l a u g h t e r ( a r t i c l e

1 1 9 ( b ) ( 2 ) ) ) , ( r a p e ( a r t i c l e 1 2 0 ) ) , ( r o b b e r y ( a r t i c l e

1 2 2 ) ) , ( m a i m i n g ( a r t i c l e 1 2 4 ) ) , ( a s s a u l t ( a r t i c l e

128)), of ] or [burning or setting afire, as arson

(article 126), of (a dwelling inhabited by) (a structure or property known to (be occupied by) (belong

to))] a woman;

(b) That the woman was then pregnant; and

(c) That the accused thereby caused the death

of the unborn child of that woman.

(3) Attempting to kill an unborn child.

( a ) T h a t t h e a c c u s e d w a s e n g a g e d i n t h e

[(murder (article 118)), (voluntary manslaughter (art i c l e 1 1 9 ( a ) ) ) , ( i n v o l u n t a r y m a n s l a u g h t e r ( a r t i c l e

1 1 9 ( b ) ( 2 ) ) ) , ( r a p e ( a r t i c l e 1 2 0 ) ) , ( r o b b e r y ( a r t i c l e

1 2 2 ) ) , ( m a i m i n g ( a r t i c l e 1 2 4 ) ) , ( a s s a u l t ( a r t i c l e

128)), of] or [burning or setting afire, as arson (article 126), of (a dwelling inhabited by) (a structure or

A25-86

APPENDIX 25
property (known to be occupied by) (belonging to))]

a woman;

(b) That the woman was then pregnant; and

(c) That the accused thereby intended and attempted to kill the unborn child of that woman.

(4) Intentionally killing an unborn child.

( a ) T h a t t h e a c c u s e d w a s e n g a g e d i n t h e

[(murder (article 118)), (voluntary manslaughter (art i c l e 1 1 9 ( a ) ) ) , ( i n v o l u n t a r y m a n s l a u g h t e r ( a r t i c l e

1 1 9 ( b ) ( 2 ) ) ) , ( r a p e ( a r t i c l e 1 2 0 ) ) , ( r o b b e r y ( a r t i c l e

1 2 2 ) ) , ( m a i m i n g ( a r t i c l e 1 2 4 ) ) , ( a s s a u l t ( a r t i c l e

128)), of] or [burning or setting afire, as arson (article 126), of (a dwelling inhabited by) (a structure or

property (known to be occupied by) (belonging to))]

a woman;

(b) That the woman was then pregnant; and

(c) That the accused thereby intentionally killed the unborn child of that woman.

c. Explanation.

(1) Nature of offense. This article makes it a separate, punishable crime to cause the death of or

bodily injury to an unborn child while engaged in

a r s o n ( a r t i c l e 1 2 6 , U C M J ) ; m u r d e r ( a r t i c l e 1 1 8 ,

U C M J ) ; v o l u n t a r y m a n s l a u g h t e r ( a r t i c l e 1 1 9 ( a ) ,

UCMJ); involuntary manslaughter (article 119(b)(2),

UCMJ); rape (article 120(a), UCMJ); robbery (article 122, UCMJ); maiming (article 124, UCMJ); or

assault (article 128, UCMJ) against a pregnant woman. For all underlying offenses, except arson, this

article requires that the victim of the underlying offense be the pregnant mother. For purposes of arson,

the pregnant mother must have some nexus to the

arson such that she sustained some “bodily injury”

due to the arson. For the purposes of this article the

term “woman” means a female of any age. This

article does not permit the prosecution of any —

(a) person for conduct relating to an abortion

for which the consent of the pregnant woman, or a

person authorized by law to act on her behalf, has

been obtained or for which such consent is implied

by law;

( b ) p e r s o n f o r a n y m e d i c a l t r e a t m e n t o f t h e

pregnant woman or her unborn child; or

(c) woman with respect to her unborn child.

(2) The offenses of “injuring an unborn child”

and “killing an unborn child” do not require proof

that —

(a) the person engaging in the conduct (the accused) had knowledge or should have had knowledge that the victim of the underlying offense was

pregnant; or

(b) the accused intended to cause the death of,

or bodily injury to, the unborn child.

(3) The offense of “attempting to kill an unborn

child” requires that the accused intended by his conduct to cause the death of the unborn child (See

paragraph b(3)(c) above).

(4) Bodily injury. For the purpose of this offense,

the term “bodily injury” is that which is provided by

section 1365 of title 18, to wit: a cut, abrasion,

bruise, burn, or disfigurement; physical pain; illness;

impairment of the function of a bodily member, organ, or mental faculty; or any other injury to the

body, no matter how temporary.

(5) Unborn child. “Unborn child” means a child

in utero or a member of the species homo sapiens

who is carried in the womb, at any stage of development, from conception to birth.

d. Lesser included offenses.

(1) Killing an unborn child. Article 119a — injuring an unborn child

(2) Intentionally killing an unborn child.

(a) Article 119a — killing an unborn child

(b) Article 119a — injuring an unborn child

(c) Article 119a — attempts (attempting to kill

an unborn child)

e. Maximum punishment. The maximum punishment

for (1) Injuring an unborn child; (2) Killing an unborn child; (3) Attempting to kill an unborn child; or

(4) Intentionally killing an unborn child is such punishment, other than death, as a court-martial may

direct, but shall be consistent with the punishment

had the bodily injury, death, attempt to kill, or intentional killing occurred to the unborn child’s mother.

f. Sample specifications.

( 1 ) I n j u r i n g a n u n b o r n c h i l d . I n

that (personal jurisdiction data), did

(at/on board—location), (subject-matter jurisdiction

data, if required), on or about 20 ,

cause bodily injury to the unborn child of , a pregnant woman, by engaging in the [(murder) (voluntary manslaughter) (involuntary manslaughter) (rape)

(robbery) (maiming) (assault) of] [(burning) (setting

afire) of (a dwelling inhabited by) (a structure or

property known to (be occupied by) (belong to))]

that woman.

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HISTORICAL EXECUTIVE ORDERS
( 2 ) K i l l i n g a n u n b o r n c h i l d . I n

that (personal jurisdiction data), did

(at/on board—location), (subject-matter jurisdiction

data, if required), on or about 20 ,

cause the death of the unborn child of , a pregnant

w o m a n , b y e n g a g i n g i n t h e [ ( m u r d e r ) ( v o l u n t a r y

m a n s l a u g h t e r ) ( i n v o l u n t a r y m a n s l a u g h t e r ) ( r a p e )

(robbery) (maiming) (assault) of] [(burning) (setting

afire) of (a dwelling inhabited by) (a structure or

property known to (be occupied by) (belong to))]

that woman.

( 3 ) A t t e m p t i n g t o k i l l a n u n b o r n c h i l d . I n

that (personal jurisdiction data), did

(at/on board—location), (subject-matter jurisdiction

data, if required), on or about 20 ,

attempt to kill the unborn child of , a pregnant woman, by engaging in the [(murder) (voluntary mans l a u g h t e r ) ( i n v o l u n t a r y m a n s l a u g h t e r ) ( r a p e )

(robbery) (maiming) (assault) of] [(burning) (setting

afire) of (a dwelling inhabited by) (a structure or

property known to (be occupied by) (belong to))]

that woman.

( 4 ) I n t e n t i o n a l l y k i l l i n g a n u n b o r n c h i l d . I n

that (personal jurisdiction data), did

(at/on board—location), (subject-matter jurisdiction

data, if required), on or about 20 ,

intentionally kill the unborn child of , a pregnant

w o m a n , b y e n g a g i n g i n t h e [ ( m u r d e r ) ( v o l u n t a r y

m a n s l a u g h t e r ) ( i n v o l u n t a r y m a n s l a u g h t e r ) ( r a p e )

(robbery) (maiming) (assault) of] [(burning) (setting

afire) of (a dwelling inhabited by) (a structure or

property known to (be occupied by) (belong to))]

that woman.”

(g) By inserting the new paragraph 45a to read:

“45a. Article 120a Stalking

Text.

(a) Any person subject to this section:

(1) who wrongfully engages in a course of conduct directed at a specific person that would cause a

reasonable person to fear death or bodily harm, including sexual assault, to himself or herself or a

member of his or her immediate family;

(2) who has knowledge, or should have knowledge, that the specific person will be placed in reas o n a b l e f e a r o f d e a t h o r b o d i l y h a r m , i n c l u d i n g

sexual assault, to himself or herself or a member of

his or her immediate family; and

(3) whose acts induce reasonable fear in the

specific person of death or bodily harm, including

sexual assault, to himself or herself or to a member

of his or her immediate family; is guilty of stalking

and shall be punished as a court-martial may direct.

(b) In this section:

(1) The term “course of conduct” means:

( A ) a r e p e a t e d m a i n t e n a n c e o f v i s u a l o r

physical proximity to a specific person; or

(B) a repeated conveyance of verbal threat,

written threats, or threats implied by conduct, or a

combination of such threats, directed at or towards a

specific person.

(2) The term “repeated,” with respect to conduct, means two or more occasions of such conduct.

(3) The term “immediate family,” in the case

of a specific person, means a spouse, parent, child,

or sibling of the person, or any other family member, relative, or intimate partner of the person who

regularly resides in the household of the person or

who within the six months preceding the commencement of the course of conduct regularly resided in

the household of the person.

b. Elements.

( 1 ) T h a t t h e a c c u s e d w r o n g f u l l y e n g a g e d i n a

course of conduct directed at a specific person that

would cause a reasonable person to fear death or

bodily harm to himself or herself or a member of his

or her immediate family;

(2) That the accused had knowledge, or should

have had knowledge, that the specific person would

be placed in reasonable fear of death or bodily harm

to himself or herself or a member of his or her

immediate family; and

(3) That the accused’s acts induced reasonable

fear in the specific person of death or bodily harm to

himself or herself or to a member of his or her

immediate family.

c. Explanation. See Paragraph 54.c(1)(a) for an explanation of “bodily harm”.

d. Lesser included offenses. Article 80 — attempts.

e . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e ,

forfeiture of all pay and allowances, and confinement for 3 years.

f . S a m p l e S p e c i f i c a t i o n . I n t h a t ( p e r -

s o n a l j u r i s d i c t i o n d a t a ) , w h o ( k n e w ) ( s h o u l d h a v e

known) that would be placed in reasonable

fear of (death)(bodily harm) to (himself) (herself)

( , a member of his or her immediate family)

did (at/on board — location), (subject-matter jurisA25-88

APPENDIX 25
d i c t i o n d a t a , i f r e q u i r e d ) , ( o n o r

about 20 )(from about to

about 20 ), wrongfully engage in a

c o u r s e o f c o n d u c t d i r e c t e d a t , t o

w i t : t h e r e b y i n d u c i n g

in , a reasonable fear of (death)(bodily

harm) to (himself)(herself) ( , a member of his

or her immediate family).”

Sec. 3. Part V of the Manual for Courts-Martial,

United States, is amended as follows:

(a) Paragraph 5.c.(8) is amended by replacing the

word “foreign” with the word “hardship.”

( b ) P a r a g r a p h 7 ( e ) i s a m e n d e d b y r e p l a c i n g t h e

word “Transportation” with the words “Homeland

Security”.

Sec. 4. Part IV of the Manual for Courts-Martial,

United States, is amended by replacing the word

“ T r a n s p o r t a t i o n ” w i t h t h e w o r d s “ H o m e l a n d

Security.”

Sec. 5. These amendments shall take effect 30 days

from the date of this order.

(a) Nothing in these amendments shall be construed

to make punishable any act done or omitted prior to

the effective date of this order that was not punishable when done or omitted.

(b) Nothing in these amendments shall be construed

to invalidate any nonjudicial punishment proceedings, restraint, investigation, referral of charges, trial

i n w h i c h a r r a i g n m e n t o c c u r r e d , o r o t h e r a c t i o n

begun prior to the effective date of this order, and

any such nonjudicial punishment, restraint, investigation, referral of charges, trial, or other action may

proceed in the same manner and with the same effect as if these amendments had not been prescribed.

GEORGE W. BUSH

THE WHITE HOUSE,

April 18, 2007.

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HISTORICAL EXECUTIVE ORDERS
Executive Order 13447: Further 2007

Amendments to the Manual for Courts

Martial, United States

By the authority vested in me as President by the

Constitution and the laws of the United States of

America, including chapter 47 of title 10, United

States Code (Uniform Code of Military Justice, 10

U.S.C. 801-946), and in order to prescribe amendm e n t s t o t h e M a n u a l f o r C o u r t s - M a r t i a l , U n i t e d

S t a t e s , p r e s c r i b e d b y E x e c u t i v e O r d e r 1 2 4 7 3 , a s

amended, it is hereby ordered as follows:

Section 1. The second subparagraph of paragraph 4,

of Part I, of the Manual for Courts-Martial, United

States, as amended by section 2 of Executive Order

13262 of April 11, 2002, is amended by striking the

third sentence.

S e c . 2 . P a r t s I I , I I I , a n d I V o f t h e M a n u a l f o r

Courts-Martial, United States, are amended as described in the Annex attached and made a part of

this order.

Sec. 3. These amendments shall take effect on October 1, 2007.

(a) Nothing in these amendments shall be construed

to make punishable any act done or omitted prior to

October 1, 2007, that was not punishable when done

or omitted.

(b) Nothing in these amendments shall be construed

to invalidate any nonjudicial punishment proceedings, restraint, investigation, referral of charges, trial

i n w h i c h a r r a i g n m e n t o c c u r r e d , o r o t h e r a c t i o n

begun prior to October 1, 2007, and any such nonjudicial punishment, restraint, investigation, referral

of charges, trial, or other action may proceed in the

same manner and with the same effect as if these

amendments had not been prescribed.

GEORGE W. BUSH

THE WHITE HOUSE,

September 28, 2007.

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APPENDIX 25
ANNEX

Section 1. Part II of the Manual for Courts-Martial,

United States, is amended as follows:

(a) R.C.M. 916(b) is amended to read as follows:

“(b) Burden of proof.

(1) General rule. Except as listed below in paragraphs (2), (3), and (4), the prosecution shall have

the burden of proving beyond a reasonable doubt

that the defense did not exist.

( 2 ) L a c k o f m e n t a l r e s p o n s i b i l i t y . T h e a c c u s e d

has the burden of proving the defense of lack of

m e n t a l r e s p o n s i b i l i t y b y c l e a r a n d c o n v i n c i n g

evidence.

(3) Mistake of fact as to age. In the defense of

mistake of fact as to age as described in Part IV,

para. 45a(o)(2) in a prosecution of a sexual offense

with a child under Article 120, the accused has the

burden of proving mistake of fact as to age by a

preponderance of the evidence. After the accused

meets his or her burden, the prosecution shall have

the burden of proving beyond a reasonable doubt

that the defense did not exist.

(4) Mistake of fact as to consent. In the defense

of mistake of fact as to consent in Article 120(a),

rape, Article 120(c), aggravated sexual assault, Article 120(e), aggravated sexual contact, and Article

120(h), abusive sexual contact, the accused has the

burden of proving mistake of fact as to consent by a

preponderance of the evidence. After the defense

meets its burden, the prosecution shall have the burden of proving beyond a reasonable doubt that the

defense did not exist.”

(b) R.C.M. 916(j)(2) is amended to read as follows:

“(2) Child Sexual Offenses. It is a defense to a

prosecution for Article 120(d), aggravated sexual assault of a child, Article 120(f), aggravated sexual

abuse of a child, Article 120(i), abusive sexual contact with a child, or Article 120(j), indecent liberty

with a child that, at the time of the offense, the child

was at least 12 years of age, and the accused reasonably believed the person was at least 16 years of

age. The accused must prove this defense by a preponderance of the evidence.”

(c) R.C.M. 916(j) is amended by inserting new paragraph R.C.M. 916(j)(3) after the Discussion section

to R.C.M. 916(j)(2) as follows:

“(j)(3) Sexual offenses. It is an affirmative defense to a prosecution for Article 120(a), rape, Article 120(c), aggravated sexual assault, Article 120(e),

aggravated sexual contact, and Article 120(h), abusive sexual contact that the accused held, as a result

of ignorance or mistake, an incorrect belief that the

other person engaging in the sexual conduct consented. The ignorance or mistake must have existed

in the mind of the accused and must have been

reasonable under all the circumstances. To be reasonable the ignorance or mistake must have been

based on information, or lack of it, which would

indicate to a reasonable person that the other person

consented. Additionally, the ignorance or mistake

cannot be based on the negligent failure to discover

the true facts. Negligence is the absence of due care.

Due care is what a reasonably careful person would

do under the same or similar circumstances. The

accused’s state of intoxication, if any, at the time of

the offense is not relevant to mistake of fact. A

mistaken belief that the other person consented must

be that which a reasonably careful, ordinary, prudent, sober adult would have had under the circumstances at the time of the offense.”

(d) R.C.M. 920(e)(5)(D) is amended to read as follows:

“(D) The burden of proof to establish the guilt of

the accused is upon the Government. [When the

issue of lack of mental responsibility is raised, add:

The burden of proving the defense of lack of mental

responsibility by clear and convincing evidence is

upon the accused. When the issue of mistake of fact

under R.C.M. 916(j)(2) or (j)(3) is raised, add: The

accused has the burden of proving the defense of

mistake of fact as to consent or age by a preponderance of the evidence.]”

(e) R.C.M. 1004(c)(7)(B) is amended to read as follows:

“(B) The murder was committed: while the accused was engaged in the commission or attempted

commission of any robbery, rape, rape of a child,

aggravated sexual assault, aggravated sexual assault

of a child, aggravated sexual contact, aggravated

sexual abuse of a child, aggravated sexual contact

with a child, aggravated arson, sodomy, burglary,

kidnapping, mutiny, sedition, or piracy of an aircraft

or vessel; or while the accused was engaged in the

commission or attempted commission of any offense

involving the wrongful distribution, manufacture, or

introduction or possession, with intent to distribute,

of a controlled substance; or, while the accused was

engaged in flight or attempted flight after the comA25-91

HISTORICAL EXECUTIVE ORDERS
m i s s i o n o r a t t e m p t e d c o m m i s s i o n o f a n y s u c h

offense.”

(f) R.C.M. 1004(c)(8) is amended to read as follows:

“(8) That only in the case of a violation of

Article 118(4), the accused was the actual perpetrator of the killing or was a principal whose participation in the burglary, sodomy, rape, rape of a child,

aggravated sexual assault, aggravated sexual assault

of a child, aggravated sexual contact, aggravated

sexual abuse of a child, aggravated sexual contact

with a child, robbery, or aggravated arson was major

and who manifested a reckless indifference for human life.”

(g) R.C.M. 1102(b)(2) is amended to read as follows:

“(2) Article 39(a) sessions. An Article 39(a) session under this rule may be called, upon motion of

either party or sua sponte by the military judge, for

the purpose of inquiring into, and, when appropriate,

resolving any matter that arises after trial and that

s u b s t a n t i a l l y a f f e c t s t h e l e g a l s u f f i c i e n c y o f a n y

findings of guilty or the sentence. The military judge

may also call an Article 39(a) session, upon motion

of either party or sua sponte, to reconsider any trial

ruling that substantially affects the legal sufficiency

of any findings of guilty or the sentence. The military judge may, sua sponte, at any time prior to

authentication of the record of trial, enter a finding

of not guilty of one or more offenses charged, or

may enter a finding of not guilty of a part of a

specification as long as a lesser offense charged is

alleged in the remaining portion of the specification.

Prior to entering such a finding or findings, the

military judge shall give each party an opportunity

to be heard on the matter in a post-trial Article 39(a)

session.”

(h) R.C.M. 1102(d) is amended by deleting the last

phrase of the second sentence, which reads:

“, except that no proceeding in revision may be

held when any part of the sentence has been ordered

executed”.

(i) R.C.M. 1102(e)(2) is amended by inserting the

following sentence after the last sentence in R.C.M.

1102(e)(2):

“Prior to the military judge sua sponte entering a

f i n d i n g o f n o t g u i l t y o f o n e o r m o r e o f f e n s e s

charged or entering a finding of not guilty of a part

of a specification as long as a lesser offense charged

is alleged in the remaining portion of the specification, the military judge shall give each party an

opportunity to be heard on the matter.”

(j) R.C.M. 1204(c)(2) is amended to read as follows:

“(2) Sentence requiring approval of the President.

(A) If the Court of Appeals for the Armed Forces

has affirmed a sentence that 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 Criminal Appeals, the

decision of the Court of Appeals for the Armed

Forces, and the recommendation of the Judge Advocate General to the Secretary concerned.

(B) If the Secretary concerned is the Secretary of

a military department, the Secretary concerned shall

forward the material received under paragraph (A) to

the Secretary of Defense, together with the recommendation of the Secretary concerned. The Secretary

of Defense shall forward the material, with the recommendation of the Secretary concerned and the

recommendation of the Secretary of Defense, to the

President for the action of the President.

(C) If the Secretary concerned is the Secretary of

Homeland Security, the Secretary concerned shall

forward the material received under paragraph (A) to

the President, together with the recommendation of

t h e S e c r e t a r y c o n c e r n e d , f o r t h e a c t i o n o f t h e

President.”

Sec. 2. Part III of the Manual for Courts-Martial,

United States, is amended as follows:

(a) Mil. R. Evid. 412 is amended to read as follows:

“Rule 412. Sex offense cases; relevance of alleged victim’s sexual behavior or sexual predisposition 

(a) Evidence generally inadmissible. The following evidence is not admissible in any proceeding

involving an alleged sexual offense except as provided in subdivisions (b) and (c):

(1) Evidence offered to prove that any alleged

victim engaged in other sexual behavior.

(2) Evidence offered to prove any alleged victim’s sexual predisposition.

(b) Exceptions.

(1) In a proceeding, the following evidence is

a d m i s s i b l e , i f o t h e r w i s e a d m i s s i b l e u n d e r t h e s e

rules:

(A) evidence of specific instances of sexual

behavior by the alleged victim offered to prove that

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APPENDIX 25
a person other than the accused was the source of

semen, injury, or other physical evidence;

(B) evidence of specific instances of sexual

behavior by the alleged victim with respect to the

person accused of the sexual misconduct offered by

the accused to prove consent or by the prosecution;

and

(C) evidence the exclusion of which would

violate the constitutional rights of the accused.

(c) Procedure to determine admissibility.

(1) A party intending to offer evidence under

subsection (b) must —

(A) file a written motion at least 5 days prior

to entry of pleas specifically describing the evidence

and stating the purpose for which it is offered unless

the military judge, for good cause shown, requires a

different time for filing or permits filing during trial;

and

(B) serve the motion on the opposing party

and the military judge and notify the alleged victim

or, when appropriate, the alleged victim’s guardian

or representative.

(2) Before admitting evidence under this rule,

the military judge must conduct a hearing, which

shall be closed. At this hearing, the parties may call

witnesses, including the alleged victim, and offer

relevant evidence. The alleged victim must be afforded a reasonable opportunity to attend and be

heard. In a case before a court-martial composed of

a military judge and members, the military judge

shall conduct the hearing outside the presence of the

members pursuant to Article 39(a). The motion, related papers, and the record of the hearing must be

sealed and remain under seal unless the court orders

otherwise.

(3) If the military judge determines on the basis of the hearing described in paragraph (2) of this

subsection that the evidence that the accused seeks

to offer is relevant for a purpose under subsection

(b) and that the probative value of such evidence

outweighs the danger of unfair prejudice to the alleged victim’s privacy, such evidence shall be admissible under this rule to the extent an order made

by the military judge specifies evidence that may be

offered and areas with respect to which the alleged

victim may be examined or cross-examined. Such

evidence is still subject to challenge under Mil. R.

Evid. 403.

(d) For purposes of this rule, the term “sexual

offense” includes any sexual misconduct punishable

under the Uniform Code of Military Justice, federal

law, or state law. “Sexual behavior” includes any

sexual behavior not encompassed by the alleged offense. The term “sexual predisposition” refers to an

alleged victim’s mode of dress, speech, or lifestyle

that does not directly refer to sexual activities or

thoughts but that may have a sexual connotation for

the factfinder.”

(b) Mil. R. Evid. 503(b) is amended by renumbering

the existing subsection (2) as subsection (3) and

inserting the following new subsection (2) after current Mil. R. Evid. 503(b)(1) to read as follows:

“(2) A “clergyman’s assistant” is a person employed by or assigned to assist a clergyman in his

capacity as a spiritual advisor.”

(c) Mil. R. Evid. 504 is amended by inserting new

subsection (d) after Mil. R. Evid. 504(c) to read as

follows:

“(d) Definitions. As used in this rule:

(1) The term “a child of either” includes not only

a biological child, adopted child, or ward of one of

the spouses but also includes a child who is under

the permanent or temporary physical custody of one

of the spouses, regardless of the existence of a legal

parent-child relationship. For purposes of this rule

only, a child is: (i) an individual under the age of

18; or (ii) an individual with a mental handicap who

functions under the age of 18.

(2) The term “temporary physical custody” includes instances where a parent entrusts his or her

child with another. There is no minimum amount of

time necessary to establish temporary physical custody nor must there be a written agreement. Rather,

the focus is on the parent’s agreement with another

for assuming parental responsibility for the child.

For example, temporary physical custody may include instances where a parent entrusts another with

the care of their child for recurring care or during

absences due to temporary duty or deployments.”

Sec. 3. Part IV of the Manual for Courts-Martial,

United States, is amended as follows:

(a) Paragraph 43, Article 118, Murder, paragraph

a.(4) is amended to read as follows:

“(4) is engaged in the perpetration or attempted

perpetration of burglary, sodomy, rape, rape of a

child, aggravated sexual assault, aggravated sexual

assault of a child, aggravated sexual contact, aggravated sexual abuse of a child, aggravated sexual

contact with a child, robbery or aggravated arson; is

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HISTORICAL EXECUTIVE ORDERS
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

o r i m p r i s o n m e n t f o r l i f e a s a c o u r t - m a r t i a l m a y

direct.”

(b) Paragraph 43, Article 118, Murder, paragraph

b.(4)(d) is amended to read as follows:

“(d) That, at the time of the killing, the accused

was engaged in the perpetration or attempted perpetration of burglary, sodomy, rape, rape of a child,

aggravated sexual assault, aggravated sexual assault

of a child, aggravated sexual contact, aggravated

sexual abuse of a child, aggravated sexual contact

with a child, robbery, or aggravated arson.”

(c) Paragraph 44, Article 119, Manslaughter, paragraph b.(2)(d) is amended to read as follows:

“(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, rape of a child, aggravated sexual assault, aggravated sexual assault of a

child, aggravated sexual contact, aggravated sexual

abuse of a child, aggravated sexual contact with a

child, robbery, or aggravated arson.”

(d) Paragraph 45, Rape and Carnal Knowledge is

amended to read as follows:

“45. Article 120 — Rape, sexual assault, and

other sexual misconduct

a. Text.

“(a) Rape. Any person subject to this chapter

who causes another person of any age to engage in a

sexual act by —

(1) using force against that other person;

( 2 ) c a u s i n g g r i e v o u s b o d i l y h a r m t o a n y

person;

(3) threatening or placing that other person in

f e a r t h a t a n y p e r s o n w i l l b e s u b j e c t e d t o d e a t h ,

grievous bodily harm, or kidnapping;

(4) rendering another person unconscious; or

(5) administering to another person by force or

threat of force, or without the knowledge or permission of that person, a drug, intoxicant, or other similar substance and thereby substantially impairs the

ability of that other person to appraise or control

conduct; is guilty of rape and shall be punished as a

court-martial may direct.

(b) Rape of a child. Any person subject to this

chapter who —

(1) engages in a sexual act with a child who

has not attained the age of 12 years; or

(2) engages in a sexual act under the circumstances described in subsection (a) with a child who

has attained the age of 12 years; is guilty of rape of

a child and shall be punished as a court-martial may

direct.

(c) Aggravated sexual assault. Any person subject to this chapter who —

(1) causes another person of any age to engage

in a sexual act by —

(A) threatening or placing that other person

in fear (other than by threatening or placing that

other person in fear that any person will be subjected to death, grievous bodily harm, or kidnapping); or

(B) causing bodily harm; or

(2) engages in a sexual act with another person

of any age if that other person is substantially incapacitated or substantially incapable of —

(A) appraising the nature of the sexual act;

(B) declining participation in the sexual act;

or

(C) communicating unwillingness to engage

in the sexual act; is guilty of aggravated sexual assault and shall be punished as a court-martial may

direct.

(d) Aggravated sexual assault of a child. Any

person subject to this chapter who engages in a

sexual act with a child who has attained the age of

12 years is guilty of aggravated sexual assault of a

child and shall be punished as a court-martial may

direct.

(e) Aggravated sexual contact. Any person subject to this chapter who engages in or causes sexual

contact with or by another person, if to do so would

violate subsection (a) (rape) had the sexual contact

been a sexual act, is guilty of aggravated sexual

contact and shall be punished as a court-martial may

direct.

(f) Aggravated sexual abuse of a child. Any person subject to this chapter who engages in a lewd

act with a child is guilty of aggravated sexual abuse

of a child and shall be punished as a court-martial

may direct.

(g) Aggravated sexual contact with a child. Any

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APPENDIX 25
person subject to this chapter who engages in or

causes sexual contact with or by another person, if

to do so would violate subsection (b) (rape of a

child) had the sexual contact been a sexual act, is

guilty of aggravated sexual contact with a child and

shall be punished as a court-martial may direct.

(h) Abusive sexual contact. Any person subject to

this chapter who engages in or causes sexual contact

with or by another person, if to do so would violate

subsection (c) (aggravated sexual assault) had the

sexual contact been a sexual act, is guilty of abusive

sexual contact and shall be punished as a courtmartial may direct.

(i) Abusive sexual contact with a child. Any person subject to this chapter who engages in or causes

sexual contact with or by another person, if to do so

would violate subsection (d) (aggravated sexual assault of a child) had the sexual contact been a sexual

act, is guilty of abusive sexual contact with a child

and shall be punished as a court-martial may direct.

(j) Indecent liberty with a child. Any person subject to this chapter who engages in indecent liberty

in the physical presence of a child —

(1) with the intent to arouse, appeal to, or gratify the sexual desire of any person; or

(2) with the intent to abuse, humiliate, or degrade any person; is guilty of indecent liberty with a

child and shall be punished as a court-martial may

direct.

(k) Indecent act. Any person subject to this chapter who engages in indecent conduct is guilty of an

indecent act and shall be punished as a court-martial

may direct.

(l) Forcible pandering. Any person subject to this

chapter who compels another person to engage in an

act of prostitution with another person to be directed

to said person is guilty of forcible pandering and

shall be punished as a court-martial may direct.

(m) Wrongful sexual contact. Any person subject

to this chapter who, without legal justification or

lawful authorization, engages in sexual contact with

another person without that other person’s permission is guilty of wrongful sexual contact and shall be

punished as a court-martial may direct.

(n) Indecent exposure. Any person subject to this

chapter who intentionally exposes, in an indecent

manner, in any place where the conduct involved

may reasonably be expected to be viewed by people

other than members of the actor’s family or household, the genitalia, anus, buttocks, or female areola

or nipple is guilty of indecent exposure and shall be

punished as a court-martial may direct.

(o) Age of child.

(1) Twelve years. In a prosecution under subsection (b) (rape of a child), subsection (g) (aggravated sexual contact with a child), or subsection (j)

(indecent liberty with a child), it need not be proven

that the accused knew that the other person engaging

in the sexual act, contact, or liberty had not attained

the age of 12 years. It is not an affirmative defense

that the accused reasonably believed that the child

had attained the age of 12 years.

(2) Sixteen years. In a prosecution under subsection (d) (aggravated sexual assault of a child),

subsection (f) (aggravated sexual abuse of a child),

subsection (i) (abusive sexual contact with a child),

or subsection (j) (indecent liberty with a child), it

need not be proven that the accused knew that the

other person engaging in the sexual act, contact, or

liberty had not attained the age of 16 years. Unlike

in paragraph (1), however, it is an affirmative defense that the accused reasonably believed that the

child had attained the age of 16 years.

(p) Proof of threat. In a prosecution under this

section, in proving that the accused made a threat, it

need not be proven that the accused actually intended to carry out the threat.

(q) Marriage.

(1) In general. In a prosecution under paragraph (2) of subsection (c) (aggravated sexual assault), or under subsection (d) (aggravated sexual

assault of a child), subsection (f) (aggravated sexual

abuse of a child), subsection (i) (abusive sexual contact with a child), subsection (j) (indecent liberty

with a child), subsection (m) (wrongful sexual contact), or subsection (n) (indecent exposure), it is an

affirmative defense that the accused and the other

person when they engaged in the sexual act, sexual

c o n t a c t , o r s e x u a l c o n d u c t w e r e m a r r i e d t o e a c h

other.

(2) Definition. For purposes of this subsection,

a marriage is a relationship, recognized by the laws

of a competent State or foreign jurisdiction, between

the accused and the other person as spouses. A marriage exists until it is dissolved in accordance with

the laws of a competent State or foreign jurisdiction.

(3) Exception. Paragraph (1) shall not apply if

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HISTORICAL EXECUTIVE ORDERS
the accused’s intent at the time of the sexual conduct

is to abuse, humiliate, or degrade any person.

(r) Consent and mistake of fact as to consent.

Lack of permission is an element of the offense in

subsection (m) (wrongful sexual contact). Consent

and mistake of fact as to consent are not an issue, or

an affirmative defense, in a prosecution under any

other subsection, except they are an affirmative defense for the sexual conduct in issue in a prosecution

under subsection (a) (rape), subsection (c) (aggravated sexual assault), subsection (e) (aggravated sexu a l c o n t a c t ) , a n d s u b s e c t i o n ( h ) ( a b u s i v e s e x u a l

contact).

(s) Other affirmative defenses not precluded. The

enumeration in this section of some affirmative defenses shall not be construed as excluding the existence of others.

(t) Definitions. In this section:

(1) Sexual act. The term “sexual act” means —

(A) contact between the penis and the vulva,

and for purposes of this subparagraph contact involving the penis occurs upon penetration, however

slight; or

(B) the penetration, however slight, of the

genital opening of another by a hand or finger or by

any object, with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the

sexual desire of any person.

(2) Sexual contact. The term “sexual contact”

means the intentional touching, either directly or

through the clothing, of the genitalia, anus, groin,

breast, inner thigh, or buttocks of another person, or

intentionally causing another person to touch, either

directly or through the clothing, the genitalia, anus,

groin, breast, inner thigh, or buttocks of any person,

with an intent to abuse, humiliate, or degrade any

person or to arouse or gratify the sexual desire of

any person.

(3) Grievous bodily harm. The term “grievous

b o d i l y h a r m ” m e a n s s e r i o u s b o d i l y i n j u r y . I t i n -

cludes fractured or dislocated bones, deep cuts, torn

members of the body, serious damage to internal

organs, and other severe bodily injuries. It does not

include minor injuries such as a black eye or a

bloody nose. It is the same level of injury as in

section 928 (article 128) of this chapter, and a lesser

degree of injury than in section 2246(4) of title 18.

( 4 ) D a n g e r o u s w e a p o n o r o b j e c t . T h e t e r m

“dangerous weapon or object” means —

(A) any firearm, loaded or not, and whether

operable or not;

( B ) a n y o t h e r w e a p o n , d e v i c e , i n s t r u m e n t ,

material, or substance, whether animate or inanimate, that in the manner it is used, or is intended to

be used, is known to be capable of producing death

or grievous bodily harm; or

(C) any object fashioned or utilized in such a

m a n n e r a s t o l e a d t h e v i c t i m u n d e r t h e c i r c u m -

stances to reasonably believe it to be capable of

producing death or grievous bodily harm.

(5) Force. The term “force” means action to

compel submission of another or to overcome or

prevent another’s resistance by —

( A ) t h e u s e o r d i s p l a y o f a d a n g e r o u s

weapon or object;

(B) the suggestion of possession of a dangerous weapon or object that is used in a manner to

cause another to believe it is a dangerous weapon or

object; or

(C) physical violence, strength, power, or restraint applied to another person, sufficient that the

other person could not avoid or escape the sexual

conduct.

(6) Threatening or placing that other person in

fear. The term “threatening or placing that other

person in fear” under paragraph (3) of subsection (a)

(rape), or under subsection (e) (aggravated sexual

contact), means a communication or action that is of

sufficient consequence to cause a reasonable fear

that non-compliance will result in the victim or another person being subjected to death, grievous bodily harm, or kidnapping.

(7) Threatening or placing that other person in

fear.

( A ) I n g e n e r a l . T h e t e r m “ t h r e a t e n i n g o r

placing that other person in fear” under paragraph

(1)(A) of subsection (c) (aggravated sexual assault),

o r u n d e r s u b s e c t i o n ( h ) ( a b u s i v e s e x u a l c o n t a c t ) ,

means a communication or action that is of sufficient consequence to cause a reasonable fear that

non-compliance will result in the victim or another

being subjected to a lesser degree of harm than

death, grievous bodily harm, or kidnapping.

(B) Inclusions. Such lesser degree of harm

includes —

(i) physical injury to another person or to

another person’s property; or

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APPENDIX 25
(ii) a threat —

(I) to accuse any person of a crime;

(II) to expose a secret or publicize an asserted fact, whether true or false, tending to subject

some person to hatred, contempt, or ridicule; or

(III) through the use or abuse of military

position, rank, or authority, to affect or threaten to

affect, either positively or negatively, the military

career of some person.

( 8 ) B o d i l y h a r m . T h e t e r m “ b o d i l y h a r m ”

means any offensive touching of another, however

slight.

(9) Child. The term “child” means any person

who has not attained the age of 16 years.

(10) Lewd act. The term “lewd act” means —

(A) the intentional touching, not through the

clothing, of the genitalia of another person, with an

intent to abuse, humiliate, or degrade any person, or

to arouse or gratify the sexual desire of any person;

or

(B) intentionally causing another person to

touch, not through the clothing, the genitalia of any

person with an intent to abuse, humiliate or degrade

any person, or to arouse or gratify the sexual desire

of any person.

(11) Indecent liberty. The term “indecent liberty” means indecent conduct, but physical contact is

not required. It includes one who with the requisite

intent exposes one’s genitalia, anus, buttocks, or female areola or nipple to a child. An indecent liberty

may consist of communication of indecent language

as long as the communication is made in the physical presence of the child. If words designed to excite

sexual desire are spoken to a child, or a child is

exposed to or involved in sexual conduct, it is an

indecent liberty; the child’s consent is not relevant.

(12) Indecent conduct. The term “indecent conduct” means that form of immorality relating to sexual impurity that is grossly vulgar, obscene, and

repugnant to common propriety, and tends to excite

sexual desire or deprave morals with respect to sexual relations. Indecent conduct includes observing,

or making a videotape, photograph, motion picture,

print, negative, slide, or other mechanically, electronically, or chemically reproduced visual material,

without another person’s consent, and contrary to

that other person’s reasonable expectation of privacy, of —

( A ) t h a t o t h e r p e r s o n ’ s g e n i t a l i a , a n u s , o r

buttocks, or (if that other person is female) that

person’s areola or nipple; or

(B) that other person while that other person

is engaged in a sexual act, sodomy (under section

925 (article 125) of this chapter), or sexual contact.

(13) Act of prostitution. The term “act of prostitution” means a sexual act, sexual contact, or lewd

act for the purpose of receiving money or other

compensation.

(14) Consent. The term “consent” means words

or overt acts indicating a freely given agreement to

the sexual conduct at issue by a competent person.

An expression of lack of consent through words or

conduct means there is no consent. Lack of verbal or

physical resistance or submission resulting from the

accused’s use of force, threat of force, or placing

another person in fear does not constitute consent. A

current or previous dating relationship by itself or

the manner of dress of the person involved with the

accused in the sexual conduct at issue shall not constitute consent. A person cannot consent to sexual

activity if —

(A) under 16 years of age; or

(B) substantially incapable of —

(i) appraising the nature of the sexual conduct at issue due to —

(I) mental impairment or unconsciousness

resulting from consumption of alcohol, drugs, a similar substance, or otherwise; or

(II) mental disease or defect that renders

the person unable to understand the nature of the

sexual conduct at issue;

( i i ) p h y s i c a l l y d e c l i n i n g p a r t i c i p a t i o n i n

the sexual conduct at issue; or

(iii) physically communicating unwillingness to engage in the sexual conduct at issue.

(15) Mistake of fact as to consent. The term

“mistake of fact as to consent” means the accused

held, as a result of ignorance or mistake, an incorrect belief that the other person engaging in the

sexual conduct consented. The ignorance or mistake

must have existed in the mind of the accused and

must have been reasonable under all the circumstances. To be reasonable, the ignorance or mistake

must have been based on information, or lack of it,

that would indicate to a reasonable person that the

other person consented. Additionally, the ignorance

or mistake cannot be based on the negligent failure

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HISTORICAL EXECUTIVE ORDERS
to discover the true facts. Negligence is the absence

of due care. Due care is what a reasonably careful

person would do under the same or similar circumstances. The accused’s state of intoxication, if any,

at the time of the offense is not relevant to mistake

of fact. A mistaken belief that the other person consented must be that which a reasonably careful, ordinary, prudent, sober adult would have had under the

circumstances at the time of the offense.

(16) Affirmative defense. The term “affirmative

defense” means any special defense that, although

not denying that the accused committed the objective acts constituting the offense charged, denies,

wholly, or partially, criminal responsibility for those

acts. The accused has the burden of proving the

affirmative defense by a preponderance of evidence.

After the defense meets this burden, the prosecution

shall have the burden of proving beyond a reasonable doubt that the affirmative defense did not exist.”

b Elements.

(1) Rape.

(a) Rape by using force.

(i) That the accused caused another person, who is of any age, to engage in a sexual act by

using force against that other person.

(b) Rape by causing grievous bodily harm.

(i) That the accused caused another person, who is of any age, to engage in a sexual act by

causing grievous bodily harm to any person.

(c) Rape by using threats or placing in fear.

(i) That the accused caused another person, who is of any age, to engage in a sexual act by

threatening or placing that other person in fear that

any person will be subjected to death, grievous bodily harm, or kidnapping.

(d) Rape by rendering another unconscious.

(i) That the accused caused another person, who is of any age, to engage in a sexual act by

rendering that other person unconscious.

(e) Rape by administration of drug, intoxicant, or other similar substance.

(i) That the accused caused another person, who is of any age, to engage in a sexual act by

administering to that other person a drug, intoxicant,

or other similar substance;

( i i ) T h a t t h e a c c u s e d a d m i n i s t e r e d t h e

drug, intoxicant or other similar substance by force

or threat of force or without the knowledge or permission of that other person; and

(iii) That, as a result, that other person’s

ability to appraise or control conduct was substantially impaired.

(2) Rape of a child.

(a) Rape of a child who has not attained the

age of 12 years.

(i) That the accused engaged in a sexual

act with a child; and

(ii) That at the time of the sexual act the

child had not attained the age of 12 years.

(b) Rape of a child who has attained the age

of 12 years but has not attained the age of 16 years

by using force.

(i) That the accused engaged in a sexual

act with a child;

(ii) That at the time of the sexual act the

child had attained the age of 12 years but had not

attained the age of 16 years; and

( i i i ) T h a t t h e a c c u s e d d i d s o b y u s i n g

force against that child.

(c) Rape of a child who has attained the age

of 12 years but has not attained the age of 16 years

by causing grievous bodily harm.

(i) That the accused engaged in a sexual

act with a child;

(ii) That at the time of the sexual act the

child had attained the age of 12 years but had not

attained the age of 16 years; and

(iii) That the accused did so by causing

grievous bodily harm to any person.

(d) Rape of a child who has attained the age

of 12 years but has not attained the age of 16 years

by using threats or placing in fear.

(i) That the accused engaged in a sexual

act with a child;

(ii) That at the time of the sexual act the

child had attained the age of 12 years but had not

attained the age of 16 years; and

(iii) That the accused did so by threatening or placing that child in fear that any person will

b e s u b j e c t e d t o d e a t h , g r i e v o u s b o d i l y h a r m , o r

kidnapping.

(e) Rape of a child who has attained the age

of 12 years but has not attained the age of 16 years

by rendering that child unconscious.

A25-98

APPENDIX 25
(i) That the accused engaged in a sexual

act with a child;

(ii) That at the time of the sexual act the

child had attained the age of 12 years but had not

attained the age of 16 years; and

(iii) That the accused did so by rendering

that child unconscious.

(f) Rape of a child who has attained the age

of 12 years but has not attained the age of 16 years

by administration of drug, intoxicant, or other similar substance.

(i) That the accused engaged in a sexual

act with a child;

(ii) That at the time of the sexual act the

child had attained the age of 12 years but had not

attained the age of 16 years; and

( i i i ) ( a ) T h a t t h e a c c u s e d d i d s o b y a d -

ministering to that child a drug, intoxicant, or other

similar substance;

( b ) T h a t t h e a c c u s e d a d m i n i s t e r e d t h e

drug, intoxicant, or other similar substance by force

or threat of force or without the knowledge or permission of that child; and

(c) That, as a result, that child’s ability to

a p p r a i s e o r c o n t r o l c o n d u c t w a s s u b s t a n t i a l l y

impaired.

(3) Aggravated sexual assault.

( a ) A g g r a v a t e d s e x u a l a s s a u l t b y u s i n g

threats or placing in fear.

(i) That the accused caused another person, who is of any age, to engage in a sexual act;

and

(ii) That the accused did so by threatening

or placing that other person in fear that any person

would be subjected to bodily harm or other harm

(other than by threatening or placing that other person in fear that any person would be subjected to

death, grievous bodily harm, or kidnapping).

( b ) A g g r a v a t e d s e x u a l a s s a u l t b y c a u s i n g

bodily harm.

(i) That the accused caused another person, who is of any age, to engage in a sexual act;

and

(ii) That the accused did so by causing

bodily harm to another person.

(c) Aggravated sexual assault upon a person

substantially incapacitated or substantially incapable

o f a p p r a i s i n g t h e a c t , d e c l i n i n g p a r t i c i p a t i o n , o r

communicating unwillingness.

(i) That the accused engaged in a sexual

act with another person, who is of any age; and

(Note: add one of the following elements)

( i i ) T h a t t h e o t h e r p e r s o n w a s s u b s t a n -

tially incapacitated;

(iii) That the other person was substantially incapable of appraising the nature of the sexual act;

(iv) That the other person was substantially incapable of declining participation in the sexual act; or

(v) That the other person was substantially

incapable of communicating unwillingness to engage

in the sexual act.

(4) Aggravated sexual assault of a child who

has attained the age of 12 years but has not attained

the age of 16 years.

(a) That the accused engaged in a sexual act

with a child; and

(b) That at the time of the sexual act the

child had attained the age of 12 years but had not

attained the age of 16 years.

(5) Aggravated sexual contact.

( a ) A g g r a v a t e d s e x u a l c o n t a c t b y u s i n g

force.

(i)(a) That the accused engaged in sexual

contact with another person; or

(b) That the accused caused sexual contact

with or by another person; and

(ii) That the accused did so by using force

against that other person.

( b ) A g g r a v a t e d s e x u a l c o n t a c t b y c a u s i n g

grievous bodily harm.

(i)(a) That the accused engaged in sexual

contact with another person; or

(b) That the accused caused sexual contact

with or by another person; and

(ii) That the accused did so by causing

grievous bodily harm to any person.

( c ) A g g r a v a t e d s e x u a l c o n t a c t b y u s i n g

threats or placing in fear.

(i)(a) That the accused engaged in sexual

contact with another person; or

(b) That the accused caused sexual contact

with or by another person; and

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HISTORICAL EXECUTIVE ORDERS
(ii) That the accused did so by threatening

or placing that other person in fear that any person

will be subjected to death, grievous bodily harm, or

kidnapping.

(d) Aggravated sexual contact by rendering

another unconscious.

(i)(a) That the accused engaged in sexual

contact with another person; or

(b) That the accused caused sexual contact

with or by another person; and

(ii) That the accused did so by rendering

that other person unconscious.

(e) Aggravated sexual contact by administration of drug, intoxicant, or other similar substance.

(i)(a) That the accused engaged in sexual

contact with another person; or

(b) That the accused caused sexual contact

with or by another person; and

( i i ) ( a ) T h a t t h e a c c u s e d d i d s o b y a d -

ministering to that other person a drug, intoxicant, or

other similar substance;

( b ) T h a t t h e a c c u s e d a d m i n i s t e r e d t h e

drug, intoxicant, or other similar substance by force

or threat of force or without the knowledge or permission of that other person; and

(c) That, as a result, that other person’s

ability to appraise or control conduct was substantially impaired.

(6) Aggravated sexual abuse of a child.

(a) That the accused engaged in a lewd act;

and

(b) That the act was committed with a child

who has not attained the age of 16 years.

(7) Aggravated Sexual Contact with a Child.

(a) Aggravated sexual contact with a child

who has not attained the age of 12 years.

(i)(a) That the accused engaged in sexual

contact with a child; or

(b) That the accused caused sexual contact

with or by a child or by another person with a child;

and

(ii) That at the time of the sexual contact

the child had not attained the age of 12 years.

(b) Aggravated sexual contact with a child

who has attained the age of 12 years but has not

attained the age of 16 years by using force.

(i)(a) That the accused engaged in sexual

contact with a child; or

(b) That the accused caused sexual contact

with or by a child or by another person with a child;

and

(ii) That at the time of the sexual contact

the child had attained the age of 12 years but had

not attained the age of 16 years; and

( i i i ) T h a t t h e a c c u s e d d i d s o b y u s i n g

force against that child.

(c) Aggravated sexual contact with a child

who has attained the age of 12 years but has not

attained the age of 16 years by causing grievous

bodily harm.

(i)(a) That the accused engaged in sexual

contact with a child; or

(b) That the accused caused sexual contact

with or by a child or by another person with a child;

and

(ii) That at the time of the sexual contact

the child had attained the age of 12 years but had

not attained the age of 16 years; and

(iii) That the accused did so by causing

grievous bodily harm to any person.

(d) Aggravated sexual contact with a child

who has attained the age of 12 years but has not

attained the age of 16 years by using threats or

placing in fear.

(i)(a) That the accused engaged in sexual

contact with a child; or

(b) That the accused caused sexual contact

with or by a child or by another person with a child;

and

(ii) That at the time of the sexual contact

the child had attained the age of 12 years but had

not attained the age of 16 years; and

(iii) That the accused did so by threatening or placing that child or that other person in fear

that any person will be subjected to death, grievous

bodily harm, or kidnapping.

(e) Aggravated sexual contact with a child

who has attained the age of 12 years but has not

attained the age of 16 years by rendering another or

that child unconscious.

(i)(a) That the accused engaged in sexual

contact with a child; or

(b) That the accused caused sexual contact

A25-100

APPENDIX 25
with or by a child or by another person with a child;

and

(ii) That at the time of the sexual contact

the child had attained the age of 12 years but had

not attained the age of 16 years; and

(iii) That the accused did so by rendering

that child or that other person unconscious.

(f) Aggravated sexual contact with a child

who has attained the age of 12 years but has not

attained the age of 16 years by administration of

drug, intoxicant, or other similar substance.

(i)(a) That the accused engaged in sexual

contact with a child; or

(b) That the accused caused sexual contact

with or by a child or by another person with a child;

and

(ii) That at the time of the sexual contact

the child had attained the age of 12 years but had

not attained the age of 16 years; and

( i i i ) ( a ) T h a t t h e a c c u s e d d i d s o b y a d -

ministering to that child or that other person a drug,

intoxicant, or other similar substance;

( b ) T h a t t h e a c c u s e d a d m i n i s t e r e d t h e

drug, intoxicant, or other similar substance by force

or threat of force or without the knowledge or permission of that child or that other person; and

(c) That, as a result, that child’s or that

other person’s ability to appraise or control conduct

was substantially impaired.

(8) Abusive sexual contact.

(a) Abusive sexual contact by using threats

or placing in fear.

(i)(a) That the accused engaged in sexual

contact with another person; or

(b) That the accused caused sexual contact

with or by another person; and

(ii) That the accused did so by threatening

or placing that other person in fear that any person

would be subjected to bodily harm or other harm

(other than by threatening or placing that other person in fear that any person would be subjected to

death, grievous bodily harm, or kidnapping).

(b) Abusive sexual contact by causing bodily

harm.

(i)(a) That the accused engaged in sexual

contact with another person; or

(b) That the accused caused sexual contact

with or by another person; and

(ii) That the accused did so by causing

bodily harm to another person.

( c ) A b u s i v e s e x u a l c o n t a c t u p o n a p e r s o n

substantially incapacitated or substantially incapable of appraising the act, declining participation, or

communicating unwillingness.

(i)(a) That the accused engaged in sexual

contact with another person; or

(b) That the accused caused sexual contact

with or by another person; and (Note: add one of the

following elements)

( i i ) T h a t t h e o t h e r p e r s o n w a s s u b s t a n -

tially incapacitated;

(iii) That the other person was substantially incapable of appraising the nature of the sexual contact;

(iv) That the other person was substantially incapable of declining participation in the sexual contact; or

(v) That the other person was substantially

incapable of communicating unwillingness to engage

in the sexual contact.

(9) Abusive sexual contact with a child.

( i ) ( a ) T h a t t h e a c c u s e d e n g a g e d i n s e x u a l

contact with a child; or

(b) That the accused caused sexual contact

with or by a child or by another person with a child;

and

(ii) That at the time of the sexual contact

the child had attained the age of 12 years but had

not attained the age of 16 years.

(10) Indecent liberty with a child.

(a) That the accused committed a certain act

or communication;

( b ) T h a t t h e a c t o r c o m m u n i c a t i o n w a s

indecent;

(c) That the accused committed the act or

communication in the physical presence of a certain

child;

(d) That the child was under 16 years of age;

and

(e) That the accused committed the act or

communication with the intent to:

(i) arouse, appeal to, or gratify the sexual

desires of any person; or

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HISTORICAL EXECUTIVE ORDERS
( i i ) a b u s e , h u m i l i a t e , o r d e g r a d e a n y

person.

(11) Indecent act.

(a) That the accused engaged in certain conduct; and

(b) That the conduct was indecent conduct.

(12) Forcible pandering.

(a) That the accused compelled a certain person to engage in an act of prostitution; and

(b) That the accused directed another person

t o s a i d p e r s o n , w h o t h e n e n g a g e d i n a n a c t o f

prostitution.

(13) Wrongful sexual contact.

(a) That the accused had sexual contact with

another person;

( b ) T h a t t h e a c c u s e d d i d s o w i t h o u t t h a t

other person’s permission; and

(c) That the accused had no legal justification or lawful authorization for that sexual contact.

(14) Indecent exposure.

( a ) T h a t t h e a c c u s e d e x p o s e d h i s o r h e r

genitalia, anus, buttocks, or female areola or nipple;

(b) That the accused’s exposure was in an

indecent manner;

(c) That the exposure occurred in a place

where the conduct involved could reasonably be expected to be viewed by people other than the accused’s family or household; and

(d) That the exposure was intentional.

c. Explanation.

(1) Definitions. The terms are defined in Paragraph 45a.(t), supra.

(2) Character of victim. See Mil. R. Evid. 412

concerning rules of evidence relating to the character

of the victim of an alleged sexual offense.

( 3 ) I n d e c e n t . I n c o n d u c t c a s e s , “ i n d e c e n t ”

generally signifies that form of immorality relating

to sexual impurity that is not only grossly vulgar,

obscene, and repugnant to common propriety, but

also tends to excite lust and deprave the morals with

respect to sexual relations. Language is indecent if it

tends reasonably to corrupt morals or incite libidinous thoughts. The language must violate community standards.

d. Lesser included offenses. The following lesser

included offenses are based on internal cross-references provided in the statutory text of Article 120.

See subsection (e) for a further listing of possible

lesser included offenses.

(1) Rape.

(a) Article 120 — Aggravated sexual contact

( b ) A r t i c l e 1 3 4 — A s s a u l t w i t h i n t e n t t o

commit rape

(c) Article 128 — Aggravated assault; Assault; Assault consummated by a battery

(d) Article 80 — Attempts

(2) Rape of a child.

(a) Article 120 — Aggravated sexual contact

with a child; Indecent act

( b ) A r t i c l e 1 3 4 — A s s a u l t w i t h i n t e n t t o

commit rape

(c) Article 128 — Aggravated assault; Assault; Assault consummated by a battery; Assault

consummated by a battery upon a child under 16

(d) Article 80 — Attempts

(3) Aggravated sexual assault.

(a) Article 120 — Abusive sexual contact

(b) Article 128 — Aggravated assault; Assault; Assault consummated by a battery

(c) Article 80 — Attempts

(4) Aggravated sexual assault of a child.

(a) Article 120 — Abusive sexual contact

with a child; Indecent act

(b) Article 128 — Aggravated assault; Assault; Assault consummated by a battery; Assault

consummated by a battery upon a child under 16

(c) Article 80 — Attempts

(5) Aggravated sexual contact.

(a) Article 128 — Aggravated assault; Assault; Assault consummated by a battery

(b) Article 80 — Attempts

(6) Aggravated sexual abuse of a child.

(a) Article 120 — Indecent act

(b) Article 128 — Assault; Assault consummated by a battery; Assault consummated by a battery upon a child under 16

(c) Article 80 — Attempts

(7) Aggravated sexual contact with a child.

(a) Article 120 — Indecent act

(b) Article 128 — Assault; Assault consummated by a battery; Assault consummated by a battery upon a child under 16

(c) Article 80 — Attempts

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APPENDIX 25
(8) Abusive sexual contact.

(a) Article 128 — Assault; Assault consummated by a battery

(b) Article 80 — Attempts

(9) Abusive sexual contact with a child.

(a) Article 120 — Indecent act

(b) Article 128 — Assault; Assault consummated by a battery; Assault consummated by a battery upon a child under 16

(c) Article 80 — Attempts

(10) Indecent liberty with a child.

(a) Article 120 — Indecent act

(b) Article 80 — Attempts

(11) Indecent act. Article 80 — Attempts

( 1 2 ) F o r c i b l e p a n d e r i n g . A r t i c l e 8 0 —

Attempts

( 1 3 ) W r o n g f u l s e x u a l c o n t a c t . A r t i c l e 8 0 —

Attempts

(14) Indecent exposure. Article 80 — Attempts

e. Additional lesser included offenses. Depending

on the factual circumstances in each case, to include

the type of act and level of force involved, the following offenses may be considered lesser included

in addition to those offenses listed in subsection d.

(See subsection (d) for a listing of the offenses that

are specifically cross-referenced within the statutory

text of Article 120.) The elements of the proposed

lesser included offense should be compared with the

elements of the greater offense to determine if the

elements of the lesser offense are derivative of the

greater offense and vice versa. See Appendix 23 for

further explanation of lesser included offenses.

(1)(a) Rape by using force. Article 120 — Indecent act; Wrongful sexual contact

(1)(b) Rape by causing grievous bodily harm.

Article 120 — Aggravated sexual assault by causing

b o d i l y h a r m ; A b u s i v e s e x u a l c o n t a c t b y c a u s i n g

bodily harm; Indecent act; Wrongful sexual contact

(1)(c) Rape by using threats or placing in fear.

Article 120 — Aggravated sexual assault by using

threats or placing in fear; Abusive sexual contact by

u s i n g t h r e a t s o r p l a c i n g i n f e a r ; I n d e c e n t a c t ;

Wrongful sexual contact

(1)(d) Rape by rendering another unconscious.

Article 120 — Aggravated sexual assault upon a

person substantially incapacitated; Abusive sexual

contact upon a person substantially incapacitated;

Indecent act; Wrongful sexual contact

(1)(e) Rape by administration of drug, intoxicant, or other similar substance. Article 120 — Aggravated sexual assault upon a person substantially

incapacitated; Abusive sexual contact upon a person

substantially incapacitated; Indecent act; Wrongful

sexual contact

(2)(a)-(f) Rape of a child who has not attained

12 years; Rape of a child who has attained the age

of 12 years but has not attained the age of 16 years.

Article 120 — Aggravated sexual assault of a child;

Aggravated sexual abuse of a child; Abusive sexual

contact with a child; Indecent liberty with a child;

Wrongful sexual contact

(3) Aggravated sexual assault. Article 120 —

Wrongful sexual contact; Indecent act

(4) Aggravated sexual assault of a child. Article 120 — Aggravated sexual abuse of a child; Indecent liberty with a child; Wrongful sexual contact

(5)(a) Aggravated sexual contact by force. Article 120 — Indecent act; Wrongful sexual contact

( 5 ) ( b ) A g g r a v a t e d s e x u a l c o n t a c t b y c a u s i n g

grievous bodily harm. Article 120 — Abusive sexual

c o n t a c t b y c a u s i n g b o d i l y h a r m ; I n d e c e n t a c t ;

Wrongful sexual contact

( 5 ) ( c ) A g g r a v a t e d s e x u a l c o n t a c t b y u s i n g

threats or placing in fear. Article 120 — Abusive

sexual contact by using threats or placing in fear;

Indecent act; Wrongful sexual contact

(5)(d) Aggravated sexual contact by rendering

another unconscious. Article 120 — Abusive sexual

contact upon a person substantially incapacitated;

Indecent act; Wrongful sexual contact

(5)(e) Aggravated sexual contact by administration of drug, intoxicant, or other similar substance. Article 120 — Abusive sexual contact upon

a person substantially incapacitated; Indecent act;

Wrongful sexual contact

(6) Aggravated sexual abuse of a child. Article

120 — Aggravated sexual contact with a child; Aggravated sexual abuse of a child; Indecent liberty

with a child; Wrongful sexual contact

(7) Aggravated sexual contact with a child. Article 120 — Abusive sexual contact with a child;

I n d e c e n t l i b e r t y w i t h a c h i l d ; W r o n g f u l s e x u a l

contact

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HISTORICAL EXECUTIVE ORDERS
( 8 ) A b u s i v e s e x u a l c o n t a c t . A r t i c l e 1 2 0 —

Wrongful sexual contact; Indecent act

(9) Abusive sexual contact with a child. Article

120 — Indecent liberty with a child; Wrongful sexual contact

(10) Indecent liberty with a child. Article 120

— Wrongful sexual contact

f. Maximum punishment.

(1) Rape and rape of a child. Death or such

other punishment as a court martial may direct.

( 2 ) A g g r a v a t e d s e x u a l a s s a u l t . D i s h o n o r a b l e

discharge, forfeiture of all pay and allowances, and

confinement for 30 years.

(3) Aggravated sexual assault of a child who

has attained the age of 12 years but has not attained

the age of 16 years, aggravated sexual abuse of a

child, aggravated sexual contact, and aggravated

sexual contact with a child. Dishonorable discharge,

forfeiture of all pay and allowances, and confinement for 20 years.

(4) Abusive sexual contact with a child and

i n d e c e n t l i b e r t y w i t h a c h i l d . D i s h o n o r a b l e d i s -

charge, forfeiture of all pay and allowances, and

confinement for 15 years.

(5) Abusive sexual contact. Dishonorable discharge, forfeiture of all pay and allowances, and

confinement for 7 years.

(6) Indecent act or forcible pandering. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years.

(7) Wrongful sexual contact or indecent exposure. Dishonorable discharge, forfeiture of all pay

and allowances, and confinement for 1 year.

g. Sample specifications.

(1) Rape.

(a) Rape by using force.

(i) Rape by use or display of dangerous

weapon or object.

In that (personal jurisdiction data), did

( a t / o n b o a r d C l o c a t i o n ) ( s u b j e c t - m a t t e r j u r i s d i c t i o n

data, if required), on or about 20 ,

c a u s e t o e n g a g e i n a s e x u a l a c t , t o

wit: , by (using a dangerous weapon or object, to wit: against (him)(her)) (displayi n g a d a n g e r o u s w e a p o n o r o b j e c t , t o

wit: to (him)(her)).

(ii) Rape by suggestion of possession of

dangerous weapon or object.

In that (personal jurisdiction data), did

( a t / o n b o a r d C l o c a t i o n ) ( s u b j e c t - m a t t e r j u r i s d i c t i o n

data, if required), on or about 20 ,

c a u s e t o e n g a g e i n a s e x u a l a c t , t o

wit: , by the suggestion of possession of a

dangerous weapon or an object that was used in a

manner to cause (him)(her) to believe it was a dangerous weapon or object.

( i i i ) R a p e b y u s i n g p h y s i c a l v i o l e n c e ,

strength, power, or restraint to any person.

In that (personal jurisdiction data), did

( a t / o n b o a r d C l o c a t i o n ) ( s u b j e c t - m a t t e r j u r i s d i c t i o n

data, if required), on or about 20 ,

c a u s e t o e n g a g e i n a s e x u a l a c t , t o

w i t : , b y u s i n g ( p h y s i c a l v i o l e n c e )

( s t r e n g t h ) ( p o w e r ) ( r e s t r a i n t a p p l i e d t o ) ,

sufficient that (he)(she) could not avoid or escape

the sexual conduct.

(b) Rape by causing grievous bodily harm.

In that (personal jurisdiction data), did

( a t / o n b o a r d C l o c a t i o n ) ( s u b j e c t - m a t t e r j u r i s d i c t i o n

data, if required), on or about 20 ,

c a u s e t o e n g a g e i n a s e x u a l a c t , t o

w i t : , b y c a u s i n g g r i e v o u s b o d i l y h a r m

upon (him)(her)( ), to wit: a (broken leg-

)(deep cut)(fractured skull)( ).

(c) Rape by using threats or placing in fear.

In that (personal jurisdiction data), did

( a t / o n b o a r d C l o c a t i o n ) ( s u b j e c t - m a t t e r j u r i s d i c t i o n

data, if required), on or about 20 ,

c a u s e t o e n g a g e i n a s e x u a l a c t , t o

wit: , by [threatening] [placing (him)(her)

in fear] that (he)(she)( ) will be subjected to

( d e a t h ) ( g r i e v o u s b o d i l y h a r m ) ( k i d n a p p i n g )

by .

(d) Rape by rendering another unconscious.

In that (personal jurisdiction data), did

( a t / o n b o a r d C l o c a t i o n ) ( s u b j e c t - m a t t e r j u r i s d i c t i o n

data, if required), on or about 20 ,

c a u s e t o e n g a g e i n a s e x u a l a c t , t o

wit: , by rendering (him)(her) unconscious.

(e) Rape by administration of drug, intoxicant, or other similar substance.

In that (personal jurisdiction data), did

( a t / o n b o a r d C l o c a t i o n ) ( s u b j e c t - m a t t e r j u r i s d i c t i o n

data, if required), on or about 20 ,

c a u s e t o e n g a g e i n a s e x u a l a c t , t o

w i t : , b y a d m i n i s t e r i n g t o ( h i m ) ( h e r ) a

A25-104

APPENDIX 25
d r u g , i n t o x i c a n t , o r o t h e r s i m i l a r s u b s t a n c e , ( b y

force) (by threat of force) (without (his)(her) knowledge or permission), and thereby substantially impaired (his)(her) ability to [(appraise) (control)][(his)

(her)] conduct.

(2) Rape of a child.

(a) Rape of a child who has not attained the

age of 12 years.

In that (personal jurisdiction data), did

( a t / o n b o a r d C l o c a t i o n ) ( s u b j e c t - m a t t e r j u r i s d i c t i o n

data, if required), on or about 20 ,

e n g a g e i n a s e x u a l a c t , t o w i t -

: with , a child who had not attained the age of 12 years.

(b) Rape of a child who has attained the age

of 12 years but has not attained the age of 16 years

by using force.

(i) Rape of a child who has attained the

age of 12 years but has not attained the age of 16

years by use or display of dangerous weapon or

object.

In that (personal jurisdiction data), did

( a t / o n b o a r d C l o c a t i o n ) ( s u b j e c t - m a t t e r j u r i s d i c t i o n

data, if required), on or about 20 ,

e n g a g e i n a s e x u a l a c t , t o w i t : ,

with , a child who had attained the age of

12 years, but had not attained the age of 16 years,

b y ( u s i n g a d a n g e r o u s w e a p o n o r o b j e c t , t o

wit: against (him)(her)) (displaying a dang e r o u s w e a p o n o r o b j e c t , t o w i t : t o

(him)(her)).

(ii) Rape of a child who has attained the

age of 12 years but has not attained the age of 16

y e a r s b y s u g g e s t i o n o f p o s s e s s i o n o f d a n g e r o u s

weapon or object.

In that (personal jurisdiction data), did

( a t / o n b o a r d C l o c a t i o n ) ( s u b j e c t - m a t t e r j u r i s d i c t i o n

data, if required), on or about 20 ,

e n g a g e i n a s e x u a l a c t , t o w i t : ,

with , a child who had attained the age of

12 years, but had not attained the age of 16 years,

b y t h e s u g g e s t i o n o f p o s s e s s i o n o f a d a n g e r o u s

weapon or an object that was used in a manner to

c a u s e ( h i m ) ( h e r ) t o b e l i e v e i t w a s a d a n g e r o u s

weapon or object.

(iii) Rape of a child who has attained the

age of 12 years but has not attained the age of 16

years by using physical violence, strength, power, or

restraint to any person.

In that (personal jurisdiction data), did

( a t / o n b o a r d C l o c a t i o n ) ( s u b j e c t - m a t t e r j u r i s d i c t i o n

data, if required), on or about 20 ,

e n g a g e i n a s e x u a l a c t , t o w i t -

: with , a child who had attained

the age of 12 years, but had not attained the age of

1 6 y e a r s , b y u s i n g ( p h y s i c a l v i o l e n c e ) ( s t r e n g t h )

( p o w e r ) ( r e s t r a i n t a p p l i e d t o ) s u f f i c i e n t

that (he)(she) could not avoid or escape the sexual

conduct.

(c) Rape of a child who has attained the age

of 12 years but has not attained the age of 16 years

by causing grievous bodily harm.

In that (personal jurisdiction data), did

( a t / o n b o a r d C l o c a t i o n ) ( s u b j e c t - m a t t e r j u r i s d i c t i o n

data, if required), on or about 20 ,

e n g a g e i n a s e x u a l a c t , t o w i t : ,

with , a child who had attained the age of

12 years, but had not attained the age of 16 years,

b y c a u s i n g g r i e v o u s b o d i l y h a r m u p o n ( h i m -

)(her)( ), to wit: a (broken leg)(deep cut)(fractured skull)( ).

(d) Rape of a child who has attained the age

of 12 years but has not attained the age of 16 years

by using threats or placing in fear.

In that (personal jurisdiction data), did

( a t / o n b o a r d C l o c a t i o n ) ( s u b j e c t - m a t t e r j u r i s d i c t i o n

data, if required), on or about 20 ,

e n g a g e i n a s e x u a l a c t , t o w i t : ,

with , a child who had attained the age of

12 years, but had not attained the age of 16 years,

b y [ t h r e a t e n i n g ] [ p l a c i n g ( h i m ) ( h e r ) i n f e a r ] t h a t

( h e ) ( s h e ) ( ) w o u l d b e s u b j e c t e d t o

( d e a t h ) ( g r i e v o u s b o d i l y h a r m ) ( k i d n a p p i n g )

by .

(e) Rape of a child who has attained the age

of 12 years but has not attained the age of 16 years

by rendering that child unconscious.

In that (personal jurisdiction data), did

( a t / o n b o a r d C l o c a t i o n ) ( s u b j e c t - m a t t e r j u r i s d i c t i o n

data, if required), on or about 20 ,

e n g a g e i n a s e x u a l a c t , t o w i t : ,

with , a child who had attained the age of

12 years, but had not attained the age of 16 years,

by rendering (him)(her) unconscious.

(f) Rape of a child who has attained the age

of 12 years but has not attained the age of 16 years

A25-105

HISTORICAL EXECUTIVE ORDERS
by administration of drug, intoxicant, or other similar substance.

In that (personal jurisdiction data), did

( a t / o n b o a r d C l o c a t i o n ) ( s u b j e c t - m a t t e r j u r i s d i c t i o n

data, if required), on or about 20 ,

e n g a g e i n a s e x u a l a c t , t o w i t : ,

with , a child who had attained the age of

12 years, but had not attained the age of 16 years,

by administering to (him)(her) a drug, intoxicant, or

o t h e r s i m i l a r s u b s t a n c e ( b y f o r c e ) ( b y t h r e a t o f

force) (without (his)(her) knowledge or permission),

and thereby substantially impaired (his)(her) ability

to [(appraise)(control)] (his)(her)] conduct.

(3) Aggravated sexual assault.

( a ) A g g r a v a t e d s e x u a l a s s a u l t b y u s i n g

threats or placing in fear.

In that (personal jurisdiction data), did

( a t / o n b o a r d C l o c a t i o n ) ( s u b j e c t - m a t t e r j u r i s d i c t i o n

data, if required), on or about 20 ,

c a u s e t o e n g a g e i n a s e x u a l a c t , t o

wit: , by [threatening] [placing(him)(her) in

f e a r o f ] [ ( p h y s i c a l i n j u r y t o ) ( i n j u r y

to ’s property)(accusation of crime)(exposition

of secret)(abuse of military position)( )].

( b ) A g g r a v a t e d s e x u a l a s s a u l t b y c a u s i n g

bodily harm.

In that (personal jurisdiction data), did

( a t / o n b o a r d C l o c a t i o n ) ( s u b j e c t - m a t t e r j u r i s d i c t i o n

data, if required), on or about 20 ,

c a u s e t o e n g a g e i n a s e x u a l a c t , t o

wit: , by causing bodily harm upon (him-

)(her)( ), to wit: .

(c) Aggravated sexual assault upon a person

substantially incapacitated or substantially incapable of appraising the act, declining participation, or

communicating unwillingness.

In that (personal jurisdiction data), did

( a t / o n b o a r d C l o c a t i o n ) ( s u b j e c t - m a t t e r j u r i s d i c t i o n

data, if required), on or about 20 ,

e n g a g e i n a s e x u a l a c t , t o w i t -

: w i t h , w h o w a s ( s u b s t a n t i a l l y

incapacitated) [substantially incapable of (appraising

the nature of the sexual act)(declining participation

in the sexual act) (communicating unwillingness to

engage in the sexual act)].

(4) Aggravated sexual assault of a child who

has attained the age of 12 years but has not attained

the age of 16 years.

In that (personal jurisdiction data), did

( a t / o n b o a r d C l o c a t i o n ) ( s u b j e c t - m a t t e r j u r i s d i c t i o n

data, if required), on or about 20 ,

e n g a g e i n a s e x u a l a c t , t o w i t :

with , who had attained the age

of 12 years, but had not attained the age of 16 years.

(5) Aggravated sexual contact.

( a ) A g g r a v a t e d s e x u a l c o n t a c t b y u s i n g

force.

(i) Aggravated sexual contact by use or

display of dangerous weapon or object.

In that (personal jurisdiction data), did

( a t / o n b o a r d C l o c a t i o n ) ( s u b j e c t - m a t t e r j u r i s d i c t i o n

data, if required), on or about 20 ,

[ ( e n g a g e i n s e x u a l c o n t a c t , t o w i t -

: w i t h ) ( c a u s e t o e n -

g a g e i n s e x u a l c o n t a c t , t o w i t : ,

w i t h ) ( c a u s e s e x u a l c o n t a c t w i t h o r

by , to wit: )] by (using a dangerous weapon or object, to wit: against

(him)(her)) (displaying a dangerous weapon or object, to wit: to (him)(her)).

(ii) Aggravated sexual contact by suggestion of possession of dangerous weapon or object.

In that (personal jurisdiction data), did

( a t / o n b o a r d C l o c a t i o n ) ( s u b j e c t - m a t t e r j u r i s d i c t i o n

data, if required), on or about 20 ,

[(engage in sexual contact, to wit: with-

)(cause to engage in sexual contact, to wit: , with ) (cause sexual

contact with or by , to wit: )] by

the suggestion of possession of a dangerous weapon

or an object that was used in a manner to cause

( h i m ) ( h e r ) ( ) t o b e l i e v e i t w a s a d a n g e r o u s

weapon or object.

(iii) Aggravated sexual contact by using

physical violence, strength, power, or restraint to

any person.

In that (personal jurisdiction data), did

( a t / o n b o a r d C l o c a t i o n ) ( s u b j e c t - m a t t e r j u r i s d i c t i o n

data, if required), on or about 20 ,

[ ( e n g a g e i n s e x u a l c o n t a c t , t o w i t : w -

i t h ) ( c a u s e t o e n g a g e i n s e x u a l

c o n t a c t , t o w i t : , w i t h ) ( c a u s e

s e x u a l c o n t a c t w i t h o r b y , t o w i t :

)] by using (physical violence) (strength)

(power) (restraint applied to ), sufficient

that (he)(she)( ) could not avoid or escape the

sexual conduct.

A25-106

APPENDIX 25
( b ) A g g r a v a t e d s e x u a l c o n t a c t b y c a u s i n g

grievous bodily harm.

In that (personal jurisdiction data), did

( a t / o n b o a r d C l o c a t i o n ) ( s u b j e c t - m a t t e r j u r i s d i c t i o n

data, if required), on or about 20 ,

[ ( e n g a g e i n s e x u a l c o n t a c t , t o w i t : w -

i t h ) ( c a u s e t o e n g a g e i n s e x u a l

c o n t a c t , t o w i t : , w i t h ) ( c a u s e

s e x u a l c o n t a c t w i t h o r b y , t o w i t :

)] by causing grievous bodily harm upon

( h i m ) ( h e r ) ( ) , t o w i t : a ( b r o k e n l e g ) ( d e e p

cut)(fractured skull)( ).

( c ) A g g r a v a t e d s e x u a l c o n t a c t b y u s i n g

threats or placing in fear.

In that (personal jurisdiction data), did

( a t / o n b o a r d C l o c a t i o n ) ( s u b j e c t - m a t t e r j u r i s d i c t i o n

data, if required), on or about 20 ,

[ ( e n g a g e i n s e x u a l c o n t a c t , t o w i t : w -

i t h ) ( c a u s e t o e n g a g e i n s e x u a l

c o n t a c t , t o w i t : , w i t h ) ( c a u s e

s e x u a l c o n t a c t w i t h o r b y , t o w i t :

) ] b y [ ( t h r e a t e n i n g ( h i m ) ( h e r ) ( ) ]

[ ( p l a c i n g ( h i m ) ( h e r ) ( ) i n f e a r ] t h a t

( h e ) ( s h e ) ( ) w i l l b e s u b j e c t e d t o

( d e a t h ) ( g r i e v o u s b o d i l y h a r m ) ( k i d n a p p i n g )

by .

(d) Aggravated sexual contact by rendering

another unconscious.

In that (personal jurisdiction data), did

( a t / o n b o a r d C l o c a t i o n ) ( s u b j e c t - m a t t e r j u r i s d i c t i o n

data, if required), on or about 20 ,

[ ( e n g a g e i n s e x u a l c o n t a c t , t o w i t : w -

i t h ) ( c a u s e t o e n g a g e i n s e x u a l

c o n t a c t , t o w i t : , w i t h ) ( c a u s e

s e x u a l c o n t a c t w i t h o r b y , t o w i t :

) ] b y r e n d e r i n g ( h i m ) ( h e r ) ( )

unconscious.

(e) Aggravated sexual contact by administration of drug, intoxicant, or other similar substance.

In that (personal jurisdiction data), did

( a t / o n b o a r d C l o c a t i o n ) ( s u b j e c t - m a t t e r j u r i s d i c t i o n

data, if required), on or about 20 ,

[ ( e n g a g e i n s e x u a l c o n t a c t , t o w i t : w -

i t h ) ( c a u s e t o e n g a g e i n s e x u a l

c o n t a c t , t o w i t : , w i t h ) ( c a u s e

s e x u a l c o n t a c t w i t h o r b y , t o w i t :

( )] by administering to (him)(her)( )

a drug, intoxicant, or other similar substance, (by

f o r c e ) ( b y t h r e a t o f f o r c e ) ( w i t h o u t

(his)(her)( ) knowledge or permission), and

t h e r e b y s u b s t a n t i a l l y i m p a i r e d ( h i s ) ( h e r ) ( )

ability to [(appraise) (control)] [(his) (her)] conduct.

(6) Aggravated sexual abuse of a child.

In that (personal jurisdiction data), did

( a t / o n b o a r d C l o c a t i o n ) ( s u b j e c t - m a t t e r j u r i s d i c t i o n

data, if required), on or about 20 ,

e n g a g e i n a l e w d a c t , t o w i t -

: with , a child who had not attained the age of 16 years.

(7) Aggravated sexual contact with a child.

(a) Aggravated sexual contact with a child

who has not attained the — age of 12 years.

In that (personal jurisdiction data), did

( a t / o n b o a r d C l o c a t i o n ) ( s u b j e c t - m a t t e r j u r i s d i c t i o n

data, if required), on or about 20 ,

[ ( e n g a g e i n s e x u a l c o n t a c t , t o w i t -

: with , a child who had not att a i n e d t h e a g e o f 1 2 y e a r s ) ( c a u s e t o

e n g a g e i n s e x u a l c o n t a c t , t o w i t : ,

with , a child who had not attained the age

o f 1 2 y e a r s ) ( c a u s e s e x u a l c o n t a c t w i t h o r b y

, a child who had not attained the age of

12 years, to wit: )].

(b) Aggravated sexual contact with a child

who has attained the age of 12 years but has not

attained the age of 16 years by using force.

(i) Aggravated sexual contact with a child

who has attained the age of 12 years but has not

attained the age of 16 years by use or display of

dangerous weapon or object.

In that (personal jurisdiction data), did

(at/on board-location) (subject-matter jurisdiction dat a , i f r e q u i r e d ) , o n o r a b o u t 2 0 ,

[ ( e n g a g e i n s e x u a l c o n t a c t , t o w i t -

: with , a child who had attained

the age of 12 years, but had not attained the age of

16 years)(cause to engage in sexual contact, to wit: , with , a child who

had attained the age of 12 years, but had not attained

the age of 16 years) (cause sexual contact with or by

, a child who had attained the age of 12

years, but had not attained the age of 16 years, to

wit: )] by (using a dangerous weapon or

o b j e c t , t o w i t : a g a i n s t ( h i m -

)(her)( )) (displaying a dangerous weapon or

object, to wit: to (him)(her)( )).

( i i ) A g g r a v a t e d s e x u a l c o n t a c t w i t h a

child who has attained the age of 12 years but has

A25-107

HISTORICAL EXECUTIVE ORDERS
not attained the age of 16 years by suggestion of

possession of dangerous weapon or object.

In that (personal jurisdiction data), did

( a t / o n b o a r d C l o c a t i o n ) ( s u b j e c t - m a t t e r j u r i s d i c t i o n

data, if required), on or about 20 ,

[ ( e n g a g e i n s e x u a l c o n t a c t , t o w i t -

: with , a child who had attained

the age of 12 years, but had not attained the age of

16 years)(cause to engage in sexual contact, to wit: , with , a child who

had attained the age of 12 years, but had not attained

the age of 16 years) (cause sexual contact with or by

, a child who had attained the age of 12

years, but had not attained the age of 16 years, to

wit: )] by the suggestion of possession of

a dangerous weapon or an object that was used in a

manner to cause (him)(her)( ) to believe it

was a dangerous weapon or object.

( i i i ) A g g r a v a t e d s e x u a l c o n t a c t w i t h a

child who has attained the age of 12 years but has

not attained the age of 16 years by using physical

violence, strength, power, or restraint to any person.

In that (personal jurisdiction data), did

( a t / o n b o a r d C l o c a t i o n ) ( s u b j e c t - m a t t e r j u r i s d i c t i o n

data, if required), on or about 20 ,

[ ( e n g a g e i n s e x u a l c o n t a c t , t o w i t -

: with , a child who had attained

the age of 12 years, but had not attained the age of

16 years)(cause to engage in sexual contact, to wit: , with , a child who

had attained the age of 12 years, but had not attained

the age of 16 years) (cause sexual contact with or by

, a child who had attained the age of 12

years, but had not attained the age of 16 years, to

w i t : ) ] b y u s i n g ( p h y s i c a l v i o l e n c e )

( s t r e n g t h ) ( p o w e r ) ( r e s t r a i n t a p p l i e d t o )

sufficient that (he)(she)( ) could not avoid or

escape the sexual conduct.

(c) Aggravated sexual contact with a child

who has attained the age of 12 years but has not

attained the age of 16 years by causing grievous

bodily harm.

In that (personal jurisdiction data), did

( a t / o n b o a r d C l o c a t i o n ) ( s u b j e c t - m a t t e r j u r i s d i c t i o n

data, if required), on or about 20 ,

[ ( e n g a g e i n s e x u a l c o n t a c t , t o w i t -

: with , a child who had attained

the age of 12 years, but had not attained the age of

16 years)(cause to engage in sexual contact, to wit: , with , a child who

had attained the age of 12 years, but had not attained

the age of 16 years) (cause sexual contact with or by

, a child who had attained the age of 12

years, but had not attained the age of 16 years, to

wit: )] by causing grievous bodily harm

upon (him)(her)( ), to wit: a (broken leg-

)(deep cut)(fractured skull)( ).

(d) Aggravated sexual contact with a child

who has attained the age of 12 years but has not

attained the age of 16 years by using threats or

placing in fear.

In that (personal jurisdiction data), did

( a t / o n b o a r d C l o c a t i o n ) ( s u b j e c t - m a t t e r j u r i s d i c t i o n

data, if required), on or about 20 ,

[ ( e n g a g e i n s e x u a l c o n t a c t , t o w i t -

: with , a child who had attained

the age of 12 years, but had not attained the age of

16 years)(cause to engage in sexual contact, to wit: , with , a child who

had attained the age of 12 years, but had not attained

the age of 16 years) (cause sexual contact with or by

, a child who had attained the age of 12

years, but had not attained the age of 16 years, to

w i t : ) ] b y [ t h r e a t e n i n g ] [ p l a c i n g ( h i m -

) ( h e r ) ( ) i n f e a r ] t h a t ( h e ) ( s h e ) ( )

w i l l b e s u b j e c t e d t o ( d e a t h ) ( g r i e v o u s b o d i l y

harm)(kidnapping) by .

(e) Aggravated sexual contact with a child

who has attained the age of 12 years but has not

attained the age of 16 years by rendering that child

or another unconscious.

(f) Aggravated sexual contact with a child

who has attained the age of 12 years but has not

attained the age of 16 years by administration of

drug, intoxicant, or other similar substance.

In that (personal jurisdiction data), did

( a t / o n b o a r d C l o c a t i o n ) ( s u b j e c t - m a t t e r j u r i s d i c t i o n

data, if required), on or about 20 ,

[ ( e n g a g e i n s e x u a l c o n t a c t , t o w i t -

: with , a child who had attained

the age of 12 years but had not attained the age of

16 years)(cause to engage in sexual contact,

to wit: , with , a child who had

attained the age of 12 years but had not attained the

age of 16 years) (cause sexual contact with or by

, a child who had attained the age of 12

years but had not attained the age of 16 years, to

w i t : ) ] b y a d m i n i s t e r i n g t o ( h i m -

)(her)( ) a drug, intoxicant, or other similar

substance (by force) (by threat of force) (without

A25-108

APPENDIX 25
(his)(her)( ) knowledge or permission), and

t h e r e b y s u b s t a n t i a l l y i m p a i r e d ( h i s ) ( h e r ) ( )

ability to [(appraise) (control)][(his) (her)] conduct.

(8) Abusive sexual contact.

(a) Abusive sexual contact by using threats

or placing in fear.

In that (personal jurisdiction data), did

( a t / o n b o a r d C l o c a t i o n ) ( s u b j e c t - m a t t e r j u r i s d i c t i o n

data, if required), on or about 20 ,

[ ( e n g a g e i n s e x u a l c o n t a c t , t o w i t -

: w i t h ) ( c a u s e t o e n -

g a g e i n s e x u a l c o n t a c t , t o w i t : ,

w i t h ) ( c a u s e s e x u a l c o n t a c t w i t h o r

by , to wit: )] by [(threatening)

(placing (him)(her)( ) in fear of)] [(physical

injury to )(injury to ’s property)(-

accusation of crime)(exposition of secret)(abuse of

military position)( )].

(b) Abusive sexual contact by causing bodily

harm.

In that (personal jurisdiction data), did

( a t / o n b o a r d C l o c a t i o n ) ( s u b j e c t - m a t t e r j u r i s d i c t i o n

data, if required), on or about 20 ,

[ ( e n g a g e i n s e x u a l c o n t a c t , t o w i t -

: w i t h ) ( c a u s e t o e n -

g a g e i n s e x u a l c o n t a c t , t o w i t : ,

w i t h ) ( c a u s e s e x u a l c o n t a c t w i t h o r

by , to wit: )] by causing bodily

harm upon (him)(her)( ), to wit: ( ).

(c) Abusive sexual contact by engaging in a

sexual act with a person substantially incapacitated

or substantially incapable of appraising the act, declining participation, or substantially incapable of

communicating unwillingness.

In that (personal jurisdiction data), did

( a t / o n b o a r d C l o c a t i o n ) ( s u b j e c t - m a t t e r j u r i s d i c t i o n

data, if required), on or about 20 ,

[ ( e n g a g e i n s e x u a l c o n t a c t , t o w i t -

: w i t h ) ( c a u s e t o e n -

g a g e i n s e x u a l c o n t a c t , t o w i t : ,

w i t h ) ( c a u s e s e x u a l c o n t a c t w i t h o r

b y , t o w i t : ) ] w h i l e

(he)(she)( ) was [substantially incapacitated]

[substantially incapable of (appraising the nature of

the sexual contact) (declining participation in the

sexual contact) (communicating unwillingness to engage in the sexual contact)].

(9) Abusive sexual contact with a child.

In that (personal jurisdiction data), did

( a t / o n b o a r d C l o c a t i o n ) ( s u b j e c t - m a t t e r j u r i s d i c t i o n

data, if required), on or about 20 ,

[ ( e n g a g e i n s e x u a l c o n t a c t , t o w i t -

: with , a child who had attained

the age of 12 years but had not attained the age of

16 years) (cause to engage in sexual contact, to wit: , with , a child who

had attained the age of 12 years but had not attained

the age of 16 years) (cause sexual contact with or by

, a child who had attained the age of 12

years but had not attained the age of 16 years, to

wit: )].

(10) Indecent liberties with a child.

I n t h a t ( p e r s o n a l j u r i s d i c t i o n d a t a ) , d i d ,

( a t / o n b o a r d C l o c a t i o n ) ( s u b j e c t - m a t t e r j u r i s d i c t i o n

data, if required), on or about 20 , (take

indecent liberties) (engage in indecent conduct) in

the physical presence of , a (female) (male)

u n d e r 1 6 y e a r s o f a g e , b y ( c o m m u n i c a t i n g t h e

words: to wit: ) (exposing one’s private parts,

to wit: )( ), with the intent to [(arouse)

(appeal to) (gratify) the (sexual desire) of the

(or )] [(abuse)(humiliate)(degrade) ].

(11) Indecent act.

In that (personal jurisdiction data), did

( a t / o n b o a r d C l o c a t i o n ) ( s u b j e c t - m a t t e r j u r i s d i c t i o n

data, if required), on or about 20 ,

w r o n g f u l l y c o m m i t i n d e c e n t c o n d u c t , t o

wit .

(12) Forcible pandering.

In that (personal jurisdiction data), did

( a t / o n b o a r d C l o c a t i o n ) , ( s u b j e c t - m a t t e r j u r i s d i c t i o n

data, if required), on or about 20 ,

compel to engage in [(a sexual act)(sexual

contact) (lewd act), to wit: ] for the purp o s e o f r e c e i v i n g m o n e y o r o t h e r c o m p e n s a t i o n

with (a) person(s) to be directed to (him-

)(her) by the said .

(13) Wrongful sexual contact.

In that (personal jurisdiction data), did (at/

on board-location), (subject-matter jurisdiction data,

if required), on or about 20 , engage in

sexual contact with , to wit: , and such

sexual contact was without legal justification or lawf u l a u t h o r i z a t i o n a n d w i t h o u t t h e p e r m i s s i o n

of .

(14) Indecent exposure.

In that (personal jurisdiction data), did

( a t / o n b o a r d - l o c a t i o n ) , ( s u b j e c t - m a t t e r j u r i s d i c t i o n

data, if required), on or about 20 ,

A25-109

HISTORICAL EXECUTIVE ORDERS
intentionally (expose in an indecent manner (his)

( h e r ) ( ) ( ) w h i l e ( a t t h e b a r r a c k s

window) (in a public place) ( ).

(e) Paragraph 50, Article 124 — Maiming,

paragraph e. is amended to read as follows:

“ e . M a x i m u m P u n i s h m e n t . D i s h o n o r a b l e d i s -

charge, forfeiture of all pay and allowances, and

confinement for 20 years.”

(f) Paragraph 51, Article 125 — Sodomy,

paragraph d. is amended by deleting the following

lesser included offenses under paragraphs d.(1)(b);

d.(2)(c); and d.(3)(a), and replacing them, respectively, with the following:

“(b) Article 134 — indecent liberty with a child”

“(c) Article 134 — indecent assault”

“(a) Article 134 — indecent acts with another”

(g) Paragraph 51, Article 125 — Sodomy,

paragraph d. is amended by adding at the end of

paragraph d. the following note: “(Note: Consider

lesser included offenses under Art. 120 depending

on the factual circumstances in each case.)”

( h ) P a r a g r a p h 5 4 , A r t i c l e 1 2 8 — A s s a u l t ,

paragraph b.(4)(a) is amended to read as follows:

“(a) Assault with a dangerous weapon or other

means of 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;

( i i i ) T h a t t h e a t t e m p t , o f f e r , o r b o d i l y

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: Add any of the following as

applicable)

(v) That the weapon was a loaded firearm.

(vi) That the person was a child under the

age of 16 years.”

( i ) P a r a g r a p h 5 4 , A r t i c l e 1 2 8 — A s s a u l t ,

paragraph b.(4)(b) is amended to read as follows:

“(b) Assault in which grievous bodily harm is

intentionally inflicted.

( i ) T h a t t h e a c c u s e d a s s a u l t e d a c e r t a i n

person;

( i i ) T h a t g r i e v o u s b o d i l y h a r m w a s

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:

Add any of the following as applicable)

(v) That the injury was inflicted with a

loaded firearm.

(vi) That the person was a child under the

age of 16 years.”

( j ) P a r a g r a p h 5 4 , A r t i c l e 1 2 8 — A s s a u l t ,

paragraph c.(4)(a) is amended by adding new paragraph c.(4)(a)(v) after c.(4)(a)(iv), to read as follows:

“(v) When committed upon a child under 16

years of age. The maximum punishment is increased

when aggravated assault with a dangerous weapon

or means likely to produce death or grievous bodily

harm is inflicted upon a child under 16 years of age.

Knowledge that the person assaulted was under the

age of 16 years is not an element of the offense.”

( k ) P a r a g r a p h 5 4 , A r t i c l e 1 2 8 — A s s a u l t ,

paragraph c.(4)(b) is amended by adding new paragraph c.(4)(b)(iv), to read as follows:

“(iv) When committed upon a child under 16

years of age. The maximum punishment is increased

when aggravated assault with intentional infliction

of grievous bodily harm is inflicted upon a child

under 16 years of age. Knowledge that the person

assaulted was under the age of 16 years is not an

element of the offense.”

( l ) P a r a g r a p h 5 4 , A r t i c l e 1 2 8 — A s s a u l t ,

paragraph (d)(6) is amended to read as follows:

“(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; (when committed upon a

child under the age of 16 years; assault consummated by a battery upon a child under the age of 16

years).”

(m) Paragraph 54, Article 128 — Assault,

paragraph d.(7) is amended to read as follows:

“(7) Assault in which grievous bodily harm is

intentionally inflicted. Article 128 — simple assault;

assault consummated by a battery; assault with a

dangerous weapon; (when committed upon a child

under the age of 16 years — assault consummated

b y a b a t t e r y u p o n a c h i l d u n d e r t h e a g e o f 1 6

years).”

A25-110

APPENDIX 25
( n ) P a r a g r a p h 5 4 , A r t i c l e 1 2 8 — A s s a u l t ,

paragraph e.(8) is amended to read as follows:

“(8) Aggravated assault with a dangerous weapon

or other means of force to produce death or grievous

bodily harm.” After current paragraph (a), insert paragraph (b) as follows below, and redesignate (b) as

paragraph (c): “(b) Aggravated assault with a dangerous weapon or other means of force to produce

death or grievous bodily harm when committed upon

a child under the age of 16 years. Dishonorable

discharge, total forfeitures, and confinement for 5

years.”

( o ) P a r a g r a p h 5 4 , A r t i c l e 1 2 8 — A s s a u l t ,

paragraph (e)(9) is amended to read as follows:

“(9) Aggravated assault in which grievous bodily

harm is intentionally inflicted.” After current paragraph (a), insert paragraph (b) as follows below, and

redesignate paragraph (b) as paragraph (c): “(b) Aggravated assault in which grievous bodily harm is

intentionally inflicted when committed upon a child

under the age of 16 years. Dishonorable discharge,

total forfeitures, and confinement for 8 years.”

( p ) P a r a g r a p h 5 4 , A r t i c l e 1 2 8 — A s s a u l t ,

paragraph (f)(8) is amended to read as follows:

“ ( 8 ) A s s a u l t , a g g r a v a t e d — w i t h a d a n g e r o u s

weapon, means or force.

In that (personal jurisdiction data), did,

(at/on boardClocation)(subject matter jurisdiction dat a , i f r e q u i r e d ) , o n o r a b o u t 2 0 ,

commit an assault upon (a child under the

a g e o f 1 6 y e a r s ) b y ( s h o o t i n g ) ( p o i n t i n g ) ( s t r i k i n -

g ) ( c u t t i n g ) ( ) ( a t h i m / h e r ) ( h i m / h e r ) ( i n -

) ( o n ) ( t h e ) w i t h ( a d a n g e r o u s w e a p o n ) ( a

(means)(force) likely to produce death or grievous

b o d i l y h a r m ) , t o w i t : a ( l o a d e d

firearm)(pickax)(bayonet)(club)( ).”

( q ) P a r a g r a p h 5 4 , A r t i c l e 1 2 8 — A s s a u l t ,

paragraph (f)(9) is amended to read as follows:

“(9) Assault, aggravated-inflicting grievous bodily harm.

In that (personal jurisdiction data), did,

(at/on board-location)(subject matter jurisdiction dat a , i f r e q u i r e d ) , o n o r a b o u t 2 0 ,

commit an assault upon (a child under the

a g e o f 1 6 y e a r s ) b y ( s h o o t i n g ) ( s t r i k i n g ) -

( c u t t i n g ) ( ) ( h i m / h e r ) ( o n ) t h e 

with a (loaded firearm)(club)(rock) (brick)( )

and did thereby intentionally inflict grievous bodily

h a r m u p o n h i m / h e r , t o w i t : a ( b r o k e n l e g ) ( d e e p

cut)(fractured skull)( ).”

(r) Paragraph 64, Article 134 — (Assault —

with intent to commit murder, voluntary manslaught e r , r a p e , r o b b e r y , s o d o m y , a r s o n , b u r g l a r y , o r

h o u s e b r e a k i n g ) , p a r a g r a p h c . ( 4 ) , f i r s t s e n t e n c e , i s

amended to read as follows:

“In assault with intent to commit rape, the accused must have intended to complete the offense.”

(s) Paragraph 64, Article 134 — (Assault —

with intent to commit murder, voluntary manslaught e r , r a p e , r o b b e r y , s o d o m y , a r s o n , b u r g l a r y , o r

housebreaking), is amended by deleting the following lesser included offense under paragraph d.(3)(b):

“(b) Article 134 — indecent assault”

( t ) N e w p a r a g r a p h 6 8 a , A r t i c l e 1 3 4 —

(Child endangerment) is inserted:

“68a. Article 134 — (Child endangerment)

a. Text. See paragraph 60.

b. Elements.

(1) That the accused had a duty for the care of

a certain child;

(2) That the child was under the age of 16

years;

( 3 ) T h a t t h e a c c u s e d e n d a n g e r e d t h e c h i l d ’ s

mental or physical health, safety, or welfare through

design or culpable negligence; 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) In general. This offense is intended to prohibit and therefore deter child endangerment through

design or culpable negligence.

(2) Design. Design means on purpose, intentionally, or according to plan and requires specific

intent to endanger the child.

(3) 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. In the

context of this offense, culpable negligence may include acts that, when viewed in the light of human

experience, might foreseeably result in harm to a

child, even though such harm would not necessarily

be the natural and probable consequences of such

acts. In this regard, the age and maturity of the

child, the conditions surrounding the neglectful conduct, the proximity of assistance available, the naA25-111

HISTORICAL EXECUTIVE ORDERS
ture of the environment in which the child may have

been left, the provisions made for care of the child,

and the location of the parent or adult responsible

for the child relative to the location of the child,

among others, may be considered in determining

whether the conduct constituted culpable negligence.

(4) Harm. Actual physical or mental harm to

the child is not required. The offense requires that

the accused’s actions reasonably could have caused

physical or mental harm or suffering. However, if

the accused’s conduct does cause actual physical or

mental harm, the potential maximum punishment increases. See Paragraph 54(c)(4)(a)(iii) for an explanation of “grievous bodily harm”.

( 5 ) E n d a n g e r . “ E n d a n g e r ” m e a n s t o s u b j e c t

one to a reasonable probability of harm.

(6) Age of victim as a factor. While this offense may be committed against any child under 16,

the age of the victim is a factor in the culpable

negligence determination. Leaving a teenager alone

for an evening may not be culpable (or even simple)

negligence; leaving an infant or toddler for the same

period might constitute culpable negligence. On the

other hand, leaving a teenager without supervision

for an extended period while the accused was on

temporary duty outside commuting distance might

constitute culpable negligence.

(7) Duty required. The duty of care is determined by the totality of the circumstances and may

be established by statute, regulation, legal parentchild relationship, mutual agreement, or assumption

of control or custody by affirmative act. When there

is no duty of care of a child, there is no offense

under this paragraph. Thus, there is no offense when

a stranger makes no effort to feed a starving child or

an individual/neighbor not charged with the care of

a child does not prevent the child from running and

playing in the street.

d. Lesser included offenses.

(1) Child Endangerment by Design.

A r t i c l e 1 3 4 — C h i l d e n d a n g e r m e n t b y c u l p a b l e

negligence

(2) Article 80 — Attempts

e. Maximum punishment.

(1) Endangerment by design resulting in grievous bodily harm. Dishonorable discharge, forfeiture

of all pay and allowances, and confinement for 8

years.

(2) Endangerment by design resulting in harm.

Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years.

(3) Other cases by design. Dishonorable discharge, forfeiture of all pay and allowances and confinement for 4 years.

( 4 ) E n d a n g e r m e n t b y c u l p a b l e n e g l i g e n c e

resulting in grievous bodily harm. Dishonorable discharge, forfeiture of all pay and allowances, and

confinement for 3 years.

( 5 ) E n d a n g e r m e n t b y c u l p a b l e n e g l i g e n c e

resulting in harm. Bad-conduct discharge, forfeiture

of all pay and allowances, and confinement for 2

years.

(6) Other cases by culpable negligence. Badconduct discharge, forfeiture of all pay and allowances, and confinement for 1 year.

f. Sample specification.

(1) Resulting in grievous bodily harm.

In that (personal jurisdiction data),(at/

on boardClocation) (subject matter jurisdiction data,

if required) on or about , 20 , had a

duty for the care of , a child under the age

of 16 years and did endanger the (mental health)

(physical health)(safety)(welfare) of said ,

b y ( l e a v i n g t h e s a i d u n a t t e n d e d i n h i s

quarters for over hours/days with no adult

present in the home) (by failing to obtain medical

c a r e f o r t h e s a i d ’ s d i a b e t i c c o n d i -

t i o n ) ( ) , a n d t h a t s u c h c o n d u c t ( w a s b y

d e s i g n ) ( c o n s t i t u t e d c u l p a b l e n e g l i g e n c e ) ( w h i c h r e -

sulted in grievous bodily harm, to wit:) (broken leg-

)(deep cut)(fractured skull)( ).

(2) Resulting in harm.

In that (personal jurisdiction data),(at/

on boardClocation) (subject matter jurisdiction data,

if required) on or about , 20 , had a

duty for the care of , a child under the age

of 16 years, and did endanger the (mental health)

(physical health)(safety)(welfare) of said ,

b y ( l e a v i n g t h e s a i d u n a t t e n d e d i n h i s

quarters for over hours/days with no adult

present in the home) (by failing to obtain medical

c a r e f o r t h e s a i d ’ s d i a b e t i c c o n d i -

t i o n ) ( ) , a n d t h a t s u c h c o n d u c t ( w a s b y

design)(constituted culpable negligence) (which res u l t e d i n ( h a r m , t o w i t : ) ( a b l a c k e y e ) ( b l o o d y

nose)(minor cut)( ).

(3) Other cases.

A25-112

APPENDIX 25
In that (personal jurisdiction data),(at/

on boardClocation) (subject matter jurisdiction data,

if required) on or about , 20 , was responsible for the care of , a child under the

age of 16 years, and did endanger the (mental healt h ) ( p h y s i c a l h e a l t h ) ( s a f e t y ) ( w e l f a r e ) o f

said , by (leaving the said unattended in his quarters for over hours/days

with no adult present in the home) (by failing to

obtain medical care for the said ’s diabetic

condition)( ), and that such conduct (was by

design)(constituted culpable negligence).”

(u) Paragraph 63, Article 134 — (Assaultindecent) is deleted.

(v) Paragraph 87, Article 134 — (Indecent

acts or liberties with a child) is deleted.

(w) Paragraph 88, Article 134 — (Indecent

exposure) is deleted.

(x) Paragraph 90, Article 134 — (Indecent

acts with another) is deleted.

(y) Paragraph 89, Article 134 — (Indecent

language), paragraph c. is amended to read as follows:

“ c . E x p l a n a t i o n . “ I n d e c e n t ” l a n g u a g e i s t h a t

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

i n c i t e l u s t f u l t h o u g h t . L a n g u a g e i s i n d e c e n t i f i t

tends reasonably to corrupt morals or incite libidinous thoughts. The language must violate commun i t y s t a n d a r d s . S e e p a r a g r a p h 4 5 i f t h e

communication was made in the physical presence

of a child.”

(z) Paragraph 97, Article 134 — (Pandering

and prostitution) is amended to read as follows:

“(3) Pandering by inducing, enticing, or procuring act of prostitution.

(a) That the accused 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 inducing, enticing, or procuring was wrongful;

( c ) T h a t , u n d e r t h e c i r c u m s t a n c e s , t h e

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.”

(aa) Paragraph 97, Article 134 — (Pandering

and prostitution), subsection (f)(3) is amended to

read as follows:

“(3) Inducing, enticing, or procuring act of prostitution.

In that (personal jurisdiction data), did

( a t / o n b o a r d C l o c a t i o n ) ( s u b j e c t - m a t t e r j u r i s d i c t i o n

data, if required), on or about 20 ,

w r o n g f u l l y ( i n d u c e ) ( e n t i c e ) ( p r o c u r e ) t o

engage in (an act)(acts) of (sexual intercourse for

hire and reward) with persons to be directed to him/

her by the said .”

A25-113

HISTORICAL EXECUTIVE ORDERS
A25-114

APPENDIX 25
APPENDIX 26

THE JOINT SERVICE COMMITTEE ON MILITARY JUSTICE (JSC)

A26-1
A26-2

APPENDIX 26
A26-3

THE JOINT SERVICE COMMITTEE ON MILITARY JUSTICE (JSC)
A26-4

APPENDIX 26
A26-5

THE JOINT SERVICE COMMITTEE ON MILITARY JUSTICE (JSC)
A26-6

APPENDIX 26
A26-7

THE JOINT SERVICE COMMITTEE ON MILITARY JUSTICE (JSC)
A26-8

APPENDIX 26
A26-9

THE JOINT SERVICE COMMITTEE ON MILITARY JUSTICE (JSC)

APPENDIX 27

PUNITIVE ARTICLES APPLICABLE TO SEXUAL ASSAULT OFFENSES

COMMITTED PRIOR TO 1 OCTOBER 2007

The punitive articles contained in this appendix

were replaced or superseded by changes to Article

120, Uniform Code of Military Justice, contained in

the National Defense Authorization Act for 2006.

The effective date of the new Article 120 provision

was 1 October 2007. Offenses occurring prior to this

effective date must be charged under the former

provisions of Article 120 or Article 134, which are

listed below:

45. Article 120—Rape and carnal knowledge

a. Text.

(a) Any person subject to this chapter who commits an act of sexual intercourse by force and without consent, is guilty of rape and shall be punished

by death or such other punishment as a court-martial

may direct.

(b) Any person subject to this chapter who, under

circumstances not amounting to rape, commits an

act of sexual intercourse with a person—

(1) who is not his or her spouse; and

(2) 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 ) P e n e t r a t i o n , h o w e v e r s l i g h t , i s s u f f i c i e n t t o

complete either of these offenses.

(d)(1) In a prosecution under subsection (b), it is

an affirmative defense that—

(A) the person with whom the accused committed the act of sexual intercourse had at the time

of the alleged offense attained the age of twelve

years; and

(B) the accused reasonably believed that the

person had at the time of the alleged offense attained

the age of 16 years.

(2) The accused has the burden of proving a

defense under subparagraph (d)(1) by a preponderance of the evidence.

b. Elements.

(1) Rape.

(a) That the accused committed an act of sexual intercourse; and

(b) That the act of sexual intercourse was done

by force and without consent.

(2) Carnal knowledge.

(a) That the accused committed an act of sexual intercourse with a certain person;

( b ) T h a t t h e p e r s o n w a s n o t t h e a c c u s e d ’ s

spouse; and

(c)(1) That at the time of the sexual intercourse the person was under the age of 12; or

(2) That at the time of the sexual intercourse

the person had attained the age of 12 but was under

the age of 16.

c. Explanation.

(1) Rape.

( a ) N a t u r e o f o f f e n s e . R a p e i s s e x u a l i n t e r -

course by a person, executed by force and without

consent of the victim. It may be committed on a

victim of any age. Any penetration, however slight,

is sufficient to complete the offense.

(b) Force and lack of consent. Force and lack

of consent are necessary to the offense. Thus, if the

victim consents to the act, it is not rape. The lack of

consent required, however, is more than mere lack

of acquiescence. If a victim in possession of his or

her mental faculties fails to make lack of consent

reasonably manifest by taking such measures of resistance as are called for by the circumstances, the

inference may be drawn that the victim did consent.

Consent, however, may not be inferred if resistance

would have been futile, where resistance is overcome by threats of death or great bodily harm, or

where the victim is unable to resist because of the

lack of mental or physical faculties. In such a case

there is no consent and the force involved in penet r a t i o n w i l l s u f f i c e . A l l t h e s u r r o u n d i n g c i r c u m -

stances are to be considered in determining whether

a victim gave consent, or whether he or she failed or

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ceased to resist only because of a reasonable fear of

death or grievous bodily harm. If there is actual

consent, although obtained by fraud, the act is not

rape, but if to the accused’s knowledge the victim is

of unsound mind or unconscious to an extent rendering him or her incapable of giving consent, the act is

rape. Likewise, the acquiescence of a child of such

tender years that he or she is incapable of understanding the nature of the act is not consent.

(c) Character of victim. See Mil. R. Evid. 412

concerning rules of evidence relating to an alleged

rape victim’s character.

( 2 ) C a r n a l k n o w l e d g e . “ C a r n a l k n o w l e d g e ” i s

sexual intercourse under circumstances not amounting to rape, with a person who is not the accused’s

spouse and who has not attained the age of 16 years.

A n y p e n e t r a t i o n , h o w e v e r s l i g h t , i s s u f f i c i e n t t o

c o m p l e t e t h e o f f e n s e . I t i s a d e f e n s e , h o w e v e r ,

which the accused must prove by a preponderance

of the evidence, that at the time of the act of sexual

intercourse, the person with whom the accused committed the act of sexual intercourse was at least 12

years of age, and that the accused reasonably believed that this same person was at least 16 years of

age.

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

(e) Article 120(b)—carnal knowledge

(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 with a child who, at the

time of the offense, has attained the age of 12 years.

Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 20 years.

(3) Carnal knowledge with a child under the age

of 12 years at the time of the offense. Dishonorable

discharge, forfeiture of all pay and allowances, and

confinement for life without eligibility for parole.

f. Sample specifications.

(1) Rape. In that (personal jurisdiction data), did,

(at/on board — location) (subject - matter jurisdiction data, if required), on or about , rape,

(a person under the age of 12) (a person

who had attained the age of 12 but was under the

age of 16).

(2) Carnal knowledge. In that (personal jurisdiction data), did, (at/on board — location) (subject -

m a t t e r j u r i s d i c t i o n d a t a , i f r e q u i r e d ) , o n o r

a b o u t , c o m m i t t h e o f f e n s e o f c a r n a l

knowledge with , (a person under the

age of 12) (a person who attained the age of 12 but

was under the age of 16).

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 . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e ,

forfeiture of all pay and allowances, and confinement for 5 years.

f. Sample specification. In that (personal jurisdiction

d a t a ) , d i d ( a t / o n b o a r d — l o c a t i o n ) , ( s u b j e c t - m a t t e r

jurisdiction data, if required), on or about ,

commit an indecent assault upon a person not his/

her wife/husband by , with intent to gratify

his/her (lust) (sexual desires).

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APPENDIX 27
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 paragraph 89c and 90c.

d. Lesser included offense.

(1) Article 134—indecent acts with another

(2) Article 128—assault; assault consummated by

a battery

(3) Article 80—attempts

e . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e ,

forfeiture of all pay and allowances, and confinement for 7 years.

f. Sample specification. In that (personal jurisdiction

data), did, (at/on board — location) (subject - matter

jurisdiction data, if required), on or about ,

(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 his/her hands upon (her) (his) leg and

private parts) ( ), with intent to (arouse) (appeal

to) (gratify) the (lust) (passion) (sexual desires) of

the said ( ).

88. Article 134—(Indecent exposure)

a. Text. See paragraph 60.

b. Elements.

(1) That the accused exposed a certain part of the

a c c u s e d ’ s b o d y t o p u b l i c v i e w i n a n i n d e c e n t

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 specification. In that (personal jurisdiction

data), did (at/on board—location) (subject-matter jurisdiction data, if required), on or about ,

while (at a barracks window) ( ) willfully and

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PUNITIVE ARTICLES APPLICABLE TO SEXUAL ASSAULT OFFENSES COMMITTED PRIOR TO 1 OCTOBER 2007
wrongfully expose in an indecent manner to public

view his or her .

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 . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e ,

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 ,

w r o n g f u l l y c o m m i t a n i n d e c e n t a c t w i t h

by .

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APPENDIX 27
MCM INDEX

Subject Ref. Page

Abandoned property, seizure of . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 316(d)(1) . . . . . . . . . . III–16

Abandoned property of enemy, offenses concerning . . . . . . . . IV. Para. 27 . . . . . . . . . . . . . . . . . . . . IV–39

Abandoning guard or watch . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV, Para. 10b(4) . . . . . . . . . . . . . . . . IV–13

See also Sentinel or lookout.

Abandonment or surrender of command, military property,

place, unit or ship

Shamefully . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 23 . . . . . . . . . . . . . . . . . . . . IV–33

Subordinate compelling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 24 . . . . . . . . . . . . . . . . . . . . IV–36

Abettor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 1a(1); 1b(1) . . . . . . . . . . . IV–1

See also Principals.

Absence

Accused’s

After trial substitute service . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1104(b)(1)(C) . . . . . . . . . . . . II–144

During pretrial conference . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 802(d) . . . . . . . . . . . . . . . . . . II–76

During pretrial investigation . . . . . . . . . . . . . . . . . . . . . . R.C.M. 405(h)(4) . . . . . . . . . . . . . . . . II–39

During trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 804 . . . . . . . . . . . . . . . . . . . . II–76

Speedy trial, effect on . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 707(c)(1) . . . . . . . . . . . . . . . . II–72

Voluntary for child testimony . . . . . . . . . . . . . . . . . . . . R.C.M. 804(c) . . . . . . . . . . . . . . . . . . II–77

Defense counsel, during trial . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 805(c) . . . . . . . . . . . . . . . . . . II–78

Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 805(b) . . . . . . . . . . . . . . . . . . II–78

Military judge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 805(a) . . . . . . . . . . . . . . . . . . II–78

Trial counsel, during trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 805(c) . . . . . . . . . . . . . . . . . . II–78

Absence without leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 10 . . . . . . . . . . . . . . . . . . . . IV–12

See also Desertion

Abusive sexual contact . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 45 . . . . . . . . . . . . . . . . . . . . IV–68

Accessory

After the fact . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 2 . . . . . . . . . . . . . . . . . . . . . IV–2

Before the fact . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 1b(1) . . . . . . . . . . . . . . . . . IV–1

Accident

As defense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(f) . . . . . . . . . . . . . . . . . . II–110

Fleeing scene of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 82 . . . . . . . . . . . . . . . . . . . . IV–126

Accomplices

See also Conspiracy; Joint trial; Principals.

Co-conspirators . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 5c . . . . . . . . . . . . . . . . . . . . IV–5

Joint charge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 307(c)(5) . . . . . . . . . . . . . . . . II–29

Accused

See also specific topics.

Absence of

After trial substitute service . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1104(b)(1)(C) . . . . . . . . . . . . II–144

During pretrial conference . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 802(d) . . . . . . . . . . . . . . . . . . II–76

During pretrial investigation . . . . . . . . . . . . . . . . . . . . . . R.C.M. 405(h)(4) . . . . . . . . . . . . . . . . II–39

During trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 804 . . . . . . . . . . . . . . . . . . . . II–76

Speedy trial, effect on . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 707(c)(1) . . . . . . . . . . . . . . . . II–72

Voluntary for child testimony . . . . . . . . . . . . . . . . . . . . R.C.M. 804(c) . . . . . . . . . . . . . . . . . . II–77

Action, service of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1107(h) . . . . . . . . . . . . . . . . . II–155

Announcement of presence in court . . . . . . . . . . . . . . . . . . . R.C.M. 813(a)(2) . . . . . . . . . . . . . . . . II–86

Appearance of, at trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 804(c)(1) . . . . . . . . . . . . . . . . II–77

Appellate rights, advice

By defense counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(d)(6) . . . . . . . . . . . . . . . . II–45

By military judge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1010 . . . . . . . . . . . . . . . . . . . II–135

Character evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 404(a)(1); 404(b) . . . III–19

Charges

Notification of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 308 . . . . . . . . . . . . . . . . . . . . II–30

Service of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 602 . . . . . . . . . . . . . . . . . . . . II–53

Composition of court-martial, elections . . . . . . . . . . . . . . . . R.C.M. 903 . . . . . . . . . . . . . . . . . . . . II–89

Conferences

Presence at . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 802(d) . . . . . . . . . . . . . . . . . . II–76

Rights at . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 802(c) . . . . . . . . . . . . . . . . . . II–76

Counsel

See also Counsel; Defense counsel.

Explanation at trial of right to . . . . . . . . . . . . . . . . . . . R.C.M. 901(d)(4) . . . . . . . . . . . . . . . . II–87

Rights to

See also Self-Incrimination.

Index 1
Subject Ref. Page

Appellate counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1202(b)(2) . . . . . . . . . . . . . . . II–168

At general or special court-martial . . . . . . . . . . . . . . . . R.C.M. 506 . . . . . . . . . . . . . . . . . . . . II–50

At interrogations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 305(d); 305(e) . . . . . . III–7

At lineups . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 321(b)(2) . . . . . . . . . . III–17

At pretrial investigations . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 405(d)(2) . . . . . . . . . . . . . . . . II–34

At summary court-martial . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1301(e) . . . . . . . . . . . . . . . . . II–177

Before review of pretrial confinement . . . . . . . . . . . . . R.C.M. 305(f) . . . . . . . . . . . . . . . . . . II–22

Counsel advice on post-trial rights . . . . . . . . . . . . . . . . R.C.M. 1010(d) . . . . . . . . . . . . . . . . . II–135

Decision of Court of Criminal Appeal, service on . . . . . . R.C.M. 908(c)(3); 1203(d) . . . . . . . . II–98; II–170

After appeal by accused . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1203(d) . . . . . . . . . . . . . . . . . II–170

After appeal by United States . . . . . . . . . . . . . . . . . . . . R.C.M. 908(c)(3) . . . . . . . . . . . . . . . . II–98

Investigation, pretrial, rights . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 405(f) . . . . . . . . . . . . . . . . . . II–35

Joinder of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 601(e)(3) . . . . . . . . . . . . . . . . II–53

Jurisdiction over . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 202(a) . . . . . . . . . . . . . . . . . . II–13

Mental examination of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 706 . . . . . . . . . . . . . . . . . . . . II–69

Notification of charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 308 . . . . . . . . . . . . . . . . . . . . II–30

Post-trial rights

Advice to accused . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1010 . . . . . . . . . . . . . . . . . . . II–135

Right to submit matters to convening authority . . . . . . . . . R.C.M. 1010(a); 1105 . . . . . . . . . . . . II–135; II–146

Presence at trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 803; 804 . . . . . . . . . . . . . . . . II–76; II–77

Removal from courtroom . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 804(b) . . . . . . . . . . . . . . . . . . II–77

Restraint of

During trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 804(d)(3) . . . . . . . . . . . . . . . . II–78

Pretrial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 304; 305 . . . . . . . . . . . . . . . . II–19; II–21

Sentencing, See Presenting procedure.

Service of appellate court decision . . . . . . . . . . . . . . . . . . . . R.C.M. 908(c)(3); 1203(d) . . . . . . . . II–98; II–170

Service of charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 602 . . . . . . . . . . . . . . . . . . . . II–53

Severance of, motion for

See also Joint trial.

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(b)(5); 906(b)(9) . . . . . . II–91; II–94

Time for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(b)(5) . . . . . . . . . . . . . . . . II–91

Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(e) . . . . . . . . . . . . . . . . . . II–92

Accuser

Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Art. 1(9), UCMJ . . . . . . . . . . . . . . . . A2–1

Disqualification

Convening authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 504(c)(1); 601(c) . . . . . . . . . II–48; II–52

Defense counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(d)(4)(A) . . . . . . . . . . . . . II–44

Member . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 912(f)(1)(C) . . . . . . . . . . . . . II–104

Personnel of court-martial . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(e)(2)(A) . . . . . . . . . . . . . II–46

Reviewer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1112(c) . . . . . . . . . . . . . . . . . II–161

Subordinate of convening authority . . . . . . . . . . . . . . . . R.C.M. 504(c)(2) . . . . . . . . . . . . . . . . II–48

Trial counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(d)(4)(A) . . . . . . . . . . . . . II–44

Nominal accuser . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 103(20); 307(a) . . . . . . . . . . II–2; II–27

Notification to accused of . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 308 . . . . . . . . . . . . . . . . . . . . II–30

Preferral of charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 307 . . . . . . . . . . . . . . . . . . . . II–27

Acquittal

See also Findings.

Motion for a finding of not guilty . . . . . . . . . . . . . . . . . . . . R.C.M. 917 . . . . . . . . . . . . . . . . . . . . II–113

Reconsideration of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 924 . . . . . . . . . . . . . . . . . . . . II–119

Record of trial in case of . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1103(e) . . . . . . . . . . . . . . . . . II–141

Action of convening authority

See also Convening authority.

Ambiguous action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1107(g) . . . . . . . . . . . . . . . . . II–155

Contents of action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1107(f) . . . . . . . . . . . . . . . . . II–153

Dismissal of charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1107(c)(2)(A) . . . . . . . . . . . . II–151

Erroneous action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1107(g) . . . . . . . . . . . . . . . . . II–155

Findings, action on . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1107(c); 1107(f)(3) . . . . . . . II–151; II–153

Forms for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Appendix 16 . . . . . . . . . . . . . . . . . . . A16–1

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1107 . . . . . . . . . . . . . . . . . . . II–149

Incomplete . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1107(g) . . . . . . . . . . . . . . . . . II–155

Lesser included offense, approval of . . . . . . . . . . . . . . . . . . R.C.M. 1107(c)(1) . . . . . . . . . . . . . . . II–151

Matters considered . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1107(b)(3) . . . . . . . . . . . . . . . II–150

Mental capacity, when accused lacks . . . . . . . . . . . . . . . . . . R.C.M. 1107(b)(5) . . . . . . . . . . . . . . . II–150

Mental responsibility, lack of . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1107(b)(4) . . . . . . . . . . . . . . . II–150

Index 2

MCM, 2008 INDEX
Subject Ref. Page

Modification of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1107(f)(2); 1107(g) . . . . . . . II–153; II–155

New trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1107(f)(5)(B) . . . . . . . . . . . . II–155

Not guilty findings, action on . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1107(b)(4) . . . . . . . . . . . . . . . II–150

Other trial, ordering . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1107(e)(2) . . . . . . . . . . . . . . . II–153

Pretrial agreement, effect of . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 705(b)(2)(E) . . . . . . . . . . . . . II–68

Rehearing, ordering . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1107(c)(2)(B); 1107(e)(1);

R.C.M. 1107(f)(5) . . . . . . . . . . . . . . . II–151; II–152; II–154

Sentence, action on . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1107(d); 1107(f)(4) . . . . . . . II–151; II–154

Service on accused . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1107(h) . . . . . . . . . . . . . . . . . II–155

Suspension of sentence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1108 . . . . . . . . . . . . . . . . . . . II–155

When taken . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1107(b)(2) . . . . . . . . . . . . . . . II–150

Who may take . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1107(a) . . . . . . . . . . . . . . . . . II–149

Withdrawal of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1107(f)(2) . . . . . . . . . . . . . . . II–153

Additional charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 307(c)(2) . . . . . . . . . . . . . . . . II–27

Adequate interest to challenge search and seizure . . . . . . . . Mil. R. Evid. 311(a)(2) . . . . . . . . . . III–8

Adjournment of courts-martial

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1011 . . . . . . . . . . . . . . . . . . . II–135

Sessions after . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 803; 1102 . . . . . . . . . . . . . . . II–76; II–138

Administrative action, to dispose of offense . . . . . . . . . . . . . . . R.C.M. 306(c)(2); V. Para. 1d(1) . . II–26; V–1

Administrative proceeding, wrongful interference with . . . . . . IV. Para. 96a . . . . . . . . . . . . . . . . . . . IV–133

Admissions. See Self-incrimination.

Admonition

Of court-martial, member, military judge, or counsel . . . . R.C.M. 104(a)(1) . . . . . . . . . . . . . . . . II–4

Punishment, nonjudicial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Para. 5c(1) . . . . . . . . . . . . . . . . . . V–5

Adultery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 62 . . . . . . . . . . . . . . . . . . . . IV–114

Advice, pretrial

Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 406(b) . . . . . . . . . . . . . . . . . . II–40

Distribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 406(c) . . . . . . . . . . . . . . . . . . II–40

General court-martial, requirement for . . . . . . . . . . . . . . . . . R.C.M. 601(d)(2)(B) . . . . . . . . . . . . . II–52

Motion concerning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(b)(1) . . . . . . . . . . . . . . . . II–91

R.C.M. 906(b)(3) . . . . . . . . . . . . . . . . II–94

Responsibility for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 406(a) . . . . . . . . . . . . . . . . . . II–40

Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 601(d)(2)(B) . . . . . . . . . . . . . II–52

When required . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 406(a) . . . . . . . . . . . . . . . . . . II–40

Affidavits

Character of accused, proof by . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 405(c) . . . . . . . . . . . . . III–19

Sentencing proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1001(c)(3) . . . . . . . . . . . . . . . II–122

Affirmation

See also Oaths.

Oath, included in . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 807(a) . . . . . . . . . . . . . . . . . . II–80

Affirmative defenses. See Defenses.

Aggravated assault. See Assault.

Aggravated sexual assault . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 45 . . . . . . . . . . . . . . . . . . . . IV–68

Aggravated sexual contact . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 45 . . . . . . . . . . . . . . . . . . . . IV–68

Aggravating circumstances, capital cases . . . . . . . . . . . . . . . . . R.C.M. 1004(c) . . . . . . . . . . . . . . . . . II–129

See also Capital case.

Aggravation, evidence in . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1001(b)(4) . . . . . . . . . . . . . . . II–121

Agreement

Pretrial. See Pretrial agreement.

To commit offense. See Conspiracy.

Aider and abettor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 1 . . . . . . . . . . . . . . . . . . . . . IV–1

See also Principals.

Aiding the enemy

Attempts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Paras. 4c(6)(d); 28 . . . . . . . . . . . IV–5; IV–41

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 28 . . . . . . . . . . . . . . . . . . . . IV–41

Aircraft. See Jet.

Aircraft carrier. See Vessel.

Alcohol. See Drunk; Intoxication.

Alibi

Failure to disclose, effect of . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(g)(3) . . . . . . . . . . . . . . . . II–58

Notice of, by defense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(b)(2) . . . . . . . . . . . . . . . . II–57

Notice of rebuttal witnesses by trial counsel . . . . . . . . . . . R.C.M. 701(a)(3)(B) . . . . . . . . . . . . . II–56

Withdrawal after disclosure, effect of . . . . . . . . . . . . . . . . . . R.C.M. 701(b)(5) . . . . . . . . . . . . . . . . II–58

Amending charges and specifications . . . . . . . . . . . . . . . . . . . . R.C.M. 603 . . . . . . . . . . . . . . . . . . . . II–54

Index 3

INDEX MCM, 2008
Subject Ref. Page

See also Charges and specifications.

Ammunition, casting away . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 23 . . . . . . . . . . . . . . . . . . . . IV–33

Amphetamines. See Controlled substances, offenses involving.

Analysis

Military Rules of Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . Appendix 22 . . . . . . . . . . . . . . . . . . . A22–1

Nonjudicial Punishment Procedure . . . . . . . . . . . . . . . . . . . . . Appendix 24 . . . . . . . . . . . . . . . . . . . A24–1

Punitive Articles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Appendix 23 . . . . . . . . . . . . . . . . . . . A23–1

Rules for Courts-Martial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Appendix 21 . . . . . . . . . . . . . . . . . . . A21–1

Animals, abusing of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 61 . . . . . . . . . . . . . . . . . . . . IV–113

Announcement

Findings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 922 . . . . . . . . . . . . . . . . . . . . II–118

Form for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Appendix 10 . . . . . . . . . . . . . . . . . . . A10–1

Persons present or absent at trial . . . . . . . . . . . . . . . . . . . . . R.C.M. 813 . . . . . . . . . . . . . . . . . . . . II–86

Sentence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1007 . . . . . . . . . . . . . . . . . . . II–133

Form for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Appendix 11 . . . . . . . . . . . . . . . . . . . A11–1

Pretrial agreement inquiry after . . . . . . . . . . . . . . . . . . . R.C.M. 910(h)(3) . . . . . . . . . . . . . . . . II–102

Appeals. See Appellate review.

Appellate counsel. See Appellate review.

Appellate review.

Appeal by United States (Art. 62, UCMJ) . . . . . . . . . . . . . R.C.M. 908 . . . . . . . . . . . . . . . . . . . . II–97

Appellate counsel

Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1202(b) . . . . . . . . . . . . . . . . . II–168

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1202(a) . . . . . . . . . . . . . . . . . II–168

When appeal filed by United States . . . . . . . . . . . . . . . R.C.M. 908(c)(1) . . . . . . . . . . . . . . . . II–98

Finality of courts-martial . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1209 . . . . . . . . . . . . . . . . . . . II–174

Judge Advocate General, The

Cases of lack of mental responsibility . . . . . . . . . . . . . R.C.M. 1201(b)(3)(B) . . . . . . . . . . . . II–167

Cases referred to Court of Criminal Appeals by

(Art. 66, UCMJ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1201(a) . . . . . . . . . . . . . . . . . II–167

Cases reviewed by (Art 69, UCMJ) . . . . . . . . . . . . . . . R.C.M. 1201(b)(1); 1201(b)(2);

1201(b)(3) . . . . . . . . . . . . . . . . . . . . . . II–167

Remission and suspension of sentence by . . . . . . . . . . R.C.M. 1201(c) . . . . . . . . . . . . . . . . . II–168

Review of summary court-martial by . . . . . . . . . . . . . . R.C.M. 1306(d) . . . . . . . . . . . . . . . . . II–181

New trial. See New trial.

Nonjudicial punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Para. 7 . . . . . . . . . . . . . . . . . . . . . V–8

Powers and responsibilities of the Service Secretary . . . . . R.C.M. 1206 . . . . . . . . . . . . . . . . . . . II–173

Restoration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1208 . . . . . . . . . . . . . . . . . . . II–173

Review by a judge advocate . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1112 . . . . . . . . . . . . . . . . . . . II–161

Review by Court of Appeals for the Armed Forces.

See Court of Appeals for the Armed Forces.

Review by Court of Criminal Appeals. See Court of

Criminal Appeals.

Review by the Supreme Court (Art. 67(h)(1), (2))

Action by Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1205(b) . . . . . . . . . . . . . . . . . II–173

Cases subject to review . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1205(a) . . . . . . . . . . . . . . . . . II–173

Sentence requiring approval of the President . . . . . . . . . . . R.C.M. 1207 . . . . . . . . . . . . . . . . . . . II–173

Waiver or withdrawal of . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1110 . . . . . . . . . . . . . . . . . . . II–159

Appellate rights waiver form . . . . . . . . . . . . . . . . . . . . . . . . . . . Appendix 19 . . . . . . . . . . . . . . . . . . . A19–1

Appointment in armed forces. See Enlistment.

Apprehension

Absence without leave, terminated by . . . . . . . . . . . . . . . . . IV. Para. 10e(2)(d) . . . . . . . . . . . . . . IV–15

Attachment of jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 202(c)(2) . . . . . . . . . . . . . . . . II–15

Authorization, when required . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 302(e)(2) . . . . . . . . . . . . . . . . II–18

Custody, defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 19c(4)(a) . . . . . . . . . . . . . . IV–29

Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 302(a) . . . . . . . . . . . . . . . . . . II–17

Deserters, by civilian authorities . . . . . . . . . . . . . . . . . . . . . . R.C.M. 302(b)(3) . . . . . . . . . . . . . . . . II–18

Desertion, terminated by . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 9e(2)(a) . . . . . . . . . . . . . . . IV–12

Force, use of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 302(d)(3) . . . . . . . . . . . . . . . . II–18

Grounds for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 302(c) . . . . . . . . . . . . . . . . . . II–18

Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 302(d) . . . . . . . . . . . . . . . . . . II–18

Resisting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 19 . . . . . . . . . . . . . . . . . . . . IV–28

Search incident to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 314(g) . . . . . . . . . . . . III–13

See also Search and seizure.

Unlawful . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 21 . . . . . . . . . . . . . . . . . . . . IV–32

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Warrant, when required . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 302(d)(2); 302(e)(2) . . . . . . . II–18

Where made . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 302(e) . . . . . . . . . . . . . . . . . . II–18

Who may apprehend . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 302(b) . . . . . . . . . . . . . . . . . . II–17

Appropriation, wrongful . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV Para. 46 . . . . . . . . . . . . . . . . . . . . IV–84

Argument

Control of, by military judge . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 801(a)(3) . . . . . . . . . . . . . . . . II–73

Findings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 919 . . . . . . . . . . . . . . . . . . . . II–115

Motions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 801(a)(3) . . . . . . . . . . . . . . . . II–73

Sentence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1001(g) . . . . . . . . . . . . . . . . . II–123

Statement, opening . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 913(b) . . . . . . . . . . . . . . . . . . II–105

Armed forces, defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 103(20) . . . . . . . . . . . . . . . . . II–2

Arms, casting away . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 23 . . . . . . . . . . . . . . . . . . . . IV–33

Arraignment

Accused, presence required at . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 804 . . . . . . . . . . . . . . . . . . . . II–77

Additional charges, effect on referral of . . . . . . . . . . . . . . . R.C.M. 601(e)(2) . . . . . . . . . . . . . . . . II–53

Amending charges, effect on . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 603(b); 603(c) . . . . . . . . . . . II–54

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 904 . . . . . . . . . . . . . . . . . . . . II–90

Arrest

Attachment of jurisdiction, effecting . . . . . . . . . . . . . . . . . . . R.C.M. 202(c)(2) . . . . . . . . . . . . . . . . II–15

Breaking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 19 . . . . . . . . . . . . . . . . . . . . IV–28

In quarters, as nonjudicial punishment . . . . . . . . . . . . . . . . . V. Para. 5b(1)(B)(i); 5c(3) . . . . . . . . V–4; V–5

Members, disqualification while in . . . . . . . . . . . . . . . . . . . . R.C.M. 912(f)(1)(L) . . . . . . . . . . . . . II–104

Pretrial

See also Restraint, pretrial.

Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 304(a)(3) . . . . . . . . . . . . . . . . II–20

Duties inconsistent with . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 304(a)(3) . . . . . . . . . . . . . . . . II–20

Grounds for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 304(c) . . . . . . . . . . . . . . . . . . II–20

Notice to persons in . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 304(e) . . . . . . . . . . . . . . . . . . II–21

Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 304(d) . . . . . . . . . . . . . . . . . . II–20

Punishment prohibited . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 304(f) . . . . . . . . . . . . . . . . . . II–21

Release from

Authority to grant . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 304(g) . . . . . . . . . . . . . . . . . . II–21

When required . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 707(d) . . . . . . . . . . . . . . . . . . II–72

Speedy trial, effect on . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 707(b)(1); 707(b)(2) . . . . . . II–71

Who may order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 304(b) . . . . . . . . . . . . . . . . . . II–20

Unlawful, as offense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 21 . . . . . . . . . . . . . . . . . . . . IV–32

Arson

See also Burning with intent to defraud.

Aggravated . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 52 . . . . . . . . . . . . . . . . . . . . IV–96

Murder while committing . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 43 . . . . . . . . . . . . . . . . . . . . IV–62

Assault with intent to commit . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 64 . . . . . . . . . . . . . . . . . . . . IV–115

Simple arson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 52 . . . . . . . . . . . . . . . . . . . . IV–96

Unborn child, death or injury of . . . . . . . . . . . . . . . . . . . . . IV. Para. 4a . . . . . . . . . . . . . . . . . . . . IV–4

Article 15. See Nonjudicial punishment.

Article 32. See Investigation, pretrial.

Article 39(a) session . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 803 . . . . . . . . . . . . . . . . . . . . II–76

Presence of accused . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 804(a) . . . . . . . . . . . . . . . . . . II–77

Presence of military judge . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 805(b) . . . . . . . . . . . . . . . . . . II–78

Assault

Aggravated . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 54 . . . . . . . . . . . . . . . . . . . . IV–98

Attempts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Paras. 4c(6)(f); 54 . . . . . . . . . . . IV–5; IV–98

Battery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 54 . . . . . . . . . . . . . . . . . . . . IV–98

Child, as victim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 54 . . . . . . . . . . . . . . . . . . . . IV–98

Commissioned officer, as victim

In execution of office . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 14 . . . . . . . . . . . . . . . . . . . . IV–18

Not in execution of office . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 54 . . . . . . . . . . . . . . . . . . . . IV–98

Of a friendly foreign power . . . . . . . . . . . . . . . . . . . . . IV. Para. 54e(3) . . . . . . . . . . . . . . . . IV–102

Defense of another . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(e)(5) . . . . . . . . . . . . . . . . II–110

Indecent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 63 . . . . . . . . . . . . . . . . . . . . IV–115

Law enforcement official, as victim . . . . . . . . . . . . . . . . . . . IV. Para. 54 . . . . . . . . . . . . . . . . . . . . IV–98

Maiming . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 50 . . . . . . . . . . . . . . . . . . . . IV–95

Noncommissioned, petty, or warrant officer, as victim

In execution of office . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 15 . . . . . . . . . . . . . . . . . . . . IV–21

Not in execution of office . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 54 . . . . . . . . . . . . . . . . . . . . IV–98

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Self-defense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(e) . . . . . . . . . . . . . . . . . . II–109

Sentinel or lookout, as victim . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 54 . . . . . . . . . . . . . . . . . . . . IV–98

Simple assault . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 54 . . . . . . . . . . . . . . . . . . . . IV–98

murder, rape, robbery, sodomy, or voluntary

manslaughter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 64 . . . . . . . . . . . . . . . . . . . . IV–115

Unborn child, death or injury of . . . . . . . . . . . . . . . . . . . . . IV. Para. 4a . . . . . . . . . . . . . . . . . . . . IV–4

Assembly of court-martial

Announcement of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 901(b); 911 . . . . . . . . . . . . . II–87; II–102

Effect on

Changing members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 505(c) . . . . . . . . . . . . . . . . . . II–49

Changing military judge . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 505(e) . . . . . . . . . . . . . . . . . . II–50

Enlisted members, request for . . . . . . . . . . . . . . . . . . . . R.C.M. 903(a)(1); 903(d) . . . . . . . . . II–89; II–90

Military judge alone, request for trial by . . . . . . . . . . R.C.M. 903(b)(2); 903(d) . . . . . . . . . II–89; II–90

Assistant counsel. See Counsel; Defense counsel; Trial counsel.

Associate defense counsel. See Counsel; Defense counsel.

Attachment, warrant of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 703(e)(2)(G) . . . . . . . . . . . . . II–65

Attempts

Aiding the enemy (Art. 104, UCMJ) . . . . . . . . . . . . . . . . . . IV. Paras. 4c(6)(d); 28 . . . . . . . . . . . IV–5; IV–41

Assault (Art. 128, UCMJ) . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Paras. 4c(6)(f); 54 . . . . . . . . . . . IV–5; IV–98

Desertion (Art. 85, UCMJ) . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Paras. 4c(6)(a); 9 . . . . . . . . . . . . IV–5; IV–9

Generally (Art. 80, UCMJ) . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 4 . . . . . . . . . . . . . . . . . . . . . IV–4

Mutiny (Art. 94, UCMJ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Paras. 4c(6)(b); 18 . . . . . . . . . . . IV–5; IV–26

Subordinate compelling surrender (Art. 100, UCMJ) . . . . . IV. Paras. 4c(6)(c); 24 . . . . . . . . . . . IV–5; IV–36

Attorney. See Counsel; Defense counsel; Trial counsel.

Attorney—client relationship

See also Counsel; Defense counsel.

Availability of individual military counsel, effect on . . . . . R.C.M. 506(b)(2) . . . . . . . . . . . . . . . . II–51

Change of defense counsel, effect on . . . . . . . . . . . . . . . . . R.C.M. 505(d)(2) . . . . . . . . . . . . . . . . II–50

Privileged communications . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 502 . . . . . . . . . . . . . . . III–23

Attorney General, grants of immunity . . . . . . . . . . . . . . . . . . . R.C.M. 704(c)(1); 704(c)(2) . . . . . . . II–66; II–67

Authentication of

Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 901; 902 . . . . . . . . . . III–43; III–44

See also Evidence, Authentication and identification.

Promulgating orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1114(e) . . . . . . . . . . . . . . . . . II–165

Record of trial

Certificate of correction . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1104(d) . . . . . . . . . . . . . . . . . II–145

Examination preceding . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1103(i) . . . . . . . . . . . . . . . . . II–142

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1104 . . . . . . . . . . . . . . . . . . . II–144

Summary courts-martial . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1305(c) . . . . . . . . . . . . . . . . . II–181

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 . . . . . . . . . . . . . . . . Art. 2(a)(2), UCMJ; R.C.M. 202(a) A2–1; II–13

Summary courts-martial, not subject to trial by . . . . . . . . . R.C.M. 1301(c) . . . . . . . . . . . . . . . . . II–177

Bad checks. See Checks.

Bad-conduct discharge

Multiple offenses, authorizing . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1003(d)(3) . . . . . . . . . . . . . . . II–128

Prior convictions authorizing . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1003(d)(2) . . . . . . . . . . . . . . . II–128

Punishment, generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1003(b)(8)(C) . . . . . . . . . . . . II–126

Special courts-martial, power to adjudge . . . . . . . . . . . . . . . R.C.M. 201(f)(2)(B) . . . . . . . . . . . . . II–12

Summary courts-martial, power to adjudge . . . . . . . . . . . . . R.C.M. 1301(d) . . . . . . . . . . . . . . . . . II–177

Bailiff

Detailing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 501(c) . . . . . . . . . . . . . . . . . . II–42

Disqualification of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(e)(2) . . . . . . . . . . . . . . . . II–46

Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(e)(3)(C) . . . . . . . . . . . . . II–46

Qualifications

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(e)(1) . . . . . . . . . . . . . . . . II–46

Lack of, action on . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(f) . . . . . . . . . . . . . . . . . . II–46

Battery. See Assault.

Best evidence. See Evidence, Contents of writings, recordings,

and photographs.

Bias

Ground for challenge of

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Subject Ref. Page

Member . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 912(f)(1)(N) . . . . . . . . . . . . . II–104

Military judge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 902(a); 902(b)(1) . . . . . . . . . II–88

Impeachment of witness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 608(c) . . . . . . . . . . . . . III–36

Bigamy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 65 . . . . . . . . . . . . . . . . . . . . IV–116

Bill of particulars . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 906(b)(6) . . . . . . . . . . . . . . . . II–94

Blasting caps, included in explosives . . . . . . . . . . . . . . . . . . . . . R.C.M. 103(11) . . . . . . . . . . . . . . . . . II–1

Blood extraction, as evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 312(d) . . . . . . . . . . . . III–11

Board, sanity. See Mental capacity; Mental responsibility.

Boat. See Ship.

Boat. See Vessel.

Bodily harm. See Assault.

Body fluids, seizure of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 312(d) . . . . . . . . . . . . III–11

See also Search and seizure, Body views and intrusions.

Bomb

Explosive, included in . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 103(11) . . . . . . . . . . . . . . . . . II–1

Hoax . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 109 . . . . . . . . . . . . . . . . . . . IV–142

Threat . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 109 . . . . . . . . . . . . . . . . . . . IV–142

Breach of correctional custody . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 70 . . . . . . . . . . . . . . . . . . . . IV–120

Breach of peace . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 41 . . . . . . . . . . . . . . . . . . . . IV–61

Breaking and entering. See Burglary; Housebreaking;

Unlawful entry.

Breaking arrest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 19 . . . . . . . . . . . . . . . . . . . . IV–28

Breaking medical quarantine . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 100 . . . . . . . . . . . . . . . . . . . IV–137

Breaking restriction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 102 . . . . . . . . . . . . . . . . . . . IV–138

See also Restriction.

Bribery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 66 . . . . . . . . . . . . . . . . . . . . IV–116

Broadcasting of courts-martial, prohibited . . . . . . . . . . . . . . . . R.C.M. 806(c) . . . . . . . . . . . . . . . . . . II–80

Burden of proof.

See also Search and seizure, Burden of proof; SelfIncrimination, Burden of proof.

Challenges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 912(f)(3) . . . . . . . . . . . . . . . . II–104

Defenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(b) . . . . . . . . . . . . . . . . . . II–108

Findings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 920(e)(5) . . . . . . . . . . . . . . . . II–116

Motions

Admissions and confessions . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 304(e) . . . . . . . . . . . . . III–5

Eyewitness identification . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 321(d) . . . . . . . . . . . . III–18

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(c) . . . . . . . . . . . . . . . . . . II–91

Search and seizure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 311(e) . . . . . . . . . . . . . III–9

Burglary

Assault with intent to commit . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 64 . . . . . . . . . . . . . . . . . . . . IV–115

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 55 . . . . . . . . . . . . . . . . . . . . IV–103

Housebreaking, distinguished from . . . . . . . . . . . . . . . . . . . . IV. Para. 56c(1) . . . . . . . . . . . . . . . . IV–105

Murder while committing . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 43 . . . . . . . . . . . . . . . . . . . . IV–62

Burning with intent to defraud . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 67 . . . . . . . . . . . . . . . . . . . . IV–117

Business records, admissibility . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(6) . . . . . . . . . . . . III–40

Cadet

Conduct unbecoming officer and gentlemen . . . . . . . . . . . . IV. Para. 59 . . . . . . . . . . . . . . . . . . . . IV–110

Dismissal, punishment by . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1003(b)(8)(A) . . . . . . . . . . . . II–125

Jurisdiction of courts-martial, subject to . . . . . . . . . . . . . . . . Art. 2(a)(2), UCMJ; R.C.M. 202(a) A2–1; II–13

Summary courts-martial, not subject to trial by . . . . . . . . . R.C.M. 1301(c) . . . . . . . . . . . . . . . . . II–177

Capital case

See also Capital offense; Death, as punishment.

Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 103(2) . . . . . . . . . . . . . . . . . . II–1

Deposition, use in . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Art. 49, UCMJ;

Mil. R. Evid. 804(b)(1) . . . . . . . . . . A2–14; III–42

Guilty plea prohibited in . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 910(a) . . . . . . . . . . . . . . . . . . II–99

Military judge alone, no jurisdiction to try . . . . . . . . . . . . . R.C.M. 201(f)(1)(C) . . . . . . . . . . . . . II–12

Notice of aggravating circumstances required . . . . . . . . . . . R.C.M. 1004(b)(1) . . . . . . . . . . . . . . . II–128

Procedures in . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1004(b) . . . . . . . . . . . . . . . . . II–128

Capital offense

Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 103(3) . . . . . . . . . . . . . . . . . . II–1

Referral

As noncapital . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 201(f)(1)(A)(iii)(b) . . . . . . . . II–11

To special court-martial . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 201(f)(2)(C) . . . . . . . . . . . . . II–12

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To summary court-martial . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1301(c) . . . . . . . . . . . . . . . . . II–177

Captain’s mast. See Nonjudicial punishment.

Captured or abandoned property, offenses concerning . . . . . IV. Para. 27 . . . . . . . . . . . . . . . . . . . . IV–39

Carrier. See Boat.

Carrying concealed weapon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 112 . . . . . . . . . . . . . . . . . . . IV–144

Casting away arms or ammunition . . . . . . . . . . . . . . . . . . . . . . IV. Para. 23 . . . . . . . . . . . . . . . . . . . . IV–33

Causing false alarms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 23 . . . . . . . . . . . . . . . . . . . . IV–33

Censure

Court-martial, member, military judge, or counsel, prohibited R.C.M. 104(a)(1) . . . . . . . . . . . . . . . . II–4

Provoking speech and gestures, distinguished . . . . . . . . . . . IV. Para. 42c(1) . . . . . . . . . . . . . . . . IV–62

Certificate of correction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1104(d) . . . . . . . . . . . . . . . . . II–145

Challenges

Control of, by military judge . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 801(a)(3) . . . . . . . . . . . . . . . . II–73

Members

For cause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 912(f) . . . . . . . . . . . . . . . . . . II–103

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 912 . . . . . . . . . . . . . . . . . . . . II–102

Peremptory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 912(g) . . . . . . . . . . . . . . . . . . II–104

Presence of members during . . . . . . . . . . . . . . . . . . . . . R.C.M. 805(b) . . . . . . . . . . . . . . . . . . II–78

Special court-martial without military judge . . . . . . . . R.C.M. 912(h) . . . . . . . . . . . . . . . . . . II–105

Military judge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 902 . . . . . . . . . . . . . . . . . . . . II–88

Change of venue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 906(b)(11) . . . . . . . . . . . . . . . II–95

Chaplains, privileged communications . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 503 . . . . . . . . . . . . . . . III–24

Character, evidence. See Evidence, Character evidence;

Presentencing procedure.

Charges and specifications

See also specific offenses.

Additional charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 307(c)(2) . . . . . . . . . . . . . . . . II–27

Amendment of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 603 . . . . . . . . . . . . . . . . . . . . II–54

Bill of particulars . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 906(b)(6) . . . . . . . . . . . . . . . . II–94

Charge Sheet . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Appendix 4 . . . . . . . . . . . . . . . . . . . . A4–1

Definitions

Charge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 307(c)(2) . . . . . . . . . . . . . . . . II–27

Specification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 307(c)(3) . . . . . . . . . . . . . . . . II–27

Dismissal of

By commander . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 306(c)(1); 401(c)(1) . . . . . . . II–26; II–31

By military judge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 907 . . . . . . . . . . . . . . . . . . . . II–95

Speedy trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 707(d) . . . . . . . . . . . . . . . . . . II–72

Disposition of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 401 . . . . . . . . . . . . . . . . . . . . II–31

Duplicious . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 906(b)(5) . . . . . . . . . . . . . . . . II–94

Error in citation, effect of . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 307(d) . . . . . . . . . . . . . . . . . . II–30

Failure to state offense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 907(b)(1)(B) . . . . . . . . . . . . . II–96

Findings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 918(a) . . . . . . . . . . . . . . . . . . II–114

Format . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 307(c)(1); Appendix 4 . . . . II–27; A4–1

Forwarding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 401(c)(2) . . . . . . . . . . . . . . . . II–31

Investigation of. See Investigation, pretrial.

Joinder of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 307(c)(4); 601(e)(2) . . . . . . . II–29; II–53

Joint offenders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 307(c)(5); 601(e)(3) . . . . . . . II–29; II–53

Lesser included offenses. See Findings; Lesser included

offenses.

Motions as to defects in . . . . . . . . . . . . . . . . . . . . . . . . . . . . R . C . M . 9 0 5 ( b ) ( 2 ) ; 9 0 6 ( b ) ( 4 ) ;

906(b)(5); 906(b)(6) . . . . . . . . . . . . .

II–91; II–94

Multiple offenders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 307(c)(5) . . . . . . . . . . . . . . . . II–29

Multiple offenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 307(c)(4) . . . . . . . . . . . . . . . . II–29

Multiplicious . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 307(c)(4); 1003(c)(1)(C) . . . II–29; II–126

Notification to accused of . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 308 . . . . . . . . . . . . . . . . . . . . II–30

Papers, accompanying, discovery of . . . . . . . . . . . . . . . . . . . R.C.M. 701(a)(1) . . . . . . . . . . . . . . . . II–56

Preemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 307(c)(2) . . . . . . . . . . . . . . . . II–27

Preferral. See Preferral of charges.

Reading of, as part of arraignment . . . . . . . . . . . . . . . . . . . . R.C.M. 904 . . . . . . . . . . . . . . . . . . . . II–90

Referral. See Referral of charges.

Service of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 602 . . . . . . . . . . . . . . . . . . . . II–53

Severance of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(b)(5) . . . . . . . . . . . . . . . . II–91

Staff judge advocate, advice as to . . . . . . . . . . . . . . . . . . . . R.C.M. 406 . . . . . . . . . . . . . . . . . . . . II–40

Statute of limitations, tolling . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 403(a) . . . . . . . . . . . . . . . . . . II–32

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War, effect on disposition of . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 401(d); 407(b) . . . . . . . . . . . II–32; II–41

Withdrawal of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 604 . . . . . . . . . . . . . . . . . . . . II–54

Pursuant to pretrial agreement . . . . . . . . . . . . . . . . . . . . R.C.M. 705(b)(2)(C) . . . . . . . . . . . . . II–68

Checks

Dishonorable failure to maintain funds . . . . . . . . . . . . . . . . . IV. Para. 68 . . . . . . . . . . . . . . . . . . . . IV–118

Forged . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 48 . . . . . . . . . . . . . . . . . . . . IV–90

Making, drawing, or uttering check, draft, or order

without sufficient funds . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 49 . . . . . . . . . . . . . . . . . . . . IV–92

Child

Abusive sexual contact with . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 45 . . . . . . . . . . . . . . . . . . . . IV–68

Aggravated sexual abuse of . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 45 . . . . . . . . . . . . . . . . . . . . IV–68

Aggravated sexual assault of . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 45 . . . . . . . . . . . . . . . . . . . . IV–68

Aggravated sexual contact with . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 45 . . . . . . . . . . . . . . . . . . . . IV–68

Assault consummated by battery on . . . . . . . . . . . . . . . . . . . IV. Para. 54b(3)(c) . . . . . . . . . . . . . . IV–99

Endangerment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 68a . . . . . . . . . . . . . . . . . . . IV–118

Indecent liberties with . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 87 . . . . . . . . . . . . . . . . . . . . IV–129

Rape . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 45 . . . . . . . . . . . . . . . . . . . . IV–68

Remote live testimony . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 804(c); R.C.M. 914A;

M.R.E. 611(d) . . . . . . . . . . . . . . . . . . II–77; II–107; III–37

Sodomy on . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 51 . . . . . . . . . . . . . . . . . . . . IV–96

Unborn child, death of injury of . . . . . . . . . . . . . . . . . . . . . IV Para. 44a . . . . . . . . . . . . . . . . . . . IV–64

Witness, competency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 601 . . . . . . . . . . . . . . . III–35

Civilian authorities and tribunals

Authority to apprehend persons under code . . . . . . . . . . . . R.C.M. 302(a)(2); 302(b)(3) . . . . . . . II–17; II–18

Control by, effect on absence without leave . . . . . . . . . . . . IV. Para. 10c(5) . . . . . . . . . . . . . . . . IV–14

Delivery of military offenders to . . . . . . . . . . . . . . . . . . . . . R.C.M. 106 . . . . . . . . . . . . . . . . . . . . II–5

Former jeopardy, effect of trial by . . . . . . . . . . . . . . . . . . . . R.C.M. 201(d); 907(b)(2)(C) . . . . . . II–10; II–96

Martial law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. Para. 2(a)(2) . . . . . . . . . . . . . . . . . I–1

Military occupation, superseding . . . . . . . . . . . . . . . . . . . . . . I. Para. 2(a)(3) . . . . . . . . . . . . . . . . . I–1

Offenses subject to trial by . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 201(d) . . . . . . . . . . . . . . . . . . II–10

Civilian counsel. See Counsel; Defense counsel.

Civilians

Aiding the enemy, subject to trial for . . . . . . . . . . . . . . . . . IV. Para. 28c(1) . . . . . . . . . . . . . . . . IV–41

Authority to apprehend deserters . . . . . . . . . . . . . . . . . . . . . . R.C.M. 302(b)(3) . . . . . . . . . . . . . . . . II–18

Contempt, punishment for . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 809(a); 809(e) . . . . . . . . . . . II–82; II–83

Jurisdiction of courts-martial, subject to . . . . . . . . . . . . . . . . Art. 2(a)(10); R.C.M. 202(a) . . . . . . A2–2, II–13

Orders, subject to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 14c(3) . . . . . . . . . . . . . . . . IV–20

Spying, subject to trial for . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 30c(3) . . . . . . . . . . . . . . . . IV–44

Witnesses

Appear, neglect or refusal to . . . . . . . . . . . . . . . . . . . . . R.C.M. 703(e)(2)(G) . . . . . . . . . . . . . II–65

Subpoena of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 703(e)(2) . . . . . . . . . . . . . . . . II–64

Warrant of attachment . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 703(e)(2)(G) . . . . . . . . . . . . . II–65

Claims, false . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 58 . . . . . . . . . . . . . . . . . . . . IV–107

Classified information

Closure of court-martial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 806(b)(2) . . . . . . . . . . . . . . . . II–80

Privilege concerning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 505 . . . . . . . . . . . . . . . III–25

Record of trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1104(b)(1)(D); 1104(b)(2) . . II–145

Clemency recommendation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1105(b)(2)(D) . . . . . . . . . . . . II–146

Clergy, privileged communications to . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 503 . . . . . . . . . . . . . . . III–24

Clerk

Detailing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 501(c) . . . . . . . . . . . . . . . . . . II–42

Disqualification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(e)(2) . . . . . . . . . . . . . . . . II–46

Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(e)(3)(C) . . . . . . . . . . . . . II–46

Lack of qualifications, action . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(f) . . . . . . . . . . . . . . . . . . II–46

Qualifications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(e)(1) . . . . . . . . . . . . . . . . II–46

Co-accused. See Accomplices; Conspiracy; Principals.

Code, defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 103(4) . . . . . . . . . . . . . . . . . . II–1

Coercion

Defense, as a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(h) . . . . . . . . . . . . . . . . . . II–111

Of court-martial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 104(a)(2) . . . . . . . . . . . . . . . . II–4

Of guilty plea . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 910(d) . . . . . . . . . . . . . . . . . . II–100

Cohabitation, wrongful . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 69 . . . . . . . . . . . . . . . . . . . . IV–120

Command

Abandoning, surrendering, giving up . . . . . . . . . . . . . . . . . . IV. Para. 23 . . . . . . . . . . . . . . . . . . . . IV–33

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Compelling surrender or abandonment of . . . . . . . . . . . . . . IV. Para. 24 . . . . . . . . . . . . . . . . . . . . IV–36

Detached or separate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 504(b)(2)(A); 504(b)(2)(B) . II–48

Endangering safety of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 23 . . . . . . . . . . . . . . . . . . . . IV–33

Influence

As an offense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 22 . . . . . . . . . . . . . . . . . . . . IV–32

Unlawful

Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 104 . . . . . . . . . . . . . . . . . . . . II–4

Exceptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 104(a)(3) . . . . . . . . . . . . . . . . II–4

Over disposition of charges . . . . . . . . . . . . . . . . . . . . R.C.M. 306(a) . . . . . . . . . . . . . . . . . . II–25

Commander

Appearance of accused at trial, responsibility for assistance R.C.M. 804(d)(1) . . . . . . . . . . . . . . . . II–78

Authorization to search. See Search and seizure.

Charges and specifications, authority to change . . . . . . . . . R.C.M. 603(b) . . . . . . . . . . . . . . . . . . II–54

Charges, authority to dispose of . . . . . . . . . . . . . . . . . . . . . . R.C.M. 401 . . . . . . . . . . . . . . . . . . . . II–31

Confinement

Post-trial, authority to order . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1101(b)(2) . . . . . . . . . . . . . . . II–136

Pretrial

Action by . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 305(h) . . . . . . . . . . . . . . . . . . II–22

Release, authority to order . . . . . . . . . . . . . . . . . . . . . R.C.M. 305(g) . . . . . . . . . . . . . . . . . . II–22

Convening authority. See Convening authority.

Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 103(5) . . . . . . . . . . . . . . . . . . II–1

For authorization to search . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 315(d) . . . . . . . . . . . . III–14

Dismissal of charges by . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 401(c)(1) . . . . . . . . . . . . . . . . II–31

Disposition of charges by . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 401; 402 . . . . . . . . . . . . . . . . II–31; II–32

Disposition of offenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 306 . . . . . . . . . . . . . . . . . . . . II–25

Forwarding charges by . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 401(c)(2); 402 . . . . . . . . . . . II–31; II–32

Influence, unlawful command . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 104; IV. Para. 22 . . . . . . . . II–4; IV–32

Inquiry into reported offenses . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 303 . . . . . . . . . . . . . . . . . . . . II–19

Lack of mental capacity or responsibility action on . . . . . R.C.M. 706(a) . . . . . . . . . . . . . . . . . . II–69

Nonjudicial punishment, authority to administer . . . . . . . . . V. Para. 1c; 1d; 2a . . . . . . . . . . . . . V–1; V–2

Notification to accused of charges . . . . . . . . . . . . . . . . . . . . R.C.M. 308 . . . . . . . . . . . . . . . . . . . . II–30

Preliminary investigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 303 . . . . . . . . . . . . . . . . . . . . II–19

Relations with court-martial, members, military judge . . . . R.C.M. 104(a)(1) . . . . . . . . . . . . . . . . II–4

Report of offense, forwarded to . . . . . . . . . . . . . . . . . . . . . . R.C.M. 301(b) . . . . . . . . . . . . . . . . . . II–17

Subordinate, relations with . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 306(a); 401(a); 601(e) . . . . . II–25; II–31; II–52

Commissioned officer

Assault on . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Paras. 14; 54 . . . . . . . . . . . . . . . IV–18; IV–98

Conduct unbecoming . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 59 . . . . . . . . . . . . . . . . . . . . IV–110

Disobedience of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 14 . . . . . . . . . . . . . . . . . . . . IV–18

Disrespect towards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 13 . . . . . . . . . . . . . . . . . . . . IV–17

Preferral of charges, oath . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 307(b)(1) . . . . . . . . . . . . . . . . II–27

Qualification as member of court-martial . . . . . . . . . . . . . . . R.C.M. 502(a)(1)(A) . . . . . . . . . . . . . II–42

Summary court-martial, power to try . . . . . . . . . . . . . . . . . . R.C.M. 1301(c) . . . . . . . . . . . . . . . . . II–177

Commission, military. See Military commission.

Common trial. See Joint trial.

Communicating a threat . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 110 . . . . . . . . . . . . . . . . . . . IV–143

Communications, privileged. See Evidence, Privileges.

Company punishment. See Nonjudicial punishment.

Competency of witness. See Evidence, Competency.

Composition of courts-martial

Accused’s elections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 903 . . . . . . . . . . . . . . . . . . . . II–89

Capital case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 201(f)(1)(C) . . . . . . . . . . . . . II–12

Changing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 505 . . . . . . . . . . . . . . . . . . . . II–49

General court-martial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 501(a)(1) . . . . . . . . . . . . . . . . II–42

Jurisdictional requisite . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 201(b)(2) . . . . . . . . . . . . . . . . II–9

Special court-martial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 501(a)(2) . . . . . . . . . . . . . . . . II–42

Empowered to adjudge a bad-conduct discharge . . . . . R.C.M. 201(f)(2)(B)(ii) . . . . . . . . . . . II–12

Summary court-martial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1301(a) . . . . . . . . . . . . . . . . . II–177

Concealment of

Evidence, as accessory after the fact . . . . . . . . . . . . . . . . . . IV. Para. 2c(1) . . . . . . . . . . . . . . . . . IV–2

Offender, as accessory after the fact . . . . . . . . . . . . . . . . . . IV. Para. 2c(1) . . . . . . . . . . . . . . . . . IV–2

Stolen property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 106 . . . . . . . . . . . . . . . . . . . IV–140

Weapon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 112 . . . . . . . . . . . . . . . . . . . IV–144

Concurrent jurisdiction

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Civilian courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 201(d) . . . . . . . . . . . . . . . . . . II–10

Investigation of offenses, subject to . . . . . . . . . . . . . . . . . . . Appendix 3 . . . . . . . . . . . . . . . . . . . . A3–1

Military tribunals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 201(g) . . . . . . . . . . . . . . . . . . II–12

Conditional guilty plea . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 910(a)(2) . . . . . . . . . . . . . . . . II–100

Conditions

In pretrial agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 705(c) . . . . . . . . . . . . . . . . . . II–68

Of suspension . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1108(c) . . . . . . . . . . . . . . . . . II–156

On liberty

Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 304(a)(1) . . . . . . . . . . . . . . . . II–19

Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 304 . . . . . . . . . . . . . . . . . . . . II–19

Conduct

Cowardly . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 23c(5) . . . . . . . . . . . . . . . . IV–35

Service discrediting, generally . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 60c(3) . . . . . . . . . . . . . . . . IV–112

Unbecoming an officer and gentleman . . . . . . . . . . . . . . . . . IV. Para. 59 . . . . . . . . . . . . . . . . . . . . IV–110

Conferences, pretrial

Accused’s presence at . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 802(d) . . . . . . . . . . . . . . . . . . II–76

Admissions made at . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 802(e) . . . . . . . . . . . . . . . . . . II–76

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 802(a) . . . . . . . . . . . . . . . . . . II–75

Limitations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 802(f) . . . . . . . . . . . . . . . . . . II–76

Matters on record . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 802(b) . . . . . . . . . . . . . . . . . . II–76

Rights of parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 802(c) . . . . . . . . . . . . . . . . . . II–76

Confessional stipulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 705(b)(1) . . . . . . . . . . . . . . . . II–68

Confessions. See Self-incrimination.

Confinement

Attachment of jurisdiction, effecting . . . . . . . . . . . . . . . . . . . R.C.M. 202(c)(2) . . . . . . . . . . . . . . . . II–15

Capital cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1107(f)(4)(D) . . . . . . . . . . . . II–154

Deferment of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1101(c) . . . . . . . . . . . . . . . . . II–136

See also Deferment of confinement.

Escape from . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 19 . . . . . . . . . . . . . . . . . . . . IV–28

Hard labor without. See Hard labor without confinement.

In lieu of fine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1113(d)(3) . . . . . . . . . . . . . . . II–164

On bread and water or diminished rations

As nonjudicial punishment . . . . . . . . . . . . . . . . . . . . . . . V. Para. 5b(2)(A)(i); 5b(2)(B)(i);

V. Para. 5c(5) . . . . . . . . . . . . . . . . . . V–4; V–5; V–6

Post-trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1101 . . . . . . . . . . . . . . . . . . . II–136

Pretrial

Advice to accused . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 305(e) . . . . . . . . . . . . . . . . . . II–22

Authority to order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 304(b); 305(c) . . . . . . . . . . . II–20; II–21

Conditions of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 304(f) . . . . . . . . . . . . . . . . . . II–21

Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 305(e)(3); 305(f) . . . . . . . . . II–22

Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 304(a)(4); 305(a) . . . . . . . . . II–20; II–21

Grounds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 304(c); 305(d); 305(h)(2)(B) II–20; II–21; II–23

Illegal, remedy for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 305(j)(2); 305(k) . . . . . . . . . II–24

Motions concerning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 906(b)(8) . . . . . . . . . . . . . . . . II–94

Procedure for ordering . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 305 . . . . . . . . . . . . . . . . . . . . II–21

Punishment prohibited . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 304(f) . . . . . . . . . . . . . . . . . . II–21

Release

Authority to direct . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 305(g) . . . . . . . . . . . . . . . . . . II–22

Effect of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 305(k); 305(l) . . . . . . . . . . . . II–24

Required . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 707(d) . . . . . . . . . . . . . . . . . . II–72

Review of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 305(i); 305(j) . . . . . . . . . . . . II–23; II–24

Sea, effect of being at . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 305(m) . . . . . . . . . . . . . . . . . II–25

Speedy trial, effect on . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 707(b)(1); 707(b)(2) . . . . . . II–71

Punishment

Contempt (Art. 48, UCMJ) . . . . . . . . . . . . . . . . . . . . . . R.C.M. 809(e) . . . . . . . . . . . . . . . . . . II–83

Deferment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1101(c) . . . . . . . . . . . . . . . . . II–136

See also Deferment of confinement.

Execution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1113(d)(2) . . . . . . . . . . . . . . . II–164

General court-martial . . . . . . . . . . . . . . . . . . . . . . . . . . . . R . C . M . 2 0 1 ( f ) ( 1 ) ( A ) ( i i ) ;

201(f)(1)(B)(ii) . . . . . . . . . . . . . . . . . .

II–11

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1003(b)(7) . . . . . . . . . . . . . . . II–125

Place of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1107(f)(4)(C); 1113(d)(2)(C) II–154; II–164

Special court-martial . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 201(f)(2)(B) . . . . . . . . . . . . . II–12

Summary court-martial . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1301(d) . . . . . . . . . . . . . . . . . II–177

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Release from without authority . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 20 . . . . . . . . . . . . . . . . . . . . IV–30

Unlawful, as offense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 21 . . . . . . . . . . . . . . . . . . . . IV–32

Congress, contemptuous words against . . . . . . . . . . . . . . . . . . . IV. Para. 12 . . . . . . . . . . . . . . . . . . . . IV–16

Consent. See Search and seizure.

Conspiracy

See also Principals.

Evidence, statement of co-conspirator . . . . . . . . . . . . . . . . . . Mil. R. Evid. 801(d)(2) . . . . . . . . . . III–39

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 5 . . . . . . . . . . . . . . . . . . . . . IV–5

Constitution of the United States . . . . . . . . . . . . . . . . . . . . . . . . Appendix 1 . . . . . . . . . . . . . . . . . . . . A1–1

Constructive condonation of desertion . . . . . . . . . . . . . . . . . . . R.C.M. 907(b)(2)(D)(iii) . . . . . . . . . . II–96

Constructive enlistment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 202(a) . . . . . . . . . . . . . . . . . . II–13

Contempt

See also Disrespect.

Power of court-martial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 801(b)(2); 809 . . . . . . . . . . . II–73; II–82

Toward noncommissioned, petty, or warrant officer . . . . . . IV. Para. 15 . . . . . . . . . . . . . . . . . . . . IV–21

Toward public officials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 12 . . . . . . . . . . . . . . . . . . . . IV–16

Continuances

As remedy for

Failure to notify accused of charges . . . . . . . . . . . . . . R.C.M. 308(c) . . . . . . . . . . . . . . . . . . II–30

Failure to notify defense of evidence seized from the

accused . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 311(d)(2)(B) . . . . . . . III–9

Failure to notify defense of immunity or leniency

granted to a government witness . . . . . . . . . . . . . . . . Mil. R. Evid. 301(c)(2) . . . . . . . . . . III–3

Failure to notify defense of prior identification of the

accused . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 321(c)(2)(B) . . . . . . . . III–17

Failure to notify defense of statements of the accused Mil. R. Evid. 304(d)(2)(B) . . . . . . . III–5

Noncompliance with the discovery requirements . . . . . R.C.M. 701(g)(3)(B) . . . . . . . . . . . . . II–58

Examination of witness’ prior statement, for purpose of . . R.C.M. 914(d) . . . . . . . . . . . . . . . . . . II–107

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 906(b)(1) . . . . . . . . . . . . . . . . II–93

Speedy trial, effect on . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 707 . . . . . . . . . . . . . . . . . . . . II–71

Controlled substances, offenses involving . . . . . . . . . . . . . . . . . IV. Para. 37 . . . . . . . . . . . . . . . . . . . . IV–54

Convening authority

Accuser

Disqualifications

To convene general or special courts-martial . . . . . R.C.M. 504(c)(1) . . . . . . . . . . . . . . . . II–48

To convene summary courts-martial . . . . . . . . . . . . . R.C.M. 1302(a) . . . . . . . . . . . . . . . . . II–178

To refer charges to general or special courts-martial R.C.M. 601(c) . . . . . . . . . . . . . . . . . . II–52

Subordinate of, disqualified . . . . . . . . . . . . . . . . . . . . . . R.C.M. 504(c)(2) . . . . . . . . . . . . . . . . II–48

Action by. See Action of convening authority.

Censure of court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 104 . . . . . . . . . . . . . . . . . . . . II–4

Changing members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 505(c) . . . . . . . . . . . . . . . . . . II–49

Charges and specifications

Authority to change . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 603(b) . . . . . . . . . . . . . . . . . . II–54

Authority to dispose of . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 401(a); 403(b); 404; 407 . . II–31; II–33; II–40

Command influence, unlawful . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 104 . . . . . . . . . . . . . . . . . . . . II–4

Communications with staff judge advocate . . . . . . . . . . . . . R.C.M. 105(a) . . . . . . . . . . . . . . . . . . II–5

Contempt

Action on . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 809(e); 809(f) . . . . . . . . . . . . II–83

Review of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 809(d) . . . . . . . . . . . . . . . . . . II–83

Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 103(6) . . . . . . . . . . . . . . . . . . II–1

Delegation of authority as, prohibited . . . . . . . . . . . . . . . . . R.C.M. 504(b)(4) . . . . . . . . . . . . . . . . II–48

Deposition, authority to order . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 702(b) . . . . . . . . . . . . . . . . . . II–59

Detailing members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 503(a) . . . . . . . . . . . . . . . . . . II–46

Disqualification to act as . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 504(c); 601(c) . . . . . . . . . . . II–48; II–52

Execution of sentences, authority to order . . . . . . . . . . . . . . R.C.M. 1113(b); 1113(c) . . . . . . . . . II–163

General court-martial

Action on certain cases by . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1112(f) . . . . . . . . . . . . . . . . . II–162

Constructive condonation of desertion . . . . . . . . . . . . . R.C.M. 907(b)(2)(D)(iii) . . . . . . . . . . II–96

Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 504(b)(1) . . . . . . . . . . . . . . . . II–48

Disposition of charges by . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 407 . . . . . . . . . . . . . . . . . . . . II–40

Immunity, authority to grant . . . . . . . . . . . . . . . . . . . . . R.C.M. 704(c) . . . . . . . . . . . . . . . . . . II–66

National security matters, duties regarding . . . . . . . . . R.C.M. 407(b) . . . . . . . . . . . . . . . . . . II–41

Vacation of suspension, action on . . . . . . . . . . . . . . . . R.C.M. 1109(d)(2) . . . . . . . . . . . . . . . II–158

Mental capacity or responsibility of accused, inquiry into R.C.M. 706 . . . . . . . . . . . . . . . . . . . . II–69

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MCM, 2008 INDEX
Subject Ref. Page

National security, case affecting disposition . . . . . . . . . . . . R.C.M. 401(d) . . . . . . . . . . . . . . . . . . II–32

Pretrial agreement, authority to enter . . . . . . . . . . . . . . . . . . R.C.M. 705(a); 705(d)(4) . . . . . . . . . II–67; II–69

Pretrial investigation, ordered by . . . . . . . . . . . . . . . . . . . . . . R.C.M. 403(b)(5); 404(e); 405(c);

407(a)(5) . . . . . . . . . . . . . . . . . . . . . . . II–33; II–33; II–34; II–41;

Referral of charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 403(b)(4); 404(d); 407(a)(4)

R.C.M. 407(a)(6); 601 . . . . . . . . . . . II–33; II–33; II–41; II–41;

II–52

Special court-martial

Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 504(b)(2) . . . . . . . . . . . . . . . . II–1

Disposition of charges by . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 404 . . . . . . . . . . . . . . . . . . . . II–33

Staff judge advocate

Communications with . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 105(a) . . . . . . . . . . . . . . . . . . II–5

Delegation of authority

Excusal of court members . . . . . . . . . . . . . . . . . . . . . R.C.M. 505(c)(1)(B) . . . . . . . . . . . . . II–49

Generally prohibited . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 504(b)(4) . . . . . . . . . . . . . . . . II–48

Successors, included in . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 103(6) . . . . . . . . . . . . . . . . . . II–1

Summary court-martial

Charge sheet, recording receipt . . . . . . . . . . . . . . . . . . . R.C.M. 403(a) . . . . . . . . . . . . . . . . . . II–32

Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1302(a) . . . . . . . . . . . . . . . . . II–178

Disposition of charges by . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 403(b) . . . . . . . . . . . . . . . . . . II–33

Superior authority calling for transmittal of charges from

subordinate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 601(f) . . . . . . . . . . . . . . . . . . II–53

Superior authority withholding from subordinate the

authority to dispose of charges . . . . . . . . . . . . . . . . . . . . . R.C.M. 306(a); 401(a) . . . . . . . . . . . II–25; II–31

Withdrawal of charges by

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 604 . . . . . . . . . . . . . . . . . . . . II–54

Pretrial agreement, pursuant to . . . . . . . . . . . . . . . . . . . R.C.M. 705(b)(2)(C) . . . . . . . . . . . . . II–68

Convening courts-martial

See also Convening authority.

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 504 . . . . . . . . . . . . . . . . . . . . II–47

Jurisdictional requisite, as a . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 201(b) . . . . . . . . . . . . . . . . . . II–9

Summary courts-martial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1302 . . . . . . . . . . . . . . . . . . . II–178

Convening orders

Amending . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 505(b) . . . . . . . . . . . . . . . . . . II–49

Changing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 505(b) . . . . . . . . . . . . . . . . . . II–49

Defense, copies to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(a)(1)(B) . . . . . . . . . . . . . II–56

Forms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Appendix 6 . . . . . . . . . . . . . . . . . . . . A6–1

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 504(d) . . . . . . . . . . . . . . . . . . II–48

Summary court-martial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1302(c) . . . . . . . . . . . . . . . . . II–178

Convictions, prior

Admissibility in aggravation . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1001(b)(3) . . . . . . . . . . . . . . . II–120

Finality of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1209 . . . . . . . . . . . . . . . . . . . II–174

Impeachment by evidence of . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 609 . . . . . . . . . . . . . . . III–36

Increasing punishment authorized . . . . . . . . . . . . . . . . . . . . . R.C.M. 1003(d)(1); 1003(d)(2) . . . . II–127; II–128

Correctional custody

Nonjudicial punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Para. 5b(2)(A)(ii); 5b(2)(B)(ii);

V. Para. 5c(4) . . . . . . . . . . . . . . . . . . V–5

Offenses against . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 70 . . . . . . . . . . . . . . . . . . . . IV–120

Correction of record of trial

After authentication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1104(d) . . . . . . . . . . . . . . . . . II–145

Before authentication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1103(i) . . . . . . . . . . . . . . . . . II–142

Corroboration of confession . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 304(g) . . . . . . . . . . . . III–6

Counsel

See also Defense counsel; Trial counsel.

Appellate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 908(c)(1); 1202 . . . . . . . . . . II–98; II–168

Detailing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 503(c) . . . . . . . . . . . . . . . . . . II–47

General courts-martial . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 501(b) . . . . . . . . . . . . . . . . . . II–42

Special courts-martial . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 501(b) . . . . . . . . . . . . . . . . . . II–42

Summary courts-martial . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1301(e) . . . . . . . . . . . . . . . . . II–177

Qualifications of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(d) . . . . . . . . . . . . . . . . . . II–43

Supervision of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 109 . . . . . . . . . . . . . . . . . . . . II–6

Suspension of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 109 . . . . . . . . . . . . . . . . . . . . II–6

Counseling commission of offense . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 1 . . . . . . . . . . . . . . . . . . . . . IV–1

Countersign, improper use of . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 25 . . . . . . . . . . . . . . . . . . . . IV–38

Index 13

INDEX MCM, 2008
Subject Ref. Page

Court-martial

Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 103(8) . . . . . . . . . . . . . . . . . . II–1

Types of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 201(f) . . . . . . . . . . . . . . . . . . II–11

Court-martial orders. See Promulgating orders.

Court of inquiry

Admissibility of evidence taken in . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 804(b)(1) . . . . . . . . . . III–42

Application of Rules for Courts-Martial to . . . . . . . . . . . . . I. Para. 2(b)(3) . . . . . . . . . . . . . . . . . I–1

Exercise of jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. Para. 2(b)(3) . . . . . . . . . . . . . . . . . I–1

Nonjudicial punishment based on . . . . . . . . . . . . . . . . . . . . . V. Para. 4d . . . . . . . . . . . . . . . . . . . . V–4

Pretrial investigation, substitute for . . . . . . . . . . . . . . . . . . . . R.C.M. 405(b) . . . . . . . . . . . . . . . . . . II–34

Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. Para. 2(b)(3) . . . . . . . . . . . . . . . . . I–1

Subpoena, authority to issue . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 703(e)(2)(C) . . . . . . . . . . . . . II–64

Court of Appeals for the Armed Forces

Action on decision by . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1204(c) . . . . . . . . . . . . . . . . . II–172

Appeals by United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 908(c)(3) . . . . . . . . . . . . . . . . II–98

Cases reviewed by . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1204(a) . . . . . . . . . . . . . . . . . II–171

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1204 . . . . . . . . . . . . . . . . . . . II–171

Petition by accused to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1204(b) . . . . . . . . . . . . . . . . . II–171

Court of Criminal Appeals

Action on decision by . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1203(c) . . . . . . . . . . . . . . . . . II–169

Appeals by United States to . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 908(b)(7) . . . . . . . . . . . . . . . . II–98

Armed force of accused as determining which court reviews R.C.M. 201(e)(5) . . . . . . . . . . . . . . . . II–11

Cases reviewed by . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1203(b) . . . . . . . . . . . . . . . . . II–169

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1203 . . . . . . . . . . . . . . . . . . . II–169

Notification to accused of decision . . . . . . . . . . . . . . . . . . . . R.C.M. 1203(d) . . . . . . . . . . . . . . . . . II–170

Cowardly conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 23 . . . . . . . . . . . . . . . . . . . . IV–33

Crimes

See Offenses; specific topics.

Crimes and offenses not capital . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 60 . . . . . . . . . . . . . . . . . . . . IV–111

Cross-examination at

Court-martial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 611 . . . . . . . . . . . . . . . III–37

Deposition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 702(g)(1)(B); 702(g)(2)(C) . II–61

Pretrial investigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 405(f)(8); 405(h)(1)(A) . . . . II–35; II–38

Cruelty and maltreatment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 17 . . . . . . . . . . . . . . . . . . . . IV–25

Culpable negligence, defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 44c(2)(a)(i) . . . . . . . . . . . . IV–65

Custody

Correctional. See Correctional custody.

Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 19c(4)(a) . . . . . . . . . . . . . . IV–29

Escaped from . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 19 . . . . . . . . . . . . . . . . . . . . IV–28

Damage

Military property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 32 . . . . . . . . . . . . . . . . . . . . IV–47

Nonmilitary property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 33 . . . . . . . . . . . . . . . . . . . . IV–49

Dangerous weapon, defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 54c(4)(a)(i) . . . . . . . . . . . . IV–101

See also Assault.

Death, as punishment

See also Capital case; Capital offense.

Aiding the enemy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 28e . . . . . . . . . . . . . . . . . . . IV–42

Assaulting officer, time of war . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 14e(3) . . . . . . . . . . . . . . . . IV–20

Countersign, improper use of . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 25e . . . . . . . . . . . . . . . . . . . IV–38

Desertion, time of war . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 9e(3) . . . . . . . . . . . . . . . . . IV–12

Disobedience of officer, time of war . . . . . . . . . . . . . . . . . . IV. Para. 14e(3) . . . . . . . . . . . . . . . . IV–20

Execution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1113(c)(3); 1113(d)(1) . . . . . II–163

General court-martial, power to adjudge . . . . . . . . . . . . . . . R . C . M . 2 0 1 ( f ) ( 1 ) ( A ) ( i i ) ;

201(f)(1)(B)(ii) . . . . . . . . . . . . . . . . . .

II–11

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1003(b)(9) . . . . . . . . . . . . . . . II–126

Mandatory, votes required . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1006(d)(4)(A) . . . . . . . . . . . . II–133

Misbehavior before enemy . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 23e . . . . . . . . . . . . . . . . . . . IV–36

Murder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 43e(1) . . . . . . . . . . . . . . . . IV–64

Mutiny . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 18e . . . . . . . . . . . . . . . . . . . IV–27

Procedures for adjudging . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1004 . . . . . . . . . . . . . . . . . . . II–128

Rape . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 45e(1) . . . . . . . . . . . . . . . . IV–77

Safeguard, forcing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 26e . . . . . . . . . . . . . . . . . . . IV–39

Sedition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 18e . . . . . . . . . . . . . . . . . . . IV–27

Solicitation to desert, mutiny, to commit acts of misbehavior

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before the enemy, or to commit sedition . . . . . . . . . . . . IV. Para. 6 . . . . . . . . . . . . . . . . . . . . . IV–6

Special court-martial, no power to adjudge . . . . . . . . . . . . . R.C.M. 201(f)(2)(B)(i) . . . . . . . . . . . II–12

Spying . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 30e . . . . . . . . . . . . . . . . . . . IV–44

Summary court-martial, no power to adjudge . . . . . . . . . . . R.C.M. 1301(d) . . . . . . . . . . . . . . . . . II–177

Surrender, subordinate compelling . . . . . . . . . . . . . . . . . . . . . IV. Para. 24e . . . . . . . . . . . . . . . . . . . IV–37

Debt, dishonorably failing to pay . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 71 . . . . . . . . . . . . . . . . . . . . IV–121

Defendant. See Accused.

Defense counsel

Absence of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 805(c) . . . . . . . . . . . . . . . . . . II–78

Accused

Inquiry as to rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 901(d)(4) . . . . . . . . . . . . . . . . II–87

Rights to, generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 506 . . . . . . . . . . . . . . . . . . . . II–50

Announcement of

Absence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 813(a)(7) . . . . . . . . . . . . . . . . II–86

Detailing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 503(c)(2) . . . . . . . . . . . . . . . . II–47

Presence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 813(a)(6) . . . . . . . . . . . . . . . . II–86

Qualifications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 901(d)(2) . . . . . . . . . . . . . . . . II–87

Appellate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1202 . . . . . . . . . . . . . . . . . . . II–168

Assistant and associate

Absence of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 805(c) . . . . . . . . . . . . . . . . . . II–78

Detailing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 501(b); 503(c) . . . . . . . . . . . II–42; II–47

Disqualification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(d)(4); 502(f) . . . . . . . . . II–44; II–46

Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(d)(6) . . . . . . . . . . . . . . . . II–45

Individual counsel, effect of . . . . . . . . . . . . . . . . . . . . . R.C.M. 506(b)(3) . . . . . . . . . . . . . . . . II–51

Oath . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 807(b)(1) . . . . . . . . . . . . . . . . II–81

Qualifications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(d) . . . . . . . . . . . . . . . . . . II–43

Change of

Announcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 813(c) . . . . . . . . . . . . . . . . . . II–86

Grounds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 505(d)(2); 506(b)(3); 506(c) II–50; II–51

Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 505(b) . . . . . . . . . . . . . . . . . . II–49

Civilian

Accused’s right to

Appellate review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1202 . . . . . . . . . . . . . . . . . . . II–168

Court-martial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 506 . . . . . . . . . . . . . . . . . . . . II–50

During interrogation . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 305(d)(2) . . . . . . . . . . III–7

Pretrial confinement . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 305(e)(3) . . . . . . . . . . . . . . . . II–22

Pretrial investigation . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 405(d)(2)(C) . . . . . . . . . . . . . II–35

Advice to accused at trial concerning right to . . . . . . R.C.M. 901(d)(4)(A) . . . . . . . . . . . . . II–87

Disqualification, action on . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 901(d)(3) . . . . . . . . . . . . . . . . II–87

Qualifications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(d)(3) . . . . . . . . . . . . . . . . II–43

Deposition, detailed or assigned for . . . . . . . . . . . . . . . . . . . R.C.M. 702(d)(2) . . . . . . . . . . . . . . . . II–60

Detailed

Accused’s right to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 506(a) . . . . . . . . . . . . . . . . . . II–50

Change of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 505(a); 505(b); 505(d)(2) . . II–49; II–50

Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 103(10) . . . . . . . . . . . . . . . . . II–1

Different armed force, counsel from . . . . . . . . . . . . . . . R.C.M. 503(c)(3) . . . . . . . . . . . . . . . . II–47

Disqualification, action on . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 901(d)(3) . . . . . . . . . . . . . . . . II–87

Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(d)(6) . . . . . . . . . . . . . . . . II–45

Excusal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 505(d)(2); 506(c) . . . . . . . . . II–50; II–51

General court-martial . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 501(b) . . . . . . . . . . . . . . . . . . II–42

Individual military counsel, effect of

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 506(b)(3) . . . . . . . . . . . . . . . . II–51

Investigation, pretrial . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 405(d)(2)(B) . . . . . . . . . . . . . II–34

Investigation, pretrial, right to . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 405(d)(2)(A) . . . . . . . . . . . . . II–34

Motion to retain

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 506(b)(3) . . . . . . . . . . . . . . . . II–51

Preserved for record . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 906(b)(2) . . . . . . . . . . . . . . . . II–93

When made . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(b)(6) . . . . . . . . . . . . . . . . II–91

Orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 503(c)(2) . . . . . . . . . . . . . . . . II–47

Pretrial confinement, right to . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 305(f) . . . . . . . . . . . . . . . . . . II–22

Qualifications of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(d)(1) . . . . . . . . . . . . . . . . II–43

Special court-martial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 501(b) . . . . . . . . . . . . . . . . . . II–42

Withdrawal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 505(d)(2)(B); 506(c) . . . . . . II–50; II–51

Disqualification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(d)(4); 901(d)(3) . . . . . . II–44; II–87

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Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(d)(6) . . . . . . . . . . . . . . . . II–45

Evaluation of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 104(b)(1) . . . . . . . . . . . . . . . . II–5

Identification, right to at . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 321(b)(2) . . . . . . . . . . III–17

Individual military counsel

Accused’s right to request . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 506(a) . . . . . . . . . . . . . . . . . . II–50

Advice at trial to accused concerning right to . . . . . . R.C.M. 901(d)(4) . . . . . . . . . . . . . . . . II–87

Attorney-client relationship affecting right to . . . . . . . R.C.M. 506(b)(2) . . . . . . . . . . . . . . . . II–51

Availability to act as . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 506(b)(1); 506(b)(2) . . . . . . II–50; II–51

Detailed counsel, excusal of . . . . . . . . . . . . . . . . . . . . . R.C.M. 506(b)(3) . . . . . . . . . . . . . . . . II–51

Investigation, pretrial, right to at . . . . . . . . . . . . . . . . . . R.C.M. 405(d)(2)(B) . . . . . . . . . . . . . II–34

Motion on request for . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(b)(6) . . . . . . . . . . . . . . . . II–91

Pretrial confinement, no right to . . . . . . . . . . . . . . . . . . R.C.M. 305(f) . . . . . . . . . . . . . . . . . . II–22

Request for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 506(b)(2) . . . . . . . . . . . . . . . . II–51

Qualifications of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(d)(3) . . . . . . . . . . . . . . . . II–43

Interrogation, right to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 305(d); 305(e) . . . . . . III–7

Member, ineligible to serve as . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 912(f)(1)(E) . . . . . . . . . . . . . II–104

Military judge, disqualified to act as . . . . . . . . . . . . . . . . . . R.C.M. 902(b)(2) . . . . . . . . . . . . . . . . II–88

Nonlawyer presence at counsel table . . . . . . . . . . . . . . . . . . R.C.M. 506(e) . . . . . . . . . . . . . . . . . . II–51

Oath

Announcement of status as to . . . . . . . . . . . . . . . . . . . . R.C.M. 901(d)(2) . . . . . . . . . . . . . . . . II–87

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 807(b) . . . . . . . . . . . . . . . . . . II–81

Requirement to take . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 901(d)(5) . . . . . . . . . . . . . . . . II–88

Post-trial duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(d)(6) . . . . . . . . . . . . . . . . II–45

Presence of

Article 39(a) sessions . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 803 . . . . . . . . . . . . . . . . . . . . II–76

Findings announcement . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 922(a) . . . . . . . . . . . . . . . . . . II–118

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 805 . . . . . . . . . . . . . . . . . . . . II–78

Pretrial conferences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 802 . . . . . . . . . . . . . . . . . . . . II–75

Sentence announcement . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1007(a) . . . . . . . . . . . . . . . . . II–133

Pretrial agreement, waiver not permitted . . . . . . . . . . . . . . . R.C.M. 705(c)(1)(B) . . . . . . . . . . . . . II–68

Pretrial confinement, right to . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 305(f) . . . . . . . . . . . . . . . . . . II–22

Privileged communications . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 502 . . . . . . . . . . . . . . . III–23

Summary courts-martial, right to . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1301(e) . . . . . . . . . . . . . . . . . II–177

Waiver of appellate review, right to consult with . . . . . . . R.C.M. 1110(b)(2) . . . . . . . . . . . . . . . II–159

Waiver of right to, in courts-martial . . . . . . . . . . . . . . . . . . R.C.M. 506(d) . . . . . . . . . . . . . . . . . . II–51

Withdrawal of appellate review, right to consult with . . . . R.C.M. 1110(b)(3) . . . . . . . . . . . . . . . II–160

Defense of another . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(e)(5) . . . . . . . . . . . . . . . . II–110

Defenses

Accident . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(f) . . . . . . . . . . . . . . . . . . II–110

Alibi, notice of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(b)(2) . . . . . . . . . . . . . . . . II–57

Burden of proof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(b) . . . . . . . . . . . . . . . . . . II–108

Coercion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(h) . . . . . . . . . . . . . . . . . . II–111

Defense of another . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(e)(5) . . . . . . . . . . . . . . . . II–110

Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(a) . . . . . . . . . . . . . . . . . . II–108

Duress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(h) . . . . . . . . . . . . . . . . . . II–111

Entrapment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(g) . . . . . . . . . . . . . . . . . . II–111

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916 . . . . . . . . . . . . . . . . . . . . II–108

Ignorance of fact . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(j) . . . . . . . . . . . . . . . . . . II–111

Ignorance of law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(l)(1) . . . . . . . . . . . . . . . . II–112

Inability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(i) . . . . . . . . . . . . . . . . . . II–111

Instructions on . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 920(e)(3) . . . . . . . . . . . . . . . . II–116

Justification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(c) . . . . . . . . . . . . . . . . . . II–109

Lack of mental responsibility

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(k) . . . . . . . . . . . . . . . . . . II–112

Notice of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(b)(2) . . . . . . . . . . . . . . . . II–57

Mistake of fact . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(j) . . . . . . . . . . . . . . . . . . II–111

Mistake of law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(l)(1) . . . . . . . . . . . . . . . . II–112

Obedience to orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(d) . . . . . . . . . . . . . . . . . . II–109

Self-defense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(e) . . . . . . . . . . . . . . . . . . II–109

Voluntary intoxication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(l)(2) . . . . . . . . . . . . . . . . II–113

Withdrawn, effect of notice . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(b)(5) . . . . . . . . . . . . . . . . II–58

Deferment of confinement

Action of convening authority . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1107(f)(4)(E) . . . . . . . . . . . . II–154

Contempt cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 809(e) . . . . . . . . . . . . . . . . . . II–83

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Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1101(c) . . . . . . . . . . . . . . . . . II–136

Orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1101(c)(4); 1114(c)(1) . . . . . II–136; II–165

Termination of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1101(c)(6) . . . . . . . . . . . . . . . II–137

Defraud

See also Fraud.

Burning with intent to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 67 . . . . . . . . . . . . . . . . . . . . IV–117

Degrading questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 303 . . . . . . . . . . . . . . . III–4

Delay

See also Continuances.

Government appeals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 908(b)(1) . . . . . . . . . . . . . . . . II–97

Responsibility for, as offense . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 22 . . . . . . . . . . . . . . . . . . . . IV–32

Speedy trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 707(c) . . . . . . . . . . . . . . . . . . II–72

Delegation

Authority to impose pretrial restraint . . . . . . . . . . . . . . . . . . R.C.M. 304(b)(3) . . . . . . . . . . . . . . . . II–20

Convening courts-martial, power to . . . . . . . . . . . . . . . . . . . R.C.M. 504(b)(4) . . . . . . . . . . . . . . . . II–48

Excusal of members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 505(c)(1)(B) . . . . . . . . . . . . . II–49

Nonjudicial punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Para. 2c . . . . . . . . . . . . . . . . . . . . V–2

Deliberations and voting

Capital cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1004(b)(7) . . . . . . . . . . . . . . . II–129

Findings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 921 . . . . . . . . . . . . . . . . . . . . II–117

Interlocutory questions, special court-martial without military

judge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 801(e)(3) . . . . . . . . . . . . . . . . II–74

Military judge, presence during . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 805(a) . . . . . . . . . . . . . . . . . . II–78

Privilege protecting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 509 . . . . . . . . . . . . . . . III–33

Exceptions to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 606 . . . . . . . . . . . . . . . III–35

Sentencing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1006 . . . . . . . . . . . . . . . . . . . II–132

Delivering less than amount called for by receipt . . . . . . . . . IV. Para. 58 . . . . . . . . . . . . . . . . . . . . IV–107

Deposition

Admissibility of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 804(b)(1);

R.C.M. 1001(b)(4) . . . . . . . . . . . . . . . III–42; II–121

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 702 . . . . . . . . . . . . . . . . . . . . II–59

Objections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 702(h) . . . . . . . . . . . . . . . . . . II–61

Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 702(d)(1); 702(f) . . . . . . . . . II–60

Oral . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 702(g)(1); 702(h)(2) . . . . . . II–61; II–62

Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 702(g) . . . . . . . . . . . . . . . . . . II–61

Request for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 702(c) . . . . . . . . . . . . . . . . . . II–59

Who may order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 702(b) . . . . . . . . . . . . . . . . . . II–59

Witnesses, subpoena . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Art. 47, UCMJ; Appendix 7 . . . . . . A2–13; A7–1

Written . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 702(g)(2); 702(h)(3) . . . . . . II–61; II–62

Dereliction in the performance of duty . . . . . . . . . . . . . . . . . . IV. Para. 16 . . . . . . . . . . . . . . . . . . . . IV–23

Desertion

Apprehend deserter, authority to . . . . . . . . . . . . . . . . . . . . . . R.C.M. 302(b)(3) . . . . . . . . . . . . . . . . II–18

Attempted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 4c(6)(a); 9 . . . . . . . . . . . . . IV–5; IV–9

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 9 . . . . . . . . . . . . . . . . . . . . . IV–9

Solicitation to commit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 6 . . . . . . . . . . . . . . . . . . . . . IV–6

Destroying

Mail . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 93 . . . . . . . . . . . . . . . . . . . . IV–131

Military property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 32 . . . . . . . . . . . . . . . . . . . . IV–47

Nonmilitary property

Offense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 33 . . . . . . . . . . . . . . . . . . . . IV–49

Reparation for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Art. 139, UCMJ . . . . . . . . . . . . . . . . A2–36

Detail

Bailiff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 501(c) . . . . . . . . . . . . . . . . . . II–42

Clerk . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 501(c) . . . . . . . . . . . . . . . . . . II–42

Defense counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 501(b); 503(c) . . . . . . . . . . . II–42; II–47

Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 103(10) . . . . . . . . . . . . . . . . . II–1

Escort . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 501(c) . . . . . . . . . . . . . . . . . . II–42

Interpreter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 501(c) . . . . . . . . . . . . . . . . . . II–42

Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 503(a) . . . . . . . . . . . . . . . . . . II–46

Military judge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 503(b) . . . . . . . . . . . . . . . . . . II–47

Orderly . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 501(c) . . . . . . . . . . . . . . . . . . II–42

Orders

Amending . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 505(b) . . . . . . . . . . . . . . . . . . II–49

Appointing counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 503(c)(2) . . . . . . . . . . . . . . . . II–47

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Appointing military judge . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 503(b)(2) . . . . . . . . . . . . . . . . II–47

Convening . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 504(d) . . . . . . . . . . . . . . . . . . II–48

Reporter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 501(c) . . . . . . . . . . . . . . . . . . II–42

Trial counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 501(b); 503(c) . . . . . . . . . . . II–42; II–47

Detention, unlawful . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 21 . . . . . . . . . . . . . . . . . . . . IV–32

Discharge

See also Bad-conduct discharge; Dishonorable discharge.

Effecting fraudulent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 8 . . . . . . . . . . . . . . . . . . . . . IV–9

Firearms

Negligent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 80 . . . . . . . . . . . . . . . . . . . . IV–126

Willful . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 81 . . . . . . . . . . . . . . . . . . . . IV–126

Fraudulent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 7 . . . . . . . . . . . . . . . . . . . . . IV–8

Disclosure and discovery

Aggravating circumstances, notice in capital cases . . . . . . . R.C.M. 1004(b)(1) . . . . . . . . . . . . . . . II–128

Alibi defense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(b)(2) . . . . . . . . . . . . . . . . II–57

Amending orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(a)(1)(B) . . . . . . . . . . . . . II–56

Charges, papers, accompanying . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(a)(1)(A) . . . . . . . . . . . . . II–56

Classified or privileged government information, intent to

disclose at trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 505(h); 506(h) . . . . . . III–27; III–30

Continuing duty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(d) . . . . . . . . . . . . . . . . . . II–58

Convening orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(a)(1)(B) . . . . . . . . . . . . . II–56

Convictions, prior

Accused, used against . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(a)(4); 701(a)(5)(A) . . . . II–56

Witnesses, impeachment by convictions older than 10

years, intent to use . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 609(b) . . . . . . . . . . . . III–36

Defense, disclosure by, generally . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(b) . . . . . . . . . . . . . . . . . . II–57

Defense, intent to use insanity . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(b)(2) . . . . . . . . . . . . . . . . II–57

Defense, withdrawn, inadmissibility . . . . . . . . . . . . . . . . . . . . R.C.M. 701(b)(5) . . . . . . . . . . . . . . . . II–58

Deposition, witness statements . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 702(g)(1)(B) . . . . . . . . . . . . . II–61

Documents

In defense possession . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(b)(3) . . . . . . . . . . . . . . . . II–57

In government possession . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(a)(2)(A) . . . . . . . . . . . . . II–56

Evidence

Access to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(e) . . . . . . . . . . . . . . . . . . II–58

Favorable to defense . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(a)(6) . . . . . . . . . . . . . . . . II–56

Prior identifications of the accused . . . . . . . . . . . . . . . . Mil. R. Evid. 321(c)(1) . . . . . . . . . . III–17

Seized from the accused . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 311(d)(1) . . . . . . . . . . III–9

Examinations, physical

In defense possession . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(b)(4) . . . . . . . . . . . . . . . . II–57

In government possession . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(a)(2)(B) . . . . . . . . . . . . . II–56

Foreign law, intent to request judicial notice of . . . . . . . . Mil. R. Evid. 201A(b) . . . . . . . . . . . III–2

Mental examinations

In defense possession . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(b)(4) . . . . . . . . . . . . . . . . II–57

In government possession . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(a)(2)(B) . . . . . . . . . . . . . II–56

Psychotherapist-patient privilege . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 513 . . . . . . . . . . . . . . . III–33

Statements of accused related to . . . . . . . . . . . . . . . . . . R.C.M. 706(c)(5); Mil. R. Evid. 302 II–71; III–4

Military judge, regulation of . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(g) . . . . . . . . . . . . . . . . . . II–58

Military Rules of Evidence, pursuant to

Evidence seized from the accused . . . . . . . . . . . . . . . . Mil. R. Evid. 311(d)(1) . . . . . . . . . . III–9

Prior identifications of the accused . . . . . . . . . . . . . . . . Mil. R. Evid. 321(c)(1) . . . . . . . . . . III–17

Statements of the accused . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 304(d)(1) . . . . . . . . . . III–5

Motion relating to

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 906(b)(7) . . . . . . . . . . . . . . . . II–94

Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(e) . . . . . . . . . . . . . . . . . . II–92

When made . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(b)(4) . . . . . . . . . . . . . . . . II–91

Noncompliance, remedy for . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(g)(3) . . . . . . . . . . . . . . . . II–58

Objects

In defense possession . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(b)(3) . . . . . . . . . . . . . . . . II–57

In government possession . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(a)(2)(A) . . . . . . . . . . . . . II–56

Orders, protective . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(g)(2) . . . . . . . . . . . . . . . . II–58

Photographs

In defense possession . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(b)(3) . . . . . . . . . . . . . . . . II–57

In government possession . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(a)(2)(A) . . . . . . . . . . . . . II–56

Preparation for trial, opportunity . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(e) . . . . . . . . . . . . . . . . . . II–58

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Prior statements of witnesses . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 914 . . . . . . . . . . . . . . . . . . . . II–107

Privileged information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(f) . . . . . . . . . . . . . . . . . . II–58

See also Evidence, Privileges.

Psychiatric experts, intent to use . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(b)(2); M.R.E. 513 . . . . II–57; III–33

Psychotherapist-patient privilege . . . . . . . . . . . . . . . . . . . . . . . M.R.E. 513 . . . . . . . . . . . . . . . . . . . . III–33

Regulation of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(g) . . . . . . . . . . . . . . . . . . II–58

Remedy for noncompliance . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(g)(3) . . . . . . . . . . . . . . . . II–58

Sexual behavior of victim, intent to offer evidence of . . . Mil. R. Evid. 412(c) . . . . . . . . . . . . . III–21

Statements relating to an offense . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(a)(1)(C) . . . . . . . . . . . . . II–56

Statements of the accused . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 304(d)(1) . . . . . . . . . . III–5

Tests

In defense possession . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(b)(4) . . . . . . . . . . . . . . . . II–57

In government possession . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(a)(2)(B) . . . . . . . . . . . . . II–56

Trial counsel, disclosure by, generally . . . . . . . . . . . . . . . . . R.C.M. 701(a) . . . . . . . . . . . . . . . . . . II–56

Witnesses

Access to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(e) . . . . . . . . . . . . . . . . . . II–58

Accused’s limited testimony on motion, intent to use Mil. R. Evid. 304(f); 311(f); 321(e) III–6; III–10; III–18

Alibi, defense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(b)(2) . . . . . . . . . . . . . . . . II–1

Failure to call . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(c) . . . . . . . . . . . . . . . . . . II–58

Merits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(a)(3)(A) . . . . . . . . . . . . . II–56

Prior statements of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 914 . . . . . . . . . . . . . . . . . . . . II–107

Psychiatric experts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(b)(2); M.R.E. 513 . . . . II–57; III–33

Psychotherapist-patient privilege . . . . . . . . . . . . . . . . . . . M.R.E. 513 . . . . . . . . . . . . . . . . . . . . III–33

Rebuttal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(a)(3)(B) . . . . . . . . . . . . . II–56

Sentencing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(a)(5)(B) . . . . . . . . . . . . . II–56

Work product of counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(f) . . . . . . . . . . . . . . . . . . II–58

Discredit, conduct of a nature to bring on armed forces . . IV. Para. 60c(3) . . . . . . . . . . . . . . . . IV–112

Dishonorable discharge

Death, included in sentence of . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1004(e) . . . . . . . . . . . . . . . . . II–131

Execution of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1113(c)(1) . . . . . . . . . . . . . . . II–163

General courts-martial, power to adjudge . . . . . . . . . . . . . . . R.C.M. 201(f)(1)(A)(ii) . . . . . . . . . . . II–11

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1003(b)(8)(B) . . . . . . . . . . . . II–125

Previous convictions authorizing . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1003(d)(1) . . . . . . . . . . . . . . . II–127

Special courts-martial, no power to adjudge . . . . . . . . . . . . R.C.M. 201(f)(2)(B)(i) . . . . . . . . . . . II–12

Summary courts-martial, no power to adjudge . . . . . . . . . . R.C.M. 1301(d) . . . . . . . . . . . . . . . . . II–177

Dishonorably failing to maintain funds . . . . . . . . . . . . . . . . . . IV. Para. 68 . . . . . . . . . . . . . . . . . . . . IV–118

Dishonorably failing to pay debt . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 71 . . . . . . . . . . . . . . . . . . . . IV–121

Disloyal statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 72 . . . . . . . . . . . . . . . . . . . . IV–121

Dismissal

Charges. See Charges and specifications.

Punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Death, included in sentence of . . . . . . . . . . . . . . . . . . . R.C.M. 1004(e) . . . . . . . . . . . . . . . . . II–131

Execution of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1113(c)(2) . . . . . . . . . . . . . . . II–163

General courts-martial, power to adjudge . . . . . . . . . . . . . . . R.C.M. 201(f)(1)(A)(ii) . . . . . . . . . . . II–11

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1003(b)(8)(A) . . . . . . . . . . . . II–125

Special courts-martial, no power to adjudge . . . . . . . . . . . . R.C.M. 201(f)(2)(B)(i) . . . . . . . . . . . II–12

Disobedience of orders

Failure to obey . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 16 . . . . . . . . . . . . . . . . . . . . IV–23

Willful

Commissioned officer . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 14 . . . . . . . . . . . . . . . . . . . . IV–18

Noncommissioned, petty, or warrant officer . . . . . . . . IV. Para. 15 . . . . . . . . . . . . . . . . . . . . IV–21

Disorderly conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 73 . . . . . . . . . . . . . . . . . . . . IV–122

Disposition of charges, generally . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 401 . . . . . . . . . . . . . . . . . . . . II–31

Disposition of military property, wrongful . . . . . . . . . . . . . . . . IV. Para. 32 . . . . . . . . . . . . . . . . . . . . IV–47

Disposition of offenses, generally . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 306 . . . . . . . . . . . . . . . . . . . . II–25

Disposition of record of trial after action . . . . . . . . . . . . . . . . R.C.M. 1111 . . . . . . . . . . . . . . . . . . . II–161

Disqualification

See also specific topics.

Discovery of, as to detailed personnel . . . . . . . . . . . . . . . . . R.C.M. 502(f) . . . . . . . . . . . . . . . . . . II–46

Disrespect

Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 13c(3) . . . . . . . . . . . . . . . . IV–18

Sentinel or lookout . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 104 . . . . . . . . . . . . . . . . . . . IV–139

Superior commissioned officer . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 13 . . . . . . . . . . . . . . . . . . . . IV–17

Noncommissioned, petty, or warrant officer . . . . . . . . . . . . IV. Para. 15 . . . . . . . . . . . . . . . . . . . . IV–21

Index 19

INDEX MCM, 2008
Subject Ref. Page

Distribution of controlled substances . . . . . . . . . . . . . . . . . . . . . IV. Para. 37 . . . . . . . . . . . . . . . . . . . . IV–54

Docketing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 801(a)(1) . . . . . . . . . . . . . . . . II–73

Documents

Authentication requirement . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 901 . . . . . . . . . . . . . . . III–43

False . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 31 . . . . . . . . . . . . . . . . . . . . IV–46

Hearsay exceptions, declarant unavailable . . . . . . . . . . . . . . Mil. R. Evid. 804 . . . . . . . . . . . . . . . III–42

Hearsay exceptions, generally . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803 . . . . . . . . . . . . . . . III–40

Hearsay inadmissible . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 802 . . . . . . . . . . . . . . . III–40

Original needed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 1002 . . . . . . . . . . . . . . III–45

Self-authentication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 902 . . . . . . . . . . . . . . . III–44

Double jeopardy. See Former jeopardy.

Draft, share or bank. See Checks.

Drinking liquor with prisoner . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 74 . . . . . . . . . . . . . . . . . . . . IV–122

Driving, drunken or reckless . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 35 . . . . . . . . . . . . . . . . . . . . IV–52

Drugs

Inspection for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 313(b) . . . . . . . . . . . . III–12

Offenses involving illegal . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 37 . . . . . . . . . . . . . . . . . . . . IV–54

Drunk

See also Intoxication.

And disorderly . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 73 . . . . . . . . . . . . . . . . . . . . IV–122

Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 35c(6) . . . . . . . . . . . . . . . . IV–53

Driving . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 35 . . . . . . . . . . . . . . . . . . . . IV–52

On duty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 36 . . . . . . . . . . . . . . . . . . . . IV–54

On station . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 73 . . . . . . . . . . . . . . . . . . . . IV–122

Prisoner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 75 . . . . . . . . . . . . . . . . . . . . IV–123

Sentinel or lookout . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 38 . . . . . . . . . . . . . . . . . . . . IV–58

Drunkenness, incapacitation for performance of duties

through . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 76 . . . . . . . . . . . . . . . . . . . . IV–123

Dueling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 39 . . . . . . . . . . . . . . . . . . . . IV–59

Dupliciousness, in charging

See also Charges and specifications.

Motion to sever . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 906(b)(5) . . . . . . . . . . . . . . . . II–94

Duress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(h) . . . . . . . . . . . . . . . . . . II–111

Duty

Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 36c(2) . . . . . . . . . . . . . . . . IV–54

Dereliction in the performance of . . . . . . . . . . . . . . . . . . . . . IV. Para. 16 . . . . . . . . . . . . . . . . . . . . IV–23

Drunk on . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 36 . . . . . . . . . . . . . . . . . . . . IV–54

Going from place of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 10 . . . . . . . . . . . . . . . . . . . . IV–12

To obey orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 16c(2)(c) . . . . . . . . . . . . . . IV–24

Dying declarations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 804(b)(2) . . . . . . . . . . III–42

Eavesdropping . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 317 . . . . . . . . . . . . . . . III–16

Effecting unlawful enlistment, appointment, or separation . IV. Para. 8 . . . . . . . . . . . . . . . . . . . . . IV–9

Efficiency reports, members, military judge, counsel . . . . . . . . R.C.M. 104(b) . . . . . . . . . . . . . . . . . . II–5

Elements of offense

See also specific offenses.

Instruction on . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 920(e)(1); 920(e)(2) . . . . . . . II–116

Lesser included offenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 3b(1) . . . . . . . . . . . . . . . . . IV–3

Specification, alleging . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 307(c)(1); 307(c)(3) . . . . . . . II–27

Embezzlement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 46 . . . . . . . . . . . . . . . . . . . . IV–84

Emergency searches . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 314(i) . . . . . . . . . . . . . III–13

Endangering command, unit, place, or military property . . IV. Para. 23 . . . . . . . . . . . . . . . . . . . . IV–33

Enemy

Aiding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 28 . . . . . . . . . . . . . . . . . . . . IV–41

Commission, military, jurisdiction over . . . . . . . . . . . . . . . . I. Para. 2(b)(2); R.C.M. 201(f)(1)(B) I–1; II–11

Communicating with . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 28 . . . . . . . . . . . . . . . . . . . . IV–41

Confinement with . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Art. 12, UCMJ . . . . . . . . . . . . . . . . . A2–4

Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 23c(1)(b) . . . . . . . . . . . . . . IV–34

Failing to engage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 23 . . . . . . . . . . . . . . . . . . . . IV–33

Military government, subject to . . . . . . . . . . . . . . . . . . . . . . . I. Para. 2(a)(3) . . . . . . . . . . . . . . . . . I–1

Misbehavior before . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 23 . . . . . . . . . . . . . . . . . . . . IV–33

Prisoner in hands of, misconduct . . . . . . . . . . . . . . . . . . . . . IV. Para. 29 . . . . . . . . . . . . . . . . . . . . IV–42

Property taken from . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 27 . . . . . . . . . . . . . . . . . . . . IV–39

Running away before . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 23 . . . . . . . . . . . . . . . . . . . . IV–33

Spying . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 30 . . . . . . . . . . . . . . . . . . . . IV–43

Index 20

MCM, 2008 INDEX
Subject Ref. Page

Enlisted persons

Detailed to serve as court members . . . . . . . . . . . . . . . . . . . R.C.M. 503(a)(2) . . . . . . . . . . . . . . . . II–46

Request by accused for court members . . . . . . . . . . . . . . . . R.C.M. 503(a)(2) . . . . . . . . . . . . . . . . II–46

Restraint of, who may order . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 304(b) . . . . . . . . . . . . . . . . . . II–20

Unit, same as accused for court members . . . . . . . . . . . . . . R.C.M. 912(f)(1)(A); 912(f)(4) . . . . II–103; II–104

Enlistment

Constructive . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Art. 2(c), UCMJ . . . . . . . . . . . . . . . . A2–2

Desertion, effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 9c(1)(d) . . . . . . . . . . . . . . . IV–11

Fraudulent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 7 . . . . . . . . . . . . . . . . . . . . . IV–8

Unlawful, effecting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 8 . . . . . . . . . . . . . . . . . . . . . IV–9

Entrapment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(g) . . . . . . . . . . . . . . . . . . II–111

Entry, unlawful . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 111 . . . . . . . . . . . . . . . . . . . IV–143

Escalator clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1003(d) . . . . . . . . . . . . . . . . . II–127

Escape

Assisting another to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 2c(1) . . . . . . . . . . . . . . . . . IV–2

Confinement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 19 . . . . . . . . . . . . . . . . . . . . IV–28

Correctional custody . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 70 . . . . . . . . . . . . . . . . . . . . IV–120

Custody . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 19 . . . . . . . . . . . . . . . . . . . . IV–28

Prisoner of war . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 28c(3) . . . . . . . . . . . . . . . . IV–41

Suffering prisoner to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 20 . . . . . . . . . . . . . . . . . . . . IV–30

Escort

Designation by military judge . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 913(c)(3) . . . . . . . . . . . . . . . . II–106

Detailing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 501(c) . . . . . . . . . . . . . . . . . . II–42

Disqualification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(e)(2); 502(f) . . . . . . . . . II–46

Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(e)(3)(C); 913(c)(3) . . . . II–46; II–106

Oath . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 807(b) . . . . . . . . . . . . . . . . . . II–81

Qualifications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(e)(1) . . . . . . . . . . . . . . . . II–46

Views and inspections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 913(c)(3) . . . . . . . . . . . . . . . . II–106

Espionage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 30 . . . . . . . . . . . . . . . . . . . . IV–43

IV. Para. 30a . . . . . . . . . . . . . . . . . . . IV–43

Solicitation to commit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 105 . . . . . . . . . . . . . . . . . . . IV–140

Evidence

See also Search and seizure; Self-incrimination

Absence of entry in records . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(7) . . . . . . . . . . . . III–40

Absence of public record or entry . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(10) . . . . . . . . . . . III–41

Access to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(e) . . . . . . . . . . . . . . . . . . II–58

Accident, evidence of other crimes, wrongs, or acts to prove

absence of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 404(b) . . . . . . . . . . . . III–19

Accused

Character of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 404(a)(1) . . . . . . . . . . III–19

Favorable to, disclosure by trial counsel . . . . . . . . . . . R.C.M. 701(a)(6) . . . . . . . . . . . . . . . . II–56

Testimony by, concerning admissibility of an admission

or confession . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 304(f) . . . . . . . . . . . . . III–6

Testimony by, concerning admissibility of evidence

obtained from an unlawful search or seizure . . . . . Mil. R. Evid. 311(f) . . . . . . . . . . . . . III–10

Testimony by, concerning admissibility of eyewitness

identification evidence . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 321(e) . . . . . . . . . . . . . III–18

Testimony upon preliminary matter, generally . . . . . . . Mil. R. Evid. 104(d) . . . . . . . . . . . . III–2

Adjudicative facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 201 . . . . . . . . . . . . . . . III–2

Admissibility

Effect of relevancy upon . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 402; 403 . . . . . . . . . . III–19

Erroneous rulings, effect of . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 103(a) . . . . . . . . . . . . . III–1

For limited purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 105 . . . . . . . . . . . . . . . III–2

Motion as to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 906(b)(13) . . . . . . . . . . . . . . . II–95

Preliminary determinations concerning . . . . . . . . . . . . . Mil. R. Evid. 104(a) . . . . . . . . . . . . . III–1

Admissions. See Self-Incrimination.

Affidavits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 405(c) . . . . . . . . . . . . . III–19

Amendments to the Military Rules of Evidence . . . . . . . . . Mil. R. Evid. 1102 . . . . . . . . . . . . . . III–47

Analysis of the Military Rules of Evidence . . . . . . . . . . . . Appendix 22 . . . . . . . . . . . . . . . . . . . A22–1

Ancient documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(16) . . . . . . . . . . . III–41

Annulment of conviction, effect on impeachment . . . . . . . . Mil. R. Evid. 609(c) . . . . . . . . . . . . . III–36

Appeal, effect on impeachment by evidence of conviction Mil. R. Evid. 609(e) . . . . . . . . . . . . . III–36

Applicability of rules

Military Rules of Evidence . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 101(a); 1101(a) . . . . . III–1; III–46

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Other evidentiary rules . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 101(b) . . . . . . . . . . . . III–1

Attorney-client privilege . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 502 . . . . . . . . . . . . . . . III–23

Authentication and identification

Attesting certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 902(4a) . . . . . . . . . . . . III–45

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 901(a) . . . . . . . . . . . . . III–43

Illustrations of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 901(b) . . . . . . . . . . . . III–43

Self-authentication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 902 . . . . . . . . . . . . . . . III–44

Subscribing witness’ testimony unnecessary . . . . . . . . . Mil. R. Evid. 903 . . . . . . . . . . . . . . . III–45

Availability of a witness, determination of . . . . . . . . . . . . . Mil. R. Evid. 104(a) . . . . . . . . . . . . . III–1

Baptismal certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(12) . . . . . . . . . . . III–41

Best evidence rule. See Contents of writings, recordings, and

photographs, this heading.

Bias or prejudice

Compromise and offer to compromise, admissibility to

prove . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 408 . . . . . . . . . . . . . . . III–20

Evidence of bias to impeach . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 608(c) . . . . . . . . . . . . . III–36

Exclusion of unfairly prejudicial evidence . . . . . . . . . . Mil. R. Evid. 403 . . . . . . . . . . . . . . . III–19

Burden of proof. See Burden of proof.

Business entries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(6) . . . . . . . . . . . . III–40

Certificate of rehabilitation, effect on impeachment . . . . . . Mil. R. Evid. 609(c) . . . . . . . . . . . . . III–36

Chaplain, privileged communications to . . . . . . . . . . . . . . . . Mil. R. Evid. 503 . . . . . . . . . . . . . . . III–24

Character

Evidence of similar sexual crimes . . . . . . . . . . . . . . . . Mil. R. Evid 413; 414 . . . . . . . . . . . III–21; III–22

Inadmissibility to prove conduct; exceptions . . . . . . . . Mil. R. Evid. 404 . . . . . . . . . . . . . . . III–19

Methods of proving . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 405 . . . . . . . . . . . . . . . III–19

Circumstantial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 918(c) . . . . . . . . . . . . . . . . . . II–114

Classified information, privilege concerning . . . . . . . . . . . . . Mil. R. Evid. 505 . . . . . . . . . . . . . . . III–25

Clergyman

Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 503(b)(1) . . . . . . . . . . III–24

Privileged communications to . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 503(a) . . . . . . . . . . . . . III–24

Co-accused, statements at joint trial . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 306 . . . . . . . . . . . . . . . III–8

Co-conspirator, statements of . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 801(d)(2) . . . . . . . . . . III–39

Commercial publications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(17) . . . . . . . . . . . III–41

Common law rules, applicability . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 101(b)(2) . . . . . . . . . . III–1

Competency

Court members as witnesses . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 606 . . . . . . . . . . . . . . . III–35

Military judge as witness . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 605 . . . . . . . . . . . . . . . III–35

Witnesses, generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 601 . . . . . . . . . . . . . . . III–35

Compromise and offer to compromise . . . . . . . . . . . . . . . . . Mil. R. Evid. 408 . . . . . . . . . . . . . . . III–20

Concealing, as grounds for being accessory after the fact IV. Para. 2c(1) . . . . . . . . . . . . . . . . . IV–2

Confessions. See Self-Incrimination.

Confidential or privileged communications. See Privileges,

this heading.

Confusion of the issues, as grounds for, excluding relevant

evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 403 . . . . . . . . . . . . . . . III–19

Conspiracy, statement of co-conspirator . . . . . . . . . . . . . . . . Mil. R. Evid. 801(d)(2) . . . . . . . . . . III–39

Contents of writings, recordings, and photographs

Admissibility of duplicates . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 1003 . . . . . . . . . . . . . . III–46

Admissibility of other evidence as proof . . . . . . . . . . . Mil. R. Evid. 1004 . . . . . . . . . . . . . . III–46

Determination of fact issues related to . . . . . . . . . . . . . Mil. R. Evid. 1008 . . . . . . . . . . . . . . III–46

Proof by testimony or written admission of party . . . Mil. R. Evid. 1007 . . . . . . . . . . . . . . III–46

Public records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 1005 . . . . . . . . . . . . . . III–46

Requirement of an original . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 1002 . . . . . . . . . . . . . . III–45

Summaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 1006 . . . . . . . . . . . . . . III–46

Continuance, determination by military judge . . . . . . . . . . . Mil. R. Evid. 104(a) . . . . . . . . . . . . . III–1

Control, proof by subsequent remedial measures . . . . . . . . Mil. R. Evid. 407 . . . . . . . . . . . . . . . III–20

Conviction of crime, impeachment by . . . . . . . . . . . . . . . . . Mil. R. Evid. 609 . . . . . . . . . . . . . . . III–36

Corroboration

Confessions or admissions . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 304(g) . . . . . . . . . . . . III–6

Witness’ prior identification to corroborate in-court

identification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 321(a)(1) . . . . . . . . . . III–17

Court-martial, power to obtain evidence . . . . . . . . . . . . . . . R.C.M. 801(c) . . . . . . . . . . . . . . . . . . II–73

Credibility or weight, right to introduce evidence concerning Mil. R. Evid. 104(e) . . . . . . . . . . . . . III–2

Cross-examination

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Scope . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 611(b) . . . . . . . . . . . . III–37

Specific incidents of conduct to impeach . . . . . . . . . . Mil. R. Evid. 608(b) . . . . . . . . . . . . III–36

Cumulative, as grounds for excluding relevant evidence . . Mil. R. Evid. 403 . . . . . . . . . . . . . . . III–19

Death, statement under belief of impending . . . . . . . . . . . . Mil. R. Evid. 804(b)(2) . . . . . . . . . . III–42

Declarant

Attacking and supporting credibility of

hearsay declarant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 806 . . . . . . . . . . . . . . . III–43

Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 801(b) . . . . . . . . . . . . III–39

Unavailability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 804(a) . . . . . . . . . . . . . III–42

Degrading questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 303 . . . . . . . . . . . . . . . III–4

Deliberations of courts and juries, privilege concerning . . Mil. R. Evid. 509; 606 . . . . . . . . . . III–33; III–35

Disclosure, required

Evidence of prior identification of the accused . . . . . Mil. R. Evid. 321(c)(1) . . . . . . . . . . III–17

Evidence seized from the person or property of the

accused . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 311(d)(1) . . . . . . . . . . III–9

Immunity or leniency granted to a witness . . . . . . . . . Mil. R. Evid. 301(c)(2) . . . . . . . . . . III–3

Statements by accused . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 304(d)(1) . . . . . . . . . . III–5

Divorce or annulment, effect on husband-wife privilege . . Mil. R. Evid. 504(c)(1) . . . . . . . . . . III–25

Duplicate

Admissibility of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 1003 . . . . . . . . . . . . . . III–46

Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 1001(4) . . . . . . . . . . . III–45

Dying declaration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 804(b)(2) . . . . . . . . . . III–42

Excited utterance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(2) . . . . . . . . . . . . III–40

Exclusionary rules; See also Privileges, this heading;

Search and seizure; Self-incrimination.

Eyewitness identification . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 321(a)(2) . . . . . . . . . . III–17

Exclusion of, noncompliance with discovery requirements R.C.M. 701(g)(3)(C) . . . . . . . . . . . . . II–58

Existing mental, emotional, or physical condition . . . . . . . Mil. R. Evid. 803(3) . . . . . . . . . . . . III–40

Experts

Appointment by court . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 706 . . . . . . . . . . . . . . . III–39

Bases of opinion by . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 703 . . . . . . . . . . . . . . . III–39

Disclosure of facts or data underlying opinion . . . . . . Mil. R. Evid. 705 . . . . . . . . . . . . . . . III–39

Employment at government expense . . . . . . . . . . . . . . . R.C.M. 703(d) . . . . . . . . . . . . . . . . . . II–63

Opinion on ultimate issue . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 704 . . . . . . . . . . . . . . . III–39

Selection and employment by accused . . . . . . . . . . . . . Mil. R. Evid. 706(c) . . . . . . . . . . . . . III–39

Use, generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 702 . . . . . . . . . . . . . . . III–38

Extenuation and mitigation . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1001(c)(1)(A); 1001(c)(1)(B) II–122

Eyewitness identification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 321 . . . . . . . . . . . . . . . III–17

Facts, judicial notice of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 201 . . . . . . . . . . . . . . . III–2

Family records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(13) . . . . . . . . . . . III–41

Feasibility of precautionary measures, proof by subsequent

remedial measures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 407 . . . . . . . . . . . . . . . III–20

Foreign law, judicial notice of . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 201A(b) . . . . . . . . . . . III–2

Former testimony . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 804(b)(1) . . . . . . . . . . III–42

Government information, privilege concerning . . . . . . . . . . . Mil. R. Evid. 506 . . . . . . . . . . . . . . . III–29

Habit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 406 . . . . . . . . . . . . . . . III–19

Hearsay

Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 801 . . . . . . . . . . . . . . . III–39

General rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 802 . . . . . . . . . . . . . . . III–40

Exceptions, availability of declarant immaterial

Absence of entry in records . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(7) . . . . . . . . . . . . III–40

Absence of public record of entry . . . . . . . . . . . . . . Mil. R. Evid. 803(10) . . . . . . . . . . . III–41

Excited utterance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(2) . . . . . . . . . . . . III–40

Family records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(13) . . . . . . . . . . . III–41

Government price lists . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(17) . . . . . . . . . . . III–41

Judgment as to personal, family, or general

history, or boundaries . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(23) . . . . . . . . . . . III–42

Judgment of previous conviction . . . . . . . . . . . . . . . . Mil. R. Evid. 803(22) . . . . . . . . . . . III–42

Learned treatises . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(18) . . . . . . . . . . . III–41

Market reports, commercial publications . . . . . . . . . Mil. R. Evid. 803(17) . . . . . . . . . . . III–41

Marriage, baptismal, and similar certificates . . . . . . Mil. R. Evid. 803(12) . . . . . . . . . . . III–41

Other exceptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(24) . . . . . . . . . . . III–42

Present sense impressions . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(1) . . . . . . . . . . . . III–40

Public records and reports . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(8) . . . . . . . . . . . . III–41

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Recorded recollection . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(5) . . . . . . . . . . . . III–40

Records of documents affecting an

interest in property . . . . . . . . . . . . . . . . . . . . . . . . .

Mil. R. Evid. 803(14) . . . . . . . . . . . III–41

Records of regularly conducted activity . . . . . . . . . . Mil. R. Evid. 803(6) . . . . . . . . . . . . III–40

Records of religious organizations . . . . . . . . . . . . . . . Mil. R. Evid. 803(11) . . . . . . . . . . . III–41

Records of vital statistics . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(9) . . . . . . . . . . . . III–41

Reputation as to character . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(21) . . . . . . . . . . . III–42

Reputation concerning boundaries or general history Mil. R. Evid. 803(20) . . . . . . . . . . . III–42

Reputation concerning personal or family history . . Mil. R. Evid. 803(19) . . . . . . . . . . . III–42

Statements for purposes of medical diagnosis or

treatment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(4) . . . . . . . . . . . . III–40

Statements in ancient documents . . . . . . . . . . . . . . . . Mil. R. Evid. 803(16) . . . . . . . . . . . III–41

Statements in documents affecting an interest in

property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(15) . . . . . . . . . . . III–41

Then existing mental, emotional or physical condition Mil. R. Evid. 803(3) . . . . . . . . . . . . III–40

Exceptions, declarant unavailable

Former testimony . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 804(b)(1) . . . . . . . . . . III–42

Other exceptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 804(b)(5) . . . . . . . . . . III–43

Statement against interest . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 804(b)(3) . . . . . . . . . . III–43

Statement of personal or family history . . . . . . . . . . Mil. R. Evid. 804(b)(4) . . . . . . . . . . III–43

Statement under belief of impending death . . . . . . . Mil. R. Evid. 804(b)(2) . . . . . . . . . . III–42

Hearsay within hearsay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 805 . . . . . . . . . . . . . . . III–43

History, statement of personal or family . . . . . . . . . . . . . . . Mil. R. Evid. 804(b)(4) . . . . . . . . . . III–43

Husband-wife, privilege . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 504 . . . . . . . . . . . . . . . III–24

Identification

Evidence of other crimes, wrongs, or acts as proof of Mil. R. Evid. 404(b) . . . . . . . . . . . . III–19

Eyewitness testimony as to . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 321 . . . . . . . . . . . . . . . III–17

Statements of, as non-hearsay . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 801(d)(1) . . . . . . . . . . III–39

Immunity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 704 . . . . . . . . . . . . . . . . . . . . II–66

See also Self-incrimination.

Impeachment

By contradiction, using certain involuntary statements Mil. R. Evid. 304(b) . . . . . . . . . . . . III–4

By contradiction, using illegally seized evidence . . . . Mil. R. Evid. 311(b) . . . . . . . . . . . . III–8

Evidence of character, conduct, and bias . . . . . . . . . . . Mil. R. Evid. 608 . . . . . . . . . . . . . . . III–35

Evidence of criminal conviction . . . . . . . . . . . . . . . . . . Mil. R. Evid. 609 . . . . . . . . . . . . . . . III–36

Juvenile adjudications . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 609(d) . . . . . . . . . . . . III–36

Prior statements of witnesses . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 613 . . . . . . . . . . . . . . . III–38

Religious beliefs or opinions . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 610 . . . . . . . . . . . . . . . III–37

Subsequent remedial measures . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 407 . . . . . . . . . . . . . . . III–20

Who may impeach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 607 . . . . . . . . . . . . . . . III–35

Informant, identity of, privilege . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 507 . . . . . . . . . . . . . . . III–32

Insanity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 302; R.C.M. 916(k) . III–4; II–112

Intent, evidence of other crimes, wrongs, or acts, as proof of Mil. R. Evid. 404(b) . . . . . . . . . . . . III–19

Interest, statement against . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 804(b)(3) . . . . . . . . . . III–43

Interpreters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 604 . . . . . . . . . . . . . . . III–35

Interrogation. See Self-incrimination.

Involuntary statement. See Self-incrimination.

Joint clients, effect on lawyer-client privilege . . . . . . . . . . . Mil. R. Evid. 502(d)(5) . . . . . . . . . . III–24

Joint trial, statements of accused at . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 306 . . . . . . . . . . . . . . . III–8

Judgment

As to personal, family, or general history, or boundaries Mil. R. Evid. 803(23) . . . . . . . . . . . III–42

Previous conviction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(22) . . . . . . . . . . . III–42

Judicial notice

Adjudicative facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 201 . . . . . . . . . . . . . . . III–2

Laws, domestic and foreign . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 201A . . . . . . . . . . . . . III–2

Statements in learned treatises . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(18) . . . . . . . . . . . III–41

Juvenile adjudications, impeachment by . . . . . . . . . . . . . . . . Mil. R. Evid. 609(d) . . . . . . . . . . . . III–36

Knowledge

Evidence of other crimes, wrongs, or acts as proof of Mil. R. Evid. 404(b) . . . . . . . . . . . . III–19

Requirement for personal knowledge in order to testify Mil. R. Evid. 602 . . . . . . . . . . . . . . . III–35

Law, domestic, judicial notice of . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 201A(a) . . . . . . . . . . . III–2

Law enforcement personnel, records and reports of

observations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(8)(B) . . . . . . . . . . III–41

Lawyer-client privilege . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 502 . . . . . . . . . . . . . . . III–23

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Subject Ref. Page

Lawyer, defined for purposes of privilege . . . . . . . . . . . . . . Mil. R. Evid. 502(b)(2) . . . . . . . . . . III–23

Learned treatises . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(18) . . . . . . . . . . . III–41

Liability insurance, admissibility . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 411 . . . . . . . . . . . . . . . III–20

Limited admissibility of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 105 . . . . . . . . . . . . . . . III–2

Lineups and other identification processes

Right to counsel at . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 321(b)(2) . . . . . . . . . . III–17

When unlawful . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 321(b) . . . . . . . . . . . . III–17

Market reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(17) . . . . . . . . . . . III–41

Marriage certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(12) . . . . . . . . . . . III–41

Medical diagnosis or treatment, statement for purposes of Mil. R. Evid. 803(4) . . . . . . . . . . . . III–40

Members

As witnesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 606 . . . . . . . . . . . . . . . III–35

Hearings out of presence of . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 103(c); 104(c) . . . . . . III–1; III–2

Mental examination of accused, privilege concerning.

See Self-incrimination.

Military judge

As witness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 605 . . . . . . . . . . . . . . . III–35

Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 101(c) . . . . . . . . . . . . . III–1

Military records, authentication by attesting certificates . . . Mil. R. Evid. 902(4 a) . . . . . . . . . . III–44

Minister, privileged communication to . . . . . . . . . . . . . . . . . Mil. R. Evid. 503 . . . . . . . . . . . . . . . III–24

Misconduct, acts of, admissibility . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 404(b) . . . . . . . . . . . . III–19

Mistake, admissibility of evidence of other crimes,

wrongs, or acts to prove absence of . . . . . . . . . . . . . . . . Mil. R. Evid. 404(b) . . . . . . . . . . . . III–19

Mistrial, as remedy for

Failing to produce a writing used to refresh memory Mil. R. Evid. 612 . . . . . . . . . . . . . . . III–37

Sustaining a claim of governmental privilege . . . . . . . Mil. R. Evid. 505(i)(4)(E)(ii) . . . . . . III–29

Motive, evidence of other crimes, wrongs,

or acts as proof of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 404(b) . . . . . . . . . . . . III–19

Negligence, proof of subsequent remedial measures . . . . . . Mil. R. Evid. 407 . . . . . . . . . . . . . . . III–20

Negotiations on plea, admissibility . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 410 . . . . . . . . . . . . . . . III–20

Newly discovered, as grounds for new trial . . . . . . . . . . . . R.C.M. 1210(f) . . . . . . . . . . . . . . . . . II–175

Nonconsensual sexual offenses, defined . . . . . . . . . . . . . . . . Mil. R. Evid. 412(e) . . . . . . . . . . . . . III–21

Oath or affirmation

Interpreters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 604 . . . . . . . . . . . . . . . III–35

Witnesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 603 . . . . . . . . . . . . . . . III–35

Objections

Confessions and admissions, concerning . . . . . . . . . . . . Mil. R. Evid. 304(a); 304(d)(2) . . . III–4; III–5

Eyewitness identification, concerning . . . . . . . . . . . . . . Mil. R. Evid. 321(a)(1); 321(d) . . . III–17; III–18

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 103(a)(1) . . . . . . . . . . III–1

Member as a witness . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 606(a) . . . . . . . . . . . . . III–35

Prior identification of the accused . . . . . . . . . . . . . . . . Mil. R. Evid. 321(c)(2) . . . . . . . . . . III–17

Search and seizure, concerning . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 311(a)(1); 311(d)(2) . III–8; III–9

Witnesses, calling by military judge or members . . . . Mil. R. Evid. 614(c) . . . . . . . . . . . . . III–38

Offer of proof

Record of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 103(b) . . . . . . . . . . . . III–1

Requirements of valid . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 103(a)(2) . . . . . . . . . . III–1

Ruling by military judge . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 103(b) . . . . . . . . . . . . III–1

Offer to compromise . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 408 . . . . . . . . . . . . . . . III–20

Official records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(8) . . . . . . . . . . . . III–41

Opinion

Bases of expert opinion . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 703 . . . . . . . . . . . . . . . III–39

Character, as method for proving . . . . . . . . . . . . . . . . . Mil. R. Evid. 405(a) . . . . . . . . . . . . . III–19

Disclosure of facts or data underlying opinion . . . . . . Mil. R. Evid. 705 . . . . . . . . . . . . . . . III–39

Expert testimony . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 702 . . . . . . . . . . . . . . . III–38

Lay witness testimony . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 701 . . . . . . . . . . . . . . . III–38

Rehabilitative potential of accused . . . . . . . . . . . . . . . . R.C.M. 1001(b)(5) . . . . . . . . . . . . . . . II–121

Sexual behavior of alleged victim . . . . . . . . . . . . . . . . . Mil. R. Evid. 412(a) . . . . . . . . . . . . . III–20

Ultimate issue included in . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 704 . . . . . . . . . . . . . . . III–39

Opportunity, evidence of other crimes, wrongs, or

acts as proof of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 404(b) . . . . . . . . . . . . III–19

Order of interrogation and presentation . . . . . . . . . . . . . . . . Mil. R. Evid. 611 . . . . . . . . . . . . . . . III–37

Original

Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 1001(3) . . . . . . . . . . . III–45

Requirement to use . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 1002 . . . . . . . . . . . . . . III–45

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INDEX MCM, 2008
Subject Ref. Page

When original not required. See Contents of writings,

recordings, and photographs, this heading.

Other crimes, wrongs, or acts, evidence of . . . . . . . . . . . . . Mil. R. Evid. 404(b) . . . . . . . . . . . . III–19

Ownership, proof by subsequent remedial measures . . . . . . Mil. R. Evid. 407 . . . . . . . . . . . . . . . III–20

Pardon, effect on impeachment by conviction . . . . . . . . . . . Mil. R. Evid. 609(c) . . . . . . . . . . . . . III–36

Past sexual behavior

Admissibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 412(a); 412(b) . . . . . . III–20; III–21

Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 412(d) . . . . . . . . . . . . III–21

Degrading questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 303 . . . . . . . . . . . . . . . III–4

Evidence of similar sexual crimes . . . . . . . . . . . . . . . . Mil. R. Evid 413; 414 . . . . . . . . . . . III–21; III–22

Procedural requirements for admission . . . . . . . . . . . . . Mil. R. Evid. 412(c) . . . . . . . . . . . . . III–21

Payment of medical and similar expenses . . . . . . . . . . . . . . Mil. R. Evid. 409 . . . . . . . . . . . . . . . III–20

Personal knowledge, requirement for in order to testify . . Mil. R. Evid. 602 . . . . . . . . . . . . . . . III–35

Photographs, defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 1001(2) . . . . . . . . . . . III–45

Plain error . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 103(d) . . . . . . . . . . . . III–1

Plan or design of accused, evidence of other crimes,

wrongs, or acts as proof of . . . . . . . . . . . . . . . . . . . . . . . .

Mil. R. Evid. 404(b) . . . . . . . . . . . . III–19

Pleas, plea discussions and related statements, admissibility Mil. R. Evid. 410 . . . . . . . . . . . . . . . III–20

Political vote, privilege concerning . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 508 . . . . . . . . . . . . . . . III–33

Prejudice, unfair . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 403 . . . . . . . . . . . . . . . III–19

Preliminary questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 104 . . . . . . . . . . . . . . . III–1

Preparation, evidence of other crimes, wrongs, or

acts as proof of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Mil. R. Evid. 404(b) . . . . . . . . . . . . III–19

Presentation on merits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 913(c) . . . . . . . . . . . . . . . . . . II–106

Present sense impression . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(1) . . . . . . . . . . . . III–40

Previous convictions

Impeachment by evidence of . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 609 . . . . . . . . . . . . . . . III–36

Judgment or evidence of . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(22) . . . . . . . . . . . III–42

Priest, privileged communications to . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 503 . . . . . . . . . . . . . . . III–24

Prior statements of witnesses

Impeachment by evidence of . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 613 . . . . . . . . . . . . . . . III–38

Prior consistent statement as non-hearsay . . . . . . . . . . Mil. R. Evid. 801(d)(1) . . . . . . . . . . III–39

Prior inconsistent statement as non-hearsay . . . . . . . . . Mil. R. Evid. 801(d)(1) . . . . . . . . . . III–39

Prior statement of identification as non-hearsay . . . . . Mil. R. Evid. 801(d)(1) . . . . . . . . . . III–39

Privileges

Applicability of rules concerning . . . . . . . . . . . . . . . . . . Mil. R. Evid. 1101(b) . . . . . . . . . . . III–46

Classified information . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 505 . . . . . . . . . . . . . . . III–25

Comments upon or inference from claim of, at trial

Limiting instruction . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 512(c) . . . . . . . . . . . . . III–33

Prohibited . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 512(a) . . . . . . . . . . . . . III–33

Communication of privileged information by electronic

means . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 511(b) . . . . . . . . . . . . III–33

Communication to clergy . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 503 . . . . . . . . . . . . . . . III–24

Compelled or unintentional disclosure of information Mil. R. Evid. 511(a) . . . . . . . . . . . . . III–33

Deliberations of courts and juries . . . . . . . . . . . . . . . . . Mil. R. Evid. 509 . . . . . . . . . . . . . . . III–33

Exceptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 606 . . . . . . . . . . . . . . . III–35

General rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 501 . . . . . . . . . . . . . . . III–23

Government information . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 506 . . . . . . . . . . . . . . . III–29

Husband-wife . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 504 . . . . . . . . . . . . . . . III–24

Identify of informant . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 507 . . . . . . . . . . . . . . . III–32

Lawyer-client . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 502 . . . . . . . . . . . . . . . III–23

Medical officer or civilian physician, no privilege . . . Mil. R. Evid. 501(d) . . . . . . . . . . . . III–23

Mental examination of accused. See Self-incrimination.

Political vote . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 508 . . . . . . . . . . . . . . . III–33

Preliminary determinations concerning . . . . . . . . . . . . . Mil. R. Evid. 104(a) . . . . . . . . . . . . . III–1

Psychotherapist-patient privilege . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 513 . . . . . . . . . . . . . . . III–33

Waiver by voluntary disclosure . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 510 . . . . . . . . . . . . . . . III–33

Probable cause. See Search and seizure.

Production of

Motion for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(b)(4); 906(b)(7) . . . . . . II–91; II–94

Procedure for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 703(f)(4) . . . . . . . . . . . . . . . . II–66

Right to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 703(f) . . . . . . . . . . . . . . . . . . II–65

Property

Records of documents affecting interest in . . . . . . . . . Mil. R. Evid. 803(14) . . . . . . . . . . . III–41

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Subject Ref. Page

Statements in documents affecting interest in . . . . . . . Mil. R. Evid. 803(15) . . . . . . . . . . . III–41

Public records and reports . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(8) . . . . . . . . . . . . III–41

Qualifications to be a witness, determination by military

judge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 104(a) . . . . . . . . . . . . . III–1

Rabbi, privileged communications to . . . . . . . . . . . . . . . . . . Mil. R. Evid. 503 . . . . . . . . . . . . . . . III–24

Reasonable doubt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 918(c) . . . . . . . . . . . . . . . . . . II–114

Rebuttal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1001(d) . . . . . . . . . . . . . . . . . II–122

Recollection recorded . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(5) . . . . . . . . . . . . III–40

Recordings, defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 1001(1) . . . . . . . . . . . III–45

Refreshing memory, by use of writings . . . . . . . . . . . . . . . . Mil. R. Evid. 612 . . . . . . . . . . . . . . . III–37

Regularly conducted activity, records of . . . . . . . . . . . . . . . Mil. R. Evid. 803(6) . . . . . . . . . . . . III–40

Relaxation of rules, in sentencing proceedings . . . . . . . . . . Mil. R. Evid. 1101(c) . . . . . . . . . . . . III–46

Relevancy

Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 401 . . . . . . . . . . . . . . . III–18

Effect on admissibility . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 402 . . . . . . . . . . . . . . . III–19

Exclusion of relevant evidence . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 403 . . . . . . . . . . . . . . . III–19

When conditioned on fact . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 104(b) . . . . . . . . . . . . III–1

Religious beliefs or opinions . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 610 . . . . . . . . . . . . . . . III–37

Religious organizations, record of . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(11) . . . . . . . . . . . III–41

Remainder of, or related, writings or recorded statements Mil. R. Evid. 106 . . . . . . . . . . . . . . . III–2

Reputation

Character . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(21) . . . . . . . . . . . III–42

Community, defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 405(d) . . . . . . . . . . . . III–19

Concerning boundaries or general history . . . . . . . . . . Mil. R. Evid. 803(20) . . . . . . . . . . . III–42

Concerning personal or family history . . . . . . . . . . . . . Mil. R. Evid. 803(19) . . . . . . . . . . . III–42

Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 405(d) . . . . . . . . . . . . III–19

Routine practice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 406 . . . . . . . . . . . . . . . III–19

Rule of completeness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 106 . . . . . . . . . . . . . . . III–2

Rules of Evidence, Military

Amendments to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 1102 . . . . . . . . . . . . . . III–47

Analysis of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Appendix 22 . . . . . . . . . . . . . . . . . . . A22–1

Applicability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 101(a); 1101(a) . . . . . III–1; III–46

Citation to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 1103 . . . . . . . . . . . . . . III–47

Inapplicability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 1101(d) . . . . . . . . . . . III–47

Purpose and construction . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 102 . . . . . . . . . . . . . . . III–1

Relaxation during sentencing proceedings . . . . . . . . . . Mil. R. Evid. 1101(c) . . . . . . . . . . . . III–46

Ruling admitting or excluding evidence

Effect of erroneous ruling . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 103(a) . . . . . . . . . . . . . III–1

Plain error . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 103(d) . . . . . . . . . . . . III–1

Search. See Search and seizure.

Self-authentication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 902 . . . . . . . . . . . . . . . III–44

Self-incrimination. See Self-incrimination.

Sentencing proceedings

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1001 . . . . . . . . . . . . . . . . . . . II–120

Relaxation of rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 1101(c) . . . . . . . . . . . . III–46

Sexual offenses

Nonconsensual . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 412 . . . . . . . . . . . . . . . III–20

Evidence of similar sexual crimes . . . . . . . . . . . . . . . . Mil. R. Evid. 413; 414 . . . . . . . . . . III–21; III–22

Specific instances of conduct, to prove character . . . . . . . . Mil. R. Evid. 405(b) . . . . . . . . . . . . III–19

Spontaneous exclamations . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(2) . . . . . . . . . . . . III–40

Stipulations

Confessional . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 705(b)(1) . . . . . . . . . . . . . . . . II–68

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 811 . . . . . . . . . . . . . . . . . . . . II–84

Striking testimony

After witness asserts self-incrimination privilege . . . . . Mil. R. Evid. 301(f)(2) . . . . . . . . . . III–3

Writing to refresh memory, failure to produce . . . . . . Mil. R. Evid. 612 . . . . . . . . . . . . . . . III–37

Subscribing witness’ testimony, unnecessary for

authentication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 903 . . . . . . . . . . . . . . . III–45

Subsequent remedial measures . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 407 . . . . . . . . . . . . . . . III–20

Summary court-martial, applicability of rules . . . . . . . . . . . Mil. R. Evid. 101(a);

R.C.M. 1304(b)(2)(E) . . . . . . . . . . . . III–1; II–180

Telephonic transmissions of privileged information, effect of Mil. R. Evid. 511(b) . . . . . . . . . . . . III–33

Testimony

Failure to testify by accused, instruction concerning . Mil. R. Evid. 301(g) . . . . . . . . . . . . III–4

Index 27

INDEX MCM, 2008
Subject Ref. Page

Preliminary matter, by accused . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 104(d) . . . . . . . . . . . . III–2

Trial counsel, duty to disclose . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(a) . . . . . . . . . . . . . . . . . . II–56

Unavailability of declarant, defined . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 804(a) . . . . . . . . . . . . . III–42

Victim, character of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 404(a)(2) . . . . . . . . . . III–19

Vital statistics, records of . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(9) . . . . . . . . . . . . III–41

Vote, political, privilege concerning . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 508 . . . . . . . . . . . . . . . III–33

Waiver

Failure to object . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 103(a)(1) . . . . . . . . . . III–1

Guilty plea . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 304(d)(5); 311(i);

321(g); R.C.M. 910(j) . . . . . . . . . . III–5; III–10; III–18;

II–102

Privileges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 510 . . . . . . . . . . . . . . . II–1

Waste of time, as grounds for exclusion of relevant evidence Mil. R. Evid. 403 . . . . . . . . . . . . . . . III–19

Witnesses

Advice concerning self-incrimination . . . . . . . . . . . . . . . Mil. R. Evid. 301(b)(2) . . . . . . . . . . III–3

Availability determination . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 104(a) . . . . . . . . . . . . . III–1

Calling and interrogation by the court-martial . . . . . . . Mil. R. Evid. 614 . . . . . . . . . . . . . . . III–38

Children . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 804; R.C.M. 914A; Mil. R.

Evid. 611(d) . . . . . . . . . . . . . . . . . . . .

II–78; II–107; III–34

Competency, general rule . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 601 . . . . . . . . . . . . . . . III–35

Court members as witnesses . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 606 . . . . . . . . . . . . . . . III–35

Exclusion from courtroom . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 615 . . . . . . . . . . . . . . . III–38

Impeachment of. See Impeachment, this heading.

Military judge as a witness . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 605 . . . . . . . . . . . . . . . III–35

Mode and order of interrogation and presentation . . . Mil. R. Evid. 611 . . . . . . . . . . . . . . . III–37

Oath or affirmation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 603 . . . . . . . . . . . . . . . III–35

Personal knowledge, requirement for . . . . . . . . . . . . . . Mil. R. Evid. 602 . . . . . . . . . . . . . . . III–35

Production of

Procedures for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 703(e) . . . . . . . . . . . . . . . . . . II–63

Right to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 703(b) . . . . . . . . . . . . . . . . . . II–62

Qualification as . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 104(a) . . . . . . . . . . . . . III–1

Writings and recordings

Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 1001(1) . . . . . . . . . . . III–45

Refresh memory, to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 612 . . . . . . . . . . . . . . . III–37

Remainder of or related writings . . . . . . . . . . . . . . . . . Mil. R. Evid. 106 . . . . . . . . . . . . . . . III–2

Requirement of original to prove . . . . . . . . . . . . . . . . . Mil. R. Evid. 1002 . . . . . . . . . . . . . . III–45

Examination

Members

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 912(d) . . . . . . . . . . . . . . . . . . II–103

Questionnaire, use of . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 912(a) . . . . . . . . . . . . . . . . . . II–102

Record of trial before authentication . . . . . . . . . . . . . . . . . . R.C.M. 1103(i) . . . . . . . . . . . . . . . . . II–142

Witnesses

Deposition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 702(g)(1)(B); 702(g)(2)(D) . II–61

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 614 . . . . . . . . . . . . . . . III–38

Pretrial investigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 405(h)(1) . . . . . . . . . . . . . . . . II–38

Remote live testimony of a child . . . . . . . . . . . . . . . . . R.C.M. 804; R.C.M. 914A;

Mil. R. Evid. 611(d) . . . . . . . . . . . . II–79; II–107; III–37

Exceptions and substitutions

Findings by . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 918(a) . . . . . . . . . . . . . . . . . . II–114

Lesser included offenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 3b(3) . . . . . . . . . . . . . . . . . IV–3

Plea, entry by . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 910(a) . . . . . . . . . . . . . . . . . . II–99

Execution of sentence

Action, statement as to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1107(f)(4)(B) . . . . . . . . . . . . II–154

Deferment, effect on . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1101(c)(6); 1101(c)(7) . . . . . II–137

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1113 . . . . . . . . . . . . . . . . . . . II–162

Punishment which may be ordered executed in initial

action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1113(b) . . . . . . . . . . . . . . . . . II–163

Punishment which may not be ordered executed in initial

action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1113(c) . . . . . . . . . . . . . . . . . II–163

Suspension. See Suspension of sentence.

Exhibits

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 913(c) . . . . . . . . . . . . . . . . . . II–106

Members, use during deliberations . . . . . . . . . . . . . . . . . . . . R.C.M. 921(b) . . . . . . . . . . . . . . . . . . II–117

Sealed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1103A . . . . . . . . . . . . . . . . . . II–143

Index 28

MCM, 2008 INDEX
Subject Ref. Page

Expert witnesses

See also Evidence, Experts.

Employment of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 703(d) . . . . . . . . . . . . . . . . . . II–63

Opinion testimony by . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 702; 703; 704; 705 . III–39

Explosive, defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 103(11) . . . . . . . . . . . . . . . . . II–1

Exporting controlled substances . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 37 . . . . . . . . . . . . . . . . . . . . IV–54

Exposure, indecent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 88 . . . . . . . . . . . . . . . . . . . . IV–129

Extenuation, matters in

Investigation, pretrial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 405(f)(11); 405(h)(1)(C) . . . II–35; II–38

Presentencing procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R . C . M . 1 0 0 1 ( c ) ( 1 ) ( A ) ;

1001(c)(2)(A);

1001(c)(3) . . . . . . . . . . . . . . . . . . . . . .

II–122

Extortion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 53 . . . . . . . . . . . . . . . . . . . . IV–98

Extra duty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Para. 5b(2)(A)(v); 5b(2)(B)(v);

V. Para. 5c(6); 6b(4) . . . . . . . . . . . . V–5; V–6; V–8

Extraordinary relief, petition for

Appellate counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1202(b) . . . . . . . . . . . . . . . . . II–168

Reviewed by

Court of Military Appeals . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1204(a) . . . . . . . . . . . . . . . . . II–171

Court of Military Review . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1203(b) . . . . . . . . . . . . . . . . . II–169

Speedy trial, effect on . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 707(b)(3)(C) . . . . . . . . . . . . . II–71

Eyewitness identification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 321 . . . . . . . . . . . . . . . III–17

Failure to

Afford all practical relief and assistance in combat . . . . . . IV. Para. 23 . . . . . . . . . . . . . . . . . . . . IV–33

Enforce or comply with code . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 22 . . . . . . . . . . . . . . . . . . . . IV–32

Engage or do utmost to encounter enemy . . . . . . . . . . . . . . IV. Para. 23 . . . . . . . . . . . . . . . . . . . . IV–33

Enter plea . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 910(b) . . . . . . . . . . . . . . . . . . II–100

Fulfill terms of pretrial agreement . . . . . . . . . . . . . . . . . . . . R.C.M. 705(d)(4) . . . . . . . . . . . . . . . . II–69

Maintain funds, dishonorable . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 68 . . . . . . . . . . . . . . . . . . . . IV–118

Obey orders or regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 16 . . . . . . . . . . . . . . . . . . . . IV–23

Pay debts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 71 . . . . . . . . . . . . . . . . . . . . IV–121

Repair . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 10 . . . . . . . . . . . . . . . . . . . . IV–12

Report, prevent, or suppress mutiny . . . . . . . . . . . . . . . . . . . IV. Para. 18 . . . . . . . . . . . . . . . . . . . . IV–26

Secure or report captured or abandoned property . . . . . . . . IV. Para. 27 . . . . . . . . . . . . . . . . . . . . IV–39

False

Alarm, before enemy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 23 . . . . . . . . . . . . . . . . . . . . IV–33

Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 58 . . . . . . . . . . . . . . . . . . . . IV–107

Discharge certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 77 . . . . . . . . . . . . . . . . . . . . IV–124

Identification card . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 77 . . . . . . . . . . . . . . . . . . . . IV–124

Official statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 31 . . . . . . . . . . . . . . . . . . . . IV–46

Pass . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 77 . . . . . . . . . . . . . . . . . . . . IV–124

Permit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 77 . . . . . . . . . . . . . . . . . . . . IV–124

Pretenses

Larceny by . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 46c(1)(a) . . . . . . . . . . . . . . IV–85

Obtaining services under . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 78 . . . . . . . . . . . . . . . . . . . . IV–125

Receipt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 58 . . . . . . . . . . . . . . . . . . . . IV–107

See also Fraud,against United States.

Statement, during guilty plea inquiry . . . . . . . . . . . . . . . . . . R.C.M. 910(c)(5) . . . . . . . . . . . . . . . . II–100

Statements in support of probable cause . . . . . . . . . . . . . . . Mil. R. Evid. 311(g)(2) . . . . . . . . . . III–10

Swearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 79 . . . . . . . . . . . . . . . . . . . . IV–125

Writing See False official statement; Forgery;

Fraud against United States.

Federal courts

Former trial in, effect of

Final determination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(g) . . . . . . . . . . . . . . . . . . II–92

Former jeopardy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 907(b)(2)(C) . . . . . . . . . . . . . II–96

Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 201(d) . . . . . . . . . . . . . . . . . . II–10

Members of bar, counsel in courts-martial . . . . . . . . . R.C.M. 502(d)(3)(A) . . . . . . . . . . . . . II–43

Rules of evidence in, application to courts-martial . . Mil. R. Evid. 101(b) . . . . . . . . . . . . III–1

Federal Rules of Evidence, amendments . . . . . . . . . . . . . . . . . . Mil. R. Evid. 1102 . . . . . . . . . . . . . . III–47

Finality of courts-martial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1209 . . . . . . . . . . . . . . . . . . . II–174

Financial inability, as a defense . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(i) . . . . . . . . . . . . . . . . . . II–111

Findings

Action by members after reaching . . . . . . . . . . . . . . . . . . . . R.C.M. 921(d) . . . . . . . . . . . . . . . . . . II–118

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Subject Ref. Page

Announcement of

Effect on reconsideration . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 924(a) . . . . . . . . . . . . . . . . . . II–119

Erroneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 922(d) . . . . . . . . . . . . . . . . . . II–119

Examination of worksheets by military judge, effect on R.C.M. 921(d) . . . . . . . . . . . . . . . . . . II–118

Forms of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Appendix 10 . . . . . . . . . . . . . . . . . . . A10–1

Guilty plea, based on . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 910(g) . . . . . . . . . . . . . . . . . . II–101

Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 922(b) . . . . . . . . . . . . . . . . . . II–118

Military judge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 922(c) . . . . . . . . . . . . . . . . . . II–119

Basis for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 918(c) . . . . . . . . . . . . . . . . . . II–114

Charge, as to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 918(a)(2) . . . . . . . . . . . . . . . . II–114

Contempt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 809(c) . . . . . . . . . . . . . . . . . . II–82

Convening authority, action on . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1107(c); 1107(f)(3) . . . . . . . II–151; II–153

Deliberations and voting on . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 921 . . . . . . . . . . . . . . . . . . . . II–117

Exceptions and substitutions . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 918(a)(1) . . . . . . . . . . . . . . . . II–114

General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 918(a) . . . . . . . . . . . . . . . . . . II–114

Guilty

Convening authority, action on . . . . . . . . . . . . . . . . . . . R.C.M. 1107(c); 1107(f)(3) . . . . . . . II–151; II–153

Reconsideration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 924(a); 924(c) . . . . . . . . . . . II–119

Standard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 918(c) . . . . . . . . . . . . . . . . . . II–114

Vote resulting in . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 921(c)(2) . . . . . . . . . . . . . . . . II–117

Guilty plea, based on . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 910(g) . . . . . . . . . . . . . . . . . . II–101

Impeachment of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 923 . . . . . . . . . . . . . . . . . . . . II–119

Instructions on . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 920 . . . . . . . . . . . . . . . . . . . . II–115

Lesser included offense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 918(a) . . . . . . . . . . . . . . . . . . II–114

Not guilty

Convening authority, action on . . . . . . . . . . . . . . . . . . . R.C.M. 1107(b)(4) . . . . . . . . . . . . . . . II–150

Motion for finding of . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 917 . . . . . . . . . . . . . . . . . . . . II–113

Reconsideration of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 924(b) . . . . . . . . . . . . . . . . . . II–119

Vote resulting in . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 921(c)(3) . . . . . . . . . . . . . . . . II–117

Not guilty, lack of mental responsibility . . . . . . . . . . . . . . . R.C.M. 921(c)(4) . . . . . . . . . . . . . . . . II–117

Post-trial hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1102A . . . . . . . . . . . . . . . . . . II–139

Reasonable doubt standard . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 918(c) . . . . . . . . . . . . . . . . . . II–114

Reconsideration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 924 . . . . . . . . . . . . . . . . . . . . II–119

Special findings. See Special findings.

Specifications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 918(a)(1) . . . . . . . . . . . . . . . . II–114

Voting on . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 921(c) . . . . . . . . . . . . . . . . . . II–117

Fine

Contempt, punishment for . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 809(a); 809(e) . . . . . . . . . . . II–82; II–83

Courts-martial, punishment in . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1003(b)(3) . . . . . . . . . . . . . . . II–124

Fingerprints

Authentication by comparison . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 901(b)(3) . . . . . . . . . . III–44

Fingerprint cards admissible as hearsay exception . . . . . . . Mil. R. Evid. 803(6); 803(8) . . . . . . III–40; III–41

Firearm

Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 103(12) . . . . . . . . . . . . . . . . . II–1

Discharge

Negligent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 80 . . . . . . . . . . . . . . . . . . . . IV–126

Willful . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 81 . . . . . . . . . . . . . . . . . . . . IV–126

Maximum punishment, affecting

Aggravated assault . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 54e(8)(a); 54e(9)(a) . . . . . IV–102

Larceny, wrongful appropriation . . . . . . . . . . . . . . . . . . IV. Para. 46e(1)(c); 46e(1)(d);

46e(2)(c) . . . . . . . . . . . . . . . . . . . . . . . IV–88; IV–89

Military property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 32e(1)(b); 32e(3)(b) . . . . . IV–48; IV–49

Robbery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 47e(1) . . . . . . . . . . . . . . . . IV–90

Fitness reports, members, military judge, counsel . . . . . . . . . . . R.C.M. 104(b) . . . . . . . . . . . . . . . . . . II–5

Flag, striking the . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 24 . . . . . . . . . . . . . . . . . . . . IV–36

Fleeing scene of accident . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 82 . . . . . . . . . . . . . . . . . . . . IV–126

Forcing a safeguard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 26 . . . . . . . . . . . . . . . . . . . . IV–38

Foreign law

Judicial notice of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 201A(b) . . . . . . . . . . . III–2

Occupied territory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 201(f)(1)(B)(i)(b) . . . . . . . . . II–11

Foreign nation

Interrogation by officials of . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 305(h)(2) . . . . . . . . . . III–8

Military jurisdiction, in friendly . . . . . . . . . . . . . . . . . . . . . . R.C.M. 201(d) . . . . . . . . . . . . . . . . . . II–10

Military jurisdiction, in belligerent . . . . . . . . . . . . . . . . . . . . I. Para. 2(a)(3); R.C.M. 201(f)(1)(B) I–1; II–11

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Search by officials of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 311(c)(3) . . . . . . . . . . III–9

Foreign records, authentication of . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 902(3) . . . . . . . . . . . . III–44

Forfeiture of pay and allowances

General courts-martial, power to adjudge . . . . . . . . . . . . . . . R.C.M. 201(f)(1)(A)(ii) . . . . . . . . . . . II–11

Nonjudicial punishment

Reserve Component Personnel . . . . . . . . . . . . . . . . . . . . V. Para. 5e . . . . . . . . . . . . . . . . . . . . V–6

Enlisted member, imposed upon . . . . . . . . . . . . . . . . . . V. Para. 5b(2)(A)(iii); 5b(2)(B)(iii) . V–5; V–5

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Para. 5c(8) . . . . . . . . . . . . . . . . . . V–6

Officer, imposed upon . . . . . . . . . . . . . . . . . . . . . . . . . . V. Para. 5b(1)(B)(ii) . . . . . . . . . . . . . V–4

Sentence to

Execution of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1113(b) . . . . . . . . . . . . . . . . . II–163

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1003(b)(2) . . . . . . . . . . . . . . . II–124

Forgery

Fraud against United States, in connection with . . . . . . . . . IV. Para. 58 . . . . . . . . . . . . . . . . . . . . IV–107

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 48 . . . . . . . . . . . . . . . . . . . . IV–90

Former jeopardy

Mistrial, effect of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 915(c) . . . . . . . . . . . . . . . . . . II–108

Motion to dismiss for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 907(b)(2)(C) . . . . . . . . . . . . . II–96

Nonjudicial punishment as . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Para. 1f(1); 1f(5) . . . . . . . . . . . . . V–1; V–2

Withdrawal of charges, effect of . . . . . . . . . . . . . . . . . . . . . . R.C.M. 604(b) . . . . . . . . . . . . . . . . . . II–54

Former punishment

Bar to trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 907(b)(2)(D)(iv) . . . . . . . . . . II–96

Effect of nonjudicial punishment . . . . . . . . . . . . . . . . . . . . . . V. Para. 1f(1); 1f(5) . . . . . . . . . . . . . V–1; V–2

Former testimony, admissibility of Mil. R. Evid. 804(b)(1) . . . . . . . . . . III–42

Forwarding charges, generally . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 401(a) . . . . . . . . . . . . . . . . . . II–31

See also Charges and specifications.

Fraternization, as offense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 83 . . . . . . . . . . . . . . . . . . . . IV–127

Fraud

See also Check; Forgery; Larceny.

Against United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 58 . . . . . . . . . . . . . . . . . . . . IV–107

Fraudulent enlistment, appointment, or separation . . . . . . . . IV. Para. 7 . . . . . . . . . . . . . . . . . . . . . IV–8

Frisk . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 314(f)(2) . . . . . . . . . . III–13

Gambling with subordinate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 84 . . . . . . . . . . . . . . . . . . . . IV–128

General article (Art. 134, UCMJ) . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 60 . . . . . . . . . . . . . . . . . . . . IV–111

General court-martial

See also specific topics.

Composition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 501(a)(1) . . . . . . . . . . . . . . . . II–42

Convening authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 407; 504(b)(1) . . . . . . . . . . . II–40; II–48

See also Convening authority.

Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(d) . . . . . . . . . . . . . . . . . . II–43

Jurisdiction of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 201(f)(1) . . . . . . . . . . . . . . . . II–11

Prerequisites

Pretrial investigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 405(a) . . . . . . . . . . . . . . . . . . II–34

Staff judge advocate advice . . . . . . . . . . . . . . . . . . . . . . R.C.M. 406(a) . . . . . . . . . . . . . . . . . . II–40

Procedural guide . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Appendix 8 . . . . . . . . . . . . . . . . . . . . A8–1

Record of trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1103(b) . . . . . . . . . . . . . . . . . II–139

Referral of charges to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 601(e) . . . . . . . . . . . . . . . . . . II–52

General order, failure to obey . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 16 . . . . . . . . . . . . . . . . . . . . IV–23

Government

Appeal by . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 908 . . . . . . . . . . . . . . . . . . . . II–97

Fraud against . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 58 . . . . . . . . . . . . . . . . . . . . IV–107

Government information privilege . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 506 . . . . . . . . . . . . . . . III–29

Government officials, contempt toward . . . . . . . . . . . . . . . . . . IV. Para. 12 . . . . . . . . . . . . . . . . . . . . IV–16

Graft . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 66 . . . . . . . . . . . . . . . . . . . . IV–116

Grievous bodily harm, defined . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 54c(4)(a)(iii) . . . . . . . . . . . IV–101

Guard

See also Sentinel or lookout.

Abandoning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 10b(4) . . . . . . . . . . . . . . . . IV–13

Leaving place of duty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 38 . . . . . . . . . . . . . . . . . . . . IV–58

Report, as hearsay exception . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(8) . . . . . . . . . . . . III–41

Guide for general and special courts-martial . . . . . . . . . . . . . Appendix 8 . . . . . . . . . . . . . . . . . . . . A8–1

Guilty

Findings. See Findings.

Pleas. See Pleas.

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Habit, evidence of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 406 . . . . . . . . . . . . . . . III–19

Handwriting, authentication of . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 901(b)(2); 901(b)(3) . III–43; III–44

Hard labor without confinement

Execution of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1113(b) . . . . . . . . . . . . . . . . . II–163

General court-martial, power to adjudge . . . . . . . . . . . R.C.M. 201(f)(1)(A)(ii) . . . . . . . . . . . II–11

Sentence of court-martial . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1003(b)(7) . . . . . . . . . . . . . . . II–125

Special court-martial, power to adjudge . . . . . . . . . . . . R.C.M. 201(f)(2)(B)(i) . . . . . . . . . . . II–12

Summary court-martial, power to adjudge . . . . . . . . . . R.C.M. 1301(d)(1) . . . . . . . . . . . . . . . II–177

Hazarding a vessel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 34 . . . . . . . . . . . . . . . . . . . . IV–50

Hazardous duty, absence with intent to avoid . . . . . . . . . . . . IV. Para. 9b(2) . . . . . . . . . . . . . . . . . IV–10

Hearsay. See Evidence, Hearsay.

Heroin, offenses involving . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 37 . . . . . . . . . . . . . . . . . . . . IV–54

Homicide

Defense of another . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(e)(5) . . . . . . . . . . . . . . . . II–110

Dying declarations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 804(b)(2) . . . . . . . . . . III–42

Manslaughter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 44 . . . . . . . . . . . . . . . . . . . . IV–64

Murder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 43 . . . . . . . . . . . . . . . . . . . . IV–62

Negligent homicide . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 85 . . . . . . . . . . . . . . . . . . . . IV–128

Self-defense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(e) . . . . . . . . . . . . . . . . . . II–109

Unborn child, death of injury of . . . . . . . . . . . . . . . . . . . . . IV. Para. 44a . . . . . . . . . . . . . . . . . . . IV–64

Homosexual, See Indecent acts;Sodomy.

Housebreaking

Assault with intent to commit . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 64 . . . . . . . . . . . . . . . . . . . . IV–115

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 56 . . . . . . . . . . . . . . . . . . . . IV–105

Husband-wife privilege . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 504 . . . . . . . . . . . . . . . III–24

Identification card, false . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 77 . . . . . . . . . . . . . . . . . . . . IV–124

Identification of accused

Acts preceding or following offense . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 404(b) . . . . . . . . . . . . III–19

By witness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 321 . . . . . . . . . . . . . . . III–17

Ignorance of fact, as defense . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(j) . . . . . . . . . . . . . . . . . . II–111

Ignorance of law, as defense . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(l)(1) . . . . . . . . . . . . . . . . II–112

Illness

Feigning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 40 . . . . . . . . . . . . . . . . . . . . IV–60

Good cause for excusal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 505(f) . . . . . . . . . . . . . . . . . . II–50

Immunity

Attorney General of United States, authorized by . . . . . . . R.C.M. 704(c)(1) . . . . . . . . . . . . . . . . II–66

Authority to grant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 704(c) . . . . . . . . . . . . . . . . . . II–66

Contents of grant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 704(d) . . . . . . . . . . . . . . . . . . II–67

Defense witness, request for . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 704(e) . . . . . . . . . . . . . . . . . . II–67

Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 301(c)(1);

R.C.M. 704(a); 704(b) . . . . . . . . . . . III–3; II–66; II–66

General court-martial convening authority . . . . . . . . . . . . . . R.C.M. 704(c) . . . . . . . . . . . . . . . . . . II–66

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 704 . . . . . . . . . . . . . . . . . . . . II–66

Military judge review of decision whether to grant . . . . . . R.C.M. 704(e) . . . . . . . . . . . . . . . . . . II–67

Motion to dismiss based on grant of, to accused . . . . . . . R.C.M. 907(b)(2)(D)(ii) . . . . . . . . . . II–96

Notification to accused of . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 301(c)(2) . . . . . . . . . . III–3

Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 704(d) . . . . . . . . . . . . . . . . . . II–67

Self-incrimination, effect on . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 301(c) . . . . . . . . . . . . . III–3

Types of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 704(a) . . . . . . . . . . . . . . . . . . II–66

Impeachment

See also Evidence, Impeachment.

Findings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 923 . . . . . . . . . . . . . . . . . . . . II–119

Sentence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1008 . . . . . . . . . . . . . . . . . . . II–134

Impersonating a commissioned officer, warrant officer,

noncommissioned officer, government agent or official . . . IV. Para. 86 . . . . . . . . . . . . . . . . . . . . IV–129

Importing controlled substances . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 37 . . . . . . . . . . . . . . . . . . . . IV–54

Inability, as defense

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(i) . . . . . . . . . . . . . . . . . . II–111

To authorized absence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 10c(6) . . . . . . . . . . . . . . . . IV–14

Incapacitation for duty through drunkenness . . . . . . . . . . . . . IV. Para. 76 . . . . . . . . . . . . . . . . . . . . IV–123

Included offenses. See Lesser included offenses.

Incrimination. See Self-incrimination.

Indecent

Acts

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With a child . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 87 . . . . . . . . . . . . . . . . . . . . IV–129

With another . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 45 . . . . . . . . . . . . . . . . . . . . IV–68

Assault . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 63 . . . . . . . . . . . . . . . . . . . . IV–115

Exposure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 45 . . . . . . . . . . . . . . . . . . . . IV–68

Language . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 89 . . . . . . . . . . . . . . . . . . . . IV–129

Liberties with a child . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 45 . . . . . . . . . . . . . . . . . . . . IV–68

Individual counsel, generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 506(b) . . . . . . . . . . . . . . . . . . II–50

See also Counsel; Defense counsel.

Influence

Command, unlawful

As offense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 22 . . . . . . . . . . . . . . . . . . . . IV–32

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 104 . . . . . . . . . . . . . . . . . . . . II–4

Impeachment of sentence . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1008 . . . . . . . . . . . . . . . . . . . II–134

Inquiry of members as to . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 606(b) . . . . . . . . . . . . III–35

Outside, on members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 923; 1008;

Mil. R. Evid. 606(b) . . . . . . . . . . . . II–119; II–134; III–35

Informant, identify of, privilege concerning . . . . . . . . . . . . . . . Mil. R. Evid. 507 . . . . . . . . . . . . . . . III–32

Injury

Grievous bodily harm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 54c(4)(a)(iii) . . . . . . . . . . . IV–101

Maiming . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 50 . . . . . . . . . . . . . . . . . . . . IV–95

Self-inflicted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 40 . . . . . . . . . . . . . . . . . . . . IV–60

Unborn child, death of injury of . . . . . . . . . . . . . . . . . . . . . IV Para. 44a . . . . . . . . . . . . . . . . . . . IV–64

Innocence, presumption of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 920(e)(5)(A) . . . . . . . . . . . . . II–116

Inquiry, court of. See Court of inquiry.

Inquiry, preliminary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 303 . . . . . . . . . . . . . . . . . . . . II–19

Insanity. See Mental capacity; Mental responsibility.

Inspect, defined for discovery purposes . . . . . . . . . . . . . . . . . . . . R.C.M. 701(h) . . . . . . . . . . . . . . . . . . II–59

Inspections

See also Search and seizure.

By court-martial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 913(c)(3) . . . . . . . . . . . . . . . . II–106

Health and welfare, evidence discovered in . . . . . . . . . . . . Mil. R. Evid. 313(b) . . . . . . . . . . . . III–12

Inspector general, privileged communications . . . . . . . . . . . . . . Mil. R. Evid. 506(c) . . . . . . . . . . . . . III–29

Instruction, extra military . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Para. 1g . . . . . . . . . . . . . . . . . . . . V–2

Instruction on military justice . . . . . . . . . . . . . . . . . . . . . . . . . . Art. 137, UCMJ;

R.C.M. 104(a)(3)(A) . . . . . . . . . . . . . A2–35; II–4

Instructions

Deposition, authority who gives . . . . . . . . . . . . . . . . . . . . . . R.C.M. 702(d)(3) . . . . . . . . . . . . . . . . II–60

In courts-martial, by military judge

Accomplice testimony, joint or common trial . . . . . . . Mil. R. Evid. 306 . . . . . . . . . . . . . . . III–8

Contempt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 809(c) . . . . . . . . . . . . . . . . . . II–82

Evidence, limited purpose . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 105 . . . . . . . . . . . . . . . III–2

Expert testimony . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 702 . . . . . . . . . . . . . . . III–39

Findings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 920 . . . . . . . . . . . . . . . . . . . . II–115

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 801(a)(5) . . . . . . . . . . . . . . . . II–73

Preliminary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 913(a) . . . . . . . . . . . . . . . . . . II–105

Sentencing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1005 . . . . . . . . . . . . . . . . . . . II–131

Pretrial investigation, procedural instruction . . . . . . . . . . . . . R.C.M. 405(c) . . . . . . . . . . . . . . . . . . II–34

Referral, convening authority . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 601(e)(1) . . . . . . . . . . . . . . . . II–52

Insubordination. See Contempt; Disobedience of orders;

Disrespect.

Intelligence, giving to the enemy . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 28 . . . . . . . . . . . . . . . . . . . . IV–41

Intent

See also specific offenses.

Evidence of

Acts preceding or following offense . . . . . . . . . . . . . . . Mil. R. Evid. 404(b) . . . . . . . . . . . . III–19

Statements of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(3) . . . . . . . . . . . . III–40

To distribute controlled substances . . . . . . . . . . . . . . . . . . . . IV. Para. 37c(6) . . . . . . . . . . . . . . . . IV–56

Interlocutory questions

Appeal of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 908 . . . . . . . . . . . . . . . . . . . . II–97

Evidence, right to production of . . . . . . . . . . . . . . . . . . . . . . R.C.M. 703(f) . . . . . . . . . . . . . . . . . . II–65

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 801(e) . . . . . . . . . . . . . . . . . . II–74

Rulings on

By military judge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 801(e)(1) . . . . . . . . . . . . . . . . II–74

By president of special court-martial without military

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judge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 801(e)(2); 801(e)(3) . . . . . . . II–74

Confessions and admissions . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 304(d)(4) . . . . . . . . . . III–5

Evidence of pretrial identification of accused . . . . . . . Mil. R. Evid. 321(f) . . . . . . . . . . . . . III–18

Evidence seized from accused . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 311(d)(4) . . . . . . . . . . III–9

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 801(a)(4); 801(e)(1) . . . . . . . II–73; II–74

Standard of proof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 801(e)(4) . . . . . . . . . . . . . . . . II–74

Witnesses, right to, for determining . . . . . . . . . . . . . . . . . . . R.C.M. 703(b)(1) . . . . . . . . . . . . . . . . II–62

International law, judicial notice of . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 201A(b) . . . . . . . . . . . III–2

Interpreter

At investigation, pretrial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 405(d)(3)(C) . . . . . . . . . . . . . II–35

Detailing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 501(c) . . . . . . . . . . . . . . . . . . II–42

Disqualification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(e)(2) . . . . . . . . . . . . . . . . II–46

Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(e)(3) . . . . . . . . . . . . . . . . II–46

Oath . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 807(b); 901(c) . . . . . . . . . . . II–81; II–87

Payment of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(e)(4) . . . . . . . . . . . . . . . . II–46

Qualifications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(e)(1) . . . . . . . . . . . . . . . . II–46

Testimony given through . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 604 . . . . . . . . . . . . . . . III–35

Interrogation. See Self-incrimination.

Interrogatories. See Deposition.

Intoxication

See also Drunkenness.

Intent, effect on . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(l)(2) . . . . . . . . . . . . . . . . II–113

Murder, effect on intent in . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 43c(2)(c); 43c(3)(c) . . . . . IV–63; IV–64

Not defense, generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(l)(2) . . . . . . . . . . . . . . . . II–113

Introduction of controlled substance . . . . . . . . . . . . . . . . . . . . . IV. Para. 37 . . . . . . . . . . . . . . . . . . . . IV–54

Inventory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 313(c) . . . . . . . . . . . . . III–12

Investigation, pretrial (Art. 32, UCMJ)

Accused, rights at . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 405(f) . . . . . . . . . . . . . . . . . . II–35

Authority to direct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 403(b)(5); 404(e); 405(c);

407(a)(5) . . . . . . . . . . . . . . . . . . . . . . . II–33; II–35; II–34; II–41

Court of inquiry, as substitute for . . . . . . . . . . . . . . . . . . . . R.C.M. 405(b) . . . . . . . . . . . . . . . . . . II–1

Defense counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 405(d)(2) . . . . . . . . . . . . . . . . II–34

Deposition, use at . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R . C . M . 4 0 5 ( g ) ( 4 ) ( A ) ( i v ) ;

405(g)(4)(B)(iv);

R . C . M . 4 0 5 ( g ) ( 5 ) ( A ) ( i i i ) ;

405(g)(5)(B)(iii); 702(a) . . . . . . . . . .

II–37; II–37; II–37; II–37;

II–59

Earlier investigation, as substitute for . . . . . . . . . . . . . . . . . . R.C.M. 405(b) . . . . . . . . . . . . . . . . . . II–34

Evidence, production of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 405(g) . . . . . . . . . . . . . . . . . . II–35

General court-martial, requirement for . . . . . . . . . . . . . . . . . R.C.M. 407(a)(6); 601(d)(2) . . . . . . . II–41; II–52

Instructions, by commander who directs . . . . . . . . . . . . . . . R.C.M. 405(c) . . . . . . . . . . . . . . . . . . II–34

Investigating officer

Charges and specifications, no authority to change . . R.C.M. 603(b) . . . . . . . . . . . . . . . . . . II–54

Detailing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 405(d)(1) . . . . . . . . . . . . . . . . II–34

Disqualification, to act in any capacity in same trial R.C.M. 405(d)(1); 502(d)(4)(B) . . . . II–34; II–44

502(e)(2)(C); 902(b)(2); 912(a)(1)(K) II–46; II–88; II–102

Recommendation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 405(j) . . . . . . . . . . . . . . . . . . II–1

Mental examination of the accused . . . . . . . . . . . . . . . . . . . . R.C.M. 706(a); 706(c)(3)(A) . . . . . . II–69; II–70

Military Rules of Evidence, not applicable . . . . . . . . . . . . . R.C.M. 405(i) . . . . . . . . . . . . . . . . . . II–39

Motions relating to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(b)(1); 906(b)(3) . . . . . . II–91; II–94

Objections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 405(h)(2); 405(j)(4) . . . . . . . II–38; II–39

Personnel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 405(d) . . . . . . . . . . . . . . . . . . II–34

Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 405(h) . . . . . . . . . . . . . . . . . . II–38

Report of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 405(j); Appendix 5 . . . . . . . II–39; A5–1

Scope . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 405(e) . . . . . . . . . . . . . . . . . . II–35

Spectator, access to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 405(h)(3) . . . . . . . . . . . . . . . . II–38

Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 405(k); 705(c)(2)(E); 905(e) II–39; II–69; II–92

Failure to object to defects . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(e) . . . . . . . . . . . . . . . . . . II–92

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 405(k) . . . . . . . . . . . . . . . . . . II–39

Pretrial agreement provision . . . . . . . . . . . . . . . . . . . . . . R.C.M. 705(c)(2)(E) . . . . . . . . . . . . . II–69

Witness, production of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 405(g) . . . . . . . . . . . . . . . . . . II–35

Investigator. See Law enforcement official.

Involuntary manslaughter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 44 . . . . . . . . . . . . . . . . . . . . IV–64

Jeopardy. See Former jeopardy.

Jet. See Plane.

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Joint, defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 103(13) . . . . . . . . . . . . . . . . . II–2

Joint command or task force, jurisdiction . . . . . . . . . . . . . . . . R.C.M. 201(e)(2) . . . . . . . . . . . . . . . . II–10

Joint offenses. See Accomplices; Conspiracy; Principals.

Joint Service Committee on Military Justice . . . . . . . . . . . . . A26 . . . . . . . . . . . . . . . . . . . . . . . . . . . A26–1

Joint trial

Counsel representing more than one accused, inquiry

required . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 901(d)(4)(D) . . . . . . . . . . . . . II–88

Evidence of statement of accused . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 105; 306 . . . . . . . . . . III–2; III–8

Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 812 . . . . . . . . . . . . . . . . . . . . II–85

Referrals to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 601(e)(3) . . . . . . . . . . . . . . . . II–53

Rights of accused . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 812 . . . . . . . . . . . . . . . . . . . . II–85

Sever, motion to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 906(b)(9) . . . . . . . . . . . . . . . . II–94

Joy riding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 46 . . . . . . . . . . . . . . . . . . . . IV–84

Judge. See Military judge.

Judge advocate

Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Art. 1(13), UCMJ; R.C.M. 103 . . . A2–1; II–1

Oaths, authority to administer . . . . . . . . . . . . . . . . . . . . . . . . Art. 136(a)(1), UCMJ . . . . . . . . . . . . A2–35

Review of record of trial by . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1112 . . . . . . . . . . . . . . . . . . . II–161

Judge Advocate General, The

Cases examined by . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1201(b)(1) . . . . . . . . . . . . . . . II–167

Cases forwarded to Court of Criminal Appeals . . . . . . . . . R.C.M. 1201(a) . . . . . . . . . . . . . . . . . II–167

Cases reviewed by . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1201(b)(2); 1201(b)(3) . . . . II–167

Certification of military judge . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(c) . . . . . . . . . . . . . . . . . . II–43

Detailing military judge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 503(b)(1) . . . . . . . . . . . . . . . . II–47

Professional supervisor of military judge, counsel . . . . . . . R.C.M. 104(a)(3)(C); 109 . . . . . . . . . II–5; II–6

Remission and suspension of sentence . . . . . . . . . . . . . . . . . R.C.M. 1201(c) . . . . . . . . . . . . . . . . . II–168

Review of summary courts-martial . . . . . . . . . . . . . . . . . . . . R.C.M. 1306(d) . . . . . . . . . . . . . . . . . II–181

Rules of court, authority to make . . . . . . . . . . . . . . . . . . . . . R.C.M. 108 . . . . . . . . . . . . . . . . . . . . II–6

Waiver of review, by accused . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1110 . . . . . . . . . . . . . . . . . . . II–159

Judgments of courts-martial, finality of . . . . . . . . . . . . . . . . . . R.C.M. 1209 . . . . . . . . . . . . . . . . . . . II–174

See also Findings; Sentence.

Judicial notice

Adjudicative facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 201 . . . . . . . . . . . . . . . III–2

Of law, foreign and domestic . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 201A . . . . . . . . . . . . . III–2

Jumping from vessel into water . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 91 . . . . . . . . . . . . . . . . . . . . IV–130

Jurisdiction

Commander’s . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. Para. 2(b)(4); V. Para. 2a . . . . . . I–1; V–2

Courts-martial

Accused from armed force different from convening

authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 201(e) . . . . . . . . . . . . . . . . . . II–10

Attachment of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 202(c) . . . . . . . . . . . . . . . . . . II–14

Civilians . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 202(a) . . . . . . . . . . . . . . . . . . II–13

Composition, affecting . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 201(b)(2) . . . . . . . . . . . . . . . . II–9

Constructive enlistment . . . . . . . . . . . . . . . . . . . . . . . . . . Art. 2(c), UCMJ; R.C.M. 202(a) . . A2–2; II–13

Contempt power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 201(c) . . . . . . . . . . . . . . . . . . II–9

Convening, as affecting . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 201(b)(1) . . . . . . . . . . . . . . . . II–9

Discharge, effect on . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 202(a); 202(c) . . . . . . . . . . . II–13; II–14

Dismissal of charges for lack of . . . . . . . . . . . . . . . . . . R.C.M. 907(b)(1)(A) . . . . . . . . . . . . . II–95

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. Para. 2(b)(1) . . . . . . . . . . . . . . . . . I–1

Joint command . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 201(e)(2) . . . . . . . . . . . . . . . . II–10

Law of war, offense under . . . . . . . . . . . . . . . . . . . . . . R.C.M. 201(a)(3); 201(f)(1)(B) . . . . II–9; II–11

Military offense, exclusive jurisdiction . . . . . . . . . . . . . R.C.M. 201(d)(1) . . . . . . . . . . . . . . . . II–10

Motion to dismiss for lack of

Burden of proof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(c)(2)(B) . . . . . . . . . . . . . II–91

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 907(b)(1)(A) . . . . . . . . . . . . . II–95

Not waived . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(b); 905(e); 907(b)(1)(A) II–91; II–92; II–95

Nature of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 201(a) . . . . . . . . . . . . . . . . . . II–9

Offenses subject to

Civilian tribunals, trial in . . . . . . . . . . . . . . . . . . . . . . R.C.M. 201(d) . . . . . . . . . . . . . . . . . . II–10

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 203 . . . . . . . . . . . . . . . . . . . . II–15

Service connection of . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 203 . . . . . . . . . . . . . . . . . . . . II–15

Persons subject to

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 202(a) . . . . . . . . . . . . . . . . . . II–13

Law of war, under . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 202(b) . . . . . . . . . . . . . . . . . . II–14

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Reservists . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 204 . . . . . . . . . . . . . . . . . . . . II–15

Place of offense, effect on . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 201(a)(2) . . . . . . . . . . . . . . . . II–9

Place of trial, effect on . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 201(a)(3) . . . . . . . . . . . . . . . . II–9

Reciprocal, between service . . . . . . . . . . . . . . . . . . . . . . R.C.M. 201(e) . . . . . . . . . . . . . . . . . . II–10

Referral, as affecting . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 201(b)(3) . . . . . . . . . . . . . . . . II–9

Requisites of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 201(b) . . . . . . . . . . . . . . . . . . II–9

Review of, accused in different armed force . . . . . . . R.C.M. 201(e)(5) . . . . . . . . . . . . . . . . II–11

Subject matter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 203 . . . . . . . . . . . . . . . . . . . . II–15

Courts of inquiry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 201(g); I. Para. 2(b)(3) . . . . II–12; I–1

Exercise of military . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. Para. 2 . . . . . . . . . . . . . . . . . . . . . . I–1

Foreign nation over visiting force . . . . . . . . . . . . . . . . . . . . . R.C.M. 201(d) . . . . . . . . . . . . . . . . . . II–10

General courts-martial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 201(f)(1) . . . . . . . . . . . . . . . . II–11

Kinds of military . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. Para. 2(a) . . . . . . . . . . . . . . . . . . . . I–1

Memorandum of understanding concerning . . . . . . . . . . . . . Appendix 3 . . . . . . . . . . . . . . . . . . . . A3–1

Military commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. Para. 2(b)(2) . . . . . . . . . . . . . . . . . I–1

Not waivable by

Failure to raise at trial . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(e) . . . . . . . . . . . . . . . . . . II–92

Pretrial agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 705(c)(1)(B) . . . . . . . . . . . . . II–68

Provost courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. Para. 2(b)(2) . . . . . . . . . . . . . . . . . I–1

Sources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. Para. 1 . . . . . . . . . . . . . . . . . . . . . . I–1

Special court-martial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 201(f)(2) . . . . . . . . . . . . . . . . II–12

Summary courts-martial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1301(c) . . . . . . . . . . . . . . . . . II–177

Jury. See Members of a court-martial.

Justification, as a defense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(c) . . . . . . . . . . . . . . . . . . II–109

Juvenile courts, conviction by, admissibility . . . . . . . . . . . . . . . Mil. R. Evid. 609(d) . . . . . . . . . . . . III–36

Kidnapping . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 92 . . . . . . . . . . . . . . . . . . . . IV–130

Killing. See Homicide; Manslaughter; Murder.

Laboratory reports, admissibility . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(6); 803(8) . . . . . . III–40; III–41

Language, Indecent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 89 . . . . . . . . . . . . . . . . . . . . IV–129

Larceny

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 46 . . . . . . . . . . . . . . . . . . . . IV–84

Of mail . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 93 . . . . . . . . . . . . . . . . . . . . IV–131

Law, judicial notice of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 201A . . . . . . . . . . . . . III–2

Law enforcement official

Assault on . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 54 . . . . . . . . . . . . . . . . . . . . IV–98

Civilian, authority to apprehend persons subject to code . R.C.M. 302(a)(2); 302(b)(3) . . . . . . . II–17; II–18

Interrogations by . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 305 . . . . . . . . . . . . . . . III–6

Military, authority to apprehend . . . . . . . . . . . . . . . . . . . . . . R.C.M. 302(b)(1) . . . . . . . . . . . . . . . . II–17

Searches by . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 311(c) . . . . . . . . . . . . . III–9

Law of war

Courts-martial, cases under . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 201(a)(3); 201(f)(1)(B) . . . . II–9; II–11

Exercise of jurisdiction under . . . . . . . . . . . . . . . . . . . . . . . . I. Para. 2(a)(4); R.C.M. 202(b); 203 I–1; II–14; II–15

Lawyer. See Counsel; Defense counsel; Trial counsel.

Lawyer-client privilege. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 502 . . . . . . . . . . . . . . . III–23

Leading questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 611(c) . . . . . . . . . . . . . III–37

Legal officer

See also Staff judge advocate.

Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Art. 1(12), UCMJ; R.C.M. 103 . . . A2–1; II–1

Disqualified

As member . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 912(f)(1)(G) . . . . . . . . . . . . . II–104

As military judge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 902(b)(2) . . . . . . . . . . . . . . . . II–88

Post-trial recommendation . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1106 . . . . . . . . . . . . . . . . . . . II–147

Lesser included offense

Findings as to

Convening authority action approving . . . . . . . . . . . . . . R.C.M. 1107(c)(1) . . . . . . . . . . . . . . . II–151

Exceptions and substitutions, by . . . . . . . . . . . . . . . . . . R.C.M. 918(a)(1) . . . . . . . . . . . . . . . . II–114

Guilty plea, on . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 910(g)(2) . . . . . . . . . . . . . . . . II–101

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 3 . . . . . . . . . . . . . . . . . . . . . IV–3

Instructions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 920(e)(2) . . . . . . . . . . . . . . . . II–116

Motions for finding of not guilty, on . . . . . . . . . . . . . . . . . R.C.M. 917(e) . . . . . . . . . . . . . . . . . . II–113

Plea of guilty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 910(a) . . . . . . . . . . . . . . . . . . II–99

Specific offenses, of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Part IV . . . . . . . . . . . . . . . . . . . . . . . . IV–1

Voting on, by members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 921(c)(5) . . . . . . . . . . . . . . . . II–118

Letter of reprimand. See Reprimand.

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Letters, authentication, of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 901; 902 . . . . . . . . . . III–43; III–44

Liberties, indecent, with child . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 87 . . . . . . . . . . . . . . . . . . . . IV–129

Liberties, conditions on . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 304(a)(1) . . . . . . . . . . . . . . . . II–19

See also Restraint, pretrial.

Lineup, identification at . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 321 . . . . . . . . . . . . . . . III–17

Liquor. See Drunk.

Logs, as records, admissibility . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(6); 803(8) . . . . . . III–40; III–41

Loitering on post by sentinel or lookout . . . . . . . . . . . . . . . . . IV. Para. 104 . . . . . . . . . . . . . . . . . . . IV–139

Lookout

Assault on . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 54 . . . . . . . . . . . . . . . . . . . . IV–98

Misbehavior as . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 38 . . . . . . . . . . . . . . . . . . . . IV–58

Offenses by or against . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 104 . . . . . . . . . . . . . . . . . . . IV–139

Looting and pillaging . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 27 . . . . . . . . . . . . . . . . . . . . IV–39

Losing military property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 32 . . . . . . . . . . . . . . . . . . . . IV–47

Loss

Notes of recordings of proceedings, of . . . . . . . . . . . . . . . . R.C.M. 1103(f) . . . . . . . . . . . . . . . . . II–141

Records of trial, of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1104(c) . . . . . . . . . . . . . . . . . II–145

Lost property, subject to larceny . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 46c(1)(h)(i) . . . . . . . . . . . . IV–87

Magistrate, power to authorize search . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 315(d)(2) . . . . . . . . . . III–14

Mail

Obscene matters, depositing in . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 94 . . . . . . . . . . . . . . . . . . . . IV–132

Taking, opening, secreting, destroying, or stealing . . . . . . . IV. Para. 93 . . . . . . . . . . . . . . . . . . . . IV–131

Maiming . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 50 . . . . . . . . . . . . . . . . . . . . IV–95

Unborn child, death of injury of . . . . . . . . . . . . . . . . . . . . . IV. Para. 44a . . . . . . . . . . . . . . . . . . . IV–64

Making false claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 58 . . . . . . . . . . . . . . . . . . . . IV–107

Malingering . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 40 . . . . . . . . . . . . . . . . . . . . IV–60

Maltreatment of person subject to orders . . . . . . . . . . . . . . . . IV. Para. 17 . . . . . . . . . . . . . . . . . . . . IV–25

Manslaughter

See also Homicide; Murder.

Assault with intent to commit voluntary . . . . . . . . . . . . . . . IV. Para. 64 . . . . . . . . . . . . . . . . . . . . IV–115

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 44 . . . . . . . . . . . . . . . . . . . . IV–64

Unborn child, death of injury of . . . . . . . . . . . . . . . . . . . . . IV. Para. 44a . . . . . . . . . . . . . . . . . . . IV–64

Manual for Courts-Martial

Structure and application . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. Para. 4 . . . . . . . . . . . . . . . . . . . . . . I–1

Use of, by court members . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(a)(2) . . . . . . . . . . . . . . . . II–42

Manufacturing controlled substances . . . . . . . . . . . . . . . . . . . . . IV. Para. 37 . . . . . . . . . . . . . . . . . . . . IV–54

Marijuana, offenses involving . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 37 . . . . . . . . . . . . . . . . . . . . IV–54

Martial law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. Para. 2(a)(2) . . . . . . . . . . . . . . . . . I–1

Mast. See Nonjudicial punishment.

Members of a court-martial

Absence

Announcement concerning . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 813(a)(5) . . . . . . . . . . . . . . . . II–86

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 805(b); 901(e) . . . . . . . . . . . II–78; II–88

Active duty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(a) . . . . . . . . . . . . . . . . . . II–42

Announcement of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 813(a)(4) . . . . . . . . . . . . . . . . II–86

Armed force or command different from convening authority R.C.M. 503(a)(3) . . . . . . . . . . . . . . . . II–47

Challenges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 912 . . . . . . . . . . . . . . . . . . . . II–102

Change of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 505(c) . . . . . . . . . . . . . . . . . . II–49

Contempt, action on . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 809(c) . . . . . . . . . . . . . . . . . . II–82

Counsel, disqualified to act as . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(d)(4)(D) . . . . . . . . . . . . . II–44

Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 103(14) . . . . . . . . . . . . . . . . . II–2

Detailing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 503(a) . . . . . . . . . . . . . . . . . . II–46

Disqualification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 912(f) . . . . . . . . . . . . . . . . . . II–103

Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(a)(2) . . . . . . . . . . . . . . . . II–42

Enlisted

Absence of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 805(b) . . . . . . . . . . . . . . . . . . II–78

Detailing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 503(a)(2) . . . . . . . . . . . . . . . . II–46

Request for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 903 . . . . . . . . . . . . . . . . . . . . II–89

Evaluation of, limitations . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 104(b)(1) . . . . . . . . . . . . . . . . II–5

Evidence, request for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 913(c)(1)(F) . . . . . . . . . . . . . II–106

Examination of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 912(d) . . . . . . . . . . . . . . . . . . II–103

Excusal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 505(c); 912(f)(3); 912(g)(1) II–49; II–104; II–104

General court-martial, number required . . . . . . . . . . . . . . . . R.C.M. 501(a)(1) . . . . . . . . . . . . . . . . II–42

Influence, unlawful . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 104 . . . . . . . . . . . . . . . . . . . . II–4

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Manual for Courts-Martial, use of . . . . . . . . . . . . . . . . . . . . R.C.M. 502(a)(2) . . . . . . . . . . . . . . . . II–42

New members, procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 805(d)(1) . . . . . . . . . . . . . . . . II–79

New trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 810(b)(1) . . . . . . . . . . . . . . . . II–83

Notes of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 921(b) . . . . . . . . . . . . . . . . . . II–117

Oath . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 807(b)(1) . . . . . . . . . . . . . . . . II–81

Objections to rulings by president . . . . . . . . . . . . . . . . . . . . R.C.M. 801(e)(3) . . . . . . . . . . . . . . . . II–74

Other trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 810(b)(1) . . . . . . . . . . . . . . . . II–83

Presence at court-martial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 805(b); 901(e); 921(a); . . . . II–78; II–88; II–117

1006(a) . . . . . . . . . . . . . . . . . . . . . . II–132

President . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(b) . . . . . . . . . . . . . . . . . . II–1

See also President of court-martial.

Pretrial agreement, not informed of . . . . . . . . . . . . . . . . . . . R.C.M. 705(e) . . . . . . . . . . . . . . . . . . II–69

Qualifications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(a)(1) . . . . . . . . . . . . . . . . II–42

Rehearings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 810(b)(1) . . . . . . . . . . . . . . . . II–83

Selection, challenge of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 912(b) . . . . . . . . . . . . . . . . . . II–103

Sessions without . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 803 . . . . . . . . . . . . . . . . . . . . II–76

Special court-martial, number required . . . . . . . . . . . . . . . . . R.C.M. 501(a)(2); 805(b) . . . . . . . . . II–42; II–78

Waiver of, by accused

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 903 . . . . . . . . . . . . . . . . . . . . II–89

Pretrial agreement, in . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 705(c)(2)(E) . . . . . . . . . . . . . II–69

Witness, incompetent as . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 606 . . . . . . . . . . . . . . . III–35

Mental capacity

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 909 . . . . . . . . . . . . . . . . . . . . II–98

Inquiry into . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 706 . . . . . . . . . . . . . . . . . . . . II–69

Lack of, effect on

Action of convening authority . . . . . . . . . . . . . . . . . . . . R.C.M. 1107(b)(5) . . . . . . . . . . . . . . . II–150

Appellate review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1203(c) . . . . . . . . . . . . . . . . . II–169

Death sentence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1113(d)(1)(B) . . . . . . . . . . . . II–163

Speedy trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 707(c) . . . . . . . . . . . . . . . . . . II–72

Motions relating to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 906(b)(14) . . . . . . . . . . . . . . . II–95

Post-trial hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1102A . . . . . . . . . . . . . . . . . . II–139

Presumption of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 909(b) . . . . . . . . . . . . . . . . . . II–99

Standard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 909(c) . . . . . . . . . . . . . . . . . . II–99

Mental disease or defect. See Mental responsibility.

Mental examination

Discovery of

By defense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(a)(2)(B);

Mil. R. Evid. 513 . . . . . . . . . . . . . . . II–56; III–33

By prosecution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(a)(2)(B);

Mil. R. Evid. 513 . . . . . . . . . . . . . . . II–56; III–33

Of accused . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 706 . . . . . . . . . . . . . . . . . . . . II–69

Speedy trial, effect on . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 707(c) . . . . . . . . . . . . . . . . . . II–72

Mental responsibility

Discovery of defense of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(b)(2) . . . . . . . . . . . . . . . . II–57

Disease or defect, defined . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(k)(1) . . . . . . . . . . . . . . . . II–112

Failure to disclose intent to raise . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(g)(3) . . . . . . . . . . . . . . . . II–58

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Art. 50a, UCMJ; R.C.M. 916(k) . . . A2–14; II–112

Inquiry into . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 706 . . . . . . . . . . . . . . . . . . . . II–69

Motions relating to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 906(b)(14) . . . . . . . . . . . . . . . II–95

Notice of defense involving . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(b)(2) . . . . . . . . . . . . . . . . II–57

Partial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(k)(2) . . . . . . . . . . . . . . . . II–112

Post-trial hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1102A . . . . . . . . . . . . . . . . . . II–139

Presumption of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(k)(3)(A) . . . . . . . . . . . . . II–112

Withdrawn, effect of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(b)(5) . . . . . . . . . . . . . . . . II–58

Midshipman

Conduct unbecoming and officer and gentleman . . . . . . . . IV. Para. 59 . . . . . . . . . . . . . . . . . . . . IV–110

Jurisdiction of courts-martial, subject to . . . . . . . . . . . . . . . . Art. 2(a)(2), UCMJ; R.C.M. 202(a) A2–1; II–13

Summary courts-martial, not subject to trial by . . . . . . . . . R.C.M. 1301(c) . . . . . . . . . . . . . . . . . II–177

Military commission

Aiding the enemy, trial by . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 28 . . . . . . . . . . . . . . . . . . . . IV–41

Concurrent jurisdiction, other military tribunals . . . . . . . . . R.C.M. 201(g) . . . . . . . . . . . . . . . . . . II–12

Contempt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Art. 48, UCMJ . . . . . . . . . . . . . . . . . A2–14

Exercise of jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. Para. 2(b)(2) . . . . . . . . . . . . . . . . . I–1

Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. Para. 2(b)(2) . . . . . . . . . . . . . . . . . I–1

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Spying, trial by . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 30 . . . . . . . . . . . . . . . . . . . . IV–43

Military government . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. Para. 2(a)(3) . . . . . . . . . . . . . . . . . I–1

Military judge

Absence of, effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 805(a) . . . . . . . . . . . . . . . . . . II–78

Accused, advice to concerning

Appellate rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1010 . . . . . . . . . . . . . . . . . . . II–135

Counsel rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 901(d)(4) . . . . . . . . . . . . . . . . II–87

Alone, trial by

Capital case, prohibited . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 201(f)(1)(C); 903(a)(2) . . . . II–12; II–89

Request for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 903 . . . . . . . . . . . . . . . . . . . . II–89

Waiver of right to

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 903(e) . . . . . . . . . . . . . . . . . . II–90

Pretrial agreement, in . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 705(c)(2)(E) . . . . . . . . . . . . . II–69

Announcement of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 813(a)(3); 901(b) . . . . . . . . . II–86; II–87

Armed force different from accused or convening authority R.C.M. 201(e)(4) . . . . . . . . . . . . . . . . II–10

Assembly, announcement of . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 911 . . . . . . . . . . . . . . . . . . . . II–102

Authentication of record of trial . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1104(a)(2) . . . . . . . . . . . . . . . II–144

Challenge of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 902 . . . . . . . . . . . . . . . . . . . . II–88

Change of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 505(e) . . . . . . . . . . . . . . . . . . II–50

Conferences, with parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 802 . . . . . . . . . . . . . . . . . . . . II–75

Confinement, pretrial

Authority to order release from . . . . . . . . . . . . . . . . . . . R.C.M. 305(g) . . . . . . . . . . . . . . . . . . II–22

Review of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 305(j) . . . . . . . . . . . . . . . . . . II–24

Contempt, authority to exercise . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 801(b)(2); 809(c) . . . . . . . . . II–73; II–82

Control of proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 801(a)(3); 804(b) . . . . . . . . . II–73; II–77

Counsel

Disqualification of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 901(d)(3) . . . . . . . . . . . . . . . . II–87

Disqualified to act as . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(d)(4)(C) . . . . . . . . . . . . . II–44

Oath, administering . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 901(d)(5) . . . . . . . . . . . . . . . . II–88

Defense counsel, permission to withdraw . . . . . . . . . . . . . . R.C.M. 506(c) . . . . . . . . . . . . . . . . . . II–51

Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 103(15) . . . . . . . . . . . . . . . . . II–2

Deposition

Authority to order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 702(b) . . . . . . . . . . . . . . . . . . II–59

Authority to prohibit . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 702(i) . . . . . . . . . . . . . . . . . . II–62

Detail

Failure to in special court-martial . . . . . . . . . . . . . . . . . R.C.M. 201(f)(2)(B)(ii)(b) . . . . . . . . . II–12

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 503(b) . . . . . . . . . . . . . . . . . . II–47

Discovery, authority to regulate . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(g) . . . . . . . . . . . . . . . . . . II–58

Disqualification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 902 . . . . . . . . . . . . . . . . . . . . II–88

Docketing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 801(a)(1) . . . . . . . . . . . . . . . . II–73

Duties generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 801 . . . . . . . . . . . . . . . . . . . . II–73

Evaluation of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 104(b)(2) . . . . . . . . . . . . . . . . II–5

Guilty plea inquiry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 910(c) . . . . . . . . . . . . . . . . . . II–100

Instruction. See Instructions.

Interlocutory questions, rulings on . . . . . . . . . . . . . . . . . . . . R.C.M. 801(a)(4) . . . . . . . . . . . . . . . . II–73

Investigation, pretrial, review of evidence and witness

production by . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 405(g)(2) . . . . . . . . . . . . . . . . II–36

Mistrial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 915 . . . . . . . . . . . . . . . . . . . . II–108

Motions. See Motions.

New trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 810(b)(2) . . . . . . . . . . . . . . . . II–84

Oath . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 807(b)(1) . . . . . . . . . . . . . . . . II–81

Other trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 810(b)(2) . . . . . . . . . . . . . . . . II–84

Power to authorize search . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 315(d)(2) . . . . . . . . . . III–14

Presence of, required . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 805(a) . . . . . . . . . . . . . . . . . . II–78

Pretrial agreement inquiry . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 910(f) . . . . . . . . . . . . . . . . . . II–101

Questions of law, ruling on . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 801(a)(4) . . . . . . . . . . . . . . . . II–73

Rehearings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 810(b)(2) . . . . . . . . . . . . . . . . II–84

Reopening case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 913(c)(5) . . . . . . . . . . . . . . . . II–106

Restraint of accused at trial . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 804(d)(3) . . . . . . . . . . . . . . . . II–78

Review of pretrial confinements . . . . . . . . . . . . . . . . . . . . . . R.C.M. 305(j) . . . . . . . . . . . . . . . . . . II–24

Rules of court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 108 . . . . . . . . . . . . . . . . . . . . II–6

Rulings by . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 801(e)(1) . . . . . . . . . . . . . . . . II–74

Session, call to order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 901(a) . . . . . . . . . . . . . . . . . . II–87

Special court-martial without . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 201(f)(2)(B)(ii) . . . . . . . . . . . II–12

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Stipulation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 811 . . . . . . . . . . . . . . . . . . . . II–84

Supervision of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 109 . . . . . . . . . . . . . . . . . . . . II–6

Unavailability, effect on speedy trial . . . . . . . . . . . . . . . . . . R.C.M. 707(c) . . . . . . . . . . . . . . . . . . II–72

Views or inspections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 913(c)(3) . . . . . . . . . . . . . . . . II–106

Witness

Disqualified from acting as . . . . . . . . . . . . . . . . . . . . . . R.C.M. 902(b)(3) . . . . . . . . . . . . . . . . II–88

Incompetent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 605 . . . . . . . . . . . . . . . III–35

Military law

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. Para. 2(a)(1) . . . . . . . . . . . . . . . . . I–1

Nature and purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. Para. 3 . . . . . . . . . . . . . . . . . . . . . . I–1

Military police. See Law enforcement official.

Military property, sale, loss, damage, destruction, or wrongful

disposition of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 32 . . . . . . . . . . . . . . . . . . . . IV–47

Military records, authentication of . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 901; 902 . . . . . . . . . . III–43; III–44

Military Rules of Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Part III. . . . . . . . . . . . . . . . . . . . . . . . . III–1

See also Evidence.

Military tribunals

Concurrent jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 201(g) . . . . . . . . . . . . . . . . . . II–12

Kinds of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. Para. 2(b) . . . . . . . . . . . . . . . . . . . . I–1

Minor offenses

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Para. 1e . . . . . . . . . . . . . . . . . . . . V–1

Prior punishment for, barring trial . . . . . . . . . . . . . . . . . . . . R.C.M. 907(b)(2)(D)(iv) . . . . . . . . . . II–96

Minors, competence as witnesses . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 601 . . . . . . . . . . . . . . . III–35

Misbehavior before the enemy . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 23 . . . . . . . . . . . . . . . . . . . . IV–33

Misbehavior of sentinel or lookout . . . . . . . . . . . . . . . . . . . . . . IV. Para. 38 . . . . . . . . . . . . . . . . . . . . IV–58

Misconduct

Prisoner of war . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 29 . . . . . . . . . . . . . . . . . . . . IV–42

Uncharged

Action by court-martial on . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 801(d) . . . . . . . . . . . . . . . . . . II–73

Admissibility of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 404(b) . . . . . . . . . . . . III–19

Instruction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 105 . . . . . . . . . . . . . . . III–2

Misprision of serious offense . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 95 . . . . . . . . . . . . . . . . . . . . IV–132

Missing movement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 11 . . . . . . . . . . . . . . . . . . . . IV–15

Mistake of fact

Checks, insufficient funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 49c(18) . . . . . . . . . . . . . . . IV–94

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(j) . . . . . . . . . . . . . . . . . . II–111

Mistake of law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(l)(1) . . . . . . . . . . . . . . . . II–112

Mistrial

Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 915(c) . . . . . . . . . . . . . . . . . . II–108

Grounds for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 915(a) . . . . . . . . . . . . . . . . . . II–108

Partial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 915(a) . . . . . . . . . . . . . . . . . . II–108

Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 915(b) . . . . . . . . . . . . . . . . . . II–108

Remedy for failure to produce statement . . . . . . . . . . . . . . . R.C.M. 914(e) . . . . . . . . . . . . . . . . . . II–107

Mitigation

Evidence in sentencing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1001(c)(1)(B) . . . . . . . . . . . . II–122

Modification of initial action . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1107(f)(2) . . . . . . . . . . . . . . . II–153

Motions

Appropriate relief

Bill of particulars . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 906(b)(6) . . . . . . . . . . . . . . . . II–94

Charges and specifications . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(b)(1); 906(b)(4) . . . . . . II–91; II–94

Continuance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 906(b)(1) . . . . . . . . . . . . . . . . II–93

Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(b)(6); 906(b)(2) . . . . . . II–91; II–93

Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 906(a) . . . . . . . . . . . . . . . . . . II–93

Discovery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(b)(4); 906(b)(7); 914 . . II–91; II–94; II–107

Evidence, admissibility of . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 906(b)(13) . . . . . . . . . . . . . . . II–1

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 906 . . . . . . . . . . . . . . . . . . . . II–93

Investigation, pretrial . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(b)(1); 906(b)(3) . . . . . . II–91; II–94

Mental capacity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 906(b)(14) . . . . . . . . . . . . . . . II–95

Mental responsibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 906(b)(14) . . . . . . . . . . . . . . . II–95

Multiplicity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 906(b)(12) . . . . . . . . . . . . . . . II–95

Place of trial, change of . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 906(b)(11) . . . . . . . . . . . . . . . II–95

Pretrial advice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(b)(1); 906(b)(3) . . . . . . II–91; II–94

Severance of

Accused . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(b)(5); 906(b)(9) . . . . . . II–91; II–94

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Charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(b)(5); 906(b)(10) . . . . . II–91; II–95

Duplicious specification . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 906(b)(5) . . . . . . . . . . . . . . . . II–94

Burden of proof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(c) . . . . . . . . . . . . . . . . . . II–91

Convening authority, submission to . . . . . . . . . . . . . . . . . . . R.C.M. 905(j) . . . . . . . . . . . . . . . . . . II–93

Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(a) . . . . . . . . . . . . . . . . . . II–90

Final determination, effect of . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(g) . . . . . . . . . . . . . . . . . . II–92

For finding of not guilty . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 917 . . . . . . . . . . . . . . . . . . . . II–113

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905 . . . . . . . . . . . . . . . . . . . . II–90

Pretrial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(b) . . . . . . . . . . . . . . . . . . II–91

Reconsideration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(f) . . . . . . . . . . . . . . . . . . II–92

Res judicata . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(g) . . . . . . . . . . . . . . . . . . II–92

Rulings on . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(d) . . . . . . . . . . . . . . . . . . II–91

Scheduling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 801(a)(3) . . . . . . . . . . . . . . . . II–73

Selection of members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 912(b)(1) . . . . . . . . . . . . . . . . II–103

Special findings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(d) . . . . . . . . . . . . . . . . . . II–91

See also Special findings.

Speedy trial, exclusion of time for . . . . . . . . . . . . . . . . . . . . R.C.M. 707(c)(1) . . . . . . . . . . . . . . . . II–72

To dismiss

Constructive condonation of desertion . . . . . . . . . . . . . R.C.M. 907(b)(2)(D)(iii) . . . . . . . . . . II–96

Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 907(a) . . . . . . . . . . . . . . . . . . II–95

Former jeopardy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 907(b)(2)(C) . . . . . . . . . . . . . II–96

Grounds generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 907(b) . . . . . . . . . . . . . . . . . . II–95

Immunity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 907(b)(2)(D)(ii) . . . . . . . . . . II–96

Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(c)(2)(B); 907(b)(1)(A) . II–91; II–95

Multiplicity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 907(b)(3)(B) . . . . . . . . . . . . . II–97

Nonwaivable ground . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 907(b)(1) . . . . . . . . . . . . . . . . II–95

Pardon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 907(b)(2)(D)(i) . . . . . . . . . . . II–96

Prior punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 907(b)(2)(D)(iv) . . . . . . . . . . II–96

Specification

Defective . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 907(b)(3)(A) . . . . . . . . . . . . . II–97

Failure to state offense . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 907(b)(1)(B) . . . . . . . . . . . . . II–96

Speedy trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(c)(2)(B); 907(b)(2)(A) . II–91; II–96

Statue of limitations . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(c)(2)(B); 907(b)(2)(B) . II–91; II–96

Waivable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 907(b)(2) . . . . . . . . . . . . . . . . II–96

To suppress

Procedure concerning

Confessions and admissions . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 304 . . . . . . . . . . . . . . . III–4

Eyewitness identification . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 321 . . . . . . . . . . . . . . . III–17

Search and seizure . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 311 . . . . . . . . . . . . . . . III–8

Production of statements for . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(k) . . . . . . . . . . . . . . . . . . II–93

Time for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(b)(3) . . . . . . . . . . . . . . . . II–91

Waiver

Conditional guilty plea, effect on . . . . . . . . . . . . . . . . . R.C.M. 910(a)(2) . . . . . . . . . . . . . . . . II–100

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(e) . . . . . . . . . . . . . . . . . . II–92

Written

Discretion of military judge . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(a); 905(h) . . . . . . . . . . . II–91; II–93

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(h) . . . . . . . . . . . . . . . . . . II–93

Service of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(i) . . . . . . . . . . . . . . . . . . II–93

Motive

Other crimes, wrongs, or acts to prove . . . . . . . . . . . . . . . . Mil. R. Evid. 404(b) . . . . . . . . . . . . III–19

Statement of, as hearsay exception . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(3) . . . . . . . . . . . . III–40

To misrepresent, as impeachment . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 608(c) . . . . . . . . . . . . . III–36

Motor vehicle. See Vehicle.

Multiplicity

Conspiracy, with substantive offense, not . . . . . . . . . . . . . . IV. Para. 5c(8) . . . . . . . . . . . . . . . . . IV–6

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 307(c)(4); 1003(c)(1)(C) . . . II–29; II–126

Remedies available

Dismissal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 907(b)(3)(B) . . . . . . . . . . . . . II–97

Sentence limitation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 906(b)(12); 1003(c)(1)(C) . . II–95; II–126

Murder

Assault with intent to commit . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 64 . . . . . . . . . . . . . . . . . . . . IV–115

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 43 . . . . . . . . . . . . . . . . . . . . IV–62

Unborn child, death of injury of . . . . . . . . . . . . . . . . . . . . . IV. Para. 44a . . . . . . . . . . . . . . . . . . . IV–64

Mutiny

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Attempted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 4c(6)(b); 18 . . . . . . . . . . . IV–5; IV–26

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 18 . . . . . . . . . . . . . . . . . . . . IV–26

Solicitation to commit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 6 . . . . . . . . . . . . . . . . . . . . . IV–6

Narcotics, offenses involving . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 37 . . . . . . . . . . . . . . . . . . . . IV–54

National security, disposition of charges affecting . . . . . . . . . . R.C.M. 401(d); 407(b) . . . . . . . . . . . II–32; II–41

Neglects to prejudice of good order and discipline . . . . . . . . IV. Para. 60c(2) . . . . . . . . . . . . . . . . IV–112

Negligence

Culpable, involuntary manslaughter . . . . . . . . . . . . . . . . . . . . IV. Para. 44c(2)(a) . . . . . . . . . . . . . . IV–65

Wanton . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 43c(4) . . . . . . . . . . . . . . . . IV–64

Negligent homicide . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 85 . . . . . . . . . . . . . . . . . . . . IV–128

Neutral and detached officer

Pretrial confinement, reviewed by . . . . . . . . . . . . . . . . . . . . . R.C.M. 305(i) . . . . . . . . . . . . . . . . . . II–23

Search authorization, required for . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 315(d) . . . . . . . . . . . . III–14

Neutral powers, citizens of, communicating with enemy . . . IV. Para. 28c(6)(c) . . . . . . . . . . . . . . IV–42

New trial

Action by convening authority on . . . . . . . . . . . . . . . . . . . . . R.C.M. 1107(f)(5)(B) . . . . . . . . . . . . II–155

Action when granted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1210(h) . . . . . . . . . . . . . . . . . II–176

Grounds for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1210(f) . . . . . . . . . . . . . . . . . II–175

Petition for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1210(b); 1210(c); 1210(d); . II–174; II–175; II–175

R.C.M. 1210(e); 1210(g) . . . . . . . II–175; II–175

Procedures for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 810 . . . . . . . . . . . . . . . . . . . . II–83

Noncommissioned and petty officer

Apprehend, authority to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 302(b)(2) . . . . . . . . . . . . . . . . II–18

Assault on

In execution of office . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 15 . . . . . . . . . . . . . . . . . . . . IV–21

Not in execution of office . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 54 . . . . . . . . . . . . . . . . . . . . IV–98

Disobedience of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 15 . . . . . . . . . . . . . . . . . . . . IV–21

Disrespect toward . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 15 . . . . . . . . . . . . . . . . . . . . IV–21

Noncompliance with procedural rules, as offense . . . . . . . . . . IV. Para. 22 . . . . . . . . . . . . . . . . . . . . IV–32

Nonconsensual sexual offenses, defined . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 412(e) . . . . . . . . . . . . . III–21

Nonjudicial punishment (Art. 15, UCMJ)

Administrative measures, relationship with . . . . . . . . . . . . . . V. Para. 1g . . . . . . . . . . . . . . . . . . . . V–2

Appeal of

Action by superior authority . . . . . . . . . . . . . . . . . . . . . V. Para. 7f . . . . . . . . . . . . . . . . . . . . . V–9

Format of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Para. 7c . . . . . . . . . . . . . . . . . . . . V–8

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Para. 7a . . . . . . . . . . . . . . . . . . . . V–8

Legal review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Para. 7e . . . . . . . . . . . . . . . . . . . . V–8

Time limit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Para. 7d . . . . . . . . . . . . . . . . . . . . V–8

Who may act on . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Para. 7b . . . . . . . . . . . . . . . . . . . . V–8

Authority, commander’s . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. Para. 2(b)(4); V. Para 1a; 2a . . . I–1; V–1; V–2

Double punishment prohibited . . . . . . . . . . . . . . . . . . . . . . . . V. Para. 1f(1) . . . . . . . . . . . . . . . . . . V–1

Effect of errors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Para. 1h . . . . . . . . . . . . . . . . . . . . V–2

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Part V . . . . . . . . . . . . . . . . . . . . . . . . . V–1

Increase in punishment prohibited . . . . . . . . . . . . . . . . . . . . . V. Para. 1f(2) . . . . . . . . . . . . . . . . . . V–1

Limitations on . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Para. 1f . . . . . . . . . . . . . . . . . . . . . V–1

Minor offenses

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Para. 1e . . . . . . . . . . . . . . . . . . . . V–1

Trial by court-martial barred . . . . . . . . . . . . . . . . . . . . . R.C.M. 907(b)(2)(D)(iv) . . . . . . . . . . II–96

Mitigation of punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Para. 6b . . . . . . . . . . . . . . . . . . . . V–7

Nature . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Para. 1b . . . . . . . . . . . . . . . . . . . . V–1

Offense, disposition of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 306(c)(3); V. Para. 1 . . . . . II–26; V–1

Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Para. 1d . . . . . . . . . . . . . . . . . . . . V–1

Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Para. 4 . . . . . . . . . . . . . . . . . . . . . V–2

Punishments

Admonition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Para. 5c(1) . . . . . . . . . . . . . . . . . . V–5

Arrest in quarters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Para. 5c(3) . . . . . . . . . . . . . . . . . . V–5

Combinations, limitations . . . . . . . . . . . . . . . . . . . . . . . . V. Para. 5d . . . . . . . . . . . . . . . . . . . . V–6

Confinement on bread and water or diminished rations V. Para. 5c(5) . . . . . . . . . . . . . . . . . . V–6

Correctional custody . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Para. 5c(4) . . . . . . . . . . . . . . . . . . V–5

Extra duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Para. 5c(6) . . . . . . . . . . . . . . . . . . V–6

Forfeiture of pay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Para. 5c(8) . . . . . . . . . . . . . . . . . . V–6

Limitations on . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Para. 1f . . . . . . . . . . . . . . . . . . . . . V–1

Maximum authorized . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Para. 5b . . . . . . . . . . . . . . . . . . . . V–4

Reduction in grade . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Para. 5c(7) . . . . . . . . . . . . . . . . . . V–6

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Reprimand . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Para. 5c(1) . . . . . . . . . . . . . . . . . . V–5

Restriction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Para. 5c(2) . . . . . . . . . . . . . . . . . . V–5

Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Para. 1c . . . . . . . . . . . . . . . . . . . . V–1

Records of punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Para. 8 . . . . . . . . . . . . . . . . . . . . . V–9

Remission of punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Para. 6c . . . . . . . . . . . . . . . . . . . . V–8

Setting aside punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Para. 6d . . . . . . . . . . . . . . . . . . . . V–8

Suspension of punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Para. 6a . . . . . . . . . . . . . . . . . . . . V–7

Trial by court-martial, right to demand . . . . . . . . . . . . . . . . V. Para. 3 . . . . . . . . . . . . . . . . . . . . . V–2

Vessel, attached to or embarked in . . . . . . . . . . . . . . . . . . . V. Para. 3 . . . . . . . . . . . . . . . . . . . . . V–2

Who may impose

Commander . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Para. 2a . . . . . . . . . . . . . . . . . . . . V–2

Officer in charge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Para. 2b . . . . . . . . . . . . . . . . . . . . V–2

Principal assistant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Para. 2c . . . . . . . . . . . . . . . . . . . . V–2

Nonmilitary property, waste, spoilage, or destruction . . . . . . IV. Para. 33 . . . . . . . . . . . . . . . . . . . . IV–49

Nonprivileged communications . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 510 . . . . . . . . . . . . . . . III–33

Not guilty, plea of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 910(a) . . . . . . . . . . . . . . . . . . II–99

Notice

See also Disclosure and discovery.

To military judge of pretrial agreement . . . . . . . . . . . . . . . . R.C.M. 910(f)(2) . . . . . . . . . . . . . . . . II–101

Oaths

Affirmation, included in . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 807(a) . . . . . . . . . . . . . . . . . . II–80

Authority to administer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Art. 136, UCMJ . . . . . . . . . . . . . . . . A2–35

Defense counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 807(b) . . . . . . . . . . . . . . . . . . II–81

Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 807(a) . . . . . . . . . . . . . . . . . . II–80

Deposition witness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 702(f)(4) . . . . . . . . . . . . . . . . II–60

Escort . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 807(b) . . . . . . . . . . . . . . . . . . II–81

False swearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 79 . . . . . . . . . . . . . . . . . . . . IV–125

Forms of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 807(b)(2) . . . . . . . . . . . . . . . . II–81

Fraud against United States, in connection with . . . . . . . . . IV. Para. 58 . . . . . . . . . . . . . . . . . . . . IV–107

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 807 . . . . . . . . . . . . . . . . . . . . II–80

Guilty plea, accused . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 910(c)(5) . . . . . . . . . . . . . . . . II–100

Interpreter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 807(b) . . . . . . . . . . . . . . . . . . II–81

Investigation, pretrial, witnesses . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 405(h)(1) . . . . . . . . . . . . . . . . II–38

Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 807(b) . . . . . . . . . . . . . . . . . . II–81

Military judge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 807(b) . . . . . . . . . . . . . . . . . . II–81

Perjury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 57 . . . . . . . . . . . . . . . . . . . . IV–105

Preferral of charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 307(b) . . . . . . . . . . . . . . . . . . II–27

Probable cause information, not required . . . . . . . . . . . . . . . Mil. R. Evid. 315(f)(2) . . . . . . . . . . III–15

Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 807(b)(2) . . . . . . . . . . . . . . . . II–81

Regulations of Secretary concerned . . . . . . . . . . . . . . . . . . . . Art. 42(a), UCMJ; R.C.M. 807(b) . A2–12; II–81

Reporter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 807(b) . . . . . . . . . . . . . . . . . . II–81

Trial counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 807(b) . . . . . . . . . . . . . . . . . . II–81

Witnesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 807(b); Mil. R. Evid. 603 . II–81; III–35

Obedience to orders, as a defense . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(d) . . . . . . . . . . . . . . . . . . II–109

Objection

See also Evidence, Objections; Motions.

To evidence at pretrial investigation . . . . . . . . . . . . . . . . . . . R.C.M. 405(g)(4); 405(g)(5) . . . . . . II–37

To trial by summary court-martial . . . . . . . . . . . . . . . . . . . . R.C.M. 1303 . . . . . . . . . . . . . . . . . . . II–178

Waiver, generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(e); Mil. R. Evid. 103(a) II–92; III–1

Obscene

See also Indecent.

Mail . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 94 . . . . . . . . . . . . . . . . . . . . IV–132

Obstructing justice

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 96 . . . . . . . . . . . . . . . . . . . . IV–133

Solicitation distinguished . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 6c(3) . . . . . . . . . . . . . . . . . IV–7

Occupied territory

Military jurisdiction exercised in . . . . . . . . . . . . . . . . . . . . . . I. Para. 2(a)(3) . . . . . . . . . . . . . . . . . I–1

Violation of laws of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 201(f)(1)(B) . . . . . . . . . . . . . II–11

Offenses

See also specific offenses.

Disposition of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 306 . . . . . . . . . . . . . . . . . . . . II–25

Failure to report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 2c(2) . . . . . . . . . . . . . . . . . IV–2

Joinder of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 601(e)(2) . . . . . . . . . . . . . . . . II–53

Jurisdiction of courts-martial over . . . . . . . . . . . . . . . . . . . . . R.C.M. 203 . . . . . . . . . . . . . . . . . . . . II–15

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Minor, disposition by nonjudicial punishment . . . . . . . . . . . V. Para. 1e . . . . . . . . . . . . . . . . . . . . V–1

Report of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 301 . . . . . . . . . . . . . . . . . . . . II–17

Uncharged, action on . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 801(d) . . . . . . . . . . . . . . . . . . II–73

Offer of proof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 103(a)(2); 103(b) . . . III–1

Office hours. See Nonjudicial Punishment.

Officer

Commissioned

See also Commissioned officer.

Accused as, composition of court-martial . . . . . . . . . . R.C.M. 502(a)(1) . . . . . . . . . . . . . . . . II–42

Apprehend, authority to . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 302(b)(2) . . . . . . . . . . . . . . . . II–18

Assault on

In execution of office . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 14 . . . . . . . . . . . . . . . . . . . . IV–18

Not in execution of office . . . . . . . . . . . . . . . . . . . IV. Para. 54 . . . . . . . . . . . . . . . . . . . . IV–98

Conduct unbecoming . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 59 . . . . . . . . . . . . . . . . . . . . IV–110

Dismissal by general court-martial . . . . . . . . . . . . . . . . R.C.M. 1003(b)(8)(A) . . . . . . . . . . . . II–125

Dismissal by President, right to request trial by courtmartial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 107 . . . . . . . . . . . . . . . . . . . . II–6

Disobedience of superior . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 14 . . . . . . . . . . . . . . . . . . . . IV–18

Disrespect toward superior . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 13 . . . . . . . . . . . . . . . . . . . . IV–17

Restraint of, pretrial . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 304(b) . . . . . . . . . . . . . . . . . . II–20

In charge

Authority to impose nonjudicial punishment . . . . . . . . V. Para. 2b . . . . . . . . . . . . . . . . . . . . V–2

Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Art. 1(4), UCMJ; R.C.M. 103(20) . A2–1; II–2

Noncommissioned. See Noncommissioned and

petty officer.

Petty. See Petty officer.

Warrant. See Warrant officer.

Official communications, privileges . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 505; 506 . . . . . . . . . . III–25; III–29

Official documents

See also Evidence.

False . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 31 . . . . . . . . . . . . . . . . . . . . IV–46

Official records

See also Evidence.

Absence of, evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(7); 803(10) . . . . . III–40; III–41

Admissibility as evidence, general rule . . . . . . . . . . . . . . . . Mil. R. Evid. 803(6); 803(8) . . . . . . III–40; III–41

Attesting certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 902(4 a) . . . . . . . . . . III–44

Authentication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 901; 902 . . . . . . . . . . III–43; III–44

Extract copies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 1006 . . . . . . . . . . . . . . III–46

Logs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(6); 803(8) . . . . . . III–40; III–41

Military records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(6); 803(8) . . . . . . III–40; III–41

Morning report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(6); 803(8) . . . . . . III–40; III–41

Notes or memoranda, composed from . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(6); 803(8) . . . . . . III–40; III–41

Official publication of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(6); 803(8) . . . . . . III–40; III–41

Self-authentication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 902 . . . . . . . . . . . . . . . III–44

Service record . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(6); 803(8) . . . . . . III–40; III–41

Summaries of official records . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(6); 803(8); 1006 III–40; III–41; III–46

Unit personnel diary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(6); 803(8) . . . . . . II–1

Officials, contempt toward . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 12 . . . . . . . . . . . . . . . . . . . . IV–16

Official statement, false . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 31 . . . . . . . . . . . . . . . . . . . . IV–46

Opening mail . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 93 . . . . . . . . . . . . . . . . . . . . IV–131

Opinion evidence. See Evidence, Opinion.

Orderly

Detailing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 501(c) . . . . . . . . . . . . . . . . . . II–42

Disqualification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(e)(2); 502(f) . . . . . . . . . II–46

Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(e)(3)(C) . . . . . . . . . . . . . II–46

Qualifications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(e)(1) . . . . . . . . . . . . . . . . II–46

Orders

See also Convening orders; Promulgating orders.

Failure to obey . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 16 . . . . . . . . . . . . . . . . . . . . IV–23

General orders, disobedience of . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 16 . . . . . . . . . . . . . . . . . . . . IV–23

Lawfulness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 14c(2)(a) . . . . . . . . . . . . . . IV–19

Obedience to, as defense . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(d) . . . . . . . . . . . . . . . . . . II–109

Willful disobedience . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Paras. 14; 15 . . . . . . . . . . . . . . . IV–18; IV–21

Other trial

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Action on . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1107(f)(5)(A) . . . . . . . . . . . . II–154

Convening authority ordering . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1107(e)(2) . . . . . . . . . . . . . . . II–153

Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 810(e) . . . . . . . . . . . . . . . . . . II–84

Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 810(a); 810(b); 810(c) . . . . II–83; II–84

Sentence limitations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 810(d) . . . . . . . . . . . . . . . . . . II–84

Overt acts

Attempts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 4c(1); 4c(2) . . . . . . . . . . . . IV–4

Conspiracy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 5c(4) . . . . . . . . . . . . . . . . . IV–6

Pandering

Forcible . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 45 . . . . . . . . . . . . . . . . . . . . IV–68

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 97 . . . . . . . . . . . . . . . . . . . . IV–134

Solicitation distinguished . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 6c(3) . . . . . . . . . . . . . . . . . IV–7

Pardon, motion to dismiss based on . . . . . . . . . . . . . . . . . . . . . . R.C.M. 907(b)(2)(D)(i) . . . . . . . . . . . II–96

Parole, improper use of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 25 . . . . . . . . . . . . . . . . . . . . IV–38

Party

To conspiracy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 5c(1) . . . . . . . . . . . . . . . . . IV–5

To court-martial, defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 103(16) . . . . . . . . . . . . . . . . . II–2

To offense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 1b(1); 1b(2) . . . . . . . . . . . IV–1

Pass, false or unauthorized . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 77 . . . . . . . . . . . . . . . . . . . . IV–124

Patient-doctor, no privileged communication . . . . . . . . . . . . . . . Mil. R. Evid. 501(d) . . . . . . . . . . . . III–23

Peace, breach of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 41 . . . . . . . . . . . . . . . . . . . . IV–61

Peremptory challenges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 912(g) . . . . . . . . . . . . . . . . . . II–104

Perjury

See also False swearing.

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 57 . . . . . . . . . . . . . . . . . . . . IV–105

Guilty plea inquiry, statements during . . . . . . . . . . . . . . . . . R.C.M. 910(c)(5) . . . . . . . . . . . . . . . . II–100

Immunity, not extending to . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 704(b) . . . . . . . . . . . . . . . . . . II–66

New trial, grounds for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1210(f)(3) . . . . . . . . . . . . . . . II–175

Subornation of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 98 . . . . . . . . . . . . . . . . . . . . IV–136

Permits, false or unauthorized . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 77 . . . . . . . . . . . . . . . . . . . . IV–124

Perpetrator

See also Principals.

Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 1b(2)(a) . . . . . . . . . . . . . . . IV–1

Personnel of courts-martial

See also specific topics.

Announcement of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 813 . . . . . . . . . . . . . . . . . . . . II–86

Censure of, prohibited . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 104 . . . . . . . . . . . . . . . . . . . . II–4

Changes of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 505 . . . . . . . . . . . . . . . . . . . . II–49

Detail of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 503 . . . . . . . . . . . . . . . . . . . . II–46

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 501 . . . . . . . . . . . . . . . . . . . . II–42

Qualification and duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502 . . . . . . . . . . . . . . . . . . . . II–42

Personnel records, admissibility . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(6); 803(8) . . . . . . III–40; III–41

Petty officer

Apprehend, authority to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 302(b)(2) . . . . . . . . . . . . . . . . II–18

Assault on

In execution of office . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 15 . . . . . . . . . . . . . . . . . . . . IV–21

Not in execution of office . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 54 . . . . . . . . . . . . . . . . . . . . IV–98

Contempt toward . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 15 . . . . . . . . . . . . . . . . . . . . IV–21

Disobedience . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 15 . . . . . . . . . . . . . . . . . . . . IV–21

Disrespect toward . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 15 . . . . . . . . . . . . . . . . . . . . IV–21

Photographs

Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 1001(2) . . . . . . . . . . . III–45

Disclosure by defense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(b)(3) . . . . . . . . . . . . . . . . II–57

Disclosure upon defense request . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(a)(2)(A) . . . . . . . . . . . . . II–56

Taking in courtroom, prohibited . . . . . . . . . . . . . . . . . . . . . . R.C.M. 806(c) . . . . . . . . . . . . . . . . . . II–80

Physical examination

Disclosure by defense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(b)(4) . . . . . . . . . . . . . . . . II–57

Disclosure upon defense request . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(a)(2)(B) . . . . . . . . . . . . . II–56

Not an unlawful search . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 312(f) . . . . . . . . . . . . . III–11

Physical inability, as a defense . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(i) . . . . . . . . . . . . . . . . . . II–111

Physician, no privileged communication to . . . . . . . . . . . . . . . . . Mil. R. Evid. 501(d) . . . . . . . . . . . . III–23

Pillaging . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Paras. 23; 27 . . . . . . . . . . . . . . . IV–33; IV–39

Place of court-martial

Change of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 906(b)(11) . . . . . . . . . . . . . . . II–95

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Convening authority

Designating . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 504(d)(1); 504(d)(2) . . . . . . II–49

Responsibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 504(e) . . . . . . . . . . . . . . . . . . II–49

Jurisdiction, not affected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 201(a)(3) . . . . . . . . . . . . . . . . II–9

Plain error . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 103(d) . . . . . . . . . . . . III–1

Plan or design of accused, evidence of . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 404(b) . . . . . . . . . . . . III–19

Plane. See Aircraft.

Pleadings. See Charges and specifications.

Pleas

Alternatives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 910(a) . . . . . . . . . . . . . . . . . . II–99

Arraignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 904 . . . . . . . . . . . . . . . . . . . . II–90

Article 39(a) session, taking at . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 910(e) . . . . . . . . . . . . . . . . . . II–100

Capital case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 910(a)(1) . . . . . . . . . . . . . . . . II–99

Change . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 910(h)(1) . . . . . . . . . . . . . . . . II–101

Conditional guilty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 910(a)(2) . . . . . . . . . . . . . . . . II–100

Defenses and objections before entered . . . . . . . . . . . . . . . . R.C.M. 905(b) . . . . . . . . . . . . . . . . . . II–91

Exceptions and substitutions . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 910(a)(1) . . . . . . . . . . . . . . . . II–99

Failure to plead . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 910(b) . . . . . . . . . . . . . . . . . . II–100

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 910 . . . . . . . . . . . . . . . . . . . . II–99

Guilty

Accuracy, determination of . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 910(e) . . . . . . . . . . . . . . . . . . II–100

Advice to accused . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 910(c) . . . . . . . . . . . . . . . . . . II–100

Capital cases, prohibited in . . . . . . . . . . . . . . . . . . . . . . R.C.M. 910(a)(1) . . . . . . . . . . . . . . . . II–99

Effect of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 910(c) . . . . . . . . . . . . . . . . . . II–100

Factual basis required . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 910(e) . . . . . . . . . . . . . . . . . . II–100

False statements during inquiry . . . . . . . . . . . . . . . . . . . R.C.M. 910(c)(5) . . . . . . . . . . . . . . . . II–100

Findings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 910(g) . . . . . . . . . . . . . . . . . . II–101

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 910(c); 910(d); 910(e) . . . . II–100; II–101

Improvidently entered . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 910(d); 910(e) . . . . . . . . . . . II–100; II–102

Inconsistent matters after plea . . . . . . . . . . . . . . . . . . . . R.C.M. 910(e) . . . . . . . . . . . . . . . . . . II–102

Inconsistent statements after findings . . . . . . . . . . . . . . R.C.M. 910(h)(2) . . . . . . . . . . . . . . . . II–101

Inquiry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 910(c); 910(d); 910(e) . . . . II–100; II–103

Oath . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 910(c)(5) . . . . . . . . . . . . . . . . II–100

Pretrial agreement inquiry . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 910(f); 910(h)(3) . . . . . . . . . II–101; II–102

Procedure

Consultation with counsel . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(d)(6) . . . . . . . . . . . . . . . . II–45

Explanation to accused of effect . . . . . . . . . . . . . . . . R.C.M. 910(c) . . . . . . . . . . . . . . . . . . II–100

Record of explanation and reply . . . . . . . . . . . . . . . . R.C.M. 910(i) . . . . . . . . . . . . . . . . . . II–102

Rehearings, changing . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 810(a)(2)(B) . . . . . . . . . . . . . II–83

Statements during providency

Inadmissible on merits . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 410 . . . . . . . . . . . . . . . III–20

Inconsistent with plea . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 910(h)(2) . . . . . . . . . . . . . . . . II–101

Summary courts-martial . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1304(b)(2)(D)(ii) . . . . . . . . . II–180

Voluntariness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 910(d) . . . . . . . . . . . . . . . . . . II–100

Vote, necessity of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 910(g)(3) . . . . . . . . . . . . . . . . II–101

Waiver of objections by . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 910(j) . . . . . . . . . . . . . . . . . . II–102

Withdrawal after findings . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 910(h)(1) . . . . . . . . . . . . . . . . II–101

Irregular . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 910(b) . . . . . . . . . . . . . . . . . . II–100

Nondisclosure of guilty plea negotiations . . . . . . . . . . . . . . . Mil. R. Evid. 410 . . . . . . . . . . . . . . . III–20

Refusal to enter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 910(b) . . . . . . . . . . . . . . . . . . II–100

Rehearings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 810(a)(1); 810(a)(2)(B) . . . . II–83

Summary courts-martial

Entry of pleas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1304(b)(2)(D) . . . . . . . . . . . . II–179

Explanation to accused . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1304(b)(1)(H) . . . . . . . . . . . . II–179

Plunder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 23 . . . . . . . . . . . . . . . . . . . . IV–33

Police. See Law enforcement official.

Political vote, privilege . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 508 . . . . . . . . . . . . . . . III–33

Polling of members, prohibited . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 922(e); 1007(c) . . . . . . . . . . II–119; II–134

Exception . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 606 . . . . . . . . . . . . . . . III–35

Polygamy, testimony of spouse . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 504 . . . . . . . . . . . . . . . III–24

Possession of controlled substance . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 37 . . . . . . . . . . . . . . . . . . . . IV–54

Post-trial confinement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1101(b) . . . . . . . . . . . . . . . . . II–136

See also Confinement.

Post-trial procedure

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See also specific topics.

Disposition of record of trial . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1111 . . . . . . . . . . . . . . . . . . . II–161

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Chapter XI . . . . . . . . . . . . . . . . . . . . . II–136

Matters submitted by accused

Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1105(b) . . . . . . . . . . . . . . . . . II–146

Right to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1105(a) . . . . . . . . . . . . . . . . . II–146

Time periods . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1105(c) . . . . . . . . . . . . . . . . . II–146

Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1105(d) . . . . . . . . . . . . . . . . . II–147

Review by a judge advocate . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1112 . . . . . . . . . . . . . . . . . . . II–161

Summary courts-martial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1306 . . . . . . . . . . . . . . . . . . . II–181

Post-trial recommendation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1106 . . . . . . . . . . . . . . . . . . . II–147

See also Staff judge advocate.

Post-trial sessions

Article 39(a) sessions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1102(b)(2) . . . . . . . . . . . . . . . II–138

Findings; lack of mental responsibility . . . . . . . . . . . . . . . . . R.C.M. 1102A . . . . . . . . . . . . . . . . . . II–139

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1102 . . . . . . . . . . . . . . . . . . . II–138

Matters precluded from . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1102(c) . . . . . . . . . . . . . . . . . II–138

Procedure

Action by military judge, members . . . . . . . . . . . . . . . R.C.M. 1102(e)(2) . . . . . . . . . . . . . . . II–139

Personnel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1102(e)(1) . . . . . . . . . . . . . . . II–139

Record . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1102(e)(3) . . . . . . . . . . . . . . . II–139

Proceedings in revision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1102(b)(1) . . . . . . . . . . . . . . . II–138

When directed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1102(d) . . . . . . . . . . . . . . . . . II–138

Preferral of charges

Accuser. See Accuser.

Attachment of jurisdiction, effecting . . . . . . . . . . . . . . . . . . . R.C.M. 202(c)(2) . . . . . . . . . . . . . . . . II–15

Charge, defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 307(c)(2) . . . . . . . . . . . . . . . . II–27

Deposition, requisite to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 702(a) . . . . . . . . . . . . . . . . . . II–59

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 307 . . . . . . . . . . . . . . . . . . . . II–27

Motion as to defects in . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(b)(1) . . . . . . . . . . . . . . . . II–91

Notification to accused of . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 308 . . . . . . . . . . . . . . . . . . . . II–30

Oath required . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 307(b)(1) . . . . . . . . . . . . . . . . II–27

Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 307(b) . . . . . . . . . . . . . . . . . . II–27

Speedy trial, effect of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 707(a); 707(b) . . . . . . . . . . . II–71

Waiver of defects in, by failure to raise . . . . . . . . . . . . . . . R.C.M. 905(e) . . . . . . . . . . . . . . . . . . II–92

Who may prefer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 307(a) . . . . . . . . . . . . . . . . . . II–27

Preliminary inquiry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 303 . . . . . . . . . . . . . . . . . . . . II–19

Preliminary questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 104 . . . . . . . . . . . . . . . III–1

Premeditation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 43c(2) . . . . . . . . . . . . . . . . IV–63

Preparation of record of trial. See Record of trial.

Presentation of case on merits . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 913 . . . . . . . . . . . . . . . . . . . . II–105

See also specific topics.

Presentencing procedure

Accused, statement by . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1001(c)(2) . . . . . . . . . . . . . . . II–122

Arguments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1001(g) . . . . . . . . . . . . . . . . . II–123

Defense, matters presented by . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1001(c) . . . . . . . . . . . . . . . . . II–122

Deposition, for use at . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 702(c)(3)(B) . . . . . . . . . . . . . II–60

Evidence for

Discovery of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(a)(5) . . . . . . . . . . . . . . . . II–56

Production of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 703(f) . . . . . . . . . . . . . . . . . . II–65

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1001 . . . . . . . . . . . . . . . . . . . II–120

Production of witnesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1001(e) . . . . . . . . . . . . . . . . . II–122

Prosecution, matters presented by . . . . . . . . . . . . . . . . . . . . . R.C.M. 1001(b) . . . . . . . . . . . . . . . . . II–120

Rebuttal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1001(d) . . . . . . . . . . . . . . . . . II–122

Rehearings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 810(a)(2) . . . . . . . . . . . . . . . . II–83

Presenting false claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 58 . . . . . . . . . . . . . . . . . . . . IV–107

President of court-martial

Duties

Deliberations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 921(a); 1006(b) . . . . . . . . . . II–117; II–132

Findings, announcing . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 922(b) . . . . . . . . . . . . . . . . . . II–118

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(b)(2) . . . . . . . . . . . . . . . . II–43

Sentence, announcing . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1007(a) . . . . . . . . . . . . . . . . . II–133

Voting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 921(c)(6); 1006(d)(3)(B) . . . II–118; II–133

Qualifications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(b)(1) . . . . . . . . . . . . . . . . II–43

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Special court-martial without military judge

Conferences prohibited . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 802(f) . . . . . . . . . . . . . . . . . . II–76

Duties of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(b)(2)(C) . . . . . . . . . . . . . II–43

“Military judge” including . . . . . . . . . . . . . . . . . . . . . . R.C.M. 103(15); 502(b)(2)(C) . . . . . II–2; II–43

Rulings of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 801(e)(2); 801(e)(3) . . . . . . . II–74

President of the United States

Capital cases, approval of sentence . . . . . . . . . . . . . . . . . . . R.C.M. 1207 . . . . . . . . . . . . . . . . . . . II–173

Contempt toward . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 12 . . . . . . . . . . . . . . . . . . . . IV–16

Courts-martial, power to convene . . . . . . . . . . . . . . . . . . . . . Art. 22, UCMJ; R.C.M. 504(b)(1) . A2–7; II–48

Dismissal of officer, right to trial . . . . . . . . . . . . . . . . . . . . . R.C.M. 107 . . . . . . . . . . . . . . . . . . . . II–6

Military Rules of Evidence, action concerning amendments Mil. R. Evid. 1102 . . . . . . . . . . . . . . III–47

Presumption

Innocence, instruction on . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 920(e)(5)(A) . . . . . . . . . . . . . II–116

Mental capacity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 909(b) . . . . . . . . . . . . . . . . . . II–99

Mental responsibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(k)(3)(A) . . . . . . . . . . . . . II–112

Witness competency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 601 . . . . . . . . . . . . . . . III–35

Pretense, false . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Paras. 46; 78 . . . . . . . . . . . . . . . IV–84; IV–125

Pretrial advice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 406 . . . . . . . . . . . . . . . . . . . . II–40

See also Advice, pretrial.

Pretrial agreements

Action pursuant to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 705(b)(2)(E) . . . . . . . . . . . . . II–68

Authority to enter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 705(a); 705(d)(4) . . . . . . . . . II–67; II–69

Conditional guilty plea . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 910(a)(2) . . . . . . . . . . . . . . . . II–100

Confessional stipulation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 705(b)(1) . . . . . . . . . . . . . . . . II–68

Disclosure of

Plea negotiations, prohibited . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 410 . . . . . . . . . . . . . . . III–20

To members, prohibited . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 705(e) . . . . . . . . . . . . . . . . . . II–69

To military judge before plea . . . . . . . . . . . . . . . . . . . . R.C.M. 910(f)(3) . . . . . . . . . . . . . . . . II–101

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 705 . . . . . . . . . . . . . . . . . . . . II–67

Inquiry by military judge . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 910(f)(4); 910(h)(3) . . . . . . . II–101; II–102

Nature of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 705(b) . . . . . . . . . . . . . . . . . . II–68

Notice of, to military judge . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 910(f)(2) . . . . . . . . . . . . . . . . II–101

Procedure to obtain

Acceptance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 705(d)(3) . . . . . . . . . . . . . . . . II–69

Formal submission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 705(d)(2) . . . . . . . . . . . . . . . . II–69

Negotiation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 705(d)(1) . . . . . . . . . . . . . . . . II–69

Offer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 705(d)(1) . . . . . . . . . . . . . . . . II–69

Referral pursuant to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 705(b)(2)(A); 705(b)(2)(B) . II–68

Sentence, effect at rehearing . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 810(d)(2) . . . . . . . . . . . . . . . . II–84

Terms and conditions

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 705(c) . . . . . . . . . . . . . . . . . . II–68

Permissible terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 705(c)(2) . . . . . . . . . . . . . . . . II–68

Prohibited terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 705(c)(1) . . . . . . . . . . . . . . . . II–68

Withdrawal of

Charges pursuant to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 705(b)(2)(C) . . . . . . . . . . . . . II–68

Parties to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 705(d)(4) . . . . . . . . . . . . . . . . II–69

Pretrial confinement. See Confinement, pretrial.

Pretrial investigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 405 . . . . . . . . . . . . . . . . . . . . II–34

See also Investigation, pretrial.

Principal assistant, delegation to

Excuse members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 505(c)(1)(B) . . . . . . . . . . . . . II–49

Nonjudicial punishment authority . . . . . . . . . . . . . . . . . . . . . V. Para. 2c . . . . . . . . . . . . . . . . . . . . V–2

Principals

Accessory after the fact, relationship . . . . . . . . . . . . . . . . . . IV. Para. 2c(1); 2c(4); 2c(5) . . . . . . IV–2; IV–3

Aider and abettor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 1b(1) . . . . . . . . . . . . . . . . . IV–1

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 1 . . . . . . . . . . . . . . . . . . . . . IV–1

Perpetrator . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 1b(1); 1b(2)(a) . . . . . . . . . IV–1

Pleading . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 307(c)(3) . . . . . . . . . . . . . . . . II–27

Prior testimony, admissibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 804(b)(1) . . . . . . . . . . III–42

Prisoner

See also Confinement.

Authority to release

From post-trial confinement . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1101(b)(2) . . . . . . . . . . . . . . . II–136

From pretrial confinement . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 305(g) . . . . . . . . . . . . . . . . . . II–22

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Drinking liquor with . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 74 . . . . . . . . . . . . . . . . . . . . IV–122

Drunk . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 75 . . . . . . . . . . . . . . . . . . . . IV–123

Jurisdiction over . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Art. 2(a)(7), UCMJ; R.C.M. 202(a) A2–2; II–13

Release of, without proper authority . . . . . . . . . . . . . . . . . . . IV. Para. 20 . . . . . . . . . . . . . . . . . . . . IV–30

Suffering to escape . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 20 . . . . . . . . . . . . . . . . . . . . IV–30

Prisoner of war

Jurisdiction over . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Art. 2(a)(9), UCMJ; R.C.M. 202(a) A2–2; II–13

Misconduct as . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 29 . . . . . . . . . . . . . . . . . . . . IV–42

Privileged matter. See Evidence,Privileges.

Probable cause

See also Search and seizure.

Apprehension . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 302(c) . . . . . . . . . . . . . . . . . . II–18

Confinement

Pending vacation of suspension . . . . . . . . . . . . . . . . . . . R.C.M. 1109(c)(3) . . . . . . . . . . . . . . . II–156

Pretrial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 305(d); 305(h)(2)(B) . . . . . . II–21; II–23

Restraint, pretrial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 304(c) . . . . . . . . . . . . . . . . . . II–20

Search . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 315(f) . . . . . . . . . . . . . III–15

Seizure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 316(b) . . . . . . . . . . . . III–16

Probation

See also Suspension of sentence.

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1108 . . . . . . . . . . . . . . . . . . . II–155

Pretrial agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 705(c)(2)(D) . . . . . . . . . . . . . II–68

Proceedings in revision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1102(b)(1) . . . . . . . . . . . . . . . II–138

Procuring another to commit offense . . . . . . . . . . . . . . . . . . . . IV. Para. 1 . . . . . . . . . . . . . . . . . . . . . IV–1

Production of witnesses and evidence

See also Witness.

Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 703(a); 703(f) . . . . . . . . . . . . II–62; II–65

Expert witnesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 703(d) . . . . . . . . . . . . . . . . . . II–63

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 703 . . . . . . . . . . . . . . . . . . . . II–62

Interlocutory questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 703(b); 703(c) . . . . . . . . . . . II–62; II–63

Investigation, pretrial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 405(g) . . . . . . . . . . . . . . . . . . II–35

Merits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 703(b); 703(c) . . . . . . . . . . . II–62; II–64

Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 703(e); Appendix 7 . . . . . . . II–63; A7–1

Sentencing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 703(b)(2); 1001(e) . . . . . . . . II–62; II–123

Statements of witnesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 914 . . . . . . . . . . . . . . . . . . . . II–107

Unavailable evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 703(f)(2) . . . . . . . . . . . . . . . . II–65

Unavailable witness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 703(b)(3) . . . . . . . . . . . . . . . . II–62

Professional supervision, military judges and counsel . . . . . . R.C.M. 109 . . . . . . . . . . . . . . . . . . . . II–6

Promulgating orders

Authentication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1114(e) . . . . . . . . . . . . . . . . . II–165

Classified information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1114(d) . . . . . . . . . . . . . . . . . II–165

Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1114(c) . . . . . . . . . . . . . . . . . II–165

Distribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1114(f) . . . . . . . . . . . . . . . . . II–166

Forms for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Appendix 17 . . . . . . . . . . . . . . . . . . . A17–1

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1114 . . . . . . . . . . . . . . . . . . . II–165

Summary court-martial, not issued for . . . . . . . . . . . . . . . . . R.C.M. 1114(a)(3) . . . . . . . . . . . . . . . II–165

Who issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1114(b) . . . . . . . . . . . . . . . . . II–165

Property

Captured or abandoned, offenses concerning . . . . . . . . . . . . IV. Para. 27 . . . . . . . . . . . . . . . . . . . . IV–39

Military, offenses concerning . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 32 . . . . . . . . . . . . . . . . . . . . IV–47

Nonmilitary, offenses concerning . . . . . . . . . . . . . . . . . . . . . . IV. Para. 33 . . . . . . . . . . . . . . . . . . . . IV–49

Preventing seizure of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 103 . . . . . . . . . . . . . . . . . . . IV–138

Prosecutor. See Counsel; Trial counsel.

Prosecutorial discretion

Commander . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 306 . . . . . . . . . . . . . . . . . . . . II–25

Convening authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 401 . . . . . . . . . . . . . . . . . . . . II–31

Trial counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(d)(5) . . . . . . . . . . . . . . . . II–44

Prostitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 97 . . . . . . . . . . . . . . . . . . . . IV–134

Protecting the enemy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 28 . . . . . . . . . . . . . . . . . . . . IV–41

Provoking speech and gestures

Breach of peace . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Paras. 41; 42c(1) . . . . . . . . . . . . IV–61; IV–62

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 42 . . . . . . . . . . . . . . . . . . . . IV–62

Provost courts

Contempt power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Art. 48, UCMJ . . . . . . . . . . . . . . . . . A2–14

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Jurisdiction

Concurrent with other tribunals . . . . . . . . . . . . . . . . . . . R.C.M. 201(g) . . . . . . . . . . . . . . . . . . II–12

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. Para. 2(b)(2) . . . . . . . . . . . . . . . . . I–1

Psychiatrist

Mental examination of accused by . . . . . . . . . . . . . . . . . . . . R.C.M. 706(c)(1) . . . . . . . . . . . . . . . . II–70

Privileged communications . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 513 . . . . . . . . . . . . . . . III–33

Public record, offenses concerning . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 99 . . . . . . . . . . . . . . . . . . . . IV–136

See also Evidence.

Public trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 806 . . . . . . . . . . . . . . . . . . . . II–79

Closure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 806(b)(2) . . . . . . . . . . . . . . . . II–80

Control of spectators . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 806(b)(1) . . . . . . . . . . . . . . . . II–79

Punishments

See also specific topics.

Courts-martial

Authorized . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1003(b) . . . . . . . . . . . . . . . . . II–124

Confinement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1003(b)(7) . . . . . . . . . . . . . . . II–125

Confinement on bread and water or diminished rations R.C.M. 1003(b)(7) . . . . . . . . . . . . . . . II–125

Death . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1003(b)(9) . . . . . . . . . . . . . . . II–126

Fine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1003(b)(3) . . . . . . . . . . . . . . . II–124

Forfeiture of pay and allowances . . . . . . . . . . . . . . . . . R.C.M. 1003(b)(2) . . . . . . . . . . . . . . . II–124

General courts-martial . . . . . . . . . . . . . . . . . . . . . . . . . . . R . C . M . 2 0 1 ( f ) ( 1 ) ( A ) ( i i ) ;

201(f)(1)(B)(ii) . . . . . . . . . . . . . . . . . .

II–11

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1003 . . . . . . . . . . . . . . . . . . . II–124

Hard labor without confinement . . . . . . . . . . . . . . . . . . R.C.M. 1003(b)(6) . . . . . . . . . . . . . . . II–125

Increase in, circumstances permitting . . . . . . . . . . . . . . R.C.M. 1003(d) . . . . . . . . . . . . . . . . . II–127

Law of war . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1003(b)(10) . . . . . . . . . . . . . . II–126

Limits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1003(c) . . . . . . . . . . . . . . . . . II–126

Maximum punishment chart . . . . . . . . . . . . . . . . . . . . . . Appendix 12 . . . . . . . . . . . . . . . . . . . A12–1

Punitive separation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1003(b)(8) . . . . . . . . . . . . . . . II–125

Reduction in grade . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1003(b)(4) . . . . . . . . . . . . . . . II–125

Reprimand . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1003(b)(1) . . . . . . . . . . . . . . . II–124

Restitution

Not authorized . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 201(a) . . . . . . . . . . . . . . . . . . II–9

Pretrial agreement, permissible condition . . . . . . . R.C.M. 705(c)(2)(C) . . . . . . . . . . . . . II–68

Restriction to specified limits . . . . . . . . . . . . . . . . . . . . R.C.M. 1003(b)(5) . . . . . . . . . . . . . . . II–125

Special courts-martial . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 201(f)(2)(B) . . . . . . . . . . . . . II–12

Summary courts-martial . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1301(c); 1301(d) . . . . . . . . . II–177

Nonjudicial. See Nonjudicial punishment.

Prior, for minor offense, barring court-martial . . . . . . . . . . R.C.M. 907(b)(2)(D)(iv) . . . . . . . . . . II–96

Punitive articles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Part IV . . . . . . . . . . . . . . . . . . . . . . . . IV–1

See also specific offenses.

Qualifications

Assistant counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(d)(2) . . . . . . . . . . . . . . . . II–43

Associate defense counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(d)(1) . . . . . . . . . . . . . . . . II–43

Bailiff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(e)(1) . . . . . . . . . . . . . . . . II–46

Clerk . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(e)(1) . . . . . . . . . . . . . . . . II–46

Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(d) . . . . . . . . . . . . . . . . . . II–43

Defense Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(d)(1); 502(d)(3) . . . . . . II–43

Deposition officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 702(d)(1) . . . . . . . . . . . . . . . . II–60

Escort . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(e)(1) . . . . . . . . . . . . . . . . II–46

Individual counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(d)(3) . . . . . . . . . . . . . . . . II–43

Interpreter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(e)(1); Mil. R. Evid. 604 II–46; III–35

Lack of, action on discovery . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(f) . . . . . . . . . . . . . . . . . . II–46

Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(a)(1) . . . . . . . . . . . . . . . . II–42

Military judge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(c) . . . . . . . . . . . . . . . . . . II–43

Orderly . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(e)(1) . . . . . . . . . . . . . . . . II–46

President of court-martial . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(b)(1) . . . . . . . . . . . . . . . . II–43

Reporter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(e)(1) . . . . . . . . . . . . . . . . II–46

Trial counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(d)(1); 502(d)(2) . . . . . . II–43

Quarantine, medical, breaking . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 100 . . . . . . . . . . . . . . . . . . . IV–137

Questions

See also Testimony; Witness.

Ambiguous and misleading . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 611(a) . . . . . . . . . . . . . III–37

Control by military judge . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 611(a) . . . . . . . . . . . . . III–37

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Degrading . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 303; 611(a) . . . . . . . . III–4; III–37

Improper, insulting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 611(a) . . . . . . . . . . . . . III–37

Interlocutory. See Interlocutory questions.

Leading . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 611(c) . . . . . . . . . . . . . III–37

Refusal to answer, as offense . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 108 . . . . . . . . . . . . . . . . . . . IV–141

Suggesting inadmissible matter . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 611(a) . . . . . . . . . . . . . III–37

Questions of law, rulings on . . . . . . . . . . . . . . . . . . . . . . . . . . . . R . C . M . 8 0 1 ( a ) ( 4 ) ; 8 0 1 ( e ) ( 1 ) ;

801(e)(2) . . . . . . . . . . . . . . . . . . . . . . .

II–73; II–74

Quitting guard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 10 . . . . . . . . . . . . . . . . . . . . IV–12

See also Sentinel or lookout.

Quitting place of duty to avoid hazardous duty . . . . . . . . . . IV. Para. 9 . . . . . . . . . . . . . . . . . . . . . IV–9

Quitting place of duty to plunder or pillage . . . . . . . . . . . . . IV. Para. 23 . . . . . . . . . . . . . . . . . . . . IV–33

Radio, broadcasting from courtroom . . . . . . . . . . . . . . . . . . . . . . R.C.M. 806(c) . . . . . . . . . . . . . . . . . . II–80

Rape

Assault with intent to commit . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 64 . . . . . . . . . . . . . . . . . . . . IV–115

Evidence of similar crimes . . . . . . . . . . . . . . . . . . . . . . . . . . . M.R.E. 413; 414 . . . . . . . . . . . . . . . . III–21; III–22

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 45 . . . . . . . . . . . . . . . . . . . . IV–68

Murder while committing . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 43 . . . . . . . . . . . . . . . . . . . . IV–62

Unborn child, death or injury of . . . . . . . . . . . . . . . . . . . . . IV. Para. 4a . . . . . . . . . . . . . . . . . . . . IV–4

“Rape shield” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 412 . . . . . . . . . . . . . . . III–20

Reasonable doubt

Guilt, basis for finding of . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 918(c) . . . . . . . . . . . . . . . . . . II–114

Instruction on . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 920(e)(5) . . . . . . . . . . . . . . . . II–116

Rebuttal, evidence in . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 913(c)(1)(C); 1001(d) . . . . . II–106; II–122

Receipt

Delivering less than amount called for by . . . . . . . . . . . . . IV. Para. 58 . . . . . . . . . . . . . . . . . . . . IV–107

False . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 58 . . . . . . . . . . . . . . . . . . . . IV–107

Making or delivering, without knowledge of facts . . . . . . . IV. Para. 58 . . . . . . . . . . . . . . . . . . . . IV–107

Receiving stolen property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 106 . . . . . . . . . . . . . . . . . . . IV–140

Recess, announcement of personnel after . . . . . . . . . . . . . . . . . . . R.C.M. 813(b) . . . . . . . . . . . . . . . . . . II–86

Reciprocal jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 201(e) . . . . . . . . . . . . . . . . . . II–10

Reckless endangerment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 100a . . . . . . . . . . . . . . . . . . IV–137

Recklessly operating vehicle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 35 . . . . . . . . . . . . . . . . . . . . IV–52

Recollection refreshed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 612 . . . . . . . . . . . . . . . III–37

Recommendation of staff judge advocate or legal officer on

post-trial action

Disqualification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1106(b) . . . . . . . . . . . . . . . . . II–147

Form and content . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1106(d) . . . . . . . . . . . . . . . . . II–147

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1106 . . . . . . . . . . . . . . . . . . . II–147

Guilty, no findings of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1106(e) . . . . . . . . . . . . . . . . . II–148

Service on defense counsel . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1106(f) . . . . . . . . . . . . . . . . . II–148

Reconsideration

Findings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 924 . . . . . . . . . . . . . . . . . . . . II–119

Rulings by military judge . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(f) . . . . . . . . . . . . . . . . . . II–92

Sentence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1009 . . . . . . . . . . . . . . . . . . . II–134

Record of nonjudicial punishment . . . . . . . . . . . . . . . . . . . . . . . V. Para. 8 . . . . . . . . . . . . . . . . . . . . . V–9

Record of trial

Acquittal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1103(e) . . . . . . . . . . . . . . . . . II–141

Appeal by United States, prepared in . . . . . . . . . . . . . . . . . R.C.M. 908(b)(5) . . . . . . . . . . . . . . . . II–98

Audiotape . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1103(j) . . . . . . . . . . . . . . . . . II–142

Authentication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1104(a) . . . . . . . . . . . . . . . . . II–144

Contempt proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 809(d) . . . . . . . . . . . . . . . . . . II–83

Copies

General and special courts-martial . . . . . . . . . . . . . . . . . R.C.M. 1103(g)(1) . . . . . . . . . . . . . . . II–141

Summary court-martial . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1305(b) . . . . . . . . . . . . . . . . . II–181

Correction, certificate of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1104(d) . . . . . . . . . . . . . . . . . II–145

Disposition of after action . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1111 . . . . . . . . . . . . . . . . . . . II–161

Examination and correction before authentication

By defense counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1103(i)(1)(B) . . . . . . . . . . . . II–142

By summary court-martial . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1103(i)(2); 1305(b) . . . . . . . II–142; II–181

By trial counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1103(i)(1)(A) . . . . . . . . . . . . II–142

Forwarding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1104(e) . . . . . . . . . . . . . . . . . II–146

General courts-martial, contents . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1103(b)(2) . . . . . . . . . . . . . . . II–140

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1103; 1104 . . . . . . . . . . . . . . II–139; II–144

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Guide for preparing summarized record . . . . . . . . . . . . . . . . Appendix 13 . . . . . . . . . . . . . . . . . . . A13–1

Guide for preparing verbatim records . . . . . . . . . . . . . . . . . . Appendix 14 . . . . . . . . . . . . . . . . . . . A14–1

Guilty plea, requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 910(i) . . . . . . . . . . . . . . . . . . II–102

Loss of notes or recordings . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1103(f) . . . . . . . . . . . . . . . . . II–141

Loss of records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1104(c) . . . . . . . . . . . . . . . . . II–145

New trial, use at . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 810(c) . . . . . . . . . . . . . . . . . . II–84

Not guilty, lack of mental responsibility . . . . . . . . . . . . . . . R.C.M. 1103(e) . . . . . . . . . . . . . . . . . II–141

Other trial, use at . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 810(c) . . . . . . . . . . . . . . . . . . II–84

Preparation of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1103 . . . . . . . . . . . . . . . . . . . II–139

Recommendation of staff judge advocate or legal officer,

before action on . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1106 . . . . . . . . . . . . . . . . . . . II–147

Rehearing, use at . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 810(a)(2); 810(c) . . . . . . . . . II–83; II–84

Security classification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1103(h) . . . . . . . . . . . . . . . . . II–142

Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1104(b) . . . . . . . . . . . . . . . . . II–144

Special courts-martial, contents . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1103(c) . . . . . . . . . . . . . . . . . II–141

Summary courts-martial, contents . . . . . . . . . . . . . . . . . . . . . R.C.M. 1305; Appendix 15 . . . . . . . II–180; A15–1

Termination prior to findings . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1103(e) . . . . . . . . . . . . . . . . . II–141

Trial counsel

Examination by . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1103(i)(1)(A) . . . . . . . . . . . . II–142

Responsibility for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 808; 1103(b)(1) . . . . . . . . . . II–82; II–140

Verbatim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1103(b)(2)(B); 1103(c)(1) . . II–140; II–141

Videotape . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1103(j) . . . . . . . . . . . . . . . . . II–142

Views and inspections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 913(c)(3) . . . . . . . . . . . . . . . . II–106

Record, public, altering, concealing, removing, mutilating,

obliterating, destroying . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 99 . . . . . . . . . . . . . . . . . . . . IV–136

Recusal of military judge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 902 . . . . . . . . . . . . . . . . . . . . II–88

Redress of grievances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Art. 138, UCMJ . . . . . . . . . . . . . . . . A2–35

Referral of charges

Accuser, disqualified . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 601(c) . . . . . . . . . . . . . . . . . . II–52

Authority to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 601(b) . . . . . . . . . . . . . . . . . . II–52

Basis for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 601(d)(1) . . . . . . . . . . . . . . . . II–52

Capital offense

Referred as noncapital . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 201(f)(1)(A)(iii)(b) . . . . . . . . II–11

To special court-martial . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 201(f)(2)(C) . . . . . . . . . . . . . II–12

Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 601(a) . . . . . . . . . . . . . . . . . . II–52

Disqualification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 601(c) . . . . . . . . . . . . . . . . . . II–52

Instructions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 601(e)(1) . . . . . . . . . . . . . . . . II–52

General courts-martial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 407(a)(6); 601(d)(2) . . . . . . . II–41; II–52

Joinder of

Accused . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 601(e)(3) . . . . . . . . . . . . . . . . II–53

Offenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 601(e)(2) . . . . . . . . . . . . . . . . II–53

Jurisdictional requisite, as . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 201(b)(3) . . . . . . . . . . . . . . . . II–9

Motion as to defect in . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(b)(1); 905(e) . . . . . . . . . II–91; II–92

National security, affecting . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 401(d); 407(b) . . . . . . . . . . . II–32; II–41

Order of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 601(e)(1) . . . . . . . . . . . . . . . . II–52

Pretrial agreement concerning . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 705(b)(2)(A); 705(b)(2)(B) . II–68

Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 601(e) . . . . . . . . . . . . . . . . . . II–52

Special courts-martial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 404(d); 601(d)(1) . . . . . . . . . II–33; II–52

Summary courts-martial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 403(b)(4); 601(d)(1) . . . . . . II–33; II–52

Superior convening authority, powers regarding . . . . . . . . . R.C.M. 601(f) . . . . . . . . . . . . . . . . . . II–53

War, effect on . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 401(d); 407(b) . . . . . . . . . . . II–32; II–41

Withdrawn charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 604(b) . . . . . . . . . . . . . . . . . . II–54

Withholding, authority to . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 601(b) . . . . . . . . . . . . . . . . . . II–52

Refreshing recollection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 612 . . . . . . . . . . . . . . . III–37

Refusal to testify, wrongful . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 108 . . . . . . . . . . . . . . . . . . . IV–141

Regulations, failure to obey . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 16 . . . . . . . . . . . . . . . . . . . . IV–23

Rehearing

Action on . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1107(f)(5) . . . . . . . . . . . . . . . II–154

Former testimony, admissibility at . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 804(b)(1) . . . . . . . . . . III–42

Ordering . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1107(c)(2)(B); 1107(e)(1) . . II–151; II–152

Procedure

Composition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 810(b) . . . . . . . . . . . . . . . . . . II–84

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 810 . . . . . . . . . . . . . . . . . . . . II–83

Record, examination of . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 810(c) . . . . . . . . . . . . . . . . . . II–84

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Sentence limitations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 810(d) . . . . . . . . . . . . . . . . . . II–84

Pretrial agreement, effect of . . . . . . . . . . . . . . . . . . . . . . R.C.M. 810(d)(2) . . . . . . . . . . . . . . . . II–84

Releasing prisoner without proper authority . . . . . . . . . . . . . . IV. Para. 20 . . . . . . . . . . . . . . . . . . . . IV–30

Relevancy. See Evidence.

Relief, not affording, before enemy . . . . . . . . . . . . . . . . . . . . . . IV. Para. 23 . . . . . . . . . . . . . . . . . . . . IV–33

Religious beliefs or opinions, not subject to inquiry . . . . . . . . Mil. R. Evid. 610 . . . . . . . . . . . . . . . III–37

Remission of

Nonjudicial punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Para. 6c . . . . . . . . . . . . . . . . . . . . V–8

Sentence

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1108(a) . . . . . . . . . . . . . . . . . II–155

Of suspension . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1108(e) . . . . . . . . . . . . . . . . . II–156

Who may remit

Convening authority . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1108(b) . . . . . . . . . . . . . . . . . II–155

Judge Advocate General, The . . . . . . . . . . . . . . . . . . R.C.M. 1201(c) . . . . . . . . . . . . . . . . . II–168

Service Secretary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1206(b)(1) . . . . . . . . . . . . . . . II–173

Reopening case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 913(c)(5) . . . . . . . . . . . . . . . . II–106

Report of

Offense

Failure to make . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 2c(2) . . . . . . . . . . . . . . . . . IV–2

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 301 . . . . . . . . . . . . . . . . . . . . II–17

Result of trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1101(a) . . . . . . . . . . . . . . . . . II–136

Reporter

Announcement of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 813(a)(8) . . . . . . . . . . . . . . . . II–86

At investigation, pretrial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 405(d)(3)(B) . . . . . . . . . . . . . II–35

Detailing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 501(c) . . . . . . . . . . . . . . . . . . II–42

Disqualification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(e)(2); 502(f) . . . . . . . . . II–46

Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(e)(3)(B) . . . . . . . . . . . . . II–46

Oath

Administered . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 807(b); 901(c) . . . . . . . . . . . II–81; II–87

Status as to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 901(c) . . . . . . . . . . . . . . . . . . II–87

Payment of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(e)(4) . . . . . . . . . . . . . . . . II–46

Qualifications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(e)(1) . . . . . . . . . . . . . . . . II–46

Record of trial, preparation . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1103; 1104 . . . . . . . . . . . . . . II–139; II–144

See also Record of trial.

Reprimand

Court-martial, military judge, member, counsel, prohibited R.C.M. 104(a)(1) . . . . . . . . . . . . . . . . II–4

Nonjudicial punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Para. 5c(1) . . . . . . . . . . . . . . . . . . V–5

Sentence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1003(b)(1) . . . . . . . . . . . . . . . II–124

Reproachful speech or gestures . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 42 . . . . . . . . . . . . . . . . . . . . IV–62

Reputation. See Evidence, Character.

Requesting commission of offense . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 101 . . . . . . . . . . . . . . . . . . . IV–138

Rescission of deferment of confinement . . . . . . . . . . . . . . . . . . R.C.M. 1101(c)(6)(D); 1101(c)(7) . . II–137

Reserve personnel, eligibility for court-martial duty . . . . . . . R.C.M. 502(a)(1) . . . . . . . . . . . . . . . . II–42

Resignation, quitting post or duties before

notification of acceptance, as desertion . . . . . . . . . . . . . . . . . IV. Para. 9 . . . . . . . . . . . . . . . . . . . . . IV–9

Resisting apprehension . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 19 . . . . . . . . . . . . . . . . . . . . IV–28

Res judicata . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(g) . . . . . . . . . . . . . . . . . . II–92

Restoration

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1208 . . . . . . . . . . . . . . . . . . . II–173

To duty, as condonation of desertion . . . . . . . . . . . . . . . . . . R.C.M. 907(b)(2)(D)(iii) . . . . . . . . . . II–96

Restraint

Attachment of jurisdiction, effecting . . . . . . . . . . . . . . . . . . . R.C.M. 202(c)(2) . . . . . . . . . . . . . . . . II–15

During trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 804(e)(3) . . . . . . . . . . . . . . . . II–78

Pretrial

See also Confinement, pretrial.

Authority to order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 304(b) . . . . . . . . . . . . . . . . . . II–20

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 304; 305; 804(c)(2) . . . . . . . II–19; II–21; II–77

Grounds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 304(c) . . . . . . . . . . . . . . . . . . II–20

Limitations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 304(f) . . . . . . . . . . . . . . . . . . II–21

Types of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 304(a) . . . . . . . . . . . . . . . . . . II–19

Restriction

Administrative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 304(h) . . . . . . . . . . . . . . . . . . II–21

Attachment of jurisdiction, effect of . . . . . . . . . . . . . . . . . . . R.C.M. 202(c)(2) . . . . . . . . . . . . . . . . II–15

Breaking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 102 . . . . . . . . . . . . . . . . . . . IV–138

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Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 102c; R.C.M. 304(a)(2) . . IV–138; II–19

Nonjudicial punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Para. 5c(2) . . . . . . . . . . . . . . . . . . V–5

Pretrial

Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 304(a)(2) . . . . . . . . . . . . . . . . II–19

Grounds for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 304(c) . . . . . . . . . . . . . . . . . . II–20

Notice to accused . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 304(e) . . . . . . . . . . . . . . . . . . II–21

Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 304(d) . . . . . . . . . . . . . . . . . . II–20

Release . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 304(g) . . . . . . . . . . . . . . . . . . II–21

Speedy trial, effect on . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 707(a); 707(b) . . . . . . . . . . . II–71

Who may order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 304(b) . . . . . . . . . . . . . . . . . . II–20

Sentence by court-martial . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1003(b)(5) . . . . . . . . . . . . . . . II–125

Result of trial, report of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1101(a) . . . . . . . . . . . . . . . . . II–136

Retired personnel, eligibility for court-martial duty . . . . . . . . . R.C.M. 502(a)(1) . . . . . . . . . . . . . . . . II–42

Review of courts-martial. See Action of convening authority;

Appellate review.

Riot . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 41 . . . . . . . . . . . . . . . . . . . . IV–61

Robbery

Assault with intent to commit . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 64 . . . . . . . . . . . . . . . . . . . . IV–115

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 47 . . . . . . . . . . . . . . . . . . . . IV–89

Murder while committing . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 43 . . . . . . . . . . . . . . . . . . . . IV–62

Unborn child, death or injury of . . . . . . . . . . . . . . . . . . . . . IV. Para. 4a . . . . . . . . . . . . . . . . . . . . IV–4

Routine practice, evidence of . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 406 . . . . . . . . . . . . . . . III–19

Rules for Courts-Martial (R.C.M.)

Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Appendix 21 . . . . . . . . . . . . . . . . . . . A21–1

Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 102(b) . . . . . . . . . . . . . . . . . . II–1

Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 102(a) . . . . . . . . . . . . . . . . . . II–1

Scope . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 101(a) . . . . . . . . . . . . . . . . . . II–1

Title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 101(b) . . . . . . . . . . . . . . . . . . II–1

Rules of court

Authority to make . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 108; 801(b)(1) . . . . . . . . . . . II–6; II–73

Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 801(b)(1) . . . . . . . . . . . . . . . . II–73

Safeguard, forcing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 26 . . . . . . . . . . . . . . . . . . . . IV–38

Safety of command, unit, place, or military property,

endangering . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 23 . . . . . . . . . . . . . . . . . . . . IV–33

Sale, unlawful, military property . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 32 . . . . . . . . . . . . . . . . . . . . IV–47

Sanity. See Mental capacity; Mental responsibility.

Scene of accident, fleeing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 82 . . . . . . . . . . . . . . . . . . . . IV–126

Search and Seizure

Abandoned property, seizure of . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 316(d)(1) . . . . . . . . . . III–16

Adequate interest to challenge . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 311(a)(2) . . . . . . . . . . III–8

Anal searches . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 312(c) . . . . . . . . . . . . . III–11

Authorization, when required . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 312(e) . . . . . . . . . . . . . III–11

Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 312(a) . . . . . . . . . . . . . III–10

Entry to, requirements for . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 312(e) . . . . . . . . . . . . . III–11

Grounds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 312(c) . . . . . . . . . . . . . III–11

How made . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 312(e) . . . . . . . . . . . . . III–11

Power to apprehend (Art. 7, UCMJ) . . . . . . . . . . . . . . R.C.M. 302(b) . . . . . . . . . . . . . . . . . . II–17

Probable cause to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 312(e) . . . . . . . . . . . . . III–11

Search incident to

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 314(g) . . . . . . . . . . . . III–13

Scope . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 314(g)(2); 314(g)(3) . III–13

Warrant, when required . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 302(e) . . . . . . . . . . . . . III–4

Attenuation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 311(e)(2) . . . . . . . . . . III–10

Authorization to

Apprehend, when required . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 302 . . . . . . . . . . . . . . . . . . . . II–17

Search

Basis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 315(f) . . . . . . . . . . . . . III–15

Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 315(b)(1) . . . . . . . . . . III–14

Execution of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 315(h) . . . . . . . . . . . . III–15

Power to grant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 315(d) . . . . . . . . . . . . III–14

Power to search . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 315(e) . . . . . . . . . . . . . III–14

Rules of evidence not applicable to determination . Mil. R. Evid. 1101(d) . . . . . . . . . . . III–47

Scope . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 315(c) . . . . . . . . . . . . . III–14

Seize . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 316(d)(4)(A) . . . . . . . III–16

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Automobile searches

Based upon probable cause . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 315(g)(3) . . . . . . . . . . III–15

Incident to apprehension . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 314(g)(2) . . . . . . . . . . III–13

On less than probable cause . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 314(f)(3) . . . . . . . . . . III–13

Blood samples. See Body views and intrusions, this heading.

Body views and intrusions

Extraction of body fluid . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 312(d) . . . . . . . . . . . . III–11

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 312(a) . . . . . . . . . . . . . III–10

Inspections

Body view during . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 312(b)(2) . . . . . . . . . . III–11

Urine production . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 313(b) . . . . . . . . . . . . III–12

Intrusions for medical purposes . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 312(f) . . . . . . . . . . . . . III–11

Intrusions, generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 312(c) . . . . . . . . . . . . . III–11

Intrusions into body cavities . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 312(c) . . . . . . . . . . . . . III–11

Medical qualifications . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 312(g) . . . . . . . . . . . . III–11

Visual examination of the body . . . . . . . . . . . . . . . . . . Mil. R. Evid. 312(b) . . . . . . . . . . . . III–11

Border searches . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 314(b) . . . . . . . . . . . . III–12

Burden of proof

General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 311(e) . . . . . . . . . . . . . III–9

Government’s burden enhanced

Consent, voluntariness . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 314(e)(5) . . . . . . . . . . III–13

Inspections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 313(b) . . . . . . . . . . . . III–12

On the accused

Adequate interest, standing . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 311(a)(2) . . . . . . . . . . III–8

False statements, challenging probable cause . . . . . . Mil. R. Evid. 311(g)(2) . . . . . . . . . . III–10

Commander

Neutral and detached . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 315(d) . . . . . . . . . . . . III–14

Power to authorize search . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 315(d)(1) . . . . . . . . . . III–14

Confinement facilities, searches within . . . . . . . . . . . . . . . . . Mil. R. Evid. 314(h) . . . . . . . . . . . . III–13

Consent

Body views . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 312(b)(1) . . . . . . . . . . III–11

Entry to apprehend . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 302(e)(2)(A) . . . . . . . . . . . . . II–18

To search . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 314(e) . . . . . . . . . . . . . III–13

To seize . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 316(d)(2) . . . . . . . . . . III–16

Voluntariness, burden of proof . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 314(e)(5) . . . . . . . . . . III–13

Who can consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 314(e)(2) . . . . . . . . . . III–13

Derivative evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 311(e)(2) . . . . . . . . . . III–10

Detention, investigative of

Persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 314(f)(1) . . . . . . . . . . III–13

Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 316(d)(5) . . . . . . . . . . III–16

Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 311(d)(1) . . . . . . . . . . III–9

Eavesdropping . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 317 . . . . . . . . . . . . . . . III–16

Emergency searches . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 314(i) . . . . . . . . . . . . . III–13

Entry and exit points

Inspections at . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 313(b) . . . . . . . . . . . . III–12

Overseas, searches . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 314(c) . . . . . . . . . . . . . III–12

Entry to apprehend, requirements for . . . . . . . . . . . . . . . . . . R.C.M. 302(e)(2) . . . . . . . . . . . . . . . . II–18

Exclusionary rule

General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 311(a) . . . . . . . . . . . . . III–8

Wire and oral communications . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 317 . . . . . . . . . . . . . . . III–16

Exigent circumstances

Entry to apprehend . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 302(e)(2)(B) . . . . . . . . . . . . . II–18

Search . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 315(g) . . . . . . . . . . . . III–15

Seize . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 316(d)(4)(B) . . . . . . . III–16

False statement in support of probable cause . . . . . . . . . . . Mil. R. Evid. 311(g)(2) . . . . . . . . . . III–10

Foreign officials, search by . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 311(c)(3) . . . . . . . . . . III–9

Frisks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 314(f)(2) . . . . . . . . . . III–13

Government property

Search of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 314(d) . . . . . . . . . . . . III–12

Seizure of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 316(d)(3) . . . . . . . . . . III–16

Guilty plea

Conditional to preserve motions . . . . . . . . . . . . . . . . . . R.C.M. 910(a)(2) . . . . . . . . . . . . . . . . II–100

Waiver by . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 311(i) . . . . . . . . . . . . . III–10

Index 55

INDEX MCM, 2008
Subject Ref. Page

Impeachment by contradiction, using illegally seized

evidence for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 311(b)(1) . . . . . . . . . . III–8

Incident to apprehension . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 314(g) . . . . . . . . . . . . III–13

Independent source . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 311(e)(2) . . . . . . . . . . III–10

Inevitable discovery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 311(e)(2) . . . . . . . . . . III–10

Informant, identity of, privilege . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 507 . . . . . . . . . . . . . . . III–32

Inspections

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 313(b) . . . . . . . . . . . . III–12

Visual examination of the body . . . . . . . . . . . . . . . . . . Mil. R. Evid. 312(b)(2) . . . . . . . . . . III–11

Intrusions, body cavities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 312(c) . . . . . . . . . . . . . III–11

Inventories . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 313(c) . . . . . . . . . . . . . III–12

Investigative detentions. See Stops, investigative,

this heading.

Jails, confinement facilities, searches within . . . . . . . . . . . . Mil. R. Evid. 314(h) . . . . . . . . . . . . III–13

Law enforcement officials, nonmilitary . . . . . . . . . . . . . . . . . Mil. R. Evid. 311(c)(2) . . . . . . . . . . III–9

Magistrate, power to authorize searches . . . . . . . . . . . . . . . . Mil. R. Evid. 315(d)(2) . . . . . . . . . . III–14

Medical qualifications, persons searching or

seizing from body . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 312(g) . . . . . . . . . . . . III–11

Military judge, power to authorize searches . . . . . . . . . . . . Mil. R. Evid. 315(d)(2) . . . . . . . . . . III–14

Motion to suppress

See also Motions.

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 311(a)(1); 311(d) . . . III–8; III–9

Testimony upon a preliminary matter . . . . . . . . . . . . . . Mil. R. Evid. 311(f) . . . . . . . . . . . . . III–10

Neutral and detached . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 315(d) . . . . . . . . . . . . III–14

Objections, evidence unlawfully seized . . . . . . . . . . . . . . . . . Mil. R. Evid. 311(a)(1) . . . . . . . . . . III–8

Offer of proof, false statements . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 311(g)(2) . . . . . . . . . . III–10

Open fields or woodlands, search of . . . . . . . . . . . . . . . . . . Mil. R. Evid. 314(j) . . . . . . . . . . . . . III–14

Oral communications, interception of . . . . . . . . . . . . . . . . . . Mil. R. Evid. 317 . . . . . . . . . . . . . . . III–16

Plain view seizures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 316(d)(4)(C) . . . . . . . III–16

Private dwelling, entry to apprehend . . . . . . . . . . . . . . . . . . R.C.M. 302(e)(2) . . . . . . . . . . . . . . . . II–18

Probable cause

Challenging the determination of

False statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 311(g)(2) . . . . . . . . . . III–10

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 311(g)(1) . . . . . . . . . . III–10

Searches not requiring . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 314 . . . . . . . . . . . . . . . III–12

Searches requiring . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 315 . . . . . . . . . . . . . . . III–14

To apprehend . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 302(c) . . . . . . . . . . . . . . . . . . II–18

To confine before trial . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 305(d) . . . . . . . . . . . . . . . . . . II–21

To restrain before trial . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 304(c) . . . . . . . . . . . . . . . . . . II–20

To search . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 315(f)(2) . . . . . . . . . . III–15

To seize . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 316(b) . . . . . . . . . . . . III–16

Search

Authorization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 315(b)(1) . . . . . . . . . . III–14

Execution of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 315(h) . . . . . . . . . . . . III–15

Power to conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 315(e) . . . . . . . . . . . . . III–14

Probable cause not required . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 314(a) . . . . . . . . . . . . . III–12

Probable cause required . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 315(a) . . . . . . . . . . . . . III–14

Unlawful, defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 311(c) . . . . . . . . . . . . . III–9

Warrant, defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 315(b)(2) . . . . . . . . . . III–14

See also Authorization to, this heading.

Seizure

Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 316(d)(2) . . . . . . . . . . III–16

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 316 . . . . . . . . . . . . . . . III–16

Plain view . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 316(d)(4)(C) . . . . . . . III–16

Power to seize . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 316(e) . . . . . . . . . . . . . III–16

Probable cause to seize . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 316(b) . . . . . . . . . . . . III–16

Unlawful, defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 311(c) . . . . . . . . . . . . . III–9

Standing to contest search or seizure . . . . . . . . . . . . . . . . . . Mil. R. Evid. 311(a)(2) . . . . . . . . . . III–8

Stops, investigative

Frisks subsequent to . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 314(f)(2) . . . . . . . . . . III–13

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 314(f)(1) . . . . . . . . . . III–13

Property detention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 316(d)(5) . . . . . . . . . . III–16

Search of vehicle subsequent to . . . . . . . . . . . . . . . . . . Mil. R. Evid. 314(f)(3) . . . . . . . . . . III–13

Treaty obligations, effect of . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 315(c)(4)(B) . . . . . . . . III–14

Index 56

MCM, 2008 INDEX
Subject Ref. Page

Urine, seizure

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 312(d) . . . . . . . . . . . . III–11

Inspections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 313(b) . . . . . . . . . . . . III–12

Vaginal search . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 312(c) . . . . . . . . . . . . . III–11

Vehicles, search of

Upon probable cause . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 315(g)(3) . . . . . . . . . . III–15

Upon reasonable suspicion of weapons . . . . . . . . . . . . Mil. R. Evid. 314(f)(3) . . . . . . . . . . III–13

Visual examination of the body . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 312(b) . . . . . . . . . . . . III–11

Voluntariness of consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 314(e)(4) . . . . . . . . . . III–13

Waiver

Conditional guilty pleas . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 910(a)(2) . . . . . . . . . . . . . . . . II–100

Failure to raise by timely motion . . . . . . . . . . . . . . . . . Mil. R. Evid. 311(d)(2)(A) . . . . . . . III–9

Guilty plea . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 311(i) . . . . . . . . . . . . . III–10

Warrant, search

Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 315(b)(2) . . . . . . . . . . III–14

Required for entry to apprehend . . . . . . . . . . . . . . . . . . R.C.M. 302(d)(2) . . . . . . . . . . . . . . . . II–18

Wire and oral communications, interception . . . . . . . . . . . . Mil. R. Evid. 317 . . . . . . . . . . . . . . . III–16

Secretary, Service

Convening courts-martial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Art. 22; 23; 24; UCMJ . . . . . . . . . . A2–7; A2–7; A2–7;

R . C . M . 5 0 4 ( b ) ( 1 ) ; 5 0 4 ( b ) ( 2 ) ;

1302(a) . . . . . . . . . . . . . . . . . . . . . . . .

II–48; II–48; II–178

Powers and responsibilities concerning review of

courts-martial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1206 . . . . . . . . . . . . . . . . . . . II–173

Secret Information, privilege . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 505 . . . . . . . . . . . . . . . III–25

Security

Courtroom . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 806(b) . . . . . . . . . . . . . . . . . . II–79

National. See National security.

Police. See Law enforcement official.

Record of trial, classification . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1103(h) . . . . . . . . . . . . . . . . . II–142

Sedition

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 18 . . . . . . . . . . . . . . . . . . . . IV–26

Solicitation to commit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 6 . . . . . . . . . . . . . . . . . . . . . IV–6

Seizure of evidence

See also Search and seizure.

Destruction to prevent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 103 . . . . . . . . . . . . . . . . . . . IV–138

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 316 . . . . . . . . . . . . . . . III–16

Self-defense

Aggravated assault . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(e)(1); 916(e)(2) . . . . . . . II–109; II–110

Defense of another . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(e)(5) . . . . . . . . . . . . . . . . II–110

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(e) . . . . . . . . . . . . . . . . . . II–109

Homicide . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(e)(1) . . . . . . . . . . . . . . . . II–109

Loss of right . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(e)(4) . . . . . . . . . . . . . . . . II–110

Other assaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 916(e)(3) . . . . . . . . . . . . . . . . II–110

Self-incrimination

Accused’s failure to testify

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 301(f)(1) . . . . . . . . . . III–3

Instructions concerning . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 301(g) . . . . . . . . . . . . III–4

Admissions. See Confessions and admissions, this heading.

Advice to witnesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 301(b)(2) . . . . . . . . . . III–3

Applicability of privilege against . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 301(a) . . . . . . . . . . . . . III–2

Burden of proof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 304(e) . . . . . . . . . . . . . III–5

Confessions and admissions

Admissibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 304(a) . . . . . . . . . . . . . III–4

Admission defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 304(c)(2) . . . . . . . . . . III–5

Admissions by silence or failure to deny accusations of

wrongdoing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 304(h)(3) . . . . . . . . . . III–6

Admissions made during plea or plea discussion . . . . Mil. R. Evid. 410 . . . . . . . . . . . . . . . III–20

Burden of proof for admissibility . . . . . . . . . . . . . . . . . Mil. R. Evid. 304(e) . . . . . . . . . . . . . III–5

Coercion, effect of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 304(c)(3) . . . . . . . . . . III–5

Confession defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 304(c)(1) . . . . . . . . . . III–5

Corroboration required . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 304(g) . . . . . . . . . . . . III–6

Joint trial, effect on co-accused . . . . . . . . . . . . . . . . . . Mil. R. Evid. 306 . . . . . . . . . . . . . . . III–8

Oral confessions and admissions . . . . . . . . . . . . . . . . . . Mil. R. Evid. 304(h)(1) . . . . . . . . . . III–6

Standing to challenge . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 304(a) . . . . . . . . . . . . . III–4

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Use of admissions made at conferences . . . . . . . . . . . . R.C.M. 802(e) . . . . . . . . . . . . . . . . . . II–76

Corroboration of confessions . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 304(g) . . . . . . . . . . . . III–6

Counsel rights and warnings

Effect of request for counsel . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 305(f) . . . . . . . . . . . . . III–7

Notice to counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 305(e) . . . . . . . . . . . . . III–7

Right to counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 305(d)(2) . . . . . . . . . . III–7

Waiver of counsel rights . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 305(g)(2) . . . . . . . . . . III–7

When counsel rights warnings are required . . . . . . . . . Mil. R. Evid. 305(d)(1) . . . . . . . . . . III–7

Degrading questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 303 . . . . . . . . . . . . . . . III–4

Derivative evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 304(e)(3) . . . . . . . . . . III–5

Disclosure by prosecution

Accused’s statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 304(d)(1) . . . . . . . . . . III–5

Immunity or leniency to a prosecution witness . . . . . Mil. R. Evid. 301(c)(2) . . . . . . . . . . III–3

Effect of claiming privilege against . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 301(f) . . . . . . . . . . . . . III–3

Exclusionary rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 304(a); 305(a) . . . . . . III–4; III–6

Exception for impeachment . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 304(b) . . . . . . . . . . . . III–4

Exercise of privilege against . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 301(c) . . . . . . . . . . . . . III–3

Guilty plea

Conditional, to preserve motions . . . . . . . . . . . . . . . . . . R.C.M. 910(a)(2) . . . . . . . . . . . . . . . . II–100

Waiver by . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 311(i) . . . . . . . . . . . . . III–10

Immunity

See also Immunity.

Effect of grant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 301(c)(1) . . . . . . . . . . III–3

Notice to accused . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 301(c)(2) . . . . . . . . . . III–3

Impeachment by contradiction, using involuntary statements Mil. R. Evid. 304(b) . . . . . . . . . . . . III–4

Inadmissibility of accused’s pretrial claim of

privilege against . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 301(f)(3) . . . . . . . . . . III–3

Interrogation

By foreign officials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 305(h)(2) . . . . . . . . . . III–8

By nonmilitary officials . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 305(h)(1) . . . . . . . . . . III–8

Custodial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 305(d)(1) . . . . . . . . . . III–7

Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 305(b)(2) . . . . . . . . . . III–7

Notice to counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 305(e) . . . . . . . . . . . . . III–7

Persons subject to UCMJ, defined . . . . . . . . . . . . . . . . Mil. R. Evid. 305(b)(1) . . . . . . . . . . III–6

Involuntary statements

Burden of proof concerning . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 304(e) . . . . . . . . . . . . . III–5

Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 304(c)(3); 305(a) . . . III–5; III–6

Use of certain involuntary statements to impeach . . . Mil. R. Evid. 304(b) . . . . . . . . . . . . III–4

Mental examination of accused, privilege concerning

Exceptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 302(b) . . . . . . . . . . . . III–4

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 302(a) . . . . . . . . . . . . . III–4

Noncompliance by accused . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 302(d) . . . . . . . . . . . . III–4

Procedure for claiming . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 302(e) . . . . . . . . . . . . . III–4

Psychotherapist-patient privilege . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 513 . . . . . . . . . . . . . . . III–33

Release of evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 302(c) . . . . . . . . . . . . . III–4

Motion to suppress

See alsoMotions.

Effect of guilty plea . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 304(d)(5) . . . . . . . . . . III–5

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 304(d)(2) . . . . . . . . . . III–5

Rulings by military judge . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 304(d)(4) . . . . . . . . . . III–5

Specificity required . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 304(d)(3) . . . . . . . . . . III–5

Testimony upon a preliminary matter . . . . . . . . . . . . . . Mil. R. Evid. 304(f) . . . . . . . . . . . . . III–6

Notice to accused of leniency or immunity given a

prosecution witness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 301(c)(2) . . . . . . . . . . III–3

Notice to counsel of intended interrogation . . . . . . . . . . . . . Mil. R. Evid. 305(e) . . . . . . . . . . . . . III–7

Rights warnings

Article 31, UCMJ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 305(c) . . . . . . . . . . . . . III–7

Counsel warnings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 305(d) . . . . . . . . . . . . III–7

Effect of failure to warn . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 305(a) . . . . . . . . . . . . . III–6

Standing to assert privilege against . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 301(b)(1) . . . . . . . . . . III–3

Statements of co-accused . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 306 . . . . . . . . . . . . . . . III–8

Striking testimony after assertion of privilege against . . . . Mil. R. Evid. 301(f)(2) . . . . . . . . . . III–3

Testimony by accused on preliminary matter . . . . . . . . . . . Mil. R. Evid. 304(f) . . . . . . . . . . . . . III–6

Voluntariness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 304(c)(3) . . . . . . . . . . III–5

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Waiver of privilege against

By accused . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 301(e) . . . . . . . . . . . . . III–3

By witness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 301(d) . . . . . . . . . . . . III–3

Waiver of rights

Conditional guilty plea . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 910(a)(2) . . . . . . . . . . . . . . . . II–100

Failure to move to suppress . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 304(d)(2)(A) . . . . . . . III–5

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 305(g) . . . . . . . . . . . . III–7

Guilty plea, effect of . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 304(d)(5) . . . . . . . . . . III–5

Self-injury, infliction of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 40 . . . . . . . . . . . . . . . . . . . . IV–60

Without intent to avoid service . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 103a . . . . . . . . . . . . . . . . . . IV–138

Selling military property, unlawfully . . . . . . . . . . . . . . . . . . . . . IV. Para. 32 . . . . . . . . . . . . . . . . . . . . IV–47

Semen

Extraction of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 312(d); 406 . . . . . . . . III–11; III–19

Source of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 412(b)(1)(A) . . . . . . . III–21

Sentence

See also specific topics.

Announcement of

Findings, effect on reconsideration of . . . . . . . . . . . . . R.C.M. 924(a); 924(c) . . . . . . . . . . . II–119

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1007 . . . . . . . . . . . . . . . . . . . II–133

Authorized punishments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1003(b) . . . . . . . . . . . . . . . . . II–124

Capital cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1004 . . . . . . . . . . . . . . . . . . . II–128

Confinement, credit for illegal pretrial . . . . . . . . . . . . . . . . . R.C.M. 305(j)(2); 305(k) . . . . . . . . . II–24

Contempt, sentence for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 809(c) . . . . . . . . . . . . . . . . . . II–82

Convening authority’s action on

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1107(d) . . . . . . . . . . . . . . . . . II–151

Modification of initial action . . . . . . . . . . . . . . . . . . . . . R.C.M. 1107(f)(2) . . . . . . . . . . . . . . . II–153

Summary court-martial . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1306(b) . . . . . . . . . . . . . . . . . II–181

Deliberations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1006 . . . . . . . . . . . . . . . . . . . II–132

Determination of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1002 . . . . . . . . . . . . . . . . . . . II–123

Execution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1113 . . . . . . . . . . . . . . . . . . . II–162

Forms of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Appendix 11 . . . . . . . . . . . . . . . . . . . A11–1

Impeachment of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1008 . . . . . . . . . . . . . . . . . . . II–134

Instructions on . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1005 . . . . . . . . . . . . . . . . . . . II–131

Maximum limitations

Chart of maximum punishments . . . . . . . . . . . . . . . . . . Appendix 12 . . . . . . . . . . . . . . . . . . . A12–1

Circumstances affecting increase . . . . . . . . . . . . . . . . . . R.C.M. 1003(d) . . . . . . . . . . . . . . . . . II–127

General court-martial . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 201(f)(1) . . . . . . . . . . . . . . . . II–11

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1003 . . . . . . . . . . . . . . . . . . . II–124

New trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 810(d) . . . . . . . . . . . . . . . . . . II–84

Other trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 810(d) . . . . . . . . . . . . . . . . . . II–84

Rehearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 810(d) . . . . . . . . . . . . . . . . . . II–84

Special court-martial . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 201(f)(2)(B) . . . . . . . . . . . . . II–12

Summary court-martial . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1301(d) . . . . . . . . . . . . . . . . . II–177

Multiplicity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1003(c)(1)(C) . . . . . . . . . . . . II–126

Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1009 . . . . . . . . . . . . . . . . . . . II–134

Reassessment of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1107(e)(1)(B)(iv) . . . . . . . . . II–152

Reconsideration of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1009 . . . . . . . . . . . . . . . . . . . II–134

Unexecuted portion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1108(b) . . . . . . . . . . . . . . . . . II–155

Voting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1006(d) . . . . . . . . . . . . . . . . . II–132

Sentence proceedings. See Presentencing procedure.

Sentinel or lookout

Assault on . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 64 . . . . . . . . . . . . . . . . . . . . IV–115

Misbehavior as . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 38 . . . . . . . . . . . . . . . . . . . . IV–58

Offenses against or by . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 104 . . . . . . . . . . . . . . . . . . . IV–139

Separation

See also Bad conduct-discharge; Dishonorable discharge;

Dismissal.

Fraudulent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 7 . . . . . . . . . . . . . . . . . . . . . IV–8

Unlawful, effecting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 8 . . . . . . . . . . . . . . . . . . . . . IV–9

Serious offense, misprision of . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 95 . . . . . . . . . . . . . . . . . . . . IV–132

Service

Charges, of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 602 . . . . . . . . . . . . . . . . . . . . II–53

Record of trial, of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1104(b) . . . . . . . . . . . . . . . . . II–144

Subpoena, of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 703(e)(2)(D); 703(e)(2)(E) . II–64

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Written motion, of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(i) . . . . . . . . . . . . . . . . . . II–93

Services, obtaining under false pretenses . . . . . . . . . . . . . . . . . IV. Para. 78 . . . . . . . . . . . . . . . . . . . . IV–125

Sessions

Article 39(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 803 . . . . . . . . . . . . . . . . . . . . II–76

Closed

Closure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 806(b)(2) . . . . . . . . . . . . . . . . II–80

Deliberations and vote, findings . . . . . . . . . . . . . . . . . . R.C.M. 921(a) . . . . . . . . . . . . . . . . . . II–117

Deliberations and vote, sentence . . . . . . . . . . . . . . . . . . R.C.M. 1006(a) . . . . . . . . . . . . . . . . . II–132

Objections to rulings of president . . . . . . . . . . . . . . . . . R.C.M. 801(e)(3)(C) . . . . . . . . . . . . . II–74

Control of spectators . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 806(b)(1) . . . . . . . . . . . . . . . . II–79

Opening . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 901 . . . . . . . . . . . . . . . . . . . . II–87

Post-trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1102 . . . . . . . . . . . . . . . . . . . II–138

Setting aside nonjudicial punishment . . . . . . . . . . . . . . . . . . . . V. Para. 6d . . . . . . . . . . . . . . . . . . . . V–8

Severance

Charges, of

Appeal of United States, effect of . . . . . . . . . . . . . . . . R.C.M. 908(b)(4) . . . . . . . . . . . . . . . . II–97

Motion for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(b)(5); 906(b)(10) . . . . . II–91; II–95

Co-accused, of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(b)(5); 906(b)(9) . . . . . . II–91; II–94

Sexual offense

Evidence of character of victim . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 412 . . . . . . . . . . . . . . . III–20

Evidence of similar crimes . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 413; 414 . . . . . . . . . . III–21; III–22

Ship. See Carrier.

Ship. See Vessel.

Shore patrol. See Law enforcement official.

Signing false official document or statement . . . . . . . . . . . . . . IV. Para. 31 . . . . . . . . . . . . . . . . . . . . IV–46

Signing receipt without knowledge of facts . . . . . . . . . . . . . . . IV. Para. 58 . . . . . . . . . . . . . . . . . . . . IV–107

Sitting on post, sentinel or lookout . . . . . . . . . . . . . . . . . . . . . . IV. Para. 104 . . . . . . . . . . . . . . . . . . . IV–139

Sleeping on post, sentinel or lookout . . . . . . . . . . . . . . . . . . . . IV. Para. 38 . . . . . . . . . . . . . . . . . . . . IV–58

Sodomy

Assault with intent to commit . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 64 . . . . . . . . . . . . . . . . . . . . IV–115

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 51 . . . . . . . . . . . . . . . . . . . . IV–96

Murder while committing . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 43 . . . . . . . . . . . . . . . . . . . . IV–62

Solicitation

Attempt distinguished . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 4c(5) . . . . . . . . . . . . . . . . . IV–4

Desertion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 6 . . . . . . . . . . . . . . . . . . . . . IV–6

Misbehavior before the enemy . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 6 . . . . . . . . . . . . . . . . . . . . . IV–6

Mutiny . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 6 . . . . . . . . . . . . . . . . . . . . . IV–6

Other offenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 105 . . . . . . . . . . . . . . . . . . . IV–140

Pandering distinguished . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 6c(3) . . . . . . . . . . . . . . . . . IV–7

Sedition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 6 . . . . . . . . . . . . . . . . . . . . . IV–6

Special court-martial

See also Specific topics.

Composition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 501(a)(2) . . . . . . . . . . . . . . . . II–42

Counsel

Detail to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 501(b) . . . . . . . . . . . . . . . . . . II–42

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(d) . . . . . . . . . . . . . . . . . . II–43

Required to adjudge bad-conduct discharge . . . . . . . . . R.C.M. 201(f)(2)(B)(ii)(a) . . . . . . . . . II–12

Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 201(f)(2) . . . . . . . . . . . . . . . . II–12

Personnel of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 501 . . . . . . . . . . . . . . . . . . . . II–42

President of, without military judge

Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 103(15) . . . . . . . . . . . . . . . . . II–2

Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(b)(2) . . . . . . . . . . . . . . . . II–43

Procedural guide . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Appendix 8 . . . . . . . . . . . . . . . . . . . . A8–1

Record of trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1103(c) . . . . . . . . . . . . . . . . . II–141

Referral of charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 404(d); 601 . . . . . . . . . . . . . II–33; II–52

Special defenses. See Defenses.

Special findings

In conjunction with general findings . . . . . . . . . . . . . . . . . . R.C.M. 918(b) . . . . . . . . . . . . . . . . . . II–114

Requirement for essential findings of fact in ruling on

Motions, generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(d) . . . . . . . . . . . . . . . . . . II–91

Motions to suppress

Confessions and admissions . . . . . . . . . . . . . . . . . . Mil. R. Evid. 304(d)(4) . . . . . . . . . . III–5

Evidence of eyewitness identification . . . . . . . . . . Mil. R. Evid. 321(f) . . . . . . . . . . . . . III–18

Product of search and seizure . . . . . . . . . . . . . . . . Mil. R. Evid. 311(d)(4) . . . . . . . . . . III–9

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Specifications. See Charges and specifications.

Spectators

Access to court-martial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 806(a) . . . . . . . . . . . . . . . . . . II–79

Control of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 806(b) . . . . . . . . . . . . . . . . . . II–79

Witnesses as . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 615 . . . . . . . . . . . . . . . III–38

Speech, provoking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 42 . . . . . . . . . . . . . . . . . . . . IV–62

Speedy trial

Accountability

Inception of time period . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 707(b)(1) . . . . . . . . . . . . . . . . II–71

Termination of time period . . . . . . . . . . . . . . . . . . . . . . R.C.M. 707(b)(1) . . . . . . . . . . . . . . . . II–71

Arrest

Effect of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 707(a)(2) . . . . . . . . . . . . . . . . II–71

Release from . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 707(b)(3)(B) . . . . . . . . . . . . . II–71

Confinement, pretrial

Effect of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 707(a)(2) . . . . . . . . . . . . . . . . II–71

Release from . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 707(b)(3)(B) . . . . . . . . . . . . . II–71

Dismissal of charges

Effect of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 707(b)(3)(A) . . . . . . . . . . . . . II–71

Motion for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(c)(2)(B); 907(b)(2)(B) . II–91; II–96

Remedy for violation . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 707(d) . . . . . . . . . . . . . . . . . . II–72

Excluded periods . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 707(c) . . . . . . . . . . . . . . . . . . II–72

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 707 . . . . . . . . . . . . . . . . . . . . II–71

Imposition of restraint, effect of . . . . . . . . . . . . . . . . . . . . . . R.C.M. 707(a)(2) . . . . . . . . . . . . . . . . II–71

Mistrial, effect of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 707(b)(3)(A) . . . . . . . . . . . . . II–71

Motion concerning

Burden of proof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(c)(2)(B) . . . . . . . . . . . . . II–91

Grounds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 907(b)(2)(B) . . . . . . . . . . . . . II–96

Multiple charges, effect of . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 707(b)(2) . . . . . . . . . . . . . . . . II–71

Preferral of charges, effect of . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 707(b)(2) . . . . . . . . . . . . . . . . II–71

Pretrial agreement, waiver of right not permitted . . . . . . . . R.C.M. 705(c)(1)(B) . . . . . . . . . . . . . II–68

Remedy for denial of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 707(d) . . . . . . . . . . . . . . . . . . II–72

Time periods . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 707(a); 707(d) . . . . . . . . . . . II–71; II–72

Spies. See Spying.

Spontaneous exclamation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 803(2) . . . . . . . . . . . . III–40

Spouses, privilege as to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 504 . . . . . . . . . . . . . . . III–24

Spying

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 30 . . . . . . . . . . . . . . . . . . . . IV–43

Votes required to convict . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 921(c)(2)(A) . . . . . . . . . . . . . II–117

Staff judge advocate

See also Advice, pretrial.

Charges and specifications, amendment by . . . . . . . . . . . . . R.C.M. 603(b) . . . . . . . . . . . . . . . . . . II–54

Communications with

Convening authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 105(a) . . . . . . . . . . . . . . . . . . II–5

Judge Advocate General, The . . . . . . . . . . . . . . . . . . . . R.C.M. 105(b) . . . . . . . . . . . . . . . . . . II–5

Staff judge advocates . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 105(b) . . . . . . . . . . . . . . . . . . II–5

Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 103(17) . . . . . . . . . . . . . . . . . II–2

Execution of sentence, advice on . . . . . . . . . . . . . . . . . . . . . R.C.M. 1113(c)(1) . . . . . . . . . . . . . . . II–163

Member, ineligible to serve as . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 912(f)(1)(G); 912(f)(1)(H) . . II–104; II–104

Military judge, disqualified after acting as . . . . . . . . . . . . . R.C.M. 902(b)(2) . . . . . . . . . . . . . . . . II–88

Pretrial agreement, negotiations . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 705(d)(1) . . . . . . . . . . . . . . . . II–69

Recommendations, post-trial

Disqualification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1106(b) . . . . . . . . . . . . . . . . . II–147

Form and content . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1106(d) . . . . . . . . . . . . . . . . . II–147

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1106 . . . . . . . . . . . . . . . . . . . II–147

No findings of guilty . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1106(e) . . . . . . . . . . . . . . . . . II–148

Not guilty, lack of mental responsibility . . . . . . . . . . . R.C.M. 1106(e) . . . . . . . . . . . . . . . . . II–148

Service on defense counsel . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1106(f) . . . . . . . . . . . . . . . . . II–148

Stalking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 45a . . . . . . . . . . . . . . . . . . . IV–68

Standing. See Search and seizure; Self-incrimination.

State law

Judicial notice of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 201A . . . . . . . . . . . . . III–2

Offenses under . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 60c(4)(c) . . . . . . . . . . . . . . IV–113

Statements

Accused in presentencing proceedings . . . . . . . . . . . . . . . . . R.C.M. 1001(c)(2) . . . . . . . . . . . . . . . II–122

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Closing, by counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 919 . . . . . . . . . . . . . . . . . . . . II–115

Coercion of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 304(c)(3) . . . . . . . . . . III–5

Disclosure by trial counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(a)(1)(C) . . . . . . . . . . . . . II–56

Disloyal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 72 . . . . . . . . . . . . . . . . . . . . IV–121

False . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Paras. 31; 57 . . . . . . . . . . . . . . . IV–46; IV–105

Hearsay. See Evidence, Hearsay.

Inconsistent, for impeachment . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 613 . . . . . . . . . . . . . . . III–38

Investigation, pretrial, use in . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 405(g)(4) . . . . . . . . . . . . . . . . II–37

Limited admissibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 105 . . . . . . . . . . . . . . . III–2

Opening, by counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 913(b) . . . . . . . . . . . . . . . . . . II–105

Production, after testimony . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 914 . . . . . . . . . . . . . . . . . . . . II–107

Unsworn, by accused . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1001(c)(2)(C) . . . . . . . . . . . . II–122

State records, authentication of . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 901; 902 . . . . . . . . . . III–43; III–44

Statutes, judicial notice of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 201A . . . . . . . . . . . . . III–2

Statutes of limitations (Art. 43, UCMJ)

Motion to dismiss

Burden of proof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(c)(2)(B) . . . . . . . . . . . . . II–91

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 907(a) . . . . . . . . . . . . . . . . . . II–95

Tolling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 403(a) . . . . . . . . . . . . . . . . . . II–32

Statutory rape (Art. 120(b), UCMJ) . . . . . . . . . . . . . . . . . . . . . . IV. Para. 45 . . . . . . . . . . . . . . . . . . . . IV–68

Steal. See Larceny.

Stipulations

Confessional . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 705(b)(1) . . . . . . . . . . . . . . . . II–68

Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 811(e) . . . . . . . . . . . . . . . . . . II–85

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 811 . . . . . . . . . . . . . . . . . . . . II–84

Investigation, pretrial, use at . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 405(g)(4)(A)(v) . . . . . . . . . . . II–37

Kinds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 811(a) . . . . . . . . . . . . . . . . . . II–84

Military judge

Authority to reject . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 811(b) . . . . . . . . . . . . . . . . . . II–85

Inquiry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 811(c) . . . . . . . . . . . . . . . . . . II–85

Military Rules of Evidence, applicability . . . . . . . . . . . . . . . R.C.M. 811(e) . . . . . . . . . . . . . . . . . . II–85

Pretrial agreement, term or condition of . . . . . . . . . . . . . . . R.C.M. 705(c)(2) . . . . . . . . . . . . . . . . II–68

Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 811(f) . . . . . . . . . . . . . . . . . . II–85

Withdrawal from . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 811(d) . . . . . . . . . . . . . . . . . . II–85

Stolen property, receiving, buying, concealing . . . . . . . . . . . . IV. Para. 106 . . . . . . . . . . . . . . . . . . . IV–140

Straggling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 107 . . . . . . . . . . . . . . . . . . . IV–141

Striking

See also Assault.

Colors or flag (Art. 100, UCMJ) . . . . . . . . . . . . . . . . . . . . . IV. Para. 24 . . . . . . . . . . . . . . . . . . . . IV–36

Commissioned officer (Art. 90, UCMJ) . . . . . . . . . . . . . . . . IV. Para. 14 . . . . . . . . . . . . . . . . . . . . IV–18

Noncommissioned, petty, or warrant officer (Art.91,UCMJ) IV. Para. 15 . . . . . . . . . . . . . . . . . . . . IV–21

sua sponte, defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 103(18) . . . . . . . . . . . . . . . . . II–2

Subordinate compelling surrender (Art. 100, UCMJ) . . . . . . . IV. Para. 24 . . . . . . . . . . . . . . . . . . . . IV–36

Subpoena (Art. 46 and 47, UCMJ)

Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 703(f)(4)(B) . . . . . . . . . . . . . II–66

Form . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Appendix 7 . . . . . . . . . . . . . . . . . . . . A7–1

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 703 . . . . . . . . . . . . . . . . . . . . II–62

Right to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 703(a) . . . . . . . . . . . . . . . . . . II–62

Witnesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 703(e)(2) . . . . . . . . . . . . . . . . II–64

Successor in command, included in “convening

authority” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 103(6) . . . . . . . . . . . . . . . . . . II–1

Summary court-martial (Art. 17, UCMJ)

Applicability of Military Rules of Evidence . . . . . . . . . . . . R.C.M. 1304(b)(2)(E) . . . . . . . . . . . . II–180

Composition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1301(a) . . . . . . . . . . . . . . . . . II–177

Convening

By accuser . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1302(b) . . . . . . . . . . . . . . . . . II–178

Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1302(c) . . . . . . . . . . . . . . . . . II–178

Who may convene . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1302(a) . . . . . . . . . . . . . . . . . II–178

Convening authority’s action . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1306(b) . . . . . . . . . . . . . . . . . II–181

Counsel, right to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1301(e) . . . . . . . . . . . . . . . . . II–177

Evidence, production of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1301(f) . . . . . . . . . . . . . . . . . II–178

Function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1301(b) . . . . . . . . . . . . . . . . . II–177

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Chapter XIII . . . . . . . . . . . . . . . . . . . II–177

Jurisdiction over persons and offenses . . . . . . . . . . . . . . . . . R.C.M. 1301(c) . . . . . . . . . . . . . . . . . II–177

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Military judge, included in definition of . . . . . . . . . . . . . . . R.C.M. 103(15) . . . . . . . . . . . . . . . . . II–2

Noncapital offenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1301(c) . . . . . . . . . . . . . . . . . II–177

Objection to trial by . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1303 . . . . . . . . . . . . . . . . . . . II–178

Procedural guide . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Appendix 9 . . . . . . . . . . . . . . . . . . . . A9–1

Procedure

Post-trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1306 . . . . . . . . . . . . . . . . . . . II–181

Pretrial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1304(a) . . . . . . . . . . . . . . . . . II–178

Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1304(b) . . . . . . . . . . . . . . . . . II–179

Punishments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1301(d) . . . . . . . . . . . . . . . . . II–177

Record of trial

Authentication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1305(c) . . . . . . . . . . . . . . . . . II–181

Format . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Appendix 15 . . . . . . . . . . . . . . . . . . . A15–1

Forwarding copies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1305(d) . . . . . . . . . . . . . . . . . II–181

Preparation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1103(d); 1305 . . . . . . . . . . . II–141; II–180

Review by summary court-martial . . . . . . . . . . . . . . . . . R.C.M. 1103(i)(2); 1305(a) . . . . . . . II–142; II–180

Referral of charges to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 403(b)(4); 601(d)(1) . . . . . . II–33; II–52

Basis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 601(d)(1) . . . . . . . . . . . . . . . . II–52

By general court-martial convening authority . . . . . . . R.C.M. 407(a)(4) . . . . . . . . . . . . . . . . II–41

By special court-martial convening authority . . . . . . . . R.C.M. 404(d) . . . . . . . . . . . . . . . . . . II–33

By summary court-martial convening authority . . . . . . R.C.M. 403(b)(4) . . . . . . . . . . . . . . . . II–33

Review

By a judge advocate . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1306(c) . . . . . . . . . . . . . . . . . II–181

By The Judge Advocate General . . . . . . . . . . . . . . . . . R.C.M. 1306(d) . . . . . . . . . . . . . . . . . II–181

Subpoena, authority to issue . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 703(e)(2)(C); 1301(f) . . . . . . II–64; II–178

Vacation of suspended sentence . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1109(e) . . . . . . . . . . . . . . . . . II–158

Witnesses, production . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1301(f) . . . . . . . . . . . . . . . . . II–178

Supreme Court, Appeal of courts-martial (Art.67(h), UCMJ) . R.C.M. 1205 . . . . . . . . . . . . . . . . . . . II–173

Surrender

Shameful (Art. 99, UCMJ) . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 23 . . . . . . . . . . . . . . . . . . . . IV–33

Subordinate compelling (Art. 100, UCMJ) . . . . . . . . . . . . . . IV. Para. 24 . . . . . . . . . . . . . . . . . . . . IV–36

Suspension of military judge, counsel . . . . . . . . . . . . . . . . . . . . R.C.M. 109 . . . . . . . . . . . . . . . . . . . . II–6

Suspension of nonjudicial punishment . . . . . . . . . . . . . . . . . . . V. Para. 6a . . . . . . . . . . . . . . . . . . . . V–7

Suspension of sentence

Conditions of suspension . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1108(c) . . . . . . . . . . . . . . . . . II–156

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1108 . . . . . . . . . . . . . . . . . . . II–155

Limitations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1108(d) . . . . . . . . . . . . . . . . . II–156

Termination by remission . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1108(e) . . . . . . . . . . . . . . . . . II–156

Vacation of suspension

Confinement pending . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1109(c) . . . . . . . . . . . . . . . . . II–156

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1109 . . . . . . . . . . . . . . . . . . . II–156

Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1109(d); 1109(e) . . . . . . . . . II–157; II–158

Report of proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . Appendix 18 . . . . . . . . . . . . . . . . . . . A18–1

Time for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1109(b) . . . . . . . . . . . . . . . . . II–156

Who may suspend . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1108(b) . . . . . . . . . . . . . . . . . II–155

Swearing

See also Oaths.

False . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 79 . . . . . . . . . . . . . . . . . . . . IV–125

Taking, wrongful . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 46 . . . . . . . . . . . . . . . . . . . . IV–84

See also Larceny.

Telephone, tapping . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 317 . . . . . . . . . . . . . . . III–16

Television

Broadcasting from courtroom . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 806(c) . . . . . . . . . . . . . . . . . . II–80

Remote live testimony of a child . . . . . . . . . . . . . . . . . . . . . R.C.M. 804; 914A . . . . . . . . . . . . . .

Mil. R. Evid. 611(d) . . . . . . . . . . . .

II–80; II–107;

III–37

Testify

Accused, failure to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 301(f)(1); 301(g) . . . . III–3; III–4

Wrongful refusal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 108 . . . . . . . . . . . . . . . . . . . IV–141

Testimony

Expert. See Evidence, Expert.

False . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 57 . . . . . . . . . . . . . . . . . . . . IV–105

See also Perjury.

How taken in court-martial . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 913(c)(2) . . . . . . . . . . . . . . . . II–106

Interpreter, given through . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 604 . . . . . . . . . . . . . . . III–35

Investigation, pretrial, alternatives . . . . . . . . . . . . . . . . . . . . . R.C.M. 405(g)(4) . . . . . . . . . . . . . . . . II–37

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Offer of proof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 103(a)(2) . . . . . . . . . . III–1

Prior proceeding, admissibility

Court-martial, at . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 804(b)(1) . . . . . . . . . . III–42

Investigation, pretrial at . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 405(g)(4)(A)(iii);

R.C.M. 405(g)(4)(B)(iii) . . . . . . . . . .

II–37

II–37

Privileged, See Evidence, Privileges.

Remote live testimony of a child . . . . . . . . . . . . . . . . . . . . . R.C.M. 804; R.C.M. 914A; Mil. R.

Evid. 611(d) . . . . . . . . . . . . . . . . . . . .

II–81; II–107; III–37

Spouse of accused . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 504 . . . . . . . . . . . . . . . III–24

Stipulation of expected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 811 . . . . . . . . . . . . . . . . . . . . II–84

Theft. See Larceny.

Threat

See also Extortion

To cause panic or public fear . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 109 . . . . . . . . . . . . . . . . . . . IV–142

Communicating . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 110 . . . . . . . . . . . . . . . . . . . IV–143

Time of war. See War.

Travel order, form . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Appendix 7 . . . . . . . . . . . . . . . . . . . . A7–1

Treaties, judicial notice of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 201A . . . . . . . . . . . . . III–2

Trial counsel

See also Counsel.

Absence of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 805(c) . . . . . . . . . . . . . . . . . . II–78

Announcement of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 813(a)(6); 901(b) . . . . . . . . . II–86; II–87

Assistant

Detailing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 501(b); 502(d)(2); 503(c) . . II–42; II–43; II–47

Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(d)(5) . . . . . . . . . . . . . . . . II–44

Oath . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 807(b)(1) . . . . . . . . . . . . . . . . II–81

Qualifications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(d)(2) . . . . . . . . . . . . . . . . II–43

Challenges against members, announcing grounds . . . . . . . R.C.M. 912(c) . . . . . . . . . . . . . . . . . . II–103

Changes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 505(d)(1) . . . . . . . . . . . . . . . . II–50

Charges and specifications

Authority to change . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 603 . . . . . . . . . . . . . . . . . . . . II–54

Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 602 . . . . . . . . . . . . . . . . . . . . II–53

Deposition, attached for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 702(d)(2) . . . . . . . . . . . . . . . . II–60

Detailing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 503(c) . . . . . . . . . . . . . . . . . . II–47

Disclosure to defense. See Disclosure and discovery.

Disqualification of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(d)(4); 502(f); 901(d)(3) II–44; II–46; II–87

Disqualified to act as other court-martial personnel . . . . . . R.C.M. 502(e)(2)(D) . . . . . . . . . . . . . II–46

Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(d)(5) . . . . . . . . . . . . . . . . II–44

Evidence, production of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 703(f) . . . . . . . . . . . . . . . . . . II–65

Mental examination of accused, disclosure of results to . . R.C.M. 706(c)(3); 706(c)(5) . . . . . . . II–70; II–71

Oath

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 807(b)(1) . . . . . . . . . . . . . . . . II–81

Unsworn previously . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 901(d)(5) . . . . . . . . . . . . . . . . II–88

Opening statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 913(b) . . . . . . . . . . . . . . . . . . II–105

Presence at court-martial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 803; 805 . . . . . . . . . . . . . . . . II–76; II–78

Qualifications

Announcement of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 901(d)(1) . . . . . . . . . . . . . . . . II–87

General court-martial . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(d)(1) . . . . . . . . . . . . . . . . II–43

Special court-martial . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(d)(2) . . . . . . . . . . . . . . . . II–43

Record of trial

Examination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1103(i)(1) . . . . . . . . . . . . . . . II–142

Responsibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 808; 1103(b)(1); 1103(c) . . II–82; II–141

Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1104(b) . . . . . . . . . . . . . . . . . II–144

Result of trial, report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1101(a) . . . . . . . . . . . . . . . . . II–136

Service of charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 602 . . . . . . . . . . . . . . . . . . . . II–53

Witnesses, production of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 703(c); 703(d); 703(e) . . . . II–65; II–63

Unauthorized absence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 10 . . . . . . . . . . . . . . . . . . . . IV–12

See also Desertion.

Unauthorized insignia, badge, ribbon, device, or lapel button,

wearing of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 113 . . . . . . . . . . . . . . . . . . . IV–144

Unauthorized pass . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 77 . . . . . . . . . . . . . . . . . . . . IV–124

Uncharged misconduct

Action with presented to court-martial . . . . . . . . . . . . . . . . . R.C.M. 801(d) . . . . . . . . . . . . . . . . . . II–73

Evidence, when admissible . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 404(b); 608(b) . . . . . . III–19; III–36

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Subject Ref. Page

Instruction on . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 105 . . . . . . . . . . . . . . . III–2

Uniform

For courts-martial

Accused, responsibility for . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 804(d)(1) . . . . . . . . . . . . . . . . II–78

Military judge, determination . . . . . . . . . . . . . . . . . . . . . R.C.M. 801(a)(1) . . . . . . . . . . . . . . . . II–73

Wearing unauthorized insignia, badge, ribbon, device,

or lapel button . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

IV. Para. 113 . . . . . . . . . . . . . . . . . . . IV–144

Uniform Code of Military Justice (UCMJ) . . . . . . . . . . . . . . . Appendix 2 . . . . . . . . . . . . . . . . . . . . A2–1

Failure to enforce or comply with . . . . . . . . . . . . . . . . . . . . IV. Para. 22 . . . . . . . . . . . . . . . . . . . . IV–32

Unit, separate or detached, defined . . . . . . . . . . . . . . . . . . . . . . R.C.M. 504(b)(2)(A) . . . . . . . . . . . . . II–48

Unlawful apprehension . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 21 . . . . . . . . . . . . . . . . . . . . IV–32

Unlawful detention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 21 . . . . . . . . . . . . . . . . . . . . IV–32

Unlawful enlistment, appointment, separation . . . . . . . . . . . . . IV. Paras. 7; 8 . . . . . . . . . . . . . . . . . IV–8; IV–9

Unlawful entry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 111 . . . . . . . . . . . . . . . . . . . IV–143

Unsworn charges

Amendment resulting in . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 603(d) . . . . . . . . . . . . . . . . . . II–54

Preferral . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 307(b) . . . . . . . . . . . . . . . . . . II–27

Unsworn statement

Accused

Investigation, pretrial, right to make . . . . . . . . . . . . . . . R.C.M. 1001(c)(2)(C) . . . . . . . . . . . . II–122

Presentencing proceeding, right to make . . . . . . . . . . . R.C.M. 405(f)(12) . . . . . . . . . . . . . . . II–35

Investigation, pretrial, objection to use at . . . . . . . . . . . . . . R.C.M. 405(g)(4)(A)(vi) . . . . . . . . . . II–37

Use, wrongful, of controlled substance . . . . . . . . . . . . . . . . . . . IV. Para. 37 . . . . . . . . . . . . . . . . . . . . IV–54

Uttering forged instrument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 48 . . . . . . . . . . . . . . . . . . . . IV–90

Uttering worthless check . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 49 . . . . . . . . . . . . . . . . . . . . IV–92

Vacation of suspended punishment

Confinement, pending . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1109(c) . . . . . . . . . . . . . . . . . II–156

General court-martial sentence . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1109(d) . . . . . . . . . . . . . . . . . II–157

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1109 . . . . . . . . . . . . . . . . . . . II–156

Nonjudicial punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Para. 6a(4); 6a(5) . . . . . . . . . . . . V–7

Report of proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Appendix 18 . . . . . . . . . . . . . . . . . . . A18–1

Special court-martial, bad-conduct discharge . . . . . . . . . . . . R.C.M. 1109(f) . . . . . . . . . . . . . . . . . II–158

Special court-martial sentence, no bad-conduct discharge . R.C.M. 1109(e) . . . . . . . . . . . . . . . . . II–158

Summary court-martial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1109(g) . . . . . . . . . . . . . . . . . II–159

Value, discussed under larceny . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 46c(1)(g) . . . . . . . . . . . . . . IV–87

Vehicle

Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 103 . . . . . . . . . . . . . . . . . . . . II–1

Driving recklessly or while drunk . . . . . . . . . . . . . . . . . . . . . IV. Para. 35 . . . . . . . . . . . . . . . . . . . . IV–52

Venue. See Place of court-martial.

Veracity, impeachment of witnesses. See Evidence,

Impeachment.

Verbatim record . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1103(b)(2)(B); 1103(c)(1) . . II–140; II–141

Verdict. See Findings.

Vessel

Hazarding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 34 . . . . . . . . . . . . . . . . . . . . IV–50

Jumping from . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 91 . . . . . . . . . . . . . . . . . . . . IV–130

Videotaped record of trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1103(j) . . . . . . . . . . . . . . . . . II–142

Views and inspections, by court-martial . . . . . . . . . . . . . . . . . . . R.C.M. 913(c)(3) . . . . . . . . . . . . . . . . II–106

Violence, offering to superior commissioned officer . . . . . . . IV. Para. 14 . . . . . . . . . . . . . . . . . . . . IV–18

Voir dire

See also Challenges.

Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 912(d) . . . . . . . . . . . . . . . . . . II–103

Military judge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 902(d)(2) . . . . . . . . . . . . . . . . II–89

Use of questionnaire . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 912(a)(1) . . . . . . . . . . . . . . . . II–102

Voluntary manslaughter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 44 . . . . . . . . . . . . . . . . . . . . IV–64

Voting. See Deliberations and voting.

Waiver

Appellate review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1110 . . . . . . . . . . . . . . . . . . . II–159

Form for waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Appendix 19 . . . . . . . . . . . . . . . . . . . A19–1

Argument, objections to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 919(c) . . . . . . . . . . . . . . . . . . II–115

By pretrial agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 705(c)(2)(E) . . . . . . . . . . . . . II–69

Challenges

Cause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 912(f)(4) . . . . . . . . . . . . . . . . II–104

Peremptory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 912(g)(2) . . . . . . . . . . . . . . . . II–105

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Selection of members . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 912(b)(3) . . . . . . . . . . . . . . . . II–103

Conditional guilty plea, effect on . . . . . . . . . . . . . . . . . . . . . R.C.M. 910(a)(2) . . . . . . . . . . . . . . . . II–100

Deposition

Objections in . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 702(h) . . . . . . . . . . . . . . . . . . II–61

Request for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 702(c)(3)(D) . . . . . . . . . . . . . II–60

Enlisted members, request for . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 903(e) . . . . . . . . . . . . . . . . . . II–90

Evidence, admissibility and objections . . . . . . . . . . . . . . . . . Mil. R. Evid. 103 . . . . . . . . . . . . . . . III–1

Guilty plea, effect of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 910(c)(4); 910(j) . . . . . . . . . II–100; II–102

Instructions, objection to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 920(f); 1005(f) . . . . . . . . . . . II–117; II–132

Military judge alone, request for trial by . . . . . . . . . . . . . . R.C.M. 903(e) . . . . . . . . . . . . . . . . . . II–90

Motions, generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(e); 907(b)(2) . . . . . . . . . II–92; II–96

Objections, generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 801(g); Mil. R. Evid. 103 . II–75; III–1

Recommendation of staff judge advocate, defect in,

objections to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1106(f)(6) . . . . . . . . . . . . . . . II–149

Self-incrimination

Accused . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 301(e) . . . . . . . . . . . . . III–3

Witness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 301(d) . . . . . . . . . . . . III–3

War

Judicial notice of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 201 . . . . . . . . . . . . . . . III–2

Law of. See Law of War.

Prosecution of, case affecting . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 401(d); 407(b) . . . . . . . . . . . II–32; II–41

Time of

Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 103(19) . . . . . . . . . . . . . . . . . II–2

Element of offense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Paras. 25; 29; 30 . . . . . . . . . . . . IV–38; IV–42; IV–43

Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Paras. 6; 9; 14; 38; 40 . . . . . . . IV–7; IV–9; IV–18; IV–58;

IV–60

Warrant of attachment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 703(e)(2)(G) . . . . . . . . . . . . . II–1

Warrant officer

Apprehension by . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 302(b)(2) . . . . . . . . . . . . . . . . II–18

Assault on

In execution of office . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 15 . . . . . . . . . . . . . . . . . . . . IV–21

Not in execution of office . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 54 . . . . . . . . . . . . . . . . . . . . IV–98

Dishonorable discharge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1003(b)(8)(B) . . . . . . . . . . . . II–125

Dismissal of commissioned . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1003(b)(8)(A) . . . . . . . . . . . . II–125

Disobedience of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 15 . . . . . . . . . . . . . . . . . . . . IV–21

Disrespect toward . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 15 . . . . . . . . . . . . . . . . . . . . IV–21

Member of court-martial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 502(a)(1)(B) . . . . . . . . . . . . . II–42

Restraint of, pretrial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 304(b)(1) . . . . . . . . . . . . . . . . II–20

Warrant, search. See Search and seizure.

Waste or spoilage, nonmilitary property . . . . . . . . . . . . . . . . . IV. Para. 33 . . . . . . . . . . . . . . . . . . . . IV–49

Weapon

See also Assault; Firearm.

Carrying concealed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 112 . . . . . . . . . . . . . . . . . . . IV–144

Wearing unauthorized insignia, decoration, badge, ribbon,

device or lapel button . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 113 . . . . . . . . . . . . . . . . . . . IV–144

Wife, Husband, privileged communication . . . . . . . . . . . . . . . . . Mil. R. Evid. 504 . . . . . . . . . . . . . . . III–24

Willful disobedience of orders . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Paras. 14; 15 . . . . . . . . . . . . . . . IV–18; IV–21

Wiretapping, evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 317 . . . . . . . . . . . . . . . III–16

Withdrawal

Appellate review waiver, of . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1110 . . . . . . . . . . . . . . . . . . . II–159

Charges, of

Authority to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 604(a) . . . . . . . . . . . . . . . . . . II–54

Effect of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 604(b) . . . . . . . . . . . . . . . . . . II–54

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 604 . . . . . . . . . . . . . . . . . . . . II–54

Mistrial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 915(c)(1) . . . . . . . . . . . . . . . . II–108

Pretrial agreement, term of . . . . . . . . . . . . . . . . . . . . . . R.C.M. 705(b)(2)(C) . . . . . . . . . . . . . II–68

From conspiracy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 5c(6) . . . . . . . . . . . . . . . . . IV–6

From offense, as principal . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 1b(7) . . . . . . . . . . . . . . . . . IV–2

From pretrial agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 705(b) . . . . . . . . . . . . . . . . . . II–68

Guilty plea, of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 910(h)(1) . . . . . . . . . . . . . . . . II–101

Witness

Access to, by parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(e) . . . . . . . . . . . . . . . . . . II–58

Appear, neglect or refusal to . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 703(e)(2)(G) . . . . . . . . . . . . . II–65

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Children . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 804; 914A . . . . . . . . . . . . . .

Mil. R. Evid. 611(d) . . . . . . . . . . . .

II–82; II–107;

III–37

Competency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 601 . . . . . . . . . . . . . . . III–35

Discovery. See Disclosure and discovery.

Examination. See Questions; Testimony.

Expert, employment of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 703(d) . . . . . . . . . . . . . . . . . . II–63

Failure to call . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 701(c) . . . . . . . . . . . . . . . . . . II–58

Immunity. See Immunity.

Impeachment. See Evidence, Impeachment.

Members, disqualified as . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 912(f)(1)(D) . . . . . . . . . . . . . II–104

Military judge, disqualified as . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 902(b)(3) . . . . . . . . . . . . . . . . II–88

Oath . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 807(b) . . . . . . . . . . . . . . . . . . II–81

Perjury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 57 . . . . . . . . . . . . . . . . . . . . IV–105

Presence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 703(b)(1) . . . . . . . . . . . . . . . . II–62

Pretrial agreement concerning . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 705(c)(2)(B); 705(c)(2)(E) . II–68; II–69

Privileges. See Evidence, Privileges.

Production of

Determination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 703(c) . . . . . . . . . . . . . . . . . . II–65

Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 703 . . . . . . . . . . . . . . . . . . . . II–62

Motion for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 905(b)(4); 906(b)(7) . . . . . . II–91; II–94

Pretrial investigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 405(g) . . . . . . . . . . . . . . . . . . II–35

Procedure for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 703(e); Appendix 7 . . . . . . . II–63; A7–1

Rights of parties, court-martial . . . . . . . . . . . . . . . . . . . R.C.M. 703(b) . . . . . . . . . . . . . . . . . . II–62

Sentencing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 1001(e) . . . . . . . . . . . . . . . . . II–123

Subpoena . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 703(e)(2); Appendix 7 II–64; A7–1

Trial counsel, responsibility . . . . . . . . . . . . . . . . . . . . . . R.C.M. 703(c)(1); 703(c)(2)(D) . . . . II–63

Statements of, production . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 914 . . . . . . . . . . . . . . . . . . . . II–107

Unavailable

Court-martial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 703(b)(3) . . . . . . . . . . . . . . . . II–62

Pretrial investigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.C.M. 405(g)(1) . . . . . . . . . . . . . . . . II–35

Worthless checks. See Checks.

Writings

Authentication of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 901; 902 . . . . . . . . . . III–43; III–44

Best evidence rule. See Evidence, Contents of writings,

recordings, and photographs.

Used to refresh memory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mil. R. Evid. 612 . . . . . . . . . . . . . . . III–37

Wrongful appropriation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 46 . . . . . . . . . . . . . . . . . . . . IV–84

Wrongful cohabitation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Para. 69 . . . . . . . . . . . . . . . . . . . . IV–120

Index 67

INDEX MCM, 2008
Part I

Preamble

Part II

Rules for Courts_Martial

Part III

Military Rules of Evidence

Part IV

Punitive Articles

Part V

Nonjudicial Punishment Procedures

Uniform Code of Military Justice

Analysis of Rules for Courts-Martial

Analysis of Military Rules of Evidence

Analysis of Punitive Articles

Historical Executive Orders

Index

UNCLASSIFIED PIN 030567–000
2008

Edition

MANUAL

FOR

COURTSMARTIAL

UNITED STATES
USAPD

ELECTRONIC PUBLISHING SYSTEM

MCM TEXT FORMATTER ... Version 1.13

PIN: 030567–000

DATE: 01-16-08

TIME: 06:50:44

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DATA FILE: mcm2008.fil

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