MANUAL 


FOR 


COURTS-MARTIAL 


UNITED STATES 


(1998 EDITION) 


The 1998 Editibn of the MCM is a complete revision incorporating all Executive 

Orders (1984 MCM, Changes 1-7, and 1995 and 1998 Amendments). Copies of 

each Executive Order can be found in Appendix 25. 
The Manual for Courts-Martial (MCM), United States (1998 Edition) updates the MCM, (1995 Edition). 

It is a complete reprinting and incorporates the MCM (1995 Edition) and the 1998 amendments to the MCM 

(Executive Order (EO) 13086). The EO is contained in Appendix 25. 

The MCM (1998 Edition) differs from the MCM (1995 Edition) in that it contains the 1998 amendments 

to the Manual. It implements amendments to the Uniform Code of Military Justice (UCMJ) made by the 

National Defense Authorization Acts for Fiscal Years (FY) 1996, 1997, and 1998. The FY 1996 Act amended 

UCMJ Articles 1, 2, 32, 47, 57, 60, 62, 66, 95, 120, and 137, and created UCMJ Articles 57a, 58b, and 76b. 

The FY 1997 Act amended UCMJ Articles 58b and 143. The FY 1998 Act created UCMJ Article 56a and 

amended Articles 58b and 143. The 1998 amendments also include changes made by the President to the 

Rules for Courts-Martial, Military Rules of Evidence, and Punitive Articles. 

JOINT SERVICE COMMIlTEE 

ON MILITARY JUSTICE 
MCM 1998 

CONTENTS 


PART I PREAMBLE 

1. Sources of military jurisdiction ............................................ 

2. Exercise of military jurisdiction ............................................ (a) Kinds..................................................................... 
 (b) Agencies.................................................................. 


3. Nature and purpose of military law ........................................ 


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


PART I1 RULES FOR COURTS-MARTIAL 

CHAPTER I. GENERAL PROVISIONS 


Rule 101 . Scope. title ........................................................ 
 (a) In general ................................................................. 
 (b) Title...................................................................... 


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


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


Rule 104 . Unlawful command influence ....................................... 
 (a) General prohibitions ......................................................... 
 (b) Proliibitions concerning evaluations ............................................ 


Rule 105 . Direct communications: convening authorities and staff judge 

advocates; among staff judge advocates .................................... (a) Convening autllorities ai~d staff judge advocates ................................. 
 (b) Ainoiig staff judge advocates and wit11 the Judge Advocate General ............... 


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


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


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


Rule 109 . Professional supervision of military judges and counsel ........... 
 (a) In general ................................................................. 
 (b) Action after suspension or disbarment. ........................................ 
 (c) Investigation of judges ...................................................... 


CHAPTER I1. JURISDICTION 


Rule 201 . Jurisdiction in general ............................................. 


(a) Nature of courts-martial jurisdiction ........................................... 
 (b) Requisites of court-martial jurisdiction ......................................... 
 (c) Contempt................................................................... 
 (d) Exclusive and ~io~iexclusive jurisdiction........................................ 
 (e) Reciprocal jurisdiction ....................................................... 
 (f) Types of courts-martial ...................................................... 

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


Rule 202 . Persons subject to the jurisdiction of courts-martial ............... 
 (a) In general................................................................. 
 (b) Offenses under the law of war............................................... 
 (c) Attachment of jurisdiction over the person ..................................... 
 (1) In general............................................................... 
 (2) Procedure................................................................ 


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


Rule 204 . Jurisdiction over certain reserve component personnel ............. 
 (a) Service regulations .......................................................... 
 (c) Applicability............................................................... 
 (d) Changes in type of service .................................................. 


CHAPTER Ill. INITIATION OF CHARGES; APPREHENSION; PRETRIAL 

RESTRAINT; RELATED MATTERS 

Rule 301 . Report of offense .................................................. 
 (a) Who may report ............................................................ 
 (b) To whom reports conveyed for disposition ..................................... 


Rule 302 . Apprehension ...................................................... 
 (a) Definition and scope ........................................................ 
 (b) Who may apprehend ........................................................ 
 (c) Grounds for apprehension .................................................... 
 (d) How an apprehension may be made ........................................... 
 (e) Where an apprehension may be made ......................................... 


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


Rule 304 . Pretrial restraint ................................................... 
 (a) Types of pretrial restraint .................................................... 


(b) Who may order pretrial restraint .............................................. 
 (c) When a person may be restrained ............................................. 
 (d) Procedures for ordering pretrial restraint ....................................... 
 (e) Notice of basis for restraint .................................................. 
 (f) Punishment prohibited ....................................................... 
 (g) Release................................................................... 
 (h) Administrative restraint ...................................................... 


Rule 305 . Pretrial confinement ............................................... 
 (a) In general ................................................................. 
 (b) Who may be confined ...................................................... 
 (c) Who may order confinement ................................................. 


(d) When a person may be confined ............................................. 


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


(g) Who may direct release from confinement ..................................... 
 (h) Notification and action by commander ......................................... 
 (j) Review by military judge .................................................... 
 (k) Remedy................................................................... 
 (1) Confinement after release .................................................... 
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(m) Exceptions................................................................ 


Rule 306. Initial disposition .................................................. 
 (a) Who may dispose of offenses ................................................ 
 (b) Policy..................................................................... 
 (c) How offenses may be disposed of ............................................ 
 (d) National security matters ..................................................... 


Rule 307. Preferral of charges ............................................... 
 (a) Who may prefer charges ..................................................... 
 (b) How charges are preferred; oath .............................................. 
 (c) How to allege offenses ...................................................... 
 (d) Harmless error in citation .................................................... 


Rule 308. Notification to accused of charges ................................. 
 (a) Immediate commander ....................................................... 
 (b) Commanders at higher echelons .............................................. 
 (c) Remedy................................................................... 


CHAPTER IV . FORWARDING AND DISPOSITION OF CHARGES 


Rule 401. Forwarding and disposition of charges in general .................. 
 (a) Who may dispose of charges ................................................. 
 (b) Prompt determination ........................................................ 
 (c) How chargss may be disposed of ............................................. 
 (d) National security matters ..................................................... 

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

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

(a) Recording receipt ........................................................... 
 (b) Disposition................................................................ 

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

Rule 405. Pretrial investigation ............................................... (a) In general................................................................. 
 (b) Earlier investigation ......................................................... 
 (c) Who may direct investigation ................................................. 
 (d) Personnel................................................................. 
 (e) Scope of investigation ....................................................... 
 (f) Rights of the accused ....................................................... 
 (g) Production of witnesses and evidence; alternatives ............................... 
 (h) Procedure.................................................................. 
 (i) Military Rules of Evidence .................................................. 
 Cj) Report of investigation ....................................................... 


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

Rule 407. Action by commander exercising general court-martial jurisdiction . 11-41 

(a) Disposition................................................................. 11-41 


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(b) National security matters ..................................................... 


CHAPTER V . COURT-MARTIAL COMPOSITION AND PERSONNEL; CONVENING 

COURTS-MARTIAL 

Rule 501 . Composition and personnel of courts-martial ....................... 
 (a) Composition of courts.martial ................................................. 
 (b) Counsel in general and special courts.martial ................................... 
 (c) Other personnel ............................................................ 


Rule 502 . Qualifications and duties of personnel of courts-martial ............ 
 (a) Members.................................................................. 
 (1) Qualifications............................................................ 
 (2) Duties.................................................................. 
 (b) President.................................................................. 
 (1) Qualifications............................................................ 
 (2) Duties.................................................................. 
 (c) Qualifications of military judge ............................................... 
 (d) Counsel................................................................... 
 (1) Certified counsel required .................................................. 
 (2) Other military counsel ..................................................... 
 (3) Qualifications of individual military and civilian defense counsel ................ 
 (4) Disqualifications.......................................................... 
 (5) Duties of trial and assistant trial counsel ..................................... 
 (6) Duties of defense and associate or assistant defense counsel .................... 
 (e) Interpreters, reporters, escorts, bailiffs, clerks, and guards ......................... 
 (1) Qualifications............................................................ 
 (2) Disqualifications.......................................................... 
 (3) Duties.................................................................. 
 (4) Payment of reporters, interpreters ........................................... 
 (f) Action upon discovery of disqualification or lack of qualifications ................ 


Rule 503 . Detailing members, military judge, and counsel .................... 
 (a) Members.................................................................. 
 (b) Military judge .............................................................. 
 (c) Counsel................................................................... 


Rule 504 . Convening courts-martial ........................................... 
 (a) In general ................................................................. 
 (b) Who may convene courts.martia1 ............................................. 
 (c) Disqualification............................................................. 
 (d) Convening orders ........................................................... 
 (e) Place..................................................................... 


Rule 505 . Changes of members, military judge, and counsel ................. 
 (a) In general................................................................. 
 (b) Procedure.................................................................. 
 (c) Changes of members ........................................................ 
 (d) Changes of detailed counsel .................................................. 
 (e) Change of military judge .................................................... 

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(f) Good cause ................................................................ 


Rule 506 . Accused's rights to counsel ....................................... 
 (a) In general ................................................................. 
 (b) Individual military counsel ................................................... 
 (c) Excusal or withdrawal ....................................................... 
 (d) Waiver.................................................................... 
 (e) Nonlawyer present .......................................................... 


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

CHARGES 

Rule 601 . Referral ............................................................ 
 (a) In general ................................................................. 
 (b) Who may refer ............................................................. 
 (c) Disqualification.......;..................................................... 
 (d) When charges may be referred ............................................... 
 (e) How charges shall be referred ................................................ 
 (f) Superior convening authorities ................................................ 


Rule 602 . Service of charges .................................................. 


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


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


CHAPTER VII . PRETRIAL MAlTERS 


Rule 701 . Discovery .......................................................... 
 (a) Disclosure by the trial counsel ............................................... 
 (b) Disclosure by the defense .................................................... 
 (c) Failure to call witness ....................................................... 
 (d) Continuing duty to disclose .................................................. 
 (e) Access to witnesses and evidence .............................................. 
 (f) Information not subject to disclosure ........................................... 
 (g) Regulation of discovery ..................................................... 
 (h) Inspect.................................................................... 


Rule 702 . Depositions ........................................................ 
 (a) In general ................................................................. 
 (b) Who may order ............................................................ 
 (c) Request to take deposition ................................................... 
 (e) Notice.................................................................... 
 (f) Duties of the deposition officer ............................................... 
 (g) Procedure.................................................................. 
 (h) Objections................................................................. 


Rule 703 . Production of witnesses and evidence ............................. 

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(a) In general................................................................. 
 (b) Right to witnesses .......................................................... 
 (c) Determining which witness will be produced ................................... 
 (d) Employment of expert witnesses .............................................. 
 (e) Procedures for production of witnesses ......................................... 
 (f) Right to evidence ........................................................... 


Rule 704 . Immunity .......................................................... 
 (a) Types of immunity ......................................................... 
 (b) Scope..................................................................... 
 (c) Authority to grant immunity .................................................. 
 (d) Procedure.................................................................. 
 (e) Decision to grant immunity .................................................. 


Rule 705 . Pretrial agreements ................................................ 
 (a) In general ................................................................. 
 (b) Nature of agreement ........................................................ 
 (c) Terms and conditions ....................................................... 
 (d) Procedure.................................................................. 
 (e) Nondisclosure of existence of agreement ....................................... 


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

............................................................................ 


(a) Initial action ............................................................... 
 (b) Ordering an inquiry ......................................................... 
 (c) Inquiry.................................................................... 


Rule 707 . Speedy trial ....................................................... 
 (a) In general .....................................,........................... 
 (b) Accountability.............................................................. 
 (c) Excludable delay ........................................................... 
 (d) Remedy................................................................... 
 (e) Waiver.................................................................... 


CHAPTER VIII . TRIAL PROCEDURE GENERALLY 


Rule 801 . Military judge's responsibilities; other matters ...................... 
 (a) Responsibilities of military judge .............................................. 
 (b) Rules of court; contempt .................................................... 
 (c) Obtaining evidence .......................................................... 
 (d) Uncharged offenses ......................................................... 
 (e) Interlocutory questions and questions of law .................................... 
 (f) Rulings on record ........................................................... 
 (g) Effect of failure to raise defenses or objections ................................. 


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


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(f) Limitations................................................................. 


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


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

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


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


Rule 807. Oaths .............................................................. 
 (a) Definition.................................................................. 
 (b) Oaths in courts.martia1 ...................................................... 


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


Rule 809. Contempt proceedings ............................................. 
 (a) In general ................................................................. 
 (b) Method of disposition ....................................................... 
 (d) Record; review ............................................................. 
 (e) Sentence................................................................... 
 (f) Informing person held in contempt ............................................ 


Rule 810. Procedures for rehearings, new trials, and other trials ............. 
 (a) In general................................................................. 
 (b) Composition............................................................... 
 (c) Examination of record of former proceedings ................................... 
 (d) Sentence limitations ......................................................... 
 (e) Definition.................................................................. 


Rule 811. Stipulations ........................................................ 
 (a) In general ................................................................. 
 (b) Authority to reject .......................................................... 
 (c) Requirements............................................................... 
 (d) Withdrawal................................................................ 
 (e) Effect of stipulation ......................................................... 
 (f) Procedure.................................................................. 


Rule 812. Joint and common trials ........................................... 


Rule 813. Announcing personnel of the court-martial and accused ........... 
 (a) Opening sessions ........................................................... 
 (b) Later proceedings ........................................................... 
 (c) Additions. replacement. and absences of personnel ............................... 


CHAPTER IX . TRIAL PROCEDURES THROUGH FINDINGS 
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Rule 901 . Opening session ................................................... 
 (a) Call to order ............................................................... 
 (b) Announcement of parties .................................................... 
 (c) Swearing reporter and interpreter .............................................. 
 (d) Counsel................................................................... 
 (e) Presence of members ........................................................ 


Rule 902 . Disqualification of military judge ................................... 
 (a) In general ................................................................. 
 (b) Specific grounds ............................................................ 
 (c) Definitions................................................................. 
 (d) Procedure.................................................................. 
 (e) Waiver.................................................................... 


Rule 903 . Accused's elections on composition of court-martial ............... 
 (a) Time of elections ........................................................... 
 (b) Form of election ........................................................... 
 (c) Action on election .......................................................... 


(d) Right to withdraw request ................................................... 
 (e) Untimely requests ........................................................... 


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


Rule 905 . Motions generally .................................................. 
 (a) Definitions and form ........................................................ 
 (b) Pretrial motions ............................................................ 
 (c) Burden of proof ............................................................ 
 (d) Ruling on motions .......................................................... 
 (e) Effect of failure to raise defenses or objections ................................. 
 (f) Reconsideration............................................................. 
 (g) Effect of final determinations ................................................. 
 (h) Written motions ............................................................ 
 (i) Service.................................................................... 
 0) Application to convening authority ............................................. 
 (k) Production of statements on motion to suppress ................................. 


Rule 906 . Motions for appropriate relief ...................................... 
 (a) In general ................................................................. 


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


Rule 907 . Motions to dismiss ................................................ 
 (a) In general ................................................................. 
 (b) Grounds for dismissal ....................................................... 


Rule 908 . Appeal by the United States ....................................... 
 (a) In general ................................................................. 
 (b) Procedure.................................................................. 
 (c) Appellate proceedings ....................................................... 
 (d) Military judge .............................................................. 


Rule 909 . Capacity of the accused to stand trial by court-martial ............. 
 (a) In general ................................................................. 
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(b) Presumption of capacity ..................................................... 
 (c) Determination before referral ................................................. 
 (d) Determination after referral .................................................... 
 (e) Incompetence determination hearing ........................................... 
 (f) Hospitalization of the accused ................................................ 
 (g) Excludable delay ........................................................... 


Rule 910 . Pleas .............................................................. 
 (a) Alternatives................................................................ 
 (b) Refusal to plead; irregular plea ............................................... 
 (c) Advice to accused .......................................................... 
 (d) Ensuring that the plea is voluntary ............................................ 
 (e) Determining accuracy of plea ................................................. 
 (f) Plea agreement inquiry ...................................................... 
 (g) Findings................................................................... 
 (h) Later action ................................................................ 
 (i) Record of proceedings ....................................................... 
 (j) Waiver.................................................................... 

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

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

members .................................................................... 
 (a) Pretrial matters ............................................................. 


(b) Challenge of selection of members ............................................ 
 (c) Stating grounds for challenge ................................................. 
 (d) Examination of members .................................................... 
 (e) Evidence.................................................................. 
 (f) Challenges and removal for cause ............................................ 
 (g) Peremptory challenges ....................................................... 


(h) Special courts-martial without a military judge .................................. 
 (i) Definitions................................................................. 


Rule 913 . Presentation of the case on the merits ............................ 
 (a) Preliminary instructions ...................................................... 
 (b) Opening statements ......................................................... 
 (c) Presentation of evidence ..................................................... 


Rule 914 . Production of statements of witnesses ............................. 
 (a) Motion for production ....................................................... 
 (b) Production of entire statement ................................................ 
 (c) Production of excised statement ............................................... 
 (d) Recess for examination of the statement ....................................... 
 (e) Remedy for failure to produce statement ....................................... 
 (f) Definition.................................................................. 


Rule 915 . Mistrial ............................................................. 
 (a) In general ................................................................. 
 (b) Procedure.................................................................. 


(c) Effect of declaration of mistrial ............................................... 


Rule 91 6. Defenses .......................................................... 

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(a) In general ................................................................. 
 (b) Burden of proof ............................................................ 
 (c) Justification................................................................ 
 (d) Obedience to orders ........................................................ 
 (e) Self-defense................................................................ 
 (f) Accident................................................................... 
 (g) Entrapment................................................................ 
 (h) Coercion or dnr~ss .......................................................... 
 (i) Inability................................................................... 
 (j) Ignorance or mistake of fact .................................................. 
 (k) Lack of mental responsibility ................................................. 
 (1) Not defenses generally ....................................................... 


Rule 917 . Motion for a finding of not guilty .................................. 
 (a) In general ................................................................. 
 (b) Form of motion ............................................................ 
 (c) Procedure.................................................................. 
 (d) Standard................................................................... 
 (e) Motion as to greater offense ................................................. 
 (f) Effect of ruling ............................................................. 
 (g) Effect of denial on review ................................................... 


Rule 91 8. Findings ........................................................... 
 (a) General findings ............................................................ 
 (b) Special findings ............................................................ 
 (c) Basis of findings ........................................................... 


Rule 919 . Argument by counsel on findings .................................. 
 (a) In general ................................................................. 
 (b) Contents................................................................... 
 (c) Waiver of objection to improper argument ..................................... 


Rule 920 . Instructions on findings ............................................ 
 (a) In general ................................................................. 
 (b) When given ............................................................... 
 (c) Requests for instructions ..................................................... 
 (d) How given ................................................................. 
 (e) Required instructions ........................................................ 
 (f) Waiver.................................................................... 


Rule 921 . Deliberations and voting on findings ............................... 
 (a) In general ................................................................. 
 (b) Deliberations............................................................... 
 (c) Voting.................................................................... 
 (d) Action after findings are reached ............................................. 


Rule 922 . Announcement of findings ........................................ 
 (a) In general ................................................................. 
 (b) Findings by members ....................................................... 
 (c) Findings by military judge ................................................... 
 (d) Erroneous announcement ..................................................... 


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(e) Polling prohibited ........................................................... 


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


Rule 924 . Reconsideration of findings ........................................ 
 (a) Time for reconsideration ..................................................... (b) Procedure .................................................................. (c) Military judge sitting alone .................................................. 

CHAPTER X. SENTENCING 


Rule 1001 . Presentencing procedure .......................................... 
 (a) In general ................................................................. 
 (b) Matter to be presented by the prosecution ..................................... 
 (c) Matter to be presented by the defense ......................................... 
 (d) Rebuttal and surrebuttal ..................................................... 
 (e) Production of witnesses ...................................................... 
 (f) Additional matters to be considered ........................................... 
 (g) Argument.................................................................. 


Rule 1002 . Sentence determination ........................................... 


Rule 1003 . Punishments ...................................................... 
 (a) In general ................................................................. 
 (b) Authorized punishments ...................................................... 
 (c) Limits on punishments ...................................................... 
 (d) Circumstances permitting increased punishments ................................. 


Rule 1004 . Capital cases ..................................................... 
 (a) In general ................................................................. 
 (b) Procedure.................................................................. 
 (c) Aggravating factors ......................................................... 
 (d) Spying.................................................................... 
 (e) Other penalties ............................................................. 


Rule 1005 . Instructions on sentence .......................................... 
 (a) In general ................................................................. 
 (b) When given ............................................................... 
 (c) Requests for instructions ..................................................... 
 (d) How given ................................................................ 
 (e) Required instructions ........................................................ 
 (f) Waiver.................................................................... 


Rule 1006 . Deliberations and voting on sentence ............................. 
 (a) In general................................................................. 
 (b) Deliberations............................................................... 
 (c) Proposal of sentences ....................................................... 
 (d) Voting.................................................................... 
 (e) Action after a sentence is reached ............................................ 


Rule 1007 . Announcement of sentence ....................................... 
 (a) In general .................................................................. 
 (b) Erroneous announcement ..................................................... 

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


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


Rule 1009 . Reconsideration of sentence ...................................... 
 (a) Reconsideration............................................................. 
 (b) Exceptions................................................................. 
 (c) Clarification of sentence ..................................................... 
 (d) Action by the convening authority ............................................ 
 (e) Reconsideration procedure .................................................... 


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


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


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 .................................................. 
 (b) Post-trial confinement ....................................................... 
 (c) Deferment of confinement. forfeitures or reduction in grade ....................... 
 (d) Waiving forfeitures resulting from a sentence to confinement to provide for dependent 

support...................................................................... 


Rule 1102 . Post-trial sessions ................................................ 
 (a) In general ................................................................. 
 (b) Purpose................................................................... 
 (c) Matters not subject to post-trial sessions ..............................:........ 
 (d) When directed ............................................................. 
 (e) Procedure.................................................................. 


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

of mental responsibility ..................................................... (a) In general................................................................. 
 (b) Psychiatric or psychological examination and report ........................... 
 (c) Post-trial hearing ........................................................... 


Rule 1103 . Preparation of record of trial ..................................... 
 (a) In general................................................................. 
 (b) General courts-martial ....................................................... 
 (c) Special courts-martial ........................................................ 
 (d) Summary courts-martial ...................................................... 
 (e) Acquittal; courts-martial resulting in findings of not guilty only by reason of lack of 

mental responsibility; termination prior to findings ................................. 
 (f) Loss of notes or recordings of the proceedings ................................. 
 (g) Copies of the record of trial ................................................. 
 (h) Security classification ........................... :........................... 
 (i) Examination and correction before authentication ................................ 
 (j) Videotape and similar records ................................................. 


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

............................................................................ 

(a) Authentication.............................................................. 
 (b) Service.................................................................... 
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(c) Loss of record ............................................................. 
 (d) Correction of record after authentication; certificate of correction .................. 
 (e) Forwarding................................................................ 


Rule 1105 . Matters submitted by the accused ................................ 
 (a) In general................................................................. 
 (b) Matters which may be submitted ............................................. 
 (c) Time periods ............................................................... 
 (d) Waiver.................................................................... 

Rule 1106 . Recommendation of the staff judge advocate or legal officer ...... (a) In general ................................................................. 
 (b) Disqualification............................................................. 
 (c) When the convening authority has no staff judge advocate ....................... 
 (d) Form and content of recommendation ......................................... 
 (e) No findings of guilty; findings of not guilty only by reason of lack of mental 

responsibility................................................................. 
 (f) Service of recommendation on defense counsel and accused; defense response ....... 


Rule 1107 . Action by convening authority .................................... 
 (a) Who may take action ....................................................... 
 (b) General considerations ....................................................... 
 (c) Action on findings .......................................................... 
 (d) Action on the sentence ...................................................... 
 (e) Ordering rehearing or other trial .............................................. 
 (f) Contents of action and related matters ......................................... 
 (g) Incomplete, ambiguous, or erroneous action .................................... 
 (h) Service on accused ......................................................... 


Rule 1108 . Suspension of execution of sentence; remission .................. 
 (a) In general ................................................................. 
 (b) Who may suspend and remit ................................................. 
 (c) Conditions of suspension ..................................................... 
 (d) Limitations on suspension .................................................... 
 (e) Termination of suspension by remission ........................................ 


Rule 11 09 . Vacation of suspension of sentence .............................. 
 (a) In general ................................................................. 
 (b) Timeliness................................................................. 
 (c) Confinement of probationer pending vacation proceedings ......................... 
 (d) Vacation of suspended general court-martial sentence ............................ 
 (e) Vacation of a suspended special court-martial sentence wherein a bad-conduct discharge 

was not adjudged ............................................................. 
 (f) Vacation of a suspended special court-martial sentence that includes a bad-conduct 

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


Rule 11 10 . Waiver or withdrawal of appellate review ......................... 
 (a) In general................................................................. 
 (b) Right to counsel ............................................................ 
 (c) Compulsion, coercion, inducement prohibited .................................... 
 (d) Form of waiver or withdrawal ................................................ 

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(e) To whom submitted ......................................................... 
 (f) Time linlit ................................................................. 


Rule 1111 . Disposition of the record of trial after action ..................... 
 (a) General courts.martia1 ....................................................... 
 (b) Special courts.martia1 ........................................................ 


Rule 1112 . Review by a judge advocate ...................................... 
 (a) In general ................................................................. 
 (b) Exception.................................................................. 
 (c) Disqualification............................................................. 
 (d) Fonn and content of review ................................................. 
 (e) Forwarding to officer exercising general court-martial jurisdiction .................. 
 (f) Action by officer exercising general court-martial jurisdiction ...................... 
 (g) Forwarding following review under this rule .................................... 


Rule 11 13 . Execution of sentences ........................................... 
 (a) In general ................................................................. 
 (b) Punishments which the convening authority may order executed in the initial action . 

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


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


Rule 11 14 . Promulgating orders .............................................. 
 (a) In general................................................................. 
 (b) By whom issued ........................................................... 
 (c) Contents................................................................... 


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


CHAPTER XI1 . APPEALS AND REVIEW 


Rule 1201 . Action by the Judge Advocate General ........................... 
 (a) Cases required to be referred to a Court of Criminal Appeals .................... 
 (b) Cases reviewed by the Judge Advocate General ................................. 
 (c) Remission and suspension .................................................... 


Rule 1202 . Appellate counsel ................................................. 
 (a) In general ................................................................. 
 (b) Duties.................................................................... 


Rule 1203 . Review by a Court of Criminal Appeals ........................... 
 (a) In general ................................................................. 
 (b) Cases reviewed by a Court of Criminal Appeals ................................ 
 (c) Action on cases reviewed by a Court of Criminal Appeals ....................... 
 (d) Notification to accused ...................................................... 
 (e) Cases not reviewed by the Court of Appeals for the Armed Forces ............... 
 (f) Scope..................................................................... 


Rule 1204 . Review by the Court of Appeals for the Armed Forces ........... 
 (a) Cases reviewed by the Court of Appeals for the Armed Forces ................... 
 (b) Petition by the accused for review by the Court of Appeals for the Armed Forces . . xiv 
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(c) Action on decision by the Court of Appeals for the Armed Forces ................ 


Rule 1205. Review by the Supreme Court .................................... 
 (a) Cases subject to review by the Supreme Court ................................. 
 (b) Action by the Supreme Court ................................................ 


Rule 1206. Powers and responsibilities of the Secretary ...................... 
 (a) Sentences requiring approval by the Secretary .................................. 
 (b) Remission and suspension .................................................... 


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


Rule 1208. Restoration ....................................................... 
 (a) New trial .................................................................. 
 (b) Other cases ................................................................ 


Rule 1209. Finality of courts-martial .......................................... 
 (a) When a conviction is final ................................................... 
 (b) Effect of finality ........................................................... 


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


(a) In general ................................................................. 
 (b) Who may petition .......................................................... 
 (c) Form of petition ............................................................ 
 (4 Effect of petition ........................................................... 
 (e) Who may act on petition .................................................... 
 (0 Grounds for new trial....................................................... 
 (g) Action on the petition ....................................................... 
 (h) Action when new trial is granted ............................................. 


CHAPTER XIII . SUMMARY COURTS-MARTIAL 


Rule 1301. Summary courts-martial generally ................................. 
 (a) Composition............................................................... 
 (b) Function................................................................... 
 (c) Jurisdiction................................................................ 
 (d) Punishments............................................................... 
 (e) Counsel................................................................... 
 (f) Power to obtain witnesses and evidence ..........;............................. 
 (g) Secretarial limitations ........................................................ 


Rule 1302. Convening a summary court-martial ............................... 
 (a) Who may convene summary courts-martial ..................................... 
 (b) When convening authority is accuser .......................................... 
 (c) Procedure.................................................................. 


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


Rule 1304. Trial procedure ................................................... 
 (a) Pretrial duties .............................................................. 
 (b) Summary court-martial procedure ............................................. 


Rule 1305. Record of trial .................................................. 
 (a) In general .................................................................. 
 (b) Contents................................................................... 

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(c) Authentication.............................................................. 


(d) Forwarding copies of the record .............................................. 


Rule 1306 . Post-trial procedure ............................................... 
 (a) Matters submitted by the accused ............................................. 
 (b) Convening authority's action ................................................. 


(c) Review by a judge advocate ................................................. 
 (d) Review by the Judge Advocate General ....................................... 


PART Ill MILITARY RULES OF EVIDENCE 

SECTION I GENERAL PROVISIONS 

Rule 101 . Scope ............................................................. 111-1 


(a) Applicability............................................................... 111-1 


(b) Secondary Sources .......................................................... 111-1 


(c) Rule of construction ........................................................ 111-1 


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


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


(a) Effect of erroneous ruling .................................................... 111-1 


(b) Record of offer and ruling ................................................... 111-1 


(c) Hearing of members ........................................................ 111-1 


(d) Plain error................................................................. 111-1 


Rule 104 . Preliminary questions .............................................. 111-1 


(a) Questions of admissibility generally ........................................... 111-1 


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


(c) Hearing of members ........................................................ 111-2 


(d) Testimony by accused ....................................................... 111-2 


(e) Weight and credibility ....................................................... 111-2 


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


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


SECTION 11 JUDICIAL NOTICE 

Rule 201 . Judicial notice of adjudicative facts ................................ 
 (a) Scope of rule .............................................................. 
 (b) Kinds of facts ............................................................. 
 (c) When discretionary .......................................................... 
 (d) When mandatory ........................................................... 
 (e) Opportunity to be heard ..................................................... 
 (f) Time of taking notice ....................................................... 
 (g) Instructing members ......................................................... 


Rule 201a . Judicial notice of law ............................................. 
 (a) Domestic law .............................................................. 
 (b) Foreign law ................................................................ 


SECTION 111 EXCLUSIONARY RULES AND RELATED MATTERS CONCERNING SELFINCRIMINATION. SEARCH AND SEIZURE. AND EYEWITNESS IDENTIFICATION 

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Rule 301 . Privilege concerning compulsory self-incrimination ................. 
 (a) General rule ............................................................... 
 (c) Exercise of the privilege ..................................................... 
 (d) Waiver by a witness ........................................................ 
 (e) Waiver by the accused ...................................................... 
 (f) Effect of claiming the privilege ............................................... 
 (g) Instructions................................................................ 


Rule 302 . Privilege concerning mental examination of an accused ............ 
 (a) General rule ............................................................... 
 (b) Exceptions................................................................. 
 (c) Release of evidence ......................................................... 
 (d) Nonco~npliance by the accused ............................................... 
 (e) Procedure.................................................................. 


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


Rule 304 . Confessions and admissions ....................................... 
 (a) General rule ............................................................... 
 (b) Exceptions................................................................. 
 (c) Definitions................................................................. 
 (d) Procedure.................................................................. 
 (e) Burden of proof ............................................................ 
 (f) Defense evidence ........................................................... 
 (g) Corroboration.............................................................. 
 (h) Miscellaneous.............................................................. 


Rule 305 . Warnings about rights ............................................. 
 (a) General rule ............................................................... 
 (b) Definitions................................................................. 
 (c) Warnings concerning the accusation. right to remain silent. and use of statements ... (d) Counsel rights and warnings................................................. 
 (e) Presence of Counsel ........................................................ 
 (f) Exercise of rights ........................................................... 
 (g) Waiver.................................................................... 
 (h) Nonmilitary interrogations .................................................... 


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


Rule 311 . Evidence obtained from unlawful searches and seizures ........... 
 (a) General rule ............................................................... 
 (b) Exceptions................................................................. 
 (c) Nature of search or seizure.................................................. 
 (d) Motions to suppress and objections ........................................... 
 (e) Burden of proof ............................................................ 
 (f) Defense evidence ........................................................... 
 (g) Scope of motions and objections challenging probable cause ...................... 
 (h) Objections to evidence seized unlawfully ....................................... 
 (i) Effect of guilty plea ......................................................... 


Rule 312 . Body views and intrusions ......................................... 111-10 


(a) General rule ............................................................... 111- 10 


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(b) Visual examination of the body .............................................. 
 (c) Inbusion into body cavities .................................................. 
 (d) Extraction of body fluids .................................................... 
 (e) Other intrusive searches ..................................................... 


(f) Intrusions for valid medical purposes .......................................... 
 (g) Medical qualifications ....................................................... 


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


Rule 314 . Searches not requiring probable cause ............................ 
 (a) General rule ............................................................... 
 (b) Border searches ............................................................ 


(c) Searches upon entry to or exit from United States installations, aircraft. and vessels 

abroad....................................................................... 


(d) Searches of government property .............................................. 
 (e) Consent searches ........................................................... 
 (f) Searches incident to a lawfnl stop ............................................. 
 (g) Searches incident to a lawful apprehension ..................................... 
 (h) Searches within jails. confinement facilities. or similar facilities ................... 
 (i) Emergelicy searches to save life or for related purposes .......................... 
 (i) Searches of open fields or woodlands .......................................... 
 (k) Other searches ............................................................. 


Rule 315 . Probable cause searches .......................................... 
 (a) General rule ............................................................... 
 (b) Definitions................................................................. 
 (c) Scope of authorization ....................................................... 
 (d) Power to authorize .......................................................... 
 (e) Power to search ............................................................ 


(f) Basis for Search authorizations ................................................ 
 (g) Exigencies................................................................. 
 (h) Execution.................................................................. 


Rule 316 . Seizures ........................................................... 
 (a) General rule ............................................................... 
 (b) Seizure of property ......................................................... 
 (c) Apprehension............................................................... 


(d) Seizure of property or evidence .............................................. 
 (e) Power to seize ............................................................. 
 (f) Other seizures .............................................................. 


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


Rule 321 . Eyewitness identification ........................................... 
 (a) General rule ............................................................... 


xviii 
(b) Definition of "unlawful" ..................................................... 


(c) Motions to suppress and objections ............................................ 
 (d) Burden of proof ............................................................ 
 (e) Defense evidence ........................................................... 
 (f) Rulings.................................................................... 
 (g) Effect of guilty pleas ....................................................... 


SECTION IV RELEVANCY AND ITS LIMITS 

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

Rule 402. Relevant evidence general admissible; irrelevant evidence inadmissible 

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

waste of time ............................................................... 

Rule 404. Character evidence not admissible to prove conduct; exceptions; other 

crimes ...................................................................... (a) Character evidence generally ................................................. 
 (b) Other crimes. wrongs. or acts ................................................ 


Rule 405. Methods of proving character ...................................... 
 (a) Reputation or opinion ....................................................... 
 (b) Specific instances of conduct ................................................. 
 (c) Affidavits.................................................................. 
 (d) Definitions................................................................. 


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


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


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


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


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

Rule 411. Liability insurance ................................................. 

Rule 412. Nonconsensual sexual offenses; relevance 3f victim's behavior or 

sexual predisposition ....................................................... (a) Evidence generally inadmissible ............................................... 
 (b) Exceptions................................................................. 
 (c) Procedure to determine admissibility ........................................... 


Rule 413. Evidence of similar crimes in sexual assault cases ................ 


Rule 414. Evidence of similar crimes in child molestation cases ............. 


SECTION V PRNILEGES 

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


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


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111-23 

111-23 

111-23 

111-23 

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(c) Who may claim the privilege ..................................: ............. 
 (d) Exceptions................................................................. 


Rule 503 . Communications to clergy ......................................... 
 (a) General rule of privilege ..................................................... 
 (b) Definitions................................................................. 
 (c) Who may claim the privilege ................................................ 


Rule 504 . Husband-wife privilege ............................................. 
 (a) Spousal incapacity .......................................................... 
 (b) Confidential communication made during marriage ............................... 
 (c) Exceptions................................................................. 


Rule 505 . Classified information .............................................. 
 (a) General rule of privilege ..................................................... 
 (b) Definitions................................................................. 
 (c) Who may claim the privilege ................................................ 
 (d) Action prior to referral of charges ............................................ 
 (e) Pretrial session ............................................................. 
 (f) Action after referral of charges ............................................... 
 (g) Disclosure of classified information to the accused .............................. 
 (h) Notice of the accused's intention to disclose classified information ................ 
 (i) In camera proceedings for cases involving classified information ................... 
 (j) Introduction of classified information ........................................... 
 (k) Security procedures to safeguard against compromise of classified information disclosed 

to courts-martial .............................................................. 


Rule 506 . Government information other than classified information .......... 
 (a) General rule of privilege ..................................................... 
 (b) Scope..................................................................... 
 (c) Who may claim the privilege ................................................ 
 (d) Action prior to referral of charges ............................................ 
 (e) Pretrial session ............................................................. 
 (f) Action after motion for disclosure of information ................................ 
 (g) Disclosure of government information to the accused ............................ 
 (h) Prohibition against disclosure ................................................. 
 (i) In camera proceedings ....................................................... 
 0) Appeals of orders and rulings ................................................ 
 (k) Introduction of government information subject to a claim of privilege ............. 
 (1) Procedures to safeguard against compromise of government information disclosed to 

courts-martial................................................................. 


Rule 507 . Identity of informant ............................................... 
 (a) Rule of privilege ........................................................... 
 (b) Who may claim the privilege ................................................ 
 (c) Exceptions................................................................. 
 (d) Procedures................................................................. 


Rule 508 . Political vote ...................................................... 


Rule 509 . Deliberations of courts and juries .................................. 


Rule 510 . Waiver of privilege by voluntary disclosure ........................ 
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Rule 511 . Privileged matter disclosed under compulsion or without opportunity 

to claim privilege ........................................................... 

Rule 512 . Comment upon or inference from claim of privilege; instruction .... (a) Comment or inference not permitted ........................................... 
 (b) Claiming privilege without knowledge of members .............................. 
 (c) Instruction................................................................. 


SECTION VI WITNESSESSES 

Rule 601 . General rule of competency ........................................ 


Rule 602 . Lack of personal knowledge ....................................... 


Rule 603 . Oath or affirmation ................................................ 


Rule 604 . Interpreters ........................................................ 


Rule 605 . Competency of military judge as witness .......................... 


Rule 606 . Competency of court member as witness .......................... 
 (a) At the court.martial ......................................................... 
 (b) Inquiry into validity of findings or sentence .................................... 


Rule 607 . Who may impeach ................................................. 


Rule 608 . Evidence of character. conduct. and bias of witness ............... 
 (a) Opinion and reputation evidence of character ................................... 
 (b) Specific instances of conduct ................................................. 
 (c) Evidence of bias ........................................................... 


Rule 609 . Impeachment by evidence of conviction of crime .................. 
 (a) General rule ............................................................... 
 (b) Time limit ................................................................. 
 (c) Effect of pardon. annulment. or certificate of rehabilitation ....................... 
 (d) Juvenile adjudications ....................................................... 
 (e) Pendency of appeal ......................................................... 
 (f) Definition.................................................................. 


Rule 610 . Religious beliefs or opinions ....................................... 


Rule 61 1 . Mode and order of interrogation and presentation .................. 
 (a) Control by the nlilitary judge ................................................ 
 (b) Scope of cross.examination .................................................. 
 (c) Leading questions ........................................................... 


Rule 612 . Writing used to refresh memory ................................... 


Rule 613 . Prior statements of witnesses ...................................... 
 (a) Examining witness concerning prior statement ................................... 
 (b) Extrinsic evidence of prior inconsistent statement of witness ...................... 


Rule 614 . Calling and interrogation of witnesses by the court-martial ......... 
 (a) Calling by the court.martia1 .................................................. 
 (b) Interrogation by the court.martia1 ............................................. 
 (c) Objections................................................................. 

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Rule 615 . Exclusion of witnesses ............................................ 111-36 


SECTION VII OPINIONS AND EXPERT TESTIMONY 

Rule 701 . Opinion testimony by lay witnesses ................................ 


Rule 702 . Testimony by experts .............................................. 


Rule 703 . Bases of opinion testimony by experts ............................ 


Rule 704 . Opinion on ultimate issue ......................................... 


Rule 705 . Disclosure of facts or data underlying expert opinion .............. 


Rule 706 . Court appointed experts ........................................... 
 (a) Appointment and compensation ............................................... 
 (b) Disclosure of employment ................................................... 
 (c) Accused's experts of own selection........................................... 


Rule 707 . Polygraph Examinations ........................................... 


SECTION VIII HEARSA Y 

Rule 801 . Definitions ......................................................... 
 (a) Statement.................................................................. 
 (b) Declarant.................................................................. 
 (c) Hearsay................................................................... 
 (d) Statements wl~icl~ are not hearsay ............................................. 


Rule 802 . Hearsay rule ....................................................... 


Rule 803 . Hearsay exceptions; availability of declarant immaterial ............ 
 (1) Present sense impression ..................................................... 
 (2) Excited utterance ........................................................... 
 (3) Then existing mental. emotional. or pl~ysical condition ........................... 
 (4) Statements for purposes of medical diagnosis or treatment ........................ 
 (5) Recorded recollection ........................................................ 
 (6) Records of regularly conducted activity ........................................ 
 (7) Absence of entry in records kept in accordance with the provisions of paragraph (6) . .......................................................................... 
 (8) Public records and reports ................................................... 
 (9) Records of vital statistics .................................................... 
 (10) Absedce of public record or entry ........................................... 


(I I) Records of religious organizations ............................................ 


(12) Marriage, baptismal, and sinlilac certificates ................................... 
 (13) Family records ............................................................ 
 (14) Records of docu~nents affecting an interest in property .......................... 
 (15) Statements in documents affecting an interest in property ....................... 
 (16) Statements in ancient documents ............................................. 
 (17) Market reports, commercial publications ....................................... 
 (18) Learned treatises ........................................................... 
 (19) Reputation concerning personal or family history ............................... 
 (20) Reputation concerning boundaries or general history ............................ 
 (21) Reputation as to character ................................................... 
 (22) Judgment of previous conviction ............................................. 


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(23) Judgment as to persnnal. family or general history. or boundaries ................ 
 (24) Other exceptions ........................................................... 


Rule 804. Hearsay exceptions; declarant unavailable .......................... 
 (a) Definitions of unavailability .................................................. 
 (b) Hearsay exceptions .......................................................... 


Rule 805. Hearsay within hearsay ............................................ 


Rule 806. Attacking and supporting credibility of declarant ................... 


SECTION IX AUTHENTICATION AND IDENTIFICATION 

Rule 901. Requirement of authentication or identification ..................... 
 (a) General provision ........................................................... 
 (b) Illustrations................................................................ 


Rule 902. Self-authentication ................................................. 
 (1) Domestic public documents under seal ......................................... 
 (2) Domestic public documents not under seal ..................................... 
 (3) Foreign public documents .................................................... 
 (4) Certified copies of public records ............................................. 
 (4a) Documents or records of the United States accompanied by attesting certificates .... 
 (5) Official publications ......................................................... 
 (6) Newspapers and periodicals.................................................. 
 (7) Trade inscriptions and the like ............................................... 
 (8) Acknowledged documents .................................................... 
 (9) Commercial paper and related documents ...................................... 
 (10) Presumptions under Acts of Congress and regulations ........................... 


Rule 903. Subscribing witness' testimony unnecessary ....................... 


SECTION X CONTENTS OF WRITINGS. RECORDINGS. AND PHOTOGRAPHS 

Rule 1001. Definitions ........................................................ 
 (1) Writings and recordings ..................................................... 
 (2) Photographs................................................................ 
 (3) Original................................................................... 
 (4) Duplicate.................................................................. 


Rule 1002. Requirement of an original ....................................... 


Rule 1003. Admissibility of duplicates ........................................ 


Rule 1004. Admissibility of other evidence of contents ....................... 


(1) Originals lost or destroyed ................................................... 
 (2) Original not obtainable ...................................................... 


(3) Original in possession of opponent ............................................ 
 (4) Collateral matters ........................................................... 


Rule 1005. Public records .................................................... 


Rule 1006. Summaries ....................................................... 


Rule 1007. Testimony or written admission of party .......................... 

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Rule 1008 . Functions of military judge and members ......................... 111-44 


SECTION XI MISCELLANEOUS RULES 

Rule 1101 . Applicability of rules .............................................. 111-44 


(a) Rules applicable ............................................................ 111-44 


(b) Rules of privilege .......................................................... 111-44 


(c) Rules relaxed .............................................................. 111-44 


(d) Rules inapplicable .......................................................... 111-44 


Rule 1102 . Amendments ..................................................... 111-44 


Rule 1103 . Title .............................................................. 111-44 


PART IV PUNITIVE ARTICLES 

1. Article 77-Principals ...................................................... IV-1 


a. Text....................................................................... IV-1 


b. Explanation................................................................. IV-1 


2. Article 78-Accessory after the fact ....................................... 
 a. Text....................................................................... 
 b. Elements................................................................... 
 c. Explanation................................................................. 
 d. Lesser included offense ....................................................... 
 e. Maximum punishment ........................................................ 
 f. Sample specification .......................................................... 


3. Article 79-- Conviction of lesser included offenses ......................... 
 a. Text....................................................................... 
 b. Explanation................................................................. 
 (1) In general ............................................................... 


(2) Multiple lesser included offenses ............................................ 
 (3) Findings of guilty to a lesser included offense ............................... 
 (4) Specific lesser included offenses ............................................ 


4. Article 80-Attempts ....................................................... 
 a. Text....................................................................... 
 b. Elements................................................................... 


c. Explanation................................................................. 
 d. Lesser i~~cluded offenses...................................................... 
 e. Maximum punishment ........................................................ 
 f. Sample specification .......................................................... 


5. Article 81-Conspiracy .................................................... 
 a. Text....................................................................... 
 b. Elements................................................................... 


c. Explanation................................................................. 
 d. Lesser included offense ....................................................... 
 e. Maximum punishment ........................................................ 
 f. Sample specification .......................................................... 


6. Article 82-Solicitation ..................................................... 
 a. Text....................................................................... 


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b. Elements................................................................... c. Explanation ................................................................. d. Lesser included offense ....................................................... e. Maximum punishment ........................................................ f. Sample specifications ......................................................... (1) For soliciting desertion (Article 85) or mutiny (Article 94) ..................... (2) For soliciting an act of misbehavior before the enemy (Article 99) or sedition (Article 

94)....................................................................... 

7. Article 83-Fraudulent enlistment. appointment. or separation .............. 1v-8 

a. Text....................................................................... 1v-8 

b. Elements................................................................... 1v-8 

(1) Fraudulent enlistment or appointment ........................................ 1v-8 

(2) Fraudulent separation ...................................................... 1v-8 

c. Explanation................................................................. 1v-8 

(1) In general............................................................... IV-8 

(2) Receipt of pay or allowances .............................................. 1v-8 

(3) One offense ............................................................. 1v-9 

d. Lesser included offense ....................................................... 1v-9 

e. Maximum punishment ........................................................ 1v-9 

(1) Fraudulent enlistment or appointment ........................................ 1v-9 

(2) Fraudulent separation ...................................................... 1v-9 

f. Sample specifications ......................................................... 1v-9 

(1) For fraudulent enlistment or appointment ..................................... 1v-9 

(2) For fraudulent separation .................................................. 1v-9 

8. Article 84-Effecting unlawful enlistment. appointment. or separation ...... a. Text....................................................................... b. Elements................................................................... c. Explanation................................................................. d. Lesser included offense ....................................................... e. Maximum punishment ........................................................ f. Sample specification .......................................................... 

9. Article 85-Desertion .................................................... a . Text ....................................................................... b. Elements................................................................... c. Explanation................................................................. 

(1) Desertion with intent to remain away permanently ............................ 

(2) Quitting unit, organization. or place of duty with intent to avoid hazardous duty or 

to shirk important service .................................................... 1v-11 

(3) Attempting to desert ...................................................... IV-12 

(4) Prisoner with executed punitive discharge .................................... IV-12 

d. Lesser included offense ....................................................... rv-12 

e. Maximum punishment ........................................................ 1v-12 

f. Sample specifications ......................................................... 1v-12 

(1) Desertion with intent to remain away permanently ............................ 1v-12 

(2) Desertion with intent to avoid hazardous duty or shirk important service ......... IV- 12 

(3) Desertion prior to acceptance of resignation .................................. IV- 12 

(4) Attempted desertion ....................................................... IV- 12 
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10. Article 86. Absence without leave ........................................ iv-12 


a. Text....................................................................... IV-12 


b. Elements................................................................... 1v-13 


(1) Failure to go to appointed place of duty ..................................... 1v-13 


(2) Going from appointed place of duty ........................................ IV-13 


(3) Absence from unit. organization. or place of duty ............................. 1v-13 


(4) Abandoning watch or guard ................................................ IV-13 


(5) 	 Absence from unit. organization. or place of duty with intent to avoid maneuvers or 


field exercises .............................................................. TV-13 


c. Explanation................................................................. IV-13 


d. Lesser included offense ....................................................... 1v-15 


e. Maxilnum punishment ........................................................ IV-15 


f. Sample specifications ......................................................... IV-15 


11. Arti~le 87-Missing movement ............................................ 1v-15 


a. Text....................................................................... IV-16 


b. Elements................................................................... IV-16 


c. Explanation................................................................. 1v-16 


d. Lesser included offenses ...................................................... IV-16 


e. Maximum punishment ........................................................ 1v-16 


f. Sample specification .......................................................... 1v-16 


12. Article 88-Contempt toward officials ..................................... IV-17 


a. Text....................................................................... 1v-17 


b. Elements................................................................... IV-1'i 


c. Explanation................................................................. IV-17 


d. Lesser included offense ....................................................... IV-17 


e. Maximum punishment ........................................................ 1v-17 


f. Sample specification .......................................................... 1v-17 


13. Article 89.. Disrespect toward a superior commissioned officer ........... 1v-17 


a. Text....................................................................... IV-17 


b. Elements................................................................... IV-17 


c. Explanation................................................................. 1V-17 


d. Lesser included offenses ...................................................... IV-18 


e. Maximum punishment ........................................................ 1v-18 


f. Sample specification .......................................................... 1v-18 


14. Article 90. Assaulting or willfully disobeying superior commissioned officer 

IV-18 


a. Text....................................................................... IV-18 


b. Elements................................................................... 1v-18 


(1) Striking or assaulting superior commissioned officer ........................... 1v-18 


(2) Disobeying superior commissioned officer .................................... IV-19 


c. Explanation.................................................................. 1v-19 


(1) Striking or assaulting superior commissioned officer ........................... IV-19 


(2) Disobeying superior commissioned officer .................................... 1v-19 


(3) Civilians and discharged prisoners ........................................... 1v-20 


d. Lesser included offenses ...................................................... 1v-20 


(1) Striking superior commissioned officer in execution of office................... 1v-20 

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(2) Drawing or lifting up a weapon or offering violence to superior commissioned officer 

in execution of office ....................................................... 
 e. Maximum punishment ........................................................ 
 (1) Striking. drawing. or lifting up any weapon or offering any violence to superior commissioned officer in the execution of office ................................. 


(2) Willfully disobeying a lawful order of superior commissioned officer ............ 
 (3) In time of war........................................................... 
 f. Sample specifications ......................................................... 
 (1) Striking superior commissioned officer ....................................... (2) Drawing or lifting up a weapon against superior commissioned officer ........... (3) Offering violence to superior commissioned officer ............................ (4) Willful disobedience of superior commissioned officer ......................... 

15. Article 91-Insubordinate conduct toward warrant officer. noncommissioned 

officer. or petty officer ...................................................... a. Text....................................................................... b. Elements................................................................... 

(1) Striking or assaulting warrant. noncommissioned. or petty officer ................ 
 (2) Disobeying a warrant. noncommissioned. or petty officer ....................... 
 (3) Treating with contempt or being disrespectful in language or deportment toward a 

warrant. noncommissioned. or petty officer ..................................... 
 c. Explanation................................................................. 
 d. Lesser included offenses ...................................................... 
 e. Maximum punishment ........................................................ 
 f. Sample specifications ......................................................... 


16. Article 92-Failure to obey order or regulation ........................... 
 a. Text....................................................................... 
 b. Elements................................................................... 
 c. Explanation................................................................. 
 d. Lesser included offense ....................................................... 
 e. Maximum punishment ........................................................ 
 f. Sample specifications ......................................................... 


17. Article 93-Cruelty and maltreatment ..................................... 
 a. Text...................................................................... 


b. Elements................................................................... 
 c. Explanation................................................................. 
 d. Lesser included offense ....................................................... 
 e. Maximum punishment ........................................................ 
 f. Sample specification .......................................................... 


18. Article 94.. Mutiny and sedition ........................................... 
 a. Text........................................................................ 
 b. Elements................................................................... 
 c. Explanation................................................................. 
 d. Lesser included offenses ...................................................... 
 e. Maximum punishment ........................................................ 
 f. Sample specifications ......................................................... 


19. Article 95-Resistance. flight. breach of arrest. and escape ............... 

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a. Text....................................................................... 
 b. Elements................................................................... 
 (1) Resisting apprehension ..................................................... 
 (2) Flight from apprehension .................................................. 
 (3) Breaking arrest ........................................................... 
 (4) Escape from custody ...................................................... 
 (5) Escape from confinement .................................................. 
 c. Explanation................................................................. 
 (1) Resisting apprehension ..................................................... 
 (2) Flight from apprehension ....................;............................. 
 (3) Breaking arrest ........................................................... 
 (4) Escape from custody ...................................................... 
 (5) Escape from confinement .................................................. 
 d. Lesser included offenses ...................................................... 
 (1) Resisting apprehension ..................................................... 
 (2) Breaking arrest ............................................................ 
 (3) Escape from custody ...................................................... 
 (4) Escape from confinement .................................................. 
 e. Maximum punishm~nt ........................................................ 
 (1) Resisting apprellension ..................................................... 
 (2) Flight from apprehension .................................................. 
 (3) Breaking arrest ........................................................... 
 (4) Escape from custody, pretrial confinement, or confinement on bread and water or 

diminished rations imposed pursuant to Article 15 ..............:................ 
 (5) Escape from post-trial confinement .......................................... 
 f. Sample specificatioas ......................................................... 
 (I) Resisting apprel~ension ..................................................... 
 (2) Flight from apprehension .................................................. 
 (3) Breaking arrest ........................................................... 
 (4) Escape from custody ...................................................... 
 (5) Escape from confinement .................................................. 


20. Article 96-Releasing prisoner without proper authority ................... 
 a. Text....................................................................... 
 b. Elements................................................................... 
 c. Explanation................................................................. 
 d. Lesser included offenses ...................................................... 
 e. Maximum punishment ........................................................ 
 f. Sample specifications ......................................................... 


21. Article 97-Unlawful detention ............................................ 
 a. Text....................................................................... 
 b. Elements................................................................... 
 c. Explanation................................................................. 
 d. Lesser included offense ....................................................... 
 e. Maximum punishment ........................................................ 
 f. Snrnple specification .......................................................... 


22. Article 98-Noncompliance with procedural rules ......................... 

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a. Text....................................................................... 
 b. Elements................................................................... 
 c. Explanation................................................................. 
 d. Lesser included offense ....................................................... 
 e. Maximum punishment ........................................................ 
 f. Sample specifications ......................................................... 


23. Article 99-- Misbehavior before the enemy ................................ 
 a. Text....................................................................... 
 b. Elements................................................................... 
 c. Explanation................................................................. 
 d. Lesser included offenses ...................................................... 
 e. Maximum punishment ........................................................ 
 f. Sample specifications ......................................................... 


24. Article 100-Subordinate compelling surrender ............................ 
 a. Text....................................................................... 
 b. Elements................................................................... 
 c. Explanation................................................................. 
 d. Lesser included offense ....................................................... 
 e. Maximum punishment ........................................................ 
 f. Sample specifications ......................................................... 


25. Article 101-Improper use of countersign ................................. 
 a. Text....................................................................... 
 b. Elements................................................................... 
 c. Explanation................................................................. 
 d. Lesser included offense ....................................................... 
 e. Maximum punishment ........................................................ 
 f. Sample specifications ......................................................... 


26. Article 102-Forcing a safeguard ......................................... 
 a. Text....................................................................... 
 b. Elements................................................................... 
 c. Explanation................................................................. 
 d. Lesser included offense ....................................................... 
 e. Maximum punishment ........................................................ 
 f. Sample specification .......................................................... 


27. Article 103-Captured or abandoned property ............................. 
 a. Text....................................................................... 
 b. Elements................................................................... 
 c. Explanation................................................................. 
 d. Lesser included offense ....................................................... 
 e. Maximum punishment ........................................................ 
 f. Sample specifications ......................................................... 


28. Article 104-- Aiding the enemy ............................................ 
 a. Text....................................................................... 
 b. Elements................................................................... 
 c. Explanation................................................................. 
 d. Lesser included offense ....................................................... 

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e. Maximum punishment ........................................................ 
 f. Sample specifications ......................................................... 


29. Article 105-Misconduct as a prisoner .................................... 
 a. Text....................................................................... 
 b. Elements................................................................... 
 c. Explanation................................................................. 
 d. Lesser included offense ....................................................... 
 e. Maximum punishment ........................................................ 
 f. Sample specifications ......................................................... 


30. Article 106-Spies ........................................................ 
 a. Text....................................................................... 
 b. Elements................................................................... 
 c. Explanation................................................................. 
 d. Lesser included offenses ...................................................... 
 e. Mandatory punishment ........................................................ 
 f. Sample specification .......................................................... 


30a. Article 106a-Espionage ................................................. 
 a. Text....................................................................... 
 b. Elements................................................................... 
 c. Explanation................................................................. 
 d. Lesser included offense ....................................................... 
 e. Maximum punishment ........................................................ 
 f. Sample specification .......................................................... 


31. Article 107-False official statements ..................................... 
 a. Text....................................................................... 
 b. Elements.................................................................. 
 c. Explanation................................................................. 
 d. Lesser included offense ...................................................... 


e. Maximum punishment ........................................................ 
 f. Sample specification ......................................................... 


32. Article 108-Military property of the United States-sale. loss. damage. 

destruction. or wrongful disposition ......................................... a. Text....................................................................... 
 b. Elements................................................................... 
 c. Explanation................................................................. 
 d. Lesser included offenses ...................................................... 


e. Maximum punishment ....................................................... 
 f. Samplt- specifications ......................................................... 


33. Article 109-Property other than military property of the United States-waste. 

spoilage. or destruction ..................................................... a. Text....................................................................... 
 b. Elements................................................................... 
 c. Explanation................................................................. 
 d. Lesser included offense ....................................................... 
 e. Maximum punishment ........................................................ 

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f. Sample specification .......................................................... 


34. Article 11 0-Improper hazarding of vessel ................................ 
 a. Text....................................................................... 
 b. Elements................................................................... 
 c. Explanation................................................................. 
 d. Lesser included offenses ...................................................... 
 e. Maximum punishment ........................................................ 
 f. Sample specifications ......................................................... 


35. Article Ill-Drunken or reckless operation of vehicle, aircraft, or vessel .. 

a. Text....................................................................... 
 b. Elements................................................................... 
 c. Explanation................................................................. 
 d. Lesser included offense ....................................................... 
 e. Maximum punishment ........................................................ 
 f. Sample specification .......................................................... 


36. Article 112-Drunk on duty ............................................... 
 a. Text....................................................................... 
 b. Elements................................................................... 
 c. Explanation................................................................. 
 d. Lesser included offense ....................................................... 
 e. Maximum punishment ........................................................ 
 f. Sample specification .......................................................... 


37. Article 112a-Wrongful use, possession, etc., of controlled substances ... a. Text ....................................................................... b. Elements................................................................... c. Explanation ................................................................. d. Lesser included offenses ...................................................... e. Maximum punishments ....................................................... (1) Wrongful use, possession, manufacture, or introduction of controlled substance .... (2) 	 Wrongful distribution, possession, manufacture, or introduction of controlled substance 

with intent to distribute, or wrongful importation or exportation of a controlled substance . ........................................................................ 
 f. Sample specifications ......................................................... 


38. Article 113-Misbehavior of sentinel or lookout ........................... 
 a. Text....................................................................... 
 b. Elements................................................................... 
 c. Explanation................................................................. 
 d. Lesser included offenses ...................................................... 
 e. Maximum punishment ........................................................ 
 f. Sample specification .......................................................... 


39. Article 114-Dueling ...................................................... 
 a. Text....................................................................... 
 b. Elements................................................................... 
 c. Explanation................................................................ 
 d. Lesser included offense ....................................................... 
 e. Maximum punishment ........................................................ 

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f. Sample specifications ......................................................... 


40. Article 11 5-Malingering .................................................. 
 a. Text....................................................................... 
 b. Elements................................................................... 
 c. Explanation................................................................. 
 (1) Nature of offense ......................................................... 
 (2) How injury inflicted ...................................................... 
 d. Lesser included offenses ...................................................... 
 e. Maximum punishment ........................................................ 
 f. Sample specification .......................................................... 


41. Article 116-Riot or breach of peace ..................................... 
 a. Text....................................................................... 
 b. Elements.........................................................1 ......... 
 c. Explanation................................................................. 
 d. Lesser included offenses ...................................................... 
 e. Maximum punishment ........................................................ 
 f. Sample specifications ......................................................... 


42. Article 117-Provoking speeches or gestures ............................. 
 a. Text....................................................................... 
 b. Elements................................................................... 
 c. Explanation................................................................. 
 d. Lesser included offenses ...................................................... 
 e. Maximum punishment ........................................................ 
 f. Sample specification .......................................................... 


43. Article 11 8-Murder ...................................................... 
 a. Text....................................................................... 
 b. Elements................................................................... 
 c. Explanation................................................................. 
 d. Lesser included offenses ...................................................... 
 e. Maximum punishment ........................................................ 
 f. Sample specification .......................................................... 


44. Article 11 9-Manslaughter ................................................ 
 a. Text....................................................................... 
 b. Elements................................................................... 
 c. Explanation................................................................. 
 d. Lesser included offenses ...................................................... 


e. Maximum punishment ......................................................... 
 f. Sample specifications ......................................................... 


45. Article 120-Rape and carnal knowledge ................................. 
 a. Text....................................................................... 
 b. Elements................................................................... 
 c. Explanation................................................................. 
 d. Lesser included offenses ...................................................... 


e. Maximum punishment ........................................................ 


f. Sample specifications ......................................................... 

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46. Article 121 -Larceny and wrongful appropriation .......................... 
 a. Text....................................................................... 
 b. Elements................................................................... 
 c. Explanation................................................................. 
 d. Lesser included offenses ...................................................... 
 e. Maximum punishment ........................................................ 
 f. Sample specifications ......................................................... 


47. Article 122-Robbery ..................................................... 
 a. Text....................................................................... 
 b. Elements................................................................... 
 c. Explanation................................................................. 
 d. Lesser included offenses ...................................................... 
 e. Maximum punishment ........................................................ 
 f. Sample specifications ......................................................... 


48. Article 123-Forgery ...................................................... 
 a. Text....................................................................... 
 b. Elements................................................................... 
 c. Explanation................................................................. 
 d. Lesser included offense ....................................................... 
 e. Maximum punishment ........................................................ 
 f. Sample specifications ......................................................... 


49. Article 123a-Making. drawing. or uttering check. draft. or order without 

sufficient funds ............................................................ a. Text....................................................................... 
 b. Elements................................................................... 


(1) For the procurement of any article or thing of value, with intent to defraud ...... (2) For the payment of any past due obligation, or for any other purpose, with intent to 

deceive.................................................................... 
 c. Explanation................................................................. 
 d. Lesser included offenses ...................................................... 
 e. Maximum punishment ........................................................ 


(1) For the procurement of any article or thing of value, with intent to defraud, in the 

face amount of: ............................................................ 


(2) For the payment of any past due obligation, or for ally other purpose, with intent to 

deceive.................................................................... 
 f. Sample specifications ......................................................... 


50. Article 124.. Maiming ..................................................... 1v-77 


a. Text....................................................................... IV- 77 


b. Elements................................................................... 1v-78 


c. Explanation................................................................. 1v-78 


d. Lesser included offenses ...................................................... 1v-78 


e. Maximum punishment ...................................................... 1v-78 


f. Sample specification .......................................................... 1v-78 


51. Article 125-Sodomy ..................................................... 1v-78 


a. Text....................................................................... 1v-78 


b. Elements................................................................... 1v-78 


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c. Explanation................................................................. 
 d. Lesser included offenses ...................................................... 


e. Maxinlu~ll punishment ........................................................ 
 f. Sample specification .......................................................... 


52. Article 126-Arson ....................................................... 
 a. Text.................................................................... .,. . 


b. Elements................................................................... 
 c. Explanation................................................................. 
 d. Lesser included offenses ...................................................... 
 e. Maxilnu~n punishment ........................................................ 
 f. Sample specifications ......................................................... 


53. Article 127-Extortion .................................................... 
 a. Text....................................................................... 
 b. Elements................................................................... 
 c. Explanation................................................................. 
 d. Lesser included offenses ...................................................... 
 e. Maxi~nun~punisli~nent..................................................... :.. 


f. Sample specification .......................................................... 


54. Article 128-Assault ...................................................... 
 a. Text....................................................................... 
 b. Elements................................................................... 
 c. Explanation................................................................. 
 d. Lesser included offenses ...................................................... 
 e. Maximum punishment ........................................................ 
 f. Sample specifications ......................................................... 


55. Article 129-Burglary ..................................................... 
 a. Text....................................................................... 
 b. Elements.................................................................... 
 c. Explanation................................................................. 
 d. Lesser included offenses ...................................................... 
 e. Maximum punishment ........................................................ 
 f. ' Sample specification .......................................................... 


56. Article 130-Housebreaking ............................................... 
 a. Text....................................................................... 
 b. Elements................................................................... 
 c. Explanation................................................................. 
 d. Lesser included offenses ...................................................... 
 e. Maximum punishment ........................................................ 
 f. Sample specification .......................................................... 


57. Article 131-Perjury ...................................................... 
 a. Text....................................................................... 
 b. Elements................................................................... 
 c. Explanation................................................................. 
 d. Lesser included offense ....................................................... 
 e. Maximum punishment ........................................................ 
 f. Sample specifications ......................................................... 


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58. Article 132-Frauds against the United States ............................ 
 R. Text....................................................................... 
 b. Elements................................................................... 
 c. Explanation................................................................. 
 d. Lesser included offense ....................................................... 
 e. Maximum punishment ........................................................ 
 f. Sample specifications ......................................................... 


59. Article 133-Conduct unbecoming an officer and gentleman .............. 
 a. Text....................................................................... 
 b. Elements................................................................... 
 c. Explanation................................................................. 
 d. Lesser included offense ....................................................... 
 e. Maximum punishment ........................................................ 
 f. Sample specifications ......................................................... 


60. Article 134-General article ............................................... 
 a. Text....................................................................... 
 b. Elements................................................................... 
 c. Explanation................................................................. 


61. Article 134-4 Abusing public animal) ...................................... 
 a. Text....................................................................... 
 b. Elements................................................................... 
 c. Explanation................................................................. 
 d. Lesser included offenses ....................................................... 
 e. Maximum punishment ........................................................ 
 f. Sample specification .......................................................... 


62. Article 134-4 Adultery) .................................................... 
 a. Text....................................................................... 
 b. Elements................................................................... 
 c. Explanation................................................................. 
 d. Lesser included offense ....................................................... 
 e. Maximum punishment ........................................................ 
 f. Sample specification .......................................................... 


63. Article 134-(Assault-indecent) .......................................... 
 a. Text....................................................................... 
 b. Elements................................................................... 
 c. Explanation................................................................. 
 d. Lesser included offenses ...................................................... 
 e. Maximum punishment ........................................................ 
 f. Sample specification .......................................................... 


64. Article 134-(Assault-with intent to commit murder, voluntary manslaughter, 

rape, robbery, sodomy, arson, burglary, or housebreaking) .................. a. Text....................................................................... 
 b. Elements................................................................... 
 c. Explanation.................................................................. 
 d. Lesser included offenses ...................................................... 

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e. Maximum punishment ........................................................ 
 f. Sample specification .......................................................... 


65. Article 134.. (Bigamy) ..................................................... 
 a. Text....................................................................... 
 b. Elements................................................................... 
 c. Explanation................................................................. 
 d. Lesser included offense ....................................................... 
 e. Maximum punishment ........................................................ 
 f. Sample specification .......................................................... 


66. Article 134-(Bribery and graft) ........................................... 
 a. Text....................................................................... 
 b. Elements................................................................... 
 c. Explanation................................................................. 
 d. Lesser included offenses ...................................................... 
 (1) Bribery.................................................................. 
 (2) Bribery and graft ......................................................... 
 e. Maximum punishment ........................................................ 
 f. Sample specifications ......................................................... 


67. Article 13wBurning with intent to defraud) ............................. IV- 100 


a. Text....................................................................... IV- 100 


b. Elements................................................................... IV- 100 


c. Explanation................................................................. IV- 100 


d. Lesser included offense ....................................................... IV- 100 


e. Maximum punishment ........................................................ IV-100 


f. Sample specification .......................................................... IV- 100 


68. Article 134--(Check, worthless, making and uttering-by dishonorably failing 

to maintain funds) .......................................................... IV- 100 

a. Text....................................................................... IV- 100 


b. Elements................................................................... IV-100 


c. Explanation................................................................. IV-100 


d. Lesser included offenses ...................................................... IV-100 


e. Maximum punishment ........................................................ IV-100 


f. Sample specification .......................................................... IV-100 


69. Article 134--(Cohabitation. wrongful) ...................................... 
 a. Text....................................................................... 
 b. Elements................................................................... 
 c. Explanation................................................................. 
 d. Lesser included offense ....................................................... 
 e. Maximum punishment ........................................................ 
 f. Sample specification .......................................................... 


70. Article 1344 Correctional custody.-o ffenses against) ..................... 
 a. Text....................................................................... 
 b. Elements................................................................... 
 c. Explanation................................................................. 
 d. Lesser included offense ....................................................... 

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e. Maximum punishment ........................................................ 
 f. Sample specifications ......................................................... 


71. Article 134-(Debt. dishonorably f

d. Lesser included offenses ...................................................... 
 e. Maximum punishment ........................................................ 
 f. Sample specification .......................................................... 


d. Lesser included offense ....................................................... 
 e. Maximum punishment ........................................................ 
 f. Sample specification .......................................................... 


d. Lesser included offense ....................................................... 
 e. Maximum punishment ........................................................ 
 f. Sample specification .......................................................... 


d. Lesser included offense ....................................................... 
 e. Maximum punishment ........................................................ 
 f. Sample specification .......................................................... 


d. Lesser included offenses ...................................................... 
 e. Maximum punishment ........................................................ 
 f. Sample specification .......................................................... 


d. Lesser included offense ....................................................... 
 e. Maximum punishment ........................................................ 


Page 

ailing to pay) ........................... 
 a. Text....................................................................... 
 b. Elements................................................................... 
 c. Explanation................................................................. 


72. Article 134.4 Disloyal statements) ......................................... 
 a. Text....................................................................... 
 b. Elements................................................................... 
 c. Explanation................................................................. 


73. Article 134.4 Disorderly conduct. drunkenness) ........................... 
 a. Text....................................................................... 
 b. Elements................................................................... 
 c. Explanation................................................................. 


74. Article 134.4 Drinking liquor with prisoner) ............................... 
 a. Text....................................................................... 
 b. Elements................................................................... 
 c. Explanation................................................................. 


75. Article 134.4 Drunk prisoner) ............................................. 
 a. Text....................................................................... 
 b. Elements................................................................... 
 c. Explanation................................................................. 


76. Article 134-(Drunkenness-incapacitation for performance of duties through 

prior wrongful indulgence in intoxicating liquor or any drug) ................ a. Text....................................................................... 
 b. Elements................................................................... 
 c. Explanation................................................................. 


f. Sample specification .......................................................... 


IV-101 


IV- 102 


IV-102 


IV-102 


N-102 


N-102 


IV- 102 


IV-102 


IV-102 


IV- 102 


IV-102 


1v- 102 


IV-102 


IV- 103 


IV-103 


IV- 103 


IV-103 


IV-103 


IV-103 


IV-103 


IV- 103 


IV- 103 


IV-103 


N-103 


IV-103 


IV- 103 


IV-104 


IV- 104 


N-104 


IV- 104 


IV- 104 


IV-104 


IV- 104 


IV- 104 


IV-104 


IV-104 


IV-104 


IV-104 


IV-104 


IV- 104 


IV-104 


IV- 104 


1V- 104 


IV- 104 

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77. Article 13- False or unauthorized pass offenses) ....................... 
 a. Text....................................................................... 
 b. Elements................................................................... 
 (1) Wrongful making. altering. counterfeiting. or tampering with a military or official pass. permit. discharge certificate. or identification card ............................... IV-105 


(2) Wrongful sale. gift. loan. or disposition of a military or official pass. permit. discharge certificate. or identification card ............................................... 
 (3) Wrongful use or possession of a false or unauthorized military or official pass. permit. discharge certificate. or identification card ...................................... IV-105 


c. Explanation................................................................. IV-105 


(1) In general............................................................... IV-105 


(2) Intent to defraud or deceive ................................................ IV-105 


d. Lesser included offenses ...................................................... IV-105 


(1) 	 Wrongful use or possession of false or unauthorized military or official pass. permit. 
 discharge certificate. or identification card. with the intent to defraud or deceive ..... IV-105 


(2) All false or unauthorized pass offenses ...................................... IV-105 


e. Maximum punishment ........................................................ IV-105 


(1) Possessing or using with intent to defraud or deceive. or making. altering. counterfeiting. tampering with. or selling ....................................... IV-105 


(2) All other cases ........................................................... IV-105 


f. Sample specifications ......................................................... IV-105 


(1) 	 Wrongful making. altering. counterfeiting. or tampering with military or official pass. 


permit. discharge certificate. or identification card ............................... IV-105 


(2) Wrongful sale. gift. loan. or disposition of a military or official pass. permit. discharge certificate. or identification card ............................................... 
 (3) Wrongful use or possession of a false or unauthorized military or official pass. permit. discharge certificate. or identification card ...................................... 


78. Article 13- False pretenses. obtaining services under) .................. IV-106 


a. Text....................................................................... IV-106 


b. Elements................................................................... IV-106 


c. Explanation................................................................. IV-106 


d. Lesser included offense ....................................................... IV-106 


e. Maximum punishment ........................................................ IV-106 


f. Sample specification .......................................................... IV-106 


79. Article 13- False swearing) .............................................. N-106 


a. Text....................................................................... IV-106 


b. Elements................................................................... IV-106 


c. Explanation................................................................. IV-106 


d. Lesser included offense ....................................................... IV-107 


e. Maximum punishment ........................................................ IV-107 


f. Sample specification .......................................................... IV-107 


80. Article 134--(Firearm. discharging-through negligence) ................... IV-107 


a. Text....................................................................... IV-107 


b. Elements................................................................... IV-107 


c. Explanation................................................................. IV-107 


d. Lesser included offenses ...................................................... IV-107 


e. Maximum punishment ........................................................ IV-107 

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f. Sample specification .......................................................... 


81. Article 134-(Firearm. discharging-willfully. under such circumstances as to 


endanger human life) ....................................................... IV- 107 


a. Text ....................................................................... IV- 107 


b. Elements................................................................... IV- 107 


c. Explanation ................................................................. IV-107 


d. Lesser included offenses ...................................................... IV- 107 


e. Maximum punishment ........................................................ IV-107 


f. Sample specification .......................................................... IV- 107 


82. Article 134-(Fleeing scene of accident) .................................. IV- 107 


a. Text....................................................................... IV- 107 


b. Elements................................................................... IV-107 


c. Explanation ................................................................. 1V-108 


d. Lesser included offense ....................................................... IV-108 


e. Maximum punishment ........................................................ IV- 108 


f. Sample specification .......................................................... 1V-108 


83. Article 134-(Fraternization) ............................................... IV-108 


a. Text....................................................................... IV-I 08 


b. Elements................................................................... IV-108 


c. Explanation ................................................................. IV- 108 


d. Lesser included offense ....................................................... IV-109 


e. Maximu. m punishment........................................................ IV-109 


f. Sample specification .......................................................... IV-109 


84. Article 134-(Gambling with subordinate) ................................. IV-109 


a. Text....................................................................... IV- 109 


b. Elements................................................................... IV-109 


c. Explanation................................................................. 1V-109 


d. Lesser included offense ....................................................... IV- 109 


e. Maximum punishment ........................................................ 1V-109 


f. Sample specification .......................................................... IV- 109 


85. Article 134-(Homicide, negligent). ........................................ IV- 109 


a. Text....................................................................... IV-109 


b. Elements................................................................... IV-109 


c. Explanation................................................................. IV-109 


d. Lesser included offenses ...................................................... IV-110 


e. Maximum punishment ........................................................ 1v-110 


f. Sample specificalion .......................................................... IV-l lo 


86. Article 134-(Impersonating a commissioned, warrant, noncommissioned, or 

petty officer, or an agent or official) ........................................ 1v-1 lo 

a. Text....................................................................... IV-110 


b. Elements................................................................... IV-110 


c. Explanation ................................................................. IV-I 10 


d. Lesser included offense ....................................................... 1v-110 


e. Maximum punishment ........................................................ IV-110 


f. Sample specification .......................................................... IV-110 


87. Article 134-(Indecent acts or liberties with a child) ...................... IV-110 


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Text....................................................................... 
 Elements................................................................... 
 Explanation................................................................. 
 Lesser included offense ....................................................... 
 Maximum punishment ........................................................ 
 Sample specification .......................................................... 


Article 134.4 Indecent exposure) .......................................... 
 Text....................................................................... 
 Elements................................................................... 
 Explanation................................................................. 
 Lesser included offense ....................................................... 
 Maximum punishment ........................................................ 
 Sample specification .......................................................... 


Article 134.4 Indecent language) .......................................... 
 Text....................................................................... 
 Elements................................................................... 
 Explanation................................................................. 
 Lesser included offenses ...................................................... 
 Maximum punishment ........................................................ 
 Sample specification .......................................................... 


Article 134-(Indecent acts with another) ................................. 
 Text....................................................................... 
 Elements................................................................... 
 Explanation................................................................. 
 Lesser included offense ....................................................... 
 Maximum punishment ........................................................ 
 Sample specification .......................................................... 


Article 134-(Jumping from vessel into the water) ........................ 
 Text....................................................................... 
 Elements................................................................... 
 Explanation................................................................. 
 Lesser included offense ....................................................... 
 Maximum punishment ........................................................ 
 Sample specification .......................................................... 


Article 134.( Kidnapping) ................................................. 
 Text....................................................................... 
 Elements................................................................... 
 Explanation................................................................. 
 Lesser included offense ....................................................... 
 Maximum punishment........................................................ 
 Sample specification .......................................................... 


Article 134.. (Mail. taking. opening. secreting. destroying. or stealing) ..... 

Text....................................................................... Elements................................................................... Explanation................................................................. 
MCM 1998 

Page 

d. Lesser included offenses ...................................................... 
 e. Maximum punishment ........................................................ 
 f. Sample specifications ......................................................... 


94. Article 134.. (Mails. depositing or causing to be deposited obscene matters 

in) .......................................................................... a. Text....................................................................... 
 b. Elements................................................................... 
 c. Explanation................................................................. 
 d. Lesser included offense ....................................................... 
 e. Maximum punishment ........................................................ 
 f. Sample specification .......................................................... 


95. Article 134.. (Misprision of serious offense) ............................... 
 a. Text....................................................................... 
 b. Elements................................................................... 
 c. Explanation................................................................. 
 d. Lesser included offense ....................................................... 
 e. Maximum punishment ........................................................ 
 f. Sample specification .......................................................... 


96. Article 134.4 Obstructing justice) ......................................... 
 a. Text....................................................................... 
 b. Elements................................................................... 
 c. Explanation................................................................. 
 d. Lesser included offenses ...................................................... 
 e. Maximum punishment ........................................................ 
 f. Sample specification .......................................................... 


96a. Art 134 (Wrongful interference with an adverse administrative proceeding) 

a. Text....................................................................... 
 b. Elemelits................................................................... 
 c. Explanation................................................................. 
 d. Lesser included offenses ...................................................... 
 e. Maximum punishment ........................................................ 
 f. Sample specification .......................................................... 


97. Article 134.. (Pandering and prostitution) ................................. 
 a. Text....................................................................... 
 b. Elements................................................................... 
 c. Explanation................................................................. 
 d. Lesser included offense ....................................................... 
 e. Maximum punishment ........................................................ 
 f. Sample specifications ......................................................... 


97a. Article 134.-(Parole. Violation of) ........................................ 
 a. Text....................................................................... 
 b. Elements................................................................... 
 c. Explanation................................................................ 
 d. Lesser included offense ...................................................... 

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Page 

e. Maximum punishment ........................................................ 
 f. Sample specifications ......................................................... 


98. Article 134+Perjury: subornation of) ..................................... 
 a. Text....................................................................... 
 b. Elements.................................................................. 
 c. Explanation................................................................. 
 d. Lesser included offense ....................................................... 
 e. Maximum punishment ........................................................ 
 f. Sample specification ......................................................... 


99. Article 134-- (Public record: altering, concealing, removing, mutilating, 

obliterating, or destroying) .................................................. a. Text....................................................................... 
 b. Elements................................................................... 
 c. Explanation................................................................. 
 d. Lesser included offense ....................................................... 
 e. Maximum punishment ........................................................ 
 f. Sample specification .......................................................... 


100. Article 134--( Quarantine. medical, breaking) ............................. 
 a. Text....................................................................... 
 b. Elements................................................................... 
 c. Explanation................................................................. 
 d. Lesser included offenses ...................................................... 
 e. Maximum punishment ........................................................ 
 f. Sample specification .......................................................... 


101. Article 13- Requesting commission of an offense) ..................... 


102. Article 134-(Restriction, breaking) ...................................... IV-119 


a. Text....................................................................... IV-119 


b. Elements................................................................... IV-119 


c. Explanation................................................................. IV-119 


d. Lesser included offenses ...................................................... IV-119 


e. Maximum punishment ...................................................... IV-120 


f. Sample specification .......................................................... IV-120 


103. Article 134-(Seizure: destruction, removal, or disposal of property to 


prevent) ..................................................................... IV-120 


a. Text....................................................................... IV-120 


b. Elements................................................................... 1v-120 


c. Explanation................................................................. IV-120 


d. Lesser included offense ....................................................... IV-120 


e. Maximum punishment ........................................................ IV-120 


f. Sample specification .......................................................... IV-120 


103a. Article 134-(Self-injury without intent to avoid service) ................ IV-120 


a. Text....................................................................... IV-120 


b. Elements................................................................... IV-120 


c. Explanation................................................................. IV-120 


d. Lesser included offense ............................................. 
 xlii 
MCM 1998 

Maximum punishment ........................................................ 
 Sample specification ........................................................ 


Article 134.. (Sentinel or lookout: offenses against or by) ............... 
 Text....................................................................... 
 Elements................................................................... 
 Explanation................................................................. 
 Lesser included offenses ...................................................... 
 Maximum punishment ........................................................ 
 Sample specifications ......................................................... 


Article 134.. (Soliciting another to commit an offense) ................... 
 Text....................................................................... 
 Elements................................................................... 
 Explanation................................................................. 
 Lesser included offenses ...................................................... 
 Maximum punishment ........................................................ 
 Sample specification .......................................................... 


Article 134.4 Stolen property: knowingly receiving. buying. concealing) . . 
 Text....................................................................... 
 Elements................................................................... 
 Explanation................................................................. 
 Lesser included offense ....................................................... 
 Maximum punishment ........................................................ 
 Sample specification .......................................................... 


Article 134.4 Straggling) ................................................ 
 Text....................................................................... 
 Elements................................................................... 
 Explanation................................................................. 
 Lesser included offense ....................................................... 
 Maximum punishment ........................................................ 
 Sample specification .......................................................... 


Article 134.-(T estify. wrongful refusal) ................................... 
 Text....................................................................... 
 Elements................................................................... 
 Explanation................................................................. 
 Lesser included offenses ..................................................... 


Maximum punishment ........................................................ 
 Sample specification .......................................................... 


Article 134.4 Threat or hoax: bomb) ..................................... 
 Text....................................................................... 
 Elements................................................................... 
 Explanation................................................................. 
 Lesser included offenses ...................................................... 
 Maximum punishment ........................................................ 
 Sample specifications ......................................................... 


Article 134.-(Threat. communicating) .................................... 


Page 


IV- 122 


IV-122 


IV-122 


IV- 122 


IV- 122 


IV- 122 


IV-122 


IV-122 


IV- 122 


IV-122 


IV-122 


IV-122 


IV- 122 


IV- 122 


IV- 123 


IV-123 


IV- 123 


IV-123 


IV-123 


IV-123 


IV-123 


IV-123 


IV- 123 


IV- 123 


IV- 124 


JV- 124 


IV-124 


IV-124 

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a. Text....................................................................... IV-124 


b. Elements................................................................... IV-124 


c. Explanation................................................................. IV-124 


d. Lesser included offenses ...................................................... 1V-124 


e. .Maximurn punishment ........................................................ IV-124 


f. Sample specification .......................................................... IV-124 


11 1 . Article 134-4 Unlawful entry) ............................................ IV-125 


a. Text....................................................................... 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 


112. Article 134-- (Weapon. concealed, carrying) .............................. IV-125 


a. Text....................................................................... 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 


113. Article 134- (Wearing unauthorized insignia, decoration, badge, ribbon, 


device, or lapel button) ..................................................... IV-125 


a. Text....................................................................... IV-125 


b. Elements................................................................... IV-125 


c. Explanation................................................................. IV-126 


d. Lesser included offense ....................................................... 1V-126 


e. Maximum punishment ........................................................ IV-126 


f. Sample specification .....................................;.................... IV-126 


PART V NONJUDlClAL PUNISHMENT PROCEDURE 

1. General ................................................................... 
 a. Authority................................................................... 
 b. Nature..................................................................... 
 c. Purpose.................................................................... 
 d. Policy..........;.......................................................... 
 e. Minor offenses .............................................................. 
 f. Limitations on nonjudicial punishment .......................................... 
 g. Relationship of nonjudicial punishment to administrative corrective measures ......... 
 h. Effect of errors............................................................. 


2. Who may impose nonjudicial punishment .................................. 
 a. Commander................................................................. 
 b. Officer in charge ............................................................ 
 c. Principal assistant ............................................................ 


3. Right to demand trial ..................................................... 


4. Procedure ................................................................. xliv 
MCM 1998 

Page 

a. Notice..................................................................... 
 b. Decision by servicemember ................................................... 


(1) Demand for trial by court-martial ........................................... 


(2) No demand for trial by court-martial ........................................ 
 c. Nonjudicial punishment accepted ............................................... 
 d. Nonjudicial punishment based on record of court of inquiry or other investigative body . 

5. Punishments .............................................................. 
 a. General limitations ........................................................... 
 b. Authorized maximum punishments ............................................. 
 c. Nature of punishment ........................................................ 
 d. Limitations on combination of punishments ..................................... 
 e. Punishments imposed on reserve component personnel while on inactive-duty training . f. Punishments imposed on reserve component personnel when ordered to active duty for 

disciplinary purposes .......................................................... 


g. Effective date and execution of punishments .................................... 


6. Suspension. mitigation. remission. and setting aside ....................... 
 a. Suspension................................................................. 
 b. Mitigation.................................................................. 
 c. Remission.................................................................. 
 d. Setting aside ................................................................ 


7. Appeals ................................................................... 
 a. In general .................................................................. 
 b. Who may act on appeal ...................................................... 
 c. Format of appeal ............................................................ 
 d. Time limit ................................................................. 
 e. Legal review ................................................................ 
 f. Action by superior authority ................................................... 


8. Records of nonjudicial punishment ........................................ 


Appendices 

1. Constitution of The United States-1787 

2. Uniform Code Of Military Justice 

3. DoD Directive 5525.7 Subject: Implementation of the Memorandum of Understanding Between the 

Department of Justice and the Department of Defense Relating to the Investigation vld Prosecution of 

Certain Crimes 

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 

xlv 
MCM 1998 

Subpoena (DD FORM 453) 

Guide for General and Special Courts-Martial 

Guide for Summary Courts-Martial 

Forms of Findings 

Forms of Sentences 

Maximum Punishment Chart 

Guide for Preparation of Record of Trial by General Court-Martial and by Special Court-Martial When 

a Verbatim Record is Not Required 

Guide for Preparation of Record of Trial by General Court-Martial and by Special Court-Martial When 

a Verbatim Record is Required 

Record of Trial by Summary Court-Martial (DD Form 2329) 

Forms for Action 

Forms for Court-Martial Orders 

Report of Proceedings to Vacate Suspension of a General Court-Martial or of a Special Court-Martial 

Sentence Including a Bad-Conduct Discharge Under Article 72, UCMJ, and R.C.M. 1109 (DD Form 

455) 

WaiveriWithdrawal of Appellate Rights in General and Special Courts-Martial Subject to Review by a 

Court of Military Review (DD Form 2330) 

Waiver~Withdrawal of Appellate Rights in General Courts-Martial Subject to Examination in the Office 

of the Judge Advocate General @D Form 2331) 

Analysis of Rules for Courts-Martial 

Analysis of the Military Rules of Evidence 

Analysis of Punitive Articles 

Analysis of Nonjudicial Punishment Procedure 

Historical Executive Orders 

xlvi 
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 belligerent occupying enemy territory. 

Mlitary government). 

(4) A government with respect to offenses against 

the law of war. 

(b) Agencies. The agencies through which military 

jurisdiction is exercised include: 

(1) Courts-martial for the trial of offenses against 

military law and, in the case of general courts-martial, of persons who by the law of war are subject to 

trial by military tribunals. See Parts 11, 111, and IV of 

this Manual for rules governing courts-martial. 

(2) Military commissions and provost courts for 

the trial of cases within their respective jurisdictions. 

Subject to any applicable rule of international law or 

to any regulations prescribed by the President or by 

other competent authority, military commissions and 

provost courts shall be guided by the appropriate 

principles of law and rules of procedures and ~vidence prescribed for courts-martial. 

(3) Courts of inquiry for the investigation of any 

matter referred to such court by competent authority. 

See Article 135. The Secretary concerned may prescribe regulations governing courts of inquiry. 

(4) Nonjudicial punishment proceedings of a 

commander under Article 15. See Part V of this 

Manual. 

3. Nature and purpose of military law 

Military law consists of the statutes governing the 

military establishment and regulations issued thereunder, the constitutional powers of the President and 

regulations issued thereunder, and the inherent authority of military commanders. Military law includes jurisdiction exercised by courts-martial and 

the jurisdiction exercised by commanders with 

respect to nonjudicial punishment. The purpose of 

military law is to promote justice, to assist in maintaining good order and discipline in the armed 

forces, to promote efficiency and effectiveness in the 

military establishment, and thereby to strengthen the 

national security of the United States. 

4. Structure and application of the Manual 

for Courts-Martial 

The Manual for Courts-Martial shall consist of 

this Preamble, the Rules for Courts-Martial, the Military Rules of Evidence, the Punitive Articles, and 

Nonjudicial Punishment Procedures (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 (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." 

Discussion 

The Department of Defense, in conjunction with the Department of Transportation, has published supplementary 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 Transportation, 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.5 551 

(1982). The supplementary materials do not create rights or responsibilities that are binding on any person, party, or other entity 

(including any authority of the Government of the United States 

whether or not included in the definition of "agency" in 5 U.S.C. 

5 551(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 courts-martial) 

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 priately identified by the calendar year of edition. Amendments 

as "Changes" to the Manual. The more frequent publication of a made in a particular calendar year will be identified by publishing 

new edition of the Manual, however, means that it is more appro- the relevant Executive order containing those amendments in its 

entirety in a Manual appendix. 
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-elimkation of unjustifiable expense 

and delay. 

Rule 103. Definitions and rules of 

construction 

The following definitions and rules of construction apply throughout this Manual, unless otherwise 

expressly provided. 

(1) "Article" refers to articles of the Uniform Code 

of Military Justice unless the context indicates 

otherwise. 

(2) "Capital case" means a general court-martial to 

which a capital offense has been referred without an 

instruction that the case be treated as noncapital, 

and, in the case of a rehearing or new or other trial, 

for which offense death remains an authorized punishment under R.C.M. 810(d). 

(3) "Capital offense" means an offense for which 

death is an authorized punishment under the code 

and Part IV of this Manual or under the law of war. 

(4) "Code" refers to the Uniform Code of Military 

Justice, unless the context indicates otherwise. 

Discussion 

The Uniform Code of Military Justice is set forth at Appendix 2. 

(5) "Commander" means a comtnissioned officer in 

command or an officer in charge except in Part V or 

unless the context indicates ~therwise. 

(6) "Convening authority" includes a commissioned 

officer in command for the time being and successors in command. 

Discussion 

See R.C.M. 504 concerning who may convene courts-martial. 

(7) "COPY" means an accurate reproduction, however made. Whenever necessary and feasible, a copy 

may be made by handwriting. 

(8) ''Court-martial" includes, depending on the 

context: 

(A) The military judge and members of a general 

or special court-martial; 

(B) The military judge when a session of a general or special court-martial is conducted without 

members under Article 39(a); 

(C) The military judge when a request for trial by 

military judge alone has been approved under 

R.C.M. 903; 

(D) The members of a special court-martial when 

a military judge has not been detailed; or 

(E) The summary court-martial officer. 

(9) "Days." When a period of time is expressed in a 

number of days, the period shall be in calendar days, 

unless otherwise specified. Unless otherwise specified, the date on which the period begins shall not 

count, but the date on which the period ends shall 

count as one day. 

(10) "Detail" means to order a person to perform a 

specific temporary duty, unless the context indicates 

otherwise. 

(11) "Explosive" means gunpowders, powders used 

for blasting, all forms of high explosives, blasting 

materials, fuzes (other than electrical circuit 

breakers), detonators, and other detonating agents, 

smokeless powders, any explosive bomb, grenade, 

missile, or similar device, and any incendiary bomb 

or grenade, fire bomb, or similar device, and any 

other compound, mixture, or device which is an ex- 
plosive within the meaning of 18 U.S.C. $ 232(5) or 

844(j). 

(12) "Firearm" means any weapon which is designed to or may be readily converted to expel any 

projectile by the action of an explosive. 

(13) "Joint" in connection with military organization connotes activities, operations, organizations, 

and the like in which elements of more than one I

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 

when acting on behalf of the trial counsel with 

respect to the court-martial in question. 

(17) "Staff judge advocate" means a judge advocate 

so designated in Army, Air Force, or Marine Corps, 

and means the principal legal advisor of a command 

in the Navy and Coast Guard who is a judge 

advocate. 

(18) "Sua sponte" means that the person involved 

acts on that person's initiative, without the need for 

a request, motion, or application. 

(19) "War, time of." For purpose of R.C.M. 

1004(c)(6) and of implementing the applicable paragraphs of Parts IV and V of this Manual only, "time 

of war" means a period of war declared by Congress 

or the factual determination by the President that the 

existence of hostilities warrants a finding that a 

11-2 

"time of war" exists for purposes of R.C.M. 

1004(c)(6) and Parts IV and V of this Manual. 

(20) The definitions and rules of construction in 1 

U.S.C. $5 1 through 5 and in 10 U.S.C. $5 101 and 

801. 

Discussion 

1 U.S.C. $5 1 through 5, 10 U.S.C. Q 101, and 10 U.S.C. Q 

801 	(Article 1) are set forth below. 

1 U.S.C. Q 1. Words denoting number, gender, and so forth. 

In determining the meaning of any Act of Congress, unless 

the context indicates othenvisewords 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 fil'.ire 

as well as the present; 

the words "insane" and "insane person" and 

"lunatic" shall include every idiot, lunatic, insane person, and person non compos mentis; the words "person" 

and "whoever" include corporations, companies, associations, firms, partnerships, societies, and joint stock 

companies, as well as individuals; 

"officer" includes any person authorized by law to 

perform the duties of the office; 

"signature" or "subscription" includes a mark when 

the person making the same intended it as such; 

"oath" includes affirmation, and "sworn" includes 

affmed; 

"writing" includes printing and typewriting and reproductions of visual symbols by photographing, multigraphing, mimeographing, manifolding, or otherwise. 

Q 2 	 "County" as including "parish," and so forth. 

The word "county" includes a parish, or any other 

equivalent subdivision of a State or Temtory of the 

United States. 

1 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. 

5 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. 

Q 5. "Company" or "association" as including successors 

and assigns. 

The word "company" or "association", when used 

in reference to a corporation, shall be deemed to embrace the words "successors and assigns of such company or association", in like manner as if these lastnamed words, or words of similar import, were expressed. 

10 U.S.C. Q 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 Tenitory organized after 

this title is enacted, so long as it remains a Territory. 

(3) "Possessions" includes the Virgin Islands, the Canal 

Zone, Guam, American Samoa, and the Guano islands, so long as 

they remain possessions, but does not include any Territory or 

Commonwealth. 

(4) "Armed forces" means the Army, Navy, Air Force, 

Marine Corps, and Coast Guard. 

(5) "Department", when used with respect to a military 

department, means the executive part of the department and all 

field headquarters, forces, reserve components, installations, activities, and functions under the control or supervision 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 01 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 hy; 

(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 conceming the Air Force; and 

(D) the Secretary of Transportation, with respect to 

matters concerning the Coast Guard when it is 

not operating as a service in the Navy. 

(9) "National Guard" means the Army National G~iard 

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. :uticle 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. 

(19) "Rank" means the order of precedence among 

members of the armed forces. 

[Note: 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 hovisions. See Articles l(5) and 25(d)(l); R.C.M. 1003(c)(2); paragraphs 13c(l), 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. 8 101, 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 '%oatswain'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). 

mote: 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 med forces. 

(22) "Active duty" means full-time duty in the active 

military service of the United States. It includes full-time training 

duty, annual training duty, and attendance, while in the active 

military service, at a school designated as a service school by law 

or by the Secretary of the military department concerned. 

(23) "Active duty for a period of more than 30 days" 

means active duty under a call or order that does not specify a 
period of 30 days or less. 

(24) "Active service" means service on active duty. 

(25) "Active status" means the status of a reserve commissioned officer, other than a commissioned warrant officer, 

who is not in the inactive Army National Guard or inactive Air 

National Guard, on an inactive status list, or in the Retired Reserve. 

(26) "Supplies" includes material, equipment, and stores 

of all kinds. 

(27) "Pay" includes basic pay, special pay, retainer pay, 

incentive pay, retired pay, and equivalent pay, but does not include allowances. 

(28) "Shall" is used in an imperative sense. 

(29) "May" is used in a permissive sense. The words 

"no person may .. ." mean that no person is required, authorized, 

or permitted to do the act prescribed. 

(30) 'lncludes" means "includes but is not limited to." 

(31) "Inactive-duty training" means-

(A) duty prescribed for Reserves by the Secretary 

concerned under section 206 of title 37 or any 

other provision of law; and 

(B) special additional duties authorized for Reserves by an authority designated by the Secretary concerned and performed by them on a 

voluntary basis in connection with the prescribed training or maintenance activities of 

the units to which they are assigned. 

It includes those duties when performed by Reserves in their 

status as members of the National Guard. 

(32) "Spouse" means hushend 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 compment that is 

neither a promotion nor a demotion. 

(36) Repealed. 

(37) "Active-duty list" means a single list for the Army, 

Navy, Air Force or Marine Corps (required to be maintained 

under section 620 of this title) which contains the names of all 

officers of that armed force, other than officers described in 

section 641 of this title, who are serving on active duty. 

(38) "Medical officer" means an officer of the Medical 

Corps of the Army, an officer of the Medical Corps of the Navy, 

or an officer in the Air Force designated as a medical officer. 

(39) "Dental officer" means an officer of the Dental 

Corps of the Army, an officer of the Dental Corps of the Navy, or 

an officer of the Air Force designated as a dental officer. 

(40) "General officer" means an officer of the Army, 

Air Force, or Marine Corps serving in or having the grade of 

general, lieutenant general, major general, or brigadier general. 

(41) "Flag officer" means an officer of the Navy or 

Coast Guard serving in or having the grade of admiral, vice 

admiral, rear admiral, or commodore. 

10 U.S.C. 8 801. Article 1. Definitions 

In this chapter: 

(1) "Judge Advocate General" means, severally, the 

Judge Advocates General of the Army, Navy, and Air Force and, 

except when the Coast Guard is operating as a service in the 

Navy, the General Counsel of the Department of Transportation. 

(2) The Navy, the Marine Corps, and the Coast Guard 

when it is operating as a service in the Navy, shall be considered 

as one armed force. 

(3) "Commanding officer" includes only commissioned 

officers. 

(4) "Officer in charge" means a member of the Navy, 

the Marine Corps, or the Coast Guard designated as such by 

appropriate authority. 

(5) "Superior commissioned officer" means a rommissioned 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 coinmissioned 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 

convening authority or commander may censure, 

reprimand, or admonish a court-martial or other rnilitary tribunal or any member, military judge, or 
counsel thereof, with respect to the findings or sentence adjudged by the court-martial or tribunal, or 

with respect to any other exercise of the functions of 

the court-martial or tribunal or such persons in the 

conduct of the proceedings. 

(2) All persons subject to the code. No person 

subject to the code may attempt to coerce or, by any 

unauthorized means, influence the action of a 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 

reviewing authority with respect to such authority's 

judicial acts. 

(3) Exceptions. 

(A) Instructions. Subsections (a)(l) and (2) of 

the rule do not prohibit general instructional or informational courses in military justice if such 

courses are designed solely for the purpose of instructing personnel of a command in the substantive 

and procedural aspects of courts-martial. 

(B) Court-martial statements. Subsections 

(a)(l) and (2) of this rule do not prohibit statements 

and instructions given in open session by the military judge or counsel. 

(C) Professional supervision. Subsections 

(a)(l) and (2) of this rule do not prohibit action by 

the Judge Advocate General concerned under 

R.C.M. 109. 

(D) Offense. Subsection (a)(l) and (2) of this 

rule do not prohibit appropriate action against a person for an offense committed while detailed as a 

military judge, counsel, or member of a court-martial, or while serving as individual counsel. 

(b) Prohibitions concerning evaluations. 

(1) Evaluation of rnernber or defense counsel. In 

the preparatiori of an effectiveness, fitness, or efficiency report or any other report or document used 

in whole or in part for the purpose of determining 

whether a member of the armed forces is qualified 

to be advanced in grade, or in determining the assignment or transfer of a member of the armed 

forces, or in determining whether a member of the 

armed forces should be retained on active duty, no 

person subject to the code may: 

(A) Consider or evaluate the performance of 

duty of any such person as a member of a 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 militav judge. 

(A) General courts-martial. Unless the general 

court-martial was convened by the President or the 

Secretary concerned, neither the convening authority 

nor any member of the convening authority's staff 

may prepare or review any report concerning the 

effectiveness, fitness, or efficiency of the military 

judge detailed to a general court-martial, which relates to the performance of duty as a military judge. 

(B) Special courts-martial. The convening authority may not prepare or review any report concerning the effectiveness, fitness, or efficiency of a 

military judge detailed to a special court-martial 

which relates to the performance of duty as a military judge. When the military judge is normally 

rated or the military judge's report is reviewed by 

the convening authority, the manner in which such 

military judge will be rated or evaluated upon the 

performance of duty as a military judge may be as 

prescribed in regulations of the Secretary concerned 

which shall ensure the absence of any command 

influence in the rating or evaluation of the military 

judge's judicial performance. 

Discussion 

See paragraph 22 of Part IV concerning prosecuting vinlations 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 tlie Secretary concerned 

may prescribe, a member of tlie 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 die 

member or upon receipt of information establishing 

probable cause that the member committed an offense, and upon reasonable belief that such restraint 

is necessary. Such restraint may continue only for 

such time as is reasonably necessary to effect tlie 

de1ive.v. 

Discussion 

See R.C.M.11 13(d)(2)(A)(ii) for the effect of such delivery 

on the execution of a court-martial sentence. 

Rule 107. Dismissed officer's right to 

request trial by court-martial 

If a commissioned officer of any armed force is 

dismissed by order of the President under 10 U.S.C. 

5 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 trlso Article 

75(c). 

Rule 108. Rules of court 

The Judge Advocate General concerned and persons designated by tlie Judge Advocate General may 

make rules of court not inconsistent will1 these n~les 

for tlie conduct of court-martial proceedings. Sucl~ 

rules shall be disseminated in accordance with procedures prescribed by the Judge Advocate General 

concerned or a person to whom this autliority has 

been delegated. Noncompliance with sucli procedures shall not affect tlie validity of any rule of 

court witli respect to a party who has received actual 

and timely notice of tlie n~le or who has not been 

prejudiced under Article 59 by the absence of sucli 

notice. Copies of all n~les of court issued under this 

rule shall be forwarded to the Judge Advocate Genera1 concerned. 

Rule 109. Professional supervision of 

military judges and counsel 

(a) 111 gevreral. Each Judge Advocate General is responsible for tlie professional supervision and discipline of military trial and appellate military judges, 

judge advocates, and otlier lawyers who practice in 

proceedings governed by the code and this Manual. 

To discharge this responsibility each Judge Advocate General may prescribe mles of professional 

conduct not inconsistent with this rule or this Manual. Rules of professional conduct promulgated pursuant to this rule may include sanctions for 

violations of such rules. Sanctions may include but 

are not limited to indefinite suspension from practice 

in courts-martial and in tlie 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 n~le, tlie subject of tlie 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 afrer strspensiorz or clisbarnlent. When a 

Judge Advocate General suspends a person from 

practice or tlie Court of Appeals for tlie Armed 

Forces disbars a person, any Judge Advocate General may suspend that person from practice upon 

written notice and opportunity to be lieard in 

writing. 

(c) Investig~tion of judges. 

(I) In general. These rules and procedures promulgated pursuant to Article 6a are establislled to investigate and dispose of charges, allegations, or 

information pertaining to tlie fitness of a military 

trial judge or appellate military jiidge to perform tlie 

duties of tlie judge's office. 

(2) Policy. Allegations of judicial misconduct or 

unfitness shall be investigated pursuant to the procedures of this n~le 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. 

11-6 
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 

Advocate General concerned to receive such 

complaints. 

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. 

Report. 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) Initial action rrpon 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 compiaint from performing judicial 

duties pending the outcome of any inquiry or investigation conducted pursuant to this rule. Such inquiries or investigations shall be conducted with 

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) 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 con!lrict 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 designated to conduct the initial inquiry should, if 

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, 

the individual designated to conduct the inquiry 

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 tlte initial irzquiiy. 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 counselling or the issuance of an 

oral or written admonition or reprimand. The Judge 

Advocate General concerned will be notified prior to 

11-7 
taking tninor professio~ial disciplinary action or dismissing a complaint as unfounded. 

(6) Actiort by the Judge Advocate General. 

(A) 111 general. The Judge Advocates General 

are responsible for the professional supervision and 

discipline of military trial and appellate lnilitary 

judges under their jurisdiction. Upon receipt of findings and recolnmendations required by subsection 

(c)(5) of this nile the Judge Advocate General concerned will take appropriate action. 

(B) Appropriate actions. The Judge Advocate 

General concerned ]nay dismiss the complaint, order 

an additional inquiry, appoint an ethics colnlnission 

to consider the complaint, refer the matter to another 

appropriate investigative agency or take appropriate 

professional discipli~~nry action pursuant to the rules 

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 reassignnlent of military trial judges or 

appellate n~ilitary judges to meet the needs of the service is not 

professional disciplinary action. 

(C) Staridard of proof: Prior to taking professional disciplinary action, other tllan 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 colnplaint 

engaged in judicial lnisconduct or is otherwise unfit 

for continued service as a military judge, and that 

sucll lnisconduct 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 ~ninilnum, given notice and an opportunity to 

be heard. 

(7) 2he Etliics Comntissio~i. 

(A) Mentberslrip. If appointed pursuant to subsection (c)(6)(B) of this rule, an ethics colnmission 

sllall consist of at least tllree members. 

If the subject of the co~nplaint is a liiilitary trial 

judge, the cortunission should include one or rnore 

rnilitary trial judges or individuals with experience 

as a military trial judge. If the subject of the complaint is an appellate lnilitary judge, the colnmission 

should include one or more individuals with experience as an appellate ~nilitary judge. Members of the 

colnnlission should, if practicable, be senior to the 

subject of the complaint. 

(B) Duties. Tlie co~mnission will perfonn tllose 

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 lnisconduct or unfitness. If the 

co~n~nissiondetermines that the affected judge engaged in jitdicial lnisconduct or is unfit for continued judicial service, the commission may be 

required to recolnlnend an appropriate disposition to 

The Judge Advocate General concerned. 

Discussion 

The Judge Advocate General concerned mav appoint an ad 

l~oc or a standing commission. 

(8) Rules of procedure. The Secretary of Defense 

or the Secretary of the service concerned ]nay establish additional procedures consistent with this rule 

and Article 6a. 
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)(ll) 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 tenitory 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)(l)(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 cou1-t-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@)(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 con11-9 
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 

See R.C.M. 809 for procedures and standards for contempt 

proceedings. 

(d) Excllisive 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 courl 

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 

Status of Forces Agreement, June 19, 1951, 4 U.S.T. 1792, 

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 

combatant command may convene courts-martial 

over members of any of the armed forces. 

(B) So much of the authority vested in the 

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. 

(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 under regulations 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 when: 

(A) The court-martial is convened by a commander authorized to convene courts-martial under 

subsection (e)(2) of this rule; or 

(B) The accused cannot be delivered to the 

armed force of which the accused is a member without manifest injury to the armed forces. 

An accused should not ordinarily be tried by a 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 

this policy does not affect an otherwise valid 

referral. 

(4) Nothing in this rule prohibits detailing to a 

court-martial a military judge who is a member of 

an armed force different from that of the accused or 

the convening authority, or both. 

11-10 
(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 commander of a unified or specified 

combatant command or; 

(B) a commander of any other joint command 

or joint ts:ik 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-nlartial. 

(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, adjudge any punishment authorized under R.C.M. 

1003. 

(iii) Notwithstanding any other rule, the 

death penalty may not be adjudged if: 

(a) Not specifically authorized for the offense by 

the code and Part IV of this Manual; or 

(b) The case has been referred as noncapital. 

(B) Cases under the law of war. 

(i) General courts-martial may try any person who by the law of war is subject to trial by 

military tribunal for any crime or offense against: 

(a) The law of war; or 

(b) The law of the temtory occupied as an incident of war or h~lligerency whenever the local civil 

authority is superseded in whole or part by the rnilitary 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 (O(l)(B)(i)(b) is an exercise of the power of 

military government. 

(ii) When a general court-martial exercises jurisdiction under the law of war, it may adjudge any 

punishment permitted by the law of war. 

Discussion 

Certain limitations on the discretion of military tribunals to 

adjudge 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 

court-martial composed only of a military judge 

does not have jurisdiction to try any person for any 

offense for which the death penalty may be adjudged unless the case has been referred to trial as 

noncapital. 

(2) Special courts-martial. 
(A) In general. Except as otherwise expressly 

provided, special courts-martial may try any person 

subject to the code for any noncapital offense made 

punishable by the code and, as provided in this rule, 

for capital offenses. 

(B) Punishments. 

(i) Upon a finding of guilty, special courtsmartial may adjudge, under limitations prescribed by 

this Manual, any punishment authorized under 

R.C.M. 1003 except death, dishonorable discharge, 

dismissal, confinement for more than 6 months, hard 

labor without confinement for more than 3 months, 

forfeiture of pay exceeding two-thirds pay per month, or any forfeiture of pay for more than 6 months. 

(ii) A bad-conduct discharge may not be adjudged by a special court-martial unless: 

(a) Counsel qualified under Article 27@) is detailed to represent the accused; and 

(b) A military judge is detailed to the trial, except 

in a case in which a military judge could not be 

detailed because of physical conditions or military 

exigencies. Physical conditions or military exigencies, as the terms are here used, may exist under rare 

circumstances, such as on an isolated ship on the 

high seas or in a unit in an inaccessible area, provided compelling reasons exist why trial must be 

held at that time and at that place. Mere inconvenience does not constitute a physical condition or 

military exigency and does not excuse a failure to 

detail a military judge. If a military judge cannot be 

detailed because of physical conditions or military 

exigencies, a bad-conduct discharge may be adjudged provided the other conditions have been met. 

In that event, however, the convening authority 

shall, prior to trial, make a written statement explaining why a military judge could not be obtained. 

This statement shall be appended to the record of 

trial and shall set forth in detail the reasons why a 

military judge could not be detailed, and why the 

trial had to be held at that time and place. 

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 

11-12 

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 obtaining the consent of the officer exercising general 

court-martial jurisdiction over the command. 

Discussion 

See R.C.M. 103(3) for a definition of capital offenses. 

(3) Summary courts-martial. See R.C.M. 1301(c) 

and (d)(l). 

(g) Concurrent jurisdiction of otlzer military tribunals. The provisions of the code and this Manual 

confemng jurisdiction upon courts-martial do not 

deprive military commissions, provost courts, or 

other military tribunals of concurrent jurisdiction 

with respect to offenders or offenses that by statute 

or by the law of war may be tried by military commissions, provost courts, or other military tribunals. 

Discussion 

See Articles 104 and 106 for some instances of concurrent 

jurisdiction. 

Rule 202. Persons subject to the jurisdiction 

of courts-martial 

(a) In general. Courts-martial may try any person 

when authorized to do so under the code. 

Discussion 

(1) Authority under the code. Article 2 lists classes of per- 
sons who are subject to the code. These include active duty 

personnel (Article 2(a)(l)); 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), (lo), (ll), 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) Enlisfment. '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. 5 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 171; 

(3) received military pay or allowances; and 

(4) performed military duties; 

is subject to [the code] until such person's active service has been 

terminated in accordance with law or regulations promulgated by 

the Secretary concerned. 

Even if a person never underwent an enlistment or induction 

proceeding of any kind, court-martial jurisdiction could be established under this provision. 

(ii) Induction. Court-martial jurisdiction does 

not extend to a draftee until: the draftee has completed an induction ceremony which was in substantial compliance with the re. 

quirements prescribed by statute and regulations; the draftee by 

conduct after an apparent induction, has waived objection to substantive defects in it; or a "constructive enlistment" under Article 

2(c) exists. 

The fact that a person was improperly inducted (for example, 

because of incorrect classification or erroneous denial of exemption) does not of itself negate court-martial jurisdiction. When a 

person has made timely and persistent efforts to correct such an 

crror, court-martial jurisdiction may be defeated if improper induction is found, depending on all the circumstances of the case. 

(iii) Call to active drtty. 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 failure 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 rwrtmartial jurisdiction. 

(i) Efiect of cornpletiorz 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 

11-13 
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. 

(ii) 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 courtmartial for that offense despite a later discharge or other termination of that status if: 

(I)For offenses occurring on or after 23 October 1992, the person is, at the time of the courtmartial, 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 occumng 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-lnartial, 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 

ol the court-martial, subject to the code; and 

(3) The reenlistment occurred after 

26 July 1982. 

(c) Persons in the custocly 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 conunitted after it. 

(d) A person discharged from the armed 

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 c0mmit;:d before 

the fraudulent discharge. 

(e) No person who has deserted from the 

armed forces is relieved from court-martial jurisdiction by a separation from any later period of service. 

If) 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. Court-martial 

jurisdiction over civilians under the code is limited by judicial 

decisions. The exercise of jurisdiction under Article 2(a)(ll) in 

peacetime has been held unconstitutional by the 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) Oflenses under tlte law of war- Nothing in this 

rule limits the power of general courts-martial to try 

persons under the law of war. See R.C.M. 

201(f)(l)(B). 

(c) Attacllment of jurisdiction over tlze 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 

court-martial 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 tenninal date 

of self-executing orders, the person may be held for trial by courtmartial beyond the effective ternhal date. 

(2) Procedure. Actions by which court-martial jurisdiction attaches include: apprehension; imposition 

of restraint, such as restriction, arrest, or confinement; and preferral of charges. 

Rule 203. Jurisdiction over the offense 

To the extent permitted by the Constitution, 

courts-martial may try any offense under the code 

and, in the case of general courts-martial, the law of 

war. 

Discussion 

(a) In general. Courts-martial have power to try any 

offense under the code except when prohibited from so doing by 

the Constitution. The rule enunciated in Solorio v. United States, 

(1x3 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) Service regulations. The Secretary concerned 

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 

convening authorities and commanders authorized to conduct 

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 Amy National Guard and the Air National 

Guard are subject to Federal court-martial jurisdiction only when 

the offense concerned is committed while the meniber is in Federal service. 

(b)(l) General and special court-ntartial proceedings. A member of a reserve component must be 011 

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 

approved in accordance with Article 2(d)(5), but 

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 

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)(l). 

(2) Sunzrizary 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 

or service or any punishment. All punishments 

remaining unserved at the end of a period of active 

duty or the end of any normal period of inactive 

11-15 
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) Charzges 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 

completely terminated after commission of an 

offense. 

Discussion 

A ~ne~nber 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 (ii) 

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. 
CHAPTER Ill. INITIATION OF CHARGES; APPREHENSION; PRETRIAL 


RESTRAINT; RELATED MAl'TERS 


Rule 301. Report of offense 

(a) Who may report. Any person may report an offense subject to trial by court-martial. 

(b) To whom reports conveyed for disposition. Ordinarily, any military authority who receives a report 

of an offense shall forward as soon as practicable 

the report and any accompanying information to the 

immediate commander of the suspect. Competent 

authority superior to that commander may direct 

otherwise. 

Discussion 

Any military authority may receive a report of an offense. 

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. aid scope. 

(1) Definitioiz. 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 authority is notified and acts under R.C.M. 304 or 305. An 

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)(l). Evidence obtained as the result of an unlawful civilian 

arrest may be challenged under Mi. R. Evid. 311(c)(l), (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 !heir presence and for felonies. 18 U.S.C. $5 3052, 3053, 

3056. Other agencies have apprehension powers include the General Services Administration, 40 U.S.C. 5 318 and the Veterans 

Administration, 38 U.S.C. 5 218. 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 infornlal relationships with 

the Department of Defense. 

(b) Who rnuy apprelzend. The following officials 

may apprehend any person subject to trial by courtmartial: 

(1) Military law enforcement ofSicials. Security 

poiice, military police, master at a~nspersonnel, 

members of the shore patrol, and persons designated 

by proper authorities to perform rnilitiuy criminal 

investigative, guard, or police duties, whether subject to the code or not, when in each of the forego- 
ing instances, the official making the apprehension 

is in the execution of law enforcement duties; 

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 

commissio~~edofficer to whom the apprehending person is responsible. 

The phrase "persons designated by proper authority to perform military criminal investigative, guard or police duties" 

includes special agents of the Defense Criminal Investigative 

Service. 

(2) Commissioned, warrant, petty, and noncommissioned ojficers. 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 autltorized 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 Colun~bia, 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 conlmitted 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 thal 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 milay be tnade. 

(1) In general. An apprehension is made by 

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 authorization shall be required for an apprehension 

under these rules except as required in subsection 

(e)(2) of this rule. 

(3) Use of force. Any person authorized under 

these rules to make an apprehension may use such 

force and means as reasonably necessary under the 

circumstances to effect the apprehension. 

Discussion 

In addition to any other action required hy law or regulation 

or proper military officials, any person making au apprehension 

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 conunand of the person apprehended if it is impractical 

to inform the immediate commander. 

(e) Where an apprehension tnay 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 farrllly houses, duplexes, and apartments. The 

quarters inay be owned, leased, or rented by the 

residents, or assigned, and may be occupied on a 

temporary or permanent basis. "Private dwelling7' 

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 

11-18 
may enter a private dwelling for the purpose of 

making an apprehension under these rules unless: 

(A) Pursuant to consent under Mil. R. Evid. 

3 14(e) of 3 16(d)(2); 

(B) Under exigent circumstances described in 

Mil. R. Evid. 315(g) or 316(d)(4)(B); 

(C) In the case of a private dwelling which is 

military property or under military control, or nonmilitary property in a foreign country. 

(i) if the person to be apprehended is a resident of the private dwelling, there exists, at the time 

of the entry, reason to believe that the person to be 

apprehended is present in the dwelling, and the apprehension has been authorized by an official listed 

in Mil. R. Evid. 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 

authorized by an official listed in Mil. R. Evid. 

315(d) upon a determination that probable cause exists to apprehend the person and to believe that the 

person to be apprehended is or will be present at the 

time of the entry; 

(D) In the case of a private dwelling not included in subsection (e)(2)(C) of this rule, 

(i) if the person to be apprehended is a resident of the private dwelling, there exists at the time 

of the entry, reason to believe that the person to be 

apprehended is present and the apprehension is authorized by an arrest warrant issued by competent 

civilian authority; or 

(ii) if the person to be apprehended is not a 

resident of the private dwelling, the apprehension is 

authorized by an arrest warrant and the entry is 

authorized by a search warrant, each issued by competent civilian authority. 

A person who is not a resident of the private 

dwelling entered may not challenge the legality of 

an apprehension of that person on the basis of failure to secure a warrant or authorization to enter that 

dwelling, or on the basis of the sufficiency of such a 

warrant or authorization. Nothing in this subsection 

((e)(2)) affects the legality of an apprehension which 

is incident to otherwise lawful presence in a private 

dwelling. 

Discussion 

For example, if law enforcement officials enter a private 

dwelling pursuant to a valid search wwant 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 

summary of expected evidence. In other cases a more extensive 

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 Mi. 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 {heDepartment 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 l(9)) is disqualified 

from convening a general or special court-martial in that case. 

R.C.M. 504(c)(l). Therefore, when the imnediate commander is 

a general or special court-martial convening authority, the preliminary inquiry should be conducted by another officer of the command. That officer may be informed that charges may be 

preferred if the officer determines that preferral is warranted. 

Rule 304. Pretrial restraint 

(a) Types of pretrial restraint. Pretrial restraint is 

moral or physical restraint on a person's liberty 

which is imposed before and during disposition of 

offenses. Pretrial restraint may consist of conditions 
on liberty, restriction in lieu of arrest, arrest, or 

confinement. 

(1) Conditions on liberty. Conditions on liberty 

are imposed by orders directing a person to do or 

refrain from doing specified acts. Such conditions 

may be imposed in conjunction with other forms of 

restraint or separately. 

(2) Restriction in lieu of arrest. Restriction in lieu 

of arrest is the restraint of a person by oral or written orders directing the person to remain within 

specified limits; a restricted person shall, unless otherwise directed, perform full military duties while 

restricted. 

(3) Arrest. Arrest is the restraint of a person by 

oral or written order not imposed as punishment, 

directing the person to remain within specified 

limits; a person in the status of arrest may not be 

required to perform full military duties such as commanding or supervising personnel, serving as guard, 

or bearing arms. The status of arrest automatically 

ends when the person is placed, by the authority 

who ordered the arrest or a superior authority, on 

duty inconsistent with the status of arrest, but this 

shall not prevent requiring the person arrested to do 

ordinary cleaning or policing, or to take part in routine training and duties. 

(4) Confinement. Pretrial confinement is physical 

restraint, imposed by order of competent authority, 

depriving a person of freedom pending disposition 

of offenses. See R.C.M. 305. 

Discussion 

Conditions on liberty include orders to report periodically 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 

warrant appropriate action such as nonjudicial punishment or 

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 prefeaal of charges or imposition of restraint 

under R.C.M. 304(a)(2)-(4). 

(b) lho may order pretrial restraint. 

(1) Of civilians and ojficers. Only a commanding 

officer to whose authority the civilian or officer is 

subject may order pretrial restraint of that civilian or 

officer. 

Discussion 

Civilians may be restrained under these rules only when they 

are subject to trial by court-martial. See R.C.M. 202. 

(2) Of enlisted persons. Any commissioned officer inay order pretrial restraint of any enlisted 

person. 

(3) Delegation of autllority. The authority to order pretrial restraint of civilians and commissioned 

and warrant officers may not be delegated. A commanding officer may delegate to warrant, petty, and 

noncommissioned officers authority to order pretrial 

restraint of enlisted persons of the commanding officer's command or subject to the authority of that 

commanding officer. 

(4) Authority to withhold. A superior competent 

authority may withhold from a subordinate the authority to order pretrial restraint. 

(c) When a person may be restrained. No person 

may be ordered into restraint before trial except for 

probable cause. Probable cause to order pretrial restraint exists when there is a reasonable belief that: 

(1) An offense triable by court-martial has been 

committed; 

(2) The person to be restrained committed it; and 

(3) The restraint ordered is required by the 

circumstances. 

Discussion 

The decision whether to impose pretrial restraint, and, if so, 

what type or types, should be made on a case-by-case basis. The 

factors listed in the isc cuss ion 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 jurisdic11-20 
tion. 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 restraint, including its terms or limits. The order to an 

enlisted person shall be delivered personally by the 

authority who issues it or through other persons subject to the code. The order to an officer or a civilian 

shall be delivered personally by the authority who 

issues it or by another commissioned officer. Pretrial 

confinement is imposed pursuant to orders by a 

competent authority by the delivery of a person to a 

place of confinement. 

(e) Notice of basis for restraint. When a person is 

placed under restraint, the person shall be informed 

of the nature of the offense which is the basis for 

such restraint. 

Discussion 

See R.C.M. 305(e) concerning additional information which 

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) Punislzment proltibited. 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 wllicli is the 

basis for that restraint. Prisoners being held for trial 

shall not be required to undergo punitive duty hours 

or training, perform punitive labor, or wear special 

uniforms prescribed only for post-trial prisoners. 

This rule does not prohibit minor punishment during 

pretrial confinement for infractions of the rules of 

the place of confinement. Prisoners shall be afforded 

facilities and treatment under regulations of the Secretary concerned. 

Discussion 

Offenses under the code by a person under restraint may be 

disposed of in the same manner as any other offenses. 

(g) Release. Except as otherwise provided in 

R.C.M. 305, a person may be released from pretrial 

restraint by a person authorized to impose it. Pretrial 

restraint shall terminate when a sentence is adjudged, the accused is acquitted of all charges, or all 

charges are dismissed. 

Discussion 

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) Adiniizistrative restraint. Nothing in this rule 

prohibits limitations on a servicemember imposed 

for operational or other military purposes independent of military justice, including administrative hold 

or medical reasons. 

Discussion 

See also R.C.M. 306. 

Rule 305. Pretrial confinement 

(a) In general. Pretrial confinement is physical restraint, imposed by order of competent authority, 

depriving a person of freedom pending disposition 

of charges. 

Discussion 

No member of the armed forces may be placed in 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 mentioned, they may be confiiied in the same confinement 

facilities. 

(b) Wlzo 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 nay order confinrment. 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 

11-21 
committing officer furnishes a statement, signed by him, of the 

offense charged against the prisoner." Article Il(a). 

(d) Wlien a person may be confined. No person may 

be ordered into pretrial confinement except for probable cause. Probable cause to order pretrial confinement exists when there is a reasonable belief that: 

(1) An offense triable by court-martial has been 

committed; 

(2) The person confined committed it; and 

(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. 

"IW]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 kom 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 confmement 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 otherwise provided by regulations of the Secretary 

concerned, a prisoner does not have a right under 

this rule to have military counsel of the prisoner's 

own selection. 

(g) Who maq. direct release from cortjinement. Any 

commander of a prisoner, an officer appointed under 

regulations of the Secretary concerned to conduct 

the review under subsection (i) andlor (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 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 co~nmander of the prisoner 

ordered the pretrial confinement, the commissioned, 

warrant, noncommissioned, or petty officer into 

whose charge the prisoner was committed shall, 

within 24 hours after that coimnitment, cause 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 coinmander. 

(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 confinement will continue. A commander's compliance 

11-22 
with this subsection may also satisfy the 48-hour 

probable cause determination of subsection R.C.M. 

305(i)(l) 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)(l), or this subsection prevents a neutral and 

detached conlmander 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 pretrial confinement unless the commander believes 

upon probable cause, that is, upon reasonable 

grounds, that: 

(i) An offense triable by a court-martial has 

been committed; 

(ii) The prisoner committed it; and 

(iii) Confinement is necessary because it is 

foreseeable that: 

(a) The prisoner will not appear at 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 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) The nature and circumstances of the offenses 

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 cormnit 

further serious criminal misconduct if allowed to remain at liberty. 


Although the Military Rules of Evidence are not applicable, 

the conlmander 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 tlie 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 mernoranrlurn. If continued pretrial confinement is approved, tlie 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 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 hc ~ddedto the 

memorandum at any time. 

(i) Procedures for review of pretrial confinement. 

(1) 48-hour probable cause deteriizirzation. 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-day review of pretrial confinement. Within 

7 days of the imposition of confinement, a neutral 

and detached officer appointed in accordance with 

11-23 
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 tlte 7-day review. 

(i) Matters considered. The review under 

this subsection shall include a review of the memorandum submitted by the prisoner's commander 

under subsection (h)(2)(C) of this rule. Additional 

written matters may be considered, including any 

submitted by the accused. The prisoner and the prisoner's counsel, if any, shall be allowed to appear 

before the 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 prooj The requirements for 

confinement under subsection (1lV2)(B) of this rule 

must be proved by a preponderance of the evidence. 

(B) Extension of time lirnit. 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 oflcer. Upon 

completion of review, the reviewing officer shall 

approve continued confinement or order immediate 

release. 

(D) Meinorandurn. 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) Reconsideratiorz 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 ~nilitary judge. Once the charges for 

which the accused has been confined are referred to 

trial, the military judge shall review the propriety of 

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 (11)(2)(B) of this rule; 

or 

(C) The provisions of subsection (i)(l) 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 (0,(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 

discretion or unusually harsh circumstances. This 

credit is to be applied in addition to any other credit 

the accused may be entitled as a result of pretrial 

confinement served. This credit shall be applied first 

against any confinement adjudged. If no confinement is adjudged, or if the coilfinement adjudged is 

insufficient to offset all the credit to which the accused is entitled, the credit sllall 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, l 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. 

11-24 
(1) Confinement afer 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, 

of evidence cr of nlisconduct which, either alone or 

in conjunction with all other available evidence, justifies confinement. 

Discussion 

See R.C.M. 3040) concerning who may order confinement. 

(m) Exceptions. 

(1) Operational necessity. The Secretary of Defense may suspend application of subsections (e)(2) 

and (3), (0,(h)(2)(A) and (C), and (i) of this rule to 

specific units or in specified areas when operational 

requirements of such units or in such areas would 

make application of such provisions impracticable. 

(2) At sea. Subsections (e)(2) and (3), (f), 

(h)(2)(C), and (i) of this rule shall not apply in the 

case of a person on board a vessel at sea. In such 

situations, confinement on board the vessel at sea 

may continue only until the person can be transferred to a confinement facility ashore. Such transfer 

shall be accomplished at the earliest opportunity permitted by the operational requirements and mission 

of the vessel. Upon such transfer the memorandum 

required by subsection (h)(2)(C) of this rule shall be 

transmitted to the reviewing officer under subsection 

(i) of this rule and shall include an explanation of 

any delay in the transfer. 

Discussion 

Under this subsection the standards for confiiement 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 nlay 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, he 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; 

11-25 
(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 

(3) likely issues. 

(c) How oflenses may be disposed 05 Within the 

limits of the commander's authority, a commander 

may take the actions set forth in this subsection to 

initially dispose of a charge or suspected offense. 

Discussion 

Prompt disposition of charges is essential. See R.C.M. 707 

(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 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). 

(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)(l) concerning dismissal of charges. 

When a decision is made to take no action, the accused 

should be informed. 

(2) Adininistrative 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 the Secretary concerned, include matters related to efficiency 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, nonjudicia1 punishment. See Part V. 

(4) Disposition of clmrges. 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. 307 concerning preferral of charges. However, see 

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) Forwarding for disposition. A commander 

niay forward a matter concerning an offense, or 

charges, to a superior or subordinate authority for 

disposition. 

Discussion 

The inunediate 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 

with a recommendation as to disposition. See also 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, Lhe 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. 

11-26 
(d) National security matters. If a commander not 

authorized to convene general courts-martial finds 

that an offense warrants trial by court-martial, but 

believes that trial would be detrimental to the prosecution of a war or harmful to national security, the 

matter shall be forwarded to the general court-martial convening authority for action under R.C.M. 

407(b). 

Rule 307. Preferral of charges 

(a) Who may prefer charges. Any person subject to 

the code may prefer charges. 

Discussion 

No person may be ordered to prefer charges to which that 

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 l(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 conceming speedy trial requirements. 

(b) How charges are preferred; oath. A person who 

prefers charges must: 

(1) Sign the charges and specifications under oath 

before a commissioned officer of the armed forces 

authorized to administer oaths; and 

(2) State that the signer has personal knowledge 

of or has investigated the matters set forth in the 

charges and specifications and that they are true in 

fact to the best of that person's knowledge and 

belief. 

Discussion 

See Article 136 for authority to administer oaths. The 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 ha7.r~ 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) Charge. A charge states the article of the 

code, law of war, or local penal law of an occupied 

territory which the accused is alleged to have 

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 @) below. 

(A) N~inbering 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 cfzarges. 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 nl-dinarily 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 qubsection (d) of this rule. 

(D) Charges under rhe 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 - . 

.. . " refening to the local penal 

law of the occupied territory. See R.C.M. 
201(f)(l)(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 

offense expressly or by necessary implication. 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: fist 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 

-. -. . -. . .--- -..-.---- -, then Seaman App!"ntice 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 nrernbers 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), srrbsections (3) through (12). or subject to trial by courtmartial under Articles 3 or 4. The specification should describe 

the accused's armed force, unit or organization, position, or status 

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. 

@) Date and time of offense 

(i) In general. The date of Ihe 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 spedied 

day. 

(iii) Hour. The exact hour of the offense is ordinarily not alleged except in certain absence offenses. When the exact 

time is alleged, the 24-hour clock should be used. The use of "at 

or about" is proper. 

(iv) Extended periods. When the acts specified extend(~) 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 comnlission 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 crirninalify. 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 

"wrongfuuy," "unlawfully," or "without authority" (dependin: 

upon the nature of the offense) should be used to describe the 

accused's acts. 

(iii) Specificify. 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. 

(iv) Drrplicitousness. One specification should not 

allege more than one offense, either conjunctively (the accused 

"lost and destroyed) or alternatively (the accused "lost or 

destroyed"). However, if two acts or a series of acts constitute 

one offense, they may be alleged conjunctively. See R.C.M. 

906(b)(5). 

(H) Other considerations in 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 

11-28 
last name of such person should be alleged, if known. If the name 

of the victim is unknown, a general physical description may be 

used. If this cannot be done, the victim may be described as "a 

person whose name is unknown." Military rank or grade should 

be alleged, and must be alleged if an element of the offense, as in 

an allegation of disobedience of the command of a superior officer. If the person has no military position, it may otherwise be 

necessary to allege the status as in an allegation of using provoking words toward a person subject to the code. See paragraph 42 

of Part IV. 

(iii) Property. In describing property generic terms 

should be used, such as "a watch" or "a knife," and descriptive 

details such as make, model, color, and serial number should 

ordinarily be omitted. In some instances, however, details may be 

essential to the offense, so they must be alleged. For example: the 

length of a knife blade may be important when alleging a violation of 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 

abouL .. - .." 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) Documenfs. 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) Otlzer orders. If the order allegedly violated 

is an "other lawful order" (Article 92(2)), it should be set forth 

verbatim or described in the specification. When the order is oral, 

see (vii) below. 

(c) Negating exceptions. If the order contains 

exceptions, it is not necessary that the specification contain a 

specific allegation negating the exceptions. However, words of 

criminality may be required if the alleged act is not necessarily 

criminal. See subsection (G)(ii) of this discussion. 

(vii) Oral sfatements. When alleging oral statements the phrase "or words to that effect" should be added. 

(viii) Joint ofSense. 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 aggravatiort. Aggravating circumstances which increase the maximum authorized punishment must 

be alleged in order to permit the possible increased punishment. 

Other matters in aggravation ordinarily should not be alleged in 

the specification. 

(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. 

Discussion 

What is substantially one transaction should not be made the 

basis for an unreasonable multiplication of charges against one 

person. See R.C.M. 906(b)(12) and 1003(c)(l)(C). For example, a 

person should not be charged with both failure to report for a 

routine scheduled duty, such as reveille, and with absence without 

leave if the failure to report occurred during the period for which 

the accused is charged with absence without leave. There are 

times, however, when sufficient doubt as to the facts or the law 

exists to warrant making one transaction the basis for charging 

two or more offenses. In no case should both an offense and a 

lesser included offense thereof be separately charged. 

See also R.C.M. 601(e)(2) concerning referral of several 

offenses. 

(5) Multiple offenders. A specification may name 

more than one person as an accused if each person 

so named is believed by the accuser to be a principal 

in the offense which is the subject of the 

specification. 

Discussion 

See also R.C.M. 601(e)(3) concerning joinder of accused. 

A joint offense is one committed by two or more persons 

acting together with a common intent. Principals may be charged 

11-29 
jointly with the commission of the same offense, but an accessory 

after the fact cannot be charged jointly with the principal whom 

the accused is alleged to have received, comforted, or assisted. 

Offenders are properly joined only if there is a common unlawful 

design or purpose; the mere fact that several persons happen to 

have committed the same kinds of offenses at the time, although 

material as tending to show concert of purpose, does not necessarily establish this. The fact that several persons happen to have 

absented themselves without leave at about the same time will 

not, in the absence of evidence indicating a joint design, purpose, 

or plan justify joining them in one specification, for they may 

merely have been availing themselves of the same opportunity. In 

joint offenses the participants may be separately or jointly 

charged. However, if the participants are members of different 

armed forces, they must be charged separately because their trials 

must be separately reviewed. The preparation of joint charges is 

discussed in subsection (c)(3) Discussion (H) (viii) (a) of this 

rule. The advantage of a joint charge is that all accused will be 

tried at one trial, thereby saving time, labor, and expense. This 

must be weighed against the possible unfairness to the accused 

which may result if their defenses are inconsistent or antagonistic. 

An accused cannot be called as a witness except upon that accused's own request. If the testimony of an accomplice is necessary, the accomplice should not be tried jointly with those against 

whom the accomplice is expected to testify. See also Mil. R. 

Evid. 306. 

See R.C.M. 603 concerning amending specifications. 

See R.C.M. 906(b)(5) and (6) concerning motions to amend 

specifications and bills of particulars. 

(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 

la) Znzrnediate commander. The immediate commander of the accused shall cause the accused to be 

informed of the charges preferred against the accused, and the name of the person who preferred the 

charges and of any person who ordered the charges 

to be preferred, if known, as soon as practicable. 

Discussion 

When notice is given, a certificate to that effect on the 

Charge Sheet should be completed. See Appendix 4. 

(b) Commanders at higher eclzelons. 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 nr recess of sufficient length to 

permit the accused to adequately prepare a defense, 

and no relief shall be granted upon a failure to 

comply with this rule unless the accused demonstrates that the accused has been hindered in the 

preparation of a defense. 
CHAPTER IV. FORWARDING AND DISPOSITION OF CHARGES 


Rule 401. Forwarding and disposition of 

charges in general 

(a) Who tnay dispose of charges. Only persons authorized to convene courts-martial or to administer 

nonjudicial punishment under Article 15 may dispose of charges. A superior competent authority may 

withhold the authority of a subordinate to dispose of 

charges in individual cases, types of cases, or 

generally. 

Discussion 

See R.C.M. 504 as to who may convene courts-martial 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 bas 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 (bj. 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 l(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) Prornpt cletermination. When a commander with 

authority to dispose of charges receives charges, that 

commander shall promptly determine what disposition will be made in the interest of justice and 

discipline. 

Discussion 

In determining what level of disposition is appropriate, see 

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 iorm. 

(c) How charges may be disposed o$ Unless the 

authority to do so has been limited or witlheld 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 i~~dividually 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) Dismissal. When a commander dismisses 

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 hat 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 hannful 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 

accept nonjudicial punishment if again offered. The decision 

whether to dismiss charges in such circumstances is within the 

sole discretion of the commander concerned. 

Charges may be amended in accordance with R.C.M. 603. 

It is appropriate to dismiss a charge and prefer another 

charge anew when, for example, the original charge failed to state 

an offense, or was so defective that a major amendment was 

required (see R.C.M. 603(d)), or did not adequately reflect the 

nature or seriousness of the offense. 

See R.C.M. 907(b)(2)(C) concerning the effect of dismissing 
charges after the court-martial has begun. 

(A) Forwarding to a superior commander. 

When charges are forwarded to a sbperior commander for disposition, the forwarding commander 

shall make a personal recommendation as to disposition. If the forwarding commander is disqualified 

from acting as convening authority in the case, the 

hasis for the disqualification shall be noted. 

Discussion 

A commander's recommendation is within that commander's 

sole discretion. No authority may direct a commander to make a 

specific recommendation as to disposition. 

When charges are forwarded to a superior commander with a 

view to trial by general or special court-martial, they should be 

forwarded by a letter of transmittal or indorsement. To the extent 

practicable without unduly delaying forwarding the charges, the 

letter should include or carry as inclosures: a summary of the 

available evidence relating to each offense; evidence of previous 

convictions and nonjudicial punishments of the accused; an indication that the accused has been offered and refused nonjudicial 

punishment, if applicable; and any other matters required by superior authority or deemed appropriate by the forwarding commander. Other matters which may be appropriate include 

information concerning the accused's background and 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 convening authority promptly and should be noted in the letter of 

transmittal. 

When charges are forwarded with a view to disposition other 

than trial by general or special court-martial, they should be 

accompanied by sufficient information to enable the authority 

receiving them to dispose of them without further investigation. 

(B) Other cases. When charges are forwarded to 

a commander who is not a superior of the forwarding commander, no recommendation as to disposition may be made. 

Discussion 

Except when directed to forward charges, a subordinate 

commander may not be required to take any specific action to 

dispose of charges. See R.C.M. 104. See also paragraph ld(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 chsrges). 

(3) Referral of charges. See R.C.M. 403, 404, 

407, 601. 

(d) National security matters. If a commander who 

is not a general court-martial convening authority 

finds that the charges warrant trial by court-martial 

but believes that trial would probably be detrimental 

to the prosecution of a war or harmful to national 

security, the charges shall be forwarded to the officer exercising general court-martial convening 

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 rnmmander authorized to administer nonjudicial punishment but not 

authorized to convene courts-martial may: 

(1) Dismiss any charges; or 

Discussion 

See R.C.M. 401(c)(l) concerning dismissal of charges, the 

effect of dismissal, and options for further action. 

(2) Forward them to a superior commander for 

disposition. 

Discussion 

See R.C.M. 401(c)(2) for additional guidance concerning 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. I~nrnediately upon receipt of 

sworn charges, an officer exercising summary courtmartial jurisdiction over the command shall cause 

the hour and date of receipt to be entered on the 

charge sheet. 

Discussion 

See Article 24 and R.C.M. 1302(a) concerning who may 

exercise summary court-martial jurisdiction. 

The entry indicating receipt is important because it stops the 

running of the statute of limilations. See Article 43; R.C.M. 

907@)(2)(B). Charges may be preferred and forwarded to an 

officer exercising summary court-martial jurisdiction over the 

command to stop the running of the statute of limitations even 

lhough the accused is absent without authority. 

(b) Disposition. When in receipt of charges a commander exercising summary court-martial jurisdiction may: 

(1) Dismiss any charges; 

Discussion 

See R.C.M. 401(c)(l) concerning dismissal of charges, the 

effect of dismissing charges, and options for further action. 

(2) Forward charges (or, after dismissing charges, 

the matter) to a subordinate commander for 

disposition; 

Discussion 

See R.C.M. 401(c)(2)(B) concerning forwarding charges to a 

subordinate. 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 

See R.C.M. 401(c)(2)(A) for guidance concerning forwarding 

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 

concerned, direct a pretrial investigation under 

R.C.M. 405, and, if appropriate, forward the report 

of investigation with the charges to a superior commander for disposition. 

Discussion 

An investigation should be directed when it appears that 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 

the subject matter already has been conducted, see 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; 

See R.C.M. 401(c)(l) concerning dismissal of charges, tlie 

effect of dismissing charges, and options for further action. 

(b) Forward charges (or, after dismissing charges, 

the matter) to a subordinate commander for 

disposition; 

Discussion 

See R.C.M. 401(c)(2)(B) concerning forwarding charges to a 

subordinate. When appropriate, charges may be forwarded to a 

subordinate even if that subordinate previously considered them. 
(c) Forward any cliarges to a superior con~niander 

for disposition; 

Discussion 

See R.C.M. 401(c)(2)(A) for guidance concerning forwarding 

charges to a superior. 

(d) Subject to R.C.M. 601(d), refer cliarges to a 

summary court-martial or to a special court-martial 

for trial; or 

Discussion 

See Arlicle 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-n~artial.See R.C.M. 1302(c) concerning referral of charges 

to a sumnlary court-martial. 

(e) Unless otherwise prescribed by the Secretary 

concerned, direct a pretrial investigation under 

R.C.M.405, and, if appropriate, forward the report 

of investigation with tlie cliarges 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 nlay be warranted. See R.C.M. 405. If an investigation of 

the subject matter already has been conducted, see R.C.M. 

405(b). 

Rule 405. Pretrial investigation 

(a) In general. Except as provided in subsection (k) 

of tliis rule, no cliarge or specification may be referred to a general court-martial for trial until a 

tl~orough and impartial investigation of all the matters set forth therein lias been made in substantial 

compliance with tliis rule. Failure to comply witti 

tlus rule shall have no effect if tlie cliarges 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 tl~e trutlr of he matters set forth 

in the charges, the form of the cltarges, and to secure information 

on whirh to determine what dispositioo should be made of tl~e 

case. Tl~e investigation also serves as a nleans of discovery. The 

function of the investigation is to ascertain and impartially weiglr 

all available facts in arriving at conclusions and recommendations, not to perfect a case against the accused. Tl~e investigation 

sho~tld be li~nited to the issues raised by the charges and necessary to proper disposition of the case. Tl~e investigation is not 

limited to examination of the witnesses and evidence mentioned 

in the accompanying allied papers. See subsection (e) of this rule. 

Recomn~endations of the investigating officer are advisory. 

If at any time aner an investigation under this rule 111e 

cltarges are changed to allege a more serious or essenlially dilferent offense, further investigatio~~ sltould be directed with respect 

to the new or different matters alleged. 

Failure to coniply substantially with tl~e requirements of Article 32, which failure prejudices the accused, niny result in delay 

in disposition of the case or disapproval of the proceedings. See 

R.C.M. 905(b)(l) and 906(b)(3) concerning motions for appropriate relief relating to Ule pretrial invesligatio~r. 

The accused may waive the pretrial investigation. See subsection (k) of this rule. In such case, no investigation need be 

held. The conln~ander authorized to direct the investigation may 

direct that it be conducted ~~otwithstanding the waiver. 

(b) Earlier investigation. If an investigation of the 

subject matter of an offense lias been conducted 

before the accused is charged with an offense, and 

tlie accused was present at tlie i~ivestigation and afforded tlie rights to counsel, cross-examination, and 

presentation of evidence required by tliis rule, no 

furtlier investigation is required unless demanded by 

tlie accused to recall witnesses for furtlier crossexamination and to offer new evidence. 

Discussion 

An earlier investigation includes courts of inquiry and similar investigations wl~iclr meet the requirements of tlris subsectio~l. 

(c) Who rilny direct investigation. Unless proliibited 

by regulations of [he Secretary concerned, an investigation may be directed under tliis rule by any 

court-martial convening authority. That aulhority 

may also give procedural iristructions not inconsistent wit11 these rules. 

(d) Personnel. 

(1) Investigating officer. The coni~na~ider directing an investigation under tliis rule sl~all detail a 

commissioned officer not the accuser, as itivestigating officer, who shall conduct the i~ivestigation and 

make a report of co~iclusions and recominendations. 

11-34 
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 

the investigating officer's responsibilities from an impartial 

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) Individual military couizsel. The accused 

may request to be represented by individual military 

counsel. Such requests shall be acted on in accordance with R.C.M. 506(b). When the accused is represented by individual military counsel, counsel 

detailed to represent the accused shall ordinarily be 

excused, unless the authority who detailed the defense counsel, as a matter of discretion, approves a 

request by the accused for retention of detailed 

counsel. The investigating officer shall forward any 

request by the accused for individual military counsel to the commander who directed the investigation. 

That commander shall follow the procedures in 

R.C.M. 506(b). 

(C) Civilian counsel. The accused may be represented by civilian counsel at no expense to the 

United States. Upon request, the accused is entitled 

to a reasonable time to obtain civilian counsel and to 

have such counsel present for the investigation. 

However, the investigation shall not be unduly delayed for this purpose. Representation by civilian 

counsel shall not limit the rights to military counsel 

under subsections (d)(2)(A) and (B) of this rule. 

Discussion 

See R.C.M.502(d)(6) concerning the duties of defense counsel. 

(3) Others. The commander who directed the investigation may also, as a matter of discretion, detail 

or request an appropriate authority to detail: 

(A) Counsel to represent the United States; 

(B) A reporter; and 

(C) An interpreter. 

(e) Scope of investigation. The investigating officer 

shall inquire into the truth and fonn 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 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) Be informed of the charges under 

investigation; 

(2) Be informed of the identity of the accuser; 

(3) Except in circumstances described in R.C.M. 

804(b)(2), be present throughout the taking of 

evidence; 

(4) Be represented by counsel; 

(5) Be informed of the witnesses and other evidence then known to the investigating officer; 

(6) Be informed of the purpose of the 

investigation; 

(7) Be informed of the right against self-incrimi11-35 
nation under Article 3 1; 

(8) Cross-examine witnesses who are produced 

under subsection (g) of this rule; 

(9) Have witnesses produced as provided for in 

subsection (g) of this rule; 

(10) Have evidence, including documents or 

physical evidence, within the control of military authorities produced as provided under subsection (g) 

of this 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; altenzatives. 

(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 accused, if the request is timely. A witness is 

"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 

obtaining the witness' appearance. A witness who is 

unavailable under Mil. R. Evid. 804(a)(1)-(6), is not 

"reasonably available." 

(B) Evidence. Subject to Mil. R. Evid., Section 

V, evidence, including documents or physical evidence, which is under the control of the Government 

and which is relevant to the investigation and not 

cumulative, shall be produced if reasonably available. Such evidence includes evidence requested by 

the accused, if the request is timely. 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 prepari~ig 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 sribsection (g)(4)(A) of this rule 

would be sufficient. 

After making a prelinlinary 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 nornlally justlfy 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 pern~t 

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 hi (B), requiring the investigating officer to 

notify the appropriate authorities of requests by the accused for. 

infonnation 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 reasonably available, the invcxtigating officer shall 

inform the parties. Otherwise, the immediate commander of the witness shall be requested to make the 

witness available. A determination by the immediate 

commander that the witness is not reasonably available is not subject to appeal by the accused but may 

be reviewed by the military judge under R.C.M. 

906(b)(3). 

11-36 
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 

rule, civilian witnesses may be paid for travel and associated 

expenses to testify at a pretrial investigation. 

(C) Evidence. The investigating officer shall 

make an initial determination whether evidence is 

reasonably available. If the investigating officer decides that it is not reasonably available, the investigating officer shall inform the parties. Otherwise, the 

custodian of the evidence shall be requested to provide the evidence. A determination by the custodian 

that the evidence is not reasonably available is not 

subject to appeal by the accused, but may be reviewed by the military judge under R.C.M. 

906(b)(3). 

Discussion 

The investigating officer may discuss factors affecting reasonable availability with the custodian and with others. If the 

custodian determines that the evidence is not reasonably available, the reasons for that determination should be provided to the 

investigating officer. 

@) Action when witrzess or evidence is not reasonably available. If the defense objects to a determination that a witness or evidence is not reasonably 

available, the investigating officer shall include a 

statement of the reasons for the determination in the 

report of investigation. 

(3) Witness expenses. Transportation expenses 

and a per diem allowance may be paid to civilians 

requested to testify in connection with an investigation under this rule according to regulations prescribed by the Secretary of a Department. 

Discussion 

See Department of Defense Joint Travel Regulations, Vol 2, 

paragraphs C3054, C6000. 

(4) Alternatives to testirnony. 

(A) Unless the defense objects, an investigating 

officer may consider, regardless of the availability of 

the witness: 

(i) Sworn statements; 

(ii) Statements under oath taken by telephone, radio, or similar means providing each party 

the opportunity to question the witness under circumstances by which the investigating officer may 

reasonably conclude that the witness' identity is as 

claimed; 

(iii) Prior testimony under oath; 

(iv) Depositions; 

(v) Stipulations of fact or expected 

testimony; 

(vi) Unsworn statements; and 

(vii) Offers of proof of expected testimony 

of that witness. 

(B) The investigating officer may consider, 

over objection of the defense, when the witness is 

not reasonably available: 

(i) Sworn statements; 

(ii) Statements under oath taken by telephone, radio, or similar means providing each party 

the opportunity to question the witness under circumstances by which the investigating officer may 

reasonably conclude that the witness' identity is 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 

11-37 
officer may consider, regardless of the availability of 

the evidence: 

(i) Testimony describing the evidence; 

(ii) An authenticated copy, photograph, or 

reproduction of similar accuracy of the evidence; 

(iii) An alternative to testimony, when permitted under subsection (g)(4)(B) of this rule, in 

which the evidence is described; 

(iv) A stipulation of fact, document's contents, or expected testimony; 

(v) An unsworn statement describing the evidence; or 

(vi) An offer of proof concerning pertinent 

characteristics of the evidence. 

(B) The investigating officer may consider, 

over objection of the defense, when the evidence is 

not reasonably available: 

(i) Testimony describing the evidence; 

(ii) An authenticated copy, photograph, or 

reproduction of similar accuracy of the evidence; or 

(iii) An alternative to testimony, when permitted under subsection (g)(4)(B) of this rule, in 

which the evidence is described. 

(6) Protective order for release of privileged infornzation. If, prior to referral, the Government 

agrees to disclose to the accused information to 

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 

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 by Mil. R. 

Evid. 505(g)(l)(B) through (F) or 506(g)(2) through 

(5). 

(h) Procedure. 

(1) Presentation of evidence. 

(A) Testimony. All testimony shall be taken 

under oath, except that the accused may make an 

unsworn statement. The defense shall be given wide 

latitude in cross-examining witnesses. 

Discussion 

The following oath may be given to witnesses: 


"Do you (swear) (affum) 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 (i)(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) (affiim) that this statement is the truth, the 

whole truth, and nothing but the truth (,so help you God)?" 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 recordings of testimony were taken during the investigation, they 

should be preserved untA 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 corr~mander 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) Otlzer evidence. The investigating officer 

shall inform the parties what other evidence will be 

considered. The parties shall be permitted to exarnine 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 (i),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 partv 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 

11-38 
commander who directed the investigation. 

(3) Access by spectators. Access by spectators to 

all or part of the proceeding may be restricted or 

loreclosed in the discretion of the commander who 

directed the investigation or the investigating officer. 

Discussion 

Closure may encourage complete testimony by an embarrassed or timid witness. 

Ordinarily the proceedings of a pretrial investigation should 

be open to spectators. 

(4) Presence of accused. The further progress of 

the taking of evidence shall not be prevented and the 

accused shall be considered to have waived the right 

to be present, whenever the accused: 

(A) After being notified of the time and place 

of the proceeding is voluntarily absent (whether or 

not informed by the investigating officer of the obligation to be present); or 

(B) After being warned by the investigating officer that dis:uptive 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-ther 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 adlnissible at trial. However, see subsection 

(g)(4) of this rule as to linutations on the ways hi which testimony niay 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. 

6) Report of investigation. 

(1) In general. The investigating officer shall 

make a timely written report of the investigation to 

the commander who directed the investigation. 

Discussion 

If practicable, the charges and the report of investigation 

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) Contents. The report of investigation shall 

include: 

(A) A statement of names and organizations or 

addresses of defense counsel and whether defense 

counsel was present throughout the taking of evidence, or if not present the reason why; 

(B) The substance of the testimony taken on 

both sides, including any stipulated testimony; 

(C) Any other statements, documents, or matters considered by the investigating officer, or recitals of the substance or nature of such evidence; 

(D) A statement of any reasonable grounds for 

belief that the accused was not mentally responsible 

for the offense or was not competent to participate 

in the defense during the investigation; 

Discussion 

See R.C.M. 909 (mental capacity); 916(k) (mental responsibility). 

(E) A statement whether the essential witnesses 

will be available at the time anticipated for trial and 

the reasons why any essential witness may not then 

be available; 

(F) An explanation of anv delays in the 

investigation; 

(G) The investigating officer's conclusio~i 

whether the charges and specifications are in proper 

form; 

(H) The investigating officer's conclusion 

whether reasonable grounds exist to believe that the 

accused committed the offenses alleged; and 

(I) The recommendations of the investigating 

officer, includi~~g 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 concer~ling other 

possible dispositions. 

See Appendix 5 for a sample of the Investigating Officer's 
Report @D Form 457). 

(3) Distribution of tlte report. The investigating 

officer shall cause the report to be delivered to the 

commander who directed the investigation. That 

commander shall promptly cause a copy of the 

report to be delivered to each accused. 

(4) Objections. Any objection to the report shall 

be made to the commander who directed the investigation within 5 days of its receipt by the accused. 

This subsection does not prohibit a convening authority from referring the charges or taking other 

action within the 5-day period. 

(k) Waiver. The accused may waive an investigation 

under this rule. In addition, failure to make a timely 

objection under this rule, including an objection to 

the report, shall constitute waiver of the objection. 

Relief from the waiver may be granted by the investigating officer, the commander who directed the 

investigation, the convening authority, or the rnilitary judge, as appropriate, for good cause shown. 

Discussion 

See also R.C.M. 905(b)(l); 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 refemng 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 and indorsements, 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 nutigating factors; and any previous recommendations, by 

commanders or others who have forwarded the charges, for disposition of the case. 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. Infomiation 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)(l). Defects in the pretrial 

advice are not jurisdictional and are raised by pretrial motion. See 

R.C.M.905(b)(l) and its Discussion. 

(c) Distnbution. 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. 

11-40 
Rule 407. Action by commander exercising 

general court-martial jurisdiction 

(a) Dispositiorz. When in receipt of charges, a commander exercising general court-martial jurisdiction 

may: 

(1) Dismiss any charges; 

Discussion 

See R.C.M. 401(c)(l) concerning dismissal of charges and 

the effect of dismissing charges. 

(2) Forward charges (or, after dismissing charges, 

the matter) to a subordinate commander for 

disposition; 

Discussion 

See R.C.M. 401(c)(2)(B) concerning forwarding charges lo 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 ld(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; 

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 

concerned, direct a pretrial inv,estigation under 

R.C.M. 405, after n%ich additional action under this 

rule may be taken; 

Discussion 

An investigation should be directed when it appears the 

charges are of such a serious nahlre that trial by general courtmartial 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)(l)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 clispositiu~~s. 

(b) National security rnatters. When in receipt of 

charges the trial of which the commander exercising 

general court-martial jurisdiction finds would probably be inimical to the prosecution of a war or harmful to national security, that commander, unless 

otherwise prescribed by regulations of the Secretary 

concerned. shall detemine 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. 
CHAPTER V. COURT-MARTIAL COMPOSITION AND PERSONNEL; 


CONVENING COURTS-MARTIAL 


Rule 501. Composition and personnel of 

courts-martial 

(a) Composition of courts-martial. 

(1) General courts-martial. General courts-martial shall consist of: 

(A) A military judge and not less than five 

members; or 

(B) Except in capital cases, of the military 

judge alone if requested and approved under R.C.M. 

903. 

(2) Special courts-nlartial. Special courts-martial 

shall consist of: 

(A) Not less than three members; 

(B) A military judge and not less than three 

members; or 

(C) A military judge alone if a military judge 

is detailed and if requested and approved under 

R.C.M. 903. 

Discussion 

See R.C.M. 1301(a) concerning composition of summary 

courts-martial. 

(b) Counsel in general and special courts-niartial. 

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 

courts-martial. 

Rule 502. Qualifications and duties of 

personnel of courts-martial 

(a) Merttbers. 

(1) Qualifications. The members detailed to a 

court-martial shall be those persons who in the opinion of the convening authority are best qualified for 

the duty by reason of their age, education, training, 

experience, length of service, and judicial temperament. Each member shall be on active duty with the 

armed forces and shall be: 

(A) A commissioned officer; 

(B) A warrant officer, except when the accused 

is a commissioned officer; or 

(C) An enlisted person if the accused is an 

enlisted person and has made a timely request under 

R.C.M. 503(a)(2). 

Discussion 

Retired members of any Regular component and members 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 Atmosplleric Administration and of the Public Health Service are eligible to serve as 

members when assigned to and serving with an med 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 thc accused is proved guilty and. 

if necessary, adjudge a proper sentence, based on the 

evidence and in accordance with the instructions of 

the military judge. Each member has an equal voice 

and vote with other members in deliberating upon 

and deciding all matters submitted to them, except 

as otherwise specifically provided in these rules. No 

member may use rank or position to influence another member. No member of a court-martial may 

have access to or use in any open or closed session 

this Manual, reports of decided cases, or any other 

reference material, except the president of a special 

court-martial without a military judge may use such 

materials in open session. 

Discussion 

Members should avoid any conduct or communication with 

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) Qualificaations. 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 mnembers of the court-martial during their deliberations; 

(B) Speak for the members of the court-martial 

when announcing the decision of the members or 

requesting instructions from the military judge; and 

(C) In a special court-martial without a military 

judge, perform the duties assigned by this Manual to 

the military judge except as otherwise expressly 

provided. 

(c) Qualifications of inilitary judge. A military 

judge shall be a co~nmissioned officer on active duty 

in the armed forces who is a member of the bar of a 

Federal court or a member of the bar of the highest 

court of a State and who is certified to be qualified 

for duty as a military judge by the Judge Advocate 

General of the armed force of which the military 

judge is a member. In addition, the military judge of 

a general court-martial shall be designated for such 

duties by the Judge Advocate General or the Judge 

Advocate General's designee, certified to be qualified for duty as a military judge of a general courtmartial, and assigned and directly responsible to the 

Judge Advocate General or the Judge Advocate 

General's designee. The Secretary concerned may 

prescribe additional qualifications for military judges 

in special courts-martial. As used in this subsection 

"military judge" does not include the president of a 

special court-martial without a military judge. 

Discussion 

See R.C.M. 801 for description of some of the general 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@) 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 ol 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) Otlter inilitary counsel. Any commissioned officer may be detailed as trial counsel in special 

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 inilitaiy and civilian defense counsel. Individual military or civilian 

defense counsel who represents an accused in a 

court-martial shall be: 

(A) A member of the bar of a Federal court or 

of the bar of the highest court of a State; or 

(B) If not a member of such a bar, a lawyer 

who is authorized by a recognized licensing authority to practice law and is found by the military judge 

to be qualified to represent the accused upon a 

showing to the satisfaction of the inilitary judge that 

the counsel has appropriate training and familiarity 

with the general principles of criminal law which 

apply in a court-martial. 

Discussion 

In making such a determination-particularly in the case of 

civilian defense counsel who are members only of a foreign barthe military judge also should inquire into: 

11-43 
(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 con~pleteness 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) Relationship with convening authority. Trial counsel 

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 counsel must communicate with a represented 

accused only 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. 

@) 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 

court-martial; ensure that any person having custody of the accused is also informed; comply with 

applicable discovery rules (see 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 presepce 

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 military judge any substantial irregularity in the 

proceedings. 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 pron~ptly provide written notice of the findings and sentence 

adjudged to the convening authority or a designee, 

the accused's immediate commander, and (if applicable) the officer in charge of the confinement 

11-44 
facility (see R.C.M. 1101(a)), and supervise the 

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 cormnsel. An assistant trial counsel 

may act in that capacity only under the supervision 

of the detailed trial counsel. ~es~onsibiliti fortrial 

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 

individual military counsel or retention of civilian 

counsel. See R.C.M.506, 

(B) General duties of defense counsel. Defense counsel 

must: guard the interests of the accused zealously 

within the bounds of the law without regard to 

personal opinion as to the guilt of the accused; 

disclose to the accused any interest defense counsel 

may have in connection with the case, any disqualification, and any other matter which might influence the accused in the selection of counsel; 

represent the accused with undivided fidelity and 

may not disclose the accused's secrets or confidences except as the accused may authorize (see 

also Mil. R. Evid. 502). A defense counsel designated to represent two or more co-nrcused 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 aud 

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)(l)(B). 

(iii) Submission of matters. If the accused is convicted, the defense counsel may submit to the convening authority 

matters for the latter's consideration in deciding whether to approve the sentence or to disapprove any findings. See R.C.M. 

1105. Defense counsel should discuss with the accused the right 

to submit matters to the convening authority and the powers of 

the convening authority in taking action on the case. Defense 

11-45 
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 

Appeals for the Armed Forces and the Supreme Court. See 

R.C.M. 1204 and 1205. If the case may be examined in the office 

of the Judge Advocate General under Article 69(a), defense counsel should explain the nature of such review to the accused. See 

R.C.M. 1201(b)(l). Defense counsel must explain the consequences of waiver of appellate review, when applicable, and, if 

the accused elects to waive appellate review, defense counsel will 

assist in preparing the waiver. See R.C.M. 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 

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) Exanzination of post-trial recomnzendation. 

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 general supervision 

of the defense counsel, associate defense counsel 

may act without such supervision when ciccumstances 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, bailzrs, 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) A11 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) Lluties. In addition to such other duties as the 

Secretary concerned may prescribe, the following 

persons may perform the following duties. 

(A) Interpreters. Interpreters slid1 interpret for 

the court-martial or for an accused who does not 

speak or understand English. 

Discussion 

The accused also may retain an unofficial interpreter without 

expense to the United States. 

(B) Reporters. Reporters shall record the 

proceedings and testimony and shall transcribe them 

so as to comply with the requirements for the record 

of trial as prescribed in these rules. 

(C) Others. Other personnel detailed for the assistance of the court-martial shall have such duties 

as may be imposed by the military judge. 

(4) Paymen.t of reporters, interpreters. The Secretary concerned may prescribe regulations for the 

payment of allowances, expenses, per diem, and 

compensation of reporters and interpreters. 

Discussion 

See R.C.M. 807 regarding oaths for reporters, interpreters, 

and escorts. 

(f) Action zipon 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 

same unit as the accused; any person who is in arrest or confinement. 

(2) Enlisted menzbers. An enlisted accused may, 

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 madc, an enlisted accused may not be 

tried by a court-martial the membership of which 

does not include enlisted members in a number comprising at least one-third of the total number of 

members unless eligible enlisted members cannot be 

obtained because of physical conditions or military 

exigencies. If the appropriate number of enlisted 

members cannot be obtained, the court-martial may 

be assembled, and the trial may proceed without 

them, but the convening authority shall make a detailed written explanation why enlisted members 

could not be obtained which must be appended to 

the record of trial. 

Discussion 

When such a request is made, the convening authority 

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 courtmartial which includes the proper proportion of enlisted members; 

or 

(3) Advise the coi~rt-martial before which the charges 

are then pendtlig 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) Members fvom another comrnand or armed 

force. A convening authority may detail as members 

of general and special court-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 withorrt 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 fvom a different armed force. 

A military judge from one armed force may be detailed to a court-martial convened in a different 

armed force when permitted by the Judge Advocate 

11-47 
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 wlwm 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 froin 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 

force when permitted by the Judge Advocate General of the armed force of which the counsel is a 

member. The Judge Advocate General may delegate 

authority to make persons available for this purpose. 

Rule 504. Convening courts-martial 

(a) In general. A court-martial is created by a convening order of the convening authority. 

(b) Who inay 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 

command devolves are found in regulations of the Secretary 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 

See the discussion of subsection (b)(l) of this rule. Persons 

authodzed to convene general courts-martial may also convene 

special courts-martial. 

(A) Definition. For purposes of Articles 23 and 

24, a command or unit is "separate or detached" 

when isolated or removed from the immediate disciplinary control of a superior in such manner as to 

make its commander the person held by superior 

commanders primarily responsible for discipline. 

"Separate or detached" is used in a disciplinary 

sense and not necessarily in a tactical or physical 

sense. 

Discussion 

The power of a commander of a separate or detached unit 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 tl~e senior 

officer present who designated the detachment. 

(3) Suinrnary courts-nuzrtial. See R.C.M. 1302(a). 

Discussion 

See the discussion under subsection (b)(l) of this rule. 

(4) Delegation prohibited. The power to convene 

courts-martial may not be delegated. 

(c) Disqualification. 

(1) Accuser. An accuser may not convene a general or special court-martial for the trial of the person accused. 
Discussion 

See also Article l(9); 307(a); 601(c). However, see R.C.M. 

1302(b) (accuser may convene a summary court-martial). 

(2) Other. A convening authority junior in rank to 

an accuser may not convene a general or special 

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. 

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 

been designated by the Secretary concerned, the 

convening order shall so state. 

Discussion 

See Appendix 6 for a suggested format for a convening 

order. 

(2) Summary courts-martial. A convening order 

for a summary court-martial shall designate that it is 

a suinmary court-martial and detail the summary 

court-martial, and may designate where the courtmartial will meet. If the convening authority has 

been designated by the Secretary concerned, the 

convening order shall so state. 

Discussion 

See also R.C.M. 1302(c). 

(3) Additional matters. Additional matters to be 

included in convening orders may be prescribed by 

the Secretary concerned. 

(e) Place. The convening authority shall ensure that 

an appropriate location and facilities for courts-martial are provided. 

Rule 505. Changes of members, military 

judge, and counsel 

(a) In general. Subject to this rule, the members, 

military judge, and counsel may be changed by an 

authority competent to detail such persons. Members 

also may be excused as provided in subsections 

(c)(l)(B)(ii) and (c)(2)(A) of this rule. 

Discussion 

Changes of the members of the court-martial should be 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) Procedure. When new persons are added as 

members or counsel or when substitutions are made 

as to any members or counsel or the military judge, 

such persons shall be detailed in accordance with 

R.C.M.503. An order changing the members of the 

court-martial, except one which excuses members 

without replacement, shall be reduced to writing 

before authentication of the record of trial. 

Discussion 

When members or counsel have been excused and the 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) Clianges of members. 

(1) Before assembly. 

(A) By convening autlzority. Before the courtmartial is assembled, the convening authority may 

change the members of the court-martial without 

showing cause. 

11-49 
(B) By convening a~rtlrority's delegate. 

(i) Delegation. The convening authority may 

delegate, under regulations of the Secretary concerned, authority to excuse individual members to 

the staff judge advocate or legal officer or other 

principal assistant to tlie convening authority: 

(ii) Litiiitations. 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 autliority may be excused 

by the convening authority's delegate in any one 

court-martial. After assenlbly the conveniiig autliority's delegate may not excuse members. 

(2) After assembly. 

(A) Excirsal. After assembly no member may 

be excused, except: 

(i) By the convening authority for good 

cause sliown on tlie record; 

(ii) By the military judge for good cause 

sliown on the record; or 

(iii) As a result of challenge i~nder R.C.M. 

912. 

(B) New nrerilber:u. New llienlbers may be detailed after assembly only when, as a result of excusals under subsection (c)(2)(A) of this rule, the 

number of members of [lie court-martial is reduced 

below a quorum, or tlie number of enlisted members, wlien tlie accused has made a timely written 

request for enlisted members, is reduced below onethird of the total membership. 

(d) Clianges of detailed corinsel. 

(1) Trial cormsel., An autliority competent to detail trial counsel may change tlie trial counsel and 

any assistant trial counsel at any time witliout sliowing cause. 

(2) Defense colinsel. 

(A) Before fortnation of attort~e)l-client relationslrip. Before an attorney-client relationship has 

been formed between tlie accused and detailed defense counsel or associate or assistant defense counsel, an authority competent to detail defense counsel 

may excuse or cliange s~icli counsel without showing 

cause. 

(B) After fortnation of attorney-client relationslrip. After an attorney-client relationsliip has been 

formed between the accused and detailed defense 

counsel or associate or assistant defense counsel, an 

autliority colnpetent to detail sucli 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 witlidrawal by sucli counsel under R.C.M. 

506(c); or 

(iii) For other good cause shown on the 

record. 

(e) Clzarzge of inilitary judge. 

(1) Before assetitbly. Before tile court-martial is 

assembled, the military judge may be changed by an 

authority competent to detail tlie military judge, 

witliout cause shown on tile record. 

(2) After asseinbly. After tlie court-martial is assembled, tlie military judge may be changed by an 

authority competent to detail tlie military judge only 

wlien, as a result of disqualificatior~ under R.C.M. 

902 or for good cause sliown, 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 wliicll render the member, counsel, or military judge unable to 

proceed will1 tlie court-martial within a reasonable 

time. "Good cause" does not iilclude teinporary 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 tile 

Government, and either by the military counsel detailed uiider Article 27 or military counsel of the 

accused's own selection, if reasonably available. The 

accused is not entitled to be represented by more 

tlian one military counsel. 

Discussion 

See R.C.M.502(d)(3) as to qunlificalio~~s ofcivilian cour~sel 

or individual n~ilitary counsel. 

(b) Inrlividual iizilirnry colnuel. 

(1) Reasonably available. Subject to this subsection, the Secretary concerned sliall define 

"reasonably available." Wliile so assigned, the following persons are not reasonably available to serve 
as individual military counsel because of he nature 

of their duties or positions: 

(A) A general of flag officer; 

(B) A trial or appellate military judge; 

(C) A trial counsel; 

(D) An appellate defense or government 

counsel; 

(E) A principal legal advisor to a command, 

organization, or agency and, when such command, 

organization, or agency has general court-martial jurisdiction, the principal assistant of such an advisor; 

(F) An instructor or student at a service school 

or academy: 

(G) A student at a college or university; 

(H) A member of the staff of the Judge Advocate General of the Army, Navy, or Air Force, the 

Chief Counsel of the Coast Guard, or the Director, 

Judge Advocate Division, Headquarters, Marine 

Corps. 

The Secretary concerned may determine other 

persons to be not reasonably available because of 

the nature or responsibilities of their assignments, 

geographic considerations, exigent circumstances, or 

military necessity. A person who is a member of an 

armed force different from that of which the accused 

is a member shall be reasonably available to serve as 

individual military counsel for such accused to the 

same extent as that person is available to serve as 

individual military counsel for an accused in the 

same armed force as the person requested. The Secretary concerned may prescribe circumstances under 

which exceptions may be made to the prohibitions in 

this subsection when merited by the existence of an 

attorney-client relationship regarding matters relating 

to a charge in question. However, if the attorneyclient relationship arose solely because the counsel 

represented the accused on review under Article 70, 

this exception shall not apply. 

(2) Procedure. Subject to this subsection, the 

Secretary concerned shall prescribe procedures for 

determining whether a requested person is 

"reasonably available" to act as individual military 

counsel. Requests for an individual military counsel 

shall be made by the accused or the detailed defense 

counsel through the trial counsel to the convening 

authority. If the requested person is among those not 

reasonably available under subsection (b)(l) of this 

rule or under regulations of the Secretary concerned, 

the convening authority shall deny the request and 

notify the accused, unless the accused asserts that 

there is an existing attorney-client relationship regarding a charge in question or that the person requested will not, at the time of the trial or 

investigation for which requested be among those so 

listed as not reasonably available, the convening authority shall forward the request to the commander 

or head of the organization, activity, or agency to 

which the requested person is assigned. That authority shall make an administrative determination 

whether the requested person is reasonably available 

in accordance with the procedure prescribed by the 

Secretary concerned. This deternunation is a matter 

within the sole discretion of that authority. An adverse determination may be reviewed upon request 

of the accused through that authority to the next 

higher commander or level of supervision, but no 

administrative review may be made which requires 

action at the departmental or higher level. 

(3) Exclaral of detailed counsel. If the accused is 

represented by individual military counsel, detailed 

defense counsel shall normally be excused. The authority who detailed the defense counsel, as a matter 

of discretion, may approve a request from the accused that detailed defense counsel shall act as associate counsel. The action of the authority who 

detailed the counsel is subject to review only for 

abuse of discretion. 

Discussion 

A request under subsection (b)(3) should be considered in 

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 conceming denial of a request for individual military counsel or retention 

of detailed counsel as associate counsel. 

(c) Exclisal 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 tlereafter conduct the defense personally. Such waiver 
shall be accepted by the military judge only if the 

military judge finds that the accused is competent to 

understand the disadvantages of self-representation 

and that the waiver is voluntary and understanding. 

The military judge may require that a defense counsel remain present even if the accused waives counsel and conducts the defense personally. The right of 

the accused to conduct the defense personally may 

be revoked if the accused is disruptive or fails to 

follow basic rules of decorum and procedure. 

(e) Nonlawyer present. Subject to the discretion of 

the military judge, the acct~sed may have present and 

seated at the counsel table for purpose of consultation persons not qualified to serve as counsel under 

R.C.M.502. 

Discussion 

See also Mil. R. Evid. 615 if the person is a potential witness 

in the case. 
CHAPTER VI. REFERRAL, SERVICE, AMENDMENT, AND WITHDRAWAL OF 


CHARGES 


Rule 601. Referral 

(a) In general. Referral is the order of a convening 

authority that charges against an accused will be 

tried by a specified court-martial. 

Discussion 

Referral of charges requires three elements: a convening 

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 rnay refer. Any convening authority may 

refer charges to a court-martial convened by that 

convening authority or a predecessor, unless the 

power to do so has been withheld by superior competent authority. 

Discussion 

See R.C.M. 306(a), 403, 404, 407, and 504. 

The convening authority 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) Disqualification. An accuser may not refer 

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 

l(9). A convening authority who is disqualified niay 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 clmrges rnuy 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 hns 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 dispositiota, 

see R.C.h.1. 'The convening authority is not obliged to refer 

all charges which the evidence might support. The convening 

authority should consider the options and considerations u:lder 

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) There has been substantial compliance 

with the pretrial investigation requirements of 

R.C.M. 405; and 

(B) The convening authority has received the 

advice of the staff judge advocate required under 

R.C.M. 406. These requirements may be waived by 

the accused. 

Discussion 

See R.C.M. 201(f)(2)(C) concerning limitations on referral 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 convening 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 off~cer present in the command." 

The convening authority may instruct that the charges 

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 ii 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 may acknowledge by an instruction 

that no bad-conduct discharge may be adjudged when the prerequisites for a bad-conduct discharge 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 offenses or both, regardless whether related. Additional charges may be joined with other charges for 

a single trial at any time before arraignment if all 

necessary procedural requirements concerning the 

additional charges have been complied with. After 

arraignment of the accused upon charges, no additional charges. may be referred to the same trial 

without consent of the accused. 

Discussion 

Ordinarily all known charges should be referred to a single 

court-martial. 

(3) Joinder of accused. Allegations against two or 

more accused may be referred for joint trial if the 

accused are alleged to have participated in the same 

act or transaction or in the same series of acts or 

transactions constituting an offense or offenses. 

Such accused may be charged in one or more specifications together or separately, and every accused 

need not be charged in each specification. Related 

allegations against two or more accused which may 

be proved by substantially the same evidence may 

be referred to a common trial. 

Discussion 

A joint offense is one committed by two or more persons 

acting together with a common intent. Joint offenses niay 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 evidentiaq rules. 

(f) Superior convening authorities. Except as otherwise provided in these rules, a superior competent 

authority may cause charges, whether or not referred, to be transmitted to the authority for further 

consideration, including, if appropriate, referral. 

Rule 602. Service of charges 

The trial counsel detailed to the court-martial to 

which charges have been referred for trial shall 

cause to be served upon each accused a copy of the 

charge sheet. In time of peace, no person may, over 

objection, be brought to trial-including an Article 

11-54 
39(a) session-before a ge!leral court-martial within 

a period of five days after service of charges, or 

before a special court-martial within a period of 

three days after service of charges. In computing 

these periods, the date of service of charges and the 

date of trial are excluded; holidays and Sundays are 

included. 

Discussion 

Trial counsel should comply with this rule immediately 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 

sewed 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) Minor changes defined. Minor changes in 

charges and specifications are any except those 

which add a party, offenses, or substantial matter not 

fairly included in those previously preferred, or 

which are likely to mislead the accused as to the 

offenses charged. 

Discussion 

Minor changes include those necessary to correct inartfully 

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 ail investigating 

officer appointed under R.C.M. 405 may make minor changes to charges or specifications before 

arraignment. 

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 be 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, pennit 

minor changes in the charges and specifications at 

any time before findings are announced if no substantial right of the accused is prejudiced. 

(d) Major changes. Changes or amendments to 

charges or specifications other than minor changes 

may not be made over the objection of the accused 

unless the charge or specification affected is preferred anew. 

Discussion 

If there has been a major change or amendment over the 

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 

the substance of the charge or specification as amended or 

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) Witltdrawal. The convening authority or a superior competent authority may for any reason cause 

any charges or specifications to be withdrawn from 

a court-martial at any time before findings are 

announced. 

Discussion 

Charges which are withdrawn from a court-martial should be 

dismissed (see R.C.M. 401(c)(l)) 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 

11-55 
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 officer's independent judgment. When directed to do so by the 

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 bd 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 

withdrawn charges or specifications may not be considered for 

any reason. 

(b) Referral of withdrawn clmrges. Charges which 

have been withdrawn from a court-martial may be 

referred to another court-martial unless the 

withdrawal was for an improper reason. Charges 

withdrawn after the introduction of evidence on the 

general issue of guilt may be referred to another 

court-martial only if the withdrawal was necessitated 

by urgent and unforeseen military necessity. 

Discussion 

See also R.C.M. 915 (Mistrial). 

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 

coda1 rights, or with the impartiality of a court-martial. 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 palt 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 person~~el 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. 
CHAPTER VII. PRETRIAL MAlTERS 

Rule 701. Discovery 

(a) Disclosure by tlte trial counsel. Except as otherwise provided in subsections (f) and (g)(2) of this 

rule, the trial counsel shall provide the following 

information or matters to the defense- 

(1) Papers accompanying charges; convening orders; statements. As soon as practicable after service 

of charges under R.C.M. 602, the trial counsel shall 

provide the defense with copies of, or, if extraordinary circumstances make it impracticable to provide 

copies, permit the defense to inspect: 

(A) Any paper which accompanied the charges 

when they were referred to the court-martial, including papers sent with charges upon a rehearing or 

new trial; 

(B) The convening order and any amending orders; and 

(C) Any sworn or signed statement relating to 

an offense charged in the case which is in the possession of the trial counsel. 

(2) Documents, tangible hjects, reports. After 

service of charges, upon request of the defense, the 

Government shall permit the defense to inspect: 

(A) Any books, papers, documents, photographs, tangible objects, buildings, or places, or copies of portions thereof, which are within the 

possession, custody, or control of military authorities, and which are material to the preparation of the 

defense or are intended for use by the trial counsel 

as evidence in the prosecution case-in-chief at trial, 

or were obtained from or belong to the accused; and 

(B) Any results or reports of physical or mental 

examinations, and of scientific tests or experiments, 

or copies thereof, which are within the possession, 

custody, or control of military authorities, the existence of which is known or by the exercise of due 

diligence may become known to the trial counsel, 

and which are material to the preparation of the 

defense or are intended for use by the trial counsel 

as evidence in the prosecution case-in-chief at trial. 

Discussion 

For specific rules concerning certain mental examinations of 

the accused, see R.C.M.706 and Mil. R. Evid. 302 

(3) Witnesses. Before the beginning of trial on the 

merits the trial counsel shall notify the defense of 

the names and addresses of the witnesses the trial 

counsel intends to call: 

(A) In the prosecution case-in-chief; and 

(B) To rebut a defense of alibi, innocent ingestion, or lack of mental responsibility, when trial 

counsel has received timely notice under subsection 

(b)(l) or (2) of this rule. 

Discussion 

Such notice should be in writing except when impracticable. 

(4) Prior convictions of accused offered on the 

merits. Before arraignment die 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) Infomuztion to be offered at sentencing. Upon 

request of the defense the trial counsel nhall: 

(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 nf 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 

information wllich 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)@) (mental examination of accused), 914 (production of certain statements), and 

1004(b)(l) (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)(l) (statements by 

accused), 311(d)(l) (evidence seized from accused), 321(c)(l) 

(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 

linlited purpose on confession), 311(d)(2)(B) (notice of intent to 

use undisclosed evidence seized), 31 1(f) (testimony of accused 

for limited purpose on seizures), 321(c)(2)@) (notice of intent to 

use undisclosed line-up evidence), 321(e) (testimony of accused 

for limited purpose of line-ups), 412(c)(l) 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 inforn~ation), and 609(b) (intent to 

impeach with conviction over 10 years old). 

(b) Disclosure by tlze 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, 

the defense shall notify the trial counsel of the 

names and addresses of all witnesses, other than the 

accused, whom the defense intends to call during the 

defense case in chief, and provide all sworn or 

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 

intends to call at the presentencing proceedings 

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. 701(0 for statements that would not be subject to 

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 tlie 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 sllould 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, 

shall permit the trial counsel to inspect books, 

papers, documents, photographs, tangible objects, or 

copies or portions thereof, which are within the possession, custody, or control of the defense and which 

the defense intends to introduce as evidence in the 

defense case-in-chief at trial. 

(4) Reports of examination and tests. If the defense requests disclosure under subsection (a)(2)(B) 

of this rule, upon compliance with such request by 

the Government, the defense, on request of trial 

counsel, shall (except as provided in R.C.M. 706 

and Mil. R. Evid. 302) permit the trial counsel to 

inspect any results or reports of physical or mental 
examinations and of scientific tests or experiments 

made in connection with the particular case, or copies thereof, which are within the possession, custody, or control of the defense which the defense 

intends to introduce as evidence in the defense casein-chief at trial or which were prepared by a witness 

whom the defense intends to call at trial when the 

results or reports relate to that witness' testimony. 

(5) Inadmissibility of witltdrawn defense. If an intention to rely upon a defense under subsection 

(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), 31 1(b) 

(same, search), 321(e) (same, lineup), 412(c)(l) 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, conunanders 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 courtmartial, or as a threat of retrihlltion for such testimony. 

(f) Info?mation 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 tlus rule shall 

require the disclosure or production of notes, menloranda, or similar working papers prepared by counsel and couiisel's assistants and representatives. 

(g) Regulation of discovery. 

(1) Time, place, and manner. The military judge 

may, consistent with this rule, specify the time, 

place, and manner of making discovery and may 

prescribe such terms and conditions as are just. 

(2) Protective and modifying orders. Upon a snfficient showing the military judge mil:, 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 slowing, 

in whole or in part, in writing to be inspected only 

by the military judge. If the military judge grantc. 

relief after such an ex parte showing, the entire text 

of the party's statement shall be sealed and atlrrched 

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) Prohibit the party from introducing evidence, 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 

11-59 
of disadvantage that resulted from a failure to disclose; the reason 

for the failure to disclose; the extent to which later events mitigated 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 counterveiling 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 h~~iction of the trial process. 

I'rocedures 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 "itispect" 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)(l). 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 ulso 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 Miitaty 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) Wlio inay 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 doposition. 

(1) Subnzission of request. At ally time after 

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 should be served on the other parties when the request is 

submitted. 

(2) Contents of request. A request for a deposition 

shall include: 

(A) The name and address of the person whose 

deposition is requested, or, if the name of the person 

is unknown, a description of the office or position of 

the person; 

(B) A statement of the matters on which the 

person is to be examined; 

(C) A statement of the reasons for taking the 

deposition; and 

(D) Whether an oral or written deposition is 

requested. 

(3) Action on request. 

(A) In general. A request for a deposition may 

be denied only for good cause. 

11-60 
Discussion 

Good cause for denial includes: failure to state a proper 

ground for taking a deposition; failure to show the probable 

relevance of 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. 

@) 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 oficer. 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 

ensure that counsel qualified as required under 

R.C.M. 502(d) are assigned to represent each party. 

Discussion 

The counsel who represents the accused at a deposition ordinarily will form an attorney-client relationship with the accused 

which will continue through a later court-martial. Sft.- 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) Instructions. The convening authority may 

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 parry 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 oficer. In accordance 

with this rule, and subject to any instructions under 

subsection (d)(3) of this rule, the deposition officer 

shall: 

(1) Arrange a time and place for taking the deposition and, in the case of an oral deposition, notify 

the party who requested the deposition accordingly; 

(2) Arrange for the presence of any witness 

whose deposition is to be taken in accordance with 

the procedures for production of witnesses and evidence under R.C.M. 703(e); 

(3) Maintain order during the deposition and protect the parties and witnesses from annoyance, 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 tlie 

questions submitted by counsel to the witness; 

(6) Cause the proceedi~lgs to be recorded so that 

a verbatim record is made or may be prepared; 

(7) Record, but not rule upon, objectio~is or motions and the testimony to which they relate; 

(8) Authenticate the record of the deposition and 

forward it to the autllority who ordered tlie 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 infornl the 

convening authority. 

The authority who ordered the deposition should forward 

copies to the parties. 

(g) Proceclure. 

(I) Oral rlepositions. 

(A) Rights of acclisecl. At an oral deposirion, 

the accused sliall have the rights to: 

(i) Be present except when: (a) tlie accused, 

absent good cause shown, fails to appear after notice 

of time and place of the deposition; (b) the accused 

is disruptive within the meaning of R.C.M. 

804(b)(2); or (c) the deposition is ordered in lieu of 

production of a witness on sentencing under R.C.M. 

1001 and the authority ordering the deposition determines that the interests of the parties and tlie 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) Exailtination of witt~esses.Each witness 

giving an oral deposition sliall be examined under 

oath. The scope and manner of examination and 

cross-examination shall be sucll as would be allowed 

in the trial itself. The Governlnent shall make available to each accused for examination and use at tlie 

taking of the deposition any statement of the witness 

which is in tlle possession of the United States and 

to which Ihe accused would be entitled at the trial. 

Discussion 

As to objections, see subsections (f)(7) and (11) of tl~is rule. 

As to production of prior statenlenls 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 slrill be the 

truth, the whole trult, and notl~ing but Lhe truth (so help you 

God)?" 

(2) Writtert cleposilions. 

(A)Kigltls of acczrserl. Tlle accused sllall 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) S~lbrnission 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 sllall be allowed a reasonable time to prepare cross-interrogatories and 

objections, if any. 

Discussion 

The interrogalories and cross-ii~terrogatories should be sent 

to the deposition omcer by the party who requested [he deposition. See subsection (l1)(3) of U~is rule concerning objections. 

(D) Examination of witnesses. Tile deposition 

officer shall swear tlie witness, read each question 

presented by tlie 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. Tlle deposition shall be signed by the witness if the witness is 

available. If the deposition is not signed by the witness, the deposition officer shall record the reason. 

The certificate of authentication sllall then be 

executed. 

(3) Horv recorded. In the discretion of tlie autliority who ordered the deposition, a deposition may be 

recorded by a reporter or by other means including 

videotape, audiotape, or soi~nd tilm. In the discretion 

of tlie military judge, depositions recorded by 

11-62 
videotape, audiotape, or sound film may be played 

for the court-~nartial 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 

same was 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 party may show that an objection was made during the 

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 

witnesses and evidence, including the benefit of 

compulsory process. 

Discussion 

See also R.C.M. 801(c) concerning the opportunity of the 

court-martial to obtain witnesses and evidence. 

(b) Right to witrzesses. 

(1) On the merits or on interlwrrtory questions. 

Each party is entitled to the production of any witness whose testimony on a matter in issue on the 

merits or on an interlocutory question would be relevant and necessary. 

Discussion 

See Mil. R. Evid. 401 concerning relevance. 

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 se1ztencin.g. Each party is entitled to the 

production of a witness whose testimony on sentencing is required under R.C.M.1001(e). 

(3) Unavailable witness. Notwithstanding subsections (b)(l) and (2) of this rule, a party is not entitled to the presence of a witness who is unavailable 

within the meaning of Mil. R. Evid. 804(a). However, if the testimony of a witness who is unavailable 

is of such central importance to an issue that it is 

essential to a fair trial, and if there is no adequate 

substitute for such testimony, the military judge 

shall grant a continuance or other relief in order to 

attempt to secure the witness' presence or shall 

abate the proceedings, unless the unavailability of 

the witness is the fault of or could have been prevented by the requesting party. 

(c) Determining which witness will be produced. 

(1) Witnesses for the prosecution. The trial counsel shall obtain the presence of witnesses whose 

testimony the trial counsel considers relevant and 

necessary for the prosecution. 

(2) Witnesses for the defense. 

(A) Request. The defense shall submit to the 

11-63 
trial counsel a written list of witnesses whose production by the Government the defense requests. 

(B) Contents of request. 

(i) Witnesses on nlerits or interlocuto~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 iil 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 pennit denial 

of a motion for production of the witness, but relief 

from such denial may be granted for good cause 

shown. 

(D) Dctelmination. The trial counsel shall arrange for the presence of any witness listed by the 

defense unless the trial counsel contends that the 

witness' production is not required under this rule. If 

the trial counsel contends that the witness' production is not required by this rule, the matter may be 

submitted to the military judge. If the military judge 

grants a motion for a witness, the trial counsel shall 

produce the witness or the proceedings shall be 

abated. 

Discussion 

When significant or unusual costs would be involved in 

producing witnesses, the trial counsel should infom~ 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. 9056). 

(d) E~~zployitzerzt of expert witnesses. When the employment at Government expense of an expert is 

considered necessary by a party, the party shall, in 

advance of employment of the expert, and with notice to the opposing party, submit a request to the 

convening authority to authorize the employment 

and to fix the compensation for the expert. The 

request shall include a complete statement of reasons 

why employment of the expert is necessary and the 

estimated cost of employment. A request denied by 

the convening authority may be renewed before the 

military judge who shall determine whether the testimony of the expert is relevant and necessary, and, if 

so, whether the Government has provided or will 

provide an adequate substitute. If the military judge 

grants a motion for employment of an expert or 

finds that the Government is required to provide a 

substitute, the proceedings shall be abated if the 

Government fails to comply with the ruling. In the 

absence of advance authorization, an expert witness 

may not be paid fees other than those to which 

entitled under subsection (e)(2)(D) of this rule. 

Discussion 

See Mil. R. Evid. 702, 706. 

(e) Procedures for production of witnesses. 

(1) Military witnesses. The attendance of a rnilitary witness may be obtained by notifying the commander of the witness of the time, place, and date 

the witness' presence is required and requesting the 

commander to issue any necessary orders to the 

witness. 

Discussion 

When military witnesses are located near the court-martial, 

their presence can usually be obtained through informal coordination with them and their commander. If the witness is not near the 

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 bc 
obtained in the manner prescribed in subsection (e)(2) of this ~le. 

(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 

directed by appropriate authorities to appear as witnesses in 

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 temtories. 

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, 

papers, documents or other objects designated 

therein at the proceeding or at an earlier time for 

inspection by the parties. 

Discussion 

A subpoena may not be used to compel a witness to appear 

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) Wlzo 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) Senice. 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. 

Info~malservice. 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. 

Fonnal senlice. Forn~al service is advisable whenever it is 

anticipated that the witness will not con~ply voluntarily with the 

subpoena. Appropriate fees and mileage must be paid or tendered. 

See Article 47. If fornial 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 staniped, addressed envelope should be provided for 

these purposes. 

(E) Place of senlice. 

(i) In general. A subpoena requiring the attendance of a witness at a deposition, court-martial, 

or court of inquiry may be served at any place 

within the United States, it Territories, Cornrnonwealths, or possessions. 

(ii) Foreign territory. In foreign territory, the 

attendance of civilian witnesses may be obtained in 

accordance with existing agreements or, in the ab- 
sence 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) Relie6 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 attaclunent @D 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 

criminal complaint, prosecuted through the civilian Federal 

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. 

(ii) Requireazents. A warrant of attachment 

may be issued only upon probable cause to believe 

that the witness was duly served with a subpoena, 

that the subpoena was issued in accordance with 

these rules, that appropriate fees and mileage were 

tendered to the, witness, that the witness is material, 

that the witness refused or willfully neglected to 

appear at the time and place specified on the subpoena, and that no valid excuse reasonably appears 

for the witness' failure to appear. 

(iii) Form. A warrant of attachment shall be 

written. All documents in support of the warrant of 

attachment shall be attached to the warrant, together 

with the cl~arge sheet and convening orders. 

(iv) Execution. A warrant of attachment may 

be executed by a United States marshal or such 

other person who is not less than 18 years of age as 

the authority issuing the warrant may direct. Only 

such nondeadly force as may be necessary to bring 

the witness before the court-martial or other 

proceeding may be used to execute the warrant. A 

witness attached under this rule shall be brought 

before the court-martial or proceeding without delay 

and shall testify as soon as practicable and be 

released. 

Discussion 

In executing a warrant of attachment, no more force than 

necessary to bring the witness to the court-martial, deposition, or 

court of inquiry may be used. 

(v) Definition For purposes of subsection 

(e)(2)(G) of this rule "military judge" does not include n summary court-martial or the president of a 

special court-martial without a militay judge. 

(f) Right to evidence. 

(1) In general. Each party is entitled to the production of cvidence 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 conmbute 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. Bvid. 505 and 506. 

(2) Unavailable evidence. Notwithstanding subsection (f)(l) of this rule, a party is not entitled to 

the production of evidence wllicl~ is destroyed, lost, 

or otherwise not subject to compulsory process. 

However, if such evidence is of such central importance to an issue that it is essential to a fair trial, and 

if there is no adequate substitute for such evidence, 

the military judge shall grant a continuance or other 

relief in order to attempt to produce the evidence or 

shall abate the proceedings, unless the unavailability 
of the evidence is the fault of or could have been 

prevented by the requesting party. 

(3) Determining what evidence will be produced. 

The procedures in subsection (c) of this rule shall 

apply to a determination of what evidence will be 

produced, except that any defense request for the 

production of evidence shall list the items of evidence to be produced and shall include a description 

of each item sufficie~il 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 Go~~r,ntment. 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) Relie6 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 irnmunity. Two types of immunity may 

be granted under this rule. 

(1) Transactional immunity. A person may be 

granted transactional immunity from trial by courtmartial for one or more offenses under the code. 

(2) Testirnonial 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 iniu~~liation 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)(l) 

of this rule of testimony or statements derived from 

such testimony or statements. 

(c) Authority to grant immunity. Only a general 

court-martial convening authority may grant immunity, and may do so only in accordance with this 

rule. 

Discussion 

Only general court-martial convening authorities are authorized to grant immunity. However, in some circumstances, when a 

person testifies or makes statements pursuant to a promise of 

inununity, 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 court-martial 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 

11-67 
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 tlie Attorney General of the United States or other authority 

designated under 18 U.S.C. 8 6004. 

Discussion 

Wheu 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 oi Lhe 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 tlte code. A general 

court-martial convening authority may grant imrnunity to persons not subject to the code only when 

specifically authorized to do so by the Attorney 

General of the United States or other authority designated under 18 U.S.C. 8 6004. 

Discussion 

See the discussion under subsection (c)(l) of this rule concerning forwarding a request for authorization to grant immunity 

to the Attorney General. 

(3) Otlzer limitations. Tlie authority to grant irnmunity 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 

Departn~ent of defense in furtherance of wch consultation." 

(d) Procedure. A grant of immllnity shall be w~itten 

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 tlie 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 

accused must be notified in accordance with Mil. R. Evid. 

301(c)(2). 

(e) Decision to grant irnnuinity. Unless limited by 

superior competent authority, the decision to grant 

immunity is a niatter within the sole discretion of 

the appropriate general court-martial convening authority. However, if a defense request to immunize a 

witness has been denied, the military judge may, 

upon motion by the defense, grant appropriate relief 

directing that either an appropriate convening authority grant testimonial immunity to a defense witness or, as to the affected charges and specifications, 

the proceedings against the accused be abated, upon 

findings that: 

(1) The witness intends to invoke the right 

against self-incrimination to the extent permitted by 

law if called to testify; and 

(2) The Government has engaged in discrimninatory use of immunity to obtain a tactical advantage, 

or the Government, through its own 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 

11-68 
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 

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 courtsmmial. To ensure that such actions do not preclude appropriate 

action by Federal civilian authorities in cases likely to be prosecuted in the United Statrs 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) Refer the charges to a certain type of 

court-martial; 

(B) Refer a capital offense as noncapital; 

(C) Withdraw one or more charges or specifications from the court-martial; 

Discussion 

A convening authority may withdraw certain specifications 

andlor 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@)(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 bov~.l 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) Tenns 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) Permissible terms or conditiorzs. Subject to 

subsection (c)(l)(A) of this rule, subsection 

(c)(l)(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 conveiling authority as well as during any 

period of suspension of the sentence, provided that 

the requirements of R.C.M. 1109 must be complied 

with before an alleged violation of such terms may 

relieve the convening authority of the obligation to 

fulfill the agreement; and 

(E) A promise to waive procedural requirements such as the Article 32 investigation, the right 

to trial 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) Negotiation. Pretrial agreement negotiations 

inay 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 negotiate with defense counsel unless the accused has 

waived the right to counsel. 

(2) Formal submission. After negotiation, if any, 

under subsection (d)(l) 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 agreemrnt. 

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 exanlple, 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 

voluntarilv and may contain a statement that the accused has been 

advised ol 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 pr-trial agreement or may propose by counteroffer any teims or conditions not prohibited by 

iaw 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) Witlzdrawal. 

(A) By accused. The accused may withdraw 

from a pretrial agreement at an] time; however, the 

accused may withdraw a plea of guilty or a confessional stipulation entered pursuant to a pretrial 

agreement only as provided in R.C.M. 910(h) or 

81 1 (d), respective1 y. 

(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 pronlise or 

condition in the agreement, when inquiry by the 

military judge discloses a disagreement as to a inaterial term in the agreement, or if findings are set 

aside because a plea of guilty entered pursuant to the 

agreement is held iinprovident 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. A 10, 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 

11-70 
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, 

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 K.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 tlie charges are pending 

for disposition. 

(2) After referral. After referral of charges, an 

inquiry into tl~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 cliarges but before beginning 

of the first session of the court-martial (including 

any Article 39(a) session) when the military judge is 

not reasonably available. The military judge may 

order a mental examination of the accused regardless 

of any earlier determination by the convening 

authority. 

(c) Inquiry. 

(1) By whorn 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, tlie order shall contain tlie 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 tl?.! "!~llowing 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 clirlical 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) 1s the accused presently suffering from a 

mental disease or defect rendering the accused unable to understand the nature of the proceedings 

against tlie accused or to cond~~ct 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 tlie board sliall 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 tlie 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 pur11-71 
poses, 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 tile accused; and 

(C) That neither the contents of the full report 

nor any matter considered by the board during its 

investigation shall be released by the board or other 

medical personnel to any person not authorized to 

receive the full report, except pursuant to an order 

by the military judge. 

Discussion 

Based on the report, further action in the case may be 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 exainimtions. Additional examinations may be directed under this rule at any stage of 

the proceedings as circumstances may require. 

(5) Disclosure to trial counsel. No person, other 

than the defense counsel, accused, or, after referral 

of charges, the military judge may disclose to the 

trial counsel any statement made by the accused to 

the board or any evidence derived from such 

statement. 

Discussion 

See Mil. R. Evid. 302. 

Rule 707. Speedy trial 

(a) In general. The accused shall be brought to trial 

within 120 days after tile 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) The imposition of restraint under R.C.M. 

304(a)(2)-(4); or 

(3) Entry on active duty under R.C.M. 204. 

(b) Accountability. 

(1) Zit 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 

at different times, accountability for each charge 

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 wiiich 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 restraiizt. 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 neither proceeded on nor severed under R.C.M. 

908(b)(4), on the date of notice to tilt: parties under 

R.C.M. 908(b)(8) or 908(c)(3), unless it is determined that the appeal was filed solely for the pur11-72 
pose 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. 

(E) Comrititrnent of tlze incornpeterlt accused. 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 convening 

authority, a new 120-day time period under this rule 

shall begin on the date of such return to custody. 

(c) Exclzdable delay. All periods of time during 

which appellate courts have issued stays in the 

proceedings, or the accused is hospitalized due to 

incompetence, or is othewise 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. 

Discussion 

Periods during which the accused is hospitalized due to incompetence or othelwise in the custody of the Attorney Geneal 

are excluded when detenilining speedy trial under this rule. 

(1) Procedure. Prior to referral, all requests for 

pretrial delay, together with supporting reasons, will 

be subnitted 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 de:~y, 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) Renzedy. A failure to comply with the right to a 

speedy trial will result in dismissal of the affected 

charges. Tlis dismissal will be with or without prejudice to the government's right to reinstitute court 

martial proceedings against the accused for the same 

offensc 3t a later date. The charges must be dismissed with prejudice where the accused has been 

deprived of his or her constitutional right to a 

speedy trial. In determining whether to dismiss 

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 reprosecution on the administration of 

justice; and any prejudice to the accused resulting 

from the denial of a speedy trial. 

(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). 
CHAPTER VIII. TRIAL PROCEDURE GENERALLY 


Rule 801. Military judge's responsibilities; 

other matters 

(a) Responsibilities of military judge. The military 

judge is the presiding nfficer in a court-martial. 

Discussion 

The nilitary judge is responsible for ensuring that courtmartial 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) Detennine the time and unifom~ 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)(l), the military judge may also 

determine the place of trial. See also R.C.M. 906(b)(ll). 

(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 iu what order, motions will be litigated (see R.C.M. 905); the manner in which voir 

due 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 ma1 

participants and other matters are normally appropriate. See 

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) Subject to R.C.M. 809, exercise contempt 

power. 

(c) Obtailzing 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 i~v..Wial 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 

the court-martial, the court-martial shall proceed 

with the trial of the offense charged. 

Discussion 

A report of the matter may be made to the convening authority after trial. If charges are preferred for an offense indicated by 

the evidence referred to in this subsection, no member of the 

court-martial 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) Znterlocutoiy qitestioits and questions of law. 

For purposes of this subsection "military judge" 

does not include the president of a special courtmartial without a military judge. 

(1) Rulings by tlze inilitary judge. 

(A) Finality of rulings. Any ruling by the military judge upon a question of law, including a mnotion for a finding of not guilty, or upon any 

interlocutory question is final. 

(B) Clzanging 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 intnlocutory 

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) Clzanging a ruling. The president of a special court-martial without a military judge may 

change a ruling made by that or another president in 

the case except a previously granted motion for a 

finding of not guilty, at any time during the trial. 

(D) Presence of members. Except as provided 

in R.C.M. 505 and 912, all members will be present 

at all sessions of a special court-martial without a 

military judge, including sessions at which questions 

of law or interlocutory questions are litigated. However, the president of a special court-martial without 

a military judge may examine an offered item of real 

or documentary evidence before ding on its admissibility without exposing it to other members. 

(3) Procedures for rulings by the president of a 

special court-martial witlzout a military judge which 

are subject to objection by a meml.w-. 

(A) Detertrzinatiotz. The president of a special 

court-martial without a military judge shall determine whether a ruling is subject to objection. 

(B) Instructions. When a ruling by the president of a special court-martial without a military 

judge is subject to objection, the president shall so 

advise the members and shall give such instructions 

on the issue as may be necessary to enable the 

members to understand the issue and the legal standards by which they will determine it if objection is 

made. 

(C) Voting. When a member objects to a ruling 

by the president of a special court-martial without a 

military judge which is subject to objection, the 

court-martial shall be closed, and the members shall 

vote orally, beginning with the junior in rank, and 

the question shall be decided by a majority vote. A 

tie vote on a motion for a finding of not guilty is a 

determination against the accused. A tie vote on any 

other question is a determination in favor of the 

accused. 

(D) Consultation. The presidcr~t 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 pl-006 Questions of fact in an 

interlocutory question shall be determined by a preponderance of the evidence, unless otherwise stated 

in this Manual. In the absence of a rule in this 

Manual assigning the burden of persuasion, the party 

making the motion or raising the objection shall bear 

the burden of persuasion. 

Discussion 

A ruling on an interlocutory question should be preceded 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 wl.!l 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 

questions arising during trial except the question 

whether a challenge should be sustained. 

Discussion 

Questions of law and interlocutory questions include all issues which arise during trial other than the findings (that is, 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 nonnally 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 detennine 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 findu~g 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 cluestions of fact or questions 

of law. This distinction is important because the president of a 

special court-martial without a military judge rules finally on 

interlocutory questions of law, but not on interlocutory questions 

of fact. On interlocutory questions of fact the president of a 

special court-martial without a military judge rules subject to the 

objection of any other member. On mixed questions of fact and 

law, rulings by the president are subject to objection by any 

member to the extent that the issue of fact can be isolated and 

considered separately. 

(f) Rulings on record. All sessions involving rulings 

or instructions made or given by the military judge 

or the president of a special court-martial without a 

military judge shall be made a part of the record. All 

rulings and instructions shall be made or given in 

open session in the presence of the parties and the 

members, except as otherwise may be determined in 

the discretion of the military judge. For purposes of 

this subsection [R.C.M. 801(f)] "military judge" 

does not include the president of a special courtmartial without a military judge. 

Discussion 

See R.C.M. 808 and 1103 concerning preparation of the 

record of trial. 

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

Failure by a party to raise defenses or objections or 

11-76 
to make requests or motions which must be made at 

the time set by this Manual or by the military judge 

under authority of this Manual, or prior to any extension thereof made by the military judge, shall 

constitute waiver thereof, but the military judge for 

good cause shown may grant relief from the waiver. 

Rule 802. Conferences 

(a) In general. After referral, the military judge 

may, upon request of any party or sua sponte, order 

one or more conferences with the parties to consider 

such matters as will promote a fair and expeditious 

trial. 

Discussion 

Conferences between the military judge and counsel may be 

held when necessary before or during trial. The purpose of such 

conference is to inform the military judge of anticipated issues 

and to expeditiously resolve matters on which the parties can 

agree, not to litigate or decide contested issues. See subsection (c) 

below. No party may be compelled to resolve any matter at a 

conference. 

A conference may be appropriate in order to resolve scheduling difficulties, so that witnesses and members are not unnecessarily inconvenienced. Matters which will ultin~ately 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) Matters on record. Conferences need not be 

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. 

(4Accused'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) Adniissioiz. 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 tile 

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 

counsel, and trial counsel, in accordance with 

R.C.M. 804 and 805, and sl~all 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 wMch 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 

11-77 
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 

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 tile findings, sentencing proceedings, and 

post-trial sessions, if any, except as otherwise provided by this rule. 

(b) Continzied presence not required. The further 

progress of the trial to and including the return of 

the findings and, if necessary, determination of a 

sentence shall not be prevented and the accused 

shall be considered to have waived the right to be 

present whenever an accused, initially present: 

(1) Is voluntarily absent after arraignment 

(whether or not informed by the military judge of 

the obligation to remain during the trial); or 

(2) After being warned by the military judge that 

disruptive conduct will cause the accused to be removed from the courtroom, persists in conduct 

which is such as to justify exclusion from the 

courtroom. 

Discussion 

Express waiver. The accused may expresqly 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. 

Ifohmtary absence. In any case the accused may forfeit the 

right to be present by being voluntarily absent after arraignment. 

"Voluntary absence" means voluntary absence from trial. For 

an absence from court-martial proceedings to be voluntary, the 

accused must have known of the scheduled proceedings and intentionally missed them. For example, although an accused servicemember might voluntarily be absent without authority, this 

would not justify proceeding with a court-martial in the accused's 

absence unless the accused was aware that the court-martial 

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 i,nluntarily 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 disrription. 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 altematives 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 stepsas may be reasonably 

practicable to enable the accused to be informed 

about the proceedings. Although not required, technological aids, such as closed-circuit television or 

audio transmissions, may be used for this purpose. 

(C) Afford the accused a continuing opportunity to re11-78 
turn to the courtroom upon assurance of good behaviot 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. 

(c) Appearance and security of accused. 

(1) Appearance. The accused shall be properly 

attired in the uniform or dress prescribed by the 

military judge. An accused servicemember shall 

wear the insignia of grade and may wear any decorations, emblems, or ribbons to which entitled. The 

accused and defense counsel are responsible for ensuring that the accused is properly attired; however, 

upon request, the accused's conlmander 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 sewicemember 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 

glace in the absence of the military judge, if 

detailed. 

(b) Members. Unless trial is by military judge alone 

pursuant to a request by the accused, no court-martial proceeding may take place in the absence of any 

detailed member except: Article 39(a) sessions under 

R.C.M. 803; examination of members under R.C.M. 

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 

requiring the presence of members may be conducted unless at least 5 members are present and, 

except as provided in R.C.M. 912(h), no special 

court-martial proceeding requiring the presence of 

members may be conducted unless at least 3 members are present. Except as provided in R.C.M. 

503(a)(2), when an enlisted accused has requested 

enlisted members, no proceeding requiring the presence of members may be conducted unless at least 

one-third of the members actually sitting on the 

court-martial are enlisted persons. 

(c) Counsel. As long as at least one qualified counsel for each party is present, other counsel for each 

party may be absent from a court-martial session. 

An assistant counsel who lacks the qualifications 

necessary to serve as counsel for a party may not act 

at a session in the absence of such qualified counsel. 

Discussion 

See R.C.M. 504(,:) 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) Effect of replacement of mernher or military 

judge. 

(1) Members. When after presentation of evidence on the merits has begun, a new member is 

detailed under R.C.M. 505(c)(2)(B), trial may not 

proceed unless the testimony and evidence 

previously admitted on the merits, if recorded verbatim, is read to the new member, or, if not recorded 

verbatim, and in the absence of a stipulation as to 

such testimony and evidence, the trial proceeds as il' 

no evidence has been presented. 

Discussion 

When a new member is detailed, the military judge should 

give such instructions as may be appropriate. See also R.C.M. 

912 concerning voir dire and challenges. 

11-79 
When the court-martial has been reduced below a quorum, a 

mistrial may be appropriate. See R.C.M. 915. 

(2) Military judge. When, after the presentation of 

evidence on the merits hito begun in trial before 

military judge alone, a new military judge is detailed 

under R.C.M. 505(~)(2)trial may not proceed unless 

the accused requests, and the military judge approves, trial by military judge alone, and a verbatim 

record of the testimony and evidence or a stipulation 

thereof is read to the military judge, or the trial 

proceeds as if no evidence had been presented. 

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 diicult 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. In order to maintain the 

dignity and decorum of the proceedings or for other 

good cause, the military judge may reasonably limit 

the number of spectators in, and the means of access 

to, the courtroom, exclude specific persons from the 

courtroom, and close a session; however, a session 

may be closed over the objection of the accused 

only when expressly authorized by another provision 

of this Man~~al. 

Discussion 

The military judge is responsible for protecting both the 

accused's right to and the public's interest in a public trial. The 

military judge must also ensure that the dignity and decorum of 

the proceedings are maintained and that the other rights and 

interests of the parties and society are protected. Public access to 

a session may be limited, and certain persons excluded from the 

courtroom, and, under unusual circumstances, a session may be 

closed. 

A court-martial session is "closed" when no member of the 

public is permitted to attend. A court-martial is not "closed" 

merely because the exclusion of certain individuals results in 

there being no spectators present, so long as the exclusion is not 

so broad as to effectively bar everyone who might attend the 

sessions and is for a proper purpose. Note, however, that exclusion of specific individuals, if unreasonable under the circumstances, may violate the accused's right to a public trial, even 

though other spectators remain. 

Whenever a session is closed, or some of the public is 

excluded, closure or exclusion must be limited in time and scope 

to the minimum necessary to achieve the purpose for which it is 

authorized. Prevention of overcrowding or noise may justify 

limiting access to the courtroom. Disruptive or distracting appearance or conduct may justify excluding certain spectators. Certain 

spectators may be excluded when necessary to protect witnesses 

from harm or intimidation. Access may be reduced when no other 

means is available to relieve inability to testify due to embarrassment or extreme nervousness. 

Under some circumstances, it may be necessary to conduct 

an evidentiary hearing to justify exclusion of some spectators (for 

example, where harm to or intimidation of a witness is the reason 

for the exclusion). 

A session may be closed without the consent of the accused 

only under Mil. R. Evid. 412(c), 505(i) and (j), or 506(i). 

Witnesses will ordinarily be excluded from the courtroom so 

that they cannot hear the testimony of other witnesses. See Mil. 

R. Evid. 615. In addition, witnesses may be instructed no to 

discuss their testin~ony or prospective testimony with anyone except counsel, counsel's agent, or the accused in the case. 

The accused may waive the right to a public trial. The fact 

that the prosecution and defense jointly seek to have some sessions closed does not, however, automatically justify closurp for 

the public has an interest in attending courts-martial. Opening 

courts-martial to public scrutiny reduces the chance of arbitrary or 

capricious decisions and enhances public confidence in the courtmartial process. Absent an ovemding interest articulated in findings, a court-martial must be open to the public. 

The most likely reason for a defense request to close courtmartial proceedings is to minimize the potentially adverse effect 

of publicity on the trial. Thus, for example, a pretrial Article 

39(a) hearing at which the admissibility of a confession will be 

litigated may, under some circumstances, be closed in order to 

prevent disclosure to the public (and hence to potential members) 

of the very evidence that may be excluded. When such publicity 

may be a problem a session should be closed only as a last resort. 

There are other methods of protecting the 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(%)(1). Other 

methods which may occasionally be appropriate and which are 

usually preferable to closing a session include: directing members 

not to read, listen to, or watch any accounts concerning the case; 

directing counsel, witnesses, and other personnel connected with 

the case not to discuss the case with certain persons (see R.C.M. 

801); and selecting members from recent arrivals in the command, or from outside the immediate area (see R.C.M. 503(a)(3)). 

In more extreme cases, the place of trial may be changed (see 

R.C.M. 906(b)(ll)) or members may be sequestered. 

Occasionally the defense and prosecution may agree to request a closed session to enable a witness to testify without fear 

of intimidation or acute embarrassment, or to testify about a 

matter which, while not classified, is of a sensitive or private 

nature. Closure may be appropriate in such cases, but the military 

judge must carefully examine the reasons for the request and 

weigh them against the public's interest in attending cour.ts-martial. Excluding only part of the public may be more appropriate in 

some cases. 

(c) Photography and broadcasting prohibited. 

Video and audio recording and the taking of 

photographs-except for the purpose of preparing 

the record of trial-in the courtroom during the 

proceedings and radio or television broadcasting of 

proceedings from the courtroom shall not be permitted. However, the military judge may, as a matter of 

discretion permit contemporaneous closed-circuit 

video or audio transmission to permit viewing or 

hearing by an accused removed under R.C.M. 804 or 

by spectators when courtroom facilities are inadequate to accommodate a reasonable number of 

spectators. 

Rule 807. Oaths 

(a) Definition. "Oath" includes "affirmation." 

Discussion 

An affirmation is the same as an oath, except in an affiiation the words "so help you God" are omitted. 

(b) Oat11s in courts-martial. 

(1) Who must be sworn. 

(A) Court-nzartial personnel. The military 

judge, members of a general or special court-martial, 

trial counsel, assistant trial counsel, defense counsel, 

associate defense counsel, assistant defense counsel, 

reporter, interpreter, and escort shall take an oath to 

perform their duties faithfully. For purposes of this 

rule, "defense counsel," "associate defense counsel," 

and "assistant defense counsel," include detailed and 

individual military and civilian counsel. 

Discussion 

Article 42(a) provides that regulations of the Secretary 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 whetlier 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 

prefenal of charges. See R.C.M. 405 and 702 concerning the 

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) Oathfor 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) (affum) 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: 

11-81 
"Do ynlr (swear) (affim)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 repor?er. The trial counsel will administer 

the following oath to every reporter of a courtmartial who has not been previously sworn: 

'DOyou (swear) (affirm) that you will faithfully perform the 

duties of reporter to this court-martial (, so help you God)?" 

Q 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) (affi) 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 sewing, take the 

following oath, which will be administered by the 

trial counsel: 

"Do you (swear) (affi) 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) 

( ), except to describe (the place aforesaid) 

( ~__-)(, so help you God)?" 

See Article 136 concerning persons autllorized 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 

bad-conduct discharge (that is, when no qualified reporter is detailed or, absent exigency, military judge is detailed), the trial 

counsel should ensure that a qualified court reporter is detailed to 

the court-martial. Trial counsel should also ensure that all exhibits 

and other documents relating to the case are properly maintained 

for later inclusion in the record. See also R.C.M. 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 arc,) 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 p~oceed 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) In general. Courts-martial may exercise contempt power under Ar!icle 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 fme of $100, or 

both." 

Article 48 makes punishable "direct" contempt, that is, contempt which is committed in the presence of the cowl-martial or 

its imp-diate 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)(l) 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 temtorial 

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 nlay punish for contempt. 

(b) Metliod 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 Izearing. 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 rnay 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, 

the military judge shall conduct the contempt 

proceedings outside the members' presence. The 

military judge may punish summarily under subsection (b)(l) 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) Record; review. A record of the contempt 

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 tlie 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) Informiizg person held in c.vtemnpt. The person 

held in contempt shall be informed by the convening 

authority in writing of the holding and sentence, if 

any, of tlie 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 punishn~ent. 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 fir11 and new or otlzer trials. In 

rehearings which require findings 011 all charges and 

specifications referred to a court-martial and in new 

or other trials, the procedure shall be the same as in 

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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)(l) 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 

trial, except as otherwise provided in this rule. A 

single sentence shall be adjudged for all offenses. 

(b) Composition. 

(1) Members. No member of the court-martial 

which previously heard the case may sit as a member of the court-martial at any rehearing, new trial, 

or other trial of the same case. 

(2) Militav 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 01- 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 fonner proceedings. 

No member may, upon a rehearing or upon a new or 

other trial, examine the record of any former 

proceedings in the same case cxcept: 

(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 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 

"other trial" no sentence limitations apply if the 

original trial was invalid because a summary or special court-martial improperly tried an offense involving a mandatory punishment or one otherwise 

considered capital. 

Discussion 

In 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 tlus 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 aveement, 

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) De$nitio~."Other trial" means another trial of a 

case in which the original proceedings were declared 

invalid because of lack of jurisdiction or failure of a 

charge to state an offense. 

Rule 811. Stipulations 

(a) In general. The parties may make an oral or 

written stipulation to any fact, the contents of a 

document, or the expected testimony of a witness. 

R.C.M.811 (c) 

(b) Autlzority 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 he 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 tl~e military 

judge should inquire to ensure that the accused understands the 

right not to stipulate, understands the stipulntion, 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 

tl~e 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 

11-85 
R.C.M. 910(f). Sce also R.C.M. 705. 

(d) Witlzdrawal. A party may withdraw from an 

agreement to stipulate or from a stipulation at any 

time before a stipulation is accepted; the stipulation 

may not then be avepted. 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. 

If a party is permitted to withdraw from a stipulation 

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. 

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 disti~iction 

between the two. See R.C.M. 906(b)(9) concerning motions to 

sever and other appropriate motions in johit or common trials. 

In a joint or common trial, each accused may be represented 

by separate counsel, make challenges for cause, make peremptory 

challenges (see R.C.M. 912). cross-examine witnesses, elect 

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 thud submits a request for trial 

by military judge alone, which request is approved, three separate 

trials must be conducted. 

In a joint or conunon trial, evidence which is admissible 

against only one or some of the joint or sever::! accused may be 

considered only against the accused concerned. For example, 

when a stipulation is accepted which was made by only one or 

some of the accused, the slipulation does not apply to those 

accused who did not join it. See also Mil. R.Evid. 306. In such 

instances the members must be inshucted 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) The order, including any amendment, by 

which the court-martial is convened; 

(2) The name, rank, and unit or address of the 

accused; 

(3) The name and rank of the military judge, if 

one has been detailed; 

(4) The names and ranks of the members, if any, 

who are present; 

(5) The names and ranks of members who are 

absent, if presence of members is required; 

(6) The names and ranks (if any) of counsel who 

are present; 

11-86 
(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) LQter proceedings. When the court-martial is 

called to order after a recess or adjournment or after 

it has been closed for any reason, the military judge 

shall ensure that the record reflects whether all parties and members who were present at the time of 

the adjournment or recess, or at the time the 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 

appearance of new personnel or personnel 

previously absent or through the absence of personnel previously present, the military judge shall ensure the record reflects the change and the reason for 

it. 
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 

parties, military judge, and members shall be 

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 subsection (b) of this rule, the trial counsel shall 

announce whether the reporter and interpreter, if any 

is present, have been properly sworn. If not sworn, 

the reporter and interpreter, if any, shall be sworn. 

Discussion 

See R.C.M. 807 concerning the oath to be administered 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) Trial counsel. The trial counsel shall announce the legal qualifications and status as to oaths 

of the members of the prosecution and whether any 

member of the prosecution has acted in any manner 

which might tend to disqualify that counsel. 

(2) Defense counsel. The detailed defense counsel 

shall announce the legal qualifications and status as 

to oaths of the detailed members of the defense and 

whether any member of the defense has acted in any 

manner which might tend to disqualify that counsel. 

Any defense counsel not detailed shall state that 

counsel's legal qualifications, and whether that 

counsel has acted in any manner which might tend 

to disqualify the counsel. 

(3) Disqualification. If it appears that any counsel 

may be disqualified, the military judge shall decide 

the matter and take ay,tropriate 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 

by the military judge, and given the opportunity to decide 

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. 51)5(d3(2) and 506(c). 

(4) Inquiry. The military judge shall, in open 

session: 

(A) Inform the accused of the rights to be represented by military counsel detailed to the defense; 

or by individual military counsel requested by the 

accused, if such military counsel is reasonably avail- 
able; and by civilian counsel, either alone or in association with military counsel, if sucll civilian counsel 

is provided at no expense to tlie United States; 

(B) Infonn tlie accused that, if afforded individual niilitary counsel, tlie accused may request retention of detailed counsel as associate counsel, 

which request may be granted or denied in tlie sole 

discretion of tlie authority who detailed tlie counsel; 

(C) Ascertain from the accused whether [lie accused understands these rights; 

(D) Promptly inquire, whenever two or more 

accused in a joint or cornlnon 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 sliall 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 infonn the military 

judge of the n1ntler at an Article 39(n) session so tI1at an appropriate record can be made. 

(E) Ascertain from tlie accused by wliom the 

accused chooses to be represented. 

(5) Uns~vorii COIIIIS~L. Tlie military judge shall administer tlie oath to any counsel not sworn. 

Discussion 

Sce R.C.M. 807. 

(e) Preserlce of meinbers. In cases in which a military judge has been detailed, tlie procedures described in R.C.M. 901 through 903, 904 when 

authorized by the Secretary concerned, and 905 

through 910 sliall be conducted without members 

present in accordance witli 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 wliicli that military 

judge's impartiality might reasonably be questioned. 

(b) Specific grounds. A military judge shall also disqualify himself or herself in tlie following 

circumstances: 

(1) Where tlie military judge lias a personal bias 

or prejudice concerning a party or personal knowledge of disputed evidenti'uy facts concerning tlie 

proceeding. 

(2) Where the military judge llas acted as counsel, investigating officer, legal officer, staff judge 

advocate, or convening authority as to any offense 

charged or in tlie same 'case generally. 

(3) Where tlie military judge lias been or will be 

a witness in the same case, is the accuser, has forwarded charges in tlie case with a personal recommendation as to disposition, or, except in tlie 

performance of duties as military judge in a previous 

trial of tlie same or a related case, has expressed an 

opinion concerning the guilt or innocence of tlie 

accused. 

(4) Wllere tlie 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) Wl~ere tlie military judge, tlie military judge's 

spouse, or a person witliin the tliird degree of relationship to either of tliem or a spouse of such 

person: 

(A) Is a party to the proceeding; 

(B) Is know~l by tlie military judge to have an 

interest, financial or otlienvise, tl~at could be substantially affected by the outcome of tlie proceeding; 

or 

(C) Is to die military judge's knowledge likely 

to be a material witness in the proceeding. 

Discussion 

A n~ilitary judge should inforn~ himself or herself about his 

or her financial interests, and make a reasonable effoforl to inforn~ 

himself or herself about the financial interests of his or l~er spnllse 

and minor children living in his or her housel~old. 
(c) Definitions. For the purposes of this rule the 

following words or phrases shall have the meaning 

indicated-

(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 thud degree of relationship are cl~ildren, 

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-marti.1 without a military judge. 

(d) Procedure. 

(1) The military judge shall, upon motion of any 

party or sua sponte, decide whether the military 

judge is disqualified. 

Discussion 

There is no peremptory challenge against a military judge. A 

military judge should carefully consider whether any of the 

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 disqualif~cation 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 nulitary 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 menzbers. Before the end 

of the initial Article 39(a) session or, in the absence 

of such a session, before assembly, the military 

judge shall ascertain, as applicable, whether an enlisted accused elects to be tried by a court-martial 

including enlisted members. The military judge may, 

as a matter of discretion, permit thc accused to defer 

requesting enlisted members until any time before 

assembly, which time may be determined by the 

military judge. 

(2) Request for trial by military judge alone. 

Before the end of the initial Article 39(a) session, or, 

in the absence of such a session, before assembly. 

the military judge shall ascertain, as applicable, 

whether in a noncapital case, the accused requests 

trial by the military judge alone. The accused may 

defer requesting trial by military judge alone until 

any time before assembly. 

Discussion 

Only an enlisted accused may request that enlisted members 

be detailed to a court-martial. Trial by military judge alone is not 

permitted in capital cases (see R.C.M.201(f)(l)(C)) or in special 

courts-martial in which no military judge has been detailed. 

(b) Fonn of electi~..~ 

(1) Request for enlisted members. A request for 

the membership oi the court-martial to include znlisted 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. 

11-90 
(1) Request for enlisted members. Upon notice of 

a timely request for enlisted members by an enlisted 

accused, the convening authority shall detail enlisted 

members to the court-martial in accordance with 

R.C.M. 503 or prepare a detailed written statement 

explaining why physical conditions or military exigencies prevented this. The trial of the general issue 

shall not proceed until this is done. 

(2) Request for military judge alone. Upon receipt of a timely request for trial by military judge 

alone the military judge shall: 

(A) Ascertain whether the accused has consulted with defense counsel and has been informed 

of the identity of the military judge and of the right 

to trial by members; and 

Discussion 

Ordinarily the military judge should inquire personally of 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) Otlier. 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 judge alone is submitted, the military judge should inquire whether such a request will be made (see subsection (a)(l) 

of this rule) unless these elections are not available to the accused. 

(d) Right to witldraw request. 

(1) Enlisted members. A request for enlisted 

members may be withdrawn by the accused as a 

matter of right any time before the end of the initial 

Article 39(a) session, or, in the absence of such a 

session, before assembly. 

(2) Military judge. A request for trial by military 

judge alone may be withdrawn by the accused as a 

matter of right any time before it is approved, or 

even after approval, if there is a change of the inilitary judge. 

Discussion 

Withdrawal of a request for enlisted members or trial by 

nlilitary 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 nlilitary 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 couttmartial without a military judge. 

Rule 904. Arraignment 

Arraignment shall be conducted in a court-martial 

session and dial1 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). 

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 

judge, written. A motion shall state the grounds 

upon which it is made and shall set forth the ruling 

or relief sought. The substance of a motion, not its 

form or designation, shall control. 

Discussion 

Motions may be motions to suppress [(see R.C.M. 

905(b)(3))]: 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 unswom 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 

unlawful searches and seizures, and eyewitness identification, respectively. Questions concerning the admissibility of evidence on 

other grounds may be raised by objection at trial or by motions in 

liinine. 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 

defense counsel when individual military counsel 

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 exan~ple, 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 

under R.C.M. 707, or the running of the statute of 

limitations, the burden of persuasion shall be upon 

the prosecution. 

(d) Ruling on motions. A motion made before pleas 

are entered shall be determined before pleas are 

entered unless, if otherwise not prohibited by this 

Manual, the military judge for good cause orders 

that determination be deferred until trial of the general issue or after findings, but no such determination shall be deferred if a party's right to review or 

appeal is adversely affected. Where factual issues 

are involved in determining a motion, the military 

judge shall state the essential findings on the record. 

Discussion 

When trial cannot proceed further as the result of dismissal 

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 auton~atic 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 sl~ould 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. 11 14. 

(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. 

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 autilentication of the record of trial, reconsider any ruling, 

other than one amounting to a finding of not guilty, 

made by the military jlldge. 

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 

concendng procedures for post-trial reconsideration. Different 

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 

issue and finally determined by a court-martial, 

reviewing authority, or appellate court which had 

jurisdiction to determine the matter may not be disputed by the United States in any other court-martial 

of the same accused, except that, when the offenses 

charged at one court-martial did not arise out of the 

same transaction as those charged at the court-martial at which the determination was made, a determination of law and the application of law to the facts 

may be disputed by the United States. This 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 

11-93 
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 n~ling which is, or amounts to, 

a finding of not guilty, a ruling ormr~arily is not final until action 

on the court-martial is comi.leted. 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. .Tee, 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 

erroneous, except when the offenses charged at the second 

proceeding arose out of a different transaction from those charged 

at the fust and the ruling at the fust 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 

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 fust 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 fust 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 cou~i--inartial for an unrelated offense, the statement excluded at the fust 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 samts 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 origin:!' specification. 

(h) Written motions. Written motions may be submitted to the military judge after referral and when 

appropriate they may be supported by affidavits, 

with service and opportunity to reply to the opposing party. Such motions may be disposed of before 

arraignment and without a session. Upon request, 

either party is entitled to an Article 39(a) session to 

present oral argument or have an evidentiary hearing 

concerning the disposition of written motions. 

(i) Service. Written motions shall be served on all 

other parties. Unless otherwise directed by the military judge, the service shall be made upon counsel 

for each party. 

(j)Application to convening autlzority. Except as 

otherwise provided in this Manual, any matters 

which may be resolved upon motion without trial of 

the general issue of guilt may be submitted by a 

party to the convening authority before trial for decision. Submission of such matter to the convening 

authority is not, except as otherwise provided in this 

Manual, required, and is, in any event, without prejudice to the renewal of the issue by timely motion 

before the military judge. 

(k) Production of statements on motion to suppress. 

Except as provided in this subsection, R.C.M. 914 

shall apply at a hearing on a motion to suppress 

evidence under subsection (b)(3) of tlus 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 relie8 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 continuauce should be 

granted is a matter within the discretion of the military judge. 

Reasons for a continuance may include: insufficient opportunity 

to prepare for tial; 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 coullsel was 

granted. If a request for military counsel was denied, 

which denial was upheld on appeal (if available) or 

if a request to retain detailed counsel was denied 

when the accused is represented by individual military counsel, and if the accused so requests, the 

military judge shall ensure that a record of the matter is included in the record of trial, and may make 

findings. The trial counsel may request a continuance to inform the convening authority of those 

findings. The military judge may not dismiss the 

charges or otherwise effectively prevent further 

proceedings based on this issue. However, the militan1 judge may grant reasonable continuances until 

the requested military counsel can be made available 

if the unavailability results from temporary conditions or if the decision of unavailability is in the 

process of review in administrative channels. 

(3) Correction of defects in the Article 32 investigation or pretrial advice. 

Discussion 

See R.C.M. 405; 406. If the motion is granted. the military 

judge should ordinarily grant a continuance so the defect may be 

corrected. 

(4) Amendment of charges or specifications. A 

charge or 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 

striking surplusage, or substituting or adding new language. 

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 sepwote, nor is a continuing offense involving several separate acts. 'fie 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 pennits. 

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 tl~e 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 

11-95 
a specification which is otherwise not legally sufficient. 

(7) Discovery and production of evidence and 

witnesses. 

Discussion 

See R.C.M. 701 concerning discovery. See R.C.M. 703, 914 

and 1001(e) concerning production of evidence and wituesses. 

(8) Relief from pretrial confinement in violation 

of R.C.M. 305. 

Discussion 

See R.C.M. 3050). 

(9) Severance of multiple accused, if it appears 

that an accused or the Government is prejuuiced 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 join1 or common 

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)(l). 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 

court-martial. 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 comp~llsnry 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) Detemination 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) col~cen~inq dismissal 

of charges on grounds of multiplicity. 

A ruling on this motion ordinarily should be deferred until 

after findings are entered. 

(13) Preliminary ruling on admissibility of 

evidence. 

Discussion 

See Mil. R. Evid. 101(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). 

11-96 
(14) Mi iions relating to mental capacity or responsibility of the accused. 

Discussion 

See R.C.M. 706, 909, and 9160 regarding procedures and 

standards concerning the mental capacity or responsibility of the 

accused. 

Rule 907. Motions to dismiss 

(a) In general. A motion to dismiss is a request to 

terminate further proceedings as to one or more 

charges and specifications on grounds capable of 

resolution without trial of the general issue of guilt. 

Discussion 

Dismissal of a specification terminates the proceeding with 

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)(l) 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 

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 linutalions 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 

time. Article 43(g) allows the government time to reinstate 

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. 

i'or 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. 

11-97 
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 without trial of a deserter by a general court-martial 

convening authority who knew of the desertion; or 

(iv) Prior punishment under Articles 13 or 

15 for the same offense. if that offense was minor. 

Discussion 

See Articles 13 and 15(f). See paragraph le of Part V for a 

defhtion of 'minor" offenses. 

(3) Permissible grounds. A specification may be 

dismissed upon timely motion by the accused if: 

(A) The specification is so defective that it 

substantially misled the accused, and the military 

judge finds that, in the interest of justice, trial should 

proceed on remaining charges and specifications 

without undue delay; or 

(B) The specification is multiplicious with another specification, is unnecessary to enable the 

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)(l)(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. Iii 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 wit11 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 mformation. 

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 wit11 respect to the charge or specification. 

(b) Procedure. 

(1) Delay. After an order or ruling which may be 

subject to an appeal by the United States, the court- 
martial may not proceed, except as to matters unaffected by the ruling or order, if the trial counsel 

requests a delay to determine whether to file notice 

of appeal under this rule. Trial counsel is entitled to 

no more than 72 hours under this subsection. 

(2) Decision to appeal. The decision whether to 

file notice of appeal under this rule shall be made 

within 72 hours of the ruling or order to be appealed. If the Secretary concerned so prescribes, the 

trial counsel shall not file notice of appeal unless 

authorized to do so by a person designated by the 

Secretary concerned. 

(3) Notice of appeal. If the United States elects to 

appeal, the trial counsel shall provide the military 

judge with written notice to this effect not later than 

72 hours after the ruling or order. Such notice shall 

identify the ruling or order to be appealed and the 

charges and specifications affected. Trial counsel 

shall certify that the appeal is not taken for the 

purpose of delay and (if the order or ruling appealed 

is one which excludes evidence) that the evidence 

excluded is substantial proof of a fact material in the 

proceeding. 

(4) Effect on the court-martial. Upon written notice to the military judge under subsection (b)(3) of 

this 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 

of the military judge, at any point in the 

proceedings; 

(B) When trial on the merits has not begun, 

(i) a severance may be granted upon request 

of all the parties; 

(ii) a severance may be granted upon request 

of the accused and when appropriate under R.C.M. 

906(b)(lO); or 

(C) When trial on the merits has begun but has 

not been completed, a party may, on that party's 

request and in the discretion of the military judge, 

present further evidence on the merits. 

(5) Record. Upon written notice to the military 

judge under subsection (b)(3) of this rule, trial counsel shall cause a record of the proceedings to be 

prepared. Such record shall be verbatim and complete to the extent necessary to resolve the issues 

appealed. R.C.M. 1103(g), (h), and (i) shall apply 

and the record shall be authenticated in accordance 

with R.C.M. 1104(a). The military judge or the 

Court of Criminal Appeals lnay 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, 

ir' 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 confinerneizt 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 confined pending the outcome of an appeal by the 

United States, should consider the same factors 

which would authorize the imposition of pretrial 

bonfinement under R.C.M. 305@1)(2)(B). 

(c) Appellate proceedings. 

(1) Appellate counsel. The parties shall be represented before appellate courts in proceedings under 

this rule as provided in R.C.M. 1202. Appellate 

Government counsel shall diligently prosecute an 

appeal under this rule. 

(2) Court of Crirninal 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 derision of Court of Crimi11-99 
nal 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 

the decision of the Court of Criminal Appeals 

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 

Supreme Court, unless either court orders the 

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) Military judge. For purposes of this rule, 

"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 

court-martial if that person is presently suffering 

from a mental disease or defect rendering him or her 

mentally incompetent to the extent that he or she is 

unable to understand the nature of the proceedings 

against 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 

11-100 

to have the capacity to stand trial unless the contrary 

is established. 

(c) Deterininution 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 tlie Attorney General. If the general courtmartial convening authority does not concur, that 

al~thority 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 afer 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 diseasc or defect that renders him or her 

mentally incompetent to stand trial, the military 

judge shall conduct a hearing to determine the mental capacity of the accused. Any such hearing shall 

be conducted in accordance with paragraph (e) of 

this rule. 

(e) Incompetence detenni~zation 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 

case. In making this determination, tlie military 

judge is not bound by tlle niles 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 au- 
thority, 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 tlie 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; 

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 N, 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) Coiulitioiuzl 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, un further review or appeal, to 

review of the adverse determination of any specified 

pretrial motion. If the accused prevails on further 

review or appeal, the accused shall be allowed to 

withdraw the plea of guilty. The Secretary concerned may prescribe who may consent for 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 militay judge shall address the accused 

personally and inform the accused of, and determine 

that the accused understands, the following: 

(1) The nature of tlie 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 ac- 
cused 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 

right to confront and cross-examine witnesses 

against the accused, and the right against self-incrimination; 

(4) That if the accused pleads guilty, there will 

not be a trial of any kind as to those offenses to 

which the accused has so pleaded, so that by pleading guilty the accused waives the rights described in 

subsection (c)(3) of this Rule; and 

(5) That if the accused pleads guilty, the military 

judge will question the accused about the offenses to 

which the accused has pleaded guilty, and, if the 

accused answers these questions under oath, on the 

record, and in the presence of counsel, the accused's 

answers may later be used against the accused in a 

prosecution for perjury or false statement. 

Discussion 

The advice in subsection (5) is inapplicable in a court-martial in which the accused is not represented by counsel. 

(d) Ensuring that the plea is volrintary. The military 

judge shall not accept a plea of guilty without first, 

by addressing the accused personally, determining 

that the plea is voluntary and not the result of force 

or threats or of promises apart from a plea agreement under R.C.M. 705. The military judge shall 

also inquire whether the accused's willingness to 

plead guilty results from prior discussions between 

the convening authority, a representative of the convening authority, or trial counsel, and the accused or 

defense counsel. 

(e) Determining accuracy of plea. The military 

judge shall not accept a plea of guilty without making such inquiry of the accused as shall satisfy the 

military judge that there is a factual basis for the 

plea. The accused shall be questioned under oath 

about the offenses. 

Discussion 

A plea of guilty must be in accord with the truth. Before the 

plea is accepted, the accused must adnut 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 har trial for 

the offense, the military judge should not accept a plea of guilty 

to it without an affirmative waiver hy 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 Lo 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 military judge shall require disclosure of the entire 

agreement before the plea is accepted, provided that 

in trial before military judge alone the military judge 

ordinarily shall not examine any sentence limitation 

contained in the agreement until after the sentence 

of the court-martial has been announced. 

(4) Inquiry. The military judge shall inquire to 

ensure: 

(A) That the accused understands the agreement; and 

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(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) hter action. 

(1) Withdrawal by the accused. If after acceptance of the plea but before the sentence is announced 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. 

If after findings but before the sentence is announced the accused makes a statement to the courtmartial, in testimony or otherwise, or presents evidence which is inconsistent with a plea of guilty on 

which a finding is based, the military judge shall 

inquire into the providence of the plea. If, following 

such inquiry, it appears that the accused entered the 

plea improvidently or through lack of understanding 

of its meaning and effect a plea of not guilty shall 

be entered as to the affected charges and 

spccifications. 

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 

parts of a pretrial agreement which were not 

previously examined by the military judge. If the 

military judge determines that the accused does not 

understand the material terms of the agreement, or 

that the parties disagree as to such terms, the military judge shall conform, with the consent of the 

Government, the agreement to the accused's understanding or permit the accused to withdraw the plea. 

Discussion 

See subsection (f)(3) of this mle. 

(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 courtmartial 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 

11-103 
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 courtmartial 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 

such a request previously approved (see Article 16; 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)(l); R.C.M. 903(a)(l)(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, 

when available, major areas of study, name of 

school or institution, years of education, and degrees 

received; 

(G) Current unit to which assigned; 

(H) Past duty assignments; 

(I) Awards and decorations received; 

(J) Date of rank; and 

(K) Whether the member has acted as accuser, 

counsel, investigating officer, convening authority, 

or legal officer or staff judge advocate for the convening authority in the case, or has forwarded the 

charges with a recommendation as to disposition. 

Additional information may be requested with the 

approval of the military judge. Each member's responses to the questions shall be written and signed 

by the member. 

Discussion 

Using questionnaires before trial may expedite voir dire 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)@)(iv) and (b)(3)(B). 

(2) Other materials. A copy of any written 

materials considered by the convening authority in 

selecting the members detailed to the court-martial 

shall be provided to any party upon request, except 

that such materials pertaining solely to persons who 

were not selected for detail as members need not be 

provided unless the military judge, for good cause, 

so directs. 

(b) Challenge of selection 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)(l) of this rule containing an offer of proof of 

matters which, if true, would constitute improper 

selection of members, the moving party shall be 

entitled to present evidence, including any written 

materials considered by the convening authority in 

selecting the members. Any other party may also 

present evidence on the matter. If the military judge 

determines that the members have been selected improperly, the military judge shall stay any proceedings requiring the presence of members until 

members are properly selected. 

(3) Waiver. Failure to make a timely motion 

under this subsection shall waive the improper selection unless it constitutes a violation of R.C.M. 

501(a), 502(a)(l), or 503(a)(2). 
(c) Statiitg grounds for challenge. The trial counsel 

shall state any ground for challenge for cause 

against any member of which the trial counsel is 

aware. 

(d) Examination of members. The military judge 

may permit the parties to conduct the examination of 

members or may personally conduct the examination. In the latter event the military judge shall permit the parties to supplement the examination by 

such further inquiry as the military judge deems 

proper or the military judge shall submit to the 

members such additional questions by the parties as 

the military judge deems proper. A member may be 

questioned outside the presence of other members 

when the military judge so directs. 

Discussion 

Examination of the members is called "voir dire." If the 

members have not already been placed under oath for the purpose 

of voir dire (see R.C.M.8M(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, however, not to disclose information in the presence of other 

members which might disqualify them. 

(e) Evidence. Any party may present evidence relating to whether grounds for challenge exist against a 

member. 

(f) Clzallenges and removal for cause. 

(1) Grounds. A member shall be excused for 

cause whenever it appears that the member: 

(A) Is not competent to serve as a member under 

Article 25(a), (b), or (c); . 

@) 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; 

(1) Has forwarded charges in the case with a personal recommendation as to disposition; 

(J) Upon a rehearing or new or other trial of the 

case, was a member of the court-martial which heard 

the case before; 

(K) Is junior to the accused in grade or rank, 

unless it is established that this could not be 

avoided; 

(L) Is in arrest or confinement; 

(M) Has informed or expressed a definite opinion 

as to the guilt or innocence of the accused as to any 

offense charged; 

(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 

opinion concerning an appropriate sentence for the offenses 

charged. 

(2) When made. 

(A) Upon completion of examination. Upon 

completion of any examination under subsection (d) 

of this rule and the presentation of evidence, if any, 

on the matter, each party shall state any challenges 

for cause it elects to make. 

(B) Other times. A challenge for cause may be 

made at any other time during trial when it becomes 

apparent that a ground for challenge may exist. Such 
examination of the member and presentation of evidence as may be necessary may be made in order to 

resolve the matter. 

(3) Procedure. Each party shall be permitted to 

make challenges outside the presence of the members. The party making a challenge shall state the 

grounds for it. Ordinarily the trial counsel shall enter 

any challenges for cause before the defense counsel. 

The military judge shall rule finally on each challenge. When a challenge for cause is granted, the 

member concerned shall be excused. The burden of 

establishing that grounds for a challenge exist is 

upon the party making the challenge. A member 

successfully challenged shall be excused. 

(4) Waiver. The grounds for challenge in subsection (f)(l)(A) of this rule may not be waived except 

that membership of enlisted members in the same 

unit as the accused may be waived. Membership of 

enlisted members in the same unit as the accused 

and any other ground for challenge is waived if the 

party knew of or could have discovered by the exercise of diligence the ground for challenge and failed 

to raise it in a timely manner. Notwithstanding the 

absence of a challenge or waiver of a challenge by 

the parties, the military judge may, in the interest of 

justice, excuse a member against whom a challenge 

for cause would lie. When a challenge for cause has 

been denied, failure by the challenging party to exercise a peremptory challenge against any member 

shall constitute waiver of further consideration of the 

challenge upon later review. However, when a challenge for cause is denied, a peremptory challenge by 

the challenging party against any member shall preserve the issue for later review, provided that when 

the member who was unsuccessfully challenged for 

cause is peremptorily challenged by the same party, 

that party must state that it would have exercised its 

peremptory challenge against another member if the 

challenge for cause had been granted. 

Discussion 

See nlso Mil. R. Evid. 606(b) when a member may be a 

witness. 

(g) Peremptory challenges. 

(1) Procedure. Each party may challenge one 

member peremptorily. Any member so challenged 

shall be excused. No party may be required to exercise a peremptory challenge before the examination 

of members and determination of any challenges for 

cause has been completed. Ordinarily the trial counsel shall enter any peremptory challenge before the 

defense. 

Discussion 

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 challenge when properly called upon to do so shall 

waive the right to make such a challenge. The military judge may, for good cause shown, grant relief 

from the waiver, but a peremptory challenge may 

not be made after the presentation of evidence 

before the members has begun. However, nothing in 

this subsection shall bar the exercise of a previously 

unexercised peremptory challenge 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 COG-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 chal- 
lenged, the next senior member shall act as president 

for purposes of deciding the challenge. 

(i) Definitions. 

(1) Military judge. For purpose of this rule, 

"military judge" does not include the president of a 

special court-martial without a military judge. 

(2) Witness. For purposes of this rule, "witness" 

includes one who testifies at a court-martial and 

anyone whose declaration is received in evidence for 

any purpose, including written declarations made by 

affidavit or otherwise. 

Discussion 

For example, a person who by certificate has attested or 

otherwise authenticated an ofticial record or other writing introduced in evidence is a witness. 

(3) Investigating ofleer. 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) Prelilninary 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 

the specification. See R.C.M. 910(g), Discussion and R.C.M. 

920(e), Discussion, paragraph 3. 

(b) Opening statements. Each party may make one 

opening statement to the court-martial before presentation of evidence has begun. The defense may elect 

to make its statement after the prosecution has rested, before the presentation of evidence for the defense. The military judge may, as a matter of 

discretion, permit the parties to address the courtrnartial 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) Presentation of evidence for the 

prosecution; 

(B) Presentation of evidence for the defense; 

(C) Presentation of prosecution evidence in 

rebuttal; 

(D) Presentation of defense evidence in 

surrebuttal; 

(E) Additional rebuttal evidence in the discretion of the military judge; and 

(F) Presentation of evidence requested by the 

military judge or members. 

Discussion 

See R.C.M. 801(a) and Mil. R. Evid. 61 1 concerning control 

by the military judge over the order of proceedings. 

(2) Taking testimony. The testimony of witnesses 

shall be taken orally in open session, unless otherwise provided in this Manual. 

Discussion 

Each witness must testify under oath. See R.C.M. 

807(b)(l)(B); Mil. R. Evid. 603. After a wimess 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 cross-examination 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 

11-107 
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) Views and inspections. The military judge 

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. 

(5) Reopening case. The military judge may, as a 

matter of discretion, permit a party to reopen its case 

after it has rested. 

Rule 914. Production of statements of 

witnesses 

(a) Motion for production. After a witness other 

than the accused has testified on direct examination, 

the military judge, on motion of a party who did not 

call the witness, shall order the party who called the 

witness to produce, for examination and use. by the 

moving party, any statement of the witness that relates to the subject matter concerning which the witness has testified, and that is: 

(1) In the case of a witness called by the trial 

counsel, in the possession of the United States; or 

(2) In the case of a witness called by the defense, 

in the possession of the accused or defense counsel. 

Discussion 

See also R.C.M. 701 (Discovery). 

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) Production of excised statement. If the party 

who called the witness claims that the statement 

contains matter that does not relate to the subject 

matter concerning which the witness has testified, 

the military judge shall order that it be delivered to 

the military judge. Upon inspection, the military 

judge shall excise the portions of the statement that 

do not relate to the subject matter concerning which 

the witness has testified, and shall order that the 

statement, with such material excised, be delivered 

to the moving party. Any portion of a statement that 

is withheld from an accused over objection shall be 

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 substantially verbatim recital of an oral 

statement made by the witness that is recorded contemporaneously with the making of the oral statement and contained in a stenographic, mechanical, 

electrical, or other recording or a transcription thereof; or 

(3) A statement, however taken or recorded, or a 

transcription thereof, made by the witness to a Federal grand jury. 

Rule 915. Mistrial 

(a) In general. The military judge may, as a matter 

of discretion, declare a mistrial when such action is 

manifestly necessary in the interest of justice because of circumstances arising during the proceedings which cast substantial doubt upon the fairness 

of the proceedings. A mistrial may be declared as to 

some or all charges, and as to the entire proceedings 

or as to only the proceedings after findings. 

Discussion 

' The power to grant a mistrial should be used with great 

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 members engage in prejudicial misconduct. Also a mistrial 

is 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 also R.C.M.905(g) concerning the effect of rulings in one 

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) Furtlzer proceedings. A declaration of a mistrial shall not prevent trial by another court-martial 

on the affected charges and specifications except 

when the mistrial was declared after jeopardy attached and before findings, and the declaration was: 

(A) An abuse of discretion and without the 

consent of the defense; or 

(B) The direct result of intentional 

prosecutorial misconduct designed to necessitate a 

mistrial. 

Rule 916. Defenses 

(a) In general. As used in this rule, "defenses" includes any special defense which, although not denying that the accused committed the objective acts 

constituting the offense charged, denies, wholly or 

partially, criminal responsibility for those acts. 

Discussion 

Special defenses are also called "affirmative defenses." 

"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 

11-109 
good character, see Mil. R. Evid. 404(a)(l). See R.C.M. 701(b)(l) 

concerning notice of alibi. 

(b) Burden of pro06 Except for the defense of lack 

of mental responsibility and the defense of mistake 

of fact as to age as described in Part N,para. 

45c.(2) in a prosecution of 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. 

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. 9?0(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 unlaw11-110 

ful 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 @) 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 

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 

did not actually apply or attempt to apply such 
means or force as would be likely to cause death or 

grievous bodily harm. 

Discussion 

The principles in the discussion of subsection (e)(l) of this 

rule concerning reasonableness of the apprehension of bodily 

harm apply here. 

If, as a result of the accused's offer of a means or force 

likely to produce grievous bodily harm, the victim was killed or 

injured unintentionally by the accused, this aspect of 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)(l) or (2) of this rule that the 

accused: 

(A) Apprehended, upon reasonable grounds, 

that bodily harm was about to be inflicted wrongfully on the accused; and 

(B) Believed that the force 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)(l) ap 

ply 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)(l), (2), and (3) of this rule shall not apply 

if the accused was an aggressor, engaged in mutual 

combat, or provoked the attack which gave rise to 

the apprehension, unless the accused had withdrawn 

in good faith after the aggression, combat, or provocation and before the offense alleged occurred. 

Discussion 

A person does not become an aggressor or provocator 

merely because that person approaches another to seek an interview, even if the approach is not made in a friendly manner. For 

example, one may approach another and demand an explanation 

of offensive words or redress of a complaint. If the approach is 

made in a nonviolent manner, the right to 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 hann 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)(l) through (4) of this rule 

apply to defense of another. It is a defense to homicide, attempted homicide, assault with intent to kill, 

or any assault under Article 90, 91, or 128 that the 

accused acted in defense of another, provided that 

the accused may not use more force than the person 

defended was lawfully entitled to use under the 

circumstances. 

Discussion 

The accused acts at the accused's peril when defending 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, unbelmownst to the accused, the 

apparent victim was in fact the aggressor and not entitled to use 

self-defense. 

(f) Accident. A death, injury, or other event which 

occurs as the unintentional and unexpected result of 

doing a lawful act in a lawful manner is an accident 

and excusable. 

Discussion 

The defense of accident is not available when the act which 

caused the death, injury, or event was a negligent act. 

(g) Entrapment. It is a defense that the criminal 

design or suggestion to commit the offense originated in the Government and the accused had no 

predisposition to commit the offense. 

Discussion 

The "Government" includes agents of the Government 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. 

11-1 11 
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 

innocent person would be immediately killed or 

would immediately suffer serious bodily injury if the 

accused did not commit the act. The apprehension 

must reasonably continue throughout the commission of the act. If the accused has any reasonable 

opportunity to avoid committing the act without subjecting the accused or another innocent person to the 

ham 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. 

0) 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 

other element requiring only general intent or 

knowledge, the ignorance or mistake must have existed in the mind of the accused and must have been 

reasonable under all the circumstances. However, if 

the accused's knowledge or intent is immaterial as 

to an element, then ignorance or mistake is not a 

defense. 

(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 

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. 

Examples of offenses in which the accused's intent or 

knowledge is immaterial include: carnal knowledge (if the victim 

is under 12 years of age, knowledge or belief as to age is imrnaterial) and improper use of countersign (mistake as to authority of 

person to whom disclosed not a defense). However, such ignorance or mistake may be relevant in extenuation and mitigation. 

See subsection 0)(1) of this rule concerning ignorance or 

mistake of law. 

(k) Luck of mental responsibility. 

(1) Luck of mental responsibility. It is an affmative 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. See also R.C.M. 

909 conceming the capacity of the accused to stand trial. 

(2) Partial mental responsibility. A mental condition not amounting to a lack of mental responsibility 

under subsection (k)(l) of this rule is not a defense, 

nor is evidence of such a mental condition admissible as to whether the accused entertained a state of 

mind necessary to be proven as an element of the 

offense. 

(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 

presumption continues throughout the proceedings unless the 

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 ~1-

ings of the president of a special court-martial without a military 

judge. 

If an inquiry is directed, priority should be given to it. 

(C) Detennination. The issue of mental responsibility shall not be considered as an interlocutory 

question. 

(1) 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 oflicial 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. 

(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. 

(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 

11-114 

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) General findings. The general findings of a 

court-martial state whether the accused is guilty of 

each offense charged. If two or more accused are 

tried together, separate findings as to each shall be 

made. 

(1) As to a specijication. 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 substifutions. 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 cow-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 factfider 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)(l)(C). 

(2) As to a cltarge. General findings as to 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 hd 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); 

3210 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 properly before the court-martial on the merits of the 

case may be considered. A finding of guilty of any 

offense may be reached only when the factfinder is 

satisfied that guilt has been proved beyond a reasonable doubt. 

Discussion 

Direct evidence is evidence which tends directly to prove or 

disprove a fact in issue (for example, an element of the offense 

charged). Circumstantial evidence is evidence which tends 

directly to prove not a fact in issue but some other fact or 

circumstance from which, either alone or together with other facts 

or circumstances, one may reasonably infer the existence or nonexistence of a fact in issue. There is no general rule for determining or comparing the weight to be given to direct or 

circumstantial evidence. 

A reasonable doubt is a doubt based on reason and common 

sense. A reasonable doubt is not mere conjecture; it is an honest, 

conscientious doubt suggested by the evidence, or lack of it, in 

the case. An absolute or mathematical certainty is not required. 

The rule as to reasonable doubt extends to every element of the 

offense. It is not necessary that each particular fact 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 witnesses. A fact finder may properly believe one witness and 

disbelieve others whose testimony conflicts with that of the one. 

A factfinder may believe part of the testimony of a witness and 

disbelieve other parts. 

Findings of guilty may not be based solely on the testimony 

of a witness other than the accused which is self-contradictory, 

unless the contradiction is adequately explained by the witness. 

Even if apparently credible and corroborated, the testimony of an 

accomplice should be considered with great caution. 

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 

11-115 
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 u~ebutted 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 tesw 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 military judge begins to instruct the members on 

findings shall constitute waiver of the objection. 

Discussion 

If an objection that an argument is improper is sustained, 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. 

(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 

action on such requests before their closing 

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) How given. Instructions on findings shall be 

given orally on the record in the presence of all 

parties and the members. Written copies of the instructions, or, unless a party objects, portions of 

them, may also be given to the members for their 

use during deliberations. 

Discussion 

A copy of any written instructions delivered to the members 

should be marked as an appellate exhibit. 
(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 

as to age in a carnal knowledge 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.] 

(6) Directions on the procedures under R.C.M. 

921 for deliberations and voting; and 

(7) Such other explanations, descriptions, or directions as may be necessary and which are properly 

requested by a party or which the military judge 

determines, sua sponte, should be given. 

Discussion 

A matter is "in issue" when some evidence, without regard 

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 that offense 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 fmdings 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) Deliberations. Deliberations properly include 

full and free discussion of the merits of the case. 

Unless otherwise directed by the military judge, 

members may take with them in deliberations their 
notes, if any, any exhibits admitted in evidence, and 

any written instructions. Members may request that 

the court-martial be reopened and that portions of 

the record be read to them or additional evidence 

introduced. The military judge may, in the exercise 

of discretion, grant such 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) Death penalty mandatory. A finding of 

guilty of an offense for which the death penalty is 

mandatory results only if all members present vote 

for a finding of guilty. 

Discussion 

Article 106 is the only offense under the code for which the 

death penalty is 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) Acquittal. If fewer than two-thirds of the 

members present vote for a finding of guilty+r, 

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)(l), the 

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 

11-118 

a majority of the members present concur that the 

accused has proven lack of mental responsibility by 

clear and convincing evidence, a finding of not 

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. Metnbers shall not vote on 

a lesser included offense unless a finding of not 

guilty of the offense charged has been reached. If a 

finding of not guilty of an offense charged has been 

reached the members shall vote on each included 

offense on which they have been instructed, in order 

of severity beginning with the most severe. The 

members shall continue 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 order of voting on several specifications under a 

charge or on several charges shall be determined by 

the president unless a majority of the members 

object. 

(B) Counting votes. The junior member shall 

collect the ballots and count the votes. The president 

shall check the count and inform the other members 

of the result. 

Discussion 

Once findings have been reached, they may be reconsidered 

only in accordance with R.C.M.924. 

(d) Action after findings are reaclzed. After the 

members have reached findings on each charge and 

specification before them, the court-martial shall be 

opened and the president shall inform the military 

judge that findings have been reached. The military 

judge may, in the presence of the parties, examine 
any writing which the president intends to read to 

announce the 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 fmding 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 

unanimous with respect to a capital offense, the 

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 

unless the prior finding was announced as 

unanimous. 

Discussion 

If the findings announced are ambiguous, the military judge 

should seek clarification. See also R.C.M.924.A nonunanimous 

finding of guilty as to a capital offense may be reconsidered, but 

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 

must be discovered and the new announcement 

made before the final adjournment of the court-martial in the case. 

Discussion 

See R.C.M.1102 concerning the action to be taken if the 

error in the announcement is discovered after final adjournment. 

(e) Polling prohibited. Except as provided in Mil. 

R. Evid. 606, members may not be questioned about 

their deliberations and voting. 

Rule 923. Impeachment of findings 

Findings which are proper on their face may be 

impeached only when extraneous prejudicial information was improperly brought to the attention of a 

member, outside influence was improperly brought 

to bear upon any member, or unlawful command 

influence was brought to bear upon any member. 

Discussion 

Deliberations of the members ordinarily are not subject to 

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 lor 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 

inquiry will be conducted and whether a finding has been 

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 

11-1 19 
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 finding requires reconsideration. Any finding of not 

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. 
CHAPTER X. SENTENCING 


Rule 1001. Presentencing procedure 

(a) In general. 

(1) Procedure. After findings of guilty have been 

announced, the prosecution and defense may present 

matter pursuant to this rule to aid the court-martial 

in determining an appropriate sentence. Such matter 

shall ordinarily be presented in the following 

sequence--

(A) Presentation by trial counsel of: 

(i) service data relating to the accused taken 

from the charge sheet; 

(ii) personal data relating to the accused and 

of the character of the accused's prior service as 

reflected in the personnel records of the accused; 

(iii) evidence of prior convictions, military 

or civilian; 

(iv) evidence of aggravation; and 

(v) evidence of rehabilitative potential. 

(B) Presentation by the defense of evidence in 

extenuation or mitigation or both. 

(C) Rebuttal. 

(D) Argument by the trial counsel on sentence. 

(E) Argument by the defense counsel on 

sentence. 

(F) Rebuttal arguments in the discretion of the 

military judge. 

(2) Adjudging sentence. A sentence shall be adjudged in all cases without unreasonable delay. 

(3) Advice and inquiry. The military judge shall 

personally inform the accused of the right to present 

matters in extenuation and mitigation, including the 

right to make a sworn or 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) Service data from the charge sheet. Trial 

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 sewice 

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 document as inaccurate or incomplete in a specified 

respect, or as containing matter that is not admissible under the Military Rules of Evidence, the matter 

shall be determined by the military judge. Objections not asserted are waived. 

(3) Evidence of prior convictions of tlte accused. 

(A) In general. The trial counsel may introduce 

evidence of military or civilian convictions of the 

accused. For purposes of this rule, there is a "conviction" in a court-martial case when a sentence has 

been adjudged. 

Discussion 

A vacation of a suspended sentence (see R.C.M.1109) is 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. 

(B) Pendency of appeal. The pendency of an 

appeal therefrom does not render evidence of a conviction inadmissible except that a conviction by 

summary court-martial or special court-martial without a military judge may not be used for purposes of 

this rule until review has been completed pursuant to 

Article 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) Evidence in aggravation. The trial counsel 

may present evidence as to any aggravating circumstances directly relating to or resulting from the offenses of which the accused has been found guilty. 

Except in capital cases a written or oral deposition 

taken in accordance with R.C.M. 702 is admissible 

in aggravation. 

Discussion 

Evidence in aggravation may include evidence of financial, 

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. 

See also R.C.M.1004 concerning aggravating circumstances 

in capital cases. 

(5) Evidence of rehabilitative potential. 

Rehabilitative potential refers to the accused's potential to be restored, through vocational, correctional, or therapeutic training or other corrective 

measures to a useful and constructive place in 

society. 

(A) In general. The trial counsel may present, 

by testimony or oral deposition in accordance with 

R.C.M. 702(g)(l), 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. 

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 tesafying as an expert. 

The types of information and knowledge reflected in this subparagraph are illustrative only. 

(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 offenses 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 tlie 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. 

Discussion 

On direct examination, a witness or deponent may respond 

affumatively or negatively regarding whether the accused has 

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) Cross-examination. On cross-examination, 

inquiry is permitted into relevant and specific instances of conduct. 

(FJ 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 at) 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. 

11-122 
(1) In general. The defense may present matters 

in rebuttal of any material presented by the prosecution and may present matters in extenuation and 

mitigation regardless whether the defense offered 

evidence before findings. 

(A) Matter in extenuation. Matter in extenuation of an offense serves to explain the circumstances surrounding the commission of an offense, 

including those reasons for committing the offense 

which do not constitute a legal justification or 

excuse. 

(B) Matter in mitigation. Matter in mitigation 

of an offense is introduced to lessen the punishment 

to be adjudged by the court-martial, or to furnish 

grounds for a recommendation of clemency. It includes the fact that nonjudicial punishment under 

Article 15 has been imposed for an offense growing 

out of the same act or omission that constitutes the 

offense of which the accused has been found guilty, 

particular acts of good conduct or bravery and evidence of the reputation or record of the accused in 

the service for efficiency, fidelity, subordination, 

temperance, courage, or any other trait that is desirable in a servicemember. 

(2) Statement by the accused. 

(A) In general. The accused may testify, make 

an unsworn statement, or both in extenuation, in 

mitigation or to rebut matters presented by the prosecution, or for all three purposes whether or not the 

accused testified prior to findings. The accused may 

limit such testimony or statement to any one or more 

of the specifications of which the accused has been 

found guilty. This subsection does not permit the 

filing of an affidavit of the accused. 

(B) Testimony of the accused. The accused 

may give sworn oral testimony under this paragraph 

and shall be subject to cross-examination concerning 

it by the trial counsel or examination on it by the 

court-martial, or both. 

(C) Unsworn statement. The accused may 

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 personally making an oral statement normally should not be 

grounds for stopping the statement. 

(3) Rules of evidence relaxed. The military judge 

may, with respect to matters in extenuation or mitigation or both, relax the rules of evidence. This may 

include admitting letters, affidavits, certificates of 

military and civil officers, and other writings of similar authenticity and reliability. 

(d) Rebuttal and surrebuttal. The prosecution may 

rebut matters presented by the defense. The defense 

in surrebuttal may then rebut any rebuttal offered by 

the prosecution. Rebuttal and surrebuttal may continue, in the discretion of the military judge. If the 

Military Rules of Evidence were relaxed under subsection (c)(3) of this rule, they may be relaxed during rebuttal and surrebuttal to the same degree. 

(e) Production of witnesses. 

(1) In general. During the presentence proceedings, there shall be much greater latitude than on the 

merits to receive information by means other than 

testimony presented through the personal appearance 

of witnesses. Whether a witness shall be produced to 

testify during presentence proceedings is a matter 

within the discretion of the military judge, subject to 

the limitations in subsection (e)(2) of this rule. 

Discussion 

See R.C.M.703 concerning the procedures for production of 

witnesses. 

(2) Limitations. A witness may be produced to 

testify during presentence proceedings through a 

subpoena or travel orders at Government expense 

only if- 

(A) The testimony expected to be offered by 

the witness is necessary for consideration of a matter 

of substantial significance to a determination of an 

appropriate sentence, including evidence necessary 

to resolve an alleged inaccuracy or dispute as to a 

material fact; 

(B) The weight or credibility of the testimony 

is of substantial significance to the determination of 

an appropriate sentence; 

(C) The other party refuses to enter into a stipulation of fact containing the matters to which the 

witness is expected to testify, except in an extraordi11-123 
nary case when such a stipulation of fact would be 

an insufficient substitute for the testimony; 

(D) Other forms of evidence, such as oral depositions, written interrogatories, or former testimony 

would not be sufficient to meet the needs of the 

court-martial in the determination of an appropriate 

sentence; and 

(E) The significance of the personal appearance of the witness to the determination of an appropriate 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 mutters to be considered. In addition 

to matters introduced under this rule, the court-martial may consider- 

(1) That a plea of guilty is a mitigating factor; 

and 

(2) Any evidence properly introduced on the merits before findings, including: 

(A) Evidence of other offenses or acts of misconduct even if introduced for a limited purpose; 

and 

(B) Evidence relating to any mental impairment or deficiency of the accused. 

Discussion 

The fact that the accused is of low intelligence or that, 

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 

object to improper argument before the military 

judge begins to instruct the members on sentencing 

shall constitute waiver of the objection. 

Rule 1002. Sentence determination 

Subject to limitations in this Manual, the sentence 

to be adjudged is a matter within the discretion of 

the court-martial; except when a mandatory rninimum sentence is prescribed by the code, a courtmartial may adjudge any punishment authorized in 

this Manual, including the maximum punishment or 

any lesser punishment, or may adjudge a sentence of 

no punishment. 

Discussion 

See R.C.M. 1003 concerning authorized punishments and 

limitations on punishments. See also R.C.M. 1004 in capital 

cases. 

Rule 1003. Punishments 

(a) In general. Subject to the limitations in this 

Manual, the punishments authorized in this rule may 

be adjudged in the case of any person found guilty 

of an offense by a court-martial. 

Discussion 

"Any person" includes officers, enlisted persons, person in 

custody of the armed forces serving a sentence imposed by a 

court-martial, 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; 

11-124 
Discussion 

A reprimand adjudged by a court-martial is a punitive 

censure. 

(2) Forjfeihre 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 inactiveduty 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 be 

based on the grade to which the accused is reduced. 

Discussion 

A forfeiture deprives the accused of the amount of pay (and 

allowances) specified as it accrues. Forfeitures accrue to the 

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 during that period of 

confinement. If only confinement is adjudged, however, then Article 58b has no effect on adjudged forfeitures. 

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 

instead of forfeitures. General courts-martial may 

also adjudge a fine in addition to forfeitures. Special 

and summary courts-martial may not adjudge any 

fine in excess of the total amount of forfeitures 

which may be adjudged in that case. In order to 

enforce collection, a fine may be accompanied by a 

provision in the sentence that, in the event the fine is 

not paid, the person fined shall, in addition to any 

period of confinement adjudged, be further confined 

until a fixed period considered an equivalent punishment to the fine has expired. The total period of 

confinement so adjudged shall not exceed the jurisdictional limitations of the court-martial; 

Discussion 

A fine is in the nature of a 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 yay a fine. 

(4) Loss of numbers, lineal position, or seniority. 

These punishments are authorized only in cases of 

Navy, Marine Corps, and Coast Guard officers; 

Discussion 

All losses of numbers will be numbers in the appropriate 

lineal list. 

(5) Reduction in pay grade. Except as provided in 

R.C.M. 1301(d), a court-martial may sentence an 

enlisted member to be reduced to the lowest or any 

intermediate pay grade; 

Discussion 

Reduction under Article 58a is not a part of the sentence but 

is an administrative result thereof. 

(6) Restriction to specified limits. Restriction may 

be adjudged for no more than 2 months for each 

month of authorized confinement and in no case for 

11-125 
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 

c~nfinement, 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)(l)(A)(ii) of this rule. The sentence adjudged should specify 

the limits of the restriction. 

(7) Hard labor without confinement. Hard labor 

without confinement may be adjudged for no more 

than 1-112months 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. 

(8) Confinement. The place of confinement shall 

not be designated by the court-martial. A court-martial shall not adjudge a sentence to solitary confinement or to confinement without hard labor; 

Discussion 

The authority executing a sentence to confinement may 

require hard labor whether or not the words "at hard labor" are 

included in the sentence. See Article 58(b). To promote uniformity, the words "at hard labor" should be omitted in a sentence to 

confinement. 

(9) 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, comrnissioned warrant officer, cadet, or midshipman has 

been found guilty; 

(B) Dishortorable discharge. A dishonorable 

discharge applies only to enlisted persons and warrant officers who are not commissioned and may be 

adjudged only by a general court-martial. 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 convkted of offenses 

usually recognized in civilian jurisdictions as felonies, or of offenses of a military nature requiring 

severe punishment; and 

Discussion 

See also subsection (d)(l) of this rule regarding when a 

dishonorable discharge is authorized as an additional punishment. 

(C) Bad conduct discharge. A bad-conduct discharge applies only to enlisted persons and may be 

adjudged by a general court-martial and by a special 

court-martial which has met the requirements of 

R.C.M. 201(F)(2)(B). A bad-conduct discharge is 

less severe than a dishonorable discharge and is designed as a punishment for bad-conduct rather than 

as a punishment for serious offenses of either a 

civilian or military nature. It is also appropriate for 

an accused who has been convicted repeatedly of 

minor offenses and whose punitive separation appears to be necessary; 

Discussion 

See also subsections (d)(2) and (3) of this rule regarding 

when a bad-conduct discharge is authorized as an additional 

punishment. 

(10)Death. Death may be adjudged only in ac-
cordance with R.C.M. 1004; and 

(11) 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 N. 

(i) Maximum punishment. The maximum 

limits for the authorized punishments of confinement, forfeitures and punitive discharge (if any) are 

set forth for each offense listed in Part IV of this 

Manual. These limitations are for each separate offense, not for each charge. When a dishonorable 

discharge is authorized, a bad-conduct discharge is 

also authorized. 

(ii) Other punishments. Except as otherwise 

specifically provided in this Manual, the types of 

punishments listed in subsections (b)(l), (3), (4), (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 N. 

(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) Multiplicity. When the accused is found 

guilty of two or more offenses, the maximum authorized punishment may be imposed for each separate offense. Except as provided in paragraph 5 of 

Part IV, offenses are not separate if each does not 

require proof of an element not required to prove the 

other. If the offenses are not separate, the maxin~um 

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)(l2);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) 

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 ojjficers, cadets, 

and midshipmen. 

(i) A commissioned or warrant officer or a 

cadet, or midshipman may not be reduced in grade 

by any court-martial. However, in time of war or 

national emergency the Secretary concerned, or such 

Under Secretary or Assistant Secretary as may be 

designated by the Secretary concerned, may commute a sentence of dismissal to reduction to any 

enlisted grade. 
(ii) Only a general court-martial may sentence a commissioned or warrant officer or a cadet, 

or midshipman to confinement. 

(iii) A commissioned or warrant officer or a 

cadet or midshipman may not be sentenced to hard 

labor without confinement. 

(iv) Only a general court-martial, upon conviction of any offense in violation of the Code, may 

sentence a commissioned or warrant officer or a 

cadet or midshipman to be separated from the service with a punitive separation. In the case of commissioned officers, cadets, midshipmen, and 

commissioned warrant officers, the separation shall 

be by dismissal. In the case of all other warrant 

officers, the separation shall by dishonorable 

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)(l) 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 

11-128 

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)(l)). See also 

R.C.M. 1107(d)(3) concerning limits on the maximum punishment which may be approved depending on the nature of the 

record. 

(d) Circumstances permitting increased punishments. 

(1) Three or more convictions. If an accused is 

found guilty of an offense or offenses for none of 

which a dishonorable discharge is otherwise authorized, proof of three or more previous convictions 

adjudged by a court-martial during the year next 

preceding the commission of any offense of which 

the accused stands convicted shall authorize a dishonorable discharge and forfeiture of all pay and 

allowances and, if the confinement otherwise authorized is less than 1 year, confinement for 1 year. In 

computing the 1-year period preceding the commission 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 

the commission of any offense, periods of unauthorized absence shall be excluded. For purposes 

of this subsection the court-martial convictions must 

be final. 

(3) Two or more ofSenses. 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) Procedure. In addition to the provisions in 

R.C.M. 1001, the following procedures shall apply 

in capital cases-

(1) Notice. Before arraignment, trial counsel shall 

give the defense written notice of which aggravating 

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. lM)l(c). 

(4) Necessary findings. Death may not be adjudged 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 I.oncur that any extenuating 

or mitigating circumstances are substantially outweighed 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. 

1007, announce which kggravating factors under 

subsection (c) of this rule were found by the 

members. 

(c) Aggravating factors. Death may be adjudged 

11-129 
only if the members find, beyond a reasonable 

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 commitiing 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) The accused was serving a sentence of 

confinement for 30 years or more or for life at the 

time of the murder; 

(B) The murder was committed: while the accused was engaged in the commission or attempted 

commission of any robbery, rape, aggravated arson, 

sodomy, burglary, kidnapping, mutiny, sedition, or 

piracy of an aircraft or vessel; or 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. 

(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; 

(m 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 Commissioner in, the Congress) or Member-of-Congress 

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 11 16(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.3 15(c)(2), 3 15(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 

activity or agency, military or civilian, including 

correctional custody personnel; or any firefighter; 

(H) The murder was committed with intent to 

obstruct justice; 

(I) The murder was preceded by the intentional 

infliction of substantial physical harm or prolonged, 

substantial mental or physical pain and suffering to 

the victim. For purposes of this section, "substantial 

physical harm" means fractures or dislocated bones, 
deep cuts, tom 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; 

(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, 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 States v. Berg, 31 M.J. 38 (C.M.A. 1990); 

United States 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) That in committing the offense, the accused knowingly created a grave risk of death to a 

person other than the individual who was the victim. 

For purposes of this rule, "national security" 

means the national defense and foreign relations of 

the United States and specifically includes: a military or defense advantage over any foreign nation or 

group of nations; a favorable foreign relations position; or a defense posture capable of successfully 

resisting hostile or destructive action from within or 

without. 

Discussion 

Examples of substantial damage 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. 8 310(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) Otlier penalties. Except for a violation of Article 

106, when death is an authorized punishment for an 

offense, all other punishments authorized under 

R.C.M. 1003 are also authorized for that offense, 

including confinement for life, and may be adjudged 

in lieu of the death penalty, subject to lidtations 

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. 

11 13(d)(l). 

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) Wlien given. Instructions on sentence sliall be 

given after arguments by counsel and before tlie 

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 instrrrctions. 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 tlie 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 tlie proposed action on sucli requests 

before their closing arguments on sentence. 

Discussion 

Requests for and objections to instructions should be resolved at an Article 39(a) session. Blrt see R.C.M. 801(e)(l)(C); 

803. 

The military judge is not required to give tlre specific instruction requested by corlnsel 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 sliall be 

given orally on the record in the presence of all 

parties and the members. Written copies of the instructions, or unless a party objects, portions of 

them, may also be given to the members for their 

use during deliberations. 

Discussion 

A copy of any written instructions delivered to tl~e members 

should be rnarked as an appellate exhibit. 

(e) Required instructions. Instructioiis on sentence 

shall include: 

(1) A statement of the maximum authorized punishment that may be adjudged and of tlie mandatory 

lninilnutn punishment, if any; 

Discussion 

The maxinrum pu~lishment is the lowest of: the total permitted by the applicable paragrapl~(s) in Part 1V for each separate 

11-132 

offense of wl~iclr tlre accused was convicted (see also R.C.M. 

1003 concerning additional limits on punishments and additional 

punishments wl~iclr may be adjudged); tile jurisdictional limit of 

the court-martial (see R.C.M. 201(f) and 1301(d)); or in a rehearing or new or other trial the punishment adjudged by a prior 

court-martial or approved on review, supplemented by tlre total 

permitted by any charges not tried previously (see R.C.M. 

810(d)). Tlre military judge may upon request or when otherwise 

appropriate instruct on lesser punishments. See R.C.M. 1003. The 

members should not be informed of the basis for the sentence 

limitation or of any sentence which might be imposed for the 

offense if not limited as set fort11 above. If an additional punishment is aull~orized under R.C.M. 1003(d), the menrbers must be 

informed of the basis for the increased permissible punishment. 

A carefully drafted sentence worksheet ordinarily should be 

used and sl~ould include reference to all authorized punishnlents 

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 

have on the accused's entitlement to pay and 

allowances; 

(3) A statement of the procedures for deliberation 

and voting on tlie sentence set out in R.C.M.1006; 

Discussion 

See also R.C.M. 1004 concerning additional instnctions 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)(l), (2), (3) 

and (5). 

Discussion 

For example, tailored instructions on sentencing should brir~g 

attention to the reputation or record of the accused in the service 

for good conduct, efficiency, fidelity, courage, bravery, or olher 
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 during deliberations and voting. Superiority in rank 

shall not be used in any manner to control the independence of members in the exercise of their 

judgment. 

(b) Deliberations. Deliberations may properly include full and free discussion of the sentence to be 

imposed in the case. Unless otherwise directed by 

the military judge, members may take with them in 

deliberations their notes, if any, any exhibits admitted in evidence, and any written instructions. Members may request that the court-martial be reopened 

and that portions of the record be read to them or 

additional evidence introduced. The military judge 

may, in the exercise of discretion, grant such 

requests. 

(c) Proposal of sentences. Any member may propose a sentence. Each proposal shall be in writing 

and shall contain the complete sentence proposed. 

The junior member shall collect the proposed sentences and submit them to the president. 

Discussion 

A proposal should state completely each kind and, when 

appropriate, amount of authorized punishment proposed !jy that 

member. See R.C.M.l003(b). 

(d) Voting. 

(1) Duty of members. Each member has the duty 

to vote for a proper sentence for the offenses of 

which the court-martial found the accused guilty, 

regardless of the member's vote or opinion as to the 

guilt of the accused. 

(2) Secret ballot. Proposed sentences shall be 

voted on by secret written ballot. 

(3) Procedure. 

(A) Order. All members shall vote on each 

proposed sentence in its entirety beginning with the 

least severe and continuing, as necessary, with the 

next least severe, until a sentence is adopted by the 

concurrence of the number of members required 

under subsection (d)(4) of this rule. The process of 

proposing sentences and voting on them may be 

repeated as necessary until a sentence is adopted. 

(B) Counting votes. The junior member shall 

collect the ballots and count the votes. The president 

shall check the count and inform the other members 

of the result. 

Discussion 

A sentence adopted by the required number of members may 

be reconsidered only in accordance with R.C.M. 1009. 

(4) Number of votes required. 

(A) Death. A sentence which includes death 

may be adjudged only if all members present vote 

for that sentence. 

Discussion 

See R.C.M. 1004. 

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

A sentence which includes confinement for life or 

more than 10 years may be adjudged only if at least 

three-fourths of the members present vote for that 

sentence. 

(C) Other. A sentence other than those described in subsection (d)(4)(A) or (B) of this rule 

may be adjudged only if at least two-thirds of the 

members present vote for that sentence. 

Discussion 

In computing the number of votes required to adopt a 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 threeforths 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 

members as an aid to putting the sentence in proper form. See 

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. 

If the sentence is ambiguous or apparently illegal, see 

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. 

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 sentence is not the one actually determined by the 

court-martial, the error may be corrected by a new 

announcement made before the record of trial is 

authenticated and forwarded to the convening authority. This action shall not constitute reconsideration of the sentence. If the court-martial has been 

adjourned before the error is discovered, the military 

judge may call the court-martial into session to correct the announcement. 

Discussion 

For procedures governing reconsideration of the sentence, 

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 an- 
nouncement 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 the 

court-martial may propose that a sentence reached 

by the members be reconsidered. 

(I) Instructions. When a sentence has been 

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 least 

a majority vote for reconsideration. 

(B) With a view to decreasing. Members may 

reconsider a sentence with a view to decreasing it 

only if: 

(i) In the case of a sentence which includes 

death, at least one member votes to reconsider; 

(ii) In the case of a sentence which includes 

confinement for life or more than 10 years, more 

than one-fourth of the members vote to reconsider; 

or; 

(iii) In the case of any other sentence, more 

than one-third of the members vole 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 tn 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)(l); 

and 

(d) The right to the advice and assistance of counsel 

in the exercise of the foregoing rights or any decision to waive them. 

The written advice to the accused concerning 

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 

11-135 
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. 
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 confinemelat. 

(1) In general. An accused may be placed in 

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)(l) of this rule. A commander authorized 

to order post-trial confinement under this subsection 

may delegate this authority to the trial counsel. 

Discussion 

The commander may release the accused, order confinement, 

or order other appropriate restraint. Regardless whether the accused is ordered into confinement, a sentence to confiiement 

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 

Deferment is not suspension of the sentence or a form of 

clemency. 

(2) Who mnv 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 ,ommand to which the accused is assigned, may, upon written application of 

the accused, at any time after the adjournment of the 

court-martial, defer the accused's service of a sentence to confinement, forfeitures, or reduction in 

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 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 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 convicted; the sentence adjudged; the command'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 authority acting on the deferment request shall be 

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 
reported in the convening authority's action under 

R.C.M. 1107(f)(4)(E) and shall include the date of 

the action on the request when it occurs prior to or 

concurrently with the action. Action granting deferment after the convening authority's action under 

R.C.M. 1107 shall be reported in orders under 

R.C.M. 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. 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) 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 cannqt be both deferred 

and suspended at the same time. When deferment of confinement, 

forfeitures, or reduction in grade ends, the sentence to confuement, 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 exercising general court-martial jurisdiction over the 

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 information in the case, that authority finds, in that 

authority's discretion, is grounds for denial of deferment under subsection (c)(3) of this rule. The accused shall promptly be informed of the basis for the 

rescission and of the right to submit written matters 

in the accused's behalf and to request that the rescission be reconsidered. However, the accused may be 

required to serve the sentence to confinement, 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 

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 

convening authority's action shall be reported in 

supplementary orders in accordance with R.C.M. 

11 14 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 froin a sentence to 

conjnement 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) 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 members, whether the accused requested waiver, any 

debts owed by the accused, the ability of the accused's family members to find employment, and 

the availability of transitional compensation for 

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 cedficate of correction. 

(2) Article 39(a) sessions. An Article 39(a) session under this rule may be called for the purpose of 

inquiring into, and, when appropriate, resolving any 

matter which arises after trial and which substantially affects the legal sufficiency of any findings of 

guilty or the sentence. 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. 

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 

unless the sentence prescribed for the offense is 

mandatory. 

(d) When directed. The military judge may direct a 

post-trial session any time before the record is authenticated. The convening authority may direct a 

post-trial session any time before the convening authority takes initial action on the case or at such 

later time as the convening authority is authorized to 

do so by a reviewing authority, except that no 

proceeding in revision may be held when any part of 

the sentence has been ordered executed. 

(e) Procedure. 

(1) Personnel. The requirements of R.C.M. 505 

11-139 
and 805 shall apply at post-trial sessions except 

that-

(A) For a proceeding in revision, if trial was 

before members and the matter subject to the 

proceeding in revision requires the presence of 

members: 

(i) The absence of any members does not 

invalidate the proceedings if, in the case of a general 

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. 

(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) Psycltiatric or psychological examination and 

report. Prior to the hearing, the military judge or 

convening authority shall order a psychiatric or psychological examination of the accused, with the 

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, 

11-140 

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 burdell 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 

court-martial shall keep a separate record of the 

proceedings in each case brought before it. 

(b) General courts-martial. 

(1) Responsibility for preparation. The trial counsel shall: 

(A) Under the direction of the military judge, 

cause the record of trial to be prepared; and 

(B) Under regulations prescribed by the Secretary concerned, cause to be retained stenographic or 

other notes or mechanical or electronic recordings 

from which the record of trial was prepared. 

(2) Contents. 

(A) In general. The record of trial in each general court-martial shall be separate, complete, and 

independent of any other document. 

(B) Verbatim transcript required. Except as 

otherwise provided in subsection (j) of this rule, the 

record of trial shall include a verbatim written tran- 
script of all sessions except sessions closed for deliberations and voting when: 

(i) Any part of the sentence adjudged exceeds six months confinement or other punishments 

which may be adjudged by a special court-martial; 

or 

(ii) A bad-conduct discharge has been 

adjudged. 

Discussion 

A verbatim transcript includes: all proceedings including 

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 (seeR.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 conferences must be included in the record. If testimony is given 

through an interpreter, a verbatim transcript must so reflect. 

(C) Verbatim transcript not required. If a verbatim transcript is not required under subsection 

(b)(2)(B) of this rule, a summarized report of the 

proceedings may be prepared instead of a verbatim 

transcript. 

Discussion 

See also R.C.M. 910(i) concerning guilty plea inquiries. 

(D) Other matters. In addition to the matter required under subsection (b)(2)(B) or (b)(2)(C) of this 

rule, a complete record shall include: 

(i) The original charge sheet or a duplicate; 

(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 refen-ed to 

on the record but not received in evidence; 

(C) Any matter filed by the accused under 

R.C.M. 1105, or any written waiver of the right to 

submit such matter; 

(D) Any deferment request and the action on it; 

(E) Explanation for any substitute authentication under R.C.M. 1104(a)(2)(B); 

(E)Explanation for any failure to serve the record of trial on the accused under R.C.M. 1104(b); 

(G) The post-trial recommendation of the staff 

judge advocate or legal officer and proof of service 

on defense counsel in accordance with R.C.M. 

1 106(f)(l); 

(H) Any response by defense counsel to the 

post-trial review; 

(I) Recommendations and other papers relative 

to clemency; 

(J) Any statement why it is impracticable for 

the convening authority to act; 

(K) Conditions of suspension, if any, and proof 

of service on probationer under R.C.M. 1108; 

(L) 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 disclzarge. The requirements of subsections (b)(l), (b)(2)(A), 

(b)(2)(B), (b)(2)@), and (b)(3) of this rule shall apply in a special court-martial in which a bad-conduct 

discharge has been adjudged. 

(2) Not involving a bad-conduct dischnrge. If the 

special court-martial resulted in findings of guilty 

but a bad-conduct discharge was not adjudged, the 

11-141 
requirements of subsections (b)(l), (b)(2)(D), and 

(b)(3)(A)-(F) and (I)-(M) of this rule shall apply. 

(d) Summary courts-martial. The summary courtmartial 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 

higher authority may prescribe additional 

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)(l) of 

this rule, a record which meets the requirements of 

subsection (b)(2)(C) of this rule shall be prepared, 

and the convening authority may: 

(1) Approve only so much of the sentence which 

could be adjudged by a special court-martial, except 

that no bad-conduct discharge may be approved; or 

(2) Direct a rehearing as to any offense of which 

the accused was found guilty if the finding is supported by the summary of the evidence contained in 

the record, provided that the court-martial in a 

rehearing may not adjudge any sentence in excess of 

that adjudged by the earlier court-martial. 

(g) Copies of the record of trial. 

(1) General and special courts-martial. 

(A) In general. In general and. special courtsmartial which require a verbatim transcript under 

11-142 

subsections (b) or (c) of this rule and are subject to a 

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 shall cause to be prepared an original and 

one copy of the record of trial. 

Discussion 

In a joint or common trial an additional copy of the record 

must be prepared for each accused. See R.C.M. 1104(b). 

(B) Additional copies. The convening or higher 

authority may direct that additional copies of the 

record of trial of any general or special court-martial 

be prepared. 

(2) Summary courts-martial. Copies of the summary court-martial record of trial shall be prepared 

as prescribed in R.C.M. 1305(b). 

(h) Security class$ication. 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)(l)(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 hial 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) Examination by defense counsel. Except 

when unreasonable delay will result, the trial counsel shall permit the defense counsel to examine the 

record before authentication. 

Discussion 

If the defense counsel discovers errors or omissions in the 

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 courtmartial shall examine and correct the summary 

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) Preparation of written record. When the 

court-martial, or any part of it, is recorded by 

videotape, audiotape, or similar material under subsection (j)(l) of this rule, a written transcript or 

summary as required in subsection (b)(2)(A), 

(b)(2)(B), (b)(2)(C), or (c) of this rule, as appropriate, shall be prepared in accordance with this rule 

and R.C.M. 1104 before the record is forwarded 

under R.C.M. 1104(e), unless military exigencies 

prevent transcription. 

(3) Military exigency. If military exigency prevents preparation of a written transcript or summary, 

as required, and when the court-martial has been 

recorded by videotape, audiotape, or similar material 

under subsection (j)(l) of this rule, the videotape, 

audiotape, or similar material, together with the matters in subsections (b)(2)(D) and (b)(3) of this rule 

shall be authenticated and forwarded in accordance 

with R.C.M. 1104, provided that in such case the 

convening 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 

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 1104. Records of trial: Authentication; 

service; loss; correction; forwarding 

(a) Authentication. 

(1) In general. A record is authenticated by the 

signature of a person specified in this rule who 

11-143 
thereby declares that the record accurately reports 

the proceedings. No person may be required to authenticate a record of trial if that person is not satisfied that it accurately reports the proceedings. 

(2) General and special courts-martial. 

(A) Authentication by the military judge. In 

special courts-martial in which a bad-conduct discharge has been adjudged and in general courtsmartial, except as provided in subsection (a)(2)(B) 

of this rule, the military judge present at the end of 

the proceedings shall authenticate the record of trial, 

or that portion over which the military judge presided. If more than one military judge presided over 

the proceedings, each military judge shall authenticate the record of the proceedings over which that 

military judge presided, except as provided in subsection (a)(2)(B) of this rule. The record of trial of 

special courts-martial in which no bad-conduct discharge was adjudged shall be authenticated in accordance with regulations of the Secretary 

concerned. 

(B) Substitute authentication. If the military 

judge cannot authenticate the record of trial because 

of the military judge's death, disability, or absence, 

the trial counsel present at the end of the proceedings shall authenticate the record of trial. If the trial 

counsel cannot authenticate the record of trial because of the trial counsel's death, disability, or absence, a member shall authenticate the record of 

trial. In a court-martial composed of a military judge 

alone, or as to sessions without members, the court 

reporter shall authenticate the record of trial when 

this duty would fall upon a member under this subsection. A person authorized to authenticate a record 

under this subsection may authenticate the record 

only as to those proceedings at which that person 

was present. 

Discussion 

See Appendix 13 or 14 for sample forms. 

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@)(3)@). 

(3) Surnrnary courts-inartial. The summary court11-144 

martial shall authenticate the summary court-martial 

record of trial as prescribed in R.C.M. 1305(a). 

(b) Service. 

(1) General and special courts-martial. 

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

each general and special court-martial, except as 

provided in subsection (b)(l)(C) or (D) of this rule, 

the trial counsel shall cause a copy of the record of 

trial to be served on the accused as soon as the 

record of trial is authenticated. 

(B) Proof of service of record of trial on accused. The trial counsel shall cause the accused's 

receipt for the copy of the record of trial to be 

attached to the original record of trial. If it is impracticable to secure a receipt from the accused 

before the original record of trial is forwarded to the 

convening authority, the trial counsel shall prepare a 

certificate indicating that a copy of the record of 

trial has been transmitted to the accused, including 

the means of transmission and the address, and 

cause the certificate to be attached to the original 

record of trial. In such a case the accused's receipt 

shall be forwarded to the convening authority as 

soon as it is obtained. 

(C) Substitute service. If it is impracticable to 

serve the record of trial on the accused because of 

the transfer of the accused to a distant place, the 

unauthorized absence of the accused, or military exigency, or if the accused so requests on the record at 

the court-martial or in writing, the accused's copy of 

the record shall be forwarded to the accused's defense counsel, if any. Trial counsel shall attach a 

statement to the record explaining why the accused 

was not served personally. If the accused has 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 sewed on the accused. 

(ii) Responsibility of the convening authority. The convening authority shall: 

(a) cause any classified information to be deleted or withdrawn from the accused's copy of the 

record of trial; 

(b) cause a certificate indicating that classified information has been deleted or withdrawn to 

be attached to the record of trial; and 

(c) cause the expurgated copy of the record 

of trial and the attached certificate regarding classified information to be served on the accused as 

provided in subsections (b)(l)(A) and (B) of this 

rule except that the accused's receipt shall show that 

the accused has received an expurgated copy of the 

record of trial. 

(iii) Contents of cem9cate. The certificate 

regarding deleted or withdrawn classified information shall indicate: 

(a) that the original record of trial may be 

inspected in the Office of the Judge Advocate General concerned under such regulations as the Secretary concerned may prescribe; 

(b) the pages of the record of trial from 

which matter has been deleted; 

(c) the pages of the record of trial which 

have been entirely deleted; and 

(d) the exhibits which have been withdrawn. 

Discussion 

See R.C.M.110301) 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)(l)@) 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; certifi 

icate 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 certif~cate of correction. 

See Appendix 13 or 14 for a form for a certif~cate 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 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) Authentication of certificate of correction; 

service on the accused. The certificate of correction 

shall be authenticated as provided in subsection (a) 

of this rule and a copy sewed 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 was adjudged or a general courtmartial, the convening authority shall refer the record to the staff judge advocate or legal officer for a 

recommendation under R.C.M. 1106 before the convening authority takes action. 

Rule 1105. Matters submitted by the 

accused 

(a) In general. After a sentence is adjudged in any 

court-martial, the accused may submit matters to the 

convening authority in accordance with this rule. 

(b) Matters which may be submitted. 

(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 restitution to the victim or exemplary behavior, might be 

appropriate. 

(D) Clemency recommendations by any member, the military judge, or any other person. The 

defense may ask any person for such a 

recommendation. 

Discussion 

A clemency recommendation should state reasons for the 

recommendation and should specifically indicate the amount and 

character of the clemency recommended. 

A clemency recommendation by a member should not 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 ~ecommendation 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 

authority or that authority's staff judge advocate 

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) Summary courts-martial. After a summary 

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 

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, 

in which case the period shall run from that 

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) Submission of matters. Submission of any 

matters under this rule shall be deemed a waiver of 

the right to submit additional matters unless the right 

11-146 
to submit additional matters within the prescribed 

time limits is expressly reserved in writing. 

(3) Written waiver. The accused may expressly 

waive, in writing, the right to submit matters under 

this rule. Once filed, such waiver may not be 

revoked. 

(4) Absence of accused. If, as a result of the unauthorized absence of the accused, the record cannot 

be served on the accused in accordance with R.C.M. 

1104(b)(l) and if the accused has no counsel to 

receive the record, the accused shall be deemed to 

have waived the right to submit matters under this 

rule within the time limit which begins upon service 

on the accused of the record of trial. 

Discussion 

The accused is not required to raise objections to the trial 

proceedings in order to preserve them for later review. 

Rule 1106. Recommendation of the staff 

judge advocate or legal officer 

(a) In general. Before the convening authority takes 

action under R.C.M. 1107 on a record of trial by 

general court-martial or a record of trial by special 

court-martial which includes a sentence to a badconduct discharge, that conveniiig 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) Disqztalification. 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. 

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 

staffjudge advocate or legal ojj?cer or that person is 

disqualified. If the convening authority does not 

have a staff judge advocate or legal officer, or if the 

person serving in that capacity is disqualified under 

subsection (b) of this rule or otherwise, the convening authority shall: 

(A) Request the assignment of another staff 

judge advocate or legal officer to prepare a recommendation under this rule; or 

(B) Forward the record for action to any officer 

exercising general court-martial jurisdiction as provided in R.C.M. 1107(a). 

(2) When the convening authority has a legal oficer but wants the recommendation of a staff judge 

advocate. If the convening authority has a legal officer but no staff judge advocate, the convening authority may, as a matter of discretion, request 

designation of a staff judge advocate to prepare the 

recommendation. 

(d) Form and content of recommendation. 

(1) The purpose of the recommendation of the 

staffjudge advocate or legal officer is to assist the 

convening authority to decide what action to take on 

the sentence in the exercise of command prerogative. The staff judge advocate or legal officer shall 

use the record of trial in the preparation of the 

recommendation. 

(2) Form. The recommendation of the staff judge 

advocate or legal officer shall be a concise written 

communication. 

(3) Required contents. Except as provided in subsection (e) of this rule, the reco~nmendation 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) 4 recommendation for clemency by the 

sentencing authority, made in conjunction with the 

announced sentence; 

Discussion 

The recommendation required by this rule need not include 

information regarding other recommendations for clemency. See 

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 

take under the agreement or a statement of the 

reasons why the convening authority is not obligated 

to take specific action under the agreement; and 

(F) A specific recommendation as to the action 

to be taken by the convening authority on the 

sentence. 

(4) Legal errors. The staff judge advocate or 

legal officer is not required to examine the record 

for legal errors. However, when the recommendation 

is prepared by a staff judge advocate, the staff judge 

advocate shall state whether, in the staff judge advocate's opinion, corrective action on the findings or 

sentence should be taken when an allegation of legal 

error is raised in matters submitted under R.C.M. 

1105 or when otherwise deemed appropriate by the 

staff judge advocate. The response may consist of a 

statement of agreement or disagreement with the 

matter raised by the accused. An analysis or rationale for the staff judge advocate's statement, if any, 

concerning legal errors is not required. 

(5) Optional matters. The recommendation of the 

staff judge advocate or legal officer may include, in 

addition to matters included under subsections (d)(3) 

and (4) of this rule, any additional matters deemed 

appropriate by the staff judge advocate or legal officer. Such matter may include matters outside the 

record. 

Discussion 

See R.C.M. 1107(b)(3)(B)(ui) 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 autliorities 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 tenninated 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 recommendation and the record of trial to the convening 

authority for action under R.C.M. 1107, the staff 

judge advocate or legal officer shall cause a copy of 

the recommendation to be served on counsel for the 

accused. 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. 

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 sewed personnally. 

(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 represent the accused shall be detailed by an 

appropriate authority. Substitute counsel shall enter 

into an attorney-client relationship with the accused 

11-148 
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 

lsgal officer shall, upon request of counsel for the 

,ccused served with the recommendation, provide 

?hat 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 comments on the recommendation. The convening 

authority may, for good cause, extend the period in 

which comments may be submitted for up to 20 

additional days. 

(6) Waiver. Failure of counsel for the accused to 

comment on any matter in the recommendation or 

matters attached to the recommendation in a timely 

manner shall waive later claim of error with regard 

to such matter in the absence of plain error. 

Discussion 

The accused is not required to raise objections to the trial 

proceedings in order to preserve them for later review. 

(7) New mutter 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 

the recommendation, however, the accused and 

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)(l) 

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@)(3)(G). For example, a certificate of 

service, attached to the record of trial, would be appropaate when 

the accused is served personnally. 

Rule 1107. Action by convening authority 

(a) Who my take action. The convening authority 

shall take action on the sentence and, in the discretion of the convening authority, the findings, unless 

it is impracticable. If it is impracticable for the convening authority to act, the convening authority 

shall, in accordance with such regulations as the 

Secretary concerned may prescribe, forward the case 

to an officer exercising general court-martial jurisdiction who may take action under this rule. 

Discussion 

The convening authority may not delegate the function of 

taking action on the fmdings 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 disqualif~ed 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 

to review the case for legal errors or factual 

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) Wlzen action rnay be taken. The convexling authority may take action only after the applicable 

time periods under R.C.M. 1105(c) have expired or 

the accused has waived the right to present matters 

under R.C.M. 1105(d), whichever is earlier, subject 

to regulations of the Secretary concerned. 

(3) Matters considered. 

(A) Required matters. Before taking action, the 

convening authority shall consider: 

(i) The result of trial; 

Discussion 

See R.C.M. 1101(a). 

(ii) The recommendation of the staff judge advocate or legal officer under R.C.M. 1106, if applicable; and 

(iii) Any matters submitted by the accused 

under R.C.M. 1105 or, if applicable, R.C.M. 

1106(f). 

(B) Additional matters. Before taking action 

the convening authority may consider: 

(i) The record of trial; 

(ii) The personnel records of the accused; 

and 

(iii) Such other matters as the convening authority deems appropriate. However, if the convening authority considers matters adverse to the 

accused from outside the record, with knowledge of 

which the accused is not chargeable, the accused 

shall be notified and given an opportunity to rebut. 

(4) When proceedings resulted in finding of not 

guilty or not guilty only by reason of lack of mental 

11-150 

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 

mental capacity of the accused, the convening authority may direct an examination of the accused in 

accordance with R.C.M. 706 before deciding 

whether the accused lacks mental capacity, 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 au!hority 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 sub- 
sectio~l (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 lesser offense. However, see subsection (e) of this rule if 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 

punishment imposed by a court-martial. The approval or disapproval shall be explicitly stated. 

Discussion 

A sentence adjudged by a court-martial may be approved 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 mitigating confinement or hard labor without confinement, the 

convening authority should use the equivalencies at 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 6 months (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) Determining what sentence should be approved. The convening authority shall approve that 

sentence which is warranted by the circumstances of 

the offense and appropriate for the accused. When 

the court-martial has adjudged a mandatory punishment, the convening authority may nevertheless approve a lesser sentence. 

Discussion 

In determining what sentence should be approved the 

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. 

(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 

foreign country under the authority of a mutual 

agreement or treaty, as the case may be. 

(C) As used in subsection (d)(3), the term 

"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 

court-martial sentence to co~ffinement 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)(l), the convening authority may not approve a sentence in 

excess of that which may be adjudged by a special 

court-martial, or one which includes a bad-conduct 

discharge. 
Discussion 

See also R.C.M. 1103(f). 

(e) Ordering rehearing or other trial. 

(1) Rehearing. 

(A) In general. Subject to subsections (e)(l)(B) 

through (e)(l)(E) of this rule, the convening authority may in the convening authority's discretion order 

a rehearing. A rehearing may be ordered as to some 

or all offenses of which findings of guilty were 

entered and the sentence, or as to sentence only. 

Discussion 

A rehearing may be appropriate when an error substantially 

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 

rehearing. The convening authority may order a 

rehearing: 

(i) When taking action on the court-martial 

under this rule; 

(ii) In cases subject to review by the Court 

of Criminal Appeals, before the case is forwarded 

under R.C.M. llll(a)(l) or (b)(l), 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 

convening authority may dismiss those specifications and, when appropriate, charges. 

Discussion 

If a superior authority has approved some 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. 

(C) Limitations. 

(i) Sentence approved. A rehearing shall not 

be ordered if, in the same action, a sentence is 

approved. 

(ii) Lack of sufJicient evidence. A rehearing 

may not be ordered as to findings of guilty when 

there is a lack of sufficient evidence in the record to 

support the findings of guilty of the offense charged 

or of any lesser included offense. A rehearing may 

be ordered, however, if the proof of guilt consisted 

of inadmissible evidence for which there is available 

an admissible substitute. A rehearing may be ordered as to any lesser offense included in an offense 

of which the accused was found guilty, provided 

there is sufficient evidence in the record to support 

the lesser included offense. 

Discussion 

For example, if proof of absence without leave was by 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) Additional charges. Additional charges 

may be referred for trial together with charges as to 

which a rehearing has been directed. 

(E) Lesser included offenses. If at a previous 

trial the accused was convicted of a lesser included 

offense, a rehearing may be ordered only as to that 

included offense or as to an offense included in that 

found. If, however, a rehearing is ordered improperly on the original offense charged and the 

accused is convicted of that offense at the rehearing, 

the finding as to the lesser included offense of which 

the accused was convicted at the original trial may 

nevertheless be approved. 

(2) "Other" trial. The convening or higher authority may order an "other" trial if the original 

proceedings were invalid because of lack of jurisdiction or failure of a specification to state an offense. 
The authority ordering an "other" trial shall state in 

the action the basis for declaring the proceedings 

invalid. 

(f) Contents of action and related matters. 

(1) In general. The convening authority shall 

state in writing 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. 11 12, as long as the 

correction does not result in action less favorable to 

the accused than the earlier action. When so directed 

by a higher reviewing authority or the Judge Advocate General, the convening authority shall modify 

any incomplete, ambiguous, void, or inaccurate action noted in review of the record of trial under 

Article 64, 66, 67, or examination of the record of 

trial under Article 69. The convening authority shall 

personally sign any supplementary or corrective 

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 specifications 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 

action shall state which parts are approved. A 

rehearing may not be directed if any sentence is 

approved. 

Discussion 

See Appendix 16 for forms. 

See R.C.M. 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 execution, the convening authority shall designate the 

place of confinement in the action, unless otherwise 

prescribed by the Secretary concerned. If a sentence 

of confinement is ordered into execution after the 

initial action of the convening authority, the authority ordering the execution shall designate the place 

of confinement unless otherwise prescribed by the 

Secretary concerned. 

Discussion 

See R.C.M. 11 13(d)(Z)(C) concerning the place of 

confinement. 
(D) Custody or confinement pending appellate 

review; capital cases. When a record of trial involves an approved sentence to death, the convening 

authority shall, unless any approved sentence of confinement has been ordered into execution and a 

place of confinement designated, provide in the action for the temporary custody or confinement of the 

accused pending final disposition of the case on appellate review. 

(E) Deferment of service of sentence to confinement. Whenever the service of the sentence to 

confinement is deferred by the convening authority 

under R.C.M.1101(c) before or concurrently with 

the initial action in the case, the action shall include 

the date on which the deferment became effective. 

The reason for the deferment need not be stated in 

the action. 

(F) Credit for illegal pretrial confinement. 

When the military judge has directed that the accused receive credit under R.C.M. 305(k), the convening authority shall so direct in the action. 

(G) Reprimand. The convening authority shall 

include in the action any reprimand which the convening authority has ordered executed. 

Discussion 

See R.C.M. 1003(b)(l)concerning reprimands. 

(5) Action on rehearing or new or other trial. 

(A) Rehearing or other trial. In acting on a 

rehearing or other trial the convening authority shall 

be subject to the sentence limitations prescribed in 

R.C.M. 810(d). Except when a rehearing or other 

trial is combined with a trial on additional offenses 

and except as otherwise provided in R.C.M. 810(d), 

if any part of the original sentence was suspended 

and the suspension was not properly vacated before 

the order directing the rehearing, the convening authority shall take the necessary suspension action to 

prevent an increase in the same type of punishment 

as was previously suspended. The convening authority may approve a sentence adjudged upon a rehearing or other trial regardless whether any kind or 

amount of the punishment adjudged at the former 

trial has been served or executed. However, in computing the term or amount of punishment to be actually served or executed under the new sentence, the 

accused shall be credited with any kind or amount of 

the former sentence included within the new sentence that was served or executed before the time it 

was disapproved or set aside. The convening authority shall, if any part of a sentence adjudged upon a 

rehearing or other trial is approved, direct in the 

action that any part or amount of the former sentence served or executed between the date it was 

adjudged and the date it was disapproved or set 

aside shall be credited to the accused. If, in the 

action on the record of a rehearing, the convening 

authority disapproves the findings of guilty of all 

charges and specifications which were tried at the 

former hearing and that part of the sentence which 

was based on these findings, the convening authority 

shall, unless a further rehearing is ordered, provide 

in the action that all rights, privileges, and property 

affected by any executed portion of the sentence 

adjudged at the former hearing shall be restored. The 

convening authority shall take the same restorative 

action if a court-martial at a rehearing acquits the 

accused of all charges and specifications which were 

tried at the former hearing. 

(B) New trial. The action of the convening authority on a new trial shall, insofar as practicable, 

conform to the rules prescribed for rehearings and 

other trials in subsection (f)(S)(A) of this rule. 

Discussion 

See R.C.M. 810 for procedures at other trials. 

(g) Incomplete, ambiguous, or erroneous action. 

When the action of the convening or of a higher 

authority is incomplete, ambiguous, or contains clerical error, the authority who took the incomplete, 

ambiguous, or erroneous action may be instructed by 

an authority acting under Article 64, 66, 67, or 69 to 

withdraw the original action and substitute a corrected action. 

(h) Service on accused. A copy of the convening 

authority's action shall be served on the accused or 

on defense counsel. If the action is 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 11 08. 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, 

Judge Advocate General, or commanding officer 

may suspend or remit any part or amount of the 

unexecuted part of any sentence other than a sentence approved by the President. The comrnsqder 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 

previously approved the sentence. The "unexecuted 

part of any sentence" includes that part which has 

been approved and ordered executed but which has 

not actually been carried out. 

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) Conditions of suspension. The authority who 

suspends the execution of the sentence of a courtmartial shall: 

(1) Specify in writing the conditions of the 

suspension; 

(2) Cause a copy of the conditions of the suspension to be served on the probationer; and 

(3) Cause a receipt to be secured from the probationer for service of the conditions of the suspension. 

Unless otherwise stated, an action suspending a 

sentence includes as a condition that the probationer 

not violate any punitive article of the code. 

(d) Limitations on suspension. Suspension shall be 

for a stated period or until the occurrence of an 

anticipated future event. The period shall not be 

unreasonably long. The Secretary concerned may 

further limit by regulations the period for which the 

execution of a sentence may be suspended. The convening authority shall provide in the action that unless the suspension is sooner vacated, the expiration 

of the period of suspension shall remit the suspended portion of the sentence. An appropriate authority may, before the expiration of the period of 

suspension, remit any part of the sentence, including 

a part which has been suspended; reduce the period 

of suspension; or, subject to R.C.M. 1109,vacate the 

suspension in whole or in part. 

(e) Termination of suspension by remission. Expiration of the period provided in the action suspending 

a sentence or part of a sentence shall remit the 

suspended portion unless the suspension is sooner 

vacated. Death or separation which terminates status 

as a person subject to the code shall result in remission of the suspended portion of the sentence. 

Discussion 

See R.C.M. 1109(b)(4) concerning interruption of the period 

of suspension. 

Rule 1109. Vacation of suspension of 

sentence 

(a) In general. Suspension of execution of the sentence of a court-martial may be vacated for violation 

of the conditions of the suspension as provided in 

this rule. 

(b) Timeliness. 

(1) Violation of conditions. Vacation shall be 

based on a violation of the conditions of suspension 

which occurs within the period of suspension. 

(2) Vacation proceedings. Vacation proceedings 

under this rule shall be completed within a reasonable time. 

(3) Order vacating the suspension. The order va11-155 
cating 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 conceming execution of sentences. 

(4) Interruptions to the period of suspension. Unauthorized absence of the probationer or the commencement of proceedings under this rule to vacate 

suspension interrupts the running of the period of 

suspension. 

(c) Confinement of probationer pending vacation 

proceedings. 

(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 

may order pretrial restraint under R.C.M. 304(b) 

may order confinement of a probationer under a 

suspended sentence to confinement. 

(3) Basis for confinement. A probationer under a 

suspended sentence to confinement may be ordered 

into confinement upon probable cause to believe the 

probationer violated any conditions of the 

suspension. 

Discussion 

A determination that confinement is necessary to ensure the 

presence of the probationer or to prevent further miscotiduct 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) Review of confinement. Unless proceedings 

under subsection (d)(l), (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 

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 released from confinement. If the hearing officer determines that there is probable cause to believe 

that the probationer violated the conditions of suspension, the hearing officer shall set forth in a written memorandum, 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 probationer's commander and forward a copy to the probationer and 

the officer in charge of the confinement facility. 

(d) Vacation of suspended general court-martial 

sentence. 

(1) Action by ofice7 having special court-madal 

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)(l) of 

this rule. In such cases, subsection (d)(l)(D) of this 

rule shall not apply. 

(B) Notice to probationer. Before the hearing, 

the 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-exarnination. 

Discussion 

The notice should be provided sufficiently in advance of the 

hearing to permit adequate preparation. 

(C) Hearing. The procedure for the vacation 

hearing shall follow that prescribed in R.C.M. 

405(g), (h)(l), and (9. 

(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 confineittent. 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)(l)@) 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 @D Form 455). 

(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 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 co:~rt-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) Execution. Any unexecuted part of a suspended sentence ordered vacated under this rule 

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 courtmartial convening for the command in 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)(l)(B) of this rule. 

(3) Hearing. The procedure for the vacation hearing shall follow that prescribed in R.C.M. 405(g), 

(h)(l), and (i). 

(4) Autlzority to vacate suspension. The special 

court-martial convening authority for the command 

in which the probationer is serving or assigned shall 

11-157 
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. 

(0 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 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, regardless of whether they are 

contained in the same sentence as the bad-conduct discharge. 

See Appendix 18 for a sample of a Report of Proceedings to 

Vacate Suspension of a Special Court-Martial Sentence including 

a bad-conduct discharge under Article 72, UCMJ, and R.C.M. 

1109 (DDForm 455). 

(g) Vacation of a suspended summary court-martial 

sentence. 

(1) Before vacation of the suspension of a summary court-martial sentence, the summary courtmartial convening authority for the command in 

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)(l)(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)(l), and (0. 

(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 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. 

Rule 1110. Waiver or withdrawal of appellate 

review 

(a) In general. After any general court-martial, except one in which the approved sentence includes 

death, and after any special court-martial in which 

the approved sentence includes a bad-conduct discharge, the accused may waive or withdraw appellate review. 

Discussion 

Appellate review is not available for special courts-martial in 

which a bad-conduct discharge 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 re- 
viewed 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 

consult with counsel qualified under R.C.M. 

502(d)(l) before submitting a waiver or withdrawal 

of appellate review. 

(2) Waiver. 

(A) Counsel who represented the accused at 

the court-martial. The accused shall have the right 

to consult with any civilian, individual military, or 

detailed counsel who represented the accused at the 

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 

represented the accused at the court-martial, and 

shall advise the accused concerning whether to 

waive appellate review. 

(C) Substitute counsel. If counsel who represented the accused at the court-martial has been excused under R.C.M. 505(d)(2)(J3), 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 wit11 appellate defense 

counsel and shall advise the accused whether to 

withdraw the appeal. 

(C) No counsel. If appellate defense counsel 

has not been assigned to the accused, defense counsel shall be detailed for the accused. Such counsel 

shall advise the accused concerning whether to withdraw the appeal. If practicable, counsel who represented the accused at the court-martial shall be 

detailed. 

(4) Civilian counsel. Whether or not the accused 

was represented by civilian counsel at the courtmartial, the accused may consult with civilian counsel, at no expense to the United States, concerning 

whether to waive or withdraw appellate review. 

(5) Record of trial. Any defense counsel with 

whom the accused consults under this rule shall be 

given reasonable opportunity to examine the record 

of trial. 

Discussion 

Ordinarily counsel may use the accused's copy of the record. 

If this is not possible, as when the accused and counsel are 

physically separated, another copy should be made available to 

counsel. 

(6) Consult. The right to consult with counsel, as 

used in this rule, does not require communication in 

the presence of one another. 

(c) Compulsion, coercion, inducement prohibited. 

No person may compel, coerce, or induce an accused by force, promises of clemency, or otherwise 

to waive or withdraw appellate review. 

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

withdrawal of appellate review shall: 

(1) Be written; 

(2) State that the accused and defense counsel 

have discussed the accused's right to appellate review and the effect of waiver or withdrawal of appellate review and that the accused understands 

these matters; 

(3) State that the waiver or withdrawal is submitted voluntarily; and 

(4) Be signed by the accused and by defense 

counsel. 

Discussion 

See Appendix 19 (DD Form 2330) or Appendix 20 (DD 

Form 2331) for samples of forms. 
(e) To wliorn submitted. 

(1) Waiver. A waiver of appellate review shall be 

filed with tlie convening authority. The waiver shall 

be attached to the record of trial. 

(2) Witlrdrawal.A withdrawal of appellate review 

may be filed with the authority exercising general 

court-martial jurisdiction over the accused, who 

shall promptly forward it to the Judge Advocate 

General, or airectly with the Judge Advocate 

General. 

(f) Tirne lintit. 

(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 witli a 

copy of the action under R.C.M. 1107(1i). Upon 

written application of the accused, tlie convening 

authority may extend this period for good cause, for 

not more than 30 days. 

(2) Wit!rdrawal. The accused may file withdrawal 

from appellate review at any time before such review is completed. 

(g) Effect of waiver or witl~drawal; slrbstarttial cornpliance reqziired 

(1) In general. A waiver or withdrawal of appellate review under this rule sliall bar review by the 

Judge Advocate General under R.C.M. 1201(b)(l) 

and by the Court of Criminal Appeals. Once submitted, a waiver or withdrawal in compliance with this 

rule may not be revoked. 

(2) Waiver. If the accused files a timely waiver of 

appellate review in accordance with this rule, the 

record shall be forwarded for review by a judge 

advocate under R.C.M. 11 12. 

(3) Withdrawal. Action on a withdrawal of appellate review shall be carried out in accordance with 

procedures established by the Judge Advocate General, or if the case is pending before a Court of 

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) Slibstantial cornpliar~ce required A purported 

waiver or withdrawal of an appeal which does not 

substantially comply wit11 this rule shall have no 

effect. 

Rule 1111. Disposition of the record of trial 

after action 

(a) General cosirts-martial. 

(1) Cases forwardecl to the Jlulge Advocate General. A record of trial by general court-martial and 

the convening authority's action shall be sent 

directly to the Judge Advocate General concerned if 

the approved sentence includes death or if the accused has not waived review under R.C.M. 11 10. 

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 tlie record of trial sl~all accompany 

the original record if the approved sentence includes 

death or if it includes dismissal of an officer, cadet, 

or midshipman, disllonorable or bad-conduct discharge, or confinement for one year or more and the 

accused has not waived appellate review. 

(2) Cases forwarded to a jrrdge advocate. A record of trial by general court-martial and the convening autliority's action shall be sent directly to a 

judge advocate for review under R.C.M. 11 12 if the 

sentence does not include death and if the accused 

has waived appellate review under R.C.M. 11 10. 

Unless otherwise prescribed by tlie Secretary concerned, 4 copies of the order promulgating the result 

of trial shall be forwarded witli the original record of 

trial. 

(b) Special corir-ts-martial. 

(1) Cases ir~cliidirtg an approved bad-corrduct 

discllarge. If tlie approved sentence of a special 

court-martial includes a bad-conduct discharge, the 

record sliall be disposed of as provided in subsection 

(a) of this rule for records of trial by general courtmartial. 

(2) Other cases. The record of trial by a special 

court-martial in which the approved sentence does 

not include a bad-conduct discharge shall be forwarded directly to a judge advocate for review under 

R.C.M. 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) Szunrnary courts-ntartial. 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 Secretq concerned, a judge advocate shall review: 

(1) Each general court-martial in which the accused has waived or withdrawn appellate review 

under R.C.M. 11 10. 

(2) Each special court-martial in which the accused has waived or withdrawn appellate review 

under R.C.M. 1110 or in which the approved sentence does not include a bad-conduct discharge; and 

(3) Each summary court-martial. 

(b) Exception. If the accused was 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 

otherwise acted on behalf of the prosecution or 

defense. 

(d) Fom and content of review. The judge advocate's review shall be in writing and shall contain 

the following: 

(1) Conclusions as to whether- 

(A) The court-martial had jurisdiction over the 

accused and each offense as to which there is a 

finding of guilty which has not been disapproved; 

(B) Each specification as to which there is a 

finding of guilty which has not been disapproved 

stated an offense; and 

(C) The sentence was legal; 

(2) A response to each allegation of error made in 

writing by the accused. Such allegations may be 

filed under R.C.M. 1105, 1106(f), or directly with 

the judge advocate who reviews the case; and 

(3) If the case is sent for action to the officer 

exercising general court-martial jurisdiction under 

subsection (e) of this rule, a recommendation as to 

the appropriate action to be taken and an opinion as 

to whether corrective action is required as a matter 

of law. 

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-inartial 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) Rehearing. If the officer exercising general 

court-martial jurisdiction orders a rehearing, but the 

convening authority finds a rehearing impracticable, 

the convening authority shall dismiss the charges. 

(3) 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) Records forwarded to the Judge Advocate 

General. If the judge advocate who reviews the case 

under this rule states that corrective action is required as a matter of law, and the officer exercising 

general 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)(l) 

of this rule shall be disposed of as prescribed by the 

Secretary concerned. 

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 

canied out. Except as provided in subsections (d)(2), (3), and (5) 

of this rule, no part of a sentence may be camed 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 

11-162 

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. 1 107. 

(c) Punishments which the convening authority may 

not order executed in the initial action. 

(1) Dishonorable or a bad-conduct discharge. 

Except as may otherwise be prescribed by the Secretary concerned, a dishonorable or a bad-conduct discharge may be ordered executed only by: 

(A) The officer who reviews the case under 

R.C.M. 11 12(f), as part of the action approving the 

sentence, except when that action must be forwarded 

under R.C.M. 11 12(g)(l); or 

(B) The officer then exercising general 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 advice of that officer's staff judge advocate as to 

whether retention of the servicemember would be in 

the best interest of the service. sllch advice shall 

include the findings and sentence as finally approved, 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 oficer, cadet, or 

midshipman. Dismissal of a com~nissioned officer, 

cadet, or midshipman may be approved and ordered 

executed only by the Secretary concerned or such 

Under Secretary or Assistant Secretary as the Secretary concerned may designate. 

Discussion 

See R.C.M. 1206(a) concerning approval by the Secretary 

(3) Sentences extending to death. A punishment of 

death may be ordered executed only by the 

President. 
Discussion 

See R.C.M.1207 concerning approval by the President. 

(d) Other considerations concerning the execution 

of certain sentences. 

(1) Death. 

(A) 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 

then exercising general court-martial jurisdiction 

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 

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 

fmdings 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 

adjudged by the court-martial, but the following 

shall be excluded in computing the service of the 

term of confinement: 

(i) Periods during which the sentence to confinement is suspended or deferred; 

(ii) Periods during which the accused is in 

custody of civilian authorities under Article 14 from 

the time of the delivery to the return to military 

custody, if the accused was convicted in the civilian 

court; 

(iii) Periods during which the accused 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 

court-martial 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 ai~thority has later revoked, or is erroneously released from confinement 

through misrepresentation or fraud on the part of the 

prisoner, or is erroneously released from confinement upon the prisoner's petition for a writ of 

habeas corpus under a court order which is later 

reversed; and 

(v) Periods during which another sentence 

by court-martial to confinement is being served. 

When a prisoner serving a court-martial sentence to 

confinement is later convicted by a court-martial of 

another offense and sentenced to confinement, the 

later sentence interrupts the running of the earlier 

sentence. Any unremitted remaining portion of the 

earlier sentence will be served after the later sentence is fully executed. 

(B) Nature of the confinement. The omission of 

"hard labor" from any sentence of a court-martial 

which has adjudged confinement shall not prohibit 

the authority who orders the sentence executed from 

requiring hard labor as part of the punishment. 

(C) Place of confinement. The authority who 

orders a sentence to confinement into execution shall 

designate the place of confinement under regulations 

prescribed by the Secretary concerned, unless otherwise prescribed by the Secretary concerned. Under 

such regulations as the Secretary concerned may 

prescribe, a sentence to confinement adjudged by a 

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court-martial or other military tribunal, regardless 

whether the sentence includes a punitive discharge 

or dismissal and regardless whether the punitive discharge or dismissal has been executed, may be ordered to be served in any place of confinement 

under the control of any of the armed forces or in 

any penal or correctional institution under the control of the United States or which the United States 

may be allowed to use. Persons so confined in a 

penal or correctional institution not under the control 

of one of the armed forces are subject to the same 

discipline and treatment as persons confined or committed by the courts of the United States or of the 

State, Territory, District of Columbia, or place in 

which the institution is situated. When the service of 

a sentence to confinement has been deferred and the 

deferment is later rescinded, the convening authority 

shall designate the place of confinement in the initial 

action on the sentence or in the order rescinding the 

deferment. No member of the armed forces may be 

placed in confinement in immediate association with 

enemy prisoners or other foreign nationals not members of the armed forces. The Secretary concerned 

may prescribe regulations governing the place and 

conditions of confinement. 

Discussion 

See R.C.M. 1101(c) concerning deferment of a sentence to 

confinement. 

(3) Confinement in lieu of fine. Confinement may 

not be executed for failure to pay a fine if the 

accused demonstrates that the accused has made 

good faith efforts to pay but cannot because of indigency, unless the authority considering imposition 

of confinement determines, after giving the accused 

notice and opportunity to be heard, that there is no 

other punishment adequate to meet the Government's interest in appropriate punishment. 

(4) Restriction; hard labor without confinement. 

When restriction and hard labor without confinement 

are included in the same sentence, they shall, unless 

one is suspended, be executed concurrently. 

(5) 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 

11-164 

that the later forfeitures will be executed when the 

earlier sentence to forfeitures is completed. 

Rule 11 14. 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 afier 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 

findings or other disposition of each charge and 
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 

authority. An order promulgating an acquittal, a 

court-martial terminated before findings, a courtmartial 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 fonns 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 infomzation. When 

an order contains information which must be classified, only the order retained in the unit files and 

those copies which accompany the record of trial 

shall be complete and contain the classified information. The order shall be assigned the appropriate 

security classification. Asterisks shall be substituted 

for the classified information in the other copies of 

the order. 

(e) Authentication. The promulgating order shall be 

authenticated by the signature of the convening or 

other competent authority acting on the case, or a 

person acting under the direction of such authority. 

A promulgating order prepared in compliance with 

this rule shall be presumed authentic. 

(f) Distribution. Promulgating orders shall be distributed as provided in regulations of the Secretary 

concerned. 
CHAPTER XII. APPEALS AND REVIEW 


Rule 1201. Action by the Judge Advocate 

General 

(a) Cases required to be referred to a Court of 

Criminal Appeals. The Judge Advocate General 

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 midshipman, dishonorable or bad-conduct discharge, or 

confinement for 1 year or longer; and 

(B) The accused has not waived or withdrawn 

appellate review. 

Discussion 

See R.C.M. 1110 concer~ing waiver or withdrawal of appellate review. 

See also subsection (b)(l) 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) Mandatory examination of certain general 

courts-martial. Except when the accused has waived 

the right to appellate review or withdrawn such review, the record of trial by a general court-martial in 

which there has been a finding of guilty and a sentence, the appellate review of which is not provided 

for in subsection (a) of this rule, shall be examined 

in the office of the Judge Advocate General. If any 

part of the findings or sentence is 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. 11 12(g)(l). The Judge Advocate General 

shall review each case forwarded under R.C.M. 

11 12(g)(l). On such review, the Judge Advocate 

General may vacate or modify, in whole or part, the 

findings or sentence, or both, of a court-martial on 

the ground of newly discovered evidence, fraud on 

the court-martial, lack of jurisdiction over the accused or the offense, error prejudicial to the substantial rights of the accused, or the appropriateness of 

the sentence. 

(3) Review by the Judge Advocate General after 

final review. 

(A) In general. Notwithstanding R.C.M. 1209, 

the Judge Advocate General may, sua sponte or 

upon application of the accused or a person with 

authority to act for the accused, vacate or modify, in 

whole or in part, the findings, sentence, or both of a 

court-martial which has been finally reviewed, but 

has not been reviewed either by a Court of Criminal 

Appeals or by the Judge Advocate G~neral under 

subsection (b)(l) of this rule, 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. 

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 
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) Rehearing. If the Judge Advocate Genera1 

sets aside the findings or sentence, the Judge Advocate General may, except when the setting aside is 

based on lack of sufficient evidence in the record to 

support the findings, order a rehearing. If the Judge 

Advocate General sets aside the findings and sentence and does not order a rehearing, the Judge Advocate General shall order that the charges be 

dismissed. If the Judge Advocate General orders a 

rehearing but the convening authority finds a rehearing impractical, the convening authority shall dismiss the chargcs. 

(c) Remission and suspension. The Judge Advocate 

General may, when so authorized by the Secretary 

concerned under Article 74, at any time remit or 

suspend the unexecuted part of any sentence, other 

than a sentence approved by the President. 

Rule 1202. Appellate counsel 

(a) In general. The Judge Advocate General concerned shall detail one or more commissioned officers as appellate Government counsel and one or 

more commissioned officers as appellate defense 

counsel who are qualified under Article 27(b)(l). 

(b) Duties. 

(1) Appellate Government counsel. Appellate 

Government counsel shall represent the United 

States before the Court of Criminal Appeals or the 

United States Court of Appeals for the Armed 

Forces when directed to do so by the Judge Advocate General concerned. Appellate Government 

counsel may represent the United States before the 

United States Supreme Court when requested to do 

so by the Attorney General. 

(2) Appellate defense counsel. Appellate defense 

counsel shall represent the accused before the Court 

of 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 hy 

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 extraordinary relief from a ruling in favor of the 

accused at trial. 

Discussion 

For a discussion of the duties of the trial defense counsel 

concerni~lg 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 (seeR.C.M. 

1205), appellate defense counsel should advise the accused 

whether to apply for review by the Supreme Court and which 

issues might be raised. If authorized to do so by the accused, 

appellate defense counsel may prepare and file a petition for a 

writ of certiorari on behalf of the accused. 

The accused has no right to select appellate defense counsel. 

Under some circumstances, however, the accused may be entitled 

to request that the detailed appellate defense counsel be replaced 

by another appellate defense counsel. 

11-167 
See also R.C.M. 1204(b)(l) conceming 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)(l). 

Discussion 

See R.C.M. 1110 concerning withdrawal of a case pending 

before a Court of Criminal Appeals. 

See R.C.M. 908 conceming procedures for interlocutory appeals by the Government. 

In cases referred to it under R.C.M. 1201, a Court of Criminal Appeals may act only with respect to the findings and 

sentence as approved by proper authority. It may affirm only such 

findings of guilty or such part of a finding of guilty as includes 

an included offense, as it finds correct in law and fact and determines on the basis of the entire record should be approved. A 

Court of 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 

11-168 

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 conceming 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 

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 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)(l) of this 

rule, the Judge Advocate General shall instruct an 

appropriate convening authority to take action in accordance with the decision of the Court of 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 afirmed in whole or 

part. 

(A) Sentence requiring approval by the President. 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)(l) 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 pennissible 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 senice 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)(l) of this rule. 

(2) Notification of right to petition the Court of 

Appeals for the Aimed 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 nolified ,JP 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 

11-169 
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). 

The accused may petition the Court of Appeals for the 

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)(l); (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)(l), 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 affmed 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)(l), 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 affiied 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 

Anned Forces. 

(b) Petition by the accused for review by the Court 

of Appeals for the Armed Forces. 

(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)(l) shall be detailed to advise and assist the 

accused in connection with preparing a petition for 

further appellate review. 

Discussion 

If reasonably available, the counsel who conducted the 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) Forwarding petition. The accused shall file 

any petition for review by the Court of Appeals for 

the Armed Forces under subsection (a)(3) of this 

rule directly with the Court of Appeals for the 

Armed Forces. 

Discussion 

See Article 67(c) and R.C.M. 1203(d)(2) conceming 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 conceming 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. 

If the Court of Appeals for the Armed Forces has 

affirmed a sentence which must be approved by the 

President before it may be executed, the Judge Advocate General shall transmit the record of trial, the 

decision of the Court of 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 for the action of 

the President. 

Discussion 

See Article 71(a) and R.C.M. 1207. 

(3) Sentence requiring approval of the Secretary 

concerned. If the Court of 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)(l). 

Discussion 

See Article 71(b) and R.C.M. 1206. 

(4) Decision subject to review by the Supreme 

Court. If the decision of the Court of Appeals for 

the Armed Forces is subject to review by the 

Supreme Court, the Judge Advocate General shall 

take no action under subsections (c)(l), (2), or (3) of 

this rule until: (A) the time for filing a petition for a 

writ of certiorari with the Supreme Court has expired; or (B) the Supreme Court has denied any 

petitions for writ of certiorari filed in the case. After 

(A) or (B) has occurred, the Judge Advocate General 

shall take action under subsection (c)(l), (2), or (3). 

If the Supreme Court grants a writ of certiorari, the 

11-171 
Judge Advocate General shall take action under 

R.C.M. 1205(b). 

Rule 1205. Review by the Supreme Court 

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

Under 28 U.S.C. 5 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)(l); 

(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)(l), (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). 

11-172 

(b) Remission and suspension. 

(1) In general. The Secretary concerned and, 

when designated by the Secretary concerned, any 

Under Secretary, Assistant Secretary, Judge Advocate General, or commander may remit or suspend 

any part or amount of the unexecuted part of any 

sentence, including all uncollected forfeitures, other 

than a sentence approved by the President. 

(2) Substitution of discharge. The Secretary concerned may, for good cause, substitute an adrninistrative discharge for a discharge or dismissal 

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 

death may be executed until approved by the 

President. 

Discussion 

See Article 71(a). See also R.C.M. 1203 and 1204 concerning review by the Court of Crimillal 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 wl~ich, 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 reqllired by the findings 

and sentence at the new trial. Ordinarily, action 

taken under this subsection shall be announced in 
the court-martial order promulgating the final results 

of the proceedings. 

Discussion 

See Article 75(b) and (c) concerning the action to be taken 

on an executed dismissal or discharge which is not imposed at a 

new trial. 

(b) Otlter cases. In cases other than those in subsection (a) of this rule, all rights, privileges, and property affected by an executed part of a court-martial 

sentence which has been set aside or disapproved by 

any competent authority shall be restored unless a 

new trial, other trial, or rehearing is ordered and 

such executed part is included in a sentence imposed 

at the new trial, other trial, or rehearing. Ordinarily, 

any restoration shall be announced in the court-martial order promulgating the final results of the 

proceedings. 

Discussion 

See R.C.M. 11 14 concerning promulgating orders. 

Rule 1209. Finality of courts-martial 

(a) When a conviction 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 

filed within the time limits prescribed by the 

Supreme Court, 

(ii) A petition for writ of certiorari is denied 

or otherwise rejected by the Supreme Court, or 

(iii) Review is otherwise completed in accordance with the judgment of the Supreme Court; 

or 

Discussion 

See R.C.M. 1201, 1203, 1204, and 1205 concerning cases 

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 affmed by the Judge Advocate General when review 

by the Judge Advocate General is required under 

R.C.M. 11 12(g)(l) or 1201(b)(l). 

(b) Effect of finality. The appellate review of records of trial provided by the code, the proceedings, 

findings, and sentences of courts-martial as approved, reviewed, or affirmed as required by the 

code, and all dismissals and discharges carried into 

execution under sentences by courts-martial following approval, review, or affirmation as required by 

the code, are final and conclusive. Orders publishing 

the proceedings of courts-martial and all action 

taken pursuant to those proceedings are binding 

upon all departments, courts, agencies, and officers 

of the United States, subject only to action upon a 

petition for a new trial under Article 73, to action by 

the Judge Advocate General under Article 69(b), to 

action by the Secretary concerned as provided in 

Article 74, and the authority of the President. 

Rule 1210. New trial 

(a) In general. At any time within 2 years after 

approval by the convening authority of a court-martial sentence, the accused may petition the Judge 

Advocate General for a new trial on the ground of 

newly discovered evidence or fraud on the 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 

11-173 
guilty of the relevant offense pursuant to a guilty 

plea. 

(b) Who lnay petition. A petition for a new trial may 

be submitted by the accused personally, or by accused's counsel, regardless whether the accused has 

been separated from the service. 

(c) Form of petition. A 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) ESfect of petition. The submission of a petition 

for a new trial dors 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 s~ihmitted. 

(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) The evidence was discovered after the 

trial; 

(B) The evidence is not such that it would have 

been discovered by the petitioner at the time of trial 

in the exercise of due diligence; and 

(C) The newly discovered evidence, if considered by a court-martial in the light of all other pertinent evidence, would probably produce a 

substantially more favorable result for the accused. 

(3) Fraud on court-martial. No fraud on the 

court-martial warrants a new trial unless it had a 

substantial contributing effect on a finding of guilty 

or the sentence adjudged. 

Discussion 

Examples of fraud on a court-martial which may warrant 

granting a new trial are: confessed or proved pe jury 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 

court-martial, 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. 

11-174 
(2) Courts of Criminal Appeals; Court of Appeals 

for the Armed Forces. The Courts of Criminal Appeals and the Court of Appeals for the Armed 

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 

Judge Advocate General. If the Judge Advocate 

General believes meritorious grounds for relief 

under Article 74 have been established but that a 

new trial is not appropriate, the Judge Advocate 

General may act under Article 74 if authorized to do 

so, or transmit the petition and related papers to the 

Secretary concerned with a recommendation. The 

Judge Advocate General may also, in cases which 

have been finally reviewed but have not been reviewed by a Court of 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) Court-martial orders. Court-martial orders 

promulgating the final action taken as a result of a 

new trial, including any restoration of rights, privileges, and property, shall be promulgated in accordance with R.C.M. 11 14. 

Discussion 

See Article 75 and R.C.M. 1208 concerning restoration of 

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 

credit the accused with any executed portion or 

amount of the original sentence included in the new 

sentence in computing the term or amount of punishment actually to be executed pursuant to the 

sentence. 
CHAPTER XIII. SUMMARY COURTS-MARTIAL 


Rule 1301. Summary courts-martial 

generally 

(a) Composition. A summary court-martial is composed of one commissioned officer on active duty. 

Unless otherwise prescribed by the Secretary concerned a summary court-martial shall be of the same 

armed force as the accused. Whenever practicable, a 

summary court-martial should be an officer whose 

grade is not below lieutenant of the Navy or Coast 

Guard or captain of the Army, Air Force, or Marine 

Corps. When only one commissioned officer is present with a command or detachment, that officer shall 

be the summary court-martial of that command or 

detachment. When more than one commissioned officer is present with a command or detachment, the 

convening authority may not be the summary courtmartial of that command or detachment. 

(b) Function. The function of the summary courtmartial is to promptly adjudicate minor offenses 

under a simple procedure. The summary court-martial shall thoroughly and impartially inquire into 

both sides of the matter and shall ensure that the 

interests of both the Government and the accused 

are safeguarded and that justice is done. A summary 

court-martial may seek advice from a judge advocate 

or legal officer on questions of law, but the summary court-martial may not seek advice from any 

person on factual conclusions which should be 

drawn from evidence or the sentence which should 

be imposed, as the summary court-martial has the 

independent duty to make these determinations. 

Discussion 

For a definition of "minor offenses," see paragraph le, Part 

v. 

(c) Jurisdiction. Subject to Chapter 11, summary 

courts-martial have the power to try persons subject 

to the code, except commissioned officers, warrant 

officers, cadets, aviation cadets, and midshipmen, 

for any noncapital offense made punishable by the 

code. 

Discussion 

See R.C.M. 103(3) for a definition of capital offenses. 

(d) Punishments. 

(1) Limitations--amount. Subject to R.C.M. 1003, 

summary courts-martial may adjudge any punishment not forbidden by the code except death, dismissal, dishonorable or bad-conduct discharge, 

confinement for more than 1 month, hard labor without confinement for more than 45 days, restriction to 

specified limits for more than 2 months, or forfeiture 

of more than two-thirds of 1 month's pay. 

Discussion 

The maximum penalty which can be adjudged in a 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 un- 
reasonably delay the proceedings and if military 

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 (0. 

(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 inay convene srrminary 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 is accuser' If the 'Onvening authority Or the summary court-martia1is the 

accuser, it is discretionary with the convening authority whether to forward the charges to a superior 

authority with a recommendation to convene the 

summary court-martial. If the convening authority or 

the summary court-martial is the accuser, the jurisdiction of the summary court-martial is not affected. 

(c) Procedure. After the requirements of Chapters 

I11 and IV of this Part have been satisfied, summary 

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 rrferred 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 commi'ssioned 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 arraignmcnt 

may be tried by summary court-martial even if that 

person also refused punishment under Article 15 and 

demanded trial by court-martial for the same 

offenses. 

Discussion 

If the accused objects to trial by summary court-martial, the 

convening authority may dispose of the case in accordance with 

R.C.M. 401. 

Rule 1304. Trial procedure 

(a) Pretrial duties. 

(1) Exainination of file. The summary court-martial shall carefully examine the cbarge 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 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) Report of irregulaiity. The summary couitmartial shall report to the convening authority any 

substantial irregularity in the charge sheet, allied 

papers, or personnel records. 

Discussion 

The summary court-martial should examine the charge sheet, 

allied papers, and personnel records to ensure that they are complete and free from errors or omissions which might affect admissibility. The summary court-martial should check the 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 Par1 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) Correction and amendment. The summary 

court-martial may, subject to R.C.M. 603, correct 

errors on the charge sheet and amend charges and 

specifications. Any such corrections or amendments 

shall be initialed. 

(b) Summary court-martial procedure. 

Discussion 

A sample guide is at Appendix 9. The summary court-martial should review and become familiar with the guide used before 

proceeding. 

(1) Prelitniitary proceeding. After complying with 

R.C.M. 1304(a), the summary court-martial shall 

hold a preliminary proceeding during which the accused shall be given a copy of the charge sheet and 

informed of the following: 

(A) The general nature of the charges; 

(B) The fact that the charges have been referred to a summary court-martial for trial and the 

date of referral; 

(C) The identity of the convening authority; 

(D) The narne(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 courtmartial will not consider any matters, including 

statements previously made by the accused to the 

officer detailed as summary court-martial unless admitted in accordance with the Military Rules of 

Evidence; 

(H) The accused's right to plead not guilty or 

guilty; 

(I) The accused's right to cross-examine witnesses and have the summary court-martial 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) Objection to trial. The summary courtmartial shall give the accused a reasonable period of 

time to decide whether to object to trial by summary 

court-martial. The summary court-martial shall 

thereafter record the response. If the accused objects 

to trial by summary court-martial, the summary 

court-martial shall return the charge sheet, allied 

papers, and personnel records to the convening authority. If the accused fails to object to trial by 

summary court-martial, trial shall proceed. 

(B) Arraignment. After complying with R.C.M. 

1304(b)(l) and (2)(A), the summary court-martial 

shall read and show the charges and specifications to 

the accused and, if necessary, cxplain them. The 
accused may waive the reading of the charges. The 

summary court-martial shall then ask the accused to 

plead to each specification and charge. 

(C) Motions. Before receiving pleas the summary court-martial shall allow the accused to make 

motions to dismiss or for other relief. The summary 

court-martial shall take action on behalf of the accused, if requested by the accused, or if it appears 

necessary in the interests of justice. 

@) Pleas. 

(i) Not guilty pleas. When a not guilty plea 

is entered, the summary court-martial shall proceed 

to trial. 

(ii) Guilty pleas. If the accused pleads guilty 

to any offense, the summary court-martial shall 

comply with R.C.M. 910. 

(iii) Rejected guilty pleas. If the summary 

court-martial is in doubt that the accused's pleas of 

guilty are voluntarily and understandingly made, or 

if at any time during the trial any matter inconsistent 

with pleas of guilty arises, which inconsistency cannot be resolved, the summary court-martial shall 

enter not guilty pleas as to the affected charges and 

specifications. 

(iv) No plea. If the accused refuses to plead, 

the summary court-martial shall enter not guilty 

pleas. 

(v) Changed pleas. The accused may change 

any plea at any time before findings are announced. 

The accused may change pleas from guilty to not 

guilty after findings are announced only for good 

cause. 

(E) Presentation of evidence. 

(i) The Military Rules of Evidence (Part 111) 

apply to summary courts-martial. 

(ii) The summary court-martial shall arrange 

for the attendance of necessary witnesses for the 

prosecution and defense, including those requested 

by the accused. 

Discussion 

See R.C.M. 703. Ordinarily witnesses should be excluded 

from the courtroom until called to testify. See Mil. R. Evid. 615. 

(iii) Witnesses for the prosecution shall be 

called first and examined under oath. The accused 

shall be permitted to cross-examine these witnesses. 

The summary court-martial shall aid the accused in 

cross-examination if such assistance is requested or 

appears necessary in the interests of justice. The 

witnesses for the accused shall then be called and 

similarly examined under oath. 

(iv) The summary court-martial shall obtain 

evidence which tends to disprove the accused's guilt 

or establishes extenuating circumstances. 

Discussion 

See R.C.M. 703 and 1001. 

(F)Findings and sentence. 

(i) The summary court-martial shall apply 

the principles in R.C.M. 918 in determining the findings. The summary court-martial shall announce the 

findings to the accused in open session. 

(ii) The summary court-martial shall follow 

the procedures in R.C.M. 1001 and apply the principles in the remainder of Chapter X in determining a 

sentence. The summary court-martial shall announce 

the sentence to the accused in open session. 

(iii) If the sentence includes confinement, 

the summary court-martial shall advise the accused 

of the right to apply to the convening authority for 

deferment of the service of the confinement. 

(iv) If the accused is found guilty, the summary court-martial shall advise the accused of the 

rights under R.C.M. 1306(a) and (d) after the sentence is announced. 

(v) The summary court-martial shall, as soon 

as practicable, inform the convening authority of the 

findings, sentence, recommendations, if any, for suspension of the sentence, and any deferment request. 

(vi) If the sentence includes confinement, the 

summary court-martial shall cause the delivery of 

the accused to the accused's commanding officer or 

the commanding officer's designee. 

Discussion 

If the accused's immediate commanding officer is not the 

convening authority, the su~nmary 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 confi~ement. 
-- -- 

Rule 1305. Record of trial 

(a) 111 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 requirenients for 

the record of trial. 

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) sllould be appended to the record of trial. 

(b) Conlents. 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)(l); 

(3) If the summary court-martial is the convening 

authority, a notation to that effect. 

(c) Aiitlierttication. The summary court-martial shall 

authenticate tlie record by signing each copy. 

Discussion 

"Autl~entication" means attesting that the record accurately 

reports the proceediegs. See R.C.M. 1104(a). 

(d) Forwarding copies of tlte record. 

(1) Accused's copy. 

(A) Service. The sulnmary 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. Tlie 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 tlie accused was 

served a copy of the record. If tlie record of trial was 

not served on the accused personally, the summary 

court-martial sliall attach a statement explaining how 

and when such service was accomplisl~ed. If the 

accused was represented by counsel, such counsel 

may be served with the record of trial. 

(C) Classifier1 inforrrlation. If classified information is included in the record of trial of a summary court-martial, R.C.M. 1 104(b)(l)(D) shall 

apply. 

(2) Forwarding to tlie convening aiitlioriry. The 

original and one copy of the record of trial shall be 

forwarded to the convening autliority after compliance with subsection (e)(l) of this rule. 

(3) Fzrrtlier disposition. After compliance with 

R.C.M. 1306(b) and (c), the record of trial sliall be 

disposed of under regulations prescribed by tlle Secretary concerned. 

Rule 1306. Post-trial procedure 

(a) Matters s~ibrnitted by tlie accirsecl. After a sentence is adjudged, the accused may submit written 

matters to the convening autliority in accordance 

with R.C.M. 1105. 

(b) Corzvenirzg aritliority 's action. 

(1) Wllo slrall act. Except as provided herein, the 

conveliing autliority sllall take action in accordance 

with R.C.M. 1107. The convening authority shall 

not take action before the period prescribed in 

R.C.M. 1105(c)(3) lias expired, unless the right to 

submit matters has been waived under R.C.M. 

1 105(d). 

(2) Action. Tlie action of the convening authority 

shall be shown on all copies of the record of trial 

except that provided the accused if llie accused has 

retained that copy. An order promulgating the result 

of a trial by summary court-martial need not be 

issued. A copy of tlie action sliall be forwarded to 

the accused. 

(3) Signature. Tlie action on the original record 

of trial shall be signed by the convening authority. 

Tlie convening autliority's action on other copies of 

tlie record of trial shall either be signed by tlie convening autliority or be prepared and certified as true 

copies of the original. 

(4) Slibseqlient action. Any action taken on a 

summary court-martial after tlie initial action by tlie 

convening autliority shall be in writing, signed by 

tlie aulhority taking the action, and promulgated in 

appropriate orders. 

Discussion 

See R.C.M. 11 14 concerning promulgating orders. 
(c) Review by a judge advocate. Unless otherwise shall be reviewed by a judge advocate in accordance 

prescribed by regulations of the Secretary concerned, with R.C.M. 1112. 

the original record of the summary court-martial (d) Review by the Judge Advocate General. The accused may request review of a final conviction by 

summary court-martial by the Judge Advocate General in accordance with R.C.M. 1201(b)(3). 
PART Ill 


MILITARY RULES OF EVIDENCE 


SECTION I 


GENERAL PROVISIONS 


Rule 101. Scope 

(a) Applicability. These rules are applicable in 

courts-martial, including summary courts-martial, to 

the extent and with the exceptions stated in Mil. R. 

Evid. 1101. 

(b) Secondary Sources. If not otherwise prescribed 

in this Manual or these rules, and insofar as practicable and not inconsistent with or contrary to the 

code or this Manual, courts-martial shall apply: 

(1) First, the rules of evidence generally recognized in the trial of criminal cases in the United 

States district courts; and 

(2) Second, when not inconsistent with subdivision(b)(l), the rules of evidence at common law. 

(c) Rule of construction. Except as otherwise provided in these rules, the term "military judge" includes the president of a special court-martial 

without a military judge and a summary court-martial officer. 

Rule 102. Purpose and construction 

These rules shall be construed to secure fairness 

in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the 

truth may be ascertained and proceedings justly 

determined. 

Rule 103. 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 proo$ In case the ruling is one excluding evidence, the substance of the evidence was 

made known to the military judge by offer or was 

apparent from the context within which questions 

were asked. 

The standard provided in this subdivision does not 

apply to errors involving requirements imposed by 

the Constitution of the United States as applied to 

members of the armed forces except insofar as the 

error arises under these rules and this subdivision 

provides a standard that is more advantageous to the 

accused than the constitutional standard. 

(b) Record of offer and ruling. The military judge 

may add any other or further statement which shows 

the character of the evidence, the form in which it 

was offered, the objection made, and the ruling 

thereon. The military judge may direct the making 

of an offer in question and answer form. 

(c) Hearing of members. In a court-martial composed of a military judge and members, proceedings 

shall be conducted, to the extent practicable, so as to 

prevent inadmissible evidence from being suggested 

to the members by any means, such as making statements or offers of proof or asking questions in the 

hearing of the members. 

(d) Plain error. Nothing in this rule precludes taking notice of plain errors that materially prejudice 

substantial rights although they were not brought to 

the attention of the military judge. 

Rule 104. Preliminary questions 

(a) Questions of adnlissibility generally. Preliminary 

questions concerning the qualification of a person to 

be a witness, the existence of a privilege, the adrnissibility of evidence, an application for a continuance, 

or the availability of a witness shall be determined 

by the military judge. In making these deterrninations the military judge is not bound by the rules of 

evidence except those with respect to privileges. 

(b) Relevancy conditioned on fact. When the 

relevancy of evidence depends upon the fulfillment 

of a condition of fact, the military judge shall admit 

it upon, or subject to, the introduction of evidence 

sufficient to support a finding of the fulfillment of 

the condition. A ruling on the sufficiency of evidence to support a finding of fulfillment of a condi 

tion of fact is the sole responsibility of the military 

judge, except where these rules or this Manual provide expressly to the contrary. 
(c) Hearing of members. Except in cases tried 

before a special court-martial without a military 

judge, hearings on the admissibility of statements of 

an accused under Mil. R. Evid. 301-306 shall in all 

cases be conducted out of the hearing of the members. Hearings on other preliminary matters shall be 

so conducted when the interests of justice require or, 

when an accused is a witness, if the accused so 

requests. 

(d) Testimony by accused. The accused does not, by 

testifying upon a preliminary matter, become subject 

to cross-examination as to other issues in the case. 

(e) Weiglzt and credibility. This rule does not limit 

the right of a party to introduce before the members 

evidence relevant to weight or credibility. 

Rule 105. Limited admissibility 

When evidence which is admissible as to one 

party or for one purpose but not admissible as to 

another party or for another purpose is admitted, the 

military judge, upon request, shall restrict the evidence to its proper scope and instruct the members 

accordingly. 

Rule 106. Remainder of or related writings 

or recorded statements 

When a writing or recorded statement or part 

thereof is introduced by a party, an adverse party 

may require that party at that time to introduce any 

other part or any other writing or recorded statement 

which ought in fairness to be considered contemporaneously with it. 

SECTION II 

JUDICIAL NOTICE 

Rule 201. Judicial notice of adjudicative 

facts 

(a) Scope of rule. This rule governs only judicial 

notice of adjudicative facts. 

(b) Kinds of facts. A judicially noticed fact must be 

one not subject to reasonable dispute in that it is 

either (1) generally known universally, locally, or in 

the area pertinent to the event or (2) capable of 

accurate and ready determination by resort to 

sources whose accuracy cannot reasonably be 

questioned. 

(c) When discretionary. The military judge may 

take judicial notice, whether requested or not. The 

parties shall be informed in open court when, without being requested, the military judge takes judicial 

notice of an adjudicative fact essential to establishing an element of the case. 

(d) When mandatory. The military judge shall take 

judicial notice if requested by a party and supplied 

with the necessary information. 

(e) Opportunity to be heard. A party is entitled 

upon timely request to an opportunity to be heard as 

to the propriety of taking judicial notice and the 

tenor of the matter noticed. In the absence of prior 

notification, the request may be made after judicial 

notice has been taken. 

(f) Time of taking notice. Judicial notice may be 

taken at any stage of the proceeding. 

(g) Instructing members. The military judge shall 

instruct the members that they may, but are not 

required to, accept as conclusive any matter judicially noticed. 

Rule 201A. Judicial notice of law 

(a) Domestic law. The military judge may take judicial notice of domestic law. Insofar as a domestic 

law is a 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 Ill 

EXCLUSIONARY RULES AND RELATED 

MAlTEWS CONCERNING SELFINCRIMINATION, SEARCH AND SEIZURE, 

AND EYEWITNESS IDENTIFICATION 

Rule 301. Privilege concerning compulsory 

self-incrimination 

(a) General rule. The privileges against self-incrimination provided by the Fifth Amendment to the Constitution of the United States and Article 31 are 

111-2 
applicable only to evidence of a testimonial or communicative nature. The privilege most beneficial to 

the individual asserting the privilege shall be 

applied. 

(b) Standing. 

(1) In general. The privilege of a witness to refuse to respond to a question the answer to which 

may tend to incriminate the witness is a personal 

one that the witness may exercise or waive at the 

discretion of the witness. 

(2) Jlldicial advice. If a witness who is apparently 

uninformed of the privileges under this rule appears 

likely to incriminate himself or herself, the military 

judge should advise the witness of the right to decline to make any answer that might tend to incriminate the witness and that any self-incriminating 

answer the witness might make can later be used as 

evidence against the witness. Counsel for any party 

or for the witness may request the military judge to 

so advise a witness provided that such a request is 

made out of the hearing of the witness and, except 

in a special court-martial without a military judge, 

the members. Failure to so advise a witness does not 

make the testimony of the witness inadmissible. 

(c) Exercise of the privilege. If a witness states that 

the answer to a question may tend to incriminate 

him or her, the witness may not be required to answer unless facts and circumstances are such that no 

answer the witness might make to the question could 

have the effect of tending to incriminate the witness 

or that the witness has, with respect to the question, 

waived the privilege against self-incrimination. A 

witness may not assert the privilege if the witness is 

not subject to criminal penalty as a result of an 

answer by reason of immunity, running of the statute 

of limitations, or similar reason. 

(1) Immunity generally. The minimum grant of 

immunity adequate to overcome the privilege is that 

which under either R.C.M. 704 or other proper authority provides that neither the testimony of the 

witness nor any evidence obtained from that testimony may be used against the witness at any subsequent trial other than in a prosecution for perjury, 

false swearing, the 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 

question without having asserted the privilege 

against self-incrimination and thereby admits a selfincriminating fact may be required to disclose all 

informati011 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. 

(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 re- 
quested that the questioning be terminated is 

inadmissible against the accused. 

(g) Instructions. When the accused does not testify 

at trial. defense counsel may request that the members of the court be instructed to disregard that fact 

and not to draw any adverse inference from it. Defense counsel may request that the members not be 

so instructed. Defense counsel's election shall be 

binding upon the military judge except that the military judge may give the instruction when the instruction is necessary in the interests of justice. 

Rule 302. Privilege concerning mental 

examination of an accused 

(a) General rule. The accused has a privilege to 

prevent any statement made by the accused at a 

mental examination ordered under R.C.M. 706 and 

any derivative evidence obtained through use of 

such a statement from being received into evidence 

against the accused on the issue of guilt or innocence or during sentencing proceedings. This privilege may be claimed by the accused notwithstanding 

the fact that the accused may have been warned of 

the rights provided by Mil. R. Evid. 305 at the 

examination. 

(b) Exceptions. 

(1) There is no privilege under this rule when the 

accused first introduces into evidence such statements or derivative evidence. 

(2) An expert witness for the prosecution may 

testify as to the reasons for the expert's conclusions 

and the reasons therefor as to the mental state of the 

accused if expert testimony offered by the defense 

as to the mental condition of the accused has been 

received in evidence, but such testimony may not 

extend to statements of the accused except as provided in (1). 

(c) Release of evidence. If the defense offers expert 

testimony concerning the mental condition of the 

accused, the military judge, upon motion, shall order 

the release to the prosecution of the full contents, 

other than any statements made by the accused, of 

any report prepared pursuant to R.C.M. 706. If the 

defense offers statements made by the accused at 

such examination, the military judge may upon motion order the disclosure of such statements made by 

the accused and contained in the report as may be 

necessary in the interests of justice. 

(d) Noncompliance by the accused. The military 

judge may prohibit an accused who refuses to cooperate in a mental examination authorized under 

R.C.M. 706 from presenting any expert medical testimony as to any issue that would have been the 

subject of the mental examination. 

(e) Procedure. The privilege in this rule may be 

claimed by the accused only under the procedure set 

forth in Mil. R. Evid. 304 for an objection or a 

motion to suppress. 

Rule 303. Degrading questions 

No person may be compelled to make a statement 

or produce evidence before any military tribunal if 

the statement or evidence is not material to the issue 

and may tend to degrade that person. 

Rule 304. Confessions and admissions 

(a) General rule. 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 

concerning counsel under Mil. R. Evid. 305(d), 

305(e), and 305(g), this rule does not prohibit use of 

the statement to impeach by contradiction the 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 

off~cial 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) 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 

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. 

(c) Definitions. As used in these rules: 

(1) Confession. A"confession" is an acknowledg111-4 
ment of guilt. 

(2) Admission. An "admission" is a self-incriminating statement falling short of an acknowledgment 

of guilt, even if it was intended by its maker to be 

exculpatory. 

(3) Involuntary. A statement is "involuntary" if it 

is obtained in violation of the self-incrimination 

privilege or due process clause of the Fifth Amendment to the Constitution of the United States, Article 

31, or through the use of coercion, unlawful influence, or unlawful inducement. 

(d) Procedure. 

(1) Disclosure. Prior to arraignment, the prosecution shall disclose to the defense the contents of all 

statements, oral or written, made by the accused that 

are relevant to the case, known to the trial counsel, 

and within the control of the armed forces. 

(2) Motions and objections. 

(A) Motions to suppress or objections under 

this rule or Mil. R. Evid. 302 or 305 to statements 

that have been disclosed shall be made by the defense prior to submission of a plea. In the absence of 

such motion or objection, the defense may not raise 

the issue at a later time except as permitted by the 

military judge for good cause shown. Failure to so 

move or object constitutes a waiver of the objection. 

(B) If the prosecution intends to offer against 

the accused a statement made by the accused that 

was not disclosed prior to arraignment, the prosecution shall provide timely notice to the military judge 

and to counsel for the accused. The defense may 

enter an objection at that time and the military judge 

may make such orders as are required in the interests of justice. 

(C) If evidence is disclosed as derivative evidence under this subdivision prior to arraignment, 

any motion to suppress or objection under this rule 

or Mil. R. Evid. 302 or 305 shall be made in accordance with the procedure for challenging a statement 

under (A). If such evidence has not been so disclosed prior to arraignment, the requirements of (B) 

apply 

(3) Spec$city. The military judge may require 

the defense to specify the grounds upon which the 

defense moves to suppress or object to evidence. If 

defense counsel, despite the exercise of due diligence, has been unable to interview adequately those 

persons involved in the 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 expressly provided in R.C.M. 910(a)(2), a plea of 

guilty to an offense that results in a finding of guilty 

waives all privileges against self-incrimination and 

all motions and objections under this rule with 

respect to that offense regardless of whether raised 

prior to plea. 

(e) Burden of proof: When an appropriate motion or 

objection has been made by the defense under this 

rule, the prosecution has the burden of establishing 

the admissibility of the evidence. When a specific 

motion or objection has been required under subdivision (d)(3), the burden on the prosecution extends 

only to the grounds upon which the defense moved 

to suppress or object to the evidence. 

(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 tlze evidence. If a statement is admitted into evidence, the military judge shall permit 

the defense to present relevant evidence with respect 

to the voluntariness of the statement and shall instruct the members to give such weight to the statement as it deserves under all the circumstances. 

When trial is by military judge without members, 

the military judge shall determine the appropriate 

weight to give the statement. 

(3) Derivative evidence. Evidence that is challenged under this rule as derivative evidence may be 

admitted against the accused if the military judge 

finds by a preponderance of the evidence that the 

statement was made voluntarily, that the evidence 

111-5 
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 independent evidence necessary to establish corroboration 

need not be sufficient of itself to establish beyond a 

reasonable doubt the truth of facts stated in the admission or confession. The independent evidence 

need raise only an inference of the truth of the 

essential facts admitted. The amount and type of 

evidence introduced as corroboration is a factor to 

be considered by the trier of fact in determining the 

weight, if any, to be given to the admission or 

confession. 

(2) Procedure. The military judge alone shall determine when adequate evidence of corroboration 

has been received. Corroborating evidence usually is 

to be introduced before the admission or confession 

is introduced but the military judge may admit evidence subject to later corroboration. 

(h) Miscellaneous. 

(1) Oral statements. A voluntary oral confession 

or admission of the accused may be proved by the 

testimony of anyone who heard the accused make it, 

even if it was reduced to writing and the writing is 

not accounted for. 

(2) Completeness. If only part of an alleged admission or confession is introduced against the accused, the defense, by cross-examination or 

otherwise, may introduce the remaining portions of 

the statement. 

(3) Certain admissions by silence. A person's 

failure to deny an accusation of wrongdoing concerning an offense for which at the time of the 

alleged failure the person was under official investigation or was in confinement, arrest, or custody does 

not support an inference of an admission of the truth 

of the accusation. 

(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 

agent of a military unit or of a person subject to the 

code. 

(2) Interrogation. "Interrogation" includes any 

formal or informal questioning in which an incrimi111-6 
nating response either is sought or is a reasonable 

consequence of such questioning. 

(c) Warnings concerning the accusation, right to 

remain silent, and use of statements. A person subject to the code who is required to give warnings 

under Article 3 1 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 

coui~selas 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 prefemal 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) Custodial interrogation. Absent a valid 

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)(l)(A) of this 

rule, and the accused or suspect requests counsel, 

counsel must be present before any subsequent custodial interrogation may proceed. 

(2) Post-referral 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)(l)(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)(l) 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 

affmatively that he or she understands the rights 

involved, affmatively decline the right to counsel 

and affimatively 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 prosecution must demonstrate by a preponderance of the 

evidence that the individual waived the right to 

counsel. 

(B) If an accused or suspect interrogated under 

111-7 
circumstances described in subdivision (d)(l)(A) requests counsel, any subsequent waiver of the right to 

counsel obtained during a custodial interrogation 

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 

(ii) the accused or suspect has not 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)(l)(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 

United States district courts involving similar 

interrogations. 

(2) Foreign interrogations. Neither warnings 

under subdivisions (c) or (d), nor notice to counsel 

under subdivision (e) are required during an interrogation conducted abroad by officials of a foreign 

government or their agents unless such interrogation 

is conducted, instigated, or participated in by military personnel or their agents or by those officials or 

agents listed in subdivision (h)(l). A statement obtained during such an interrogation is involuntary 

within the meaning of Mil. R. Evid. 304(b)(3) if it is 

obtained through the use of coercion, unlawful influence, or unlawful inducement. An interrogation is 

not "participated in" by military personnel or their 

agents or by the officials or agents listed in subdivision (h)(l) merely because such a person was present at an interrogation conducted in a foreign nation 

by officials of a foreign government or their agents, 

or because such a person acted as an inte~preter 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 

by contradiction the in-court testimony of the 

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. 

(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 

or arrest warrant issued by competent civilian 

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 authorization or warrant reasonably and with good 

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 

the United States as applied to members of the 

armed forces, an Act of Congress applicable to trials 

by court-martial that requires exclusion of evidence 

obtained in violation thereof, or Mil. R. Evid. 

312-317; 

(2) Other oficials. Other officials or agents of the 

United States, of the District of Columbia, or of a 

State, Commonwealth, or possession of the United 

States or any political subdivision of such a State, 

Commonwealth, or possession and was in violation 

of the Constitution of the United States, or is unlawful under the principles of law generally applied in 

the trial of criminal cases in the United States district courts involving a similar search or seizure; or 

(3) Oficials of a foreign government. Officials of 

a foreign government or their agents and was obtained as a result of a foreign search or seizure 

which subjected the accused to gross and brutal 

maltreatment. A search or seizure is not "participated in" merely because a person is present at a 

search or seizure conducted in a foreign nation by 

officials of a foreign government or their agents, or 

because a person acted as an interpreter or took 

steps to mitigate damage to property or physical 

harm during the foreign search or seizure. 

(d) Motions to suppress and objections. 

(1) Disclosure. Prior to arraignment, the prosecution shall disclose to the defense all evidence seized 

from the person or property of the accused, or believed to be owned by the accused, that it intends to 

offer into evidence against the accused at trial. 

(2) Motion or objection. 

(A) When evidence has been disclosed under 

subdivision (d)(l), any motion to suppress or objection under this rule shall be made by the defense 

prior to submission of a plea. In the absence of such 

motion or objection, the defense may not raise the 

issue at a later time except as permitted by the 

military judge for good cause shown. Failure to so 

move or object constitutes a waiver of the motion or 

objection. 

(B) If the prosecution intends to offer evidence 

seized from the person or property of the accused 

that was not disclosed prior to arraignment, the prosecution shall provide timely notice to the military 

judge and to counsel for the accused. The defense 

may enter an objection at that time and the military 

judge may make such orders as are required in the 

interest of justice. 

(C) If evidence is disclosed as derivative evidence under this subdivision prior to arraignment, 

any motion to suppress or objection under this rule 

shall be made in accordance with the procedure for 

challenging evidence under (A). If such evidence 

has not been so disclosed prior to arraignment, the 

requirements of (B) apply. 

(3) SpeciJicity. 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 rnilitary judge may enter any order required by the interests of justice, including authorization for the 

defense to make a general motion to suppress or a 

general objection. 

(4) Rulings. A motion to suppress or an objection 

to evidence made prior to plea shall be ruled upon 

prior to plea unless the military judge, for good 

cause, orders that it be deferred for determination at 

the trial of the general issue or until after findings, 

but no such determination shall be deferred if a 

party's right to appeal the ruling is affected adversely. Where factual issues are involved in ruling upon 

such motion or objection, the military judge shall 

state essential findings of fact on the record. 

(e) Burden of proof: 

(1) In general. When 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 

111-9 
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, 

or apprehend or a search warrant or an arrest 

warrant. 

(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) and (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. 

(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) Scope of motions and objections challenging 

probable cause. 

(1) Generally. If the defense challenges evidence 

seized pursuant to a search warrant or search authorization on the grounds that the warrant or authorization was not based upon probable cause, the 

evidence relevant to the motion is limited to evidence concerning the information actually presented 

to or otherwise known by the authorizing officer, 

except as provided in paragraph (2). 

(2) False statements. If the defense makes a substantial preliminary showing that a government 

agent included a false statement knowingly and intentionally or with reckless disregard for the truth in 

the information presented to the authorizing officer, 

and if the allegedly false statement is necessary to 

the finding of probable cause, the defense, upon 

request, shall be entitled to a hearing. At the hearing, the defense has the burden of establishing by a 

preponderance of the evidence the allegation of 

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 

judge must instruct the members to disregard 

evidence. 

(i) Effect of guilty plea. Except as otherwise expressly provided in R.C.M. 910(a)(2), a plea of 

guilty to an offense that results in a finding of guilty 

waives all issues under the Fourth Amendment to 

the Constitution of the United States and Mil. R. 

Evid. 311-317 with respect to the offense whether or 

not raised prior to plea. 

Rule 312. Body views and intrusions 

(a) General rule. Evidence obtained from body 

views and intrusions conducted in accordance with 

this rule is admissible at trial when relevant and not 

otherwise inadmissible under these rules. 

111-10 
(b) Visual examination of the body. 

(1) Consensual. Visual examination of the unclothed body may be made with the consent of the 

individual subject to the inspection in accordance 

with Mil. R. Evid. 314(e). 

(2) Involuntary. An involuntary display of the unclothed body, including a visual examination of 

body cavities, may be required only if conducted in 

reasonable fashion and authorized under the following provisions of the Military Rules of Evidence: 

inspections and inventories under Mil. R. Evid. 313; 

searches under Mil. R. Evid. 314(b) and 314(c) if 

there is a reasonable suspicion that weapons, contraband, or evidence of crime is concealed on the body 

of the person to be searched; searches within jails 

and similar facilities under Mil. R. Evid. 31401) if 

reasonably necessary to maintain the security of the 

institution or its personnel; searches incident to lawful apprehension under Mil. R. Evid. 314(g); emergency searches under Mil. R. Evid. 314(i); and 

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, contraband, or evidence of crime discovered under 

subdivisions (b) and (c)(2) of this rule or under Mil. 

R. Evid. 316(d)(4)(C) if such intrusion is made in a 

reasonable fashion by a person with appropriate 

medical qualifications; or 

(2) For purposes of search. To search for weapons, contraband, or evidence of crime if authorized 

by a search warrant or search authorization under 

Mil. R. Evid. 315 and conducted by a person with 

appropriate medical qualifications. 

Notwithstanding this rule, a search under Mil. R. 

Evid. 314(h) may be made without a search warrant 

or authorization if such search is based on a reasonable suspicion that the individual is concealing weapons, contraband, or evidence of crime. 

(d) Extraction of body fluids. Nonconsensual extraction of body fluids, including blood and urine, may 

be made from the body of an individual pursuant to 

a search warrant or a search authorization under Mil. 

R. Evid. 315. Nonconsensual extraction of body fluids may be made without such warrant or authorization, notwithstanding Mil. R. Evid. 315(g), only 

when there is clear indication that evidence of crime 

will be found and that there is reason to believe that 

the delay that would result if a warrant or authorization were sought could result in the destruction of 

the evidence. Involuntary extraction of body fluids 

under this rule must be done in a reasonable fashion 

by a person with appropriate medical qualifications. 

(e) Otlwr 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 qual$cations. The Secretary concerned 

may prescribe appropriate inedical qualifications for 

persons who conduct searches and seizures under 

this rule. 
Rule 313. Inspections and inventories in the 

armed forces 

(a) General rule. Evidence obtained from inspections and inventories in the armed forces conducted 

in accordance with this rule is adnlissible at trial 

when relevant and not otherwise inadmissible under 

these rules. 

(b) Inspections. An "inspection" is an examination 

of the whole or part of a unit, organization, installation, vessel, aircraft, or vehicle, including an examination conducted at entrance and exit points, 

conducted as an incident of command the primary 

purpose of which is to determine and to ensure the 

security, military fitness, or good order and discipline of the unit, organization, installation, vessel, 

aircraft, or vehicle. An inspection may include but is 

not limited to an examination to determine and to 

ensure that any or all of tlle following requirements 

are met: that the command is properly equipped, 

filnctioning properly, maintaining proper standards 

of readiness, sea or airworthiness, sanitation and 

cleanliness, and that pe~sonnel 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 convincilig 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. Unlawfi~l 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) Generul rule. Evidence obtained from reasonable searches not requiring probable cause conducted 

pursuant to this rule is admissible at trial when relevant and not otherwise inadmissible under these 

rules. 

(b) Border searches. Border searches for customs or 

immigration purposes may be conducted when authorized by Act of Congress. 

(c) Searclies upon entry to or exit fi'orn United 

States installations, uircraf, and vessels abroad In 

addition to the authority to conduct inspections 

under Mil. R. Evid. 313(b), a commander of a 

United States military installation, enclave, or aircraft on foreign soil, or in foreign or international 

airspace, or a United States vessel in foreign or 

international waters, may authorize appropriate personnel to search persons or the property of such 

persons upon entry to or exit from the installation, 

enclave, aircraft, or vessel to ensure the security, 

military fitness, or good order and discipline of the 

command. Such searches may not be conducted at a 

time or in a manner contrary to an express provision 

of a treaty or agreement to whicli the United States 

is a party. Failure to conlply 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 disciplinary proceeding is not authorized by this 

subdivision. 

(d) Searches of governrllent propero. Government 

property may be searched under this rule unless the 

person to whom the property is issued or assigned 

has a reasonable expectation of privacy therein at 

the time of the search. Under normal circumstances, 

a person does not have a reasonable expectation of 

privacy in government property that is not issued for 

personal use. Wall or floor lockers in living quarters 

issued for the purpose of storing personal posses- 
sions 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) Voluntanness. To be valid, consent must be 

given voluntarily. Voluntariness is a question to be 

determined from all the circumstances. Although a 

person's knowledge of the right to refuse to give 

consent is a factor to be considered in determining 

voluntariness, the prosecution is not required to 

demonstrate such knowledge as a prerequisite to establishing a voluntary consent. Mere submission to 

the color of authority of personnel performing law 

enforcement duties or acquiescence in an announced 

or indicated purpose to search is not a voluntary 

consent. 

(5) Burden of proof. Consent must be shown by 

clear and convincing evidence. The fact that a person was in custody while granting consent is a factor 

to be considered in determining the voluntariness of 

consent, but it does not affect the burden of proof. 

(f) Searches incident to a lawful stop. 

(1) Stops. A person authorized to apprehend 

under R.C.M.302(b) and others performing law enforcement duties may stop another person temporarily when the person making the stop has information 

or observes unusual conduct that leads him or her 

reasonably to conclude in light of his or her experience that criminal activity may be afoot. The purpose of the stop must be investigatory in nature. 

(2) Frisks. When a lawful stop is performed, the 

person stopped may be frisked for weapons when 

that person is reasonably believed to be armed and 

presently dangerous. Contraband or evidence located 

in the process of a lawful frisk may be seized. 

(3) Motor vehicles. When a person lawfully 

stopped is the driver or a passenger in a motor 

vehicle, the passenger compartment of the vehicle 

may be searched for weapons if the official who 

made the stop has a reasonable belief that the person 

stopped is dangerous and that the person stopped 

may gain immediate control of a weapon. 

(g) Searches incident to a lawful apprehension. 

(1) General rule. A person who has been lawfully 

apprehended may be searched. 

(2) Search for weapons and destructible evidence. 

A search may be conducted for weapons or destructible evidence, in the area within the immediate control of a person who has been apprehended. The area 

within the person's "immediate control" is the area 

which the individual searching could reasonably believe that the person apprehended could reach with a 

sudden movement to obtain such property; provided, 

that the passenger compartment of an automobile, 

and containers within the passenger compartment 

may be searched as a contemporaneous incident of 

the apprehension of an occupant of the automobile, 

regardless whether the person apprehended has been 

removed from the vehicle. 

(3) Exarnination 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 night 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 

facilities, or similar facilities may be authorized by 

persons with authority over the institution. 

(i) Emergency searches to save life or for related 

purposes. In emergency circumstances to save life or 

for a related purpose, a search may be conducted of 
persons or property in a good faith effort to render 

immediate medical aid, to obtain information that 

will assist in the rendering of such aid, or to prevent 

immediate or ongoing personal injury. 

(j) Searches of open fields or woodlands. A search 

of open fields or woodlands is not an unlawful 

search within the meaning of Mil. R. Evid. 31 1. 

(k) Other searches. A search of a type not otherwise 

included in this rule and not requiring probable 

cause under Mil. R. Evid. 315 may be conducted 

when permissible under the Constitution of the 

United States as applied to members of the armed 

forces. 

Rule 315. Probable cause searches 

(a) General rule. Evidence obtained from searches 

requiring probable cause conducted in accordance 

with this rule is admissible at trial when relevant and 

not otherwise inadmissible under these rules. 

(b) Definitions. As used in these rules: 

(1) Authorization to search. An "authorization to 

search" is an express permission, written or oral, 

issued by competent military authority to search a 

person or an area for specified property or evidence 

or for a specific person and to seize such property, 

evidence, or person. It may contain an order directing subordinate personnel to conduct a search in a 

specified manner. 

(2) Search warrant. A "search warrant" is an express permission to search and seize issued by competent civilian authority. 

(c) Scope of authorization. A search authorization 

may be issued under this rule for a search of: 

(1) Persons. The person of anyone subject to military law or the law of war wherever found; 

(2) Military property. Military property of the 

United States or of nonappropriated fund activities 

of an armed force of the United States wherever 

located; 

(3) Persons 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 appropriate representative of the agency concerned. 

Failure to obtain such concurrence, however, does 

not render a search unlawful within the meaning of 

Mil. R. Evid. 31 1. 

(B) Other property situated in a foreign country. If the United States is a party to a treaty or 

agreement that governs a search in a foreign country, the search shall be conducted in accordance with 

the treaty or agreement. If there is no treaty or 

agreement, concurrence should be obtained from an 

appropriate representative of the foreign country 

with respect to a search under paragraph (4)(B) of 

this subdivision. Failure to obtain such concurrence 

or noncompliance with a treaty or agreement, however, does not render a search unlawful within the 

meaning of Mil. R. Evid. 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 

if authorized under regulations prescribed by the 

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 available to persons who may seek the issuance of a 

search authorization; nor does such an official lose 

impartial character merely because the official 

previously and impartially authorized investigative 

activities when such previous authorization is similar 

in intent or function to a pretrial authorization made 

by the United States district courts. 

(e) Power to search. Any commissioned officer, 

warrant officer, petty officer, noncommissioned officer, and, when in the execution of guard or police 

duties, any criminal investigator, member of the Air 

Force security police, military police, or shore patrol, or person designated by proper authority to 

perform guard or police duties, or any agent of any 

111-14 
such person, may conduct or authorize a search 

when a search authorization has been granted under 

this rule or a search would otherwise be proper 

under subdivision (g). 

(f) Basis for Search authorizations. 

(1) Probable cause requirement. A search authorization issued under this rule must be based upon 

probable cause. 

(2) Probable cause determination. Probable cause 

to search exists when there is a reasonable belief 

that the person, property, or evidence sought is located in the place or on the person to be search. A 

search authorization may be based upon hearsay evidence in whole or in part. A determination of probable cause under this rule shall be based upon any or 

all of the following: 

(A) Written statements communicated to the 

authorizing officer; 

(B) Oral statements communicated to the 

authorizing official in person, via telephone, or by 

other appropriate means of communication; or 

(C) Such information as may be known by the 

authorizing official that would not preclude the officer from acting in an impartial fashion. The Secretary of Defense or the Secretary concerned may 

prescribe additional requirements. 

(g) Exigencies. A search warrant or search authorization is not required under this rule for a search 

based on probable cause when: 

(1) Insufficient time. There is a reasonable belief 

that the delay necessary to obtain a search warrant 

or search authorization would result in the removal, 

destruction, or concealment of the property or evidence sought; 

(2) Lack of communications. There is a reasonable military operational necessity that is reasonably 

believed to prohibit or prevent communication with 

a person empowered to grant a search warrant or 

authorization and there is a reasonable belief that the 

delay necessary to obtain a search warrant or search 

authorization would result in the removal, destruction, or concealment of the property or evidence 

sought; 

(3) Search of operable vehicle. An operable vehicle is to be searched, except in the circumstances 

where a search warrant or authorization is required 

by the Constitution of the United States, this Manual, or these rules; or 

(4) Not required by the Constitution. A search 

warrant or authorization is not otherwise required by 

the Constitution of the United States as applied to 

members of the armed forces. For purpose of this 

rule, a vehicle is "operable" unless a reasonable person would have known at the time of search that the 

vehicle was not functional for purposes of 

transportation. 

(h) Execution. 

(1) Notice. If the person whose property is to be 

searched is present during a search conducted pursuant to a search authorization granted under this 

rule, the person conducting the search should when 

possible notify him or her of the act of authorization 

and the general substance of the authorization. Such 

notice may be made prior to or contemporaneously 

with the search. Failure to provide such notice does 

not make a search unlawful within the meaning of 

Mil. R. Evid. 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. 31 1. 

(3) Foreign searches. Execution of a search authorization outside the United States and within the 

jurisdiction of a foreign nation should be in conformity with existing agreements between the United 

States and the foreign nation. Noncompliance with 

such an agreement does not make an otherwise lawful search unlawful. 

(4) Search warrants. Any civilian or military 

criminal investigator authorized to request search 

warrants pursuant to applicable law or regulation is 

authorized to serve and execute search warrants. The 

execution of a search warrant affects admissibility 

only insofar as exclusion of evidence is required by 

the Constitution of the United States or an applicable Act of Congress. 

Rule 316. Seizures 

(a) General rule. Evidence obtained from seizures 

Ilk15 
conducted in accordance with this rule is admissible 

at trial if the evidence was not obtained as a result 

of an unlawful search and if the evidence is relevant 

and not otherwise inadmissible under these rules. 

(b) Seizure of property. Probable cause to seize 

property or evidence exists when there is a reasonable belief that the property or evidence is an unlawful weapon, contraband, evidence of crime, or might 

be used to resist apprehension or to escape. 

(c) Apprehension. Apprehension is governed by 

R.C.M. 302. 

(d) Seizure of property or evidence. 

(1) Abandoned property. Abandoned property 

may be seized without probable cause and without a 

search warrant or search authorization. Such seizure 

may be made by any person. 

(2) Consent. Property or evidence may be seized 

with consent consistent with the requirements applicable to consensual searches under Mil. R. Evid. 

314. 

(3) Government property. Government property 

may be seized without probable cause and without a 

search warrant or search authorization by any person 

listed in subdivision (e), unless the person to whom 

the property is issued or assigned has a reasonable 

expectation of privacy therein, as provided in Mil. 

R. Evid. 314(d), at the time of the seizure. 

(4) Other property. Property or evidence not included in paragraph (1)-(3) may be seized for use in 

evidence by any person listed in subdivision (e) if: 

(A) Authorization. The person is authorized to 

seize the property or evidence by a search warrant or 

a search authorization under Mil. R. Evid. 315; 

(B) Exigent circutnstances. The person has 

probable cause to seize the property or evidence and 

under Mil. R. Evid. 315(g) a search warrant or 

search authorization is not required; or 

(C) Plain view. The person while in the course 

of otherwise lawful activity observes in a reasonable 

fashion property or evidence that the person has 

probable cause to seize. 

(5) Temporary detention. Nothing in this rule 

shall prohibit temporary detention of property on 

less than probable cause when authorized under the 

Constitution of the United States. 

(e) Power to seize. Any commissioned officer, warrant officer, petty officer, noncommissioned officer, 

and, when in the execution of guard or police duties, 

any criminal investigator, member of the Air Force 

security police, military police, or shore patrol, or 

individual designated by proper authority to perform 

guard or police duties, or any agent of any such 

person, may seize property pursuant to this rule. 

(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 

the United States as applied to members of the 

armed forces or if such evidence must be excluded 

under a statute applicable to members of the armed 

forces. 

(b) Authorization for judicial applications in the 

United States. Under 18 U.S.C. $ 2516(1), the Attorney General, or any Assistant Attorney General specially designated by the Attorney General may 

authorize an application to a federal judge of competent jurisdiction for, and such judge may grant in 

conformity with 18 U.S.C. $ 2518. an order 

authorizing or approving the interception of wire or 

oral communications by the Department of Defense, 

the Department of Transportation, or any Military 

Department for purposes of obtaining evidence concerning the offenses enumerated in 18 U.S.C. $ 

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 cornmunications for law enforcement purposes unless such 

interception: 

(1) takes place in the United States and is authorized under subdivision (b); 

(2) takes place outside the United States and is 

authorized under regulations issued by the Secretary 

of Defense or the Secretary concerned; or 

(3) is authorized under regulations issued by the 

Secretary of Defense or the Secretary concerned and 

is not unlawful under 18 U.S.C. !j 2511. 

111-16 
Rule 321. Eyewitness identification 

(a) General rule. 

(1) Admissibility. Testimony concerning a relevant out of court identification by any person is 

admissible, subject to an appropriate objection under 

this rule, if such testimony is otherwise admissible 

under these rules. 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 adrnissible to corroborate the witness' testimony as to identity even if the credibility of the witness has not 

been attacked directly, subject to appropriate objection under this rule. 

(2) Exclusionary rule. An identification of the accused as being a participant in an offense, whether 

such identification is made at the trial or otherwise, 

is inadmissible against the accused if: 

(A) The accused makes a timely motion to suppress or an objection to the evidence under this rule 

and if the identification is the result of an unlawful 

lineup or other unlawful identification process conducted by the United States or other domestic authorities; or 

(B) Exclusion of the evidence is required by 

the due process clause of the Fifth Amendment to 

the Constitution of the United States as applied to 

members of the armed forces. Evidence other than 

an identification of the accused that is obtained as a 

result of the unlawful lineup or unlawful identification process is inadmissible against the accused if 

the accused makes a timely motion to suppress or an 

objection to the evidence under this rule and if exclusion of the evidence is required under the Constitution of the United States as applied to members of 

the armed forces. 

(b) Definition of "unlawful". 

(1) Lineups and other identification processes. A 

lineup or other identification process is "unlawful" if 

the identification is unreliable. An identification is 

unreliable if the lineup or other identification process, under the circumstances, is so suggestive as to 

create a substantial likelihood of misidentification. 

(2) Lineups: right to counsel. A lineup is "unlawful" if it is conducted in violation of the following 

rights to counsel: 

(A) Military lineups. An accused or suspect is 

entitled to counsel if, after preferral of charges or 

imposition of pretrial restraint under R.C.M. 304 for 

the offense under investigation, the accused is subjected by persons subject to the code or their agents 

to a lineup for the purpose of identification. When a 

person entitled to counsel under this rule requests 

counsel, a judge advocate or a person certified in 

accordance with Article 27(b) shall be provided by 

the United States at no expense to the accused or 

suspect and without regard to indigency or lack 

thereof before the lineup may proceed. The accused 

or suspect may waive the rights provided in this rule 

if the waiver is freely, knowingly, and intelligently 

made. 

(B) Nonmilitary lineups. When a person subject to the code is subjected to a lineup for purposes 

of identification by an official or agent of the United 

States, of the District of Columbia, or of a State, 

Commonwealth, or possession of the United States, 

or any political subdivision of such a State, Commonwealth, or possession, and the provisions of paragraph (A) do not apply, the person's entitlement to 

counsel and the validity of any waiver of applicable 

rights shall be determined by the principles of law 

generally recognized in the trial of criminal cases in 

the United States district courts involving similar 

lineups. 

(c) Motions to suppress and objections. 

(1) Disclosure. Prior to arraignment, the prosecution shall disclose to the defense all evidence of a 

prior identification of the accused as a lineup or 

other identification process that it intends to offer 

into evidence against the accused at trial. 

(2) Motion or objection. 

(A) When such evidence has been disclosed, 

any motion to suppress or objection under this rule 

shall be made by the defense prior to submission of 

a plea. In the absence of such motion or objection, 

the defense may not raise the issue at a later time 

except as permitted by the military judge for good 

cause shown. Failure to so move constitutes a 

waiver of the motion or objection. 

(B) If the prosecution intends to offer such evidence and the evidence was not disclosed prior to 

arraignment, the prosecution shall provide timely 

notice to the military judge and counsel for the ac111-17 
cused. 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 rnilitary 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 identification is not the result of the inadmissible 

identification. 

(e) Defense evidence. The defense may present evidence relevant to the issue of the admissibility of 

evidence as to which there has been an appropriate 

motion or objection under this rule. An accused may 

testify for the limited purpose of contesting the legality of the lineup or identification process giving 

rise to the challenged evidence. Prior to the introduction of such testimony by the accused, the defense shall inform the military judge that the 

testimony is offered under this subdivision. When 

the accused testifies under this subdivision, the accused may be cross-examined only as to the matter 

on which he or she testifies. Nothing said by the 

accused on either direct or cross-examination may 

be used against the accused for any purpose other 

than in a prosecution for perjury, false swearing, or 

the making of a false official statement. 

(f) Rulings. A motion to suppress or an objection to 

evidence made prior to plea under this rule shall be 

ruled upon prior to plea unless the military judge, 

for good cause, orders that it be deferred for determination at the trial of the general issue or until 

after findings, but no such determination shall be 

deferred if a party's right to appeal the ruling is 

affected adversely. Where factual issues are involved 

in ruling upon such motion or objection, the military 

judge shall state his or her essential findings of fact 

on the record. 

(g) Effect of guilty pleas. Except as otherwise expressly provided in R.C.M. 910(a)(2), a plea of 

guilty to an offense that results in a finding of guilty 

waives all issues under this rule with respect to that 

offense whether or not raised prior to the plea. 

SECTION IV 

RELEVANCY AND ITS LIMITS 

Rule 401. Definition of "relevant evidence" 

"Relevant evidence" means evidence having any 

tendency to make the existence of any fact that is of 

consequence to the determination of the action more 

probable or less probable that it would be without 

the evidence. 

111-18 
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 med forces, 

the code, these rules, this Manual, or any Act of 

Congress applicable to members of the armed 

forces. Evidence which is not relevant is not 

admissible. 

Rule 403. Exclusion of relevant evidence on 

grounds of prejudice, confusion, or waste of 

time 

Although relevant, evidence may be excluded if 

its probative value is substantially outweighed by the 

danger of unfair prejudice, confusion of the issues, 

or misleading the members, or by considerations of 

undue delay, waste of time, or needless presentation 

of cumulative evidence. 

Rule 404. Character evidence not admissible 

to prove conduct; exceptions; other crimes 

(a) Character evidence generally. Evidence of a 

person's character or a trait of a person's character 

is not admissible for the purpose of proving that the 

person acted in conformity therewith on a particular 

occasion, except: 

(1) Character of the accused.Evidence of a pertinent trait of the character of the accused offered by 

an accused, or by the prosecution to rebut the same; 

(2) Character of victim. Evidence of a pertinent 

trait of character of the victim of the crime offered 

by an accused, or by the prosecution to rebut the 

same, or evidence of a character trait of peacefulness 

of the victim offered by the prosecution in a homicide or assault case to rebut evidence that the victim 

was an aggressor; 

(3) Character of witness. Evidence of the character of a witness, as provided in Mil. R. Evid. 607, 

608, and 609. 

(b) Other crimes, wrongs, or acts. Evidence of other 

crimes, wrongs, or acts is not admissible to prove 

the character of a person in order to show 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. 

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) Spec@c 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) AfSidavits. The defense may introduce affidavits 

or other written statements of persons other than the 

accused concerning the character of the accused. If 

the defense introduces affidavits or other written 

statements under this subdivision, the prosecution 

may, in rebuttal, also introduce affidavits or other 

written statements regarding the character of the accused. Evidence of this type may be introduced by 

the defense or prosecution only if, aside from being 

contained in an affidavit or other written statement, 

it would otherwise be admissible under these rules. 

(d) Definitions. "Reputation" means the estimation 

in which a person generally is held in the community in which the person lives or pursues a business 

or profession. "Community" in the armed forces includes a post, camp, ship, station, or other military 

organization regardless of size. 

Rule 406. Habit; routine practice 

Evidence of the habit of a person or of the routine 

practice of an organization, whether corroborated or 

not and regardless of the presence of eyewitnesses, 

is relevant to prove that the conduct of the person or 

organization on a particular occasion was in conformity with the habit or routine practice. 

Rule 407. Subsequent remedial measures 

When, after an event, measures are taken which, 

if taken previously, would have made the event less 

likely to occur, evidence of the subsequent measures 

is not admissible to prove negligence or culpable 

conduct in connection with the event. This rule does 
not require the exclusion of evidence of subsequent 

measures when offered for another purpose, such as 

proving ownership, control, or feasibility or precautionary measures, if controverted, or impeachment. 

Rule 408. Compromise and offer to 

compromise 

Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in 

compromising or attempting to compromise a claim 

which was disputed as to either validity or amount, 

is not admissible to prove liability for or invalidity 

of the claim or its amount. Evidence of conduct or 

statements made in compromise negotiations is likewise not admissible. This rule does not require the 

exclusion of any evidence otherwise discoverable 

merely because it is presented in the course of compromise negotiations. This rule also does not require 

exclusion when the evidence is offered for another 

purpose, such as proving bias or prejudice of a witness, 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 

pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury. 

Rule 410. lnadmisslbility of pleas, plea 

discussions, and related statements 

(a) In general. Except as otherwise provided in this 

rule, evidence of the following is not admissible in 

any court-martial proceeding against the accused 

who made the plea or was a participant in the plea 

discussions: 

(1) a plea of guilty which was later withdrawn; 

(2) a plea of nolo contendere; 

(3) any statement made in the course of any judicial inquiry regarding either of the foregoing pleas; 

or 

(4) any statement made in the course of plea discussions with the convening authority, staff judge 

advocate, trial counsel or other counsel for the Government which do not result in a plea of guilty or 

which result in a plea of guilty later withdrawn. 

However, such a statement is admissible (i) in any 

proceeding 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 admi~strative 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 41 1. Liability insurance 

Evidence that a person was or was not insured 

against liability is not admissible upon the issue 

whether the person acted negligently or otherwise 

wrongfully. This rule does not require the exclusion 

of evidence of insurance against liability when offered for another purpose, such as proof of agency, 

ownership, or control, or bias or prejudice of a 

witness. 

Rule 41 2. Nonconsensual sexual offenses; 

relevance 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): 

(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 be111-20 
havior by tlie alleged victini wit11 respect to tlle 

person accused of the sexual misconduct offered by 

tlie accused to prove consent or by tlie prosecution; 

and 

(C) evidence the exclusion of which would 

violate the constitutional rights of the accused. 

(c) Procedure to determine adnzissibility. 

(1) A party intending to offer evidence under subdivision (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 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 tlie 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 

subdivision that tlle 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 tlle 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 tlle 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 sexiial offense" is a sexual 

offense in which consent by the victim is an affirmative defense or in which tlle lack of consent is an 

element of tlie offense. This term includes rape, forcible sodomy, assault wit11 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) h a court-martial in wllicll tl~e 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 

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 tlle 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 tlle military judge may 

allow for good cause. 

(c) This rule shall not be construed to limit the 

admission or consideration of evidence untler any 

other rule. 

(d) For purposes of this rule, "offenses 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 sexi~al contact, without consent, proscribed by llle Uniform Code of Military 

Justice, Federal law, or the law of a State; 

(2) contact, without consent of the victim, between any part of tlle accused's body, or an object 

lleld or controlled by the accused, and the genitals or 

anus of another person; 

(3) contact, without consent of tlie victim, between tlle 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 anotller 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 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) 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 

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) 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; 

(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 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 

contact" means the intentional touching, either 

directly or through clothing, of the genitalia, anus, 

groin, breast, inner thigh, or buttocks of any person 

111-22 
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) sexual intercourse, including genital-genital, 

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 disclosing any matter or producing any object or 

writing. 

(c) The term "person" includes an appropriate representative of the Federal Government, a State, or political subdivision thereof, or any other entity 

claiming to be the holder of a privilege. 

(d) Notwithstanding any other provision of these 

rules, information not otherwise privileged does not 

become privileged on the basis that it was acquired 

by a medical officer or civilian physician in a 

professional capacity. 

Rule 502. Lawyer-client privilege 

(a) General rule of privilege. A client has a privilege to refuse to disclose and to prevent any other 

person from disclosing confidential communications 

made for the purpose of facilitating the rendition of 

professional legal services to the client, (1) between 

the client or the client's representative and the lawyer or the lawyer's representative, (2) between the 

lawyer and the lawyer's representative, (3) by the 

client or the client's lawyer to a lawyer representing 

another in a matter of common interest, (4) between 

representatives of the client or between the client 

and a representative of the client, or (5) between 

lawyers representing the client. 

(b) Definitions. As used in this rule: 

(1) A "client" is a person, public officer, corporation, association, organization, or other entity, either 

public or private, who receives professional legal 

services from a lawyer, or who consults a lawyer 

with a view to obtaining professional legal services 

from the lawyer. 

(2) A "lawyer" is a person authorized, or reasonably believed by the client to be authorized, to practice law; or a member of the armed forces detailed, 

assigned, or otherwise provided to represent a person in a 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 renders professional legal services during off-duty 

employment. 

(3) A "representative" of a lawyer is a person 
employed by or assigned to assist a lawyer in providing professional legal services. 

(4) A communication is "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 

to commit what the client knew or reasonably 

should have known to be a crime or fraud; 

(2) Claimants through same deceased client. As 

to a communication relevant to an issue between 

parties who claim through the same deceased client, 

regardless of whether the claims are by testate or 

intestate succession or by inter vivos transaction; 

(3) Breaclz 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, 

when offered in an action between any of the 

clients. 

Rule 503. Communications to clergy 

(a) General rule of privilege. A person has a privilege to refuse to disclose and to prevent another 

from disclosing a confidential communication by the 

person to a clergyman or to a clergyman's assistant, 

if such communication is made either as a formal act 

of religion or as a matter of conscience. 

(b)Definitions. As used in this rule: 

(1) A "clergyman" is a minister, priest, rabbi, 

chaplain, or other similar functionary of a religious 

organization, or an individual reasonably believed to 

be so by the person consulting the clergyman. 

(2) A communication is "confidential" if made to 

a clergyman in the clergyman's capacity as a spiritual adviser or to a clergyman's assistant in the assistant's official capacity and is not intended to be 

disclosed to third persons other than those to whom 

disclosure is in furtherance of the purpose of the 

communication or to those reasonably necessary for 

the transmission of the communication. 

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

be claimed by the person, by the guardian, or conservator, or by a personal representative if the person is deceased. The clergyman or clergyman's 

assistant who received the communication may 

claim the privilege on behalf of the person. The 

authority of the clergyman or clergyman's assistant 

to do so is presumed in the absence of evidence to 

the contrary. 

Rule 504. Husband-wife privilege 

(a) Spousal incapacity. A person has a privilege to 

refuse to testify against his or her spouse. 

(b) Confidential communication made during marriage. 

(1) General rule of privilege. A person has a 

privilege during and after the marital relationship to 

refuse to disclose, and to prevent another from disclosing, any confidential communication made to the 

spouse of the person while they were husband and 

wife and not separated as provided by law. 

(2) Definition. A communication is "confidential" 

if made privately by any person to the spouse of the 

person and is not intended to be disclosed to third 

persons other than those reasonably necessary for 

transmission of the communication. 

(3) Who may claim the privilege. The privilege 

may be claimed by the spouse who made the communication or by the other spouse on his or her 

behalf. The authority of the latter spouse to do so is 

presumed in the absence of evidence of a waiver. 

111-24 
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 

parties are divorced or the marriage has been 

annulled. 

(2) Spousal incapacity and confidential communications. There is no privilege under subdivisions (a) 

or (b): 

(A) In proceedings in which one spouse is 

charged with a crime against the person or property 

of the other spouse or a child of either, or with a 

crime against the person or property of a third person committed in the course of committing a crime 

against the other spouse; 

(B) When the marital relationship was entered 

into with no intention of the parties to live together 

as spouses, but only for the purpose of using the 

purported marital relationship as a sham, and with 

respect to the privilege in subdivision (a), the relationship remains a sham at the time the testimony or 

statement of one of the parties is to be introduced 

against the other; or with respect to the privilege in 

subdivision (b), the relationship was a sham at the 

time of the communication; or 

(C) In proceedings in which a spouse is 

charged, in accordance with Article 133 or 134, with 

importing the other spouse as an alien for prostitution or other immoral purpose in violation of 8 

U.S.C. 8 1328; with transporting the other spouse in 

interstate commerce for immoral purposes or other 

offense in violation of 18 U.S.C. 55 2421-2424; or 

with violation of such other similar statutes under 

which such privilege may not be claimed in the trial 

of criminal cases in the United States district courts. 

Rule 505. Classified information 

(a) General rule of privilege. Classified information 

is privileged from disclosure if disclosure would be 

detrimental to the national security. As with other 

rules of privilege this rule applies to all stages of the 

proceedings. 

(b) Definitions. As used in this rule: 

(1) Classified information. "Classified information" means any information or material that has 

been determined by the United States Government 

pursuant to an executive order, statute, or regulations, to require protection against unauthorized disclosure for reasons of national security, and any 

restricted data, as defined in 42 U.S.C. 5 2014(y). 

(2) National security. "National security" means 

the national defense and foreign relations of the 

United States. 

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

be claimed by the head of the executive or military 

department or government agency concerned based 

on a finding that the information is properly classified and that disclosure would be detrimental to the 

national security. A person who may claim the privilege may authorize a witness or trial counsel to 

claim the privilege on his or her behalf. The authority of the witness or trial counsel to do so is presumed in the absence of evidence to the contrary. 

(d) Action prior to referral of charges. Prior to referral of charges, the convening authority shall respond in writing to a request by the accused for 

classified information if the privilege in this rule is 

claimed for such information. The convening authority may: 

(1) Delete specified items of classified information from documents made available to the accused; 

(2) Substitute a portion or summary of the information for such classified documents; 

(3) Substitute a statement admitting relevant facts 

that the classified information would tend to prove; 

(4) Provide the document subject to conditions 

that will guard against the compromise of the information disclosed to the accused; or 

(5) Withhold disclosure if actions under (1) 

through (4) cannot be taken without causing identifiable damage. to the national security. 

Any objection by the accused to withholding of 

information or to the conditions of disclosure shall 

be raised through a motion for appropriate relief at a 

pretrial session. 

(e) Pretrial session. At any time after referral of 

charges and prior to arraignment, any party may 

move for a session under Article 39(a) to consider 

matters relating to classified information that may 

arise in connection with the trial. Following such 

motion or sua sponte, the military judge promptly 

111-25 
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 

judge to have access to the classified information in 

connection with the preparation of the defense; 

(F) Regulating the making and handling of 

notes taken from material containing classified information; or 

(G) Requesting the convening authority to authorize the assignment of government security personnel and the provision of government storage 

facilities. 

(2) Limited disclosure. The military judge, upon 

motion of the Government, shall 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) Disclosure at trial of certain statements 

previously made by a witness. 

(A) Scope. After a witness called by the Government has testified on direct examination, the military judge, on motion of the accused, may order 

production of statements in the possession of the 

United States under R.C.M. 914. This provision 

does not preclude discovery or assertion of a privilege otherwise authorized under these rules or this 

Manual. 

(B) Closed session. If the privilege in this rule 

is invoked during consideration of a motion under 

R.C.M. 914, the Government may deliver such statement for the inspection only by the military judge in 

camera and may provide the military judge with an 

affidavit identifying the portions of the statement 

that are classified and the basis for the classification 

assigned. If the military judge finds that disclosure 

of any portion of the statement identified by the 

Government as classified could reasonably be ex111-26 
pected 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) Notice of the accused's intention to disclose 

classijied 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 

afforded a reasonable opportunity to seek a determination under subdivision (i). 

(5) Failrrre to comply. If the accused fails to comply with the requirements of this subdivision, the 

military judge may preclude disclosure of any classified information not made the subject of notification 

and may prohibit the examination by the accused of 

any witness with respect to any such information. 

(i) In camera proceedings for cases involving classified information. 

(1) Definition. For purposes of this subdivision, 

an "in camera proceeding" is a session under Article 

39(a) from which the public is excluded. 

(2) Motion for in camera proceeding. Within the 

time specified by the military judge for the filing of 

a motion under this rule, the Government may move 

for an in camera proceeding concerning the use at 

any proceeding of any classified information. Thereafter, either prior to or during trial, the military 

judge for good cause shown or otherwise upon a 

claim of privilege under this rule may grant the 

Government leave to move for an in camera 

proceeding concerning the use of additional classified information. 

(3) Demonstration of national security nature of 

the information. In order to obtain an in camera 

proceeding under this rule, the Government shall 

submit the classified information 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 information previously has been made available to the 

111-27 
accused in connection with proceedings in the same 

case. The Government may describe the information 

by generic category, in such form as the military 

judge may approve, rather than identifying the classified information when the Government has not 

previously made the information available to the accused in connection with pretrial proceedings. Following briefing and argument by the parties in the in 

camera proceeding the military judge shall determine whether the information may be disclosed at 

the court-martial proceeding. Where the Government's motion under this subdivision is filed prior to 

the proceeding at which disclosure is sought, the 

military judge shall rule prior to the commencement 

of the relevant proceeding. 

(B) Standard. Classified information is not 

subject to disclosure under this subdivision unless 

the information is relevant and necessary to an element of the offense or a legally cognizable defense 

and is otherwise admissible in evidence. 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 

disclosed or otherwise elicited at a court-martial 

proceeding. The record of the in earnera 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 

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. 

Any such order shall permit the Government to 

avoid the sanction for nondisclosure by permitting 

the accused to disclose the information at the pertinent court-martial proceeding. 

(j) Introduction of classified information. 

(1) Classification status. Writings, recordings, 

and photographs containing classified information 

may be admitted into evidence without change in 

their classification status. . 

(2) Precautions by the military judge. In order to 

prevent unnecessary disclosure of classified information, the military judge may order admission into 

evidence of only part of a writing, recording, or 

photograph or may order admission into evidence of 

the whole writing, recording, or photograph with 

excision of some or all of the classified information 

contained therein. 

(3) Contents of writing, recording, or photograph. The military judge may permit proof of the 

contents of a writing, recording, or photograph that 

contains classified information without requiring introduction into evidence of the original or a 

duplicate. 

(4) Taking of testimony. During the examination 

of a witness, the Government may object to any 

question or line of inquiry that may require the witness to disclose classified information not previously 

found to be relevant and necessary to the defense. 

Following such an objection, the military judge shall 

take such suitable action to determine whether the 

response is admissible as will safeguard against the 

compromise of any classified information. Such action may include requiring the Government to provide the military judge with a proffer 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 presentation of evidence that discloses classified 

information. 

(6) Record of trial. The record of trial with 

respect to any classified matter will be prepared 

under R.C.M. 1103(h) and 1104(b)(l)(D). 

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

courts-martial. The Secretary of Defense may prescribe security procedures for protection against the 

compromise of classified information submitted to 

courts-martial and appellate authorities. 

Rule 506. Government information other 

than classified information 

(a) General rule of privilege. Except where disclosure is required by an Act of Congress, government 

information is privileged from disclosure if disclosure would be detrimental to the public interest. 

(b) Scope. "Government information" includes official communication and documents and other information within the custody or control of the Federal 

Government. This rule does not apply to classified 

information (Mil. R. Evid. 505) or to the identity of 

an informant (Mil. R. Evid. 507). 

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

be claimed by the head of the executive or military 

department or government agency concerned. The 

privilege for 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; 

(2) substitute a portion or summary of the information for such documents; 

(3) substitute a statement admitting relevant facts 

that the government information would tend to 

prove; 

(4) provide the document subject to conditions 

similar to those set forth in subdivision (g) of this 

rule; or 

(5) withhold disclosure if actions under (1) 

through (4) cannot be taken without causing identifiable damage to the public interest. 

(e) 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 afer motion for disclosure of infomuztion. 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: 

(I) institute action to obtain the information for 

use by the military judge in making a determination 

under subdivision (i); 

(2) dismiss the charges; 

(3) dismiss the charges or specifications or both 

to which the information relates; or 

(4) take other action as may be required in the 

interests of justice. 

If, after a reasonable period of time, the information 

is not provided to the military judge, the military 

judge shall dismiss the charges or specifications or 

both to which the information relates. 

(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 

111-29 
appropriate protective order to guard against the 

compromise of the information disclosed to the accused. The terms of any such protective order may 

include provisions: 

(1) Prohibiting the disclosure of the information 

except as authorized by the military judge; 

(2) Requiring storage of the material in a manner 

appropriate for the nature of the material to be disclosed; upon reasonable notice; 

(3) Requiring controlled access to the material 

during normal business hours and at other times 

upon reasonable notice; 

(4) Requiring the maintenance of logs recording 

access by persons authorized by the military judge 

to have access to the government information in 

connection with the preparation of the defense; 

(5) Regulating the making and handling of notes 

taken from material containing government information; or 

(6) Requesting the convening authority to authorize the assignment of government security personnel 

and the provision of government storage facilities. 

(h) Prohibition against disclosure. The accused may 

not disclose any information known or believed to 

be subject to a claim of privilege under this rule 

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 

information. In order to obtain an in camera 

proceeding under this rule, the Govenunent 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) 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 Q,below, the Government shall disclose government information for 

which a claim of privilege has been made to the 

accused, for the limited purpose of litgating, in 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 informtion 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 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 innocence or to punishment of the accused, and is 

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 juge 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 

111-30 
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. 

(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 

excision of some or all of the government information contained therein. 

(2) Contents of writing, recording, or photograph. The military judge may permit proof of the 

contents of a writing, recording, or photograph that 

contains government information that is the subject 

of a claim of privilege under this rule without requiring introduction into evidence of the original or 

a duplicate. 

(3) Taking of testimony. During examination of a 

witness, the prosecution may object to any question 

or line of inquiry that may require the witness to 

disclose government information not previously 

found relevant and necessary to the defense if such 

information has been or is reasonably likely to be 

the subject of a claim of privilege under this rule. 

Following such an objection, the military judge shall 

take such suitable action to determine whether the 

response is admissible as will safeguard against the 

compromise of any government information. Such 

action may include requiring the Government to provide the military judge with a proffer of the witness' 

response to the question or line of inquiry and requiring the accused to provide the military judge 

with a proffer of the nature of the information the 

accused seeks to elicit. 

(1) Procedures to safeguard against compromise of 

government infomtion 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 priitilege. 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 

111-31 
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) Exc~ptions. 

(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) kgality 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 reasonable period of time disclosure is not made, the 

military judge, sua sponte or upon motion of either 

counsel and after a hearing if requested by either 

party, may dismiss the charge or specifications or 

both to which the information regarding the informant would relate if the military judge determines that 

further proceedings would materially prejudice a 

substantial right of the accused. 

Rule 508. Political vote 

A person has a privilege to refuse to disclose the 

tenor of the person's vote at a political election 

conducted by secret ballot unless the vote was cast 

illegally. 

Rule 509. Deliberations of courts and juries 

Except as provided in Mil. R. Evid. 606, the deliberations of courts and grand and petit juries are 

privileged to the extent that such matters are privileged in trial of criminal cases in the United States 

district courts, but the results of the deliberations are 

not privileged. 

Rule 510. Waiver of privilege by voluntary 

disclosure 

(a) A person upon whom these rules confer a privilege against disclosure of a confidential matter or 

communication waives the privilege if the person or 

the person's predecessor while holder of the privilege voluntarily discloses or consents to disclosure 

of any significant part of the matter or comrnunication 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, waike a privilege 

to which he or she may be entitled pertaining to the 

confidential matter or communication. 

Rule 51 1. Privileged matter disclosed under 

compulsion or without opportunity to claim 

privilege 

(a) Evidence of a statement or other disclosure of 

111-32 
privileged matter is not admissible against the holder 

of the privilege if disclosure was compelled erroneously or was made without an opportunity for 

the holder of the privilege to claim the privilege. 

(b)The telephonic transmission of information otherwise privileged under these rules does not affect 

its privileged character. Use of electronic means of 

communication other than the telephone for transmission of information otherwise privileged under 

these rules does not affect the privileged character of 

such information if use of such means of cornrnunication is necessary and in furtherance of the 

communication. 

Rule 512. Comment upon or inference from 

claim of privilege; instruction 

(a) Comrnent or inference not permitted. 

(1) The claim of a privilege by the accused 

whether in the present proceeding or upon a prior 

occasion is not a proper subject of comment by the 

military judge or counsel for any party. No inference 

may be drawn therefrom. 

(2) The claim of a privilege by a person other 

than the accused whether in the present proceeding 

or upon a prior occasion normally is not a proper 

subject of comment by the military judge or counsel 

for any party. An adverse inference may not be 

drawn therefrom except when determined by the 

military judge to be required by the interests of 

justice. 

(b) 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) Instruction. Upon request, any party against 

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). 

SECTION VI 

WITNESSES 

Rule 601. General rule of competency 

Every person is competent to be a witness except 

as otherwise provided in these rules. 

Rule 602. Lack of personal knowledge 

A witness may not testify to a matter unless evidence is introduced sufficient to support a finding 

that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but 

need not, consist of the testimony of the witness. 

This rule is subject to the provisions of Mil. R. Evid. 

703, relating to opinion testimony by expert 

witnesses. 

Rule 603. Oath or affirmation 

Before testifying, every witness shall be required 

to declare that the witness will testify truthfully, by 

oath or affirmation administered in a fom 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 

opposing party, except in a special court-martial 

without a military judge, shall be afforded an opportunity to object out of the presence of the members. 

(b) Inquiry into validity of findings or sentence. 

Upon an inquiry into the validity of the findings or 

sentence, a member may not testify as to any matter 

111-33 
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 

any outside influence was improperly brought to 

bear upon any member, or whether there was unlawful command influence. Nor may the member's affidavit or evidence of any statement by the member 

concerning a matter about which the member would 

be precluded from testifying be received for these 

purposes. 

Rule 607. Who may impeach 

The credibility of a witness may be attacked by 

any party, including the party calling the witness. 

Rule 608. Evidence of character, conduct, 

and bias of witness 

(a) Opinion and reputation evidence of character. 

The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the 

evidence may refer only 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 conduct of a witness, for the purpose of attacking 

or supporting the credibility of the witness, other 

than conviction of crime as provided in Mil. R. 

Evid. 609, may not be proved by extrinsic evidence. 

They may, however, in the discretion of the military 

judge, if probative of truthfulness or untruthfulness, 

be inquired into on cross-examination of the witness 

(1) concerning character of the witness for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another 

witness as to which character the witness being 

cross-examined has testified. The giving of testimony, whether by an accused or by another witness, 

does not operate as a waiver of the privilege against 

self-incrimination when examined with respect to 

matters which relate only to credibility. 

(c) Evidence of bias. Bias, prejudice, or any motive 

to misrepresent may be shown to impeach the witness either by examination of the witness or by 

evidence otherwise adduced. 

Rule 609. Impeachment by evidence of 

conviction of crime 

(a) General rule. For the purpose of attacking the 

credibility of a witness, (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 cert$cate 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 

111-34 
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 adjudicatiorzs. Evidence of juvenile adjudications is generally not admissible under this 

rule. The military judge, however, may allow evidence of a juvenile adjudication of a witness other 

than the accused if conviction of the offense would 

be admissible to attack the credibility of an adult 

and the military judge is satisfied that admission in 

evidence is necessary for a fair determination of the 

issue of guilt or innocence. 

(e) Pendency of appeal. The pendency of an appeal 

therefrom does not render evidence of a conviction 

inadmissible except that a conviction by summary 

court-martial or special court-martial without a military judge may not be used for purposes of impeachment until review has been completed pursuant to 

Article 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) 

protect witnesses from harassment or undue 

embarrassment. 

(b) Scope of cross-examination. Cross-examination 

should be limited to the subject matter of the direct 

examination and matters affecting the credibility of 

the witness. The military judge may, in the exercise 

of discretion, permit inquiry into additional matters 

as if on direct examination. 

(c) Leading questions. Leading questions should not 

be used on the direct examination of a witness except as may be necessary to develop the testimony 

of the witness. Ordinarily leading questions should 

be permitted on cross-examination. When a party 

calls a hostile witness or a witness identified with an 

adverse party, interrogation may be by leading 

questions. 

Rule 612. Writing used to refresh memory 

If a witness uses a writing to refresh his or her 

memory for the purpose of testifying, either 

(1) while testifying, or 

(2) before testifying, if the military judge determines it is necessary in the interests of justice, an 

adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine 

the witness thereon, and to introduce in evidence 

those portions which relate to the testimony of the 

witness. If it is claimed that the writing contains 

privileged information or matters not related to the 

subject matter of the testimony, the military judge 

shall examine the writing in camera, excise any 

privileged information or portions not so related, and 

order delivery of the remainder to the party entitled 

thereto. Any portion withheld over objections shall 

be attached to the record of trial as an appellate 

exhibit. If a writing is not produced or delivered 

pursuant to order under this rule, the military judge 

shall make any order justice requires, except that 

when the prosecution elects not to comply, the order 

shall be one striking the testimony or, if in discretion of the military judge it is determined that the 

interests of justice so 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 incorisistent statement of witness. Extrinsic evidence of a prior incon111-35 
sistent statement by a witness is not admissible 

unless the witness is afforded an opportunity to explain or deny the same and the opposite party is 

afforded an opportunity to interrogate the witness 

thereon, or the interests of justice otherwise require. 

This provision does not apply to admissions of a 

party-opponent as defined in Mil. R. Evid. 

801(d)(2). 

Rule 614. Calling and interrogation of 

witnesses by the court-martial 

(a) Calling by the court-martial. The military judge 

may, sua sponte, or at the request of the members or 

the suggestion of a party, call witnesses, and all 

parties are entitled to cross-examine witnesses thus 

called. When the members wish to call or recall a 

witness, the military judge shall determine whether 

it is appropriate to do so under these rules or this 

Manual. 

(b) interrogation by the court-martial. The military 

judge or members may interrogate witnesses, 

whether called by the military judge, the members, 

or a party. Members shall submit their questions to 

the military judge in writing so that a ruling may be 

made on the propriety of the questions or the course 

of questioning and so that questions may be asked 

on behalf of the court by the military judge in a 

form acceptable to the military judge. When a witness who has not testified previously is called by the 

military judge or the members, the military judge 

may conduct the direct examination or may assign 

the responsibility to counsel for any party. 

(c) Objections. Objections to the calling of witnesses by the military judge or the members or to 

the interrogation by the military judge or the members may be made at the time or at the next available opportunity when the members are not present. 

Rule 615. Exclusion of witnesses 

At the request of the prosecution or defense the 

military judge shall order witnesses excluded so that 

they cannot hear the testimony of other witnesses, 

and the military judge may make the order sua 

sponte. This rule does not authorize exclusion of (1) 

the accused, or (2) a member of an armed service or 

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

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

to be essential to the presentation of the party's case. 

SECTION VII 

OPINIONS AND EXPERT TESTIMONY 

Rule 701. Opinion testimony by lay 

witnesses 

If the witness is not testifying as an expert, the 

testimony of the witness in the form of opinions or 

inference is limited to those opinions or inferences 

which are (a) rationally based on the perception of 

the witness and (b) helpful to a clear understanding 

of the testimony of the witness of the determination 

of a fact in issue. 

Rule 702. Testimony by experts 

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the 

evidence or to determine a fact in issue, a witness 

qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in 

the form of an opinion or otherwise. 

Rule 703. Bases of opinion testimony by 

experts 

The facts or data in the particular case upon 

which an expert bases an opinion or inference may 

be those perceived by or made known to the expert, 

at or before the hearing. If of a type reasonably 

relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts 

or data need not be admissible in evidence. 

Rule 704. Opinion on ultimate issue 

Testimony in the form of an opinion or inference 

otherwise admissible is not objectionable because it 

embraces an ultimate issue to be decided by the trier 

of fact. 

Rule 705. Disclosure of facts or data 

underlying expert opinion 

The expert may testify in terms of opinion or 

inference and give the expert's reasons therefor 

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 Vlll 

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 testirnony, and was given under oath subject to the penalty 

of perjury at a trial, hearing, or other proceeding, or 

in a deposition, or (B) consistent with the declarant's 

testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, or (C) one of 

identification of a person made after perceiving the 

person; or 

(2) Admission by party-opponent. The statement 

is offered against a party and is (A) the party's own 

statement in either the party's individual or representative capacity, or (B) a statement of which the 

party has manifested the party's adoption or belief in 

its truth, or (C) a statement by a person authorized 

by the party to make a statement concerning the 

subject. or (D) a statement by the party's agent or 

servant concerning a matter within the scope of the 

agency or employment of the agent or servant, made 

during the existence of the relationship, or (E) a 

statement by a co-conspirator of a party during the 

course and in furtherance of the conspiracy. 

Rule 802. Hearsay rule 

Hearsay is not admissible except as provided by 

these rules or by any Act of Congress applicable in 

trials by court-martial. 

Rule 803. Hearsay exceptions; availability of 

declarant immaterial 

The following are not excluded by the hearsay 

rule, even though the declarant is available as a 

witness: 

(1) Present sense impression. A statement describing or explaining an event or condition made while 

declarant was perceiving the event or condition or 

immediately thereafter. 

(2) Excited utterance. A statement relating to a startling event or condition made while the declarant 

was under the stress of excitement cause by the 

event or condition. 

(3) Then existing mental, emotional, or physical 

condition. A statement of the declarant's then existing state of mind, emotion, sensation, or physical 

condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the 

fact remembered or believed unless it relates to the 

111-37 
execution, revocation, identification, or terms of 

declarant's will. 

(4) Statements for purposes of medical diagnosis or 

treatment. Statements made for purposes of medical 

diagnosis or treatment and described medical history, or past or present symptoms, pain, or sensation, 

or the inception or general character of the cause or 

external source thereof insofar as reasonably pertinent to diagnosis or treatment. 

(5) Recorded recollection. A memorandum or record concerning a matter about which a witness 

once had knowledge but now has insufficient recollection to enable the witness to testify fully and 

accurately, shown to have been made or adopted by 

the witness when the matter was fresh in the witness's memory and to reflect that knowledge correctly. If admitted, the memorandum or record may 

be read into evidence, but may not itself be received 

as an exhibit unless offered by an adverse party. 

(6) Records of regularly conducted activity. A 

memorandum, report, record, or data compilation, in 

any form, of acts, events, conditions, opinions, or 

diagnoses, made at or near the time by, or from 

information transmitted by, a person with knowledge, if kept in the course of a regularly conducted 

business activity, and if it was the regular practice of 

that business activity to make the memorandum, 

report, record, or data compilation, all as shown by 

the testimony of the custodian or other qualified 

witness, unless the source of information or the 

method or circumstances of preparation indicate lack 

of trustworthiness. The term "business" as used in 

this paragraph includes the armed forces, a business, 

institution, association, profession, occupation, and 

calling of every kind, whether or not conducted for 

profit. Among those memoranda, reports, records, or 

data compilation normally admissible pursuant to 

this paragraph are enlistment papers, physical examination papers, outline-figure and fingerprint cards, 

forensic laboratory reports, chain of custody documents, morning reports and other personnel accountability documents, service records, officer and 

enlisted qualification records, logs, unit personnel 

diaries, individual equipment records, daily strength 

records of prisoners, and rosters of prisoners. 

(7) Absence of entry in records kept in accordance 

with the provisions of paragraph (6).Evidence that 

a matter is not included in the memoranda, reports, 

records, or data compilations, in any form, kept in 

accordance with the provisions of paragraph (6),to 

prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was 

regularly made and preserved, unless the sources of 

information or other circumstances indicate lack of 

trustworthiness. 

(8) Public records and reports. Records, reports, 

statements, or data compilations, in any form, of 

public office or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed 

pursuant to duty imposed by law as to which matters 

there was a duty to report, excluding, however, matters observed by police officers and other personnel 

acting in a law enforcement capacity, or (C) against 

the government, factual findings resulting from an 

investigation made pursuant to authority granted by 

law, unless the sources of information or other circumstances indicate lack of trustworthiness. Notwithstanding (B), the following are admissible under 

this paragraph as a record of a fact or event if made 

by a person within the scope of the person's official 

duties and those duties included a duty to how or 

to ascertain through appropriate and trustworthy 

channels of information the truth of the fact or event 

and to record such fact or event: enlistment papers, 

physical examination papers, outline figure and fingerprint cards, forensic laboratory reports, chain of 

custody documents, morning reports and other personnel accountability documents, service records, officer and enlisted qualification records, records of 

court-martial convictions, logs, unit personnel diaries, individual equipment records, guard reports, 

daily strength records of prisoners, and rosters of 

prisoners. 

(9) Records of vital statistics. Records or data compilations, in any form, of births, fetal deaths, deaths, 

or marriages, if the report thereof was made to a 

public office pursuant to requirements of law. 

(10) Absence of public record or entry. To prove 

the absence of a record, report, statement, or data 

compilation in any form, or the nonoccurrence or 

nonexistence of a matter of which a record, report, 

statement, or data compilation, in any form, was 

regularly made and preserved by a public office or 

agency, evidence in the form of a certification in 

accordance with Mil. R. Evid. 902, or testimony, 

that diligent search failed to disclose the record, 

report, statement, or data compilation, or entry. 

(11) Records of religious organizations. Statements 

of births, marriages, divorces, deaths, legitimacy, an- 
cestry, 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 docunzents 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. 

(17) Market reports, commnercial publications. 

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 examination, statements contained in published treatises, 

periodicals, or pamphlets on a subject of history, 

medicine or other science or art, established as a 

reliable authority by the testimony or admission of 

the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read 

into evidence but may not be received as exhibits. 

(19) Reputation concerning personal or family history. Reputation among members of the person's 

family by blood, adoption, or marriage, or among 

the person's associates, or in the community, concerning the person's birth, adoption, marriage, divorce, death, legitimacy, relationship by blood, 

adoption, or marriage, ancestry, or other similar fact 

of the person's personal or family history. 

(20) Reputation concerning boundaries or general 

history. Reputation in a community, arising before 

the controversy, as to boundaries of or customs affecting lands in the community, and reputation as to 

events of general history important to the community or State or nation in which located. 

(21) Reputation as to clmracter. Reputation of a 

person's character among the person's associates or 

in the community. 

(22) Judgr?ient 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 detennining 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. 

(23) Judgment as to personal, family or general history, or boundaries. Judgments as proof of matters 

of personal, family, or general history, or boundaries 

essential to the judgment, if the same would be 

provable by evidence of reputation. 

(24) Other exceptions. A statement not specifically 

covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the 

statement is offered as evidence of a material fact; 

(B) the statement is more probative on the point for 

which it'is offered than any other evidence which 

111-39 
the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and 

the interests of justice will best be served by admission of the statement into evidence. However, a 

statement may not be admitted under this exception 

unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or 

hearing to provide the adverse party with a fair opportunity to prepare to meet it, the intention to offer 

the statement and the particulars of it, including the 

name and address of the declarant. 

Rule 804. Hearsay exceptions; declarant 

unavailable 

(a) Dejnitions 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), the declarant's attendance or testimony) by 

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 

declarant's exemption, refusal, claim of lack of 

memory, inability, or absence is due to the procurement or wrongdoing of the proponent of the 

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 

with law in the course of the same or another 

proceeding, if the party against whom the testimony 

is now offered had an opportunity and similar motive to develop the testimony by direct, cross, or 

redirect examination. A record of testimony given 

before courts-martial, courts of inquiry, military 

commissions, other military tribunals, and before 

proceedings pursuant to or equivalent to those required by Article 32 is admissible under this subdivision if such a record is a verbatim record. This 

paragraph is subject to the limitations set forth in 

Articles 49 and 50. 

(2) Statement under belief of impending death. In 

a prosecution for homicide or for any offense resulting in the death of the alleged victim, a statement 

made by a declarant while believing that the 

declarant's death was imminent, concerning the 

cause or circumstances of what the declarant believed to be the declarant's impending death. 

(3) Statement against interest. A statement which 

was at the time of its making so far contrary to the 

declarant's pecuniary or 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 

statement concerning the declarant's own birth, 

adoption, marriage, divorce, legitimacy, relationship 

by blood, adoption, or marriage, ancestry, or other 

similar fact of personal or family history, even 

though declarant had no means of acquiring personal 

knowledge of the matter stated; or (B) a statement 

concerning the foregoing matters, and death also, of 

another person, if the declarant was related to the 

other by blood, adoption, or marriage 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. A statement not specifically 

covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the military judge determines that (A) the 

statement is offered as evidence of a material fact; 

(B) the statement is more probative of the point for 
which it is offered than any other evidence which 

the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and 

the interest of justice will best be served by admission of the statement into evidence. However, a 

statement may not be admitted under this exception 

unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or 

hearing to provide the adverse party with a fair opportunity to prepare to meet it, the intention to offer 

the statement and the particulars of it, including the 

name and address of the declarant. 

Rule 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. 8Ol(d)(2)(C), (D), or (E), has been 

admitted in evidence, the credibility of the declarant 

may be attacked, and if attacked may be supported, 

by any evidence which would be admissible for 

those purposes if declarant had testified as a witness. 

Evidence of a statement or conduct by the declarant 

at any time, inconsistent with the declarant's hearsay 

statement, is not subject to any requirement that the 

declarant may have been afforded an opportunity to 

deny or explain. If the party against whom a hearsay 

statement has been admitted calls the declarant as a 

witness, the party is entitled to examine the 

declarant on the statement as if under cross-examination. 

SECTION IX 

AUTHENTICATION AND IDENTIFICATION 

Rule 901. Requirement of authentication or 

identification 

(a) General provision. The requirement of authentication or identification as a condition precedent to 

admissibility is satisfied by evidence sufficient to 

support a finding that the matter in question is what 

its proponent claims. 

(b) Illustrations. By way of illustration only, and 

not by way of limitation, the following are examples 

of authentication or identification conforming with 

the requirements of this rule: 

(1) Testimony of witness with knowledge. Testimony that a matter is what it is claimed to be. 

(2) Nonexpert opinion on handwriting. Nonexpert 

opinion as to the genuineness of handwriting, based 

upon familiarity not acquired for purposes of the 

litigation. 

(3) Comparison by trier or expert witness. Comparison by the trier of fact or by expert witnesses 

with specimens which have been authenticated. 

(4) Distinctive characteristics and the like. Appearance, contents, substance, internal patterns, or 

other distinctive characteristics, taken in conjunction 

with circumstances. 

(5) Voice identification. Identification of a voice, 

whether heard firsthand or through mechanical or 

electronic transmission or recording, by opinion 

based upon hearing the voice at any time under 

circumstances connecting it with the alleged 

speaker. 

(6) Telephone conversations. Telephone conversations, by evidence that a call was made to the 

number assigned at the time by the telephone company to a particular persons or business, if (A) in the 

case of a person, circumstances, including self-identification, show the person answering to be the one 

called, or (B) in the case of a business, the call was 

made to a place of business and the conversation 

related to business reasonably transacted over the 

telephone. 

(7) Public records or reports. Evidence that a 

writing authorized by law to be recorded or filed and 

in fact recorded or filed in a public office, or a 

purported public record, report, statement, or data 

compilation, in any form, is from the public office 

where items of this nature are kept. 

(8) Ancient documents or clata compilation. Evidence that a d::cument or data compilation, in any 

form, (A) is in such condition as to create no suspicion concerning its authenticity, (B) was in place 

where it, if authentic, would likely be, and (C) has 

been in existence 20 years or more at the time it is 

offered. 

(9) Process or system. Evidence describing a 

process or system used to produce a result and 

showing that the process or system produces an accurate result. 

111-41 
(10) Methods provided by statute or rule. Any 

method of authentication or identification provided 

by Act of Congress, by rules prescribed by the 

Supreme Court pursuant to statutory authority, or by 

applicable regulations prescribed pursuant to statutory authority. 

Rule 902. Self-authentication 

Extrinsic evidence of authenticity as a condition 

precedent to admissibility is not required with 

respect to the following: 

(1) Domestic public documents under seal. A document bearing a seal purporting to be that of the 

United States, or any State, district, Commonwealth, 

territory, or insular possession thereof, or the 

Panama Canal Zone, or the Trust Territory of the 

Pacific Islands, or 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 

accompanied by a final certification as to the 

genuineness of the signature and official position 

(A) of the executing or attesting person, or (B) of 

any foreign official whose certificate of genuineness 

of signature and official position relates to the execution or attestation or is in a chain of certificates of 

genuineness of signature and official position relating to the execution of attestation. A final certification may be made by a secretary of embassy or 

legation, counsul general, consul, vice consul, or 

consular agent of the United States, or a diplomatic 

or consular official of the foreign country assigned 

or accredited to the United States. If reasonable opportunity has been given to all parties to investigate 

the authenticity and accuracy of official documents, 

the court may, for good cause shown, order that they 

be treated as presumptively authentic without final 

certification or permit them to be evidenced by an 

attested summary with or without final certification. 

(4) Certified copies of public records. A copy of an 

official record or report of entry therein, or of a 

document authorized by law to be recorded or filed 

and actually recorded or filed in a public office, 

including data compilations in any form, certified as 

correct by the custodian or other person authorized 

to make the certification, by certificate complying 

with paragraphs (I), (2), or (3) of this rule or complying with any Act of Congress, rule prescribed by 

the Supreme Court pursuant to statutory authority, or 

an applicable regulation prescribed pursuant to statutory authority. 

(4a) Documents or records of tlze 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) OfSicial publications. Books, pamphlets, or other 

publications purporting to be issued by public 

authority. 

(6) Newspapers and periodicals. Printed material 

purporting to be newspapers or periodicals. 

(7) Trade inscriptions and the like. Inscriptions, 

signs, tags or labels purporting to have been affixed 

in the course of business and indicating ownership, 

control, or origin. 

(8) Acknowledged documents. Documents accompanied by a certificate of acknowledgment executed in 

the manner provided by law by a notary public or 

other officer authorized by law to take 

acknowledgments. 

(9) Commercial paper and related documents. Commercial paper, signatures thereon, and documents relating thereto to the extent provided by general 

commercial law. 

(10) Presumptions under Acts of Congress and regulations. Any signature, document, or other matter 

declared by Act of Congress or by applicable regulation prescribed pursuant to statutory authority to be 

presumptively or prima facie genuine or authentic. 

Rule 903. Subscribing witness' testimony 

unnecessary 

The testimony of a subscribing witness is not necessary to authenticate a writing unless required by 

111-42 
the laws of the jurisdiction whose laws govern the 

validity of the writing. 

SECTION X 

CONTENTS OF WRITINGS, RECORDINGS, 

AND PHOTOGRAPHS 

Rule 1001. Definitions 

For purposes of this section the following definitions are applicable: 

(1) Writings and recordings. "Writings" and "recordings" consist of letters, words, or numbers, or their 

equivalent, set down by handwriting, typewriting, 

printing, photostating, photographing, magnetic impulse, mechanical or electronic recording, or other 

form of data compilation. 

(2) Photographs. "Photographs" include still photographs, X-ray films, video tapes, and motion 

pictures. 

(3) Original. An "original" of a writing or recording 

is the writing or recording itself or any counterpart 

intended to have the same effect by a person executing or issuing it. An "original" of a photograph 

includes the negative or any print therefrom. If data 

are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an "original." 

(4) Duplicate. A "duplicate" is a counterpart produced by the same impression as the original, or 

from the same matrix, or by means of photography, 

including enlargements and miniatures, or by mechanical or electronic rerecording, or by chemical 

reproduction, or by other equivalent techniques 

which accurately reproduce the original. 

Rule 1002. Requirement of an original 

To prove the content of a writing, recording, or 

photograph, the original writing, recording, or photograph is required, except as otherwise provided in 

these rules, this Manual, or by Act of Congress. 

Rule 1003. Admissibility of duplicates 

A duplicate is admissible to the same extent as an 

original unless (1) a genuine question is raised as to 

the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in 

lieu of the original. 

Rule 1004. Admissibility of other evidence of 

contents 

The original is not required, and other evidence of 

the contents of a writing, recording, or photograph is 

admissible if: 

(1) Originals lost or destroyed. All originals are lost 

or have been destroyed, unless the proponent lost or 

destroyed them in bad faith; or 

(2) Original not obtainable. No original can be obtained by any available judicial process or procedure; or 

(3) Original in possession of opponent. At a time 

when an original was under the control of the party 

against whom offered, the party was put on notice, 

by the pleadings or otherwise, that the contents 

would be a subject of proof at the hearing, and the 

party does not produce the original at the hearing; or 

(4) Collateral matters. The writing, recording, or 

photograph is not closely related to a controlling 

issue. 

Rule 1005. Public records 

The contents of an official record, or of a document authorized to be recorded or filed and actually 

recorded or filed, including data compilations in any 

form, if otherwise admissible, may be proved by 

copy, certified as correct or attested to in 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 

111-43 
admission, without accounting for the nonproduction 

of the original. 

Rule 1008. Functions of military judge and 

members 

When the admissibility of other evidence of contents of writings, recordings, or photographs under 

these rules depends upon the fulfillment of a condition of fact, the question whether the condition has 

been fulfilled is ordinarily for the military judge to 

determine in accordance with the provisions of Mil. 

R. Evid. 104. However, when an issue is raised (a) 

whether the asserted writing ever existed, or (b) 

whether another writing, recording, or photograph 

produced at trial is the original, or (c) whether other 

evidence of contents correctly reflects the contents, 

the issue is for the trier of fact to determine as in the 

case of other issues of fact. 

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 

proceedings pursuant to Article 39(a); to limited 

factfinding proceedings ordered on review; to 

proceedings in revision; and to contempt proceedings except those in which the judge may act 

summarily. 

(b) Rules of privilege. The rules with respect to 

privileges in Section I11 and V apply at all stages of 

all actions, cases, and proceedings. 

(c) Rules relaxed. The application of these rules 

may be relaxed in sentencing proceedings as provided under R.C.M. 1001 and otherwise as provided 

in this Manual. 

(d) Rules inapplicable. These rules (other than with 

respect to privileges 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 

authorizations; proceedings involving pretrial restraint; and in other proceedings authorized under 

the code or this Manual and not listed in subdivision 

(a). 

Rule 1 102. Amendments 

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. 

Rule 1103. Title 

These rules may be known and cited as the Military Rules of Evidence. 
PART IV 


PUNITIVE ARTICLES 


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 tern "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. "Any person punishable under this chapter 

who-

(1) commits an offense punishable by this chapter, or aids, abets, counsels, commands, or procures 

its commission; or 

(2) causes an act to be done which if directly 

performed by him would be punishable by this chapter; is a principal." 

b. Explanation. 

(1) Purpose. Article 77 does not define an offense. Its purpose is to make clear that a person need 

not personally perform the acts necessary to constitute an offense to be guilty of it. A person who aids, 

abets, counsels, commands, or procures the commission of an offense, or who causes an act to be done 

which, if done by that person directly, would be an 

offense is equally guilty of the offense as one who 

commits it directly, and may be punished to the 

same extent. 

Article 77 eliminates the common law distinctions between principal in the first degree ("perpetrator"); principal in the second degree (one who 

aids, counsels, commands, or encourages the commission of an offense and who is present at the 

scene of the crime--commonly known as an "aider 

and abettor"); and accessory before the fact (one 

who aids, counsels, commands, or encourages the 

commission of an offense and who is not present at 

the scene of the crime). All of these are now 

"principals." 

(2) Who may be liable for an offense. 

(a) Perpetrator. A perpetrator is one who actually commits the offense, either by the perpetrator's 

own hand, or by causing an offense to be committed 

by knowingly or intentionally inducing or setting in 

motion acts by an animate or inanimate agency or 

instrumentality which result in the commission of an 

offense. For example, a person who knowingly conceals contraband drugs in an automobile, and then 

induces another person, who is unaware and has no 

reason to know of the presence of drugs, to drive the 

automobile onto a military installation, is, although 

not present in the automobile, guilty of wrongful 

introduction of drugs onto a military installation. 

(On these facts, the driver would be guilty of no 

crime.) Similarly, if, upon orders of a superior, a 

soldier shot a person who appeared to the soldier to 

be an enemy, but was known to the superior as a 

friend, the superior would be guilty of murder (but 

the soldier would be guilty of no offense). 

(b) Other Parties. If one is not a perpetrator, to 

be guilty of an offense committed by the perpetrator, 

the person must: 

(i) Assist, encourage, advise, instigate, counsel, command, or procure another to commit, or assist, encourage, advise, counsel, or command 

another in the commission of the offense; and 

(ii) Share in the criminal purpose 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 

in the examples in paragraph lb(2)(a) above. In 

some circumstances, inaction may make one liable 

as a party, where there is a duty to act. If a person 

(for example, a security guard) has a duty to interfere in the commission of an offense, but does not 
interfere, that person is a party to the crime if such 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 suflcient. Mere presence at the scene 

of a crime does not make one a principal unless the 

requirements of paragraph lb(2)G) or (b) have been 

met. (4) Parties whose intent differsfrom the perpetrator's. When an offense charged requires proof of a 

specific intent or particular state of mind as an element, the evidence must prove that the accused had 

that intent or state of mind, whether the accused is 

charged as a perpetrator or an "other party" to 

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 persnn may withdraw from a 

common venture or design and avoid liability for 

any offenses committed after the withdrawal. To be 

effective, the withdrawal must meet the following 

requirements: 

(a) It must occur before the offense is 

committed; 

(b) The assistance, encouragement, advice, instigation, counsel, command, or procurement given 

by the person must be effectively countermanded or 

negated; and 

(c) The withdrawal must be clearly communicated to the would-be perpetrators or to appropriate 

law enforcement authorities in time for the perpetrators to abandon the plan or for law enforcement 

authorities to prevent the offense. 

2. Article 78-Accessory after the fact 

a. Text. "Any person subject to this chapter who, 

knowing that an offense punishable by this chapter 

has been committed, receives, comforts, or assists 

the offender in order to hinder or prevent his apprehension, trial, or punishment shall be punished as a 

court-martial may direct." 

b. Elements. 

(1) That an offense punishable by the code was 

committed by a certain pelson; 

(2) That the accused knew that this person had 

committed such offense; 

(3) That thereafter the accused received, comforted, or assisted the offender; and 

(4) That the accused did so for the purpose of 

hindering or preventing the apprehension, trial, or 

punishment of the offender. 

c. Explanation. 

(1) In general. The assistance given a principal 

by an accessory after the fact is not limited to assistance designed to effect the escape or concealment of 

the principal, but also includes acts performed to 

conceal the commission of the offense by the principal (for example, by concealing evidence of the 

offense). 

(2) Failure to report offense. The mere failure to 

report a known offense will not make one an accessory after the fact. Such failure may violate a general order or regulation, however, and thus constitute 
an offense under Article 92. See paragraph 16. If the 

offense involved is a serious offense, failure to 

report it may constitute the offense of misprision of 

a serious offense, under Article 134. See paragraph 

95. 

(3) Offense punishable by the code. The term "offense punishable by this chapter" in the text of the 

article means any offense described in the code. 

(4) Status of principal. The principal who committed the offense in question need not be subject to 

the code, but the offense committed must be punishable by the code. 

(5) Conviction or acquittal of principal. The 

prosecution must prove that a principal committed 

the offense to which the accused is allegedly an 

accessory after the fact. However, evidence of the 

conviction or acquittal of the principal in a separate 

trial is not admissible to show that the principal did 

or did not commit the offense. Furthermore, an accused may be convicted as an accessory after the 

fact despite the acquittal in a separate trial of the 

principal whom the accused allegedly comforted, received, or assisted. 

(6) Accessory 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 required but may be proved by circumstantial 

evidence. 

d. Lesser included offense. Article 80- attempts 

e. Maximum punishment. Any person subject to the 

code who is found guilty as an accessory after the 

fact to an offense punishable by the code shall be 

subject to the maximum punishment authorized for 

the principal offense, except that in no case shall the 

death penalty nor more than one-half of the maximum confinement authorized for that offense be adjudged, nor shall the period of confinement exceed 

10 years in any case, including offenses for which 

life imprisonment may be adjudged. 

f. Sample specification. 

In that (personal jurisdiction data), 

knowing that (atlon board-location), on or 

about 19 -..--.p, 

had committed an offense punishable by the Uniform Code of Military Justice, to 

wit: -_---_ , did, (atlon board-location) 

(subject-matter jurisdiction data, if required), on or 

about 19_~ in order to (hinder) (prevent) the (apprehension) (trial) 

(punishment) of the said ~,(receive) 

(comfort) (assist) the said 

by 

3. Article 79--Conviction of lesser included 

offenses 

a. Text. "An accused may be found guilty of an 

offense necessarily inclucled in the offense charged 

or of an attempt to commit either the offense 

charged or an offense necessarily included therein." 

b. Explanation. 

(1) In general. A lesser offense is included in a 

charged offense when the specification contains allegations which either expressly or by fair implication 

put the accused on notice to be prepared to defend 

against it in addition to the offense specifically 

charged. This requirement of notice may be met 

when: 

(a) Ail of the elerqents 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 
- - 

robbery, but guilty of wrongful appropriation and 

assault. 

(3) Findings of guilty to a lesser included offense. A court-martial may find an accused not 

guilty of the offense charged, but guilty of a lesser 

included offense by the process of exception and 

substitution. The court-martial may except (that is, 

delete) the words in the specification that pertain to 

the offense charged and, if necessary, substitute language appropriate to the lesser included offense. For 

example, the accused is charged with murder in violation of Article 118, but found guilty of voluntary 

manslaughter in violation of Article 119. Such a 

finding may be worded as follows: 

Of the Specification: Guilty, except the 

word "murder," substituting therefor the 

words "willfully and 

unlawfully kill", of the 

excepted word, not 

guilty, of the substituted words, guilty. 

Of the Charge: Not guilty, but guilty of a 

violation of Article 

119. 

If a court-martial finds an accused guilty of a lesser 

included offense, the finding as to the charge shall 

state a violation of the specific punitive article violated and not a violation of Article 79. 

(4) Specific lesser included offenses. Specific 

lesser included offenses, if any, are listed for each 

offense discussed in this Part, but the lists are not 

all-inclusive. 

4. Article 80-Attempts 

a. Text. 

"(a) An act, done with specific intent to commit 

an offense under this chapter, amounting to more 

than mere preparation and tending, even though failing, to effect its commission, is an attempt to commit that offense. 

(b) Any person subject to this chapter who 

attempts to commit any offense punishable by this 

chapter shall be punished as a court-martial may 

direct, unless otherwise specifically prescrihed. 

(c) Any person subject to this chapter may be 

convicted of an attempt to commit an offense although it appears on the trial that the offense was 

consummated." 

b. Elements. 

(1) That the accused did a certain overt act; 

(2) That the act was done with the specific intent 

to commit a certain offense under the code; 

(3) That the act amounted to more than mere 

preparation; and 

(4) That the act apparently tended to effect the 

commission of the intended offense. 

c. Explanation. 

(1) In general. To constitute an attempt there 

must be a specific intent to commit the offense accompanied by an overt act which directly tends to 

accomplish the unlawful purpose. 

(2) More than preparation. Preparation consists 

of devising or arranging the means or measures necessary for the commission of the offense. The overt 

act required goes beyond preparatory steps and is a 

direct movement toward the commission of the offense. For example, a purchase of matches with the 

intent to bum a haystack is not an attempt to commit 

arson, but it is an attempt to commit arson to 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) Factual impossibility. A person who purposely engages in conduct which would constitute 

the offense if the attendant circumstances were as 

that person believed them to be is guilty of an attempt. For example, if A, without justification or 

excuse and with intent to kill B, points a gun at B 

and pulls the trigger, A is guilty of attempt to murder, even though, unknown to A, the gun is defective and will not fire. Similarly, a person who 

reaches into the pocket of another with the intent to 

steal that person's billfold is guilty of an attempt to 

commit larceny, even though the pocket is empty. 

(4) Voluntary abandonment. It is a defense to an 

attempt offense that the person voluntarily and completely abandoned the intended crime, solely beIV-4 
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 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. 

(5) Solicitation. Soliciting another to commit an 

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 

following attempts are specifically addressed by 

some other article, and should be charged 

accordingly: 

(a) Article 85--desertion 

(b) Article 94--mutiny or sedition. 

(c) Article 100-subordinate compelling 

(d) Article 104--aiding the enemy 

(e) Article 106a--espionage 

(f) 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 

the accused intended to commit the prohibited 

conduct. 

d. Lesser included offenses. If the accused is 

charged with an attempt under Article 80, and the 

offense attempted has a lesser included offense, then 

the offense of attempting to commit the lesser included offense would ordinarily be a lesser included 

offense to the charge of attempt. For example, if an 

accused was charged with attempted larceny, the 

offense of attempted wrongful appropriation would 

be a lesser included offense, although it, like the 

attempted larceny, would be a violation of Article 

80. 

e. Maxirnzlm punislznzent. 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-matte1 jurisdiction data, if required), on or 

about^._- .._.._. 19 ~--, attempt 

to (describe offense with sufficient detail to include 

expressly or by necessary implication every 

element). 

5. Article 81-Conspiracy 

a. Text. "Any person subject to this chapter who 

conspires with any other person to commit an offense under this chapter shall, if one or more of the 

conspirators does an act to effect the object of the 

conspiracy, be punished as a court-martial may 

direct." 

b. Elements. 

(1) That the accused entered into an agreement 

with one or more persons to commit an offense 

under the code; and 

(2) That, while the agreement continued Lo exist, 

and while the accused remained a party to the agreement, the accused or at least one of the co-conspirators performed an overt act for the purpose of 

bringing about the object of the conspiracy. 

c. Explanation. 

(1) Co-conspirators. Two or more persons are required in order to have a conspiracy. Knowledge of 

the identity of co-conspirators and their particular ' 

connection with the criminal purpose need not be 

established. The accused must be subject to the 

code, but the other co-conspirators need not be. A 

person may be guilty of conspiracy although incapable of committing the intended offense. For example, a bedridden conspirator may knowingly furnish 

the car to be used in a robbery. The joining of 

another conspirator after the conspiracy has been 

established does not create a new conspiracy or affect the status of the other conspirators. However, 

the conspirator who joined an existing conspiracy 

IV-5 
can be convicted of this offense only if, at or after 

the time of joining the conspiracy, an overt act in 

furtherance of the object of the agreement is 

committed. 

(2) Agreement. The agreement in a conspiracy 

need not be in any particular form or manifested in 

any formal words. It is sufficient if the minds of the 

parties arrive at a common understanding to accomplish the object of the conspiracy, and this may be 

shown by the conduct of the parties. The agreement 

need not state the means by which the conspiracy is 

to be accomplished or what part each conspirator is 

to play. 

(3) Object of the agreement. The object of the 

agreement must, at least in part, involve the commission of one or more offenses under the code. An 

agreement to commit several offenses is ordinarily 

but a single conspiracy. Some offenses require two 

or more culpable actors acting in concert. There can 

be no conspiracy where the agreement exists only 

between the persons necessary to commit such an 

offense. Examples include dueling, bigamy, incest, 

adultery, and bribery. 

(4) Overt act. 

(a) The overt act must be independent of the 

agreement to commit the offense; must take place at 

the time of or after the agreement; must be done by 

one or more of the conspirators, but not necessarily 

the accused; and must be done to effectuate the 

object of the agreement. 

(b) The overt act need not be in itself criminal, 

but it must be a manifestation that the agreement is 

being executed. Although committing the intended 

offense may constitute the overt act, it is not essential that the object offense be committed. Any overt 

act is enough, no matter how preliminary or preparatory in nature, as long as it is a manifestation that 

the agreement is being executed. 

(c) An overt act by one conspirator becomes 

the act of all without any new agreement specifically 

directed to that act and each conspirator is equally 

guilty even though each does not participate in, or 

have knowledge of, all of the details of the execution of the conspiracy. 

(5) Liability for offenses. Each conspirator is liable for all offenses committed pursuant to the conspiracy by any of the co-conspirators while the 

conspiracy continues and the person remains a party 

to it. 

(6) Withdrawal. A party to the conspiracy who 

abandons or withdraws from the agreement to commit the offense before the commission of an overt 

act by any conspirator is not guilty of conspiracy. 

An effective withdrawal or abandonment must consist of affirmative conduct which is wholly inconsistent with adherence to the unlawful agreement and 

which shows that the party has severed all connection with the conspiracy. A conspirator who effectively abandons or withdraws from the conspiracy 

after the performance of an overt act by one of the 

conspirators remains guilty of conspiracy and of any 

offenses committed pursuant to the conspiracy up to 

the time of the abandonment or withdrawal. However, a person who has abandoned or withdrawn from 

the conspiracy is not liable for offenses committed 

thereafter by the remaining conspirators. The 

withdrawal of a conspirator from the conspiracy 

does not affect the status of the remaining members. 

(7) Factual impossibility. It is not a defense that 

the means adopted by the conspirators to achieve 

their object, if apparently adapted to that end, were 

actually not capable of success, or that the conspirators were not physically able to accomplish their 

intended object. 

(8) Conspiracy as a separate offense. A conspiracy to commit an offense is a separate and distinct 

offense from the offense which is the object of the 

conspiracy, and both the conspiracy and the consummated offense which was its object may be charged, 

tried, and punished. The commission of the intended 

offense may also constitute the overt act which is an 

element of the conspiracy to commit that offense. 

(9) Special conspiracies under Article 134. The 

United States Code prohibits conspiracies to commit 

certain specific offenses which do not require an 

overt act. These conspiracies should be charged 

under Article 134. Examples include conspiracies to 

impede or injure any Federal officer in the discharge 

of duties under 18 U.S.C. $ 372, conspiracies 

against civil rights under 18 U.S.C. Q 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. Sarnple specification. 

In that .... . ... . (personal jurisdiction 

data), did, (at1011 board-location) (subject-matter 

jurisdiction data, if required), on or 

about._ 19..~ ... .- ...- , conspire with .. .. (and . ) 

to commit an offense under the Uniform Code of 

Military Justice, to wit: (larceny 

of_--^ ~-.--, of a value of (about) 

$ the property 

of ), and in order to effect the object of the conspiracy the said 

(and - ) did 

6. Article 82-Solicitation 

a. Text. 

"(a) Any person subject to this chapter who solicits or advises another or 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 advised is attempted 

or committed, be punished with the punishment provided for the commission of the offense, but, if the 

offense solicited or advised is not committed or attempted, he shall be punished as a court-martial may 

direct. 

(b) Any person subject to this chapter who solicits 

or advises another or others to commit an act of 

mis1)ehavior 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 wit11 the intent that 

the offense actually be committed. 

[Note: If the offense solicited or advised was attempted or committed, add the following element] 

(3) That the offense solicited or advised was 

(committed) (attempted) as the proximate result of 

the solicitation. 

c. Explanation. 

(1) ltutantnneoru oflense. The offense is cornplete when a solicitation is made or advice is given 

with the specific wrongful intent to influence another or olllers to conltnit 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) Forrn 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 com~nitting this offense. 

(3) Solicitations in violation of Article 134. Solicitation to commit offenses olller than violations of 

the four offenses named in Article 82 may be 

charged as violations of Article 134. See paragraph 

105. However, some offenses require, as an element 

of proof, some act of solicitation by the accused. 

These offenses are separate and distinct from solicitations under Articles 82 and 134. When the accused's act of solicitation constitutes, by itself, a 

separate offense, the accused should be charged with 

that separate, distinct offense-for example, pandering (see paragraph 97) and obstruction of justice 

(see paragraph 96) in violation of Article 134. 

d. Lesser inchrded oflense. Article 80-attempts 

e. Maxbttiril p~inislrment. 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 punisllment provided for 

the comtnission of tlle 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 pur~isllrnent may be 

imposed: 

(I) To desert-Dishonorable discllarge, forfeiture 

of all pay and allowances, and confinement for 3 

years. 

(2) To mutiny-Dishonorable discharge, forfeiture of all pay arid allowances, and confinement for 

10 years. 

(3) To commit an act of misbehavior before the 

enemy-Dishonorable discharge, forfeiture of all 

pay and allowances, and confinement for 10 years. 

(4) To commit an act of sedition-Dishonorable 

discharge, forfeiture of all pay and allowances, and 

confinement for 10 years. 
f. 	Sample specifications. 

(1) For soliciting desertion (Article 85) or mutiny 

(Article 94). 

In (personal jurisdiction 

data), did, (atlon board-location), on or 

about 19 (a time 

of war) by (here state the manner and form of solicitation or advice), (solicit) (advise)------ 

(and.-. . --) to (desert in violation of Article 85) (mutiny in violation of Article 94) 

.[Note:If the offense solicited or advised is attempted 

or committed, add the following at the end of the 

speczjication:] 

and, as a result of such (solicitation) (advice), the 

offense (solicited) (advised) was, on or 

about_ ,19 (adon 

board-location), (attempted) (committed) 

by - - (and ). 

(2) For soliciting an act of misbehavior before 

the enemy (Article 99) or sedition (Article 94). 

In t h a t - (personal jurisdiction 

data) did, (atlon board-location), on or 

about. - 19 --, (a time 

of war) by (here state the manner and form of solicitation or advice), (solicit) (advise) ,----.--p--

(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 comnzitted, add the following at the end of the specification:] 

and, as a result of such (solicitation) (advice), the 

offense (solicited) (advised) was, on or 

about 19 (adon 

board-location), committed by 

(and $. 

7. Article 83-Fraudulent enlistment, 

appointment, or separation 

a. 	Text. 

"Any person who- 

(1) procures his own enlistment or appointment 

in the armed forces by knowingly false representation or deliberate concealment as to his qualifications for that enlistment or appointment and receives 

pay or allowances thereunder; or 

(2) procures his own separation from the armed 

forces by knowingly false representation or deliberate concealment as to his eligibility for that separation; 

shall be punished as a court-martial may direct." 

b. 	Elements. 

(1) Fraudulent enlistment or appointment. 

(a) That the accused was enlisted or appointed 

in an armed force; 

(b) That the accused knowingly misrepresented 

or deliberately concealed a certain material fact or 

facts regarding qualifications of the accused for enlistment or appointment; 

(c) That the accused's enlistment or appointment was obtained or procured by that knowingly 

false representation or deliberate concealment; and 

(d) That under this enlistment or appointment 

that accused received pay or allowances or both. 

(2) F~nudulent separation. 

(a) That the accused was separated from an 

armed force; 

(b) That the accused knowingly misrepresented 

or deliberately concealed a certain material fact or 

facts about the accused's eligibility for separation; 

and 

(c) That the accused's separation was obtained 

or procured by that knowingly false representation 

or deliberate concealment. 

c. 	Explanation. 

(1) In general. A fraudulent enlistment, appointment, or separation is one procured by either a 

knowingly false representation as to any of the qualifications 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 reIV-8 
ceipt 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. T11e 

receipt of pay or allowances may be proved by circumstantial evidence. 

(3) One offense. One who procures one's own 

enlistment, appointment, or separation by several 

misrepresentations or 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. Maxiinzirn punishment. 

(1) Fraudulent enlisttilent or appointlnent. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 2 years. 

(2) Fraudrrlent separation. Dishonorable discharge, forfeiture of all pay and allowances, and 

confinement for 5 years. 

f. Satnple specifications. 

(1) For fi-a~rcl~rlent enlisttnent or appointlitent. 

In that __ -_ (personal jurisdiction data), did, (atlon board-location), on or 

about - _ 19 .. _ by 

means of (knowingly false representations that (here 

state the fact or facts material to qualification for 

enlistment or appointment which were represented), 

when in fact (here state the true fact of facts)) (deliberate conceal~nent of Lhe fact that (here state tl~e 

fact or facts disqualifying the accused for enlistment 

or appointment which were concealed)), prociire 

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, (atlon 

board-location), receive (pay) (allowances) (pay 

and allowances) under the enlistment) (appointment) 

so procured. 

(2) For fi-aud~ilent separation. 

In that (personal jurisdiction 

data), did, (ation board-location), on or 

about _- 19 t by

means of (knowingly false representations that (here 

state the fact or facts material to eligibility for separation which were represented), when in fact (here 

state tlie true fact or facts)) (deliberate concealment 

of the fact that (here state the fact or facts concealed 

whicli made the accused ineligible for separation)), 

procure Ilin~self/lierself to be separated from the 

(here state tlle arnled force from which the accused 

procured I~isAler separation). 

8. Article 84-Effecting unlawful enlistment, 

appointment, or separation 

a. Text. "Any person subject to this chapter who 

effects an enlistment or appointment in or a separation from the armed forces of any person who is 

known to llin~ to be ineligible for tliat 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 tlie accused effected the enlistment, appointment, or separation of the person named; 

(2) That this person was ineligible for this enlistment, appointment, or separation because it was prohibited by law, regulation, or order; and 

(3) That the accused knew of the ineligibility at 

the time of the enlistment, appointment, or 

separation. 

c. Explanatiotz. It must be proved that the enlistment, appointment, or separation was prohibited by 

law, regulation, or order when effected and that the 

accused then knew that the person enlisted, appointed, or separated was ineligible for the enlistment, appointment, or separation. 

d. Lesser inchided ofeerzse. Article 80-attempts 

e. Maxitit~rrn punis11tilent. Disl~onorable discharge, 

forfeiture of all pay and allowances, and confinement for 5 years. 

f. Sartiple specijkation. 

In that _ (personal jurisdiction data), did, (atlon board-location), on or 

about 19 , effect 

(the (enlistment) (appointment) of _ -

as a in (here state the anned force 

in which the person was enlisted or appointed)) (the 

separation of from (here state the 

armed force from wllicli 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 proliibited by law, regulation, or order). 

9. Article 85-Desertion 
a. 	Text. 

"(a) Any member of the armed forces who- 

(1) without authority goes or remains absent 

from his unit, organization, or place of duty with 

intent to remain away therefrom permanently; 

(2) quits his unit, organization, or place of duty 

with intent to avoid hazardous duty or to shirk important service; or 

(3) without being regularly separated from one 

of the armed forces enlists or accepts an appointment in the same or another one of the armed forces 

without fully disclosing the fact that he has not been 

regularly separated, or enters any foreign armed 

service except when authorized by the United States 

[Note: This provision has been held not to state a 

separate offense by the United States Court of Military Appeals in United States v. Huff,7 U.S.C.M.A. 

247, 22 C.M.R. 37 (1956)l; 

is guilty of desertion. 

(b) Any commissioned officer of the armed 

forces who, after tender of his resignation and hefore 

notice of its acceptance, quits his post or proper 

duties without leave and with intent to remain away 

therefrom permanently is guilty of desertion. 

(c) Any person found guilty of desertion or 

attempt to desert shall be punished, if the offense is 

committed in time of war, by death or such other 

punishment as a court-martial may direct, but if the 

desertion or attempt to desert occurs at any other 

time, by such punishment, other than death, as a 

court-martial may direct." 

b. 	Elements. 

(1) Desertion with intent to remain away 

permanently. 

(a) That the accused absented himself or herself from his or her unit, organization, or place of 

duty; 

(b) That such absence was without authority; 

(c) That the accused, at the time the absence 

began or at some time during the absence, intended 

to remain away from his or her unit, organization, or 

place of duty permanently; and 

(d) That the accused remained absent until the 

date alleged. 

[Note: If the absence was terminated by apprehension, add the following element] 

(e) That the accused's absence was terminated 

by apprehension. 

(2) Desertion wit11 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 per~rianently from his or her post or 

proper duties; and 

(d) That the accused remained absent until the 

date alleged. 

[Note: If the absence was terminated by apprehension, add the following element] 

(e) That the accused's absence was terminated 

by apprehension. 

(4) Attempted desertion. 

(a) That the accused did a certain overt act; 

(b) That the act was done with the specific 

intent to desert; 

(c) That the act amounted to more than mere 

preparation; and 

(d) That the act apparently tended to effect the 

commission of the offense of desertion. 

c. 	Explanation. 

(1) Desertion with intent to remain away permanently. 

(a) In general. Desertion with intent to remain 

away permanently is complete when the person absents himself or herself without authority from his or 

her unit, organization, or place of duty, with the 

intent to remain away therefrom permanently. A 

prompt repentance and return, while material in extenuation, is no defense. It is not necessary that the 

IV-10 
person be absent entirely from military jurisdiction 

and control. 

(b) Absence without authority-inception, duration, termination. See paragraph 10c. 

(c) Intent to remain away permanently. 

(i) The intent to remain away permanently 

from the unit, organization, or place of duty may be 

formed any time during the unauthorized absence. 

The intent need not exist throughout the absence, or 

for any particular period of time, as long as it exists 

at some time during the absence. 

(ii) The accused must have intended to 

remain away permanently from the unit, organization, or place of duty. When the accused had such 

an intent, it is no defense that the accused also 

intended to report for duty elsewhere, or to enlist or 

accept an appointment in the same or a different 

armed force. 

(iii) The intent to remain away permanently 

may be established by circumstantial evidence. 

Among the circumstances from which an inference 

may be drawn that an accused intended to remain 

absent permanently or; that the period of absence 

was lengthy; that the accused attempted to, or did, 

dispose of uniforms or other military property; that 

the accused purchased a ticket for distant point or 

was arrested, apprehended, or surrendered a considerable distance from the accused's station; that the 

accused could have conveniently surrendered to military control but did not; that the accused was dissatisfied with the accused's unit, ship, or with military 

service; that the accused made remarks indicating an 

intention to desert; that the accused was under 

charges or had escaped from confinement at the time 

of the absence; that the accused made preparations 

indicative of an intent not to return (for example, 

financial arrangements); or that the accused enlisted 

or accepted an appointment in the same or another 

armed force without disclosing the fact that the accused had not been regularly 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 

accepts an appointment in the same or another 

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 hazardnus duty or to shirk important sewice. 

(a) Hazardous duty or important service. 

"Hazardous duty" or "important service" may include service such as duty in a combat or other 

dangerous area; embarkation for certain foreign or 

sea duty; movement to a port of embarkation for that 

purpose; entrainment for duty on the border or coast 

in time of war or threatened invasion or other disturbances; strike or riot duty; or employment in aid 

of the civil power in, for example, protecting property, or quelling or preventing disorder in times of 

great public disaster. Such services as drill, target 

practice, maneuvers, and practice marches are not 

ordinarily "hazardous duty or important service." 

Whether a duty is hazardous or a service is important depends upon the circumstances of the particu- 
lar 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 85a(2) requires 

proof that the accused actually knew of the hazardous duty or important service. Actual knowledge 

may be proved by circumstantial evidence. 

(3) Attempting to desert. Once the attempt is 

made, the fact that the person desists, voluntarily or 

otherwise, does not cancel the offense. The offense 

is complete, for example, if the person, intending to 

desert, hides in an empty freight car on a military 

reservation, intending to escape by being taken away 

in the car. Entering the car with the intent to desert 

is the overt act. For a more detailed discussion of 

attempts, see paragraph 4. For an explanation concerning intent to remain away permanently, see subparagraph 9c(l)(c). 

(4) Prisoner with executed punitive discharge. A 

prisoner whose dismissal or dishonorable or badconduct discharge has been executed is not a "member of the armed forces" within the meaning of Articles 85 or 86, although the prisoner may still be 

subject to military law under Article 2(a)(7). If the 

facts warrant, such a prisoner could be charged with 

escape from confinement under Article 95 or an 

offense under Article 134. 

d. Lesser included offense. Article 8babsence 

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 coinpleted or attempted 

desertion. 

(a) Tenninated by apprelzension. Dishonorable 

discharge, forfeiture of all pay and allowances, and 

confinement for 3 years. 

(b) Terminated otherwise. Dishonorable discharge, forfeiture of all pay and allowances, and 

confinement for 2 years. 

(3) In time of war. Death or such other punishment as a court-martial may direct. 

f. Sample spec$cations. 

(1) Desertion with intent to remain away permanently. 

In that- (personal jurisdiction data), did, on or about19- , (a time of war) without authority and with intent to remain away therefrom permanently, absent himselfherself from histher (unit) 

(organization) (place of duty), to 

wit: , located at 

(- ), and did remain so absent in desertion until (helshe was apprehended) on or 

about 19-. 

(2) Desertion with intent to avoid hazardous duty 

or shirk important service. 

In that- -(personal jurisdiction data), did, on or about . . 19 (a time of war) w~th intent to 

(avoid hazardous duty) (shirk important service), 

namely: quit hisker (unit) (organization) (place of duty), to wit:-. .,10-

cated at ), and did remain so 

absent in desertion until on or 

about---- 19 .-. (3) Desertion prior to acceptance of resignation. 

. . . In that (personal jurisdiction data) having tendered hisker resignation and prior to 

due notice of the acceptance of the same, did, on or 

about 19 (a time 

of war) without leave and with intent to remain 

away therefrom permanently, quit hisher (post) 

(proper duties), to wit: and did 

remain so absent in desertion until (helshe was apprehended) on or about. 

19 

(4) Attempted desertion. 

In that (personal jurisdiction data), did (atlon board-location), on or 

about 19 (a time 

of war) attempt to (absent himselfherself from his1 

her (unit) (organization) (place of duty) to 

wit: without authority and with intent to remain away therefrom permanently) (quit 

hislher (unit) (organization) (place of duty), to 

wit: located at ~ 

with intent to (avoid hazardous duty) (shirk important service) namely 

>. 

10. Article 86-Absence without leave 

a. Text. 

"Any member of the armed forces who, without 

authorityIV-12 
(1) fails to go to his appointed place of duty at 

the time prescribed; 

(2) goes from that place; or 

(3) absents himself or remains absent from his 

unit, organization, or place of duty at which he is 

required to be at the time prescribed; shall be punished as a court-martial may direct." 

b. Elements. 

(1) Failure to go to appointed place of duty. 

(a) That a certain authority appointed a certain 

time and place of duty for the accused; 

(b) That the accused knew of that time and 

place; and 

(c) That the accused, without authority, failed 

to go to the appointed place of duty at the time 

prescribed. 

(2) Going from appointed place of duty. 

(a) That a certain authority appointed a certain 

time and place of duty for the accused; 

(b) That the accused knew of that time and 

place; and 

(c) That the accused, without authority, went 

from the appointed place of duty after having reported at such place. 

(3) Absence fiom unit, organization, or place of 

duty. 

(a) That the accused absented himself or herself from his or her unit, organization, or place of 

duty at which he or she was required to be; 

(b) That the absence was without authority 

from anyone competent to give him or her leave; 

and 

(c) That the absence was for a certain period of 

time. 

[Note: if the absence was terminated by apprehension, add the following element] 

(d) That the absence was terminated by 

apprehension. 

(4) Abandoning watch or guard. 

(a) That the accused was a member of a guard, 

watch, or duty; 

(b) That the accused absented himself or herself from his or her guard, watch, or duty section; 

(c) That 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) That the accused knew that the absence 

would occur during a part of a period of maneuvers 

or field exercises; and 

(e) That the accused intended to avoid all or 

part of a period of maneuvers or field exercises. 

c. Explanation. 

(1) In general. This article is designed to cover 

every case not elsewhere provided for in which any 

member of the armed forces is through the member's own fault not at the place where the member is 

required to be at a prescribed time. It is not necessary that the person be absent entirely from military 

jurisdiction 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) Aggravated forms of unauthorized absence. 

There are variations of unauthorized absence under 

Article 86(3) which are more serious because of 

aggravating circumstances such as duration of the 

absence, a special type of duty from which the accused absents himself or herself, and a particular 

IV-13 
specific intent which accompanies the absence. 

These circumstances are not essential elements of a 

violation of Article 86. They simply constitute special matters in aggravation. The following are aggra-- 

vated unauthorized absences: 

(a) Unauthorized absence for more than 3 days 

(duration). 

(b) Unauthorized absence for more than 30 

days (duration). 

(c) Unauthorized absence from a guard, watch, 

or duty (special type of duty). 

(d) Unauthorized absence from guard, watch, 

or duty section with the intent to abandon it (special 

type of duty and specific intent). 

(e) Unauthorized absencc with the intent to 

avoid maneuvers or field exercises (special type of 

duty and specific intent). 

(5) Control by civilian authorities. A member of 

the armed forces turned over to the civilian authorities upon request under Article 14 (see R.C.M. 106) 

is not absent without leave while held by them under 

that delivery. When a member of the anned forces, 

being absent with leave, or absent without leave, is 

held, tried, and acquitted by civilian authorities, the 

member's status as absent with leave, or absent 

without leave, is not thereby changed, regardless 

how long held. The fact that a member of the armed 

forces is convicted by the civilian authorities, or 

adjudicated to be a juvenile offender, or the case is 

"diverted" out of the regular criminal process for a 

probationary period does not excuse any unauthorized absence, because the member's inability 

to return was the result of willful misconduct. If a 

member is released by the civilian authorities without trial, and was on authorized leave at the time of 

arrest or detention, the member may be found guilty 

of unauthorized absence only if it is proved that the 

member actually committed the offense for which 

detained, thus establishing that the absence was the 

result of the member's own misconduct. 

(6) Inability to return. The status of absence 

without leave is not changed by an inability to return 

through sickness, lack of transportation facilities, or 

other disabilities. But the fact that all or part of a 

period of unauthorized absence was in a sense enforced or involuntary is a factor in extenuation and 

should be given due weight when considering the 

initial disposition of the offense. When, however, a 

person on authorized leave, without fault, is unable 

to return at the expiration thereof, that person has 

not committed the offense of absence without leave. 

(7) Determining the unit or organization of an 

accused. A person undergoing transfer between activities is ordinarily considered to be attached to the 

activity to which ordered to report. A person on 

temporary additional duty continues as a member of 

the regularly assigned unit and if the person is absent from the temporary duty assignment, the person 

becomes absent without leave from both units, and 

may be charged with being absent without leave 

from either unit. 

(8) Duration. Unauthorized absence under Article 

86(3) is an instantaneous offense. It is complete at 

the instant an accused absents himself or herself 

without authority. Duration of the absence is a matter in aggravation for the purpose of increasing the 

maximum punishment authorized for the offense. 

Even if the duration of the absence is not over 3 

days, it is ordinarily alleged in an Article 86(3) 

specification. If the duration is not alleged or if 

alleged but not proved, an accused can be convicted 

of and punished for only 1 day of unauthorized 

absence. 

(9) Computation of duration. In computing the 

duration of an unauthorized absence, any one continuous period of absence found that totals not more 

than 24 hours is counted as 1 day; any such period 

that totals more than 24 hours and not more than 48 

hours is counted as 2 days, and so on. The hours of 

departure 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 

maximu~n punishment would be based on an absence of 3 days. 

(10) Termination-metltods of return to ntilitary 

control. 

(a) Surrender to military autlzority. 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 terminate. the unauthorized 

absence. 

IV-14 
(b) Apprehension by rizilitaly arithority. Apprehension by military authority of a known absentee 

terminates an unauthorized absence. 

(c) Delivery to tnilitary autlrority. Delivery of a 

known absentee by anyone to military aulllority terminates tlie unauthorized absence. 

(d) Apprehension by civilian aritlrorities at tlze 

request of the ~dlitary. When an absentee is taken 

into custody by civilian authorities at the request of 

military authorities, the absence is terminated. 

(e) Apprehension by civilian aritlrorities withorit prior tnilitary reqriest. 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 rinder 

one specificition. An accused may properly be 

found guilty of two or more separate unautliorized 

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, 

tlle maximum authorized punishment shall not exceed that authorized if the accused had been found 

guilty as charged in the specification. 

d. Lesser inchrded offense. Article 80-attempts 

e. Maxinrrir~t plmislrment. 

(1) Failing to go to, or going from, tlre appointed 

place of duty. Confinement for I month and forfeiture of two-thirds pay per month for 1 month. 

(2) Absence from unit, organization, or otl~er 

place of drity. 

(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 

all pay and allowances, and confinement for 18 

months. 

(3) Fro111 griard or watch. Confinement for 3 

inonths and forfeiture of two-thirds pay per month 

for 3 months. 

(4) From guard or watch with intent to abandon. 

Bad-conduct discharge, forfeilure of all pay and allowances, and confinement for 6 months. 

(5) With intent to avoid inanerivers or field exercises. Bad-conduct discharge, forfeiture of all pay 

and allowances, and confinement for 6 months. 

f. Sarnple specifications. 

(1) Fuilirrg to go or leaving place of clrity. 

In that (persoual jurisdiction data), did (at1011 board-location), on or 

about __ _ - . 19 __ - . - ,without 

authority, (fail to go at the time prescribed to) (go 

from) 11isAler appointed place of duty, to wit: (here 

set forth the appointed place of duty). 

(2) Absence from rinit, orgmrization, or place of 

d11ty. 

In that (personal jurisdiction data), did, on or about _ ... 

19 , without authority, absent himselfherself from llisker (unit) (organization) (place 

of duty at which helshe was required to be), to 

wit: , located at -- - - , 

and did remain so absent until (helshe was 

apprehended) on or about - --

19 

(3) Absence frorn unit, organization, or place of 

duty tvitlr intent to avoid waneuvers or field exercises. 

In that (personal jurisdiction data), did, on or about 

19 , without autliority and with intent to avoid (maneuvers) (field exercises), absent 

himselflherself from hislher (unit) (organization) 

(place of duty at wliich helshe was required to be), 

to wit: located at 

(-- ), and did remain so absent until 

on or about 19 

(4) Abandoning wutch or gliarcl. 

In that (personal jurisdiction data), being a member of the (guard) 

(watch) (duty section), did, (atton board-location), 

on or about 19 .- . , 

without authority, go fro111 hisher (guard) (watch) 

(duty section) (with intent to abandon the same). 

11. Article 87-Missing movement 
a. Text. 

"Any person subject to this chapter who through 

neglect or design nlisses 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 courtmartial may direct." 

b. Elements. 

(1) That the accused was required in the course 

of duty to move with a ship, aircraft or unit; 

(2) That the accused knew of the prospective 

movement of the ship, aircraft or unit; 

(3) That the accused missed the movement of the 

ship, aircraft or unit; and 

(4) That the accused missed the movement 

through design or neglect. 

c. Explanation. 

(1) Movement. "Movement" as used in Article 87 

includes a move, transfer, or shift of a ship, aircraft, 

or unit involving a substantial distance and period of 

time. Whether a particular movement is substantial 

is a question to be determined by the court-martial 

considering all the circumstances. Changes which do 

not constitute a "movement" include practice 

marches of a short duration with a return to the 

point of departure, and minor changes in location of 

ships, aircraft, or units, as when a ship is shifted 

from one berth to another in the same shipyard or 

harbor or when a unit is moved from one barracks to 

another on the same post. 

(2) Mode of movement. 

(a) Unit. If a person is required in the course of 

duty to move with a unit, the mode of travel is not 

important, whether it be military or commercial, and 

includes travel by ship, train, aircraft, truck, bus, or 

walking. The word "unit" is not limited to any specific technical category such as those listed in a 

table of organization and equipment, but also includes units which are created before the movement 

with the intention that they have organizational continuity upon arrival at their destination regardless of 

their technical designation, and units intended to be 

disbanded upon arrival at their destination. 

(b) Ship, aircraf. If a person is assigned as a 

crew member or is ordered to move as a passenger 

aboard a particular ship or aircraft, military or chartered, then missing the particular sailing or flight is 

essential to establish the offense of missing 

movement. 

(3) Design. "Design" means on purpose, intentionally, or according to plan and requires specific 

intent to miss the movement. 

(4) Neglect. "Neglect" means the omission to 

take such measures as are appropriate under the circumstances to assure presence with a ship, aircraft, 

or unit at the time of a scheduled movement, or 

doing some act without giving attention to its probable consequences in connection with the prospective 

movement, such as a departure from the vicinity of 

the prospective movement to such a distance as 

would make it likely that one could not return in 

time for the movement. 

(5) Actual knowledge. In order to be guilty of the 

offense, the accused must have actually known of 

the prospective movement that was missed. Knowledge of the exact hour or even of the exact date of 

the scheduled movement is not required. It is sufficient if the approximate date was known by the 

accused as long as there is a causal connection between the conduct of the accused and the missing of 

the scheduled movement. Knowledge may be proved 

by circumstantial evidence. 

(6) Proof of absence. That the accused actually 

missed the movement may be proved by documentary evidence, as by a proper entry in a log or a 

morning report. This fact may also be proved by the 

testimony of personnel of the ship, aircraft, or unit 

(or by other evidence) that the movement occurred 

at a certain time, together with evidence that the 

accused was physically elsewhere at that time. 

d. Lesser included ofenses. 

(1) Design. 

(a) Article 87-missing movement through 

neglect 

(b) Article 86-absence without authority 

(c) Article 80-attempts 

(2) Neglect. Article 86-absence without 

authority 

e. Maximum punishment. 

(1) Design. Dishonorable discharge, forfeiture of 

all pay and allowances, and confinement for 2 years. 

(2) Neglect. Bad-conduct discharge, forfeiture of 

all pay and allowances, and confinement for 1 year. 

f. Sample spec@cation. 

In that .-_(personal jurisdiction data), did, (atlon board-location), on or 

about. ------.- 19%._- _ --- --, through 
(neglect) (design) miss the movement of (Aircraft 

No (Flight > (the 

USS (Company A, 1 st Battalion, 

7th Infantry) with which helshe 

was required in the course of duty to move. 

12. Article 88-Contempt toward officials 

a. 	Text. 

"Any commissioned officer who uses contemptuous words against the President, the Vice President, 

Congress, the Secretary of Defense, the Secretary of 

a military department, the Secretary of Transportation, or the Governor or legislature of any State, 

Territory, Commonwealth, or possession in which he 

is on duty or present shall be punished as a courtmartial may direct." 

b. 	Elements. 

(1) That the accused was a commissioned officer 

of the United States armed forces; 

(2) That the accused used certain words against 

an official or legislature named in the article; 

(3) That by an act of the accused these words 

came to the knowledge of a person other than the 

accused; and 

(4) That the words used were contemptuous, either in themselves or by virtue of the circuinstances 

under which they were used. 

[Note: If the words were against a Governor or legislature, add the following element] 

(5) That the accused was then present in the 

State, Territory, Commonwealth, or possession of 

the Governor or legislature concerned. 

c. Explanation. The official or legislature against 

whom the words are used must be occupying one of 

the offices or be one of the legislatures named in 

Article 88 at the time of the offense. Neither 

"Congress" nor "legislature" includes its members 

individually. "Governor" does not include 

"lieutenant governor. " It is immaterial whether the 

words are used against the official in an official or 

private capacity. If not personally contemptuous, adverse criticism of one of the officials or legislatures 

named in the article in the course of a political 

discussion, even though emphatically expressed, 

may not be charged as a violation of the article. 

Similarly, expressions of opinion made in a purely 

private conversation should not ordinarily be 

charged. Giving broad circulation to a written publication containing contemptuous words of the kind 

made punishable by this article, or the utterance of 

contemptuous words of this kind in the presence of 

military subordinates, aggravates the offense. The 

truth or falsity of the statements is immaterial. 

d. 	Lesser included ofSense. Article 80-attempts 

e. Maximum punishment. Dismissal, forfeiture of all 

pay and allowances, and confinement for 1 year. 

f. 	Sample specification. 

In that ~ (personal jurisdiction data), did, (atlon board-location), on or 

about 19-- --, [use 

(orally and publicly) the following contemptuous words] [in a contemptuous manner, use (orally and publicly) ) the 

following words] against the [(President) (Vice President) (Congress) (SecreLiry of-----)] 

[(Governor) (legislature) of the (State 

of (Temtory of ~) 

( ), a (State) (Territory) 

in which helshe, the 

said was then (on duty), (present)], to 

wit: ? or words to that effect. 

13. Article 8SDisrespect toward a superior 

commissioned officer 

a. 	Text. 

"Any person subject to this chapter who behaves 

with disrespect toward his superior commissioned 

officer shall be punished as a court-martial may 

direct." 

b. 	Elements. 

(1) That the accused did or omitted certain acts or 

used certain language to or concerning a certain 

commissioned officer; 

(2) That such behavior or language was directed 

toward that officer; 

(3) That the officer toward whom the acts, omissions, or words were directed was the superior commissioned officer of the accused; 

(4) That the accused then knew that the cornmissioned officer toward whom the acts, omissions, or 

words were directed was the accused's superior 

commissioned officer; and 

(5) That, under the circumstances, the behavior or 

language was disrespectful to tliat coinmissioned 

officer. 

c. 	Elcplanation. 

(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) Accused and victim in different armed 

forces. If the accused and the victim are in different 

armed forces, the victim is a "superior commissioned officer" of the accused when the victim is a 

commissioned officer and superior in the chain of 

command over the accused or when the victim, not a 

medical officer or a chaplain, is senior in grade to 

the accused and both are detained by a hostile entity 

so that recourse to the normal chain of command is 

prevented. The victim is not a "superior commissioned officer" of the accused merely because the 

victim is superior in grade to the accused. 

(c) Execution of ofice. It is not necessary that 

the "superior commissioned officer" be in the execution of office at the time of the disrespectful 

behavior. 

(2) Knowledge. If the accused did not know that 

the person against whom the acts or words were 

directed was the accused's superior commissioned 

officer, the accused may not be convicted of a violation of this article. Knowledge may be proved by 

circumstantial evidence. 

(3) Disrespect. Disrespectful behavior is that 

which detracts from the respect due the authority 

and person of a superior commissioned officer. It 

may consist of acts or language, however expressed, 

and it is immaterial whether they refer to the superior as an officer or as a private individual. Disrespect by words may be conveyed by abusive 

epithets or other contemptuous or denunciatory language. Truth is no defense. Disrespect by acts includes neglecting the customary salute, or showing a 

marked disdain, indifference, insolence, impertinence, undue familiarity, or other rudeness in the 

presence of the superior officer. 

(4) Presence. It is not essential that the disrespectful behavior be in the presence of the superior, 

but ordinarily one should not be held accountable 

under this article for what was said or done in a 

purely private conversation. 

(5) Special defense-unprotected victim. A superior commissioned officer whose conduct in relation 

to the accused under all the circumstances departs 

substantially from the required standards appropriate 

to that officer's rank or position under similar circumstances loses the protection of this article. That 

accused may not be convicted of being disrespectful 

to the officer who has so lost the entitlement to 

respect protected by Article 89. 

d. Lesser included offenses. 

(1) Article 117-provoking speeches or gestures 

(2) Article 80-attempts 

e. Maximum punishment. Bad-conduct discharge, 

forfeiture of all pay and allowances, and confinement for 1 year. 

f. Sample specification. 

In that (personal jurisdiction data), did, (atlon board-location), on or 

about--_. .. 19 behave 

himselflherself with disrespect toward hislher superior commissioned officer, then known by the 

said-- -_ to he hislher superior commissioned officer, by (saying to himlher '6 

-- -.--- - ," or words to that effect) (contemptuously turning from and leaving hider while 

helshe, the said___-- was talking to 

himlher, the said .--..p-p--) 

--- >. 

14. Article 90-Assaulting or willfully 

disobeying superior commissioned officer 

a. Text. "Any person subject to this chapter 

who-

(1) strikes his superior commissioned officer or 

draws or lifts up any weapon or offers any violence 

against him while he is in the execution of his office; or 

(2) willfully disobeys a lawful command of his 

superior commissioned officer; 

shall be punished, if the offense is committed in 

time of war. by death or such other punishment as a 

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 rupenor conzrnissioned 

oficer. 

(a) That the accused struck, drew, or lifted up a 

IV-18 
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 

(d) That the accused willfully disobeyed the 

lawful command. 

c. Explanation. 

(1) Striking or assaulting superior commissioned 

officer. 

(a) Definitions. 

(i) Superior cornnzissioned officer. The definitions in paragraph 13c(l)(a) and(b) apply here and 

in subparagraph c(2). 

(ii) Strikes. "Strikes" means an intentional 

blow, and includes any offensive touching of the 

person of an officer, however slight. 

(iii) Draws or 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 fireaxm, 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 ofice. 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) Authority of issuing oficer. The commissioned officer issuing the order must have authority 

to give such an order. i\uthorization may be based 

on law, regulation, or custom of the service. 

(iii) Relationship to military duty. The order 

must relate to military duty, which includes all activities reasonably necessary to accomplish a military 

mission, or safeguard or promote the morale, discipline, and usefulness of members of a command and 

directly connected with the maintenance of good order in the service. The order may not, without such 

IV-19 
a valid military purpose, interfere with private rights 

or personal affairs. However, the dictates of a person's conscience, religion, or personal philosophy 

cannot justify or excuse the disobedience of an otherwise lawful order. Disobedience of an order which 

has for its sole object the attainment of some private 

end, or which is given for the sole purpose of increasing the penalty for an offense which it is expected the accused may commit, is not punishable 

under this article. 

(iv) Relationship to statutory or constitutional rights. The order must not conflict with the 

statutory or constitutional rights of the person receiving the order. 

(b) Personal nature of the order. The order 

must be directed specifically to the subordinate. Violations of regulations, standing orders or directives, 

or failure to perform previously established duties 

are not punishable under this article, but may violate 

Article 92. 

(c) Form and transmission of tlze order. As 

long as the order is understandable, the form of the 

order is immaterial, as is the method by which it is 

transmitted to the accused. 

(d) Specificity of the order. The order must be 

a specific mandate to do or not to do a specific act. 

An exhortation to "obey the law" or to perform 

one's military duty does not constitute an order 

under this article. 

(e) Knowledge. The accused must have actual 

knowledge of the order and of the fact that the 

person issuing the order was the accused's superior 

commissioned officer. Actual knowledge may be 

proved by circumstantial evidence. 

(f) Nature of the disobedience. "Willful disobedience" is an intentional defiance of authority. Failure to comply with an order through heedlessness, 

remissness, or forgetfulness is not a violation of this 

article but may violate Article 92. 

(g) Time for compliance. When an order requires immediate compliance, an accused's declared 

intent not to obey and the failure to make any move 

to comply constitutes disobedience. If an order does 

not indicate the time within which it is to be complied with, either expressly or by implication, then a 

reasonable delay in compliance does not violate this 

article. If an order requires performance in the future, an accused's present statement of intention to 

disobey the order does not constitute disobedience of 

that order, although carrying out that intention may. 

(3) Civilians and discharged prisoners. A discharged prisoner or other civilian subject to military 

law (see Article 2) and under the command of a 

commissioned officer is subject to the provisions of 

this article. 

d. Lesser included offenses. 

(1) Striking srrperior cornrnissioned ojicer in execution of ofice. 

(a) Article 9O-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 dai~gerous weapon 

(c) Article 128-assault or assault consummated by a battery upon commissioned officer not in 

the execution of office 

(d) Article 8Gatteinpts 

(2) Drawing or lifiing up a weapon or offering 

violence to superior comniissioned oficer in execution of ofice. 

(a) Article 128---assault, assault with dangerous weapon 

(b) Article 128-assault upon a commissioned 

officer not in the execution of office 

(c) Article 80-attempts 

(3) Willfully disobeying lawful order of superior 

commissioned officer. 

(a) Article 92-failure to obey lawful order 

(b) Article 89--disrespect to superior commissioned officer 

(c) Article 80-attempts 

e. Maximum punishment. 

(1) Striking, drawing, or lifting up any weapon or 

offering any violence to superior cornrnissioned oft?- 

cer in the execution of ofice. Dishonorable discharge, forfeiture of all pay and allowances, and 

confinement for 10 years. 

(2) Willfully disobeying a lawful order of superior commissioned oficer. Dishonorable discharge, 

forfeiture of all pay and allowances, and confinement for 5 years. 

(3) In time of war. Death or such other punishment as a court-martial may direct. 

f. Sample specpcations. 

(1) Striking superior commissioned oficer. 

IV-20 
-- 

.. .. In that ~.(personal junsdictlon 

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

jurisdiction data, if required), on or 

about-~ 19 ... ,(a time 

of war) strike hidher superior 

commissioned officer, then known by the 

said-_-, to be hisiher superior commissioned officer, who was then in the execution of his/ 

her office, (in) (on) the with (a) 

(hisher) 

(2) Drawing or lifhng up a weaport against superior commissioned oficer. 

In that (personal jurisdiction 

data), did, (atton board-location) (subject-matter 

jurisdiction data, if required), on or 

about 19 ..., (a time 

of war) (draw) lift up) a weapon, to wit: 

a against hisiher 

superior commissioned officer, then known by the 

said to be histher superior commissioned officer, who was then in the execution of his/ 

her office. 

(3) Offering violence to superior commissioned 

officer. .... In that (personal junsdiction 

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

jurisdiction data, if required), on or 

about . - 19 (a time 

of war) offer violence against ~. , his/ 

her superior commissioned officer, then known by 

the said to be hidher superior 

commissioned officer, who was then in the execution of hisher office, by 

(4) Willful disobedience of superior commissioned ofleer. . . In that (personal jurisdiction 

data), having received a lawful command 

from ~ hislher superior commissioned officer, then known by the 

said to be hisiher superior commissioned officer, to or words to that 

effect, did, (atlon board-location), on or 

about_-- - 19 willfully disobey the same. 

15. Article 91-Insubordinate conduct 

toward warrant officer, noncommissioned 

officer, or petty officer 

a. Text. "Any warrant officer or enlisted member 

who-

(1) strikes or assaults a warrant officer, noncommissioned officer, or petty officer, while that 

officer is in the execution of his office; 

(2) willfully disobeys the lawful order of a warrant officer, noncommissioned officer, or petty officer; or 

(3) treats with contempt or is disrespectful in 

language or deportment toward a warant officer, 

noncommissioned officer, or petty officer while that 

officer is in the execution of his office; shall be 

punished as a court-martial may direct." 

b. Elements. 

(1) Striking or assaulting warrant, noncommissioned, or petty oficer. 

(a) That the accused was a warrant officer or 

enlisted member; 

(b) That the accused struck or assaulted a certain warrant, noncommissioned, or petty officer; 

(c) That the striking or assault was committed 

while the victim was in the execution of office; and 

(d) That the accused then knew that the person 

struck or assaulted was a warrant, noncommissioned, 

or petty officer. 

[Note: If the victim was the superior noncommissioned or petty officer of the accused, add the following elements] 

(e) That the victim was the superior noncommissioned, or petty officer of the accused; and 

(f) That the accused then knew that the person 

struck or assaulted was the accused's superior noncommissioned, or petty officer. 

(2) Disobeying a warrant, noncommissioned, or 

petty 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) That the accused willfully disobeyed the 

order. 

(3) Treating with contempt or being disrespectjbl 

IV-21 
in language or deportment toward a warrant, noncommissioned, or petty officer. 

(a) That the accused was a warrant officer or 

enlisted member; 

(b) That the accused did or omitted certain 

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 

or was disrespectful to said warrant, noncornmissioned, or petty officer. 

[Note: If the victim was the superior noncornmissioned, or petty officer of the accused, add the 

following elements] 

(g) That the victiin was the superior noncommissioned, or petty officer of the accused; and 

(h) That the accused then knew that the person 

toward whom the behavior or language was directed 

was the accused's superior noncommissioned, or 

petty officer. 

c. Explanation. 

(1) In general. Article 91 has the same general 

objects with respect to warrant, noncommissioned, 

and petty officers as Articles 89 and 90 have with 

respect to commissioned officers, namely, to ensure 

obedience to their lawful orders, and to protect them 

from violence, insult, or disrespect. Unlike Articles 

89 and 90, however, this article does not require a 

superior-subordinate relationship as an element of 

any of the offenses denounced. This article does not 

protect an acting noncommissioned officer or acting 

petty officer, nor does it protect military police or 

members of the shore patrol who are not warrant, 

noncommissioned, or petty officers. 

(2) Knowledge. All of the offenses prohibited by 

Article 91 require that the accused have actual 

knowledge that the victim was a warrant, noncommissioned, or petty officer. Actual knowledge may 

be proved by circumstantial evidence. 

(3) Striking or assaulting a warrant, noncommissioned, or petty oficer. For a discussion of "strikes" 

and "in the execution of office," see paragraph 14c. 

For a discussion of "assault," see paragraph 54c. An 

assault by a prisoner who has been discharged from 

the service, or by any other civilian subject to military law, upon a warrant, noncommissioned, or petty 

officer should be charged under Article 128 or 134. 

(4) Disobeying a warrant, noncommissioned, or 

petty oficer. See paragraph 14c(2) for a discussion 

of lawfulness, personal nature, form, transmission, 

and specificity of the ordc!., nature of the disobedience, and time for compliance with the order. 

(5) Treating with contempt or being disrespectjid 

in language or deportment toward a warrant, noncommissioned, or petty oficer. "Toward" requires 

that the behavior and language be within the sight or 

hearing of the warrant. noncommissioned, or petty 

officer concerned. For a discussion of "in the execution of his office," see paragraph 14c. For a discussion of disrespect, see paragraph 13c. 

d. Lesser included offenses. 

(1) Striking or assaulting warrant, noncommissioned, or petty oficer in the execution of ofice. 

(a) Article 128-assault; assault consummated 

by a battery; assault with a dangerous weapon 

(b) Article 128-assault upon warrant, noncommissioned, or petty officer not in the execution 

of office 

(c) Article 80-attempts 

(2) Disobeying a warrant, noncommissioned, or 

petty oficer. 

(a) Article 92-failure to obey a lawful order 

(b) Article 80-attempts 

(3) Treating with contempt or being disrespectful 

in language or deportment toward warrant, noncommissioned, or petty oficer in the execution of ofire. 

(a) Article 1 17-using provoking or reproachful speech 

(b) Article 80-attempts 

e. Maximum punishment. 

(1) Striking or assaulting warrant oficer. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years. 

(2) Striking or assaulting superior noncoinmissioned or petty oficer. Dishonorable discharge, forfeiture of all pay and allowances, and confinement 

for 3 years. 

(3) Striking or assaulting other noncommissioned 

IV-22 
or petty oficer. Dishonorable discharge, forfeiture of 

all pay and allowances, and confinement for 1 year. 

(4) Willfully disobeying the lawful order of a 

warrant oficer. Dishonorable discharge, forfeiture 

of all pay and allowances, arid confinement for 2 

years. 

(5) Willfully disobeying the lawful order of a noncommissioned or petty officer. Bad-conduct discharge, forfeiture of all pay and allowances, and 

confinement for 1 year. 

(6) Contempt or disrespect to warrant officer. 

Bad-conduct discharge, forfeiture of all pay and allowances, and confinement for 9 months. 

(7) Contempt or disrespect to superior noncommissioned or petty oficer. Bad-conduct discharge, 

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

(8) Corzteinpt or disrespect to other noncommissioned or petty oficer. Forfeiture of two-thirds pay 

per month for 3 months, and confinement for 3 

months. 

f. Sample specz~cations. 

(1) Striking or assaulting warrant, noncommissioned, or petty oficer. .... In that .. (personal junsdictIon 

data), did, (atlon board-location) (subject-matter 

jurisdiction data, if required). on or 

about -- 19 (strike) 

(assault) a officer, then known to the said to be a 

(superior) ~ officer who was then in 

the execution of hisher office, by 

himlher (in) (on) (the with 

(a) h his her)^ 

(2) Willful disobedience of warrant, noncommissioned, or petty oficer. 

In that (personal jurisdiction 

data), having received a lawful order 

from a officer, 

then known by the said to be 

a officer, to --p_~-~-, an 

order which it was hisher duty to obey, did (atlon 

board- location), on or about 

19 willfully disobey the same. 

(3) Contempt or disrespect toward warrant, noncommissioned, or petty oficer. 

In that (personal jurisdiction 

data) (atlon board-location), on or 

about 19 [did 

treat with contempt] [was disrespectful in (language) 

(deportment) toward] 

a officer, then known by the 

said to be a (superior) officer, who was then in the 

execution of hisher office, by (saying to hider, 

" ~ ----.," or words to that effect) (spitting at hisher feet) ) 

16. Article 92-Failure to obey order or 

regulation 

a. Text. "Any person subject to this chapter 

who-

(1) violates or fails to obey anv 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 J. duty to obey it; and 

(c) That the accused violated or failed to obey 

the order or regulation. 

(2) Failure to obey other lavful order. 

(a) That a member of the armed forces issued a 

certain lawful order; 

(b) That the accused had knowledge of the 

order; 

(c) That the accused had a duty to obey the 

order; and 

(d) That the accused failed to obey the order. 

(3) Dereliction in the perjomzance of duties. 

(a) That the accused had certain duties; 

(b) That the accused knew or reasonably 

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) General orders or regulations are those orIV-23 
ders or regulations generally applicable to an armed 

force which are properly published by the President 

or the Secretary of Defense, of Transportation, or of 

a military department, and those orders or regulations generally applicable to the command of the 

officer issuing them throughout the command or a 

particular subdivision thereof which are issued by: 

(i) an officer having general court-martial 

jurisdiction; 

(ii) a general or flag officer in command; or 

(iii) a commander superior to (i) or (ii). 

(b) A general order or regulation issued by a 

commander with authority under Article 92(1) retains its character as a general order or regulation 

when another officer takes command, until it expires 

by its own terms or is rescinded by separate action, 

even if it is issued by an officer who is a general or 

flag officer in command and command is assumed 

by another officer who is not a general or flag 

officer. 

(c) A general order or regulation is lawful unless it is contrary to the Constitution, the laws of the 

United States, or lawful superior orders or for some 

other reason is beyond the authority of the official 

issuing it. See the discussion of lawfulness in paragraph 14c(2)(a). 

(d) Knowledge. Knowledge of a general order 

or regulation need not be alleged or proved, as 

knowledge is not an element of this offense and a 

lack of knowledge does not constitute a defense. 

(e) Enforceability. Not all provisions in general 

orders or regulations can be enforced under Article 

92(1). Regulations which only supply general guidelines or advice for conducting military functions 

may not be enforceable under Article 92(1). 

(2) Violation of or failure to obey other lawful 

order. 

(a) Scope. Article 92(2) includes all other lawful orders which may be issued by a member of the 

armed forces, violations of which are not chargeable 

under Article 90, 91, or 92(1). It includes the violation of written regulations which are not general 

regulations. See also subparagraph (l)(e) above as 

applicable. 

(b)Knowledge. In order to be guilty of this 

offense, a person must have had actual knowledge of 

the order or regulation. Knowledge of the order may 

be proved by circumstantial evidence. 

(c) Duty to obey order. 

(i) From a superior. A member of one 

armed force who is senior in rank to a member of 

another armed force is the superior of that member 

with authority to issue orders which that member 

has a duty to obey under the same circumstances as 

a commissioned officer of one armed force is the 

superior commissioned officer of a member of another armed force for the purposes of Articles 89 

and 90. See paragraph 13c(l). 

(ii) From one not a superior. Failure to obey 

the lawful order of one not a superior is an offense 

under Article 92(2), provided the accused had a duty 

to obey the order, such as one issued by a sentinel 

or a member of the armed forces police. See paragraph 15b(2) if the order was issued by a warrant, 

noncommissioned, or petty officer in the execution 

of office. 

(3) Dereliction in tlie peformance of duties. 

(a) Duty. A duty may be imposed by treaty, 

statute, regulation, lawful order, standard operating 

procedure, or custom of the service. 

(b) Knowledge. Actual knowledge of duties 

may be proved by c3curnstantial 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 inefficient manner. "Willfully" means intentionally. It 

refers to the doing of an act knowingly and purposely, specifically intending the natural and probable 

consequences of the act. "Negligently" ineans 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 punIV-24 
ished. 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 offen.re. 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 otlzer lawfiil order. Bad-conduct discharge, forfeiture of all pay and 

allowances, and confinement for 6 months. 

[Note: For (1) and (2), above, the punishment set 

forth does not apply in the following cases: if in the 

absence of the order or regulation which was violated or not obeyed the accused would on the same 

facts be subject to conviction for another specific 

offense for which a lesser punishment is prescribed; 

or if the violation or failure to obey is a breach of 

restraint imposed as a result of an order. In these 

instances, the maximum punishment is that specifically prescribed elsewhere for that particular 

offense.] 

(3) Dereliction in the peg5onnance of duties. 

(A) Througlz neglect or culpable ilzeficiency. 

Forfeiture of two-thirds pay per month for 3 months 

and confinement for 3 months. 

(R) Willful. Bad-conduct discharge, forfeiture 

of all pay and allowances, and confinement for 6 

months. 

f. Sample specijications. 

(1) Violation or failrtre to obey lawful general 

order or regulation. 

In that - . (personal jurisdiction 

data), did, (atlon board-location) (subject-matter 

jurisdiction data, if required), on or 

about 19 (violate) (fail to obey) a lawful general (order) (regulation), to wit: baragrapk , (Army) 

(Air Force) Regulation 

dated-. 

cle 

dated 

eral Order No 

dated 

19 

U.S. 

19 

Navy 

19 

(ArtiRegulations, 

) (GenU.S. Navy, 

( 

(wrongfully) 

) 

. 

, b Y 

(2) Violation or failure to obey other lawful wntten order. 

In that _- (personal jurisdiction 

data), having knowledge of a lawful order issued 

by to wit: (paragraph ~~ the

Combat Group Regulation No. ... $ 

russ 

tion .--p--...-.-.----
 ), dated 1

(._--~ . -. ), an order which it was hisher

duty to obey, did, (atlon board-location) (subjectmatter jurisdiction data, if required), on or 

about . 19 , fail to 

obey the same by (wri.;igfully) 

(3) Failure to obey otlzer lawful order. . . . . In that . (personal juns&ction 

data) having knowledge of a lawful order issued 

by (to submit to certain medical 

treatment) (to (not 

to $ . .), an order 

which it was hislher duty to obey, did (atlon 

board-location) (subject-matter jurisdiction data, if 

required), on or about 

19 fail to obey the same (by 

(wrongfully) -.) 

(4) Dereliction in the peg5ormance of duties. . .. In that (personal jur~sdiction 

data), who (knew) (should have known) of hisher 

duties (adon board-location) (subject-matter jurisdiction data, if required), (on or 

about _ 19_.. (from 

about 19 to 

about-- 19.~ .-_~--),was 

derelict in the performance of those duties in that he1 

she (negligently) (willfully) (by culpable inefficiency) failed as it was hisher duty to 

do. 

17. Article 93-Cruelty and maltreatment 

a. Text. 

"Any person subject to this chapter who is guilty 

of cruelty toward, or oppression or maltreatment of, 

any person subject to his orders shall be punished as 

a court-martial may direct." 

b. Elements. 

(1) That a certain person was subject to the orders of the accused; and 

(2) That the accused was cruel toward, or oppressed, or maltreated that person. 

c. Explanation. 

IV-25 
(1) Nature of victim. "Any person subject to his 

orders" means not only those persons under the direct or immediate command of the accused but extends to all persons, subject to the code or not, who 

by reason of some duty are required to obey the 

lawful orders of the accused, regardless whether the 

accused is in the direct chain of command over the 

person. 

(2) Nature of act. The cruelty, oppression, or 

maltreatment, although not necessarily physical, 

must be measured by an objective standard. Assault, 

improper punishment, and sexual harassment may 

constitute this offense. Sexual harassment includes 

influencing, offering to influence, or threatening the 

career, pay, or job of another person in exchange for 

sexual favors, and deliberate or repeated offensive 

comments or gestures of a sexual nature. The imposition of necessary or proper duties and the exaction 

of their performance does not constitute this offense 

even though the duties are arduous or hazardous or 

both. 

d. Lesser included offense. Article 80-attempts 

e. Maximurn punishment. Dishonorable discharge, 

forfeiture of all pay and allowances, and confinement for 1 year. 

f. 	Sample specification. 

In that (personal jurisdiction 

data), (atlon board-location) (subject-matter jurisdiction data, if required), on or 

about- 19--, (was 

cruel toward) (did (oppress) (maltreat)) a person subject to hisher 

orders, by (kicking himlher in the stomach) (confining himlher for twenty-four hours without water) 

(- --.). 

18. Article 94--Mutiny and sedition 

a. 	Text. 

"Any person subject to this chapter who- 

(1) with intent to usurp or ovemde 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 person who is found guilty of attempted 

mutiny, mutiny, sedition, or failure to sunpres, 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 perfonn 

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 

utmost to prevent and suppress the mutiny or 

sedition. 

(5) Failure to report a mutiny or sedition. 

(a) That an offense of mutiny or sedition 

occurred; 

(b) That the accused knew or had reason to 

believe that the offense was taking place; and 

IV-26 
(c) That the accused failed to take all reasonable means to inform the accused's superior commissioned officer or commander of the offense. 

(6) Attempted mutiny. 

(a) That the accused committed a certain overt 

act; 

(b) That the act was done with specific intent 

to commit the offense of mutiny; 

(c) That the act amounted to more than mere 

preparation; and 

(d) That the act apparently tended to effect the 

commission of the offense of mutiny. 

c. Explanation. 

(1) Mutiny. Article 94(a)(l) defines two types of 

mutiny, both requiring an intent to usurp or ovemde 

military authority. 

(a) Mutiny by creating violence or disturbance. 

Mutiny by creating violence or disturbance may be 

committed by one person acting alone or by more 

than one acting together. 

(b) Mutiny by refirsing to obey orders or perform duties. Mutiny by refusing to obey orders or 

perform duties requires collective insubordination 

and necessarily includes some combination of two or 

more persons in resisting lawful military authority. 

This concert of insubordination need not be preconceived, nor is it necessary that the insubordination 

be active or violent. It may consist simply of a 

persistent and concerted refusal or omission to obey 

orders, or to do duty, with an insubordinate intent, 

that is, with an intent to usurp or ovemde lawful 

military authority. The intent may be declared in 

words or inferred from acts, omissions, or surrounding circumstances. 

(2) Sedition. Sedition requires a concert of action 

in resistance to civil authority. This differs from 

mutiny by creating violence or disturbance. See subparagraph c(l)(a) above. 

(3) Failure to prevent and suppress a mutiny or 

sedition. "Utmost" means taking those measures to 

prevent and suppress a mutiny or sedition which 

may properly be called for by the circumstances, 

including the rank, responsibilities, or employment 

of the person concerned. "Utmost" includes the use 

of such force, including deadly force, as may be 

reasonably necessary under the circumstances to prevent and suppress a mutiny or sedition. 

(4) Failure to report a mutiny or sedition. Failure 

to "take all reasonable means to inform" includes 

failure to take the most expeditious means available. 

When the circumstances known to the accused 

would have caused a reasonable person in similar 

circumstances to believe that a mutiny or sedition 

was occurring, this may establish that the accused 

had such "reason to believe" that mutiny or sedition 

was occurring. Failure to report an impending mutiny or sedition is not an offense in violation of 

Article 94. But see paragraph 16c(3) (dereliction of 

duty). 

(5) Attempted mutiny. For a discussion of attempts, see paragraph 4. 

d. Lesser included offenses. 

(1) Mutiny by creating violence or disturbance. 

(a) Article 90-assault on commissioned 

officer 

(b) Article 91-assault on warrant, noncommissioned, or petty officer 

(c) Article 94--attempted mutiny 

(d) Article 116-riot; breach of peace 

(e) Article 128-assault 

(f) Article 134--disorderly conduct 

(2) Mutiny by refusing to obey orders or perform 

duties. 

(a) Article 90-willful disobedience of commissioned officer 

(b) Article 91-willful disobedience of warrant, noncommissioned, or petty officer 

(c) Article 92-failure to obey lawful order 

(d) Article 94--attempted mutiny 

(3) Sedition. 

(a) Article 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 junsdlctIon 

data), with intent to (usurp) (override) (usurp and 

override) lawful military authority, did, (atlon 

board-location) (subject-matter jurisdiction data, if 

required), on or about 

19-~ . , create (violence) (a disturbIV-27 
ance) by (attacking the officers of the said ship) 

(barricading himselfherself in Barracks T7, firing 

hisher rifle at.- .-.. , and exhorting other 

persons to join himlher in defiance 

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, (atton 

board- location) on or about 

19 refuse, in concert 

with (and 

(others whose names are unknown), to (obey the 

orders of to ~ 

(perform histher duty as ~ ).

(3) Sedition. 

In that (personal jurisdiction 

data), with intent to cause the (overthrow) (destruction) (overthrow and destruction) of lawful civil authority, to wit: -...., did, (atton boardlocation) (subject-matter jurisdiction data, if required), on or about 

19 in concert with 

( __- ._ and ) (others 

whose names are unknown), create (revolt) (violence) (a disturbance) against such authority by 

(entering the Town Hall of and 

destroying property and records therein) (marching 

upon and compelling the surrender of the police 

of ~_) ~ _ ).

(4) Failure to prevent and szppress a mutiny or 

sedition. . . 	 . . In that (personal junsdlctlon 

data), did, (atton board-location) (subject-matter 

jurisdiction data, if required), on or 

about 19 fail to 

do hisher utmost to prevent and suppress a (mutiny) 

(sedition) among the (soldiers) (sailors) (airmen) 

(marines) of 

which (mutiny) (sedition) was being committed in 

hisher presence, in that (helshe took no means to 

compel the dispersal of the assembly) (helshe made 

no effort to assist who was attempting to quell the mutiny) ). 

(5) Failure to report a mutiny or sedition. . , 	 . . In that (personal junsdlction 

data), did, (atton board-location) (subject-matter 

jurisdiction data, if required), on or 

about 19 fail to 

IV-28 

take all reasonable means to infornl hisher superior 

commissioned officer or hisher commander of a 

(mutiny) (sedition) among the (soldiers) (sailors) 

(airmen) (marines) ~ 

of-_ .., which (mutiny) (sedition) he/ 

she, the said (knew) (had reason to 

believe) was taking place. 

(6) Attempted mutiny. 

In that (personal jurisdiction 

data), with intent to (usurp) (override) (usurp and 

override) lawful military authority, did, (atton 

board- location) (subject-matter jurisdiction data, if 

required), on or about 

19 ~ , attempt to (create (violence) (a 

disturbance) by 	 1 

.-3. 


19. Article 95-Resistance, flight, breach of 

arrest, and escape 

a. 	Text. 

"Any person subject to this chapter wlio- 

(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 :Ipprehend 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) That the accused fled from the 

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 herself 

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 herself 

from confinement before being released by proper 

authority. 

[Note: If the escape was post-trial confinement, add 

the following element] ' 

(d) That the confinement was tlie 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) 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 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) Authority to order arrest. See 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 immaterial. For example, innocence of the offense with 

respect to which an arrest may have been imposed is 

not a defense. 

(e) Illegal arrest. A person may not be convicted of breaking arrest if the arrest is illegal. An 

arrest ordered by one authorized to do so is presumed to be legal in the absence of some evidence 

to the contrary. Ordinarily, the legality of an arrest is 

a question of law to be decided by the military 

judge. 

(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 

(l)(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 appreIV-29 
hend 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 paragraph 5b, Part V, MCM. For purposes of the 

element of post-trial confinement (subparagraph 

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 

without force or artifice, and either with or without 

the consent of the custodian. However, where a prisoner is released by one with apparent authority to do 

so, the prisoner may not be convicted of escape 

from confinement. See also paragraph 20c(l)(b). 

Any completed casting off of the restraint of confinement, before release by proper authority, is an 

escape, and lack of effectiveness of the restraint 

imposed is immaterial. An escape is not complete 

until the prisoner is momentarily free from the restraint. If the movement toward escape is opposed, 

or before it is completed, an immediate pursuit follows, there is no escape until opposition is overcome 

or pursuit is eluded. 

(d) Status when temporarily outside confnement facility. A prisoner who is temporarily escorted 

outside a confinement facility for a work detail or 

other reason by a guard, who has both the duty and 

means to prevent that prisoner from escaping, 

remains in confinement. 

(e) Legality of confinement. A person may not 

be convicted of escape from confinement if the confinement is illegal. Confinement ordered by one authorized to do so is presumed to be lawful in the 

absence of evidence to the contrary. Ordinarily, the 

legality of confinement is a question of law to be 

decided by the military judge. 

d. Lesser included offenses. 

(1) Resisting apprehension. Article 128-assault; 

assault consummated by a battery 

(2) Breaking arrest. 

(a) Article 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) Resisting apprehension. Bad-conduct discharge, 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 

jurisdiction data, if required), on or 

about - 19- , resist 

being apprehended 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 

jurisdiction data, if required), on or 

about 19 flee apprehension by (an armed force policeman) ), a person authorized to 

apprehend the accused. 

(3) Breaking arrest. .... In that----. (personal junsdlctlon 

data), having been placed in arrest (in quarters) (in 

histher company area) by a person authorized to order the accused into arrest, did, 

(atlon board-location) on or 
about 19 break 

said arrest. 

(4) Escape from custody. 

In that . . . a(personal junsdlction 

data), did, (adon board-location) (subject-matter 

jurisdiction data, if required), on or 

about 19 escape 

from the custody of. a person authorized to apprehend the accused. 

(5) Escape from confinement. . . . a

In that ~ (personal junsdictlon 

data), having been placed in (post-trial) confinement 

in (place of confinement), by a person authorized to 

order said accused into confinement did, (adon 

board-location) (subject-matter jurisdiction data, if 

required), on or about 

19 escape from confinement. 

20. Article 96-Releasing prisoner without 

proper authority 

a. Text. 

"Any person subject to this chapter who, without 

proper authority, releases any prisoner committed to 

his charge, or wlio 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." 

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 

lowest authority competent to order release of 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 confined, the prisoner has been "committed" in the 

sense of Article 96, and only a competent authority 

(see subparagraph (c)) may order release, regardless 

of failure to follow procedures prescribed by the 

code, this Manual, or other law. 

(2) Suffering a prisoner to escape through 

neglect. 

(a) Suffer. Aeans to allow or permit; 

not to forbid or hinder. 

(b) Neglect. "Neglect" is a relative term. It is 

the absence of conduct which would have been 

taken by a reasonably careful person in the same or 

similar circumstances. 

(c) Escape. Escape is defined in paragraph 

19c(4)(c). 

(d) Status of prisoner afer escape not a defense. After escape, the fact that a prisoner returns, 

is captured, killed, or otherwise dies is not a 

defense. 

(3) Sufferinn n prisoner to escape through design. 

An escape is suffered through design when it is 

intended. Such intent may be inferred from conduct 

so wantonly devoid of care that the only reasonable 

inference which may be drawn is that the escape 

was contemplated as a probable result. 

d. Lesser included offenses. 
(1) Releasing a prisoner without proper authority. Article 80-attempts 

(2) Suffering a prisoner to escape through neglect. None 

(3) Suffering a prisoner to escape through design. 

(a) Article 96-suffering a prisoner to escape 

through neglect 

(b) Article 80-attempts 

e. Maximum punishment. 

(1) Releasing a prisoner without proper authority. Dishonorable discharge, forfeiture of all pay and 

allowances, and confinement for 2 years. 

(2) Suffering a prisoner to escape through neglect. Bad-conduct discharge, forfeiture of all pay and 

allowances, and confinement for 1 year. 

(3) Suffering a prisoner to escape through design. 

Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 2 years. 

f. 	Sample specifications. 

(1) Releasing a prisoner without proper authority. 


In that . (personal jurisdiction 

data), did, (atlon board-location), on or 

about 19 without 

proper authority, release a prisoner committed to hisiher charge. 

(2) Suffering a prisoner to escape through neglect 

or design. 

In that- - (personal jurisdiction 

data), did, (atlon board-location), on or 

about 19 through 

(neglect) (design), suffer a prisoner committed to hisher charge, to escape. 

21. Article 97-Unlawful detention 

a. 	Text. 

"Any person subject to this chapter who, except 

as provided by law, apprehends, arrests, or confines 

any person shall be punished as a court-martial may 

direct." 

b. 	Elements. 

(1) That the accused apprehended, arrested, or 

confined a certain person; and 

(2) That the accused unlawfully exercised the accused's authority to do so. 

c. 	Explanation. 

(1) Scope. This article prohibits improper acts by 

those empowered by the code to arrest, apprehend, 

or confine. See Articles 7 and 9; R.C.M.302, 304, 

305, and 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 rnovement by one not acting under such a delegation of 

authority under the code. 

(2) No force required. The apprehension, arrest, 

or confinement must be against the will of the person restrained, but force is not required. 

(3) Defense. A reasonable belief held by the person imposing restraint that it is lawful is a defense. 

d. 	Lesser included offense. Article 80-attempts 

e. Maximum punishment. Dishonorable discharge, 

forfeiture of all pay and allowances, and confinement for 3 years. 

f. Sample specification. In 

that- (personal jurisdiction data), 

did, (ation board-location), on or 

about 19 unlawfully (apprehend-___.- ) 

(place in arrest) (confine in-- ~--.). 

22. Article 98-Noncompliance with 

procedural rules 

a. 	Text. 

"Any person subject to this chapter who- 

(1) is responsible for unnecessary delay in the 

disposition of any case of a person accused of an 

offense under this chapter; or 

(2) Knowingly and intentionally fails to enforce 

or comply with any provision of this chapter regulating the proceedings before, during, or after trial of 

an accused; shall be punished as a court-martial may 

direct." 

b. 	Elements. 

(1) Unnecessary delay in disposing of case. 

(a) That the accused was charged with a certain 

duty in connection with the disposition of a case of 

a person accused of an offense under the code; 

(b) That the accused knew that the accused was 

charged with this duty; 

(c) That delay occurred in the disposition of 

the case; 

(d) That the accused was responsible for the 

delay; and 

IV-32 
(e) That, under the circumstances, the delay 

was unnecessary. 

(2) Knowingly and intentionally failing to enforce 

or cornply with provisions of the code. 

(a) That the accused failed to enforce or comply with a certain provision of the code regulating a 

proceeding before, during, or after a trial; 

(b) That the accused had the duty of enforcing 

or complying with that provision of the code; 

(c) That the accused knew that the accused was 

charged with this duty; and 

(d) That the accused's failure to enforce or 

comply with that provision was intentional. 

c. Explanation. 

(1) Unnecessary delay in disposing of case. The 

purpose of section (1) of Article 98 is to ensure 

expeditious disposition of cases of persons accused 

of offenses under the code. A person may be responsible for delay in the disposition of a case only when 

that person's duties require action with respect to the 

disposition of that case. 

(2) Knowingly and irltentionally failing to enforce 

or conlply 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 includetl offense. Article 80-attempts 

e. Maxirnlirn plinishment. 

(1) Unnecessary delay in disposing of case. Badconduct discharge, forfeiture of all pay and allowances, and confinement for 6 months. 

(2) Kno,virtgly and intentionally failing to enforce 

or coinply wit11 provisions of the code. Dishonorable 

discharge, forfeiture of all pay and allowances, and 

confinement for 5 years. 

f. Sarnple 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, (atJon board-location), on 

or about ............ 19 ... ... , responsible for unnecessary delay in (investigating 

said charges) (determining the proper disposition of 

said charges ......... .), in that helshe 

(did ........... ) (failed to ) 

(.-.. .--.... .). 

(2) Knowingly and intentionally failing to enforce 

or cornply wit1l provisions of the code. 

In that. ...... _.... (personal jurisdiction 

data), being charged with the duty 

of -_- _-..,did, (atJon board-location), on 

or about 19 

knowingly and intentionally fail to (enforce) (comply with) Article ....._-_,Uniform Code of . . Military Just~ce, ~n that helshe .

23. Article 99--Misbehavior before the 

enemy 

a. Text. 

"Any member of the anned forces who before or 

in the presence of the enemy- 

(1) runs away; 

(2) sliamefully 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 praclicable 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 punisl~nlent as a 

court-martial may direct." 

b. Elements. 

(1) Running away. 

(a) That the accused was before or in the presence of the enemy; 
(b) That the accused misbehaved by running 

away; and 

(c) That the accused intended to avoid actual or 

impending combat with the enemy by running away. 

(2) Shamefully abandoning, surrendering, or 

delivering up command. 

(a) That the accused was charged by orders or 

circumstances with the duty to defend a certain command, unit, place, ship, or military property; 

(b) That, without justification, the accused 

shamefully abandoned, surrendered, or delivered up 

that command, unit, place, ship, or military property; 

and 

(c) That this act occurred while the accused 

was before or in the presence of the enemy. 

(3) Endangering safety of a command, unit, 

place, ship, or military property. 

(a) That it was the duty of the accused to defend a certain command, unit, place, ship, or certain 

military property; 

(b) That the accused committed certain disobedience, neglect, or intentional misconduct; 

(c) That the accused thereby endangered the 

safety of the command, unit, place, ship, or military 

property; and 

(d) That this act occurred while the accused 

was before or in the presence of the enemy. 

(4) Casting away arms or ammunition. 

(a) That the accused was before or in the presence of the enemy; and 

(b) That the accused cast away certain arms or 

ammunition. 

(5) Cowardly conduct. 

(a) That the accused committed an act of 

cowardice; 

(b) That this conduct occurred while the accused was before or in the presence of the enemy; 

and 

(c) That this conduct was the result of fear. 

(6) Quitting place of duty to plunder or pillage. 

(a) That the accused was before or in the presence of the enemy; 

(b) That the accused quit the accused's place of 

duty; and 

(c) That the accused's intention in quitting was 

to plunder or pillage public or private property. 

. IV-34 

(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 

as well as members of military organizations. 

"Enemy" is not restricted to the enemy government 

or its armed forces. All the citizens of one belligerent are enemies of the government and all the citizens of the other. 
(c) Before the enerity. Whether a person is 

"before the enemy" is a question of tactical relation, 

not distance. For example, a member of an antiaircraft gun crew charged with opposing anticipated 

attack from the air, or a member of a unit about to 

move into combat may be before the enemy although miles from the enemy lines. On the other 

hand, an organization some distance from the front 

or immediate area of combat which is not a part of a 

tactical operation then going on or in immediate 

prospect is not "before or in the presence of the 

enemy" within the meaning of this article. 

(2) Sllarnefiilly abandoning, surrendering, or 

delivering tip of cornritand 

(a) Scope. This provision concerns primarily 

commanders chargeable with responsibility for 

defending a command, unit, place, ship or military 

property. Abandonment by a subordinate would ordinarily be charged as running away. 

(b) Sl~arnefril.Surrender or abandonment without justification is shameful within the meaning of 

this article. 

(c) Slirrender; deliver rip. "Surrender" and 

"deliver up" are synonymous for the purposes of this 

article. 

(d) Jlistification. 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) Endangering safety of a command, unit, 

place, ship, or rnilitary property. 

(a) Neglect. "Neglect" is the absence of conduct which would have been taken by a reasonably 

careful person in the same or similar circumstances. 

(b) Intentional rriiscondrrct. "Intentional misconduct" does not include a mere error in judgment. 

(4) Casting away arrns or arnrn~rnition. Self-explanatory. 

(5) Cowardly conduct. 

(a) Cowardice. "Cowardice" is misbehavior 

motivated by fear. 

(b) Fear. Fear is a natural feeling of apprehension when going into battle. The mere display of 

apprel~ension 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 dirty to plunder or pillage. 

(a) Place of drrty. "Place of duty" includes any 

place of duty, whether permanent or temporary, 

fixed or mobile. 

(b) Plunder or pillage. "Plunder or pillage" 

means to seize or appropriate public or private property unlawfully. 

(c) Natiire 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) Calisittg false alarrns. This provision covers 

spreading of false or disturbing rumors or reports, as 

well as the false giving of established alarm signals. 

(8) Willfirlly failing to do uttnost to encounter enerny. 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 irzcllided offenses. 

(1) Rirnning away. 

(a) Article 854esertion with intent to avoid 

hazardous or important service 

(b) Article Sbabsence without authority; going from appointed place of duty 

(c) Article 8Gattempts 

(2) Sliarnefrrlly abandoning, surrendering, or 

delivering lip cornritand. Article 80-attempts 

(3) Endangering safety of a corizriland, iinit, 

place, ship, or rnilitary property. 

(a) Tlirough disobedience of order. Article 

92-failure to obey lawful order 

(b) Article 80-attempts 

(4) Casting away arrns or arnntwlition. 

(a) Article 108-military property of the 

United States-loss, damage, destruction, or wrongful disposition. 
(b) Article 8Gattempts 

(5) Cowardly conduct. 

(a) Article 854esertion with intent to avoid 

hazardous duty or important service 

(b) Article 86-absence without authority 

(c) Article 99-running away 

(d) Article 80-attempts 

(6) Quitting place of duty to plunder or pillage. 

(a) Article 86(2)-going from appointed place 

of duty 

(b) Article 80-attempts 

(7) Causing false alarms. Article 8Gattempts 

(8) Willfilly 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 junsdlctIon 

data), did, (atlon board-location), on or 

about 19 

(before) (in the presence of) the enemy, run away 

(from hislher company) (and hide) 

(and did not return until after 

the engagement had been concluded) 

-.-). 

(2) Shamefully abandoning, surrendering, or 

delivering up command. 

In that ~ (personal jurisdiction 

data), did, (atlon board-location), on or 

about 19 

(before) (in the presence of) the enemy, shamefully 

(abandon) (surrender) (deliver up) 

which it was hisker duty to defend. 

(3) Endangering safety of a command, unit, 

place, ship, or military property. .... In that ~ (personal junsdlctlon 

data), did, (atlon board-location), on or 

about 19 

(before) (in the presence of) the enemy, endanger 

the safety of- , which it was hisher 

duty to defend, by (disobeying an order 

from .............. . to engage the enemy)(neglecting hisher duty as a sentinel by engaging in a card 

game while on hisher post) (intentional misconduct 

in that helshe became drunk and fued flares, thus 

revealing the location of hislher unit) 

- .---) . 

(4) Casting away arms or ammunition. 

In that.-- (personal jurisdiction 

data), did, (atlon board-location), on or 

about 19 

(before) (in the presence of) the enemy, cast away 

hisker (rifle) (ammunition) ). 

(5) Cowardly conduct. 

In that-- (personal jurisdiction 

data), (atlon board-location), on or 

about 19 

(before) (in the presence of) the enemy, was guilty 

of cowardly conduct as a result of fear, in 

that --.-. 

(6) Quitting place of duty to plunder or pillage. .... In that (personal junsdlctlon 

data), did, (atlon board- location), on or 

about 19 

(before) (in the presence of) the enemy, quit hislher 

place of duty for the purpose of (plundering) (pillaging) (plundering and pillaging). 

(7) Causing false alarms. .... In that (personal juns&ction 

data), did, (atlon board-location), on or 

about 19 

(before) (in the presence of) the enemy, cause a 

false alarm in ( F o r t ) (the said ship) 

(the camp)( by (needlessly and 

without authority (causing the call to arms to be 

sounded) (sounding the general alarm)) 

(-.-- ...... -- ..). 

(8) Willfilly failing to do utmost to erzcounter enemy. .... In that (personal junsdlctIon 

data), being (before) (in the presence of) the enemy, 

did, (atlon board-location), on or 

about 19 by, (ordering hisher troops to halt their advance) 

_), willfully fail to do hisher utmost to (encounter) (engage) (capture) (destroy), as 

it was hisher duty to do, (certain enemy troops 

which were in retreat) ..... _.). 

(9) Failing to afford relief and assistance. .... In that (personal jur~sd~ctlon 

data), did, (atlon board-location), on or 

about 19.. _-

(before) (in the presence of) the enemy, fail to afford all practicable relief and assistance to (the 

IV-36 
USS-_-, which was engaged in battle 

and had run aground, in that helshe failed to take her 

in tow) (certain troops of the ground forces 

of__-_, which were engaged in battle 

and were pinned down by enemy fire, in that helshe 

failed to furnish air cover) ( -.-) as he1 

she properly should have done. 

24. Article 100-Subordinate compelling 

surrender 

a. Text. 

"Any person subject to this chapter who compels 

or attempts to compel the commander of any place, 

vessel, aircraft, or other military property, or of any 

body of members of the armed forces, to give it up 

to an enemy or to abandon it, or who strikes the 

colors or flag to an enemy without proper authority, 

shall be punished by death or such other punishment 

as a court-martial may direct." 

b. Elements. 

(1) Compelling surrender. 

(a) That a certain person was in command of a 

certain place, vessel, aircraft, or other military property or of a body of members of the armed forces; 

(b) That the accused did an overt act which 

was intended to and did compel that commander to 

give it up to the enemy or abandon it; ahd 

(c) That the place, vessel, aircraft, or other military property or body of members of the armed 

forces was actually given up to the enemy or 

abandoned. 

(2) Attempting to compel surrender. 

(a) That a certain person was in command of a 

certain place, vessel, aircraft, or other military property or of a body of members of the armed forces; 

(b) That the accused did a certain overt act; 

(c) That the act was done with the intent to 

compel that commander to give up to the enemy or 

abandon the place, vessel, aircraft, or other military 

property or body of members of the armed forces; 

(d) That the act amounted to more than mere 

preparation; and 

(e) That the act apparently tended to bring 

about the compelling of surrender or abandonment. 

(3) Striking the colors or flag. 

(a) That there was an offer of surrender to an 

enemy; 

(b) That this offer was made by striking the 

colors or flag to the enemy or in some other manner; 

(c) That the accused made or was responsible 

for the offer; and 

(d) 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 parIV-37 
agraph 23c(l)(b). 

d. Lesser included offense. Striking the colors or 

flag. Article 80- attempts 

e. Maximum punishment. All offenses under Article 

100. Death or such other punishment as a courtmartial may direct. 

f. Sample spec$cations. 

(1) Compelling surrender or attempting to compel surrender. 

In that (personal jurisdiction 

data), did, (atlon-board location), on or 

about 19- , (attempt 

to) compel the commander 

of -, (to give up to the enemy) (to 

abandon) said---, 

by 

(2) Striking the colors or flag. 

In that (personal jurisdiction 

data), did, (atlon board-location), on or 

about 19---- , without 

proper authority, offer to surrender to the enemy by 

(striking the (colors)(flag)) ). 

25. Article 101-Improper use of countersign 

a. Text. 

"Any person subject to this chapter who in time 

of war discloses the parole or countersign to any 

person not entitled to receive it or who gives to 

another who is entitled to receive and use the parole 

or countersign a different parole or countersign from 

that which, to his knowledge, he was authorized and 

required to give, shall be punished by death or such 

other punishment as a court-martial may direct." 

b. Elements. 

(1) Disclosing the parole or countersign to one 

not entitled to receive it. 

(a) That, in time of war, the accused disclosed 

the parole or countersign to a person, identified or 

unidentified; and 

(b) That this person was not entitled to receive 

it. 

(2) Giving a parole or countersign different from 

that autlzorized. 

(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 mny 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 dis.. 

closing 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 specijications. 

(1) Disclosing the parole or countersign to one 

not entitled to receive it. ... In that (personal junsdlction 

data), did, (atlon board-location), on or 

about 19 a time 

of war, disclose the (parole)(countersign), to 

wit: , to a person 

who was not entitled to receive it. 

(2) Giving a parole or countersign different from 

that authorized. 

IV-38 
In that -.. -. . _ _ (personal jurisdiction 

data), did, (atJon board-location), on or 

about 1 9 - _,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 hisher knowledge, he/ 

she was authorized and required to give, to 

wit: . 

26. Article 102-Forcing a safeguard 

a. Text. 

"Any person subject to this chapter who forces a 

safeguard shall suffer death or such other punishment as a court-martial may direct." 

b. Elements. 

(1) that a safeguard had been issued or posted for 

the protection of a certain person or persons, place, 

or property; 

(2) That the accused knew or should liave known 

of the safeguard; and 

(3) That the accused forced the safeguard. 

c. Explanation. 

(1) Safegrrard. A safeguard is a detachment, 

guard, or detail posted by a commander for the protection of persons, places, or property of the enemy, 

or of a neutral affected by the relationship of belligerent forces in their prosecution of war or during 

circumstances amounting to a state of belligerency. 

The term also includes a written order left by a 

commander with an enemy subject or posted upon 

enemy properly for the protection of that person or 

property. A safeguard is not a device adopted by a 

belligerent to protect its own property or nationals or 

to ensure order within its own forces, even if those 

forces are in a theater of combat operations, and the 

posting of guards or of off-limits signs does not 

establish a safeguard unless a commander takes 

those actions to protect eneiny 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 oflense. 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 fonnal state of war. 

(4) Knowledge. Actual knowledge of the 

safeguard is not required. It is sufficient if an accused should have known of the existence of the 

safeguard. 

d. Lesser included offense. Article 80-attempts 

e. Maxit~nim plinishment. Death or such other punishment as a court-martial may direct. 

f. Satnple specification. In 

that (personal jurisdiction data), 

did, (atton board-location), on or 

about 19 force a 

safeguard, (known by himher 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. 

"(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- 

(I) 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 seczlre pliblic property taken fronz 

the enerny. 

(a) That certain public property was taken from 

the enemy; 

(b) That this property was of a certain value; 

and 

(c) That the accused failed to do what was reasonable under the circumstances to secure this property for the service of the United States. 
(2) Failing to report and turn over captured or 

abandoned property. 

(a) That certain captured or abandoned public 

or private property came into the possession, custody, or control of the accused; 

(b) That this property was of a certain value; 

and 

(c) That the accused failed to give notice of its 

receipt and failed to turn over to proper authority, 

without delay, the captured or abandoned public or 

private property. 

(3) Dealing in captured or abandoned property. 

(a) That the accused bought, sold, traded, or 

otherwise dealt in or disposed of certain public or 

private captured or abandoned property; 

(b) That this property was of certain value; and 

(c) That by so doing the accused received or 

expected some profit, benefit, or advantage to the 

accused or to a certain person or persons connected 

directly or indirectly with the accused. 

(4) Looting or pillaging. 

(a) That the accused engaged in looting, pillaging, or looting and pillaging by unlawfully seizing or 

appropriating certain public or private property; 

(b) That this property was located in enemy or 

occupied 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 

any other person has any private right in this 

property. 

(b) Nature of duty. Every person subject to 

military law has an immediate duty to take such 

steps as are reasonably within that person's power to 

secure public property for the service of the United 

States and to protect it from destruction or loss. 

(2) Failing to report and turn over captured or 

abandoned property. 

(a) Reports. Reports of receipt of captured or 

abandoned property are to be made directly or 

through such channels as are required by current 

regulations, orders, or the customs of the service. 

(b) Proper authority. "Proper authority" is any 

authority competent to order disposition of the property in question. 

(3) Dealing in captured or abandoned property. 

"Disposed of' includes destruction or abandonment. 

(4) Looting or pillaging. "Looting or pillaging" 

means unlawfully seizing or appropriating property 

which is located in enemy or occupied territory. 

(5) Enemy. For a discussion of "enemy," see paragraph 23c(l)(b). 

d. Lesser included offense. Article 80-attempts 

e. Maximum punishment. 

(1) Failing to secure public property taken from 

the enemy; failing to secure, give notice and turn 

over, selling, or otherwise wrongfully dealing in or 

disposing of captured or abandoned property: 

(a) of a value of $100.00 or less. Bad-conduct 

discharge, forfeiture of all pay and allowances, and 

confinement for 6 months. 

(b) of a value of more than $100.00. Dishonorable discharge, forfeiture of all pay and allowances, 

and confinement for 5 years. 

(2) Looting or pillaging. Any punishment, other 

than death, that a court-martial may direct. See 

R.C.M. 1003. 

f. Sample speczj-ications. 

(1) Failing to secure public property taken from 

the enemy. 

In that _ _. _ (personal jurisdiction 

data), did, (atlon board-location), on or 

about 19- fail to 

secure for the service of the United States certain 

public property taken from the enemy, to 

IV-40 
wit: 	 of a value of (about) 

$--- --. -. (2) Failing to report and turn over captured or 

abandoned property. 

In that (personal jurisdiction 

data), did, (atlon board-location), on or 

about 19 - fail to 

give notice and turn over to proper authority without 

delay certain (captured) (abandoned) property which 

had come into histher (possession) (custody) (control), to wit: of a value of (about), 

$ . (3) Dealing in captlrred or abandoned property. 

In that (personal jurisdiction 

data), did, (atlon board-location), on or 

about 19 - - . , (buy) 

(sell) (trade) (deal in) (dispose of) 

certain (captured) (abandoned) 

property, to wit:- , of a value of 

(about) $--- ----_ , thereby (receiving) (expecting) a (profit) (benefit) (advantage) to (himself1 

herself) 

hislher accomplice) 

hisher brother) 

(. - -- --1. 

(4) Looting or pillaging. 

In that--. -- -__ (personal jurisdiction 

data), did, (atlon board-location), on or 

about-- 19 engage 

in (looting) (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. 

"Any person who- 

(1) aids, or attempts to aid, the enemy with 

arms, ammunitioc. supplies, money, or other things; 

or 

(2) without proper authority, knowingly harbors 

or protects or gives intelligence to or communicates 

or corresponds with or holds any intercourse with 

the enemy, either directly or indirectly; shall suffer 

death or such other punishment as a court-martial or 

military commission may direct." 

b. 	Elements. 

(1) Aiding the eneiny. 

(a) That the accused aided the eneiny; and 

(b) That the accused did so with certain arms, 

ammunition, supplies, money, or other things. 

(2) Attempting to aid tlie enemy. 

(a) That the accused did a certain overt act; 

(b) That the act was done with the intent to aid 

the enemy with certain arms, ammunition, supplies, 

money, or other things; 

(c) That the act amounted to more than mere 

preparation; and 

(d) That the act apparently tended to bring 

about the offense of aiding the enemy with certain 

arms, ammunition, supplies, money, or other things. 

(3) Harboring or protecting the enemy. 

(a) That the accused, without proper authority, 

harbored or protected a person; 

(b) That the person so harbored or protected 

was the enemy; and 

(c) That the accused knew that the person so 

harbored or protected was an enemy. 

(4) Giving intelligence to the enemy. 

(a) That the accused, without proper authority, 

knowingly gave intelligence information to the enemy; and 

(b) That the intelligence information was true, 

or implied the truth, at least in part. 

(5) Communicating with the enemy. 

(a) That the accused, without proper authority, 

communicated, corresponded, or held intercourse 

with the enemy, and; 

(b) That the accused knew that the accused was 

communicating, corresponding, or holding intercourse with the enemy. 

c. 	Explanation. 

(1) Scope 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 nlilitary commission. 

(2) Enemy. For a discussion of "enemy," see paragraph 23c(l)(b). 

(3) Aiding or attempting to aid the enemy. It is 

not a violation of this article to furnish prisoners of 

war subsistence, quarters, and other comforts or aid 

to which they are lawfully entitled. 

(4) Harboring or protecting the enemy. 

(a) Nature of offense. An enemy is harbored or 

protected when, without proper authority, that enIV-41 
1 

emy 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 

information valuable to belligerents. This intelligence may be conveyed by direct or indirect means. 

(b) Intelligence. "Intelligence" imports that the 

information conveyed is true or implies the truth, at 

least in part. 

(c) Knowledge. Actual knowledge is required 

but may be proved by circumstantial evidence. 

(6) Communicating with the enemy. 

(a) Nature of the offense. No unauthorized 

communication, correspondence, or intercourse with 

the enemy is permissible. The intent, content, and 

method of the communication, correspondence, or 

intercourse are immaterial. No response or receipt 

by the enemy is required. The offense is 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 

violate this Article by engaging in unauthorized 

communications with the enemy. See also paragraph 

29c(3). 

(b) Knowledge. Actual knowledge is required 

but may be proved by circumstantial evidence. 

(c) Citizens of neutral powers. Citizens of neutral powers resident in or visiting invaded or occupied territory can claim no immunity from the 

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 

communicating with the enemy. Article 80-attempts 

e. Maxiinum punishment. Death or such other punishment as a court-martial or military cornmission 

may direct. 

f. Sample speczjications. 

(1) Aiding or attempting to aid the enemy. 

In (personal jurisdiction 

data), did, (atlon board-location), on or 

a b o u t 19 -, (attempt to) aid the enemy with (arms) (ammunition) 

(supplies) (money) (-_), by (fumishing and delivering to , members of 

the enemy's armed forces 

( ). 

(2) Harboring or protecting the enemy. 

In that - _ (personal jurisdiction 

data), did, (atlon board-location), on or 

about 19- , without 

proper authority, knowingly (harbor) (protect) ,an enemy, by (concealing the 

said in hisher house) 

(-- 1. 

(3) Giving intelligence to the enemy. 

In that--- (personal jurisdiction 

data), did, (atlon board-location), on or 

about-- - 1 9 -, without 

proper authority, knowingly give intelligence to the 

enemy, by (informing a patrol of the enemy's forces 

of the whereabouts of a military patrol of the United 

States forces) ( -1. 

(4) Communicating with the enemy. 

In that (personal jurisdiction 

data), did, (atlon board-location), on or 

about 1 9 , without 

proper authority, knowingly (communicate with) 

(correspond with) (hold intercourse with) the enemy 

(by writing and transmitting secretly through the 

lines to one -, whom helshe, the 

s a i d , knew to be (an officer of the 

enemy's armed forces)( -) a communication in words and figures substantially as follows, to wit:-_ )) ((indirectly by 

publishing in a newspaper published at __-,a communication in 

words and figures as follows, to 

wit: which communication was intended to reach the enemy))((._- )). 

29. Article 105-Misconduct as a prisoner 

a. Text. 

"Any person subject to this chapter who, while in 

the hands of the enemy in time of war-

(1) for the purpose of securing favorable treatment by his captors acts without proper authority in 

a manner contrary to law, custom, or regulation, to 

the detriment of others of whatever nationality held 

IV-42 
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 witlzout autlzority to the detrirnent of 

anotlzer for tlre purpose of secriring favorable 

treatment. 

(a) That witl~out proper authority the accused 

acted in a manner contrary to law, custom, or 

regulation; 

(b) That the act was committed while the accused was in the hands of the enemy in time of war; 

(c) That the act was done for the purpose of 

securing favorable treatment of the accused by the 

captors; and 

(d) That other prisoners held by the enemy, 

either military or civilian, suffered some detriment 

because of the accused's act. 

(2) Maltreating prisoners while in a position of 

aritl~ority. 

(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) Enerny. For a discussion of "enemy," see paragraph 23c(l)(b). 

(2) 111 time of war. See R.C.M. 103(19). 

(3) Acting witlzout aritlzority to the detrirnent of 

anotlzer for the plrrpose of securing favorable 

treatment. 

(a) Natrire of offense. Unauthorized conduct by 

a prisoner of war must be intended to result in improvement by the enemy of the accused's condition 

and must operate to the detriment of other prisoners 

either by way of closer confinement, reduced rations, physical punishment, or other harm. Examples 

of this conduct include reporting plans of escape 

being prepared by others or reporting secret food 

caches, equipment, or arms. The conduct of the prisoner must be contrary to law, custom, or regulation. 

(b) Escape. Escape from the enemy is authorized by custom. An escape or escape attempt which 

results in closer confinement or other n~easures 

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 

autlzority. 

(a) A~itliority.The source of authority is not 

material. It may arise from tl~e military rank of the 

accused or--despite service regulations or customs 

to the contrary-designation by the captor authorities, or voluntary election or selection by other prisoners for their self-government. 

(b) Maltreatment. The maltreatment must be 

real, although not necessarily physical, and it must 

be without justifiable cause. Abuse of an inferior by 

inflammatory and derogatory words may, through 

mental anguish, constitute this offense. 

d. Lesser incl~rded offense. Article 8kattempts 

e. Maxirnrrrn prinishnzent. Any punisl~ment other 

than death that a court-martial may direct. See 

R.C.M. 1003. 

f. Sarnple spec$catiorzs. 

(1) Acting witho~it alrtllority to tlre cletrirnent oJ 

another for the pzirpose of secrcrirtg favorable treatment. 

In that (personal jurisdiction 

data), while in the hands of the enemy, did, (atlon 

board-location) on or about- _ -

19 -.- .. .__,a time of war, without proper 

authority and for the purpose of securing favorable 

treatment by hisher captors, (report to the commander of Camp . the preparations 

by , a prisoner at said camp, to escape, as a result of which report the 

said . was placed in solitary confinement) ( ). 

(2) Maltreating prisorrer ntlrile in a position of 

authority. 

In that (personal jurisdiction 

data), did, (atlon board-location), on or 

about I9 , a time 

of ward, while in the hands, of the enemy and in a 

position of authority over - , a prisoner at , as (officer in cllarge of 

prisoners at 1 ( ), 

maltreat the 

himlher of 

said 

> ( 

by (depriving 

-. ) 9 

without justifiable cause. 

30. Article 106-Spies 
a. Text. 

"Any person who in time of war is found lurking 

as a spy or acting as a spy in or about any place, 

vessel, or aircraft, within the control or jurisdiction 

of any of the 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." 

b. Elements. 

(1) That the accused was found in, about, or in 

and about a certain place, vessel, or aircraft within 

the control or jurisdiction of an armed force of the 

United States, or a shipyard, manufacturing or industrial plant, or other place or institution engaged in 

work in aid of the prosecution of the war by the 

United States, or elsewhere; 

(2) That the accused was lurking, acting clandestinely or under false pretenses; 

(3) That the accused was collecting or attempting 

to collect certain information; 

(4) That the accused did so with the intent to 

convey this information to the enemy; and 

(5) That this was done in time of war. 

c. Explanation. 

(1) In time of war. See R.C.M. 103(19). 

(2) Enemy. For a discussion of "enemy," see paragraph 23c(l)(b). 

(3) Scope of offense. The words "any person" 

bring within the jurisdiction of general courts-martial and military commissions all persons of whatever nationality or status who commit spying. 

(4) Nature of offense. A person can be a spy only 

when, acting clandestinely or under false pretenses, 

that person obtains or seeks to obtain information 

with the intent to convey it to a hostile party. It is 

not essential that the accused obtain the information 

sought or that it be communicated. The offense is 

complete with lurking or acting clandestinely or 

under false pretenses with intent to accomplish these 

objects. 

(5) Intent. It is necessary to prove 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) Members of a military organization not 

wearing a disguise, dispatch drivers, whether members of a military organization or civilians, and persons in ships or aircraft who carry out their missions 

openly and who have penetrated enemy lines are not 

spies because, while they may have resorted to concealment, they have not acted under false pretenses. 

(b) A spy who, after rejoining the armed forces 

to which the spy belongs, is later captured by the 

enemy incurs no responsibility for previous acts of 

espionage. 

(c) A person living in occupied territory who, 

without lurking, or acting clandestinely or under 

false pretenses, merely reports what is seen or heard 

through agents to the enemy may be charged under 

Article 104 with giving intelligence to or cornrnunicating with the enemy, but may not be charged 

under this article as being a spy. 

d. Lesser included offenses. None. 

e. Mandatory punishment. Death 

f. Sample specification. In 

that (personal jurisdiction data), 

was, (atlon board-location), on or 

about 19 a time 

of war, found (lurking) (acting) as a spy (in) (about) 

(in and about) (a (fortification) 

(port) (base) (vessel) (aircraft) (-.. .. 

within the (control)(jurisdiction) (control and jurisdiction) of an armed force of the United States, to 

wit:-~ --------_p_) (a (shipyard) (manufacturing 

plant) (industrial plant) engaged 

in work in aid of the prosecution of the war by the 

United States) (_ _ .. J, for the purpose 

of (collecting) (attempting to collect) information in 

regard to the ((numbers) (resources) (operations) 

~-ppp._.p-.) of the armed forces of the 

United States) ((military production) 

) of the United States) 

), with intent to impart the same 

to the enemy. 

30a. Article 106a-Espionage 

a. Text. 

"(a)(l) Any person subject to this chapter who, 

with intent or reason to believe that it is to be used 

IV-44 
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, 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 other means of defense or retaliation against large scale attack, (B) war plans, (C) 

communications intelligence or cryptographic 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 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, photographic negative, blueprint, plan, 

map, model, note, instrument, appliance, or inforrnation relating to the national defense. 

(b)(l) 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)." 

b. Elernents. 

(1) Espionage. 

(a) That the accused communicated, delivered, 

or transmitted any document, writing, code book, 

signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, note, instrument, 

appliance, or information relating to the national 

defense; 

(b) That this matter was communicated, 

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) That the accused did so with intent or 

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) That the act apparently tended to bring 

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) nuIV-45 
clear weaponry, military spacecraft or satellites, 

early waming systems, or other means of defense or 

retaliation against large scale attack, (2) war plans, 

(3) communications intelligence or cryptographic information, or (4) any other major weapons system or 

major element of defense strategy. 

c. Explanation. 

(1) Intent. "Intent or reason to believe" that the 

information "is to be used to the injury of the United 

States or to the advantage of a foreign nation" 

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) National defense information. "Instrument, 

appliance, or information relating to the national defense" includes the full range of modem 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) nuclear weaponry, military spacecraft or satellites, 

early warning systems, or other means of defense or 

retaliation against large scale attack, (2) war plans, 

(3) communications intelligence or cryptographic 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 iesser 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 punislament. 

(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), did, (atlon board-location), on or 

about 19 with 

intent or reason to believe it would be used to the 

injury of the United States or to the advantage 

of ... ., a foreign nation, (attempt to) 

(communicate) (deliver) (transmit)_- ~ .. _ _ 

(description of item), (a document) (a writing) (a 

code book) (a sketch) (a photograph) (a photographic 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 waming systems) a means of defense or retaliation against a large scale attack) (war plans) 

(communications intelligence) (cryptographic 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 force within a foreign country)) . . (mduectly by ). 

31. Article 107-False official statements 

a. Text. 

"Any person subject to this chapter who, with 

intent to deceive, signs any false record, return, regulation, order, or other official document, knowing it 

to be false, or makes any other false official statement knowing it to be false, shall be punished as a 

court-martial may direct." 

b. Elements. 

(1) That the accused signed a certain official document or made a certain official statement; 

(2) That the document or statement was false in 

certain particulars; 

(3) That the accused knew it to be false at the 

time of signing it or making it; and 

(4) That the false document or statement was 

made with the intent to deceive. 

c. Explanation. 

(1) OfSicial documents and statements. Official 

documents and official statements include all documents and statements made in the line of duty. 

(2) Starus of victim of the deception. The rank of 

any person intended to be deceived is immaterial if 

that person was authorized in the execution of a 

particular duty to require or receive the statement or 

document from the accused. The government may 

be the victim of this offense. 

(3) Intent to deceive. The false representation 

must be made with the intent to deceive. It is not 

IV-46 
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 

evidence of the intent to deceive, while immateriality may tend to show an absence of this 

intent. 

(4) Material gain. The expectation of material 

gain is not an element of this offense. Such expectation or lack of it, however, is circu~nstantial evidence bearing on the element of intent to deceive. 

(5) Knowledge tknt the clocurnerzt or staternerrt 

was false. The false representation must be one 

which the accused actually knew was false. Actual 

knowledge may be proved by circumstantial evidence. An honest, although erroneous, belief that a 

statement made is true, is a defense. 

(6) Statemepts rnarle drrring an interrogation. 

(a) Person witlrozrt an independent duty or obligation to speak. A statement made by an accused 

or suspect during an interrogation is not an official 

statement within the meaning of the article if that 

person did not have an independent duty or obligation to speak. Bzit see paragraph 79 (false swearing). 

(b) Person with an indepenclent duty or obligation to speak. If a suspect or accused does have an 

independent duty or obligation to speak, as in the 

case of a custodian who is required to account for 

property, a statement made by that person during an 

interrogation into the matter is official. While the 

person could remain silent (Article 31(b)), if the 

person chooses to speak, the person must do so 

truthfully. 

d. Lesser itrclzrdetl oflerzse. Article 80-attempts 

e. Maxirnlirn pwishment. Dislionorable discharge, 

forfeiture of all pay and allowances, and confinement for 5 years. 

f. Sarnple specification. I n 

that--. - ... (personal jurisdiction data), 

did, (atlon board-location), (subject-matter jurisdiction data, if required), on or about 

, with intent to deceive, (sign an 

official (record) (return) ( _ .-. . 1, to 

wit: ) (make to 

an official statement, to wit: - ), 

which (record) (return) (statement) 

( - . ) was (totally false) (false in 

that -- ), and was then known by the 

said- -- ---- ..- to be so false. 

32. Article 108-Military property of the 

United States-sale, loss, damage, 

destruction, or wrongful disposition 

a. Text. 

"Any person subject to this chapter who, without 

proper authority- 

(1) sells or otherwise disposes of; 

(2) willfully or tlirough neglect damages, 

destroys, or loses; or 

(3) willfully or tlirough neglect suffers to be 

lost, damaged, destroyed, sold, or wro~lgfully disposed of, any military property of the United States, 

shall be punished as a court-martial may direct." 

b. Elements. 

(I) Selling or other\vise disposing of rnilitary 

property. 

(a) That the accused sold or otherwise disposed 

of certain property (which was a firearm or 

explosive); 

(b) That the sale or disposition was without 

proper authority; 

(c) That the property was military property of 

the United States; and ' 

(d) That the property was of a certain value. 

(2) Damaging, destroying, or losing rnilitary 

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 tlie accused; and 

(d) That the property was of a certain value or 

the damage was of a certain amount. 

(3) Szifferirrg rnilitary property to be lost, darnaged clestroye~l, soll. or ~lrongfirlly di.rposec1 o$ 

(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 tlie accused, 

without proper authority, through a certain omission 

of duty by the accused; 

19 
(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) Military property. Military property is all 

property, real or personal, owned, held, or used by 

one of the armed forces of the United States. If is 

immaterial whether the property sold, disposed, 

destroyed, lost, or damaged had been issued to the 

accused, to someone else, or even issued at all. If it 

is proved by either direct or circumstantial evidence 

that items of individual issue were issued to the 

accused, it may be inferred, depending on all the 

evidence, that the damage, destruction, or loss 

proved was due to the neglect of the accused. Retail 

merchandise of service exchange stores is not military property under this article. 

(2) Suffering military property to be lost, damaged, destroyed, sold, or wrongFclly disposed of: 

'To suffer" means to allow or permit. The willful or 

negligent sufferance specified by this article includes: deliberate violation or intentional disregard 

of some specific law, regulation, or order; reckless 

or unwarranted personal use of the property; causing 

or allowing it to remain exposed to the weather, 

insecurely housed, or not guarded; permitting it to 

be consumed, wasted, or injured by other persons; or 

loaning it to a person, known to be irresponsible, by 

whom it is damaged. 

(3) Value and damage. In the case of loss, destruction, sale, or wrongful disposition, the value of 

the property controls the maximum punishment 

which may be adjudged. In the case of damage, the 

amount of damage controls. As a general rule, the 

amount of damage is the estimated or actual cost of 

repair by the government agency normally employed 

in such work, or the cost of replacement, as shown 

by government price lists or otherwise, whichever is 

less. 

d. Lesser included offenses. 

(1) Sale or disposition of military property. 

(a) Article 80-attempts 

(b) Article 134-sale or disposition of non-military government property 

(2) Willfully damaging military property. 

(a) Article 108-damaging military property 

through neglect 

(b) Article 109-willfully damaging non-military property 

(c) Article 80-attempts 

(3) Willfully suffering military property to be 

damaged. 

(a) Article 108-through neglect suffering military property to be damaged 

(b) Article 80-attempts 

(4) Willfully destroying military property. 

(a) Article 108-through neglect destroying 

military property 

(b) Article 109-willfully destroying non-military property 

(c) Article 108-willfully damaging military 

property 

(d) Article 109-willfully damaging non-military property 

(e) Article 108-through neglect damaging 

military property 

(f) Article 80-attempts 

(5) Willfully suffering militor-y property to be 

destroyed. 

(a) Article 108-through neglect suffering military property to be destroyed 

(b) Article 108-willfully suffering military 

property to be damaged 

(c) Article 108-through neglect suffering military property to be damaged 

(d) Article 80-attempts 

(6) Willfully losing military property. 

(a) Article 108-through neglect, losing military property 

(b) Article 80-attempts 

(7) Willfully suffering rnilitary property to be lost. 

(a) Article 108-through neglect, suffering 

military property to be lost 

(b) Article 80-attempts 

(8) Willfully suffering military property to be 

sold. 

(a) Article 108-through neglect, suffering 

military property to be sold 

(b) Article 80-attempts 

(9) Willfully suffering military property to be 

wrongfully disposed of: 

(a) Article 108-through neglect, suffering 
military property to be wrongfully disposed of in the 

manner alleged 

(b) Article 8Lattempts 

e. Maximum punishment. 

(1) Selling or otherwise disposing of military 

property. 

(a) Of a value of $100.00 or less. Bad-conduct 

discharge, forfeiture of all pay and allowance, and 

confinement for 1 year. 

(b) Of a value of more then $100.00 or any 

firearm or explosive. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 

10 years. 

(2) Through neglect damaging, destroying, or 

losing, or through neglect suffering to be lost, damaged, destroyed, sold, or wrongfully disposed of, 

military property. 

(a) Of a value or damage of $100.00 or less. 

Confinement for 6 months, and forfeiture of twothirds pay per month for 6 months. 

(b) Of a value or damage of more than 

$100.00. Bad-conduct discharge, forfeiture of all pay 

and allowances, and confinement for 1 year. 

(3) 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 $100.00 or less. 

Bad-conduct discharge, forfeiture of all pay and allowances, and confinement for l year. 

(b) Of a value or damage of more than 

$100.00, or of any firearm or explosive. Dishonorable discharge, forfeiture of all pay and allowances, 

and confinement for 10 years. 

f. Sample specifications. 

(1) Selling or disposing of military property. 

.... In that (personal junsdlctlon 

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

jurisdiction data, if required), on or 

about.-_ 19 without 

proper authority,(sell to (dispose 

of by , ((a firearm) (an explosive)) of a value of (about) 

$ military property of the United 

States. 

(2) Damaging, destroying, or losing military 

property. 

In that (personal jurisdiction 

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

jurisdiction data, if required), on or 

about 19 without 

proper authority, ((willfully) (through neglect)) 

((damage by (destroy 

by )) (lose)) (of a . . value of (about) $ rmlitary 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 

jurisdiction data, if required), on or 

about 19- - ..., without 

proper authority, (willfully) (through neglect) sufferp-._...-, ((a firearm) (an explosive)) (of . . a value of (about) $ $ mlltary property of the United States, to be (lost) (damaged 

b y ) (destroyed 

by (sold to 1 

(wrongfully disposed of 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. 

"Any person subject to this chapter who willfully 

or recklessly wastes, spoils, or otherwise willfully 

and wrongfully destroys or damages any property 

other than military property of the United States 

shall be punished as a court-martial may direct." 

b. Elements. 

(1) Wasting or spoiling of non-military property. 

(a) That the accused willfully or recklessly 

wasted or spoiled certain real property in a certain 

manner; 

(b) That the property was that of another person; and 

(c) That the property was of a certain value. 

(2) Destroying or damaging non-military 

property. 

(a) That the accused willfully and wrongfully 

destroyed or damaged certain personal property in a 

certain manner; 

(b) That the property was that of another person; and 
(c) That the property was of a certain value or 

the damage was of a certain amount. 

c. Explanation. 

(1) Wasting or spoiling non-military property. 

This portion of Article 109 proscribes willful or 

reckless waste or spoilation of the real property of 

another. The terms "wastes" and "spoils" as used in 

this article refer to such wrongful acts of voluntary 

destruction of or permanent damage to real property 

as burning down buildings, burning piers, tearing 

down fences, or cutting down trees. This destruction 

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 

this section, the destruction or damage of the property must have been willful and wrongful. As used 

in this section "willfully" means intentionally and 

"wrongfully" means contrary to law, regulation, lawful order, or custom. Willfulness may be proved by 

circumstantial evidence, such as the manner in 

which the acts were done. 

(3) Val~ce and damage. In the case of destruction, 

the value of the property destroyed controls the 

maximum punishment which may be adjudged. In 

the case of damage, the amount of the damage controls. As a general rule, the amount of damage is the 

estimated or actual cost of repair by artisans employed in this work who are available to the community wherein the owner resides, or the replacement 

cost, whichever is less. See also paragraph 

46c(l)(g). 

d. Lesser included 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 $100.00 or less. Bad-conduct discharge, 

forfeiture of all pay and allowances, and confinement for 1 year. 

(2) Of more than $100.00. Dishonorable discharge, forfeiture of all pay and allowances, and 

confinement for 5 years. 

f. Sample specification. 

In that - - (personal jurisdiction 

data), did, (atlon board-location) (subject-matter 

jurisdiction data, if required), on or 

about 19 -, ((willfully) recklessly) waste) ((willfully) (recklessly) 

spoil) (willfully and wrongfully (destroy) (damage) 

byP--- >-- __-,(of a value 

of (about) (the amount of said 

damage being in the sum of (about 

$ the property 

of____ ---. 

34. Article I10-Improper hazarding of 

vessel 

a. Text. 

"(a) Any person subject to this chapter who willfully and wrongfully hazards or suffers to be hazarded any vessel of the armed forces shall suffer 

death or such other punishment as a court-martial 

may direct. 

(b) Any person subject to this chapter who 

negligently hazards or suffers to be hazarded any 

vessel of the armed forces shall be punished as a 

court-martial may direct." 

b. Elements. 

(1) That a vessel of the armed forces was hazarded in a certain manner; and 

(2) That the accused by certain acts or omissions, 

willfully and wrongfully, or negligently, caused or 

suffered the vessel to be hazarded. 

c. Explanation. 

(1) Hazard. "Hazard" means to put in danger of 

loss or injury. Actual damage to, or loss of, a vessel 

of the armed forces by collision, stranding, running 

upon a shoal or a rock, or by any other cause, is 

conclusive evidence that the vessel was hazarded but 

not of the fact of culpability on the part of any 

particular person. "Stranded" means run aground so 

that the vessel is fast for a time. If the vessel 

"touches and goes," she is not stranded; if she 

"touches and sticks," she is. A shoal is a sand, mud, 

or gravel bank or bar that makes the water shallow. 

(2) Willfully and wrongfully. As used in this article, "willfully" means intentionally and "wrongfulIV-50 
ly" means contrary to law, regulation, lawful order, 

or custom. 

(3) Negligence. "Negligence" as used in this article means the failure to exercise the care, prudence, 

or attention to duties, which the interests of the 

government require a prudent and reasonable person 

to exercise under the circumstances. This negligence 

may consist of the omission to do something the 

prudent and reasonable person would have done, or 

the doing of something which such a person would 

not have done under the circumstances. No person is 

relieved of culpability who fails to perform such 

duties as are imposed by the general responsibilities 

of that person's grade or rank, or by the customs of 

the service for the safety and protection of vessels of 

the armed forces, simply because these duties are 

not specifically enumerated in a regulation or order. 

However, a mere error in judgment that a reasonably 

able person might have committed under the same 

circumstances does not constitute an offense under 

this article. 

(4) Suffer. 'To suffer" means to allow or permit. 

A ship is willfully suffered to be hazarded by one 

who, although not in direct control of the vessel, 

knows a danger to be imminent but takes no steps to 

prevent it, as by a plotting officer of a ship under 

way who fails to report to the officer of the deck a 

radar target which is observed to be on a collision 

course with, and dangerously close to, the ship. A 

suffering through neglect implies an omission to 

take such measures as were appropriate under the 

circumstances to prevent a foreseeable danger. 

d. Lesser included offenses. 

(1) Willfully and wrongfully hazarding a vessel. 

(a) Article 1 10-negligently hazarding a vessel 

(b) Article 80-attempts 

(2) Willfully and wrongfully suffering a vessel to 

be hazarded. 

(a) Article 1lo-negligently suffering a vessel 

to be hazarded 

(b) Article 80-attempts 

e. Maximum punishment. Hazarding or suffering to 

be hazarded any vessel of the armed forces: 

(1) Willfully and wrongfully. Death or such other 

punishment as a court-martial may direct. 

(2) Negligently. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 

2 years. 

f. Sample specifications. 

(1) Hazarding or suffering to be hazarded any 

vessel, willfully and wrongfully. .... In that (personal junsdlction 

data), did, on 19 ..-.- , 

while serving as aboard 

the in the vicinity 

of willfully and wrongfully (hazard the said vessel) (suffer the said vessel to be 

hazarded) by (causing the said vessel to collide 

with (allowing the said vessel to 

run aground) ~). 

(2) Hazarding of vessel, negligently. 

(a) Example 1. 

In that (personal jurisdiction 

data), on 19 

while serving in command of the ., 

making entrance to (Boston Harbor), did negligently 

hazard the said vessel by failing and neglecting to 

maintain or cause to be maintained an accurate running plot of the true position of said vessel while 

making said approach, as a result of which neglect 

the said at or 

about hours on the day aforesaid, 

became stranded in the vicinity of (Channel Buoy 

Number Three). 

(b) Example 2. 

In that (personal jurisdiction 

data), on 19 

while serving as navigator of the . . . . crulslng on special servlce m the 

Ocean off the coast of notwithstanding the fact that at about midnight, 

19 , the northeast 

point of Island bore abeam and 

was about six miles distant, the said ship being then 

under way and making a speed of about tell knots, 

and well knowing the position of the said ship at the 

time stated, and that the charts of the locality were 

unreliable and the currents thereabouts uncertain, did 

then and there negligently hazard the said vessel by 

failing and neglecting to exercise proper care and 

attention in navigating said ship while approaching-..~ .. Island, in that helshe neglected 

and failed to lay a course that would carry said ship 

clear of the last aforesaid island, and to change the 

course in due time to avoid disaster; and the said 

ship, as a result of said negligence on the part of 

said ran upon a rock off the southwest coast of _ Island, at 

IV-51 
19 

a b o u t hours 

in consequence of which the 

said- was lost. 

(c) Example 3. 

In that (personal jurisdiction 

data), on 19 

while serving as navigator of the .----...-.-p~-__-

and well knowing that at about sunset of said day 

the said ship had nearly run her estimated distance 

from the position, obtained and 

plotted by himlher, to the position 

of and well knowing the difficulty 

of sighting from a safe distance 

after sunset, did then and there negligently hazard 

the said vessel by failing and neglecting to advise 

hislher commanding officer to lay a safe course for 

said ship to the northward before continuing on a 

westerly course, as it was the duty of 

said. . to do; in consequence of 

which the said ship was, at about 

hours on the day above mentioned, run 

upon bank in the 

Sea, about latitude degrees, 

__-minutes, north, and longitude degrees 

minutes, west, and seriously injured. 

(3) Suffering a vessel to be hazarded, negligently. 

. 	. .. In that ----..-p--.--._ (personal junsdlctlon 

data), while serving as combat intelligence center 

officer on board the making passage from Boston to Philadelphia, and having, betweeL and hours 

on -, 19- been duly 

informed of decreasing radar ranges and constant 

radar bearing indicating that the . . said was upon a collision course 

approaching a radar target, did then and there 

negligently suffer the said vessel to be hazarded by 

failing and neglecting to report said collision course 

with said radar target to the officer of the deck, as it 

was hislher duty to do, and helshe, the 

said through negligence, did cause 

the said to collide with 

the at or about ~ 

hours on said date, with resultant damage to both 

vessels. 

35. Article 11 1-Drunken or reckless 

operation of 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) 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 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. 5 4. 

(2) Vessel. See. 1 U.S.C. 0 3. 

(3) Aircraf. 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 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(aj, 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 

heedless nature which made it actually or imminently 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 

accused would have committed involuntary manslaughter, 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 

matter, evidence of all the surrounding circumstances 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 aspect of the recklessness, and evidence that the 

vehicle exceeded a safe speed, at a relevant prior 

point and time, might be admissible as corroborating 

other evidence of the specific recklessness charged. 

Similarly, on a charge of drunken driving, relevant 

evidence of recklessness might have probative value 

as corroborating other proof of drunkenness. 

d. Lesser included 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 

(b) Article 112--drunk on duty 

(c) 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 (atJonboard-location) (subject-matter jurisdiction data, if required), on or 

IV-53 
about 19 .~.,(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-1 35 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 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 (vehicle) (aircraft) (vessel) to (strike and) . . (mnjure )I. 

36. Article 112-Drunk on duty 

a. Text. 

"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 circumsta~~ces are often such 

that all members of a command may properly be 

considered as being col~linuously on duty witl~ir~ the 

meaning of this article. So also, an officer of the day 

and members of the guard, or of the watch, are on 

duty during their entire tour within the meaning of 

this article. 

(3) Nature of offense. It is necessary that the accused be found drunk while actually on the duty 

alleged, and the fact the accused became drunk 

before going on duty, although material in extenuation, does not affect the question of guilt. If, however, the accused does not undertake the responsibility 

or enter upon the duty at all, the accused's conduct 

does not fall within the terms of this article, nor 

does that of a person who absents himself or herself 

from duty and is found drunk while so absent. Included within the article is drunkenness while on 

duty of an anticipatory nature such as that of an 

aircraft crew ordered to stand by for flight duty, or 

of an enlisted person ordered to stand by for guard 

duty. 

(4) Defenses. If the accused is known by superior 

authorities to be drunk at the time a duty is assigned, 

and the accused is thereafter allowed to assume that 

duty anyway, or if the drunkenness results from an 

accidental overdosage administered for medicinal 

purposes, the accused will have a defense to this 

offense. But see paragraph 76 (incapacitation for 

duty). 

d. Lesser included offense. Article 1344nk on 

station 

e. Maximum punislzment. Bad-conduct discharge, 

forfeiture of all pay and allowances, and confinement for 9 months. 

f. Sample spec$cation. .. . . In that (personal junsdlctlon 

data), was, (atlon board-location), on or 

about 19 ~ .._,found

drunk while on duty as __._ 

37. Article 112a-Wrongful use, possession, 

etc., of controlled substances 

a. Text. 

"(a) Any person subject to this chapter who 

wrongfully uses, possesses, manufactures, distributes, imports into the customs territory of the United 

States, exports from the United States, or introduces 

into an installation, vessel, vehicle, or aircraft used 

IV-54 
by or under the control of the armed forces a substance described in subsection (b) shall be punished 

as a court-martial may direct. 

(b) The substances referred to in subsection (a) 

are the following: 

(1) opium, heroin, cocaine, amphetamine, lysergic acid diethylamide, methamphetamine, phencyclidine, barbituric acid, and marijuana, and any 

compound or derivative of any such substance. 

(2) Any substance not specified in clause (1) 

that is listed on a schedule of controlled substances 

prescribed by the President for the purposes of this 

article. 

(3) Any other substance not specified in clause 

(1) or contained on a list prescribed by the President 

under clause (2) that is listed in Schedules I through 

V of section 202 of the Controlled Substances Act 

(21 U.S.C. 812)." 

b. Elements. 

(1) Wrongful possession of controlled substance. 

(a) That the accused possessed a certain 

amount of a controlled substance; and 

(b) That the possession by the accused was 

wrongful. 

(2) Wrongful use of controlled substance. 

(a) That the accused used a controlled substance; and 

(b) That the use by the accused was wrongful. 

(3) Wrongful distribution of controlled substance. 

(a) That the accused distributed a certain 

amount of a controlled substance; and 

(b) That the distribution by the accused was 

wrongful. 

(4) Wrongful introduction of a controlled 

substance. 

(a) That the accused introduced onto a vessel, 

aircraft, vehicle, or installation used by the armed 

forces or under the control of the armed forces a 

certain amount of a controlled substance; and 

(b) That the introduction was wrongful. 

(5) Wrongful inanufacture of a controlled 

substance. 

(a) That the accused manufactured a certain 

amount of a controlled substance; and 

(b) That the manufacture was wrongful. 

(6) Wrongful possession, manufacture, or introduction of a controlled substance with intent to 

distribute. 

(a) That the accused (possessed) (manufactured) (introduced) a certain amount of a controlled 

substance; 

(b) That the (possession) (manufacture) (introduction) was wrongful; and 

(c) That the (possession) (manufacture) (introduction) was with the intent to distribute. 

(7) Wrongful i~nportation or exportation of a controlled substance. 

(a) That the accused (imported into the customs territory of) (exported from) the United States 

a certain amount of a controlled substance; and 

(b) That the (importation) (exportation) was 

wrongful. 

[Note: When any of the aggravating circumstances 

listed in subparagraph e is alleged, it must be listed 

as an element.] 

c. Explanation. 

(1) Controlled substance. "Controlled substance" 

means amphetamine, cocaine, heroin, lysergic acid 

dietylamide, marijuana, methamphetamine, opium, 

phencyclidine, and barbituric acid, including phenobarbital and secobarbital. "Controlled substance" 

also means any substance which is included in 

Schedules I through V established by the Controlled 

Substances Act of 1970 (21 U.S.C. 812). 

(2) Possess. "Possess" means to exercise control 

of something. Possession may be direct physical 

custody like holding an item is one's hand, or it may 

be constructive, as in the case of a person who hides 

an item in a locker or car to which that person may 

return to retrieve it. Possession must be knowing and 

conscious. Possession inherently includes the power 

or authority to preclude control by others. It is possible, however, for more than one person to possess 

an item simultaneously, as when several people 

share control of an item. An accused may not be 

convicted of possession of a controlled substance if 

the accused did not know that the substance was 

present under the accused's control. Awareness of 

the presence of a controlled substance may be inferred from circumstantial evidence. 

(3) Distribute. "Distribute" means to deliver to 

the possession of another. "Deliver" means the actual, constructive, or attempted transfer of an item, 

whether or not there exists an agency relationship. 

(4) Manufacture. "Manufacture" means the proIV-55 
duction, preparation, propagation, compounding, or 

processing of a drug or other substance, either 

directly or indirectly or by extraction from substances of natural origin, or independently by means 

of chemical synthesis or by a combination of extraction and chemical synthesis, and includes any packaging or repackaging of such substance or labeling 

or relabeling of its container. "Production," as used 

in this subparagraph, includes the planting, cultivating, growing, or harvesting of a drug or other 

substance. 

(5) Wrongfulness. To be punishable under Article 

112a, possession, use, distribution, introduction, or 

manufacture of a controlled substance must be 

wrongful. Possession, use, distribution, introduction, 

or manufacture of a controlled substance is wrongful 

if it is without legal justification or authorization. 

Possession, 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 possessed, distributed, introduced, or manufactured 

"some," "traces of," or "an unknown quantity of' a 

controlled substance. 

(8) Missile launch facility. A "missile launch facility" includes the place from which missiles are 

fired and launch control facilities from which the 

launch of a missile is initiated or controlled after 

launch. 

(9) Customs territory of the United States. "Customs territory of the United States" includes only the 

States, the District of Columbia, and Puerto Rico. 

(10) Use. "Use" means to inject, injest, 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 

(b) Article 80-attempts 

(3) Wrongful distribution of controlled substance. 

Article 80-attempts 

(4) Wrongful manufacture of controlled 

substance. 

(a) Article 112a-wrongful possession of controlled substance 

IV-56 
(b) Article 80-attempts 

(5) Wrongful introduction of controlled 

substance. 

(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 1 12a-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, ntanufacture, or introduction of controlled substance. 

(a) Amphetamine, cocaine, heroin, lysergic 

acid diethylamide, marijualm (except possession of 

less than 30 gram or use of marijuana), methamphetamine, opium, phencyclidine, secobarbital, and 

Schedule I, 11, I11 controlled substances. Dishonorable discharge, forfeiture of all pay and allowances, 

and confinement 5 years. 

(b) Marijuana (possession of less than 30 

grams or use), phenobarbital, and Schedule N and 

V controlled substances. Dishonorable discharge, 

forfeiture of all pay and allowances, and confinement for 2 years. 

(2) Wrongful distribution, possession, manufacture, or introduction of controlled substance with 

intent to distribute, or wrongful importation or exportation of a controlled substance. 

(a) Amphetamine, cocaine, heroin, lysergic 

acid diethylamide, marijuana, methampltetanzine, 

opium, phencyclidine, secobarbital, and Schedule I, 

11, and 111 controlled substances. Dishonorable discharge, forfeiture of all pay and allowances, and 

confinement for 15 years. 

(b) Phenobarbital and Schedule N 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 

anned 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 confine~~~ent authorized for such offense shall be increased by 5 years. 

f. Sample specfications. 

(1) Wrongful possession, manufacture, or distribution of controlled substance. . . .. In that (personal junshctlon 

data) did, (adon board-location) (subject-matter jurisdiction data, if required), on or 

about_.-~ 19 

wrongfully (possess) (distribute) (manufacture) (grams) (ounces) 

(pounds)( ~-)of (a 

schedule 

controlled substance), (with the 

intent to distribute the said controlled substance) 

(while on duty as a sentinel or lookout) (while (on 

board a vessellaircraft) (in or at a missile launch 

facility) used by the armed forces or under the control of the armed forces, to wit: ) 

(while receiving special pay under 37 U.S.C. 310) 

(during time of war). 

(2) Wrongful use of controlled substance. . . . . In that (personal junshction 

data), did, (adon board-location) (subject-matter 

jurisdiction data, if required), on or 

about 19 

wrongfully use (a Schedule controlled substance) (while on 

duty as a sentinel or lookout) (while (on board a 

vessellaircraft) (in or at a missile launch facility) 

used by the armed forces or under the control of the 

armed forces, to wit: (while receiving special pay under 37 U.S.C. § 310) (during 

time of war). 

(3) Wrongful introduction of controlled substance. . . . . In that (personal junsdlctlon 

data) did, (atton board-location) on or 

about _...--._....--.p--., 19 ~-

wrongfully introduce (grams) 

(ounces) (pounds) 

of (a Schedule (_~ . _) 

controlled substance) onto a vessel, aircraft, vehicle, 

or installation used by the armed forces or under 

control of the armed forces, to wit: -._ 

(with the intent to distribute the said controlled substance) (while on duty as a sentinel or lookout) 

IV-57 
(while receiving special pay under 37 U.S.C. $ 310) 

(during a time of war). 

(4) Wrongful importation or exportation of controlled substance. .... In that (personal jurisdiction 

data) did, (atlon board-location) on or 

about 19 

wrongfully (import) (export) 

(grams) (ounces) (pounds) 1 

of (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: .-p..p.--- ) 

(during time of war). 

38. Article 113-Misbehavior of sentinel or 

lookout 

a. Text. 

"Any sentinel or look-out who is found drunk or 

sleeping upon his post, or leaves it before he is 

regularly relieved, shall be punished, if the offense 

is committed in time of war, by death or such other 

punishment as a court-martial may direct, but if the 

offense is committed at any other time, by such 

punishment other than death as a court-martial may 

direct." 

b. Elements. 

(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 

or while the accused was receiving special pay 

under 37 U.S.C. !j 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. '%st" 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 

comatose condition. The fact that the accused's 

sleeping resulted from a physical incapacity caused 

by disease or accident is an affirmative defense. See 

R.C.M. 916(i). 

d. Lesser included offenses. 

(1) Drunk on po.rt. 

IV-58 
(a) Article 1 12--drunk on duty 

(b) Article 92dereliction of duty 

(c) Article 134--drunk on station 

(d) Article 134--drunk in uniform in a public 

place 

(2) Sleeping on post. 

(a) Article 92dereliction of duty 

(b) Article 134-loitering or wrongfully sitting 

down on post 

(3) Leaving post. 

(a) Article 92dereliction of duty 

(b) Article %-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. 8 

310. Dishonorable discharge, forfeiture of all pay 

and allowances, and confinement for 10 years. 

(3) In all other places. Dishonorable discharge, 

forfeiture of all pay and allowances, and confinement for 1 year. 

f. Sample specification. 

In that (personal jurisdiction 

data), on or about (a time of war) 

(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 

found (drunk) (sleeping) upon hisher post) (did 

leave hidher post before he/she was regularly 

relieved). 

39. Article 114--Dueling 

a. Text. 

"Any person subject to this chapter who fights 

or promotes, or is concerned in or connives at fighting a duel, or who, having knowledge of a challenge 

sent or about to be sent, fails to report the fact 

promptly to the proper authority, shall be punished 

as a court-martial may direct." 

b. Elements. 

(1) Dueling. 

(a) That the accused fought another person 

with deadly weapons; 

(b) That the combat was for private reasons; 

and 

(c) That the combat was by prior agreement. 

(2) Promoting a duel. 

(a) That the accused promoted a duel between 

certain persons; and 

(b) That the accused did so in a certain 

manner. 

(3) Conniving at fighting a duel. 

(a) That certain persons intended to and rrere 

about to engage in a duel; 

(b) That the accused had knowledge of the 

planned duel; and 

(c) That the accused connived at the fighting of 

the duel in a certain manner. 

(4) Failure to report a duel. 

(a) That a challenge to fight a duel had been 

sent or was about to be sent; 

(b) That the accused had knowledge of this 

challenge; and 

(c) That the accused failed to report this fact 

promptly to proper authority. 

c. Explanation. 

(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 atfighting a duel. Anyone who has 

knowledge that steps are being taken or have been 

taken toward arranging or fighting a duel and who 

fails to take reasonable preventive action thereby 

connives at the fighting of a duel. 

d. Lesser included offense. Article 80-attempts 

e. Maximum punishment. For all Article 114 offenses: dishonorable discharge, forfeiture of all pay 

and allowances, and confinement for 1 year. 

f. Sampl~ specifications. 

(1) Dueling. 

In that (personal jurisdiction 

data) (and- _-- _ _ ), did, (at/on board-location) (subject-matter jurisdiction data, if required), 

on or about. _ - _- _ 19 _ .._. - , 

fight a duel (with . ), using as weapons therefor (pistols) (swords) -- . _ .). 

(2) Promoting a duel. 

IV-59 
,.. In that (personal junslction 

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

jurisdiction data, if required), on or 

about 19 promote a duel between 

and by (telling 

said helshe would be a coward if 

hetshe failed to challenge said to a 

duel) (knowingly carrying from 

said to said a 

challenge to fight a duel). 

(3) Conniving at figlzting a duel. .... In that ~ -___ ~ (personal jmsdlctlon 

data), having knowledge that-~ ~-

and ~ were about to engage in a duel, did (at/on board-location) (subject-matter jurisdiction data, if required), on or 

about 19 connive at the fighting of said duel by (failing to take 

reasonable preventive action) ). 

(4) Failure to report a duel. .... 

or in a hostile fire pay xnne, add the followin? 

element] 

(4) That the offense was committed (in time of 

war) (in a hostile fire pay zone). 

c. Explanation. 

(1) Nature of ofSense. 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 

In that ~~.. 	 (personal j~n~dl~tl~n which produces, prolongs, or aggravates any sickdata), having knowledge that a challenge to fight a 

duel (had been sent) (was about to be sent) 

by to ~ , did, (at/on 

board-location) (subject-matter jurisdiction data, if 

required), on or about 

19 fail to report that fact promptly 

to the proper authority. 

40. 	Article 115--Malingering 

a. Text. 

"Any person subject to this chapter who for the 

purpose of avoiding work, duty, or servicem-- 

(1) feigns illness, physical disablement, mental 

lapse or derangement; or 

(2) intentionally inflicts self-injury; shall be punished as a court-martial may direct. 

b. Elements. 

(1) That the accused was assigned to, or was 

aware of prospective assignment to, or availability 

for, the performance of work, duty, or service; 

(2) That the accused feigned illness, physical disablement, mental lapse or derangement, or intentionally inflicted injury upon himself or herself; and 

(3) That the accused's purpose or intent in doing 

so was to avoid the work, duty, or service. 

[Note: If the offense was committed in time of war 

IV-60 

ness or disability. Thus, voluntary starvation w!:ich 

results in debility is a self-inflicted injury and when 

done for the purpose of avoiding work, duty, or 

service constitutes a violation of this article. 

d. Lesser included offenses. 

(1) Article 134-self-injury without intent to 

avoid service 

(2) Article 80-attempts 

e. Maximurn 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, phvsical 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 specz3cation. 

In that - (personal jurisdiction 
data), did, (atlon board-location) (in a hostile fire 

pay zone) (subject-matter jurisdiction data, if required) (on or about 

19 (from about 

19 to about 

19 ), (a time of war) for the purpose of avoiding (hisher duty as officer of the day) 

(hisher duty as aircraft mechanic) (work in the mess 

hall) (service as an enlisted person) 

(feign (a headache) (a sore back) 

(illness) (mental lapse) (mental derangement) 

)) (intentionally injure himself1 

herself by ). 

41. Article 116-Riot or breach of peace 

a. Text. 

"Any person subject to this chapter who causes 

or participates in any riot or breach of the peace 

shall be punished as a court-martial may direct." 

b. Elements. 

(1) Riot. 

(a) That the accused was a member of an assembly of three or more persons; 

(b) That the accused and at least two other 

members of this group mutually intended to assist 

one another against anyone who might oppose them 

in doing an act for some private purpose; 

(c) That the group or some of its members, in 

furtherance of such purpose, unlawfully committed a 

tumultuous disturbance of the peace in a violent or 

turbulent manner; and 

(d) That these acts terrorized the public in general in that they caused or were intended to cause 

public alarm or terror. 

(2) Breach of the peace. 

(a) That the accused caused or participated in a 

certain act of a violent or turbulent nature; and 

(b) That the peace was thereby unlawfully 

disturbed. 

c. Explanation. 

(1) Riot. "Riot" is a tumultuous disturbance of the 

peace by three or more persons assembled together 

in furtherance of a common purpose to execute 

some enterprise of a private nature by concerted 

action against anyone who might oppose them, committed in such a violent and turbulent manner as to 

cause or be calculated to cause public terror. The 

gravamen of the offense of riot is terrorization of the 

public. It is immaterial whether the act intended was 

lawful. Furthermore, it is not necessary that the 

common purpose be determined beforc 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 cornmunity 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) Community and public. "Community" and 

"public" include a military organization, post, camp, 

ship, aircraft, or station. 

d. Lesser included offenses. 

(1) Riot. 

(a) Article 1 lbbreach 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) Breach of the peace. Confinement for 6 

months and forfeiture of two-thirds pay per month 

for 6 months. 

f. Sample specifications. 

(1) Riot. 

In that _ - - . (personal jurisdiction 

data), did, (atJon board-location) (subject-matter 

jurisdiction data, if required), on or 

about _ - . 19 . _ . . , (cause) 

(participate in) a riot by unlawfully assembling 

IV-61 
with (and_-_. ~ (and)

(others to the number of about 

whose names are unknown) for the purpose of 

(resisting the police of .) (assaulting 

passers-by) ), and in furtherance 

of said purpose did (fight with said police) (assault 

certain persons, to wit: ) 

), to the terror and disturbance 

of 

(2) Breach of tlie peace. .... In that (personal juns&chon 

data), did, (atlon board-location) (subject-matter 

jurisdiction data, if required), on or 

abovt - 19 . (cause) 

(participate in) a breach of the peace by (wrongfully 

engaging in a fist fight in the dayroom 

witk (using the following provoking language (toward ~),to wit: " ,"or words to that effect) (wrongfully shouting and singing in a public place, to 

wit:--pp..--..) ). 

42. Article 117-Provoking speeches or 

gestures 

a. Text. 

"Any person subject to this chapter who uses 

provoking .or reproachful words or gestures towards 

any other person subject to this chapter shall be 

punished as a court-martial may direct." 

b. Elements. 

(1) That the accused wrongfully used words or 

gestures toward a certain person; 

(2) That the words or gestures used were provoking or reproachful; and 

(3) That the person toward whom the words or 

gestures were used was a person subject to the code. 

c. Exp2anation. 

(1) In general. As used in this article, 

"provoking" and "reproachful" describe those words 

or gestures which are used in the presence of the 

person to whom they are directed and which a reasonable person would expect to induce a breach of 

the peace under the circumstances. These words and 

gestures do not include reprimands, censures, reproofs and the like which may properly be adrninistered in the interests of training, efficiency, or 

discipline in the armed forces. 

(2) Knowledge. It is not necessary that the accused have knowledge that the person toward whom 

the words or gestures are directed is a person subject 

to the code. 

d. Lesser included offenses. Article 80-attempts 

e. Maximurn punishment. Confinement for 6 months 

and forfeiture of two-thirds pay per month for 6 

months. 

f. Sample specification. . . a .

In that ~ (personal jur~sdlction 

data), did, (atlon board-location) (subject-matter 

jurisdiction data, if required), on or 

about 19 ., wrongfully use (provoking) (reproachful) (words, to wit; " :" or words to that effect) (and) 

(gestures, to wit: ~~ towards (Sergeant U. S. Air Force) 

..-.- 1-

43. Article 118-Murder 

a. Text. 

"Any person subject to this chapter who, without justification or excuse, unlawfully kills a human 

being, when he-" 

(1) has a premeditated design to kill; 

(2) intends to kill or inflict great bodily harm; 

(3) is engaged in an act 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, robbery, or 

aggravated arson; is guilty of murder, and shall suffer such punishment as a court-martial may direct, 

except that if found guilty under clause (1) or (4), he 

shall suffer death or imprisonment for life as a 

court-martial may direct. 

b. Elements. 

(1) Premeditated murder. 

(a) That a certain named or described person is 

dead; 

(b) That the death resulted from the act or 

omission of the accused; 

(c) That the killing was unlawful; and 

(d) That, at the time of the killing, the accused 

had a premeditated design to kill. 

(2) Intent to kill or inflict great bodily ham. 

(a) That a certain named or described person is 

dead; 

IV-62 
(b) That tlie death resulted from the act or 

omission of the accused; 

(c) That the killing was unlawful; and 

(d) That, at the time of the killing, the accused 

had the intent to kill or inflict great bodily harm 

upon a person. 

(3) Act inherently dangerous to 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) That the death resulted from the act or 

omission of the accused; 

(c) That the killing was unlawful; and 

(d) That, at the time of the killing, the accused 

was engaged in the perpetration or attempted perpetration of burglary, sodomy, rape, robbery, or aggravated arson. 

c. Explanation. 

(1) In general. Killing a human being is unlawful 

when done without justification or excuse. See 

R.C.M. 916. Whether an unlawful killing constitutes 

murder or a lesser offense depends upon the circumstances. The offense is committed at the place of the 

act or omission although the victim may have died 

elsewhere. Whether death occurs at the time of the 

accused's act or omission, or at some time thereafter, it must have followed from an injury received 

by the victim which resulted from the act or 

omission. 

(2) Premeditated murder. 

(a) Premeditation. A murder is not premeditated unless the thought of taking life was consciously conceived and the act or omission by which 

it was taken was intended. Premeditated murder is 

murder committed after the formation of a specific 

intent to kill someone and consideration of the act 

intended. It is not necessary that the intention to kill 

have been entertained for any particular or considerable length of time. When a fixed purpose to kill has 

been deliberately formed, it is immaterial how soon 

afterwards it is put into execution. The existence of 

premeditation may be inferred from the 

circumstances. 

(b) Transferred premeditation. When an accused with a premeditated design attempted to unlawfully kill a certain person, but, by mistake or 

inadvertence, killed another person, the accused is 

still criminally responsible for a premeditated murder, because the premeditated design to kill is transferred from the intended victim to the actual victim. 

(c) Intoxication. Voluntary intoxication (see 

R.C.M. 916(1)(2)) not amounting to legal insanity 

may reduce premeditated murder (Article 118(1)) to 

unpremeditated murder (Article 118(2) or (3)) but it 

does not reduce either premeditated murder or unpremeditated murder to manslaughter (Article 119) 

or any other lesser offense. 

(3) Intent to kill or inflict great bodily harm. 

(a) Intent. An unlawful killing without 

premeditation is also murder when the accused had 

either an intent to kill or inflict great bodily harm. It 

may be inferred that a person intends the natural and 

probable consequences of an act purposely done. 

Hence, if a person does an intentional act likely to 

result in death or great bodily injury, it may be 

inferred that death or great bodily injury was intended. The intent need not be directed toward the 

person killed, or exist for any particular time before 

commission of the act, or have previously existed at 

all. It is sufficient that it existed at the time of the 

act or omission (except if death is inflicted in the 

heat of a sudden passion caused by adequate 

provocation-see paragraph 44). For example, a person committing housebreaking who strikes and kills 

the householder attempting to prevent flight can be 

guilty of murder even if the householder was not 

seen until the moment before striking the fatal blow. 

(b) Great bodily harm. "Great bodily harm" 

means serious injury; it does not include minor injulies such as a black eye or a bloody nose, but it does 

include fractured or dislocated bones, deep cuts, tom 

members of the body, serious damage to internal 

organs, and other serious bodily injuries. It is synonymous with the term "grievous bodily harm." 

(c) Iiltoxication. Voluntary intoxication not 

amounting to legal insanity does not reduce unIV-63 
premeditated murder to manslaughter (Article 11 9) 

or any other lesser offense. 

(4) Act inherently dangerous to others. 

(a) Wanton disregard of human life. Intentionally engaging in an act inherently dangerous to 

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, 

robbery, or aggravated arson may be charged 

separately from the homicide. 

d. Lesser included offenses. 

(1) Premeditated murder and murder during certain ofSenses. 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 1 19-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 minimum-imprisonment for life. 

(2) Article 118(2) or (3)-such punishment other 

than death as a court-martial may direct. 

f. Sample specification. 

In that (personal jurisdiction 

data), did, (atlon board-location) (subject-matter 

jurisdiction data, if required), on or 

about 19--~ (with 

premeditation) (while (perpetrating) (attempting to 

perpetrate) murder by means of (shooting himher 

with a rifle) (. ). 

44. Article 119--Manslaughter 

a. Text. 

"(a) Any person subject to this chapter who, 

with an intent to kill or inflict great bodily 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 (ai-ticle 118), directly 

affecting the person; is guilty of involuntary manslaughter and shall be punished as a court-martial 

may direct. 

b. Elements. 

(1) Voluntary manslaughter. 

(a) That a certain named or described person is 

dead; 

(b) That the death resulted from tlie act or 

omission of the accused; 

(c) That the killing was unlawful; and 

(d) That, at the time of the killing, the accused 

had the intent to kill or inflict great bodily harm 

upon the person killed. 

(2) Involuntary manslaughter. 

(a) That a certain named or described person is 

dead; 
(b) That the death resulted from the act or 

omission of the accused; 

(c) That the killing was unlawful; and 

(d) That this act or omission of the accused 

constituted culpable negligence, or occurred while 

the accused was perpetrating or attempting to perpetrate an offense directly affecting the person other 

than burglary, sodomy, rape, robbery, or aggravated 

arson. 

c. Explanution. 

(1) Voluntary manslaughter. 

(a) Nature of offense. An unlawful killing, although done with an intent to kill or inflict great 

bodily harm, is not murder but voluntary manslaughter if committed in the heat of sudden passion 

caused by adequate provocation. Heat of passion 

may result from fear or rage. A person may be 

provoked to such an extent that in the heat of sudden passion caused by the provocation, although not 

in necessary defense of life or to prevent bodily 

harm, a fatal blow may be struck before self-control 

has returned. Although adequate provocation does 

not excuse the homicide, it does preclude conviction 

of murder. 

(b) Nature of provocation. The provocation 

must be adequate to excite uncontrollable passion in 

a reasonable person, and the act of killing must be 

committed under and because of the passion. However, the provocation must not be sought or induced 

as an excuse for killing or doing harm. If, judged by 

the standard of a reasonable person, sufficient cooling time elapses between the provocation and the 

killing, the offense is murder, even if the accused's 

passion persists. Examples of acts which may, 

depending on the circumstances, constitute adequate 

provocation are the unlawful infliction of great bodily harm, unlawful imprisonment, and the sight by 

one spouse of an act of adultery committed by the 

other spouse. Insulting or abusive words or gestures, 

a slight blow with the hand or fist, and trespass or 

other injury to property are not, standing alone, adequate provocation. 

(2) Involuntary manslaughter. 

(a) Culpable negligence. 

(i) Nature of culpable negligence. Culpable 

negligence is a degree of carelessness greater than 

simple negligence. It is a negligent act or omission 

accompanied by a culpable disregard for the foreseeable consequences to others of that act or omission. 

Thus, the basis of a charge of involuntary manslaughter may be a negligent act or omission which, 

when viewed in the light of human experience, 

might foreseeably result in the death of another, 

even though death would not necessarily be a natural and probable consequence of the act or omission. 

Acts which may amount to culpable negligence include negligently conducting target practice so that 

the bullets go in the direction of an inhabited house 

within range; pointing a pistol in jest at another and 

pulling the trigger, believing, but without taking reasonable precautions to ascertain, that it would not be 

dangerous; and carelessly leaving poisons or dangerous drugs where they may endanger life. 

(ii) Legal duty required. When there is no 

legal duty to act there can be no neglect. Thus, when 

a stranger makes no effort to save a drowning person, or a person allows a beggar to freeze or'starve 

to death, no crime is committed. 

(b) Offense directly affecting the person. An 

"offense directly affecting the person" means one 

affecting some particular person as distinguished 

from an offense affecting society in general. Among 

offenses directly affecting the person are the various 

types of assault, battery, false imprisonment, voluntary engagement in an affray, and maiming. 

d. Lesser included offenses. 

(1) Voluntary manslaughter. 

(a) Article 1 19-involuntary manslaughter 

(b) Article 128-assault; assault consummated 

by a battery; aggravated assault 

(c) Article 134--assault with intent to commit 

voluntary manslaughter 

(d) Article 134-negligent homicide 

(e) Article 80-attempts 

(2) Involuntary manslaughter. 

(a) Article 128-assault; assault consummated 

by a battery 

(b) Article 134-negligent homicide 

e. Maximum punishment. 

(1) Voluntary manslauglzter. Dishonorable discharge, 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, (atlon board-location) (subject-matter 

jurisdiction data, if required), on or 

about 19--.-_--p.-., willfully and unlawfully kill-.~ 

by . . himlher (in) (on) 

the with a-_..--_-p.-. 

(2) Involuntary manslaughter. .... In that (personal junshctlon 

data), did, (adon board-location) (subject-matter 

jurisdiction data, if required), on or 

about_-.-..-p-.---..p 19 (by 

culpable negligence) (while (perpetrating) (attempting ti; perpetrate) an offense directly affecting the 

person of_^ to wit: (maiming) (a 

battery) )) unlawfully 

kill ~-by himiher 

(in) (on) the with 

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)(l) 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)(l) 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 

(c) That at the time of the sexual intercourse 

the person was under 16 years of age. 

c. Explanation. 

(1) Rape. 

(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 penetration will suffice. All the surrounding circumstances 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. 

(c) Clzaracter of victim. See Mil. R. Evid. 412 

concerning rules of evidence relating to an alleged 

rape victim's character. 
(2) Carnal knowledge. "Carnal knowledge" is 

sexual intercourse under circumstances not amounting to rape, with a 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, however, 

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 

(h) Article 134-assault with intent to commit 

rape 

(c) Article 134-indecent assault 

(d) Article 80-attempts 

(e) Article 1 2O(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. 

f. Sample specifications. 

(1) Rape. .... In that (personal junsdlctlon 

data), did, (atlon board-location) (subject-matter 

jurisdiction data, if required), on or 

about 19 ~ 

rape (a person who had not attained the age of 16 years). 

(2) Carnal knowledge. . . In that (personal jurisdiction 

data), did, (atJon board-location) (subject-matter 

jurisdiction data, if required), on or 

about- . 19 -, commit 

the offense of carnal knowledge 

with----. 

46. Article 121-Larceny and wrongful 

appropriation 

a. Text. 

"(a) Any person subject to this chapter who 

wrongfully takes, obtains, or withholds, by any 

means, from the possession of the owner or of any 

other person any money, personal property, or article 

of value of any kind-" 

(1) with intent permanently to deprive or defraud another person of the use and benefit of property or to appropriate it to his own use or the use of 

any person other than the owner, steals that property 

and is guilty of larceny; or 

(2) with intent temporarily to deprive or defraud another person of the use and benefit of property or to appropriate it to his own use or the use of 

any person other than the owner, is guilty of wrongful appropriation. 

(b) Any person found guilty of larceny or 

wrongful appropriation shall be punished as a courtmartial may direct. 

b. Elements. 

(1) Larceny. 

(a) That the accused wrongfully took, obtained, 

or withheld certain property from the possession of 

the owner or of any other person; 

(b) That the property belonged to a certain 

person; 

(c) That the property was of a certain value, or 

of some value; and 

(d) That the taking, obtaining, or withholding 

by the accused was with the intent permanently to 

deprive or defraud another person of the use and 

benefit of the property or permanently to appropriate 

the property for the use of the accused or for any 

person other than the owner. 

[Note: If the property is alleged to be military property, as defined in paragraph 32c(l), add the following element] 

(e) That the property was military property. 

(2) Wrongful appropriation. 

(a) That the accused wrongfully took, obtained, 

IV-67 
or withheld certain property from the possession of 

the owner or of any other person; 

(b) That the property belonged to a certain 

person; 

(c) That the property was of a certain value, or 

of some value; and 

(d) That the taking, obtaining, or withholding 

by the accused was with the intent temporarily to 

deprive or defraud another person of the use and 

benefit of the property or temporarily to appropriate 

the property for the use of the accused or for any 

person other than the owner. 

c. Explanation. 

(1) Larceny. 

(a) In general. A wrongful taking with intent 

permanently to deprive includes the common law 

offense of larceny; a wrongful obtaining with intent 

permanently to defraud includes the offense 

formerly known as obtaining by false pretense; and 

a wrongful withholding with intent permanently to 

appropriate includes the offense formerly known as 

embezzlement. Any of the various types of larceny 

under Article 121 may be charged and proved under 

a specification alleging that the accused "did steal" 

the property in question. 

(b) Taking, obtaining, or withholding. There 

must be a taking, obtaining, or withholding of the 

property by the thief. For instance, there is no taking 

if the property is connected to a building by a chain 

and the property has not been disconnected from the 

building; property is not "obtained" by merely acquiring title thereto without exercising some possessory control over it. As a general rule, however, any 

movement of the property or any exercise of dorninion over it is sufficient if accompanied by the requisite intent. Thus, if an accused enticed another's 

horse into the accused's stable without touching the 

animal, or procured a railroad company to deliver 

another's trunk by changing the check on it, or obtained the delivery of another's goods to a person or 

place designated by the accused, or had the funds of 

another transferred to the accused's bank account, 

the accused is guilty of larceny if the other elements 

of the offense have been proved. A person may 

"obtain" the property of another by acquiring possession without title, and one who already has possession of the property of another may "obtain" it by 

later acquiring title to it. A "withholding" may arise 

as a result of a failure to return, account for, or 

deliver property to its owner when a return, accounting, or delivery is due, even if the owner has made 

no demand for the property, or it may arise as a 

result of devoting property to a use not authorized 

by its owner. Generally, this is so whether the person withholding the property acquired it lawfully or 

unlawfully. See subparagraph c(l)(f) below. However, acts which constitute the offense of unlawfully 

receiving, buying, or concealing stolen property or 

of being an accessory after the fact are not included 

within the meaning of "withholds." Therefore, neither a receiver of stolen property nor an accessory 

after the fact can be convicted of larceny on that 

basis alone. The taking, obtaining, or withholding 

must be of specific property. A debtor does not 

withhold specific property from the possession of a 

creditor by failing or refusing to pay a debt, for the 

relationship of debtor and creditor does not give the 

creditor a possessory right in any specific money or 

other property of the debtor. 

(c) Ownership of the property. 

(i) In general. Article 121 requires that the 

taking, obtaining, or withholding be from the possession of the owner or of any other person. Care, 

custody, management, and control are among the 

definitions of possession. 

(ii) Owner. "Owner" refers to the person 

who, at the time of the taking, obtaining, or withholding, had the superior right to possession of the 

property in the light of all conflicting interests 

therein which may be involved in the particular case. 

For instance, an organization is the true owner of its 

funds as against the custodian of the funds charged 

with the larceny thereof. 

(iii) Any other person. "Any other person" 

means any person-ven 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 

witl~holding.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 that person presently intends to perform 

a certain act in the future is a false representation of 

an existing fact-the intention-and thus a false pretense. Although the pretense need not be the sole 

cause inducing the owner to part with the property, 

it must be an effective and intentional cause of the 

obtaining. A false representation made after the 

property was obtained will not result in a violation 

of Article 121. A larceny is committed when a person obtains the property of another by false pretense 

and with intent to steal, even though the owner neither intended nor was requested to part with title to 

the property. Thus, a person who gets another's 

watch by pretending that it will be borrowed briefly 

and then returned, but who really intends to sell it, is 

guilty of larceny. 

(f) Intent. 

(i) In general. The offense of larceny requires that the taking, obtaining, or withholding by 

the thief be accompanied by an intent permanently 

to deprive or defraud another of the use and benefit 

of property or permanently to appropriate the property to the thief s own use or the use of any person 

other than the owner. These intents are collectively 

called an intent to steal. Although a person gets 

property by a taking or obtaining which was not 

wrongful or which was without a concurrent intent 

to steal, a larceny is nevertheless committed if an 

intent to steal is formed after the taking or obtaining 

and the property is wrongfully withheld with that 

intent. For example, if a person rents another's vehicle, later decides to keep it permanently, and then 

either fails to return it at the appointed time or uses 

it for a purpose not authorized by the terms of the 

rental, larceny has been committed, even though at 

the time the vehicle was rented, the person intended 

to return it after using it according to the agreement. 

(ii) Inference of intent. An intent to steal 

may be proved by circumstantial evidence. Thus, if 

a person secretly takes property, hides it, and denies 

knowing anything about it, an intent to steal may be 

inferred; if the property was taken openly and returned, this would tend to negate such an intent. 

Proof of sale of the property may show an intent to 

steal, and therefore, evidence of such a sale may be 

introduced to support a charge of larceny. An intent 

to steal may be inferred from a wrongful and intentional dealing with the property of another in a manner likely to cause that person to suffer a permanent 

loss thereof. 

(iii) Special situations. 

(A) Motive does not negate intent. The accused's purpose in taking an item ordinarily is irrelevant to the accused's guilt as long as the accused 

had the intent required under subparagraph c(l)(f)(i) 

above. For example, if the accused wrongfully took 

property as a "joke" or "to teach the owner a lesson" 

this would not be a defense, although if the accused 

intended to return the property, the accused would 

be guilty of wrongful appropriation, not larceny. 

When a person takes property intending only to reIV-69 
turn it to its lawful owner, as when stolen property 

is taken from a thief in order to return it to its 

owner, larceny or wrongful appropriation is not 

committed. 

(B) Intent to pay for or replace property 

not a defense. An intent to pay for or replace the 

stolen property is not a defense, even if that intent 

existed at the time of the theft. If, however, the 

accused takes money or a negotiable instrument having no special value above its face value, with the 

intent to return an equivalent amount of money, the 

offense of larceny is not committed although wrongful appropriation may be. 

(C) Return of property not a defense. 

Once a larceny is committed, a return of the property or payment for it is no defense. See subparagraph c(2) below when the taking, obtaining, or 

withholding is with the intent to return. 

(g) Value. 

(i) In general. Value is a question of fact to 

be deterinined on the basis of all of the evidence 

admitted. 

(ii) Governntent 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 

value of other stolen property is its legitimate 

market value at the time and place of the theft. If 

this property, because of its character or the place 

where it was stolen, had no legitimate market value 

at the time and place of the theft or if that value 

cannot readily be ascertained, its value may be determined by its legitimate market value in the United 

States at the time of the theft, or by its replacement 

cost at that time, whichever is less. Market value 

may be established by proof of the recent purchase 

price paid for the article in the legitimate market 

involved or by testimony or other admissible evidence from any person who is familiar through 

training or experience with the market value in question. The owner of the property may testify as to its 

market value if familiar with its quality and condition. The fact that the owner is not an expert of the 

market value of the property goes only to the weight 

to be given that testimony, and not to its adrnissibility. 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 $100.00, the court-martial may 

find a value of more than $100.00. Writings 

representing value may be considered to have the 

value-even though contingent-which they represented at the time of the theft. 

(iv) Limited interest in property. If an owner 

of property or someone acting in the owner's behalf 

steals it from a person who has a superior, but limited, interest in the property, such as a lien, the value 

for punishment purposes shall be that of the limited 

interest. 

(h) Miscellaneous considerations. 

(i) Lost property. A taking or withholding of 

lost property by tlie finder is larceny if accompanied 

by an intent to steal and if a clue to the identity of 

the general or special owner, or through which such 

identity may be traced, is furnished by the character, 

location, or marketing of the property, or by other 

circumstances. 

(ii) Multiple article larceny. When a larceny 

of severai articles is committed at substantially the 

same time and place, it is a single larceny even 

though the articles belong to different persons. Thus, 

if a thief steals a suitcase containing the property of 

several persons or goes into a room and takes property belonging to various persons, there is but one 

larceny, which should be alleged in but one 

specification. 

(iii) Special kinds of property which rnay 

also be the subject of larceny. Included in property 

which may be the subject of larceny is property 

which is taken, obtained, or withheld by severing it 

from real estate and writings which represent value 

such as commercial paper. 

(iv) Services. Theft of services may not be 

charged under this paragraph, but see paragraph 78. 

(v) Mail. As to larceny of mail, see also 

paragraph 93. 
(2) Wrongful appropriation. 

(a) In general. Wrongful appropriation requires 

an intent to temporarily-as opposed to permanently--deprive the owner of the use and benefit 

of, or appropriate to the use of another, the property 

wrongfully taken, withheld, or obtained. In all other 

respects wrongful appropriation and larceny are 

identical. 

(b) Examples. Wrongful appropriation includes: 

taking another's automobile without permission or 

lawful authority with intent to drive it a short distance and then return it or cause it to be returned to 

the owner; obtaining a service weapon by falsely 

pretending to be about to go on guard duty with 

intent to use it on a hunting trip and later return it; 

and while driving a government vehicle on a mission to deliver supplies, withholding the vehicle 

from government service by deviating from the assigned route without authority, to visit a friend in a 

nearby town and later restore the vehicle to its lawful use. An inadvertent exercise of control over the 

property of another will not result in wrongful appropriation. For example, a person who fails to return a borrowed boat at the time agreed upon 

because the boat inadvertently went aground is not 

guilty of this offense. 

d. Lesser included oflenses. 

(1) Larceny. 

(a) Article 121-wrongful appropriation 

(b) Article 8CLattempts 

(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 $100 or less. 

Bad-conduct discharge, forfeiture of all pay and allowances, and confinement for l year. 

(b) Property other than military property of a 

value of $100 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 

$100 or of any military motor velzicle, aircraft, vessel, firearnz, 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 $100 or any motor vehicle, aircraft, vessel, firearm, or explosive not included in 

subparagraph e(l)(c). Dishonorable discharge, forfeiture of all pay and allowances, and confinement 

for five years. 

(2) Wrongful appropriation. 

(a) Of a value of $100.00 or less. Confinement 

for 3 months, and forfeiture of two-thirds pay per 

month for 3 months. 

(b) Of a value of more than $100.00. Bad-conduct discharge, forfeiture of all pay and allowances, 

and confinement for 6 months. 

(c) Of any motor vehicle, aircraf, vessel, $rearm, 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 

jurisdiction data, if required), on or 

about 19 

steal __.-,(military property), of a 

value of (about) $ the property 

of . -. ._...-. 

(2) Wrongful appropriation. .... In that (personal junshction 

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

jurisdiction data, if required), on or 

about-.- --.. .-- ...--._-.19____~ . -. wrongfully appropriate , of a value of 

(about) $ the property 

of..- -- .--- -_ --. 

47. Article 122-Robbery 

a. 	Text. 

"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. 

IV-71 
(1) That the accused wrongfully took certain 

property from the person or from the possession and 

in the presence of a person named or described; 

(2) That the taking was against the will of that 

person; 

(3) That the taking was by means of force, violence, or force and violence, or putting the person in 

fear of immediate or future injury to that person, a 

relative, a member of the person's family, anyone 

accompanying the person at the time of the robbery, 

the person's property, or the property of a relative, 

family member, or anyone accompanying the person 

at the time of the robbery; 

(4) That the property belonged to a person named 

or described; 

(5) That the property was of a certain or of some 

value; and 

(6) That the taking of the property by the accused 

was with the intent permanently to deprive the person robbed of the use and benefit of the property. 

[Note: If the robbery was committed with a firearm, 

add the following element] 

(7) That the means of force or violence or of 

putting the person in fear was a firearm. 

c. Explanation. 

(1) Taking in the presence of tlie victim. It is not 

necessary that the property taken be located within 

any certain distance of the victim. If persons enter a 

house and force the owner by threats to disclose the 

hiding place of valuables in an adjoining room, and, 

leaving the owner tied, go into that room and steal 

the valuables, they have committed robbery. 

(2) Force or violence. For a robbery to be committed by force or violence, there must be actual 

force or violence to the person, preceding or accompanying the taking against the person's will, and it is 

immaterial that there is no fear engendered in the 

victim. Any amount of force is enough to constitute 

robbery if the force overcomes the actual resistance 

of the person robbed, puts the person in such a 

position that no resistance is made, or suffices to 

overcome the resistance offered by a chain or other 

fastening by which the article is attached to the 

person. The offense is not robbery if an article is 

merely snatched from the hand of another or a pocket is picked by stealth, no other force is used, and 

the owner is not put in fear. But if resistance is 

overcome in snatching the article, there is sufficient 

violence, as when an earring is tom from a person's 

ear. There is sufficient violence when a person's 

attention is diverted by being jostled by a confederate of a pickpocket, who is thus enabled to steal the 

person's watch, even though the person had no 

knowledge of the act; or when a person is knocked 

insensible and that person's pockets rifled; or when 

a guard steals property from the person of a prisoner 

in the guard's charge after handcuffing the prisoner 

on the pretext of preventing escape. 

(3) Fear. For a robbery to be committed by putting the victim in fear, there need be no actual force 

or violence, but there must be a demonstration of 

force or 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 sufficient gravity to warrant giving up the property 

demanded by the assailant. 

(4) Larceny by taking. Robbery includes "taking 

with intent to steal"; hence, a larceny by taking is an 

integral part of a charge of robbery and must be 

proved at the trial. See paragraph 46c(l). 

(5) Multiple-victirn 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) Article 128-assault with a dangerous 

weapon 

(5) Article 128-assault intentionally inflicting 

grievous bodily harm 

(6) Article 134--assault with intent to rob 

(7) Article 80-attempts 

[Note: More than one lesser included offense may 

be found in an appropriate case because robbery is a 

compound offense. For example, a person may be 

found not guilty of robbery but guilty of wrongful 

appropriation and assault.] 
e. 	Maximum punishment. 

(1) When committed with 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 junsdictlon 

data), did, (atlon board-location) (subject-matter 

jurisdiction data, if required), on or 

about 19 by 

means of (force) (violence) (force and violence) 

(and) (putting hirnther in fear) (with a firearm) steal 

from the (person) (presence) of 

against hisher will, (a watch) of 

value of (about) $~ the property 

of- .__ --..-_ . 

48. Article 123-Forgery 

a. 	Text. 

"Any person subject to this chapter who, with 

intent to defraud-" 

"(1) falsely makes or alters any signature to, or 

any part of, any writing which would, if genuine, 

apparently impose a legal liability on another or 

change his legal right or liability to his prejudice; 

or" 

"(2) utters, offers, issues, or transfers such a 

writing, known by him to be so made or altered; is 

guilty of forgery and shall be punished as a courtmartial 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) That a certain signature or writing was 

falsely made or altered; 

(b) That the signature or writing was of a nature which would, if genuine, apparently impose a 

legal liability on another or change another's legal 

rights or liabilities to that person's prejudice; 

(c) That the accused uttered, offered, issued, or 

transferred the signature or writing; 

(d) That at such time the accused knew that the 

signature or writing had been falsely made or altered; and 

(e) That the uttering, offering, issuing or transferring was with the intent to defraud. 

c. 	Explanation. 

(1) In general. Forgery may be committed either 

by falsely making a writing or by knowingly uttering a falsely made writing. There are three elements 

common to both aspects of forgery: a writing falsely 

made or altered; and apparent capability of the writing as falsely made or altered to impose a legal 

liability on another or to change another's legal 

rights or liabilities to that person's prejudice; and an 

intent to defraud. 

(2) False. "False" refers not to the contents of the 

writing or to the facts stated therein but to the making or altering of it. Hence, forgery is not committed 

by the genuine making of a false instrument even 

when made with intent to defraud. A person who, 

with intent to defraud, signs that person's own signature as the maker of a check drawn on a bank in 

which that person does not have money or credit 

does not commit forgery. Although the check falsely 

represents the existence of the account, it is what it 

purports to be, a check drawn by the actual maker, 

and therefore it is not falsely made. See, however, 

paragraph 49. Likewise, if a person makes a false 

signature of another to an instrument, but adds the 

word "by" with that person's own signature thus 

indicating authority to sign, the offense is not forgery even if no such authority exists. False recitals 

of fact in a genuine document, as an aircraft flight 

report which is "padded" by the one preparing it, do 

not make the writing a forgery. But see paragraph 31 

concerning false official statements. 

(3) Signatures. Signing the name of another to an 

instrument having apparent legal efficacy without 

authority and with intent to defraud is forgery as the 

signature is falsely made. The distinction is that in 

this case the falsely made signature purports to be 

the act of one other than the actual signer. Likewise, 

a forgery may be committed by a person signing that 

person's own name to an instrument. For example, 

when a check payable to the order of a certain perIV-73 
son 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. Maximum punishment. Dishonorable discharge, 

forfeiture of all pay and allowances, and confinement for 5 years. 

f. Sample specijications. 

(1) Forgery-making or altering. 

In that-~ (personal jurisdiction 

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

jurisdiction data, if required), on or 

about 19 with 

intent to defraud, falsely (make (in its entirety) (the 

signature of s as an indorsement to) 

(the signature of to) 

a certain (check) (writing) 


in the following words and fig- 


ures, to wit: (alter a certain (check) 
 . . (wntmg) -.-___) in the following words 

and figures, to wit: by (adding 

thereto (-~ ~__)in the 

following words and figures, to 

wit: would, if genuine, apparently 

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 would 

clearly operate to the legal prejudice of another-for 

example, an insurance application. The manner in 

which the document could be or was used to prejudice the legal rights of another should be alleged in 

the last blank.] 

(2) Forgery-uttering. 

In that (personal jurisdiction 

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

jurisdiction data, if required), on or 

about 19 .-, with 

intent to defraud, (utter) (offer) (issue) (transfer) a 

certain (check) (writing) in the 

following words and figures, to 

wit: a writing which would, if 

genuine, apparently operate to the legal harm of 

another, (which said (check) (writing) 

~ ...)) (the signature to which said 

(check) (writing) ( )) 

IV-74 
( --- ) was, as helshe, the 

said then well knew, falsely 

(made) (altered) (*and which 

(could be) (was) used to the legal harm 

of in that ). 

[Note: See the note following (I), above] 

49. Article 123a-Making, drawing, or 

uttering check, draft, or order without 

sufficient funds 

a. Text. 


"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 courtmartial may direct. The making, drawing, uttering, 

or delivering by a maker or drawer of a check, draft, 

or order, payment of which is refused by the drawee 

because of insufficient funds of the maker or drawer 

in the drawee's possession or control, is prima facie 

evidence of his intent to defraud or deceive and of 

his knowledge of insufficient funds in, or credit 

with, that bank or other depository, unless the maker 

or drawer pays the holder the amount due within 

five days after receiving notice, orally or in writing, 

that the check, draft, or order was not paid on presentment. In this section, the word "credit" means an 

arrangement or understanding, express or implied, 

with the bank or other depository for the payment of 

that check, draft, or order." 

b. Elements. 

(1) For the procurement of any article or thing of 

value, with intent to defraud. 

(a) That the accused made, drew, uttered, or 

delivered a check, draft, or order for the payment of 

money payable to a named person or organization; 

(b) That the accused did so for the purpose of 

procuring an article or thing of value; 

(c) That the act was committed with intent to 

defraud; and 

(d) That at the time of making, drawing, uttering, or 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 prqsentment. 

(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 f~rthe payment of 

money payable to a named person or organization; 

(b) That the accused did so for the purpose or 

purported purpose of effecting the payment of a past 

due obligation or for some other purpose; 

(c) That the act was committed with intent to 

deceive; and 

(d) That at the time of making, drawing, uttering, or delivering of the instrument, the accused 

knew that the accused or the maker or drawer had 

not or would aot have sufficient funds in, or credit 

with, the bank or other depository for the payment 

thereof upon presentment. 

c. Explanation. 

(1) Written instruments. The written instruments 

covered by this article include any check, draft (including share drafts), or order for the payment of 

money drawn upon any bank or other depository, 

whether or not the drawer bank or depository is 

actually in existence. It may be inferred that every 

check, draft, or order carries with it a representation 

that the instrument will be paid in full by the bank 

or other depository upon presentment by a holder 

when due. 

(2) Bank or other depository. "Bank or other depository" includes any business regularly but not 

necessarily exclusively engaged in public banking 

activities. 

(3) Making or drawing. "Making" and "drawing" 

are synonymous and refer to the act of writing and 

signing the instrument. 

(4) Uttering or delivering. "Uttering" and 

"delivering" have similar meanings. Both mean 

transferring the instrument to another, but "uttering" 

has the additional meaning of offering to transfer. A 

person need not personally be the maker or drawer 

of an instrument in order to violate this article if that 

person utters or delivers it. For example, if a person 

holds a check which that person knows is worthless, 

and utters or delivers the check to another, that perIV-75 
son 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. '%r 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) Sufzcient 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 othei legal 

procedures. 

(12) Credit. "Credit" means an arrangement or 

understanding, express or implied, with the bank or 

other depository for the payment of the check, draft, 

or order. An absence of credit includes those situations in which an accused writes a check on a nonexistent bank or on a bank in which the accused has 

no account. 

(13) Upon its presentment. "Upon its presentment" refers to the time the demand for payment is 

made upon presentation of the instrument to the 

bank or other depository on which it was drawn. 

(14) Intent to defaud. "Intent to defraud means 

an intent to obtain, through a misrepresentation, an 

article or thing of value and to apply it to one's own 

use and benefit or to the use and benefit of another, 

either permanently or temporarily. 

(15) Intent to deceive. "Intent to deceive" means 

an intent to mislead, cheat, or trick another by 

means of a misrepresentation made for the purpose 

of gaining an advantage for oneself or for a third 

person, or of bringing about a disadvantage to the 

interests of the person to whom the representation 

was made or to interests represented by that person. 

(16) The relationship of time and intent. Under 

this article, two times are involved: (a) when the 

accused makes, draws, utters, or delivers the instrument; and (1)' when the instrument is presented to 

the bank or other depository for payment. With 

respect to (a), the accused must possess the requisite 

intent and must know that the maker or drawer does 

not have or will not have sufficient funds in, or 

credit with, the bank or the depository for payment 

of the instrument in full upon its presentment when 

due. With respect to (b), if it can otherwise be 

shown that the accused possessed the requisite intent 

and knowledge at the time the accused made, drew, 

uttered, or delivered the instrument, neither proof of 

presentment nor refusal of payment is necessary, as 

when the instrument is one drawn on a nonexistent 

bank. 

(17) Statutory rule of evidence. The provision of 

this article with respect to establishing prima facie 

evidence of knowledge and intent by proof of notice 

and nonpayment within 5 days is a statutory rule of 

evidence. The failure of an accused who is a maker 
or drawer to pay the holder the amount due within 5 

days after receiving either oral or written notice 

from the holder of a check, draft, or order, or from 

any other person having knowledge that such check, 

draft, or order was returned unpaid because of insufficient funds, is prima facie evidence (a) that the 

accused had the intent to defraud or deceive as alleged; and (b) that the accused knew at the time the 

accused made, drew, uttered, or delivered the check, 

draft, or order that the accused did not have or 

would not have sufficient funds in, or credit with, 

the bank or other depository for the payment of such 

check, draft, or order upon its presentment for payment. Prima facie evidence is that evidence from 

which the accused's intent to defraud or deceive and 

the accused's knowledge of insufficient funds in or 

credit with the bank or other depository may be 

inferred, depending on all the circumstances. The 

failure to give notice referred to in the article, or 

payment by the accused, maker, or drawer to the 

holder of the amount due within 5 days after such 

notice has been given, precludes the prosecution 

from using the statutory rule of evidence but does 

not preclude conviction of this offense if all the 

elements are otherwise proved. 

(18) AfSirmative defense. Honest mistake is an affirmative defense to offenses under this article. See 

R.C.M. 916(j). 

d. Lesser included offenses. 

(1) Article 134--making, drawing, uttering or 

delivering a check, draft, or order, and thereafter 

wrongfully and dishonorably failing to maintain sufficient funds 

(2) Article 80-attempts 

e. Maximum punishment. 

(1) For the procirremeizt of any article or thing of 

value, with intent to defraud, in the face amount 08 

(a) $100.00 or less. Bad-conduct discharge, 

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

(b) More than $100.00. Dishonorable discharge, forfeiture of all pay and allowances, and 

confinement for 5 years. 

(2) For the payinent 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. 

In that..- ersonal jurisdiction data), did, (at/on board-location) (subject-matter jurisdiction data, if required), on or 

about 19 with 

intent to defraud and for the procurement of (lawful 

currency) (and) (an article) (a 

thing) of value), wrongfully and unlawfully ((make 

(draw)) (utter) (deliver) to -..-.----A,) a certain (check) (draft) (money order) upon the 

(-..--.Bank) depository) in words and figures as follows, to 

wit: then knowing that (helshe) 

), the (maker) (drawer) thereof, 

did not or would not have sufficient funds in or 

credit with such (bank) (depository) for the payment 

of the said (check) (draft) (order) in full upon its 

presentment. 

(2) For the payment of any past due obligation, 

or for any other purpose, with intent to deceive. 

In that (personal jurisdiction data), did, (at/on board-location) (subject-matter jurisdiction data, if required), on or 

about 19 ~,with 

intent to deceive and for the payment of a past due 

obligation, to wit: (for the purpose 

of wrongfully and unlawfully 

((make) (draw)) (utter) (deliver) to .., a certain (check) (draft) (money order) for the payment of money upon 

Bank) (._ depository), in words and figures as follows, to 

wit:---, then knowing that (helshe) 

), the (maker) (drawer) thereof, 

did not or would not have sufficient iunds in or 

credit with such (bank) (depository) for the payment 

of the said (check) (draft) (order) in full upon its 

presentment. 

50. Article 124--Maiming 

a. Text. 


"Any person subject to this chapter who, with intent 


to injure, disfigure, or disable, inflicts upon the per- 


son 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 

IV-77 
the injury of any member or organ; is guilty of 

maiming and shall be punished as a court-martial 

may direct." 

b. Elements. 

(1) That the accused inflicted a certain injury 

upon a certain person; 

(2) That this injury seriously disfigured the person's body, destroyed or disabled an organ or member, or seriously diminished the person's physical 

vigor by the injury to an organ or member; and 

(3) That the accused inflicted this injury with an 

intent to cause some lnjury 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 

evidence may be considered on the question of 

intent. 

(3) Intent. Maiming requires a specific intent to 

injure generally but not a specific intent to maim. 

Thus, one commits the offense who intends only a 

slight injury, if in fact there is infliction of an injury 

of the type specified in this article. Infliction of the 

type of injuries specified in this article upon the 

person of another may support an inference of the 

intent to injure, disfigure, or disable. 

(4) Defenses. If the injury is done under circumstances which would justify or excuse homicide, the 

offense of maiming is not committed. See R.C.M. 

916. 

d. Lesser included offenses. 

(1) Article 128-assault; assault consummated by 

a battery 

(2) Article 128-assault with a dangerous 

weapon 

(3) Article 128-assault intentionally inflicting 

grievous bodily harm 

(4) Article 80-attempts 

e. Maximum punisliment. Dishonorable discharge, 

forfeiture of all pay and allowances, and confinement for 7 years. 

f. Sample specification. 

In that personal jurisdiction data), 

did, (atlon board-location) (subject-matter jurisdiction data, if required) on or about 

19 maim by 

(crushing hisfher foot with a sledge hammer) 

51. Article 125--Sodomy 

a. Text. 

"(a) Any person subject to this chapter who engages 

in unnatural carnal copulation with another person of 

the same or opposite sex or with an animal is guilty 

of sodomy. Penetration, however slight, is sufficient 

to complete the offense. 

(b) Any person found guilty of sodomy shall 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 either or both of the following elements, 

if applicable) 

(2) That the act was done with a child under the 

age of 16. 

(3) That the act was done by force and without 

the consent of the other person. 

c. Explaization. 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 134-indecent acts with a child 

under 16 

(c) Article 80-attempts 

(2) Forcible sodomy. 

(a) Article 125-sodomy (and offenses included therein; see subparagraph (3) below) 

(b) Article 134-assault with intent to commit 

sodomy 

(c) Article 134-indecent assault 

(d) Article 80-attempts. 

(3) Sodomy. 

(a) Article 134-indecent acts with another 

(b) Article 80-attempts 

e. Maximum punishment. 

(1) By force and without consent. Dishonorable 

discharge, forfeiture of all pay and allowances, and 

confinement for life. 

(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 ofSense. 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. 

f. Sample specij?cation. 

In that _.--(personal jurisdiction data), 

did, (atlon board-location) (subject-matter jurisdiction data, if required), on or about -

19 commit sodomy 

witk-- -..(a child under the age of 16 

years) (by force and without the consent of the 

said -- ). 

52. Article 126-Arson 

a. Text. 

"(a) Any person subject to this chapter who willfully 

and maliciously bums or sets on fire an inhabited 

dwelling, or any other structure, movable or imrnovable, wherein to the knowledge of the offender there 

is at the time a human being, is guilty of aggravated 

arson and shall be punished as a court-martial may 

direct. 

(b) Any person subject to this chapter who willfully and maliciously 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. 

(i) That the accused burned or set on fire a 

certain structure; 

(ii) That the act was willful and malicious; 

(iii) That there was a human being in the 

structure at the time; 

(iv) That the accused knew that there was a 

human being in the structure at the time; and 

(v) That this structure belonged to a certain 

person and was of a certain value. 

(2) Simple arson. 

(a) That the accused burned or set fire to certain property of another; 

(b) That the property was of a certain value; 

and 

(c) That the act was willful and malicious. 

c. Explanation. 

(1) In general. In aggravated arson, danger to human life is the essential element; in simple arson, it 

is injury to the property of another. In either case, it 

is immaterial that no one is, in fact, injured. It must 

be shown that the accused set the fire willfully and 

maliciously, that is, not merely by negligence or 

accident. 

(2) Aggravated arson. 

(a) Inhabited dwelling. An inhabited dwelling 

includes the outbuildings that form part of the cluster of buildings used as a residence. A shop or store 

is not an inhabited dwelling unless occupied as such, 

nor is a house that has never been occupied or 

which has been temporarily abandoned. A person 

IV-79 
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 

other than the offender. See also paragraph 67 

(Burning with intent to defraud). 

d. Lesser included offenses. 

(1) Aggravated arson. 

(a) Article 126-simple arson 

(b) Article 80-attempts 

(2) Simple arson. Article 80-attempts 

e. Maximum punishment. 

(1) Aggravated arson. Dishonorable discharge, 

forfeiture of all pay and allowances, and confinement for 20 years. 

(2) Simple arson, where tlze property is-

(a) Of a value of $100.00 or less. Dishonorable 

discharge, forfeiture of all pay and allowances, and 

confinement for 1 year. 

(b) Of a value of more than $100.00. Dishonorable discharge, forfeiture of all pay and allowances, 

and confinement for 5 years. 

f. Sample spec@cations. 

(1) Aggravated arson. 

(a) Inhabited dwelling. 

In that (personal jurisdiction data), 

did, (adon board-location) (subject-matter jurisdiction data, if required), on or about 

1 9 - - , willfully and maliciously 

(burn) (set on fire) an inhabited dwelling, to wit: 

(the residence ) 

( ), (the property 

of.-_) of a value of (about) 

$--- __ _ -.-. 

(b) Structure. 

In that----_(personal jurisdiction data), 

did, (adon board-location) (subject-matter jurisdiction data, if required), on or 

19 willfully and maliciously 

(bum) (set on fire), knowing that a human being was 

therein at the time, (the Post Theater) 

the property 

of a value of (about) 

$ ~ . (2) Simple arson. 

In that (personal jurisdiction data), 

did, (adon board- location) (subject-matter jurisdiction data, if required), on or about 

willfully and maliciously 

(burn) (set fire to) (an automobile)( ), the property 

of of a value of (about) 

$ -- ..... . 

53. Article 127-Extortion 

a. Text. 

"Any person subject to this chapter who communicates threats to another person with the intention 

thereby to obtain anything of value or any acquittance, advantage, or immunity is guilty of extortion 

and shall be punished as a court-martial may direct." 

b. Elements. 

(I) That the accused communicated a certain 

threat to another; and 

(2) That the accused intended to unlawfully obtain something of value, or any acquittance, advantage, or immunity. 

c. Explanation. 

(1) In general. Extortion is complete upon comIV-80 
munication 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 inay 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 

impute any deformity or disgrace to the person 

threatened or to any member of that person's family 

or any other person held dear to that person; a threat 

to expose any secret affecting the person threatened 

or any member of that person's family or any other 

person held dear to that person; or a threat to do any 

other harm. 

(3) Acquittance. An "acquittance" is a release or 

discharge from an obligation. 

(4) Advantage or immunity. Unless it is clear 

from the circumstances, the advantage or immunity 

sought should be described in the specification. An 

intent to make a person do an act against that person's will is not, by itself, sufficient to constitute 

extortion. 

d. Lesser included offenses. 

(1) Article 134--communicating a threat 

(2) Article 80-attempts 

e. Maximurn punishment. Dishonorable discharge, 

forfeiture of all pay and allowances, and confinement for 3 years. 

f. Sample spec@cation. 

In that.---(personal jurisdiction data), 

did, (atlon board-location) (subject-matter jurisdiction data, if required), on or about 

1 9 with intent unlawfully to obtain (something of value) (an acquittance) (an advantage, to wit (an immunity, to 

wit ), communicate 

to a threat to (here describe the 

threat). 

54. Article 128-Assault 

a. Text. 

"(a) Any person subject to this chapter who attempts 

or offers with unlawful force or violence to do bodily harm to another person, whether or not the attempt or offer is consummated, is guilty of assault 

and shall be punished as a court-martial may direct. 

(b) Any person subject to this chapter who- 

(1) commits an assault with a dangerous weapon 

or other means or force likely to produce death or 

grievous bodily harm; or 

(2) commits an assault and intentionally inflicts 

grievous bodily harm with or without a weapon; is 

guilty of aggravated assault and shall be punished as 

a court-martial may direct." 

b. Elements. 

(1) Simple assault. 

(a) That the accused attempted or offered to do 

bodily harm to a certain person; and 

(b) That the attempt or offer was done with 

unlawful force or violence. 

(2) Assault consumrnated by a battery. 

(a) That the accused did bodily harm to a certain person; and 

(b) That the bodily harm was done with unlawful force or violence. 

(3) Assaults permitting increased punishment 

based on status of victim. 

(a) Assault upon a commissioned, warrant, 

noncommissioned, or petty oficer. 

(i) That the accused attempted to do, offered 

to do, or did bodily harm to a certain person; 

(ii) That the attempt, offer, or bodily harm 

was done with unlawful force or violence; 

(iii) That the person was a commissioned, 

warrant, noncommissioned, or petty officer; and 

(iv) That the accused then knew that the person was acommissioned, warrant, noncommissioned, 

or petty officer. 

(b) Assault upon a sentinel or lookout in the 

execution of duty, or upon a person in the execution 

of law enforcement duties. 

(i) That the accused attempted to do, offered 

to do, or did bodily harm to a certain person; 

(ii) That the attempt, offer, or bodily harm 

was done with unlawful force or violence; 

(iii) That the person was a sentinel or lookout in the execution of duty or was a person who 

then had and was in the execution of security police, 

military police, shore patrol, master at arms, or other 

military or civilian law enforcement duties; and 
(iv) That the accused then knew that the person was a sentinel or lookout in the execution of 

duty or was a person who then had and was in the 

execution of security police, military police, shore 

patrol, master at arms, or other military or civilian 

law enforcement duties. 

(c) Assault consummated by a battery upon a 

child under 16 years. 

(i) That the accused did bodily harm to a 

certain person; 

(ii) That the bodily harm was done with unlawful force or violence; and 

(iii) That the person was then a child under 

the age of 16 years. 

(4) Aggravated assault. 

(a) Assault with a dangerous weapon or other 

means 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: When a loaded firearm was used, add the 

following element) 

(v) That the weapon was a loaded firearm. 

(b) Assault in which grievous bodily harm is 

intentionally inflicted. 

(i) That the accused assaulted a certain 

person; 

(ii) That grievous bodily harm was thereby 

inflicted upon such person; 

(iii) That the grievous bodily harm was done 

with unlawful force or violence; and 

(iv) That the accused, at the time, had the 

specific intent to inflict grievous bodily harm. 

(Note: When a loaded firearm was used, add the 

following element) 

(v) That the injury was inflicted with a loaded 

firearm. 

c. Explanation. 

(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 

reasonable apprehension of receiving immediate 

bodily harm. Specific intent to inflict bodily harm is 

not required. 

(iii) Examples. 

(A) If Doe swings a fist at Roe's head intending to hit Roe but misses, Doe has committed an 

attempt type assault, whether or not Roe is aware of 

the attempt. 

(B) If Doe swings a fist in the direct of Roe's 

head either intentionally or as a result of culpable 

negligence, and Roe sees the blow coming and is 

thereby put in apprehension of being struck, Doe has 

committed an offer type assault whether or not Doe 

intended to hit Roe. 

(C) If Doe swings at Roe's head, intending to 

hit it, and Roe sees the blow coming and is thereby 

put in apprehension of being struck, Doe has committed both on offer and an attempt type assault. 

(D) If Doe swings at Roe's head simply to 

frighten Roe, not intending to hit Roe, and Roe does 

not see the blow and is not placed in fear, then no 

assault of any type has been committed. 

(c) Situations not amounting to assault. 

(i) Mere preparation. Preparation not 

amounting to an overt act, such as picking up a 

stone without any attempt or offer to throw it, does 

not constitute an assault. 

(ii) Threatening words. The use of threatening words alone does not constitute an assault. However, if the threatening words are accompanied by a 

IV-82 
menacing act or gesture, there may be an assault, 

since the combination constitutes a demonstration of 

violence. 

(iii) Circumstances negating intent to harm. 

If the circumstances known to the person menaced 

clearly negate an intent to do bodily harm there is 

no assault. Thus, if a person accompanies an apparent attempt to strike another by an unequivocal announcement in some form of an intention not to 

strike, there is no assault. For example, if Doe raises 

a stick and shakes it at Roe within striking distance 

saying, "If you weren't an old man, I would knock 

you down," Doe has committed no assault. However, an offer to inflict bodily injury upon another 

instantly if that person does not comply with a 

demand which the assailant has no lawful right to 

make is an assault. Thus, if Doe points a pistol at 

Roe and says, "If you don't hand over your watch, I 

will shoot you," Doe has committed an assault upon 

Roe. See also paragraph 47 (robbery) of this part. 

(d) Situations not constituting defenses to 

assault. 

(i) Assault attempt fails. It is not a defense to 

a charge of assault that for some reason unknown to 

the assailant, an assault attempt was bound to fail. 

Thus, if a person loads a rifle with what is believed 

to be a good cartridge and, pointing it at another, 

pulls the trigger, that person may be guilty of assault 

although the cartridge was defective and did not fire. 

Likewise, if a person in a house shoots through the 

roof at a place where a policeman is believed to be, 

that person may be guilty of assault even though the 

policeman is at another place on the roof. 

(ii) Retreating victim. An assault is complete 

if there is a demonstration of violence and an apparent ability to inflict bodily injury causing the person 

at whom it was directed to reasonably apprehend 

that unless the person retreats bodily harm will be 

inflicted. This is true even though the victim retreated and was never within actual striking distance 

of the assailant. There must, however, be an apparent present ability to inflict the injury. Thus, to aim 

a pistol at a person at such a distance that it clearly 

could not injure would not be an assault. 

(2) Battery. 

(a) In general. A "battery" is an assault in 

which the attempt or offer to do bodily harm is 

consummated by the infliction of that harm. 

(b) Application of force. The force applied in a 

battery may have been directly or indirectly applied. 

Thus, a battery can be committed by inflicting bodily injury on a person through striking the horse on 

which the person is mounted causing the horse to 

throw the person, as well as by striking the person 

directly. 

(c) Examples of battely. 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 cloths while the person is wearing them 

though without touching or intending to touch the 

person, shoot a person, cause a person to take 

poison, or drive an automobile into a person. A 

person who, although excused in using force, uses 

more force than is required, commits a battery. 

Throwing an object into a crowd may be a battery 

on anyone whom the object hits. 

(d) Situations not constituting battery. If bodily 

harm is inflicted unintentionally and without culpable negligence, there is no battery. It is also not a 

battery to touch another to attract the other's attention or to prevent injury. 

(3) Assaults permitting increased punisltment 

based on status of victims. 

(a) Assault upon a commissioned, warrant, 

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 element of this offense and may be proved by 

circumstantial evidence. See paragraph 38c(4) for 

the definition of "sentinel or lookout." 

IV-83 
(c) Assault consummated by a battery upon a 

child under 16 years of age. The maximum punishment is increased when assault consummated by a 

battery is committed upon a child under 16 years of 

age. Knowledge that the person assaulted was under 

16 years of age is not an element of this offense. 

(4) Aggravated assault. 

(a) Assault with a dangerous weapon or other 

means or force likely to produce death or grievous 

bodily harm. 

(i) Dangerous weapon. A weapon is dangerous when used in a manner likely to produce 

death or grievous bodily harm. 

(ii) Other means or force. The phrase "other 

means or force" may include any means or instrumentality not normally considered a weapon. When 

the natural and probable consequence of a particular 

use of any means or force would be death or grievous bodily harm, it may be inferred that the means 

or force is "likely" to produce that result. The use to 

which a certain kind of instrument is ordinarily put 

is irrelevant to the question of its method of employment in a particular case. Thus, a bottle, beer glass, 

a rock, a bunk adaptor, a piece of pipe, a piece of 

wood, boiling water, drugs, or a rifle butt may be 

used in a manner likely to inflict death or grievous 

bodily harm. On the other hand, an unloaded pistol, 

when presented as a firearm and not as a bludgeon, 

is not a dangerous weapon or a means 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, tom members of the body, serious damage to internal organs, and other serious bodily 

injuries. 

(iv) Death or injury not required. It is not 

necessary that death or grievous bodily harm be actually inflicted to prove assault with a dangerous 

weapon or means likely to produce grievous bodily 

harm. 

(b)Assault in which grievous bodily harm is 

intentionally inflicted. 

(i) In general. It must be proved that the 

accused specifically intended to and did inflict grievous bodily harm. Culpable negligence will not 

suffice. 

(ii) Proving intent. Specific intent may be 

proved by circumstantial evidence. When grievous 

bodily harm has been inflicted by means of intentionally using force in a manner likely to achieve 

that result, it may be inferred that grievous bodily 

harm was intended. On the other hand, that inference might not be drawn if a person struck another 

with a fist in a sidewalk fight even if the victim fell 

so that the victim's head hit the curbstone and a 

skull fracture resulted. It is possible, however, to 

commit this kind of aggravated assault with the fists, 

as when the victim is held by one of several assailants while the others beat the victim with their fists 

and break a nose, jaw, or rib. 

(iii) Grievous bodily harm. See subparagraph 

(4)(a)(iii). 

d. Lesser included offenses. 

(1) Simple assault. None 

(2) Assault consummated by a battery. Article 

128-simple assault 

(3) Assault upon a commissioned, warrant, noncommissioned, or petty officer. Article 128-simple 

assault; assault consummated by a battery 

(4) Assault upon a sentinel or lookout in the execution of duty, or upon a person in the execution of 

police duties. Article 128-simple assault; assault 

consummated by a battery 

(5) Assault consummated by a battery upon a 

child under 16 years. Article 128-simple assault; 

assault consummated by a battery 

(6) Assault with a dangerous weapon or other 

means or force likely to produce death or grievous 

bodily ham. Article 128-simple assault; assault 

consuhated by a battery 

(7) Assault in which grievous bodily harm is intentionally inflicted. Article 128-assault with a 

dangerous weapon; simple assault; assault consummated by a battery 

e. Maximum punishment. 

(1) Simple assault. 

(A) Generally. Confinement for 3 months and 

forfeiture of two-thirds pay per month for 3 months. 

(B) When committed with an unloaded jireann. 

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 fviendly 

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 pe$orming security police, 

military police, shore patrol, master at arms, or 

other military or civilian law enforcement duties. 

Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 3 years. 

(7) Assault consummated by a battery upon a 

child under 16 years. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 

2 years. 

(8) Assault with a dangerous weapon or other 

means of force to produce death or grievous bodily 

harm. 

(a) When committed with a loaded firearm. 

Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 8 years. 

(b) Other cases. Dishonorable discharge, forfeiture of all pay and allowances, and confinement 

for 3 years. 

(9) Assault in which grievous bodily harm is intentionally inflicted. 

(a) When the injury is inflicted with a loaded 

firearm. Dishonorable discharge, forfeiture of all pay 

and allowances, and confinement for 10 years. 

(b) Other cases. Dishonorable discharge, forfeiture of all pay and allowances, and confinement 

for 5 years. 

f. Sample speci$cations. 

(1) Simple assault. 

In that (personal jurisdiction data), 

did, (at/on board-location), (subject-matter jurisdiction data, if required), on or about-- -.-

19-- assault by 

(striking at himlher with a- --1 

( .-. ). 

(2) Assault consummuted by a battery. 

.... In that ._(personal jurisdiction data), 

did, (adon board-location) (subject-matter jurisdiction data, if required), on or about. -~ 

19 unlawfully (strike) 

( on) (in) 

the with 

(3) Assault upon a commissioned officer. 

In that (personal jurisdiction data), 

did, (adon board-location) (subject-matter jurisdiction data, if required), on or about 

19 assault____--_-.,who 

then was and was then known by the accused to be a 

commissioned officer of (--.. , a 

friendly foreign power) (the United States(Army) 

(Navy) (Marine Corps) (Air Force) (Coast Guard)) 

by 

(4) Assault upon a warrant, noncommissioned, or 

petty officer. 

In that (personal jurisdiction data), 

did, (at/on board-location) (subject-matter jurisdiction data, if required), on or about- ---

19 assault- , who 

then was and was then known by the accused to be a 

(warrant) (noncommissioned) (petty) officer of the 

United States (Army) (Navy) (Marine Corps) (Air 

Force) (Coast Guard), by. 

(5) Assault upon a sentinel or lookout. 

In that (personal jurisdiction data), 

did, (at/on board-location) (subject-matter jurisdiction data, if required), on or about-~ 

19 assault who 

then was and was then known by the accused to be a 

(sentinel) (lookout) in the execution of hisher duty, 

((in) (on) 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 

19 assault who 

then was and was then known by the accused to be a 

person then having and in the execution of (Air 

Force security police) (military police) (shore patrol) 

(master at arms) ((military) (civilian) law enforcement)) duties, by 

(7) Assault consummated by a battery upon a 

child under 16 years. 

IV-85 
In that (personal jurisdiction data), 

did, (at/on board-location) (subject-matter jurisdiction data, if required), on or about -- --. .-. 

unlawfully (strike) 

a child under 

the age of 16 years, (in) (on) the----- 

with__ 

(8) Assault, aggravated-with a dangerous weapon, means, or force. 

In that (personal jurisdiction data), 

did, (at/on board-location) (subject-matter jurisdiction data, if required), on or about 

commit an assault 

upon by (shooting) (pointing) . . (strrlung) (cutting) (at himher) 

(himher) (in) (on) (the with (a 

dangerous weapon) (a (means) (force) likely to produce death or grievous bodily harm), to wit: a 

(loaded firearm) (pickax) (bayonet) (club) 

(----. .-1.

(9) Assault, aggravated-inflicting grievous bodily ham. 

In that (personal jurisdiction data), 

did, (atlon board-location) (subject-matter jurisdiction data, if required), on or about 

with the intent to commit an offense punishable 

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 l18 through 128, necessarily includes an offense within one of these 

articles, satisfies the intent element of this article. 

This includes, for example, assaults punishable 

under Article 134 which necessarily include simple 

assault under Article 128. 

(2) Breaking. There must be a breaking, actual or 

constructive. Merely to enter through a hole left in 

the wall or roof or through an open window or door 

will not constitute a breaking; but if a person moves 

any obstruction to entry of the house without which 

movement the person could not have entered, the 

person has committed a "breaking." Opening a 

closed door or window or other similar fixture, 

opening wider a door or window already partly open 

but insufficient for the entry, or cutting out the glass 

of a window or the netting of a screen is a sufficient 19 , commit an assault 

upon by (shooting) (striking) (cutting) (--~ . ) (himlher) (on) 

breaking. The breaking of an inner door by one who 

has entered the house without breaking, or by a 

the with a (loaded firearm) (club) 

(rock) (brick) and did thereby intentionally inflict grievous bodily harm upon him/ 

her, to wit: a (broken leg) (deep cut) (fractured 

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 construc- skull) (-.). 

55. Article 129--Burglary 

tive 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 

a. Text. 

"Any person subject to this chapter who, with intent 

to commit an offense punishable under sections 918- 

928 of this title (articles 118-128), breaks and enters, 

in the nighttime, the dwelling house of another, is 

guilty of burglary and shall be punished as a courtmartial may direct." 

b. Elements. 

(1) That the accused unlawfully broke and 

entered the dwelling house of another; 

(2) That both the breaking and entering were 

done in the nighttime; and 

(3) That the breaking and entering were done 

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 beIV-86 
tween sunset and sunrise when there is not sufficient 

daylight to discern a person's face. 

(5) Dwelling house of another. To constitute burglary the house must be the dwelling house of another. "Dwelling house" includes outbuildings 

within the common inclosure, farmyard, or cluster of 

buildings used as a residence. Such an area is the 

"curtilage." A store is not a dwelling house unless 

part of, or also used as, a dwelling liouse, as when 

the occupant uses another part of the same building 

as a dwelling, or when the store in habitually slept 

in by family members or employees. The house 

must be used as a dwelling at the time of the breaking and entering. It is not necessary that anyone 

actually be in it at the time of the breaking and 

entering, but if the house has never been occupied at 

all or has been left without any intention of returning, it is not a dwelling house. Separate dwellings 

within the same building, such as a barracks room, 

apartment, or a room in a hotel, are subjects of 

burglary by other residents or guests, and in general 

by the owner of the building. A tent is not a subject 

of burglary. 

(6) Intent to cor~irnit offense. Both the breaking 

and entry must be done with the intent to commit in 

the house an offense punishable under Articles 1 18 

through 128, except 123a. If, after tlie breaking and 

entering, the accused commits one or more of these 

offenses, it may be inferred that the accused intended to commit the offense or offenses at the time 

of the breaking and entering. If the evidence warrants, the intended offense may be separately 

charged. It is immaterial whether the offense intended is committed or even attempted. If tlie offense is intended, it is no defense that its 

commission was impossible. 

(7) Separate offense. If the evidence warrants, the 

intended offense in the burglary specification may 

be separately charged. 

d. Lesser inclrided offenses. 

(1) Article 130-housebreaking 

(2) Article 134-unlawful entry 

(3) Article 80-attempts 

e. Maxirlirrm prmislrrttent. Dishonorable discharge, 

forfeiture of all pay and allowances, and confinement for 10 years. 

f. Sarrrple specification. 


In that _ (personal jurisdiction data), 


did, at ,(subject-matter jurisdiction 


data, if required), on or about 

19 ... . in the nighttime, unlawfully 

break and enter the (dwelling house) 

within the curtilage) 

of with intent to commit (murder) 

(larceny) ) therein. 

56. Article 130-Housebreaking 

a. Text. 

"Any person subject to this chapter who unlawfully 

enters the building or structure of another with intent 

to commit a criminal offense therein is guilty of 

housebreaking and shall be punished as a court-martial may direct." 

b. Elements. 

(1) That the accused unlawfully entered a certain 

building or structure of a certain other person; and 

(2) That the unlawful entry was made with the 

intent to commit a criminal offense therein. 

c. Explanation. 

(1) Scope of offense. The offense of housebreaking is broader than burglary in that the place entered 

is not required to be a dwelling house; it is not 

necessary that the place be occupied; it is not essential that there be a breaking; the entry may be either 

in the night or in the daytime; and the intent need 

not be to commit one of the offenses made punishable under Articles 1 18 through 128. 

(2) Intent. The intent to commit some criminal 

offense is an essential element of housebreaking and 

must be alleged and proved to support a conviction 

of this offense. If, after the entry the accused committed a criminal offense inside the building or 

structure, it may be inferred that the accused intended to commit that offense at the time of the 

entry. 

(3) Crirnit~nl 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) Rtrilding, strrrcture. "Building" includes a 

room, shop, store, office, or apartment in a building. 

"Structure" refers only to those structures which are 

in the nature of a building or dwelling. Examples of 

these structures are a stateroom, hold, or other compartment of a vessel, an inhabitable trailer, an inclosed truck or freight car, a tent, and a houseboat. It 

is not necessary that the building or structure be in 

use at the time of the entry. 

IV-87 
(5) Entry. See paragraph 55c(3). 

(6) Separate offense. If the evidence warrants, the 

intended offense in the housebreaking specification 

may be separately charged. 

d. Lesser included offenses. 

(1) Article 134--unlawful entry 

(2) Article 80-attempts 

e. Maximum punishment. Dishonorable discharge, 

forfeiture of all pay and allowances, and continement for 5 years. 

f. Sample specification. 

In that (personal jurisdiction data), 

did. (ation board-location) (subject-matter jurisdiction data, if required), on or about-- 

19 unlawfully enter a (dwelling) 

(room) (bank) (store) (warehouse) (shop) (tent) 

(stateroom) ), the property 

of with intent to commit a criminal offense, to wit: therein. 

57. Article 131-Perjury 

a. Text. 

"Any person subject to this chapter who in a judicial 

proceeding or in a course of justice willfully and 

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 affmation in a certain judicial proceeding or course of 

justice; 

(b) That the oath or affirmation was administered to the accused in a matter in which an oath or 

affirmation was required or authorized by law; 

(c) That the oath or affmation was administered by a person having authority to do so; 

(d) That upon the oath or affiirmation 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 

trial by court-martial and "course of justice" includes an investigation conducted under Article 32. 

If the accused is charged with having committed 

perjury before a court-martial, it must be shown that 

the court-martial was duly constituted. 

(2) Giving false testinwny. 

(a) Nature. The testimony must be false and 

must be willfully and corruptly given; that is, it must 

be proved that the accused gave the false testimony 

willfully and did not believe it to be true. A witness 

may commit perjury by testifying to the truth of a 

matter when in fact the witness knows nothing about 

it at all or is not sure about it, whether the thing is 

true or false in fact. A witness may also commit 

perjury in testifying falsely as to a belief, remembrance, or impression, or as to a judgment or opinion. It is no defense that the witness voluntarily 

appeared, that the witness was incompetent as a witness, or that the testimony was given in response to 

questions that the witness could have declined to 

answer. 

(b) Material matter. The false testimony must 

be with respect to a material matter, but that matter 

need not be the main issue in the case. Thus, perjury 

may be committed by giving false testimony with 

respect to the credibility of a material witness or in 

an affidavit in support of a request for a continuance, as well as by giving false testimony with 

respect to a fact from which a legitimate inference 
may be drawn as to the existence or nonexistence of 

a fact in issue. Whether the allegedly false testimony 

was with respect to a material matter is a question of 

law to be determined as an interlocutory question. 

(c) Pro08 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+r 

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 adrninistered conforms in substance to the prescribed form. 

"Oath" includes an affirmation when the latter is 

authorized in lieu of an oath. 

(e) Belief of accused. The fact that the accused 

did not believe the statement to be true may be 

proved by testimony of one witness without corroboration or by circumstantial evidence. 

(3) Subscribing false statement. See subparagraphs (1) and (2), above, as applicable. Section 

1746 of title 28, United States Code, provides for 

subscribing to the truth of a document by signing it 

expressly subject to the penalty for perjury. The 

signing must take place in a judicial proceeding or 

course of justice-for example, if a witness signs 

under penalty of perjury summarized testimony 

given at an Article 32 investigation. It is not required that the document be sworn before a third 

party. Section 1746 does not change the requirement 

that a deposition be given under oath or alter the 

situation where an oath is required to be taken 

before a specific person. 

d. Lesser included offense. Article 80-attempts. 

e. Maximum punishment. Dishonorable discharge, 

forfeiture of all pay and allowances, and confinement for 5 years. 

f. Sample specifications. 

(1) Giving false testimony. 

In that (personal jurisdiction data), 

having taken a lawful (oath) (affiation) in a (trial 

b Y court-martial 

of _ )(trial by a court of competent 

jurisdiction, to wit: 

of- ) (deposition for use in a trial 

b Y 0 f - ) 

( ) that helshe would (testify) (depose) truly, did, (adon board-location) (subjectmatter jurisdiction data, if required), on or 

about 19 willfully, corruptly, and contrary to such (oath) (affiation), (testify) (depose) falsely in substance 

that---., which (testimony) (deposition) was upon a material matter and which helshe 

did not then believe to be true. 

(2) Subscribing false statement. 

In that- -(personal jurisdiction data), 

did (adon board-location) (subject-matter jurisdiction data, if required), on or about_--- 

in a (judicial proceeding) 

(course of justice), and in a (declaration) (certification) (verification) (statement) under penalty of perjury pursuant to section 1746 of title 28, United 

States Code, willfully and corruptly subscribed a 

false statement material to the (issue) (matter of inquiry), to wit: , which statement 

was false in that-, and which statement helshe did not then believe to be true. 

58. Article 132-Frauds against the United 

States 

a. Text. 


"Any person subject to this chapter-" 


(1) "who, knowing it to be false of fraudulent-" 

(a) "makes any claim against the United States 

or any officer thereof; or" 

(b) "presents to any person in the civil or rnilitary service thereof, for approval or payment, any 

claim against the United States or any officer 

thereof;" 

(2) "who, for the purpose of obtaining the approval, allowance, or payment of any claim against 

the United States or any officer thereof-" 
(a) "makes or uses any writing or other paper 

knowing it to contain any false or fraudulent 

statements;" 

(b) "makes any oath to any fact or to any writing or other paper knowing the oath to be false; or" 

(c) "forges or counterfeits any signature upon 

any writing or other paper, or uses any such signature knowing it to be forged or counterfeited;" 

(3) "who, having charge, possession, custody, or 

control of any money, or other property of the 

United States, furnished or intended for the armed 

forces thereof, knowingly delivers to any person 

having authority to receive it, any amount thereof 

less than that for which he receives a certificate or 

receipt; or" 

(4) "who, being authorized to make or deliver 

any paper certifying the receipt of any property of 

the United States furnished or intended for the 

armed forces thereof, makes or delivers to any person such writing without having full knowledge of 

the truth of the statements therein contained and 

with intent to defraud the United States; shall, upon 

conviction, be punished as a court-martial may 

direct." 

b. Elements. 

(1) Making a false or fraudulent claim. 

(a) That the accused made a certain claim 

against the United States or an officer thereof; 

(b) That the claim was false or fraudulent in 

certain particulars; and 

(c) That the accused then knew that the claim 

was false or fraudulent in these particulars. 

(2) Presenting for approval or payment a false or 

fraudulent claim. 

(a) That the accused presented for approval or 

payment to a certain person in the civil or military 

service of the United States having authority to approve or pay it a certain claim against the United 

States or an officer thereof; 

(b) That the claim was false or fraudulent in 

certain particulars; and 

(c) That the accused then knew that the claim 

was false or fraudulent in these particulars. 

(3) Making or using a false writing or other 

paper in connection with claims. 

(a) That the accused made or used a certain 

writing or other paper; 

(b) That certain material statements in the writing or other paper were false or fraudulent; 

(c) That the accused then knew the statements 

were false or fraudulent; and 

(d) That the act of the accused was for the 

purpose of obtaining the approval, allowance, or 

payment of a certain claim or claims against the 

United States or an officer thereof. 

(4) False oath in connection with claims. 

(a) That the accused made an oath to a certain 

fact or to a certain writing or other paper; 

(b) That the oath was false in certain 

particulars; 

(c) That the accused then knew it was false; 

and 

(d) That the act was for the purpose of obtaining the approval, allowance, or payment of a certain 

claim or claims against the United States or an officer thereof. 

(5) Forgery of signature in connection with 

claims. 

(a) That the accused forged or counterfeited the 

signature of a certain person on a certain writing or 

other paper; and 

(b) That the act was for the purpose of obtaining the approval, allowance, or payment of a certain 

claim against the United States or an officer thereof. 

(6) Using forged signature in connection with 

claims. 

(a) That the accused used the forged or counterfeited signature of a certain person; 

(b) That the accused then knew that the signature was forged or counterfeited; and 

(c) That the act was for the purpose of obtaining the approval, allowance, or payment of a certain 

claim against the United States or an officer 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 

the United States furnished or intended for the 

armed forces thereof; 

(b) That the accused obtained a certificate or 

receipt for a certain amount or quantity of that 

money or property; 

(c) That for the certificate or receipt the accused knowingly delivered to a certain person having authority to receive it an amount or quantity of 

IV-90 
money or property less than the amount or quantity 

thereof specified in the certificate or receipt; and 

(d) That the undelivered money or property 

was of a certain value. 

(8) Making or delivering receipt without having 

full knowledge that it is true. 

(a) That the accused was authorized to make or 

deliver a paper certifying the receipt from a certain 

person of certain property of the United States furnished or intended for the armed forces thereof; 

(b) That the accused made or delivered to that 

person a certificate or receipt; 

(c) That the accused made or delivered the certificate without having full knowledge of the truth of 

a certain material statement or statements therein; 

(d) That the act was done with intent to defraud the United States; and 

(e) That the property certified as being received was of a certain value. 

c. Explanation. 

(1) Making a false or frQudulent claim. 

(a) Claim. A "claim" is a demand for a transfer 

of ownership of money or property and does not 

include requisitions for the mere use of property. 

This article applies only to claims against the United 

States or any officer thereof as such, and not to 

claims against an officer of the United States in that 

officer's private capacity. 

(b) Making a claim. Making a claim is a distinct act from presenting it. A claim may be made in 

one place and presented in another. The mere writing of a paper in the form of a claim, without any 

further act to cause the paper to become a demand 

against the United States or an officer thereof, does 

not constitute making a claim. However, any act 

placing the claim in official channels constitutes 

making a claim, even if that act does not amount to 

presenting a claim. It is not necessary that the claim 

be allowed or paid or that it be made by the person 

to be benefited by the allowance or payment. See 

also subparagraph (2), below. 

(c) Knowledge. The claim must be made with 

knowledge of its fictitious or dishonest character. 

This article does not proscribe claims, however 

groundless they may be, that the maker believes to 

be valid, or claims that are merely made negligently 

or without ordinary prudence. 

(2) Presenting for approval or payment a false or 

fraudulent claim. 

(a) False and fraudulent. False and fraudulent 

claims include not only those containing some material false statement, but also claims which the claimant knows to have been paid or for some other 

reason the claimant knows the claimant is not authorized to present or upon which the claimant 

knows the claimant has no right to collect. 

(b) Presenting a claim. The claim must be 

presented, directly or indirectly, to some person having authority to pay it. The person to whom the 

claim is presented may be identified by position or 

authority to approve the claim, and need not be 

identified by name in the specification. A false claim 

may be tacitly presented, as when a person who 

knows that there is no entitlement to certain pay 

accepts it nevertheless without disclosing a disqualification, even though the person may not have made 

any representation of entitlement to the pay. For 

example, a person cashing a pay check which includes an amount for a dependency allowance, 

knowing at the time that the entitlement no longer 

exists because of a change in that dependency status, 

has tacitly presented a false claim. See also subparagraph (I), above. 

(3) Making or using a false writing or other 

paper in connection with claims. The false or fraudulent statement must be material, that is, it must 

have a tendency to mislead governmental officials in 

their consideration or investigation of the claim. The 

offense of making a writing or other paper known to 

contain a false or fraudulent statement for the purpose of obtaining the approval, allowance, or payment of a claim is complete when the writing or 

paper is made for that purpose, whether or not any 

use of the paper has been attempted and whether or 

not the claim has been presented. See also the explanation in subparagraph (1) and (2), above. 

(4) False oath in connection with claims. See 

subparagraphs (1) and (2), above. 

(5) Forgery of signature in connection with 

claims. Any fraudulent making of the signature of 

another is forging or counterfeiting, whether or not 

an attempt is made to imitate the handwriting. See 

paragraph 48(c) and subparagraph (1) and (2), 

above. 

(6) Delivering less than amount called for by receipt. It is immaterial by what means-whether 

IV-91 
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 oflense. Article 80-attempts 

e. Maximum punishment. 

(1) Article 132(1) and (2). Dishonorable discharge, forfeiture of all pay and allowances, and 

confinement for 5 years. 

(2) Article 132(3) and (4). 

(a) When amount is $100.00 or less. Bad-conduct discharge, forfeiture of all pay and allowances, 

and confinement for 6 months. 

(b) When amount is over $100.00. Dishonorable discharge, forfeiture of all pay and allowances, 

and confinement for 5 years. 

f. Sample specz3cations. 

(1) Making false claim. 

In that- (personal jurisdiction data), 

did, (adon board-location) (subject-matter jurisdiction data, if required), on or about____-- 

19 -, (by preparing (a voucher) 

( ) for presentation for approval or 

payment) ( ) , make a claim against 

the (United States) (finance officer 

at ---- ) (- .) in the 

amount of $ - for (private property 

alleged to have been (lost) (destroyed) in the military service) (- ), which claim was 

(false) (fraudulent) (false and fraudulent) in the 

amount of $ i n 

that and was then known by the 

IV-92 

said to be (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 

19- , by presenting (a voucher)(- --) to an officer of the United States duly authorized to (approve) 

(pay) (approve and pay) such claim, present for (approval) (payment) (approval and payment) a claim 

against the (United States) (finance officer 

at in the 

amount of for (services alleged 

to have been rendered to the United States 

by during 1 

(- ), which claim was (false) (fraudulent) (false and fraudulent) in the amount of 

$ in that--, and 

was then known by the said__- to be 

(false) (fraudulent) (false and fraudulent). 

(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 boardlocation) (subject-matter jurisdiction data, if required), on or about___-----

19 - , (make) (use) (make and use) a 

certain (writing) (paper), to wit: --

which said (writing) (paper), as helshe, the 

said then knew, contained a statement that.- _, which statement was 

(false) (fraudulent) (false and fraudulent) in 

that- and was then known by the 

said-.-___.to be (false) (fraudulent) (false 

and fraudulent). 

(4) Making false oath. 

In that (personal jurisdiction data), 

for the purpose of obtaining the (approval) (allowance) (payment) (approval, allowance, and payment) 

of a claim against the United States, did, (adon 

board-location) (subject-matter jurisdiction data, if 

required), on or about_---

19- --, make an oath (to the fact . . that----) (to a certain (writing) (paper), 

to wit: _-., to the effect 

that ), which said oath was false in 
that -, and was then known by the 

said______-to 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-location) (subject-matter jurisdiction data, if 

required), on or about 

(forge) (counterfeit) (forge and 

counterfeit) the signature upon 

a in words and figures as 

follows:~--. 

(6) Using forged signature. 

In that for the purpose of obtaining the (approval) (allowance) (payment) (approval, 

allowance, and payment) of a claim against the 

United States, did, (atlon board-location) (subjectmatter jurisdiction data, if required), on or 

a b o u t - 19 -.--, use the 

signature of on a certain (writing) 

(paper), to wit: , then knowing such 

signature to be (forged) (counterfeited) (forged and 

counterfeited). 

(7) Paying amount less than called for by receipt. .... In that (personal junsdlctlon data), 

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), 

on or about 19-, 


of the statement therein contained and with intent to 

defraud the United States, (make) (deliver) (make 

and deliver) to , such a writing, in 

words and figures as follows: the 

property therein certified as received being of a 

value of about 

59. Article 133-Conduct unbecoming an 

officer and gentleman 

a. Text. 

"Any commissioned officer, cadet, or midshipman 

who is convicted of conduct unbecoming an officer 

and a gentleman shall be punished as a court-martial 

may direct." 

b. Elements. 

(1) That the accused did or omitted to do certain 

acts; and 

(2) That, under the circumstances, these acts or 

omissions constituted conduct unbecoming an officer and gentleman. 

c. Explanation. 

(1) Gentleman. As used in this article, 

"gentleman" includes both male and female commissioned officers, cadets, and midshipmen. 

(2) Nature of offense. Conduct violative of this 

article is action or behavior in an official capacity 

which, in dishonoring or disgracing the person as an 

officer, seriously compromises the officer's character as a gentleman, or action or behavior in an unofficial or private capacity which, in dishonoring or 

disgracing the officer personally, seriously comproknowingly deliver to the 

said - -_ having authority to receive the 

same, (an amount) ( -_),which, as he1 

she then knew, was 

($---- ) less than 

the (amount) --) for which helshe 

received a (certificate) (receipt) from the 

saiL-

(8) Making receipt without knowledge of the 

facts. 

In that_-----.- (personal jurisdiction data), 

being authorized to (make) (deliver) (make and 

deliver) a paper certifying the receipt of property of 

the United States (furnished) (intended) (furnished 

and intended) for the armed forces thereof, did, (at/ 

on board-location) (subject-matter jurisdiction data, 

if required), on or about 

19.- _ -- _,without having full knowledge 

mises the person's standing as an officer. There are 

certain moral attributes common to the ideal officer 

and the perfect gentleman, a lack of which is indicated by acts of dishonesty, unfair dealing, indecency, indecorum, lawlessness, injustice, or cruelty. Not 

everyone is or can be expected to meet unrealistically high moral standards, but there is a limit of 

tolerance based on customs of the service and military necessity below which the personal standards of 

an officer, cadet, or midshipman cannot fall without 

seriously compromising the person's standing as an 

officer, cadet, or midshipman or the person's character as a gentleman. This article prohibits conduct by 

a commissioned officer, cadet, or midshipman 

which, taking all the circumstances into consideration, is thus compromising. This article includes acts 

made punishable by any other article, provided these 

acts amount to conduct unbecoming an officer and a 
gentleman. Thus, a commissioned officer who steals 

property violates both this article and Article 121. 

Whenever the offense charged is the same as a specific offense set forth in this Manual, the elements 

of proof are the same as those set forth in the paragraph which treats that specific offense, with the 

additional requirement that the act or omission constitutes conduct unbecoming an officer and 

gentleman. 

(3) Examples of ofleenses. 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 defamatory language to another officer in that officer's 

presence or about that officer to other military persons; being drunk and disorderly in a public place; 

public association with known prostitutes; committing or attempting to commit a crime involving 

moral turpitude; and failing without good cause to 

support the officer's family. 

d. Lesser included offense. Article 80-attempts 

e. Maximum punishment. Dismissal, forfeiture of all 

pay and allowances, and confinement for a period 

not in excess of that authorized for the most analogous offense for which a punishment is prescribed in 

this Manual, or, if none is prescribed, for 1 year. 

f. Sample specijications. 

(1) Copying or using examination paper. 

In that-__--. (personal jurisdiction data), 

did, (atlon board-location), on or 

about-- - 19- , while 

undergoing a written examination on the subject 

of - , wrongfully and dishonorably 

(receive) (request) unauthorized aid by ((using) 

(copying) the examination paper 

)) ( -- -->. 

(2) Drunk or disorderly. 

In that (personal jurisdiction data), 

was, (atlon board-location), on or 

about 19- , in a 

public place, to wit:- , (drunk) (disorderly) (drunk and disorderly) while in uniform, to 

the disgrace of the armed forces. 

60. Article 134--General article 

a. Text. 


"Though not specifically mentioned in this chapter, 


all disorders and neglects to the prejudice of good 


order and discipline in the armed forces, all conduct 

of a nature to bring discredit upon the armed forces, 

and crimes and offenses not capital, of which persons subject to this chapter may be guilty, shall be 

taken cognizance of by a general, special, or summary court-martial, according to the nature and degree of the offense, and shall be punished at the 

discretion of that court." 

b. Elements. The proof required for conviction of an 

offense under Article 134 depends upon the nature 

of the misconduct charged. If the conduct is punished as a crime or offense not capital, the proof 

must establish every element of the crime or offense 

as required by the applicable law. If the conduct is 

punished as a disorder or neglect to the prejudice of 

good order and discipline in the armed forces, or of 

a nature to bring discredit upon the armed forces, 

then the following proof is required: 

(1) That the accused did or failed to do certain 

acts; and 

(2) That, under the circumstances, the accused's 

conduct was to the prejudice of good order and 

discipline in the armed forces or was of a nature to 

bring discredit upon the armed forces. 

c. Explanation. 

(1) In general. Article 134 makes punishable acts 

in three categories of offenses not specifically covered in any other article of the code. These are 

referred to as "clauses 1, 2, and 3" of Article 134. 

Clause 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 

nature to bring discredit upon the armed forces. 

Clause 3 offenses involve noncapital crimes or offenses which violate Federal law including law made 

applicable through the Federal Assimilative Crimes 

Act, see subsection (4) below. If any conduct of this 

nature is specifically made punishable by another 

article of the code, it must be charged as a violation 

of that article. See subparagraph (5)(a) below. However, see paragraph 59c for offenses committed by 

commissioned officers, cadets, and midshipmen. 

(2) Disorders and neglects to the prejudice of 

good order and discipline in the armed forces 

(clause I). 

(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 prejuIV-94 
dicial only in a remote or indirect sense. Almost any 

irregular or improper act on the part of a member of 

the military service could be regarded as prejudicial 

in some indirect or remote sense; however, this article does not include these distant effects. It is confined to cases in which the prejudice is reasonably 

direct and palpable. An act in violation of a local 

civil law or of a foreign law may be punished if it 

constitutes a disorder or neglect to the prejudice of 

good order and discipline in the armed forces. However, see R.C.M. 203 concerning subject-matter 

jurisdiction. 

(b) Breach of custom of the 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 

been generally abandoned. Many customs of the 

service are now set forth in regulations of the various armed forces. Violations of these customs 

should be charged under Article 92 as violations of 

the regulations in which they appear if the regulation 

is punitive. See paragraph 16c. 

(3) Conduct of a nature to bring discredit upon 

the armed forces (clause 2). "Discredit" means to 

injure the reputation of. This clause of Article 134 

makes punishable conduct which has a tendency to 

bring the service into disrepute or which tends to 

lower it in public esteem. Acts in violation of a local 

civil law or a foreign law may be punished if they 

are of a nature to bring discredit upon the armed 

forces. However, see R.C.M. 203 concerning subject-matter jurisdiction. 

(4) Crimes and offenses not capital (clause 3). 

(a) In general. State and foreign laws are not 

included within the crimes and offenses not capital 

referred to in this clause of Article 134 and violations thereof may not be prosecuted as such except 

when State law becomes Federal law of local application under section 13 of title 18 of the United 

States Code (Federal Assimilative Crimes Act-see 

subparagraph (4)(c) below). For the purpose of 

court-martial jurisdiction, the laws which may be 

applied under clause 3 of Article 134 are divided 

into two groups: crimes and offenses of unlimited 

application (crimes which are punishable regardless 

where they may be committed), and crimes and offenses of local application (crimes which are punishable only if committed in areas of federal 

jurisdiction). 

(b) Crimes and oflenses 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). 

(ii) Federal Assimilative Crimes Act (18 

U.S.C. j 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 

before or after passage of the Act, and whether 

before or after the acquisition of the land where the 

offense was committed. For example, if a person 

committed an act on a military installation in the 

United States at a certain location over which the 

United States had either exclusive or concurrent jurisdiction, and it was not an offense specifically defined by federal law (including the UCMJ), that 

person could be punished for that act by a courtmartial if it was a violation of a noncapital offense 

IV-95 
under the law of the State where the military .installation was located. This is possible because the Act 

adopts the criminal law of the state wherein the 

military installation is located and applies it as 

though it were federal law. The text of the Act is as 

follows: Whoever within or upon any of the places 

now existing or hereafter reserved or acquired as 

provided in section 7 of this title, is guilty of any act 

or omission which, although not made punishable by 

any enactment of Congress, would be punishable if 

committed or omitted within the jurisdiction of the 

State, Territory, Possession, or District in which 

such place is situated, by the laws thereof in force at 

the time of such act or omission, shall be guilty of a 

like offense and subject to a like punishment. 

(5) Limitations on Article 134. 

(a) Preemption doctrine. The preemption doctrine prohibits application of Article 134 to conduct 

covered by Articles 80 through 132. For example, 

larceny is covered in Article 121, and if an element 

of that offense is lacking-for example, intentthere can be no larceny or larceny-type offense, either under Article 121 or, because of preemption, 

under Article 134. Article 134 cannot be used to 

create a new kind of larceny offense, one without 

the required intent, where Congress has already set 

the minimum requirements for such an offense in 

Article 121. 

(b) Capital offense. A capital offense may not 

be tried under Article 134. 

(6) Drafting specificati~ns for Article 134 

offenses. 

(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) Specz$cations 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) Spec8cations 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. 

61. Article 134--(Abusing public animal) 

a. Text. See paragraph 60. 

b. Elements. 

(1) That the accused wrongfully abused a certain 

public animal; and 

(2) That, under the circumstances, the conduct of 

the accused was to the prejudice of good order and 

discipline in the armed forces or was of a nature to 

bring discredit upon the armed forces. 

c. Explanation. A public animal is any animal 

owned or used by the United States; and animal 

owned or used by a local or State government in the 

United States, its territories or possessions; or any 

wild animal located on any public lands in the 

United States, its territories or possessions. This 

would include, for example, drug detector dogs used 

by the government. 

d. Lesser included offenses. Article 80-attempts 

e. Maximum punishment. Confinement for 3 months 

and forfeiture of two-thirds pay per month for 3 

months. 

f. Sample spec$cation. 


In that.-- - (personal jurisdiction data), 


did (atton board-location) (subject-matter jurisdic- 


tion data, if required), on or about-- _ 


19- -- __ --- _-,wrongfully (kick a public drug 


detector dog in the nose) ). 


62. Article 134--(Adultery) 

a. Text. See paragraph 60. 

b. Elements. 

(1) That the accused wrongfully had sexual intercourse with a certain person; 

(2) That, at the time, the accused or the other 

person was married to someone else; and 

(3) That, under the circumstances, the conduct of 

the accused was to the prejudice of good order and 

discipline in the armed forces or was of a nature to 

bring discredit upon the armed forces. 

c. Explanation. Adultery is not a lesser included offense of rape. 

d. Lesser included offense. Article 80-attempts 

e. Maximum punishment. Dishonorable discharge, 
forfeiture of all pay and allowances, and confinement for 1 year. 

f. Sample spec8cation. 

In that (personal jurisdiction data), 

(a married manla married woman), did, (atlon 

board-location) (subject-matter jurisdiction data, if 

required), on or about -

19_-, wrongfully have sexual intercourse w i L , a (married) (woman1 

man) not (his wife) (her husband). 

63. Article 134-(Assault-indecent) 

a. Text. See paragraph 60. 

b. Elements. 

(1) That the accused assaulted a certain person 

not the spouse of the accused in a certain manner; 

(2) That the acts were done with the intent to 

gratify the lust or sexual desires of the accused; and 

(3) That, under the circumstances, the conduct of 

the accused was to the prejudice of good order and 

discipline in the armed forces or was of a nature to 

bring discredit upon the armed forces. 

c. Explanation. See paragraph 54c for a discussion 

of assault. Specific intent is an element of this offense. For a definition of "indecent", see paragraph 

90c. 

d. Lesser included offenses. 

(1) Article 128-assault consummated by a battery; assault 

(2) Article 134-indecent acts 

(3) Article 80-attempts 

e. Maximum punishment. Dishonorable discharge, 

forfeiture of all pay and allowances, and confinement for 5 years. 

f. Sample spec8cation. 

In that (personal jurisdiction data), 

did (atlon board-location), (subject-matter jurisdiction data, if required), on or about19 , commit an indecent assault 

upo, 	 a person not hisher wifehusband b y , with intent to gratify his1 

her (lust) (sexual desires). 

64. Article 134--(Assault-with intent to 

commit murder, voluntary manslaughter, 

rape, robbery, sodomy, arson, burglary, or 

housebreaking) 

a. Text. See paragraph 60. 

b. Elements. 

(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 consumrnation 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 overcome any resistance by force, and to 

IV-97 
complete the offense. Any lesser intent will not suffice. No actual touching is necessary, but indecent 

advances and importunities, however earnest, not accompanied by such an intent, do not constitute this 

offense, nor do mere preparations to rape not 

amounting to an assault. Once an assault with intent 

to commit rape is made, it is no defense that the 

accused voluntarily desisted. 

(5) Assault with intent to rob. For assault with 

intent to rob, the fact that the accused intended to 

take money and that the person the accused intended 

to rob had none is not a defense. 

(6) Assault with intent to commit sodomy. Assault 

with intent to commit sodomy is an assault against a 

human being and must be committed with a specific 

intent to commit sodomy. Any lesser intent, or different intent, will not suffice. 

d. Lesser included offenses. 

(1) Assault with intent to murder. 

(a) Article 128-assault; assault consummated 

by a battery; assault with a dangerous weapon; assault intentionally inflicting grievous bodily harm 

(b) Article 134-assault with intent to commit 

voluntary manslaughter; willful or careless discharge 

of a firearm 

(2) Assault with intent to commit voluntary 

manslaughter. 

(a) Article 128-assault; assault consummated 

by a battery; assault with a dangerous weapon; assault intentionally inflicting grievous bodily harm 

(b) Article 134--willful or careless discharge 

of a firearm 

(3) Assault with intent to commit rape or sodomy. 

(a) Article 128-assault; assault consummated 

by a battery; assault with a dangerous weapon 

(b) Article 134-indecent assault 

(4) Assault with intent to commit burglary. 

(a) Article 128-assault; assault consummated 

by a battery; assault with a dangerous weapon 

(b) Article 134-assault with intent to commit 

housebreaking 

(5) Assault with intent to commit robbery, arson, 

or housebreaking. Article 128-assault; assault consummated by a battery; assault with a dangerous 

weapon 

e. Maximum punishment. 

(1) Assault with intent to commit murder or rape. 

Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 20 years. 

(2) Assault with intent to commit voluntary manslaughter, robbery, sodomy, arson, or burglary. Dishonorable discharge, forfeiture of all pay and 

allowances, and confinement for 10 years. 

(3) Assault with intent to commit housebreaking. 

Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years. 

f. Sample specification. 


In that- (personal jurisdiction data), 


did, (atlon board-location) (subject-matter jurisdic- 


tion data, if required), on or about--. 


19 with intent to commit (murder) 


(voluntary manslaughter) (rape) (robbery) (sodomy) 


(arson) (burglary) (housebreaking), commit an as-


sault upon-- -by-___.-. 


65. Article 134--(Bigamy) 

a. Text. See paragraph 60. 

b. Elements. 

(1) That the accused had a living lawful spouse; 

(2) That while having such spouse the accused 

wrongfully married another person; and 

(3) That, under the circumstances, the conduct of 

the accused was to the prejudice of good order and 

discipline in the armed forces or was of a nature to 

bring discredit upon the armed forces. 

c. Explanation. Bigamy is contracting another marriage by one who already has a living lawful spouse. 

If a prior marriage was void, it will have created no 

status .of "lawful spouse." However, if it was only 

voidable and has not been voided by a competent 

court, this is no defense. A belief that a prior marriage has been terminated by divorce, death of the 

other spouse, or otherwise, constitutes a defense 

only if the belief was reasonable. See R.C.M. 

915(1)(1). 

d. Lesser included offense. Article 80-attempts 

e. Maximum punishment. Dishonorable discharge, 

forfeiture of all pay and allowances, and confinement for 2 years. 

f. Sample specification. 

In that-.-- (personal jurisdiction data), 

did, a L (subject-matter jurisdiction 

data, if required), on or about 

19 --, wrongfully marry having at the time of hislher 

IV-98 
said marriage to a lawful wifehusband then living, to wit:-. 

66. Article 134--(Bribery and graft) 

a. Text. See paragraph 60. 

b. Elements. 

(1) Asking, accepting, or receiving. 

(a) That the accused wrongfully asked, accepted, or received a thing of value from a certain 

person or organization; 

(b) That the accused then occupied a certain 

official position or had certain official duties; 

(c) That the accused asked, accepted, or received this thing of value (with the intent to have 

the accused's decision or action influenced with 

respect to a certain matter)* (as compensation for or 

in recognition of services rendered, to be rendered, 

or both, by the accused in relation to a certain 

matter)**; 

(d) That this certain matter was an official matter in which the United States was and is interested; 

and 

(e) That, under the circumstances, the conduct 

of the accused was to the prejudice of good order 

and discipline in the armed forces or was of a nature 

to bring discredit upon the armed forces. 

(*Note: This element is required for bribery.) 

(**Note: This element is required for graft.) 

(2) Promising, offering, or giving. 

(a) That the accused wrongfully promised, offered, or gave a thing of value to a certain person; 

(b) That this person then occupied a certain 

official position or had certain official duties; 

(c) That this thing of value was promised, offered, or given (with the intent to influence the decision or action of this person)* (as compensation for 

or in recognition of services rendered, to be rendered, or both, by this person in relation to a certain 

matter)**; 

(d) That this matter was an official matter in 

which the United States was and is interested; and 

(e) That, under the circumstances, the conduct 

of the accused was to the prejudice of good order 

and discipline in the armed forces or was of a nature 

to bring discredit upon the armed forces. 

(*Note: This element is required for bribery.) 

(**Note: This element is required for graft.) 

c. Explanation. Bribery requires an intent to influence or be influenced in an official matter; graft 

does not. Graft involves compensation for services 

performed in an official matter when no compensation is due. 

d. Lesser included offenses. 

(1) Bribery. Article 134-graft 

(2) Bribery and graf. Article 80-attempts 

e. Maximum punishment. 

(1) Bribery. Dishonorable discharge, forfeiture of 

all pay and allowances, and confinement for 5 years. 

(2) Graf. Dishonorable discharge, forfeiture of 

all pay and allowances, and confinement for 3 years. 

f. Sample specijkations. 

(1) Asking, accepting, or receiving. 

In that (personal jurisdiction data), 

being at the time (a contracting officer 

for---) (the personnel officer 

of-~ ), did, (atlon 

board-location) (subject-matter jurisdiction data, if 

required), on or about--.--p.p 

19 wrongfully (ask) (accept) (receive) from (a contracting 

company) engaged in 

), (the sum of $- -.-) 

of a value of (about)

. . $ ), (with intent 

to have hisher (decision) (action) influenced with 

respect to*) ((as compensation for) (in recognition 

of)) service (rendered) (to be rendered) (rendered 

and to be rendered) by himlher the 

said -----p_-_ 
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 (atlon board-location) (subject-matter jurisdiction data, if required), on or about 

19 wrongfully (promise) (offer) 

(give) to (hisher commanding officer) (the claims officer of ~.--_) 

( . - ), (the sum of $ _ ~ ~..-..-- . )

IV-99 
(- , of a value of (about 

$ (with intent 

to influence the (decision) (action) of the 

said with respect to*) ((as 

compensation for) (in recognition of)) services (rendered) (to be rendered) (rendered and to be rendered) by the said___ in relation to**) 

an official matter in which the United States was 

and is interested, to wit: (the granting of leave 

to -- -_-_) (the processing of a 

claim against the United States in favor 

of 1 (- 1. 

(*Note: This language should be used to allege 

bribery.) 

(**Note: This language should be used to allege 

graft.) 

67. Article 134--(Burning with intent to 

defraud) 

a. Text. See paragraph 60. 

b. Elements. 

(1) That the accused willfully and maliciously 

burned or set fire to certain property owned by a 

certain person or organization; 

(2) That such burning or setting on fire was with 

the intent to defraud a certain person or organization; and 

(3) That, under the circumstances, the conduct of 

the accused was to the prejudice of good order and 

discipline in the armed forces or was of a nature to 

bring discredit upon the armed forces. 

c. Explanation. See paragraph 49c(14) for a discussion of "intent to defraud." 

d. Lesser included offense. Article 80-attempts 

e. Maximum punishment. Dishonorable discharge, 

forfeiture of all pay and allowances, and confinement for 10 years. 

f. Sample specijication. 

In that (personal jurisdiction data), 

did, (at/on board-location) (subject-matter jurisdiction data, if required), on or about . . 19 willfully and mallclously 

(bum) (set fire to) (a dwelling) (a barn) (an automobile), the property of with 

intent to defraud (the insurer thereof, to 

wit: ). 

68. Article 134--(Check, worthless, making 

and uttering-by dishonorably failing to 

maintain funds) 

a. Text. See paragraph 60. 

b. Elements. 

(1) That the accused made and uttered a certain 

check; 

(2) That the check was made and uttered for the 

purchase of a certain thing, in payment of a debt, or 

for a certain purpose; 

(3) That the accused subsequently failed to place 

or maintain sufficient funds in or credit with the 

drawee bank for payment of the check in full upon 

its presentment for payment; 

(4) That this failure was dishonorable; and 

(5) That, under the circumstances, the conduct of 

the accused was to the prejudice of good order and 

discipline in the armed forces or was of a nature to 

bring discredit upon the armed forces. 

c. Explanation. This offense differs from an Article 

123a offense (paragraph 49) in that there need be no 

intent to defraud or deceive at the time of making, 

drawing, uttering, or delivery, and that the accused 

need not know at that time that the accused did not 

or would not have sufficient funds for payment. The 

gist of the offense lies in the conduct of the accused 

after uttering the instrument. Mere negligence in 

maintaining one's bank balance is insufficient for 

this offense, for the accused's conduct must reflect 

bad faith or gross indifference in this regard. As in 

the offense of dishonorable failure to pay debts (see 

paragraph 71), dishonorable conduct of the accused 

is necessary, and the other principles discussed in 

paragraph 71 also apply here. 

d. Lesser included offenses. None. 

e. Maximum punishment. Bad-conduct discharge, 

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

f. Sample specijication. 

In that (personal jurisdiction data), 

did, (adon board-location) (subject-matter jurisdiction data, if required), on or about 

19 make and utter 

t o - 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 pay- 
ment of such check in full upon its presentment for 

payment. 

69. Article 134--(Cohabitation, wrongful) 

a. Text. See paragraph 60. 

b. Elements. 

(1) That, during a certain period of time, the accused and another person openly and publicly lived 

together as husband and wife, holding themselves 

out as such; 

(2) That the other person was not the spouse of 

the accused; 

(3) That, under the circumstances, the conduct of 

the accused was to the prejudice of good order and 

discipline in the armed forces or was of a nature to 

bring discredit upon the armed forces. 

c. Explanation. This offense differs from adultery 

(see paragraph 62) in that it is not necessary to 

prove that one of the partners was 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, (atlon board-location) (subject-matter jurisdiction data, if required), from about 

19 to about 19 

wrongfully cohabit with (a woman 

not his wife) (a man not her husband). 

70. Article 134--(Correctional custodyoffenses against) 

a. Text. See paragraph 60. 

b. Elements. 

(1) Escape from correctional custody. 

(a) That the accused was placed in correctional 

custody by a person authorized to do so; 

(b) That, while in such correctional custody, 

the accused was under physical restraint; 

(c) That the accused freed himself or herself 

from the physical restraint of this correctional custody before being released therefrom by proper authority; and 

(d) That, under the circumstances, the conduct 

of the accused was to the prejudice of good order 

and discipline in the armed forces or was of a nature 

to bring discredit upon the armed forces. 

(2) Breach of correctional custody. 

(a) That the accused was placed in correctional 

custody by a person authorized to do so; 

(b) That, while in correctional custody, a certain restraint was imposed upon the accused; 

(c) That the accused went beyond the limits of 

the restraint imposed before having been released 

from the correctional custody or relieved of the restraint by proper authority; and 

(d) That, under the circumstances, the conduct 

of the accused was to the prejudice of good order 

and discipline in the armed forces or was of a nature 

to bring discredit upon the armed forces. 

c. Explanation. 

(1) Escape from correctional custody. Escape 

from correctional custody is the act of a person 

undergoing the punishment of correctional custody 

pursuant to Article 15, who, before being set at 

liberty by proper authority, casts off any physical 

restraint imposed by the custodian or by the place or 

conditions of custody. 

(2) Breach of correctional custody. Breach of restraint during correctional custody is the act of a 

person undergoing the punishment who, in the absence of physical restraint imposed by a custodian or 

by the place or conditions of custody, breaches any 

form of restraint imposed during this period. 

(3) Authority to impose correctional custody. See 

Part V concerning who may impose correctional 

custody. Whether the status of a person authorized 

that person to impose correctional custody is a question of law to be decided by the military judge. 

Whether the person who imposed correctional custody had such a status is a question of fact to be 

decided by the factfinder. 

d. Lesser included offense. Article 80-attempts 

e. Maximum punishment. 

(1) Escape from correctional czutody. 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 specijkations. 

(1) Escape from correctional custody. 

In that (personal jurisdiction data), 

while undergoing the punishment of correctional 

custody imposed by a person authorized to do so, 

did, (atlon board-location), on or 

about . - 19 , escape 

from correctional custody. 

(2) Breach of correctional custody. 

In that -(personal jurisdiction data), 

while duly undergoing the punishment of correctional custody imposed by a person authorized to do 

so, did, (atlon board-location), on or 

about 19 --

breach the restraint imposed thereunder 

by 

71. Article 134--(Debt, dishonorably failing 

to pay) 

a. Text. See paragraph 60. 

b. Elements. 

(1) That the accused was indebted to a certain 

person or entity in a certain sum; 

(2) That this debt became due and payable on or 

about a certain date; 

(3) That while the debt was still due and payable 

the accused dishonorably failed to pay this debt; and 

(4) That, under the circumstances, the conduct of 

the accused was to the prejudice of good order and 

discipline in the armed forces or was of a nature to 

bring discredit upon the armed forces. 

c. Explanation. More than negligence in nonpayment is necessary. The failure to pay must be characterized by deceit, evasion, false promises, or other 

distinctly culpable circumstances indicating a deliberate nonpayment or grossly indifferent attitude toward one's just obligations. For a debt to form the 

basis of this offense, the accused must not have had 

a defense, or an equivalent offset or counterclaim, 

either in fact or according to the accused's belief, at 

the time alleged. The offense should not be charged 

if there was a genuine dispute between the parties as 

to the facts or law relating to the debt which would 

affect the obligation of the accused to pay. The 

offense is not committed if the creditor or creditors 

involved are satisfied with the conduct of the debtor 

with respect to payment. The length of the period of 

nonpayment and any denial of indebtedness which 

the accused may have made may tend to prove that 

the accused's conduct was dishonorable, but the 

court-martial may convict only if it finds from all of 

the evidence that the conduct was in fact 

dishonorable. 

d. Lesser included offenses. None. 

e. Maximum punishment. Bad-conduct discharge, 

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

f. Sample specification. 

In that (personal jurisdiction 

data), being indebted in the sum 

of $ for^--_ , which 

amount became due and payable (on) (about) (on or 

about) 19 did 

(ation board-location)(subject-matter jurisdiction 

data, if required), from 

19- , to 

19- , dishonorably fail to pay said 

debt. 

72. Article 134--(Disloyal statements) 

a. Text. See paragraph 60. 

b. Elements. 

(1) That the accused made a certain statement; 

(2) That the statement was communicated to another person; 

(3) That the statement was disloyal to the United 

States; 

(4) That the statement was made with the intent 

to promote disloyalty or disaffection toward the 

United States by any member of the armed forces or 

to interfere with or impair the loyalty to the United 

States or good order and discipline of any member 

of the armed forces; and 

(5) That, under the circumstances, the conduct of 

the accused was to the prejudice of good order and 

discipline in the armed forces or was of a nature to 

bring discredit upon the armed forces. 

c. Explanation. Certain disloyal statements by rnilitary personnel may not constitute an offense under 

18 U.S.C. $8 2385, 2387, and 2388, but may, under 

the circumstances, be punishable under this article. 

Examples include praising the enemy, attacking the 

war aims of the United States, or denouncing our 

form of government with the intent to promote disloyalty or disaffection among members of the armed 
services. A declaration of personal belief can 

amount to a disloyal statement if it disavows allegiance owed to the United States by the declarant. 

The disloyalty involved for this offense must be to 

the United States as a political entity and not merely 

to a department or other agency that is a part of its 

administration. 

d. Lesser included offense. Article 80-attempts 

e. Maximum punishment. Dishonorable discharge, 

forfeiture of all pay and allowances, and confinement for 3 years. 

f. Sample specification. 

In that--- (personal jurisdiction 

data), did, (atlon board-location), on or 

about.- 19- , with 

intent to (promote (disloyalty) (disaffection) (disloyalty and disaffection)) ((interfere with) (impair) the 

(loyalty) (good order and discipline)) of any member 

of the armed forces of the United States communicate to- _, the following statement, to 

wit:" " or words to that effect, 

which statement was disloyal to the United States. 

73. Article 134-(Disorderly conduct, 

drunkenness) 

a. Text. See paragraph 60. 

b. Elements. 

(1) That the accused was drunk, disorderly, or 

drunk and disorderly on board ship or in some other 

place; and 

(2) That, under the circumstances, the conduct of 

the accused was to the prejudice of good order and 

discipline in the armed forces or was of a nature to 

bring discredit upon the armed forces. 

c. Explanation. 

(1) Drunkenness. See paragraph 35c(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 disturbed or provoked to resentment thereby. It includes conduct that endangers public morals or 

outrages public decency and any disturbance of a 

contentious or turbulent character. 

(3) Service discrediting. Unlike most offenses 

under Article 134, "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, (atJon board-location) (subject-matter 

jurisdiction data, if required), on or 

about - - 19 , (drunk) 

(disorderly) (drunk and disorderly) (which conduct 

was of a nature to bring discredit upon the armed 

forces). 

74. Article 134-(Drinking liquor with 

prisoner) 

a. Text. See paragraph 60. 

b. Elements. 

, (1) That the accused was a sentinel or in another 

assignment in charge of a prisoner; 

(2) That, while in such capacity, the accused unlawfully drank intoxicating liquor with a prisoner; 

(3) That the prisoner was under the charge of the 

accused; 
(4) That the accused knew that the prisoner was a 

prisoner under the accused's charge; and 

(5) That, under the circumstances, the conduct of 

the accused was to the prejudice of good order and 

discipline in the armed forces or was of a nature to 

bring discredit upon the armed forces. 

c. Explanation. 

(1) Prisoner. A "prisoner" is a person who is in 

confinement or custody imposed under R.C.M. 302, 

304, or 305, or under sentence of a court-martial 

who has not been set free by proper authority. 

(2) Liquor. For the purposes of this offense, 

"liquor" includes any alcoholic beverage. 

d. Lesser included offense. Article 80-attempts 

e. Maximum punishment. Confinement for 3 months 

and forfeiture of two-thirds pay per month for 3 

months. 

f. Sample specification. 

In that_- (personal jurisdiction 

data), a (sentinel) ( in charge of 

prisoners, did, (atlon board-location), on or about 

19 , unlawfully drink intoxicating 

liquor wit;, a prisoner under his/ 

her charge. 

75. Article 134--(Drunk prisoner) 

a. Text. See paragraph 60. 

b. Elements. 

(1) That the accused was a prisoner; 

(2) That while in such status the accused was 

found drunk; and 

(3) That, under the circumstances, the conduct of 

the accused was to the prejudice of good order and 

discipline in the armed forces or was of a nature to 

bring discredit upon the armed forces. 

c. Explanation. 

(1) Prisoner. See paragraph 74c(l). 

(2) Drunk. See paragraph 35c(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 prisoner, was (atlon board- location), on or 

IV-104 

about--- 19 found 

drunk. 

76. Article 134--(Drunkennessincapacitation for performance of duties 

through prior wrongful indulgence in 

intoxicating liquor or any drug) 

a. Text. See paragraph 60. 

b. Elements. 

(1) That the accused had certain duties to 

perform; 

(2) That the accused was incapacitated for the 

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 order and 

discipline in the armed forces or was of a nature of 

bring discredit upon the armed forces. 

c. Explanation. 

(1) Liquor. See paragraph 74c(2). 

(2) Incapacitated. Incapacitated means unfit or 

unable to perform properly. A person is "unfit" to 

perform duties if at the time the duties are to commence, the person is drunk, even though physically 

able to perform the duties. Illness resulting from 

previous overindulgence is an example of being 

"unable" to perform duties. For a discussion of 

"drunk" see paragraph 35c(3). 

(3) AfJirmative defense. The accused's lack of 

knowledge of the duties assigned is an affirmative 

defense to this offense. 

d. Lesser included offense. Article 80-attempts 

e. Maximum punishment. Confinement for 3 months 

and forfeiture of two-thirds pay per month for 3 

months. 

f. Sample specification. 

In that___--- (personal jurisdiction 

data), was, (ation board-location), on or 

about 19 as a result of wrongful previous overindulgence in intoxicating liquor or drugs incapacitated for the proper 

performance of hisher duties. 
77. Article 134--(False or unauthorized pass 

offenses) 

a. Text. See paragraph 60. 

b. Elements. 

(1) Wrongful making, altering, counterfeiting, or 

tampering with a military or oficial pass, permit, 

discharge certipcate, or identification card. 

(a) That the accused wrongfully and falsely 

made, altered, counterfeited, or tampered with a certain military or official pass, permit, discharge certificate, or identification card; and 

(b) That, under the circumstances, the conduct 

of the accused was to the prejudice of good order 

and discipline in the armed forces or was of a nature 

to bring discredit upon the armed forces. 

(2) Wrongful sale, gift, loan, or disposition of a 

military or ofSicia1 pass, permit, discharge certificate, or identification card. 

(a) That the accused wrongfully sold, gave, 

loaned, or disposed of a certain military or official 

pass, pennit, discharge certificate, or identification 

card; 

(b) That the pass, permit, discharge certificate, 

or identification card was false or unauthorized; 

(c) That the accused then knew that the pass, 

permit, discharge certificate, or identification card 

was false or unauthorized; and 

(d) That, under the circumstances, the conduct 

of the accused was to the prejudice of good order 

and discipline in the armed forces or was of a nature 

to bring discredit upon the armed forces. 

(3) Wrongful use or possession of a false or unauthorized military or oficial pass, permit, discharge 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 

accused used or possessed the pass, permit, discharge certificate, or identification card with an intent to defraud or deceive.] 

c. Explanation. 

(1) In general. "Military or official pass, permit, 

discharge certificate, or identification card" includes, 

as well as the more usual forms of these documents, 

all documents issued by any governmental agency 

for the purpose of identification and copies thereof. 

(2) Intent to defrQud or deceive. See paragraph 

49c(14) and (15). 

d. Lesser included ofSenses. 

(1) Wrongful use or possession of false or unauthorized military or oficial pass, permit, discharge certificate, or identification card, with the 

intent to defraud or deceive. Article 134--same offenses, except without the intent to defraud or 

deceive. 

(2) All false or unauthorized pass offenses. Article 80-attempts 

e. Maximum punishment. 

(1) Possessing or using with intent to defraud or 

deceive, or making, altering, counterfeiting, tampering with, or selling. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 

3 years. 

(2) All other cases. Bad-conduct discharge, forfeiture of all pay and allowances, and confinement 

for 6 months. 

f. Sample specifications. 

(1) Wrongful making, altering, counterfeiting, or 

tampering with military or oficial pass, permit, discharge certificate, or identification card. In .. .. that (personal jurlsdlctlon data), 

did, (at/on board-location) (subject-matter jurisdiction data, if required), on or about 

wrongfully and falsely (make) 

(forge) (alter by (counterfeit) 

(tamper with by (a certain instrument purporting to be) (a) (an) (another's) (naval) 

(military) (official) (pass) (permit) (discharge certificate) (identification card) ( ) in 

words and figures as follows: ._-..--.-p. 

(2) Wror-gful sale, gif, loan, or disposition of a 

military or oficial pass, permit, discharge certi3- 

cate, or identification card. 

In t h a t . . (personal jurisdiction 

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

jurisdiction data, if required), on or 

IV-105 
about - 19 wrongfully (sell to- -) (give 

to- -_) (loan to-_ _) (dispose of by (a certain instrument 

purporting to be) (a) (an) (another's) (naval) (military) (official) (pass) @ermit)(discharge certificate) . .. . (identification card) inwords and 

figures as follows: helshe, the 

said then well knowing the same 

to be (false) (unauthorized). 

(3) Wrongful use or possession of a false or unauthorized military or official pass, permit, discharge certificate, or identification card. . . . a

In that (personal junsdlctIon 

data), did (atlon board-location) (subject-matter jurisdiction data, if required), on or 

about -- 19 

wrongfully (use) (possess) (with intent to (defraud) 

(deceive)) (a certain instrument purporting to be) (a) 

(an) (another's) (naval) (military) (official) (pass) 

(permit) (discharge certificate) (identification card) 

(______-. ), helshe, the 

said then well knowing the same 

to be (false) (unauthorized). 

78. Article 134--(False pretenses, obtaining 

services under) 

a. Text. See paragraph 60. 

b. Elements. 

(1) That the accused wrongfully obtained certain 

services; 

(2) That the obtaining was done by using false 

pretenses; 

(3) That the accused then knew of the falsity of 

the metenses: 

(4) That the obtaining was with intent to defraud; 

(5) That the services were of a certain value; and 

(6) That, under the circumstances, the conduct of 

the accused was to the prejudice of good order and 

discipline in the armed forces or was of a nature to 

bring discredit upon the armed forces. 

c. Explanation. This offense is similar to the offenses of larceny and wrongful appropriation by 

false pretenses, except that the object of the obtaining is services (for example, telephone service) 

rather than money, personal property, or articles of 

value of any kind as under Article 121. See paragraph 46c. See paragraph 49c(14) for a definition of 

"intent to defraud." 

d. Lesser included offense. Article 80-attempts 

e. Maximum punishment. Obtaining services under 

false pretenses. 

(1) Of a value of $100.00 or less. Bad-conduct 

discharge, forfeiture of all pay and allowances, and 

confinement for 6 months. 

(2) Of a value of more than $100.00. Dishonorable discharge, forfeiture of all pay and allowances, 

and confinement for 5 years. 

f. Sample specification. 

In that__---- (personal jurisdiction 

data), did, (atlon board-location) (subject-matter 

jurisdiction data, if required), on or 

about 19 with 

intent to defraud, falsely pretend to-. 

that then knowing that the pretenses were false, and by means thereof did wrongfully obtain from.- services, of a 

value of (about) $ , to 

wit: 

79. Article 134--(False swearing) 

a. Text. See paragraph 60. 

b. Elements. 

(1) That the accused took an oath or equivalent; 

(2) That the oath or equivalent was administered 

to the accused in a matter in which such oath or 

equivalent was required or authorized by law; 

(3) That the oath or equivalent was administered 

by a person having 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) That the accused did not then believe the 

statement to be true; and 

(7) That, under the circumstances, the conduct of 

the accused was to the prejudice of good order and 

discipline in the armed forces or was of a nature to 

bring discredit upon the armed forces. 

c. Explanation. 

(1) Nature of offense. False swearing is the making under a lawful oath or equivalent of any false 

statement, oral or written, not believing the statement to be true. It does not include such statements 

made in a judicial proceeding or course of justice, as 

these are under Article 131, perjury (see paragraph 

IV-106 
57). Unlike a false official statement under Article jurisdiction data, if required), on or 

107 (see paragraph 31) there is no requirement that about 19 through 

the statement be made with an intent to deceive or negligence, discharge a (service rifle) 

that the statement be official. See paragraphs 57c(l), in the (squadron) (tent) (barc(2)(c) and c(2)(e) concerning "judicial proceeding racks) (- of 

or course of justice," proof of the falsity, and the 

belief of the accused, respectively. 

(2) Oath. See Article 136 and R.C.M. 807 as to 

the authority to administer oaths, and see Section IX 

of Part 111 (Military Rules of Evidence) concerning 

proof of the signatures of persons authorized to administer oaths. An oath includes an affirmation 

when authorized in lieu of an oath. 

d. Lesser included offense. Article 80-attempts 

e. Maximum punishment. Dishonorable discharge, 

forfeiture of all pay and allowances, and confinement for 3 years. 

f. Sample specification. .... In that (personal jurisdiction 

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

jurisdiction data, if required), on or 

about- - 19- -, (in an 

affidavit) (in .), wrongfully and unlawfully (make) (subscribe) under lawful (oath) (affirmation) a false statement in substance as 

follows: which statement helshe 

did not then believe to be true. 

80. Article 134-(Firearm, dischargingthrough negligence) 

a. Text. See paragraph 60. 

b. Elements. 

(1) That the accused discharged a firearm; 

(2) That such discharge was caused by the negligence of the accused; and 

(3) That, under the circumstances, the conduct of 

the accused was to the prejudice of good order and 

discipline in the armed forces or was of a nature to 

bring discredit upon the armed forces. 

c. Explanation. For a discussion of negligence, see 

paragraph 85c(2). 

d. Lesser included offenses. None 

e. Maximum punishment. Confinement for 3 months 

and forfeiture of two-thirds pay per month for 3 

months. 

f. Sample specification. 

In that (personal jurisdiction 

data), did, (atlon board-location) (subject-matter 

81. Article 134-(Firearm, dischargingwillfully, under such circumstances as to 

endanger human life) 

a. Text. See paragraph 60. 

b. Elements. 

(1) That the accused discharged a firearm; 

(2) That the discharge was willful and wrongful; 

(3) That the discharge was under circumstances 

such as to endanger human life; and 

(4) That, under the circumstances, the conduct of 

the accused was to the prejudice of good order and 

discipline in the armed forces or was of a nature to 

bring discredit upon the armed forces. 

c. Explanation. "Under circumstances such as to endanger human life "refers to a reasonable potentiality for harm to human beings in general. The test is 

not whether the life was in fact endangered but 

whether, considering the circumstances surrounding 

the wrongful discharge of the weapon, the act was 

unsafe to human life in general. 

d. Lesser included offenses. 

(1) Article 134--firearm, discharging-through 

negligence 

(2) Article 80-attempts 

e. Maximum punishment. Dishonorable discharge, 

forfeiture of all pay and allowances, and confinement for 1 year. 

f. Sample specification. 

In that (personal jurisdiction 

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

jurisdiction data, if required), on or 

about 19 wrongfully and willfully discharge a firearm, to 

wit: ~ (in the mess hall

of ~),under circumstances such as to endanger human life. 

82. Article 134-(Fleeing scene of accident) 

a. Text. See paragraph 60. 

b. Elements. 

(1) Driver. 
(a) That the accused was the driver of a 

vehicle; 

(b) That while the accused was driving the vehicle was involved in an accident; 

(c) That the accused knew that the vehicle had 

been in an accident; 

(d) That the accused left the scene of the accident without (providing assistance to the victim who 

had been struck (and injured) by the said vehicle) or 

(providing identification); 

(e) That such leaving was wrongful; and 

(f) That, under the circumstances, the conduct 

of the accused was to the prejudice of good order 

and discipline in the armed forces or was of a nature 

to bring discredit upon the armed forces. 

(2) Senior passenger. 

(a) That the accused was a passenger in a vehicle which was involved in an accident; 

(b) That the accused knew that said vehicle had 

been in an accident; 

(c) That the accused was the superior commissioned or noncommissioned officer of the driver, or 

commander of the vehicle, and wrongfully and unlawfully ordered, caused, or permitted the driver to 

leave the scene of the accident without (providing 

assistance to the victim who had been struck (and 

injured) by the said vehicle) (or) (providing identification); and 

(d) That, under the circumstances, the conduct 

of the accused was to the prejudice of good order 

and discipline in the armed forces or was of a nature 

to bring discredit upon the armed forces. 

c. Explanation. 

(1) Nature of offense. This offense covers "hit 

and run" situations where there is damage to property other than the driver's vehicle or injury to 

someone other than the driver or a passenger in the 

driver's vehicle. It also covers .accidents caused by 

the accused, even if the accused's vehicle does not 

contact other people, vehicles, or property. 

(2) Knowledge. Actual knowledge that an accident has occurred is an essential element of this 

offense. Actual knowledge may be proved by circumstantial evidence. 

(3) Passenger. A passenger other than a senior 

passenger may also be liable under this paragraph. 

See paragraph 1 of this Part. 

d. Lesser included offense. Article 8Gattem~ts 

e. Maximum punishment. Bad-conduct discharge, 

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

f. Sample specijication. 

In that (personal jurisdiction 

data), (the driver of) (a passenger in*) (the senior 

officer/noncommissioned officer in) 

in) a vehicle at the time of an 

accident in which said vehicle was involved, and 

having knowledge of said accident, did, at-

--___-(subject-matter jurisdiction data, if 

required), on or about.- --

19- (wrongfully leave) 

(by___, assist the driver of the said 

vehicle in wrongfully leaving*) (wrongfully order, 

cause, or permit the driver to leave) the scene of the 

accident without (providing assistance 

to who had been struck (and injured) by the said vehicle) (making histher (the driver's) identity known). 

[Note: This language should be used when the 

accused was a passenger and is charged as a principal. See paragraph 1 of this part.] 

83. Article 134-(Fraternization) 

a. Text. See paragraph 60. 

b. Elements. 

(1) That the accused was a commissioned or warrant officer; 

(2) That the accused fraternized on terms of military equality with one or more certain enlisted member(~) in a certain manner; 

(3) That the accused then knew the person(s) to 

be (an) enlisted member(s); 

(4) That such fraternization violated the custom 

of the accused's service that officers shall not fraternize with enlisted members on terms of military 

equality; and 

(5) That, under the circumstances, the conduct of 

the accused was to the prejudice of good order and 

discipline in the armed forces or was of a nature to 

bring discredit upon the armed forces. 

c. Explanation. 

(1) In general. The gist of this offense is a violation of the custom of the armed forces against fraternization. Not all contact or association between 

officers and enlisted persons is an offense. Whether 

the contact or association in question is an offense 

depends on the surrounding circumstances. Factors 

IV-108 
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 punislzment. Dismissal, forfeiture of all 

pay and allowances, and confinement for 2 years. 

f. Sample spec@cation. 

In that (personal jurisdiction 

data), did, (atJon board-location), on or 

about knowingly fraternize 

with.- - --, an enlisted person, on terms 

of military equality, to wit: in violation of the custom of (the Naval Service of the 

United States) (the United States Army) (the United 

States Air Force) (the United States Coast Guard) 

that officers shall not fraternize with enlisted persons 

on terms of military equality. 

84. Article 134--(Gambling with subordinate) 

a. Text. See paragraph 60. 

b. Elements. 

(1) That the accused gambled with a certain 

serviceniember; 

(2) That the accused was then a noncomrnissioned 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 spec@cation. . . In that (personal jmsdiction data), did (atlon board-location) (subjectmatter jurisdiction data, if required), on or 

about- - 19 gamble 

with then knowing that the 

said was not a noncommissioned 

or petty officer and was subordinate to the 

said 

85. Article 134--(Homicide, negligent) 

a. Text. See paragraph 60. 

b. Elements. 

(1) That a certain person is dead; 

(2) That this death resulted from the act or failure 

to act of the accused; 

(3) That the killing by the accused was unlawful; 

(4) That the act or failure to act of the accused 

which caused the death amounted to simple negligence; and 

(5) That, under the circumstances, the conduct of 

the accused was to the prejudice of good order and 

discipline in the armed forces or was of a nature to 

bring discredit upon the armed forces. 

c. Explanation. 

(1) Nature of offense. Negligent homicide is any 

unlawful homicide which is the result of simple negligence. An intent to kill or injure is not required. 

(2) Simple negligence. Simple negligence is the 

absence of due care, that is, an act or omission of a 

person who is under a duty to use due care which 

exhibits a lack of that degree of care of the safety of 

others which a reasonably careful person would have 

exercised under the same or similar circumstances. 

IV-109 
Simple negligence is a lesser degree of carelessness 

than culpable negligence. See paragraph 44c(2)(a). 

d. Lesser included oflenses. None 

e. Maximum punishment. Dishonorable discharge, 

forfeiture of all pay and allowances, and confinement for 3 years. 

f. 	Sample specification. 

In that - (personal jurisdiction data), did, (atlon board-location) (subject-matter jurisdiction data, if required), on or 

about 19 , unlawfully kill (by negligently -- the said-- (in) 

(on) the with a___-- 1 

(by driving a (motor vehicle) (--.-_-p~-) 

against the in a negligent 

manner) ). 

86. Article 134--(Impersonating a 

commissioned, warrant, noncommissioned, 

or petty officer, or an agent or official) 

a. 	Text. See paragraph 60. 

b. 	Elemerzts. 

(1) That the accused impersonated a cornrnissioned, warrant, noncommissioned, or petty officer, 

or an agent of superior authority of one of the armed 

forces of the United States, or an official of a certain 

government, in a certain manner; 

(2) That the impersonation was wrongful and 

willful; and 

(3) That, under the circumstances, the conduct of 

the accused was to the prejudice of good order and 

discipline in the armed forces or was of a nature to 

bring discredit upon the armed forces. 

[Note 1: If intent to defraud is in issue, add the 

following additional element after (2), above: That 

the accused did so with the intent to defraud a certain person or organization in a certain manner;]. 

[Note 2: If the accused is charged with impersonating an official of acertain government without an 

intent to defraud, use the following additional element after (2) above: That the accused committed 

one or more acts which exercised or asserted the 

authority of the office the accused claimed to have;]. 

c. 	Explanation. 

(1) Nature of offense. Impersonation does not 

depend upon the accused deriving a benefit from the 

deception or upon some third party being misled, 

although this is an aggravating factor. 

(2) Willfulness. "Willful" means with the knowledge that one is falsely holding one's self out as 

such. 

(3) Intent to defraud. See paragraph 49c(14). 

d. 	Lesser included offense. Article 80-attempts 

e. Maximum punishment. Impersonating a commissioned, warrant, noncommissioned, or petty officer, 

or an agent or official. 

(1) With intent to defraud. Dishonorable discharge, forfeiture of all pay and allowances, and 

confinement for 3 years. 

(2) All other cases. Bad-conduct discharge, forfeiture of all pay and allowances, and confinement 

for 6 months. 

f. 	Sample specification. 

In that (personal jurisdiction 

data), did, (atlon board-location) (subject-matter 

jurisdiction data, if required), on or 

about 19 wrongfully and willfully impersonate (a (commissioned officer) (warrant officer) (noncommissioned officer) 

(petty officer) (agent of superior authority) of the 

(Army) (Navy) (Marine Corps) (Air Force) (Coast 

Guard)) (an official of the Government 

of by (publicly wearing the uniform and insignia of rank of a (lieutenant of 

the )) (showing 

the credentials of 1 

( (with intent to defraud 

by *I 

(and (exercised) (asserted) the authority 

of 	 by **). 

(*See subsection b note 1.) 

(**See subsection b note 2.) 

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 

IV-110 
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. Maximum punishment. Dishonorable discharge, 

forfeiture of all pay and allowances, and confinement for 7 years. 

f. Sample specification. 

In that-..- (personal jurisdiction 

data), did, (atlon board-location) (subject-matter 

jurisdiction data, if required), on or 

a b o u t - 19- , (take 

(indecent) liberties with) (commit an indecent act 

(upon) (with) the body of)- , a (female) (male) under 16 years of age, not the (wife) 

(husband) of the saiL--, by (fondling 

(her) (him) and placing hislher hands upon (her) 

(his) leg and private parts) 1, 

with intent to (arouse) (appeal to) (gratify) the (lust) 

(passion) (sexual desires) of the 

saih.(and ). 

88. Article 134-(lndecent exposure) 

a. Text. See paragraph 60. 

b. Elements. 

(1) That the accused exposed a certain part of the 

accused's body to public view in an indecent 

manner; 

(2) That the exposure was willful and wrongful; 

and 

(3) That, under the circumstances, the accused's 

conduct was to the prejudice of good order and 

discipline in the armed forces or was of a nature to 

bring discredit upon the armed forces. 

c. Explanation. "Willful" means an intentional exposure to public view. Negligent indecent exposure 

is not punishable as a violation of the code. See 

paragraph 90c concerning "indecent." 

d. Lesser included offense. Article 80-attempts 

e. Maxi~nzrrn punishment. Bad-conduct discharge, 

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

f. Sample specification. ..,. In that (personal junsdlctlon 

data), did (atlon board-location) (subject-matter jurisdiction data, if required), on or 

about 19 while 

(at a barracks window) willfully 

and wrongfully expose in an indecent matter to pub- . . hc view his or her 

89. Article 134-(lndecent language) 

a. Text. See paragraph 60. 

b. Elements. 

(1) That the accused orally or in writing communicated to another person certain language; 

IV-111 
(2) That such language was indecent; and 

(3) That, under the circumstances, the conduct of 

the accused was to the prejudice of good order and 

discipline in the 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 commu~licated 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 reasonably to corrupt morals or incite libidinous 

thoughts. TI); language must violate community 

standards. See paragraph 87 if the comtnunication 

was made in the physical presence of a child. 

d. Lesser included offenses. 

(1) Article 1 17-provoking speeches 

(2) Article 80-attempts 

e. Maxirniirn pzinishment. Indecent or insulting 

language. 

(1) Cornmiinicated to any child under tlie age of 

16 years. Dishonorable discharge, forfeiture of all 

pay and allowances, and confinement for 2 years. 

(2) Otlrer cases. Bad-conduct discharge; forfeiture of all pay and allowances, and confinement for 

6 months. 

f. Salrrple specificatiorr. 

In that . (personal jurisdiction 

data), did (aVon board-location) (subject-matter jurisdiction data, if required), on or 

about _ _ ---- -_ 19 . . , (orally) 

(in writing) communicate to . - - , (a 

child under the age of 16 years), certain indecent 

language, to wit: -.._ 

90. Article 134--(Indecent acts with another) 

a. Text. See paragraph 60. 

b. Elernents. 

(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 will1 respect to sexual relations. 

d. Lesser inchided offerise. Article 80-attempts 

e. Maxirnirrn punishment. Disl~onorable discharge, 

forfeiture of all pay and allowances, and confinement for 5 years. 

f. Sarrzple specijkation. 

In that . (personal jurisdiction 

data), did (atlon board-location) (subject-matter jurisdiction data, if required), on or 

about 19 -, wrongfully commit an indecent act with _ --. . 

by 

91. Article 134--(Jumping from vessel into 

the water) 

a. Text. See paragraph 60. 

b. Elernents. 

(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 [he armed forces or was of a nature to 

bring discredit upon the anned forces. 

c. Explanation. "In use by" means any vessel operated by or under the co~ltrol of the armed forces. 

This offense may be committed at sea, at anchor, or 

in port. 

d. Lesser iricl~rded offense. Article 80-attempts 

e. Maxirrninz plinishment. Bad-conduct discharge, 

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

f. Sarnple speci$cation. 

In that (personal jurisdiction 

data), did, on board , at (location), 

on or about 19 , 

wrongfully and intentio~lally jump 

from -. ..- , a vessel in use by the armed 

forces, into the (sea) (lake) (river). 

IV-112 
92. Article 134--(Kidnapping) 

a. Text. See paragraph 60. 

b. Elements. 

(1) That the accused seized, confined, inveigled, 

decoyed, or carried away a certain person; 

(2) That the accused then held such person 

against that person's will; 

(3) That the accused did so willfully and wrongfully; and 

(4) That, under the circumstances, the conduct of 

the accused was to the prejudice of good order and 

discipline in the armed forces or was of a nature to 

bring discredit upon the armed forces. 

c. Explanation. 

(1) Inveigle, decoy. "Inveigle" means to lure, lead 

astray, or entice by false representations or other 

deceitful means. For example, a person who entices 

another to ride in a 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) Held. "Held" means detained. The holding 

must be more than a momentary or incidental detention. For example, a robber who holds the victim at 

gunpoint while the victim hands over a wallet, or a 

rapist who throws his victim to the ground, does not, 

by such acts, commit kidnapping. On the other hand, 

if, before or after such robbery or rape, the victim is 

involuntarily transported some substantial distance, 

as from a housing area to a remote area of the base 

or post, this may be kidnapping, in addition to robbery or rape. 

(3) Against the will. "Against that person's will" 

means that the victim was held involuntarily. The 

involuntary nature of the detention may result from 

force, mental or physical coercion, or from other 

means, including false representations. If the victim 

is incapable of having a recognizable will, as in the 

case of a very young child or a mentally incompetent person, the holding must be against the will of 

the victim's parents or legal guardian. Evidence of 

the availability or nonavailability to the victim of 

means of exit or escape is relevant to the voluntariness of the detention, as is evidence of threats or 

force, or lack thereof, by the accused to detain the 

victim. 

(4) Willfully. The accused must have specifically 

intended to hold the victim against the victim's will 

to be guilty of kidnapping. An accidental detention 

will not suffice. The holding need not have been for 

financial or personal gain or for any other particular 

purpose. It may be an aggravating circumstance that 

the kidnapping was for ransom, however. See 

R.C.M. 1001(b)(4). 

(5) Wrongfully. "Wrongfully" means without jvstification 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. Maximum punishment. Dishonorable discharge, 

forfeiture of all pay and allowances, and confinement for life. 

f. Sample specification. 

In that (personal jurisdiction 

data), did, (atlon board-location) (subject-matter 

jurisdiction data, if required), on or 

about 19 willfully and wrongfully (seize) (confine) (inveigle) 

(decoy) (carry away) and hold_--~ (a 

minor whose parent or legal guardian the accused 

was not) (a person not a minor) against hisher will. 

93. Article 134--(Mail: taking, opening, 

secreting, destroying, or stealing) 

a. Text. See paragraph 60. 

b. Elements. 

(1) Taking. 

(a) That the accused took certain mail matter; 

(b) That such taking was wrongful; 

(c) That the mail matter was taken by the accused before it was delivered to or received by the 

addressee; 

(d) That such taking was with the intent to 

obstruct the correspondence or pry into the business 

or secrets of any person or organization; and 

(e) That, under the circumstances, the conduct 

IV-113 
of the accused was to the prejudice of good order 

and discipline in the armed forces or was of a nature 

to bring discredit upon the armed forces. 

(2) Opening, secreting, destroying, or stealing. 

(a) That the accused opened, secreted, 

destroyed, or stole certain mail matter; 

(b) That such opening, secreting, destroying, or 

stealing was wrongful; 

(c) That the mail matter was opened, secreted, 

destroyed, or stolen by the accused before it was 

delivered to or received by the addressee; and 

(d) That, under the circumstances, the conduct 

of the accused was to the prejudice of good order 

and discipline in the armed forces or was of a nature 

to bring discredit upon the armed forces. 

c. Explanation. These offenses are intended to protect the mail and mail system. "Mail matter" means 

any matter deposited in a postal system of any government or any authorized depository thereof or in 

official mail channels of the United States or an 

agency thereof including the armed forces. The 

value of the mail matter is not an element. See 

paragraph 46c(l) concerning "steal." 

d. Lesser included offenses. 

(1) Article 121-larceny; wrongful appropriation 

(2) Article 80-attempts 

e. Maximum punishment. Dishonorable discharge, 

forfeiture of all pay and allowances, and confinement for 5 years. 

f. Sample specifications. 

(1) Taking. 

In t h a t - (personal jurisdiction 

data), did, (adon board-location) (subject-matter 

jurisdiction data, if required), on or 

about 19 

wrongfully take certain mail matter, to wit: (a) (letter(~)) (postal card(s)) (package(s)), addressed 

to (out of the 

Post Office (orderly room 

of (unit mail box of 

( 1 > 

(from before (it) (they) 

(was) (were) (delivered) (actually received) (to) (by) 

the (addressee) with intent to (obstruct the correspondence) (pry into the (business) (secrets)) 

of__ __----. 

(2) Opening, secreting, destroying, or stealing. 

. .. In that^ (personal junsdichon 

data), did, (adon board-location) (subject-matter 

jurisdiction data, if required), on or 

about- 1 9 .- --

(wrongfully (open) (secret) (destroy)) (steal) certain 

mail matter, to wit: (a) (letter(s)) (postal card(s)) 

(package(s)) addressed to-- , which 

said (letter(s)) (- > (was) 

(were) then (in the Post Office (orderly room 

(unit mail box 

o f ( c u s t o d y 

of-- ) 1) (had 

previously been committed to . .

(a 

representative of (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. See paragraph 60. 

b. Elements. 

(1) That the accused deposited or caused to be 

deposited in the mails certain matter for mailing and 

delivery; 

(2) That the act was done wrongfully and 

knowingly; 

(3) That the matter was obscene; and 

(4) That, under the circumstances, the conduct of 

the accused was to the prejudice of good order and 

discipline in the armed forces or was of a nature to 

bring discredit upon the armed forces. 

c. Explanation. Whether something is obscene is a 

question of fact. "Obscene" is synonymous with "indecent" as the latter is defined in paragraph 89c. The 

matter must violate community standards of decency 

or obscenity and must go beyond customary limits 

of expression. "Knowingly" means the accused deposited the material with knowledge of its nature. 

d. Lesser included offense. Article 80-attempts 

e. Maximum punishment. Dishonorable discharge, 

forfeiture of all pay and allowances, and confinement for 5 years. 

f. Sample specijication. 

In that- ._-...__ (personal jurisdiction 

data), did, (adon board-location) (subject-matter 

jurisdiction data, if required), on or 

about. -_ 19 -. ,wrongIV-114 
fully and knowingly (deposit) (cause to be deposited) in the (United States) ) 

mails, for mailing and delivery a (letter) (picture) 

( __) (containing) (portraying) (suggesting) certain obscene matters, 

to wit:.-- 

95. Article 134--(Misprision of serious 

offense) 

a. Text. See paragraph 60. 

b. Elements. 

(1) That a certain serious offense was committed 

by a certain person; 

(2) That the accused knew that the said person 

had committed the serious offense; 

(3) That, thereafter, the accused concealed the serious offense and failed to make it known to civilian 

or military authorities as soon as possible; 

(4) That the concealing was wrongful; and 

(5) That, under the circumstances, the conduct of 

the accused was to the prejudice of good order and 

discipline in the armed forces or was of a nature to 

bring discredit upon the armed forces. 

c. Explanation. 

(1) In general. Misprision of a serious offense is 

the offense of concealing a serious offense committed by another but without such previous concert 

with or subsequent assistance to the principal as 

would make the accused an accessory. See paragraph 3. An intent to benefit the principal is not 

necessary to this offense. 

(2) Serious offense. For purposes of this paragraph, a "serious offense" is any offense punishable 

under the authority of the code by death or by confinement for a term exceeding 1 year. 

(3) Positive act of concealment. A mere failure or 

refusal to disclose the serious offense without some 

positive act of concealment does not make one 

guilty of this offense. Making a false entry in an 

account book for the purpose of concealing a theft 

committed by another is an example of a positive act 

of concealment. 

d. Lesser included ofense. Article 80-attempts 

e. Maximum punishment. Dishonorable discharge, 

forfeiture of all pay and allowances, and confinement for 3 years. 

f. 	Sample speciJication. 

In that (personal jurisdiction 

data), having knowledge that had 

actually committed a serious offense to wit: (the 

murder of 1, 

did, (atJon board-location) (subject-matter jurisdiction data, if required from about ___.--.--

19 to about -- 

19 wrongfully conceal such serious offense by and fail to make the 

same known to the civil or military authorities as 

soon as possible. 

96. 	Article 134--(Obstructing justice) 

a. Text. See paragraph 60. 

b. Elements. 

(1) That the accused wrongfully did a certain act; 

(2) That the accused did so in the case of a certain person against whom the accused had reason to 

believe there were or would be criminal proceedings 

pending; 

(3) That the act was done with the intent to influence, impede, or otherwise obstruct the due administration of justice; and 

(4) That, under the circumstances, the conduct of 

the accused was to the prejudice of good order and 

discipline in the armed forces or was of a nature to 

bring discredit upon the aimed forces. 

c. Explanation. This offense may be based on conduct that occurred before preferral of charges. Actual obstruction of justice is not an element of this 

offense. For purposes of this paragraph "criminal 

proceedings" includes nonjudicial punishment 

proceedings under Part V of this Manual. Examples 

of obstruction of justice include wrongfully influencing, intimidating, impeding, or injuring a witness, a 

person acting on charges under this chapter, an investigating officer under R.C.M.406, or a party; and 

by means of bribery, intimidation, misrepresentation, 

or force or threat of force delaying or preventing 

communication of information relating to a violation 

of any criminal statute of the United States to a 

person authorized by a department, agency, or armed 

force of the United States to conduct or engage in 

investigations or prosecutions of such offenses; or 

endeavoring to do so.See also paragraph 22 and Article 37. 

d. Lesser included offenses. None. 

e. Maximum punishment. Dishonorable discharge, 

IV-115 
forfeiture of all pay and allowances, and confinement for 5 years. 

f. Sample specijication. 

In that_- - (personal jurisdiction 

data), did, (atlon board-location) (subject-matter 

jurisdiction data, if required), on or 

about 19 wrongfully (endeavor to) (impede (a trial by court-martial) . . (an investigation) )) [influence the 

actions of (a trial counsel of the 

court-martial) (a defense counsel of the court-martial) (an officer responsible for making a recomrnendation concerning disposition of charges) 

)] [(influence) (alter) the testimony of as a witness before a 

(court-martial) (an investigating officer) 

)] in the case of 

by [(promising) (offering) (giving) to the 

said , (the sum of 

$ (--__.-__-, of a value of 

about $ )] [communicating to the 

said_ a threat to ] 

[- 1, (if) (unless) helshe, the 

said would [recommend dismissal 

of the charges against said--_ 1 

[(wrongfully refuse to testify) (testify falsely concerning-3 )] [(at 

such trial) (before such investigating officer)] 

[ -I. 

96a. Art 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 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 interference include wrongfully influencing, 

intimidating, impeding, or injuring a witness, an investigator, or other person acting on an adverse administrative action; by means of bribery, 

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 information relevant to such adverse administrative 

proceeding. 

d. Lesser included offenses. None. 

e. Maximum punishment. Dishonorable discharge, 

forfeiture of all pay and allowances, and confinement for 5 years. 

f. Sample specification. .... In that (personal juns&ction 

data), did (atlon board-location) (subject-matter jurisdiction data, if required), on or 

about 19 

(wrongfully endeavor to) [impede (an adverse administrative proceeding) (an investigation) 

[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 administrative proceeding)( )] [(influence)(alter) the testimony of a witness before (a board 

established to consider an administrative proceeding 

or elimination) (an investigating officer)( )I in the case 

of by ](promising) (offering) (giving) to the said (the sum of 

$ ) ~ of a value of . . about [communicating to the 

said a threat to ....~] 

[ 1, (if) (unless) the 

said.- - , would [recommend dismissal 

of the action against said ~ ~ ]

[(wrongfully refuse to testify) (testify falsely concerning )] [(at 

such administrative proceeding) (before such investiIV-116 
gating officer) (before such administrative board)] 

[ ~ I.

97. Article 134-(Pandering and prostitution) 

a. Text. See paragraph 60. 

b. Elements. 

(1) Prostitution. 

(a) That the accused had sexual intercourse 

with another person not the accused's spouse; 

(b) That the accused did so for the purpose of 

receiving money or other compensation; 

(c) That this act was wrongful; and 

(d) That, under the circumstances, the conduct 

of the accused was to the prejudice of good order 

and discipline in the armed forces or was of a nature 

to bring discredit upon the armed forces. 

(2) Pandering by compelling, inducing, enticing, 

or procuring act of prostitution. 

(a) That the accused compelled, induced, enticed, or procured a certain person to engage in an 

act of sexual intercourse for hire and reward with a 

person to be directed to said person by the accused; 

(b) That this compelling, inducing, enticing, or 

procuring was wrongful; and 

(c) That, under the circumstances, the conduct 

of the accused was to the prejudice of good order 

and discipline in the armed forces or was of a nature 

to bring discredit upon the armed forces. 

(3) Pandering by arranging or receiving consideration for arranging for sexual intercourse or 

sodomy. 

(a) That the accused arranged for, or received 

valuable consideration for arranging for, a certain 

person to engage in sexual intercourse or sodomy 

with another person; 

(b) That the arranging (and receipt of consideration) was wrongful; and 

(c) That, under the circumstances, the conduct 

of the accused was to the prejudice of good order 

and discipline in the armed forces or was of a nature 

to bring discredit upon the armed forces. 

c. Explanation. Prostitution may be committed by 

males or females. Sodomy for money or compensation is not included in subparagraph b(1). Sodomy 

may be charged under paragraph 51. Evidence that 

sodomy was for money or compensation may be a 

matter in aggravation. See R.C.M.1001(b)(4). 

d. Lesser included offense. Article 80-attempts 

e. Maximum punishment. 

(1) Prostitution. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 

1 year. 

(2) Pandering. Dishonorable discharge, forfeiture 

of all pay and allowances, and confinement for 5 

years. 

f. Sample specifications. 

(1) Prostitution. .. . . In that (personal junsdctlon 

data), did, (adon board-location) (subject-matter 

jurisdiction data, if required), on or 

about 19 wrongfully engage in (an act) (acts) of sexual intercourse 

with a person not histher spouse, 

for the purpose of receiving (money) 

( . ). 

(2) Coinpelling, inducing, enticing, or procuring 

act of prostitution. .... In that (personal junsdct~on 

data), did, (adon board-location) (subject-matter 

jurisdiction data, if required), on or 

about 19- , wrongfully (compel) (induce) (entice) (procure) to engage in (an act) (acts) of 

(sexual intercourse for hire and reward) with persons 

to be directed to himlher by the 

said-

(3) Arranging, or receiving consideration for arranging for sexual intercourse or sodomy. 

In that (personal jurisdiction 

data), did, (adon board-location) (subject-matter 

jurisdiction data, if required), on or 

about 19 _ ., wrongfully (arrange for) (receive valuable consideration, to 

wit: on account of arranging for- 

) to engage in (an act) (acts) of 

(sexual intercourse) (sodomy) 

witk _ -- ._._. 

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 defmed 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 residence requirement stating where and with 

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 courtmartial sentence. In return for giving his or her 

"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 specifications. 

In that (personal jurisdiction data), a prisoner on parole, did, (at/on board-location), on or about 19__-------, 

violate the conditions of hisfher parole 

by --. 

98. Article 134--(Perjury: subornation of) 

a. Text. See paragraph 60. 

b. Elements. 

(1) That the accused induced and procured a certain person to take an oath or its equivalent and to 

falsely testify, depose, or state upon such oath or its 

equivalent concerning a certain matter; 

(2) That the oath or its equivalent was administered to said person in a matter in which an oath or 

its equivalent was required or authorized by law; 

(3) That the oath or its equivalent was administered by a person having authority to do so; 

(4) That upon the oath or its equivalent said person willfully made or subscribed a certain statement; 

(5) That the statement was material; 

(6) That the statement was false; 

(7) That the accused and the said person did not 

then believe that the statement was true; and 

(8) That, under the circumstances, the conduct of 

the accused was to the prejudice of good order and 

discipline in the armed forces or was of a nature to 

bring discredit upon the armed forces. 

c. Explanation. See paragraph 57c for applicable 

principles. "Induce and procure" means to influence, 

persuade, or cause. 

d. Lesser included offense. Artic!e 8Gattempts 

e. Maximum punishment. Dishonorable discharge, 

forfeiture of all pay and allowances, and confinement for 5 years. 

f. Sample spec$cation. 

In that___. (personal jurisdiction 

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

jurisdiction data, if required), on or 

19.- ., procure--- .to commit perjury by inducing himher, the said to take a 

lawful (oath) (affmation) in a (trial by court-martial 

of (trial by a court of competent jurisdiction, to wit: -

of____--___) (deposition for use in a trial 

by of 

that helshe, the 

said would (testify) (depose) 

(---- .. ---) truly, and to (testify) (depose) 

willfully, corruptly, and contrary 

to such (oath) (affirmation) in substance 

that which (testimony) (deposition) (- _ was upon a material matter 

and which the accused and the said 

did not then believe to be true. 

99. Article 134--(Public record: altering, 

concealing, removing, mutilating, 

obliterating, or destroying) 

a. Text. See paragraph 60. 

b. Elements. 

IV-118 
(I) Tliat tlie accused altered, concealed, removed, 

mutilated, obliterated, destroyed, or took with tlie 

intent to alter, conceal, remove, mutilate, obliterate, 

or destroy, a certain public record; 

(2) That tlie act of the accused was willful and 

unlawful; and 

(3) Tliat, under the circun~stances, the conduct of 

the accused was to tlie prejudice of good order and 

discipline in the armed forces or was of a nature to 

bring discredit upon the anned forces. 

c. Explanation. "Public records" include records, 

reports, statements, or data compilations, in any 

form, of public offices or agencies, setting forth the 

activities of the office or agency, or matters observed pursuant to duty imposed by law as to which 

matters there was a duty to report. "Public records" 

includes classified matters. 

d. Lesser incll~cled offense. Article 80-attempts 

e. Maxi~nzit~zpcntishment. Dishonorable discharge, 

forfeiture of all pay and allowances, and confinement for 3 years. 

f. Sanzple specification. 

In that (personal jurisdiction 

data), did, (atlon board-location) (subject-matter 

jurisdiction data, if required), on or 

about . 19 , willfully and unlawfully ((alter) (conceal) (remove) (mutilate) (obliterate) (destroy)) (take with intent to 

(alter)(conceal) (remove) (mutilate) (obliterate) 

(destroy)) a public record, to wit: _._ . . . - _ _ . 

100. Article 134-(Quarantine: medical, 

breaking) 

a. Text. See paragraph 60. 

b. Eletnents. 

(1) That a certain person ordered tlie accused into 

medical quarantine; 

(2) That the person was authorized to order the 

accused into medical quarantine; 

(3) Tliat the accused knew of this medical quarantine and the limits thereof; 

(4) That tlie accused went beyond the limits of 

the medical quarantine before being released therefrom by proper authority; and 

(5) That, under the circumstances, tlie 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 incklderl offenses. 

(1) Article 134-breaking restriction 

(2) Article 80-attempts 

e. Maxitttut~i p~mish~nent. Confinement for 6 months 

and forfeiture of two-thirds pay per month for 6 

months. 

f. Satnple specification. 

In that (personal jurisdiction 

data) having been placed in medical quarantine by a 

person authorized to order the accused into medical 

quarantine, did, (atton board-location) (subjectmatter jurisdiction data, if required), on or 

about . . .. 19 . _ .-_-, break 

said medical quarantine. 

101. Article 134-(Requesting commission 

of an offense) 

Paragraph 101 is deleted pursuant to Executive 

Order 12708. 

102. Article 134--(Restriction, breaking) 

a. Text. See paragraph 60. 

b. Elements. 

(1) Tliat 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 

tlie li~iiits thereof; 

(4) That tlie accused went beyond the li~iiits of 

the restriction before being released therefrom by 

proper authority; and 

(5) Tliat, under the circumstances, the conduct of 

tlie accused was to the prejudice of good order and 

discipline in tlie anned forces or was of a nature to 

bring discredit upon tlie 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 tlie sentence of a courtmartial (see R.C.M. 1003(b)(6)), and administrative 

restriction in tlie interest of training, operations, security, or safety. 

d. Lesser inchrded offenses. Article 80-attempts 
e. Maximum punishment. Confinement for 1 month 

and forfeiture of two-thirds pay per month for 1 

month. 

f. Sample specijkation. 

In that (personal jurisdiction 

data), having been restricted to the limits 

of by a person authorized to do 

so, did, (atton board-location), on or 

about 19- , break 

said restriction. 

103. Article 134--(Seizure: destruction, 

removal, or disposal of property to prevent) 

a. Text. See paragraph 60. 

b. Elements. 

(1) That one or more persons authorized to make 

searches and seizures were seizing, about to seize, or 

endeavoring to seize certain property; 

(2) That the accused destroyed, removed, or otherwise disposed of that property with intent to prevent the seizure thereof; 

(3) That the accused then knew that person(@ 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. 3 16(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. Maximum punishment. Dishonorable discharge, 

forfeiture of all pay and allowances, and confinement for 1 year. 

f. Sample specification. 

In that _ - (personal jurisdiction data), did, (atlon board-location) (subject 

matter jurisdiction data, if required), on or 

about 19 -. -, with 

intent to prevent its seizure, (destroy) (remove) (dispose of) property which, 

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. 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. Expla~tation. 

(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 punisltment. 

(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 dis- 
19 

charge, forfeiture of all pay and allowances, and 

confinement for 5 years. 

f. Sample specification. .... In that (personal junsdlctlon 

data), did, (atlon board-location) (in a hostile fire 

pay zone) on or about 

(a time of war,) intentionally 

injure himselfherself by- . (nature 

and circumstances of injury). 

104. Article 134--(Sentinel or lookout: 

offenses against or by) 

a. Text. See paragraph 60. 

b. Elements. 

(1) Disrespect to a sentinel or lookout. 

(a) That a certain person was a sentinel or 

lookout; 

(b) That the accused knew that said person was 

a sentinel or lookout; 

(c) That the accused used certain disrespectful 

language or behaved in a certain disrespectful 

manner; 

(d) That such language or behavior was 

wrongful; 

(e) That such language or behavior was directed toward and within the sight or hearing of the 

sentinel or lookout; 

(0 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 

or while the accused was receiving special pay 

under 37 U.S.C. 3 310, 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. 5 310).] 

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 paragraph 38c applies to loitering or sitting down while 

posted as a sentinel or lookout as well. 

(b) Loiter. "Loiter" means to stand around, to 

move about slowly, to linger, or to 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 wrollsfully 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. j 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 specijications. 

(1) Disrespect to a sentinel or lookout. 

In that (personal jurisdiction 

data), did, (atlon board-location), on or 

about 19 then 

knowing that was a sentinel or 

lookout, (wrongfully use the following disrespectful 

language or words to that effect, to. - __ _ -.) (wrongfully behave in a 

disrespectful manner toward 9 

by.-- a (sentinel) (lookout) in the execution of hisher duty. 

(2) Loitering or wrongfully sitting down on post 

by a sentinel or lookout. 

In that --- (personal jurisdiction data), while posted as a (sentinel) (lookout), 

IV-121 
9 

did, (at/on board-location) (while receiving special 

pay under 37 U.S.C. 5 310) on or about 

19 (a time of 

war) (loiter) (wrongfully sit down) on hislher post. 

105. Article 134--(Soliciting another to 

commit an offense) 

a. Text. See paragraph 60. 

b. Elements. 

(1) That the accused solicited or advised a certain 

person or persons to commit a certain offense under 

the code other than one of the four offenses named 

in Article 82; 

(2) That the accused did so with the intent that 

the offense actually be committed; and 

(3) That, under the circumstances, the conduct of 

the accused was to the prejudice of good order and 

discipline in the armed forces or was a nature to 

bring discredit upon the armed forces. 

c. Explanation. See paragraph 6c. If the offense solicited was actually committed, see also paragraph l. 

d. Lesser included offenses. Article 80 -attempts. 

(1) Article 134--Requesting another to commit 

an offense, wrongful communication of language 

(2) Article 80-attempts 

e. Maximum punishment. Any person subject to the 

code who is found 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 specijication. 

In that _ _ -(personal jurisdiction 

data), did, (atlon board-location) (subject-matter 

jurisdiction data, if required), on or 

about 19 wrongfully (solicit) (advise)._ (to disobey a 

general regulation, to wit: (to 

steal. , of a value of (about) 

$ , the property 

of ) (to----- > 

by--- -. 

106. Article 134--(Stolen property: 

knowingly receiving, buying, concealing) 

a. Text. See paragraph 60. 

b. Elements. 

(1) That the accused wrongfully received, bought, 

or concealed certain property of some value; 

(2) That the property belonged to another person; 

(3) That the property had been stolen; 

(4) That the accused then knew that the property 

had been stolen; and 

(5) That, under the circumstances, the conduct of 

the accused was to the prejudice of good order and 

discipline in the armed forces or was of a nature to 

bring discredit upon the armed forces. 

c. Explanation. 

(1) In general. The actual thief is not criminally 

liable for receiving the property stolen; however a 

principal to the larceny (see paragraph I), when not 

the actual thief, may be found guilty of knowingly 

receiving the stolen property but may not be found 

guilty of both the larceny and receiving the property. 

(2) Knowledge. Actual knowledge that the property was stolen is required. Knowledge may be 

proved by circumstantial evidence. 

(3) Wrongfulness. Receiving stolen property is 

wrongful if it is without justification or excuse. For 

example, it would not be wrongful for a person to 

receive stolen property for the purpose of returning 

it to its rightful owner, or for a law enforcement 

officer to seize it as evidence. 

d. Lesser included offense. Article 8&attempts 

e. Maximum punishment. Stolen property, knowingly receiving, buying, or concealing. 

(1) Of a value of $100.00 or less. Bad-conduct 

discharge, forfeiture of all pay and allowances, and 

confinement for 6 months. 

(2) Ofa value ofmore than $100.00. Dishonorable discharge, forfeiture of all pay and allowances, 

and confinement for 3 years. 

f. Sample specijkation. .... In that (personal junsdlchon 

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

jurisdiction data, if required), on or 

about - . 19 wrongIV-122 
fully (receive) (buy) (conceal) ,of a 

value of (about) $ _ _ , tlie property 

of. _ .-. - .-., wliich property, as lielshe, the 

said-- -- , then knew, had been stolen. 

107. Article 134-(Straggling) 

a. Text. See paragraph 60. 

b. Elenlents. 

(1) Tliat 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 tlie armed forces. 

c. Explanation. "Straggle" means to wander away, 

to stray, to become separated from, or to lag or 

linger behind. 

d. Lesser incllided off~izse. Article 80-attempts 

e. Maxirlirrin pimislznzent. Confinement for 3 months 

and forfeiture of two-thirds pay per month for 3 

months. 

f. Sainple specification. 

In that . (personal jurisdiction data), did, at , 011 or 

about 19 , wliile 

accompanying hislher organization on (a march) 

(maneuvers) ( ), wrongfully 

straggle. 

108. Article 134-(Testify: wrongful refusal) 

a. Text. See paragraph 60. 

b. Elements. 

(1) That the accused was in the presence of a 

court-martial, board of officer(s), military commission, court of inquiry, an officer conducting an investigation under Article 32, or an officer taking a 

deposition, of or for tlie United States, at wliich 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) Tliat 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 tlie prejudice of good order and 

discipline in the armed forces or was of a nature to 

bring discredit upon the armed forces. 

c. Explanation. To "qualify as a witness" means that 

the witness declares that the witness will testify 

trutlifi~lly.See R.C.M. 807; Mil. R. Evid. 603. A 

good faith biit legally mistaken belief in the right to 

remain silent does not constitute a defense to a 

charge of wrongful to testify. See also Mil. R. Evid. 

301 and Section V. 

d. Lesser inclrrded offenses. None. 

e. Maxiriiraii plmislriiient. Dishonorable discharge, 

forfeiture of all pay and allowances, and confinement for 5 years. 

f. Sanlple specification. 

In that (personal jurisdiction 

data), being in the presence of (a) (an) ((general) 

(special) (summary) court-martial) (board of officer(~)) (military commission) (court of inquiry) (officer conducting an investigation under Article 32, 

Uniform Code of Military Justice) (officer taking a 

deposition) ( ) (of) (for) tlie United 

States, of which. . . -. was (military 

judge) (president), ( ), (and having 

been directed by the said to qualify 

as a witness) (and having qualified as a witness and 

having been directed by the said . -- to 

answer tlie following question(s) put to IiiniAier as a 

witness, " "), did, (atton board-location), on or about 

19 , wrongfully refuse (to qualify 

as a witness) (to answer said question(s)). 

109. Article 134--(Threat or hoax: bomb) 

a. Text. See paragraph 60. 

b. Elements. 

(1) Boiiib threat. 

(a) Tliat tlie accused communicated certain 

language; 

(b) That tlie language communicated amounted 

to a threat; 

(c) That the harm tlireatened was to be done by 

means of an explosive; 

(d) That tlie con~munication was wrongful; and 

(e) That, under the circurnstances, 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. 

IV-123 
(2) Bomb hoax. 

(a) That the accused communicated or conveyed certain information; 

(b)That the language or information concerned 

an attempt being made or to be made by means of 

an explosive to unlawfully kill, injure, or intimidate 

a person or to unlawfully damage or destroy certain 

property; 

(c) That the information communicated by the 

accused was false and that the accused then knew it 

was false; 

(d) That the communication of the information 

by the accused was malicious; and 

(e) That, under the circumstances, the conduct 

of the accused was to the prejudice of good order 

and discipline in the armed forces or was of a nature 

to bring discredit upon the armed forces. 

c. Explanation. 

(1) Threat. A "threat" is an expressed present determination or intent to kill, injure, or intimidate a 

person or to damage or destroy certain property 

presently or in the future. Proof that the accused 

actually intended to kill, injure, intimidate, damage, 

or destroy is not required. See also paragraph 110. 

(2) Malicious. A communication is "malicious" if 

the accused believed that the information would 

probably interfere with the peaceful use of the building, vehicle, aircraft, or other property concerned, or 

would cause fear or concern to one or more persons. 

(3) Explosive. See R.C.M.103(11). 

d. Lesser included offenses. 

(1) Bomb threat. 

(a) Article 134--communicating a threat 

(b) Article 80-attempts 

(2) Bomb hoax. Article 80-attempts 

e. Maximum punishment. Bomb threat and bomb 

hoax: Dishonorable discharge, forfeiture of all pay 

and allowances, and confinement for 5 years. 

f. Sample specifications. 

(1) Bomb threat. 

In that (personal jurisdiction data) did, (at/on board-location) (subjectmatter jurisdiction data, if required) on or 

about- 1 9 - , wrongfully communicate certain language, to 

wit:- , which language constituted a 

threat to harm a person or property by means of an 

explosive. 

(2) Bomb hoax. 

In that (personal jurisdiction data) did, (at/on board-location) (subjectmatter jurisdiction data, if required) on or 

about 19__-.______., maliciously (communicate) (convey) certain information 

concerning an attempt being made or to be made to 

unlawfully ((kill) (injure) (intimidate) 

) 	 ((damage) 

(destroy) by means of an explosive, to wit: which information 

was false and w h i c L then knew to 

be false. 

110. Article 134--(Threat, communicating) 

a. Text. See paragraph 60. 

b. Elements. 

(1) That the accused communicated certain language expressing a present determination or intent to 

wrongfully injure the person, property, or reputation 

of another person, presently or in the future; 

(2) Thai 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. Expla~mtion.To establish the threat it is not necessary that the accused actually intended to do the 

injury threatened. However, a declaration made 

under circumstances which reveal it to be in jest or 

for an innocent or legitimate purpose, or which contradict the expressed intent to commit the act, does 

not constitute this offense. Nor is the offense committed by the mere statement of intent to commit an 

unlawful act not involving injury to another. See 

a170 paragraph 109 concerning bomb threat. 

d. Lesser included oflenses. 

(1) Article 117-provoking speeches or gestures 

(2) Article 8battempts 

e. Maximum punishment. Dishonorable discharge, 

forfeiture of all pay and allowances, and confinement for 3 years. 

f. 	Sample specification. 

In that (personal jurisIV-124 
diction data), did, (atton board-location) (subjectmatter jurisdiction data, if required), on or 

about 19 , wrongfully communicate to _ -.-. - a threat 

(injure by - (accuse -_ -. .- --.of having committed tlie offense of )( - - >. 

11 1. Article 134-(Unlawful entry) 

a. Text. See paragraph 60. 

b. Elements. 

(1) That the accused entered the real property of 

another or certain personal property of another 

which amounts to a structure usually used for habitation or storage; 

(2) That such entry was unlawfi~l; and 

(3) That, under the circumstances, the conduct of 

the accused was to tlie 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 paraglap11 55 for a discussion of 

"entry." An entry is "unlawful" if made without the 

consent of any person autliorized 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 offnse. Article 80-attempts 

e. Maxirnunz punishnient. Bad-conduct discharge, 

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

f. Sariiple .specificatiorz. 

In that (personal jurisdiction 

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

jurisdiction data, if required), on or 

about 19 , unlawfully enter the (dwelling house) (garage) (warehouse) (tent) (vegetable garden) (orchard) 

(stateroom) ( - ) of _ . - - _ _. 

1 12. Article 134-(Weapon: concealed, 

carrying) 

a. Text. SPPparagraph 60. 

b. Elements. 

(1) That the accused carried a certain weapon 

concealed on or about the accused's person; 

(2) That tlie carrying was unlawful; 

(3) That the weapon was a dangerous weapon; 

and 

(4) That, under the circumstances, tlie 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 weaporr. A weapon is concealed 

when it is carried by a person and inte111ionally 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 tlie 

accused to do grievous bodily harm. 

(3) On or aboiit. "On or about" means the 

weapon was carried on the accused's person or was 

within the immediate reach of the accused. 

d. Lesser irlclrrdetl oflense. Article 80-attempts 

e. Maxinlum plinishment. Bad-conduct discharge, 

forfeiture of all pay and allowances, and confinement for 1 year. 

f. Sarnple specification. 

In that (personal jurisdiction 

data), did, (atton board-location) (subject-matter 

jurisdiction data, if required), on or 

about 19 . , unlawfully carry 011 or about liisfl1er person a concealed 

wrapon, to wit: a 

113. Article 134-(Wearing unauthorized 

insignia, decoration, badge, ribbon, device, 

or lapel button) 

a. Text. See paragrapl~ 60. 

b. Elements. 

(1) That the accused wore a certain insignia, decoration, badge, ribbon, device, or lapel button upon 

tlie accused's uniform or civilian clotl~ing; 

(2) That the accused was not authorized to wear 

the item; 
(3) That the wearing was wrongful; and 

(4) That, under the circumstances, the conduct of 

the accused was to the prejudice of good order and 

discipline in the armed forces or was of a nature to 

bring discredit upon the armed forces. 

c. Explanation. None. 

d. Lesser included offense. Article 80-attempts 

e. Maximum punishment. Bad-conduct discharge, 

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

f. Sample specification. .. . . In that (personal junsdlctlon 

data), did, (atlon board-location), on or 

about_- --19_-. _,wrongfully and without authority wear upon hisher (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) 

( ) . 
PART V 


NONJUDlClAL PUNISHMENT PROCEDURE 


1. General 

a. Authority. Nonjudicial punishment in the United 

States Armed Forces is authorized by Article 15. 

b. Nature. Nonjudicial punishment is a disciplinary 

measure more serious than the administrative corrective measures discussed in paragraph lg, but less 

serious than trial by court-martial. 

c. Purpose. Nonjudicial punishment provides commanders with an essential and prompt means of 

maintaining good order and discipline and also 

promotes positive behavior changes in servicemembers without the stigma of a court-martial 

conviction. 

d. Policy. 

(1) Commander's responsibility. Commanders are 

responsible for good order and discipline in their 

commands. Generally, discipline can be maintained 

through effective leadership including, when necessary, administrative corrective measures. Nonjudicial 

punishment is ordinarily appropriate when adrninistrative corrective measures are inadequate due to the 

nature of the minor offense or the record of the 

servicemember, unless it is clear that only trial by 

court-martial will meet the needs of justice and discipline. Nonjudicial punishment shall be considered 

on an individual basis. Commanders considering 

nonjudicial punishment should consider the nature of 

the offense, the record of the servicemember, the 

needs for good order and discipline, and the effect 

of nonjudicial punishment on the servicemember and 

the servicemember's record. 

(2) Commander's discretion. A commander who 

is considering a case for disposition under Article 15 

will exercise personal discretion in evaluating each 

case, both as to whether nonjudicial punishment is 

appropriate, and, if so, as to the nature and amount 

of punishment appropriate. No superior may direct 

that a subordinate authority impose nonjudicial punishment in a particular case, issue regulations, orders, or "guides" which suggest to subordinate 

authorities that certain categories of minor offenses 

be disposed of by nonjudicial punishment instead of 

by court-martial or administrative corrective measures, or that predetermined kinds or amounts of punishments be imposed for certain classifications of 

offenses that the subordinate considers appropriate 

for disposition by nonjudicial punishment. 

(3) Commander's suspension authority. Commanders should consider suspending all or part of 

any punishment selected under Article 15, particularly in the case of first offenders or when significant extenuating or mitigating matters are present. 

Suspension provides an incentive to the offender and 

gives an opportunity to the commander to evaluate 

the offender during the period of suspension. 

e. Minor offenses. Nonjudicial punishment may be 

imposed for acts or omissions that are minor offenses under the punitive articles (see Part IV). 

Whether an offense is minor depends on several 

factors: the nature of the offense and the circumstances surrounding its commission; the offender's 

age, rank, duty assignment, record and experience; 

and the maximum sentence imposable for the offense if tried by general court-martial. Ordinarily, a 

minor offense is an offense which the maximum 

sentence imposable would not include a dishonorable discharge or confinement for longer than 1 year 

if tried by general court-martial. The decision 

whether an offense is "minor" is a matter of discretion for the commander imposing nonjudicial punishment, but nonjudicial punishment for an offense 

other than a minor offense (even though thought by 

the commlinder to be minor) is not a bar to trial by 

court-martial for the same offense. See R.C.M. 

907(b)(2)(D)(iv). However, the accused 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)(l)(B). 

f. Limitations on nonjudicial punishment. 

(1) Double punishment prohibited. When nonjudicial punishment has been imposed for an offense, punishment may not again be imposed for the 

same offense under Article 15. But see paragraph le 

concerning trial by court-martial. 

(2) Increase in punishment prohibited. Once nonjudicial punishment has been imposed, it may not be 

increased, upon appeal or otherwise. 

(3) Multiple punishment prohibited. When a commander determines that nonjudicial punishment is 

appropriate for a particular servicemember, all 

known offenses determined to be appropriate for disposition by nonjudicial punishment and ready to be 

considered at that time, including all such offenses 

arising from a single incident or course of conduct, 
shall ordinarily be considered together, and not 

made the basis for multiple punishments. 

(4) Statute of limitations. Except as provided in 

.Article 43(d), nonjudicial punishment may not be 

imposed for offenses which were committed more 

than 2 years before the date of imposition. See Article 43(c). 

(5) Civilian courts. Nonjudicial punishment may 

not be imposed for an offense tried by a court which 

derives its authority from the United States. Nonjudicial punishment may not be imposed for an offense tried by a State or foreign court unless 

authorized by regulations of the Secretary 

concerned. 

g. Relationship of nonjudicial punishment to administrative corrective measures. Article 15 and Part V 

of this Manual do not apply to include, or limit use 

of administrative corrective measures that promote 

I

efficiency and good order and discipline such as 

counseling, admonitions, reprimands, exhortations, 

disapprovals, criticisms, censures, reproofs, rebukes, 

extra military instruction, and administrative withholding of privileges. See also R.C.M. 306. Administrative corrective measures are not punishment, 

and they may be used for acts or omissions which 

are not offenses under the code and for acts or 

omissions which are offenses under the code. 

h. Effect of errors. Failure to comply with any of 

the procedural provisions of Part V of this Manual 

shall not invalidate a punishment imposed under Article 15, unless the error materially prejudiced a substantial right of the servicemember on whom the 

punishment was imposed. 

2. Who may impose nonjudicial punishment 

The following persons may serve as a nonjudicial 

punishment authority for the purposes of adrninistering nonjudicial punishment proceedings under this 

Part: 

a. Commander. Unless otherwise provided by regulations of the Secretary concerned, a commander 

may impose nonjudicial punishment upon any military personnel of that command. "Commander" 

means a commissioned or warrant officer who, by 

virtue of rank and assignment, exercises primary 

command authority over a military organization or 

prescribed territorial area, which under pertinent official directives is recognized as a "command." Subject to subparagraph ld(2) and any regulations of the 

Secretary concerned, the authority of a commander 

to impose nonjudicial punishment as to certain types 

of offenses, certain categories of persons, or in specific cases, or to impose certain types of punishment, may be limited or withheld by a superior 

commander or by the Secretary concerned. 

b. O#icer 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, detachment, squadron, team, air group, or other 

regularly organized body. 

4. Procedure 

a. Notice. If, after a preliminary inquiry (see R.C.M. 

303), the nonjudicial punishment authority determines that disposition by nonjudicial punishment 

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 

authority is considering the imposition of nonjudicial 

punishment; 

(2) a statement describing the alleged offensesincluding the article of the code-which the member 

is alleged to have committed; 
(3) a brief summary of the information upon 

which the allegations are based or a statement that 

the member may, upon request, examine available 

statements and evidence; 

(4) a statement of the rights that will be accorded 

to the servicemember under subparagraphs 4c(l) and 

(2) of this Part; 

(5) unless the right to demand trial is not applicable (see paragraph 3 of this Part), a statement that 

the member may demand trial by court-martial in 

lieu of nonjudicial punishment, a statement of the 

maximum punishment which the 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 sewicemember. 

(1) Demand for trial by court-nuzrtial. If the servicemember demands trial by court-martial (when 

this right is applicable), the nonjudicial proceedings 

shall be terminated. It is within the discretion of the 

commander whether to forward or refer charges for 

trial by court-martial (see R.C.M. 306; 307; 

401-407) in such a case, but in no event may nonjudicial punishment be imposed for the offenses affected unless the demand is voluntarily withdrawn. 

(2) No demand for trial by court-martial. If the 

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) Personal appearance requested; procedure. 

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 appearance is prevented by the unavailability of the 

nonjudicial punishment authority or by extraordinary 

circumstances, in which case the servicemember 

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 

requests personal appearance, the servicemember 

shall be entitled to: 

(A) Be informed in accordance with Article 

310); 

(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 spokespersr .I is not 

entitled to travel or similar expenses, and the 

proceedings need not be delayed to permit the presence of a spokesperson; the spokesperson may speak 

for the servicemember, but may not question witnesses except as the nonjudicial puni~hInent 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 nonjudicial punishment authority has examined in 

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) Present matters in defense, extenuation, 

and mitigation orally, or in writing, or both; 

(F) Have present witnesses, including those adverse to the servicemember, upon request if their 

statements will be relevant and they are reasonably 

available. For purposes of this subparagraph, a witness is not reasonably available if the witness requires reimbursement by the United States for any 

cost incurred in appearing, cannot appear without 

unduly delaying the proceedings, or, if a military 

witness, cannot be excused from other important 

duties; 

(G) Have the proceeding open to the public 

unless the nonjudicial punishment authority determines that the proceeding should be closed for good 

cause, such as military exigencies or security interests, or unless the punishment to be imposed will 

not exceed extra duty for 14 days, restriction for 14 

days, and an oral reprimand; however, nothing in 

v-3 
this subparagraph requires special arrangements to 

be made to facilitate access to the proceeding. 

(2) Personal appearance waived; procedure. 

Subject to the approval of the nonjudicial punishment authority, the servicemember may request not 

to appear personally under subparagraph 4c(l) 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 decisic:~ 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) Evidence. The Military Rules of Evidence 

(Part 110, other than with respect to privileges, do 

not apply at nonjudicial punishment proceedings. 

Any relevant matter may be considered, after compliance with subparagraphs 4c(l)(C) and (D) of this 

Part. 

(4) Decision. After considering all relevant matters presented, if the nonjudicial punishment 

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 cornmitted 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 

inquiry or other investigative body, in which 

proceeding the member was accorded the rights of a 

party. No additional proceeding under subparagraph 

4c(l) of this Part is required. The servicemember 

shall be informed in writing that nonjudicial punishment is being considered based on the record of the 

proceedings in question, and given the opportunity, 

if applicable, to refuse nonjudicial punishment. If the 

servicemember does not demand trial by court-martial or has no option, the servicemember may submit, in writing, any matter in defense, extenuation, 

or mitigation, to the officer considering imposing 

nonjudicial punishment, for consideration by that officer to determine whether the member committed 

the offenses in question, and, if so, to determine an 

appropriate punishment. 

5. Punishments 

a. General limitations. The Secretary concerned 

may limit the power granted by Article 15 with 

respect to the kind and amount of the punishment 

authorized. Subject to paragraphs 1 and 4 of this 

Part and to regulations of the Secretary concerned, 

the kinds and amounts of punishment authorized by 

Article 15(b) may be imposed upon servicemembers 

as provided in this paragraph. 

b. Authorized maxiinurn 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 

oficers-

(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 tlte 

command-

(A) By any nonjudicial punishment authority- 

(i) if imposed upon a person attached to cr 

embarked in a vessel, confinement on bread and 

water or diminished rations for not more than 3 

consecutive days; 

(ii) correctional custody for not more than 7 

consecutive days; 

(iii) forfeiture of not more than 7 days' pay; 

(iv) reduction to the next inferior grade, if 

the grade from which demoted is within the promov-4 
tion authority of the officer imposing the reduction 

or any officer subordinate to the one who imposes 

the reduction; 

(v) extra duties, including fatigue or other 

duties, for not more than 14 consecutive days; 

(vi) restriction to specified limits, with or 

without suspension from duty, for not more than 14 

consecutive days; 

(B) If imposed by a commanding officer of the 

grade of major or lieutenant commander or above 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 intermedjate pay grade, if the grade from which demoted is 

within the promotion authority of the officer imposing the reduction or any officer subordinate to the 

one who imposes the reduction, but enlisted members in pay grades above E-4 may not be reduced 

more than one pay grade, except that during time of 

war or national emergency this category of persons 

may be reduced two grades if the Secretary concerned determines that circumstances require the removal of this limitation; 

(v) extra duties, including fatigue or other 

duties, for not more than 45 consecutive days; 

(vi) restriction to specified limits, with or 

without suspension from duty, for not more than 60 

consecutive days. 

c. Nature of punishinent. 

(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 

lg of this Part. In the case of commissioned officers 

and warrant officers, admonitions and reprimands 

given as nonjudicial punishment must be administered in writing. In other cases, unless otherwise 

prescribed by the Secretary concerned, they may be 

administered either orally or in writing. 

(2) Restriction. Restriction is the least sevele 

form of deprivation of liberty. Restriction involves 

moral rather than physical restraint. The severity of 

this type of restraint depends on its duration and the 

geographical limits specified when the punishment is 

imposed. A person undergoing restriction may be 

required to report to a designated place at specified 

times if reasonably necessary to ensure that the punishment is being properly executed. Unless otherwise specified by the nonjudicial punishment 

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 bk 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 ~esidence when 

government quarters have not been providcd. 

(4) Correctional custody. Correctional custody is 

the physical restraint of a person during duty or 

nonduty hours, or both, imposed as a punishment 

under Article 15, and may include extra duties, fatigue duties, or hard labor as an incident of correctional custody. A person may be required to serve 

correctional custody in a confinement facility, but if 

practicable, not in immediate association with persons awaiting trial or held in confinement pursuant 

to trial by court-martial. A person undergoing correctional custody may be required to perform those 

regular military duties, extra duties, fatigue duties, 

and hard labor which may be assigned by the authority charged with the administration of the punishment. The conditions under which correctional 

custody is served shall be prescribed by the Secretary concerned. In addition, the Secretary concerned 

may limit the categories of enlisted members upon 

whom correctional custody may be imposed. The 

authority competent to order the release of a person 

v-5 
from correctional custody shall be as designated by 

the Secretary concerned. 

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

diminished rations involves confinement in places 

where the person so confined may communicate 

only with authorized personnel. The ration to be 

furnished a person undergoing a punishment of confinement on bread and water or diminished rations is 

that specified by the authority charged with the administration of the punishment, but the ration may 

not consist solely of bread and water unless this 

punishment has been specifically imposed. When 

punishment of confinement on bread and water or 

diminished rations is imposed, a signed certificate of 

a medical officer containing an opinion that no serious injury to the health of the person to be confined 

will be caused by that punishment, must be obtained 

before the punishment is executed. The categories of 

enlisted personnel upon whom this type of punishment may be imposed may be limited by the Secretary concerned. 

(6) Extra duties. Extra duties involve the performance of duties in addition to those normally 

assigned to the person undergoing the punishment. 

Extra duties may include fatigue duties. Military duties of any kind may be assigned as extra duty. 

However, no extra duty may be imposed which constitutes a known safety or health hazard to the member or which constitutes cruel or unusual punishment 

or which is not sanctioned by customs of the service 

concerned. Extra duties assigned as punishment of 

noncommissioned officers, petty officers, or any 

other enlisted persons of equivalent grades or positions designated by the Secretary concerned, should 

not be of a kind which demeans their grades or 

positions. 

(7) Reduction in grade. Reduction in grade is one 

of the most severe forms of nonjudicial punishment 

and it should be used with discretion. As used in 

Article 15, the phrase "if the grade from which demoted is within the promotion authority of the officer imposing the reduction or any officer 

subordinate to the one who imposes the reduction" 

does not refer to the authority to promote the person 

concerned but to the general authority to promote to 

the grade held by the person to be punished. 

(8) Fo~eiture 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 inactiveduty, compensation for periods of inactive-duty 

training, plus any sea or foreign duty pay. "Basic 

pay" includes no element of pay other than the basic 

pay fixed by statute for the grade and length of 

service of the person concerned and does not include 

special pay for a special qualification, incentive pay 

for the performance of hazardous duties, proficiency 

pay, subsistence and quarters allowances, and similar types of compensation. If the punishment includes both reduction, whether or not suspended, 

and forfeiture of pay, the forfeiture must be based 

on the grade to which reduced. The amount to be 

forfeited will be expressed in whole dollar amounts 

only and not in a number of day's pay or fractions 

of monthly pay. If the forfeiture is to be applied for 

more than 1 month, the amount to be forfeited per 

month and the number of months should be stated. 

Forfeiture of pay may not extend to any pay accrued 

before the date of its imposition. 

d. Limitations on combination of punishments. 

(1) Arrest in quarters may not be imposed in 

combination with restriction; 

(2) Confinement on bread and water or diminished rations may not be imposed in combination 

with correctional custody, extra duties, or restriction; 

(3) Correctional custody may not be imposed in 

combination with restriction or extra duties; 

(4) Restriction and extra duties may be combined 

to run concurrently, but the combination may not 

exceed the maximum imposable for extra duties; 

(5) Subject to the limits in subparagraphs d(1) 

through (4) all authorized punishments may be hposed 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 

(2) a subsequent period of active duty (not including a period of active duty under Article 2(d)(l), 

unless such active duty was approved by the Secretary concerned). 

Unserved punishments may be carried over to subse- 
quent periods of inactive-duty training or active 

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 disciplinury 

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 subsequent periods of inactive-duty training or active 

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 

who imposes nonjudicial punishment, the commander who imposes nonjudicial punishment, or a 

successor in command over the person punished, 

may, at any time, suspend any part or amount of the 

unexecuted punishment imposed and may suspend a 

reduction in grade or a forfeiture, whether or not 

executed, subject to the following rules: 

(1) An executed punishment of reduction or forfeiture of pay may be suspended only within a period of 4 months after the date of execution. 

(2) Suspension of a punishment may not be for a 

period longer than 6 months from the date of the 

suspension, and the expiration .of the current enlistment or term of service of the servicemember involved automatically terminates the period of 

suspension. 

(3) Unless the suspension is sooner vacated, suspended portions of the punishment are remitted. 

without further action, upon the termination of the 

period of suspension. 

(4) Unless otherwise stated, an action suspending 

a punishment includes a condition that the servicemember not violate any punitive article of the 

code. The nonjudicial punishment authority may 

specify in writing additional conditions of the 

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)(l)-(7), the servicemember should, unless impracticable, be given 

an opportunity to appear before the officer authorized to vacate suspension of the punishment to present any matters in defense, extenuation, or 

mitigation of the violation on which the 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. 

The nonjudicial punishment authority who imposes 

nonjudicial punishment, the commander who imposes nonjudicial punishment, or a successor in 

command may, at any time, mitigate any part or 

amount of the unexecuted portion of the punishment 

v-7 
imposed. The nonjudicial punishment authority who 

imposes nonjudicial punishment, the commander 

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 

the officer who initially imposed the nonjudicial 

punishment. Reduction in grade may be mitigated to 

forfeiture of pay only within 4 months after the date 

of execution. 

When mitigating- 

(1) Arrest in quarters to restriction; 

(2) Confinement on bread and water or diminished rations to correctional custody; 

(3) Correctional custody or confinement on bread 

and water or diminished rations to extra duties or 

restriction, or both; or 

(4) Extra duties to restriction, the mitigated punishment may not be for a greater period than the 

punishment mitigated. As restriction is the least severe form of deprivation of liberty, it may not be 

mitigated to a lesser period of another form of deprivation of liberty, as that would mean an increase in 

the quality of the punishment. 

c. Remission. Remission is an action whereby any 

portion of the unexecuted punishment is cancelled. 

Remission is appropriate under the same circumstances as mitigation. The 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 

the punishment or any part or amount thereof, 

whether executed or unexecuted, is set aside and any 

property, privileges, or rights affected by the portion 

of the punishment set aside are restored. The nonjudicial punishment authority who imposed punishment, the commander who imposes nonjudicial 

punishment, or a successor in command may set 

aside punishment. The power to set aside punishments and restore rights, privileges, and property 

affected by the executed portion of a punishment 

should ordinarily be exercised only when the authority considering the case believes that, under all 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 

reasonable time in the absence of unusual 

circumstances. 

7. Appeals 

a. In general. Any servicemember punished under 

Article 15 who considers the punishment to be unjust or disproportionate to the offense may appeal 

through the proper channels to the next superior 

authority. 

b. Who may act on appeal. A "superior authority," 

as prescribed by the Secretary concerned, may act 

on an appeal. When punishment has been imposed 

under delegation of a commander's authority to administer nonjudicial punishment (see paragraph 2c 

of this Part), the appeal may not be directed to the 

commander who delegated the authority. 

c. Fomt of appeal. Appeals shall be in writing and 

may include the appellant's reasons for regarding the 

punishment as unjust or disproportionate. 

d. Time limit. An appeal shall be submitted within 5 

days of imposition of punishment, or the right to 

appeal shall be waived in the absence of good cause 

shown. A servicemember who has appealed may be 

required to undergo any punishment imposed while 

the appeal is pending, except that if action is not 

taken on the appeal within 5 days after the appeal 

was submitted, and if the servicemember so requests, any unexecuted punishment involving restraint or extra duty shall be stayed until action on 

the appeal is taken. 

e. Legal review. Before acting on an appeal from 

any punishment of the kind set forth in Article 

15(e)(l)-(7), the authority who is to act on the appeal shall refer the case to a judge advocate or to a 

lawyer of the Department of Transportation for consideration and advice, and may so refer the case 

upon appeal from any punishment imposed under 

Article 15. When the case is referred, the judge 

advocate or lawyer is not limited to an examination 

of any written matter comprising the record of 

proceedings and may make any inquiries and examine any additional matter deemed necessary. 

f. Action by superior authority. 

V-8 
(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 

legal review, if any, and any other appropriate 

matters. 

(3) Additional proceedings. If the superior authority sets aside a nonjudicial punishment due to a 

procedural error, that authority may authorize additional proceedings under Article 15, to be conducted 

by the officer who imposed the nonjudicial punishment, the commander, or a successor in command, 

for the same offenses involved in the original 

proceedings. Any punishment imposed as a result of 

these additional proceedings may be no more severe 

than that originally imposed. 

(4) Notification. Upon completion of action by 

the superior authority, the servicemember upon 

whom punishment was imposed shall be promptly 

notified of the result. 

(5) Delegation to principal assistant. If authorized by regulation of the Secretary concerned a superior authority who is a commander exercising 

general court-martial jurisdiction, or is an officer of 

general or flag rank in command, may delegate the 

power under Article 15(e) and this paragraph to a 

principal assistant. 

8. Records of nonjudicial punishment 

The content, format, use, and disposition of records of nonjudicial punishment may be prescribed 

by regulations of the Secretary concerned. 
APPENDIX 1 


CONSTITUTION OF THE UNITED STATES-1 787 


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 shaU 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. 

'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 

one, Maryland six, Vuginia ten, North Carolina five, South 

Carolina five, and Georgia three. 

When vacancies happen in the Representation from any state, 

the Executive Authority thereof shall issue Writs of Election to 

fill such Vacancies. 

The House of Representatives shall choose the Speaker and 

other officers; and shall have the sole power of Impeachment. 

Section 3. 2The 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 

'	This clause has been affected by the 14th and 16th amendments. 

This section has been affected by the 17th amendment 

This clause has been affected by the 20th amendment 

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 Lmpeachments. 

When sitting for that Purpose, they shall be on Oath or Affumation. 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. 

3The Congress shall assemble at least once in every Year, and 

such Meeting shall be on the fust 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 Qualifcations 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 
Art. 1, 5 5 APPENDIX 1 

the Consent of the other, adjourn for more than three days, nor to To coin Money, regulate the Value thereof, and of foreign coin, 

any other Place than that in which the two Houses shall be sitting. and fix the Standard of Weights and Measures; 

To provide for the Punishment of counterfeiting the Securities 

Section 6. The Senators and Representatives shall receive a 

Compensation for their Se~ces, 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 [>resentedto 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 

States; but all Duties, Imposts and Excises shall be uniform 

throughout the United States. 

To borrow Money on the credit of the United States; To regulate Commerce with foreign Nations, and among the several 

States, and with the Indian Tribes; 

To establish an uniform rule of Naturalization, and uniform 

Laws on the subject of Bankruptcies throughout the United 

States; 

A1-2 

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 

carrying into Execution the foregoing Powers, and all other 

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 

and Account of the Receipts and Expenditures of all public 

Money shall be published from time to time. 

No Title of Nobility shall be granted by the United States: And 
CONSTITUTION Art. 2, 5 3 

no Person holding any Office of Profit or Trust under them, shall, 

without the Consent of the Congress, accept of any present, 

Emolument, Office, or Title, of any kind whatever, from any 

King, Prince, or foreign State. 

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~heElectors 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 

This clause has been affected by the 12th amendment. 

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 bo1.1Citizen, 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 Ties, 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: '1 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 Appointment of such inferior Officers, as they think proper, in the 

President alone, in the Courts of Law, or in the Heads of Departments. 

The President shall have Power to fill up all Vacancies that 

may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their 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 

A1-3 
Art. 2, 5 3 APPE 

expedient; he may, on extraordinary Occasions, convene both 

Houses, or either of them, and in Case of Disagreement between 

them, with Respect to the Time of Adjournment, he may adjourn 

them to such Time as he shall think proper; he shall receive 

Ambassadors and other public Ministers: he shall take Care that 

the Laws be faithfully executed, and shall Commission all the 

Officers of the United States. 

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 Ill 

Section 1. The judicial Power of the United States shall be 

vested in one Supreme Court, and in such inferior courts as the 

Congress may from time to time ordain and establish. The Judges, 

both of the Supreme and inferior Courts, shall hold their Offices 

during good 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 

and Equity, arising under this Constitution, the Laws of the 

United States, and Treaties made, or which shall be made, under 

their Authority; to all Cases affecting Ambassadors, other public 

Ministers, and Consuls; to all Cases of admiralty and maritime 

Jurisdiction; to Controversies to which the United States shall be 

a Party; to Controversies between two or more States, between a 

State and Citizens of another State, between Citizens of different 

States, between Citizens of the same State claiming Lands under 

Grants of different States, and between a State or the Citizens 

thereof, and foreign States, Citizens, or Subjects. 

In all Cases affecting Ambassadors, other public Ministers and 

Consuls, and those in which a State shall be a Party, the Supreme 

Court shall have original Jurisdiction. In all the other Cases 

before mentioned, the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions and under 

such Regulations as the Congress shall make. 

The Trial of all Crimes, except in Cases of Impeachment,shall 

be by Jury; and such Trial shall be held in the State where the 

said Crimes shall have been committed; but when not committed 

within any State the Trial shall be at such Place or Places as the 

Congress may by Law have directed. 

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 

A1-4 

Manner in which such Acts, Records, and Proceedings shall be 

proved, and the Effect thereof. 

Se~ti0n2. 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 thuds of both House shall deem it 

necessary, shall propose Amendments to this Constitution, or, on 

the Application of the kgislatures 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 fust 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. 
CONSTITUTION Amdt. XI1 

The Senators and Representatives before mentioned, and the 

Members of the several State Legislatures, and all executive and 

judicial Officers, both of the United States and of the several 

States, shall be bound, by Oath or Affirmation, to support this 

Constitution; but no religious Test shall ever be required as a 

Qualification to any Office or public Trust under the IJnited 

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 ox 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 ll 

A well-regulated Militia being necessary to the secwily of a free 

State, the right of the people to keep and bear Arms, shall not be 

infringed. 

AMENDMENT Ill 

No Soldier shall, in time of peace, be quartered in any house, 

without the consent of the Owner; nor in time of war, but in a 

manner to be prescribed by law. 

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 hation, and particularly 

describing the place to be searched and the persons or things to 

be seized. 

AMENDMENT V 

No person shall be held to answer for a capital, or otherwise 

infamous, crime, unless on a presentment or indictment of a 

Grand Jury, except in cases arising in the land or naval forces, or 

in the Militia, when in actual service, in time of War, or public 

danger; nor shall any person be subject, for the same offence, to 

be twice put in jeopardy of life or limb; nor shall be compelled in 

any criminal case to be a witness against himself nor be deprived 

of life, liberty, or property, without due process of law; nor shall 

private property be taken for public use, without just 

compensation. 

AMENDMENT 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 process for obtaining witnesses in his favor; and to have the 

Assistance of Counsel for his defence. 

AMENDMENT VII 

In Suits at common law, where the value in controversy shall 

exceed twenty dollars, the right of trial by jury shall be preserved; 

and no fact, hied by a jury, shall be otherwise reexamined in any 

Court of the United States than according to the rules of the 

common law. 

AMENDMENT Vlll 

Excessive bail shall not be required, nor excessive fines imposed, 

nor cruel and unusual 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 XI1 

The Electors shall meet in their respective States, and vote by 

ballot for President and Vice-President, one of whom, at least, 

shall not be an inhabitant of the same State with themselves; they 

shall name in their ballots the person voted for as 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 Represc~~tatives 

shall not choose a President, whenever the right of choice shall 

devolve upon them, before the fourth day of March next following, tl~e Vice-President shall act as President, as in case of death, 

A1-5 
Amdt. XI1 APPENDIX 1 

or other constitutional disability of the President. The person 

having the greatest number of votes as Vice-President, shall be 

the Vice-President, if such number be a majority of the whole 

number of Electors appointed; and if no person have a majority, 

then, from the two highest numbers on the list, the Senate shall 

choose the Vice-President; a quorum for the purpose shall consist. 

of two-thirds of the whole number of Senators; 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 Xlll 

Section 1. Neither slavery nor involuntary senitude, 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 lie, 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, 

This article was replaced by the 21st amendment 

A1-6 

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 Lhs 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 

aflicle by appropriate legislation. 

AMENDMENT XVI 

The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment 

among the several States and without regard to any census or 

enumeration. 

AMENDMENT XVll 

The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; 

and each Senator shall have one vote. The electors in each State 

shall have the qualifications requisite for electors of the most 

numerous branch of the State 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 XVlll 

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, .nr the exportation thereof 

from the United States and all temtory 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 legislatwes of the several States, as provided in the Constitution, within 
CONSTITUTION Amdt. XXV, 3 1 

seven years of the date of the submission hereof to the States by 

Congress. 

AMENDMENT XIX 

The right of citizens of the United States to vote shall not be 

denied or abridged by the United States or by any State on 

account of sex. 

Congress shall have power to enforce this article by appropriate 

legislation. 

AMENDMENT XX 

Section 1. The terms of the President and Vice President shall 

end at noon on the 20th day of January, and the terms of Senators 

and Representatives at noon on the 3d day of January, of the 

years in which such terms would have ended if this article had 

not been ratified; and the terms of their successors shall then 

begin. 

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 qualif~ed. 

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 XXll 

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 XXlll 

Section 1. The District constituting the seat of Government of 

the United States shall appoint in such manner as the Congress 

may direct: 

A number of electors of President and Vice President equal to 

the whole number of Senators and Representative in Congress to 

which the District would be entitied if it were a '!ate, 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 shail have power to enforce this 

article by appropriate legislation. 

AMENDMENT XXlV 

Section 1. The right of citizens of the United States to vote in 

any primary or other election for President or Vice President, for 

electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the 

United States or any State by reason of failure to pay any poll tax 

or other tax. 

Section 2. The Congress shall have power to enforce this 

article by appropriate legislation. 

AMENDMENT XXV 

Section 1. In case of the removal of the President from office 

A1-7 
Amdt. XXV, § 1 APPENDIX 1 

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 

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 

duties shall be discharged by the Vice President as Acting 

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 XXVl 

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 XXVll 

No law, varying the compensation for the services of the Senators 

and Representatives, shall take effect, until an election of Representatives shall have intervened. 
APPENDIX 2 


UNIFORM CODE OF MILITARY JUSTICE 


CHAPTER 47. UNIFORM CODE OF MILITARY 

JUSTICE 

Subchapter 	 Sec. Art. 

I. General Provisions ................. 801 1 


11. Apprehension and Restraint .......... 807 7 


111. 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 

Navy, the General Counsel of the Department of Transportation. 

(2) The Navy, the Marine Corps, and the Coast Guard when it 

is operating as a service in the Navy, shall be considered as one 

armed force. 

(3) 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. 

(14) The term "record" , when used in connection with the 

proceedings of a court-martial, means -

(A) an official written transcript, written summary, or other 

writing relating to the proceedings; or 

(B) an official audiotape, videotape, or similar material from 

which sound, or sound and visual images, depicting the proceedings may be reproduced. 

(15) The term "classiiied 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 ll(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. 

g 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. 

(4) Retired members of a regular component of the armed 

forces who are entitled to pay. 
5 802. Art. 2.(a)(5) APPE 

(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 Ad- 


ministration, Public Health Service, and other organizations, when 


assigned to and serving with the armed forces. 


(9) Prisoners of war in custody of the armed forces. 

(10) In time of war, persons serving with or accompanying an 


armed force in the field. 


(11) Subject to any treaty or agreement to which the United 

States is or may be a party or to any accepted rule of international 

law, persons serving with, employed by, or accompanying the 

armed forces outside the United States and outside the Commonwealth of Puerto Rico, Guam, and the Virgin Islands. 

(12) Subject to any treaty or agreement to which the United 

States is or may be a party or to any accepted rule of international 

law, persons within an area leased by or otherwise reserved or 

acquired for the use of the United States which is under the 

control of the Secretary concerned and which is outside the 

United States and outside the Canal Zone, the Commonwealth of 

Puerto Rico, Guam, and the Virgin Islands. 

(b) The voluntary enlistment of any person who has the capacity 

to understand the significance of enlisting in the armed forces 

shall be valid for purposes of jurisdiction under subsection (a) and 

a change of status from civilian to member of the armed forces 

shall be effective upon the taking of the oath of enlistment. 

(c) Notwithstanding any other provision of law, a person serving 

with an armed force who- 

(1) submitted voluntarily to military authority; 

(2) met the mental 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)(l) 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 merr'ler 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) shall be exercised under regulations prescribed by the 

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 (I), 

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 0)). 

(e) The provisions of this section are subject to section 876(d)(2) 

of this title (article 76b(d)(2). 

Q 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. 

Q 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 be 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 

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 affiumed, 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. 

g 805. Art. 5. Territorial applicability of this 

chapter 

This chapter applies in all places. 

g 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. 

(5) 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)(l) 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@)(2)(J3) 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 Transportation 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(5)(2)(B) of this title. 

5 809. Art. 9.(c) 

§ 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. 

7. Apprehension 

8. Apprehension of deserters. 

9. Imposition of restraint. 

10. Restraint of persons charged with offenses. 

11. Reports and receiving of prisoners. 

12. Confinement with enemy prisoners prohibited. 

13. Punishment prohibited before trial. 

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. 

g 808. Art. 8. Apprehension of deserters 

Any civil officer having authority to apprehend offenders under 

the laws of the United States or of a State, Territory, Commonwealth, or possession, or the District of Columbia may summarily 

apprehend a deserter from the armed forces and deliver him into 

the custody of those forces. 

g 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 confmement by any commissioned officer by an order, oral or written, 

delivered in person or through other persons subject to this chapter. A commanding officer may authorize warrant officers, petty 

officers, or noncommissioned officers to order enlisted members 

of his command or subject to his authority into arrest or 

confinement. 

(c) A commissioned officer, a warrant officer, or a civilian subject to this chapter or to trial thereunder may be ordered into 

arrest or confinement only by a commanding officer to whose 

A2-3 
5 809. Art. 9.(c) APPENDIX 2 

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. 

Q 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. 

Q 81 1. 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. 

Q 812. Art. 12. Confinement with enemy prisoners 

prohibited 

No member of the armed forces may be placed in confimement 

in immediate association with enemy prisoners or other foreign 

nationals not members of the armed forces. 

Q 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 hi,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. 

Q 814. Art. 14. Delivery of offenders to civil 

authorities 

(a) Under such regulation* 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 

A2-4 

having answered to the civil authorities for his offense shall, upon 

the request of competent military authority, be returned to military custody for the completion of his sentence. 

SUBCHAPTER Ill. NON-JUDICIAL PUNISHMENT 

Q 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) restrictior? :o 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; 

@) 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; 

@) extra duties, including fatigue or other duties, for not 

more than 14 consecutive 
SUBCHAPTER IV. 

(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 subordinate to the one who imposes the reduction, but an enlisted 

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 punishmentBefore acting on an appeal from a punishment of -

(1) arrest in quarters for more than seven days; 

(2) correctional custody for more than seven days; 

(3) forfeiture of more than seven days' pay; 

(4) reduction of one or more pay grades from the fourth or a 

higher pay grade; 

(5) extra duties for more than 14 days; 

(6) restriction for more than 14 days; or 

(7) detention of more than 14 days' pay; 

the authority who is to act on the appeal shall refer the case to a 

judge advocate or a lawyer of the Department of Transportation 

for consideration and advice, and may so refer the case upon 

appeal from any punishment imposed under subsection (b). 

(f) The imposition and enforcement of disciplinary punishment 

under this article for any act or omission is not a bar to trial by 

court-martial for a serious crime or offense growing out of the 

same act or omission, and not properly punishable under this 

article; but the fact that a disciplinary punishment has been enforced may be shown by the accused upon trial, and when so 

shown shall be considered in determining the measure of punishment to be adjudged in the event of a finding of guilty. 

(g) The Secretary concerned may, by regulation, prescribe the 

form of records to be kept of proceedings under this article and 

may also prescribe that certain categories of those proceedings 

shall be in writing. 

SUBCHAPTER IV. COURT-MARTIAL 

JURISDICTION 

Sec. Art. 

816. 16. Courts-martial classified. 

817. 17. lurisdiction of courts-martial in general. 

818. 18. Jurisdiction of general courts-martial. 

819. 19. Jurisdiction of special courts-martial. 

820. 20. Jurisdiction of summary courts-martial. 

821. 21. Jurisdiction of courts-martial not exclusive. 
5 8l6. Art. 16. APPENDIX 2 

5 816. Art. 16. Courts-martial classified 

The three kinds of courts-martial in each of the ar~ned forces 

are-

(I) general courts-martial, consisting of- 

(A) a rnilitary judge and not less than five members; or 

(B) ot~ly a n~ilitary judge, if before the court is assen~bled the 

accused, knowing the identity of the military judge and after 

consultatio~~with defense counsel, requests orally on the record or 

in writing a court composed only of a n~ilitary judge and the 

n~ilitary judge approves; 

(2) special courts-martial, consisting of- 

(A) not less Uian three n~en~bers; or 

(B) a n~ilitary judge and 1101 less than three n~ea~bers; or 

(C) o111y a military judge, if one has been detailed lo the court, 

and the accused under the same conditio~~s asthose prescribed in 

clause (1)(B) so requests; and 

(3) summary courts-martial, consisting of one con~niissioned 

officer. 

§ 817. Art' 17' Jurisdiction courts-martia' in 

general 

(a) Each armed force has court-marlid jurisdiction over all persons subject to this chapter. The exercise of jurisdictio~~ by one 

armed force over persot~nel of another arlned force shall be in 

accordance with regulations prescribed by the President. 

(b) 111 all cases, departmental review after that by the officer with 

autliority to convene a gelleral court-maribl for tile conlmalld 

wliicll 1leld ale trial, wllere tllat review is required under tliis 

chapter, shall be carried out by the department that includes the 

armed force of wl~ich ll~e accused is a nie~nber. 

$818. Art. 18. Jurisdiction of general courtsmartial 

subject to seclioll 817 of l~lis 171, gerleral courtsmartial have jurisdiction to try persons subject to ulis cllapter for 

any offensemade punisllable by this cllapter and under such 

limitations as tl~e Presidellt may prescribe, adjudge ally pullisllment not forbidden by U~is chapter, including the penalty of death 

when specifically autlioorized by this chapter. General courts-martial also have jurisdiction to try any person who by tl~e law of war 

is subject to trial by a military tribunal and may adjudge any 

punisl~ment per~nitted by Ule law of war. However, a general 

court-marital 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 wliicli tlie death penalty niay be adjudged 

unless the case lias been previously referred to trial as a noncapital case. 

5 819. 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 

any noricnpital offense made punishable by this chapter and. 

under such regulations as the president may prescribe, for capital 

offenses. Special courts-martial may, under such li~~litatio~~s as the 

President mav -. orescribe. adiudee anv ~unishrnellt not forbidden , - - -. 

by this chapter except deatl~, disl~onorable discllarge, disolissal, 

A2-6 

confinenlent for more than six ~nonll~s, hard labor without confinement for more than ll~ree n~onths, forfeiture of pay exceeding 

two-thirds pay per mont11, or lorfeiture of pay for niore thaa six 

~nonths. A bad-conduct discharge may not be adjudged unless a 

con~plete record of the proceedings and testimony lias been made, 

counsel having the qualifications prescribed under section 827(b) 

of this title (article 27(b)) was detailed to represent Ule accused, 

and a military judge was detailed to the trial, except in any case 

in wl1ic11 a military judge could not be detailed to the trial because of physical conditions or nulitary 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 t11e record, stating tlie reason or reasons a military 

judge could not be detailed. 

§ 820. ~rt.20. Jurisdiction of summary courtsmartial 

Subject to section 817 of this title (article 17), sununary courts- 

~nartial 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 sunlmary courts-martial have jurisdiction 

nlay be brought to trial before a summary court-martial if he 

objects thereto. If objection to trial by sununary court-martial is 

made by an accused, trial may be ordered by special or general 

court-martial as may be appropriate. Summary courts-martial 

may, under such limitations as Uie President may prescribe, adjudge any punishnlent not forbiddell by this cllapter except death, 

dismissal, disl~o~~orable or bad-COII~UC~ discharge, confi~~enlent for 

more that1 one month, hard labor witl~out co~ifilieme~it for more 

thall 45 days, restriction to specified lilllits for more tllall two 

months, or forfeiture of more than two-thirds of one month's pay. 

§ 821. Art. 21. Jurisdiction of courts-martial not 

exclusive 

The provisiolls of this chapter collferril~g jurisdictior~ upon 

courts-niartial do not deprive military co~nmissions, provost 

courts, or other nulitary tribunals of concurrent jurisdiction with 

respect to offenders or by statute or by dle law of 

War be tried nulitar~ Provost Or 

Ou'er nlilitar~ 

SUBCHAPTER V. COMPOSITION OF COURTSMARTIAL 

22. Who may convene general courts-martial. 

23. Who may convene special courts-martial. 

24. Wl~o may convene sunllnary courts-martial. 

25. Who may serve on courts-martial. 

26. Military judge of a general or special courts-martial. 

27. Detail of trial counsel and defense counsel. 

28. Detail or employment of reporters and interpreters. 

29. Absent and additional n~embers. 

§ 822.Art. 22. Who may convene general courtsmartial 

(a General courts-martial nlay 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 a 'Territorial Department, an 

Army Group, an Army, an Army Corps, a division, a separate 

brigade, or a corresponding unit of the Army or Marine Corps; 

(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. 

5 823. 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) the commanding officer of a wing, group, or separate 

squadron of the Air Force; 

(5) the commanding officer of any naval or Coast Guard vessel, shipyard, base, or station; the commanding officer of any 

Marine brigade, regiment, detached battalion, or corresponding 

unit; the commanding officer of any Marine barracks, wing, 

group, separate squadron, station, base, auxiliary air field, or 

other place where members of the Marine Corps are on duty; 

(6) the commanding officer of any separate or detached command or group of detached units of any of the armed forces 

placed under a single commander for this purpose; or 

(7) the commanding officer or officer in charge of any other 

command when empowered by the Secretary concerned. 

(b) If any such officer is an accuser, the court shall be convened 

by superior competent authority, and may in any case be convened by such authority if considered advisable by him. 

Q 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; 

5 825. Art. 25.(e) 

(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. 

Q 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 triai jf 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)(l) 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-marital the membership of 

which does not include enlisted members in a number comprising 

at least one-third of the total membership of the court, unless 

eligible enlisted members cannot be obtained on account of physical conditions or military exigencies. If such members cannot be 

obtained, the court may be assembled and the trial held without 

them, but the convening authority shall make a detailed written 

statement, to be appended to the record, stating why they could 

not be obtained. 

(2) In this article, "unit'' means any regularly organized body 

as defined by the Secretary concerned, but in no case may it be a 

body larger than a company, squadron, ship's clew, or body 

corresponding to one of them. 

(d)(l) 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 

A2-7 
g 825. Art. 25.(e) APPENDIX 2 

his authority under this subsection to his staff judge advocate or 

legal officer or to any other principal assistant. 

5 826. 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 military judge shall be a commissioned officer of the 

armed forces who is a member of the bar of a Federal court or a 

member of the bar of the highest court of a State and who is 

certified to be qualified for duty as a military judge by the Judge 

Advocate General of the armed force of which such military 

judge is a member. 

(c) The military judge of a general court-martial shall be designated by the Judge Advocate General, or his designee, of the 

armed force of which the military judge is a member for detail in 

accordance with regulations prescribed under subsection (a). Unless the court-martial was convened by the President or the Secretary concerned, neither the convening authority nor any member 

of his staff shall prepare or review any report concerning the 

effectiveness, fitness, or efficiency of the military judge so detailed, which relates to his performance of duty as a military 

judge. A commissioned officer who is certified to be qualified for 

duty as a military judge of a general court-martial may perform 

such duties only when he is assigned and directly responsible to 

the Judge Advocate General, or his designee, of the armed force 

of which the military judge is a member and may perform duties 

of a judicial or nonjudicial nature other than those relating to his 

primary duty as a military judge of a general court-martial when 

such duties are assigned to him by or with the approval of that 

Judge Advocate General or his designee. 

(d) No person is eligible to act as military judge in a case if he is 

the accuser or a witness for the prosecution or has acted as 

investigating officer or a counsel in the same case. 

(e) The military judge of a court-martial may not consult with the 

members of the court except in the presence of the accused, trial 

counsel, and defense counsel, nor may he vote with the members 

of the court. 

5 827. Art. 27. Detail of trial counsel and defense 

counsel 

(a)(l) 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; 

(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. 

5 828. 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. 

5 829. 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 court- 
g 833. Art. 33. 

martial composed of a military judge only, is reduced below three 

members, the trial may not proceed unless the convening authority details new members sufficient in number to provide not less 

than three members. The trial shall proceed with the new members present as if no evidence had previously been introduced at 

the trial, unless a verbatim record of the evidence previously 

introduced before the members of the court or a stipulation 

thereof is read to the court in the presence of the military judge, if 

any, the accused and counsel for both sides. 

(d) If the military judge of a court-martial composed of a military 

judge only is unable to proceed with the trial because of physical 

disability, as a result of a challenge, or for other good cause, the 

trial shall proceed, subject to any applicable conditions of section 

8 16(1)(B) or (2)(C) of this title (article 16(1)(B) or (2)(C)), after 

the detail of a new military judge as if no evidence had 

previously been introduced, unless 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. 

Q 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 perqon 

accused shall be informed of the charges against him as soon as 

practicable. 

Q 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 

h i 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. 

9 832. 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 

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 ofticer may investigate the subject matter of that 

offense without the accused having first been charged with the 

offense if the accused- 

(1) is presen~ at the investigation; 

(2) is informed of the nature of each uncharged offense investigated; and 

(3) is afforded the opportunities for representation, cross-exarnination, 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. 

Q 833. Art. 33. Forwarding of charges 

When a person is held for trial by general court-martial the 

A2-9 
5 833. Art. 33. APPE 

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. 

9 834. 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. 


@) 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. 

5 835. 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. 

36. President may prescribe rules. 

37. Unlawfully influencing action of court. 

38. Duties of trial counsel and defense counsel. 

39. Sessions. 

40. Continuences. 

41. Challenges. 

42. Oaths. 

43. Statute of limitations. 

44. Former jeopardy. 

Art. 


45. Pleas of the accused. 

46. Opportunity to obtain witnesses and other evidence. 

47. Refusal to appear or testify. 

48. Contempts. 

49. Depositions. 

50. Admissibility of records of courts of inquiry. 

50a. Defense of lack of mental responsibility. 

51. Voting and rulings. 

52. Number of votes required. 

53. Court to announce action. 

54. Record of trial. 

5 836. 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 

courts, but which may not be contrary to or inconsistent with this 

chapter. 

(b) AU rules and regulations made under this article shall be 

uniform insofar as practicable. 

5837. 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 

this chapter may attempt to coerce or, by any unauthorized 

means, influence the action of a court-martial or any other military tribunal or any member thereof, in re:lching 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 substantivr 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 
5 841. Art. 41.(a)(l) 

forces because of the zeal with which such member, as counsel, 

represented any accused before a court-martial. 

g 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)(l) The accused has the right to be represented in his defense 

before a general or special court-martial or at an investigation 

under section 832 of this title (article 32) as provided in this 

subsection. 

(2) The accused may be represented by civilian counsel if 

provided by him. 

(3) The accused may be represented- 

(A) by military counsel detailed under section 827 of this 

title (article 27); or 

(B) by military counsel of his own selection if that counsel 

is reasonably available (as determined under regulations prescribed under paragraph (7)). 

(4) If the accused is represented by civilian counsel, military 

counsel detailed or selected under paragraph (3) shall act as 

associate counsel unless excused at the request of the accused. 

(5) Except as provided under paragraph (6), if the accused is 

represented by military counsel of his own selection under paragraph (3)(B), any military counsel detailed under paragraph 

(3)(A) shall be excused. 

(6) The accused is not entitled to be represented by more than 

one military counsel. However, the person authorized under regulations prescribed under section 827 of this title (article 27) to 

detail counsel in his sole discretion- 

(A) may detail additional military counsel as assistant defense counsel; and 

(B) if the accllsed is represented by military counsel of his 

own selectio~~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) The Secretary concerned shall, by regulation, define 

"reasonably available" for the purpose of paragraph (3)(B) and 

establish procedures for determining whether the military counsel 

selected by an accused under that paragraph is reasonably available. Such regulations may not prescribe any limitation based on 

the reasonable availability of counsel solely on the grounds that 

the counsel selected by the accused is from an armed force other 

than the armed force of which the accused is a member. To the 

maximum extent practicable, such regulations shall establish uniform policies among the armed forces while recognizing the differences in the circumstances and needs of the various armed 

forces. The Secretary concerned shall submit copies of regulations 

prescribed under this paragraph to the Committees on Armed 

Services of the Senate and House of Representatives. 

(c) In any court-martial proceeding resulting in a conviction, the 

defense counsel- 

(1) may forward for attachment to the record of proceedings a 

brief of such matters as he determines should be considered in 

behalf of the accused on review (including any objection to the 

contents of the record which he considers appropriate); 

(2) may assist the accused in the submission of any matter 

under section 860 of this title (article 60); and 

(3) may take other action authorized by this chapter. 

(d) An assistant trial counsel of a general court-martial may, 

under the direction of the trial counsel or when he is qualified to 

be a trial counsel as required by section 827 of this title (article 

27), perform any duty imposed by law, regulation, or the custom 

of the service upon the trial counsel of the court. An assistant trial 

counsel of a special court-martial may perform any duty of the 

trial counsel. 

(e) An assistant defense counsel of a general 01 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. 

g 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 

this title (article 35), call the court into session without the presence of the members for the purpose of- 

(1) hearing and determining nlotions 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) if permitted by regulations of the Secretary concerned, 

holding the arraignment and receiving the pleas of the accused; 

and 

(4) performing any other procedural function which may be 

performed by the military judge under this chapter or under rules 

prescribed pursuant to section 836 of this title (article 36) and 

which does not require the presence of the members of the court. 

These proceedings shall be conducted in the presence of the 

accused, the defense counsel, and the trial counsel and shall be 

made a part of the record. These proceedings may be conducted 

notwithstanding the number of members of the court and without 

regard to section 829 of this title (article 29). 

(b) When the members of a court-martial deliberate or vote, only 

the members may be present. All other proceedings, including 

any other consultation of the members of the court with counsel 

or the military judge, shall be made a part of the record and shall 

be in the presence of the accused, the defense counsel, the trial 

counsel, and in cases in which a military judge has been detailed 

to the court, the military judge. 

g 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. 

g 841. Art. 41. Challenges 

(a)(l) The military judge and members of a general or special 

court-martial may be challenged by the accused or the trial counA2-11 
3 841. Art. 41.(a)(l) APPENDIX 2 

sel 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 rollrt 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. 

@)(I) 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 

entitled to one peremptory challenge against members not 

previously subject to peremptory challenge. 

(As amended Nov. 5, 1990, Pub.L. 101-510, Div. A, Title V, 

8 541(b)-(d), 104 Stat. 1565.) 

9 842. 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. 

9 843. Art. 43. Statute of limitations 

(a) A person charged with absence without leave or missing 

movement in time of war, or with any offense punishable by 

death, may be tried and punished at any time without limitation. 

(b)(l) 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 

A2-12 

the receipt of surorn charges and specifications by an officer 

exercising summary court-martial jurisdiction over the command. 

(2) A person charged with an offense is not liable to be punished 

under section 815 of this title (article 15) if the offense was 

committed more than two years before the imposition of 

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) involving fraud or attempted fraud against the United 

States or any agency thereof in any manner, whether by conspiracy or not; 

(2) committed in connection with the acquisition, care, handling, custody, control, or disposition of any real or personal 

property of the United States; or 

(3) committed in connection with the negotiation, procurement, 

award, performance, payment, interim financing, cancellation, or 

other termination or settlement, of any contract, subcontract, or 

'purchase order which is connected with or related to the prosecution of the war, or with any disposition of termination inventory 

by any war contractor or Government agency; 

is suspended until three years after the termination of hostilities as 

proclaimed by the President or by a joint resolution of Congress. 

(g)(l) 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 omissions that were included in the dismissed charges or 

specifications). 

9 844. 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 
5 849. Art. 49.(9 

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. 

5 845. 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. 

5 846. 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 

any part of the United States, or the Temtories, Commonwealths, 

and possessions. 

5 847. Art. 47. Refusal to appear or testify 

(a) Any person not subject to this chapter 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 prodoce 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 Temtories, 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. 

5 848. Art. 48. Contempts 

A court-martial, provost court, or military commission may 

punish for contempt any person who uses any menacing word, 

sign, or gesture in its presence, or who disturbs its proceedings by 

any riot or disorder. The punishment may not exceed confinement 

for 30 days or a fine of $100, or both. 

5 849. Art. 49. Depositions 

(a) At any time after charges have been signed as provided in 

section 830 of this title (article 30), any party may take oral or 

written depositions unless the military judge or court-martial 

without a military judge hearing the case or, if the case is not 

being heard, an authority competent to convene a court-martial 

for the trial of those charges forbids it for good cause. If a 

deposition is to be taken before charges are referred for trial, such 

an authority may designate commissioned officers to represent the 

prosecution and the defense and may authorize those officers to 

take the deposition of any witness. 

(b) The party at whose instance a deposition is to be taken shall 

give to every other party reasonable written notice of the time and 

place for taking the deposition. 

(c) Depositions may be taken before and authenticated by any 

military or civil officer authorized by the laws of the United 

States or by the laws of the place where the deposition is taken to 

administer oaths. 

(d) A duly authenticated deposition taken upon reasonable notice 

to the other parties, so far as otherwise admissible under the rules 

of evidence, may be read in evidence or, in the case of audiotape, 

videotape, or similar material, may be played in evidence before 

any military court or commission in any, case not capital, or in 

any proceeding before a court of inquiry or military board, if it 

appears 

(1) that the witness resides or is beyond the State, Temtory, 

Commonwealth, or District of Columbia in which the court, commission, or board is ordered to sit, or beyond 100 miles from the 

place of trial or hearing; 

(2) that the witness by reason of death, age, sickness, bodily 

infirmity, imprisonment, military necessity, nonamenability to 

process, or other reasonable cause, is unable or refuses to appear 

and testify in person at the place of trial or hearing; or 

(3) that the present whereabouts of the witness is unknown. 

(e) Subject to subsection (d), testimony by deposition may be 

presented by the defense in capital cases. 

(f) Subject to subsection (d), a deposition may be read in evidence or, in the case of audiotape, videotape, ol-similar material, 

A2-13 
§ 849. Art. 49.(9 APPE 

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. 

5 850. 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 svrn testimony, contained in the duly 

authenticated record of proceedings of a court of inquiry, of a 

person whose oral testimony cannot be obtained, may, if otherwise admissible under the rules of evidence, be read in evidence 

by any party before a court-martial or military commission if the 

accused was a party before the court of inquiry and if the same 

issue was involved or if the accused consents to the introduction 

of such evidence. 

(b) Such testimony may be read in evidence only by the defense 

in capital cases or cases extending to the dismissal of a commissioned officer. 

(c) Such testimony may also be read in evidence before a court 

of inquiry or a military board. 

5 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 otlierwise 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; 

(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 

A2-14 

only, the military judge determines that the defense of lack of 

mental responsibility has been established. 

g 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 leg -' :~nd 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. 

5 852. Art. 52. Number of votes required 

(a)(l) 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)(l) 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) AU 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 disqualif~es 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. 

3 853. Art. 53. Court to announce action 

A court-martial shall announce its findings and sentence to the 

parties as soon as determined. 

g 854. Art. 54. Record of trial 

(a) Each general court-martial shall keep a separate record of the 

proceedings in each case brought before it, and the record shall be 

authenticated by the signature of the military judge. If the record 

cannot be authenticated by the military judge by reason of his 

death, disability, or absence, it shall be authenticated by the signature of the trial counsel or by that of a member if the trial 

counsel is unable to authenticate it by reason of his death, disability, or absence. In a court-martial consisting of only a military 

judge the record shall be authenticated by the court reporter under 

the same conditions which would impose such a duty on a member under 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)(l) A complete record of the proceedings and testimony 

shall be prepared- 

(A) in each general court-martial case in which the sentence 

adjudged includes death, a dismissal, a discharge, or (if the sentence adjudged does not include a discharge) any other punishment which exceeds that which may otherwise be adjudged by a 

special court-martial; and 

(B) in each special court-martial case in which the sentence 

adjudged includes a bad-conduct discharge. 

(2) In all other court-martial cases, the record shall contain 

such matters as may be prescribed by regulations of the President. 

(d) A cop) of the record of the proceedings of each general and 

§ 857. Art. 57.(a)(B) 

special court-martial shall be given to the accused as soon as it is 

authenticated. 

SUBCHAPTER VIII. SENTENCES 

Sec. Art. 

55. Cruel and unusual punishments prohibited. 

56. Maximum limits. 

56a. Sentence of confinement for life without eligibility 

for parole. 

57. Effective date of sentences. 


57a. Deferment of sentences. 


58. Execution of confinement. 


58a. Sentences: reduction in enlisted grade upon approval. 


58b.Sentences: forfeiture of pay and allowances during 


confinement. 

3 855. 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. 

3 856. 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. 

3 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 M; 

(2) the sentence is set aside vr 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. 

g 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 conA2-15 
5 857. Art. 57.(a)(B) APPElNDlX 2 

vening 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 (l)(A) until 

the date on which the sentence is approved by the convening 

authority. Such a deferment may be rescinded at any tin!^ 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 confmement 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. 

5 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. 

(b)(l) 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 autllnrity 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. 

Q 858. Art. 58. Execution of confinement 

(a) Under such instructions as the Secretary concerned may prescribe, a sentence of confinement adjudged by a court-martial or 

other military tribunal, whether or not the sentence includes discharge or dismissal, and whether or not the discharge or dismissal 

has been executed, may be carried into execution by confinement 

in any place of confinement under the control of any of the armed 

forces or in any penal or correctional institution under the control 

of the United States, or which the United States may be allowed 

to use. Persons so confined in a penal or correctional institution 

not under the control of one of the armed forces are subject to the 

same discipline and treatment as persons confined or committed 

by the courts of the United States or of the State, Territory, 

District of Columbia, or place in which the institution is situated. 

(b) The omission of the words "hard labor" from any sentence of 

a court-martial adjidging confinement does not deprive the authority executing that sentence of the power to require hard labor 

as a part of the punishment. 

5 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 B-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 fmally 

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. 

5 858b. Art. 58b. Sentences: forfeiture of pay and 

allowances during confinement 

(a)(l) 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 
5 860. Art. W.(d) 

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 

59. Error of law; lesser included offense. 

60. Action by the convening authority. 

61. Waiver or withdrawal of appeal. 

62. Appeal by the United States. 

63. Rehearings. 

64. Review by a judge advocate. 

65. Disposition of records. 

66. Review by Court of Criminal Appeals. 

67. Review by the Court of Appeals for the Armed 

Forces. 


67a. Review by the Supreme Court. 


68. Branch offices. 

69. Review in the office of the Judge Advocate General. 

70. Appellate counsel. 

71. Execution of sentence; suspension of sentence. 

72. Vacation of suspension. 

73. Petition for a new trial. 

74. Remission and suspension. 

75. Restoration. 

76. Finality of proceedings, findings, and sentences. 

76a. Leave required to be taken pending review of certain 

court-martial convictions. 

76b. Lack of mental capacity or mental responsibility: 

commitment of accused for examination and treatment. 

9 859. 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 affum 

a finding of guilty may approve or affi, instead, so much of the 

finding as includes a lesser included offense. 

9 860. 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 writting. 

(b)(l) 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 submission shall be made within seven days after the sentence is 

announced. 

(2) If the accused shows that additional time is required for thc 

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) In a summary court-martial case, the accused shall be 

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)(l) 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 

A2-17 
g 860. Art. 60.(d) APPE 

the recommendation or to any matter attached to the recommendation waives the right to object thereto. 

(e)(l) 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 gudty; 


(B) reconsider a finding of not guilty of any charge, unless 

there has been a finding of guilty under a specification laid under 

that charge, which sufficiently alleges a violation of some article 

of this chapter; or 

(C) increase the severity of some article of the sentence 

unless the sentence prescribed for the offense is mandatory. 

(3) A rehearing may be ordered by the convening authority or 

other person taking action under this section if he disapproves the 

findings and sentence and states the reasons for disapproval of the 

findings. If such person disapproves the findings and sentence 

and does not order a rehearing, he shall dismiss the charges. A 

rehearing as to the findings may not be ordered where there is a 

lack of sufficient evidence in the record to support the findings. A 

rehearing as to the sentence may be ordered if the convening 

authority or other person taking action under this subsection disapproves the sentence. 

Q 861. Art. 61. Waiver or withdrawal of appeal 

(a) In each case subject to appellate review under section 866 or 

869(a) of thk 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)). 

Q 862. Art. 62. Appeal by the United States 

(a)(l) 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 subA2-18 

stantial 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 u~tiess 

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 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 only with respect to matters of law, notwithstanding section 

866(c) of this title (article 66(c)). 

(c) Any period of delay resulting from an appeal under this 

section shall be excluded in deciding any issue regarding denial 

of a speedy trial unless an appropriate authority determines that 

the appeal was filed solely for the purpose of delay with the 

knowledge that it was totally frivolous and without merit. 

Q 863. Art. 63. 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 

with a pretrial agreement and the accused at the rehearing 

changes his plea with respect to the charges or specifications 

upon which the pretrial agreement was based, or otherwise does 

not comply with the pretrial agreement, the approved sentence as 

to those charges or specifications may include any punishment 

not in excess of that lawfully adjudged at the first court-martial. 

Q 864. Art. 64. Review by a judge advocate 

(a) Each case in which there has been a finding of guilty that is 

not reviewed under section 866 or 869(a) of this title (article 66 

or 69(a)) shall be reviewed by a judge advocate under regulations 

of the Secretary concerned. A judge advocate may not review a 

case under this subsection if he has acted in the same case as an 

accuser, investigating officer, member of the court, military 
judge, or counsel or has otherwise acted on behalf of the prosecution or defense. The judge advocate's review shall be in writing 

and shall contain the following: 

(1) Conclusions as to whether- 

(A) the court had jurisdiction over the accused and the 

offense; 

(B) the charge and specification stated an offense; and 

(C) the sentence was within the limits prescribed as a matter 

of law. 

(2) A response to each allegation of error made in writing by 

the accused. 

(3) If the case is sent for action under subsection (b), a recommendation as to the appropriate action to be taken and an opinion 

as to whether corrective action is required as a matter of law. 

(b) The record of trial and related documents in each case reviewed under subsection (a) shall be sent for action to the person 

exercising general court-martial jurisdiction over the accused at 

the time the court was convened (or to that person's successor in 

command) if-

(1) the judge advocate who reviewed the case recommends 

corrective action; 

(2) the sentence approved under section 860(c) of this title 

(article 60(c)) extends to dismissal, a bad-conduct or dishonorable 

discharge, or confinement for more than six months; or 

(3) such action is otherwise required by regulations of the 

Secretary concerned. 

(c)(l) 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 pas; 

(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 

@) 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 

General for review under section 869(b) of this title (article 

69(b)). 

5 865. 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 

5866. Art. 66.(g) 

of trial and related documents shall be transmitted and disposed 

of as the Secretary concerned may prescribe by regulation. 

5 866. 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 fwther 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. 

(0 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 

A2-19 
§ 866. Art. 66.(g) APPENDIX 2 

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. 

Q 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- 

(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. 

@) The accused may petition lhe of for the hned 

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 

A2-20 

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. 

Q 867a. Art. 67a. Review by the Supreme Court 

(a) Decisions of the United States Court of Appeals for the 

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. 

Q 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 

by him may pedomfor hat under the 

general supervision of the Judge Advocate General, the respective 

duties which the Judge ~dvocate 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. 

Q 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. 

@) 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. 
g 872. Art. 72.(b) 

of this title (article 6)-

(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 

(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. 

(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, 

and one or more commissioned officers as appellate defense 

counsel, who are qualified under section 827(b)(l) of this title 

(article 27(b)(l)). 

(b) Appellate Government counsel shall represent the United 

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 lrnited 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. Ln such a case, the Secretary, Under Secretary or Assistant Secretary, as the case may be, may commute, remit, or 

suspend the sentence, or any part of the sentence, as he sees fit. 

In time of war or national emergency he may commute a sentence 

of dismissal to rec1,~ction 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)(l) 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 Amled 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 hav 

ing 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 

A2-21 
g 872. Art. 72.(b) APPE 

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 

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. 

(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 affiimed 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 1111.lerthis 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 
SUBCHAPTER X. 

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 Attomey General that the Attorney General considers appropriate regarding the person. 

(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) Persons found not guilty by reason of lack of mental 

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 Attomey 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 dismct 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)(l), 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 4247Q) 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 

77. 	 Principals. 

78. 	 Accessory after the fact. 

79. 	 Conviction of lesser included offense. 

80. 	 Attempts. 

81. 	 Conspiracy. 

82. 	 Solicitation. 

83. 	 Fraudulent enlistment, appointment, or separation. 

84. 	 Unlawful enlistment, appointment, or separation. 

85. 	 Desertion. 

86. 	 Absence without leave. 

87. 	 Missing movement. 

88. 	 Contempt toward officials. 

89. 	 Disrespect toward superior commissioned officer. 

90. 	 Assaulting or willfully disobeying superior comrnissioned officer. 

91. 	 Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer. 

92. 	 Failure to obey order or regulation. 

93. 	 Cruelty and maltreatment. 

94. 	 Mutiny or sedition. 

95. 	 Resistance, flight, breach of arrest, and escape. 

96. 	 Releasing prisoner without proper authority. 

97. 	 Unlawful detention. 

98. 	 Noncompliance with procedural rules. 

99. 	 Misbehaviour before the enemy. 

100. Subordinate compelling surrender. 

101. Improper use of countersign. 

102. Forcing a safeguard. 

103. Captured or abandoned property. 

104. Aiding the enemy. 

105. Misconduct as prisoner. 

106. Spies. 


106a. Espionage. 


107. False official statements. 

108. Military property of United States-Loss, 	 damage, 

destruction, or wrongful disposition. 

109. Property other than military property of United 

States-Waste, spoilage, or destruction. 

1 10. Improper hazarding of vessel. 

11 1. Drunken or reckless operation of a vehicle, aircraft, 

or vessel 

i12. Drunk on duty. 

112a. Wrongful use, possession, etc., of controlled substances. 

113. Misbehavior of sentinel. 

114. Dueling. 

1 15. Malingering. 

116. Riot or breach of peace. 

117. Provoking speeches or gestures. 

118. Murder. 

119. Manslaughter. 
SUBCHAPTER X. APPENDIX 2 

Art. 

120. Rape and carnal knowledge. 

121. Larceny and wrongful appropriation. 

122. Robbery. 

123. Forgery. 

123a. Making, drawing, or uttering check, draft, or order 

without sufficient funds. 

124. Maiming. 

125. Sodomy. 

126. Arson. 

127. Extortion. 

128. Assault. 

129. Burglary. 

130. Housebreaking. 

131. Pejury. 

132. Frauds against the United States. 

133. Conduct unbecoming an officer and a gentleman. 

134. General article. 

g 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. 

g 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. 

g 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. 

g 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 otl~erwise 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. 

g 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 

A2-24 

or more of the conspirators does an act to effect the object of the 

conspiracy, be punished as a court-martial may direct. 

g 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. 

9 883. 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. 

g 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. 

Q 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 in~portant service; or 

(3) without being regularly separated from or>?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. 

g 886. Art. 86. Absence without leave 

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. 

g 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. 

g 888. Art. 88. Contempt toward officials 

Any commissioned officer who uses contemptuous words 

against the President, the Vice President, Congress, the Secretary 

of Defense, the Secretary of a military depment, the Secretary 

of Transportation, or the Governor or legislature of any State, 

Territory, Commonwealth, or possession in which he is on duty 

or present shall be punished as a court-martial may direct. 

9 889. 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. 

g 890. Art. 90. Assaulting or willfully disobeying 

superior commissioned officer 

Any person subject to this chapter who- 

(1) strikes his superior commissioned officer or draws or lifts up 

any weapon or offers any violence against him while he is in the 

execution of his office; or 

(2) willfully disobeys a lawful command of his superior commissioned officer; 

shall be punished, if the offense is committed in time of war, by 

death or such other punishment as a court-martial may direct, and 

if the offense is committed at any other time, by such punishment, other than death, as a court-martial may direct. 

g 891. Art. 91. 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 deport5 896. Art. 96. 

ment toward a warrant officer, noncommissioned officer, or petty 

officer while that officer is in the execution of his office; 

shall be punished as a court-martial may direct. 

g 892. Art. 92. Fallure to obey order or regulation 

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. 

8 893. Art. 93. Cruelty and maltreatment 

Any person subject to this chapter who is guilty of cruelty 

toward, or oppression or maltreatment of, any person subject to 

his orders shall be punished as a court-martial may direct. 

g 894. Art. 94. 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. 

g 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. 

5 896. 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. 
g 897. Art. 97. APPE 

Q 897. Art. 97. Unlawful detention 

Any person subject to this chapter who, except as provided by 

law, apprehends, arrests, or confines any person shall be punished 

as a court-martial may direct. 

Q 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. 


Q 899. Art. 99. Misbehavior before the enemy 

Any person subject to this chapter who before or in the pres- 


ence 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. 

Q 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. 

Q 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. 

Q 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. 

Q 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. 

Q 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. 

Q 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. 


Q 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. 

Q 906a. Art. 106a. Espionage 

(a)(l) 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 
§ 912a. Art 11 2a.(a) 

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 

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 cryptographic 

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-marital 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 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, photographic negative, blueprint, plan, map, model, note, instrument, appliance, or 

information relating to the national defense. 

@)(I) 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). 

Q 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 courtmarital may direct. 

§ 908. Art. 108. Military property of United 

States-Loss, damage, destruction, or wrongful 

disposition 

Any person subject to this chapter who, without proper 

authority-

(1) sells or otherwise disposes of; 


(2) willfully or through neglect damages, destroys, or loses; or 


(3) willfully or through neglect suffers to be lost, damaged, sold, 


or wrongfully disposed of; 


any military property of the United States, shall be punished as a 


court-martial may direct. 


Q 909. Art. 109. 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. -

Q 910. Art. 110. Improper hazarding of vessel 

(a) Any person subject to this chapter who willfully and wrongfully hazards or suffers to be hazarded any vessel of the armed 

forces shall suffer death or such punishment as a court-martial 

may direct. 

(b) Any person subject to this chapter who negligently hazards or 

suffers to be hazarded any vessel of the armed forces shall be 

punished as a court-martial may direct. 

Q 91 1. Art. 11 1. Drunken or reckless operation of 

a vehicle, aircraft, or vessel 

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 substarice 

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 or more of alcohol per 

100 milliliters of blood or 0.10 grams or more of alcohol per 210 

liters of breath, as shown by chemical analysis, shall be punished 

as a court-martial may direct. 

Q 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. 

Q 912a. Art 112a. Wrongful use, possession, etc., 

of controlled substances 

(a) Any person subject to this chapter who wrongfully uses, possesses, manufactures, distributes, imports into the customs territory of the United States, exports from the United States, or 

introduces into an installation, vessel, vehicle, or aircraft used by 

A2-27 
5 912a. Art 112a.(a) APPENC 

or under the control of the armed forces a substance described in 

subsection (b) shall be punished as a court-martial may direct. 

(b) The substances referred to in subsection (a) are the following: 

(1) Opium, heroin, cocaine, amphetamine, lysergic acid 

diethylamide, methamphetamine, phencyclidine. barbituric acid, 

and marijuana and any compound or derivative of any such 

substance. 

(2) Any substance not specified in clause (1) that is listed on a 

schedule of controlled substances prescribed by the President for 

the purposes of this article. 

(3) Any other substance not specified in clause (1) or contained on a list prescribed by the President under clause (2) that is 

listed in schedules I through V of section 202 of the Controlled 

Substances Act (21 U.S.C. 812). 

5 913. 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. 

5 914. 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. 


g 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. 

5 917. 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 diirect. 

g 918. Art. 11 8. 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, robbery, or aggravated arson; is guilty of 

A2-28 

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. 

$ 91 9. 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 hann, 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. 

$920. Art. 120. Rape and carnal knowledge 

(a) Any person subject to this chapter who commits an act of 

sexual intercourse, by force and without consenf 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 11, rape, commits an act of sexual intercourse with 

a person- 

(1) who is not that person's spouse; and 

(2) who has not attained tlie 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) 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 that person had at 

the time of the alleged offense attained the age of sixteen years. 

(2) The accused has the burden of proving a defense under 

paragraph (1) by a preponderance of the evidence. 

$ 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 
§ 929. Art. 129. 

own use or the use of any person other than the owner, is guilty 

of wrongful appropriation. 

(b) Any person found guilty of larceny or wrongful appropriation 

shall be punished as a court-martial may direct. 

5 922. Art. 122. Robbery 

Any person subject to this chapter who with intent to steal 

takes anything of value from the person or in the presence of 

another, against his will, by means of force or violence or fear of 

immediate or future injury to his person or property or to the 

person or property of a relative or member of his family or of 

anyone in his company at the time of the robbery, is guilty of 

robbery and shall be punished as a court-martial may direct. 

5 923. Art. 123. Forgery 

Any person subject to this chapter who, with intent to 

defraud-

(1) falsely makes or alters any signature, to, or any part of, any 


writing which would, if genuine, apparently impose a legal liabil- 


ity on another or change his legal right or liability to his preju- 


dice; or 


(2) utters, offers, issues, or transfers :.~ch a writing, known by 


him to be so made or altered; 


is guilty of forgery and shall be punished as a court-martial may 


direct. 


5 923a. Art. 123a. 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 depositoty 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 understandig, express or implied, with the bank or other depository for the payment of that 

check, draft, or order. 

5 924. 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; 

(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. 


5 925. 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. 

3 926. Art. 126. Arson 

(a) Any person subject to this chapter who willfully and maliciously bums 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 bums or sets fire to the property of another, except as 

provided in subsection (a), is guilty of simple arson and shall be 

punished as a court-martial may direct. 

5 927. Art. 127. Extortion 

Any person subject to this chapter who communicates threats 

to another person with the intention thereby to obtain anything of 

value or any acquittance, advantage, or immunity is guilty of 

extortion and shall be punished as a court-martial may direct. 

Q 928. Art. 128. Assault 

(a) Any person subject to this chapter who attempts or offers 

with unlawful 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 whc- 

(1) commits an assault with a dangerous weapon or other 

means or force likely to produce death or grievous bodily harm; 

or 

(2) commits an assault and intentionally inflicts grievous bodily harm with or without a weapon; 

is guilty of aggravated assault and shall be punished as a courtmartial may direct. 

5 929. 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. 
5 929. Art. 130. APPE 

5 930. 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. 

5 931. Art. 131. Perjury 

Any person subject to this chapter who in a judicial proceeding 

or in acourse of justice willfully and corruptly- 

(1) upon a lawful oath or in any foml allowed by law to be 


substituted for an oath, gives any false testimony n~aterial to the 


issue or matter of inquiry; or 


(2) in any declara,tion, 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. 


5 932. 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 oaUl 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 aulhority to receive it, any amount thereof less than 

that for which he receives a certificate or receipt; or 

(4) who, being aullorized to make or deliver any paper certifying 

the receipt of any property of the United States furnisl~ed or 

intended for the armed forces thereof, makes or delivers to any 

person such writing without having full knowledge of Ule truth of 

the statements herein 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 oflicer and a gentlen~an shall be 

punished as a court-martial may direct. 

5 934. Art. 134. General article 

Though not specifically mentioned in this chapter, all disorders 

and neglects to the prejudice of good order and discipline in the 

armed forces, all conduct of a nature to bring discredit upon the 

armed forces, and crimes and offenses not capital, of wl~ich persons subject to this chapter nlay 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 Ulat 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. 

5 935. Art. 135. Courts of inquiry 

(a) Courts of inquiry to investigate any matter nlny be convened 

by any person autl~orized to convene a general court-n~arlial or by 

any other person designated by the Secrelary 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 con~missioned 

officers. For each court of inquiry the convening aulllority sl~all 

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 nlay be cl~allenged 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 recon~n~endations 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 autl~ority. If the record cannot be autllenticated by the president, it shall 

be signed by a member in lieu of the president. If the record 

cannot ~ ~- be authenticated bv the counsel for the court. it shall be 

signed by a member in ieuof the counsel. 
g 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) AU 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. 

g 937. Art. 137. Articles to be explained 

(a)(l) The sections of this title (articles of the Uniform Code of 

Military Justice) specifred 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(artic1es 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. 

3 938. 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 

3 942. Art. 142. 

superior commissioned officer, who shall forward the complaint 

to the officer exercising general court-martial jurisdiction over the 

officer against whom it is made. The officer exercising general 

court-martial jurisdiction shall examine into the complaint and 

take proper measures for redressing the wrong complained of; and 

he shall, as soon as possible, send to the Secretary concerned a 

true statement of that complaint, with the proceedings had 

thereon. 

Q 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 fiom one to three commissioned 

officers and, for the purpose of that investigation, it has power to 

summon witnesses and examine them upon oath, to receive depositions or other documentary evidence, and to assess the damages 

sustained against the responsible parties. The assessment of damages made by the board is subject to the approval of the commanding officer, and in the amount approved by him shall be charged 

against the pay of the offenders. The order of the commanding 

officer directing charges herein authorized is conclusive on any 

disbursing officer for the payment by him to the injured parties of 

the damages as assessed and approved. 

(b) If the offenders cannot be ascertained, but the organization or 

detachment to which they belong is known, charges totaling the 

amount of damages assessed and approved may be made in such 

proportion as may be considered just upon the individual members thereof who are shown to have been present at the scene at 

the time the damages complained of were inflicted, as determined 

by the approved findings of the board. 

Q 940. Art. 140. Delegation by the President 

The President may delegate any authority vested in him under 

this chapter, and provide for the subdelegation of any such 

authority. 

SUBCHAPTER XII. UNITED STATES COURT OF 

APPEALS FOR THE ARMED FORCES 

Sec. Art. 

941. 141.Status. 

942. 142. Judges. 

943. 143.0rganization and employees. 

944. 144.Procedure. 

945. 145.Annuitie.s for judges and survivors. 

946. 146. Code committee. 

g 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 adrninistrative purposes only in the Department of Defense. 

Q 942. Art. 142. Judges 

A2-31 
5 942. Art. 142.(a) 	 APPENDIX 2 

(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 ffieen 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 

may be, provided for judges of the United States Court of 

Appeals. 

(e) 	Senior judges. 

(l)(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 

(iii) in any case in which a judge of the court recuses 

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 

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 ID 

of chapter 83 or subchapter II of chapter 84 of title 5, or any 

other retirement system for employees of the Federal 

Govemment. 

(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 

Govemment 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 Government retirement system for employees of the Federal 

Govemment-

(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 

judge as a retirement contribution under section 8334, 8343, 

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 Govemment 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 

@) 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 him- 
self; 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. 

g 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)($, 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. 

(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 senior5 945. Art. 145.(a)(2)(B) 

ity 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 (I), preference shall be given, among equally qualified 

persons, to persons who are preference eligibles (as defined in 

section 2108(3) of title 5). 

g 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. 

g 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 

senior judge under section 943(e)(l)(B) of this title (art. 

143(e)(l)(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 IU of chapter 83 or subchapter 11 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 is made affecting any right or interest und~:: 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 I1 of chapter 84 of 

A2-33 
g 945. Art. 145.(a)(2)(B) APPENDIX 2 

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 

(ii) the completion of 5 years of civilian service (or 

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 thrifl 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 a~uity 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)(l)(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 thr Federal Government shall, 

during the period of such person's service in such position, be 

entitled to receive only the annuity undei tlis section or the pay 

for that position, whichever is higher. 

(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 eitherA2-34 

(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. Silch an election 

may not be revoked. 

(2) An election by a person to be paid an annuity or salary 

pursuant to paragraph (l)(B) terminates (A) any election 

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, 5 1061(b)(l)(C), Dec. 5, 1991, 105 Stat. 1474; Pub.L. 

102484, Div. A, Title X, $8 1052(11), 1062(a)(l), Oct. 23, 1992, 

106 Stat. 2499, 2504.) 

Q 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) After each such survey, the committee shall submit a 

report-

(A) to the Committees on Armed Services of the Senate and 

House of Representatives; and 
5 946. Art. 146.(e) 

(B) to the Secretary of Defense, the Secretaries of the military departments, and the Secretary of Transportation. 

(2) Each report under paragraph (1) shall include the 

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) Qualijications 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. 
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 

and the Investigation and Prosecution of Certain 

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) Manual for Courts-Martial, United States, 

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 tlle Department of Justice (DoJ) 

and the Department of Defense (DoD). 

B. APPLICABILITY 

This Directive applies to the Office of the Secretary of Defense, tlie Military Departments, 111e 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 

term6'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 tlle 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 tlie programs, operations, or personnel of tlie Department of Defense. 

D. PROCEDURES 

With respect to inquiries for which tlie DoJ has 

assumed investigative responsibility based on the 

MOU, DoD investigative agencies should seek to 

participate jointly with DoJ investigative agencies 

whenever the inquiries relate to the programs, operations, or personnel of tlle Departn~ent of Defense. 

This applies to cases referred to the Federal Bureau 

of Investigation (FBI) under paragraph C.1.a. of tlie 

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 

tenns of the MOU and DoD Suppleme~ital Guidance 

(see enclosure 1). 

E. RESPONSIBILITIES. 

1. The Inspector General, Departinent of Defense 

(IG, DoD), shall: 

a. Establish procedures to implement the investigative policies set fort11 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. Tlie General Colri~sel, Department of Defense, 

shall: 

a. Establish procedures to implement the 

prosecutive policies set forth in tliis Directive. 

b. Monitor compliance by the DoD Components regarding the prosecutive aspects of the MOU. 

c. Provide specific guidance, as appropriate. 
APPE 

d. Modify the DoD Supplemental Guidance at 

enclosure 1, with the concurrence of the IG, DoD, 

after requesting comments from affected DoD 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 

This Directive is effective immediately. The 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 

1984 Memorandum of Understanding Between 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 the Department of Defense. DoD Components 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 

This Memorandum of Understanding (MOU) establishes policy for the Department of Justice and 

A3-2 

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 

Military Justice, Title 10, United States Code, 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 permissible with respect to specific crimes or 

investigations. 
MEMORANDUM OF UNDERSTANDING BETWEEN THE DEPARTMENTS OF JUSTICE AND DEFENSE 

C. INVESTIGATIVE AND PROSECUTIVE 

JURISDICTION 

1. CRIMES ARISING FROM THE DEPARTMENT OF DEFENSE OPERATIONS 

a. Cormption 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 refemng 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 "conuption" 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.l.a., DoD criminal investigative organizations shall refer to the FBI those 

"significant" allegations of bribery and conflict of 

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.I., above, 

the determination of whether the matter is "significant" 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 requirement of paragraph C.1.a of reference 

(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 

arise from events occurring outside the United 

States, its temtories, and possessions, and requiring 

investigation outside the United States, its temtories, 

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 

Defense investigative agency identifies a matter 

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 

of Justice in consultation with the Department of 

Defense. 
APPENDIX 3 

DoD Supplemental Guidance tim is other than a military member or dependent 

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 

warrant Federal prosecution. This "conference" 

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 dependent upon further investigation. However, DoD 

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 subjectlvicthereof. 

b. One or More Subjects cannot be Tried by 

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 oi 

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.l.b., which requires "conferences" with 

respect to certain cases, subsection C.2. requires 

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), an allegation is "significant" for purposes 

of required 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. CRIMES COMMITTED OUTSIDE MILITARY INSTALLATIONS BY PERSONS WHO 

CAN BE 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 
MEMORANDUM OF UNDERSTANDING BETWEEN THE DEPARTMENTS OF JUSTICE AND DEFENSE 

provide immediate notice of significant cases to the 

appropriate Department of Justice investigative 

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 

Crimes related to scheduled Military activities 

outside of a military installation, such as organized 

maneuvers in which persons subject to the Uniform 

Code of Military Justice are suspects, shall be 

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 Justice, the Department of Defense investigative agency 

will immediately refer the case 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. 

D. REFERRALS AND INVESTIGATIVE 

ASSISTANCE 

1. REFERRALS 

Referrals, notices, reports, requests and the general transfer of information under this Memorandum 

normally should be between the FBI or other Department of Justice investigative 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. INVESTIGATMC 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 

be facilitated by the Department of Defense 

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. 
APPENDIX 3 

DoD Supplemental Guidance 

Prosecution of Cases and Grants of Immunity 

A. The authority of court-martial convening authorities to refer cases to trial, approve pretrial 

agreements, and issue grants of immunity under the 

UCMJ (reference (d)) extends only to trials by 

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 may grant immunity under the UCMJ (reference 

(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, 

statements, and any information directly or indirectly 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 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 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 MAlTERS 

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 jurisdiction, if a Department of Defense investigative agency believes that 

the crime involves special factors relating to the 

administration and discipline of the Armed Forces 

that would justify its investigation, the Department 

of Defense investigative 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 investigation involving any 

element of organized crime and may assume jurisdiction of the same. 
MEMORANDUM OF UNDERSTANDING BETWEEN THE DEPARTMENTS OF JUSTICE AND DEFENSE 

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 

the Department of Defense related investigations 

which are predicated on other than a Department of 

Defense referral except in those rare instances where 

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 

Defense unless the circumstances indicate such 

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 

nature of judicial action, if any, taken or 

contemplated. 

d. If judicial or administrative action is being 

considered by the Department of Defense, the Department of Justice will, upon written request, provide existing detailed investigative data and 

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 Department of Defense investigative agencies may 

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 

of the DoJ prosecutor, as appropriate, situations 

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 apprehensions, searches, seizures, or custodial 

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 
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 

and military jurisdiction attach will, nevertheless, 

tend to make the investigation and prosecution of 

crimes more expeditious and efficient and give appropriate effect to the policies of civil government 

and the requirements of the United States Coast 

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 amilitary 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 rode of Military Justice or who are bonafide dependents or members of a household of military or civilian personnel residing on the installation. 

Unless such a determination is made, the Coast 

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. Crimes committed outside of military installations. Except as hereinafter indicated, all crimes 

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 investi- 
APPENDIX 3.1 

gated by the Federal Bureau of Investigation for the 

purpose of prosecution in civil courts, unless the 

Department of Justice determines that investigation 

and prosecution may be conducted more efficiently 

and expeditiously by other authorities. All such 

crimes which come first to the attention of 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 

Investigation as to particular types or classes of 

crime. However, whenever Coast Guard military 

personnel are engaged in scheduled military activities outside of military installations such as organized maneuvers or organized movement, the 

provisions of paragraph 1 above shall apply, unless 

persons not subject to the Uniform Code of Military 

Justice are involved as principals, accessories or victims. 

If, however, there is involved as a suspect or as 

an accused in any crime committed outside of a 

military installation and falling within the investigative authority of the 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 

military authorities if the Department of Justice 

agrees. 

3. Transfer of investigative autlzority. 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 

that or by any other investigative body, it shall 

promptly advise the other interested investigative 

body of its views. By agreement between the Departments of Justice and Transportation (Coast 

Guard), investigative authority may then be 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 

Investigation and the local Coast Guard military 

commander. 

5. Surrender of suspects. To the extent of the legal 

authority conferred upon them, the Department of 

Justice and Coast Guard military authorities will 

each deliver to the other promptly suspects and accused individuals if authority to investigate the 

crimes in which such accused individuals and suspects 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: 

Is1 Rarnsey Clark IS/ Alan S. Boyd 

Ramsey Clark Alan S. Boyd 

Attorney General Secretary of Transportation 

Date: 9 October 1967 Date: 24 October 1967 
APPENDIX 4 

Charge Sheet (DD FORM 458) 

CHARGE SHEET 

--- I. CIRBONAL DATA 

NAME OF ACCUSED (Lql. Ftmh MJ) 2 WN 3 GRADE OR RANK A PAY QRADE 

James. Reiben J. 111-11-1111 PFC E-3 
 UNIT OROROINlZ4TION 6. CURRENT BLnVICP 
 'a. INITIAL DATE 8 TERM 


Co A, 1st Battalion, 61st Inf Bde, Fort Blank, HO 1 April 1985 3 years 

PAY PER MONTH 1.WTUIlt OF MSTRUMOf *CW#D B DATE(SI IMPDSEO 

1. UASlC ( b 6EaIFOREIGN OUTY I c TDTAL 

$500 I kne 

I 

Restriction 1 August 1984 

11. CHAlaCC ANDCWCIFICATIOIIS I. CMAnGE. I VIOLATION OF THE UCMJ. ARTICC6 86 

6PECIFICATIDN: In that Private Firt Class Reuben J. James, U.S. Army. Company A, 61st 

Battalion, 1st Infantry Brigade, Fort Blank, Missouri, on ective duty, did, on or abour 

15 July 1984, without authority, absent himself from his unit, to wit: Company A. 1st 

Battalion, 61st Infantry Brigade, located at Fort Blank, Missouri, and did remain so 

absent until on or about 50 July 1984. 

Charge 11: Violation of the UCMJ, Article ll2a 

Specification: In that Private First Class Reuben J. James, U.S. Army, Company A, 1st 

Battalion, 1st Infantry Brigade. Fort Blank. Missouri, on active duty, did at Fort Blank, 

Missouri, on or about 12 July 1984, wrongfully possess 10 grams of marijuana. 

III.PREFEURAL 

11 	 NAME OF ACCUtCn fLm#. Pht. HI) b. GRADE c. ORGANl2aTIDN OF ACCUSER 

Richards. Jonathan E. Captain Co A, 1st Bn, 61st Tnf Bde 

SIGNATURE OF ACCMER 

~.~~Ll~l~~ m ; ~ r n law ~to ad;;;inx n ~ in ~we1 of ~thin characltr, ~ pr8onaIly ~ ~ apwnred the

.and rig& the Iorsgoing charge6 and speciIieatlo~ 

undar onth that he*" a pmon subject lo the form Code of M~lltuyJu~tlceand that hem either hu pu'4011.l knowlrdsr of 

ur has Inw~llgmLedLe mrrwnwl forth lharain snd Lhai the ,erne ur true to the brl of his- knowledge and belief. 

Will M. Wilson 61st Bn. 1st Inf Bde 


Tppld Nsm. oIOlilrrr Or#anlt.don al bltlcar 


Captain 	 Adjut ant 

Omd. Of7l~klCopmcltr. 10 Admlnllbr 00lh 

1Srr R.C.M. a07rb)mr#r be canmlrrlonrd olticeri 

u\.\L 4..APylurrw 

EDITION OF OCT 1D 16 D6SOLETE 
.. ~-~ - - .~ ..... .~ .~--.. 

APPENDIX 4 

12. 

On 2 August . 18 84, the nccuned wu informed of the charger spainnt himm md of Lhe name+@ of 

the accurerts) known to me (See R.C.M.308 (a)). (See R.C.M.308 if nolificalion cannot be made.) 

Jonathan E. Richards 	 C0 A, 1st Fn, 61st Inf Bde 

Typed Kame of lmmediolr Commonder 	 Orfanhnhon or Immedmlt Commander, 

Captain 

GIld4 

IV. RECEIPT BY SUMMARY C0URT.MARTIAL CONVENINO AUTHORITY 

13. 

1100 	 The allst Battalion, 1st Inf Bripade sworn charge1 were recelvod nt hours. 2 August 14f14 Dezinnolion of Comn~ondor 

' 

OUiccr Exrrc!dnt Summer). Courl.Mnrtlo1 Jurisdlcllon (See R.C.I. 4031 

CnMMANDFR 

Will M. Wilson Adjutant 


hped Nome of Officer Omrhr Copocirr of Offlcrr Slpnlns 


Captain 

Grode 

u)~th.k\b Slln.turr 

V. REFERRAL: SERVICE OF CHARGES 

14.. DESIGNATION OF COMMAND OF CONVENING AUTHORITY h. PLaCE c >ATE 

1st Infantry Brigade 	 Fort Blank, Missouri 7 August 1984 

Referred for trial to the court-martial convened by CKO number 12 dated 

. 

1 Aueust 19 -8e,subject to the following in~kuctionr:~ None 

.W C."n.nd or Old*- pr 

Carl E. Nevins 	 Commander, 1st Inf Brigad3 Ts~edNmme of Olficrr 	 0frlclal Corocrr~of officer slnnrnr 

Colonel 

Grnd. 

E. dfhm.+ Sitr,.lurr 

15. 

On 8 August ,9 --84 ,IJcaumed to beJrerved Icopy hereof on-the above named ~ccused. 


Hamilton Burger Captain. JAGC 


nprd Nome of Trlal Counrrl 	 Crodr or Ronh of rrm1 Counoel 

FOOTNOTES: 	1 - When an nppropriate commander sum personally, inapplicable words nrr st'richm 

2 -See R.C.M. 601(e) concerning Instruetiow. If none. to tlale. 
APPENDIX 5 

Investigating Officer Report (DD FORM 457) 

1st Bn 61st Inf, Fort Cutts, Texas 


ILITARY COJNSEL OF MY CHOICE IF REASONABLY AVAILABLE. I WAIVE MY RIGHT TO COUNSEL IN THIS INVEITINOTE: IF addi1ian.l rprp Is rwqulnd Iv mny Inm. mntmr thm 8ddl~lowl manrl8l In I1.m 21 ar en m nomrma &at, ldmnti* rush nulmrlal rimthm PrnPmr 

nummrlcd and, if appropriate. Iattm~d hudino (Pxompfe; "Ic':!SHunly nmch any 8ddiUonrl lhwu la th8 form and add a not# h th8 aWraPrlMm ilmm 

ot ma form: "%a addili-Idnet." 

DDP,","=467 EDITION OF OCTO~IS OSOLETL. 
.--... ~ . . - .~ ~~ .-..~~. .... 

APPENDIX 5 

Duduor~. Dodd D. Captain Co A. 1st Bn. 61st Inf 

I I 

Evansun, Evan E. Sergeant Co A, 1st Bn. 61st Inf 

Fordson, Ford P. I Sergeant ! ICOti MP CO. 

b. THE SUBSTANCE OF THE TESTIMONY OF THESE WITNESRES HAS BEEN REDUCE0 TO WRITING AND IS ATTACHED. 

138 THE FOLLOYING STATEMENTS. DOCUMENTS. OR NATTEAS WERE CONSIDERED, THE ACCVSEO WAS PERMITTIO TO 

EXAMINE EACH 

DESCRIPTION OF ITEM LOCATION OF ORIGINAL (lrnol allashedl 

Statement of Gregg Greggson CID, Bldg 10, Fort Cutts, Texas 

CID Lab Report 

(1iugrryri.n~analysis) I CID, Bldg 10, Forc curt^, Texas 

YES NO q 

I I I b EACH ITEM CONSIOERFD. OR A COPY OR RECITAL OF THESLldSTAYCE OR N4TURE THEREOF. IS AlTACMED IX I 

114 THERE ARE ORWNDS TO BELIEVE THAT THE ACCUSEO WAS NOT NENTALLY RESPONSIBLE FOR THE OFFENSEIS) 1- OR NOT COMPETENT TO PARTICIPATE IN THE DEFENSE. (Sn R.C.M. 909. 9181hl.l Ix I 

e. TRIAL BY SUMMARY SPECIAL GENERAL COURT-MARTIAL 

b. OTHER iarcit~in llam 21 blow) 

PI. REMARKS rlncIUdo. O. nec*mm, #XP~OMI~O~ lor sny drioys In he ~n~earl#aflon. md exNonotlon ror any ~~no"amvsn0bovr.l 

. .. 

16. THE DEFENCE 010 REQUEST OBJECTIONS TO BE NOTED IN THIS REPORT (It Ye,, ,wefi+y In 1l.m 11 b.low.) 

16. ALL ESSENTIALWITNESSES WILL BE AVAILABLE IN THE EVENT CF TRIAL 

17. THE CHARGES ANDSPECIFICATIONSARE IN PROPER FORM 

18. REASONABLE OROUNDS EXIST TO BELIEVE THATTHE ACCUSED COMMITTED THE OFFENSEIS) ALLEOED 

19. I AM NOT AWARE OF ANY OROUNDSWHICH WOULD DISDUALIFY ME FROM ACT IN0 AS INVESTIGATINO OFFICER. 

Examples of other waLLers wlllch way be discussed here are: 

1. Discussion of evidence, credibility of witnesses, and sufficiency of proof. 

2. Recommendations to dismiss or change any specifications. 

3. Statement of any anticipated offenses or of any anticipated difficulties in proving 

any speciEication on which trial is recommended. 

4. Any other matter which should be known to the convening authority or subsequent 

reviewing authorities. 

X 

X 

X 

X 

fSw R.C.X 4OSldllll I x 

171. TYPED NAME OF INVESTIGATING OFFICER b. GR~DE O. ORGANIZATION 

Adam A. Adamson Major 1st Bn, 61st In£ Bde 
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)] 


@ate) 


pesiwation Of Of officer convening 

court-martial) 

[Pursuant to (para. - - General 

Order No. , Department of 

the , ) (SECNAV ltr 

ser of- -1 a1 (A) 

(general) (special) court-martial is convened with the 

following members (and shall meet 

a t - , 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) 

court-martial convened by order 

no. this (headquarters) (ship) 

( ), dated 

in which the proceedings have not begun, will be 

brought to trial before the court-martial hereby 

convened. 

(2) Order amending convening orders. 

[Note 5. The same heading and 

authentication used on convening order should be 

used on amending orders.] 

[Note 6. A succession of amending orders 

may result in error. Care should be used in 

amending convening orders.] 

(a) Adding members. 

[Note 7. Members may be added in 

specific cases or for all cases.] 

The following members are detailed to the 

(general) (special) court-martial convened by order 

no. this (headquarters) (ship) 

), dated 

- (for the trial of ~.only). 

(b) Replacing members. 

[Note 8. Members may be replaced in 

specific cases or for all cases.] 

(Captain) (Colonel) ~ is

detailed as a member of the (general) (special) 

court-martial convened by order 

no this (headquarters) (ship) 

(- ), dated . , 

relieved (for the case of . only). 

b. Summary court-martial convening 

orders 
- 

APPENDIX 6 

@ate)--- at _ ,unless otherwise directed). 

(Designation of command of officer convening [Note 9. The name, rank, and position of 

court-martial) the convening authority should be shown. The order 

may be authenticated by the signature of the 

[Pursuant to (para.---., convening authority or a person acting under the 

General Order No.--- , Department of direction of the convening authority.] the ,,) (SECNAV Itr 

ser of ,)I [Note 10. The summary court-martial 

(Lieutenant Commander) (Major) convening order may be a separate page or a 

is detailed a summary court-martial (and shall sit notation on the charge sheet. See R.C.M. 504(d)(2) 

and 1302(c).] 
APPENDIX 7 


Subpoena (DD FORM 453) 


SUBPOENA 

1 mpmident 01 me United sutw, to MI. ~anesE. pinelli 

(Name and Title of Person being Subpoenaed) 


You are hereby summoned and required to appear on the &day of Oc tOber -1993. at 9


Bldg 13, Rm 4, OS Naval 


oseloek A .M.,at Staciox, Oakton. FL 
 (Place or RomrdlwJ (Nsmrand ntlrol UeDo#lHon OitIcrrJ 


~ d n ~ ~ d i w d k ~ a court-mull1 ofthe United Stat~bXOi~, 
 appointed 

by Cenpral Cou~t-Masid Convenj.npn~& No. 10 ,dated LSept ember 


IldenHflcorronor Convenlnr Order or Canuenlng ~utho,-lly~ 


19 93, to testiry am a witness in the matter of Il"ited Staten- Roberts (Nameof ca##J 

Failure to appear and teatify k puniahable by a fine of not more than $600 or irnpriaonment tor m period not more than six months. 

or both. 10 U.S.C. 8 847. Failure to appear may also mult in your being taken into custody and brought before the court-martial 

K p g u n d e r a Warrant of Attachment (DDForm 454). Manual for Courts-Martlal R.C.M.703(e)(2XG). I 

Ehkg tbis subpoena with you and do not depart from the proceeding wlthout proper permlion. I 

Bubcalbcdat Naval Station, Oakton, FL this %day of September 

ISiemturc ISte R.C.M. 703feJlPJICI) 

The witm ia requested to sign one copy of thls subpoena and to return thesigned copy to the pemon serving the aubpotna. I I herehy accept nervice of the above subpoena. I 

Signaturn o! Wiheu 


NOTE: If the witness does not swn. complete the following: 


Personally appeared before me, thc undersigned authoriry, 

who, beinfi flmt duly sworn according to law, depm and asys thnt at , on 

19 , he personally delivered to in persons duplicate of this uubpoena. 

Submibed and sworn to before me at ,this -dsy of 

19 . 

Clod< 

OIIklal Stduo Yilnoture 

DD A0z!G453 EOlTlOV OF OCT89 IS OBSOLETE. * GPO : 1984 0 - 421-646 (17036) 
.~ ~ 

. . . ...~ -- ~-..~- -

APPENDIX 7 

I TRAVEL ORDER 

Payment of Lrarel dluwancav i! auLhurized purvuanl Lo -0 U.B.C. 5 847 and 28 U.B.C. 5 1821. You should travel from 

Smithbur~,.Ceoy~iia- -.---..----in ,~rficle~t time 1, at .N~v.4. %ation, Oakton, FL 

on tha date and at the time cpeclfied. You will be paid fee8 snd expanme8 lor attendance at the apeelfled houlq and travel dkeetly 

to and from that place. You may travel by Orail. commercial or military aircraft, Ubur, or '&Iprlvatelyowned sutomoblle. 

You have Tjl] have nu1 been given a "Governmenl Traniportation Request'' to exchange for commercial tlckets. No mileage wlll 

be paid for any t~aurportatiu~t pruvided by LLe Ouvsnur~mtin kin11or by Government Tramportation Request. 11a Government Transportation Request is not given to you mnd you Iravrl by commercial carrier at personal expense, reimbursement For your cost of tramportation will be limited to: 

a. The least costly regularly scheduled sir service between the point# involved; or 

I b. The cost of the rail fare and a lower berth, or the lowet first-class mil ~ccornmudationnvnilable at the time raaa~nlions 

were made; or 

I c. Actual cost of commercial bum fare. 

If you trsvel by privetc automobile, you will bc mimburscd at thc rote of pucnt~crnb 1.20# 4 a mile. plum the 

colt of necesvary parking fees, bridge, ferry. and other highway tolls incurred while traveling und~thin tare1 order. The tobl reimburrement will be limited to the cmt of tmvel by the usual mode of common carrier, including per diem Remlptr and tlcke ?(,tubwill 

be required to suppor-t your claim for coat 01 transportation and subsistence for each item In excess of pls.oq&- . 

You will be traveling to a highrost area. 

The travel regulations designate certain cities as high cost areas, Because your attendance requires travel ta one of theae cities. you 

will be authorized an nctunl cxpcnac dlownncc instcod of a per diem nllowance. ~buwill be reimbursed for the sctud expew in. 

curred, not to exceed the maximum amount prescribed for the city involved. The expenaes may include lodgings; meale. tlpa to waitem, 

bellbogs, maids. porten: personal laundry, pressing and dry-cleaning; local trannportation linelvdinn U.U.I I*,) between plncom of lodging 

and dut~:and other necessary expenser. You must itemrae your daily actual expenaee on your claim and recsiptr fnr lodging and any 

Items over p!b.Oq .. / / ere required. 

I You will not be traveling to a high.cost area 

&cause you are not traveling to a high.cost area, you wiU be entitled to a per diem alloxnnn to mver your expnacn for lodging, 

meals, md incidentah. While traveling snd eltending the spccificd hearing within the continental United Gtalea, you Hill be autboriacd 

s per dim equal to the daily average you pay for lodging. plus pz3.oof .. .#I per day For meals and lncidcnbi8., rounded olf 

Lo the next dollar. If the resulting amount ismore than the maximum per diem allowahle, which is psu.oq---. then 

you will be reimbursed only the maximum per diem authorized. You are required lo state on your reimbuwmenr claim that the per 

diem claimed is baaed on the average cost to you for lodging while on requlred travel wlthln the contlnenrnl United Stater during the 

period covered by the dairn. Receipts are required $01 lodyiny. The per diem allowance for travel overseas is based on raten mt by the 

Departmen1 of Shie ur by the Department or Defense, and you will be reimbursed the amount specified lor the particular ovcrseu 

usa involved. 

I You are entitled to an attendance fee of *~o.oq , . .I,/ , - per day under 28 US.C 6 1821 

Addresq any inquiries regarding the matter to: lieutenilnt R. Nueller,. Naval Legal._Ss~vice3f £ice ,

I .Yuil4ing i 3,,., b~31.+t.u..O&~oo~ .Tel-N.r. L!,11~.W-I~II. 

I

Thia is Irsvel ordw number . 93-7 .. - . . . datad -20 Se~-femk-~.~993- issued by ~h..d~~~~~t.~~ bval S- ATDN.Accounting Citation XXA11122211-u-0 .. ... -

I FORTHE COMMANDER 

8. Mueller. Lt , JAGC ,..IISN, _Tcl+~l.~ounscl Lcm J .. Bergcr ,,..LCDR,S_C ,.rSN, Disburainz Typed Noms 111 .4pproulnl Olll~~aI l'vped Name 01 A~thrnlicaflnlOfficial officer 
APPENDIX 8 


GUIDE FOR GENERAL AND SPECIAL COURTS-MARTIAL 


Sessions called to order 

Convening orders and referral of 

charges 

Accounting for parties 

[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 

mote 2. See R.C.M. 901-911.1 

[Note 3. When a military judge has been detailed, the proceedings outlined in this section will be conducted at an Article 39(a) session. See R.C.M. 901(e). In special courts-martial without a military 

judge, these procedures should be followed in general; the president of a special court-martial without 

a military judge should also carefully examine pertinent Rules for Courts-Martial.] 

MJ: This Article 39(a) session is called to order. (Be seated.) 

TC: The court-martial is convened by (general) (special) court-martial convening order(s) number --- , (HQ 

(USS--.p ) ), (as amended 

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 14.1 

mote 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 senice 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 typographical errors or changes of grade due to promotion, may 

be made. Any correction which affects the identity of the individual concerned must be made by an 

amending or correcting order.] 

[Note 8. See R.C.M. 813.1 

TC: 	 The accused and the following persons detailed to this court-martial are 

present: 	 The members and the following persons 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).] 
APPENDIX 8 

TC: been detailed reporter for this court-martial and 

(has previously been sworn) (will now be sworn). 

[Note 10. See R.C.M. 807(b)(2) Discussion @) 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). 

( -. 
 1

TC: 	 (I have not) (No member of the prosecution has) acted in any manner 

which might tend to disqualify (me) (him) (or) (her) in this court-martial 1 

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). 

1 

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. (-----. 1 . . Qualifications of individual IDC: My quahficatlons are . I have not acted in any mancounsel when present ner which might tend to disqualify me in this court-martial. 

mote 11. If it appears that any counsel may be disqualified, the military judge must decide the matter 

and take appropriate action. See R.C.M. 901(d)(3).] 

Rights to counsel [Note 12. See R.C.M. 506.1 

MJ: _, you have the right to be represented in this courtmartial b y . (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? 

mote 13. If two or more accused in a joint or common trial are represented by the same counsel, or by 

civilian counsel who are associated in the practice of law, the military judge must inquire into the matter. See R.C.M. 901(d)(4)(D).] 

MJ: 	 Do you have any questions about your rights to counsel? 

ACC: 
General nature of charges 

Challenge of militpy judge 

Accused's elections on composition of court-martial 

GUIDE FOR GENERAL AND SPECIAL COURTS-MARTIAL 

MJ: 	 Whom do you want to represent you? 

ACC: 

mote 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.] 

TC: 	 The general nature of the charge(s) in this case is.----p. 

The charge(s) were preferred b y - - , forwarded with recommendations as to disposition (, and investigated 

by- --). ( . i s also an accuser in this case.) 

mote 16. See R.C.M. 902.1 

TC: 	 Your honor, are you aware of any matter which may be a ground for 

challenge against you? 

MJ: 	 (I am aware of none.) (_ -.) 

TC: 	 (The Government has no challenge for cause against the military 

judge.) (-...-..----.) 

DC: 	 (The defense has no challenge for cause against the military judge.) 

( .) 

mote 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: ----. 
APPENDIX 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@)(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 	 [Note 20. A request for trial by military judge alone must be written and signed by the accused and 

judge alone 	 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. 

103@)(2)(D)(iii).l 

MJ: (I have Appellate Exhibit.--, a request for trial before 

me alone.) (I am (Colonel) (Captain) 1 

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 reuested, enlisted members). Do you wish to request trial before me 

$ne? 

ACC: --. 

MJ: 	 (Your request is approved. The court-martial is assembled.) (Your request is disapproved because -.-..) 

[Note 21. See R.C.M. 903(c)(2)(B) concerning approval or disapproval. See R.C.M. 911 concerning assembly of the court-martial.] 

Arraignment 	 [Note 22. See R.C.M. 904.1 

MJ: 	 The accused will now be arraigned. 

TC: 	 All parties and the military judge have been furnished a copy of the 

charges and specifications. Does the accused want them read? 

DC: 	 The accused (waives reading of the charges) (wants the charges read). 

MJ: 	 (The reading may be omitted.) 

TC: 	 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. 
GUIDE FOR GENERAL AND SPECIAL COURTS-MARTIAL 	 APP. 8 

mote 23. See R.C.M. 801(e), 905-907 concerning motions. See R.C.M. 908 if the Government elects 

to appeal a ruling adverse to it.] 

DC: 	 The defense has (no) (the following) motion(s). (---.---.. ) 

mote 24. After any motions are disposed of pleas are ordinarily entered. See R.C.M. 910.1 

DC: 	 -pleads 

mote 25. If the accvsed enters any pleas of guilty proceed with the remainder of section I. If no pleas 

of guilty are entered, proceed to section I1 if trial is before members, or section I11 if trial is before military judge alone.] 

mote 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 	 mote 27. See R.C.M. 910(c), (d), (e), and (0.If a conditional guilty plea is entered, see R.C.M. 

910(a)(2).1 

Introduction MJ: your plea of guilty will not be accepted unless you 

understand its meaning and effect. I am going to discuss your plea of 

guilty with you now. If you have any questions, please say so. DO you understand? 

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: 	 P-P. 

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: 
APPENDIX 8 

MJ: 	 If you plead guilty, there will not be a trial of any kind as to the offense(~) to which you are pleading guilty, so by pleading guilty you 

give up the rights I have just described. Do you understand that? 

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: 

mote 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 dis- 


cuss 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 	 mote 29. The accused will be placed under oath at this point. See R.C.M. 910(e). The military judge 

may inquire whether there is a stipulation in connection with the plea, and may inquire into the stipulation at this point. See R.C.M. 811.1 

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? 

---. 

GUIDE FOR GENERAL AND SPECIAL COURTS-MARTIAL 

ACC: 

TC: Do you (swear) (affii) 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@) 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 foulid 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.-- .- ... 

mote 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@) 

vote 31. The military judge should elicit from the accused facts supporting the guilty plea by questioning the accused about the offense@). The questioning should develop the accused's description of the 

offense@) and establish the existence of each element of the offense@). 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: 

mote 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? 
- -..,... ~ ~ .~... . ~ . - - -. .. --..-.. . .. .-. 

APPENDIX 8 

mote 33. If the answer is yes proceed to note 35; if the answer is no, proceed as follows.] 

MJ: 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? 

mote 34. If the answer is no, proceed to acceptance of the plea. If the answer is yes, the military judge 

should detennine from the accused and counsel whether any agreement exists. If so, the plea agreement inquiry should continue. If not, then the military judge should clarify any misunderstanding the 

accused may have, and ascertain whether the accused still wants to plead guilty. Once any issue is resolved, if the accused maintains the plea of guilty, proceed to acceptance of the plea.] 

[Note 35. If there is a pretrial agreement, the military judge must: (1) ensure that the entire agreement 

is presented, provided that in trial by military judge alone the militaq 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 clarif~cation 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 ..-pp.-p., 

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? 

MJ: Did you also read and sign Appellate Exhibit 

is the second part of the agreement? 

which 

ACC: 

MJ: Do you believe that you fully understand the agreement? 

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: 	 -. 
GUIDE FOR GENERAL AND SPECIAL COURTS-MARTIAL 	 APP. 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 . . Exhlblt____--., which you have just read) 

( -). [In addition, (you have agreed to testify 

against 1 (- (the convening authority 

has agreed to withdraw Charge___..-. . - and its specification) 

). Do you understand that? 

ACC: 

MJ: 	 If the sentence adjudged by this court-martial is greater than the one 

provided in the agreement, the convening authority would have to reduce the sentence to one no more severe than the one in your agreement. On the other hand, if the sentence adjudged by this court-martial 

is less than the one in your agreement, the convening authority cannot 

increase the sentence adjudged. Do you understand that? 

ACC: .---. 

mote 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: 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? 

MJ: 	 Do counsel agree? 

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: 	 - ---. 

MJ: 	 (To DC), did the offer to make a pretrial agreement originate with the 

defense? 

DC: -. 

MJ: 

ly? you entering this agreement freely and voluntari- 
APPENDIX 8 

AC: 	 --

MJ: 	 Has anyone tried to force you to enter this agreement? 

ACC: 	 PP-. 

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 	 mote 39. Findings of guilty may, and ordinarily should, be entered at this point except when: (I) not 

based on a gdty plea 	 permitted by regulations of the Secretary concerned; or (2) the plea is to a lesser included offense and 

the prosecution intends to proceed to trial on the offense as charged. See R.C.M. 910(g)(l) and (2). See 

also R.C.M. 910(g)(3) in special courts-martial without a military judge. In trials before military judge 

alone, when some offenses are to be contested, the military judge may elect to defer entry of any findings until the end of trial on the merits.] 

[Note 40. See R.C.M. 922 and Appendix 10 concerning forms of findings.] 

MJ: in accordance with your plea(s) of guilty, this courtmartial finds you (of all charges and specifications) (of Specification of Charge_-- and 

Charge-__-- _ -_): Guilty. 
Oath of members 

Assemblylpreliminary 

instructions 

GUIDE FOR GENERAL AND SPECIAL COURTS-MARTIAL 	 APP. 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.1001(a)(3). See Note 88 below. In addition, other issues relating to the information or evidence 

to be introduced on sentencing should ordinarily be resolved at this point. If other offenses remain to 

be contested, the military judge should consider, and solicit the views of the parties, whether to inform 

the members only of the offenses to which the accused pleaded not guilty. The copy of the charges 

presented to the members should reflec this decision. See also Note 26.1 

Section II. Trial With Members; Preliminary Session 

[Note 42. The following procedure is suggested for a trial with members after completion of the Article 39(a) session. 

Before calling the court-martial to order, the military judge should examine the 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 

bymember. 

-), a copy of which has been furnished to each 

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: 

mote 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). 

MJ: 	 The members will now be sworn. 

TC: 	 All persons please rise. 

"Do you [name(s) of member@)] (swear) (affirm) that you will answer 

truthfully the questions concerning whether you should serve as a 

member of this court-martial; that you will faithfully and impartially 

try, according to the evidence, your conscience, and the laws applicable 

to trials by court-martial, the case of the accused now before this court; 

and that you will not disclose or discover the vote or opinion of any 

particular member of the court-martial (upon a challenge or) upon the 

findings or sentence unless required to do so in due course of law, (so 

help you God)?' 

Each member: I do. 

MJ: 	 Be seated please. The court-martial is assembled. 
APPENDIX 8 

mote 44. See R.C.M. 911 concerning assembly.] 

mote 45. At this point, the military judge may give the members preliminary instructions. These may 

include instructions on the general nature of the member's duties ( see R.C.M. 502(a)(2) and Discussion, 922,1006), the duties of the military judge ( see R.C.M. 801, 920, 1005; Mil. R. Evid. 103). and 

the duties of counsel ( see R.C.M. 502(d)(5) and (6)); on voir dire and possible grounds for challenge 

(seeR.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 mote 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 -...--p---.) 

Challenges 	 TC: The records of this case disclose (no grounds for challenge) (grounds 

for challenge 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. 

mote 47. In case of a negative response, trial counsel should announce "Apparently not."] 

mote 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. 9120 and 

(g). In special courts-martial without a military judge, see R.C.M. 912(h).] 

mote 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 enswe that a quonun 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.] 

mote 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: 

mote 52. In a special court-martial without a military judge, the accused should now be arraigned. See 

Notes 22-39.] 

mote 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.] 
GUIDE FOR GENERAL AND SPECIAL COURTS-MARTIAL 	 APP. 8 

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 Spec~ficahon(s) ( - -1 . . (and_- -_--__) (and ). Andrl~gs 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@) to 

which (he) (she) has pleaded not guilty. 

mote 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 Ill. TRIAL 

mote 57. See R.C.M. 913.1 

MJ : 	 Will the prosecution make an opening statement? 

TC: 	 (No) (Yes ..-------. ) 

MJ: 	 Will the defense make an opening statement? 

DC: 	 (No) (The defense will make its statement after the prosecution has rested.) (Yes 1 

TC: 	 The prosecution calls as its first witness . 

Oath of witness [Note 58. See R.C.M. 807.1 
APPENDIX 8 

TC: 	 Do you (swear) (affii) 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). 

mote 59. The address of witnesses should be omitted in appropriate cases, as where it might endanger 

the witness.] 

mote 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? 

mote 61. If the witness answers affiiatively:] 

TC: 	 Please point to the accused and state (his) (her) name. 

TC: 	 Let the record show that the witness pointed to the accused when stating (h~s) (her) name. 

Testimony 	 [Note 62. Trial counsel should now conduct direct examination of the witness. See Mil. R. Evid. 611.1 

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.] 

mote 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.] 
Recess, adjournment, or Article 

39(a) session 

Reopening 

Prosecution rests 

Presentation of evidence by defense 

Rebuttal and surrebuttal 

GUIDE FOR GENERAL AND SPECIAL COURTS-MARTIAL 

MJ: thank you. You are (te~ilporarily) excused. (Please .. wait (in the watlng room) (---)I.(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 ou about the case, stop them and report the matter to one of the . counsel 

mote 66. The witness will withdraw from the courtroom. See Mil. R. Evid. 615.1 

TC: The prosecution calls as its next witness___.-. 

mote 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.] 

[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.] 

mote 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. 

TC: The prosecution rests. 

mote 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.] 

mote 71. Defense counsel may make an opening statement if one was not made previously.] 

DC: The defense calls as its first witness 

mote 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 64.1 

mote 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. 

[Note 74. The parties may present evidence in rebuttal and surrebuttal. See R.C.M. 913(c)(l). After the 

parties complete their presentations, additional evidence may be presented when the military judge so 

directs. See R.C.M. 801(c), 913(c)(l)(F).] 

mote 75. When a witness is recalled, the following is appropriate.] 

TC: Are you the same- who testified earlier in this court 

martial? 

WIT: lam. 
instructions 

Closing arguments 

Instructions 

Closing 

After fmdings reached 

Out of court hearing on findings [Note 77. Ordinarily the military judge will conducts Article 39(a) session to discuss findings inshucAPPENDIX 8 

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.] 


tions and examine the findings worksheet. See R.C.M. 920,92l(d). If such instructions are discussed at 


a conference, see R.C.M. 802.1 


[Note 78. See R.C.M. 919.1 


TC: ---. 

DC: P.. 

TC: 

[Note 79. See R.C.M. 920.1 

MJ: 

MJ: Does any member have any questions concerning these instructions? 


MEMBERS: 


MJ: Do counsel have any objections to these instructions not previously 
 raised? 

TC: 

DC: 

[Note 80. See R.C.M. 920(f).] 

[Note 81. Any exhibits which the members are to consider should be given to the president before the 

court-martial closes.] 

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.] 

MJ: The court-martial will come to order. 


TC: All parties and members and the military judge are present. 


MJ: (To president) have the members reached findings? 


PRES: 


MJ: Are the findings on Appellate Exhibit 
 7 

PRES: Yes. 


MJ: Would (the bailiff) (trial counsel), without examining it please bring 
 . . me Appellate Exhlblt-? 

MJ: 	 I have examined Appellate Exhibit It appears to be 

in proper form. Please return it to the president. 
GUIDE FOR GENERAL AND SPECIAL COURTS-MARTIAL 

[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 necr~sary.1 

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 51.1 

Data from charge sheet [Note 86. See R.C.M. 1001(b)(l).] 

MJ: The court-martial will now hear the data concerning the accused shown 

on the charge sheet. 

TC: -. -- . 

Matters presented by 

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: .~-p-p_..-p,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? 

MJ: Which of these rights do you want to exercise? 
Rebuttal 

Out of court hearing on 

sentencing instructions 

closing arguments 

Instructions 

~ ..-..---- -

APPENDIX 8 

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. 


[Note 90. The parties may present additional matters in rebuttal, as appropriate. 


See RC.M. 1001(a)(l)(C).] 

[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.] 

mote 92. Ordinarily the military judge will conduct an Article 39(a) session to discuss sentencing instructions and examine the sentence workslleet. See R.C.M. 1005. If such instructions are discussed at 

a conference, see R.C.M. 802.1 

[Note 93. See R.C.M. 1001(g).] 

TC: --. . 

DC: --.--.--- . 

mote 94. See R.C.M. 1005.1 

MJ:
 .-----... 

MJ: Does any member have any questions concerning these instructions? 


MEMBERS:. 


MJ: Do counsel have any objections concerning these instructions not 


previously raised? 

TC: - -. 

DC: ------.-..- -. 

mote 95. See R.C.M. 1005(f).] 

mote 96. Any exhibits which the members are to consider should be given to the president before the 

court-martial closes.] 

Closing MJ: The conrt-martial is closed. 

After sentence reached MJ: The court-martial will come to order. 

TC: All parties and members and the military judge are present. 


MJ: (To president) have the members reached a sentence? 


PRES: __-. 


MJ: Is the sentence on Appellate Exhibit _? 


PRES: Yes. 


MJ, Would (the bailiff) (trial counsel), without examining it, please bring 
 . . me Appellate Exhlblt . 
GUIDE FOR GENERAL AND SPECIAL COURTS-MARTIAL 	 APP. 8 

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 !.nu 

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. 910(f)(3) or, if the accused was represented by more than one counsel, which counsel will 

prepare any response to the post-trial review) these matters should be addressed before the court-martial is adjourned.] 

Advice of post-trial and [Note 99. The military judge must advise the accused of the accused's post-trial and appellate rights. 

appellate rights See R.C.M. 1010.1 

MJ: I will explain to you your post-trial and appellate rights. 

MJ: 	 After the record of trial is prepared in your case,-----_ the 

convening authority will act on your case. The convening authority can 

approve the sentence (adjudged) (provided in your pretrial agreement), 

or (he) (she) can approve a lesser sentence or disapprove the sentence 

entirely. The convening authority cannot increase the sentence. The 

convening authority can also disapprove (some or all of) the findings of 

guilty. The convening authority is not required to review the case for 

legal errors, but may take action to correct legal errors. Do you understand? 

Advice in GCMs and SPCMs in mote 100. In cases subject to review by a Court of Criminal Appeals, the following advice should be 

which BCD adjudged given. In other cases proceed to Note 101 or 102 as appropriate.] 

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 hy 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). 
APPENDIX 8 

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. 

Do you have any questions? 

ACC: .. .-. 

MJ: The court-martial is adjourned. 

GCM subject to review under [Note 101. In general courts-martial subject to review under Article 69, the following advice should be 

Article 69 given. In other cases, proceed to Note 102.1 

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 wislr 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: 
GUIDE FOR GENERAL AND SPECIAL COURTS-MARTIAL APP. 8 

(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. 

Do you have any questions? 

ACC: 

MJ: The court-martial is adjourned. 

SPCM not involving a BCD [Note 102. In special courts-martial not involving BCD, 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 10 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: 

MJ: The court-martial is adjourned. 
APPENDIX 9 


GUIDE FOR SUMMARY COURTS-MARTIAL 


[General Note to SCM: It is not the purpose of this guide to answer all questions which may arise during a trial. When this guide, chapter 13 of the Rules for Courts-Martial, and other legal materials available fail to provide sufficient infomation 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 --.I have been detailed to conduct a summary 

court-martial (by Summary Court-Martial Convening Order (Number- -), Headquarters ._-,dated [see convening order]). 

Referral of charges to trial 	 Charges against you have been referred to me for trial by summary 

court-martial by ([name and title of convening authon'ry]) on ([date of 

referral]) [see block IV on page 2 of charge sheet]. 

mote 1. Hand copy of charge sheet to the accused.] 

Providing the accused with 	 I suggest that you keep this copy of the charge sheet and refer to it durcharge sheet 	 ing 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: -
APP. 9 

Duties of SCM SCM: 

ACC: 

Right to object to SCM SCM: 

ACC: 

Right to inspect allied papers SCM: 

and personnel records. 

Witnesseslother evidence for the SCM: 

government 

Right to cross-examine 

ACC: 

Right to present evidence SCM: 

ACC: 

APPENDIX 9 

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? 

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. 306.1 Do you understand that? 

You may inspect the allied papers and personnel records [Hand those 

documents which are available to the accused for examination in your 

presence.] (You may also inspect [identify personnel records or other 

documents which are not present] which are located 

a t - . You may have time to examine these if you wish.) 

The following witnesses will probably appear and testify against 

you:- -. The following documents and physical evidence 

will probably be introduced: 

After these witnesses have testified in response to my questions, you 

may cross-examine them. If you prefer, I will do this for you after you 

inform me of the matters about which you want the witness to be questioned. Do you understand that? 

You also have the right to call witnesses and present other evidence. 

This evidence may concern any or all of the charges. (I have arranged 

to have the following witnesses for you present at the trial.) I will arrange for the attendance of other witnesses and the production of other 

evidence requested by you. I will help you in any way possible. Do 

you understand that? 
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($ 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). 

Right to testify concerning the 

offense($ 

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(~) 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 tesm, remain silent or SCM: In addition, if you are found guilty of an offense, you will have the 

make an unswom statement in right to testify under oath concerning matters regarding an appropriate 

extenuation and mitigation 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.] 
APP. 9 

E-4and below 

[Note 5. For 

E-5and above 

SCM: 

ACC: 

Plea options SCM: 

ACC: 

SCM: 

ACC: 

Lesser included offenses SCM: 

ACC: 

SCM: 

ACC: 

APPENDIX 9 

(1) reduction to lowest enlisted pay grade; and 

(2) forfeiture of two-thirds of 1 month's pay; and 

(3) confinement for 1 month (or, [if the accused is attached to or embarked in a vessel] to confinement on bread and water or diminished 

rations for 3 days and confinement for 24 days). 

an accused of a pay grade above W,proceed as follows.] 

(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. 

Do you understand the maximum punishment which this court-martial 

is authorized to adjudge? 

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? 

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? 

[Examine the list of lesser included offenses under each punitive article 

alleged to have been violated. See Part 1V.If a lesser included offense 

may be in issue, give the following advice.] You may plead not guilty . . to Charge Speclficatlon 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? 

Do you need more time to consider whether to object to trid by summary court-martial or to prepare for trial? 
-. 


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: DOYOU object to trial by summary court-martial? 

SCM 

ACC: 

Entries on record of trial 	 mote 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@) and specification(~)? 

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. 1304@)(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.] 
APP. 9 	 APPENDIX 9 

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(~)to which you have pleaded guilty. I will not accept your pleas 

unless you realize that by your pleas you admit every element of the 

offense(s) to which you have pleaded guilty, and that you are pleading 

guilty because you really are guilty. If you are not convinced that you 

are in fact guilty, you should not allow anything to influence you to 

plead guilty. Do you understand that? 

ACC: -_-- .-. 

SCM: 	 Do you have any questions? 

ACC: 	 -.. 

SCM: 	 By your pleas of guilty you give up three very important rights. (You 

keep these rights with respect to any offense(s) to which you have 

pleaded not guilty.) The rights which you give up when you plead 

guilty are: 

First, the right against self-incrimination. This means you give up the 

right to say nothing at all about (this) (these) offense(s) to which you 

have pleaded guilty. In a few minutes I will ask you questions about 

(this) (these) offense(s), and you will have to answer my questions for 

me to accept your pleas of guilty. 

Second, the right to a trial of the facts by this court-martial. This means 

you give up the right to have me decide whether you are guilty based 

upon the evidence which would be presented. 

Third, the right to be confronted by and to cross-examine any witnesses 

against you. This means you give up the right to have any witnesses 

against you appear, be sworn and testify, and to cross-examine them 

under oath. 

Do you understand these rights? 

ACC: -.- .-. 

SCM: 	 Do you understand that by pleading guilty you give up these rights? 

ACC: -----. 

SCM: 	 On your pleas of guilty alone you could be sentenced 

to 	 . 

mote 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: -..p..-Lp-. . 

[Note 12. If the accused answers yes, the sumnary 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 !l~e accused has pleaded guilty to a lesser included offense, also ask the following question.] 

Effect of guilty pleas to lesser SCM: DO you understand that your pleas of guilty to the lesser included ofincluded offenses fense confess all the elements of the offense 

charged except and that no proof is necessary to establish those elements admitted by your pleas? 

ACC: 

SCM: 	 The following elements state what would have to be proved beyond a 

reasonable doubt before the court-martial could find you guilty if you 

had pleaded not guilty. As I read each of these elements to you, ask 

yourself whether each is true and whether you want to admit that each 

is true, and then be prepared to discuss each of these elements with me 

when I have finished. 

The elements of the offense(s) which your pleas of guilty adnit 

are. --. . 

mote 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.] 
APP. 9 	 APPENDIX 9 

Oath to accused for guilty plea SCM: DO you (swear) (affm) that the statements you are about to make shall 

inquiry 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: -- P. 

SCM: Do you believe that you understand the meaning and effect of your 

pleas of guilty? 

ACC: -- . -. 

Determination of providence of 	 mote 16. Pleas of guilty may not be accepted unless the summary cou~i-l~iartial finds that they are 

pleas of guilty 	 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@), 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 fmdings as follows.] 

Acceptance of guilty pleas SCM: 	 I find that the pleas of guilty are made voluntarily and with understanding of their meaning and effect. T 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 	 mote 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@) and specification(~), 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, arid 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: 

mote 18. The summary court-martial should estimate the length of the case and arrange for the attendance of witnesses. The prosecution evidence should he 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. 
Reciilling witnesses 

Presentation of defense case 

Closing argument 

Deliberations on findings 

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 affi.] 

WIT: .-. 

SCM: Be seated. State your full name, rank, organization, and armed force 

([or if a civilian witness] full name, address, and occupation). 

[Note 19. The summary court-martial should question each witness concerning the alleged offense@). 

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? 

WIT: 

SCM: 	 [To the witness]You are excused. 

mote 21. 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. T will now consider the evidence in your favor. 

mote 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.] 

SCM: 	 I have now heard all of the evidence. You may make an argument on 

this evidence before I decide whether you are guilty or not guilty. 

[Note 24. The court-martial should normally close for deliberations. If the summary court-martial decides to close, proceed as follows.] 

SCM: 	 The court-martial is closed so that I may review the evidence. Wait 

outside the courtroom until I recall you. 
Announcing the findings 

~ot guilty of all offenses 

~uilty of all offenses 

~uilty of some but not all 

offenses 

Guilty of lesser included offense 

or with exceptions and 

substitutions 

Entry of findings 

Procedure if total acquittal 

Procedure if any findings of 

guilty 

Presentence procedure 

APPENDIX 9 

[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.] 

[Note 26. The summary court-martial should recall the accused, who will stand before the court-martial 

when findings are announced. AU findings including any findings of guilty resulting from guilty pleas, 

should be announced at this time. The following forms should be used in announcing findings.] 

SCM: 	 I find you of (the) (all) Charge(s) and Specification(s): Not Guilty. 

I find you of (the) (all) Charge@) and Specification(s): Guilty. 

I find you of (the) Specification (-___..---_-._--) of (the) Charge 

(--A_....__-- ): Not Guilty; of (the) Specification 

of (the) Charge ): Guilty; of 

(the) Charge (.~ ~. ): Guilty. 

I find you of (the Specification 	 of (the) Charge 

(.-- ): Guilty, except the words-- 

(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 p---.pp--p-, 

UCMJ, a lesser included offense). 

[Note 27. The summary court-martial shall note all findings on the record of trial.] 

[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.] 

[Note 29. If the accused has been found guilty of any offense, proceed as follows.] 

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.] 

mote 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 how 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(~), including any reasons for committing the offense+), 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: .--. 

mote 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: --p-_..-p-.-. 

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 16.1 

Argument on sentence SCM: You may make an argument on an appropriate sentence. 

ACC: 

Deliberations prior to 

announcing sentence 

[Note 36. After receiving all matters relevant to sentencing, the summary court-martial should normally 

close for deliberations. If the summary court-martial decides to close, proceed as follows.] 

Closing the court-martial SCM: This court-martial is closed for determination of the sentence. Wait outside the courtroom until I recall you. 
APPENDIX 9 

[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. 1sentence you to-------. 

mote 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. 

Entry on charge sheet 	 [Note 40. Record the sentence in the record of trial, inform the convening authority of the findings, 

recommendations for suspension, if any, and any deferment request. If the sentence includes confinement, arrange for the delivery of the accused to the accused's commander, or someone designated by 

the commander, for appropriate action. Ensure that the commander is informed of the sentence. Complete the record of trial and forward to the convening authority.] 
APPENDIX 10 


FORMS OF FINDINGS 


a. Announcement of findings 

See R.C.M. 922. 

In announcing the findings he 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 

11. 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 

111. 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 11: Not Guilty 


Of Charge 11: 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 'L 93. .- - --

Of the excepted words: Not Guilty 

Of Charge I: (Guilty) (Not Guilty, but Guilty of a . . violat~on of Article ~-1

VII. Conviction by exceptions and 

substitutions 

Of (the) Specification (.._._--.__-A) 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 . . v~olat~onof 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 " 
App. 10 APPENDIX 10 

Of (the) Charge (-.- ), as to Specification 1: Guilty, as to Specification 2: Not Guilty, but 

Guilty of a violation of Article 
APPENDIX 11 


FORMS OF SENTENCES 


a. Annorincentent of sentence 

See R.C.M. 1007. 

In announcing tlie sentence, the president or, in 

cases tried by military judge alone, the military 

judge sliould announce: 

"(Name of accused), this court-martial sentences 

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 tlie 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 tlie particular case being tried. In announcing a sentence consisting of combined punishments, the president or 

military judge may, for example, state: 

'To be dishonorably discharged 

from the service, to be confined for 

one year, to forfeit all pay and allowances, and to be reduced to Private, 

E-1;" or 

'To be discharged from the service with a bad-conduct discharge, to 

be confined for six months, and to 

forfeit $35.00 pay per month for six 

months;" or 

"To be dismissed from the service, to be confined for one year, and 

to forfeit all pay and allowances;" or 

"To perform hard labor without 

confinement for one month and to 

forfeit $25.00 pay per month for one 

month." 

[Note: The following may, in conlbination 

with the format for announcing tlie sentence in a 

above, be used as a format for a sentence worksheet, 

appropriately tailored for the specific case.] 

1. To no punishment 

Reprimand 

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). 

Loss of Numbers, Etc. 

6. To (lose . . .. unrestricted 

numbers) (be placed at the foot of 

the 's list of present date and to 

remain there until you shall have lost unrestricted 

numbers) (lose unrestricted line 

officer running mate numbers). 

7. To lose. month's 

seniority in the date of his warrant (as machinist) 

( - ), and to lose corresponding rank 

in the list of (machinists) ( .-) of the 

(Navy) ( - _ _ - - ). 

Reduction of Enlisted Personnel 

8. To be reduced to . .. 
App. 11 	 APPENDIX 11 

14. To be dishonorably discliarged from 

Restraint and Hard Labor 	 the service (Enlisted Personnel and Noncommissioned Warrant Officers only). 

9. To be restricted to the limits 

of 	 . . for (days) (months). 15. To be dismissed from tlie service 

(Commissioned Officers, Com~i~issionedWarrant 

10. To perfom hard labor without con- Officers, Cadets, and Midshipmen only). 

finement for (days) (months). 

Death 

11. To be confined for 

(days) (months) (years) (the length of your natural 

life with eligibility) (the length of your natural life 16. To be put to death. 

without eligibility for parole). 

[Note: A court-martial has no autllority to 

12. To be confined on (bread and water) suspend a sentence or any part of a sentence. Num- 

(diminished rations) for 	 -. -._.days. bers 6 and 7 apply only in the Navy, Marine Corps, 

and Coast Guard.] 

Punitive Discharge 

13. To be discharged from the service with 

a bad-conduct discharge (Znlisted Personnel only). 
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 

Principals (see Part IV, Para. 1 and pertinent offenses) 

Accessory after the fact ( see Part IV,Para. 3.e.) 

Lesser included offenses ( see Part IV,Para. 2 and pertinent offenses) 


Attempts ( see Part IV,Para. 4.e.) 


Conspiracy ( see Part IV,Para. 5.e.) 


Solicitation 


If solicited offense committed, or attempted, see Part N,Para. 6.e. 


If solicited offense not committed: 


Solicitation to desert' .................................... Solicitation to mutiny1 ................................... Solicitation to coat act of misbehavior before enemy1 ....... Solicitation to commit act of sedition1 ...................... 

DD, BCD 

DD, BCD 

DD, BCD 

DD, BCD 

3 yrs.' 

10 yrs.' 

10 yrs.' 

10 yrs.' 

Total 

Total 

Total 

Total 

Fraudulent enlistment, appointment ............................. Fraudulent separation ........................................ DD, BCD 

DD, BCD 

2 yrs. 

5 yrs. 

Total 

Total 

Effecting unlawful enlistment, appointment, separation ............. DD, BCD 5 yrs. Total 

Desertion 

In time of war ............................................ Intent to avoid hazardous duty, shirk important service1 .......... Other cases 

Death, DD, BCD 

DD, BCD 

~ife~ 

5 yrs.' 

Total 

Total 

Terminated by appreliension .............................. Otherwise terminated .................................... DD, BCD 

DD, BCD 

Total 

Total 

Absence without leave, etc. 

Failure to go, going from place of duty ....................... Absence from unit, organization, etc. 

Not more than 3 days .................................... More than 3, not more than 30 days ........................ More than 30 days ...................................... More than 30 days and terminated by apprehension ........... Absence from guard or watch ............................... Absence from guard or watch with intent to abandon ............ Absence with intent to avoid maneuvers, field exercises .......... 

None 

None 

None 

DD, BCD 

DD, BCD 

None 

BCD 

BCD 

1 mo. 

1 mo. 

6 mos. 

1 yr. 1 yr.. 6 mos. 

3 mos. 

6 mos. 

6 mos. 

2J3 1 mo. 

2J3 1 mo. 

2/3 6 mos. 

Total 

Total 

2/3 3 mos. 

Total 

Total 

Missing movement 

Through design ........................................... Through neglect .......................................... DD, BCD 

BCD 

2 yrs. 

1 yr. 

Total 

Total 

Contempttowardofficials .................................... Dismissal 1 yr. Total 

Disrespect toward superior commissioned officer .................. BCD 1 yr. Total 

Assaulting, willfully disobeying superior commissioned officer 

In time of war ............................................ Striking, drawing or lifting up any weapon or offering any l~iolence 

toward superior commissioned officer execution of duty' ....... Willfully disobeying lawful order of superior commissioned officer1 

Death, DD, BCD 

DD, BCD 

DD, BCD 5 yrs.' 

Total 

Total 

Total 

Insubordinate conduct toward warrant, noncommissioned, petty officer 

Striking or assaulting: 

Warrant officer ......................................... Superior noncommissioned officer .......................... 

Other noncommissioned or petty officer ..................... Willfully disobeying: 

Warrant officer ......................................... Noncommissioned or petty officer .......................... Contempt, disrespect toward: 

Warrant Officer ......................................... 

DD, BCD 

DD, BCD 

DD, BCD 

DD, BCD 

BCD 

BCD 

5 yrs. 

3 yrs. 

1 yr. 

2 yrs. 

1 yr. 

9 mos. 

Total 

Total 

Total 

Total 

Total 

Total 

Superior noncommissioned or petty officer. .................. Other noncommissioned or petty officer ...................... BCD 

None 

6 mos. 

3 mos. 

Total 

2/3 3 mos. 
App. 12, Art. APPENDIX 12 

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 conceming maximum punishments. 

Article mense 

92 Failure to obey order, regulation 


Violation, failure to obey general order or regulation2 ..... 
 Violation, failure to obey other orde3 .................. 
 Dereliction in performance of duties 


Through neglect, culpable inefficiency ................ 
 Willful .......................................... 


Cruelty, maltreatment of subordinates ........................... 


Resisting apprehension, flight, breach of arrest, escape 

Resisting apprehension ..................................... Flight from apprehension ................................... 
 Breaking arrest ........................................... Escape from custody, pretrial confinement, or confinement on bread 

and water or diminished rations ............................ Escape from post-trial confinement ........................... 

Releasing prisoner without proper authority .................... 
 Suffering prisoner to escape through neglect ..................... 
 Suffering prisoner to escape through design ...................... 


Unlawful detention ...................................... 


Noncompliance with procedural rules, etc. 

Unnecessary delay in disposition of case ...................... Knowingly, intentionally failing to comply, enforce code ......... 

Misbehavior before enemy .................................... 


Subordinate compelling surrender ........................... 
 Improper use of countersign. ............................... 


Forcing safeguard ........................................... 


Captured, abandoned property; failure to secure, etc. 

Of value of $100.00 or less ................................. Of value of more than $100.00 .............................. Looting, pillaging .......................................... 


Aiding the enemy ........................................... 


Misconduct as prisoner ....................................... 


Spying ................................................. 


Espionage 

Cases listed in Art. 106a(a)(l)(A)-(D) ......................... Other cases .............................................. 
 False official statevents ...................................... 


Selling, otherwise disposing 

Of value of $100.00 or less ............................... Of value of more than $100.00 ............................ Any firearm, explosive or incendiary device 

Damaging, destroying, losing or suffering to be lost, damaged, 

destroyed, sold, or wrongfully disposed: 

Through neglect, of a value oE 

$100.00 or less ....................................... 
 More than $100.00 .................................... Willfully, of a value of 

$100.00 or less ....................................... More than $100.00 .................................... Any firearm, explosive, or incendiary device 

Property other than military property of U.S.: loss, damage, destruction, 

disposition: 

Discharge 

DD, BCD 


BCD 


None 


BCD 


DD, BCD 


Death, DD, BCD 

BCD 

BCD 

BCD 

DD, BCD 


DD, BCD 


DD, BCD 


BCD 


DD, BCD 


DD, BCD 


BCD 


DD, BCD 


Death, DD, BCD 


Death, DD, BCD 


Death, DD, BCD 


Death, DD, BCD 


BCD 


DD, BCD 


DD, BCD 


Death, DD, BCD 


DD, BCD 


Mandatory Death, 


DD, BCD 


Death, DD, BCD 


DD, BCD 


DD, BCD 


BCD 


DD, BCD 


DD, BCD 


None 


BCD 


BCD 


DD, BCD 


DD, BCD 


Confinement Forfeitures 

2 yrs. Total 

6 mos. Total 

3 mos. U3 3 mos. 

6 mos. Total 

1 yr. Total 

Life4 Total 

1 yr. Total 

1 yr. Total 

6 mos. Total 

1 yr. Total 

5 yrs. Total 

2 yrs. Total 

1 yr. Total 

2 yrs. Total 

3 yrs. Total 

6 mos. Total 

5 yrs. Total 

Lie4 Total 

Lie4 Total 

Lie4 Total 

Lie4 Total 

6 mos. Total 

5 yrs. Total 

Lie4 Total 

Life4 Total 

Life4 Total 

Not Total 

applicable 

Total 

Total 

5 yrs. Total 

1 yr. Total 

10 yrs. Total 

10 yrs. Total 

6 mos. 2J3 6 mos. 

1 yr. Total 

1 yr. Total 

10 yrs. Total 

10 yrs. Total 

App. 12, Art. APPENDIX 12 

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. 

Offense 

Of property other than military property of a value of more than 

$100.00 or any motor vehicle, aircraft, vessel, firearm, or explosive 

Wrongful appropriation 

Of value of $100.00or less ................................. Of value of more than $100.00 .............................. Of any motor vehicle, aircraft, vessel, firearm, or explosive ....... 

Robbery 

Committed with a fuearm .................................. Other cases .............................................. 


Forgery ................................................... 


Checks, etc., insufficient funds, intent to deceive 

To procure anything of value of: 

$100.00 or less ......................................... More than $100.00 ...................................... 
 For payment of past due obligation, and other cases ............. 


Maiming .................................................. 


Sodomy 

By force and without consent ............................... With child under age of 16 years and at least 12. ............... With chid under the age of 12 .............................. Other cases .............................................. 


Arson 

Aggravated .............................................. Other cases, where property value is: 

$100.00or less ......................................... 
 More than $100.00 ...................................... 


Extortion .................................................. 


Assaults 

Simple Assault: 

Generally .............................................. With an unloaded firearm. ................................ Assault consummated by battery ............................. Assault upon commissioned officer of U.S. or friendly power not in 

execution of office ........................................ Assault upon warrant officer, not in execution of office .......... Assault upon noncommissioned or petty officer not in execution of 

office ................................................... Assault upon, in execution of office, person serving as sentinel, 

lookout, security policeman, military policeman, shore patrol, master 

at arms, or civil law enforcement ............................ Assault consummated by battery upon child under age of 16 years . Assault with dangerous weapon or means likely to produce grievous 

bodily harm or death: 

Committed with loaded firearm ............................ 
 Other cases ............................................ Assault in which grievous bodily harm is intentionally inflicted: 

Withaloadedfirearm .................................... Other cases ............................................ 
 Burglary ................................................... 


Housebreaking .............................................. 


Perjury .................................................... 


Frauds against the United States 


Offenses under article 132(1) or (2) .......................... Offenses under article 132(3) or (4) 

$100.00 or less ......................................... More than $100.00 ...................................... 


Discharge 

DD, BCD 


None 

BCD 


DD, BCD 


DD, BCD 


DD, BCD 


DD. BCD 


BCD 


DD, BCD 


BCD 


DD, BCD 


DD, BCD 


DD, BCD 


DD, BCD 


DD, BCD 


DD, BCD 


DD, BCD 


DD, BCD 


DD, BCD 


None 

DD, BCD 


BCD 


DD, BCD 


DD, BCD 


BCD 


DD, BCD 


DD, BCD 


DD, BCD 


DD, BCD 


DD, BCD 


DD, BCD 


DD, BCD 


DD, BCD 


DD, BCD 


DD, BCD 


BCD 


DD, BCD 


Confinement Forfeitures 

5 yrs. Total 

3 mos. 2J3 3 mos. 

6 mos. Total 

2 yrs. Total 

15 yrs. Total 

10 yrs. Total 

5 yrs. Total 

6 mos. Total 

5 yrs. Total 

6 mos. Total 

7 yrs. Total 

Life4 Total 

20 yrs. Total 

Lie4 Total 

5 yrs. Total 

20 yrs. Total 

1 Yr. Total 

5 yrs. Total 

3 yr~. Total 

3 mos. U3 3 mos. 

3 yrs. Total 

6 mos. Total 

3 yrs. Total 

1 yr., 6 mos. Total 

6 mos. Total 

3 yrs. Total 

2 yrs. Total 

8 yrs. Total 

3 yrs. Total 

10 yrs. Total 

5 yrs. Total 

10 yrs. Total 

5 yrs. Total 

5 yrs. Total 

5 yrs. Total 

6 mos. Total 

5 yrs. Total 

App. 12, Art. APPENDIX 12 

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 

Mail, taking, opening, secreting, destroying, or stealing ............ DD, BCD 5 yts. 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. 213 6 mos. 

Pejury, subornation of ....................................... DD, BCD 5 yrs. Total 

Public record, altering, concealing, removing, mutilating, obliterating, DD, BCD 3 yrs. Total 

or destroying ............................................... Quarantine, breaking ......................................... None 6 mos. 2J3 6 mos. 

Restriction, breaking ......................................... None 1 mo. 2/3 1 mo. 

Seizure, destruction, removal, or disposal of property to prevent ..... DD, BCD 1 yt. Total 

Self-injury without intent to avoid service 

In time of war, or in a hostile hre pay zone ................... DD 5 yrs. Total 

Other ................................................... DD 2 yrs. Total 

Sentinel, lookout 

Disrespect to ............................................. None 3 mos. 2J3 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 Stolen property, knowingly receiving, buying, concealing 

Of a value of $100.00 or less ............................... BCD 6 mos. Total 

Of a value of more than $100.00 ............................ DD, BCD 3 yrs. Total 

Straggling ................................................. None 3 mos. 213 3 mos. 

Tesw, 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 

Wearing unauthorized insignia, decoration, badge, ribbon, device, or la- BCD 6 mos. Total 

pel button .................................................

Notes: 

1. Suspended in time of war. 

2. See paragraph 16e(l) & (2) Note, Part IV 

3. When any offense under paragraph 37, Part IV, Is committed: whlle the accused Is on duty as a sentlnel or lookout; on board a vessel or aircraft used by or under the control of the armed forces; In or at a mlsslle launch facility used by or under the control of the armed forces; while 

receiving special pay under 37 U.S.C. sec. 310; in tlme 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. 
APPENDIX 13 


GUIDE FOR PREPARATION OF RECORD OF TRIAL BY GENERAL COURT-


MARTIAL AND BY SPECIAL COURT-MARTIAL WHEN A VERBATIM RECORD 


IS NOT REQUIRED 


a. Record of trial rized and need only contain sufficient information to 

Note. See first three notes at beginning of Ap- establish lawful jurisdiction over the accused and the 

pendix 14. If a verbatim record is not required (see offenses. See R.C.M. 1103(e). 

R.C.M. 1103(h)(2)(C) and (c)(2)), a summarized This appendix is to be used as a general guide; 


report of testimony, objections, and other proceed- the actual record may depart from it as appropriate. 


ings is permitted. In the event of an acquittal of all The manner of summarizing several items of proce-


charges and specifications, or termination of the dure is shown in Appendix 14 a. 


proceedings prior to findings by withdrawal, mistri- Note. All records of trial should begin as fol-


al, or dismissal, the record may be further summa- lows: 


Title 

RECORD OF TRIAL 

of 

- ... ..-.- pp 
--- -. -- -.. --- ---- -. ..-

(Name-last. first,micldle initial) (SSN) (Grade) 

(Organization and armed force) (Station or ship) 

by 

COURT-MARTIAL 

Convened by 

(Title of convening authority) 

ppppp -- -. -- - --.--.-.-. -. ..- -. -.

(Commandof convening authority) 

Tried at 

on 

(Place or places of trial) @ale or dales of trial) 

COPIES OF RECORD 

Copies of record 
App. 13 

Receipt for record 

Certiticate in lieu of receipt 

Article 39(a) session 

APPENDIX 13 

----.--copy of record furnished the accused as per attached certificate or 

receipt.- copy(ies) of record forwarded herewith. 

RECEIPT FOR COPY OF 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.CM. 1104(b)(l) concerning service of record on the accused or defense Counsel. 

CERTIFICATE 

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 wunsel) 

Note. If accused's defense counsel receives the record, the trial counsel must attach an explanation to the 

record. See R.C.M. 1104(b)(l)(C). The following format may be used: 

The accused's defense counsel was served the accused's copy of the record because 

(the accused so requested in a written request, which is attached) (the accused so requested on the record at the court-martial) (the accused was transferred 

to ) (the accused is absent without authority) ). 

(Signature of trial counsel) 

(Name of 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 thc 

record because (defense counsel has been excused under R.C.M.505(d)(2)(B)) 

(- -.I 

(Signature of trial counsel) 

(Name of hial counsel) 

PROCEEDINGS OF _ COURT-MARTIAL ARTICLE 39(a) SESSION. The summarized record of an Article 39(a) session should proceed as follows: 
-- -- 

Convening orders 

Time of session 

Military judge, counsel members present and absent 

Accused and defense counsel 

present 

Swearing reporter; 

interpreter 

Qualification of trial counsel 

Prior participation of trial 

counsel 

Qualification of defense 

counsel 

GUIDE FOR PREPARATION OF RECORD App. 13 

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 nulitary judge, substitute "president" for "military judge" when it appears, 

and "court-martial" for "Article 39(8) session." 

The military judge called the Article 39(a) session lo order (at) (on board) 


. at hours, . 


pursuant to the following orders: 


Note. Here insert a copy of the convening orders and copies of any amending orders. Any writtell orders 

detailing the n~ilitary judge aud counsel will be attached.Any request of an enlisted accused for enlisted 

members will be inserted immediately following the convening orders, togetl~er with any declaration of 

the nonavailability of sucl~ enlisted persons. Any written request for trial by the nulita~y judge alone will 

also be inserted at this point. See R.C.M. 503(a)(2), 903. 

Note. The reporter should note and record the time and date of Ihe beginning and ending of each session 

of the court-martial. For example: 

The session was called to order at . hours, - - -- - - - - --.. 

The session (adjoumed)(recessed) at hours, 

PERSONS PRESENT 

Note. Here list the names of the n~ilitary judge, counsel, accused, and n~embers if preseat. 

PERSONS ABSENT 

Note. The names of tile members need not be listed if members are not present. Tl~e absence ol other detailed persons should be noted. The record should iuclude 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 sumn~arized at the point in the record at whicl~ such inquiry occurred. 

The accused and the following (detailed defense counsel and associate or assistant 

defense counsel) (civilian or individual military counsel) were present: 

The following detailed (reporter) (and) (interpreter) (was) (were) (had previously 

been) sworn: 

Note. Applicable only when a reporter or interpreter is used. 

The trial counsel announced the legal qualifications and status as to oatl~s of all 

members of tl~e prosecution (and that (he) (she) (they) had been detailed 

by ..... .I ......... 1. 

The trial counsel further stated that no member of the prosecution had acted in a 

manner wl~icl~ 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 tl~e action taken under R.C.M. 901(d). Any inquiry or hearing into the matter should 

be summarized. 

The detailed defense counsel announced the legal qualifications and status as to 

oaths of all members of the defense (and) that lie (and ...... ) had been 

detailed by ...-. ..) 

Note. Legal qualifications of any civilian or individual military counsel will be shown. 
App. 13 	 APPENDIX 13 

Prior participation of defense 	 The defense counsel stated that no member of the defense had acted in a manner 

counsel 	 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 The military judge informed the accused of the rights concerning counsel as set forth 

38(b) in Article 38(b) and R.C.M. 901(d). 

The accused responded that helshe understood the rights with respect to counsel, and 

that helshe chose to be defended byppp. 

personnel sworn 	 The military judge and the personnel of the prosecution and defense who were not 

previously sworn in accordance with Atticle 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 The military judge ascertained that the accused had been advised of his right to rejudge alone quest 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 requesf 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 (Name, rank, and organization of convening authority) convened the court-martial 

identified 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. 
Arraignment 

Motions 

Pleas 

Guilty plea inquiry 

GUIDE FOR PREPARATION OF RECORD App. 13 

The accused was arraigned on the following charges and specifications: 

Note. Here insert the original charge sheet. If there are not enough copies of the charge sheet to insert in 

each copy of the record, copy verbatim from the charge sheet the charges and specifications, and the 

name of the accuser, the affidavit, and the reference to the court-martial for trial. 

Note. If any motions were made at arraignment, the substance of the motion, a summary of any evidence 

presented concerning it, and the military judge's ruling will be included in the record. Motions or objections made at other times in the court-martial should be similarly treated at a point in the record corresponding to when they were raised. 

The accused pleaded as follows: 


To all the Specifications and Charges: (Not Guilty) (Guilty) 


To Specification 1 of Charge I: (Not Guilty) (Guilty) 


To Specification 2 of Charge I: (Not Guilty) (Guilty) 


To Charge I: (Not Guilty) (Guilty) 


etc. 

Note. If the accused pleads guilty the plea inquiry should be summarized. The following may be used as a 

guide. 

The military judge inquired into the providence of the accused's pleas of guilty. The 

military judge informed the accused of: the right to counsel [if the accused had no 

counsel]; of the right to plead not guilty and to be tried by court-martial and that at 

such court-martial the accused would have the right to confront and cross-examine 

witnesses against the accused and the right against self-incrimination; that by pleading guilty the accused waived the rights to trial of the offense(s), to confront and 

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 

helshe understood these rights.The military judge questioned the accused and determined that the plea(s) of guilty (was) (were) voluntary and not the result of force or 

threats or of promises (other than those in the pretrial agreement). The military judge 

informed the accused of the elements of the offense(s) and the maximum punishment which could be imposed for (this) (these) offense(s). The accused stated that 

helshe 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. 
App. 13 	 APPENDIX 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 chatpe(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 

INITIALSESSION 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 adjoumment, and the time of reopening, using the following formats: 

For example: 

The Article 39(a) session terminated hours, 

-- _-. The court-martial (recessed) (adjourned) 

(closed) a:--- hours, ---. 

Note. Whenever the court-martial reopens after a recess or adjournment, or after being closed, the record 

should indicate whether any patty, 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 swom 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 swom 	 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, ( >. 
Announcement of pleas 

Opening statement 

Testimony 

GUIDE FOR PREPARATION OF RECORD App. 13 

Note. If counsel examined the members concerning their qualif~cations, 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 bi 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 challenged - peremptorily. anL 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. 

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 

The trial counsel made (an) (no) opening statement. The defense counsel made (an) 

(no) opening statement at this time. 

Note. The record will contain a summary of the testimony presented. An example of the manner in which 

testimony may be summarized follows: 

The following witnesses for the prosecution were sworn and testified in substance as 

follows: 

( 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 
App. 13 

Objection and ruling 

Stipulation 

Opening statement 

Closing argument 

Instructions 

Closing 

APPENDIX 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. 

Upon objection by the defense, so much of the answer of the witness as pertained to 

what he had been told was stricken. 

The trial counsel offered in evidence a stipulation of fact entered into between the 

trial counsel, defense counsel, and the accused. The military judge ascertained that 

the accused understood and consented to the stipulation. It was admitted as Prosecution Exhibit 1. 

PRESENTATION OF DEFENSE CASE 

The defense counsel made (an) (no) opening statement. The following witnesses for 

the defense were sworn and testified in substance as follows: 

EVIDENCE IN REBUTTAL, SURREBUTTAL 

WITNESSES CALLED BY THE COURT-MARTIAL 

The trial counsel made (an) (no) argument. 

The defense counsel made (an) (no) argument. 

The trial counsel made (an) (no) argument in rebuttal. 

The military judge instructed the members in accordance with R.C.M. 920, includjnn 

the elements of each offense, (and of the lesser included offense(@ 

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-, acopy of the military 

judge's instructions.) (There were no objections to the instructions or requests for 

additional instructions.) 

Note. If any party requested instructions which were not given, or objected to the instructions given, these 

matters should be summarized in the record. 

The court-martial closed at hours, 

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 

Findings by military judge 

alone 

Announcement 

Data as to service 

Introduction of exhibits 

GUIDE FOR PREPARATION OF RECORD App. 13 

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 JT: Not Guilty 


Of Charge 11: Not Guilty 


etc. 

Note. In trial by the military judge alone, there would be no instructions given, but the military judge may 

make general and special findings. Any request for special findings should be summarized, and if submitted in writing, the request should be attached as an Appellate Exhibit. The general fyldings must be announced in open session with all parties present and may be recorded in the record in the following form, 

together with any special findings announced at that time: 

The military judge announced the following general (and special) findings (and di-


rected t h a t be appended to the record as Appellate Exhib- 


it --) (and stated that the special findings would be furnished to the 


reporter prior to authentication for insertion in the record as Appellate Exhib- 


it >: 


Of all the Specifications and Charges: Guilty 


Of the Specification of Charge I: Guilty. 


Of Charge I: Guilty 


Of the Specification of Charge 11: Not Guilty. 


Of Charge 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 

The trial counsel presented the data as to pay, service, and restraint of the accused as 

shown on the charge sheet. There were no objections to the data. 

. . The trial counsel offered Prosecution Exhlhts 

and for identification, matters f~umthe accused's personnel records. (The defense did not object.) (The defense objected to Prosecution Exhibit for 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. 
App. 13 	 APPENDIX 13 

~nquiryof 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 helshe 

chose to (testify) (make an unsworn statement) (remain silent). 

Note. If the defense calls witnesses in extenuation and mitigation, the testimony should be summariz~d 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. 

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 Exhlb~t-_-, asentence 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 a t _ _ hours, P. 

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) 1. 

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: 

(--
GUIDE FOR PREPARATION OF RECORD 	 App. 13 

Advice concerning post-trial 	 The military judge informed the accused of: the right to submit matters to the conand appellate rights 	 vening authority to consider before taking action; (the right to have the case exarnined 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 it1 tlie exercise of the 

foregoing rights or any decision to waive them. 

Adjournment 	 The court-martial adjourned at 

b. Examination of record by defense counsel 

Note. When the defense counsel has examined the record of trial before authentication the following form 

is appropriate: 

Form 	 "I have examined the record of trial in the foregoing case. 

(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)(l)(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 	 (3) By special court-martial without a military judge 

[(CDR) (LTC) _-, President [or (LTJG) (ILT) 	 Trial 

Counsel, because of (death) (disability) (absence) of .the president.] [or (LT) 

(Cm) 	 a member in lieu of the president and the trial counsel because of (death) (disability) (absence) of the trial counsel.] 

Note. If the rank of any person authenticating the record has changed since the court-martial, the current 

rank should be indicated, followed by "formerly-----." 

hours ,-
App. 13 APPENDIX 13 

d. Exhibits. See R.C.M.1 103(b)(2)@) 

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 Cerlz3cate of correction 

Note. See Appendix 14f 
APPENDIX 14 


GUIDE FOR PREPARATION OF RECORD OF TRIAL BY GENERAL COURT- 


MARTIAL AND BY SPECIAL COURT-MARTIAL WHEN A VERBATIM RECORD 


IS REQUIRED 


a. Record of trial. The following guidelines apply to 

the preparation of all records of trial by general and 

special courts-martial when a verbatim record of 

trial is required by Rule for Courts-Martial 

1103(b)(2)(B) and (c)(l). 

1. Paper. All transcription will be completed 

only on one side of 8 112 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 1 112 inches, or more 

as necessary, will be left at the top to pennit 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). Names used, including identification of a witness called to testify, within the verbatim record of 

trial will be in bold print to facilitate responding to 

Freedom of Information Act Requests. 

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. Just@cation. Use left justification only with 

the exception of pleas, findings, and sentence, which 

may be justified both left and right. 

Page Numbering' pages in the transcribed record of trial shall be numbered consecutively, beginning with "1". The page number shall 

be centered on the page 112 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 

page preceding the missing page number (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. 

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)@), (2)@), 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: 

DD Form 490, Front Cover. The front 

cover will be followed by: (1) any orders transferring the accused to a confinement facility or paperwork pertaining to excesslappellate Gave; (2) 

appellate rights statement and the accused's election 

to appellate counsel or any waiver thereof; 
App. 14 APPE 

(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 

trial; (6) proyf of service on the defense counsel of 

the Staff Judge Advocate's recommendation and any 

response to the recommendation; (7) either proof of 

service on the accused of the Staff Judge Advocate's 

recommendation or a statement explaining wliy tlle 

accused was not 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; (1 1) any request for' defermentlwaiver of automatic forfeitures and any action 

thereon; (12) any request for deferment of reduction 

in grade and any action thereon. 

DD Form 457, "Investigating Officer's 

Report," pursuant to Article 32, if any, and all 

related exhibits and attachments. The original, 

signed investigation wil! be placed in the original 

copy of the record of trial. 

Pretrial Allied Papers. These papers sllould 

include: (1) advice of tl~e 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 accompanied the charges when referred for trial; 

(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 altenlio~l sllould be paid to noling tile pages at whicll 

exhibits are offered and accepledlrejected, to include annotating 

those page numbers on the bottom of an exhibit. as appropriate. 

(3) convening and all amending orders; 

(4) any 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 

appellate exhibit; (7) verbatim transcript of the 

proceedings of the court, including all Article 39(a) 

A14-2 

sessions and original DD Form 458, "Charge Slieet"; 

(8) authentication slieet followed by Certificate of 

Correction, if any; (9) action of convening authority 

and, if appropriate, action of officer exercising general coort-martial jurisdiction. 

Note. Any necessary assumption of conlnland orders sl~ould be 

itrcluded in tile record of trial. 

Prosecution 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 490.1 

Defense Exhibits admitted into evidence. 

[The page(s) at which ail exhibit is offered and admitted sliould be noted at the bottom of tlie exliibit, 

as appropriate, as well as noting those pages on the 

DD Form 490.1 

Prosecution Exl~ibits marked but not offered andor admitted into evidence. [The page(s) 

at which an exhibit is offered and rejected sl~ould be 

noted at tl~e bottom of tlie exhibit, as appropriate, as 

well as noting those pages on tlie DD Fonn 490.1 

Defense Exhibits marked but not offered 

and/or admitted into evidence. [The page(@ 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 490.1 

Appellate Exhibits. [The page(s) at which 

an exliibit is marked should be noted at the bottom 

of the exhibit, as appropriate, as well as noting those 

pages on the DD Fornl 490.1 

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 

separately authenticated if the initial proceedings 

have been previously authenticated. Additional ex- 
GUIDE FOR PREPARATION OF RECORD OF TRIAL App. 14 

hibits should be lettered or numbered in sequence, record an inch thick or smaller. This will allow for 

following those already markedladmitted. inclusion of the SJA recommendation, clemency 

matters, and other post-trial documents. Limit subseAny records of proceedings in connection quent volumes to 1112 inches thick, unless dividing 

with vacation of suspension. them requires assembling an additional volume 

smaller than 112 inch thick. If the transcript is split 

into two or more volumes, indicate on the front 

11. Stock Dividers. The foregoing bullets will cover which pages of the transcript are in which 

be separated by the use of heavy stock dividers, volume. (e.g. Volume 1 of 4, Transcript, pages 1- 

colored, and labeled with gummed labels. 300). Number each volume of the ROT as follows: 

"Volume 1 of----." In the upper right-hand comer 

12. Binding. Volumes of the record will be of the DD Form 490, label the ROT to reflect which 

bound at the top with metal or plastic fasteners. Top copy it is, i.e., "ORIGINAL," "ACCUSED," et 

or left-side binding is acceptable with sufficient ad- cetera. 

justment to the top or left margin. Volumes shall be Words oil the margins of this appendix are not 

bound to withstand repeated handling, utilizing DD part of the form of record. 

Form 490. Do not sew or stack fasteners together As a general rule, all proceedings in the case 

in gangs to bind thick volumes. stlould 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 

13. Dividing Records into Volumes. Divide by the reporter and trial counsel as a guide in the 

ROTS that are over 1112 inches thick into separate preparation of the completed record of trial in all 

volumes. Make the first volume of a multi-volume general and special court-martial cases in which a 

verbatim record is required. 

RECORD OF TRIAL 

of 

(Name-last, first. middle initial) (SSN) (Rankor grade) 

(Orgsnization and armed force) (Station or sbip) 

by 

COURT-MARTIAL 

Convened by 

(Title of wnvening authority) 

(Command of wnvening authority) 

on 

(Place or places of bid) @ate or dates of kid) 
App. 14 

Copies of record 

Receipt for record 

Certificate in lieu of receipt 

APPENDIX 14 

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. 

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 

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 

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)(l)(C). The following format may be used: 

The accused's defense counsel was served the accused's copy of the record because (the accused so requested in a written request, which is attached) (the accused so requested on the record at the court-martial) (the accused was transferred to------) (the accused is absent without authority) 

(- ). 

(Signature of trial counsel) 

(Name of 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)) 

( 
GUIDE FOR PREPARATION OF RECORD OF TRIAL 	 App. 14 

(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. 

PROCEEDINGS OF A SPECIAUGENERAL COURT-MARTIAL 

[The military judge called the Article 39(a) session to order atlon board 

at, hours, 9 

pursuant to the following orders:] 

[Court-Martial Convening Order Number P, 	 , 

dated .I 	 (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 Note. SSEs, reporter's notes, and gestures (non-verbatim obsewations) will be placed in brackets, with the 

Gestures 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 "Qand 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. 
App. 14 

Sessions of court 

Administration of oaths 

Accounting for personnel 

during trial 

Arraignment 

Recording testimony 

APPENDIX 14 

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, 

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 affiiation is to be recorded. However, if preliminary qualiiing 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.] 

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 hisker seat at the 

counsel table).] 

the challenged member, withdrew from the courtroom.] 

[ resumed hisker seat as a member of the court-martial.] 

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). 

Note. The testimony of a witness will be recorded verbatim in a form similar to that set forth below for a 

prosecution witness: 

called as a witness for the prosecution, was sworn, and testified as follows: 

DIRECT EXAMINATION 

Questions by the (trial counsel) (assistant trial counsel): 
GUIDE FOR PREPARATION OF RECORD OF TRIAL App. 14 

Q. State your full name, (etc.) A. 

Q. j A. 

CROSS-EXAMINATION 

Questions by the (defense counsel) (assistant defense counsel) (individual military 

counsel) (civilian defense counsel): 

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): 

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): 

RECROSS-EXAMINATION 

Questions by the (defense counsel) (assistant defense counsel) (individual military 

counsel) (civilian defense counsel): 

Bench conferences and Note. Bench conferences and Article 39(a) sessions should be recorded and incorporated in the record of 

Article 39(a) sessions 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." 
App. 14 	 APPENDIX 14 

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) 

( l L T ) , Trial Counsel, because of (death) (disability) (absence) of 

the military judge)] [or (LCDR) (Major).-_-, a member in lieu of the 

military judge and the trial counsel because of (death) (disability) (absence) of the 

military judge, and of (death) (disability) (absence) of the trial counsel]. 

(2) By general court-martial consisting of only a military judge. 

Military Judge 	 -- .(Captain) (Colonel), Military Judge [or (LTJG) 

(lLT)--_ 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) 

(1LT)----, 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 markedloffered, but not admitted, and any appellate exhibits. 

e. Attachments 

Note. Attach to the record the matters listed in R.C.M. 1103(b)(3). 

fi Certz3cate of correction. See R.C.M. 1104(d) 

Note. The certificate should be dated. 

United States 

v. 
GUIDE FOR PREPARATION OF RECORD OF TRIAL App. 14 

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 

P"ge - , immediately following line , of the folowing: 

"[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 --9 

(Signature of accused) 

@lameof socud) 

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)(l)(A). 
APPENDIX 15 

Record of Trial by Summary Court-Martial (DD Form 2329) 

I" 

At a preliminary proceeding held on 20 19 97,the uummuy courl~martialsave the 

accused a copy of thc chargc sheet. 

RECORD OF TRIAL BY SUMMARY COURT-MARTIAL 

6. At thnt preliminary prorepding th~summarycourt~martlalinformed the accused of the following 

I1 NAME OF ACCUSE3 1l.orl. C'Ir~1.Ill 

Arthur N. Sherry 

21 NAME OF CONVCNING AUTHORITY 1La.l. 

Flmt, MI1 

Cail L. Busybody 

3.. NAME OF SUMMARY COURT-MARTIAL 

(11 SCM wa8 accuwr. ,o Irote.1 

Ron F. Andrews --

I a. The fact that the charg(s) had been referred to a summary court-martin1 for trlal and the date of referral. 1x1 I 

(Check appropriate an~wer) 1 YES I NO 

d. S6N 

111-11-1111 

h ORADE 

OR RANK 

L'FC --

b. The identity of the convening authority. t-The name(s) of the accurer(s).

l. The accuaed's right to impect the allied papcm and immediately available personnel records. 

g. The names of :he witnwea who could be called to terrify and any documenb ur phyaical evidence which the 

nummary court-martial expected to introduce into evidence. 

c. UNIT OR ORGANIZATION OF ACCUSED 

Co A, 1st Battalioa, bls~Inf . 

X 

X 

d. The general nslure ul the charge(s). 

e. The accused's righl ro object to trinl by summary court.martinl. 

-b. RANK 

COL 

b. RANK 

MAJ 

X 

X 

h. The accused's right tu crwuxamine witnesam and have the nummary court.martial croastxamine on behalf of the 

sccused. -- . ... 

The accused's rig111to call witnewen and produce evidence with thc araislance of the aummary court.marlirl if 

necessarv. 

I I If any findings of guilty were announced, the accused's ritht to remain ailmt, to make an utuaorn statement, od 

or written or bolh, and to test~fyand to introduce eridence in extenuation or mitigation. Ixl I 

s. SOSITION 

Commander 

X 

.'X 

That durlng the trial the summary court-martial would not consider any mellera, including ntatementa previou~ly 

made by the accused to the summary court.martial, unless admitted in ac~rdnncewith the Military Rules of 

on the merits or to remain silent, with the arsurance that no advenc inference would 

be drawn bv the eummarv court.martial lrom iuch sllpnce 

.$ ORGANIZATION OF CONVENING AUl HCIVITY 

blst lntantry Brigade 

X 

X 

I At the trial proceeding held on -21 Sc~:Lcmbcr 19. ¶'., , the acrusrd, after being given a reuonnbla lime to decide. did dhi nnt obJecl lo trial by summary court-marrial. 

(Note. The SCN mo,, ulb the oecuacd tu Inlllal lhll enlry ol the llmr the electlon D mude.) & II"lfld1 I 

r. UNIT OR ORGANIZATION OF SUMMARY COURT-MARTIAL 

?d Battdlion, blst Inf 

m. The maximum sentence which could be adjudged if the accuased was found guilty of the offenae(r)alleged. 

-

n. The accused's right to plead guilty or not guilty 

.-

7a. 

The accused 0 waa was not rcpres13nt~dby counael. Ill the aeruwY wa repnrenrrd DY r,.unvl, romplet. b, e. and d b.Iow.1 

o. NAME CF COUNSEL (~.or~.1.Ir.r. .MI! 

d. COUNSEL OUALIFICAT~ON9 

X 

X 

6. 
APPENDIX 15 

( 8. 'The acculed was arraigned on the attached char#e(s) and speclficatlon(s). Thesccwd'a plcsr nnd the lindinys reached are ahown blow: 

I - .-... . CHARGE(S) AhDSPECICICATIOb~SI PLEAISI FINDINGS IIII(.IL~CIU m\ o.~wpttonsrtl~l ru(uf~hlfi,rn,, I 

13 ACTION BY CONVENING AUTHORITY 

'l'he sentence is approved and will be executed. 

Ch. 1 

Spcc. 1 

Spec. 2 

Ch. 11 

Spec. 

Add'l Ch. 

Spec. 

-- 9. The lollowing sentrnre wnr ndjudgrd 

I Gail L. Dusybody Commander 

l'wed Nomr uf Conurnin#Aulhoral~ ru#ilarm of conz,e,~ineAufhr.rrls 

NG 

Nti 

NG 

G 

G 

NG 

NG 

G 

NG 

G except "$74.00" substituting 

"$2 5.00" 

G 

G 

NG 

NG 

-

Confineaent for 15 days;forfeiture of $200.00 pay per month for 1 month, and reduction to 

to grade cf E-1. 

-la. The accused was advised of the right to request that wnlinemenl Ire delerred. fNorv: wllcrt runflncnwt~~ 

~r~dluducd.) 

YES NO 

11. The accuaia was advised or the riuhl lo submit wrilten matter. to the - eonvenin~authorit .includina a request for cletnencv. and nF thra right tt, 

raquert review by tKe .ludgr Aclvarcatr Cetler.1 

'a YtS U NO 

. . . . -.- ENTICA TIC AT ION 

.- . .. -.., . .... 

Ualr 
APPENDIX 16 


FORMS FOR ACTION 


The fonns in this appendix are guides for preparation of the convening authority's initial action. Guidance is also provided for actions under R.C.M. 

1112(f). Appendix 17 contains forms for later actions. The forms are guidance only, and are not 

mandatory. They do not provide for all cases. It may 

be necessary to combine parts of different forms to 

prepare an action appropriate to a specific case. Extreme care should be exercised in using these forms 

and in preparing actions. See R.C.M. 1107(f) concerning contents of the convening authority's action. 

In addition to the matters contained in the forms 

below, the action should show the headquarters and 

place, or the ship, of the convening authority taking 

the action, and the date of the action. The signature 

of the convening authority is followed by the grade 

and unit of the convening authority, and "commander" or "commanding" as appropriate. 

When the sentence includes confinement, the 

place of confinement is designated in the action unless the Secretary concerned prescribes otherwise. If 

the place of confinement is designated in the action, 

service regulations should be consulted first. See 

R.C.M. 11 13(d)(2)(C). 

In actions on a summary court-martial, when the 

action is written on the record of trial ( see Appendix 15) the words "In the case of-. 11 

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)(l), 


cn(4). 


-Adjudged sentence approved in part and ordered executed. 

2. In the case of-- ,only so much of 

the sentence as provides for___-- is approved and will be executed. (-.-.____ is 

designated as the place of confinement.) 

-Adjudged sentence approved; part of 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 per month 

for months. The sentence as 

changed is approved and will be executed. 

is designated as the place of confinement.) 

Credit for illegal pretrial confinement. See R.C.M. 

305(k); 1107ff)(4)(F). 

4. In the case of the sentence is 

approved and will be executed. The accused will be 

credited with days of confinement 

against the sentence to confinement. 

is designated as the place of confinement.) 

Suspension of sentence. See R.C.M. 1107(f)(4)(B); 

1108(d). 

-Adjudged sentence approved and suspended. 

5. In the case of ,the sentence is 

approved. Execution of tile 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 seiztence 

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) 

(forfeiture of pay) ) is suspended 

for (months) (years), at which 

time, unless the suspension is sooner vacated, the 

suspended part of the sentence will be remitted with- 
App. 16 x1146. APPENDIX 16 

out further action. ( . is designated 

as the place of confinement.) 

Deferment of confinement and tertiiination of deferment. See R.C.M. 1 101 (c); 1 107(f)(4)(E). 

-Adjlrdged sentence approved; confinerlient deferred pending firzal review. 

7. In tlle case of the sentence is 

approved and, except for that portion extending to 

confinement, will be executed. Service of the sentence to confinement (is) (was) deferred effective ~ -.., and will 

not begin until (the conviction is final) 

), unless sooner rescindrtl by 

competent authority. 

-Adjudged sentence approved; deferment of confinerttent terrninated. 

8. In the case of the sentence is 

approved and will be executed. The service of the 

sentence to confinement was deferred 

on . -. --_.. ( . ) is designated as the place of 

confinement.) 

-Adjtidged sentence approved; defernient of confinernent terrninated previorrsly. 

9. In the case of - - - , the sentence is 

approved and will be executed. The service of the 

sentence to confinement was deferred 

on _ - - . .- _ , and 

the deferment ended on -

19 . - - ._.- ; ( is 

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 

tlle following error was committed: (evidence of a 

previous conviction of the accused was erroneously 

admitted) ( . ). This error was prejudicial as to the sentence. The sentence is disapproved. A rehearing is ordered before a (summary) 

(special) (general) court-martial to be designated. 

When the adjudged sentence includes death, dismissal, or a dishonorable or a bad-conduct discharge, forms 1-10 are generally appropriate, but 

several will require modification depending on the 

action to be taken. This is because death, disnlissal, 

or a dishonorable or bad-conduct discharge may not 

be ordered executed in the initial action. Therefore, 

A16-2 

unless an adjudged punishment of death, dismissal, 

or a disllonorable or bad-conduct discharge is disapproved, changed to another punishment, or (except 

in the case of death) suspended, the initial action 

must specifically except such punishments from the 

order of execution. This is done by adding the words 

"except for the (part of the sentence extending to 

death) (dismissal) (dishonorable discharge) (badconduct 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. 1 108(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 deatlr, 

dismissal, or disclrarge, ordered executed. See 

R.C.M. 1107(f)(4). 

11. In the case of _ __ _ ,the sentence is 

approved and, except for the (part of the sentence 

extending to death) (dismissal) (dishonorable discharge) (bad-conduct discharge), will be executed. 

( _ - ._ is designated as the place of confinement.) 

Adjllclged sentence nrodiJied. See R.C.M. 1107(d)(l), 

(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 

dishonorable discl~arge) (a bad-conduct discharge) 

(and ) is approved and, except for the part of the sentence extending to (death) 

(dismissal) (dishonorable discharge) (bad-conduct 

discharge), will be executed. 

( is designated 

as the place of confinement.) 

- Atljudged sentence approveil; cliscllarge 

changed to confinenrent. 

13. In the case of , so much of the 

sentence extending to a (dishonorable discharge) 

(bad conduct discharge) is changed to confinement 

for months (thereby making the 

period of confinement totai 

months). The sentence as changed is approved and 

will be executed. ( . _ is designated as 

the place of confinement.) 

Suspension of sentence. See R.C.M. 1 107(f)(4)(B); 

1108(d). Note. If the portion of the sentence extending to dis~nissal or a dishonorable or a bad-conduct 
FORMS l:OR ACTION App. 16 xl14 

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, 

other than dismissal or dishonorable or bad-conduct 

discharge, suspended. 

14. In the case of , the sentence is 

approved and, except for that part of the sentence 

extending to (dismissal) (a dishonorable discharge) 

(a bad-conduct discharge), will be executed, but the 

execution of that part of the sentence adjudging 

(confinement) (confinement in excess 

of ) (forfeiture of pay) 

( -- ) is suspended 

for (months) (years) at 

which time, unless the suspension is sooner vacated, 

the suspended part of the sentence will be remitted 

without further action. is designated as the place of confinement.) 

INITIAL ACTION ON COURT-MARTIAL WHEN 

FINDINGS AFFECTED 

Findings are addressed in the action only when 

any findings of guilty are disapproved, in whole or 

part. See R.C.M. 1107(c), (f)(3). The action must 

also indicate what action is being taken on the sentence. Appropriate parts of the foregoing forms for 

action on the sentence may be substituted in the 

following examples as necessary. 

Some findings of guilty disapproved; adjudged sentence approved. 

15. In the case of- the finding of 

guilty of Specification 2, Charge I is disapproved. 

Specification 2, Charge 1is dismissed. The sentence 

is approved and (except for that part of the sentence 

extending to (dismissal) (a dishonorable discharge) 

(a bad-conduct discharge)) will be executed. 

(- is designated as the place of confinement.) 

Finding of guilty of lesser included offense approved; adjudged sentence modified. 

16. In the case of the finding of 

guilty of Specification 1, Charge I1 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 

(in violation of Article 86)) 

(--). Only so much of the sentence 

as provides for- is approved and (, 

except for the (dismissal) (dishonorable discharge) 

(bad-conduct discharge)), will be executed. 

( is designated as the place of confinement.) 

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)(l)(c)(i). 

17. In the case of- -_--, it appears that 

the following error was committed: (Exhibit 1, a 

laboratory report, was not properly authenticated a~id 

was admitted over the objection of the defense)-. This error was prejudicial 

as to Specifications 1 and 2 of Charge 11. The findings of guilty as to Specifications 1and 2 of Charge 

I1 and the sentence are disapproved. A combined 

rehearing is ordered before a court-martial to be 

designated. 

All findings of guilty and sentence disapproved; 

rehearing ordered. See R.C.M. 1107(c)(2)(B). 

18. In the case of_- -, it appears that 

the following error was committed: (evidence offered by the defense to establish duress was improperly excluded) (-- -_-). This error 

was prejudicial to the rights of the accused as to all 

findings of guilty. The findings of guilty and the 

sentence are disapproved. A rehearing is ordered 

before a court-martial to be designated. 

All findings of guilty and sentence disapproved 

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 the convening authority) ( ). The 

proceedings, findings, and sentence are invalid. Another trial is ordered before a court-martial to be 

designated. 

All findings of guilty and sentence disapproved; 

charges dismissed. See R.C.M. 1107(c)(2)(B). 

20. In the case of the findings of 

guilty and the sentence are disapproved. The charges 

are dismissed. 

ACTION ON A REHEARING 

The action on a rehearing is the same as an action 

on an original court-martial in most respects. It difA16-3 
App. 16 x114 APPENI 

fers first in that, as to any sentence approved following the rehearing, the accused must be credited with 

those parts of the sentence previously executed or 

otherwise served. Second, in certain cases the convening authority must provide for the restoration of 

certain rights, privileges, and property. See R.C.M. 

1107(f)(5)(A). 

Action on rehearing; granting credit for previously 

executed or sewed punishment. 

21. In the case of _p-_--_.-----_.., the sentence is 

approved and (except for the (dismissal) (dishonorable discharge) (bad-conduct discharge)), will be executed. The accused will be credited with any portion 

of the punishment served from_ 

19 ~_ to--__p-~ 

under the sentence adjudged at 

the former trial of this case. 

Action on rehearing; restoration of rights. 

22. In the case of the findings of 

guilty and the sentence are disapproved and the 

charges are dismissed. All rights, privileges, and 

property of which the accused has been deprived by 

virtue of the execution of the sentence adjudged at 

the former trial of this case on 

19 will be restored. 

23. In the case of the accused was 

found not guilty of all the charges and specifications 

which were tried at the former hearing. All rights, 

privileges, and property of which the accused has 

been deprived by virtue of the execution of the sentence adjudged at the former trial of this case 

on will be 

restored. 

WITHDRAWAL OF PREVIOUS ACTION 

Form 24 is appropriate for withdrawal of an earlier action. See R.C.M. 1107(f)(2) concerning modification of an earlier action. Form 24a is appropriate 

for withdrawal of previous action pursuant to instructions from reviewing authority pursuant to 

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 (me) (my predecessor in command) 

on - -is withdrawn and the following substituted therefor: 

24a. In the case of in accordance 

with instructions from (The Judge Advocate General) (the Court of Criminal Appeals) 

pursuant to Rule for Courts-Martial [1107(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. 

If the convening authority or higher authority 

when taking action on a case in which the sentence 

includes a punitive discharge, confinement, or hard 

labor without confinement elects to approve the sentence and to retain the enlisted member in the grade 

held by that member at the time of sentence or in 

any intermediate grade, that authority may do so if 

permitted by regulations of the Secretary concerned 

whether or not the sentence also includes a reduction 

to the lowest enlisted grade, by using one of the 

following forms of action. The first action, Form 25, 

is appropriate when the sentence does not specifically provide for reduction. The second and third 

actions, Forms 26 and 27, are appropriate when the 

sentence specifically provides for reduction to the 

grade of E-1. The action set forth in Form 26 is 

intended for a case in which the accused is to be 

probationally retained in the grade held by that accused at the time of sentence. The action set forth in 

Form 27 is for a case in which the accused is to 

serve probationally in an intermediate grade. 

Automatic reduction suspended; sentence does not 

specifically include reduction. 

25. In the case of. .. - , the sentence is 
FORMS F:OR ACTION App. 16 xi1432. 

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) 

is suspended 

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-1 

suspended; accused retained in grade previously 

held. 

26. In the case of ~ ,the sentence is 

approved and will be executed, but the execution of 

that part of the sentence extending to (a dishonorable discharge) (a bad-conduct discharge) (confinement) (hard labor without confinemeni) 

( -_), and reduction to the grade of El is suspended for (months) 

(years), at which time, unless the suspension is 

sooner vacated, the suspended part of the sentence 

will be remitted without further action. The accused 

will continue to serve in the grade 

of unless the suspension of (the 

dishonorable discharge) (the bad-conduct discharge) 

(confinement) (hard labor without confinement), or 

reduction to the grade of E-1 is vacated, in which 

event the accused will be reduced to the grade of El at that time. 

Autoinatic reduction and adjudged reduction to E-1 

suspended; accused retained in intermediate grade. 

27. In the case of the sentence is 

approved and will be executed but the execution of 

that part of the sentence extending to (a dishonorable discharge) (a bad-conduct discharge) (confinement) (hard labor without confinement), and that 

part of the reduction which is in excess of reduction 

to the grade of- - is suspended 

for-p-_-.-._-..--.-. (months) (years) at which time, 

unless the suspension is sooner vacated, the suspended part of the sentence will be remitted without 

further action. The accused will serve in the grade 

of^ unless the suspension of (the 

dishonorable discharge) (bad-conduct discharge) 

(confinement) (hard labor without confinement), or 

reduction to the grade of E-1, is vacated, in which 

event the accused will be reduced to the grade of El at that time. 

ACTION UNDER R.C.M. 11 12(f). The forms for 

action for the officer taking action under R.C.M. 

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)(l). See R.C.M. 

1113(c)(l)(A). The following are additional forms 

which may be appropriate: 

Sentence approved when convening authority swpended 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 . . (p-ppp_- is designated as the place of confinement.) 

Sentence includes unsuspended dishonorable or badconduct discharge; order of execution. See R.C.M. 

1113(c)(l) and (2). 

30. In the case of the sentence is 

approved. The (dishonorable discharge) (bad-conduct discharge) will be executed. 

Findings and sentence disapproved; restoration as 

to parts ordered executed by convening authority. 

See R.C.M. 1208(b). 

31. In the case of ., the findings of 

guilty and the sentence are disapproved. The charges 

are dismissed. (The accused will be released from 

the confinement adjudged by the sentence in this 

case and all) (All) rights, privileges, and property of 

which the accused has been deprived by virtue of 

the findings and sentence disapproved will be restored. 

Findings and sentence disapproved; rehearing authorized. See R.C.M. 11 12(f). 

32. In the case of --.--.-_..--p_., it appears that 

the following error was committed: (Exhibit 1, a 

statement of the accused, was not shown to have 

been preceded by Article 31 warnings as required 

and was admitted over the objection of the defense) 

A16-5 
App. 16 xl1432. APPENDIX 16 

). This error was prejudicial to the 

rights of the accused as to the findings and the 

sentence. The case is returned to the convening authority who may order a rehearing or dismiss the 

charges. 

Action taken is less favorable to the accused than 

that recommended by the judge advocate. See 

R.C.M.11 12(e), (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. 11 13(c)(2). 

34. In the case of the sentence is 

approved. The record shall be forwarded to the Secretary of the 
APPENDIX 17 


FORMS FOR COURT-MARTIAL ORDERS 


a. Forms for initial promulgating orders promulgating the results of trial and the action of the 

[Note. The following is 	a form applicable in convening authority in all general and special courtmartial cases. Omit the marginal side notes in drafting orders. See R.C.M. 11 14(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 (atJon board on the following offenses at a courtmartial 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 mnrimum 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 fuding 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 superivr 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. 
App. 17 	 APPENDIX 17 

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. 

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 -- 1, ----. 

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 author- ACTION 

ity 

[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. 11 14(e) concerning authentication of the order.] 

Joint or common trial mote. 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 supplententary orders proinulgating results of afirmiitg actiorz 

[Note. Court-martial orders publishing the final results of cases in which the President nr the Secretary 

concerned has taken final action are promulgated by departmental orders. In other cases the final action 

may be promulgated by an appropriate convening authority, or by an officer exercising general court-martial jurisdiction over the accused at the time of final action, or by the Secretary concerned. The following 

sample forms may be used where such a promulgating order is published in the field. These forms are 

guides. Extreme care should be exercised in using them. If a sentence as ordered into execution or suspended by the convening authority is affirmed without modifications and there has been no modification 

of the findings, no supplementary promulgating order is required.] 

Heading

*See above. 

Sentence 	 In the (general) (special) court-martial case of (name, grade or rank, branch of sew- 

-Affumed 	 ice, 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(cj having been complied with, the bad-conduct discharge will be executed. 
- - 

FORMS FOR COURT-MARTIAL ORDERS 	 App. 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 Distnct) , 

dated .-..._-_p--..-. 
 ., as provides for has

been finally affirmed. Article 7:(c) having been complied with, the bad-conduct discharge will be executed. 

In the (general) (special) court-martial case of (name, grade or rank, branch of sewice, and SSN of accused,) the findings of guilty of Charge I1 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 Distnct) _-_-_-, 

dated . _- as provides for .._. - , has 

been finally affirmed. Article 71(c) having been complied with, the bad-conduct discharge will be executed. 

AKumed in part; prior order In the (general) (special) court-martial case of (name, grade or rank, branch of sewof execution set aside in part ice, and SSN of accused,) the proceedings of which are promulgated in (General) 

(Special) Court-Martial Order No. . _ ,(Headquarters) (Commandant, . . Naval Distrrct) 

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 witli. 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 In the (general)(special) court-martial case of (name, grade or rank, branch of sewaside ice, and SSN, of accused,) the findings of guilty and the sentenct: promulgated by 

(General) (Special) Court-Martial Order No. ,(Headquarters) . . (Commandant, . - - Naval Distnct), - -, 

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 courtmartial to be designated.) 

Authentication 	 See R.C.M. 11 14(e). 

c. Forms for orders remitting or suspending unexecuted portions of sentence 

Heading See a above. 
App. 17 	 APPENDIX 17 

Remissions; suspension 	 The unexecuted portion of the sentence to _---_, in the case of (Name,

See R.C.M. 1108 	 grade or rank, branch of service and SSN of accused,) promulgated in (General) 

(Special) Court-Martial Order No. -A, (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. 11 14(e). 

d. FOIWZSfor orders vacating suspension 

[Note. Orders promulgating the vacation of the suspension of a dismissal will be published bv clepartmental orders of the Secretary concerned. Vacations of any other suspension of a general court-martial 

sentence, or of a special court-martial sentence which as approved and affirmed includes a bad-conduct 

discharge, will be promulgated by the officer exercising general court-martial jurisdiction over the probationer (Article 72(b)). The vacation of suspension of any other sentence may be promulgated by an appropriate convening authority under Article 72(c). See R.C.M. 1109.1 

Heading 	 See a above. 

Vacation of Suspension 	 SO much of the order published in (General) (Special) (Summary) (Court-Martial 

Order No. (the record of summary court-martial), (this headquarters) (this ship) (Headquarters ) (USS ---1, 

--. in the case of (name, grade or rank, branck 

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. 11 13 concerning execution of the sentence.] 

Authentication 	 See R.C.M. 11 14(e). 

e. Forms for orders terminating deferment 

[Note: When any deferment previously granted is rescinded after the convening authority has taken action in the case, such rescission will be promulgated in a. supplementary order. See R.C.M. 

1101(c)(7)(C).l 

Heading 	 See a above. 
FORMS FOR COURT-MARTIAL ORDERS 	 App. 17 

Recission 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 _-.--.-..---_.._p) (USS $, 

in the case of (name, grade or rank, branch of sewice, 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. 11 14( e). 

mote. 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 sewice, and SSN of accused,) the sentence to confinement (and ), as 

promulgated in (General) (Special) Court-Martial Order No. ------A, 

(Headquarters) (Commandant, Naval District) 

dated has been finally affirmed. Service of 

confinement was deferred on _ -- ---. Article 71!(.! 

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. 11 14(e). 
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 Under 

Article 72, UCMJ, and R.C.M. 1109 (DD Form 455) 

REPORT OF PROCEEDINGS TO VACATE SUSPENSIONOF A GENERAL COURT- MARTIAL SENTENCE 

OR OF A SPECIAL COURT-MARTIAL SENTENCE INCLUDING A BAD-CONDUCT DISCHARGE 

UNDER ARTICLE 72, UCMJ,and R.C.M. 1108 

1.. TO: (Name of Offlcer arrrslrlna aaneml COW-mwlidlurkdlcrlan - 28. FROM: (Name of Uffle#r .i.rcl,In, ~mchleourl.n~orlblJurladiclion - Lut. Flnt, MI) tut.Nnt, MI) I Dabino, Arthur K. I Roberrs, Leonard E. 

Dice. Morris L. 1 Airman 1 000-00-0000 1 5OOlst Support -. Group

a. DATA AS TO TRIAL BY COURT.MARTIAL. ATTACH A COPY OF THE COURT.MARTIAL ORDER AND ANY SUPPLEMENTARY ORDERS 

OR, IF NO COURT-MARTIAL ORDER HAb BEEN PROMULQATED OR IS AVAILABLE. ATTACH A SUMMARY OF THE CHARGES AND 

SPECIFICATION6. FINDINGS. SENTENCE. INITIAL ACTION. AND ANY SUPPLEMENTARY ACTIONS. ATTACH A COPY OF THE WRITTEN 

NOTICE OF SUSPENSION I-ea R.C.M. 1108lc)l. 

b. TITLE 

Commander 

c. ORGANIZATION 

5000th Support Wing 

APO AP 99999 

I.ALLEGED VlOLATlONlSl OF THE CONDITIONS OF SUSPENSION. (BRIEF STATEMENT AND DATE, See R.C.M. 1lbBIo) AN0 1108lal 

CONCERNING THE CONOlTlONS OF SUSPENSION,) 

Assault on Master Sgt Vic Timm, while in the execution of duties on 15 September 1993, in 

violation of Article 91. 

3s. NAME OF PROBATIONER (Larl. Flnt, MU 

b. TITLE 

Commander 

c. ORGANIZATION 

SUUlst Support Group 

APO AP 99999 

(Check appropriate amwerJ 

6. PURSUANT TO THE PROVISIONS OF ARTICLE 72. UCMJ. AND R.C.M. 1108. A HEARING WAS HELD ON THE ALLEGED 

VIOLATIONISI OF THE CONDITIONS OF SUSPENSION. 

7. BEFORE THE HEARING THE AUTHORITY CONDUCTIN0 THE HEARINO CAUSED THE PROBATIONER TO BE NOTlFlEO OF 

R C.M. IIOS(~)I~IIB)I! 

b. RANK s. SSN d. ORGANIZATION 

IC. THE ALLEGED VIOLA7lONlb) OF THE CONDITIONS OF SUSPENSION AND THE EVIDENCE EXPECTEDTO BE RELIED ON. I X I 1 

a. THE TIME, PLACE, AND PURPOSE OF THE HEARING. 

b. THE RlCHTT0 BE PRESENT AT THE HEARING. 

I 

d. THE RIGHT TO BE REPRESENTED AT THE HEARING BY CIVILIAN COUNSELPROVIDED BY THE PROBATIONER OR. UPON 

REouEsT. By MILtTARy COUNSEL DETAILED FOR TnlsPuRPosE. x i 1 

X 

X 

I

a. THE OPPORTUNITY TO BE HEARD. TO PRESENT WITNESSES AND OTHER EVIDENCE. AND THE RIGHT TO CONFRONT AND 

CROSS.EXAMINE ADVERBE WITNESSES UNLESS THE HEARING OFFICER DETERMINES THAT THERE IS GOOD CAUSE FOR 

NOT ALLOWINO CONFRONTATION AND CR09S.EXAMlNATION. I x I I 180. THE PROBATIONER REQUESTED DETAILED MlLlTARY COUNSEL I X F i 1 

L 

NOTE: If thh farm 11 uM and ddilionrl 1- 11 rwuind for rny itrm, sntrr lh. dditlmrl nutmrlnl In Blotk 18 or on mwmrmt. dwat. ldlntity sub 

Mnrirl wlm thb proper hmding IRrom~lw:"3d"). Smrrly attach rnv rddltlOnll rhmmtl~)md add not. in th. ~wr~prlatr Im: "SIBlock 18'' or 

'5uuhiitiorul mhul." Thim lorm rnry b. uwd 10 rro.1D r murplndd ~pulnlcoun~rrtl*ununsm not Including a bd.conduct dllshrwor r lulpandld 

murnmrrv cwnrn~rtialmnnn undar R.C.M. llO9bl by Ilningthrwsh or dtbrinp th~1orm.rwpmprirm. 

b. NAME OF DETAILED COUNSEL fLmr. Flmr. MI1 

Young, Louise 

I. DETAILED COUNSEL WAS ClUALIFIEO WITHIN THE MEANINQ OF ARTICLE 171b). UCMJ. and R.C.M. 5011dl. 

I I 

DD,:",","0455 EDITION OF OCT 69 IS OBSOLETE. 

X 

c. RANK 

Captain 

I 

d. ORGANIZATION 

Area Defense Counsel, APO AP 99999 
.--.-~ - - ~ - -

APPENDIX 18 


0. INDICATED THAT HEBHE Dl0 NOT WISH 10 MAKE ASTATEMINT. 

b. MADE ASTATEMENTSUMMARIZED IN EXHIBIT 2 
 x 
APPENDIX 18 

(Check opproprfale anrwer) 	 YES NO 

14.. 	 THERE ARE REASONABLE QROUNDS TO BELIEVE THAT THE PROBATIONER NOW on AT THE TIME OF THE ALLEOEO 

VIOLATION WAS NOT MENTALLY RESPONSIBLE [re= R.C.M. 91e1k)I OR IS NOW INCOMPETENT TO PARTICIPATE I! THE 

VACATION PROCEEOIND (rw R.C.M. 8091. X 

c. A REPORT OF MEDICAL OFFICERS UNDER R.C.M. 706 IS ATTACULD IN EXHIBIT X 
 16. IF PRO~ATlONER WAS CONFINED PENDING VACATION PROCEEDING6 UNDER R.C.M. 11WIcl: 

m. 	 I FINO THAT THERE IS PROBABLE CAWE TO BELIEVE THAT THE PROBATIONER VIOLATED THE CONDITIONS OF X 
 SUSPENSION. 


b. IDO NOT FIND THAT THERE IS PROBABLE CAUSE TO BELIEVE THAT THE PROBATIONER VIOLATED THE CONDITIONS OF 


SUEPENSION AND ORDER HlSlHER RELEASE UNDER R.C.M. 1 lMld)(lllEI. 


18. RECOMMENOATION OF THI DPFICER EXERCISING SPECIAL COURT.MARTIAL JURlBDlCTlON OVER THE PROBATIONER. 

1. IRECOMMENO THAT THE SUSPENSION OF THE SENTENCE BE VACATED. lhdlmlr lyrrr rrndornounto?~un~h.hmsnt. Irany. to be 


WCDtldl 
 X
 I Bad-Conduct Discharge I I

I b. IRECOMMEND THAT THE PROCEEDINGS TO VACATE SUSPENSION BE OROPPED. 	 I I 0. IRECOMMENO (able ofher rsronrrn.n&iionJ: 

17.. 	 NAME OF OFFICER EXERCISING SPECIAL COURT b. RANK 5. ORGANIZATION 


MARTIAL JURISDICTION OVER PROBATIONER 


Leonard E. Roberts 	 LTI: 5001st Support Group 

a. DATE 

\-&m43 

Airman Basic Dice struck Master Sgt Tim in the face twice with a closed fist after Tlmm 

directed Dice to clean up his living area. Although Airman Dice testified that 'Tirnm was 

prejudiced against him because he was a probationer, no evidence of such bias was offered. 

Dice oEfered no othe~extenuating or mitigating evidence and the record reveals none. Dice 

had served under the suspended sentence for 2 weeks before this offense without previous 

incident. Dice was previously convicted by a special court-martial of disrespect and 

disobedience toward superior NCOs on two different occasions. I am satisfied that Dice is 

guilty of the offenae of assaulting a superior NcD in the execution of office. I recommend 

that the suspension oE the bad-conduct discharge be vacated. 
-- - 

-- 

APPENDIX 18 

REMARKS (ConHnwdJ 

(Check appropride mnrwer) 	 I YE6 I NO 

39. DECglON OF THE OFFICER EXERCISING OENERAL CQURT-MARTIAL JURISDICTION OVER PROBATIONER. I 1a VI-TE BUBPENBIDN OF THE BENTENCE TO (weclh I~~elarnount 	 I I ofpunlrhment to be uaedsdl: 

Suspension of bad-conduct discharge vacated. 	 X' 

D. NOT TO VACATE. 

s. OTHER lwcclJyl: 

d. IF DECISION 16TO VACATE, INDICATE EVIDENCE RELIED ON: 

Testimony of Mootcr Sgt Tinm wd Airman I.C. Nitt and Warrex Teed estiblished Airman Dice 

essaulted Tim, without provacation, while Tim was in the execution of his office. Hedica 

report rcflects Tim was bruised on check and forehead, Dice thereforc violatcd conditions 

of suspension. 

I
 r IF DECISION IS TO VACATE. INDICATE REASONS FOR VACATINO: 


Airman ice's offense sLrikes at the heart of mllitary discipline and reflects his fa1111rn 


to adapt despite second chance. Bad-conduct discharge is apprcpriate. 


ah. 	NAhrE OF OFFICER EXERCISINO OENERAL b. RANK E. OROANIZATION 
 COURT.MARTIAL JURISDICTION OVER 


PROBATIONER 
 Commander 


5000th Support Wing 


Arthur K. R~bino MC &PO AP 99'399 

APPENDIX 19 


WaiverMlithdrawal of Appellate Rights in General and Special- Courts-Martial 

Subject to Review by a Court of Military Review (DD Form 2330) 

WAIVER/WITHDRAWALOF APPELLATE RIGHTS IN GENERALAND SPECIAL 


COURTS-MARTIAL SUBJECT TO REVIEW BY A COURT OF MILITARY REVIEW 


NOTE: See R.C.M.1203(b) concerning which caaea are subject to review by a Court ofMilitary Review. See R.C.M. 

11 10 concerning waiver or withdmwal of appellate review. 

I have read the attached action dated yOvember lgg3 

Ihaveconsulhdwith Lieutenant Fender 	 , my (associate) defense counsel concerning my 

appellste rights and I am satisfied with hislher advice. 

I understand that: 

I 1. If Ido not waive or withdraw appellate review -	 I a. 	 My court-martial will be reviewed by the Navy-Marine Corps Court of Military Review. I 	 I 


b. 	The Court of Military Review will review my case to determine whether the findings and sentence are correct 

in law and fact and whether the sentence is appropriate. I c. 	 After review by the Court of Military Review, my case could be reviewed for legal error by the United States I 	 Court d Military Appeals, on petition by me or on request of the Judge Advocate General. I 


d. 	 If the Court of Military Appeals reviews my case, my case could be reviewed for legal error by the United 

Stake Supreme Court on petition by mo or the Government. I 	 I 
 e. 	 I have the right to be represented by military counsel, at no cost to me, or by civilian counsel. at no expenae 

to the United States, or both, before the Court of Military Review, the Court of Military Appeale, and the 

I Supreme Court. 

I I I


2. If 1waive or withdraw appellate review -

a. 	 My case will not be reviewed by the Court of MiLitary Review, or be subject to furthgr review by the Court 

of Military Appeals, or by the Supreme Court under 28 U.S.C. 1259. I 	 I 


b. 	 My case will be reviewed by a judge advocate for legal error, and I may submit in writing alle~tionaof legal error for consideration by the judge advocate. I 	 I 
 c. 	 After review by the judge advocate and final action in my cane, I may petition the Judge Advocate General 

for correction of legal errors under Article 69(b). Such a petition must be filed within 2 years of the convening authority's action, unless 1can show good cause for filing later. I 	 I 


d. 	A waiver or withdrawal, once Piled, cannot be revoked, and bars further appellate review. I I 


Understanding the foregoing, I (waive my rights to appellate review) *-&-=-). I 

make this decision freely and voluntarily. No one has made any promises that I would receive any benefits Prom this 

waiverw-, and no one has forced me to make it. 

James R. Richards 	 PFC RANK OF ACCMED 

* , - SIONATUFiE OF ACCUSED 	 DATE 

DDLO,"?~2330 
APPENDIX 19 

STATEMENT OF COUNSEL 

(Check appropriate block) 

a 1. I represented the accused at hidher court-martial. 

0 2. I am associate counsel detailed under R.C.M. 1110(b).I have communicated with the accused's (detailed) 

(individual military) (civilian) (appellate) defense counsel concerning the accused's waiver/withdrawal and 

discussed this communication with the accused. 

3. I am substitute counsel detailed under R.C.M.1110(b). 

4. I am a civilian counsel whom the accused consulted concerning this matter. I am a member in good 

standing of the bar of 

0 5. I am appellate defense counsel for the accused. 

I have advised the accused of hislher appellate rights and of the consequences of waiving or withdrawing appellate 

review. The accused has elected to (waive) &wkappellate review. 

Dudley D. Fender TYPED NAME OF COUNSFL UNIT OF COUNSEL 

Lieutenant. JAGC. llSN RANK OF COUNSEL BUSINESS ADDRESS (MCI~.ill~nCouwel) 

5 November 1993 DATE 

. 
APPENDIX 20 


WaiverMlithdrawal of Appellate Rights in General Courts-Martial Subject to 

Examination in the Office of the Judge Advocate General (DD Form 2331) 

WAIVERMTITHDRAWAL OF APPELLATE RIGHTS IN GENERAL COURTS-MARTIAL 

SUBJECT TO EXAMINATION INTHE OFFICE OF THE JUDGE ADVOCATE GENERAL 

NOTE: 	See R.C.M.1201(b)(l) concerning which cases are subject to examination in the Office of the Judge 


Advocate General. See R.C.M.1110 concerning waiver or withdrawal of appellate review. 


I have read the attached action, dated 

I have cnneulted with Captain Rater . my (essocintej defense counsel concerning my 


appellate rights and I am natisfied with his/her advice. 


I understand that: 

1. If I do not waive or withdraw appellate review -

a. 	 My case will be examined in the Office of the Judge Advocate General to determine whether the findinge 

and sentence are legally correct and whether the sentence is appropriate. 

b. 	 After examination in the Office of the Judge Advocate General and final action in my csse, I may petition 

the Judge Advocate Generd Iur review under Arlicle 69(1). Such a yetitiot~ a~uutbe filed within 2 years 

after the convening authority took action in my case, unless I can show good cause for filing later. 

2. 	 If I waive or withdraw appellate review -

a. 	 My case will not be examined in the Office of the Judge Advocate General under Article 69(a), UCMJ. 

b. 	 My case will be reviewed by a judge advocate for legal error, and I may submit in writing allegations of 

legal error for consideration by the judge advocate. 

c. 	 After review by the judge advocate and final action in my case. I may petition the Judge Advocate General 

for review under Article 69(b). Such a petition must be Ned within 2 years after the convening authorfty 

took action in my case. unless I can show goodcause for Piling later. 

I d. 	A waiver or withdrawal,once filed, may not be revoked. 

I 

3. 	 Undentandinu the above, I hereby fwaive my rights to appellate review] &W3tMtWwME%mfim 

~+!I make this decision freely and voluntarily. No one has made any promiees that I would receive any 

benefits from thiswaiverLmWuhtW, and no one has forced me to make it. 

Gregory C. Johns 

TYPE0 NAME OF ACCUSE0 

l.CPL, IISMC 

RANK OF ACCUSED 

5 November 1993 DATE 
--... .-. - - -

APPENDIX 20 

STATEMENT OF COUNSEL 

1 

(Check appropriate block) 

1. I represented the accused at his/her court-martial. 

2. 1 am associate counsel detailed under R.C-M. 1110(b).1have communicated with the accused's (detailed) 

(individual military) (civilian) (appellate) defense counsel concerning the accused's waiver/withdrawal anrl 

discussed this communication with the accused. 

3. I am subtitute counsel detailed under R.C.M.1110(b). 

4. 1 am a civilian counsel whom the accused consulted concerning this mattcr. 1 am a member in good 

standing of the bar of - . 

0 6. I am appellate defense counsel for the accused. 

I have advised the accused of his/her appellate rights and of the consequences of waiving or withdrawing appellate 

review. The accused has elected to (waive) -appeIlal- review. 

Libby Rater - LSSS, Camp Blank. GA TYPED NAME OF COUNSEL UNIT OF COUNSEL 

Captain, IISMC 

RANK OF COUNSEL ---- BUSINESS AbDRESS (If CI~~III~~I Cou#mrelJ 

- -5 November 1997 -.- ----. 

OAT C 
APPENDIX 21 


ANALYSIS OF RULES FOR COURTS-MARTIAL 


Introduction 

The Manual for Courts-Martial, United States, 1984, includes 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 goveming 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.l., and, at least since 1813, such power also has 

been provided for in statutes. See W. Winthrop, supra at 26-27. 

In 1875 Congress specifically provided for the 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 Unfinn 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, 

Ariicle 36 was amended ?o clarify the broad scope of the President's rulemaking authority for courts-marrial. Ac? of November 

9, 1979, Pub. L.No. 96107, 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 published in various fom~s, including "Manuals". W. Winthrop, 

supra at 28. Such publications were not limited to court-martial 

procedures and related matters; however, they were more in the 

nature of compendiums of military law and regulations. The early 

manuals for courts-martial were informal guides and were not 

promulgated by the President. See MCM, 1895 at 1,2: MCM, 

1905 at 3; MCM, 1910 at 3; MCM, 1917 at III. See also MCM, 

1921 at XM. 

The forerunner of the modem Manual for Courts-Martial was 

promulgated by the Secretary of War in 1895. See MCM, 1895 at 

2. See also Hearings on H.R. 3805, supra at 5. (Earlier Manuals 

were prepared by individual authors. See e.g., A. Murray, A 

Manual for Courts-Martial (3d ed. 1893); H. Coppee, Field manual for Courts-Mam'al (1863)). Subsequent Manuals through 

MCM, 1969 (Rev.) have had the same basic format, organization, 

and subject matter as MCM, 1895, although the contents have 

been modified and considerably expanded. See e.g., MCM, 1921 

at XK-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, in&), 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 not4 that,. as indicated above, the basic 

format and organization of the Manual for Courts-Martial had 

remained the same for over 80 years, although court-martial practice and procedure had changed substantially. 

Upon completion of the Military Rules of Evidence in early 

1980, the General Counsel, Department of Defense, with the 

concurrence of the Judge Advocates General, directed that the 

Manual for Courts-Martial be revised. There were four basic 

goals for the revision. Fist, the new Manual was to conform to 

federal practice to the extent possible, except where the Uniform 

Code of Military Justice requires otherwise or where specific 

military requirements render such conformity impracticable. See 

Article 36. Second, current court-martial practice and applicable 

judicial precedent was to be thoroughly examined and the Manual 

was to be brought up to date, by modifying such practice and 

precedent or conforming to it as appropriate. Third, the format of 

the Manual was to be modified to make it more useful to lawyers 

(both military and civilian) and nonlawyers. Specifically, a rule as 

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. 

These goals were intended to ensure that the Manual for 

Courts-Martial continues to fulfill its fundamental purpose as a 

comprehensive body of law goveming 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 

1981-January 1984 (Chairman, July 1981September 1983); Captain Edward M. Byme, USN, 1980-July 1981 (Chairman through 

September 1980); Captain John J. Gregory, USN, July 
App. 21, R.C.M. APPENI 

1981-January 1984; Colonel Richard T. Yery USAF, 

1980-March 1982: Colonel John E. Hilliard, USAF, March 

1982-October 1983 (Chairman, October 1982-October 1983); 

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, 111, USMC, June 1983-January 

1984; Commander William H. Norris, USCG, 1980-August 1981; 

Commander Thomas B. Snook, USCG, August 1981September 

1983; Captain William B. Steinbach, USCG, October 

1983-January 1984; and Mr. Robert H. Mueller of the Court of 

Military Appeals (1980-January 1984). 

In 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-Se~ice 

Committee on Military Justice. Since September 1980, when the 

drafting process began, the Working Group consisted of: Major 

John S. Cooke, USA (Chairman); Commander James E. Pinnell, 

USN; Lieutenant Colonel Richard R. James, USAF 

(1980-December 1982); Lieutenant Colonel Robert Leonard, 

USAF (December 1982 to January 1984); Major Jonathan R. 

Rubens, USMC; and Mr. John Cutts, and Mr. Robert Mueller of 

the staff of the Court of Military Appeals. Mr. Francis X. 

Gindhart and Mr. Jack McKay of the staff of the Court of Military Appeals also participated early in the drafting process. Clerical support was provided by the Court of Military Appeals. In this 

regard, Mrs. Gail L. Bissi has been instrumental in the success of 

this project. 

I

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 0. Everett, Judge William H. Cook, and Judge 

Albert B. Fletcher, of the Court of Military Appeals; Rear Admiral James J. McHugh, the Judge Advocate General, USN; Major 

General Hugh J. Clausen, The Judge Advocate General, USA; 

Major General Thomas Bruton, The Judge Advocate General, 

USAF, and Rear Admiral Edward Daniels, Chief Counsel, USCG. 

Brigadier General William H. J. Tieman, USMC, also sat ar an ex 

oficio 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 submission to the President after coordination by the Office of 

Management and Budget. 

On November 18, 1983, Congress passed the Military Justice 

Act of 1983. This act was signed into law by the President on 

December 6, 1983, Pub. L. No. 98-209, 97 Stat. 1393 (1983). 

The Working Group had previously drafted proposed modifications to the May 1983 draft which would be necea,Lary to implement the act. These proposed moditications were approved by the 

JoifIt-Se~ice 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 Cor submission to the 

President, and the President signed it on 13 April 1984. 

A note on citation form. The drafters generally have followed 

the Unifonn System of Citation (13th ed. 1981), copyrighted by 

the Columbia, Harvard, and University of Pennsylvania Law Reviews and the Yale Law Joumal, 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 la(1) (1984). 

The previous edition of the Manual for Courts-Martial will be 

referred to as "MCM, 1969 (Rev.)." Except as otherwise noted, 

this includes Exec. Order No. 11476, 34 Fed. Reg. 10,502 (1969). 

as amended by Exec. Order No. 11835, 40 Fed. Reg. 4,247 

(1975); Exec. Order No. 12018, 42 Fed. Reg. 57,943 (1977); 

Exec. Order No. 12198, 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 I through 

140, will be referred to as "the Code" or 'Ihe UCMJ" without 

citation to the United States Code. When a change from MCM, 

1969 (Rev.) is based on the Military Justice Act of 1983, Pub. L. 

No. 98-209, 97 Stat, 1393 (1983), this will be noted in the 

analysis, with citation to the appropriate section of the act. When 

this analysis was drafted, the specific page numbers in the statutes 

at large were not available. 

Composition 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, Mili- 
ANAL.YSIS App. 21, R.C.M. 

tary Rules of Evidence, the Punitive Articles, and Nonjudicial 

Punishment Procedure. E;lclr rule states binding requirenlents 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. Srrpplenrentary Materials 

As a supplement to tlre Manual, the Department of Defense, in 

conjunction with the Department of Transportation, has publislred 

a Discussion (accon~panying Ure Preamble, the Rules for CourtsMartial, and the' Punitive Articles), this Analysis, and various 

Appendices. 

(I) The Discr~ssion 

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 nray 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 tlre 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 wlretlrer an item 

is a requirement or only guidance. See e.8.. Ut~ited States v. 

Baker, 14 M.J. 361, 373 (C.M.A. 1973). In this Manual, if Inalter 

is included in a rule or paragraph, it is intended tlvat the ~r~atter 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 tlre rule. On tlre otl~er hand. if the 

drafters did not choose to "codify" a principle or requireme~rt 

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 nratter is addressed in the Discussion. The 

Discussion will be revised iron\ time to time as warranted by 

changes in applicable law. 

(2) The Analysis 

The Analysis sets forth the no~rbinding views of tlre 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 Urat tlie Analysis acconrpanied 

the project fiom tlre initial drafting stage tlrrouglr subrrrission to 

the President, and was continually revised to reflect changes prior 

to subnlission 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 tlre views of the President in 

approving it, or of the officials who forn~ally 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 developnrents for purposes of interpretation. At the same time, the user is reminded tlrat the 

amendment of the Manual is 111e provirrce of tl~e President. Ilevelopments in the civilian sector that affect the underlying rationale 

for a rule do not affect the validity oC the rule except to the extent 

otherwise required as a nratter of statutory or constitutio~~al law. 

The same is true witlr 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 tlrat judicial precedent is set fort11 only in the Discussion or is otherwise omitted from the Rules or tlre 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 I~ltroduction should be interpreted to suggest that the placen~ent of nratter in tlre 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, tlie difficult drafting problem of clroosing between a codification and comnion law approach to the law 

frequently resulted in noncodification of decisions whicbhad the 

unanimous support of the dralters. To tlre extent that future 

changes are made in the Rules or Discussion, corresponding 

nlalerials will be included in the Analysis. 

The Appendices contain various nonbinding materials lo assist 

users of this Manrlal. The Appendices also contain excerpts from 

pertinent statutes. 'l'hese excerpts 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 L PREAMBLE 

I~~troclrcction.The preamble is based on paragraphs I and 2 of 

MCM, 1969 (Rev.). See getrerally Militcrry Jlrstice Jlrrisdictior~ of 

Corrrfs-Mnrticil, DA PAM 27-174. cllnpter I (May 1980.) 

1. Sources of military jurisdiction 

This subsection is based on paragraph 1 of MCM. 1969 (Rev.). 

Tlre provisions or llle Constitution wlricl~ are sources of jurisdiction of nrilitary courts or uibunals include: Art I, sec. 8, cl. 1. 

9-16, 18; Art. 11, sec. 2; Art. IV, sec. 4; and the fifth anrendnrent. 

As to sources in international law, see e.g., Ex Pcirte Qrririrr, 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. srrl~ra at paragrap11 1-3. 

2. Exercise of military jurisdiction 

Subsection (a) is based on the first paragraplr of paragraplr 2 of 

MCM, 1969 (Rev.). 

For additional materials on martial law, see W. Winthrop, Military Ln~v and Precedent 817-30 (2d ed. 1920 reprint); Ex pcirte 

Milligan. 71 U.S. (4 Wc~ll.)2 (1866). See also paragraplr 3, sec. 1 

of MCM, 1910 (concerning the exercise of madal law over 

military affiliated persons). 

For additional materials on military government, see W. 

Winthrop, slrprci at 798-817; Mciilsen v. Kinsella, 343 U.S. 341 

(1952); Mechanics' and Traders' Bank v. Union Bank, 89 U.S. 

(22 Wall.) 276 (1875). 

For additional nraterials on the exercise of military jurisdiction 

under tlre law of war, see W. Wi~rthrop, srrl>rir at 83146; Tricrls 

A21-3 
App. 21, R.C.M. APPENDIX 21 

of War Criminals Before the Nuremberg Tribunals (US. Gov't 

Printing Off., 1950-51); Trials of the Major War Criminals 

Before the International Military Tribunal (International Military 

Tribunal, Nuremberg 1947); 61 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, 

supra at paragraph 1-5a; W. Winthrop, supra at 802-05, 835-36. 

As to provost courts, see also Hearings on H.R. 2498 Before a 

Subcomm. 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 Under Fire (1974); Hodson, Military Justice: Abolish or 

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 11. RULES FOR COURTS-MARTIAL 

CHAPTER I. GENERAL PROVISIONS 

Rule 101. Scope, title 

(a) In general. This subsection is patterned after Fed. R. Crim. P. 

1. "Courts-martial" are classified by Article 16. Supplementary 

procedures include all procedures directly relating to the 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 

A21-4 

to address variations in the terminology used among the services. 

The drafters have attempted to minimize the number of definitions. It is the drafters' intent that the words of the Manual be 

construed in accordance with their plain meaning, with due deference to previous usage of terms in military law or custom. 

(1) "Article." This definition was added to reduce repetitive citations to the Uniform Code of Military Justice. MCM, 1969 (Rev.) 

and its predecessors used the same convention. 

(2) "Capital case. " This definition is based on the first two 

sentences of paragraph 15a (3) of MCM, 1969 (Rev.). 

(3) "Capital offense." This definition is based on the first sentence of paragraph 15a(2) of MCM, 1969 (Rev). 

(4) "Code." This definition was added to avoid frequent repetition of "Uniform Code of Military Justice." 

(5) "Commander." This definition was added to avoid frequent 

repetition of the longer phrase, "commanding officer or officer in 

charge." See Articles l(3) and (4). 

(6) "Convening authority." This provision is based on paragraph 

84a of MCM, 1969 (Rev.). 

(7) "Copy."This definition was added to ensure that no construction of the Manual could result in delays of cases for the sake of 

unavailable specialized forms or office equipment. 

(8) "Court-martial." Articles 16 and 39(a). 

(9) "Days." This definition is added for clarity. Cf.llnited 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. $5 232(5); 844Q). 

(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) "Parfy." 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 tenn. 

(17) "Staff judge advocate." This term was not defined in the 

previous Manuals. It is defined to avoid variations in nomenclature among the services. 

(18) "Slra sponte." "Sua sponte" has been used frequently to 

avoid gender-specific language ("on his or her own motion"). Its 

use has been limited to passages expected to be used mainly by 

lawyers or with their assistance. Nonetheless, a definition is necessary for the benefit of a president of a special court-martial 

without a military judge. 

(19) "War, time of." This definition applies only to 

R.C.M.1004(~)(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 (0; 

71(b). The discussions of several rules address "time of war" in 

relation to these articles. See R.C.M. 202(a) Discussion (4); 
ANALYSIS App. 21, R.C.M. 

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. 8 3287; 37 U.S.C. 85 301(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. 

8 310(a). Compare 37 U.S.C. 8 310(a) with 37 U.S.C. 8 301(d); 

301a(c). See also S.Rep. No. 544, 89th Cong., 1st Sess. 13 (1965) 

which equates "all out war" to a declared war. 

The legislative history of the code contains few references to 

this matter. The only direct reference, relating to the deletion of 

the phrase from Article 102, indicates that the working group 

whirh 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 Cornm. on Anned 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'Clarighry, 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 Colrrt of Military Appeals, 22 A.F.L. Rev. 120 (1980-81); 

Stevens, Time of War and Vietrtam, 8 A.F.JAGL.Rev. 23 

(May-June 1966). 

The Court of Military Appeals has held that time of war, as 

used in several provisions of the code, does not necessarilv 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 

be construed narrowly); United States v. Anderson, 17 

U.S.C.M.A. 558, 38 C.M.R. 386 (1968) (Vietnam war was time 

of war for purpose of suspension of statute of limitations under 

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 Arlicle 43(a)); United States v. Christemen, 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. Bancrofl, 

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. Bancrofr, supra at 5, 11 C.M.R. at 5. See also 

United States v. Anderson, supra; United States v. Shell, supra; 

United States v. Sanders, 7 U.S.C.M.A. 21, 21 C.M.R. 147 

(1956); United States v. Ayers, supra. 

During the Korean war it was suggested that "time of war" 

existed only in the Far Eastern theater. The court did not have to 

decide this issue with respect to whether the death penalty was 

authorized for Articles 85, 90, or 113 because the President suspended the Table of Maximum Punishments (paragraph 117c of 

MCM (Anny), 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 (19~5); United States v. Gallagher, 23 C.M.R. 591 (A.B.R. 1957). 

The Court of Military Appeals rejected the argument that "time 

of war" is geographically limited with respect to 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 geographically limited. For purposes of the death 

penalty, the prerequisite findings of aggravaling circumstances 

under R.C.M. 1004 would screen out offenses which did not 

substantially affect the war effort. Therefore, possible geographic 

limitations in "time of war" would be subsumed in the necessary 

findings under R.C.M. 1004. 

Based on tl~e foregoing, for at least some purposes of the 

punitive articles, "time of war" may exist without a declaration of 

war. Tlie 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 Im. 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. ringy, 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 detenlrir~e 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. Bancrofl, supra at 5, 11 C.M.R. at 5. 

ANALYSIS App. 21, R.C.M. 

(a) No comniissioned officer may be disniissed fro111 any arliied 

force except- 

(1) by sentence of a general court-martial; 

(2) in comr~~unicatior~ of a sentence of a general court-niartial; 

or 

(3) in time of war, by order of the President. 

Rule 108. Rules of court 

This rule is new and is based on Wd.R.Crim. P. 57(a) and 

Article 140. Cf: Article 66(f). See also United Stntcs v. Kelsor~, 3 

M.J. 139 (C.M.A. 1977). Depending on the regulatioos, rules of 

court riiay be promulgated on a service-wide. judicial circuit, or 

trial judge level, or a colilbination tliereof. Tlie rule recognizes 

that differences in organization and operations of services and 

regio~ial and local conditions liiay necessitate variations in pmctices and procedures to suppleinent tliose prescribed by the code 

and tl~is Manual. 

Tlie manner in wliicli rules of court are disseniinated is witl~ili 

the sole discretion of the Judge Advocate General concerned. 

Service-wide rules, for example. niay be pr~blislied in the sa~lie 

manner as regulations or specialized paniplilets or journals. Local 

rules may be published in the same manner as local regulatioris or 

other publications, for exaniple. Parlies lo any courl-martial are 

entitled to a copy, without cost, of any rules pertaining thereto. 

Meliibers of Uie public niay obtain copies under mles of the 

military departr~ient concerned. Tlie 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 tiriiely notice or if there is no 

prejudice within the li~eaning of Article 59. C/: 5 U.S.C. 

8 552(a)(I). 

Rule 109. Professional supervision of military 

judges and counsel 

Tllis 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 coullsel ill courts-martial. This rule also 

applies to nlilitary trial and appellate judges and to all judge 

advocates and other lawyers who practice in niilitary justice, 

including tlie administration of nonjudicial punishment and pretrial and posttrial matters relating to courts-rnartial, Tlie rule also 

applies to civilian lawyers so engaged, as did its predecessor. Tlie 

rule does not apply to lay persons. Nothing in this rule is intended 

to prevent a military judge from excluding, ill a particular case, a 

counsel froni representing a party before tlie court-niartial over 

which the military judge is presiding, on grounds of lack of 

qualifications under R.C.M. 502(d), or to otlienvise exercise control over counsel UI accordance with these rules. See e.g., R.C.M. 

801. 

1993 Amendnrct~t: Subsection (a) was amended to conform 

with subsection (c). Tlie aniendl~ient to subsection (a) clarifies 

that the Judge Advocates General are responsible for the supervision and discipline of judges and attorneys. Tlie amendnleiit to 

subsectio~i (a) is not intended to liniil llle autl1orily of a Judge 

Atlvocate General ill any way. 

New subsection (c) is based on Article Ga, Unifor~ii Code or 

Military Justice. Article 6a, U.C.M.J. was enacted by tlie Defense 

Autliorizalio~i Act for Fiscal Year 1990. "Military Appellate Procedures," Tit. XIII, $ 1303, National Defense Autliorizatiori Act 

lor Fiscal Year 1990, Pub. L. No. 101-189, 103 Stat. 1352, 1576 

(1989). Tlie legislative liistory reveals Congressio~ial intent tliat, 

to the extent consistent with the Uniform Code of Military Justice, tlie procedures to investigate and dispose of allegations conceniing judges in the military should emulate those procedures 

found in the civilian sector. Scc H.R. Conf. Rep. No. 331, lOlst 

Coag., 1st Sess. 656 (1989).[hereinafter Conf. Rep. No. 3311. Tlie 

procedures establislied 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. 5 372 (1988). Tlie rule recognizes, 

Iiowever, tlie overall responsibility of the Judge Advocates General for the certification, assignnietit, professional supervision, 

and discipline of military trial and appellate niilitary judges. See 

Articles 6, 26 & 66, Unifornr Code oi Military Justice. 

Subsection (c)(2) is based on Uie collidttee report acconipanying the FY 90 Defense Autl~orization Act. See Col~f. Rep. No. 

331 at 658. This subsectioti is designed tn increase public confide~ice in the military justice systeni while co~itributing to tlie 

integrity of tile systeni. See, Lnrrdrrlark Cor~trtzlmicatiorls v. Virginin, 435 U.S. 829 (1978). 

Tlie first sentence of the Discussio~~ tosubsection (c)(2) is 

based on the coninlittee report acconipnnying tlie Defense Autliorization Act. Conf. Rep. No. 331 at 358. Tlie second and third 

senleiices of tlie discussioii are based on the comnientary to ABA 

Model Standard 3.4. See also, Cl~arldler v. Jlrdicial Co~tncil, 398 

U.S. 74 (1970). 

Subsection (c)(3). (c)(5), and (c)(7) reflect, and adapt to the 

conditions of niilitary practice, the general principle tliat judges 

sliould investigate judges. 

Tlie first paragraph ol the Discussion to sribsection (c)(3) is 

based on Ule coinmentary to ABA Model Standard 4.1. 

The discussion to subsection (c)(4) is based on Uie commentary 

to ABA Model Standard 4.6. 

Tlie 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 comnlission is to advise the Judge Advocate General coiicenied as to 

wlietlier the allegations contained in a co~nplaint constitute a 

violatiori of applicable ethical standards. Tliis subsection is not 

intended to preclude use of the co~nmissio~i for other functio~is 

sucli as reodering advisory opinions on etl>ical questions.See, 

ABA Model Standard 9 on the establishnient and role of an 

advisory committee. 

Subsection (c)(7)(a) is based on ABA Model Standard 2.3, 

wliicl~ provides that one-third of the niembers of a comnlission 

sliould be active or retired judges. 

CHAPTER II. JURISDICTION 

Rule 201. Jurisdiction in general 

Introd~rctiori. The priinary source of court-martial jurisdiction is 

Art. I, sec. 8, cl. 14 of the Co~istitulion, wllich empowers Congress to niake rules for the goveniment and regulation ol the 

ar~iied forces of the United States. Courts-martial are recognized 

in the provisions of the fifth ariiendmerit expressly exempting 

"cases arising in the land or naval forces" from tlie requirement 

of presentnient and indict~iient by grand jury. See also Part I, 

A21-7 
App. 21, R.C.M. APPENDIX 21 

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 

MCM, 1969 (Rev.). C' Fed R. Crim. P.7(c)(2); 18 U.S.C. 

$8 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, geographical considerations 

may affect court-martial jurisdic:ion. See R.C.M. 202 and 203. 

Subsection (3) restates the third paragraph of paragraph 8 of 

MCM, 1969 (Rev.). See also Chenoweth v. Van Arsdall, 22 

U.S.C.M.A. 183, 46 C.M.R. 183 (1973), which held that Art. HI, 

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). Cj 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 

separately for the first time. This requisite makes clear that 

courts-martial have the power to hear only those cases which they 

are authorized by the code to try (i.e., offenses made punishable 

by the code, and, in the case of general courts-martial, certain 

offenses under the law of war). Second, it recognizes the important effect of O'Callahan v. Parker, 395 U.S. 258 (1969). on 

courts-martial. 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." 

%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. ?f;3, 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) Exclusive and nonexcl~isive jurisdiction. Subsection (d) is 

based on paragraph 12 of MCM, 1969 (Rev.). Military offenses 

are those, such as unauthorized absence, disrespect, and disobedience, which have no analog in civilian criminal law. The second 

paragraph of paragraph 12 is omitted here, as 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 reaffii the policy found 

in DOD Directive 5525.1, Jan. 22, 1966 (superceded by DOD 

Directive 5525.1, Aug. 7, 1979), which is implemented by a 

triservice regulation, AR 27-50lSECNAVINST 5820.4ElAFR 

11e12, 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 

The Schooner Exchange v. McFaddon and Others, 11 U.S. (7 

Cranch) 116 (1812). See also Wilson v. Girard, nrpra. 

(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 Stnt~s 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 

House Committee on Armed Services, 81st Cong., 1st Sess. 
ANALLYSIS App. 21, R.C.M. 

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. 11, 5 211(b), 100 

Stat. 992. Because commanders of unified and specified commands (the combatant commands) derive court-martial convening 

authority from Article 22(2)(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 wed forces, is an exercise of the President's authority 

under Article 17(a). 111 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 iudges from different services. 

Subsection (5) restates Article 17(b). 

1986 Amendment: Subsection (6) was inserted in the context of 

the Goldwater-Nichols Department of Defense Reorganization 

Act of 1986, Pub. L. No. 99-433, tiL. 11, 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 effecf 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 Punishment Procedure) by a combatant commander over persons 

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 cormnand 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 

President's inherent authority as Commander-in-Chief to prescribe 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. 

$8 161-65 (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 Article 18. This subsection is substantially the same as paragraph 14 

of MCM, 1969 (Rev.), although it has been reorganized for clarity. Several statements in MCM, 1969 (Rev.) concerning punishments by general courts-martial have been placed in the 

discussion. As to the second sentence in subsection (l)(A)(i), see 

also Wickham v. Hall, 12 M.J. 145 (C.M.A. 1983); Wickham v. 

Hall, 706 F.2d 713 (5th Cir. 1983). 

The source for subsection (2) is Article 19. Subsection (2) is 

based on paragraph 15 of MCM, 1969 (Rev.), although it has 

been reorganized for clarity. Note that under subsection (2)(C)(ii) 

a general court-martial convening authority may permit a subordinate convening authority to refer a capital offense to a special 

court-martial. This is a modification of paragraph 15a(l) of 

MCM, 1969 (Rev.), which said a general court-martial convening 

authority could "cause" a capital offense to be referred to a 

special court-martial without specifying whether the convening 

authority had to make the referral personally. Subsection 

(2)(C)(iii) permits the Secretary concerned to authorize special 

court-martial convening authorities to refer capital offense to special courts-martial without first getting authorization from a general court-martial convening authority. Several statements in 

MCM, 1969 (Rev.) have been placed in the discussion. 

As to subsection (3) summary courts-martial are treated 

separately in R.C.M. 1301-1306. 
App. 21, R.C.M. APPENIDIX 21 

(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)(l)) 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. $8 504 

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 

States v. Bean, 13 U.S.C.M.A. 203, 32 C.M.R. 203 (1962); 

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 

indicates that United States v. King, 11 U.S.C.M.A. 19, 28 

C.M.R. 243 (1959) is overmled by the statute. This is also reflected in the first paragraph under (ii) Induction. 

The first paragraph of (ii) lnduction 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); Maybom 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 

States v. Scheunemann, 14 U.S.C.M.A. 479, 34 C.M.R. 259 

(1964). See also United States v. Wilson, 44 C.M.R. 891 

(A.C.M.R. 1971). Although no military case has so held, dicta 

and Scheunemann supports the second sentence. 

As to (i) Call to active duty, see 10 U.S.C. $5 672, 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 Sfntes v. 

Kilbreth, 22 U.S.C.M.A. 390, 47 C.M.R. 327 (1973). 

1986Amendment: 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. WI, $ 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. Grilfin, 13 U.S.C.M.A. 213, 32 C.M.R. 213 

(1962). 

Subsection (B)(i) is based on United States v. Wheeley, 6 M.J. 

220 (C.M.A. 1979); United States v. Smith, 4 M.J. 265 (C.M.A. 

1978); United States v. Hutchins, 4 M.J. 190 (C.M.A. 1978); 

United States v. Horrt, 19 U.S.C.M.A. 299, 41 C.M.R. 299 

(1970). See also Dickenson v. Davis, 245 F.2d 317 (10th Cir. 

1957). 

Subsection (B)(ii) describes what jurisdiction remains under 

Article 3(a) in light of United States 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 1 lb 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 llb of MCM, 1969 (Rev.) has been included 

here. The principle it expressed has long been recognized. See the 

last sentence in paragraph llb 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 30). 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 
ANArLYSlS App. 21, R.C.M. 

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 cJ: Latney v. Ignatius, 416 F.2d 821 @.C. Cir. 1969) (assuming without deciding 

that Article 2(a)(10) could be invoked during period of undeclared war, no court-martial jurisdiction existed over civilian 

merchant seaman for mwder 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. Kitpatrick, 

53 F.Supp. 80 (E.D. Va. 1943). See also Ex parte Gerlach, 247 

F.616 (S.D.N.Y. 1917); United States v. Bumey, 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 "accompanyiug an armed force" altl~ough 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 Howcle, 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)(l)(B); 

202(b). See also Article 21. Tnis includes trial by court-martial in 

places where the United States is an occupying power. See e.g., 

Madsen v. Kinsellu, 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 stiU 

technically existed (see Proclamation No. 2950, 3 C.F.R. 

(1948-53 Comp.) 135 (1951)) hostilities were declared terminated 

on 31 December 1946 (see Proclamation No. 2714, 3 C.F.R. 

(1948-53 Comp.) 99 (1947)) and the United States Supreme 

Court observed in dicta that military courts might have jurisdiction in occupied temtory even in peacetime, 343 U.S. at 360)l. 

See also Wilson v. Bohlender, 361 U.S. 281, 283 n. 2 (1960); 

Kinsella v. Singleton, supra at 244. 

(b) menses 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 

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 lld 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) marden, J., concuning in the result); and 

United States 1. 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 lld 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, s~cpra; 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. 

1982); United States v. Wheeley, supra; United States v. 

Rubenstein, supra; United States v. Mansbarger, 70 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 inter- 
App. 21, R.C.M. APPENDIX 21 

pretation, 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)(l)(A). The last three sentences in subsection (b) of the 

discussion are based on United States v. Lockwood, 15 M.J. 1 

(C.M.A. 1983). The remainder of the discussion reflects the 

Working Group's analysis of the application of service-connection as currently construed in judicial decisions. It is not intended 

as endorsement or criticism of that construction. 

Subsection (c) of the discussion lists the Relford factors, which 

are starting points in service-connection analysis, although the 

nine additional considerations in Relford are also significant. 

These factors are not exhaustive. United States v. Lockwood, 

supra. See also United States v. 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 McCarihy 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 senice-connection is not established by the ho1ding.h 

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. Boy, 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 Wamr 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 

fust recognized in United States v. Weinstein, 19 U.S.C.M.A. 29, 

41 C.M.R. 29 (1969). See also United States v. Keaton, 19 

U.S.C.M.A. 64, 41 C.M.R. 64 (1969). The overseas exception 

flows from O'Callahan's basic premise: that the service-connection requirement is necessary to protect the constitutionalright 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 confumed 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. 1976). See also United States v. Gladue, 4 M.J. 

l(C.M.A. 1977); United States v. Lauaro, 2 M.J. 76 (C.M.A. 

1976). Some federal courts have suggested that the existence of 

court-martial jurisdiction over an overseas offense does not 

depend solely on the fact that the offense is not cognizable in the 

United States civilian courts. See Hemphill v. Moseley, 443 F.2d 

322 (10th Cir. 1971). See also United States v. King, 6 M.J. 553 

(A.C.M.R. 1978), pet. denied, 6 M.J. 290 (1979). 

Several Federal courts which have addressed this issue have 

also held that the foreign situs of a hial 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.), ceri. denied, 400 U.S. 849 (1970); Bell v. 

Clark, 308 F.Supp. 384(E.D. Va. 1970). afd, 437 F.2d 200 (4th 

Cir. 1971). As several of these decisions recognize, the foreign 

situs of an offense is a factor weighing heavily in favor of service-connection even without an exception for overseas offenses. 

See Relford factors 4 and 8. The logistical difficulties, the disruptive effect on military activities, the delays in disposing of offenses, and the need for an armed force in a foreign country to 

control its own members all militate toward service-connection 

for offenses committed abroad. Another consideration, often cited 
ANPLLVSIS App. 21, R.C.M. 

by the courts, is the likelihood that if tl~e service-connection rule 

were applied overseas as it is in the United States, the practical 

effect would be far more freque~~t 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); Dtrncan 

v. Lolrisiana, 391 U.S. 145 (1968); Drrke v. United States, 301 

U.S. 492 (1937)); the serivce-connection requiren~ent does not 

apply to them. United States v. Sharkey, I9 U.S.C.M.A. 26, 41 

C.M.R. 26 (1969). Under Baldwin v. New York, srrpra, 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. Browti, 13 1J.S.C.M.A. 333, 32 C.M.R. 333 (1962). 

Slrarkey relied on the maxiniun~ punishment under the table of 

maxin~um punishnlents in deterniining whether an offense is petty. It is the view of tlie Working Group that offenses tried by 

summary courts-martial and special courts-martial at which no 

punitive discharge ntay be adjudged are "petty offenses" for purposes of O'Callahan, in view of the jurisdictional limitations of 

such courts. Whe?her 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 detern~ined. 

1995 Amendment: The discussion was amended in light of 

Solorio v. United States, 483 U.S. 435 (1987). O'Callcihan 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 Asrenrlmetlt: R.C.M. 204 and its discussion were added to 

implement the amendn~ents to Articles 2 and 3, UCMJ, contained 

in the "Military Justice Atnendnlents 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 tern1 "member of a 

reserve component" in Article 3(d) means membership in the 

reserve component at the time disciplinary action is initiated. The 

limitation in subsection (b)(l) restricting general and special 

courts-martial to periods of active duty is based upon the practical 

problems associated with conductitlg a court-martial only during 

periods of sclleduled inactive-duty training, and ensures that the 

exercise of court-martial jurisdiction is consistent with tlie policies set fotlll in Article 2(d). The last~+zen!ence of subsection (d) 

reflects legislative intent "not to disturb the jurisprudence of 

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 Ill. INITIATION OF CHARGES; 

APPREHENSION; PRETRIAL RESTRAINT; 

RELATED MATTERS 

Rule 301. Report of offense 

The primary sources of rhis rule are paragraphs 290 and 31 of 

MCM, 1969 (Rev.). Those provisions were adopted in substance 

except that subsection (b) provides that reports be conveyed to the 

"in~n~ediateconin~a~~der" of suspects. meaning the "commander 

exercising inlnlediate jurisdiction. . . under Article 15." The language was changed because the previous language was cumbersome and legalistic. There is no corresponding provision in the 

Federal Rules of Criminal Procedure. the most closely analogous 

provision of the Federal Rules of Criminal Procedure is Rule 3 

(complaints). However, "[wlith respect to the complaint, in general, it should be noted that its principle purpose is to serve as the 

basis for an arrest warrant." J. Moore, Moore's Federal Practice, 

Rtrles Panr~~h/t!t (part 3) 10 (1982). That purpose is not the same 

as the purpose of R.C.M. 301. R.C.M. 301 is sin~ply to assure 

that ordinarily information relating to offenses is conveyed 

promptly to the suspect's immediate commander. 

Rule 302. Apprehension 

(a) Dejnition and scope. The defiuition of "apprehension" in 

subsectiotl (I) is taken From Article 7(a), as was its predecessor, 

paragrap11 18 a of MCM, 1969 (Rev.). 

The peculiar military term "appreliension" is statutory (Article 

7(a)) and cannot be abandoned in favor of tlie more conventional 

civilian term, "arrest." See generally United States v. Kinane, 1 

M.J. 309 (C.M.A. 1976). See also United Stcites v. Cordero, I1 

M.J. 210, 217, n.1 (C.M.A. 1981) (Everett, C.J., concurring). 

The discussiot~ of "apprehension" is also consistent with paragraphs 180 andb(1) of MCM, 1969 (Rev.). The discussion draws 

a distinction between apprehensions and detentions. The distinction is based upon the duration of tl~e status, the legal consequences of the impairment of liberty, and the circumstances under 

which the two fornis are used. Brown v. Texas, 443 U.S. 47 

(1979); Drrnawny v. New York, 442 U.S. 200 (1979); Terry v. 

Ohio, 392 U.S. 1 (1968); United States v. Schneihr, 14 M.J. 189 

(C.M.A. 1982); United States v. Texidor-Perez, 7 M.J. 356 

(C.M.A. 1979). 

This rule conforms in intent with the substance of Fed. R. 

Crim. P. 3 througl~ 5. However, the formal warrant application 

process end initial appearance requireme~~tof those rules are 

irupracticable, and, given the cotlinland control aspects of the 

military. unnecessary for niilitary criminal practice. The purposes 

of Fed. R. Crini. P. 3 througll 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. 

Appreliension and detention of such persons by military law enforcement personnel is not part of the court-martial process; it is 

based on the conm~ander's inherent autl~ority to maintail1 law and 

order on the installalion and on various state laws concerning 

citize~l's arrest. See United Stcites v. Banks, 539 F.2d I4 (9th Cir. 

1976). The rule also does not affect the autllority of persons not 

listed in subsection (b) to apprehend. The discussion gives some 

exanlples of such categories. 

(b) Who ntay 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 19cr of MCM, 1969 

(Rev.). The phrase "whether subject to tlie code or not" is added 

to the present rule to make clear that contract civilian guards and 

police and similar civilian law enforcen~ent agents of the n~ilitary 
App. 21, R.C.M. APPE 

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. 

1987Amendment: 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 fist clause in the first sentence of 

paragraph 19a of MCM, 1969 (Rev.). The accompanying discussion is based on the second sentence of paragraph 19a of MCM, 

1969 (Rev.). 

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) Grounh 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 19a of MCM, 1969 (Rev.) took note. They 

are consistent with Fed. R. Crim. P. 4(a). No change to the 

substance of those provisions has been made, but the discussion 

provides that probable cause may be based on "the reports of 

others" to make clear that hearsay may be relied upon as well as 

personal knowledge. This addition is consistent with Fed.R. Crim. 

P. 4(b). The wording has been changed to eliminate the legal 

term, "hearsay." 

The last sentence of the subsection restates the codal authority 

of commissioned, warrant, petty, and noncommissioned officers 

to use the apprehension power to quell disorders, and is based on 

Article 7(c) and paragraph 19b of MCM, 1969 (Rev.), changed 

only as necessary to accommodate format. Cf:paragraph 19a of 

MCM, 1951, and of MCM, 1969 (Rev.) (authority of military law 

enforcement official to apprehend on probable cause). See also 

Article of War 68 (1920). Compare paragraph 206 (authority of 

military police) with paragraph 20c (quarrels and frays) of MCM 

(Army), 1949 and of MCM (AF), 1949. Article 7(b) expressly 

requires probable cause to believe an offense has been committed; 

Article 7(c) does not. 

(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 

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. 58 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 gener2,leaving to the services ample breadth in which to make more 

defmitive regulations. 

The discussion restates paragraph 19d of MCM, 1969 (Rev.). 

There is no corollary provision in the Federal Rules of Criminal 

Procedure. The purpose of the notification is twofold. First, it 

ensures that the unit commander of the person in custody will 

know the status of that member of the command and can participate in later decisionmaking that will affect the availability of the 

member apprehended: Second, it ensures that law enforcement 

officials will promptly bring the case and suspect before the 

commander, thus ensuring that later procedural requirements of 

the code and these rules will be considered and met if appropriate. This is parallel in intent to Fed. R. Crim. P. 5 and 5.1. 

(e) Where an apprehension may be made. Subsection (1) is based 

on Article 5. It is similar to Fed. R. Crim. P. 4(d)(2) but broader 

because the code is not similarly limited by geography. 

Subsection (2) adds the warrant requirement of Payton v. New 

York, 445 U.S. 573 (1980), conforming the procedure to military 

practice. See also Steagald v. United States, 451 U.S. 204 

(1981):United States v. Mitchell, 12 M.J. 265 (C.M.A. 1982); 

United States v. Davis, 8 M.J. 79 (C.M.A. 1979); United States v. 

Jamison, 2 M.J. 906 (A.C.M.R. 1976). The first sentence clarifies 

the extent of Payton by citing examples of the kinds of dwellings 

in which one may and may not reasonably expect privacy to be 

protected to such a degree as to require application of Payton. 

Subsection (C) joins the warrant requirement to the traditional 

power of military commanders, and military judges when empowered, to authorize similar intrusions for searches generally and 

other kinds of seizures. The first sentence of the last 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. 
ANAl-YSIS App. 21, R.C.M. 

See Rakas v. Illinois, 439 U.S. 128 (1978). Failure to secure 

authorization or warrant to enter a private dwelling not occupied 

by the person to be apprehended may violate the rights of residents of that private dwelling. 

Rule 303. Investigation of charges 

This rule is based on paragraph 32 of MCM, 1969 (Rev.). 

Much of the predecessor now appears in the accompanying 

discussion. 

Rule 304. Pretrial restraint 

(a) Types of pretrial restraint. Except for the "conditions on 

liberty" provision, which is new, this subsection is based on 

paragraphs 20a, b, and c of MCM, 1969 (Rev.). Some of the 

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 

parallel the conditions on release described in 18 U.S.C. 8 

3146(a). See also ABA Standards, Pretrial Release 1 10-5.2 

(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. 189 (C.M.A. 1978); United States v. Powell, 2 M.J. 6 

(C.M.A. 1976). 

1986 Amendment: A fourth paragraph was added to the Discussion to provide a cross-reference to the speedy trial rule in 

R.C.M. 707(a). 

(b) Who may order pretrial restraint. This subsection restates, in 

a reorganized format, paragraph 21a 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. $8 3146(a) and 3147). although a decision to confine is 

subject to thorough review under R.C.M. 305. The Discussion 

borrows from the language of Article 13 to admonish that the 

restraint must serve only the limited purpose of this rule. See 

subsection (f). See also United States v. Haynes, 15 U.S.C.M.A. 

122, 35 C.M.R. 94 (1964). 

(d) Procedures for ordering pretrial restraint. This subsection is 

based on Article 9(b) and (c) and on paragraph 20d(2) and (3) of 

MCM, 1969 (Rev.). Since all forms of restraint other than confinement are moral rather than physical, they can be imposed only 

by notifying the personrestrained. 

(e) Notice of basis for restraint. This subsection is based on 

Article 10. Since all forms of restraint other than confinement 

involve some form of communication with the accused or suspect, this subsection will impose no undue burden on commanders. The Discussion refers to R.C.M. 305(e) which contains 

additional notice requirements for a person who is confined. Failure to comply with this subsection does not entitle the accused to 

specific relief in the absence of a showing of specific prejudice. 

Cf:United States v. Jemigan, 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); Mi1.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 !lie same. 

(f) Punishment prohibited. This section is based on Article 13; 

paragraph 18b(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 21d 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 
App. 21, R.C.M. APPEND 

rehearing or an "other" trial. See R.C.M. 1107(e). Restraint imposed during any of these situations is considered "imposed 

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 clarif~es 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. Malin, 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 

codmernent; and a specific and meaningful remedy for violation 

of the rule. 

The Working Group considered various procedural mechanisms 

for imposition and review of pretrial confinement. Numerous 

practical, as well as legal, concerns were analyzed and weighed in 

striking a balance between individual liberty and protection of 

society. The Working Group proceeded from the premise that no 

person should be confined unnecessarily. Neither the prisoner nor 

the government benefits from unnecessary confinement. On the 

other hand, in determining when confinement may be necessary, 

the nature of the military and its mission is an important consideration. Moreover, some of the collateral impact associated with 

pretrial confinement in civilian life (loss of job, income, and 

access to defense counsel) is normally absent in the military 

setting and pretrial confinement is seldom lengthy. See R.C.M. 

707. Finally, the procedures for imposition and review of pretrial 

confinement had to be compatible with existing resources. More 

specific considerations are addressed below. 

(a) In general. This subsection is based on the first sentence of 

paragraph 20c of MCM, 1969 (Rev.). The second sentence of that 

paragraph is deleted here; the subject is treated at subsections (d) 

and (h)(2) of this rule. The fust 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 

A21-16 

precede it. C$ 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 19d and 174c 

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 

and to act. See Article 9(e). See also paragraphs 21 and 22, Part 

IV. 


(e) Advice to the accused upon confinernen?. Except for subsection (e)(l), which is based on Article 10 and appeared in subparagraph 20d(4) of MCM, 1969 (Rev.) this subsection is new. It 

is similar to Fed.R.Crim. P.5(c) which requires the magistrate to 

give such advice 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, tlis 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 8 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, 12211. 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, 

srcprn. 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 (1977); 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 terminate the relationship for the convenience of the government. 

United States v. Can, 1 M.J. 41 (C.M.A. 1975); United States v. 
ANALLYSIS App. 21, R.C.M. 

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 Mi. 

R. Evid. 502, such communications would be protected by the 

attorney-client privilege. Moreover, since the initial review may 

be accomplished without the presence of prisoner or defense 

counsel, the defense counsel may submit appropriate written matters without personal contact with either the prisoner or the 

reviewing officer. 

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 no@ 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 &) 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." Notwilllstanding 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 

authority of military judges (See Porter v. Richardson, 23 

U.S.C.M.A. 704, 50 C.M.R. 910 (1975); Co~rrtney v. Williamr. 

supra) and officials appointed to do so under regulations (see 

United States v. Malia, supra) to order release from pretrial confinement has been recognized. The subsection expressly establishes the authority of such officials to direct release from 

pretrial confinement. 

(h) Notification and action by commander. Subsection (1) is 

based on Article ll(b), although the terminology has been 

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 4 United States v. Ezell, 6 M.J. 307 

(C.M.A. 1979); Courtney v. Williams, supra), it is appropriate to 

give this officer the initial decision on pretrial confinement, so 

that the command implications of this determination may be fully 

considered and developed for later review. See subsections (B) 

and (C). This will enable the commander, who is in the best 

position to assess the predictive elements of the pretrial confinement decision, including not only the prisoner's likely behavior, 

but also the impact of release or confinement on mission performance, to make a record of such factors for the initial review. 

Subsection (2)(B) provides additional guidance for the commander in making this decision. 

The 72-hour requirement is intended to ensure reasonably 

prompt action by the commander, while at the same time allowing for situations in which the commander is not immediately 

available. If a commander were unavailable for a longer period, 

then some other official would normally qualify as acting commander (see United States v. Kalscherrer, 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 confiiement in military law. See Article 9(d); paragraph 20d(l) 

of MCM, 1969 (Rev.). Preventing flight is also well established 

as basis for confinement. See paragraph 20c of MCM, 1969 

(Rev.); United States v. Bayhand, 6 U.S.C.M.A. 762, 21 C.M.R. 

84 (1956). Preventing foreseeable serious criminal misconduct 

has not been expressly recognized in the Manual before, although 

it was probably included in the "seriousness of the offense 

charged" language of paragraph 20c. See e.g., United States v. 

Nixon, 21 U.S.C.M.A. 480, 45 C.M.R. 254 (1972). "Seriousness 

of the offense charged" was rejected as an independent justification for pretrial confinement in United States v. Heard, supra, at 

least insofar as it implied confinement may be ordered regardless 

of the need to prevent flight or serious criminal misconduct. CJ: 

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. 

Indeed the phrase "foreseeable serious criminal misconduct" 

comes from Heard. See also United States v. Nixon, supra; 
App. 21, R.C.M. APPEl 

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 

confiied 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 8 6-104 (June 28, 1978), 43 Fed.Reg. 28949, as amended 

by Exec. Order No. 12148 (July 1979). 44 Fed.Reg. 43139, and 

Exec. Order No. 12148 (July 19, 1979), 44 Fed.Reg. 56673, 

reprinted at 50 U.S.C.A. 8 401 (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. 8 3146(b), with minor modifications. See also ABA 

Standards, Pretrial Release $8 10-3.2, 10-3.3, 10-4.4(d), 10- 

5.l(b) (1979), "embraced" in United States v. Heard, suprn 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. 8 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. 8 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. Cfi 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. Edwarh, 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. 

9-5b(l), 16-5a (1 September 1982); SECNAVINST 1640.10, 

para. 6 (16 August 1978). The memorandum is important to the 

remaining pretrial confinement procedures since it ordinarily 

provides the primary basis for subsequent decisions concerning 

pretrial confinement. 

(i) Procedures for review 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 of 

Courtney v. William, supra. Although in United States v. Malia, 

supra, the Court of Military Appeals identified the term 

"magistrate" with the term "judge," the Working Group did not 

construe this to require that a military judge must conduct the 

initial review. Cfi United States v. Lynch, supra. Judicial review 

is provided in subsection (i).Instead, the term as used in Malia 

appears to denote a neutral and detached official with independent 

power to review and order release from pretrial confinement. In 

any event, it is not practicable to require that the reviewing 

officer be a military judge, especially if the review is to occur 

promptly and if the accused is to be permitted to appear personally before the reviewing officer. There are not enough military 

judges available to accomplish this task. Moreover, a legally 

trained magistrate is not necessary since the pretrial confinement 

decision is essentially factual and predictive. C$ 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 written documents, without the prisoner's presence when 

circumstances so dictate, there should be no reason why a reviewing officer cannot conduct a review of the imposition of confiement 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. 

1993 Amendment: The amendment to subsection (i)(l) 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 
ANALYSIS App. 21, R.C.M. 

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., concurring); ABA Standards, Pretrial Release $ 10-5.9 (1979)), an 

adversary hearing is not required. Gerstein v. Pugh andunited 

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 

defense counsel to personally address the reviewing officer. 

Measured against the military's mission, its structure and organization, and the resources available to it, these procedures, coupled 

with the opportunity for judicial review at an Article 39(a) session, adequately protect the liberty interests of the prisoner. 

The review procedures are patterned after the procedures for 

parole revocation proceedings prescribed in Morrissey v. Brewer, 

408 U.S. 471 (1972). 'Illere the Supreme Court required that an 

initial review of parole revocation must be conducted by a neutral 

person, who need not be a judge; the prisoner must receive notice 

and have an opportunity to be present and speak, and to present 

written matters; and the hearing officer must prepare an informal 

summary of the findings. (A later, more thorough hearing, to be 

held within approximately 2 months is required under Morrissey; 

judicial review under Article 39(a) coupled with the trial itself 

fulfills these purposes for pretrial confinement). These requirements are virtually identical to those in R.C.M. 305(i)(l). The 

only requirement in Morrissey not present in 305 is that the 

hearing officer have discretionary power to call witnesses for 

purposes of confrontation. On the other hand, R.C.M. 305 

provides the prisoner with the opportunity to obtain counsel in all 

cases. This is not required for parole or probation revocation. 

Gagnon v. Scarpelli, 411 U.S. 778 (1973). 

Although parole and probation revocations differ from pretrial 

confmement 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 (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 in Gerstein 

applies to preventive detention hearings as well. United States v. 

Edwards, supra. 

The provision that the Military Rules of Evidence do not apply 

at the initial review parallels federal civilian practice. See 18 

U.S.C. 5 31460. 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, srrpra 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. hmb, 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 21 c of MCM, 1969 

(Rev.). 

This subsection establishes that the military judge has the 

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)(l)(B) and (C) of this rule, or information 

A21-19 
App. 21, R.C.M. APPENDIX 21 

not presented to the reviewing officer. This procedure is analogous to the appeal provisions in 18 U.S.C. 8 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. 

(It) 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. Lamer, 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 confmement 

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 includimg punitive discharges or reduction in grade. This 

is because these penalties are so qualitatively different from confinement that the fact that an accused has served confinement 

which was technically illegal should not automatically affect 

these fom 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. Lamer, supra. Usually 

the illegality will be determined by the trial judge, who shall also 

announce the remedy. After the sentence is announced, the military judge should announce on the record how the credit will 

apply to it. Where after application of this credit no confinement 

would remain to be served the accused should not be confined 

after trial. It is the responsibility of the convening authority to 

apply credit when action is taken on the sentence. See Article 57. 

(1) Confinement ajier 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 5b(4) and 5c of MCM, 1969 (Rev.);United States v. 

Charette, 15 M.J. 197 (C.M.A. 1983); United States v. Blaylock, 

15 M.J. 190 (C.M.A. 1983). See also Article 37; United States v. 

Hawthome, 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 convening authority or superior competent authority. See United 

States v. Charette, United States v. Blaylock both supra. But see 

4rticle 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 &gal and Legislative Basis, 

Manrral for Courts-Martial, United States, 19.51, 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. 1009 (1973); Mann v. United States, 304 F.2d 394 

(D.C.Cir.), celf, 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 30g of MCM, 

1969 (Rev.). Although it is guidance only, it is sufficiently impor- 
ANALYSIS App. 21, R.C.M. 

tant to warrant inclusion in the rules as a presidential statement. 

The second paragraph of the discussion provides guidelines for 

the exercise of the discretion to dispose of offenses. Guideline 

(A) is based on paragraph 33h of MCM, 1969 (Rev.). Guidelines 

(B) through (G) are based on ABA Standards, Prosecution Function $ 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 3-3.9(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 29b of MCM, 1969 (Rev.). 

The fust sentence of the first paragraph of the discussion is a 

new version of the former rule at paragraphs 5a(4) and 29c of 

MCM, 1969 (Rev.), which provided that "A person subject to the 

code ~ ~ ~ cannot be ordered to orefer 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. Withrop, 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 

discussio~l are no longer contingent upon the absence of pretrial 

arrest and confmement, 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 

from Article 30(a). This subsection is similar in purpose to 

Fed.R.Crim. P. 7(c)(l)'s requirement that the indictment or information "shall be signed by the attorney for the government." The 

same concept of requiring accountability for bringing allegations 

to trial appears again at R.C.M. 601 (referral). 

The first paragraph of the discussion is based on Article 30 and 

paragraph 114i of MCM, 1969 (Rev.). 

The last paragraph of the discussion is consistent with 

Fed.R.Crim. P. 4@). 

(c) How to allege offenses. Subsection (1) is based on paragraph 

24a of MCM, 1969 (Rev.). The nomenclature of charge and 

specification is imbedded in the code. Compare Articles 30, 

34(b), 43(b), 45(b), 54(a), 61, and 62 with Fed.R.Crim. P. 7(c)(l). 

Taking both the charge and 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)): it1 military practice 

the same charges progress through the pretrial system without any 

change in nomenclature, regardless of the level of court-martial 

by which they are ultimately disposed. See U.S. Const, amend. V. 

That further permits military practice to disregard waiver of indictment (Fed.R.Crim. P.7(b)) insofar as the pleadings are concerned. Finally, military practice does not involve criminal 

forfeitures in the same sense as federal civilian practice. Cf. 

Fed.R.Crim. P.7(c)(2). 

Subsection (2) is based on paragraph 24a and appendix 6a of 

MCM, 1969 (Rev.). The definition is consistent with that part of 

Fed.R.Crim. P.7(c)(l) which requires that "The indictment or 

information shall state for each count the official or customary 

citation of the statute, rule, regulation, or other provision of law 

which the defendant is alleged therein to have violated." The first 

paragraph of the accompanying discussion is based on paragraph 

27 and appendix 6a of MCM, 1969 (Rev.). The sources of the 

lettered subsections of the discussion are: 

(A) Numbering charges-paragraph 24, and paragraph 3 of 

appendix 6a of MCM, 1969 (Rev.); 

(B) Additional charges-id. 

(C) Preemption-Article 134; 

(D) Charges under the law of war-paragraph 12 of appendix 

6a of MCM, 1969 (Rev.). 

Subsection (3) restates Fed.R.Crim. P.7(c)(l) in military terms. 

That definition is consistent with paragraph 24a and Cllapter 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 87a(2) of MCM, 1969 (Rev.). Paragraph 29d 

of MCM, 1969 (Rev.) is deleted as unnecessary. A specific format for specifications is not prescribed. See also Introductory 

Discussion, Part IV. 

The sources of the lettered subsection of the accompanying 

discussion are: 

(A) Sample specifications-paragraph 26a of MCM, 1969 

(Rev.); 

(B) Numbering specificatio~ls-paragraph 3 of appendix 6a of 

MCM, 1969 (Rev.); 

(C) Name and description of the accused; 

(i) Name-paragraphs 4 and 5 of appendix 6a of MCM, 

1969 (Rev.); 

(ii) Military association-paragraph 4 of appendix 6a of 

MCM, 1969 (Rev.); 

(iii) Social Security or service number-paragraphs 4 and 6 

of appendix 6a of MCM, 1969 (Rev.) (note that the social security or service number ordinarily is entered in the data at the top 

of the charge sheet; see Appendix 4); and 

(iv) Basics of personal jurisdiction-United States v. AleJ 3 

M.J. 414 (C.M.A. 1977). See also Analysis, subsection (e)(3) 

Discussion (F) (Subject-matter jurisdiction) of this rule. 

@) Date and time of offense-paragraph 7 of appendix 6a 

A21-21 
App. 21, R.C.M. APPEN 

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 6a of MCM, 

1969 (Rev.); 

Subject-matter jurisdiction-United Siates v. Alef; supra. 

As to subsection (iii), United States v. Tromer, 9 M.J. 337 

(C.M.A. 1980) (jurisdiction over drug offenses). As to subsection 

(iv), United States v. Newvine, 23 U.S.C.M.A. 208, 48 C.M.R. 

960 (1974); United States v. Keaton, 19 U.S.C.M.R. 64, 41 

C.M.R. 64 (1969). 

The guidance here is not prescriptive, just as the inclusion of 

subject-matter jurisdiction in the sa-~ple 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 Ale$ 

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)(l)(A), and United States v. Ruiz, 4 

M.J. 85 (C.M.A.1977): United States v. Kuriger, 4 M.J. 84 

(C.M.A. 1977); United States v. Cherry, 4 M.J. 83 (C.M.A. 

1977); United States v. McCarthy, 2 M.J. 26, 2811.1 (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. Laos, 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 

determinations. See generally James, Pleadings and Practice 

under United States v. Alef; 20 A.F.L. Rev. 22 (1978). 

1995Amendment 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 overmled O'Callahan. 

(G) Description of offense.-The sources of the section are: 

(i) Elements-paragraph 28a(3) of MCM, 1969 (Rev.); 

(ii) Words indicating criminali-id.; 

(iii) Specificity-paragraphs 28a, 696, and 87a(2) of MCM, 

1969 (Rev.); 

(iv) Duplicity-paragraph 28b of MCM, 1969 (Rev.); accord, Fed.R.Crim. P.7,8. 

(H) Other considerations in drafting specifications.-The 

sources of the sections are: 

(i) Principals-paragraph 9 of appendix 6a of MCM, 

1969(Rev.); 

(ii) Victim-paragraph 10 of appendix 6a of MCM, 1969 

(Rev.); 

(iii) Proper-paragraph 13 of appendix 6a of MCM, 1969 

(Rev.); 

(iv) Value-paragraph 11 of appendix 6a of MCM, 1969 

(Rev.); 

(v) Documents-paragraph 28c, and paragraph 14 of appendix 6a of MCM, 1969 (Rev.); 

(vi) Orders--(a), (b)- id.; (c) Negating exceptions- United 

States v. Cuffee, 10 M.J. 381 (C.M.A. 1981); United States v. 

Gohagen, 2 U.S.C.M.A. 175, 7 C.M.R. 51 (1953); 

(vii) Oral Statements-paragraph 28c of MCM, 1969 

(Rev.); 

(viii) Joint offenses-paragraph 26d and paragraph 8 of appendix 6a of MCM, 1969 (Rev.); 

(ix) Matters in aggravation-paragraph 127c (Table of 

Maximum Punishments) of MCM, 1969 (Rev.); United States v. 

Venerable, 19 U.S.C.M.A. 174, 41 C.M.R. 171 (1970). 

Subsection (4) is less restrictive than the former and traditional 

military practice reflected at paragraphs 25, 26b and c of MCM, 

1969 (Rev.) which favored trial of all known offenses at a single 

trial, but complicated that policy with policies against joining 

major and minor offenses and accumulating charges. The confusion is eliminated by leaving to the discretion of the convening 

authority which charges and specifications will be tried. See 

R.C.M. 601(d) and accompanying discussion. The rule in this 

subsection does not follow Fed.R.Crim. P.8(a), because that rule 

is entirely too unwieldy for a military criminal system, particularly in combat or deployment. 

Subsection (5) follows Fed.R.Crim. P.S(b). The civilian rule is 

consistent with the former approach of paragraph 26d 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 331 of MCM, 1969 (Rev.). 

(d) Harmless error in citation. The subsection restates in military 

nomenclature Fed.R.Crirn. P.7(~)(3). The subsection is consistent 

with paragraphs 27 and 28c, and paragraph 12 of appendix 6a of 

MCM, 1969 (Rev.). It is not intended to provide a comprehensive 

rule on harmless error in drafting specifications. 

Rule 308. Notification to accused of charges 

(a) Immediate commander. This subsection paraphrases paragraphs 32fll) and 33c of MCM, 1969 (Rev.). See Article 30. This 

subsection deletes the requirement for a report of the circumstances that make compliance impossible. The use of a certif~cate 

of notification is encouraged in the discussion. The identification 

of known accusers, including persons who ordered charges to be 

preferred, is new and protects the accused against unauthorized 

acts by such persons. See Article l(9). 

The certificate requirement is abandoned only as a requirement, 

and use of such certificates remains advisable, since they give 

evidence of compliance with Article 10. However, to require a 

certificate might risk an excessive remedy for a mere administrative failure to complete the certificate properly. 

There is no precisely analogous rule in the federal 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 .information) all provide a civilian defendant with notice of the 

impending prosecution. 

The purpose of the subsection is to permit the accused to begin 

preparing a defense. United 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 
ANAL.YSIS App. 21, R.C.M. 

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 33c of MCM, 1969 (Rev.). 

(c) Remedy. This subsection is new and is based on the approach 

taken in United States v. Stebbins, supra, and consistent with 

paragraph 58 (continuances and postponements) of MCM, 1969 

(Rev.). 

CHAPTER IV. FORWARDING AND DISPOSITION 

OF CHARGES 

Rule 401. Forwarding and disposition of charges 

in general 

(a) Who may dispose of charges. This subsection is based on 

paragraphs 5, 32, 33, 35, and 128a of MCM, 1969 (Rev.). See 

Articles 15,2224. 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 30i of MCM, 1969 

(Rev.). The discussion is also based on paragraphs 30J 32b, c, 

Al), 33a, d, m, and 35a of MCM, 1969 (Rev.). 

(c) How charges may be disposed o$ This subsection is based on 

paragraphs 32 and 33 of MCM, 1969 (Rev.). Most matters in 

those paragraphs, including the mechanics of forwarding charges, 

have been placed in the discussion as the practices of the services 

vary because of differing command structures. Specific requirements and additional details may be provided by service 

regulations. 

(d) National security matters. This subsection is based on the 

fust sentence in the second paragraph of paragraph 33f of MCM, 

1969 (Rev.). See also R.C.M. 407(b) and Article 43(e). 

Rule 402. 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 @reliminary inquiry); 308 (notification of 

accused); 401 (forwarding charges; discussion of suspected insanity, joint or common trials); 601 (instructions in referral order; 

common trials); 603 (amending charges). See also R.C.M. 306. 

Rule 404. Action by commander exercising 

special court-martial jurisdiction 

This rule is new. Paragraph 33 of MCM, 1969 (Rev.) treated 

both special and summary court-martial convening authorities. 

See paragraph 33j(l) of MCM, 1969 (Rev.); Analysis, R.C.M. 

403. 

Rule 405. Pretrial investigation 

(a) In general. This subsection is based on Article 32(a) and (d) 

and paragraph 34a of MCM, 1969 (Rev.). Except insofar as the 

code requires otherwise, the rule is generally consistent with 

Fed.R.Crim. P.6 and 7. See generally Johnson v. Sayre, 158 U.S. 

109 (1895); Green v. Convening Authority, 19 U.S.C.M.A. 576, 

42 C.M.R. 178 (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 34a of MCM, 1969 (Rev.). The second sentence has 

been added based on Hutson v. United States, 19 U.S.C.M.A. 

437, 42 C.M.R. 39 (1970); United States v. Samuels, 10 

U.S.C.M.A. 206, 27 C.M.R. 280 (1959); Hearings on H.R. 2498 

Before a Subcoinm. 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 33e(2) of MCM, 1969(Rev.). The last 

paragraph in the discussion notes the possibility of waiver of the 

investigation. See subsection (k) of this rule and analysis. The 

Government is not required to accept waiver by the accused, and 

may conduct the investigation notwithstanding the accused's decision to waive it, since the investigation also serves the Govemment's interest. 

(b) Earlier investigation. This subsection is based on Article 

32(c) and paragraph 33e(l) of MCM, 1969 (Rev.). 

(c) Who may direct investigation. This subsection is new. There 

was previously no prescription of who had authority to direct an 

investigation under Article 32, although paragraph 33e of MCM, 

1969 (Rev.) suggested that the summary or special court-mnrtial 

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. 
App. 21, R.C.M. APPEl 

(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@) 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), (0, 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 34c 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 34a 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 34b, c, and d of MCM, 1969 (Rev.). As to subsection (f)(3), see also R.C.M. 804(b)(2) and Analysis. The accused 

may waive the right to be present. C$ 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 326) and the 

first sentence in the first paragraph and the first sentence in the 

third paragraph of paragraph 34d of MCM, 1969 (Rev.) as amplified in United States v. 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), afd., 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. 

1991 Amendment: Subsection (g)(l)(A) was amended by 

adding a requirement that a witness be located within 100 miles 

of the situs of the investigation to be "reasonably available." 

Given the altematives to testimony available under subsection 

(g)(4), a bright-line rule of 100 statute miles simplifies the 

"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)(l)(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 @)was amended to require 

the investigating officer to notify the appropriate authority of any 

requests by the accused for privileged information protected 

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 pri:,ileged information that the government 

agrees to release to the accused. The Discussion was amended to 

reflect the purpose of the notice requirement. 

Subsection (2) is new. The second sentence of the first paragraph of paragraph 34d 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 he 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 witness may make a determination of nonavailability which is 

reviewable only at trial. Therefore, subsection (2)(A) allocates the 

responsibilities for determining reasonable availability in accordance with the practical considerations involved. See generally 

United States v. Chestnut and United States v. Ledbetter, bothsupra; United States v. Cox, 48 C.M.R. 723 (A.F.C.M.R.), pet. 

denied, 23 U.S.C.M.A. 616 (1974). 

Subsection (2)(B) and the discussion are based on United 

States v. Robeiis,supra; United States v. Cliuculate, 5 M.J. 143 

(C.M.A. 1978); United States v. Chestn~rg supra and the first 

paragraph of paragraph 34d of MCM, 1969 (Rev.). 

Subsection (2)(C) applies a similar procedure for the production of evidence under the control of the. Government. If the 

investigating officer questions the decision of the commander in 

subsection (2)@) or the custodian in subsection (2)(C), the investigating officer may bring the matter to the attention of the commander who directed the investigation. When appropriate the 

matter can be pursued in command channels. It remains subject to 

judicial review on motion at trial. 

Subsection (3) is based on paragraph 34d of MCM, 1969 

(Rev.). 

Subsection (4) is based on the third and fourth paragraphs of 

paragraph 34d of MCM, 1969 (Rev.). See also United States v. 
ANAL.YSIS App. 21, R.C.M. 

Samuels, supra. 

I991 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 the 

military judge may issue under those rules. Though the 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 fust sentence is based on the first 

two sentences in the second paragraph of paragraph 34d of MCM, 

1969 (Rev.) and on United States v. Samuels, supra. The third 

sentence is based on the first sentence in the last paragraph of 

paragraph 34d 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), affd, 8 

U.S.C.M.A. 218, 24 C.M.R. 28 (1957). 

The first paragraph in the discussion is based on paragraph 

114j of MCM, 1969 (Rev.), except that the former oath has been 

divided into two oaths, one for the witness testifying at the investigation, the second to be given when the 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 34d of MCM, 1969 (Rev.). The 

admonition concerning the preservation of substantially verbatim 

notes and tapes of testimony at the end of the second paragraph 

has been added to avoid potential Jencks Act problems, 18 U.S.C. 

5 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 0of 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 rece. See generally United States v. Roberts, and United 

States v. Chestnut, both supra. Other matters will fall within the 

province of the commander who directed the investigation, in 

whom most pretrial judicial authority reposes at this stage. See 

generally United States v. Nix, 15 U.S.C.M.A. 578, 36 C.M.R. 76 

(1965). Nothing in R.C.M. 405 is intended to restrict the authority 

of the commander who directed the investigation to resolve issues 

involved in it, as long as that commander does not encroach upon 

the investigating officer's discretion and ability to personally 

make conclusions and recommendations. 

Subsection (3) is new and is based on MacDonald v. Hodson, 

19 U.S.C.M.A. 582, 42 C.M.R. 184 (1970). See also R.C.M. 806 

for examples of some reasons why a pretrial investigation hearing 

might be closed. Fed.R.Crim. P.6 is generally inapplicable due to 

its different nature and purposes; it requires closed proceedings. 

Subsection (3) is not intended to express any preference for 

closed or open hearings. 

(i) Military Rules 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 

provisions of Mil. R. Evid. 412 applicable at pretrial 

investigations. 

(j) Report of investigation. This suh7ection is based on paragraphs 34d and e of MCM, 1969 (Rev.). Ille provision for informal reports in paragraph 34f of MCM, 1969 (Rev.) has been 

deleted. Because R.C.M. 405 applies only if charges are ultimately referred to a general 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 

34e of MCM, 1969 (Rev.). 

Subsections (2)(A) through Q are based on Article 32(b) and 

paragraph 34e of MCM, 1969 (Rev.). Subsection (2)(F) is new 

but is consistent with current practice and with the need to account for pretrial delays in relation to speedy trial issues. Subsections (2)(G) and (H) are based on Article 32(a) and paragraph 340 

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 34e(6) of MCM, 1969 

(Rev.). 

Subsection (3) is based on the first sentence of paragraph 34e 

of MCM, 1969 (Rev.) which implemented the requirement of the 
App. 21, R.C.M. APPE 

last sentence of Article 320). 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 Q and Analysis. 

(k) Waiver. The first sentence is based on Article 34(a), as 

amended. Military Justice Act of 1983, Pub.L.No. 98-209, $ 

4(a)(2), 97 Stat. 1393 (1983), which expressly permits waiver of 

the Article 32 investigation. This is consistent with previous practice. See United 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) oi' 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. Cnrz, 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 

for which it has not received satisfactory relief. See R.C.M. 

905(b)(2); R.C.M. 906(b)(3). 

The last sentence in the discussion is based on United States v. 

Cumberledge and United States v. Chuculate, both supra. 

Rule 406. Pretrial advice 

(a) In general. This subsection is based on Article 34(a) as 

amended, Military Justice Act of 1983, Pub.L.No. 98-209, $ 4,97 

Stat. 1393 (1983); and on paragraph 35b of MCM, 1969 (Rev.). 

(b) Contents. This subsection is based on Article 34(a). It is 

consistent with paragraph 35c of MCM, 1969 (Rev.) (except 

insofar as Article 34 is modified). Matters which paragraph 35c 

said "should" be included are not required, but are listed in the 

discussion. The rule states the minimum necessary to comply 

with Article 34(a). Cf: United States v. Greenwalt, 6 U.S.C.M.A. 

569, 20 C.M.R. 285 (1955). 

The fust paragraph in the discussion is based on paragraph 35c 

of MCM, 1969 (Rev.) and United States v. Hardin, 7 M.J. 399 

(C.M.A. 1979); United States v. Greenwalt, supra; 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 35c of MCM, 1969 (Rev.). 

The last paragraph is based on United States v. Greenwalt, 

supra. See also United States v. Rivera, 20 U.S.C.M.A. 6, 42 

C.M.R. 198 (1970); United States v. Henry, 50 C.M.R. 685 

(A.F.C.M.R.), pet. denied, 23 U.S.C.M.A. 666, 50 C.M.R. 903 

(1975); United States v. Barfon, 41 C.M.R. 464 (A.C.M.R. 1969). 

1991 Amendment: The Discussion to R.C.M. 406(b) was 

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. 

(C) Distribution. This subsection is based on Article 34(b), as 

amended, Military Justice Act of 1983, Pub.L. No. 98-209, 

5 4(b), 97 Stat. 1393 (1983). Paragraph 35c of MCM, 1969 (Rev.) 

also required that the staff judge advocate's recommendation be 

forwarded with the charges if referred to trial. This subsection 

makes clear that the entire advice is to be forwarded. This ensures 

that the advice can be subjected to judicial review when necessary. See R.C.M. 906(b)(3). See also United States v. Collins, 6 

M.J. 256 (C.M.A. 1979); United States v. Engle, supra. 

Rule 407. Action by commander exercising 

general court-martial jurisdiction 

(a) Disposition. This subsection is based on Article 34(a) and 

paragraph 350 of MCM, 1969 (Rev.). See Article 22. 

(b) National security matters. This subsection is based on the 

second and third sentences of the second paragraph of paragraph 

33f of MCM, 1969 (Rev.) and Article 43(e). It has been 

broadened to expressly recognize the authority of service Secretaries to promulgate regulations governing disposition of sensitive 

cases. Note that the rule applies regardless of whether hostilities 

exist, although as the discussio~i 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 4a of MCM, 1969 (Rev.). 

(b) Counsel in general and special courts-martial. This subsection is based on Article 27(a). Except for the change concerning 

who details counsel (see R.C.M. 503(c)), it is consistent with 

paragraph 6a of MCM, 1969 (Rev.). This subsection includes 

reference to detailing associate defense counsel. This is based on 

Article 27(a), as amended Pub.L. No. 98-209, $ 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 46 and paragraph 4d of 

MCM, 1969 (Rev.). Factors which disqualify a person from serving as a member are listed in R.C.M. 912(f)(l). 

The discussion is based on the second paragraph of paragraph 

4b of MCM, 1969 (Rev.). 
ANArLYSlS App. 21, R.C.M. 

The references to use of members of the National Oceanic and 

Atmospheric Administration and of the Public Health Service 

carry forward the similar provision at paragraph 4b of MCM, 

1969 (Rev.). Similar provisions have been included in naval practice since at least 1937. See, e.g., Naval 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 

member of Coast Guard court-martial), decision below, 28 

C.M.R. 692 (C.G.B.R. 1959). Braud upheld the provision even 

though Article 25 is arguably ambiguous and the P.H.S. officer 

who served as a member had not been "militarized" and was not 

himself subject to the code. Cf 42 U.S.C. $ 217 (1976) (P.H.S. 

may be declared to be a military service in time of war; members 

become subject lo personal jurisdiction of Code); 33 U.S.C. 3: 855 

(NOAA may be transferred by President to military service in 

national emergency; members become subject to personal jurisdiction of Code); Art. 2(a)(8) (jurisdiction over members of Public Health Service and of Environmental Science Services 

Administration). The Environmental Science Services Administration, which succeeded the Coast and Geodetic Survey mentioned 

in some earlier Manuals, is now defunct. Its functions were transferred to the National Oceanic and Atmospheric Administration. 

Reorg. Plan No. 4 of 1970, 3 C.F.R. 1075 (1966-1970 Comp.), 

reprinted in 84 Stat. 2090. NOAA has only a commissioned 

officer corps. Id. $ 2(f); 33 U.S.C.A. $ 851 (Supp. 1981). P.H.S. 

has both commissioned and wmant officers. 42 $204 (Supp. 

1981). 

Subsection (2) and the discussion are based on paragraph 41a 

and b and the last paragraph of paragraph 53d of MCM, 1969 

(Rev.). The admonition of MCM, 1969 (Rev.) that misconduct by 

members may constitute an offense and that members should be 

attentive and dignified has been deleted as unnecessary. 

(b) President. Subsection (1) is based on paragraph 40a of MCM, 

1969 (Rev.). Subsections (2)(A) and (B) are based on paragraphs 

40b(l)(c) and (d) of MCM, 1969 (Rev.). Paragraphs 40b(l)(a) 

and (b) are deleted. Paragraph 40b(l)(a) conflicts with the authority of the military judge under R.C.M. 801(a)(l). Paragraph 

40b(l)(b) is unnecessary. Subsection (2)(c) is based on paragraph 

40b(2) of MCM, 1969 (Rev.). The general description of the 

duties of a president of a special court-martial without a military 

judge in paragraph 40b(2) is deleted here. Such a summarized 

description is an inadequate substitute for familiarity with the 

rules themselves. 

(c) Qualifcatiom of military judge. This subsection and the discussion are based on Article 26(b) and (c) and paragraph 4e of 

MCM, 1969 (Rev.). Reasons for disqualification are described in 

R.C.M. 902. 

(d) Counsel. Subsection (1) is based on Article 27(b) and paragraph 6 of MCM, 1969 (Rev.). The possibility of detailing associate counsel has 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 

other substantive change from MCM, 1969 (Rev.). has been 

made. Detailed defense counsel in special courts-martial must be 

certified by the Judge Advocate General concerned although this 

is not required by Article 27(c). Article 27(c) permits representation of an accused by a counsel not qualilied 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 6c of MCM, 1969 (Rev.). 

Subsection (3) is based on the first sentence of the second 

paragraph of paragraph 48a of MCM, 1969 (Rev.) and on Soriano 

v. Hosken, 9 M.J. 221 (C.M.A. 1980); United States v. Kraskouskas, 9 U.S.C.M.A. 607,26 C.M.R. 387 (1958). The discussion is 

taken from Soriano v. Hosken, supra. 

Subsection (4) is based on Article 27(a) and on the fourth and 

fifth sentences of paragraph 6a of MCM, 196"ev.). 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 Standnrds, 

The Prosecution Function, $13-l(c); 3-3.9(~)(1979). 

Subsection (5) is based on paragraph 44d and 45a of MCM, 

1969 (Rev.) and on Article 38(d). The forurn-based distinction as 

to the powers of an assistant trial counsel has been deleted. The 

trial counsel is responsible for the prosecution of the case. R.C.M. 

805(c) requires the presence of a qualified trial counsel at general 

courts-martial. The discussion is based on paragraphs 44e. 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 46d 

and 48c of MCM, 1969 (Rev.). The second sentence of subsection (6) is based on Article 38(e). The rule does not require that 

defense counsel in the court-martial represent the accused in n.1-

ministrative or civil actions arising out of the same offenses. The 

discussion is based on paragraphs 46d. 47, and 48c, d, e, f; g, h, j, 

and k of MCM, 1969 (Rev.). The matters covered in paragraph 

48k(2) and (3) of MCM, 1969 (Rev.) are modified in the discussion based on the amendment of Articles 38(c) and 61. See 

Military Justice Act of 1983, Pub.L. No. 98-209, $$ 3(e)(3), 

5(b)(l), 97 Stat. 1393 (1983). See R.C.M. 1105; 1110. As to 

associate counsel, see the Analysis subsection (d)(l) of this rule. 

See also United States v. Breese, 11 M.J. 17, 22 n. 13 (C.M.A. 

1981); United States v. Rivas, supra; United States v. Palenilu, 2 

M.J.86 (C.M.A. 1977); United Stares v. Goode, 1M.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 qualifica- 
App. 21, R.C.M. APPEI 

tion. This subsection is based on paragraphs 41c, 44b, 46b of 


MCM, 1969 (Rev.). 


Rule 503. Detailing members, military judge, and 

counsel 

(a) Members. Subsection (1) is based on Article 25. Because of 


the amendment of Articles 26 and 27, the convening authority is 


no longer required to 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 4b of MCM, 


1969 (Rev.) is deleted as unnecessary. The second paragraph in 


the discussion serves the same purpose as the third paragraph of 


paragraph 4b of MCM, 1969 (Rev.): to alert the convening au- 


thority 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 per- 


sons, since the disqualifications are waivable. See Analysis, 


R.C.M. 912(f)(4). 

Subsection (2) is based on Article 25(c) and the third paragraph 

of paragraph 4c of MCM, 1969 (Rev.). The discussion is based 

on paragraph 36c(2) of MCM, 1969 (Rev.). 

1956 Amendment: Subsection (2) was amended to reflect an 

amendment to Article 25(c)(l), UCMJ, in the "Military Justice 

Amendments of 1986," tit. VIII, 5 803, 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 4f and g of MCM, 1969 

(Rev.). Subsection (3) combines treatment of members from a 

different command and those from a different armed force. The 

power of a commander to detail members not under the convening authority's command is the same whether the members are in 

the same or a different armed force. Therefore each situation can 

be covered in one rule. The discussion repeats the preference for 

members, or at least a majority thereof, to be of the same service 

as the accused which was found in paragraph 4g(l) of MCM, 

1969 (Rev.). Permission 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)(l), 97 Stat. 1393 (1983). The convening authority 

is no longer required to detail personally the military judge. Id. 

Subsection (1) requires that responsibility for detailing military 

judges will be in judicial channels. See Hearings on S.2521 

Before the Subcomm. on Manpower and Personnel of the Senate 

Comm. on Amed 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, 

8 3(c)(2), 97 Stat. 1393 (1983). The convening authority is no 

longer required to detail personally the counsel. Id. Efficient docation of authority for detailing counsel will depend on the organizational structure and operational requirements of each 

service. Therefore, specific requirements will be provided in service regulations. Subsection (2) is intended to make detailing counsel administratively efficient. See S. Rep. No. 53, 98th Cong., 1st 

Sess. 3-5, 12 (1983); H.R. Rep. No. 549, 98th Cong., 1st Sess. 

13-14 (1983). Counsel are not a jurisdictional component of 

courts-martial. Wright v. United States, 2 M.J. 9 (C.M.A. 1976). 

Any irregularity in detailing counsel would result in reversal only 

if specific prejudice 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 36b of MCM, 1969 (Rev.). 

(b) Who may convene courts-mallial. Subsection (1) is based on 

Article 22 and paragraph 5a(l) of MCM, 1969 (Rev.). The power 

of superiors to limit the authority of subordinate convening authorities is based on paragraph 5b(4) of MCM, 1969 (Rev.). 

Although that paragraph applied only to special and summary 

courts-martial, the same principle applies to general courts-martial. See Article 22(b). See generally United States v. Hardy, 4 

M.J. 20 (C.M.A. 1977); 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). The discussion is based on the second and third sentences 

of paragraph 5a(5) of MCM, 1969 (Rev.). 

Subsection (2) is based on Article 23 and paragraphs 5b(l), (3), 

and (4) of MCM, 1969 (Rev.). 

As to subsection (3). see Analysis, R.C.M. 1302(a). 

Subsection (4) is based on the first sentence of paragraph 5a(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@) 

and 23(b) and on paragraph 5a(3) of MCM, 1969 (Rev.). See also 

Article l(5) and (9); United States v. Haygood, 12 U.S.C.M.A. 

481, 31 C.M.R. 67 (1961); United States v. LaGrange, 1 

U.S.C.M.A. 342,3 C.M.R. 76 (1952); United States v. Kostes, 38 

C.M.R. 512 (A.B.R. 1967). 

(d) Convening orders. This subsection is based on paragraph 36b 

of MCM, 1969 (Rev.) with two substantive modifications. First, 

in conformity with the amendment of Articles 26(a) and 27(a), 

see Military Justice Act of 1983, Pub. L. No. 98-209, $ 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 366 are not included 

here. These may be required by service regulations. Summary 

courts-martial are treated separately from general and special 

courts-martial because of their different composition. 

(e) Place. Tlus subsection is new. It derives from the convening 

authority's power to fix the place of trial (see also R.C.M. 

906(b)(ll)) and from the convening authority's control of the 

resources for the trial. It does not change current practice. 
ANALYSIS App. 21, R.C.M. 

Rule 505. Changes in members, military judge, 

and counsel 

(a) In general. This subsection is based on the first sentence of 

paragraph 37a of MCM, 1969 (Rev.) except that it has been 

modified to conform to the amendment of Articles 26(a) and 

27(a). See Military Justice Act of 1983, Pub. L. No. 98-209, 

13(c), 97 Stat. 1393 (1983). The discussion is based on the third 

and fourth sentences of paragraph 37c of MCM, 1969 (Rev.). 

(b) Procedure. This subsection is based on the fust two sentences 

of paragraph 37c(l) and on paragraph 37c(2) of MCM, 1969 

(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 376 

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 37b and c, and 39e of MCM, 1969 

(Rev.). The limitation on the authority of the convening authority's delegate to excuse no more than one-third of the members is 

based on S. Rep. No. 53, 98th Cong., 1st Sess. 13 (1983). 

(d) Changes of detailed counsel. Subsection (1) is based on that 

part of the second sentence of paragraph 37a of MCM, 1969 

(Rev.) which covered trial counsel. 

Subsection (2) is new and conforms to the amendment of 

Article 27(a) concerning who details counsel. Subsection (2)(A) is 

consistent with that part of the second sentence of paragraph 37a 

of MCM, 1969 (Rev.) which dealt with defense counsel. Subsection (2)@) is based on Article 38(b)(5); United States v. Can, 1 

M.J. 41 (C.M.A. 1975); United States v. Timberlake, 22 

U.S.C.M.A. 117, 46 C.M.R. 117 (1973); United States v. 

Andrews, 21 U.S.C.M.A. 165, 44 C.M.R. 219 (1972); United 

States v. Massey, 14 U.S.C.M.A. 486, 34 C.M.R. 266 (1964). 

(e) Change of military judge. This subsection is based on Articles 

26(a) and 29(d) and on paragraph 39e of MCM, 1969 (Rev.). See 

also United States v. Smith, 3 M.J. 490 (C.M.A. 1975). 

(0 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 48a of MCM, 1969 (Rev.), which was based 

on Article 38(b) as amended. Act of November 20, 1981, Pub. L. 

No. 97-81; 95 Stat. 1085. Note that the amendment of Article 

38(b) effectively overruled United States v. Jordan, 22 

U.S.C.M.A. 164, 46 C.M.R. 164 (1973), which held that an accused who has civilian counsel is not entitled to individual military counsel. The amendment of Article 38(b) provides that the 

accused may be represented by civilian counsel "and" by detailed 

or requested military counsel instead of civilian counsel "or" 

requested military counsel as it formerly did. See also H.R. Rep. 

No. 306, 97th Cong., 1st Sess. 4-7 (1981). 

Nothing in this rule is intended to limit the authority of the 

military judge to ensure that the accused exercises the rights to 

counsel in a timely fashion and that the progress of the trial is not 

unduly impeded. See Morris v. Slappy, 461 U.S. (1983), 33 Cr.L. 

Rptr. 3013 (1983); United States v. Montoya, 13 M.J. 268 

(C.M.A. 1982); United States v. Kinard, 21 U.S.C.M.A. 300, 45 

C.M.R. 74 (1972); United States v. Brown, 10 M.J. 635 

(A.C.M.R. 1980); United States v. Alicea-Baez, 7 M.J. 989 

(A.C.M.R. 1979); United States v. Livingston, 7 M.J. 638 

(A.C.M.R. 1979), affd 8 M.J. 828 (C.M.A. 1980). See also 

United States v. Johnson, 12 M.J 670 (A.C.M.R. 1981); United 

States v. Kilby, 3 M.J. 938 (N.C.M.R.), pet. denied, 4 M.J. 139 

(1977). 

(b) Individual military cortnsel. Subsection (1) is based on paragraphs 48b(l) 'and (2) of MCM, 1969 (Rev.). See also Article 

38(b); H.R. Rep. No. 306, supra at 5-7; United States v. Kelker, 

4 M.J. 323 (C.M.A. 1978); United States v. Eason, 21 

U.S.C.M.A. 335, 45 C.M.R. 109 (1972); United States v. Murray, 

20 U.S.C.M.A. 61,42 C.M.R 253 (1970). The second sentence of 

the last paragraph of this subsection has been modified based on 

the amendment of Article 38(b)(7), Military Justice Act of 1983, 

Pub. L. No. 98-209, 13(e)(2), 97 Stat. 1393 (1983). 

Subsection (2) is taken from paragraph 48b(3) of MCM, 1969 

(Rev.). See also Article 38(b)(7). It ensures substantial uniformity 

in procedure among the services for handling requests for individual military counsel. 

Subsection (3) is based on the fourth through eighth sentences 

in the second paragraph of paragraph 46d of MCM, 1969 (Rev.) 

and 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, 5 3(e)(l), 97 Stat. 1393 (1983). 

(c) Exusal 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 thud sentence of the 

second paragraph of paragraph 48a of MCM, 1969 (Rev.) and on 

Faretta v. California, 422 U.S. 806 (1975). As to the last two 

sentences, see id. at 834 11.46. 

(e) Nonlauyer present. This subsection is based on the last sentence of the second paragraph of paragraph 48a of MCM, 1969 

(Rev.). 

CHAPTER VI. REFERRAL, SERVICE, 

AMENDMENT, AND WITHDRAWAL OF CHARGES 

Rule 601. Referral 

(a) In general. This definition is new. MCM, 1969 (Rev.) did not 

define "reierral." 

(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 5b(4) and 5c 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 

A21-29 
App. 21, R.C.M. APPENDIX 21 

court-martial in parallej lerms in relation to referral. See Articles 

22(b), 23(b). Cf.Article 24(b). The discussion follows paragraph 

33i of MCM, 1969 (Rev.). 

(d) When charges may be referred. Subsection (1) is new. Neither the code nor MCM, 1969 (Rev) have previously provided a 

standard for referral except in general courts-martial. See Article 

34(a). Subsection (I) promotes efficiency by helping to prevent 

groundless charges from being referred for trial. This is consistent 

with Fed. R. Crim. P. 5.l(a). Accord ABA Standards Prosecution 

Function section 3-3.9(a) (1979). Consistent with the amendment 

of Article 34, subsection (1) does not require the convening authority to evaluate the legal suff~ciency of the case personally. In 

general courts-martial the legal sufficiency determination must be 

made by the staff judge advocate. See Article 34(a) and subsection (3)(2) of this rule. Subsection (1) requires a similar determination in all courts-martial, including special and summary 

courts-martial. Because of the 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 A~med 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 

general courts-martial. It appears that the reasonable grounds 

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. Kaufin, 33 C.M.R. 748, 795 

(A.F.B.R.), rev'd on other grounds, 14 U.S.C.M.A. 283, 34 

C.M.R. 63 (1963). Cf: Gerstein v. Pugh, 420 U.S. 103 (1975). 

Subsection (2) restates the prerequisites for referral to a general 

court-martial of Articles 32 and 34. It is consistent with paragraphs 30c and d, 34a, and 35 of MCM, 1969 (Rev.) except 

insofar as the amendment of Article 34 (see Military Justice Act 

of 1983, Pub. L. No. 98-209, 8 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 in 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 33j(l) of MCM, 1969 (Rev.). The personal responsibility of the convening authority to decide whether to refer 

and how to refer is emphasized, but the discussion makes clear 

that the administrative aspects of recording that decision may be 

delegated. 

The discussion's instructions for subsequent referrals are based 

on paragraph 33j(l) of MCM, 1969 (Rev.). 

The special case of referrals to summary courts-martial by the 

only officer present in command follows paragraph 33j(l) of 

MCM, 1969 (Rev.) and Article 24(b). 

The discussion of limiting instructions follows paragraphs 

33j(l) and k of MCM, 1969 (Rev.). The advice that convening 

authorities be guided by the criteria for capital punishment found 

at R.C.M. 1004 is new. See Gregg v. Georgia, 428 U.S. 153, 225 

(1976) (Whlte, 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 33j(2) of MCM, 1969 (Rev.). 

Subsection (2) is less restrictive than the previous military rule 

found at paragraphs 26b and c of MCM, 1969 (Rev.), which 

cautioned against joining major and minor offenses. This rule is 

inconsistent with Fed. R. Crim. P. 8(a), which requires (in general) separate trials for each offense. Such a requirement is too 

unwieldy to be effective, particularly in combat or deployment. 

Joinder is entirely within the discretion of the convening authority. The last two sentences of the rule dealing with additional 

charges are based on paragraph 656 of MCM, 1969 (Rev.). The 

discussion encourages economy, following paragraph 33h of 

MCM, 1969 (Rev.). The last sentence in subsection (2) is new 

and cld~es 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 fxst two sentences of subsection (3) restate Fed. R. Crim. 

P. 8(b) in military nomenclature. They are consistent with the 

approach taken by paragraph 26d of MCM, 1969 (Rev.). The last 

sentence is based on paragraph 331 of MCM, 1969 (Rev.). There 

is no counterpart in federal civilian practice. 

(f) Referral by other convening authorities. This new provision 

reflects the principle that a subordinate convening authority's 

decision does not preempt 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. 

1983). See also Analysis, R.C.M. 306(a), Analysis, R.C.M. 

905(g), and Analysis, R.C.M. 907(b)(2)(C). 

Rule 602. Service of charges 

This rule is based on Article 35 and paragraph 44h of MCM, 

1969 (Rev.). Fed. R. Crim. P. 9 is consistent in purpose with this 

rule, but not in structure. The warrant system of Fed. R. Crim. P. 

9(a), (b)(l), and (c)(2) is unnecessary in military practice. The 

remand provision of Fed. R. Crim. P. 9(d) is inconsistent with the 

structure of military procedure but consistent with the convening 

authority's discretion to refer charges to a minor forum. See 

R.C.M. 306. The provision of Fed. R. Crim. P. 9(c) for service by 

mail or delivery to a residence is inconsistent aitll Article 35. 

Rule 603. Changes to charges and specifications 

(a) Minor changes defined. This defintion and the discussion 

consolidate the tests and examples found at paragraphs 33d, 

44fl1), and 696(1) of MCM, 1969 (Rev.). They are consistent 

with Fed. R. Crim. P. 7(e). 
ANALYSIS App. 21, R.C.M. 

(b) Minor changes before arraignment. This provision is based 

on and consolidates the authority of various persons to make 

minor changes as stated at paragraphs 33d and 44fl1) of MCM, 

1969 (Rev.). It is inappropriate for an Article 32 investigating 

officer to make changes, but an investigating officer may recommend changes. See also Article 34(b) which provides authority 

for the staff judge advocate or legal officer to amend charges or 

specifications for the reasons stated therein. 

(c) Minor changes 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 33d 

and 33e(2) of MCM, 1969 (Rev.). See also Article 34(b) which 

provides authority for the staff judge advocate or legal officer to 

amend charges or specifications for the reasons stated therein. 

Rule 604. Withdrawal of charges 

(a) Withdrawal. This rule is based on paragraphs 5a(6) and 560 

of MCM, 1969 (Rev.). The rule parallels Fed. R. Crim. P. 48(a), 

but leave of the court is not required for the convening authority 

to withdraw (or dismiss) charges and specifications. This would 

be inconsistent with the responsibilities of the convening authority under the Code. See Articles 34 and 60. The potential abuses 

which the leave-of-court requirement in the federal rule are designed to prevent are adequately prevented by the restraint on a 

later referral of withdrawn charges in the subsection (b). 

The first paragraph in the discussion is new. It recognizes the 

distinction between withdrawal of charges, which extinguishes the 

jurisdiction of a court-martial over them, and dismissal of 

charges, which extinguishes the charges themselves. The discussion cautions that withdrawn charges, Iike any other unreferred 

charges, should be disposed of promptly. Dismissal of charges 

disposes of those charges; it does not necessarily bar subsequent 

disposition of the underlying offenses (see Analysis, R.C.M. 

306(a)), although a later preferral and referral would raise the 

same issues as are discussed under subsection (b). 

The second paragraph in the discussion is based on the last 

sentence of paragraph 56a of MCM, 1969 (Rev.). 

The third paragraph in the discussion is based on the second 

and fourth sentences in paragraph 56a of MCM, 1969 (Rev.). 

The first sentence of the fourth paragraph is based on the third 

sentence of paragraph 56a of MCM, 1969 (Rev.) and United 

States v. Charette, 15 M.J. 197 (C.M.A. 1983); United States v. 

Blaylock, 15 M.J. 190 (C.M.A. 1983). The remainder of this 

paragraph is based on the second sentence of paragraph 56a and 

paragraph 56d of MCM, 1969 (Rev.). 

(b) Referral of withdrawn charges. This rule is based on paragraphs 33j(l) and 56 of MCM, 1969 (Rev.) and numerous decisions. See, e.g., United States v. Charette, United States v. 

Blaylock, and United States v. Hardy, all supra; United States v. 

Jackson, 1 M.J. 242 (C.M.A. 1976); United States v. Walsh, 22 

U.S.C.M.A. 509, 47 C.M.R. 926 (1973); Pefty 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 56b 

and c of MCM, 1969 (Rev.) which were in turn based on Wade v. 

Hunter, 336 U.S. 684 (1949); Jkgal and kgislative Basis, Manual for Courts-Martial, United States, 1951 at 64. See Article 44. 

The second sentence of paragraph 56b of MCM, 1969 (Rev.) has 

been deleted. That sentence suggested that withdrawal after introduction of evidence on the merits for veasons other than urgent 

and unforeseen military necessity would not bar re-referral in 

some cases. If further prosecution is contemplated, such other 

possible grounds for terminating the trial after introduction of 

evidence has begun are more appropriately subject to a judicial 

determination whether to declare a mistrial under R.C.M. 915. 

The first paragraph in the discussion contains a cross-reference 

to R.C.M. 915, Mistrial. Paragraph 56 of MCM, 1969 (Rev.) dealt 

with both withdrawal and mistrial. This was unnecessary and 

potentially confusing. Although the effect of a declaration of a 

mistrial may be similar to that of withdrawal, the narrow legal 

bases for a mistrial (see United States v. Simonds, 15 U.S.C.M.A. 

641, 36 C.M.R. 139 (1966)) should be distinguished from 

withdrawal, which involves a far wider range of purposes and 

considerations. See Analysis, R.C.M. 915. 

The second paragraph in the discussion is based on paragraph 

56b of MCM. 1969 (Rev.). Unlike Daragraph 56b. 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 Stutes v. Blaylock, supra 

at 192 n.1; United States v. Hardy, supra. 

The thud 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 566 and c of MCM, 1969 (Rev.), but more specificity 

is provided as to proper reasons for withdrawal and its effect at 

certain stages of the proce.~liogs. The grounds for proper 

withdrawal and later referral are based on United States v. 

Charette, United States v. Blaylock, United States v. Jackson, all 

supra; United States v. Lord, 13 U.S.C.M.A. 78, 32 C.M.R. 78 

(1962); and current practice. United States v. Hardy and United 

States v. Walsh, both supra, indicate that the commencement of 

court-martial proceedings is, by itself, not important in analyzing 

the propriety of withdrawal. Arraignment is normally the first 

significant milestone for the same reasons that make it a cut-off 

point for other procedures. See, e.g., R.C.M. 601; 603; 804. It 

should be noted that assembly of the 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 generally ABA Standards, Discovery and Procedure Before Trial 

(1978). For reasons stated below, the rule provides for broader 

discovery than is required in Federal practice. See Fed. R. Crim. 

P. 12.1; 12.2; 16. See also 18 U.S.C. 5 3500. 

Military discovery practice has been quite liberal, although the 

sources of this practice are somewhat scattered. See Articles 36 

and 46; paragraphs 34, 44h, and 115c of MCM, 1969 (Rev.). See 
App. 21, R.C.M. APPE 

also United States v. KiNebrew, 9 M.J. 154 (C.M.A. 1980); 

United States v. Cumberledge 6 M.J. 203, 204 n.4 (C.M.A. 1979). 

Providing broad discovery at an early stage reduces pretrial motions practice and surprise and delay at trial. It leads to better 

informed 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 fust 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 

specificity what materials are sought. When obviously discoverable materials are in the trial counsel's possession, trial 

counsel should provide them to the defense without a request. 

"Inspect" includes the right to copy. See subsection (h) of this 

rule. 

Fed. R. Crim. P. 16(a)(l)(A) is not included here because the 

matter is covered in Mil. R. Evid. 304(d)(l). The discussion under 

subsection (a)(6) of this rule lists other discovery and notice 

provisions in the Military of Evidence. 

Subsection (1) is based on paragraph 44h of MCM, 1969 

(Rev.). See also paragraph 33i, id. 18 U.S.C. 5 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 115c of MCM. 1969 

(Rev.) and parallels Fed. R. Crim. P. 16(a)(l)(C) and (D). 

Subsection (3)(A) is based on the last sentence in the second 

paragraph of paragraph 44h 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)(!3) is based 

on Fed. R. Crim. P. 12.l(b). Fed. R. Crim. P. 12.2 (notice based 

on mental condition) contains no parallel requirement for disclosure of rebuttal witnesses by the prosecution. The defense will 

ordinarily have such information because of the accused's participation in any court-ordered examination, so the distinction 

diminishes in practice. In the interest of full disclosure and fairness, subsection (3)(B) requires the prosecution to notify the defense of rebuttal witnesses on mental responsibility. See also 

R.C.M. 706. 

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)(l)(B). The 

language is modified to make clear that the rule imposes no duty 

on the trial counsel to seek out prior convictions. (There is an 

ethical duty to exercise reasonable diligence in doing so, however. See ABA Code of Professional Responsibility, DR 

6101(A)(2); EC 64(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 75b(5) of MCM, 1969 

(Rev.) C$ 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.l(c) (1978). See also United States v. 

Agrrrs, 427 U.S. 97 (1976); Brady v. Maryland, 377 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)(l)(A) and (B). See generally Williams v. Florida, 399 U.S. 78 (1970). The requirement in Fed. R. 

Crim. P. 12.1 for a written request by the prosecution for notice 

of an alibi defense was deleted because it would generate unnecessary paperwork. The accused is adequately protected by the 

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 Amnzendment: Subsection (b)(l) has been revised to expand the open discovery that is characteristic oi rililitary 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 

requirements by the defense will better serve to foster the truthfinding process. 
ANALYSIS 	 App. 21, R.C.M. 

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. 

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 sewicemember 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)l. 

(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. Grim. 12.l(f). Because notice of witnesses under 

R.C.M. 701 is required or otherwise encowaged (see also R.C.M. 

703), such a provision is necessary in these rules. 

(d) Continuing duty to disclose. This subsection is based on Fed. 

R. Crim. P. 16(c). See also ABA Standards, Discovery and Procedure Before Trial $11-4.2 (1978). 

(e) Access to witnesses and other evidence. This subsection is 

based on Article 46; paragraphs 42c and 48h of MCM, 

(Rev.); United States v. Kjllebrew, supra; Halfacre, v. Chambers, 

supra; United v, Enloe, 15 U,S.C.M.A, 256, 35 C.M.R. 

228 (1965); United 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 interferencewith 

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. 

1986Amendment. 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. 

Lowery, 18 M.J. 695 (A.F.C.M.R. 1984); United States 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 nor subject to disclosure. This subsection is based 

on the privileges and protections in other rules (see. ex., Mil. R. 

Evid. 301 and Section V). See also Goldberg v. United States, 

425 U.S. 94 (1976); United States v. Nobles, 422 U.S. 225 

(1975); ~ickmanv. Taylor, 329 U.S. 495 (1947). It differs from 

~ed.R. rim. P. 16(a)(2) because of the broader discovery requirements under this rule. Production under the Jencks Act, 18 

U.S.C. 8 3500, is covered under R.C.M. 914. 

(g) 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)(l). CJ: 

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 corporates the noncompliance provision of Fed. R. Crim. 

P.12.l(d) and 12.2(d). But see Williams v. Florida, supra at 83 n. 

14; Alicea v. Gagnon, 675 F. 2d 913 (7th Cir. 1982). The discussion is based on United States v. Myers, 550 F.2d 1036 (5th Cir. 

1977), cert. denied, 430 r1.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 resewed to cases where the accused has willfully and 

blatantly violated applicable discovery rules, arid alternative sanctions could not have minimized the prejudice to the Government. 

See Chappee v. Commonwealth Massachrtseffs, 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. Grim. P. 15(a). The language concerning referral of 

charges is added based on Article 49(a). he 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 but when there is a 'pecific need ulider the 

circumstances. As used in Fed. R. Grim. 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[11; 15.03 (1982 rev.ed.1; 

United States v. Singleton, 460 F.2d 1148 (2d Cir. 1972). A 

deposition is not a discovery device under the Federal n~le. 8.5. 

Moore, supra Para. 15.02[1]. See also United States v. Rich, 580 

F.2d 929 (9th Cir.), cert. denied, 439 U 9.935 (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 testimonyof unavailable witnesses for use at trial. see 

Mcle 49; Hearings on H.R. 2498 Before a Srtbcomm. of the 

corn,. on services 81st tong. lst sess. 1064-1070 

(1949). 

The fust paragraph in the discussion is based on Article 49(d) 

and (f) and on paragraph 117a of MCM, 1969 (Rev.). The second 

and third paragraphs are based on Article 49(d), (e), and (f): 

paragraph 117b(ll) 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)(l), see United States v. Davis, 19 U.S.C.M.A. 217, 

41 C.M.R. 217 (1970). See also United States v. Bennen, 12 M.J. 

463, 471 (C.M.A. 1982); United States v. Gaines, 20 U.S.C.M.A. 

A21-33 
App. 21, R.C.M. APPEl 

557, 43 C.M.R. 397 (1971); United States v. Bryson, 3 

U.S.C.M.A. 329, 12 C.M.R. 85 (1953). The fourth paragraph in 

the discussion is based on paragraphs 75b(4) and 75e of MCM, 

1969 (Rev.). 

(b) Who may order. This subsection is based on Article 49(a) and 

on the second and third sentences of paragraph 117b(l) of MCM, 

1969 (Rev.). As noted in subsection (i) the express approval of a 

competent authority is not required in order to take a deposition. 

See also United States v. Ciarletta, 7 U.S.C.M.A. 606, 23 C.M.R. 

70 (1957). Express approval may be necessary in order to secure 

the necessary 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 117b(l) of MCM, 1969 (Rev.). The discussion is based on the fourth sentence of that paragraph. Subsection 

(2) is based on the fifth and sixth sentences in paragraph 117b(l). 

Subsection (3)(A) is based on Article 49(a). The discussion 

provides 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 essential witness who was unavailable at the Article 32 hearing); 

United States v. Chestnut, 2 M.J. 84 (C.M.A. 1976) (deposition 

may be an appropriate means to cure error where witness was 

improperly found unavailable at Article 32 hearing). Chuculate 

and Chestnut have construed Article 49 as 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@)(7). 

Subsection (3)@) is based on the fust sentence of paragraph 

117b(l) and on paragraphs 75b(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, both supra. 

(d) Action when request is approved. Subsection (1) and its discussion are new. See Article 49(c). Detailing the deposition officer is a ministerial act. When it is intended that the deposition 

officer issue a subpoena, it is important that the deposition officer 

be properly detailed. In other cases, proper detailing is not of 

critical importance so long as the deposition officer is qualified. 

C$ United States v. Ciarletta, supra. 

Subsection (2) is based on paragraph 117b of MCM, 1969 

(Rev.). That paragraph provided that the accused would have the 

same rights to counsel as that for the trial at which the deposition 

could be used. Under R.C.M. 502, the accused has the right to 

qualified counsel at both general and special courts-martial. If a 

summary court-martial is intended, ordinarily there is no need for 

an oral deposition; instead, the summary court-martial should be 

detailed and proceed to call the witness. Under subsection 

(g)(2)(A) the accused at a summary court-martial is not entitled to 

counsel for a written deposition. The first paragraph in the discussion is based on United States v. Can, 1 M.J. 41 (C.M.A. 1975); 

United States v. Timberlake, 22 U.S.C.M.A. 117, 46 C.M.R. 117 

(1973); United States v. Gaines, supra. See also R.C.M. 

505(d)(2)@) and analysis. The second paragraph in the discussion 

is based on the second sentence in paragraph 117b(2) of MCM, 

1969 (Rev.). The rule does not prohibit the accused from waiving 

the right to counsel at a deposition. See R.C.M. 506(d); United 

States v. Howell, 11 U.S.C.M.A. 712, 29 C.M.R. 528 (1960). 

Subsection (3) is new and reflects the ministerial role of the 

deposition officer. 

(e) Notice. This subsection is based on Article 49@) and paragraph 117b(4) of MCM, 1969 (Rev.). It is consistent with Fed. R. 

Crim. P. 15(b). See generally United States v. Donati, 14 

U.S.C.M.A. 235, 34 C.M.R. 15 (1963). 

(f) Duties of the depositiop oficer. This subsection is based on 

paragraphs 117b(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 (l)(A) is based on paragraph 1 '742) 

of MCM, 1969 (Rev.); Fed. R. Crim. P. 15@). See also United 

States v. Donati, supra. Subsection (I)@) is based on paragraph 

117b(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 

117b(2) and paragraph 117c of MCM, 1969 (Rev.). Subsection 

(2)@) is based on paragraph 117c of MCM, 1969 (Rev.). Note 

that if the accused and counsel can be present, it ordinarily is 

feasible to conduct an oral deposition. Written interrogatories are 

expressly provided for in Article 49. 

Subsection (3) is new and is based on Article 49(d) and (f), as 

amended, Military Justice Act of 1983, Pub. L. No. 98-209, 

8 6@), 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 i~raterial. Nothing in this rule is intended to require that a 

deposition be recorded by videotape, audiotape, or similar material. Factors the convening authority or military judge may consider 

include the availability of a qualified reporter and the availability 

of recording equipment. See also United States v. Vietor, 10 M.J. 

69, 77 n.7 (C.M.A. 1980) (Everett, C.J., concumng in the result). 

(h) Objections. This subsection is based on the second and third 

sentences of the penultimate paragraph of paragraph 117b of 

MCM, 1969 (Rev.) and on Fed. R. Crirn. P. 15(f). The waiver 

provisions are more specific than in paragraph 1176 in order to 

ensure that objections are made when the defect arises. This 

promotes efficiency by permitting prompt corrective action. See 

Fed. R. Crim. P.l5(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. Ciarlena supra. 

App. 21, R.C.M. APPENDIX 21 

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 79b, the thud paragraph of paragraph 115a, and the first sentence of paragraph 

115d(l) of MCM, 1969 (Rev.). Authority for the president of a 

court of inquiry and a deposition officer to issue a subpoena is 

expressly added to fill the gap left by MCM, 1969 (Rev). in 

regard to these procedures. See Article 47(a)(l), 135(f). 

Subsection (2)@) is based on Fed. R. Crim. P. 17(d) and on 

the second sentence of the fifth paragraph of paragraph 115d(l) 

of MCM, 1969 (Rev.). See also 28 U.S.C. 5 569(b). The discussion is based on paragraph 115d(l) of MCM, 1969 (Rev.). 

Subsection (2)(E) is based on Article 46 and the fust sentence 

of paragraph 115d(l) of MCM, 1969 (Rev.). It parallels Fed. R. 

Crim. P. 17(e)(l). Process in courts-martial does not extend 

abroad, except in occupied territory, nor may it be used,to compel 

persons within the United States to attend courts-martial abroad. 

See Article 46; 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. 5 1783(a) to secure presence of witness 

overseas to testtfy in a court-martial). The discussion is based on 

the last paragraph of paragraph 115d(l) of MCM, 1969 (Rev.). 

Note that under subsection (2)(E)(iii) any civilians in occupied 

territory are subject to compulsory process of the occupying 

force. 

Subsection (2)0 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 

115d(2) and (3), MCM, 1969 (Rev.). The definition of "warrant 

of attachment" is based on 12 Op. Atty. Gen. 501, 502 (1868). 

The military power to use a warrant of attachment is inherent in 

the power to subpoena. 12 Op. Atty. Gen. 501 (1868) (construing 

Act of 3 March 1863, ch. 79, 5 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 11.46 (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 Manila1 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. 

Cal. 1953) (court of inquiry). Federal civilian courts have 

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. 5 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. 

See generally United States v. Sevaaetasi, 48 C.M.R. 964 

(A.C.M.R.), pet. denied, 23 U.S.C.M.A. 620, 49 C.M.R. 889 

(1974); United States v. Ercolin, 46 C.M.R. 1259 (A.C.M.R. 

1973); United States v. Feeley, 47 C.M.R. 581 (N.C.M.R.), pet. 

A21-36 

denied, 22 U.S.C.M.A. 635 (1973). 

The procedure for issuing warrants of anachment 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 conveuing authority. 

Paragraph 115d(3) of MCM, 1969 (Rev.) required only that the 

trial counsel consult with the convening authority, or "after the 

court was convened" the military judge. Subsection (e)(2)(G) now 

requires written authorization from one of Uiese persons. Second, 

subsection (e)(Z)(G)(ii) incorporates as requirements the standards 

in the third paragraph 115d(3) of MCM, 1969 (Rev.). That paragraph was seemingly advisory in nature. Subsection (e)(2)(G)(iv) 

is based on the second paragraph and the fust sentence of the last 

paragraph of paragraph 115d(3) of MCM, 1969 (Rev.). The last 

sentence of subsection (e)(2)(G)(iv) is new and is intended to 

ensure that any detention under this rule is limited to the minimum necessary to effect its purpose. These n~odifications 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 distrivt 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 fme 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 dis.~ict court. 

(f) Evidence. This subsection is based generally on paragraph 

115a and c of MCM, 1969 (Rev.). See also Unitcd States v. 

Toledo, 15 M.J. 255 (C.M.A. 1983). It parallels the procedures 

for production of witnesses. Discovery and introduction of classified or other government information is covered by Mil. R. Evid. 

505 and 506. Note that unlike the standards for production of 

witnesses, there is no difference in the standards for production of 

evidence on the merits and at sentencing. The relaxation of the 

rules of evidence at presentencing proceedings provides some 

flexibility as to what evidence must be produced at those 

proceedings. 

Rule 704. Immunity 

(a) Types 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. $5 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 11); Green, Grants of Immunity and Military Lnw, 

53 Mil. L. Rev. 1 (1971) (hereinafter cited as Green I). 

Paragraph 68h of MCM, 1969 (Rev.) expressly recognized 

transactional immunity. It did not address testimonial immunity. 

Nevertheless, testimonial immunity has been used in courts-martial. See United States v. Villines, supra; United States v. 
-YSIS App. 21, R.C.M. 

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)(l). 

Subsection (1) makes clear that transactional immunity extends 

only to trial by court-martial. See Dept. of Defense Dir. 1355.1 

(July 21, 1981). Subsection (2) is written somewhat more broadly, however. Use immunity under R.C.M. 704 would extend to a 

State prosecution. Cf: Murphy v. Waterj+ont 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. $16002 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 68h 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 coda1 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 ~irschwas 

decided. the convening authority's powers now contained in Article 60 were in Article 64.) The enactment of 18 U.S.C. 

$ $6001-6005 did not remove this power. See United States v. 

Villines, supra; Department of Justice Memorandum, Subject: 

Grants of Immunity by Court-Martial Convening Authorities 

(Sept. 22, 1971) discussed in Grants 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. 

$5 6001-6005 as a means by which such immunity can be granted when necessary. The discussion under subsection (1) offers 

additional guidance on this matter. See the penultimate paragraph 

of the Analysis of subsection (a) of this rule as to the effect of a 

grant of immunity to state prosecutions. 

The rule makes clear that only a general court-martial convening authority may grant immunity. See United States v. Joseph, 

11 M.J. 333 (C.M.A. 1981); United States v. Caliendo, 13 

U.S.C.M.A. 405, 32 C.M.R. 405 (1962); United States 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 

pursuant to the pretrial agreement; instead, such an accused 

would lose the benefit of the bargained-for relief upon refusal to 

carry out the bargain. See also R.C.M. 705. 

The first paragraph in the initial discussion under subsection (c) 

is based on Cooke v. Orser and United States v. Caliendo, both 

supra. As to the second paragraph in the discussion, see United 

States v. Newman, 14 M.J. 474 (C.M.A. 1983). The discussion 

under subsection (c)(l) 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 11, supra at 12-14. 

But see In re Carhssi, 351 F. Supp. 1080 @. Conn. 1972); 

McCormick's Handbook of the Law of Evidence 262-63 (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: 

Cook v. Orser, supra. 

The first paragraph in the discussion is based on United States 

v. Kirsch, supra. 

The second paragraph in the discussion is based on United 

States v. Conway, 20 U.S.C.M.A. 99, 42 C.M.R. 291 (1970); 

United States v. Stoltz, 14 U.S.C.M.A. 461, 34 C.M.R. 241 

(1964). See also 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) Decision to grant immunity. This subsection is based on 

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. 

1993Amendment. Subsection (e) to R.C.M. 704 was amended 

to make the military practice for eranting immunity for defense 
App. 21, R.C.M. APPENC 

witnesses consistent with the majority rule within the Federal 

Courts. United States v. Bums, 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 

(26 Cu. 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 Cu. 

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 Cu. 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 teslimony 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 

sharply criticized. See, e.g., United States v. Turkish, s~rpra; 

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. ll(e); ABA Standards, Pleas of Guilty (1979). 

(a) In general. This subsection is based on United States v. Allen, 

supra. Only the convening authority may enter a pretrial agreement with an accused. See United States v. Caruth, 6 M.J. 184 

(C.M.A. 1979); United States v. Johnson, 2 M.J. 541 (A.C.M.R. 

1976); United States v. Crawford, 46 C.M.R. 1007 (A.C.M.R. 

1972). See also United States v. Troglin, 21 U.S.C.M.A. 183, 44 

C.M.R. 237 (1972). Pretrial agreements have long been subject to 

service regulations. See, e.g., A.F.M. 11 1-1, para. 4-8 (May 13, 

1980); JAGMAN Section 0114 (June 11, 1982). Subsection (a) 

expressly continues such authority. The discussion is based on 

Dept. of Defense Du. 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)(Z)(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 (7i11 Cir. 1986). Alternative procedures available in Federal civilian practice, such as a 

motion by the government for relief from its obligationunder 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 permithg the accused substantial latitude to enter 

into terms or conditions as long as the accused does so freely and 

voluntarily. Subsection (I)@) lists certain matters which cannot 

be bargained away. This is because to give up these mattrl i 

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 

acceptable standards. See United States v. Mills, 12 M.J. 1 

(C.M.A. 1981); United States v. Green, 1 M.J. 453 (C.M.A. 

1976); Unitrd 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 givuig up the right to make any motions before 

trial. Cf: United States v. Schaffer, supra. Subsection (l)(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 (I)@) 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(i) 

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 
ANALYSIS App. 21, R.C.M. 

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. 

804 (N.C.M.R. 1980); United States v. Brown, 4 M.J. 654 

(A.C.M.R. 1977). Enforcement of a restitution clause may raise 

problems if the accused, despite good faith efforts, is unable to 

comply. See 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 frop revocation of the 

agreement before action but not afterword. 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. Lullande, 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 

wishes or interest. See United States v. Schaffer, supra at 

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 Schmelh suggest that each term must 

originate with the defense. R.C.M. 705 is consistent with this 

insofar as it requires that the offer to plead guilty originate with 

the accused (subsection (d)(l)), that the written proposal be prepared by the defense (subsection (d)(3)), and that the accused 

enter or agree to each term freely and voluntarily (subsection 

(c)(l)(A)). It is of no legal consequence whether the accused's 

counsel or someone else conceived the idea for a specific provision 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. 

Lunzer, 3 M.J. 60 (C.M.A. 1977); United States v. Cox, 22 

U.S.C.M.A. 69, 46 C.M.R. 69 (1972). The last sentence is based 

on United States v. Green, supra. Note that the rule does not 

require the convening authority to sign the agreement. Although 

the convening authority must personally approve the agreement, 

(see subsection (a)) and has sole discretion whether to do so 

under subsection (4), the convening authority need not personally 

sign the agreement. 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 

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 a:: n 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 
App. 21, R.C.M. APPE 

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. ll(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 voluutariness 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. 

Jones, 23 M.J. 305, 308-309 (C.M.A. 1987) (Cox, J., 

concurring). 

(e) Nondisclosltre of existence of agreement. This subsection is 

based on United States v. Green, supra; United States v. Wood, 

23 U.S.C.M.A. 57, 48 C.M.R. 528 (1974). See also R.C.M. 

910(f); Mil. R. Evid. 410. 

Rule 706. Inquiry into the mental capacity or 

mental responsibility of the accused 

This rule is taken from paragraph 121 of MCM, 1969 (Rev.). 

Minor changes were made in order to conform with the format 

and style of the Rules for Courts-Martial. See also 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. 8 4244. The penultimate paragraph in paragraph 121 is deleted as an unnecessary 

statement. 

1987 Amendment: Subsection (c)(l) was modified, in light of 

changes to federal law, to allow the use of available clinical 

psychologists. See 18 U.S.C. $8 4241, 4242, and 4247. Subsection (c)(2) was revised to implement Article 50a, which was 

added to the UCMJ in the "Military Justice Amendments of 1986, 

" tit. VIII, 5 802, 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. 9160(1); S. Rep. No. 

225, 98th Coug., 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. 9160(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. 8 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 govenunent 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. 

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 

proper authority begins a new trial period. This subsection 

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. 

The harm to be avoided is continuous pretrial restraint. See 

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. 
ANAL.YSIS 	 App. 21, R.C.M. 

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 Military Review 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 Uie same time 

once the appeal is resolved. 

(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 

11. 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 

and convetling authorities to ensure the full development of 

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 a~d 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 

the circumstances. ABA Standards, supra at 12-1.3; United 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 durinp any such period of custody, the entire period is 

excludable delay under the 120-day speedy trial rule. 

(d) Remedy. This subsection is based on The Federal Speedy 

Trial Act, 18 U.S.C. 5 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 

only available remedy is dismissal with prejudice. Strunk v. 

United States, 412 U.S. 434 (1973). 

(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 39b and 40b(2) and the first sentence of paragraph 

57a of MCM, 1969 (Rev.). It is intended to provide the military 

judge or president of a special court-martial without a military 

judge broad authority to regulate the conduct of courts-martial 

within the framework of the code and the Manual, and to establish the outlines of their responsibilities. Much of the discussion 

is also derived from paragraphs 39b, 40b(2), and 53g of MCM, 

1969 (Rev.). A few minor changes have been made. For instance, 

the military judge, not the president, determines the uniform to be 

worn, and the military judge is not required to consult with the 

president, nor is the president of a special court-martial without a 

military judge required to consult with trial counsel, concerning 

scheduling. As a practical matter, consultation or coordination 

among the participants concerning scheduling or uniform may be 

appropriate, but the authority for these decisions should rest with 

the presiding officer of the court, either military judge or president of a special court-martial without a military judge, without 

being required to consult with others. 

(b) Obtaining evidence. This subsection is taken from paragraph 

54b of the MCM, 1969 (Rev.). Some of the language in paragraph 546 has been placed in the discussion. 

(c) Uncharged offenses. This subsection is taken from paragraph 

55a of MCM, 1969 (Rev.). The discussion is designed to accomplish the same purpose as paragraph 55b of MCM, 1969 (Rev.), 

although the language is no longer in terms which could be 

construed as jurisdictional. 

(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)(l)(C); 801(e)(2)(C)) permitting a 

military judge or president of a special court-martial without a 

military judge to change a ruling previously made (Article 51(b)) 

have been modified to preclude changing a previously granted 

motion for finding of not guilty. United States v. Hitchcock, 6 

M.J. 188 (C.M.A. 1979). Under R.C.M. 9160 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 57c, d, f,and g of MCM, 1969 (Rev.). 

Some language from paragraph 57g has been placed in the discussion. 

Subsection (4) is taken from paragraph 57g(l) of MCM, 1969 

(Rev.). The rule recognizes, however, that a different standard of 

proof may apply to some interlocutory questions. See, e.g., Mil. 

R. Evid. 314(e)(5). The assignments of the burden of persuasion 

are determined by specific rules or, in tlie absence of a rule, by 

the source of the motion. This represents a minor change from the 

language in paragraph 67e of MCM, 1969 (Rev.), which placed 
App. 21, R.C.M. APPE 

the burden on the accused for most questions. This assignment 

was rejected by the Court of Military Appeals in several cases, 

see, e.g., United States v. Graham, 22 U.S.C.M.A. 75, 46 C.M.R. 

75 (1972). Assignments of burdens of persuasion and, where 

appropriate, going forward are made in specific rules."Burden of 

persuasion" is used instead of the more general "burden of proof' 

to distinguish the risk of nonpersuasion once an issue is raised 

from the burden of production necessary to raise it. See McCormick's Handbook of the Law of Evidence 8 336 (E.Cleary ed. 

1972). For example, although the defense may have the burden of 

raising an issue (e.g., statute of limitations), once it has done so 

the prosecution may bear the burden of persuasion. 

The discussion under subsection (5) describes the differences 

between interlocutory questions and ultimate questions, and between questions of fact and questions of law. It is taken, substantially, from paragraph 57b of MCM, 1969 (Rev.). As to the 

distinction between questions of fact and questions of law, see 

United States v. Carson, 15 U.S.C.M.A. 407, 35 C.M.R. 379 

(1965). The discussion of issues which involve both interlocutory 

questions and questions determinative of guilt is based on United 

States v. Bailey, 6 M.J. 965 (N.C.M.R. 1979); United States v. 

Jessie, 5 M.J. 573 (A.C.M.R.), pet, denied, 5 M.J. 300 (1978). It 

is similar to language in the third paragraph of paragraph 57b of 

MCM, 1969 (Rev.), which was based on United States v. Ornelas, 2 U.S.C.M.A. 96, 6 C.M.R. 96 (1952). See Analysis of 

Contents, Manual for Cozrrfs-Martial, United States, 1969, Revised Edition, DA PAM 27-2, 10-5 (July 1970). That example, 

and the decision in United States v. Omelas, 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 j~uisdiction (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 servicemeniber on a desertion charge. Language in the opinion to the effect that the "jurisdictional" issue 

should have been submitted to the members is attributable to 

language in paragraph 67e of MCM, 1951, which suggested that 

"defenses," including "jurisdiction," were to be resolved by the 

members. Such a procedure for resolving motions to dismiss has 

been abolished. See R.C.M. 905; 907; 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. McGinrzis and United States v. Marsh, both supra. 

(f) R~~lingson record. This subsection is based on paragraph 39c 

of MCM, 1969 (Rev.). Paragraph 39c did not include a reference 

to rulings and instructions by the president of a special 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. 354 (C.M.A. 1976); United States v. Boxdale, 22 

U.S.C.M.A. 414, 47 C.M.R. 351 (1973); United States v. Weber, 

20 U.S.C.M.A. 82, 42 C.M.R. 274 (1970). 

(g) Effect 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 39c 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. Crirn. 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 8 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.), cerf. 

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 agree- 
ANALYSIS App. 21, R.C.M. 

ment 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, Recommended Procedures in Criminal Trials, 37 F.R.D. 95, 98 

(1965); C. Wright Wright's Federal Practice and Procedure 

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 5 14-3.3(c) (1979). 

(b) Matters on record. This subsection is based on the second 

sentence in Fed. R. Crim. P. 17.1. The federal rule requirement 

for a written memorandum was rejected as too inflexible and 

unwieldy for military practice. The interests of the parties can be 

adequately protected by placing matters on the record orally. If 

any party fears that such an oral statement will be inadequate, that 

party may insist on reducing agreed-upon matters to writing as 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 pam'es. 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. 

1991Amendment: 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 re.~olve 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.Para. 17.1.02 [I]; 17.1.03 

[3] (1982 rev. ed.); Rezneck, The New Federal Rules of Criminal 

Procedure, 54 Geo. L. J. 1276, 1294-99 (1966); ABA Stundards, 

Discovery and Procedure Before Trial 5 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 

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 53d(l) of 

MCM, 1969 (Rev.), of the types of matters which may be dealt 

with at Article 39(a) sessions. The quoted language in the first 

paragraph of the discussion is found in the legislative history of 

Article 39(a). See S. Rep. No. 1601, 90th Cong., 2nd Sess. 9-10 

(1968). 

The rule modifies the language concerning Article 39(a) sessions after sentence is announced. The former provision permitted 

such sessions only "when directed by the appropriate reviewing 

authority." Yet paragraphs 80b and c of MCM, 1969 (Rev.) implied that a military judge could call such a session on the judge's 

own motion. R.C.M. 1102 also authorizes such action. 

The first two paragraphs of the discussion are based on the 

second and. third paragraphs of paragraph 53d(l) of MCM, 1969 

(Rev.), except that the present language omits "defenses" from 

the matters a military judge may hear at an Article 39(a) session. 

Clearly a military judge does no1 I ule on the merits of a defense 

at an Article 39(a) session, and matters collateral to a defense 

which might be heard at an Article 39(a) session are adequately 

described elsewhere in the discussion. 

As to the third paragraph of the discussion, see Articles 35 and 

39. See also United States v. Pergande, 49 C.M.R. 28 (A.C.M.R. 

1974). 

Rule 804. Presence of the accused at trial 

proceedings 

Introduction. Subsections (a) and (b) of this rule are very 

similar to Fed. R. Crim. P. 43(a) and (b). Subsection (c) is 

derived from paragraph 60 of MCM, 1969 (Rev.). Fed. R. Crim. 

P. 43(c) was not adopted since it is not compatible with military 

practice, as it concerns corporate defendants, misdemeanor 

proceedings, conferences or arguments upon questions of law, 

and sentence reduction proceedings. Of these, only presence of 

the accused at conferences or arguments upon questions of law 

has relation to military procedure. Article 39(b) would preclude 

absence by the accused from arguments, except as provided in 
App. 21, R.C.M. 	 APPEND 

subsection (b). Conferences are treated in R.C.M. 802. 

Other differences between this rule and Fed. R. Crhn. 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 jwisdictional. 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 431 does not refer to express waiver of presence on the 

part of felony defendants, although it includes such a provision 

for misdemeanants. This omission was not intended to negate the 

right of felony defendants expressly to waive presence at the trial, 

for the Diaz case (Diaz v. United States, 223 U.S. 442 (1912)) 

cited as authority for the "voluntruy 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. 1'75); 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 @.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). In In re United States, supra, the court stated that there is 

a duty on the part of a defendant in a felony trial to be present. 

597 F.2d at 28. 

Military cases also recognize that an accused may expressly 

waive the right to be present, 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, 

36 C.M.R. 413 (1966). See e.g., United States v. Holly, 48 

C.M.R. 990 (A.F.C.M.R. 1974). Cfi 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 llc of MCM, 1969 

(Rev.). The language in MCM, 1969 (Rev.), which indicated that 

an absence had to be unauthorized, has been omitted. The language now conforms to the federal rule in this respect. The term 

"unauthorized" has never been treated as significant. See United 

States v. Peebles, 3 M.J. 177 (C.M.A. 1977). As the discussion 

notes in the fourth paragraph, a person who is in custody or 

otherwise subject to military control cannot, while in such a 

status, voluntarily be absent from trial without expressly waiving 

the right on the record and receiving the permission of the military judge to be absent. C$ United States v. Crutcher, supra. This 

appears to be the treatment that the term "unauthorized" was 

designed to effect. See United States v. Peebles, supra at 179 

(Cook, J.). 

Trial in absentia, when an accused voluntarily fails to appear at 

trial following arraignment, has long been permitted in the military. United States v. Houghtaling, supra. Authority for the third 

and fourth paragraphs of the discussion under Voluntary absence 

is found in United States v. Peebles, supra. United States v. Cook, 

supra requires that the voluntariness of an absence be established 

on the record before trial in absentia may proceed. Because the 

prosecution will be the party moving for trial in absentia, the 

discussion notes that the prosecution has the burden to prove 

voluntariness as well as absence. The example of an inference is 

taken from Judge Perry's seperate opinion in United States v. 

Peebles, supra. Compare IJnited 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 163.8 and Commentary (1978). With respect to 

binding an accused, see United States v. Gentile, 1 M.J. 69 

(C.M.A. 1975). See also United States v. Henderson, 11 

U.S.C.M.A. 556, 29 C.M.R. 372 (1960). 

(c) Appearance and security of accused. This subsection is similar to paragraph 60 of MCM, 1969 (Rev.). 

In subsection (I), the last sentence represents a modification of 

previous practice by making the accused and defense counsel 

primarily responsible for the personal appearance of the accused. 

Because of difficulties the defense may face in meeting these 

responsibilities, the rule requires the commander to give reasonable assistance to the defense when needed. The discussion emphasizes the right (see United States v. West, 12 U.S.(:.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 govem- 
ANAL.YSIS App. 21, R.C.M. 

ing pretrial restraint. These rules are now found in the sections 

referred to by R.C.M. 804(c)(2). Insofar as paragraph 60 of 

MCM, 1969 (Rev.) was a means of allocating responsibility for 

maintaining (as opposed to authorizing) custody over an accused 

until completion of trial, and insofar as this allocation is not 

mandated by other rules in this Manual, the service secretaries are 

authorized to prescribe rules to accomplish such allocation. 

Subsection (3) is taken verbatim from paragraph 60 of MCM, 

1969 (Rev.). 

Rule 805. Presence of military judge, members, 

and counsel 

(a) Military judge. This subsection is based on paragraph 39d of 

MCM, 1969 (Rev.). 

(b) Members. This subsection is based on paragraphs 41c and 

41d(l) and (2) and the first sentence of the second paragraph 62b 

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) Co~insel.This subsection modifies paragraphs 44c and 46c 

which required the express permission of the convening authority 

or the military judge for counsel to be absent. The rule now states 

only the minimum requirement to proceed. The discussion 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. Sarajife, 376 U.S. 575 (1964); United States v. 

Morris, 23 U.S.C.M.A. 319,49 C.M.R. 653 (1975); United States 

v. Kinard, 21 U.S.C.M.A. 300, 45 C.M.R. 74 (1972); United 

States v. Hampton, 50 C.M.R. 531 (N.C.M.R.), pet. denied, 23 

U.S.C.M.A. 663 (1975); United States v. Grifiths, 18 C.M.R. 354 

(A.B.R.), pet. denied, 6 U.S.C.M.A. 808, 19 C.M.R. 413 (1955). 

See also Morris v. Slappy, 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 

$5 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 

39e and 41e and f of MCM, 1969 (Rev.). MCM, 1969 (Rev.) also 

provided a similar procedure when a member of a court-martial 

was temporarily excused from the trial. This rule does not authorize such a procedure. If a member must be temporarily absent, a 

continuance should be granted or the member should I)e permanently excused and the trial proceed as long as a quorum 

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 

Introduction. This rule recognizes and codifies the basic 

principle that, with limited exceptions, court-martial proceedings 

will be open to the public. The thrust of the rule is similar to 

paragraph 53e of MCM, 1969 (Rev.), but the right to a public 

trial is more clearly expressed, and exceptions to it are more 

specifically and more narrowly drawn.. This construction is necessary in light of recent decisions, particularly United States v. 

Grunden, 2 M.J. 116 (C.M.A. 1977). 

(a) In general. This subsection reflects the holding in United 

States v. Grunden, supra, that the accused has a right to a public 

trial under the Sixth Amendment. See also United States 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. Czanzecki, 10 M.J. 570 (A.F.C.M.R. 1980) (dicta)), especially in view of the practical differences between civilian courts and courts-martial (i.e., courts-martial do not 

necessarily sit at a permanent or fixed site; they may sit overseas 

or at sea; and at remote or dangerous locations). Nevertheless the 

rule and the discussion are based on recognition of the value to 

the public of normally having courts-martial open to the public. 

This is particularly true since the public includes members of the 

military community. 

(b) Control 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. Sielaf, 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 1T.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 substantill 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. 

Sielafi supra (proper to exclude all spectators except press, clergy, and others with specific interest in presence during testimony 

of alleged rape victim); United States cx 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 
App. 21, R.C.M. APPENIDIX 21 

States v. Brown, supra; United Stntes 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 

this Manual. Effectively, this means that the only time trial 

proceedings may be closed without the consent of the accused is 

when classified information is to be introduced. See Mil. R. Evid. 

5050). 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 auton~atically be granted merely because the defense 

requests or acquiesces in it. See Richmond Newspapers, Inc., v. 

Virginia, supra. See also Ganneti 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.),afd, 22 U.S.C.M.A. 534,48 C.M.R. 19 

(1973); Caley v. Callaway, 519 F.2d 184 (5th Cu. 1975), cert. 

denied, 425 U.S. 911 (1976). See also ABA Standards, Fair Trial 

and Free Press part I11 (1972). 

(c) Photography and broadcasting prohibited. This subsection is 

based on Fed. R. Crim. P. 53, and is consistent with paragraph 

53e of MCM, 1969 (Rev.) and practice thereunder. See C. 

Wright, Wright's Federal Practice and Procedure 8 861 (1969); 

88 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). 

Rule 807. Oaths 

(a) Definition. This rule and the discussion are taken from paragraph 112u 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 1126 and c 

of MCM, 1969 (Rev.). Subsection (2) is taken from paragraph 

1126 of MCM, 1969 (Rev.). The discussion is taken in part from 

paragraph 1126 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 112u of MCM, 1969 (Rev.), 

to Article 175 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. I lie 

discussion is based on paragraph 82a, b, and h, of MCM, 1969 

(Rev.). See also United States v. Eichenlaub, 11 M.J. 239 

(C.M.A. 1981); United States v. McCullah, 11 M.J. 234 (C.M.A. 

1981); 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. 224 (1972); United States v. DeWayne, 7 M.J. 7.55 

(A.C.M.R.), pet. denied, 8 M.J. 25 (1979); United States v. 

Hensley, 7 M.J. 740 (A.F.C.M.R.), pet. denied, 8 M.J. 42 (1979); 

United States v. Pearson, 6 M.J. 953 (A.C.M.R.), pet. denied, 7 

M.J. 164 (1979). The preparation, authentication, and disposition 

of records of trial is covered in Chapter XI. The administrative 

responsibility of trial counsel to prepare the record is codal. Article 38(a). See also R.C.M. 1103(b). 

Rule 809. Contempt proceedings 

(a) In general. This subsection restates codal authority. The discussion is based on paragraph 118a of MCM 1969 (Rev.). The 

language of Article 48 applies only to "direct" contempts. See W. 

Winthrop, Military Law and Precedents 301-302 (2d ed. 1920 

reprint); paragraph 101 of MCM, 1928; paragraph 109 of MCM 

(Army), 1949; paragraph 118a of MCM, 1951; paragraph 118a 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. 8 401; cf: Exparte 

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 contemptous behavior which, while not directly witnessed by the 

court-martial, disturbs its proceedings (e.g., a disturbance in the 

waiting room). As Fed. R. Crim. P. 42(b) recognizes, this type of 

contempt may not be punished summarily. See Johnson v. Mississippi, 403 U.S. 212 (1971); Cooke v. 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 pu~ShIIIent 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 cofrrt 

into session without the presence of the nrembers," 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 
ANAL 

House Comm. on Anned Services, 81st Cong., 1st Sess. 1060 

(1949)), its purpose would be destroyed by requiring members 

who were not present and did not observe the behavior to decide 

the matter. The second sentence in subsection (c)(l) parallels Fed. 

R. Crim. P. 42(a). 

The procedure for contempt proceedings before members has 

been simplified to the extent possible consistent with the requirement for the members to decide the issue. The procedure for a 

preliminary ruling by the military judge to decide as a matter of 

law that no contempt has occurred is expressly recognized for the 

first time. See Article 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 118b 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 1186 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 1186 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 1186 of MCM, 

1969 (Rev.) was ambiguous in this regard. 

(0 Informing person held in contempt. This subsection and the 

discussion are based on paragraph 118b of MCM, 1969 (Rev.); it 

has been modified for clarity. 

1998 Amendment: R.C.M. 809 was amended to modernize military contempt procedures, as recommended in United States v. 

Bumett, 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 

members' involvement in the process. The amendment also 

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' prpqence. 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 

Introd~rcrion.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 816 of 

MCM, 1969 (Rev.). 

(b) Composition. This subsection is based on Article 630) and 

the seventh paragraph of paragraph 9241 of MCM, 1969 (Rev.). 

App. 21, R.C.M. 

As to subsection (3), see also United States v. Staten, 21 

U.S.C.M.A. 493, 45 C.M.R. 267 (1972). 

(c) Examination of record oJ former proceedings. This subsection 

is based on paragraph 81c 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 81d 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 81d(l) 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 

result); United States v. E~~.Anzaliir, 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 defi~tion is taken from paragraph 81d(2) of 

MCM, 1969 (Rev.). See also paragraph 926 of MCM, 1969 

(Rev.). 

Rule 811. Stipulations 

(a) In general. This subsection restates the first sentence of paragraph 54f(l) of MCM, 1969 (Rev.). 

(b) Authority to reject. This subsection affms 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 54Jl) 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. 
App. 21, R.C.M. APPENDIX 21 

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 54fl1) 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 

inquiry of the sort described in the discussion is conducted. 

United States v. Bertelson, 3 M.J. 314 (C.M.A. 1977). The definition of a stipulation which practically amounts to a confession in 

the discussion is based on Bertelson, along with United States v. 

Schaffer, 12 M.J. 425, 427428 nn. 4.6 (C.M.A. 1982);; United 

States v. Reagan, 7 M.J. 490 (C.M.A. 1979); United States :.-

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, ralher 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 54fll) of MCM, 1969 (Rev.), and restates current 

law. See also United States v. Daniels, 11 U.S.C.M.A. 52, 28 

C.M.R. 276 (1959). 

(e) Effect 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 8 2590 (3d ed. 1940); 73 Am. Jur. 2d. Stipulations, 5 8 

(1974); 83 C.J.S. Stipulations, $5 12-13 (1953). See also H. Haceeld & Co. v. United States, 197 U.S. 442 (1905). Paragraph 

154b of MCM, 1951, contained the following provision: "The 

court is not bound by a stipulation even if received. For instance 

its own inquiry may convince the court hat the stipulated fact is 

not true." The provision was drawn verbatim from paragraph 

1406 of MCM (Army), 1949, and of MCM(AF), 1949, and can 

be traced to paragraph 1266 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 courtsmartial have apparently continued to apply the earlier rule. See 

Military Criminal Law, Evidence DA PAM 27-22, AFP 111-8 at 

A21-48 

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 dug 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, 5 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 

document is true. In this sense, a stipulation as to a document's 

contents is like a stipulation of evpected testimony, and the rule 

so treats it. 

Otherwise, this subsection essentially restates paragraph 54fil) 

and (2) of MCM, 1969 (Rev.). See also United States v. Bennef?, 

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 M'igmore, supra at 5 2592. 

(f) Procedure. This subsection is based on the second paragraph 

in paragraph 54fl2) of MCM, 1969 (Rev.). 

Rule 812. Joint and common trials 

This rule is taken from paragraph 53c of MCM, 1969 (Rev.). 

The rule itself substantially repeats the first sentence in paragraph 

53c. The discussiolr refers to other rules dealing with joint or 

common trials, and includes the examples discussed in paragraph 

53c of MCM, 1969 (Rev.). It also incorporates a statement on 

stipulations which appeared at paragraph 54fl3) of MCM, 1969 

(Rev.), and a statement concerning severances from paragraph 

61h of MCM, 1969 (Rev.). The rule does not change current law. 

Rule 813. Announcing personnel of the courtmartial and acci~sed 

This rule is based on paragraph 61c of MCM, 1969 (Rev.) 

and is placed in Chapter 8 since the requirement for announcing 

the presence or absence of parties usually recurs several times 

during the trial. The rule has been rephrased to acknowledge the 

responsibility of the military judge to ensure that the matters 

covered are reflected in the record. Paragraph 61c of MCM, 1969 

(Rev.) required the trial counsel to make these announcements. 

This rule leaves to the discretion of the military judge who will 

make the announcements. The importance of requiring such announcements to be made on the record is emphasized in United 

States v. Nichelson, 18 U.S.C.M.A. 69, 39 C.M.R. 69 (1968). 
ANAL.YSIS 	 App. 21, R.C.M. 

CHAPTER IX. TRIAL PROCEDURE THROUGH 


FINDINGS 


Rule 901. Opening session 

Introduction. R.C.M. 901 through 903 set out in chronological order the procedures to be followed before arraignment. The 

order need not be followed rigidly. 

(a) Call to order. This subsection is based on the first sentence in 

paragraph 61b of MCM, 1969 (Rev.). The purpose of the subsection is to establish a definite point to indicate when a courtmartial is in session. The first paragraph in the discussion is taken 

from paragraph 61a of MCM, 1969 (Rev.), but the present provision has been expanded to include comparing the record of the 

referral on the charge sheet with the convening orders to ensure 

that they are consistent. The other matters in paragraphs 61a and 

b of MCM, 1969 (Rev.), are omitted here as unnecessary. 

The second paragraph in the discussion is based on paragraph 

58c of MCM, 1969 (Rev.) and serves as a reminder of the Article 

35 requirements. See United States v. Pergande, 49 C.M.R. 28 

(A.C.M.R. 1974). The failure to object is normally a waiver of 

the statutory right. United States v. Lumbus, 48 C.M.R. 613 

(A.C.M.R. 1974). Because of the importance of the right, however, the military judge should secure an affirmative waiver. See 

United States v. Perna, 1 U.S.C.M.A. 438, 4 C.M.R. 30 (1952); 

United States v. Pergande, supra. 

(b) Announcement of pam'es. This subsection is based on paragraph 61c of MCM, 1969 (Rev.). Requiring an announcement is 

intended to guard against inadvertently proceeding in the absence 

of necessary personnel and to ensure that the record reflects the 

presence of required personnel. 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 61d of MCM, 1969 

(Rev.). 

(d) Counsel. This subsection, except for subsection (4)(A) and 

(D), is based on paragraphs 61e 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. 5455, which is 

itself based on Canon III of the ABA Code of Judicial Conduct, 

and on paragraph 62 of MCM, 1969 (Rev.). 

The procedures prescribed by 28 U.S.C. 5 144 were not 

adopted. That statute provides that whenever a party 'Ties a 

timely and sufficient affidavit that the judge before whom the 

matter is pending has a personal bias or prejudice either against 

him or in favor of any adverse party, such judge shall proceed no 

further therein." This section does not establish a different test 

from 28 U.S.C. 5 455 for disqualification for prejudice or bias. 

Instead, 28 U.S.C. 5 144 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 bane), cert. denied, 425 U.S. 944 (1976). 

This procedure is not practicable for courts-martial because of 

the different structure of the military judiciary and the limited 

number of military judges. 

(a) In general. This subsection is, except for changes in terminology, identical to 28 U.S.C. 5 455(a). See also paragraph 62A13) 

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) Spec$c grounds. The stem and subsection (1) are, with 

changes in terminology, identical to the stem and subsection (1) 

of 28 U.S.C. 5 455(b). See also paragraph 62A13) 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. 846 

(A.C.M.R. 1976); United States v. Stewart, 2 M.J. 423 (A.C.M.R. 

1975). See also United States v. Lynch, 13 M.J. 394, 398, n. 3 

(C.M.A. 1982) (Everett, C.J. concurring). 

Subsection (2) is based on paragraphs 62f15), (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. 	 5 455(b)(2). 

Subsection (3) is based on paragraphs 62A3), (4), (9), (lo), and 

(13) of MCM, 1969 (Rev.). See also Mil. R. Evid. 605; United 

States v. Cooper, 8 M.J. 5 (C.M.A 1979); United States v. Bradley, 7 M.J. 332 (C.M.A. 1979). The purpose of this section is 

analogous to that of 28 U.S c.5 455(b)(3). 

Subsection (4) is based on Article 26 and paragraph 62A1) and 

(2) and 62g of MCM, 1969 (Rev). The mattersin 28 U.S.C. 

5 455(b)(4) regarding financial interest in the proceedings are nnt 

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. 5455(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. 5455(c). 

(c) Definitions. Subsections (1) and (2) are, with changes in terminology, identical to 28 U.S.C. 5 455(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. 5 455(d) is unnecessary. 
App. 21, R.C.M. APPEl 

(d) Procedure. This section including the discussion is based on 

Article 41 and paragraph 624 g, and h of MCM, 1969 (Rev.). 

(e) Waiver. This section is, with changes in terminology, identical to 28 U.S.C. 5 455(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 53d(2)(c) and 61g 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 ripht 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 53d(2)(C) of MCM, 1969 (Rev.). It does not require an 

inquiry of the accused by the military judge, although, as the 

discussion points out, it is good practice to do so, and failure to 

do so could be error if the record otherwise left the accused's 

understanding of the rights in doubt. See S. Rep. No. 53, 98th 

Cong., 1st Sess. 12 (1983); United States v. Parkes, 5 M.J. 489 

(C.M.A. 1978); United States v. Turner, 20 U.S.C.M.A. 167, 43 

C.M.R. 7 (1970); United States v. Jenkins, 20 U.S.C.M.A. 112, 

42 C.M.R. 304 (1970). This is consistent with prevailing federal 

civilian practice. See, e.g., Estrada v. 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 

jury waiver in Seventh Circuit). See generally 8AJ. Moore, 

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. 72 (C.M.A. 1982); United States v. Ward, 3 M.J. 365 

(C.M.A. 1977); United States v. Bryant, supra. 

1986 Amendment: Subsection (3) was amended to reflect 

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 39e 

and on paragraph 53d (2)(b) of MCM, 1969 (Rev.), and current 

practice. 

(e) Untimely requests. This subsection is based on Articles 16 

and 25, and United States v. Jeanbapti.rte, 5 M.J. 374 (C.M.A. 

1978); United States v. Thotpe, 5 M.J. 186 (C.M.A. 1978); 

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). 

Despite dicta iq United States v. Bryant, srrpra at 328, 49 

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, 

8 3(a), 97 Stat. 1393 (1983). 

1987 Amendment: Subsections (b)(l), (c)(l) and (c)(3) were 

amended to reflect an amendment to Article 25(c)(l) UCMJ, in 

the "Military Justice Amendments of 1986," tit. VIII, 5 803, 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 65a 

of MCM, 1969 (Rev.). The second sentence of Fed. R. Cnm. P. 

10 has been deleted as unnecessary since in military practice the 

accused will have been sewed 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 66b of MCM, 1969 

(Rev.). It is consistent with the first sentence of Fed. R. Crim. P. 

47 and the second sentence of Fed. R. Crim. P. 12(a). The second 

sentence is based on the second sentence of paragraph 67c of 

MCM, 1969 (Rev.), although to be consistent with Federal practice (see Fed. R. Crim. P. 12(b) (second sentence) and 47 (second 

sentence)) express authority for the military judge to exercise 

discretion over the form of motions has been added. The third 

sentence is based on the third sentence of Fed. R. Crim. P. 47 and 

is consistent with the first sentence of paragraph 67c and the 

fourth sentence of paragraph 69a of MCM, 1969 (Rev.). The last 

sentence in this subsection is based on the third sentence of 

paragraph 67c of MCM, 1969 (Rev.). Although no parallel provision appears in the Federal Rules of Criminal Procedure, this 
ANAL.YSIS App. 21, R.C.M. 

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 676 of MCM, 1969 

(Rev.). Subsection (3) is consistent with Mil. R. Evid. 

304(d)(2)(A); 31 1(d)(2)(A); 321(c)(2)(A). The discussion is based 

on paragraph 69A of MCM, 1969 (rev.). Subsection (4) is new. 

See R.C.M. 701; 703; 1001(e). Subsection (5) is also new. Subsection (6) is based on paragraphs 46d and 486(4) of MCM, 1969 

(Rev.) and United States v. Redding, 11 M.J. 100 (C.M.A. 1981). 

(c) Burden of proof: This subsection is based on paragraphs 

57g(l) and 67e of MCM, 1969 (Rev.). The assignment of the 

burden of persuasion to the moving party is -a minor change from 

the language in paragraph 67e of MCM, 1969 (Rev.), which 

placed the burden on the accused "generally." The effect is basically the same, however, since the former rule probably was 

intended to apply to motions madc by the accused. See also 

United States v. Graham, 22 U.S.C.M.A. 75, 46 C.M.R. 75 

(1972). The exceptions to this general rule in subsection (B) are 

based on paragraphs 68b(l), 68c, and 215e of MCM, 1969 (Rev.). 

See also 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 

courts-martial, arraignment usually occurs only a short time 

before trial and in many cases it occurs the same day as trial. 

Because of this, requiring a motions date after arraignment but 

before trial is not appropriate, at least as a routine matter. Instead, 

entry of pleas operates, in the absence of good cause, as the 

deadline for certain motions. A military judge could, subject to 

subsections (d) and (e), schedule an Article 39(a) session (see 

R.C.M. 803) for the period after pleas are entered but before trial 

to hear motions. 

(d) Ruling on motions. This subsection is based on Fed. R. Crim. 

P. 12(e). It is consistent with the first sentence in paragraph 67e 

of MCM, 1969 (Rev.). The admonition in the second sentence of 

that paragraph has been deleted as unnecessary. The discussion is 

based on the third paragraph of paragraph 67f of MCM, 1969 

(Rev.). 

I991 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. 120 

and are consistent with paragraph 67b of MCM, 1969 (Rev.). The 

third sentence is based on paragraph 67a of MCM, 1969 (Rev.). 

The Federal Rules of Criminal Procedule 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 

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 

limitations may be waived); United States v. Schilling, 7 

U.S.C.M.A. 482, 22 C.M.R. 272 (1957) (former jeopardy may be 

waived). Contra 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 "niotions". 

(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). 

I994 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. Gnffith, 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), cl&es 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 

GnJith,supra; see also Scaff, supra. 

(g) Effect of final determinations. Except as noted below, this 

subsection is based on paragraph 71b of MCM, 1969 (Rev.) and 

on Ashe v. Swenson, 397 U.S. 436 (1970): Oppenheimer v. United 

States, 242 U.S. 85 (1916); United States v. Marks, 21 

U.S.C.M.A. 281, 45 C.M.R. 55 (1972); Restatement of Judgements, Chapter 3 (1942). See also Comn~issioner 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). 
App. 21, R.C.M. 	 APPENDIX 21 

Subsection (g) differs from paragraph 71b 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. 

"~es-judicata" generally includes several distinct but related concepts: merger, bar, direct estoppel, and collateral estoppel. Restatement of Judgments, Chapter 3 Introductory Note at 160 

(1942). But see 1B J. Moore, Moore's Federal Practice 

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 72b of MCM (Army), 1949; paragraph 

71b of MCM, 1951, paragraph 71b of MCM, 1969 (Rev.); see 

also United States v. Smith, supra) without discussing its distinguishing characteristics. Unlike other forms of res judicata, collatera1 estoppel applies to determinations made in actions in which 

the causes of action were different. 1B J. Moore, supra, Para. 

0.441[11. Because of this, its application is somewhat narrower. 

SpecificaIl~, 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, $6 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 71b was rewritten in 

MCM, 1969 (Rev.), the result in Smith was incorporated into that 

paragraph, but neither the concerns of the Court of Military Appeals nor the distinguishing characteristics of collateral estoppel 

were addressed. See Analysis of Contents of the Manual for 

Courts-Martial, United States, 1969, Revised Edition, DA Pam 

27-2 at 12-5 (July 1970). To the extent that Smith relied on the 

Manual, its result is no longer required. But see United States V 

Martin, 8 U.S.C.M.A. 346, 352, 24 C.M.R. 156, 162 (1957) 

(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 8 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. 

-r A 7l . 

(i) Service. This subsection is based on Fed. R. Crim. P. 49(a) 

and (b), insofar as those provisions apply to motions. 

6 ) Application to convening authority. This subsection is taken 

from paragraph 66b of MCM, 1969 (Rev.) although certain exceptions provided elsewhere in these rules (e.g., R.C.M. 

906(b)(l)) have been established for the first time. It is consistent 

with the judicial functions of the convening authority under Article 64. It also provides a forum for resolution of disputes before 

referral and in the absence of the military judge after referral. It 

has no counterpart in the Federal Rules of Criminal Procedure. 

Fed. R. Crim. P. 12(g) and 01) are not included. Fed. R. Crim. 

P. 12(g) is covered at R.C.M. 803 and 808. The matters in Fed. 

R. Crim. r. 1201) 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). 

906. Motions for appropriate relief 

(a) In general. This subsection is based on the first sentence of 

paragraph 690 of MCM, 1969 (Rev.). The phrase concerning 

deprivation of rights is new; it applies to such pretrial matters as 

defects in the pretrial advice and the legality of pretrial confinement. Paragraph 69a of MCM, 1969 (Rev.) provided only for the 

accused to make motions for appropriate relief. This rule is not so 

restricted because the prosecution may also request appropriate 

relief. See e.g., United States v. Nivens, 21 U.S.C.M.A. 420, 45 

C.M.R. 194 (1972). This change is not intended to modify or 

restrict the power of the convening authority or other officials to 

direct that action be taken notwithstanding the fact that such 

action might also be sought by the trial counsel by motion for 

appropriate relief before the military judge. Specific modifications 

of the powers of such officials are noted expressly in the rules or 

analysis. 

(b) Grounds for appropriate relief: This subsection has the same 

general purpose as paragraph 69 of MCM, 1969 (Rev.). It identifies most of the grounds for motions for appropriate relief commonly raised in 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 58b and c of MCM, 1969 (Rev.). The 

rule provides that only a military judge may grant a continuance. 

Paragraph 58a of MCM, 1969 (Rev.) which provided for 

"postponement" has been deleted. Reposing power to postpone 

proceedings in the convening authority is inconsistent with the 

authority of the military judge to schedule proceedings and control the docket. See generally United States v. Wolzok, 1 M.J. 125 

(C.M.A. 1975). To the extent that paragraph 58a extended to the 

military judge the power to direct postponement, it was duplicative of the power to grant a continuance and unnecessary. 

Subsection (2) is based on paragraph 48b(4) of MCM, 1969 

(Rev.). See also United States v. Redding, 11 M.J. 100 (C.M.A. 

1981). 

Subsection (3) is based on paragraph 69c of MCM, 1969 

(Rev.). See also Articles 32(d) and 34; United State v. Johnson, 7 

M.J. 396 (C.M.A. 1979); United States v. Donaldson, 23 

U.S.C.M.A. 293, 49 C.M.R. 542 (1975); United States v. Maness, 

23 U.S.C.M.A. 41. 48 C.M.R. 512 (1974). . .

Subsection (4) is based on paragraph 69b of MCM, 1969 

(Rev.). See also Article 30(a); paragraphs 29e and 33d of MCM, 

1969 (Rev.); Fed. R. Crim. P. 7(d). See generally United States v. 

Arbic, 16 U.S.C.M.A. 292, 36 C.M.R. 448 (1966); United States 

v. Krutsinger, 15 U.S.C.M.A. 235, 35 C.M.R. 207 (1965); United 

States v. Johnson, 12 U.S.C.M.A. 710, 31 C.M.R. 296 (1962). 

Subsection (5) and its discussion are based on paragraph 286 of 

MCM, 1969 (Rev.); United States v. Collins, 16 U.S.C.M.A. 167, 

36 C.M.R. 323 (1966); United States v. Means, 12 U.S.C.M.A. 

290, 30 C.M.R. 290 (1961); United States v. Parker, 3 

U.S.C.M.A. 541, 13 C.M.R. 97 (1953); United States v. Voudren, 

33 C.M.R. 722 (A.B.R. 1963). See also paragraphs 158 and 

200a(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 
ANAL.YSIS 	 App. 21, R.C.M. 

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.), afd, 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. Diecidzte, 603 F.2d 535, 563 (5th Cir. 

1979); United States v. Murray, 527 F.2d 401, 411 (5th Cir. 

1976); United States v. Mannino, supra; United States v. Hubbard, 474 F. Supp. 64, 80-81 (D. D.C. 1979). 

Subsection (7) is based on paragraphs 75e and 115a of MCM, 

1969 (Rev.). See also Fed. R. Crim. P. 12(b)(4); 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. 305Q). 

Subsection (9) is based on paragraph 69d of MCM, 1969 

(Rev.) and Fed. R. Crim. P. 14 to the extent that the latter applies 

to severance of codefendants. Note that the Government may also 

accomplish a severance by proper withdrawal of charges against 

one or more codefendants and rereferrals of these charges to 

another court-martial. See R.C.M. 604. The discussion is based on 

paragraph 69d of MCM, 1969 (Rev.). 

Subsection (10) is new. It roughly parallels Fed. R. Crim. P. 

14, but is much narrower because of the general policy in the 

military favoring trial of all known charges at a single 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 (1 1) is based generally on paragraph 69e of MCM, 

1969 (Rev.) and on Fed. R. Crim. P. 21. See United States v. 

Nivens, supra; United States v. Gravitt, 5 U.S.C.M.A. 249, 17 

C.M.R. 249 (1954). The constitutional requirement that the trial 

of a crime occur in the district in which the crime was committed 

(U.S. Const. Art.11, sec. 2, cl. 3; amend VI) does not apply in the 

military. Chenoweth v. VanArsdall, 22 U.S.C.M.A. 183, 46 

C.M.R. 193 (1973). Therefore Fed. R. Crim. P. 21(b) is inapplicable. In recognition of this, and of the fact that the convening 

authority has an interest, both financial and operational, in fixing 

the place of the trial, the rule allows the situs of the trial to be set 

and changed for the convenience of the Government, subject to 

judicial protection of the accused's rights as they may be affected 

by that situs. See United States v. Nivens, supra. 

Subsection (12) is based on paragraph 76a(5) of MCM, 1969 

(Rev.). See also Analysis, R.C.M. 907(b)(3)(B) and Analysis, 

R.C.M. 	 1003(c)(l)(C). 

Subsection (13) is new to the Manual, although motions in 

limine have been recognized previously. See Mil. R. Evid. 104(c); 

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 ia United States v. Sutton, 31 M.J. 

11 (C.M.A. 1990). The Court of Military Appeals in Sunon held 

that its decision in United States v. Cofield, 11 M.J. 422 (C.M.A. 

1981). should not be relied upon to determine reviewability of 

preliminary rulings in courts-martial. Instead, reviewability of 

preliminary rulings will be controlled by Luce v. United States, 

469 U.S. 38 (1984). 

Subsection (14) is based on paragraph 69f of MCM, 1969 

(Rev.). See Analysis, R.C.M. 706, R.C.M. 909, and Analysis, 

R.C.M. 9160. 

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 ttial counsel 

may not independently request dismissal of charges, and unnecessary because the convening authority already has authority to 

withdraw and to dismiss charges. See R.C.M. 306(c)(l); 

401(c)(l); 604. The matters contained in Fed. R. Crim. P. 48(h) 

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 68b of MCM, 1969 

(Rev.). See also Fed. R. Crim. P. 12(b)(2) and 34. 

Subsection (2)(A) is based on paragraph 68i of MCM, 1969 

(Rev.). See also 18 U.S.C. 13162(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 68c 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 68c and 215d of MCM, 1969 (Rev.). See also 

United States v. Arbic, 16 U.S.C.M.A. 292, 36 C.M.R. 448 

(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, 

8 805, 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. 

1990Amendment: 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 2156 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. 

A21-53 
App. 21, R.C.M. APPEI 

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; Selfass 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 

61j and appendix 8b of MCM, 1969 (Rev.); paragraph 61h and i 

and appendix 8a of MCM, 1951; paragraph 61 of MCM, 1949 

(Army); paragraph 61 of MCM, 1928; W. Winthrop, supra at 

205-80. Congress clearly contemplated that the members may be 

sworn at an early point in the proceedings. See Article 42(a); H. 

Rep. No. 491, 81st Cong. 1st Sess. 22 (1949). 

The role of members has become somewhat more analogous to 

that of a jury. See, e.g., Article 39(a). Nevertheless, significant 

differences remain. When they are present, the members with the 

military judge constitute the court-martial and participate in the 

exercise of contempt power. Article 48. See R.C.M. 809 and 

analysis. Moreover members may sit as a special court-martial 

without a military judge, in which case they exercise all judicial 

functions. Articles 19; 26; 40; 41; 51; 52. 

The holding in Crist would have adverse practical effect if 

applied in the military. In addition to being unworkable in special 

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 traditional justification for a mistrial. Id. See United States v. 

Richardson, supra. C' 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 findigs 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 

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 mle permits a retrial of a person acquitted by 

a court-martial which lacks jurisdiction. The Court of Military 

Appeals decision in United States v. Culver, 22 U.S.C.M.A. 141, 

46 C.M.R. 141 (1973) does not preclude this, although that decision raises questions concerning this result. There was no majority opinion in Culver. Judge Quinn held that the defect (absence 

of a written judge alone request) was not jurisdictional. In the 

alternative, Judge Quinn construed paragraph 81d of MCM, 1969 

(Rev.) and the automatic review structure in 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 

request for military judge alone was not reduced to writing. 

Therefore, the double jeopardy clause of the Fi 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 nonconstitutional grounds. 

Subsection (2)(D) is based on paragraph 68e 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), or sentencing instructions in the case of subsection 

(3)@)). 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 

69b(3) of MCM, 1969 (Rev.). 

Subsection (3)(B) is based on paragraph 26b, 74b(4), and 

76a(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. 
ANAL.YSIS App. 21, R.C.M. 

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, 8 5(c)(l), 97 

Stat 1393 (1983). See also S. Rep. No. 53, 98th Cong., 1st. Sess. 

23 (1983); 18 U.S.C. 5 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 Detringer v. United States, 7 M.J. 216 (C.M.A. 1978). It is not 

expected that every dig 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). 

1998Amendment 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 &st 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 

designee, or the staff judge advocate. Because the decision 

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)(l)(D). The authorization may be oral and nc 

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 pendency of an appeal under this rule necessarily halts further 

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 entirely, 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 tesw 

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)(l)(B). Furthermore, the military 

judge and the Court of Military Review 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 sliould 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 fde 

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 

A21-55 
App. 21, R.C.M. APPElNDlX 21 

were confused by the absence of an explicit statement in the rule. 

New subsection (9) is based on 18 U.S.C. 5 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. 1 1259. Note that if the decision of the Court of Military 

Review permits it (i.e., is favorable to the Government) the courtmartial may proceed as to the affected charges and specifications 

notwithstanding the possibility or pendency of review by the 

Court of Military Appeals or the Supreme Court. Those courts 

could stay the proceedings. The penultimate sentence is similar in 

purpose to Article 66(e) and 67(f). 

(d) Military judge. This subsection is necessary because Article 

62 authorizes appeals by the Government only when a military 

judge is detailed. 

Rule 909. Capacity of the accused to stand trial 

by court-martial 

This rule is based on paragraphs 120a and d, and 122 of 

MCM, 1969 (Rev.). It has been reorganized and minor changes 

were made in some language in order to conform to the format 

and style of the Rules for Courts-Martial. The procedures for 

examining the mental capacity of the accused are covered in 

R.C.M. 706. Matters referring solely to the accused's sanity at the 

time of the offense are treated at R.C.M. 916(k). The rule is 

generally consistent with 18 U.S.C. 8 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. 8 4241(d). 

1998 Amendment: The rule was changed to provide for the 

hospitalization of an incompetent accused after the enactment of 

Article 76b, UCMJ, in section 1133 of the Nation Defense 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. 

(a) In general. Subsection (1) is based on Article 45 and paraA21-56 

graph 70a of MCM, 1969 (Rev.). The fist sentence parallels the 

fist sentence in Fed. R. Crim. P. ll(a)(l), except that no provision is made for pleas of nolo contendere. Such a plea is unnecessary in courts-martial. Hearings on H. R. 4080 Before A 

Subcomm, of the Comm. on Anned 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. ll(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. ll(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)(l) removed the necessity of pleading guilty to a lesser included offense by exceptions and substitutions. This parallels the 

amendment to R.C.M. 918(a)(l), 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)(l). 

Subsection (2) is based on Fed. R. Crim. P. ll(a)(2). Conditional guilty pleas can conserve judicial and governmental resources by dispensing with a full trial when the only real issue is 

determined in a pretrial motion. As in the federal courts, the 

absence of clear authority in courts-martial for such a procedure 

has resulted in some uncertainty 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: 

The requirement of approval by the court is most 

appropriate, as it ensures, for example, that the defendant is not allowed to take an appeal on the 

matter which can only be fully developed by 

proceeding to trial (citation omitted). As for consent 

by the government, it will ensure that conditional 

pleas will be allowed only when the decision of the 

court of appeals will dispose of the case either by 

allowing the pleas to stand or by such action as 

compelling dismissal of the indictment or suppressing essential evidence. Absent such circumstances, 

the conditional plea might only serve to postpone 

the trial and require the government to try the case 

after substantial delay, during which time witnesses 

App. 21, R.C.M. APPEl 

which had the effect of adding illegal terms to the agreement; the 


plea was held provident). 


(g) Findings. This subsection is based on the last paragraph of 


paragraph 70b of MCM, 1969 (Rev.). See also Articles 39(a)(3) 


and 52(a)(2). The discussion is new and recognizes that it may be 


unnecessary and inappropriate to bring to the 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). 

1990 Amendment: The discussion to the subsection was 


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 70b of 

MCM, 1969 (Rev.). Note that once a plea of guilty is accepted 

the accused may withdraw it only within the discretion of the 

military judge. Before the plea is accepted, the accused may 

withdraw it as a matter of right. See United States v. Leonard, 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 706 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) Record of proceedings. This subsection is based on subparagraph (4) of the fist paragraph of paragraph 706 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 01.7. This subsection parallels Fed. R. Crim. P. ll(g), except 

insofar as the former allows for nonverbatim records in inferior 

courts-martial. See Article 54(b). 

0) Waiver. This subsection replaces the third paragraph in paragraph 70a 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. Ale5 3 

M.J. 414 (C.M.A. 1977). This subsection is based on Menna v. 

New York, 423 U.S. 61 (1975); Tollen v. Henderson, 411 U.S. 

258 (1973); Parker v. North Carolina, 397 U.S. 790 (1970); 

McMann v. Richardron, 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 61j of MCM, 1969 

(Rev.). It is normally appropriate to assemble the court-martial at 

these points to protect the parties from untimely 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 53d(2)(c) and 61b 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. 8 1864(a). 

See also ABA Standards, Trial by Jury 0 2.l(b) (1979). It is not 

irl'ended that questionnaires will be used as a complete substitute 

for voir dire. As to investigations of members, see also ABA 

Standards, The Prosecution Function 8 3-5.3(b) (1979); The Defense Function 0 4-7.2(b) (1979). 

Subsection (2) recognizes that in order to challenge the selection of the membership of the court-martial (see subsection (b) of 

this rule) discovery of the materials used to select them is necessary. Such discovery is already common. See, e.g., United States 

v. Greene, 20 U.S.C.M.A. 232, 43 C.M.R. 72 (1970); United 

States v. Herndon, 50 C.M.R. 166 (A.C.M.R. 1975); United 

States v. Perry, 47 C.M.R. 89 (A.C.M.R. 1973). The purpose of 

this procedure is analogous to that of 18 U.S.C. $0 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. 0 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)), improper selection of members is not a jurisdictional defect. United 

States v. Daigle, supra. See also S. Rep. No. 53, 98th Cong., 18th 

Sess. 12 (1983). C& 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 626 of MCM, 1969 (Rev.). 

(d) Examination of members. This subsection is based on Fed. R. 

Crim. P. 24(a). Paragraph 62b and h of MCM, 1969 (Rev.) 

discussed questioning members. Paragraph 62b provided that ". . . the trial or defense counsel may question the court, or individual 

members thereof." United States v. Slubowski, 7 M.J. 461 

(C.M.A. 1979), reconsideration not granted by equallv divided 
ANALYSIS App. 21, R.C.M. 

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 !j 2.4 (1979). As to the 

scope of voir due 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 !j 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 62h(2) of MCM, 1969 (Rev.). 

(0 Challenges and removal for cause. See generally Article 

41(a). Subsection (1) is based on Article 25 and paragraph 62f of 

MCM, 1969 (Rev.). The examples in the last paragraph of paragraph 62f have been placed in the discussion. . 

Subsection (2) is based on paragraphs 62d and h(1) of MCM, 

1969 (Rev.). 

Subsection (3) is based on Article 41(a) and paragraph 62h of 

MCM, 1969 (Rev.). The first sentence is new. MCM, 1969 (Rev.) 

was silent on this matter. The procedure is intended to protect the 

parties from prejudicial disclosures before the members, and is in 

accord with practice in many courts-martial. Paragraph 62h(2) of 

MCM, 1969 (Rev.) advised that the military judge "should be 

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 

States v. Dyche, 8 U.S.C.M.A. 430, 24 C.M.R. 240 (1957); 

United States v. Wove, 8 U.S.C.M.A. 247, 24 C.M.R. 57 (1957). 

Grounds (A) and (B) in subsection (f)(l) may not be waived, 

except as noted. See generally H. R. Rep. No. 491, 81st Cong, 1st 

Sess. 17-18 (1949); 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. 1983); United States v. Kimball, 13 M.J. 659 

(N.M.C.M.R. 1982); United States v. Tagert, 11 M.J. 677 

(N.M.C.M.R. 1981); United States v. Scott, 25 C.M.R. 636 

(A.B.R. 1957). Contra United States v. Anderson, 10 M.J. 803 

(A.F.C.M.R. 1981). The Court of Military Appeals has held that 

the presence of a statutorily ineligible member is not a jurisdictional defect. 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 

Servicesz, 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 

consistent with federal practice. See, e.g., United States v. 

Richardson, 582 F.2d 968 (5th Cir. 1978). The third sentence 

clarifies the effect of using or failing to use a peremptory challenge after a challenge for cause is denied. This has been a 

subject of some controversy. See United States v. Harris, 13 M.J. 

288 (C.M.A. 1982); United States v. Russell, 43 C.M.R. 807 

(A.C.M.R. 1971) and cases cited therein. Failure to use a peremptory challenge at all has been held to waive any issue as to denial 

of a challenge for cause. United States v. Henderson, 11 

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 62e of MCM, 1969 

(Rev.) stated that a peremptory challenge "may be used before, 

during, or after challenges for cause." Subsection (1) does not 

prevent a party from exercising a peremptory challenge before 

challenges for cause, but it protects a party against being compelled to use a peremptory challenge before challenges for cause 

are made. Each party is entitled to one peremptory challenge. 

Article 41(b); United States v. Calley, 46 C.M.R. 1131, 1162 

(A.C.M.R.), 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. 240) is inapplicable. 

1994 Amendment.The Discussion for R.C.M. 912(g)(l) 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 62d and the last sentence of paragraph 62h(4) of 

MCM, 1969 (Rev.). The last sentence in the discussion is also 

based on United States v. Lee, 31 C.M.R. 743 (A.F.B.R. 1962). 

(h) Special courts-martial without a military judge. This subsection is based on Articles 41, 51(a), and 52(c) and on paragraph 

62h(3) of MCM, 1969 (Rev.). 

(i) Definitions. Subsection (2) is based on paragraph 63 of MCM, 

1969 (Rev.). See also United States v. Grrfin, 8 M.J. 66 (C.M.A. 

1979); United 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 
App. 21, R.C.M. APPEF 

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. 141 (C.M.A. 1975). 

(b) Opening statement. This subsection is based on the fust of 

paragraph of paragraph 44g(2) and the first paragraph of paragraph 48i of MCM, 1969 (Rev.). The discussion is taken from 

MA Standards, The Prosecution Function 8 3-5.5 (1979); The 

Defense Function 8 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 fust sentence of Fed. R. Crim. P. 

26. The first paragraph of the discussion of subsection (2) is 

based on paragraphs 44g(2), 48i, and 54a of MCM, 1969 (Rev.) 

and Mil. R. Evid. 611 and 614. The second paragraph of the 

discussion is based on paragraphs 54d and g of MCM, 1969 

(Rev.). 

Subsection (3) and the discussion are based on paragraph 54e 

of MCM, 1969 (Rev). 

Subsection (4) is based on paragraph 54c of MCM, 1969 

(Rev.). 

Subsection (5) is based on the fourth sentence of the second 

paragraph of paragraph 71a 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. 8 

3500, which has long been applied in courts-martial. United 

States v. Albo, 22 U.S.C.M.A. 30, 46 C.M.R. 30 (1972); United 

States v. Walbert, 14 U.S.C.M.A. 34, 33 C.M.R. 246 (1963); 

United 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. 

Scoif, 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.), afd, 22 U.S.C.M.A. 534, 

48 C.M.R. 19 (1973); Kesler, The Jencks Act: An Introductory 

Analysis, 13 The Advocate 391 (Nov- Dec. 1981); Lynch, Possession Under the Jencks Act, 10 A.F.JAG Rph. 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, Signijicance 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 iutended 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 

discovery rule (United States v. Ciesielski, 39 C.M.R. 839 

(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 substituted for "in their possession" to make clear that the rule is not 

limited to statements in the personal possession of counsel. See 

18 U.S.C. 8 3500(a). As to the meaning of "in the possession of 

the United States," see United States v. Calley, supra (testimony 

at congressional hearing); see also United States v. Ali, 12 M.J. 

1018 (A.C.M.R. 1982) (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. Brakejield, 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) Production of excised statement. This subsection is taken 

from Fed. R. Crim. P. 26.2(c). Failure of a judge to make the 

required examination on request is error. 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. 5 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. 

Patferson, 10 M.J. 599 (A.F.C.M.R. 1980); Unifrd 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 
ANALYSIS App. 21, R.C.M. 

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. 

26.60. 

In subsection (1) the inclusion of statements approved or 

adopted by a witness is consistent with 18 U.S.C. 8 3500(e)(l). 

See United States v. Jarrie and United States v. Kilmon, both 

supra. 

In subsection (2) the inclusion of substantially verbatim recordings or transcriptions exceeds some interpretations under 18 

U.S.C. 8 3500. See, e.g., United States v. 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. 1 3500 but accessible under a general "military due process" right to discovery). 

Rule 915. Mistrial 

(a) In general. This subsection is based on the second and third 

sentences of paragraph 56e(l) of MCM, 1969 (Rev.). See generally Oregon v. Kennedy, 456 U.S. 667 (1982); Arizona v. Wmhington, 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. Jon, 400 U.S. 

470 (1971); United States v. Perez, 22 U.S. (9 Wheat) 579 

(1824);United States v. Richardson, 21 U.S.C.M.A. 54, 44 

C.M.R. 108 (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 56e(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 56e(l) 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 56e(3) of 

MCM, 1969 (Rev). See also Oregon v. Kennedy, supra; United 

States v. Scoft, 437 U.S. 82 (1978); Arizona v. Washington, 

United States v. Dinitz, Illinois v. Somerville, and United States v. 

Jon, all supra; Gori v. United States, 367 U.S. 364 (1961); 

United States v. Richardson, supra. Subsection (2) notes, as paragraph 56e of MCM, 1969 (Rev.),did not, that a declaration of a 

mistrial after findings does not trigger double jeopardy protections. See United States v. Richardson, supra. Moreover subsection (2) notes that certain types of prosecutorial misconduct 

resulting in mistrial will trigger double jeopardy protections. See 

United States v. Jorn, and United States v. Gori, both supra. See 

also United States v. Dinitz, and Illinois v. 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 

112a of MCM, 1969 (Rev.). See, e.g., United States v. Cuffee, 10 

M.J. 381 (C.M.A. 1981). The first paragraph in the discussion is 

based on the fifth paragraph of paragraph 214 of MCM, 1969 

(Rev.). The second paragraph in the discussion is based onunited 

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 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(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); %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 11 13 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. 

(c) Justification. This subsection and the discussion are based on 

paragraph 216a of MCM, 1969 (Rev.). See also United States v. 

Evans. 17 U.S.C.M.A. 238,38 C.M.R. 36 (1967); 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 195b of MCM (1951). 

(d) Obedience to orders. This subsection is based on paragraph 

216d of MCM, 1969 (Rev.); United States v. Calley, 22 

U.S.C.M.A. 534, 48 C.M.R. 19 (1973); United States v. Cooley, 

16 U.S.C.M.A. 24, 36 C.M.R. 180 (1966). See also United States 

v. Calley, 46 C.M.R. 1131 (A.C.M.R. 1973). 

(e) Self-defense. Subsection (1) is based on the first paragraph of 

paragraph 216c of MCM, 1969 (Rev.). The discussion is based on 

the second paragraph of paragraph 216c of MCM 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. AcosfaVergas, 13 U.S.C.M.A. 388, 32 C.M.R. 388 (1962). 

Subsection (3) is based on the fourth paragraph of paragraph 

216c of MCM, 1969 (Rev.). See also United States v. Sawyer, 4 

M.J. 64 (C.M.A. 1977). The second paragraph in the discussion is 

based on United States v. Jones, 3 M.J. 279 (1977). SPP also 

United States v. Thomas, 11 M.J. 315 (C.M.A. 1981). 

1986 Amendment: References to subsections "(c)(l) or (2)" 

was changed to "(e)(l) or (2)" to correct an error in MCM, 1984. 

A21-61 
App. 21, R.C.M. APPE 

Subsection (4) is based on the third paragraph of paragraph 

216c 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, 

13 U.S.C.M.A. 545, 33 C.M.R. 77 (1963); United States 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 216b of MCM, 1969 (Rev.). See also United States v. 

Tucker, 17 U.S.C.M.A. 551, 38 C.M.R. 349 (1968); United States 

v. Redding, 14 U.S.C.M.A. 242, 24 C.M.R. 22 (1963); United 

States v. Sandoval, 4 U.S.C.M.A. 61, 15 C.M.R. 61 (1954);United 

States v. Small, 45 C.M.R. 700 (A.C.M.R. 1972). 

(g) Entrapment. This subsection and the discussions are based on 

paragraph 216e of MCM, 1969 (Rev.). See also United States v. 

Vanzandt, 14 M.J. 332 (C.M.A. 1982). 

(h) Coercion or duress. This subsection is based on paragraph 

216fof MCM, 1969 (Rev.). Paragraph 216f 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 216g of 

MCM, 1969 (Rev.). See United States v. Cooley, supra; United 

States v. Pinkston, 6 U.S.C.M.A. 700, 21 C.M.R. 22 (1956); 

United States v. Heims, 3 U.S.C.M.A. 418, 12 C.M.R. 174 

(1953). 

(i) Ignorance or mistake of fact. This subsection is based on 

paragraph 216i of MCM, 1969 (Rev.); United States v. Jenkins, 

22 U.S.C.M.A. 365, 47 C.M.R. 120 (1973); 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. Galley, 46 C.M.R. 1131, 1179 (A.C.M.R. 1973), affd, 

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 

least 16 years of age. The changes to R.C.M. 916(b) and (i) 

implement this amendment. 

Q Lack of mental responsibility. Subsection (1) is taken from 

paragraph 120b 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. Vm, 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 

deletes the volitional prong of the American Law Institute'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 C1. & F. 200, 8 Eng. Rep. 718 

(House of Lords. 1843). See also Carroll, Insanity Defense Reform, 114 Mil. L. Rev. 183 (1986). 

Subsection (2) is taken from paragraph 120c of MCM, 1969 

(Rev.). See also United Sintes 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. VIU 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 'diminished responsibility' 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 

have been contended to be somewhat ambiguous regarding 

"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 

ON THE COMPREHENSIVE CRIME CONTROL ACT OF 

1984 AND OTHER CRIMINAL STATUTES ENACTED BY 

THE 98TH CONGRESS 58, 60 @ecember 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 

Mi. L. Rev. 183, 196 (1986). The drafters concluded that Congress intended to eliminate this defense in section 20(a). 

Subsection (3)(A) and the discussion are based on paragraph 

122a of MCM, 1969 (Rev.). Several matters in paragraph 122a 

are covered in other parts of this subsection or in R.C.M. 909. 

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 on paragraph 
ANALYSIS App. 21, R.C.M. 

122b(2) of MCM, 1969 (Rev.). The procedures for an inquiry into 

the mental responsibility of the accused are covered in R.C.M. 

706. 

Subsection (3)(C) is new. Article 51(b) prohibits a military 

judge from ruling finally on the factual question of mental responsibility. It does not, however, require that the question be 

treated as an interlocutory one, and there is no apparent reason for 

doing so. The import of Article 510) is that the issue of mental 

responsibility may not be removed from the facffinder. 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 216j 

of MCM, 1969 (Rev.). The discussion is based on the remainder 

of paragraph 216j 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. 118 (1955); United States v. Bishop, 2 M.J. 741 

(A.F.C.M.R.), pet, denied, 3 M.J. 184 (1977). 

Subsection (2) is based on paragraph 216h of MCM, 1969 

(Rev.). See also United States v. Hernandez, 20 U.S.C.M.A. 219 

43 C.M.R. 59 (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 71a of MCM, 1969 

(Rev.). Paragraph 71a 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 

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 71a of MCM, 1969 (Rev.), 

except that now a statement of the deficiencies of proof is required. This will enable the trial counsel to respond to the motion. 

(c) Procedure. This subsection is new, although it conforms to 

current practice. By ensuring that counsel may be heard on the 

motion, a precipitant ruling will be avoided. This is important 

since a ruling granting the motion may not be reconsidered. See 

United States v. Hitchcock, 6 M.J. 188 (C.M.A. 1979). The first 

paragraph in the discussion is based on the fifth sentence of the 

second paragraph of paragraph 71a of MCM, 1969 (Rev.). 

(d) Standard. This subsection is based on the fourth sentence of 

the second paragraph of paragraph 71a 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) Motiot~ 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. 

I994 Amendment. The amendment to subsection (4 clarif~es 

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. Grififh, 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 fmder of 

fact. 

(g) Effect of denial on review. This subsection is based on the 

last sentence of the fust paragraph of paragraph 71a 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) . . General -findings. - This subsection and the discussion are

based on paragraphs 74b and c of MCM, 1969 (Rev.). The discussion of lesser included offenses is also based on Article 80. 

See also United States v. Scott, 50 C.M.R. 630 (C.G.C.M.R. 

1975). 

Failure to ren~.:~ 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)(l) and (2) to implement Article jOa(c), which 

was added to the UCMJ in theZ'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. 8 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. 8 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)(l) 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. Tkis serves to conform military 

practice to that used in criminal trials before federal district 

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 

A21-63 
App. 21, R.C.M. APPENDIX 21 

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 74i 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. 1977); United States v. Hussey, 1 M.J. 804 

(A.F.C.M.R. 1976); United States v. Baker, 47 C.M.R. 506 

(A.C.M.R. 1973);United States v. Falin, 43 C.M.R. 702 

(A.C.M.R. 1971); United States v. Robertson, 41 C.M.R. 457 

(A.C.M.R. 1969); Schinasi, Special Findings: Their Use at Trial 

and on Appeal, 87 Mil.L.Rev. (Winter 1980). 

The requirement that a request for special findings be made 

before general findings are announced is based on the fifth sentence of paragraph 74i of MCM, 1969 (Rev.), and on Fed. R. 

Crim. P.23(c). Article 51(d) is patterned after Fed. R. Crim. P. 

23(c). 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 5 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) Basis of findings. This subsection and the discussion are 

based on paragraph 74a of MCM, 1969 (Rev.). The discussion of 

reasonable doubt has been modified based on United States v. 

Cotfen, 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. 1982); United States v. Sauer, 11 M.J. 872 

(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, 5 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), afld, 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 72a of MCM, 1969 

(Rev.). 

(b) Contents. This subsection is based on the fust sentence of the 

second paragraph of paragraph 72b of MCM, 1969 (Rev.). The 

discussion is based on paragraphs 72a and b of MCM, 1969 

(Rev.). See also paragraphs 44g and 48c of MCM, 1969 (Rev.); 

GrrJin 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 u~ebutted 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 

accused permitted; inflammatory argument; misleading argument); United States v. Reiner, 15 M.J. 38 (C.M.A. 1983); United 

States v. Fields, 15 M.J. 34 (C.M.A. 1983); United States v. 

Fitzpatrick, 14 M.J. 394 (C.M.A. 1983) (bringing to members' 

attention that 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 5 3-5.8 (1979), 

The Defense Function 8 4-7.8 (1979). See also United States v. 

Clifon, 15 M.J. 26 (C.M.A. IQ83). 

(c) Waiver of objection to improper argument. This subsection is 

based on Fed. R. Crirn. P. 29.1 and is generally consistent with 

current practice. See United States v. Grandy, 11 M.J. 270 

(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 

allsupra; 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; 

United States v. O'Neal, 16 U.S.C.M.A. 33, 36 C.M.R. 189 

(1966);United States v. Carpenter, 11 U.S.C.M.A. 418, 29 

C.M.R. 234 (1960). 

Rule 920. Instructions on findings 

(a) In general. This subsection is based on the fist sentence of 

paragraph 73a of MCM, 1969 (Rev.). The discussion is based on 

the fust paragraph of paragraph 73a 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 fust sentence of 

paragraph 73a and on paragraph 74e of MCM, 1969 (Rev.), and 

is consistent with Fed. R. Crim. P. 30. This subsection expressl) 

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. Ricketfs, 1 M.J. 78 (C.M.A. 1975). 

1993Amendment: 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 mle. 

The purpose of this amendment is to give the courl discretion 

to instruct the members before or after closing arguments or at 

both times. The amendment will pennit courts to continue instructing the members after arguments as Rule 30 and R.C.M. 
ANALYSIS App. 21, 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 fust 

three sentences in Fed. R. Crim. P. 30 and on the second and 

fourth sentences of paragraph 73d of MCM, 1969 (Rev.). The 

discussion is based on the remainder of paragraph 73d. 

(d) How given. The fust sentence of this subsection is based on 

the last paragraph of paragraph 73a of MCM, 1969 (Rev.). The 

second sentence of this subsection permits the use of written 

copies of instructions without stating a preference for or against 

them. See United States v. Slubowski, 7 M.J. 461 (C.M.A. 1979); 

United States v. Muir, 20 U.S.C.M.A. 188, 43 C.M.R. 28 (1970); 

United States v. Sampson, 7 M.J. 513 (A.C.M.R. 1979); 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 patty objects. This should eliminate the potential problems associated with written instructions.See United 

States v. Slubowski, supra; United States v. Caldwell, 11 

U.S.C.M.A. 257, 29 C.M.R. 73 (1960); United States v. Helm, 21 

C.M.R. 357 (A.B.R. 1956). Giving written instructions is never 

required. The discussion is based on the last paragraph of paragraph 73a of MCM, 1969 (Rev.) and United States v. Caldwell, 

supra. As to the use of written instructions in federal district 

courts, see generally United States v. Read, 658 F.2d 1225 (7th 

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 73a 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 

overturns the holdings in United States v. Wiedemann, 16 

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, 

11 M.J. 36 (C.M.A. 19810; United States v. Evans, 17 

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. Bum, 624 F.2d 95 (10th Cir), cert. 

denied, 449 U.S. 954 (1980). 

The third paragraph in the discussion is based on paragraph 

73a of MCM, 1969 (Rev.) and on Military Judges Benchbook, 

DA Pam 27-9 Appendix A. (May 1982). See also United States 

v. Thomas, 11 M.J. 388 (C.M.A.1981); 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 

on other charges); United States v. Minter, 8 M.J. 867 

(N.C.M.R.), afd, 9 M.J. 397 (C.M.A. 1980); United States v. 

Prowell, 1 M.J. 612 (A.C.M.R. 1975) (effect of accused's absence from trial); United States v. Jackson, 6 M.J. 116 (C.M.A. 

1979); United States v. Farrington, 14 U.S.C.M.A. 614, 34 

C.M.R. 394 (1964) (accused's failure to testify). The list is not 

exhaustive. 

The fourth paragraph in the discussion is based on paragraph 

73c of MCM, 1969 (Rev.). See also United States v. Grandy, 11 

M.J. 270 (C.M.A. 1981). 

1986 Amendment: Subsection (e)(5)@) was amended to conform to amendments to R.C.M. 916(b). 

I998 Amendment: This change to R.C.M. 920(e) implemented 

Congress' creation of a mistake of fact defense for carnal howledge. Article 120(d), UCMJ, provides that 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) Waiver. This subsection is based on the last two sentences in 

Fed. R. Crim. P. 30. See also United States v. Grandy, supra; 

United Stares 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 74d(l) of 

MCM, 1969 (Rev.). The first sentence of that paragraph is unnecessary and the fourth is covered in subsection (b) of this rule. 

(b) Deliberations. The first sentence of this subsection is based 

on the fourth sentence of paragraph 74d(l) of MCM, 1969 (Rev.). 

The second sentence is new but conforms to current practice. See 

United States v. Hurt, 9 U.S.C.M.A. 735, 27 C.M.R. 3 (1958); 

United States v. Christensen, 30 C.M.R. 959 (A.F.B.R. 1961). 

The third 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 546 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 fist sentence of paragraph 73d(2) of MCM, 

1969 (Rev.). 

Subsection (2) is based on Article 52(a) and on the first two 

sentences of paragraph 74d(3) of MCM, 1969 (Rev.). See also 

United States v. Glrilford, 8 M.J. 598 (A.C.M.R. 1979), pet. 

denied, 8 M.J. 242 (1980) (holding Burch v. Louisiana, 441 U.S. 

130 (1979), does not apply to courts-martial.) The discussion is 

based on the third sentence of paragraph 74d(3) of MCM, 1969 

(Rev.). 

Subsection (3) is based on the fourth sentence of paragraph 

74d(3) of MCM, 1969 (Rev.). 
App. 21, R.C.M. APPENDIX 21 

1986Anlendment: 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 

has proven the elements of the offense beyond a reasonable 

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 

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 74d(2) of MCM, 

1969 (Rev.) suggested that findings as to a specification and all 

lesser offenses included therein would be resolved by a single 

ballot. Such an approach is awkward, however, especially when 

there are multiple lesser included offenses. It is more appropriate 

to allow separate consideration of each included offense until a 

finding of guilty has been reached. See Military Judges 

Benchbook, DA Pam 27-9, para. 2.28 (May 1982). 

Subsection (5) is based on the second sentence of Article 51@) 

and on paragraph 74d(2) of MCM, 1969 (Rev.). See also United 

States v. Dilday, 47 C.M.R. 172 (A.C.M.R. 1973). 

(d) Action afer findings are reached. This subsection and the 

discussion are based on paragraphs 74f(l) and 74g of MCM, 1969 

(Rev.). See United States v. Justice, 3 M.J. 451 (C.M.A. 1977): 

United States v. Rickeffs, 1 M.J. 78 (C.M.A. 1975); United States 

v. McAllister, 19 U.S.C.M.A. 420, 42 C.M.R. 22 (1970). The use 

of findings worksheets is encouraged. See United States v. Henderson, 11 M.J. 395 (C.M.A. 1981); United States v. Barclay, 6 

M.J. 785 (A.C.M.R. 1978), pet. denied, 7 M.J. 71 (1979). 

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 74g of MCM, 1969 (Rev.). See also 

United States v. Dilduy, 47 C.M.R. 172 (A.C.M.R. 1973). The 

discussion is based on United States v. Ricketts, 1 M.J. 78 

(C.M.A. 1975); United States v. Stewart, 48 C.M.R. 877 

(A.C.M.R. 1974). The requirement for the announcement to include a statement of the percentage of members concurring in 

each finding of guilty and that the vote was by secret written 

ballot has been deleted. Article 53 does not require such an 

announcement and when instructions on such matters are given 

(see R.C.M. 920(e)(6)), the members are "presumed to have complied with the instructions given them by the judge," 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 74g of MCM, 1969 (Rev.). The last sentence is based on the last sentence of paragraph 706 of MCM, 

1969 (Rev.). 

1986 Amendment: R.C.M. 922@) 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 reaffied 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 706 and on the 

second paragraph of paragraph 74g of MCM, 1969 (Rev.) See 

also Article 39(a). 

(d) Erroneorrs announcement. This subsection is based on the 

third and fourth sentences of paragraph 74g 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 Courfi-Mariial Practice 

and Appeal 8 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), affd 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 
- - 

ANALYSIS App. 21, R.C.M. 

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. Camright, 13 M.J. 174 

(C.M.A. 1982); United States v. Clark, U.S.C.M.A. 140, 42 

C.M.R. 332 (1970); United States v. Ford, 12 U.S.C.M.A. 3, 30 

C.M.R. 3 (1960). 

Rule 924. Reconsideration of findings 

(a) Time for reconsideration. This subsection is based on Article - 52(c) and on the fourth and fifth sentences of paragraph 74d(3) of 

MCM, 1969 (Rev.). 

(b) Procedure. This subsection is based on Articles 52(a) and 

53(c) and on the last three sentences of paragraph 74d(3) of 

MCM, 1969 (Rev.). See also United States v. Boland, 20 

U.S.C.M.A. 83, 42 C.M.R. 275 (1970). 

1987 Amendment: R.C.M. 924@) 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. Chafman, 

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 

information to the court-martial as would be contained in a 

presentence report, but it does so within the protections of an 

adversarial proceeding, to which rules of evidence apply (but c$ 

Williams v. New York, 337 U.S. 241 (1949)), although they may 

be relaxed for some purposes. See subsections (b)(4) and (5), 

(c)(3), (d), and (e) of this rule. The presentation of matters in the 

accused's service records (see subsection (b)(2) of this rule) 

provides much of the information which would be in a presentence report. Such records are not prepared for purposes of prosecution (cf: United States v. Boles, 11 M.J. 195 (C.M.A. 1981)) 

and are therefore impartial, like presentence reports. In addition, 

the clarif~cation of the types of cases in which aggravation evidence may be introduced (see subsection (b)(4) of this rule) and 

authorization for the trial counsel to present opinion evidence 

about the accused's rehabilitative potential (see subsection (b)(5) 

of this rule) provide additional avenues for presenting relevant 

information to the court-martial. The accused retains the right to 

present matters in extenuation and mitigation (see subsection (c) 

of this rule). 

In addition to Fed. R. Crim. P. 32(c), several other subsections 

in Fed. R. Crim. P. 32 are inapplicable to courts-martial or are 

covered in other rules. Fed. R. Crim. P. 32(a)(2) is covered in 

R.C.M. 1010. Fed. R. Crim. P. 32(b)(l) is inapposite; parallel 


matters are covered in R.C.M. 11 14. Fed. R. Crim. P. 32@)(2) is 


inapplicable as courts-martial lack power to adjudge criminal for- 


feiture of property. Fed. R. Crim. P. 32(d) is covered in R.C.M. 


910(h). See also Article 45(a). As to Fed. R. Crim. P. 32(e), see 


R.C.M. 1108. 


(a) In general. Subsection (a)(3) is based on the third sentence of 


paragraph 53h of MCM, 1969 (Rev.) and on the second sentence 


of Fed. R. Crim. P. 32(a). See also Hill v. United States, 368 U.S. 


424 (1962); Green v. United States, 365 U.S. 301 (1961). Subsec- 


tion (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 


fust 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 75b(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 

sentencing. No similar restriction applies in Federal civilian 

courts. This subsection parallels Mil. R. Evid. 609. An exception 

is provided for summary courts-martial and special courts-martial 

without a military judge. See Analysis, Mil. R. Evid. 609. 

Whether the adjudication of guilt in a civilian forum is a convicA2147 
App. 21, R.C.M. APPENDIX 21 

tion will depend on the law in that jurisdiction. 

1986 Amendment: The reference to "Article 65(c)" was 

changed toC'Article 64" to correct an error in MCM, 1984. 

Subsection (4) makes clear that evidence in aggravation may be 

introducted whether the accused pleaded guilty or not guilty, and 

whether or not it would be admissible on the merits. This is 

consistent with the interpretation of paragraph 75b(3) (later 

amended to be paragraph 75b(4) of MCM, 1969 (Rev.) by Exec. 

Order No. 12315 (July 29, 1981)) in 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 Recornrnendation 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. 

Rose, 6 M.J. 754 (N.C.M.R. 1978), pet. denied, 7 M.J. 56 

(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). 

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). C$ Fed. 

R. Crim. P. 32(c)(3).) Subsection (5) authorizes the trial counsel 

to present, in the form of opinion testimony (see Mil. R. Evid., 

Section VII), evidence of the accused's character as a servicemember and rehabilitative potential. Note that inquiry into 

specific instances of conduct is not permitted on direct examination, but may be made on cross-examination. Subsection (5) will 

allow a more complete presentation of information about the 

accused to the court-martial. The accused's character is in issue 

as part of the sentencing decision, since the sentence must be 

tailored to the offender. Cf: United States v. Lania, 9 M.J. 100 

(C.M.A. 1980). Therefore, introduction of evidence of this nature 

should not be contingent solely upon the election of the defense. 

Information of a similar nature, from the accused's employer or 

neighbors, is often included in civilian presentencing reports. See, 

e.g., Fed. R. Crim. P. 32(c)(2). Subsection (5) guards against 

unreliable information by guaranteeing that the accused will have 

the right to confront and cross-examine such witnesses. 

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. Homer, 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 

nonproduction. See United States v. Gonzalez, 16 M.J. 58 

(C.M.A. 1983). 

(f) Additional matters to be considered. This subsection is based 

on the thud and fourth sentences of paragraph 76a(2) of MCM, 

1969 (Rev.) and on the fist 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 76a(l) 

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)(l)) 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 lV.The automatic 

suspension of limitations at paragraph of paragraph 127c(5) of 

MCM, 1969 (Rev.) is deleted since the maximum punishments 

now include appropriate adjustments in the maximum authorized 

punishment in time of war or under other circumstances. 

(a) In general. This subsection provides express authority for 

adjudging any authorized punishment in the case of any person 

tried by 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 126f of MCM, 1969 

(Rev.). Admonition has been deleted as unnecessary. 

Subsection (2) is based on paragraphs 126h(l) and (2) of 

MCM, 1969 (Rev.). 

1990 Amendment: Subsection (b)(2) was amended to incorporate the statutory expansion of jurisdiction over inactive-duty reserve component personnel provided in the Military Justice 

Amendments of 1986, tit. VIII, 8 804, 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 bed 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 126h(3) of MCM, 1969 

(Rev.). See R.C.M. 1113(d)(4) and Analysis concerning possible 

issues raised by enforcing a fine through confiiement. 

Detention of pay (paragraph 126h(4) of MCM, 1969 (Rev.)) 

has been deleted. This punishment has been used very seldom and 

is administratively cumbersome. 

Subsection (4) is based on paragraph 126i of MCM. 1969 

(Rev.). 

Subsection (5) is based on the second paragraph of paragraph 

126e 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 126e of MCM, 1969 (Rev.). 

Subsection (6) is based on paragraph 126g and on the ninth 

sentence of the second paragraph 127c(2) of MCM, 1969 (Rev.). 

The equivalency of restriction and confinement has been incorpo- 
ANALYSIS App. 21, R.C.M. 

rated here and is based on the table of equivalencies at paragraph 

127c(2) of MCM, 1969 (rev.). See also Article 20. 

Subsection (7) and the discussion are based on paragraph 126k 

of MCM, 1969 (Rev.). The last sentence in the rule is new and is 

based on the table of equivalent punishments at paragraph 

127c(2) of MCM, 1969 (Rev.) See also Article 20. 

Subsection (8) is based on paragraph 126j of MCM, 1969 

(Rev.). Matters in the second paragraph of paragraph 126j 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 l27c(2) of 

MCM, 1969 (Rev.). 

Subsection (10)(A) is based on the second paragraph of paragraph 126d of MCM, 1969 (Rev.). Subsections (lo)@) and (C) 

are based on paragraphs 76a(3) and (4) and 127c(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 126d 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 (lo)@) to maintain the parallelism 

with subsection (10)(A), which governs dismissal of commissioned officers, commissioned warrant officers, cadets, and midshipmen. 

As to subsection (ll), see R.C.M. 1004. 

Subsection (12) is based on Article 18. 

Subsections (6), (7). and (9) incorporate equivalencies for 

restriction, hard labor without confinement, confinement, and 

confinement on bread and water or diminished rations. This 

makes the table of equivalent punishments at paragraph 127c(2) 

of MCM, 1969 (Rev.) unnecessary and it 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. 

(c) Limits on punishments. Subsections (l)(A) and (B) are based 

on paragraph 127c(l) of MCM, 1969 (Rev.). Subsection (l)(C) is 

based on the first 3 sentences and the last sentence of paragraph 

76a(5) of MCM, 1969 (Rev.). See Blockburger v. United States, 

284 U.S. 299 (1932); United States v. Washington, 1 M.J. 473 

(C.M.A. 1976). S~P also Missouri v. Hunter, 459 U.S. 359 

(1983); United States v. Baker, 14 M.J. 361 (C.M.A. 1983). The 

discussion is based on paragraph 76a(5) of MCM, 1969 (Rev.). 

As to the third paragraph in the discussion, see e.g., United States 

v. Posnick, 8 U.S.C.M.A. 201, 24 C.M.R. 11 (1957). C' 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. 

1977);United States v. Hughes, 1 M.J. 346 (C.M.A. 1976); United 

States v. Burney, 21 U.S.C.M.A. 71, 44 C.M.R. 125 (1971). 

Subsection (2)(A) is based on paragraph 126d of MCM, 1969 

(Rev.). Paragraph 127a of MCM, 1969 (Rev.) provided that the 

maximum punishments were "not binding" in cases of officers, 

but could "be used as a guide." Read in conjunction with paragraph 126d of MCM, 1969 (Rev.) these provisions had the practical effect of prescribing no 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 1276 of MCM, 1969 

(Rev.). It serves as a reminder that the limits on punishments may 

be affected by other rules, which are referred to in the discussion. 

The last sentence in subsections (1) and (2) is new. Under 

R.C.M. 1001(b)(3), a court-martial conviction may now be considered by the sentencing body whether or not it is final. Allowing such a conviction to affect the maximum punishment may 

cause later problems, however. The subsequent reversal of a conviction would seldom affect a sentence of another court-martial 

where that conviction was merely a factor which was considered, 

especially when the pendency of an appeal may also have been 

considered. However, reversal would always affect the validity of 

any later discharge or confinement for which it provided the 

basis. 

I986 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, 5 804, 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 127c of MCM, 1969 (Rev.). See also United 

States v. Timmons, 13 M.J. 431 (C.M.A. 1982). The last two 

sentences in the discussion are based on United States v. Mack, 9 

M.J. 300 (C.M.A. 1980); United States v. Booker, 5 M.J. 238 

(C.M.A. 1977), vacated in part, 5 M.J. 246 (C.M.A. 1978). Cf: 

United States v. Cofield, 11 M.J. 422 (C.M.A. 1981). 

I995 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 courtmartial punishment. Subsections (d)(10) through (d)(12) were 

redesignated (d)(9) through (d)(ll), 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. 11, 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. 

Matthews, supra; United States v. Rojas, 15 M.J. 902 

(N.M.C.M.R. 1983). See also United States v. Gay, 16 M.J. 586 
App. 21, R.C.M. APPENDIX 21 

(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 Marthews 

decision was issued. The holding in Marthews 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 Marthews. 

Capital punishment is not unconstitutional per se. Gregg v. 

Georgia, 428 U.S. 153 (1976); United States v. Marthews, supra. 

Capital punishment does not violate Article 55. Compare Article 

55 with Articles 85, 90, 94, 99-102, 104, 106, 110, 113, 118, and 

120. See United States v. Maffhews, supra. But cf: Id. at 382 

(Fletcher, J., concurring in result) (absent additional procedural 

requirements, sentence of death violated Article 55). The 

Supreme Court has established that capital punishment does not 

violate the Eighth Amendment (U.S. Const. amend. VIII) unless 

it: "makes no measurable contribution to acceptable goals of 

punishment and hence is nothing more than a purposeless and 

needless imposition of pain and suffering"; "is grossly out of 

proportion to the crime" (Coker v. Georgia, 433 U.S. 584, 592 

(1977)); or is adjudged under procedures which do not adequately 

protect against the arbitrary or capricious exercise of discretion in 

determining a sentence.Furman v. Georgia, 408 U.S. 238 (1972). 

Cf: Barclay v. Florida, 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); Profitt 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); Lockert 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); 

Woodron v. North Carolina, 428 U.S. 280 (1976). In Matthews 

the Court of Mitary Appeals suggested that similar considerations apply with respect to Article 55's prohibitions against cruel 

and unusual punishment. United States v. Marthews, 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 

A21-70 

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 Fumn 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 Constih~- 

tion: There is Life Afler 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 Constifutionality 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. Marthews, 

supra at 368. The court added that curreut military capital sentencing procedures are constitutionally adequate in the following 

respects: (1) there is a separate sentencing process in which the 

members are instructed by the military judge as to their duties; 

(2) certain aggravating factors (e.g., premeditation) must be found 

by the members during findings, and evidence of other aggravating circumstances may be submitted during sentencing; (3) the 

accused has an unlimited opportunity to present relevant evidence 

in extenuation and mitigation; and (4) mandatory review is required by a Court of Military Review, and the Court of Military 

Appeals, with further consideration by the President. United 

States v. Marthews, supra at 377-78. The court held that the 

procedure is defective, however, in that the members are not 

required to "specifically identlfy the aggravating factors upon 

which they have relied in choosing to impose the death penalty," 

id. at 379, at least with respect to a peacetime murder case. See 

id. at 368. 

The Court of Military Appeals stated in Marthews that constitutionally adequate procedures for capital cases may be promulgated by the Presidentld. at 380-81. The President's unique 

authority over military justice, particularly its procedure and punishments is well established. See U.S. Const. Art.11, $ 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 

vm, 5 801(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 tl7c 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. 1978); W. Winthrop, Military Law and Precedents 

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 co~isidered 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 
.YSIS App. 21, R.C.M. 

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. 

Maithews, 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 

the fust 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 8 

201.6(3), (4) (Tent. Draft No. 9, 1959) (quoted at Gregg. v. 

Georgia,supra at 193 11.44). The ABA Standards do not include 

specific provisions for capital punishment. See ABA Standards, 

Sentencing Alternatives and Procedures 1 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 

adjudge death entirely to the jury. See Ga. Code Ann. 85 

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. 5 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. 8 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 Locken 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. 

Subsection(4)(A) establishes the second "threshold" which 

must be passed before death may be adjudged, The requirement 

that at least one specific aggravating circumstance be found beyond a reasonable doubt is common to many state statutory 

schemes for capital punishment. See, e.g., Del. Code Ann. tit. 11, 

8 4209(d)(1977); Ark. Stat. Ann. 8 41-1302(1977); Ill. Ann. Stat. 

Ch. 38, !j 9-l(f)(Smith-Hurd 1979), La. Code Crim. Roc. 8 905.3 

(West Supp 1982); Md. Ann. Code Art. 27 8 413(d)(1982); Ind. 

Code Ann. 1 35-50-2-9(a)(Burns 1979). See generally United 

States v. Maithews, 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 
App. 21, R.C.M. APPENDIX 21 

R.C.M. 1001(c)(l) and (f)(l). 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 Locken 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)(l) and (f)(l)) and so instructs the members. In contrast to 

subsection (b)(4)(A) there is no requirement that the members 

agree on all aggravating, extenuating, and mitigating circumstances under subsection (4)(B) in order to adjudge death. Each 

member must be satisfied that any aggravating circumstances, 

including those found under subsection (4)(A) substantially outweigh any extenuating or mitigating circumstances, before voting 

to adjudge death. 

The test is not a mechanical one. Cf:Zunt 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 faimess and 

mercy, may be considered as extenuating or reducing the degree] 

of moral culpabilty 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). 

1986Amendnzent: 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 

which the members could find an aggravating circumstance 

would result in no instruction being given on that circumstance. 

Cf: R.C.M. 917 The last sentence in this subsection is based on 

Eddings v. Oklahoma and Lockett v. Ohio, both supra. 

Subsection (7) is based on Article 52(b)(l). The requirement 

for a separate specific finding of one or more aggravating circumstances is new, and is designed to help ensure that death will not 

A21-72 

be adjudged in an inappropriate case. Subsection (8) operates as a 

check on this procedure. 

(c) Aggravating circumstances. The lists of aggravating circumstances under the laws of the states retaining capital punishment 

were examined and used as guidance for formulating the aggravating circumstances listed here. Those jurisdictions do not include certain military capital offenses, of course, such as 

desertion, mutiny, misbehavior as a guard, nor do they address 

some of the unique concerns or problems of military life. Therefore, several circumstances here are unique to the military. These 

circumstances, which apply to rape and murder, except as specifically noted, are based on the determination that death is not 

grossly disproportionate for a capital offense under the code when 

such circumstances exist, and that the death penalty contributes to 

accepted goals of punishment in such cases. As to proportionality, 

the aggravating circumstances together ensure that death will not 

be adjudged except in the most serious capital offenses against 

other individuals or against the nation or the military order which 

protects it. As to goals of punishment, in addition to specifically 

preventing the most dangerous offenders from posing a continuing danger to society, the aggravating circumstances recognize the 

role of general deterrence, especially in combat setting. See 

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)(l) of this 

rule. Note, however, that the members would have to return a 

specific finding under this rule of such an aggravating circumstance before a sentence of death 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 8 

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. 8 401 (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 
ANALYSIS App. 21, R.C.M. 

all ham 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 

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 106a. 

Subsection (4) is similar to an aggravating circumstance in 

many states.See, e.g., Neb. Rev. Stat. 5 29-2523(1)(f)(1979); 

Miss. Code. Ann. 5 99-19-101(5)(c)(1981 Supp.); Ga. Code Ann. 

5 17-10-30(b)(1982). This circumstance applies to all capital 

offenses (except rape) under the code: rape is excluded based on 

Coker v. Georgia, supra. 

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 

appropriate to exclude 104 from this aggravating factor. See 

R.C.M. 1004(c)(ll). 

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 diiculties for maintaining discipline in combat zones and occupied 

territories. History has demonstrated that in such an environment 

rape and murder become more tempting. At the same time the 

need for order in the force, in order not to encourage resistance 

by the enemy and to pacify the populace, dictates that the sanctions for such offenses be severe. Once again, in a combat environment, confinement, even of a prolonged nature, may be an 

inadequate deterrent. 

Subsections (7) and (8) are based generally on examination of 

the aggravating circumstances for murder in various states. Subsection (7)(A) is intended to apply whether the sentence is adjudged, approved, or ordered executed, as long as, at the time of 

the offense, the term of confinement is at least 30 years or for 

life. The possibility of parole or early release because of "good 

time" or similar reasons does not affect the determination. Subsection (7)(F) is based on 18 U.S.C. $8 351, 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 Godfvey 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. 5 

848(e) (Pub. L. 100-690, $7001(a)(2)). 

1986 Amendment: Three changes were made in 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 extended to include foreign leaders in specified circumstances. 

These changes are similar to legislation approved by the Senate in 

S. 1765, 98th Cong., ist Sess. (1983). 

1994 Amendment: The amendment to subsection (c)(7)(I) of 

this ~le dfines "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 

United States v. Murphy, 30 M.J. 1040, 1056-1058 (ACMR 

1990). 

1991 Amendment: Subsection (c)(8) was based on the 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 Enmrrnd culpability requirement is satisfied when a de 

fendant 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 tile 

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). 

1986Amendment: R.C.M. 1004(c)(ll) was added to implement 

the statutoly aggravating factors found in new Article 106a. The 

aggravating factors in R.C.M. 1004(c)(ll) were also considered 

appropriate for violations of Article 104. It is intended that the 

phrase "imprisonment for life was authorized by statute" in Article 106a(c)(l) 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. 55 818 and 855). 

(d) Spying. This subsection is based on Article 106. Congress 

recognized that in case of spying, no separate sentencing dpterrnination is required. See Article 52(a)(l). The rule provides for 

sentencing proceedings to take place, so that reviewing authorities 

will have the benefit of any additional relevant information. 

A21-73 
App. 21, R.C.M. APPENDIX 21 

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 Funnan 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 

126a of MCM, 1969 (Rev.), which was in turn based on JAGA 

1946110582; SPJGA 194519511; 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. 

Rule 1005. Instructions on sentence 

Introduction. Except as noted below, this rule and the discussion are taken from paragraph 76b(l) of MCM, 1969 (Rev.). 

(a) In general. Regarding the discussion see generally United 

States v. Mamaluy, 10 U.S.C.M.A. 102, 106-07, 27 C.M.R. 176, 

180-81 (1959). See also United States v. Lania, 9 M.J. 100 

(C.M.A. 1980)(use of general deterrence); United States v. 

Smalls, 6 M.J. 346 (C.M.A. 1979); United States v. Slaton, 6 M.J. 

254 (C.M.A. 1979) (mental impairment as matter in mitigation); 

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. 421 (A.C.M.R. 1970) (effect of accused's absence); 

United States v. Larochelle, 41 C.M.R. 915 (A.F.C.M.R. 1969) 

(Vietnam service). 

(b) When given. See Fed. R. Crim. P. 30 and paragraph 74e of 

MCM, 1969 (Rev.). 

(c) Requests for instructions. See Fed. R. Crim. P. 30 and United 

States v. Neal, 17 U.S.C.M.A. 363, 38 C.M.R. 161 (1968). The 

discussion is based on Fed. R. Crim. P. 30 and paragraph 73d of 

MCM, 1969 (Rev.). 

(d) How given. See Analysis, R.C.M. 921(d). 

(e) Required instructions. The reference in the fourth sentence of 

the discussion of subsection (1) to rehearing or new or other trial 

is based on paragraph 81d(l) of MCM, 1969 (Rev.). The second 

sentence of the first paragraph and the second paragraph of the 

discussion to (1) are based on 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 

sentence of paragraph 76b(l) of MCM, 1969 (Rev.) and on 

United 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 

Fiscal Year 1996, Pub. L. No. 104-106, 110 Stat. 186, 463 

(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 766(2) 

and (3) of MCM, 1969 (Rev.). 

(a) In general. The first sentence is based on the fust sentence of 

paragraph 76b(l) 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). 

(d) Voting. As to subsection (3)(A) see United States v. Hendon, 

6 M.J. 171, 172-73 (C.M.A. 1979); United States v. Cafes, 39 

C.M.R. 474 (A.B.R. 1968). 

As to subsection (d)(5), the second sentence of the third paragraph of paragraph 76b(2) of MCM, 1969 (Rev.) has been limited 

to Article 118 offenses because, unlike Article 106, fidings on 

an Article 118 offense do not automatically determine the sentence and do not require a unanimous vote. See Articles 52(a)(l) 

and (2). Thus a separate vote on sentence for an Article 105 

offense is unnecessary. 

As to subsection (d)(6) see United States v. Jones, 14 

U.S.C.M.A. 177, 33 C.M.R. 389 (1963). The reference to no 

punishment was added to recognize this added alternative. 

(e) Action after sentence is reached. See United States v. Justice, 

3 M.J. 451, 453 (C.M.A. 1977). The second paragraph of the 

discussion is based on the second sentence of paragraph 76c. 

Rule 1007. Announcement of sentence 

Introduction. Except as noted below, this rule and the discussion are based on paragraph 76c of MCM, 1969 (Rev.). 

(a) In general. The discussion is based on 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 reference to the percentage of agreement or an affirmation that 

voting was by secret written ballot has been deleted. Article 53 

does not require such an announcement, and when instructions 

incorporating such matters are given, the court-martiall'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). 
ANALYSIS App. 21, R.C.M. 

Rule 1009. Reconsideration of sentence 

Introduction. Except as noted below, this rule and discussion are based on Articles 52(c) and 62 and paragraphs 76c and d 

of MCM, 1969 (Rev.). 

(c) Initiation 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 - judge's jurisdiction. Since this action "undercuts the review 

powers" (Id. at 850) only to the extent that it reduces the upper 

limits available to reviewing authorities, there is no reason to 

prevent the military judge from considering additional matters 

before finalizing the sentence with authentication. Furthermore, 

granting the military judge power to reconsider an announced 

sentence recognizes that when sitting without members, the judge 

performs the same functions as the members. See Article 16. 

The procedures in subsection (2)(B) are necessary corollaries 

of those set out in the fifth and sixth sentences of paragraph 76c, 

MCM, 1969 (Rev.) adapted to the rules for reconsideration. This 

clarifies that a formal vote to reconsider is necessary when reconsideration is initiated by the military judge. MCM, 1969 (Rev.) 

was unclear in this regard. See United States v. King, 13 M.J. 838 

(A.C.M.R.), pet. denied, 14 M.J. 232 (1982). 

Subsection (3) is based on Article 62@) 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 discretionary authority to return an ambiguous sentence for 

clarification. or take action consistent with R.C.M. 1107. 

Rule 101 0. Advice concerning post-trial and 

appellate rights 

This rule is based on S.Rep. No. 53, 98th Cong., 1st Sess. 18 

(1983). See also Articles 60, 61, 64, 66, 67, and 69. It is similar 

to Fed.R.Crim. P. 32(a)(2), but is broader in that it applies 

whether or not the accused pleaded guilty. This is because the 

accused's post-trial and appellate rights are the same, regardless 

of the pleas, and because the powers of the convening authority 

and the Court of Military Review to reduce the sentence are 

important even if the accused has pleaded guilty. 

1986Amendment: 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. 

1991Amendment: 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 101 1. Adjournment 

This rule is based on paragraph 776 of MCM, 1969 (Rev.). 

CHAPTER XI. POST-TRIAL PROCEDURE 

Rule 1101. Report of result of trial; post-trial 

restraint; deferment of confinenient 

(A) Report of the result of trial. This subsection is based on the 

first two sentences of paragraph 44e of MCM, 1969 (Rev.). 

(B) Post-trial confinement. Subsection (1) is based on Article 

57@) and on the last sentence of paragraph 44e of MCM, 1969 

(Rev.). Subsection (1) makes clear that confinement is authorized 

when death is adjudged, even if confinement is not also adjudged. 

See United States v. Maffhews,13 M.J. 501 (A.C.M.R.), rev'd on 

orher grounds, 16 M.J. 354 (C.M.A. 1983). See also R.C.M. 

1004(e) and Analysis. 

Subsection (2) is based on Article 57 and on paragraph 21d of 

MCM, 1969 (Rev.). The person who orders the accused into 

confinement need not be the convening authority. See Reed v. 

Ohrnan, 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, convenient means for the command to exercise its prerogative whether to 

confme an accused when the sentence of the court-martial authorizes it. The commander may decide that, despite the sentence of 

the court-martial, the accused should not be immediately confined 

because of operational requirements or other reasons. A decision 

not to confine is for the convenience of the command and does 

not constitute deferment of confinement. See Article 57(d). An 

accused dissatisfied with the decision of the commander may 

request deferment in accordance with subsection (c) of this rule. 

The fist sentence of the second paragraph of paragraph 20d(l) 

of MCM, 1969 (Rev.) has been deleted. That sentence provided 

for post-trial "arrest, restriction, or confinement to insure the 

presence of an accused for impending execution of a punitive 

discharge." The authority for such restraint was based on Article 

13 which authorized arrest or confinement for persons awaiting 

the result of trial. See Reed v. Ohman, supra; United States v. 

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. 

1087 (1981), deleted the language concerning such detention 

pending the result of trial. 

A21-75 
App. 21, R.C.M. APPENDIX 21 

(c) Deferment of confinement. Subsection (1) is based on the first 

sentence of paragraph 88f of MCM, 1969 (Rev.). The discussion 

is based on the second and third sentences of paragraph 88f of 

MCM, 1969 (Rev.). 

Subsection (2) is based on the first sentence in Article 57(d) 

and the third sentence of paragraph 88f of MCM, 1969 (Rev.). 

The requirement that the request be written is based on the third 

paragraph of paragraph 88f of MCM, 1969 (Rev.). 

Subsection (3) is based on Article 57(d) and United States v. 

Brownd, 6 M.J. 338 (C.M.A. 1978). See also ABA Standardr, 

Criminal Appeals, 121-2.5 (1978); Trotman v. Haebel, 12 M.J. 

27 (C.M.A. 1981); Pearson v. Cox, supra; Stokes v. United 

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 88f of MCM, 

1969 (Rev.). The penultimate sentence recognized the standard of 

review exercised by the Courts of Military Review, the Court of 

Military Appeals, and other reviewing authorities. See United 

States v. Brownd, supra. Because the decision to deny a request 

for deferment is subject to judicial review, the basis for denial 

should be included in the record. 

Subsection (4) is based on the fourth paragraph of paragraph 

88f of MCM, 1969 (Rev.). 

Subsection (5) is based on the fifth paragraph of paragraph 88f 

of MCM, 1969 (Rev.) and on Pearson v. Cox, supra. 

Subsection (6) modifies the last two paragraphs of paragraph 

88f of MCM, 1969 (Rev.) to conform to the amendment of Article 71(c), see Pub. L. No. 98-209, 8 5(e), 97 Stat. 1393 (1983). 

The amendment of Article 71(c) permits confinement to be ordered executed in the convening authority's initial action in all 

cases. Article 57(d) is intended to permit deferment after this 

point, however. See S. Rep. No. 1601, 90th Cong., 2d Sess. 

13-14 (1968). Therefore subsection (6) specifically describes four 

ways in which deferment may be terminated. The result is consistent with paragraph 88f of MCM, 1969 (Rev.) and with Collier v. 

United States, 19 U.S.C.M.A. 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 subsection (B), deferment may be terminated at any time by 

suspending the confinement. This is because suspension is more 

favorable to the accused than deferment. Subsections (C) and (D) 

provide other specific points at which deferment may be terminated. Deferment may be granted for a specified period (e.g., to 

permit the accused to take care of personal matters), or for an 

indefinite period (e.g., completion of appellate review). Even if 

confinement is deferred for an indefinite period, it may be rescinded under subsection (D). When deferment is terminated after 

the initial action, it will be either suspended or executed. See 

subsection (7). The first sentence in the discussion is based on 

Article 57(d). The second, third, and fourth sentences are based 

on the last two paragraphs of paragraph 88f of MCM, 1969 

(Rev.). 

Subsection (7) is based on the last sentence of Article 57(d) 

and on Collier v. United Srares, supra. Note that the information 

on which the rescission is hased 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. 

A21-76 

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) permits the accused an opportunity to submit matters 

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), C'ongress 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 reduction in grade, so that a convening authority, in appropriate 

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 Senice Secretary concerned the authority to 

defer a sentence to confinement pending review under Article 

67(a)(2). 

(d) Waiving forfeitures resulting from n sentence to con$mment 

to provide for dependent support. 

1998 Amendment: This new 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@) who shall 

receive the payment(s). 

Rule 1102. 

Introduction. This rule is based on Article 60(e) and on 

paragraphs 80c and 86d of MCM, 1969 (Rev.), all of which 

concern proceedings in revision. This rule also expressly authorizes post-trial Article 39(a) sessions to address matters not subject 

to proceedings in revision which may affect legality of findings of 

guilty or the sentence. See United States v. Mead, 16 M.J. 270 

(C.M.A. 1983); United States v. Bricky, 16 M.J. 258 (C.M.A. 

1983); United States v. Witherspoon, 16 M.J. 252 (C.M.A. 1983). 
ANALYSIS App. 21, R.C.M. 

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 

fust sentence of paragraph 80c of MCM, 1969 (Rev.), which 

indicated that a court-martial could conduct proceedings in revision on its own motion, and on paragraph 86d of MCM, 1969 

(Rev.). 

(b) Purpose. Subsection (1) is based on the second sentence of 

paragraph 86d of MCM, 1969 (Rev.). The discussion of subsection (1) is based on the last paragraph of paragraph 80d 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 clarif~es 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. Grifith, 27 M.J. 42, 47 (C.M.A. 1988). The 

amendment to the Discussion clarifies that the militaryjudge 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. Scafi 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 86d of 

MCM, 1969 (Rev.). See also Article 60(e); United States v. Williamson, 4 M.J. 708 (N.C.M.R. 1977), pet. denied, 5 M.J. 219 

(1978). Paragraph 86d 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. 

(e) Procedure. Subsection (1) is based on paragraph 80b of 

MCM, 1969 (Rev.). See also R.C.M. 505 and 805 and Analysis. 

Good cause for detailing a different military judge includes unavailability due to physical disability or transfer, and circumstances in which inquiry into misconduct by a military judge is 

necessary. 

Subsection (2) is ba.ced on paragraph 80c of MCM, 1969 

(Rev.). Subsection (2) is more concise than its predecessor; it 

leaves to the military judge responsibility to determine what specific action to take. 

Subsection (3) is based on paragraph 80d of MCM, 1969 

(Rev.). 

Rule 1102A. Post-trial hearing for person found 

not guilty only be reason of lack of mental 

responsibility. 

1998Amendment: 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 fust sentence of paragraph 82a of MCM, 1969 (Rev.). 

(b) General courts-mariial. Subsection (l)(A) is based on Article 

38(a). In Federal civilian courts the reporter is responsible for 

preparing the record of trial. 28 U.S.C. 8 753; 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 (I)@) 

is based on the second paragraph of paragraph 82a 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 82b(l) of MCM, 1969 (Rev.). Cf: Article 19. 

Subsection (2)(B) is based on Article 54(c) and on the third 

sentence of paragraph 82b(l) of MCM, 1969 (Rev.). See 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. 

Whitman, 23 U.S.C.M.A. 48, 48 C.M.R. 519 (1974); United 

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 

(1953). The exception in the stem of subsection (2)(B) is based 

on Article l(14). See Analysis, subsection (i) of this rule. 

The first paragraph of the discussion under subsection (2)@) is 

based on the third sentence of paragraph 82b(l), and paragraphs 

82b(2) and (3) of MCM, 1969 (Rev.). See Analysis, R.C.M. 802 

concerning the second paragraph in the discussion. The last paragraph in the discussion is based on the sixth sentence of paragraph 82b(l) of MCM, 1969 (Rev.). 

Subsection (2)(C) is based on the fourth sentence of paragraph 

826(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. 8 753(b); Fed. R. Crim. P. ll(g) and 

12(g); and Fed. R. App. P. 10. See also Fed. R. Crim. P. 5.l(c). 

The Constitution requires a record of sufficient completeness to 

allow consideration of what occurred at trial, but not necessarily a 

verbatim transcript. Mayer v. Chicago, 404 U.S. 189 (1971); 

Draper v. Washington, 372 U.S. 487 (1963); Coppedge v. 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 
App. 21, R.C.M. APPE 

(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, 

20 U.S.C.M.A. 82, 42 C.M.R. 274 (1970); United States v. 

Donati, 14 U.S.C.M.A. 235, 34 C.M.R. 15 (1963); United States 

v. Nelson, 3 U.S.C.M.A. 482, 13 C.M.R. 38 (1953). 

1991 Amendment: Subsection (b)(2)(D)(iv) was redesignated as 

subsection (b)(2)@)(v), and new subsection (b)(2)@)(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 82b(5), the last sentence 

of paragraph 84c, paragraph 85d, the third sentence of the third 

paragraph of paragraph 88J the penultimate sentence of paragraph 

88g, and the last sentence of paragraph 91c of MCM, 1969 (Rev. 

). See also S. Rep. No. 53, 98th Cong., 1st Sess. 26 (1983); 

R.C.M. 1106(f) and Analysis; and United States v. Lon, 9 M.J. 70 

(C.M.A. 1980). 

1995 Amendment: Punishment of confinement on bread and 

water or diminished rations m.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. 1103(b)(3)(L)] was deleted. Subsections (3)(M) and 

(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.). 

(e) Acquittal; termination prior to findings. This subsection is 

based on the fifth sentence of paragraph 82b(l) and the third 

sentence of paragraph 83b of MCM, 1969 (Rev.). The language 

of paragraph 82b(l) which referred to termination "with prejudice 

to the Government" has been modified. If the court-martial terminates by reason of mistrial, withdrawal, or dismissal of charges, a 

limited record is authorized, whether or not the proceedings could 

be reinstituted at another court-martial. 

(f) Loss of notes or recordings of the proceedings. This subsection is based on paragraph 82i of MCM, 1969 (Rev. ). See also 

United States v. Lashley, 14 M.J. 7 (C.M.A. 1982); United States 

v. Boxdale. supra. 

(g) Copies of the record of trial. Subsection (1) is based on the 

fust paragraph of paragraph 49b(2) of MCM, 1969 (Rev.). The 

trial counsel is responsible for preparation of the record (see 

Article 38(a)), although, as paragraph 49b(2) of MCM, 1969 

(Rev.) indicated, ordinarily the court reporter actually prepares 

the record. In subsection (A), the number of copies required has 

been increased from two to four to conform to current practice. 

1993 Amendment: Subsection (g)(l)(A) was amended by adding the phrase "and are subject to review by a Court of Military 

Review 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 Military Review. 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 

A21-78 

sentence of paragraph 826 of MCM, 1969 (Rev.). The remainder 

of that paragraph is deleted as unnecessary. 

(i) Eramination of the record. Subsection (l)(A) and the first 

paragraph of the discussion are based on the first paragraph of 

paragraph 82e of MCM, 1969 (Rev.). 

Subsection (l)(B) is based on the first sentence of the second 

paragraph of paragraph 82e 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 82e of MCM, 1969 (Rev.).See also United States v. 

Anderson, supra at 197. The second paragraph of the discussion 

is based on United 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 82e of MCM, 1969 (Rev.). 

(i) 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, 5 6(a), 97 Stat. 1393 (1983). 

This subsection implements Article l(14) in accordance with 

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. 

Subsection (1) provides for recording courts-martial by 

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 
ANALYSIS App. 21, R.C.M. 

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 %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 andlor heard the authenticated recording. 

Subsection (4)(B) provides flexibility in cases not reviewed by 

the Court of Military Review. Depending on regulations of the 

Secretary, a written record may never be prepared in some cases. 

Many cases not reviewed by a Court of Military Review 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. Mcle 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 

82f 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 subsection 

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. Loft, 9 

M.J. 70 (C.M.A. 1980); Unites States v. Green, 7 M.J. 687 

(N.C.M.R. 1979); United States v. Lowery, 1 M.J. 1165 

(N.C.M.R. 1977). The third paragraph of the discussion is based 

on United States v. Lon, supra; United States v.Credit, supra. 

(b) Service. Subsection (l)(A) is based on Article 54(d) and the 

fnst sentence of paragraph 82g(l) of MCM, 1969 (Rev.) See also 

H.R. Rep. No. 2498, 81st Cong., 1st Sess. 1048 (1949). 

Subsection (I)@) is based on the third through fifth sentences 

of the fist paragraph of paragraph 82g(1) of MCM, 1969 (Rev.). 

Subsection (l)(C) is based on H.R. Rep. No. 549, 98th Cong., 

1st Sess. 15 (1983); United States v. Cmz-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. 5 5612 (daily ed. April 28, 

1983) (statement of Sen. Jepsen). As a practical matter, defense 

counsel, rather than the accused, will perform this function in 

most cases. See Article 38(c). Consequently, service of the record 

on defense counsel, as provided in this subsection, fulfills this 

purpose without unduly delaying further disposition. See United 

States v. Cruz-Rijos, supra. Note that if the accused had no 

counsel, or if the accused's counsel could not be served, the 

convening authority could take action without serving the accused 

only if the accused was absent without authority. See R.C.M. 

1105(d)(4) and Analysis. 

Subsection (l)(D) is based on the third and fourth paragraphs 

of paragraph 82g(l) of MCM, 1969 (Rev.). 

(c) Loss of record. This subsection is based on paragraph 82h of 

MCM, 1969 (Rev.). Note that if more than one copy of the record 

is authenticated then each may serve as the record of trial, even if 

the original is lost. 

(d) Correction of record after authentication; cerr$cate of correction. Subsection (1) and the discussion are based on paragraph 

86c of MCM, 1969 (Rev.). See also the first paragraph of paragraph 95 of MCM, 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 

5 6-1.6 (1978). The discussion is based on United States v. Anderson, supra. Subsection (3) is based on the second paragraph of 

paragraph 82g(l) and paragraph 86c of MCM, 1969 (Rev.). 

(e) Forwarding. This subsection is based on Article 60. The code 

no longer requires the convening authority to review the record. 

However, a record of trial must be prepared before the convening 

authority takes action. See Article 60(b)(2) and (3), and (d). 

Therefore, it is appropriate to forward the record, along with other 

required matters, to the convening authority. This subsection is 

consistent with the first two sentences of paragraph 84a of MCM, 

1969 (Rev.). 

Rule 11 05. Matters submitted by the accused 

(a) In general. This subsection is based on Articles 38(c) and 

60(b). See also paragraphs 48k(2) and 77a of MCM, 1969 (Rev.). 

(b) Matters which may be submitted. This subsection is based on 

Articles 38(c) and 60(b). The post-trial procedure as revised by 

the Military Justice Act of 1983, Pub.L. No. 98-209, 97 Stat. 

1393 (1983) places a heavier responsibility on the defense to take 

steps to ensure that matters it wants considered are presented to 

the convening authority. Therefore this sr~bsection provides guidance as to the types of matters which may be submitted. See 

Article 38(c). See also paragraph 48k(3) and 77a 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 

A21-79 
App. 21, R.C.M. APPEl 

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)@), 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, 8 806, 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)(l) 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 

the addendum contains new matter. See United States 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 

the defense may submit matters in increments by reserving in 

writing its right to submit additional matters within the time 

period. In certain cases this may be advantageous to the defense 

as well as the Government, by permitting early consideration of 

such matters. Otherwise, if the defense contemplated presenting 

additional matters, it would have to withhold all matters until the 

end of the period. Subsection (3) is based on Article 60(b)(4). 

Subsection (4) ensures that the accused cannot, by an unauthorized absence, prevent further disposition of the case. Cf. 

United States v. Schreck, 10 M.J. 226 (C.M.A. 1983). Note that if 

the accused has counsel, counsel must be served a copy of the 

record (see R.C.M. 1104(b)(l)(C)) and that the defense will have 

at least 7 days from such service to submit matters. Note also that 

the unauthorized absence of the accused has no effect on the 30, 

20, or 7 day period from announcement of the sentence within 

which the accused may submit matters (except insofar as it may 

weigh against any request to extend such a period). The discussion notes that the accused is not required to raise matters, such 

as allegations of legal error, in order to preserve them for consideration on appellate review. 

Rule 1106. Recommendation of the staff judge 

advocate or legal officer 

(a) In general. This subsection is based on Article 60(d), as 

amended, see Military Justice Act of 1983, Pub.L. No. 98-209, 5 

5(a)(l), 97 Stat. 1393 (1983). The first paragraph of paragraph 

85a of MCM, 1969 (Rev.) was similar. 

(b) Disqlialification. This subsection is based on Article 6(c) and 

on the second paragraph of paragraph 85a of MCM, 1969 (Rev.). 

Legal officers have been included in its application based on 

Article 60(d). The discussion notes additional circumstances 

which have been held to disqualify a staff judge advocate. The 

first example is based on United 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)qetition dismissed, 7 M.J. 477 (C.M.A. 1979). The second 

example is based onunited States v. Choice, 23 U.S.C.M.A. 329, 

49 C.M.R. 663 (1975). See alsoUnited 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 thud 

example is based on United States v. Conn and United States v. 

Choice, both supra. Cf: Articles l(9); 6(c); 22(b); 23(b). The 

fourth example is based on United States v. Collins, 6 M.J. 256 

(C.M.A. 1979); United States v. Engle , 1 M.J. 387 (C.M.A. 

1976). See also 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 authoriry does not have a stqff judge 

advocate or legal oficer or that person is disqualified. Subsection (1) is based on the third paragraph of paragraph 85a of 

MCM, 1969 (Rev.). Legal officers have been included in its 

application based on Article 60(d). Subsection (2) is new. It 

recognizes the advantages of having the recommendation prepared by a staff judge advocate. This flexibility should also permit more prompt disposition in some cases as well. 

(d) Form and content of recommendation. This subsection is 

based on Article 60(d) and on %Rep. No. 53, 98th Cong., 1st 

Sess. 20 (1983). As to the subsection (I), see also Article 60(c). 

Subsections (3), (4), and (5) conform to the specific guidance in 

%Rep. No. 53, supra. Subsection (6) is based on %Rep. No. 53, 

98th Cong., 1st Sess. 21 (1983). The recommendation should be a 

concise statement of required and other matters. Summarization 

of the evidence and review for legal error is not required. Therefore paragraph 85b of MCM, 1969 (Rev.) is deleted. 

Paragraph 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 
.YSIS App. 21, R.C.M. 

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)@) - (d)(3)(E) are redesignated as (d)(3)(C) -

(d)(3)Q, respectively., 

(e) No jndings 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 85b 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 50a, 

UCMJ (Military Justice Amendments of 1986, tit. VLII, 5 802, 

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 

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 (Q(1) was added to make clear 

that the accused should be provided with a personal copy of the 

recommendation. 

1994 Amendment: The Discussion to subsection (f)(l) was 

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)(l) 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@). 

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). 

1986 Amendment: Subsection (5) was amended to reflect 

amendments to Article 60, UCMJ, in the "Military Justice 

Amendments of 1986," tit. WII, 5 806, 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 

States v. Goode, supra. But see United States v. Burroughs, 

supra; United States v. Moles, 10 M.J. 154 (C.M.A. 1981) (defects not waived by failure to comment). 

Subsection (7) is based on United States v. Narine, 14 M.J. 55 

(C.M.A. 1982). 

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 clarif~es 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 84b and the 

first sentence of paragraph 84c 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 5(a)(l): n7 

Stat. 1393 (1983). The fyst paragraph in the discussion is based 

on the last two sentences of paragraph 84a of MCM, 1969 (Rev.). 

The second paragraph of the discussion is based on the second 

and third sentences of paragraph 84c of MCM, 1969 (Rev.); 

United States v. Conn, 6 M.J. 351 (C.M.A. 1979); 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 84c 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@) and (c). 

Subsection (3)(A)(i) is based on Article 60(a). Subsection 

(3)(A)(ii) is based on Article 60(d). Subsection (3)(A)(iii) is 

based on Article 60@) and (d). Subsection (3)@) is based on 

Article 60 and on S.Rep. No. 53, 98th Cong., 1st Sess. 19-20 

(1983). The second sentence in subsection (3)(B)(iii) is also based 

on the last sentence of paragraph 856 of MCM, 1969 (Rev.). See 

also United States v. Vara, 8 U.S.C.M.A. 651, 25 C.M.R. 155 

(1958); United States v. Lanford, 6 U.S.C.M.A. 371, 20 C.M.R. 

87 (1955). 

Subsection (4) is based on Article 60(c)(3). See also Article 

60(e)(3). This subsection is consistent with paragraph 86b(2) of 

MCM, 1969 (Rev.) except that it does not refer to examining the 

record for jurisdictional error. 

1990 Amendment: Subsection (b)(4) was amended in conjunc- 
App. 21, R.C.M. APPENDIX 21 

tion with the implementation of findings of not guilty only by 

reason of lack of mental responsibility provided for in Article 

50a, UCMJ (Military Justice Amendments of 1986, tit. Vm, 8 

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 

124 of MCM, 1969 (Rev.). See also United States v. Korzeniewski, 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 

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., concuning). 

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 Anorney General. 

(c) Action of findings. This subsection is based on Article 

60(c)(2). Subsection (2)(B) is also based on Article 60(e)(l) and 

(3). The first sentence in the discussion is based on Hearings on 

H.R. 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 fust paragraph of paragraph 88a of 

MCM, 1969 (Rev.). The first paragraph of the discussion is based 

OI~paragraph 88a 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. Ilerg, 34 C.M.R. 684 (N.B.R. 1963).See 

also United States v. McKnight, 20 C.M.R. 520 (N.B.R. 1955). 

Subsection (2) is based on Article 60(c) and S. Rep. No. 53. 

98th Cong., 1st Sess. 19 (1983). The second sentence is also 

based on United States v. Russo, 11 U.S.C.M.A. 352, 29 C.M.R. 

168 (1960). The second paragraph of the discussion is based on 

the third paragraph of paragraph 88b of MCM, 1969 (Rev.). 

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 

A21-82 

Entitlement Manual, Volume 7, Part A, paragraph 70507a (12 

December 1994). 

Subsection (3) is based on Articles 19 and 54(c)(l) and on the 

third sentence of paragraph 82b(l) 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. 102484, 106 Stat. 2315, 

2505 (1992). See generally Interstate Agreement on Detainers 

Act, 18 U.S.C. App. m. It permits a military sentence to be 

served consecutively, rather than concurrently, with a civilian or 

foreign sentence. The prior subsection (d)(3) is redesignated 

(dI(4). 

1998 Amendment: All references to "postponing" service of a 

sentence to confinement were changed to use the more appropriate term, "defer". 

(e) Ordering rehearing or other trial. Subsection (l)(A) is based 

on Article 60(e), and on paragraph 92a of MCM, 1969 (Rev.). 

Note that the decision of the convening authority to order a 

rehearing is discretionary. The convening authority is not required 

to review the record for legal errors. Authority to order a rehearing is, therefore, "designed solely to provide an expeditious 

means to correct errors that are identified in the course of exercising discretion under Article 60(c)." S. Rep. No. 53, 98th Cong., 

1st Sess. 21 (1983). Subsection (l)(B) is based on Article 60(e). 

As to subsection (l)(B)(ii), see S. Rep. No. 53, supra at 22. 

Subsection (l)(B)(ii) is based on the second sentence of the second paragraph of paragraph 92u of MCM, 1969 (Rev.). The 

discussion is based on the second sentence of the fourth paragraph of paragraph 92a of MCM, 1969 (Rev.). Subsection 

(l)(C)(i) is based on Article 62(e)(3) and on the first sentence of 

the third paragraph of paragraph 92a of MCM, 1969 (Rev.). 

Subsection (l)(C)(ii) and the discussion are based on Article 

60(e)(3) and on the first paragraph of paragraph 92a of MCM, 

1969 (Rev.). Subsection (l)(C)(ii) is based on the first sentence of 

the tenth paragraph of paragraph 9241 of MCM, 1969 (Rev.). 

Subsection (l)(D) is based on the sixth paragraph of paragraph 

9242 of MCM, 1969 (Rev.). Subsection (l)(E) is based on the 

eighth paragraph of paragraph 92a 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)(l)(B)(ii) of this 

rule), the language is modified. The remaining parts of paragraph 

92a, concerning procedures for a rehearing, are now covered in 

R.C.M. 810. 

1995 Amendment: The second sentence in R.C.M. 

1107(e)(l)(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 

courts. See e.g., United States v. Monetesinos, 28 M.J. 38 

(C.M.A. 1989); United States v. Sala, 30 M.J. 813 (A.C.M.R. 

1990). 

Subsection (2) is based on paragraph 92b of MCM, 1969 

(Rev.). See also paragraph 89c(l) of MCM, 1969 (Rev.). If the 

accused was aquitted 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). 
ANALYSIS App. 21, R.C.M. 

(f) Conteltts of action and related matters. Subsection (1) is 

based on paragraph 89a 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 896 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 fonnally 

- 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 89c(2) of MCM, 1969 

(Rev.). The provision in paragraph 89c(2) of MCM, 1969 (Rev.) 

that disapproval of the sentence also constitutes disapproval of the 

findings unless otherwise stated is deleted. The convening authority must expressly indicate which findings, if any, are disapproved in any case. See Article 60(c)(3). The discussion is based 

on paragraph 89c(2) of MCM, 1969 (Rev.). Subsection (4)(A) is 

based on paragraph 89c(3) of MCM, 1969 (Rev.). The fust sentence of paragraph 89c(2)is no longer accurate. Since no action 

on the findings is required, any disapproval of findings must be 

expressed. Subsection (4)(B) is taken from paragraph 89c(4) of 

MCM, 1969 (Rev.). Subsection (4)@) is based on paragraph 

89c(6) of MCM, 1969 (Rev.). However, because that portion of 

the sentence which extends to confinement may now be ordered 

executed when the convening authority takes action (see Article 

71(c)(2); R.C.M. 11 13(b)), temporary custody is unnecessary in 

such cases. Therefore, this subsection applies only when death 

has been adjudged and approved. Subsection (4)(E) is taken from 

paragraph 89c(7) of MCM, 1969 (Rev.). Subsection (4)(F) is new. 

See Analysis, R.C.M. 3050. See also United States v. Suzuki, 14 

M.J. 491 (C.M.A. 1983). Subsection (4)(G) is taken from paragraph 89c(9) of MCM, 1969 (Rev.). Subsection (4)(H) is modified based on the amendment of Article 71 which 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)(l). 

Subsection (5) is based on paragraph 89c(8) of MCM, 1969 

(Rev.). S1.c also R.C.M. 810(d) and Analysis. The provision in 

paragraph 89c(8) requiring that the accused be credited with time 

in confinement while awaiting a rehearing is deleted. Given the 

procedures for imposition and continuation of restraint while 

awaiting trial (see R.C.M. 304 and 305), there should not be a 

credit simply because the trial is a rehearing. 

(g) Incomplete, ambiguous, or erroneous action. This subsection 

is based on paragraph 95 of MCM, 1969 (Rev.). See generally 

United States v. Loft, 10 J M.J. 266 (C.M.A. 1981); United Statr.~ 

v. Lower, 10 M.J. 263 (C.M.A. 1981). 

(li) Service on accused. This sn!lsection is based on Article 61(a), 

as amended, see Military Justice Act of 1983, Pub.L. No. 98-209, 

5 5(b)(l), 97 Stat. 1393 (1983). 

Rule 1108. Suspension of execution of sentence 

This rule is based on Articles 71(d) and 74, and paragraphs 88e 

and 97a of MCM, 1969 (Rev.).See also Fed.R.Crim. P. 32(e). The 

second paragraph of the discussion to subsection (b) is based on 

United States v. Stonesifer, 2 M.J. 212 (C.M.A. 1977); United 

States v. Williams, 2 M.J. 74 (C.M.A. 1976); 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. 8 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 thud 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 97a 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 

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. 

Rule 1109. Vacation of suspension of sentence 

(a) In general. This subsection is based on Article 72 and paragraph 97b of MCM, 1969 (Rev.). 

(b) Tittleliness. This subsection is based on the fourth paragraph 

of paragraph 976 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 vacatio~~ proceedings. 
App. 21, R.C.M. APPENDIX 21 

This subsection is new and based on Gagnon 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.l(a)(l). Note that if the actual hearing 

on vacation under subsection (d)(l) or (e)(3) and (4) is completed 

within the specified time period, a separate probable cause hearing need not be held. 

(d) Violation 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 97b of MCM, 1969 (Rev.); United 

States v. Bingham, supra; United States v. Rozycki, supra. See 

also Fed.R.Crim. P. 32.1(a)(2). 

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

court-martial sentence. This subsection is based on Article 72(c); 

United States v. Bingham, supra; United States v. Rozycki, supra. 

Fed.R.Crim. P. 32.l(b) is not adopted. That rule requires a 

hearing before conditions of probation may be modified. Modification is seldom used in the military. Because a probationer may 

be transferred or change duty assignments as a normal incident of 

military life, a commander should have the flexibility to make 

appropriate changes in conditions of probation without having to 

conduct a hearing. This is not intended to permit conditions of 

probation to be made substantially more severe without due process. At a minimum, the probationer must be notified of the 

changes. 

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 cla~iCy 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. 

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 

5(b)(l), 97 Stat. 1393 (1983). The rule provides procedures to 

ensure that a waiver or withdrawal of appellate review is a voluntary and informed choice. See also Appendices 19 and 20 for 

forms. See S. Rep. No. 53, 98th Cong., 1st Sess. 22-23 (1983). 

(a) In general. This subsection is based on Article 61. The discussion is also based on Articles 64 and 69(b). 

(b) Right to counsel. This subsection is based on Article 61(a). 

Although Article 61(b) does not expressly require the signature of 

defense counsel as does Article 61(a), the same requirements 

should apply. Preferably counsel who represented the accused at 

trial will advise the accused concerning waiver, the appellate 

counsel (if one has been appointed) will do so concerning 

withdrawal. This subsection reflects this preference. It also recognizes, however, that this may not always be practicable; for example, the accused may be confined a substantial distance from 

counsel who represented the accused at trial when it is time to 

decide whether to waive or withdraw appeal. In such cases, associate counsel may be detailed upon request by the accused. See 

R.C.M. 502(d)(l) as to the 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. 

Subsection (2)(C) provides for the appointment of substitute 

counsel when, for the limited reasons in R.C.M. 505(d)(2)(B), the 

accused is no longer represented by any trial defense counsel. 

Subsection (3) contains similar provisions concerning withdrawal 

of an appeal. Note that if the case is reviewed by the Judge 

Advocate General, there would be no appellate counsel. In such 

cases, subsection (3)(C) would apply. Subsection (6) clarifies that 

here, as in other circumstances, a face-to-face meeting between 

the accused and counsel is not required. When necessary, such 

communication may be by telephone, radio, or similar means.See 

also Mil. R. Evid. 511(b). The rule, including the opportunity for 

appointment of associate counsel, is intended to pennit 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)(l)(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 submined. Subsection (1) is based on Article 60(a). 

Article 60(b) does not establish where a wirhdrawal 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; Hammen v.Texas, 448 
ANALYSIS App. 21, R.C.M. 

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 11 11. 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)0; 1104(b)(l)(B). 

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, $3 6(d)(l), 

(7)(a)(l), 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 50a, 

UCMJ (Military Justice Amendments of 1986, tit. Vm, $ 802, 

National Defense Authorization Act for Fiscal Year 1987, Pub. L. 

99-661, 100 Stat. 3905 (1986)). 

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 

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 

discussion into accord with the general rule of 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 fist paragraph of paragraph 88d(l) of MCM, 

1969 (Rev.). Note that under the amendment of Article 71 (see 

Pub. L. No. 98-209, 5 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. 

Subsection (1) is based on Article 71(c). See alsoArticle 

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)(l)(B) to specify that a 

staff judge advocate's advice is required only when the servicemember 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)(l), and 71(a). 

(d) Other considerations concerning execution of sentences. Subsection (1) is based on the third paragraph of paragraph 126a of 

MCM, 1969 (Rev.). The second paragraph of paragraph 88d(l) of 

MCM, 1969 (Rev.) is deleted as unnecessary. 

1986 Amendment: Subsection (d)(l)(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 

the procedures specified by Florida law used to determine 

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@) and paragraph 97c of MCM, 1969 (Rev.). See also paragraph 126j of 

MCM, 1969 (Rev.). Subsection (2)(B) is based on Article 58(b) 

and the third paragraph of paragraph 126j of MCM, 1969 (Rev.). 

Subsection (2)(C) is based on Article 58(a) and paragraph 93 of 

MCM, 1969 (Rev.). Note that if the Secretary concerned so prescribes, the convening authority need not designate the place of 

A21-85 
App. 21, R.C.M. APPE 

confmement. Because the place of confinement is determined by 

regulations in some senices, 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 

18b(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. 

2315,2505 (1992). See generally Interstate Agreement on 

Detainers Act, 18 U.S.C. App. 1.1.It permits a military sentence 

to be served consecutively, rather than concurrently, with a civilian or foreign sentenceJhe prior subsections (d)(Z)(A)(iii) - (iv) 

are redesignated (d)(2)(A)(iv) - (v), respectively. 

Subsection (3) is based on paragraph 126h(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); William 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. 461 (1979); United States v. Vinyard, 3 M.J. 551 

(A.C.M.R.), pet. denied, 3 M.J. 207 (1977); United States v. 

Donalhon, 2 M.J. 605 (N.C.M.R. 1977), affd, 5 M.J. 212 

(1978); United States v. Martinez, 2 M.J. 1123 (C.G. C.M.R. 

1976); United States v. Kehrli, 44 C.M.R. 582 (A.F.C.M.R. 

1971), pet. denied, 44 C.M.R. 940 (1972); ABA Standards, Sentencing Alternatives and Procedures $ 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 88d(3) of MCM, 1969 (Rev.) is deleted based on the 

amendment of Articles 57(a) and 71(c)(2) which eliminated the 

necessity for application or deferment of forfeitures. Forfeitures 

always may be ordered executed in the initial action. 

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). 

Rule 11 14. Promulgating orders 

(a) In general. Subsections (1) and (2) are based on the first 

paragraph of paragraph 90a of MCM, 1969 (Rev.). Subsection (3) 

is based on paragraph 90e of MCM, 1969 (Rev.). This rule is 

consistent in purpose with Fed.R.Crim. P. 32(b)(l). 

(b) By whom issued. Subsection (1) is based on paragraph 90b(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 

90b(2) and 107 of MCM, 1969 (Rev.). 

(c) Contents. Subsection (1) is based on Appendix 15 of MCM, 

1969 (Rev.) but modifies it insofar as the only item which must 

be recited verbatim in the order is the convening authority's 

action. The charges and specifications should be summarized to 

adequately describe each offense, including allegations which affect the maximum authorized punishments. CY: Fed. R. Crim. P. 

A21-86 

32(b)(l). See also Form 25, Appendix of Forms, Fed.R.Crim. P. 

Subsection (2) is based on the third, fourth, and fifth paragraph of 

paragraph 90a of MCM, 1969 (Rev.) except that reference is no 

longer made to action by the supervisory authority. See Article 

65. See United States v. Veilleux, 1 M.J. 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 90a of MCM, 1969 (Rev.). 

1986 Amendment: Reference to "subsequent actions" was 

changed to to "subsequent orders" to correct an error in MCM, 

1984. 

1990 Amendnlent: 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 

50a, UCMJ (Military Justice Amendments of 1986, tit. VIU, 802, 

National Defense Authorization Act for Fiscal Year 1987, Pub. L. 

99-661, 100 Stat. 3905 (1986)). 

(d) Orders containing classijied information. This subsection is 

based on the fust two paragraphs of paragraph 90c of MCM, 

1969 (Rev.). The second sentence of the first paragraph of paragraph 90c is deleted as unnecessary. 

(e) Authentication This subsection is based on forms at Appendix 15 of MCM, 1969 (Rev.) and clarifies the authentication of 

pron~ulgating orders. See Mil. R. Evid. 902(10). Note that this 

subsection addresses authentication of the order, not authentication of copies. 

(f) Distribution. This subsection is based on paragraph 90d of 

MCM, 1969 (Rev.). The matters in paragraph 96 of MCM, 1969 

(Rev.) 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 Military Review. 

This subsection is based on Articlr 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 fust two paragraphs of paragraph llOA 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, $6 4(b), 7(a), (e), 97 

Stat. 1393 (1983). The last paragraph of paragraph llOA of 

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 50a, 
ANALYSIS App. 21, R.C.M. 

UCMJ (Military Justice Amendments of 1986, tit. VIII, 8 802, 

National Defense Authorization Act for Fiscal Year 1987, Pub. L. 

99661, 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@)(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). 

Rule 1202. Appellate counsel 

(a) In general. This subsection is based on Article 70(a) and 

paragraph 10% of MCM, 1969 (Rev.). 

(b) Duties. This subsection is based on Article 70(b) and (c). See 

also the fnst two paragraphs of paragraph 1026 of MCM, 1969 

(Rev.). The penultimate sentence in the rule is based on the 

penultimate sentence in the fourth paragraph of paragraph 102b of 

MCM, 1969 (Rev.). The last sentence in the fourth paragraph of 

paragraph 102b of MCM. 1969 (Rev.) is deleted as unnecessary. 

The last sentence in the rule is new. It is based on practice in 

Federal civilian courts. See Rapp. v. Van Dusen, 350 F. 2d 806 

(3d Cir. 1965); Fed.R. App. P.21@). 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 @.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 modlfy the third and 

fourth paragraphs of paragraph 102b of MCM, 1969 (Rev.). The 

Court of Military Appeals has held that appellate defense counsel 

is obligated to assign as error before the Court of Military Review 

all arguable issues unless such issues are, in counsel's professional opinion, clearly frivolous. In addition, appellate defense 

counsel must invite the attention of the court to issues specified 

by the accused, unless the accused expressly withdraws such 

issues, if these are not otherwise assigned as errors. Also, in a 

petition for review by the Court of Military Appeals, counsel 

must, in addition to errors counsel believes have merit, identify 

issues which the accused wants raised. See United States v. Htclltrm, 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 he Court of Military 

Appeals. See Article 67(h) and 28 U.S.C. 8 1259; Military Justice 

Act of 1983, Pub.L. No. 98-209, !j 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, 29C.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), (0,(g), and (h).See also the 

first paragraph of paragraph lOOa and paragraph lOOd 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 lOOa and the 

first paragraph of paragraph lOOb of MCM, 1969 (Rev.). See also 

United States v. Darville, 5 M.J. 1 (C.M.A. 1978). The last 

sentence in the first paragraph is based on United States v. 

Brownd, 6 M.J. 338 (C.M.A. 1979); United States v. Yoakum, 8 

M.J. 763 (A.C.M.R.), affd, 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 Dettirzger v. United States, 7 

M.J. 216 (C.M.A. 1979); 28 U.S.C. 8 1651(a). See also United 

States v. LaBella, 15 M.J. 228 (C.M.A. 1983); United States v. 

Caprio, 12 M.J. 30 (C.M.A. 1981); United States v. Redding, 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 

Govemment to appeal certain rulings at trial might affect some of 

these precedents. See United States v. Weinstein, 41 1 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 lOOc(l)(a) of MCM, 

1969 (Rev.). See also United States v. Leslie, 11 M.J. 131 

(C.M.A. 1981); United States v. Clay, 10 M.J. 269 (C.M.A. 

1981). 

Subsection (2) is based on Article 66(e). See also United States 

v. Best, 4 U.S.C.M.A. 581, 16 C.M.R. 155 (1954). The discussion 

is consistent with paragraph lOOb(3) of MCM, 1969 (Rev.). 

Subsection (3) modifies paragraph 100c(l)(a) of MCM, 1969 

(Rev.), It allows each service to prescribe specific procedures for 
App. 21, R.C.M. APPENDIX 21 

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 

105b of MCM, 1969 (Rev.). See also Article 74. 

Because R.C.M. 1203 is organized somewhat differently than 

paragraph 100 of MCM, 1969 (Rev.), the actions described in 

subsection (c) of this rule apply to cases referred by the Judge 

Advocate General to the Court of 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. Willianls, 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. Bleakoe, 

16 M.J. 977 (A.F.C.M.R. 1983). The provision assigning the 

burden of proof 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. 

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 

confinement pending the appeal. See Moore v. Akins, 30 M.J. 249 

(C.M.A. 1990). 

(d) Norification 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(l)(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 100c(l)(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 

100c(l)(b) of MCM, 1969 (Rev.). See Article 71(b). Subsection 

(2) is based on the last sentence of paragraph 100c(l)(a) of 

MCM, 1969 (Rev.). See Article 66(e). 

(f) Scope. This siibsection 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) Cases reviewed by the Court of Appeals for the Anned 

Forces. This subsection is based on the ninth sentence of Article 

67(a)(l), on Article 67(b), and on the second sentence in Article 

69. It generally repeats the fvst 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)(l), 

as amended by the Military Justice Act of 1983, Pub.L. No. 

98-209, $ 7(d), 97 Stat. 1393 (1983). The fist paragraph in the 

discussion is based on Article 67(a), (d), aud (e), which were 

repeated in the second and thud 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. I 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. 

Lubella, 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); 

Cook v. Ellis, 12 M.J. 17 (C.M.A. 1981); Vorbeck v. Conzmanding Oficer, 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 

States, 1 M.J. 457 (C.M.A. 1976); Brookins v. Cullins, 23 

U.S.C.M.A. 216, 49 C.M.R. 5 (1974); Chenoweth v. Van Arsdall, 

22 U.S.C.M.A. 183,46 C.M.R. 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 102b 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, he 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. $0 

1259,2101. See Military Justice Act of 1983, Pub.L. No. 98-209, 

8 lo, 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 1056 of MCM, 1969 

(Rev.). See Exec. Order No. 10498 (Nov. 4, 1953), 18 Fed.Reg. 

7003. The reference in paragraph 105a of MCM, 1969 (Rev.) to 

Secretarial authority to commute sentences in deleted here as 

unnecessary. See Article 71(b). 
ANALYSIS App. 21, R.C.M. 

Rule 1207. Sentences requiring approval by the 

President 

This rule is based on the first sentence of Article 71(a). Paragraph 105a of MCM, 1969 (Rev,), which stated the President's 

power to sentences, is deleted. Such a statenlent is 

unnecessary. See also U.S. Const. art. 11, 2, cl. Schick v. 

Reed, 419 U.S. 256 (1974). 

Rule 1208. Restoration 

It~trodrrction. This rule is based on Article 75. 

(a) New trial. This subsection is based on paragraph llOd 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 

110d 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. Finalitv of courts-martial 

(a) When a conviction is firtal. This subsection is based on Article 71(c), as amended, see Military Justice Act of 1983, Pub.L. 

No. 98-209, 1 5(e)(l), 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 

guilty, see Article 44; R.C.M. 905(g). See also Grafton v. United 

States, 206U.S. 333 (1907). 

(b) Effect offinaliry. 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 11042) and 1096) are covered in other rules. 

See R.C.M. 810; 1209. The second sentence of paragraph 109d(l) 

has been deleted as unnecessary and potentially confusing. Subsections (f)(2) and (3) adequately describe the standards for a new 

trial. The rule is generally consistent with Fed.R.Crim. P. 33, 

except insofar as Article 73 provides otherwise. As to subsection 

(f), see also United States v. Bacon, 12 M.J. 489 (C.M.A. 1982); 

United States v. Thomas, 11 M.J. 135 (C.M.A. 1981). With 

respect to the second example under subsection (f)(3) of this rule, 

it should be noted that if the information concealed by the prosecution was specifically requested by the defense, a different 

standard may apply. See United States v. Agurs, 427 U.S. 97 

(1976); Brady v. Maryland, 373 U.S. 83 (1963). See also United 

States v. Horsey, 6 M.J. 112 (C.M.A. 1979). The second sentence 

of paragraph llOf of MCM, 1969 (Rev.) has been deleted. See 

Analysis, R.C.M. 1107(f)(3)@)(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-tria1 action. 

lgg8 R.C.M. 1210(a) was amended 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. 

Lambee, 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)@er 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. 3-- R.C.M. 910(i). 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 "[tlhe 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 4g(2) of 

MCM, 1969 (Rev.) included this statement:"However a summary 

court-martial will be a member of the same armed force as the 

accused." The fact that this statement was included in n ,.ubparagraph entitled "Joint command or joint task force" left unclear what rule applied in other commands. The Working Group 

elected to clarify the situation by stating a general prohibition 

against detailing a summary court-martial from a service different 

from that of the accused, but allowing the service Secretaries to 

provide exceptions. This is based on the desirability of having the 

sununary court-martial be from the same service as the accused, 

but recognizes that under some circumstances, as where a small 

unit of one service is colocated with another service, greater 

flexibility is needed, especially in order to comply with the policy 

in the third sentence of this subsection. The expression of policy 

in the third sentence is based on paragraph 4c of MCM, 1969 

(Rev.). The fourth sentence is based on Article 24(b) and the fifth 

sentence of the first paragraph of paragraph 5c of MCM, 1969 

(Rev.). The last sentence is based on the last sentence of the first 

paragraph of paragraph 5cof 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 79a of 
App. 21, R.C.M. APPENDIX 21 

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 decendent's effects under 10 U.S.C. 5 4712 or 10 

U.S.C. $ 9712 is not affrrted by these rules. See also R.C.M. 101 

and 201(a). 

(c) Jurisdiction. This subsection is based on the first sentence of 

Article 20 and the first sentence of paragraph 16a of MCM, 1969 

(Rev.). The reference to Chapter I1 was added to bring attention 

to other jurisdictional standards which may apply to summary 

courts-martial. 

(d) Punishments. This subsection is based on paragraph 16b of 

MCM, 1969 (Rev.), and Article 20. 

(e) Counsel. The code does not provide a right to counsel at a 

summary court-martial (Articles 27 and 38.). The Supreme Court 

of the United States held in 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 

(including retained counsel) at summary courts-martial. It is 

within the discretion of the convening authority to detail, or 

otherwise make available, a military attorney to represent the 

accused at a summary court-martial. 

This rule does not provide a right to consult with counsel prior 

to a summary court-martial. There is no constitutional or statutory 

basis for such a right. United States v. Mack, 9 M.J. 300, 320-21 

(C.M.A. 1980). A requirement for such consultation, although 

desirable under some circumstances, is unfeasible under others 

wherein it impedes the purposes of summary courts-martial by 

significantly delaying the proceedings. At present, the admissibility of a summary court-martial without a prior opportunity to 

consult with counsel in subsequent courts-martial has not been 

fully resolved. 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 79b and 115 of the 

MCM, 1969 (Rev.). 

(g) Secretarial limitations. This subsection is new and recognizes 

the implicit authority of the service secretaries to provide additional rules, such as those governing the exercise of summary 

court-martial jurisdiction. 

Rule 1302. Convening a summary court-martial 

(a) Who may convene summary corrrts-martial. This subsection is 

based on Article 24(a) and paragraph 5c of MCM, 1969 (Rev.). 

(b) When convening authority is the accuser. This subsection is 

based on the second paragraph of paragraph 5c of MCM, 1969 

(Rev.). 

(c) Procedure. This subsection clarifies that a separate written 

order is not necessary to convene a summary court-martial; this 

may be done directly on the charge sheet. Because there is little 

difference between summary, special, and general courts-martial 

A21-90 

with respect to the initiation and forwarding of charrles, these 

procedures are simply referred to in the rule. 

Rule 1303. Right to object to trial by summary 

court-martial 

This rule is based on Article 20 and the second and third 

sentences of paragraph 16a of MCM, 1969 (Rev.). Arraignment 

ends the right to object because arraignment is the point at which 

the accused is "brought to trial" within the meaning of Article 20. 

Rule 1304. Trial procedure 

(a) Pretrial duties. This subsection is based on paragraphs 79c 

and 33d of MCM, 1969 (Rev.). 

(b) Summary court-martial procedure. Paragraph 79a 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 79d(l) of MCM, 1969 

(Rev.). The requirement to inform the accused of the date of 

referral was added to subsection (I)@) to assist the accused in 

making motions to dismiss or for other relief. Subsection (l)(E) is 

intended to more fully inform the accused of the scope of the 

evidence (testimonial, documentary, and physical) expected to be 

introduced. Subsection (I)(F) is new and is designed to assist the 

accused in making motions and presenting evidence in defense 

and in extenuation and mitigation. Subsection (l)(G) is new and 

is designed to assure the accused that no evidence, including 

statements previously made to the officer detailed to conduct the 

summary court-martial, will be considered unless admitted in 

accordance with the Military Rules of Evidence. Subsection 

(l)(H) is new. Subsection (l)(L) is expanded to assure the accused that the exercise of rights guaranteed under the Fifth 

Amendment and Article 31 will not be held against the accused. 

Subsection (2)(A) is based on Article 20 and the second paragraph of paragraph 79d(l) of MCM, 1969 (Rev.). 

Subsection (2)(B) is based on paragraph 79d(2) of MCM, 1969 

(Rev.). 

Subsection (2)(C) is new. MCM, 1969 (Rev.) did not clarify 

the timing of motions in summary courts-martial. 

Subsection (Z)(D)(ii) is new and designed to standardize the 

guilty plea inqu j 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 79d(2) of MCM, 1969 (Rev.). The 

provision in paragraph 79d(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@)(4). 

Subsection (2)(E)(i) is based on Mil. R. Evid. 101 and 1101. 

Subsections (2)(E)(ii) through (iv) are based on paragraph 79d(3) 

of MCM, 1969 (Rev.). 

Subsections (2)(F)(i) through (iii) are based on paragraph 

79d(4) of MCM, 1969 (Rev.). Note that the summary courtmartial may consider otherwise admissible records from the accused's personnel file under R.C.M. 1001@)(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 
ANALYSIS App. 21, R.C.M. 

29, 1981). Subsection (2)(F)(iv) is new and fulfills the summary 

court-martial's post-trial responsibility to protect the interests of 

the accused by informing the accused of post-trial rights. 

Subsection (2)0(v) is new and designed to inform the convening authority of any suspension recommendation and deferment 

request before receipt of the record of trial. Subsection (2)0(vi) 

modifies paragraph 79d(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 79e and 91c of 

MCM, 1969 (Rev.) insofar as they prescribed that the record of 

trial of a summary court-martial will consist of a notation of key 

events at trial and insofar as they permitted the convening or 

higher authority to require additional matters in the record. Additional requirements may be established by the Secretary concerned, the convening authority, or other competent authority. 

The modification of the format of the charge sheet (see Appendix 

4) eliminated it as the form for the record of trial of a summary 

court-martial. A separate format is now provided at Appendix 15. 

(b) Contents. This subsection is based on paragraphs 79e 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 

Cormnittee 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 79e of 

MCM, 1969 (Rev.). 

(d) Medical Certijicate. This subsection is based on paragraphs 

91c and 125 of MCM, 1969 (Rev.). 

(e) 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. 

Rule 1306. Post-trial procedure 

(a) Accused's post-trial petifion. This subsectio~is based on Article 60(b). C$ Article 38(c). 

(b) Convening authority's action. Subsection (1) refers to the 

detailed provisions concerning the convening authority's initial 

review and action in R.C.M. 1107. The time period is based on 

Article 60(b)(l). Subsections (2) through (4) are based on paragraph 90e of the MCM, 1969 (Rev.). Subsection (2) is modified 

to reflect that the accused ordinarily will receive a copy of the 

record before action is taken. See Article 60(b)(2). 

(c) Review by a judge advocate. This subsection is based on 

Article 64. 

(d) Review by the Judge Advocate General. This subsection is 

based on Article 69 and refers to the detailed provisions goveming such requests for review in R.C.M. 1201. 
APPENDIX 22 


ANALYSIS OF THE MILITARY RULES OF EVIDENCE 


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. b y (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 Department of Transportation, the Military Departments, or of the 

United States Court of Military Appeals. 

The Analysis does not identify technical changes made to adapt 

the Federal Rules of Evidence to military use. Accordingly, the 

Analysis does not identify changes made to make the Rules gender neutral or to adapt the Federal Rules to military terminology 

by substituting, for example, "court members" for "jury" and 

"military judge" for "court". References within the Analysis to 

"the 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 variations in style or terminology between the Military Rules of 

Evidence and other parts of the Manual. Where the same subject 

is treated in similar but not identical terms in the Military Rules 

of Evidence and elsewhere, a diierent meaning or purpose should 

not be inferred in the absence of a clear indication in the text or 

the analysis that this was intended. 

SECTION I 

General Provisions 

Rule 101. Scope 

(a) Applicability. Rule 101(a) is taken generally from Federal 

Rule of Evidence 101. It emphasizes that these Rules are applicable to summary as well as to special and general courts-martial. 

See "Rule of Construction." Rule 101(c), infra. Rule 1101 expressly indicates that the rules of evidence are inapplicable to 

investigative hearings under Article 32, proceedings for pretrial 

advice, search authorization proceedings, vacation proceedings, 

and certain other proceedings. Although the Rules apply to sentencing, they may be "relaxed" under Rule 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 

inquiry unless otherwise required by competent authority. See 

Part I, Para. 2 of the Manual. The Rules, however, serve as a 

"guide" for such bibunals. Id. 

The Military Rules of Evidence are inapplicable to proceedings 

conducted pursuant to Article 15 of the Uniform Code of Military 

Justice. 
App. 22, M.R.E. APPENDIX 22 

The decisions of the United States Court of Military Appeals 

and of the Courts of Military Review must be utilized in interpreting these Rules. While specific decisions of the Article El 

courts involving rules which are common both to the Military 

Rules and the Federal Rules should he 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 Mitary Justice. Rule 101(a) makes it clear that 

the Military Rules of Evidence are the primary source of evidentiary law for military practice. Notwithstanding their wide scope, 

however, Rule 101(b) recognizes that recourse to secondary 

sources may occasionally be necessary. Rule 101(b) prescribes 

the sequence in which such sources shall be utilized. 

Rule 101(b)(l) requires that the first such source be the "rules 

of evidence generally recognized in the trial of criminal cases in 

the United States District courts." To the extent that a Military 

Rule of Evidence reflects an express modification of a Federal 

Rule of Evidence or a federal evidentiary procedure, the 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. 

I 

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 Unifonn 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 

officer". "Summary court-martial officer" is used instead of 

"summary court-martial" for purposes of clarity. A summary 

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 uf 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. 

Rule 103(a)(l) requires that a timely motion or objection 

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 nrake a timely 

and sufficiently specific objection may waive the objection for 

purposes of both trial and appeal. In applying Federal Rule 

103(a), the Article III courts have interpreted the Rule sbictly 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) 

(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 
ANALYSIS OF THE MILITARY RULES OF EVIDENCE App. 22, M.R.E. 

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. 

(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 provisil 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 

determination of the voluntariness of an accused's statement. 

While the Rule strongly suggests that rules of evidence are not 

applicable to admissibility determinations involving constitutional 

issues, the issue is unresolved at present. 

(b) Relevancy conditioned on fact. Rule 104(b) is taken from the 

Federal Rule except that the following language had been added: 

"A ruling on the sufticiency of evidence to suppol-i a findi~lg of 

fultillment 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 pro 

duce 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 

members in a special court-martial without a military judge. 

"Statements of an accused" has been used in lieu of "confessions" 

because of the phrasing of Article 31 of the Uniform Code of 

Military Justice, which has been followed in Rules 301-306. 

(d) Testimony by accused. Rule 104(d) is taken without change 

from the Federal Rule. Application of this rule in specific circumstances is set forth in ~ul~ 304(f), 311(~ 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 ovemles United States v. 

Gr~inden,2 M.J. 116 (C.M.A. 1977) (holding that the military 

judge must sua sponte instruct the members as to use of evidence 

of uncharged misconduct) and related cases insofar as they require the military judge to sua sponte instruct the members. See 

e.g., S. SALTZBURG & K. REDDEN, FEDERAL RULES OF 

EVIDENCE MANUAL 50 (2d ed. 1977); United States v. 

Sangrey, 586 F.2d 1315 (9th Cir. 1978); 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 

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~. 

A22-3 
App. 22, M.R.E. APPENDIX 22 

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. 140a(b) survives as Rule 304(h)(2) and allows the defense 

to complete an alleged confession or admission offered by the 

prosecution. When a confession or admission is involved, the 

defense may employ both Rules 106 and 304(h)(2), as 

appropriate. 

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. 147a. The Federal Rules of 

Evidence Advisory Committee defined adjudicative facts as 

"simply the facts of the particular case" and distinguished them 

from legislative facts which it defined as "those which have 

relevance to legal reasoning and the lawmaking process, whether 

in the formulation of a legal principle or ruling by a judge or 

court or in the enactment of a legislative body," reprinted in S. 

SALTZBURG & K. REDDEN, FEDERAL RULES 01;EVIDENCE MANUAL 63 (2d ed. 1977). The distinction between the 

two types of facts, originated by Professor Kenneth Davis, can on 

occasion be highly confusing in practice and resort to any of the 

usual treatises may be helpful. 

(b) Kinds of facts. Rule 201(b) was taken generally from the 

Federal Rule. The limitation with FED. R. EVID. 201(b)(l) to 

facts known "within the territorial jurisdiction of the trial court" 

was replaced, however, by the expression, "generally known universally, locally, or in the area, pertinent to the event." The 

worldwide disposition of the armed forces rendered the original 

language inapplicable and impracticable within the military environment. Notice of signatures, appropriate under Para. 147a, 

MCM, 1969 (Rev.), will normally be inappropriate under this 

Rule. Rule 902(4) & (10) will, however, usually yield the same 

result as under Para. 147a. 

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 geographical facts; such specific facts and propositions of 

generalized knowledge as are so universally known that they 

cannot reasonably be the subject of dispute; such facts as are so 

generally known or are of such common notoriety in the area in 

which the trial is held that they cannot reasonably be the subject 

of dispute; and specific facts and propositions of generalized 

knowledge which are capable of immediate and accurate determination by resort to easily accessible sources of 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 wlich 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 10 dispute the notoriety or truth of the facts allegedly 

relied upon. 368 U.S. at 173 

(d) When mandatory. Rule 201(d) provides that the military 

judge shall take notice when requested to do so by a party who 

supplies the military judge with the necessary information. The 

military judge must take judicial notice only when the evidence is 

properly within this Rule, is relevant under Rule 401, and is not 

inadmissible under these Rules. 

(e) Opportunity to be heard; Time of taking notice; Instructing 

Members. Subdivisions (e), (f)and (g) of Rule 201 are taken from 

the Federal Rule without change. 

Rule 201A. Judicial notice of law 

bz 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 I11 courts; see e.g., FED R. 

CRIM. P. 26.1. Adoption of a new evidentiary ~le was thus 

required. Rule 201A is generally consistent in principle with Para. 

147a, 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 

intended that "domestic law" include: treaties of the United 

States; executive agreements between the United States and any 

State thereof, foreign country or international organization or 

agency; the laws and regulations pursuant thereto of the United 

States, of the District of Columbia, and of a State, Commonwealth, or possession; international law, including the laws of 

war, general maritime law and the law of air and space; and the 

common law. This definition is taken without change from Para. 

147a except that references to the law of space have been added. 

"Regulations" of the United States include regulations (4 the 

armed forces. 

When a party requests that domestic law be noticed, or when 

the military judge sua spotzte 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). 
ANALYSIS OF THE MILITARY RULES OF EVIDENCE App. 22, M.R.E. 

Foreign law. Rule 201A(b) is taken without significant change 

from FED R. CRIM. P 26.1 and recognizes that notice of foreign 

law may require recourse to additional evidence including testimony of witnesses. For purposes of this Rule, it is intended that 

"foreign law" include the laws and regulations of foreign countries and their political subdivisions and of international organizations and agencies. Any material or source received by the 

military judge for use in determining foreign law, or pertinent 

extracts therefrom, should be included in the record of trial as an 

exhibit. 

SECTION Ill 

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 LII 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 fust paragraph, Para. l5Ob of MCM, 1'169 (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 

Govemment 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 eilller 

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 01.forced (I, cxhibit 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 ~t is in his or her control 

as the custodian for a non-appropriated fund. See, e.g., Para. 150b 

of MCM, 1969 (Rev.); United States v. Sellers, 12 U.S.C.M.A. 

262, 30 C.M.R. 262 (1961); United States v. Haskins, 11 

U.S.C.M.A. 365, 29 C.M.R. 181 (1960). 

(b) Stunding. 

(I) In general. Rule 301@)(1) recites the first part of the third 

paragraph of Para. 1506, MCM, 1969 (Rev.) without change 

except that the present language indicating that neither counsel 

nor the court niay object to a self-incriminating question put to 

the witness has been deleted as being unnecessary. 

(2) Judicial advice. A claritied version of the military judge's 

responsibility under Para. 150b 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. 150b, 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. 150b 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 assell [he 
App. 22, M.R.E. APPENDIX 22 

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 nontriminal 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 "rrimin:ll 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 gerzerally. Rule 301(c)(l) recognizes that "testimonial" or "use plus fruits" immunity is sufficient to overcome 

the privilege against self-incrimination, c$, United States 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) Nofification of immunity or leniency. The basic disclosure 

provision of Rule 301(c)(2) is taken from United States v. 

Webster, 1 M.J. 216 (C.M.A. 1975). Disclosure should take place 

prior to arraignment in order to conform with the timing requirements of Rule 304 and to ensure efficient trial procedure. 

(d) Waiver by a witness. The fust sentence of Rule 301(d) repeats without change the third sentence of the third paragraph of 

Para. 150b of MCM, 1969 (Rev.). 

The second sentence of the Rule restates tlie second section of 

the present 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 1 llguage is: "This limited waiver of the 

privilege applies only at the trial at which the answer is given, 

does not extend to a rehearing or new or other trial, and is subject 

to Rule 608(b)." 

(e) Waiver by the accused. Except for the reference to Rule 

608(b), Rule 301 (e) generally restates the fourth sentence of the 

third subparagraph of Para. 149b(l), 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 hied, as in Rule 304 (0, the 

accused may not be cross-examined on the issue of guilt or 

innocence at all. See Para. 149b(l), MCM, 1969 (Rev.) and Rule 

608(b). 

The last sentence of the third subparagraph of Para. 149b(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 

A22-6 

change the sixth sentence of the third subparagraph of Para. 

149b(1), MCM, 1969 (Rev.). 

(f) Effect of claiming the privilege. 

(1) Generally. Rule 301(f)(l) is taken without change from the 

fourth subparagraph of Para. 150b, 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 selfincrimination in open court, see, e.g., ABA STANDARDS RELATING TO THE ADMINISTRATION OF CRIMINAL JUSTICE, STANDARDS RELATING TO THE PROSECUTION 

FUNCTION AND THE DEFENSE FUNCTION, Prosecution 

Standard 3-5.7(c); Defense Standard 4-7.6(c) (Approved draft 

1979). 

Whether and to what extent a military judge may permit comment on the refusal of a witness to testify after his or her claimed 

reliance on the privilege against self-incrinlination has been determined by the judge to be invalid is a question not dealt \vith by 

the Rule and one which is left to future decisions for resolution. 

(2) On cross-examination. Tliis 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., United States v. Colon-Atienza, 22 U.S.C.M.A. 399, 47 

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., 

evidence of minimal importance (usually dealing with a rather 

distant fact solicited for impeachment purposes+it is not appropriate to strike direct testimony. A matter is collateral when sheltering it would create little danger of prejudice to the accused. 

Where the 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 

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. 

140a(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. Brook, 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) Insmrctions. Rule 301(g) has no counterpart in the 1969 

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 unconstitutiotial 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." 
ANALYSIS OF THE MILITARY RULES OF EVIDENCE App. 22, M.R.E. 

Lukeside 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 1506, 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 subparagraph of Para. 150b 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 

(or of striking what expert testimony has already presented). 

However, at trial the expert may testify only as to his or her 

conclusions and their bask and not as to the contents of any 

statenients made by the accused during the examination. See e.g., 

United States v. Albright, 388 F.2d 719 (4th Ci.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 

Mil.L.Rev. 1 (1976); Holladay, Pretrial Mental Examinations 

Under Military Law: A Re-Examination, 16 A.F.L. Rev. 14 

(1974). This compromise, which originally was a product of case 

law, is based on the premise that raising an insanity defense is an 

implied partial waiver of the privilege against self-incrimination 

and has since been codified in the Federal Rules of Criminal 

Procedure, FED. R. CRIM. P. 12-2, and MCM, 1969 (Rev.). Para. 

140a, 122b, 1506. 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 defens-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 privilep*,. 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 aktted 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@) which states, in part, that "No person subject to this 

chapter may ... ti quest a statement from, an accused or a Person 

suspected of an offense without fust informing him ..." [of his 

rights].Accordingly, a psychiatrist who complies with the literal 

meaning of Article 31@) 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 

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 para- 
App. 22, M.R.E. 

graph 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), @remeditate 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 &I 

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 disquaWed 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 ou the 

merits or during sentencing when the Rule is applicable. This 

should be treated as a question of testimonial immunity for the 

purpose of determining the applicability of the exclusionary rule 

in the area. The Committee does not express an opinion as to 

whether statements made at such a mental examination or derivative evidence thereof may be used in making an adverse determination as to the disposition of the charges against the accused. 

Subject to Rule 302(b), Rule 302(a) makes statements made by 

an accused at a paragraph 121 examination (now in R.C.M. 

706(c), MCM 1984) inadmissible even if Article 31 (b) and counsel warnings have been given. This is intended to resolve problems 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. 

122b, MCM 1969 (Rev.). The waiver provision of Rule 302(b)(l) 

applies only when the defense makes explicit use of statements 

made by the accused to a sanity board or derivative evidence 

thereof. The use of lay testimony to present an insanity defense is 

not derivative evidence when the witness has not read the report. 

(c) Release 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 accrrsed. Rule 302(d) restates prior 
ANALYSIS OF THE MlLlT 'ARY RULES OF EVIDENCE App. 22, M.R.E. 

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 testimony-the coerced testimony of the accused at the sanity 

board-and thus results in an involuntary statement which may be 

challenged under Rule 304. 

Rule 303. Degrading questions 

Rule 303 restates Article 31(c). The content of Para. 150a, 

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 

victims of sexual offenses fro~lb the degrading and irrelevant 

cross-examination formerly typical of sexual cases would have 

intended to permit the identical examination at a military preliminary hearing that is not even presided over by a legally trained 

individual. Thus public policy Nly 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 140a(6) and 150b, 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. 150b 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 capacify ..." (emphasis added). 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 

Article as indicated in the commentary presented during the 

House hearings, The Uniform Code of Military Justice, Hearing 

on H.R. 2498 Before a Subcomm. of the House Comm. on Armed 

Services,8lst Cong., 1st Sess. 984 (1949), was to exclude 

"evidence" rather than just "statements." Attempting to allow 

admission of evidence obtained from statements which were the 

product of coercion, unlawful influence, or unlawful inducement 

would appear to be both against public policy and unnecessarily 

complicated. Similarly, the 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 U~liform 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 

A22-9 
App. 22, M.R.E. APPE 

(1977), Rule 305(b)(2). Manual language dealing with this area 

has been deleted as being unnecessary. 

(b) Exceptions. Rule 304(b)(l) 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. 140a(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 Slates 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, sirpra, 20 U.S.C.M.A. 614, 

617, 44 C.M.R. 44, 47, and Rule 304(b) adopts Hanis 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 the waiver 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@)(2). 

1990 Amendment: Subsection @)(l) 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 

truth-testing devices of the adversary process. See Walder 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)(l) 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 

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, 20 

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. Jnckvon, 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 Hnrris to Sixth Amendment violations of the right to 

counsel. 

(c) De3nition.v. 

(1) Confession and admission. Rules 304(c)(l) and (2) express 

without change the definitions found in Para. 140a(l), 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) Involuntary. The definition of "involuntary" in Rule 

304(c)(3) summarizes the prior definition of "not voluntary" as 

found in Para. 140a(2), MCM, 1969 (Rev.). The examples in 

Para. 140a(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 frfth 

paragraph of Para. 140a(2), MCM, 1969 (Rev.), that a statement 

App. 22, M.R.E. APPENI 

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 justlfy 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. Dlrsenberry, 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 anned forces did not follow the 

rule applied in the civilian federal courts. Instead, MCM, 1969 

(Rev.) utilized the minority "Massachusetts Rule," sometimes 

known as the 'Two Bite Rule." Under this procedure the defense 

furst 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 nnt 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 trig1 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 procedure, the military judge determines the admissibility of 

confessions or admissions using a preponderance basis. No recourse exists to the court members on the question of admissibility. In the event of a ruling on admissibility adverse to the 

accused, the accused may present evidence to the members as to 

voluntariness for their consideration in determining what weight 

to give to the statements in question. 

It should be noted that under the Rules the prosecution's burden extends only to the specific issue raised by the defense under 

Rule 304(d), should specificity have been required pursuant to 

Rule 304(d)(3). 

(1) In general. Rule 304(e)(l) requires that the military judge 

find by a preponderance that a statement challenged under this 

rule was made voluntarily. When 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. 

(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. 140a(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 rlroper 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 

instruction. United States v. Seigle, 22 U.S.C.M.A. 403, 47 

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 
ANALYSIS OF THE MILITARY RULES OF EVIDENCE App. 22, M.R.E. 

unnecessary and confusing. Consequently, the Rule does not follow Seigle insofar as the case allows the issue to be submitted to 

the members. The members must still weigh the evidence when 

determining the guilt or innocence of the accused, and the nature 

of any corroborating evidence is an appropriate matter for the 

members to consider when weighing the statement before them. 

The corroboration rule requires only that evidence be admitted 

which would support an inference that the essential facts admitted 

in the statement are true. For example, presume that an accused 

charged with premeditated murder has voluntarily confessed that, 

intending to kill the alleged victim, she concealed herself so that 

she might surprise the victim at a certain place and that when the 

victim passed by, she plunged a knife in his back. At trial, the 

prosecution introduces independent evidence that the victim was 

found dead as a result of a knife wound in his back at the place 

where, according to the confession, the incident occurred. This 

fact would corroborate the confession because it would support an 

inference of the truth of the essential facts admitted in the 

confession. 

(h) Miscellaneous. 

(1) Oral statements. Rule 304(h)(l) is taken verbatim from 

1969 Manual paragraph 140a(6). It recognizes that although an 

oral statement may be transcribed, the oral statement is separate 

and distinct from the transcription and that accordingly the oral 

statement may be received into evidence without violation of the 

best evidence rule unless the specific writing is in question, see 

Rule 1002. So long as the oral statement is complete, no specific 

rule would require the prosecution to offer the transcription. The 

defense could of course offer the writing when it would constitute 

impeachment. 

(2) Completeness. Rule 304(11)(2) is taken without significant 

change from 1969 Manual paragraph 140a(6). Although Rule 106 

allows a party to require an adverse party to complete an otherwise incomplete written statement in an appropriate case, Rule 

304(h)(2) allows the deiense 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. 140a(4) of the 1969 Manual. That part of the remainder of 

Para. 140a(4) dealing with the existence of the privilege against 

self-incrimination is now set forth in Rule 301(f)(3). The remainder of Para. 140a(4) has been set forth in the Analysis to subdivision (d)(2), dealing with an admission by silence, or has been 

omitted as being unnecessary. 

1986Amendment: 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. Haldemn, 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. Haldemn, 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 refure a lawfir1 order. A servicemember may still be compelled to submit to the test. See, 

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 UI 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. 140a(2). 

(b) Definitions. 

(1) Persons subject to the Unifonn Code of Military Justice. 

Rule 305(b)(l) makes it clear that under certain conditions a 

civilian may be a "person subject to the Uniform Code of Military Justice" for purposes of warning requirements, and would be 

required to give Article 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 s~ibqtance from Para. 140a(2) of the 1969 Manual. 

(2) Interrogation. Rule 305(%)(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 

anUinnocent" question is addressed to a suspect and results unexpectedly in an incriminating response which could not have been 

foreseen. This legislative history and tlle cases are unclear as to 

whether Article 31 allows nonincriminating questioning. See 

Lederer, Rights, Warnings in the Armed Services, 72 Mil. L. Rev. 

1, 32-33 (1976), and the issue is left open for further 

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 

ANALYSIS OF THE MILITARY RULES OF EVIDENCE App. 22, M.R.E. 

126, 37 C.M.R. 390 (1967) and United States v. Gibson, 3 

U.S.C.M.A. 746, 14 C.M.R. 164 (1954). 

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, 

restriction, arrest, or confinement does not trigger the Sixth 

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 oarticular case. 

(2) Counsel. Rule 305(d)(2) sets forth the basic light to counsel at interrogations required under 1969 Manual Para. 140a(2). 

The Rule rejects the interpretation of Para. 140a(2) set forth in 

United States v. Hojbauer, 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. 

I994 Amendment: Subdivision (e) was amended to conform 

military practice with the Supreme Court's decisions inkfinnick v. 

Mississippi, 498 U.S. 146 (1990), andMcNeil v. Wisconsin, 501 

U.S. 171 (1991). Subdivision (e) was divided into two 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)(l) 

applies an accused's Fifth Amendment righf to counsel to the 

military and conforms military practice with the Supreme Court's 

decision in Minnick. In that case, the Court determined that the 

Fifth Amendment right to counsel protected by Miranah 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 coni?ontations 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 

Miranah v. Arizona, 384 U.S. 436 (1966), and United States v. 

Tempia, 16 I! 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 amendme~ts 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 Michjgan 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 

A22-15 
App. 22, M.R.E. APPE 

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, (Q(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. 140a(2) of the 

1969 Manual. 

Rule 305(g)(l) sets forth the general rule for waiver and follows Miranda v. Arizona, 384 U.S. 436, 475 (1966). The Rule 

requires that an affirmative acknowledgment of the right be made 

before an adequate waiver may be found. Thus, three waiver 

questions are required under Rule 305(g): 

(1) Do you understand your rights? 

(2) Do you want a lawyer? 

(3) Are you willing to make a statement? The specific wording 

of the questions is not detailed by the Rule and any format may 

be used so long as the substantive content is present. 

Notwithstanding the above, Rule 305(g)(2), following North 

Carolina v. Butler, 441 U.S. 369 (1979), recognizes that the right 

to counsel, and only the right to counsel, may be waived even 

absent an affirmative declination. The burden of proof is on the 

prosecution in such a case to prove by a preponderance that the 

accused waived the right to counsel. 

The second portion of Rule 305(g)(2) dealing with notice to 

counsel is new. The intent behind the basic notice provision, Rule 

305(e), is to give meaning to the right to counsel by preventing 

interrogators who know or reasonably should know an individual 

has counsel from circumventing the right to counsel by obtaining 

a waiver from that person without counsel present. Permitting a 

Miranda type waiver in such a situation clearly would defeat the 

purpose of the Rule. Rule 305(g)(2) thus permits a waiver of the 

right to counsel when notice to counsel is required only if it can 

be demonstrated either that the counsel, after reasonable efforts, 

could not be notified, or that the counsel did not attend the 

interrogation which was scheduled within a reasonable period of 

time after notice was given. 

A statement given by an accused or suspect who can be shown 

to have his rights as set forth in this Rule and who intentionally 

frustrated the diligent attempt of the interrogator to comply with 

this Rule shall not be involuntary solely for failure to comply 

with the rights warning requirements of this Rule or of the waiver 

requirements. United States v. Sikorski, 21 U.S.C.M.A. 345, 45 

C.M.R. 119 (1972). 

1994Amendment: The amendment divided subdivision (2) into 

three sections. Subsection (2)(A) remains unchanged from the 

fust sentence of the previous rule. Subsection (2)(B) is new and 

conforms military practice with the Supreme Court's decision in 

Minnick v. Mississippi, 498 U.S. 146 (1990). In that case, the 

Court provided that an accused or suspect can validly waive his 

Fifth Amendment right to counsel, after having previously exercised that right at an earlier custodial interrogation, by initiating 

the subsequent interrogation leading to the waiver. Id. at 156. 

This is reflected in subsection (2)(B)(i). Subsection (2)(B)(ii) establishes a presumption that a coercive atmosphere exists that 

invalidates a subsequent waiver of counsel rights when the request for counsel and subsequent waiver occur while the accused 

or suspect is in continuous custody. See McNeil v. Wisconsin, 501 

U.S. 171 (1991); Arizona v. Roberson, 486 U.S. 675 (1991). The 

presumption can be overcome when it is shown that there occurred a break in custody which sufficiently dissipated the coercive environment. See United States v. Schake, 30 M.J. 314 

(C.M.A. 1990). 

Subsection (2)(C) is also new and conforms military practice 

with the Supreme Court's decision in Michigan v. Jackson, 475 

U.S. 625, 636 (1986). In J~lckson,the Court provided that the 

accused or suspect can validly waive his or her Sixth Amendment 

right to counsel, after having previously asserted that right, by 

initiating the subsequent interrogation leading to the waiver. The 

Court differentiated between assertions of the Fifth and Sixth 

Amendment right to counsel by holding that, while exercise of 

the former barred further interrogation concerning the same or 

other offenses in the absence of counsel, tl~e Sixth Amendment 

protection only attaches to those offenses as to which the right 

was originally asserted. In addition, while continuous custody 

would serve to invalidate a subsequent waiver of a Fifth Amendment right to counsel, the existence or lack of continuous custody 

is irrelevant to Sixth Amendment rights. The latter vest once 

formal proceedings are instituted by the State and the accused 

asserts his right to counsel, and they serve to insure that the 

accused is afforded the right to counsel to serve as a buffer 

behveen the accused and the State. 

(h) Non-military interrogations. Para. 140a(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 

Miranda rule, the Committee has used the language in Rule 

305(h)(l) to make practice in this area dependent upon the way 

the Federal district courts would handle such interrogations. See 

Article 36. 

Rule 305(h)(2) clarif~es 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. 
ANALYSIS OF THE MILITARY RULES OF EVIDENCE App. 22, M.R.E. 

Rule 306. Statements by one of several accused tical. The Committee also considered that the expression 

Rule 306 is taken from the fifth 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 co- 

- accused. This may include the granting of a severance. 

The Committee was aware of the Supreme Court's decision in 

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 draftiig a rule, and decided instead 

to apply Bruton to interlocking confessions. 

Rule 311. Evidence obtained from unlawful 

searches and seizures 

Rules 311-317 express the manner in which the Fourth 

Amendment to the Constitution of the United States applies to 

trials by court-martial, Cf: Parker v. Levy, 417 U.S. 733 (1974). 

(a) General rule. Rule 31 1(a) restates the basic exclusionary rule 

for evidence obtained from an unlawful search or seizure and is 

taken generally from 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 

31 1 recognizes that discovery of evidence may be so unrelated to 

an unlawful search or seizure as to escape exclusion because it 

was not "obtained as a result" of that search or seizure. 

The Rule recognizes that searches and seizures are distinct acts 

the legality of which must be determined independently. Although 

a seizure will usually be unlawful if it follows an unlawful search, 

a seizure may be unlawful even if preceded by a lawful search. 

Thus, adequate cause to seize may be distinct from legality of the 

search or observations which preceded it. Note in this respect 

Rule 316(d)(4)(C), Plain View. 

(1) Objection. Rule 311(a)(l) requires that a motion to suppress or, as appropriate, an objection be made before evidence 

can be suppressed. Absent such motion or objection, the issue is 

waived. Rule 31 l(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 

of "legitimate expectation of privacy," often used in Rakas, 

supra, as the Committee believed the two expressions to be iden- 

"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) Exceptions: Rule 311(b) states the holding of Walder v. 

United States, 347 U.S. 62 (1954). and restates with minor change 

the rule as found in Para. 152 of the 1969 Manual. 

I986 Amendment: Rule 311(b)(2) was added to incorporate the 

"inevitable discovery" exception to the exclusionary rule of Nu 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 Stntes 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. Satrerfield, 743 F.2d 827, 846 (11th 

Cir. 1984)). 

As a logical extension of the holdings in Nix 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. 

I pon, 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 

A22-17 
App. 22, M.R.E. APPENDIX 22 

is whether a reasonably well-trained law enforcement officer 

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 

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 in Leon 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 

have been defective under R.C.M. 302 (United States 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 31 l(c)(l) 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) Oficials 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 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. 150b 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 Uuited 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 

sewicemember is far more likely to be well sewed 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 Illiited States 

while protecting both the accused and international relations. 

The Rule also permits use of United States personnel as interpreters viewing such action as a neutral activity normally of 

potential advantage to the accused. Similarly the Rule permits 

personnel to take steps to protect the person or property of the 

accused because such actions are clearly in the best interests of 

the accused. 

(d) Motion to suppress and objections. Rule 31 1(d) provides for 

challenging evidence obtained as a result of an allegedly unlawful 

search or seizure. The procedure, normally that of a motion to 

suppress, is intended with a small difference in the disclosure 

requirements to duplicate that required by Rule 304(d) for confessions and admissions, the Analysis of which is equally applicable 

here. 

Rule 311(d)(l) differs from Rule 304(c)(l) in that it is applicable only to evidence that the prosecution intends to offer against 

the accused. The broader disclosure provision for statements by 

the accused was considered unnecessary. Like Rule 304(d)(2)(C), 

Rule 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 ofproof: Rule 311(e) requires that a preponderance of 

App. 22, M.R.E. APPEl 

complished by personnel with appropriate medical qualifications. 

The Rule thus does not specifically require that the intrusion be 

made by a doctor, nurse, or other sinlilar medical personnel although Rule 312(g) allows the Secretary concerned to prescribe 

who may perform such procedures. It is presumed that an object 

easily located by sight can normally be easily extracted. The 

requirements for appropriate medical qualifications, however, 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 

individual is concealing weapons, contraband, or evidence of 

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. 313e). 

(e) Other intrusive searches. The inhusive 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), 

Note, Search and Seizure: Compelled Surgical Intrusion, 27 

Baylor L.Rev. 305 (1975), and cases cited therein, other than to 

rule out !hose 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 involu~ltary 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 qualtj7cations. Rule 312(g) permits but does not require the Secretaries concerned to prescribe the medical qualifications necessary for persons to conduct the procedures and 

examinations specified in the Rule. 

Rule 313. Inspections and inventories in the 

armed forces 

Although inspections have long been recognized a? being 

necessary and legitimate exercises of a commander's powers and 

responsibilities, see, e.g., United States v. Gebhart, 10 

U.S.C.M.A. 606,610.2,28 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." Tlle 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 

been condemned. See, e.g., United States v. Lange, 15 

U.S.C.M.A. 486, 35C.M.R. 458 (1965). Recent decisions of the 

United States '1w-t 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 con- 
ANALYSIS OF THE MILITARY RULES OF EVIDENCE App. 22, M.R.E. 

ducted within the armed forces. These civilian procedures must 

be evaluated under Rule 311(c)(2). In general, this means that 

such inspections and inventories need only be permissible under 

the Fourth Amendment in order to yield evidence admissible at a 

court-martial. 

Seizure of property located pursuant to a proper inspection or 

inventory must meet the requirements of Rule 316. 

(b) Inspections. Rule 313(b) defines "inspection" as an "examination . . . conducted as an incident of command the primary purpose 

of which is to determine and to ensure 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 conJition 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 ~le 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 'linlited 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. Callmay, 518 F.2d 466p.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 authority. Camara v. Municipal Court, 387 U.S. 523, 532 (1967). 

Within the armed forces, the warrant requirement is met automatically if an in spec ti or^ is ordered by a commander, as commanders 

are empowered to grant warrants. United States v. EzeN, 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 
App. 22, M.R.E. APPENDIX 22 

fully meets the concern, and Rule 313(b) expressly prevents such 

subterfuges. The fact that an inspection that is primarily administrative in nature may result in a criminal prosecution is unimportant. Camara v. Municipal Court, 387 U.S. 523, 530-531 (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.J. 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., United States v. Gebhart, 10 C.M.A. 606, 610 n.2, 28 

C.M.R. 172, 176 n.2 (1959); "(these) types of searches are not to 

be confused with inspections of military personnel .. . conducted 

by a commander in furtherance of the security of his command"; 

United States v. Brashears, 45 C.M.R. 438 (A.C.M.R. 1972), 

rev'd on other grounds, 21 C.M.A. 522, 45 C.M.R. 326 (1972). 

Among the legitimate intents of a proper inspection is the location 

and confiscation of unauthorized weapons. See, e.g., 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 lmown 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. Scr.. r-.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 11. 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 nlay take place, there 

must be either "a reasonable suspicion that such property is pres- 
ANALYSIS OF THE MILITARY RULES OF EVIDENCE App. 22, M.R.E. 

ent 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 

ordinarily more concerned with removal of contraband from 

units- thereby eliminating its negative effects on unit 

readiness- than with prosecution of those found in possession of 

it. The fact that possession of contraband is itself unlawful renders the probability that an inspection may be a subterfuge somewhat higher than that for an inspection not intended to locate such 

material. 

An inspection which has as its intent, or one of its intents, in 

whole or in part, the discovery of contraband, however slight, 

must comply with the specific requirements set out in the Rule 

for inspections for contraband. An inspection which does not 

have such an intent need not so co~ll~ly 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 hi an Army 

platoon may well do so. 

The Rule does not require that personnel to be inspected be 

given preliminary notice of the inspection although such advance 

notice may well be desirable as a matter of policy or in the 

interests, as perhaps in gate inspections, of establishing an alternative basis, such as consent, for the examination. 

Rule 313(b) requires that inspections be conducted in a 

"reasonable fashion." The timing of an inspection and its nature 

may be of importance. Inspections conducted at a highly unusual 

time are not inherently unreasonable-- especially when a legitimate reason of such timing is present. However, a 0200 inspection, for example, may be unreasonable depending upon the 

surrounding circumstances. 

The Rule expressly permits the use of "any reasonable or 

natural technological aid." Thus, dogs may be used to detect 

contraband in ,an otherwise valid inspection for contraband. This 

conclusion follows directly from the fact that inspections for 

contraband conducted in 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 plirpose. 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 searcl~es or subterfuges. 

I984 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. 797 (1974). Ruiz was implicitly overmled in United 

Stares v. Annsrrong, 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 

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 com- 
App. 22, M.R.E. APPENDIX 22 

pulsory production of body fluids, it apparently was the intent of 

the drafters to pemut such production as part of inspections, 

relying at least in part on the medical purpose exception in Mil. 

R. Evid. 312(f). Mil. R. Evid. 312(d) applies only to nonconsensual extraction (e.g., catheterization, drawing blood) of body fluids. This was noted in the Analysis, Mil. R. Evid. 312(d), which 

went on to state that "compulsory urinalysis, whether random or 

not, made for appropriate medical purposes, see Rule 312(f), and 

the product of such a procedure if otherwise admissible may be 

used at a court-martial." 

There is considerable overlap between production of body fluid 

for a medical purpose under Mil. R. Evid. 312(f) and for determining and ensuring military fitness in a unit, organization, installation, vessel, aircraft, or vehicle. Frequently the two purposes are 

coterminous. Ultimately, the overall health of members of the 

organization is indivisible from the ability of the organization to 

perform the mission. To the extent that a "medical purpose" 

embraces anything relating to the physical or mental state of a 

person and that person's ability to perform assigned duties, then 

the two purposes may be identical. Such a construction of "medical purpose" would seem to swallow up the specific rules and 

limitations in Mil. R. Evid. 312(f), however. Therefore, a distinction may be drawn between a medical purpose- at least to the 

extent that that term is construed to concern primarily the health 

of the individual- and the goal of ensuring the overall fitness of 

the organization. For example, it may be appropriate to test- by 

compulsory production of urine- persons whose duties entail 

highly dangerous or sensitive duties. The primary purpose of such 

tests is to ensure that the mission will be performed safely and 

properly. Preserving the health of the individual is an incidentalbeit a very important one- of that purpose. A person whose 

urine is found to contain dangerous drugs is relieved from duty 

during gunnery practice, for example, not so much to preserve 

that person's health as to protect the safety of others. On the other 

hand, a soldier who is extremely ill may be compelled to produce 

urine (or even have it extracted) not so much so that that soldier 

can return to duty- although the military has an interest in thisas 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). 

The sixth sentence is based on United States v. Middleton, 

supra. Mia'dZeton was not decided on the basis of Mi1.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, 

A22-24 

under some circumstances. 

The former language allowed an inspection for "unlawful 

weapons and other contraband when such property would affect 

adversely the security, mi1i::uy 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 effects of the weapons or contraband (including controlled 

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 purposes the discovery of contraband-i.e., drugs. Significantly, 

there is no indication in Middleton that a specific showing of the 

adverse effects of such contraband in the unit or organization is 

necessary. The court expressly recognized (see United States v. 

Middleton, supra at 129; c$ United Stares v. Trottier, 9 M.J. 337 

(C.M.A. 1980)) the adverse effect of drugs on the ability of the 

armed services to perform the mission without requiring evidence 

on the point. Indeed, it may generally be assumed that if it is 

illegal to possess an item under a statute or lawful regulation, the 

adverse effect of such item on security, military fitness, or good 

order and discipline is established by such illegality, without 

requiring the commander to personally analyze its effects on a 

case-by-case basis and the submission of evidence at trial. The 

defense may challenge the constitutionality of the statute or the 

legality of the regulation (c$ United States v. Wilson, 12 

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 7hited States v. Brown, 12 M.J. 420 (C.M.A. 1982). 

Middleton upheld broad authority in the commander to inspect 

for contraband, as well as other things, "when adequate 

safeguards are present which assure that the 'inspection' was 

really intended to determine and assure the readiness of the unit 

inspected, rather than merely to provide a subterfuge for avoiding 

limitations that apply to a search and seizure in a criminal investigation." As noted above, the Court in Middleton expressly reserved judgment whether Mil. R. Evid. 313(b) as then written 

satisfied this test. 

The two prongs of the second part of the former test were 

intended to prevent subterfuge. However, they did not necessarily 

do so. Indeed, the "reasonable suspicion" test could be read to 

expressly authorize a subterfuge search. See, e.g., United States v. 

Lange, 15 U.S.C.M.A. 486, 35 C.M.R. 458 (1965). The 

"previously scheduled" test is an excellent way to prove that an 

inspection was not directed as the result of a reported offense, and 

the new formulation so retains it. However, it alone does not 

ensure absence of prosecutorial motive when specific individuals 

are singled out, albeit well in advance, for special treatment. 

At the same time, the former test could invalidate a genuine 

inspection which had no prosecutorial purpose. For example, a 

commander whose unit was suddenly alerted for a special mission 

might find it necessary, even though the commander had no 

actual suspicion contraband is present, to promptly inspect for 

contraband, just to be certain none was present. A commander in 
ANALYSIS OF THE MILITARY RULES OF EVIDENCE App. 22, M.R.E. 

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 categories may be inspected. Cf:United States v. King, 2 M.J. 4 

(C.M.A. 1976). 

The existence of one or more of the three circun~stances 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 comi~ander 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. 

The new language provides objective criteria by which to 

measure a subjective standard, i.e., the commander's purpose. 

Because the standard is ultimately subjective, however, the objective criteria are not conclusive. Rather they provide concrete and 

realistic guidance for commanders to use in the exercise of their 

inspection power, and for judicial authorities to apply in reviewing the exercise of that power. 

(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., 

United States v. Brashears, 21 C.M.A. 552, 45 C.M.R. 326 

(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 glovebox during the 

inventory of a properly impounded automobile. 

Inventories will often be governed by regulation. 

Rule 314. Searches not requiring probable cause 

The list of non-probable cause searches contained within 

Rule 314 is intended to encompass most of the non-probable 

cause searches common in the military environment. The term 

"search" is used in Rule 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 pre-empts 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 3140 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 authnrimd to do so by 

Congress. 

(c) Searches upon entry to United States installations, aircrafr, 

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 it!: 

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 comm3nder may hold. 

Although Rule 314(c) is similar to Rule 313(b), it is distinct in 

terms of its legal basis. Consequently, a search performed pursuant to Rule 314(c) need not comply with the burden of proof 

requirement found in Rule 313(b) for contraband inspections even 

though the purpose of the 314(c) examination is to prevent introduction of contraband into the installation, aircraft or vessel. 

A Rule 314(c) examination must, however, be for a purpose 

denominated in the rule and must be rationally related to such 

purpose. A search pursuant to Rule 314(c) is possible only upon 

entry to the installation, aircraft, or vessel, and an individual who 
App. 22, M.R.E. APPEl 

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 

exit from" based on United States v. Alleyne, 13 M.J. 331 

(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 prewn~ption 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 b~volves any limitations upon the 

ability to search. 

(e) Consent Searches. 

(1) Genera2 tule. 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 

thud 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.I. 

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 proo5Although not constitutionally required, the 

burden of proof in Para.152 of the 1969 Manual for consent 

searches has been retained in a slightly differentform- "clear and 

convincing" in place of "clear and positive "- on the presumption that the basic nature ofthe military structure renders consent 

more suspect than in the civiliancommunity. "Clear and convincing evidence" is intended tocreate a burden of proof between the 

preponderance and beyond a reasonabledoubt standards. The Rule 

expressly rejects a different burden forcustodial consents. The law 

is this area evidences substantial confusionstemming 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 heavyobligation if the accused was in custody ...", which 

was taken intum from a number of civilian federal court decisions. While custodyshould be a factor resulting in an especially 

careful scrutiny of thecircumstances 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 Inl!!fi41 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 civilia~~ life. 

Generally, it would appear that any individual who can be lawfully stopped is likely to be a suspect for the purposes of Article 

31(b). Whether identification can be demanded of a military suspect without Article 31(b) warnings is an open question and may 

be dependent upon whether the identification of the suspect is 

relevant to the offense possibly involved. See Lederer. Rights 

Warnings in the Armed Services, 72 Mil.L.Rev. 1,4041 (1976). 

1984 Amendment: Subsection (Q(3) was added based on Michigan V. Lorzg, 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 apprehe~~ding 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 
ANALYSIS OF THE MILITARY RULES OF EVIDENCE App. 22, M.R.E. 

in his immediate possession or control, or of an area from within 

which he might gain possession of weapons or destructible evidence; and a search of the place where the apprehension is made 

[is lawful]. 

Rule 314(g) restates the principle found within the Manual text 

but utilizes new and clarifying language. The Rule expressly 

requires that an apprehension be lawful. 

(1) General Rule. Rule 314(g)(l) expressly authorizes the 

search of a person of a lawfully apprehended individual without 

further justification. 

(2) Search for weapons and destructible evidence. Rule 

314(g)(2) delimits the area that can be searched pursuant to an 

apprehension and specifies that the purpose of the search is only 

to locate weapons and destructible evidence. This is a variation of 

the authority presently in the Manual and is based upon the 

Supreme Court's decision in 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 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 on New 

York v. Belton, 453 U.S. 454 (1981). The holding of the Court 

used the term "automobile" so that word is used in the rule. It is 

intended that the 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 cldes 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 n 

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 facilities. Personnel confined in a military confinement facility or 

housed in a facility serving a generally similar purpose will normally yield any normal Fourth Amendmet'i protections to the 

reasonable needs of the facility. See, United States v. Maglito,20 

C.M.A. 456, 47 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 A$ 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 pursuant to the Rule is admissible when relevant and not otherwise 

admissible under the Rules. 

(b) Definitions. 

(1) Authorization to search. Rule 315(b)(l) defines an 

"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 refemng to a permission to search given by 

proper civilian authority. The change in terminology reflects the 
App. 22, M.R.E. APPENDIX 22 

unique nature of the armed forces and of the role played by 

commanders. 

(2) search warrant. ~h~ expression 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). 

Rule 315(c)(4) is a modification of prior law. Subdivision 

(c)(4)(A) is intended to ensure cooperation between Department 

of Defense agencies and other government agencies by requiring 

prior consent to DOD searches involving such other agencies. 

Although Rule 315(c)(4)(B) follows the 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 reyresentative 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)(l) 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 

EMPOWERED TO GRANT SEARCH AUTHORIZATIONS. 

This recognizes the practice now in use in the Army but makes 

such practice discretionary with the specific Service involved. 

(e) Power to search. Rule 315(e) specifically denominates those 

persons who may conduct or authorize a search upon probable 

cause either pursuant to a search authorization or when such an 

authorization is not required for reasons of exigencies. The Rule 

recognizes, for example, that all officers and non-commissioned 

officers have inherent power to perform a probable cause search 

without obtaining of a search authorization under the circumstances set forth in Rule 315(g). The expression "criminal investigator" within Rule 315(e) includes members of the Army 

Criminal Investigation Command, the Marine Corps Criminal Investigation Division, the Naval Criminal Investigative Service, the 

Air Force Office of Special Investigations, and Coast Guard special agents. 

(0 Basis for search authorizations. Rule 3150 requires that 

probable cause be present before a search can be conducted under 

the Rule and utilizes the basic definition of probable cause found 

in 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 

cause can exist only if the authorizing individual has a 

"reasonable belief that the information giving rise to the intent to 

search is believable and has a factual basis." This test is taken 

from the "two prong test" of Aguilar v. Texas, 378 U.S. 108 

(1964), which was incorporated in Para. 152 of the 1969 Manual. 

The Rule expands the test beyond the hearsay and informant area. 

The "factual basis" requirement is satisfied when an individual 

reasonably concludes that the information, if reliable, adequately 

apprises the individual that the property in question is what it is 

alleged to be and is where it is alleged to be. Information is 

"believable" when an individual reasonably concludes that it is 

sufficiently reliable to be believed. 

The twin test of "believability" and "basis in fact" must be met 

in all probable cause situations. The method of application of the 

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 
ANALYSIS OF THE MILITARY RULES OF EVIDENCE App. 22, M.R.E. 

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 detennination, such as to make it reasonable to presume that the information is accurate? 

Mere allegations may not be relied upon. For example, an 

individual may not reasonably conclude that an informant is reliable simply because the informant is so named by a law enforcement agent. The individual making the probable cause 

determination must be supplied with specific details of the informant's past actions to allow that individual to personally and 

reasonably conclude that the informant is reliable. 

Information transmitted through law enforcement or command 

channels is presumed to have been reliably transmitted. This presumption may be rebutted by an affirmative showing that the 

information was transmitted with intentional error. 

The Rule permits a search authorization to be issued based 

upon information transmitted by telephone or other means of 

communication. 

The Rule also permits the Secretaries concerned to impose 

additional procedural requirements for the issuance of search authorizations. 

1984 Amendment: The second sentence of subsection (fj(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)(l) deals with the case in which the time necessary 

to obtain a proper authorization would threaten the destruction or 

concealment of the property or evidence sought. 

Rule 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. Oppennan, 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 

was in fact inoperable (that is, to rebut the presumption of 

operability) thereby negating the exception, even though a reasonable person would have believed the vehicle inoperable. The fact 

of inoperability is irrelevant; the test is whether the official(s) 

searching knew or should have known that the vehicle was 

inoperable. 

(h) Execution. Rule 314(h)(l) provides for service of a search 

warrant or search authorization upon a person whose property is 

to be searched when possible. Noncompliance with the Rule does 

not, however, result in exclusion of the evidence. Similarly, Rule 

314(h)(2) provides for the inventory of seized property and 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. 
App. 22, M.R.E. APPENDIX 22 

Rule 316. Seizures 

(a) General Rule. Rule 316(a) provides that evidence obtained 

pursuant to the Rule is admissible when relevant and not otherwise inadmissible under the Rules. Rule 316 recognizes that 

searches are distinct from seizures. Although rare, a seizure need 

not be proceeded by a search. Property may, for example, be 

seized after being located pursuant to plain view, see subdivision 

(d)(4)(C). Consequently, the propriety of a seizure must be considered independently of any preceding search. 

(b) 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)(l), 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 

(1979); United States v. Texidor-Perez, 7 M.J. 356 (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) Other property. Rule 316(d)(4) provides for seizure of 

property or evidence not otherwise addressed by the Rule. There 

must be justification to exercise control over the property. Although property may have been lawfully located, it may not be 

seized for use at trial unless there is a reasonable belief that the 

property is of a type discussed in Rule 316(b). Because the Rule 

is inapplicable to seizures unconnected with law enforcement, it 

does not limit the seizure of property for a valid administrative 

purpose such as safety. 

Property or evidence may be seized upon probable cause when 

seizure is authorized or directed by a search warrant or authorization, Rule 316(d)(4)(A); when exigent circumstances pursuant to 

Rule 315(g) permit proceeding without such a warrant or authorization; or when the property or evidence is in plain view or smell, 

Rule 316(d)(4)(C). 

Although most plain view seizures are inadvertent, there is no 

necessity that a plain view discovery be inadvertent- notwithstanding dicta, in some court cases; see, Coolidge v. New 

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 

MODEL CODE OF PREARRAIGNMENT PROCEDURES $ 

260.6 (1975). The Rule requires that the observation making up 

the alleged plain view be "reasonable." Wether 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. 

1984 Amendment: Subsection (d)(5) was added based on 

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 Seaetaries. 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. J 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 Defense, Department of Transportation, or the military departments 

for authority to intercept wire or oral communications. 

(c) Regulations. Rule 317(c) requires interception of wire or oral 

communications in the United States be first authorized by statute, see Rule 317(b), and interceptions abroad by appropriate 

regulations. See the Analysis to Rule 317(a), supra. The Committee intends 317(c) to limit only in interceptions that are non 

consensual under Chapter 119 of Title 18 of the United States 

Code. 

Rule 321. Eyewitness identification 

(a) General Rule 

(1) Admissibility. The first sentence of Rule 321(a)(l) is the 

basic rule of admissibility of eyewitness identification and 

provides that evidence of a relevant out-of-court identification is 

admissible when otherwise admissible under the Rules. The intent 

of the provision is to allow any relevant out-of-court identification without any need to comply with the condition precedent 

sucl~ as in-court identification, significant change from the prior 

rule as found in Para. 153a, MCM, 1969 (Rev.). 

The language "if such testimony is otherwise admissible under 

these rules" is primarily intended to ensure compliance with the 
ANALYSIS OF THE MILITARY RULES OF EVIDENCE App. 22, M.R.E. 

hearsay rule. Rule 802. It should be noted that Rule 801(d)(l)(C) 

states that a statement of "identification of a person made after 

perceiving the person" is not hearsay when "the declarant testifies 

at the trial or hearing and is subject to cross-examination concerning the statement." An eyewitness identification normally will be 

admissible if the declarant testifies. The Rule's statement, "the 

witness making the identification and any person who has observed the previous identification may testify concerning it," is 

not an express exception authorizing the witness to testify to an 

out-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)(l) is intended to clarify 

procedure by emphasizing that an in-court identification may be 

bolstered by an out-of-court identification notwithstanding the 

fact that the in-court identification has not been attacked. 

(2) Exclusionary rule. Rule 321(a)(2) provides the basic exclusionary rule for eyewitness identification testimony. The substance of the Rule is taken from prior Manual paragraph 153a 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 

which is determinative. Manson v. Brathwaite, 432 U.S. 98 

(1977). "United States or other domestic authorities" includes 

military personnel. 

Although it is clear that an unlawful identification may taint a 

later identification, it is unclear at present whether an unlawful 

identification requires suppression of evidence other than identification of the accused. Consequently, the Rule requires exclusion 

of nonidentification derivative evidence only when the Constitution would so require. 

(b) Definition of "unlawful." 

(1) Lineups and other identijication processes. Rule 321(b) 

defies "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 (l)(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. 

Rule 321(b)(l) is applicable to all forms of identification 

processes including showups and lineups. 

1984 Amendment: Subsections (b)(l) 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)(l) 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 @)(I) 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. Lie 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 LO 

counsel only if that participant is in pretrial restraint (pretrial 

arrest, restriction, or c~~nement) under paragraph 20 of the 

Manual or has had charges preferred against him or her. Mere 

apprehension or temporary detention does not trigger the right to 

counsel under the Rule. This portion of the Rule substantially 

changes military law and adapts the Supreme Court's decision in 

Kirby v. Illinois, 406 U.S. 682, 689 (1972) (holding that the right 

to counsel attached only when "adversary judicial criminal 

proceedings" have been initiated or "the government has committed itself to prosecute") to unique military criminal procedure. See 

also Rule 305(d)(l)(B). 

Note that interrogation of a suspect will require rights warnings, perhaps including a warning of a right to counsel, even if 

counsel is unnecessary under Rule 321. See Rule 305. 

As previously noted, the Rule does not define "lineup" and 

recourse to case law is necessary. Intentional exposure of the 

suspect to one or more individuals for purpose of identification is 

likely to be a lineup. Stovall v. Denno, 388 U.S. 293, 297 (1967), 

although in rare cases of emergency (e.g.,a dying victim) such an 

identification may be considered a permissible "showup" rather 

A22-31 
App. 22, M.R.E. APPE 

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 re1 Ragauin v. 

Bnerley, 321 F.Supp. 440 (W.D. Pa. 1970). Photographic identifications are not "lineups " for purposes of the right to counsel. 

United States v. Ash, 413 U.S. 300, 301 n.2 (1973). If a photographic identification is used, however, the photographs employed 

should be preserved for use at trial in the event that the defense 

should claim that the identification was "unnecessarily suggestive." See subdivision (b)(l) 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 

the participant's own selection exists under the Rule, United 

States v. Wade, 388 U.S. 218, 11.27 (1967). A lineup participant 

may waive any applicable right to counsel so long as the participant is aware of the right to counsel and the waiver is made 

"freely, knowingly, and intelligently." Normally a warning of the 

right to counsel will be necessary for the prosecution to prove an 

adequate waiver should the defense adequately challenge the 

waiver. See, e.g., United States v. Avers, 426 F.2d 524 (2d Cir. 

1970). See also Model Rules for Law Enforcement, Eye Witness 

Identification, Rule 404 (1974) cited in E.Irnwinkelried, P. Giannelli, F. Gilligan, & F. Lederer, CRIMINAL EVIDENCE 366 

(1979). 

I984 Amendment: In subsection @)(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 coltnsel. Subdivision (d)(l) requires that when an 

alleged violation of the right to counsel has been raised the 

prosecution must either demonstrate by preponderance of the evidence that counsel was present or that the right to counsel was 

waived voluntarily and intelligently. The Rule also declares that if 

the right to counsel is violated at a lineup that results in an 

identification of the accused any later identification is considered 

a result of the prior lineup as a matter of law unless the military 

judge determines by clear and convincing evidence that the latter 

identification is not the result of the fust lineup. Subdivision 

(d)(l) is taken in substance from 1969 Manual Para. 153a. 

(2) Unnecessarily suggestive identification. Rule 321(d)(2) 

deals with an alleged unnecessarily suggestive identification or 

with any other alleged violation of due process. The subdivision 

makes it clear that the prosecution must show, when the defense 

has raised the issue, that the identification in question was not 

based upon a preponderance of the evidence, "so unnecessarily 

suggestive in light of the totality of the circumstances, as to create 

a very substantial likelihood of irreparable mistaken identity." 

This rule is taken from the Supreme Court's decisions of Neil v. 

Biggers, 409 U.S. 188 (1972) and Stovall v. Denno, 388 U.S. 293 

(1967), and unlike subdivision (d)(l), applies to all identification 

processes whether lineups or not. The Rule recognizes that 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. 153a and Kirby v. Illinois, 406 U.S. 682 

(1972). 

(e) Defense evidence. Rule 321(e) is idenlic.11 with the analogous 

provisions in Rules 304 and 31 1 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 

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." 
ANALYSIS OF THE MlLlTA IRY RULES OF EVIDENCE App. 22, M.R.E. 

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 Ci. 1979), a prosecution for interstate transportation of obscene materials, illustrates this point. The defense offered to stipulate that certain fhs were obscene in order to 

prevent the jury from viewing the films, but the prosecution 

declined to join in the stipulation. The trial judge sustained the 

prosecution's rejection of the stipulation and the Fifth Circuit 

upheld the judge's decision. In its opinion, however, the Court of 

Appeals adopted a case by case balancing approach recognizing 

both the importance of allowing probative evidence to be presented and the use of stipulations as a tool to implement the 

policies inherent in Rule 403. Insofar as the latter is concerned, 

the court expressly recognized the power of a Federal district 

judge to compel the prosecution to accept a defense tendered 

stipulation. 

Rule 404. Character evidence not admissible to 

prove conduct; exceptions; other crimes 

(a) Character evidence generally. Rule 404(a) replaces 1969 

Manual Para. 138f and is taken without substantial change from 

the Federal Rule. Rule 404(a) provides, subject to three exceptions, that character evidence is not admissible to show that a 

person acted in conformity therewith. 

Rule 404(a)(l) allows only evidence of a pertinent trait of 

character of the accused to be offered in evidence by the defense. 

This is a significant change from Para. 138f 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 fist 

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 

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. 

(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. 138g. While providing that 

evidence of other crimes, wrongs, or acts is not admissible to 

prove a predsposition 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. 138g(4), 

remain effective. Such a purpose would, for example, be an acA22-33 
- - -- 

App. 22, M.R.E. APPENDIX 22 

ceptable one. Rule 404(b), like Manual Para. 138g, expressly 

allows use of evidence of misconduct not amounting to conviction. Like Para. 138 g, the Kuie 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. 

1994Amendment. The amendment to Mil. R. Evid. 04(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. 

inor 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 fll) 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. 

138fl2), MCM, 1969 (Rev.) (character of the accused). Reputation evidence is exempted from the hearsay rule, Rule 803(21). 

(b) Specific instances of conduct. Rule 4056) is taken without 

sigmficant 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 terminoloav. 

(c) Amvits. 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 wimessesparticularly 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. 138fl1) and the definition of "community" is an expansion of that now found in the same paragraph. 

The definition of "community" has been broadened to add 

"regardless of size" to indicate that a party may proffer evidence 

of reputation within any specific military organization, whether a 

squad, company, division, ship, fleet, group, or wing, branch, or 

staff corps, for example. Rule 405(d) makes it clear that evidence 

A22-34 

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 

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 41 1. Liability Insurance 

Rule 411 is taken from the Federal Rule without change. Although it would appear to have potential impact upon some criminal cases, e.g., some negligent homicide cases, its actual 

application to criminal cases is uncertain. It is the Committee's 
ANALYSIS OF THE MILITARY RULES OF EVIDENCE App. 22, M.R.E. 

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. 153b(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 

defense evidence. The Rule recognizes, however, in Rule 

412(b)(l), 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)(l) 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 

and subsequent to the performance of the act the prostitute 

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, 

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. 153a of convictions for sexual offenses that rest on the uncorroborated testimony of the alleged 

victim has been deleted. Similarly, an express hearsay exception 

for fresh complaint has been deleted as being unnecessary. Consequently, evidence of fresh complaint will be admissible under the 

Military Rule only to the extent that it is either nonhearsay, see, 

Rule 801(d)(l)(B), or fits within an exception to the hearsay rule. 

See, subdivisions (I), (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 
App. 22, M.R.E. APPElNDlX 22 

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)(l) is satisfied, evidence 

such as that relating to the alleged victim's mode of dress, 

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 

Rule 413. Evidence of similar crimes in sexual 

assault cases 

1998Amendment. 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 

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)(l). 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)(l) to specifically exclude the introducA22-36 

tion 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 $12246(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). 

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)(l). 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), (0,(g), and (h). 

The defmitions in those subsections were taken from title 18, 

United States Code $5 2?16(2), 2246(3), 2256(2), and 513(c)(5), 

respectively. 

Although the Rule states that the evidence "is admissible, " 

the drafters intend that tl~e 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 
ANALYSIS OF THE MILITARY RULES OF EVIDENCE App. 22, M.R.E. 

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). 

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 

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 

large numbers of laymen, temporary courts, and inherent geographical and personnel instability due to the worldwide deployment of military personnel. Consequently, military law requires 

far more stability than civilian law. This is particularly true because of the significant number of 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 Ill 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. 151c. The privilege expressed in Rule 302 and its conforming Manual change in Para. 121, is not a doctor-patient privilege 

and is not affected by Rule 501(d). 

It should be noted that the law of the forum determines the 

application of privilege. Consequently, even if a service member 

should consult with a doctor in a jurisdiction with a doctor-patient 

privilege for example, such a privilege is inapplicable should the 

doctor be called as a witness before the court-martial. 

Subdivision (b) is a non-exhaustive list of actions which constitute an invocation of a privilege. The subdivision is derived from 

Federal Rule of Evidence 501 as originally proposed by the 

Supreme Court, and the four specific actions listed are also found 

in the Uniform Rules of Evidence. The list is intentionally 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. 

Rule 502. Lawyer-client privilege 

(a) General rule of privilege. Rule 502(a) continues the substance 

of the attorney-client privilege found in Para. 151b(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)(l) defines a "client" as an individual or 

entity who receives professional legal services from a lawyer or 

consults a lawyer with a view to obtaining such services. The 

definition is taken from proposed Federal Rule 503(a)(l) as 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 

Evidence 503(a)(2) and explicitly includes any person 

"reasonably believerl by the client to be authorized" to practice 

law. The second clause is taken from 1969 Manual Para. 151b(2) 

A22-37 
App. 22, M.R.E. APPE 

and recognizes that a "lawyer" includes "a member of the armed 

forces detailed, assigned, or otherwise provided to represent a 

petson in a court-martial case or in any military investipation 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 attomey under the Rule unless 

the individual fits within one of the three specific categories 

recognized by the subdivision. Subdivision (b)(2)(B) recognizes 

that a servicemember who 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. 151b(2) of the 1969 Manual. 

(4) Conjdential communication. Rule 502(%)(4) defines a 

"confidential" communication in terms of the intention of the 

party making the communication. The Rule is similar to the 

substance of 1969 Manual Para. 1516(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 

a third party had access to the communication. Compare Rule 

Para. 151a 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. 151c 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. 151b(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. 

A22-38 

Subdivision (d)(l) excludes statements contemplating the future 

commission of crime or fraud and combines the substance of 

1969 Manual Para. 151b(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. 

Subdivisions (d)(2) through (d)(5) provide exceptions with 

respect to claims through the same deceased client, breach of duty 

by lawyer of client, documents attested by 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). Lie 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@)(1) is taken from proposed Federal 

Rule of Evidence 506(a)(l) but has been modified to include 

specific reference to a chaplain. The Rule does not defme "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 

communications through third parties. The proposed Federal 

Rule's limitation of the privilege to communications made 

"privately" was deleted in favor of the language used in the actual 

Military Rule for the reasons indicated. The Rule is somewhat 

more protective than the 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. 

(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. 151b(2) which provided that the 

privilege may be claimed by thel'penitent." The Rule supplies 

additional guidance as to who may actually claim the privilege 
ANALYSIS OF THE MILITARY RULES OF EVIDENCE 	 App. 22, M.R.E. 

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) Spousal incapacity. Rule 504(a) is taken generally from 

Trammel v. United States, 445 U.S. 40 (1980) and significantly 

changes military law in this area. Under prior law, see 1969 

Manual Para. 148e, 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 504(b), 

Confidential communication made during marriage, which deals 

with communications rather than the ability to testify generally at 

trial. 

Although the witness' spouse ordinarily has a privilege to refuse to teshfy against the accused spouse, under certain circumstances no privilege may exists, and the spouse may be compelled 

to testify. See Rule 504(c). 

(b) Confidential communication made during marriage. Rule 

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. 151b(2). 

(1) General rule of privilege. Rule 504(b)(l) sets forth the 

general rule of privilege for confidential spousal communications 

and provides that a spouse may prevent disclosure of any contidential spousal communication made during marriage even 

though the parties are no longer married at the time that disclosure is desired. The accused may always require that the confidential spousal communication be disclosed. Rule 504(b)(3). 

No privilege exists under subdivision (b)if the communication 

was made when the spouses were legally separated. 

(2) Definition. Rule 504(b)(2) defines "confidential" in a fashion similar to the definition utilized in Rules 502(b)(4) and 

503(b)(2). The word "privately" has been added to emphasize that 

the presence of third parties is not consistent with the spousal 

privilege, and the reference to third parties found in Rules 502 

and 503 has been omitted for the same reason. Rule 504(h)(2) 

extends the definition of "confidential" to statements disclosed to 

third parties who are "reasonably necessary for transmission of 

the communication." This recognizes that circumstances may 

arise, especially in 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. 151b(2) and gives the privilege to the 

spouse who made the communication. The accused may, however, disclose the communication even though the communication 

was made to the accused. 

(c) Exceptions. 

(1) Spouse incapacity only. Rule 504(c)(l) provides exceptions to 

the spousal incapacity rule of Rule 504(a). The rule is taken from 

1969 Manual Para. 148e 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 LO 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)(l) and reflects in part 

the Supreme Court's decision in Wyatt v. United States, 362 U.S. 

525 (1960). See also Trammel v. United States, 445 U.S. 40 at n.7 

(1980). The Rule thus recognizes society's overriding interest in 

prosecution- of auti-marital offenses and the probability that a 

spouse may exercise sufiicient control, psychological or otherwise, to be able to prevent the other spouse from testifying voluntarily. The Rule is similar to 1969 Manual Para. 148e but has 

deleted the Manual's limitation of the exceptions to the privilege 

to matters occurring after marriage or otherwise unknown to the 

spouse as being inconsistent with the intent of the exceptions. 

Rule 504(c)(2)(B) is derived from Para. 148e and 151b(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. 

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 govemment 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 defense and the interests of the government in protecting that 

information. 

(a) General rule of privilege. Rule 505(a) is derived from United 

States v. Reynolds, supra and 1969 Manual Para. 1'1. 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). 
App. 22, M.R.E. APPE 

(b) Definitions. 

(1) Class@ed information. Rule 505(b)(l) is derived from section 2 of H.R. 4745. The definition of "classified information" is 

a limited one and includes only that information protected "pursuant to an executive order, statute, or regulation," and that material which constitutes restricted data pursuant to 42 U.S.C. 

2014(y) (1976). 

(2) National security. Rule 505(b)(2) is derived from section 2 

of H.R. 4745. 

(c) Who may claim the privilege. Rule 505(c) is derived from 

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)(l) of H.R. 4745. The provision has been modified to 

reflect the fact that pretrial discovery in the armed forces, prior to 

referral, is officially conducted through the convening authority. 

The convening authority should disclose the maximum amount of 

requested information as appears reasonable under the 

circumstances. 

(e) Pretrial session. Rule 505(e) is derived from section 3 of 

H.R. 4745. 

(f) Action afrer 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 class$ed 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. 5 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)(l)(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 @)(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 

under this Rule. If such information has not been disclosed 

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 drg-rmining to hold an in camera proceeding as 

defined in subsection(i)(l). 

The second sentence of subsection (i)(4)(B) was added to provide a standard for admission of classified information in sentencing proceedings. 

(i)Introduction of classified infonnation. Rule 5050) 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 (i)(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. de- 


nied, 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 class@ed information disclosed to courts-martial. Rule 505(k) is derived from section 9 of H.R. 4745. 

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 
ANALYSIS OF THE MILITARY RULES OF EVIDENCE App. 22, M.R.E. 

recognizes that in certain extraordinary cases the government 

should be able to prohibit release of government information 

which is detrimental to the public interest. The Rule is modeled 

on Rule 505 but is more limited in its scope in view of the greater 

limitations applicable to nonclassified information. Compare 

United States v. Nixon, 418 U.S. 683 (1974) with United States v. 

Pr,vnolds, 345 U.S.1 (1953). Rule 506 addresses those similar 

matters found in 1969 Manual Para. 151b(l) and 151b(3). Under 

Rule 506(a) information is privileged only if its disclosure would 

be "detrimental to the public interest." It is important to note that - pursuant to Rule 506(c) the privilege may be claimed only "by 

the head of the executive or military department or government 

agency concerned" unless investigations of the Inspectors General 

are concerned. 

Under Rule 506(a) there is no privilege if disclosure of the 

information concerned is required by an Act of Congress such as 

the Freedom of Information Act, 5 U.S.C. 5 552 (1976). Disclosure of information will thus be broader under the Rule than 

under the 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 '%y 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 

thkmselves, 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 

under paragraph (1)-(4) of subdivision (d) cannot be made 

"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 corn-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) I>isclosure 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 Niron, 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)(l) was amended to conform to the definition of in camera 

proceedings in M.R.E. 505(i)(l). 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. 

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 

information in the protected environment of the in camera 

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 ir~dge admits the information 
App. 22, M.R.E. APPENDIX 22 

as evidence in the trial. Under subsection (i)(4)(E), the military 

judge may authorize alternatives to disclosure, consistent with a 

mil$ary 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. Reynoldr, 

345 U.S. 1, 12 (1953). 

(k) Introduction of government information subject to a claim of 

privilege. Rule 506(k) is derived from Rule 5050) with appropriate rn~~cations being made to reflect the nonclassified nature of 

the information involved. 

I995 Amendment: Subsection (i)was added to recognize the 

Government's right to appeal certain rulings and orders. See 

R.C.M. 908. The former subsection 0) was redesignated as subsection *). The subsection speaks only to govemment 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. 5 1651(a); Waller v. Swift, 30 M.J. 139 (C.M.A. 

1990); Deninger v. United States, 7 M.J. 216 (C.M.A. 1979). 

(1) Procedures to safeguard against compromise of govemment 

information disclosed to courts-martial. Rule 5060 is derived 

from Rule 505&). Such procedures should reflect the fact that 

material privileged under Rule 506 is not classified. 

Rule 507. 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. 151b(l). 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 

"confidential informants" who may be consistent sources of 

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. 

151b(l) 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)(l) 

makes it clear that the privilege is inapplicable if circumstances 

have nullified its justification for existence. Thus, there is no 

reason for the privilege, and the privilege is consequently inapplicable, if the individual who would have cause to resent the informant has been made aware of the informant's identity by a 

holder of the privilege or by the informant's own action or when 

the witness testifies for the prosecution thus allowing that person 

to ascertain the informant's identity. This is in accord with the 

intent of the privilege which is to protect informants from reprisals. The Rule is taken from Para. 151b(l) of the 1969 Manual. 

(2) Testimony on the issue of guilt or innocence. Rule 

507(c)(2) is taken from 1969 Manual Para. 151b(l) 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) Legaliiy 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.& 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. 

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. 151a which 

notes that privileges may be waived. Rule 510(a) simply provides 

that "disclosure of any significant part of the matter or communi- 
ANALYSIS OF THE MILITARY RULES OF EVIDENCE App. 22, M.R.E. 

cation 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. 151b(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 

accused testifies voluntarily to the privileged matter of 

communication. 

Rule 51 1. 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. 

151b(l), MCM, 1969 (Rev.). Such disclosures are generally 

safeguarded against via tlie 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 

iriformation. It recognizes that the nature of the armed forces 

today often requires such information transmission. Like 1969 

Manual Para. 151b(l), the new Rule does not make a nonprivileged communication privileged; rather, it simply safeguards 

already privileged information under certain circumstances. 

The first portion of subdivision (b) expressly provides that 

otherwise privileged information transmitted by telephone 

remains privileged. This is in recognition of the role played by 

the telephone in modem life and particularly in the armed forces 

where geographical separations are common. The Committee was 

of the opinion that legal business cannot be transacted in the 20th 

century without customary use of the telephone. Consequently, 

privileged communications transmitted by telephone are protected 

even though those telephone conversations 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 

necessq 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)(l) prohibits any inference or comment upon the 

exercise of a privilege by the accused and is taken generally from 

proposed Federal Rule of Evidence 513(a). 

Rule 512(a)(2) creates a qualified prohibition with respect to 

any inference or comment upon the exercise of a privilege by a 

person not the accused. The Rule recognizes that in certain circumstances the interests of justice may require such an inference 

and comment. Such a situation could result, for example, when 

the government's exercise of a privilege has been sustained, and 

an inference adverse to the government is necessary to preserve 

the fairness of the proceeding. 

(b) Claiming privilege without knowledge of members. Rule 

512(b) is intended to implement subdivision (a). Where possible, 

claims of privilege should be raised at an Article 39(a) session or, 

if practicable, at sidebar. 

(c) Instruction. Rule 512(c) requires that relevant instructions be 

given "upon request." Cf: Rule 105. The military judge does not 

have a duty to instruct sua sponte. 

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 

judge of any discretion whatsoever to exclude testimony on 

grounds of competency unless the testimony is incompetent under 

those specific rules already cited supra, see, 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. 

Saltzbwg & K. Redden, FEDERAL RULES OF EVIDENCE 

MANUAL 270 (2d ed. 1977). Whether this conclusion is accurate, especially in the light of Rule 403, is unclear. Id. at 269; see 

also United States v. Calahan, 442 F.Supp. 1213 (D. Minn. 

1978). 

Rule 602. Lack of personal knowledge 

Rule 602 is taken without significant change from the Federal 

Rule and is similar in content to Para. 138d, MCM, 1969 (Rev.). 
App. 22, M.R.E. APPENDIX 22 

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 

804(b)(4) (Hearsay Exceptions; Declarant Unavailable-Statement 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@)(4) is being used in the sense of "fiust 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 unswom 

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. 114e, MCM, 1969 (Rev.) (now R.C.M. 807(b)(2) Piscussion), MCM, 1984), satisfies the oath requirements of Rule 604. 

Rule 605. Competency of military judge as 

witness 

Rule 605(a) restates the Federal Rule without significant 

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@) 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 shingent speedy trial roles, see, United States v. Burton, 21 

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 

A22-44 

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 

witnesses. See, e.g., Paras. 62f 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. 74d(l), 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. 1536(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 reshict 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 

Ill 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. 1536 of the 1969 Manual except that the 

Rule, unlike Para. 153b, applies to all witnesses and does not 

distinguish between the accused and other witnesses. 
ANALYSIS OF THE MILITARY RULES OF EVIDENCE App. 22, M.R.E. 

(b) Specific instances of conduct. Rule 6080) is taken from the 

Federal Rule without significant change. The Rule is somewhat 

similar in effect to the military practice found in Para. 153b(2) of 

the 1969 Manual in that it allows use of specifc instances of 

conduct of a witness to be brought out on cross-examination but 

prohibits use of extrinsic evidence. Unlike Para. 153b(2), Rule 

6080) 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 

FUNCTION AND THE DEFENSE FUNCTION, Prosecution 

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. Irnpeachment 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 

longer permissible. See, e.g., United states v. Alvarez-Lopez, 

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 

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. 153b(2)@)(1) of the 1969 Manual. In determining whether a military offense may be used for purposes of 

impeachment under Rule 609(a)(l), recourse must be made to the 

maximum punishment imposable if the offense had been tried by 

general court-martial. 

Rule 609(a) differs slightly from the prior military rule. Under 

Rule 609(a)(l), a civilian conviction's availability for impeachment is solely a function of its maximum punishment under "the 

law in which the witness was convicted." This is different from 

Para. 153b(2)(b)(3) of the 1969 Manual which allowed use of a 

non-federal conviction analogous to a federal felony or characterized by the jurisdictior 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. 

153b(2)(b) of the 1969 Manual. The list of potential convictions 

expressed in Para. 153b(2)@) was illustrative only and non-exhaustive. Unlike the 1969 Manual rule, Rule 609(a) is exhaustive. 

Although a conviction technically fits within Rule 609(a)(l), its 

admissibility remains subject to finding by the military judge that 

its probative value outweighs its prejudicial effect to the accused. 

Rule 609(a)(2) makes admissible convictions involving 

"dishonesty or false statement, regardless of punishment." 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 33645 

(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 
App. 22, M.R.E. APPEl 

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)(l) 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 consis- 


tent with the present military practice. 


(c) Effect of pardon, annulment, or certijicate 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. 

153b(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. 

(0 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 Legaliv 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 inadmissible for the purpose of impeaching or bolstering credibility. To the 

extent that such opinions may be critical to the defense of a case, 

however, there may be 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. 149a and that part of Para. 137 dealing with cumulative 

evidence. It is within the military judge's discretion to colltrol 

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 examination, cross-examination, redirect examination, recross-examination, and examination by the court, Para. 54a, MCM, 1969 (Rev.). 

1995Amendment: 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. Barten, 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. 8 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. 13509, determined it more appropriate to allow the case law evolutionary 

process to continue. 

(3) Scope of cross-examination. Rule 611(b) is taken from the 

Federal Rule without change and replaces Para. 149b(l) 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(0(2) (effect of claiming the privilege 

against self-incrimination on cross-examination); Rule 303 (Degrading Questions); and Rule 608(b) (Evidence of Character, 

Conduct, and Bias of Witness). 

(c) Leading questions. Rule 611(c) is taken from the Federal 

Rule without significant change and is similar to para. 149c 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 
ANALYSIS OF THE MILITARY RULES OF EVIDENCE App. 22, M.R.E. 

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 inqujr. 

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. 57a, MCM, 1969 

(Rev.). 

Rule 612 codifies the doctrine of past recollection refreshed 

and replaces that portion of Para. 146a 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)(l). 

-

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. 153b(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 reaffii 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) ~xtrinsic 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 2 

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) Calling by the court-martial. The fust sentence of Rule 

614(a) is taken from the Federal Rule but has been modified to 

recognize the power of the court members to call and examine 

witnesses. The second sentence of the 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 fxst 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. 54a 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. 53f, 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 il)dividual to sit with the trial 

counsel. Rule 615 thus modifies Para. 53f. Under the Rule, the 

military judge lacks any discretion to exclude potential witnesses 

who come within the scope of Rule 615(2) and (3) unless the 

accused's constitutional right to a fair 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. 

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. 138e, 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 

A22-47 
App. 22, M.R.E. APPENDIX 22 

recitation of the observed facts," the Rule permits opinions or 

inferences whenever rationally based on the perception of the 

witness and helpful to either a clear understanding of the testimony or the determination of a fact in issue. Consequently, the 

Rule is broader in scope than the Manual provision it replaces. 

The specific examples listed in the Manual, "the speed of an 

automobile, whether a voice heard was that of a man, woman or 

child, and whether or not a person was drunk" are all within the 

potential scope of Rule 701. 

Rule 702. Testimony by experts 

Rule 702 is taken from the Federal Rule verbatim, and replaces 

that portion of Para. 138e, 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. Cu. 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 ' 'vidual is not in fact adequately qualified under the Rule 9waived by a failure to so object. 

142e of the 1969 Manual, "Polygraph tests and drugor hypnosis-induced interviews," has been deleted as a 

res of the adoption of Rule 702. Para. 142e states, 'The conclusions based upon or graphically represented by a polygraph test 

and conclusions based upon, and the statements of the person 

interviewed made during a drug-induced or hypnosis-induced interview are inadmissible in evidence." The deletion of the explicit 

prohibition on such evidence is not intended to make such evidence per se admissible, and is not an express authorization for 

such procedures. Clearly, such evidence must be approached with 

great care. Considerations surrounding the nature of such evidence; any possible prejudicial effect on a fact finder, and the 

degree of acceptance of such evidence in the Article 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), 

althoug$ 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). 

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. 138e 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 considered in the practice of the expert's specialty." Hypothetical 

questions of the expert are not required by the Rule. 

A limiting instruction may be 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 Ill 

courts. 

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 I986 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@). 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. 

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. 138e 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.). 
ANALYSIS OF THE MlLlTAl?Y RULES OF EVIDENCE App. 22, M.R.E. 

(b) Disclosure of employment. Rule 706(b) is taken from 

Fed.R.Evid. 706(c) without change. The 1969 Manual was silent 

on the issue, but the subdivision should not change military 

practice. 

(c) Accused's expert of own selection. Rule 706(c) is similar in 

intent to subdivision (d) of the Federal Rule and adapts that Rule 

to military practice. The subdivision makes it clear that the defense may call its own expert witnesses at its own expense without the necessity of recourse to 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 Vlll 

HEARSAY 

Rule 801. Definitions 

(a) Statement. Rule 801(a) is taken from the Federal Rule without 

change and is similar to Para. 139a 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. 

139a, 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 wimess. Rule 801(d)(l) 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., 

concurring). The justification for the 1969 Manual rule is 

presumably the traditional view that out-of-court statements cannot be adequately tested by cross-examination because of the time 

differential between the making of the statement and the giving of 

the 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)(l) thus not only makes an important shift in the 

military theory of hearsay, but also makes an important change in 

law by making admissible a number of types of statements that 

were either inadmissible or likely to be inadmissible under prior 

military law. 

Rule 801(d)(l)(A) makes admissible on the merits a statement 

inconsistent with the in-court testimony of the witness when the 

prior statement "was given under oath subject to the penalty of 

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 

perjury. Although the definition of "trial, hearing, or other 

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. Bur see 

WE3NSTEN'S EVIDENCE 801-74 (1978). 

Rule 801(d)(l)(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)(l)(A), the earlier consistent statement need not have been 

made under oath or at any type of proceeding. On its face, the 

Rule does not require that the consistent statement offered have 

A22-49 
App. 22, M.R.E. APPEND 

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)(l)(B) provides a possible means to admit 

evidence of fresh complaint in prosecution of sexual offenses. 

Although limited to circumstances in which there is a charge, for 

example, of recent fabrication, the Rule, when applicable, would 

permit not only fact of fresh complaint, as is presently possible, 

but also the entire portion of the consistent statement. 

Under Rule 801(d)(l)(C) a statement of identification is not 

hearsay. The content of the statement as well as the fact of 

identification is admissible. The Rule must be read in conjunction 

with Rule 321 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 

rule. Unlike those statements within the purview of Rule' 

802(d)(l), these statements would have come within the exceptions to the hearsay rule as recognized in the 1969 Manual. 

Consequently, their "reclassification" is a matter of academic interest only. No practical difference~ result. The reclassification 

results from a belief that the adversary system impels admissibiity 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. 140a 

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 mle.Cf: Para. 140a(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 hearsay within the 

meaning of Rule 801(d)(2) and will presumably be admissible, if 

at all, as circumstantial evidence. 

Rule 801(d)(2)(C) makes admissible "a statement by a person 

authorized by the party to make a statement concerning the subject." While this was not expressly dealt with by the 1969 Manual, it would be admissible under prior law as an admission; Cf: 

Para. 1406, utilizing agency theory. 

Rule 801(d)(2)@) makes admissible "a statement by the party's agent or servant concerning a matter within the scope of the 

agency or employment of the agent or servant, made during the 

existence of the relationship." These statements would appear to 

be admissible under 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)@) makes admissible "a statement by a coA22-50 

conspirator 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)@) does not address many 

critical procedural matters associated with the use of co-conspirator evidence. See generally, Comment, Restructuring the kdependent Evidence Requirement of the Coconspirator Hearsay 

Exception, 127 U.Pa.L.Rev. 1439 (1979). For example, the burden of proof placed on the proponent is unclear although a preponderance appears to be the developing Article 111 trend. 

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 

law. See e.g., United States v. Dufi, 49 C.M.R. 208, 210 

(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 

at least two circuits have held that other factors prohibit 

bootstrapping. United States v. James, 590 F.2d 575 (5th Cir.) (en 

banc), cert. denied, 442 U.S. 917 (1979); United States v. Valencia, 609 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 possible, the probability of serious error, likely requiring a mistrial, is 

apparent. 

Rule 801(d)(2)Q 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)(l)(C) to prove that it was A who raped B. 
ANALYSIS OF THE MILITARY RULES OF EVIDENCE App. 22, M.R.E. 

(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 govemment 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 

may come within this exception depending upon the 

circumstances. 

(2) Excited utterance. Rule 803(2)is taken from the Federal Rule 

verbatim. Although similar to Para. 142b 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 corn? within this exception dependiig 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. 142d of the 1969 Manual. It allows, arnvng 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 non-medical 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. Weinstein & M. Berger, 

WEINSTEIN'S EVIDENCE Para. 804(4)(01) (1978). The admissibility under this exception of those portions of a statemelit not 

relevant to diagnosis or treatment is uncertain. Although statements made to a physician, for example, merely to enable the 

physician to testify, do not appear to come within the Rule, 

statements solicited in good faith by others in order to ensure the 

health of the declarant would appear to come within the Rule. 

Rule 803(4) may be used in an appropriate case to present evidence of fresh complaint in a sexual case. 

(5) Recorded recollection. Rule 803(5) is taken from the Federal 

Rule without change, and is similar to the present exception for 

past recollection recorded found in Paras. 146a and 149 c(l)(b) of 

the 1969 Manual except that under the Rule the memorandum 

may be read but not presented to the fact fider 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. 144d, has been included. Although the 

activities of the armed forces do not constitute a profit making 

business, they do constitute a business within the meaning of the 

hearsay exception, see Para. 144c, of the 1969 Manual, as well as 

a "regularly conducted activity." 

The specific types of records ir~rluded 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 chalA22-51 
App. 22, M.R.E. APPEl 

lenged; 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 pupose 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. 144d 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) 

would serve no useful purpose. See also Analysis to Rule 

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. 144d 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. 144c of the 1969 Manual rule expressly did not require such 

knowledge as a condition of admissibility. 

(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. 143a(2)(h) and 

143b(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 personnel". The change was 

necessitated by the fact that all military personnel may act in a 

disciplinary capacity. Any officer, for example, regardless of assignment, may potentially act as a military policeman. The capacity within which a member of the armed forces acts may be 

critical. 

The Federal Rule was also 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 "matte~s 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. 144b 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 

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 "principallv with a view to 

prosecution" found in Para. 144d 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 

questions. Rule 803(8)(A) extends to "records, reports, statements, or data compilations" of public offices or agencies, setting 

forth (A) the activities of the office or agency." The term "public 

office or agency" within this 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 "activity" of the department of which he or she is a member. 

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 

administrative mechanism was indeed an "office or agency" 

within the meaning of the Rule. 

Rule 803(8)(B) encompasses "matters observed pursuant to 

duty imposed by law as to which matters there was a duty to 

report.. .." This portion of Rule 803(8) is broader than subdivision 

@)(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 
ANALYSIS OF THE MILITARY RULES OF EVIDENCE App. 22, M.R.E. 

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 - (a)@) limitation. Note, however, that all forms of evidence not 

within the specific item listing of the Rule but within the (a)@) 

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 Govemment, ''factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of 

information or other circumstances indicate lack of trustworthiness." 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, recomrnendations, 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. 143a(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 properly: 

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. 144f except that it 

lacks the Manual's specific reference to an absence of entries. 

The effect, if any, of the difference is unclear. 

(18) Learned treaties. Rule 803(18) is taken from the Federal 

Rule without change. Unlike Para. 138e 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; reputation concerning boundaries or general history. Rules 

803(19)-(20) are taken without change from the ~ediral 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. 138f 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. 

(22) Judgment or previous conviction. Rule 803(22) is taken 

from the Federal Rule but has been modified to recognize convictions of a crime punishable by a dishonorable discharge, a unique 

punishment not present in civilian life. See also Rule 609 and its 

Analysis. 

There is no equivalent to this Rule in 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. 

(23) Judgment as to personal, family or general history, or 

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 Ill 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 

A22-53 
App. 22, M.R.E. APPENDIX 22 

examine the hearsay evidence in question to determine how well 

it relates to the four traditional considerations usually invoked to 

exclude hearsay testimony: how truthful was the original 

declarant? to what extent were his or her powers of observation 

adequate? was the declaration truthful? was the original declarant 

able to adequately communicate the statement? Measuring evidence against this framework should assist in determining the 

reliability of the evidence. Rule 803(24) itself requires the necessity which is the other usual justification for hearsay exceptions. 

Rule 804. Hearsay exception; declarant 

unavailable 

(a) Definition of unavailability. Subdivisions (a)(l)-(a)(5) of Rule 

804 are taken from the Federal Rule without change and are 

generally similar to the relevant portions of Paras. 145a and 145b 

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. 

February 1986 Amendment: The phrase "claim or lack of 

memory" was changed to "claim of lack of memory" to correct 

an error in MCM, 1984. 

Rule 804(a)(6) is nrw 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)(l) is 

taken from the Federal Rule with omission of the language relating to civil cases. The second portion is new and has been 

included to clarify the extent to which those military tribunals in 

which a verbatim record normally is not kept come within the 

Rule. 

The fust portion of Rule 804(b)(l) makes admissible former 

testimony when "the party against whom the testimony is now 

offered had an opportunity and similar motive to develop the 

testimony by direct, cross, or redirect examination." Unlike Para. 

145b 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)(l) 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 fonn of a verbatim 

record. The Committee believed substantive use of former testimony to be too important to be presented in the form of an 

incomplete statement. 

Investigations under Article 32 of the Uniform Code of Military Justice present a special problem. Rule 804(b)(l) requires 

that "the party against whom the testimony is now offered had an 

opportunity and similar motive to develop the testimony" at the 

first hearing. The "similar motive" requirement was intended primarily to ensure sufficient identity of issues between the two 

proceedings and thus to ensure an adequate interest in examination of the witness. See, e.g., J. Weinstein & M. Berger, 

WENSTEIN'S EVIDENCE Para. 804(b)(1)((04)) (1978). Because Article 32 hearings represent a unique hybrid of preliminary hearings and grand juries with features dissimilar to both, it 

was particularly difficult for the Committee to determine exactly 

how subdivision (b)(l) of the Federal Rule would apply to Article 

32 hearings. The specific diff~culty stems from the fact that Article 32 hearings were intended by Congress to function as discovery devices for the defense as well as to recommend an 

appropriate disposition of charges to the convening authority. 

Hutson v. United States, 19 U.S.C.M.A. 437, 42 C.M.R. 39 

(1970); United States v. Samuels, 10 U.S.C.M.A. 206, 212, 27 

C.M.R. 280, 286 (1959). See generally, Hearing on H.R. 2498 

Before a Subcomm. 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)(l). 

Notwithstanding the inherent diff~culty 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 notwithstaxding 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 limitil~g 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)(l) 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 
ANALYSIS OF THE MILITARY RULES OF EVIDENCE App. 22, M.R.E. 

considered the equivalent of Article 32 hearings for purposes of 

former testimony under Rule 804(b)(l). 

(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 in- - eluded 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. 142a. 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. 142a 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 

peets 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 

not require either corroborating evidence or an unavailable 

declarant. 

In its present form, the Rule fails to address a particularly 

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. Weinstein & M. Berger, WEINSTEIN'S EVIDENCE 

804-93, 804-16 (1978). Although the legislative history reflects 

an early desire on the part of the Federal Rules of Evidence 

Advisory Committee to prohibit such testimony, a provision 

doing so was not included in the material reviewed by Congress. 

Although the House included such a provision, it did so apparently in large part based upon a view that Bruton, supra, 

prohibited such statements- arguably an erroneous view of 

Bruton, supra, see, Bruton, supra n.3 at 128, Dutton v. Evans, 

400 U.S. 74 (1970). The Conference Committee deleted the 

House provision, following the Senate's desires, because it believed it inappropriate to "codify constitutional evidentiary principles." WEINSTEIN'S EVIDENCE at 804-16 (1978) citing 

C0NG.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 

804(b)(4) is held by the Article III courts to apply to such 

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@)(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@) 

A22-55 
App. 22, M.R.E. APPE 

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. 143b 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 

A22-56 

Manual, see, Para. 1436. Self-authentication is governed by Rule 

902. 

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. 

143b(2)(c) and (d) of the 1969 Manual. The Rule does not distinguish between original document and copies. A seal is self-au- 

., thenticating 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. 143b(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) Foreign public documents. Rule 902(3) is taken without 

change from the Federal Rule. Although the Rule is similar to 

Paras. 143 b(2)(e) and (0 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 evidenced by an attested summary with or without final 

certification." 

(4) Cert$ed 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 President and various Secretaries to promulgate regulations. See, 

generally, Analysis to Rule 901(b). 

Rule 902(4) expands upon prior forms of self-authentication to 

aclcnowledge the propriety of certified public records or reports 

and related materials domestic or foreign, the certification of 

which complies with subdivisions (I), (2), or (3) of the Rule. 

(4a) Pncuments or records of the United States accompanied by 

attesting certificates. This provision is new and is taken from the 

third subparagraph of Para. 143b(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 geographical 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 re- 
ANALYSIS OF THE MILITARY RULES OF EVIDENCE 	 App. 22, M.R.E. 

cord, 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. 143a(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) OfJicial 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 Prderal 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. 

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. 143d 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. 143a(l) of the 1969 Manual. The 

1969 Manual, however, treated "duplicate originals," i.e., carbon 

and photographic copies made for use as an original, as an 

"original" while Rule 1001(4) treats such a document as a 

"duplicate." 

(4) Duplicate. Rule 1004(4) is taken from the Federal Rule verbatim and includes those documents Para. 143a(l) of the 1969 

Manual defined as"duplicate originals." In view of Rule 1003's 

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. 143a(19) of the 1969 Manual 

except that specific reference is made in the rule to recordings 

and photographs. Unlike the 1909 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. 143a(2)(f)of the 1969 

Manual. For example, Paras. 143a(2)(e)and 144 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. 144a 

of the 1969 Manual. Omission of other 1969 Manual exceptious, 

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. 

8209 (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. ~t 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 treabnent of "duplicate originals," Para. 143a(l),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 nonproduction 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. 143a(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 
App. 22, M.R.E. APPENDIX 22 

destroyed in '%ad 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. 143a(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. 

143a(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. 

143a(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 

between the Rule and the 1969 Manual exists, however, because 

the Rule permits use of "a chart, summary, or calcu1ation"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). 

A22-58 

It is possible for a summary that is admissible under Rule 1006 

to include information that would not itself be admissible if that 

information is reasonably relied upon by an expert preparing the 

summary. See generally Rule 703 and S. Saltzburg & K. Redden, 

FEDERAL RULES OF EVIDENCE MANUAL 694 (2d ed. 

1977). 

Rule 1007. Testimony or 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 menibers 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 co~unication 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 wiil 

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. 

SECBlON 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 ;ut: 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 

Rules are applicable to all courts-martial including summary 
ANALYSIS OF THE MILITARY RULES OF EVIDENCE App. 22, M.R.E. 

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 

Federal Rules, the Military Rules contain detailed privileges 

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. 75c. 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 

Rule is, however, generally inapplicable to military law, the 

equivalents of the Article ID 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. 

I993 Amendment. Mil. R. Evid. 1101(d) was amended to make 

the provisions of Mil. R. Evid. 412 applicable at pretrial investigations. 

I998 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 Congress may make changes during the initial period following 

Supreme Court publication, some period of time after an amendment's effective date was considered essential for the armed 

forces to review the final form of amendments and to propose any 

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. 

I998 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. 

Rule 1103. Title 

In choosing the title, Military Rules of Evidence, [lie 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. 
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 127c (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 

(1975); United States v. Nickaboine, 3 U.S.C.M.A. 152, 11 

C.M.R. 152 (1953); United States v. Bemrd, 10 C.M.R. 718 

(AFBR 1953). 

1. Article irir--Principals 

b. Explanation. (1) Purpose. Article 77 is based on 18 U.S.C. 5 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. 

5 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 $8 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. 8 

2 Historical and Revision Notes (West 1969). See also United 

States v. Giles, 300 U.S. 41 (1937); Wharton's, supra at $5 30, 

31, 35. 

Subparagraph (2)(b) sets forth the basic formulation of the 

requirements for liability as a principal. An act (which may be 

passive, as discussed in this subparagraph) and intent are necessary to make one liable as a principal.See United States v. Burroughs, supra; United States v. Jackson, 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 11. 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); Wrton'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 

necessary nor sufficient to make one a principal. "Aid" and 

"abet" as used in 18 U.S.C. 5 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. 

Buwoughs, supra; United States v. Sampol, 636 F.2d 621 (D.C. 

Cir. 1980); United States v. Molina, supra; United States v. 

Carter, 23 C.M.R. 872 (A.F.B.R. 1957). Cfi 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 fist 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 fist two paragraphs in paragraph 156 of MCM, 1969 (Rev.). 

See United States v. Cowan, 12 C.M.R. 374 (A.B.R. 1953); 

United States v. Self, 13 C.M.R. 227 (A.B.R. 1953). 

Principals independently liable. This subparagraph is new and 

is based on Federal decisions. See Standefer v. United Stares, 

supra; United States v. Chenaur, 552 F.2d 294 (9th Ci. 1977); 

United States v. Frye, 548 F,2d 765 (8th Cir. 1977). 

Withdrawal. This subparagraph is new and is based on United 

States v. Williams, 19 U.S.C.M.A. 334, 41 C.M.R. 334 (1970). 

. .

See also 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 MCM, 1969 (Rev.). See also United States v. 

Tamas, 6 U.S.C.M.A. 502, 20 C.M.R. 218(1955). 

(2) Failure to report 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 p~rnishable by the code. This subparagraph is based 

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. 


Pun. Arts. APPENDIX 23 

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. 1982); United States v. Coglin, 10 M.J. 670 

(A.F.C.M.R. 1981). See also United States v. Zuinmit, 14 M.J. 

554 (N.M.C.M.R. 1982). 

(11) Findings of more than one absence under one specijication. 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 

of desertion by apprehension and to encourage absent servicemembers to voluntarily return. A bad-conduct discharge was 

added to the permissible maximum punishment for unauthorized 

absence with intent to avoid maneuvers 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 

the distinction between "unauthorized absence from a guard, 

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 117c 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 l(5); paragraph 168 of MCM, 1969 (rev.); United States v. Richardson, 7 

M.J. 320 (C.M.A. 1979); United States v. Ferenczi, 10 

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. 

1013 (A.F.C.M.R. 1971); United States v. Montgomery, 11 

C.M.R. 308 (A.B.R. 1953). 

e. Maximum punishment. The maximum punishment was increased from confinement for 6 months to confinement for 1 year 

to more accurately reflect the serious nature of the offense and to 

distinguish it from disrespect toward warrant officers under Article 91. See paragraph 15c. 

14. Article 90-Assaulting or willfully disobeying 

superior commissioned officer 

c. Explanation. (1) Striking or assaulting superior commissioned 

o#icer. 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 id'offers violence." As to "superior commissioned officer," see Analysis, paragraph 13. 

(d) Defenses. This subparagraph modifies the former discussion 

of self-defense since technically, because unlawfulness is not an 

element expressly, the officer must be acting illegally or otherwise outside the role of an officer before self-defense may be in 

issue. See United States v. Siruchn, 20 U.S.C.M.A. 493, 43 

C.M.R. 333 (1971). 

(2) Disobeying superior commissioned oflcer. This subparagraph 

is based on paragraph 169b 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) Authoriw 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. 504 

(1958) (overseas marriage); United States v. Lenox, 21 

U.S.C.M.A. 314, 45 C.M.R. 88 (1972); United States v. Stewart, 

20 U.S.C.M.A. 272, 43 C.M.R. 112 (1971); United States v. 
ANALYSIS OF PUNITIVE ARTICLES Pun. Arts. 

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) Personal nature of the order. See United States v. 

Wartsbaugh, 21 U.S.C.M.A. 535, 45 C.M.R. 309 (1972). 

(d) Spec$city of the order. See United States v. Bratcher, 18 

U.S.C.M.A. 125, 38 C.M.R. 125 (1969). 

(e) Knowledge. See United States v. Pettigrew, 19 U.S.C.M.A. 

191, 41 C.M.R. 191 (1970); United States v. Oisten, 13 

U.S.C.M.A. 656, 33 C.M.R. 188 (1963). 

(g) Time for compliance. See United States v. Stout, 1 

U.S.C.M.A. 639, 5 C.M.R. 67 (1952); United States v. Squire, 47 

C.M.R. 214 (N.C.M.R. 1973); United States v. Clowser, 16 

C.M.R. 543 (A.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 

paragraph 170 of MCM, 1969 (Rev.) and paragraph 170 of 

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, I969 (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 l(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, 549(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(l)(a), see United States 

v. Tolkach, 14 M.J. 239 (C.M.A. 1982). 

Subparagraph (I)(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. 

529, 43 C.M.R. 369 (1971); United States v. Brooks, 20 

U.S.C.M.A. 42,42 C.M.R. 220 (1970); United States v. Baker, 18 

U.S.C.M.A. 504, 40 C.M.R. 216 (1969); 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, Am'cle 92; 

Judicial Guidelines for Idenlifying Punitive Orders and Regulations, 17 A.F.L. Rev. Summer 1975 at 61. 

e. Maximum punishment. The maximum punishment for willful 

dereliction of duty was increased from 3 months to 6 months 

confmement and to include a bad-conduct discharge because such 

offenses involve a flaunting of authority and are more closely 

analogous to disobedience offenses. 

February I986 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 
Pun. Arts. APPE 

added because some forms of such conduct are nonpyhsical 

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 hecause 

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 

fdl 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 

174b, c, and d of MCM, 1969 (Rev.) provided that the accused by 

"duly" placed in arrest, custody, or confinement. '?)ulyV 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 Dictiorzaiy 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. 

1953). Cf. United States v. Clansey, 7 U.S.C.M.A. 230, 22 

C.M.R. 20 (1956); United States v. Gray, 6 U.S.C.M.A. 615, 20 

C.M.R. 331 (1956). 

The drafters of MCM, 1969 (Rev.), deleted the presumption of 

legality. In their view the holding in 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 orders9'-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 

judicial decisions. See United States v. Wilson, 6 M.J. 214 

(C.M.A. 1979); United States v. Clansey, supra; United States v. 

Yerger, 1 U.S.C.M.A. 288, 3 C.M.R. 22 (1952); 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 codmement. 

c. Explanation (I) Resisting apprehension. 

(a) Apprehension. This subparagraph is taken from Article 7. 

(b) Authoriry to apprehend. See Analysis, R.C.M. 302(b). The 

last two sentences are based on paragraph 57a of MCM, 1969 

(Rev.); United States v. Carson, supra. 

(c) Nature of the resistance. This subparagraph is taken from 

paragraph 174a of MCM, 1969 (Rev.). 

(d) Mistake. This subparagraph is taken from paragraph 174a 

of MCM, 1969 (Rev.). See also United States v. Nelson, 17 

U.S.C.M.A. 620, 38 C.M.R. 418 (1968). 

(e) Illegal apprehension. The first sentence of this subparagraph is taken from paragraph 174a of MCM, 1969 (Rev.). 

Although such 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 174a of MCM, 1951. Cf. paragraph 

157 of MCM (Army), 1949; MCM (AF), 1949; paragraph 139 of 

MCM, 1928; W. Winthrop, Military Law and Precedents 122 (2d 

ed. 1920 reprint). (Before 1951 resisting apprehension was not 

specifically prohibited by the Articles of War. Earlier references 

are to breaking arrest or escape from confinement.) 

The second sentence has been added to make clear that the 

issue of legality of an apprehension (e.g., whether based on probable cause or otherwise in accordance with requirements for legal 

sufficiency; see R.C.M. 302(e)) is not in issue until raised by the 

defense. United States v. Wilson, and United States v. Clansey, 

both supra. Cf. United States v. Smith, 21 U.S.C.M.A. 231, 45 

C.M.R. 5 (1972). See also Analysis, paragraph 19b. The presumption is a burden assigning device; it has no evidentiary weight 

once the issue is raised. Because the issue of legality is not an 

element, and because the prosecution bears the burden of es-
ANALYSIS OF PUNITIVE ARTICLES Pun. Arts. 

tablishing 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: Panerson 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 174b of MCM, 1969 (Rev.). See also Analysis, paragraph 19b. 

(d) Breaking. This subparagraph is based on paragraph 174b of 

MCM, 1969 (Rev.). 

(e) Illegal arrest. The first sentence in this subparagraph is 

based on paragraph 174b of MCM, 1969 (Rev.). The second 

sentence has been added to clarify that legality of an arrest (e.g., 

whether based on probable cause or based on legally sufficient 

nonjudicial punishment or court-martial sentence) is not in issue 

until raised by the defense. See Analysis, paragraphs 19b and 

19c(l)(e). The third sentence is based on United States v. Carson, 

suura. 

(3) Escape from custody. 

(a) Custody. This subparagraph is taken from paragraph 174d 

of MCM, 1969 (Rev.). As to the distinction between escape from 

custody and escape from confinement, see 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) Authority to apprehend. See Analysis, paragraph 19c(l)(b). 

(c) Escape. This cross-reference is based on paragraph 174c of 

MCM, 1969 (rev.). 

(d) Illegal custody. The first sentence in this subparagraph is 

based on paragraph 174b of MCM, 1969 (Rev.). The second 

sentence has been added to clarify that legality of custody (e.g., 

whether based on probable cause) is not in issue until raised by 

the defense. See Analysis, paragraphs 19b and 19c(l)(e). The 

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 174c of 

MCM, 1969 (Rev.). See also United States v. Maslanich, 13 M.J. 

611 (A.F.C.M.R. 1982). 

(d) Status when temporarily outside confinement facility. This 

subparagraph is based on United States v. Silk, 37 C.M.R. 523 

(A.B.r. 1966); United States v. Sines, 34 C.M.R. 716 (N.B.R. 

1964). 

(e) Legality of confinement. This subparagraph is based on 

174a 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 196 and 19c(l)(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.(l)(c), MCM, of the nature of the resistance required 

for resisting apprehension. The 1951 and 1969 Manuals for 

Courts-Martial also explained that flight could constitute resisting 

apprehension under Article 95, an interpretation afiied 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 

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 (l)(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 

MCM, 1969 (Rev.); United States v. Johnson, 3 M.J. 361 

(C.M.A. 1977). The explanation of the scope of Article 97 is new 

and results from Johnson and the legislative history of Article 97 

cited therein. Id. at 363 n.6. 

22. Article 98- Noncompliance with procedural 

rules 

c. Explanation. This paragraph is taken from paragraph 177 of 

MCM, 1969 (Rev.). 

e. Maximum punishment. The maximum punishment for intentional failure to enforce or comply with provisions of the Code 

has been increased from that specified in paragraph 127c of 

MCM, 1969 (Rev.) to more accurately reflect the seriousness of 

this offense. See generally 18 U.S.C. $ 1505, the second paragraph of which prohibits acts analogous to those prohibited in 

Article 98(2). 
Pun. Arts. APPENDIX 23 

23. Article 99- Misbehavior before the enemy 

c. Explanation. This paragraph is based on paragraphs 178 and 

183a of MCM, 1969 (Rev.); United States v. Sperland, 1 

U.S.C.M.A. 661, 5 C.M.R. 89 (1952) (discussion of "before or in 

the presence of the enemy"); United States v. Parker, 3 

U.S.C.M.A. 541, 13 C.M.R. 97 (1953) (discussion of "running 

away"); United States v. Monday, 36 C.M.R. 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), affd 

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 

the commission of this offense. See Hearings on H.R. 2498 

Before a Subcomm. ofthe 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. 

28. Article 104-- Aiding the enemy 

c. Explanation. This paragraph is based on paragraph 183 of 

MCM, 1969 (Rev.). See also United States v. Olson, 7 

U.S.C.M.A. 460, 22 C.M.R. 250 (1957); United States v. 

Batchelor, 7 U.S.C.M.A. 354, 22 C.M.R. 144 (1956); United 

States v. Dickemon, 6 U.S.C.M.A. 438, 20 C.M.R. 154 (1.955). 

29. Article 105- Misconduct as a prisoner 

c. Explanation. This paragraph is based on paragraph 184 of 

MCM, 1969 (Rev.). See also United States v. Batchelor, 7 

A23-8 

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. XXM 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 

Defense Authorization Act, 1986, Pub.L. No. 99-145, 8 534, 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) Ojjicial 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 

186 of MCM, 1969 (Rev.); United States v. Hutchins, 5 

U.S.C.M.A. 422, 18 C.M.R. 46 (1955). 

(4) Material gain. This subparagraph is based on paragraph 

186 of MCM, 1969 (Rev.). 

(5) Knowledge that the document or statement 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). 

(6) Statements made during an interrogation. This subparagraph is based on paragraph 186 of MCM, 1969 (Rev.); 

United States v. Davenport, 9 M.J. 364 (C.M.A. 1980); United 

States v. Washington, 9 U.S.C.M.A. 131, 25 C.M.R. 393 (1958); 

United States v. Aronson, 8 U.S.C.M.A. 525, 25 C.M.R. 29 

(1957). 

d. 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. 8 1001, the Federal civilian 
ANALYSIS OF P'UNITIVE ARTICLES Pun. Arts. 

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 

MCM, 1969 (Rev.). See also United States v. Bemacki, 13 

U.S.C.M.A. 641, 33 C.M.R. 173 (1963); United States v. Harvey, 

6 M.J. 545 (N.C.M.R. 1978); United States v. Geisler, 37 C.M.R. 

530 (A.B.R. 1966). The last sentence in subparagraph (c)(l) is 

based on United States v. Schelin, 15 M.J. 218 (C.M.A. 1983). 

1986 Amendment: Subparagraph c(1) was amended to correct 

an ambiguity in the definition of military property. The previous 

language "military department" is specifically defined in 10 

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. Lesser included offense. See United States v. Mimer, 49 

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. 11361. 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. 

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 

MCM, 1969 (Rev.). See also United States v. Bernacki, 13 

U.S.C.M.A. 641, 33 C.M.R. 173 (1963). 

e. Maximum punishment. The maximum punishments have been 

revised. Instead of three levels ($50 or less, $50 to $100, and over 

$100), only two are used. This is simpler and conforms more 

closely to the division between felony and misdemeanor penalties 

contingent on value in property offenses in civilian jurisdictions. 

f. Sample specification. See United States v. Collins, 16 

U.S.C.M.A. 167, 36 C.M.R. 323 (1966), concerning charging 

damage to different articles belonging to different owners, which 

occurred during a single transaction, as one offense. 

34. Article 110- Improper hazarding of vessel 

c. Explanation. This paragraph is based on paragraph 189 of 

MCM, 1969 (Rev.). See also United States v. Adam, 42 C.M.R. 

911 (N.C.M.R. 1970), pet. denied, 20 U.S.C.M.A. 628 (1970); 

United States v. MacLane, 32 C.M.R. 732 (C.G.B.R. 1962); 

United States v. Day, 23 C.M.R. 651 (N.B.R. 1957). 

35. Article 111- Drunken or reckless driving 

b. Elements. The aggravating element of injury is listed as suggested by sample specification number 75 and the Table of Maximum Punishments at 25-13 and 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. 

635, 14 C.M.R. 53 (1954) (drunkenness); United States v. 

Eagleson, 3 U.S.C.M.A. 685, 14 C.M.R. 103 (1954) (reckless); 

United States v. Grossman, 2 U.S.C.M.A. 406, 9 C.M.R. 36 

(1953) (separate offenses). 

1991 Amendment: The order of the last and penultimate 

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 

18 months. This increase reflects the same concern for the 

seriousness of the misconduct as that which has, by current 

reports, motivated almost half the states to provide more stringent 

responses. 

1986 Amendment: Subparagraphs b(2), c(3), and f were 

amended to implement the amendment to Article 11 1 contained in 

the Anti-Drug Abuse Act of 1986, tit. III, 5 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). 
Pun. Arts. APPENDIX 23 

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. 102484, 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 bloodalcohol 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). 

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). 

Subparagraphs d(1) and (2) are redesignated d(2)(b) and 

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 

MCM, 1969 (Rev.). The discussion of defenses is based on 

United States v. Gosseti, 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 11% (see 

Military Justice Act of 1983, Pub.L. No. 98-209. 58. 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 11%. 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. 5 960. See also 21 

U.S.C. 55 951-53. 

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. $5 841 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 127c (except when the escalator clause 

is triggered, see analysis of section 2 infra.) 

Within the range under the 15 year maximum, the penalties 

under paragraph 127c are generally somewhat more severe than 

those under 21 U.S.C. $8 841 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 11.34 (1975); 

United States v. Trottier, 9 M.J. 337 (C.M.A. 1980). The availability of contraband drugs, especially in some overseas locations, 

the ambivalence toward and even acceptance of drug usage in 

some segments of society, especially among young people, and 

the insidious nature of drug offenses all require that deterrence 

play a substantial part in the effort to prevent drug abuse by 

servicemembers. 

The following sentence enhancement provisions in the United 

States Code were not adopted: (1) the recidivism provisions in 21 

U.S.C. $5 841(b), 844(a), and 845(b), which either double or 

triple the otherwise prescribed maximum penalty; and (2) the 

provision in 21 U.S.C. 5 845(a) which doubles the maximum 

penalty for distribution of a controlled substance to a person 

under the age of 21. (The latter provision would probably apply 

to a high percentage of distribution offenses in the armed forces, 

given the high proportion of persons in this age group in the 

armed forces.) These special provisions were not adopted in favor 

of a simpler, more uniform punishment system. The overall result 

is an absence of the higher punishment extremes of the Federal 

system, while some of the offenses treated more leniently in the 

lower end of the scale in the Federal system are subject to potentially higher punishments in the military, for the reasons stated in 

the preceding paragraph. There are no mandatory minimum sentences for any drug offense. See Article 56. 
ANALYSIS OF PUNITIVE ARTICLES Pun. Arts. 

The expungement procedure in 21 U.S.C. 5 844(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. 3 310 concerning hostile fire pay zones. 

Section 3 (now subparagraphs b and c) amends paragraph 213, 

dealing with certain offenses under Article 134. Paragraph 213g 

replaces the discussion of offenses involving some contraband 

drugs which was found in the last paragraph of paragraph 213b of 

MCM, 1969 mev.). 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 comprehensive treatment of drugs, with a complete set of maximum 

punishments, in order to eliminate the confusion, disruption, and 

disparate treatment of some drug offenses among the services in 

the wake of 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 Worldwide 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. 1801 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 defmition of possession is based upon United 

States v. Aloyian, 16 U.S.C.M.A. 333, 36 C.M.R. 489 (1966) and 

paragraph 4-144, Military Judges' Benchbook, DA PAM 27-9 

(May 1982). See also United States v. Wilson, 7 M.J. 290 

(C.M.A. 1979) and cases cited therein concerning the concept of 

constructive possession. With respect to the inferences described 

in this subparagraph and subparagraph (5) Wrongfulness, see 

United States v. Alvarez, 10 U.S.C.M.A. 24, 27 C.M.R. 98 

(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. 1802(8) 

and (11). See also E. Devitt and C. Blackmar, 2 Federal Jury 

Practice and Instructions, 158.03 (3d ed. 1977). 

"Distribution" replaces "sale" and "transfer." This conforms 

with Federal practice, see 21 U.S.C. 5 841(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 Cu. 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. C$ 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 75b(4) of MCM, 1969 (Rev.); see also United States v. 

Vickers, 13 M.J. 403 (C.M.A. 1982)). 

(4) Manufacture. This definition is taken from 21 U.S.C. 

1802(14). The exception in 21 U.S.C. 8 802(14) is covered in 

subparagraph (5). 

(5) Wrongfulness. This subparagraph is based on the last paragraph of paragraph 213b of MCM, 1969 (Rev.). C$ 21 U.S.C. 

1822(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)(l). The discussion of circumstances from which an inference of intent to distribute may be 

inferred is based on numerous Federal cases. See, e.g., United 

States v. Grayson, 625 F.2d 66 (5th Cir. 1980); United States v. 

Hill, 589 F.2d 1344 (8th Cir. 1979). ceri. 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). C$ 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. Burns, 37 C.M.R. 942 (A.F.B.R. 1967); United States 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 tern 

"use" and delineates knowledge of tlip presence of the controlled 

substance as a required component of the offense. See United 

States v. Mance, 26 M.J. 244 (C.M.A. i988). The validity of a 

permissive inference of knowledge is recognized. See United 

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 delibererately 

avoids knowing the truth concerning a crucial fact (i.e. presence 

A23-11 
Pun. Arts. APPENDIX 23 

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 

sample specifications are based on sample specifications 144 

through 146 found in appendix 6c of the MCM, 1969 (Rev.), as 

modified to reflect the new comprehensive drug offense provision. 

Section 5 provides an effective date for the new amendments. 

Section 6 requires the Secretary of Defense to transmit these 

amendments to Congress. 

38. Article 113- Misbehavior of sentinel or 

lookout 

c. Explanation. Subparagraphs (I), (2), and (3) are based on 

paragraph 192 of MCM, 1969 (Rev.). Subparagraph (4) is based 

on United States v. Seeser, 5 U.S.C.M.A. 472, 18 C.M.R. 96 

(1955); paragraph 192 of MCM, 1969 (Rev.); paragraph 174 of 

MCM (Army), 1949; paragraph 174 of MCM (AF), 1949. Subparagraph (6) is based on United States v. Williams, 4 

U.S.C.M.A. 69, 15 C.M.R. 69 (1954); United States v. Cook, 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). 

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 11 5-- Malingering 

c. Explanation. This paragraph is based on paragraph 194 of 

MCM. 1969 (Rev.). See also United States v. Kisner, 15 

U.S.C.M.A. 153, 35 C.M.R. 125 (1964); United States 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. Lesser included offenses. See United States v. Taylor, 17 

U.S.C.M.A. 595, 38 C.M.R. 393 (1968). 

e. Maximum punishment. The maximum punishments were 

changed to reflect the greater seriousness of malingering in war or 

other combat situations and to add a greater measure of deterrence in such cases. 

41. Article 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 1956 of MCM, 1969 (Rev.) has been replaced by the 

language contained in the fourth sentence of subparagraph (2) 

A23-12 

since the former language was subject to an overly broad application. See Gooding v. Wilson, 405 U.S. 518 (1972). 

f. Sample speczjications. Riot-see United States v. Randolf, 49 

C.M.R. 336 (N.C.M.R. 1974); United Stares v. Brice, 48 C.M.R. 

368 (N.C.M.R. 1973). 

42. Article 117- Provoking speeches or gestures 

c. Explanation. Subparagraph (1) is based on paragraph 196 of 

MCM, 1969 (Rev.); United States v. Thompson, 22 U.S.C.M.A. 

88, 46 C.M.R. 88 (1972). See generally Gooding v. Wilson, 405 

U.S. 518 (1972); United States v. Hughens, 14 C.M.R. 509 

(N.B.R. 1954). Subparagraph (2) is based on the language of 

Article 117 and United States v. Bowden, 24 C.M.R. 540 

(A.F.B.R. 1957), pet. denied, 24 C.M.R. 311 (1957). See also 

Unitedstates v. Lacy, 10 U.S.C.M.A. 164,27 C.M.R. 238 (1959). 

I986 Amendment: The listing of "Article 134-- indecent language" as a lesser included offense of provoking speeches was 

deleted. United States v. Linyear, 3 M.J. 1027 (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 pu~iishment than provoking speeches, which 

would be unusual for a lesser offense. 

e. Maximuin punishment. The maximum punishment was increased from that set forth in paragraph 127c of MCM, 1969 

(Rev.) to more accurately reflect the seriousness of the offense. 

43. Article 118- Murder 

b. Elements. Element (b) in (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). 

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. Laser 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). 

I995 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 11 9- Manslaughter 

c. Explanation. This paragraph is based on paragraph 198 of 

MCM, 1969 (Rev.). See also United States v. Moglia, 3 M.J. 216 

(C.M.A. 1977); United States v. Harrison, 16 U.S.C.M.A. 484, 37 

C.M.R. 104 (1967); United States v. Redding, 14 U.S.C.M.A. 

242, 34 C.M.R. 22 (1963); United States v. Fox, 2 U.S.C.M.A. 

465, 9 C.M.R. 95 (1953). 
ANALYSIS OF PUNITIVE ARTICLES Pun. Arts. 

e. Maximum punishment. 

1994 Amendment. The amendment to paragraph 44e(l) increased 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) eliminated the anomaly created when the maximum authorized 

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 manslaughter. See United States v. Emmons, 31 M.J. 108 (C.M.A. 

1990). 

45. Article 120- Rape and carnal knowledge 

c. Explumtion. 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 comoboration of the victim's testimony in rape and similar cases under 

former paragraph 153a of MCM, 1969. See Analysis, Mil. R. 

Evid. 412. 

d. Lesser included 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. 

1 979). 

1993 Amendment. The amendment to para 45d(l) 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. $8 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. 

1995Amendment. 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, 322 U.S. 585 (1977). the Court 

held that the death penalty is "grossly disproportionate and excessive punishment for the rape of an adult woman," and is 

"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 11 13 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. 

46. Article 121- Larceny and wrongful 

appropriation 

c. Explanation. This paragraph is based on paragraph 200 of 

MCM, 1969 (Rev.). The discussion in the fourth and fifth sentences of paragraph 200a(4) was deleted as ambiguous and overbroad. The penultimate sentence in subparagraph c(l)(d) 

adequately covers the point. C. Torcia, 2 Wharton's Criminal 

Law and Procedure 8 393 (1980); Hall v. United States, 277 Fed. 

19 (8th Cir. 1921). As to subparagraph c(l)(c) see also United 

States v. Leslie, 13 M.J. 170 (C.M.A. 1982). As to subparagraph 

c(l)(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(l)(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. 167, 33 C.M.R. 379 (1963); United States v. 

Hayes, 8 IJ3C.M.A. 627, 25 C.M.R. 131 (1958). As to subparagraph c(l)(h)(i) see also United States )>. Malone, 14 M.J. 

563 (N.M.C.M.R. 1982). 

e. Maximum punishment. The maximum punishments have been 

revised. Instead of three levels ($50 or less, $50 to $100, and over 

$100) only two are used. This is simpler and conforms more 

closely to the division between felony and misdemeanor penalties 

contingent on value in 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. 
Pun. Arta. APPENDIX 23 

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. 5 641. 

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). 

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 increased danger when robbery is committed with a firearm 

whether or not loaded or operable. C$ 18 U.S.C. $5 21 13 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. 5 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 

(1963). See also United States v. Webb, 46 C.M.R. 1083 

(A.C.M.R. 1972). As to share drafts see also United States v. 

Palmer, 14 M.J. 731 (A.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 lev6ls ($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. 

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). 

51. Article 125- Sodomy 

c. Explanation. This paragraph is based on paragraph 204 of 

MCM, 1969 (Rev.). Fellatio and cunnilingus are within the scope 

of Article 125. See United States v. Harris, 8 M.J. 52 (C.M.A. 

1979); United States v. Scoby, 5 M.J. 160 (C.M.A. 1978). For a 

discussion of the possible constitutional limitations on the application of Article 125 (for example, the sexual activity of a married couple), see United States v. Scoby, supra. 

d. Paragraph 51e. The Analysis accompanying subparagraph 51e 

is amended by inserting the following at the end thereoE 

1994 Amedment. One of the objectives of the Sexual Abuse 

Act of 1986, 18 U.S.C. $5 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 udner the age of 16. This 

amendment, however, increases the maximum punishment to life 

when the victime is under the age of 12 years. 

e. Maximum punishment. The maximum punishment for forcible 

sodomy was raised in recognition of the severity of the offense 

which is similar to rape in its violation of personal privacy and 

dignity. 

52. Article 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. 5 81. 

The separate punishment for simple arson of property of a value 
ANALYSIS OF PUNITIVE ARTICLES Pun. Arts. 

of $100 or less has been retained because 18 U.S.C. Sec. 81 does 

not cover most personal property. 

53. Article 127- Extortion 

c. Explanation. This paragraph is based on paragraph 206 of 

MCM, 1969 (Rev.). See also United States v. Schmidt, 16 

U.S.C.M.A. 57,36 C.M.R. 213 (1966); R. Perkins, Criminal Law 

373-74 (2d ed. 1969). Subparagraph (4) is based on United States 

v. McCollum, 13 M.J. 127 (C.M.A. 1982). -

54. Article 128- Assault 

c. Explanation. This paragraph is based on paragraph 207 of 

MCM, 1969 (Rev.). See also United States v. Vigil, 3 U.S.C.M.A. 

474, 13 C.M.R. 30 (1953) (aggravated assault); United States v. 

Spearman, 23 U.S.C.M.A. 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). 

Note that the higher maximum for assault with a dangerous 

weapon when the weapon is a firearm applies even if the firearm 

is used as a bludgeon. This is because the danger injected is 

significantly greater when a loaded firearm is used, even as a 

bludgeon. 

In certain situations, this punishment scheme may have the 

effect of making intentional infliction of grievous bodily harm a 

lesser included offense of assault with a dangerous weapon. For 

example, if in the course of an assault with a loaded firearm the 

accused or a coacter 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. 

1998Amendment: 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 fuem 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. 

55. Article 129-- Burglary 

c. Exphnation. This paragraph is based on paragraph 208 of 

MCM, 1969 (Rev.). See also United States v. Klutz, 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 specijication. 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, 30 C.M.R. 44 (1960) (all regarding "structure"); United States v. Weaver, 18 U.S.C.M.A. 173, 39 C.M.R. 

173 (1969) ("separate offense"); United 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 

deleted based on United States v. Mandujano, 425 U.S. 564 

(1976); Harris v. New York, 401 U.S. 222 (1971). See also United 

States v. Annstrong, 9 M.J. 374 (C.M.A. 1980). Subparagraph (3) 

is new and is based on Public Law 94-550 of 1976 which 

amended Article 131 by adding a second clause based on section 

1746 of title 28 United States Code, which was also enacted as 

part of Pub.L. No. 94-550. 

Text of section 1746 of title 28, United States Code 

$ 1746. Unsworn declarations under penalty of perjury. 

Whenever, under any law of (he 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, cefllcate, 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 lie force and effect, be supported, 

evidenced, established, or proved by the unsworn declaration, 

cemficate, 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 pejury 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 
Pun. Arts. APPENDIX 23 

8 1621. Perjury generally 

Whoever-

(1) having taken an oath before a competent tribunal, officer, 

or person, in any case in which a law of the United States 

authorizes an oath to be administered, that he will testify, declare, 

depose, or certify truly, or that any written testimony, declaration, 

deposition, or certificate by him subscribed, is true, willfully and 

contrary to such oath states or subscribes any material which he 

does not believe to be true; or 

(2) in any declaration, certificate, verification, or statement 

under penalty of perjury as permitted under section 1746 of title 

28, United States Code, willfully subscribes as true any material 

matter which he does not believe to be true; is guilty of perjury 

and shall, except or otherwise expressly provided by law, be fmed 

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. 

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(l). 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. 

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: Ambiguiiy, 12 A.F.JAG L.Rev. 124 (Spring 1970). As to 

subparagraph (I), see 1 U.S.C. 5 1; Pub.L. No. 94-106, 8 803, 89 

Stat. 537-38 (Oct. 7, 1975). 

e. Maximrim 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 61-1 13 describe and list the maximum punishments for 

many offenses under Article 134. These paragraphs are not exclusive. See generally Parker v. Levy, 417 U.S. 733 (1974); United 

States v. Sadinsky, 14 U.S.C.M.A. 563, 34 C.M.R. 343 (1964). 

Except as otherwise noted in the Analyses of paragraphs 

61-113, the offenses listed below are based on paragraph 127c 

(Table of Maximum Punishments), paragraph 213L and Appendix 

6 (sample specifications 126-187) of MCM, 1969 (Rev.). Eight 

offenses previously listed (allowing prisoner to do unauthorized 

acts, criminal libel, criminal nuisance, parol violation, statutory 

perjury, transporting stolen vehicle in interstate commerce, unclean accoutrements, and unclean uniform) are not listed here 

because they occur so infrequently or because the gravamen of 

the misconduct is such that it is more appropriately charged under 

another provision. 

c. Explanation. Except as noted below, this paragraph is based on 

paragraph 213a through e of MCM, 1969 (Rev.). 

(1) In general. See Secretary 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. 409, 12 C.M.R. 165 (1953) (absence offenses); 

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. Gairdet, 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) Capital offense. See United States v. French, 10 

U.S.C.M.A. 171, 27 C.M.R. 245 (1959). 

(6)(b) Specifications under clause 3. See United States v. 

Mayo, 12 M.J. 286 (C.M.A. 1982); United States v. Perry, 12 

M.J. 112 (C.M.A. 1981): United States v. Rowe, supra; United 

States v. Hogsett, 8 U.S.C.M.A. 681, 25 C.M.R. 185 (1958). 

(6)(c) 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. This paragraph is based on United States v. Ambalada, 1 M.J. 1132 (N.C.M.R.), pet. denied, 3 M.J. 164 (1977). 

For a discussion of the offense of adultery, see United States v. 

Butler, 5 C.M.R. 213 (A s.R. 1952). 

63. Article 134- (Assault- indecent) 

c. Explanation. This paragraph is based on paragraph 213A2) of 

MCM, 1969 (Rev.). See United States v. Caillouette, 12 

U.S.C.M.A. 149, 30 C.M.R. 149 (1961) regarding specific intent. 

See also United States v. Headspeth, 2 U.S.C.M.A. 635, 10 

C.M.R. 133 (1953). 
ANALYSIS OF PUNITIVE ARTICLES Pun. Arts. 

Gender-neutral language has been used in this paragraph, as 

well as throughout this Manual. This will eliminate any question 

about the intended scope of certain offenses, such as indecent 

assault such as may have been raised by the use of the masculine 

pronoun in MCM, 1969 (Rev.). It is, however, consistent with the 

construction given to the former Manual. See, e.g., United States 

v. Respess, 7 M.J. 566 (A.C.M.R. 1979). See generally 1 U.S.C. 

5 1 ("unless the context indicates otherwise .. . words importing 

the masculine gender include the feminine as well ...."). 

- d. Lesser included 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). 

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 213fl1) of 

MCM, 1969 (Rev.). 

65. Article 134- (Bigamy) 

c. Explanation. This paragraph is based on paragraph 213fl9) of 

MCM, 1969 (Rev.). See also United States v. Pruitt, 17 

U.S.C.M.A. 438, 38 C.M.R. 236 (1968), concerning the defense 

of mistake. 

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); 

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. Rabom, 575 F.2d 688 

(9th Cir. 1978); United States v. Crutchfield, 547 F.2d 496 (9th 

Cir. 1977). 

e. Maximrirn pnnishment. The maximum punishment for bribery 

has been revised to reflect the greater seriousness of bribery, 

which requires a specific intent to influence. See nl.ro 18 U.S.C. 

8 201. 

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 213fl8) of 

MCM, 1969 (Rev.). See ulso United Stares v. Groom, 12 

U.S.C.M.A. 11, 30 C.M.R. 11 (1960). 

d. Lesser included offense. See United States v. Downard, 6 

U.S.C.M.A. 538, 20 C.M.R. 254 (1955). 

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 custodyoffenses 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 213A13) 

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 213fl7) of 

MCM, 1969 (Rev.). See also United States v. Kirksey, 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 213fl5) 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) and 

United States v. Burrow, 26 C.M.R. 761 (N.B.R. 1958), for a 

discussion of disorderly conduct in relation to the offense of 

breach of the peace 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. Explanation. This paragraph is based on United States v. 

Roebuck, 8 C.M.R. 786 (A.F.B.R. 1953); United States v. Jones, 

7 C.M.R. 97 (A.B.R. 1952); United States v. Nichols, 6 C.M.R. 

239 (A.B.R. 1952). 

77. Article 134- (False or unauthorized pass 

offenses) 

c. Explanation. This paragraph is based on paragraph 213fl11) of 

MCM, 1969 (Rev.). See also United States v. Burton, 13 

A23-17 
Pun. Arts. 	 APPE 

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. Explanation This paragraph is based on United States v. 

Hemdon, 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. 

79. Article 134- (False swearing) 

c. Explanation. This paragraph is based on paragraph 213fl4) of 

MCM, 1969 (Rev.). See also United States v. Whitaker, 13 

U.S.C.M.A. 341, 32 C.M.R. 341 (1962); United States v. McCarthy, 11 U.S.C.M.A. 758, 29 C.M.R. 574 (1960). 

, 	 80. Article 134- (Firearm, discharging- through 

negligence) 

c. Explanation This paragraph is based on United States v. 

Darisse, 17 U.S.C.M.A. 29, 37 C.M.R. 293 (1967); United States 

v. Barrientes, 38 C.M.R. 612 (A.B.R. 1967). The term 

"carelessness" was changed to "neg1igence"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 Stotes 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) 

Introduction. This paragraph is new to the Manual for 

Courts-Martial, although the offense of fraternization is based on 

longstanding custom of the se~ces, 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 

States v. Free, 14 C.M.R. 466 (N.B.R. 1953). See also W. 

Winthrop, Military Law and Precedents 41, 716 n.44 (2d ed. 

1920 reprint); Staton v. Froehlke, 390 F.Supp. 503 (D.D.C. 

1975); United States v. Lovejoy, 20 U.S.C.M.A. 18, 42 C.M.R. 

210 (1970); United States v. Rodriguez, 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 OfJicer 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 specl@cation. 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 CM.R. 525 (A.B.R. 1961). 

d. Maximum punishment. The maximum punishment was increased from that provided in paragraph 127c of MCM, 1969 

(Rev.) to expressly authorize confinement. C$ the second paragraph of paragraph 127c(2) of MCM, 1969 (Rev.). 

e. Sample specifcation. 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 213fl12) of 

MCM, 1969 (Rev.); United States v. Kick, 7 M.J. 82 (C.M.A. 

1979). 

e. Maximum punishment. 

I994 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 

incongruity created by having the maximum punishment for 

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); 

United States v. Messenger, 2 U.S.C.M.A. 21, 6 C.M.R. 21 

(1952). 

87. Article 134- (Indecent acts or liberties with 

achild) 

c. Explanation. This paragraph is based on paragraph 213fl3) of 

MCM, 1969 (Rev.). See also United States v. Knowles, 15 

U.S.C.M.A. 404, 35 C.M.R. 376 (1965); United States v. Brown, 

3 U.S.C.M.A. 454, 13 C.M.R. 454, 13 C.M.R. 10 (1953); United 
ANALYSIS OF PUNITIVE ARTICLES 	 Pun. Arts. 

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. 

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 exposwe 

in some circumstances (e.g., in front of children, but without the 

intent to incite lust or gratify sexual desires necessary for indecent 

acts or liberties) is sufficiently serious to authorize a punitive 

discharge. 

89. Article 134-- (Indecent language) 

Introduction. "Obscene" was removed from the title because 

it is synonymous with "indecent." See paragraph 90c and Analysis. "Insulting" was removed from the title based on United States 

v. Prince, 14 M.J. 654 (A.C.M.R. 1982); United States v. Linyear, 

3 M.J. 1027 (N.C.M.R. 1977). 

Gender-neutral language has been used in this paragraph, as 

well as throughout this Manual. This will eliminate any question 

about the intended scope of certain offenses, such as indecent 

language, which may have been raised by the use of the masculine pronoun in MCM, 1969 (Rev.). It is, however, consistent 

with the construction given to the former Manual. See e.g., United 

States v. Respess, 7 M.J. 566 (A.C.M.R. 1979). See generally 1 

U.S.C. 58 ("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). 

1995Amendment: 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. Maximum punishment. The maximum punishment in cases 

other than communication to a child under the age of 16 has been 

reduced. It now parallels that for indecent exposure. 

Article 	13& (Indecentacts with another) 

c. Explanation. This paragraph is new 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. 8 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 

pleading and proving kidnapping in courts-martial. See, e.g., 

United States v. Smith, 8 M.J. 522 (A.C.M.R. 1979); United 

States v. DiGiulio. 7 M.J. 848 (A.C.M.R. 1979); United States v. 

Perkins, supra. 

After United States v. Picotte, supra, was decided, 18 U.S.C. 

8 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. 8 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, Federal Jury Practice and Instructions § 43.09 (1977); Military 

Judges' Benchbook, supra at paragraph 3-190. See also Antsler 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 8 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). 

A23-19 
- - 

Pun. Arts. APPENDIX 23 

Subparagraph (3) is based on Chahvin v. United States, supra; 

2 E. Devitt and C. Blackmar, supra at $43.09. See also Hall v. 

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 

United States v. Hoog, supra. The second sentence in subparagraph (4) is also based on United States v. Healy, supra. See 

also United States v. Smith, supra. The second sentence in subparagraph (5) is based on United States v. Picotte, supra. See also 

United States v. Martin, 4 M.J. 852 (A.C.M.R. 1978). The last 

sentence in subsection (5) is based on 18 U.S.C. 11201. 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 60c(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 90c. 

95. Article 134- (Misprision of serious offense) 

c. Explanation This paragraph is based on paragraph 213f(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. 5 $1503, 1505, 1510, 1512, 1513; United States v. Chodkowski, 11 M.J. 605 (A.F.C.M.A. 1981). 

f. Sample specification. 

I991 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 96a 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 96c. This paragraph is necessary given the 

increased number of administrative actions initiated in each 

service. 

97. Article 134- (Pandering and prostitution) 

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

States v. Adams, 18 U.S.C.M.A. 310, 40 C.M.R. 22 (1966); 

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. 8 1384. 

97a Article 134- (Parole, Violation of) 

I998 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 ir~clude 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: subornati~n 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. 540, 34 C.M.R. 320 (1964)(res judicata); United 

States v. Smith, 49 C.M.R. 325 (N.C.M.R. 1974) (pleading). 

99. 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 

reasons. See United States v. Maze, 21 U.S.C.M.A. 260, 45 

C.M.R. 34 (1972) for a discussion of one of these offenses in 

relation to the doctrine of preemption. See generally 18 U.S.C. 

$ 2071. 

f. Sample spec$cation. The specification contained in Appendix 

6c, no. 172, from MCM, 1969 (Rev.) was modified by deleting 

the word "steal" because this would be covered by "remove." 

100. Article 134- (Quarantine: medical, breaking) 

b. Elements. The word "duly" has been deleted from the elements 
ANALYSIS OF P'UNITIVE ARTICLES Pun. Arts. 

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. 

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, 126g. 131c, and 1746 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 specificntion. 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. 

Ha. 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 @.Del. 1971). 

c. Explanation The second sentence is based on United States v. 

Gibbons, supra. Cj 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 senrice) 

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), affd, 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 senice" 

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 def~tion of "loiter" is taken 

from United States v. Muldrow, 48 C.M.R. 63, 6511. 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 in. 

creased 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 language" as a lesser included offense of soliciting another to 

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. 
Pun. Arts. APPENDIX 23 

February I986 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 213fl14) of 

MCM, 1969 (Rev.). and United States v. Camright, 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. 

107. Article 134-- (Straggling) 

c. Explanation. This paragraph is new and is based on Military 

Judges' Benchbook, DA PAM 27-9, paragraph 3-180 (May 

1982). 

108. Article 134- (Testify: wrongful refusal) 

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

States v. Kirsch, 15 U.S.C.M.A. 84, 35 C.M.R. 56 (1964). See 

also United States v. Quarles, 50 C.M.R. 514 (N.C.M.R. 1975). 

f. Sample specification. "Duly appointed" which appeared in 

front of the words "board of officers" in sample specification no. 

174, Appendix 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. Explanation. This paragraph is based on Military Judges' 

Benchbook, supra at paragraph 3-189. 

e. Maximum punishment. The maximum punishment is based on 

18 U.S.C. 5 844(e). 

110. Article 134- (Threat, communicating) 

c. Explanation. This paragraph is taken from paragraph 213fl10) 

of MCM, 1969 (Rev.). See also United States v. Gilluly, 13 

U.S.C.M.A. 458, 32 C.M.R. 458 (1963); United States v. Frayer, 

11 U.S.C.M.A. 600, 29 C.M.R. 416 (1960). 

111. Article 134- (Unlawful entry) 

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

A23-22 

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, 

30 C.M.R. 44 (1960) (aircraft); United States v. Sutton, 21 

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. 
APPENDIX 24 


ANALYSIS OF NONJUDlClAL PUNISHMENT PROCEDURE 


1. General 

c. Purpose. This paragraph is based on the legislative history of 

Article 15, both as initially enacted and as modified in 1962. See 

generally H.R.Rep. No. 491, 81st Cong., 1st Sess. 14-15 (1949); 

%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. 3-4b (1 Sep. 1982); JAGMAN sec. 

0101. CY: 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 128d of MCM, 1969 

(Rev.). 

(3) Multiple punishment prohibited. This paragraph is based on 

the guidance for court-martial offenses, found in paragraph 30g 

and 33h 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 purzishment to administrative corrective measures. This paragraph is derived from paragraph 128c 

of MCM, 1969 (Rev.) and service regulations. See e.g., AR 

27-10, para. 3-4 (1 Sep. 1982). 

h. 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 senice 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 

punishment proceeding. In addition, Part V was amended 

throughout to use the term "nonjudicid 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 13 1 of MCM, 1969 

(Rev.). Subparagraph b(2)(b)4 is also based on %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 

Anned 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 131d of MCM, 1969 

(Rev.), was eliminated as unnecessary and confusing. Accordingly, the Table of Equivalent Punishments is no longer necessary. 

Subparagraph d, in concert with the elimination of the apportionment concept, will ease the commanders burden of determining an appropriate punishment and make the implementation of 

that punishment more eff~cient and understandable. 

1987 Amendment: Subparagraph e was redesignated as subparagraph g and new subparagraphs e and f were added to imple- 
Nonjud. Pun.5. APPENDIX 24 

ment the amendments to Articles 2 and 3, UCMJ, contained in 

the "Military Justice Amendments of 1986," tit. VIU,$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. 

Subparagraph a(4) provides a procedure for vacation of suspended nonjudicial punishment. This procedure parallels the procedure found sufficient to make admissible in courts-martial 

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 

(Rev.) and service regulations dealing with appeals. See AR 

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.). 
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, 11 10-11 14, 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; Providedfurther, 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; Providedfurther, That for offenses committed prior to August 1, 1984, for which a sentence is 

adjudged on or after August 1, 1984, if the maximum punishment authorized in this Manual is less 

than that previously authorized, the lesser maximum 

authorized punishment shall apply; And provided 

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. 

The Manual for Courts-Martial, 1969, United 

States (Revised edition), prescribed by Executive 

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 
APPENDIX 25 

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 amendments to the Manual for Courts-Martial, United 

States, 1984, prescribed by Executive Order No. 

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)(lO)(B) is amended by 

k. R.C.M. 1004 is amended 

1. 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 I11 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. 31 1 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 N 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 N 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 rescision 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 

March 1986, with respect to all court-martial 

processes taken on and after that date: Provided, 

That nothing contained 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 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 
HISTORICAL EXECUTIVE ORDERS 

invalidate any capital sentencing proceeding conducted prior to 1 March 1986, and any such 

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; Providedfurther, That the amendments 

made in paragraph 16 of Part IV shall apply in trials 

of offenses committed on or after 1 March 1986; 

Providedfurther, 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. 

THE WHITE HOUSE 

February 19, 1986 
APPENDIX 25 

EXECUTIVE ORDER 12586 

AMENDMENTS TO THE MANUAL FOR 

COURTS-MARTIAL, UNITED STATES, 1984 

By the authority vested in me as Presiden: 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 amendments to the Manual for Courts-Martial, United 

States, 1984, prescribed by Executive Order No. 

12473, as amended by Executive Order Nos. 12484 

and 12550, it is hereby ordered as follows: 

Section 1. Part I1 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 I1 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)(l) is amended to read as follows: 

f. R.C.M. 706(c)(2) is amended as follows: 

g. R.C.M. 707 is amendedh. R.C.M. 903 is amendedi. R.C.M. 916 is amended as follows: 

j. R.C.M. 918(a) is amendedk. R.C.M. 920(e)(5)(D) is amended by 

1. R.C.M. 921(c) is amendedm. 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 arnendedq. R.C.M. 1105(c) is amended byr. 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 amendedu. R.C.M. 11 12 is amendedv. R.C.M. 11 13(d)(l) 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 111 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. Paraqraph 32 is amendedd. Paragraph 35 is amendede. Paragraph 42 is amended 

f. Paragraph 46 is amended 

g. Paragraph 89 is amended 

p. R.C.M. 1010(c) is amended to read as follows: 

A25-4 
HISTORICAL EXECUTIVE ORDERS 

Section 4. Part V of the Manual for Courts-Martial, 

United States, 1984, is amended by paragraph 5 

bySection 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-Martial701(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 

enactment of the National Defense Authorization 

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 

arraignment has been completed on or after 12 

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, 

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 

March 31 lg8'
APPENDIX 25 

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 amendments to the Manual for Courts-Martial, United 

States, 1984, prescribed by Executive Order No. 

12473, as amended by Executive Order Nos. 12484, 

12550 and 12586, it is hereby ordered as follows: 

Section 1. Part I1 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@)(2) is amended by 

e. R.C.M. 1103(b)(2)@)(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 amendedi. R.C.M. 1107(b)(4) is amended to read as follows: 

j. R.C.M. 1108(b) is amendedk. R.C.M. 1112@) is amended to read as follows: 

1. R.C.M. 11 14(c)(2) is amended to read as follows: 

m. R.C.M. 1201@)(3)(C) is amended to read as follows: 

Section 2. Part 111of the Manual for Courts-Martial, 

United States, 1984, is amended as follows: 

a. Mil. R. Evid. 304(b)(l) is amended to read as 

follows: 

b. Mil. R. Evid. 506(c) is amended to read as follows: 

Section 3. Part IV of the Manual for Courts-Martial, 

United States, 1984, is amended as follows: 

a. Paragraph 10 is amendedb. Paragraph 101 is deleted 

c. Paragraph 105 is amended bySection 4. Part V of the Manual for Courts-Martial, 

United States, 1984, is amended as follows: 

a. Paragraph 5 is amended byb. Paragraph 6a is amended bySection 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 omnitted 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. 
HISTORICAL EXECUTIVE ORDERS 

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 
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, and Executive order No. 12708, it 

is hereby ordered as follows: 

Section 1.Part I1 of the Manual for Courts-Martial, United States, 1984, is amended as follows: 

a. R.C.M. 405(g)(l)(A) is amended to read as follows: 

"(A) Witnesses. Except as provided in subsection 

(g)(4)(A) of this rule, any witness whose testimony 

would be relevant to the investigation and not cumulative shall be produced if reasonably available. This 

includes witnesses requested by the accused, if the 

request is timely. A witness is [reasonably available] 

when the 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 obtaining the witness' appearance. A witness who is unavailable under Mil. 

R. Evid. 804(a)(1)-(6) is not [reasonably available.]" 

b. R.C.M. 405(g)(4)(B) is amended- 

(1) in clause (iii) to read as follows: 


"(iii) Prior testimony under oath;" 


(2) in clause (iv) to read as follows: 

"(iv) Depositions of that witness; and"; and 

(3) by adding the following clause at the end 

thereof: 

"(v) In time of war, unsworn statements." 

c. R.C.M. 701(a)(3)(B) is amended to read as follows: 

"(B) To rebut a defense of alibi, innocent ingestion, or lack of mental responsibility, when trial 

counsel has received timely notice under subsection 

A25-8 

(b) (1) or (2) of this rule." 

d. R.C.M. 701(b) is arnended- 

(1) in subparagraph (1) to read as follows: 

"(1) Names of witnesses and statements. 

(A) Before the beginning of trial on the merits, 

the defense shall notify the trial counsel of the 

names and addresses of all witnesses, other than the 

accused, whom the defense intends to call during the 

defense case in chief, and provide all sworn or 

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 intends to call at the presentencing proceedings 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."; 

(2) in subparagraph (2) to read as follows: 

"(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."; and 

(3) in subparagraph (5) to read as follows: 

"(5) Inadmissibility of withdrawn defense. If an 

intention to rely upon a defense under subsection 

(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." 
HISTORICAL EXECUTIVE ORDERS 

e. R.C.M. 705(c)(2) is amended by deleting the first 

sentence and substituting therefor the following sentence: 

"(2) Permissible terms or conditions. Subject to 

subsection (c)(l)(A) of this rule, subsection 

(c)(l)(B) of this rule does not prohibit either party 

from proposing the following additional conditions:" 

- f. R.C.M. 705(d) is amended- 

(1) by deleting subparagraph (1); 

(2) by redesignating subparagraph (2) as subparagraph (1) and amending it to read as follows: 

"(1) Negotiation. Pretrial agreement negotiations 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 negotiate with defense counsel unless the accused has 

waived the right to counsel." 

(3) by redesignating subparagraph (3) as subparagraph (2) and amending it to read as follows: 

"(2) Formal submission. After negotiation, if 

any, under subsection (d)(l) 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." 

(4) by redesignating subparagraph (4) as subparagraph (3) and amending it to read as follows: 

"(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." and 

(5) by redesipnating subparagraph (5) as subparagraph (4). 

g. R.C.M. 707 is amended to read as follows: 

"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; 

(2) The imposition of restraint under 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 the 

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 cltarges. When charges are preferred 

at different times, accountability for each charge 

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 this 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 

A25-9 
APPENDIX 25 

under R.C.M. 908 is filed, a new 120-day time period under this rule shall begin, for all charges neither proceeded on nor severed under 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 Military Review under R.C.M. 908, if there 

is a further appeal to the Court of Military Appeals 

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 Military Appeals 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. 

(c) Excludable delay. All periods of time covered 

by stays issued by appellate courts and all other 

pretrial delays approved by a military judge or the 

convening authority shall be excluded when determining whether the period in subsection (a) of this 

rule has run. 

(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. 

(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 part of the appellate record. 

(d) Remedy. A failure to comply with the right to 

a speedy trial will result in dismissal of the affected 

charges. This dismissal will be with or without prejudice to the government's right to reinstitute courtmartial proceedings against the accused for the same 

\ offense at a later date. The charges must be dismissed with prejudice where the accused has been 

depriv+ of his or her constitutional right to a 

speedy trial. In determining whether to dismiss 

charges with or without prejudice, the court shall 

consider, among others, each of the following facA25-10 

tors: the seriousness of the offense; the facts and 

circumstances of the case that lead to dismissal; the 

impact of a reprosection on the administration of 

justice; and any prejudice to the accused resulting 

from the denial of a speedy trial. 

(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." 

h. R.C.M. 802(c) is amended to read as follows: 

"(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." 

i. R.C.M. 908(b)(4) is amended to read as follows: 

"(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 Military Review of the appeal, except that solely as to charges and specifications not 

affected by the ruling or order." 

j. R.C.M. 908(b) is amended by inserting the following new subparagraph at the end thereof: 

"(9) Pretrial confinement of accused pending 

appeal. If an accused is in pretrial confinement at 

the time the United Statbs files notice of its intent to 

appeal under subsection (3) above, the commander, 

in determining whether the accused should be confined pending the outcome of an appeal by the 

United States, should consider the same factors 

which would authorize the imposition of pretrial 

confinement under R.C.M. 305@)(2)(B)." 

k. 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, robbery, or 

aggravated arson was major and who manifested a 

reckless indifference for human life;" 

1. R.C.M. 1010 is amended to read as follows: 

"In each general and special court-martial, prior to 

adjournment, the military judge shall ensure that the 
HISTORICAL EXECUTIVE ORDERS 

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 Military Review nor reviewed by the 

Judge Advocate General under R.C.M. 1201(b)(l); 

and 

(d) The right to the advice and assistance of counsel in the exercise of the foregoing rights or any 

decision to waive them. 

The written advice to the accused concerning 

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." 

m. R.C.M. 1103(b)(2)(D) is amended by- 

(1) redesignating clause (iv) as clause (v); and 

(2) inserting the following new clause (iv) after 

clause (iii): 

"(iv) the original dated, signed action by the convening authority." 

n. R.C.M. 1107(f)(l) is amended to read as follows: 

"(1) In general. The convening authority shall 

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." 

o. R.C.M. 11 10(f)(l) is amended to read as follows: 

"(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 

copy of the action under R.C.M. 1107(h). Upon 

written application of the accused, the convening 

authority may extend this period for good cause, for 

not more than 30 days." 

p. R.C.M. 1113(c)(l) is amended in the final paragraph thereof to read as follows: 

"A dishonorable or a bad-conduct discharge 

may be ordered executed only after a final judgment 

within the meaning of R.C.M. 1209 has been rendered in the case. If 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 advice of that officer's staff judge advocate as to 

whether retention of the servicemember would be in 

the best interest of the service. Such advice shall 

include the findings and sentence as finally approved, the nature and character of duty since approval of the sentence by the convening authority, 

and a recommendation whether the discharge should 

be executed." 

Section 2. Part 111of the Manual for Courts-Martial, 

United States, 1984, is amended by adding the following new rule at the end of ~edtion vi thereof: 

"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 e:tamination, 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 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: 

"e. Maxiinum 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 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." 

b. Paragraph 19 is arnended- 

(1) in subparagraph b(4) by adding the following 

thereto: 

"[Note: if the escape was post-trial confinement, 

add the following element] 

A25-11 
APPENDIX 25 

(d) That the confinement was the result of a 

court-martial conviction." 

(2) in subparagraph c(4)(a) by adding the following thereto: 

"For purposes of the aggravating element of posttrial confinement (subparagraph b(4)(d), above) and 

increased punishment therefor (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." 

(3) in subparagraph e by- 

(a) amending clause (3) to read as follows: 

"(3) 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 confinements for 1 year." 

(b) adding the following new clause at the end 

thereof: 

"(4) Escape from post-trial confinement. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years." 

(4) in subparagraph f(4) to read as follows: 

"(4) Escape from confinement. 

In that- (personal jurisdiction data), 

having been placed in (post-trial) confinement in 

(place of confinement), by a person authorized to 

order accused into confinement did, (atlon 

board location) (subject-matter jurisdiction data, if required), on or about---

19-, escape from confinement." 

c. Paragraph 35c(2) is amended to read as follows: 

"(2) Operating. Operating a vehicle includes not 

only driving or guiding it while in motion, either in 

person or through the agency or another, but also the 

manipulation of its controls so as to cause the particular vehicle to move, or the setting of its motive 

power in action." 

d. Paragraph 57d is amended to read as follows: 

"d. Lesser included offense. Article 80-attempts." 

e. Paragraph 96f is amended to read as follows: 

"f. Sample spec$cation. 

In that- (personal jurisdiction data), 

did, (atlon board-location) (subject-matter jurisdiction data, if required), on or about--...p-, 

19--., wrongfully (endeavor to [impede (a trial 

by court-martial) (an investigation) .-.)I 

[influence the actions of (a trial counsel 

of the court-martial) (a defense counsel of the courtmartial) (an officer responsible for making a recommendation concerning disposition of charges) 

[(influence) (alter) the testimony 

as a witness before a (court-martial) 

(an investigating officer) 31 in the case 

of-- by [(promising) (offering) (giving) to 

the s a i d , (the sum of $ 

~-, of a value of about $.---_.)I 

[communicating to the said.- a threat 

to_ - ] [----I, (if) (unless) helshe, the 

said would [recommend dismissal of the 

charges against said-..-~-] [(wrongfully refuse 

to testify) (testify falsely concerning 

[(at such trial) (before such investigating officer)] [---.-I." 

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 to any offense 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 amemdments made to Rules for Courts-Martial 701 and 705 shall apply only in Cases in which 

chuges are preferred on or after 6 July 1991. 

d. The amendments made to Rules for Courts-Martial707 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)(l) shall apply only in cases in which the 

sentence is adjudged on or after 6 July 1991. 
HISTORICAL EXECUTIVE ORDERS 

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. 

THE WHITE HOUSE 

June 27, 1991 
APPENDIX 25 

EXECUTIVE ORDER 12888 promulgated pursuant to Article 6a are established to 

AMENDMENTS TO THE MANUAL FOR investigate and dispose of charges, allegations, or 

COURTS-MARTIAL, UNITED STATES, 1984 information pertaining to the fitness of a military 

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, 

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 I1 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 Advocate General may prescribe rules of professional 

conduct not inconsistent with this rule or this Manual. Rules of professional conduct promulgated pursuant to this rule may include sanctions for 

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) In general. These rules and procedures 

A25-14 

trial judge oFappellate 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 inquiries or investigations shall be conducted with 

reasonable promptness. 

(5) Initial inquiry. 

(A) In general. ,111initial 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 desig- 
HISTORICAL EXECUTIVE ORDERS 

nated to conduct the initial inquiry should, if 

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, 

the individual designated to conduct the inquiry 

should, if practicable, have experience as an appellate military judge. 

(C) Due prncess. 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) Standard of Proof. Prior to taking 

professional disciplinary action, other than minor 

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. 

@) 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) Membership. If appointed pursuant to 

subsection (c)(6)(B) of this rule, an ethics cornrnission 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 cornrnission 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 ornissions constitute judicial misconduct or unfitness. If 

the commission determines that the affected judge 

engaged in judicial misconduct or is unfit for continued judicial service, the commissiori may be required to recommend an appropriate disposition to 

the Judge Advocate General concerned. 

(8) Rules qf 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 pris.- 

oner 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 otherwise provided by regulations of the Secretary 

concerned, a prisoner does not have the right under 

this rule to have military counsel of the prisoner's 

own selection." 
APPENDIX 25 

c. R.C.M. 305(h)(2)(A) is amended to read as follows: 

"(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 confinement will continue." 

d. R.C.M. 305(i)(l) 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) Militaly 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) Prohibit the party from introducing evidence, 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 

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 of the defense, grant appropriate 

relief directing that either an appropriate general 

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) The witness intends to invoke the right 

against self-incrimination to the extent permitted by 

A25-16 

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, 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)(l) 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)(l) 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 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." 

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)(l)(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 
HISTORICAL EXECUTIVE ORDERS 

general and special courts-martial the trial counsel 

shall cause to be prepared an original and one copy 

of the record of trial." 

Section 2. Part 111 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 warrarit. 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)(l)(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 infonnution. 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. 5050)(5) is amended to read as 

follows: 

"(5) Closed session. The military judge may exclude the public during that portion of the presentation of evidence that. discloses classified 

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 punisl~able 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 efA25-17 
fect 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." 

i. Mil. R. ~vid. 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 

sentence pursuant to Article 72; proceedings for 

search authorizations; proceedings involving pretrial 

restraint; and in other proceedings authorized under 

the code or this Manual and not listed in subdivision 

(a)." 

Section 3. Part IV of the Manual for Courts-Mattial, 

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 01 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 (3hmurder 

(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), (Z), and 

(4). 

(a) Article 80-attempts 

(b) Article 1 19-voluntary manslaughter 

(c) Article 134--assault with intent to commit 

mwder 

(d) Article 134--assault with intent to commit 

voluntary manslaughter". 

d. Para 45d(l) is amended by adding the following 

at the end thereof: 

"(e) Article 120(b)+arnal knowledge". 

e. 	Para 45f(l) is amended to read as follows: 

"(1) Rape. . 	. . . In that --(personal junsdlctlon 

data), did, (atlon board-location) (subject-matter 

jurisdiction data, if required) on or 

about 19 

rape- _- .._-(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 
HISTORICAL EXECUTIVE ORDERS 

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 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 interference include wrongfully influencing, 

intimidating, impeding, or injuring a witness, an investigator, or other person acting on an adverse administrative action; by means of bribery, 

intimidation, misrepresentation, or force or threat of 

force delaying or preventing comrnunication of information relating to such administrative proceeding; 

and, the wrongful destruction or concealment of information relevant to such adverse administrative 

proceeding. 

d. Lesser included oflenses. None. 

e. Maximunt punishment. Dishonorable discharge, forfeiture of all pay and allowances, and 

confinement for 5 years. 

f. Sample specification. In 

that (personal jurisdiction data), 

did, (atlon board-location) (subject-matter jurisdiction data, if required), on or about 

19 wrongfully (endeavor to) [impede (an adverse administrative 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 concerning an adverse administrative proceeding) (an individual responsible for 

processing an adverse administrative proceeding) 

(_~ )] [(influence) (alter) the testimony of a witness before (a board 

established to consider an adverse administrative 


proceeding or elimination) (an investigating officer) 


)] in the case of 


by [(promising) (offering) (giving) to the 


s a i d , (the sum of 


$ ____) ,of a value of 
 . . about $ )] [communicating to the 

said a threat to ] 

[ 1, (if) (unless) the 

said would [recommend dismissal 

of the action against said ] 

[(wrongfully refuse to testify) (testify falsely concerning ~) ~ )] [(at 

such administrative proceeding) (before such investigating officer) (before such administrative board)] 

[ ----]I. 

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(l), and 96a of Part IV shall apply to any 

offense committed on or after January 21, 1994. 

b. The amendments made to Section 111 shall apply only in cases in which arraig;:ment has been 

completed on or after January 21, 1994. 

c. The amendment made to Rules for CourtsMartial 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 CourtsMartial 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 CourtsMartial 305 shall apply only to cases in which pretrial confinement is imposed on or after January 21, 

1994. 

f. The amendment to Rule for Courts-Martial 

1103(g)(l)(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 

A25-19 
APPENDIX 25 

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. 

THE WHITE HOUSE 


December 23, 1993. 

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 

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, Executive Order No. 12767, 

and Executive Order No. 12888, it is hereby ordered 

as follows: 

Section 1.Part 11of the Manual for Courts-Martial, United States, 1984, is amended as follows: 

a. R.C.M. 405(g)(l)(B) is amended to read as 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 information. If, prior to referral, the Government 

agrees to disclose to the accused information to 

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 

appropriate protective order, in writing, to guard 

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)(l)(B) through (I?) 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) Evidence of rehabilitative potential. 

Rehabilitative potential refers to the accused's potentid to be restored, through vocational, correctional, or therapeutic training or other corrective 

measures to a useful and constructive place in 

society. 

(A) In general. The trial counsel may 

present, by testimony or oral deposition in accordance with R.C.M. 702(g)(l), 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 offenses 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-exarnination." 

f. R.C.M. 1003(b)(2) is amended to read as follows: 

"(2) Folfeiture 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 

be based on the grade to which the accused is 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 

A25-22 

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)(1) 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, tom 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 physical pain and suffering" is accorded its common 

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)(l) 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 
HISTORICAL EXEiCUTlVE ORDERS 

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 

authority or that authority's staff judge advocate 

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." 

1. R.C.M. 1106(f)(7) is amended to read as follows: 

"(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 

the recommendation, however, the accused and 

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)(l) 

of this rule." 

Section 2. Part 111 of the Manual for Courts-Martial, United States, 1984, is amended as follows: 

a. Mil. R. Evid. 305(d)(l)(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 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 

charges." 

b. Mil. R. Evid. 305(e) is amended to read as follows: 

"(e) Presence of counsel. 

(1) Custodial interrogation. Absent a valid 

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)(l)(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)(l)(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)(l) 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 

evidence that the individual waived the right to 

counsel. 

(B) If an accused or suspect interrogated under 

circumstances described in subdivision (d)(l)(A) requests counsel, any subsequent waiver of the right to 

counsel obtained during a custodial interrogation 

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 

(ii) the accused or suspect has not 

continuously had his or her freedom restricted by 

confinement, or other means, during the period between the request for counsel and the subsequent 

A25-23 
APPENDIX 25 

waiver. 

(C) If an accused or suspect interrogated under 

circumstances described in subdivision (d)(l)(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 

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) 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 immediately adjoining the place of apprehension from 

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 CourtsMartial, United States. 1984, is amended as follows: 

a. Paragraph 44e(l) 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) Involuntary manslaughter. Dishonorable 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) Cam1 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 tlze 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 tlze 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." 
HISTORICAL EXECUTIVE ORDERS 

e. Paragraph 85e is amended to read as follows: 

"(e) Maximum punishment.Dishonorab1e discharge, 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 CourtsMartial 1004(c)(4) shall only to offenses committed 

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. 

THE WHITE HOUSE 

November 10,1994. 
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 

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, 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. 

The Manual shall be identified as "Manual for 

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 I1 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 ofA25-26 

fense 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 

"other trial" no sentence limitations apply if the 

original trial was invalid because a summary or special court-martial improperly tried an offense involving a mandatory punishment or one otherwise 

considered capital. 

(2) Pretrial agreement. If, after the earlier 

court-martial, the sentence was approved in accordance with a pretrial agreement and at the rehearing 

the accused fails to comply with the pretrial agreement, by failing to 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 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". 

d. R.C.M. 1003(b)(9) is deleted. 

e. R.C.M. 1003(b)(10), (113, and (12) are redesignated as subsections (9), (lo), 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." 
HISTORICAL EXECUTIVE ORDERS 

"(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 after it has been announced, and may increase the 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 

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 

the court-martial may propose that a sentence 

reached by the members be reconsidered. 

(1) Instructions. When a sentence has been 

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 

least a majority of the members vote for reconsideration. 

(B) With a view to decreasing. Members 

may reconsider a sentence with a view to decreasing 

it only if: 

(i) In the case of a sentence which includes death, at least one member votes to reconsider; 

(ii) In the case of a sentence which 

includes confinement for life or more than 10 years, 

more than one-fourth of the members vote to reconsider; or 

(iii) In the case of any other sentence, 

more than one-third of the members vote to reconsider. 

(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 the 

special court-martial resulted in findings of guilty 

but a bad-conduct discharge was not adjudged, the 

requirements of subsections (b)(l), (b)(2)(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) Summary courts-martial. The summary 

court-martial record of trial shall be disposed of as 

provided in R.C.M. 1305(d). Subsection (b)(l)(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"; 
- - - - 

APPENDIX 25 

1. R.C.M. 1106(d)(3)(B)-(E) are redesignated as 

subsections (C)-(F), respectively. 

m. R.C.M. 1107(d) is amended by adding a new 

subparagraph (3) as follows: 

"(3) Postponing sewice 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 

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 

foreign country under the authority of a mutual 

agreement or treaty, as the case may be. 

(C) As used in subsection (d)(3), the term 

"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. 1107(d)(3) is redesignated R.C.M. 

1 107(d)(4). 

o. R.C.M. 1107(e)(l)(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) Mod@cation 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 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 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 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. 11 12(f), suspend or 

remit any part of the sentence. The Secretary concerned and, when designated by the Secretary concerned, any Under Secretary, Assistant Secretary, 

Judge Advocate General, or commanding officer 

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 

previously approved the sentence." The 

"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. 11 13(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 convening authority, pursuant to Article 57(e), has 

postponed the service of a sentence to confinement"; 
HISTORICAL EXECUTIVE ORDERS 

s. R.C.M. 11 13(d)(2)(A)(iii) - (iv) are redesignated 

1 1 l3(d)(A)(iv) - (v), respectively. 

t. R.C.M. 1113(d)(5) is deleted. 

u. R.C.M. 1 11 3(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 

Review or by the Judge Advocate General under 

subsection (b)(l) of this rule, 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". 

w. R.C.M. 1305(d) is deleted. 

x. R.C.M. 1305(e) is redesignated as subsection (d). 

Section 3. Part I11 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 substantial preliminary showing that a government 

agent included a false statement knowingly and intentionally or with reckless disregard for the truth in 

the information presented to the authorizing officer, 

and if the allegedly false statement is necessary to 

the finding of probable cause, the defense, upon 

request, shall be entitled to a hearing. At the hearing, the defense has the burden of establishing by a 

preponderance of the evidence the allegation of 

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. 

(0 Action after motion for disclosure of infomuztion. 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 

unless the military judge authorizes such disclosure". 
APPE 

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) 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 subsection (F), below, the Government shall disclose government information for 

which a claim of privilege has been made to the 

accused, for the limited purpose of litigating, in 

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 illto evidence by the rnilitary 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 

subject to disclosure at the court-martial proceeding 

A25-30 

under this subsection if the party making the request 

demonstrates a specific need for information containing evidence that is relevant to the guilt or innocence or to punishment of the accused, and is 

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) 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; 
HISTORICAL EX:ECUTIVE ORDERS 

(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: 

"(i) Appeals of orders and rulings. In a courtmartial 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 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 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". 

f. M.R.E. 506(j) and (k) are redesignated as (k) and 

(l), respectively. 

Section 4. Part IV of the Manual for CourtsMartial, United States, 1984, is amended as follows: 

a. Paragraph 4.c. is amended by adding a new subparagraph (4) as follows: 

"(4) Voluntary abandonntent. It is a defense to an 

attempt offense that the person voluntarily and completely abandoned the intended crime, solely because 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, 

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), (S), and (6) are redesignated as 

subparagraphs (5), (6) and (7), respectively. 

c. Paragraph 30a.c(l), is amended to read as follows: 

"(1) Intent. "Intent or reason to believe" that the 

information "is to be used to the injury of the United 

States or to the advantage of a foreign nation" 

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 Ill-Drunken or reckless operation 

of a vehicle, aircraf, 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) 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, 

(b) was drunk or impaired, or 

(c) the alcohol concentration in the accused'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. 5 4. 

(2) Vessel. See 1 U.S.C. 5 3. 

(3) Aircraf. Any contrivance used or designed for transportation in the air. 

(4) Operates. Operating a vehicle, aircraft, 
APPENDIX 25 

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 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 heedless nature which made it actually or imminently 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 

accused would have committed involuntary manslaughter, 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 

A25-32 

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 matter, e7,idence of all the surrounding circumstances 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 aspect of the recklessness, and evidence that the 

vehicle exceeded a safe speed, at a relevant prior 

point and time, might be admissible as corroborating 

other evidence of the specific recklessness charged. 

Similarly, on a charge of drunken driving, relevant 

evidence of recklessness might have probative value 

as corroborating other proof of drunkenness. 

(d) Lesser included 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 1l&improper hazarding of a 

vessel 
HISTORICAL EX :ECUTIVE ORDERS 

(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 spec@cation. 

In that. (personal jurisdiction data), did (atlonboard-location) (subject-matter jurisdiction data, if required), on or about.. 

19, (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) 

(---.)I [an aircraft, to wit: (an AH-64 helicopter) (an F-14A fighter) (a KC-135 tanker)(-)] [a vessel, to wit: (the aircraft 

carrier (the Coast Guard Cutter) 

(---)I, [while drunk] [while impaired 

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 

(vehicle) (aircraft) (vessel) to (strike and) (injure)]. 

e. Paragraph 43.a.(3) is amended to read as follows: 

"(3) is engaged in an act which is inherently dangerous 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. Intentionally engaging in an act inherently dangerous to 

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 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 courtmartial may direct". 

i. Paragraph 45.b.(l) 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.(l)(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 consevt 

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 penetration will suffice. All the surrounding circumstances 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 

A25-33 
APPENDIX 25 

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) 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 reasonably to corrupt morals or incite libidinous thoughts. The language must violate community standards. See paragraph 87 if the 

communication was made in the physical presence 

of a child". 

1. 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 

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 circumA25-34 

stances 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 speczjication. 

In that (personal jurisdiction data), did, 

(atJon board--location) (in a hostile fire pay zone) on 

or about 19 (a time of war,) intentionally injure himself/herself by (nature 

and circumstances of 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. 
HISTORICAL EXECUTIVE ORDERS 

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 effect as if these amendments had not 

been prescribed. 

THE WHITE HOUSE 

May 12, 1995 
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 I1 of the Manual for Courts-Martial, is amended as follows: 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 cornmander. 

(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, 

within 24 hours after that commitment, cause 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 confinement will continue. A commander's compliance 

A25-36 

with this subsection may also satisfy the 48-hour 

probable cause determination of subsection R.C.M. 

305(i)(l) 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)(l), 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 pretrial confinement unless the commander believes 

upon probable cause, that is, upon reasonable 

grounds, that: 

(i) An offense triable by a court-martial 

has been committed; 

(ii) The prisoner committed it; and 

(iii) Confinement is necessary because it 

is foreseeable that: 

(a) The prisoner will not appear at 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 

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 for-
HISTORICAL EXECUTIVE ORDERS 

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-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 

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 

memorandum submitted by the prisoner's commander under subsection (h)(2)(C) of this rule. Additional written matters may be considered, 

including any submitted by the accused. The prisoner and the prisoner's counsel, if any, shall be 

allowed to appear before the 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 ofSicer. Upon 

completion of review, the reviewing officer shall 

approve continued confinement or order immediate 

release. 

@) 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. 

(i) Review by militaly judge. Once the charges for 

which the accused has been confined are referred to 

trial, the military judge shall review the propriety of 

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'.; 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)(l) 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 

A25-37 
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 

discretion or unusually harsh circumstances. This 

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, 

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 

forfeitures or a like amount of fine. The credit shall 

not be applied against any other form of 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 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." 

c. R.C.M. 706(c)(2)@) is amended to read as follows: 

"@) 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@)(3) is amended by adding subsection (E) which reads as follows: 

"(E) Commitment of the incompetent accused. 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 

A25-38 

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." 

e. R.C.M. 707(c) is amended to read as follows: 

"(c) Excludable delay. All periods of time during 

which appellate courts have issued stays in the 

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)(l) 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 courtmartial the contempt proceedings shall be conducted; however, if the court-martial is composed of 

members, the military judge shall conduct the contempt proceedings outside the members' presence. 

The military judge may punish summarily under 

subsection (b)(l) 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. 
HISTORICAL EXEICUTIVE ORDERS 

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." 

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 

she is unable to understand the nature of the 

proceedings against them or to conduct or cooperate 

intelligently in the defense of the case. 

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

contrary is established. 

(c) Determination before referral. If an inquiry 

pursuant to R.C.M. 706 conducted before referral 

concludes that an accused is suffering from a mental 

disease or defect that renders him or her mentally 

incompetent to stand trial, 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 afer 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 

mentally incompetent to stand trial, the military 

judge shall conduct a hearing to determine the mental capacity of the accused. Any such hearing shall 

be conducted in accordance with paragraph (e) of 

this rule. 

(e) 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 

case. In making this determination, the military 

judge is not bound by the rules of evidence except 

with respect to privileges. 

(3) If the military judge finds the accused is 

incompetent to stand trial, the judge shall report this 

finding to the general court-martial convening authority, who shall commit the accused to the custody 

of the Attorney General. 

(f) Hospitalization of the accused. An accused 

who is found incompetent to stand trial under this 

rule shall be hospitalized by the Attorney General as 

provided in section 4241(d) of title 18, United States 

Code. If notified that the accused has recovered to 

such an extent that he or she is able to understand 

the nature of the proceedings and to conduct or 

cooperate intelligently in the defense of the case, 

then the general court-martial convenjng 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 proot 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 

A25-39 
mistake of fact as to age in a carnal knowledge 

prosecution by a preponderance of the evidence." 

k. R.C.M. 916(i) is amended to read as follows: 

"(i) 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 

other element requiring only general intent or 

knowledge, the ignorance or mistake must have existed in the mind of the accused and must have been 

reasonable under all the circumstances. However, if 

the accused's knuwledge 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 

prove this defense by a preponderance of the evidence." 

1. 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 as to age in a carnal knowledge 

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 statement of the maximum authorized 

A25-40 

punishment that may be adjudged and of the mandatory minimum punishment, if any; 

(2) A statement of the effect any sentence announced including a punitive discharge and 

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 aggravation, whether introduced before or after 

findings, and matters introduced under R.C.M. 

1001(b)(l), (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 restraint; deferment of confinement, forfeitures and 

reduction in grade; waiver of Article 58b forfeitures" 

o. R.C.M. 1101(c) is amended as follows: 

'yc) 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) Wlzo 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 .i sentence to confinement, forfeitures, or 

reduction in 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 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 
HISTORICAL EXECUTIVE ORDERS 

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 convicted; the sentence adjudged; the command'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 authority acting on the deferment request shall be 

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) Orders. The action granting deferment shall 

be reported in the convening authority's action under 

R.C.M. 1107(f)(4)(E) and shall include the date of 

the action on the request when it occurs prior to or 

concurrently with the action. Action granting deferment after the convening authority's action under 

R.C.M. 1107 shall be reported in orders under 

R.C.M. 1114 and included in the record of trial. 

(5) Restraint wlzen 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. 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) 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. 

(7) Rescission of deferment. 

(A) Who may rescind. The authority who 

granted the deferment or, if the accused is no longer 

within that authority's jurisdiction, the officer exercising general court-martial jurisdiction over the 

command to which the accused is assigned, may 

rescind the deferment. 

(B) Action. Deferment of confinement, 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) 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 ol 

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 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 

convening authority's action shall be reported in 

supplementary orders in accordance with R.C.M. 

11 14 and shall state whether the approved period of 

confinement is to be executed or whether all or part 

of it is to be suspended." 
APPENDIX 25 

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) 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 members, whether the accused requested waiver, any 

debts owed by the accused, the ability of the accused's family members to find employment, and 

the availability of transitional compensation for 

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 


guilty only by reason of lack of mental responsibil- 


ity 

(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 exarnination and 

report. Prior to the hearing, the military judge or 

convening authority shall order a psychiatric or psychological examination of the accused, with the 

resulting psychiatric or psychological report transmitted to the military judge for use in the post-trial 

hearing. 

(c) Post-triai 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 

A25-42 

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." 

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) Portions or suinlnaries of the record and 

copies of documentary evidence offered or introduced at trial; 

(C) Matters in mitigation that were not available for consideration at the court-martial; and 

(D) Clemency reco~nmendations by any 

member, the military judge, or any other person. The 

defense may ask any person for such a recommendation." 

s. R.C.M. 1107(b)(4) is amended to read as follows: 

"(4) When proceedings reszilted in a finding of 
HISTORICAL EXEiCUTlVE ORDERS 

not guilty or not guilty only by reason of lack of 

mental responsibility, or there was a ruling amounting to n 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." 

t. The subheading for R.C.M. 1107(d)(3) is 

amended to read as follows: 

"(3) Deferring service of a sentence to confinement." 

u. R.C.M. 1107(d)(3)(A) is amended to read as follows: 

"(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." 

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) 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. 

(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) 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 may order pretrial restraint under R.C.M. 

304(b) may order confinement of a probationer 

under a suspended sentence to confinement. 

(3) Basis for confinement. A probationer under 

a suspended sentence to confinement may be ordered into confinement upon probable cause to believe the probationer violated any conditions of the 

suspension. 

(4) Review of confinement. Unless proceedings 

under subsection (d)(l), (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 prelimninary 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 IJnited 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. 

A25-43 
APPENDIX 25 

(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 probationer's commander and forward a copy to the 

probationer and the officer in charge of the confinement facility. 

(d) Vacation of suspended general court-martial 

sentence. 

(1) Action by oficer having special court-murtial 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)(l) of this rule. In such cases, subsection 

(d)(l)(D) of this rule shall not apply. 

(B) Notice to probationer. k3efore the hearing, the officer condiicting 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 

hearing shall follow that prescribed in R.C.M. 

405(g), (h)(l), and (9. 

(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 con$nement. 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)(l)(D) of this rule. 

(2) Action by ofSicer exercising general court- 

~nartial 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 courtmartial 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 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) Execution. Any unexecuted part of a 

suspended sentence ordered vacated under this sub- 

~ection shall, subject to R.C.M. 1113(c), be ordered 

executed. 

(e) Vacation of a suspended special court-martial 

sentence wherein a bad-condrrct 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 courtmartial convening authority for the command in 

which the probationer is serving or assigned shall 

cause a hearing to be held on the alleged violation(s) 
HISTORICAL EXECUTIVE ORDERS 

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)(l)(B) of this rule. 

(3) Hearing. The procedure for the vacation 

hearing shall follow that prescribed in R.C.M. 

405(g), (h)(l), and (9. 

(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) 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 tlmt 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 courtmartial convening authority for the command in 

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)(l)(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)(l), 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 

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." 

w. 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 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 

subsection (b)(l) of this rule. 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 

A25-45 
APPENDIX 25 

the accused, or the appropriateness of the sentence." 

x. R.C.M. 1203(c)(l) 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 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." 

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 111 of the Manual for Courts-Martial, United States, is amended as follows: 

a. M.R.E. 412 is amended to read as follows: 

"Rule 412. Nonconsensual sexual offenses; relevance 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 

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 

A25-46 

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 adinissibility. 

(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 

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 

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 
HISTORICAL EXEC UTIVE ORDERS 

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 

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) 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) 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 

contact" means the intentional touching, either 

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 

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 

A25-47 
APPENDIX 25 

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, oi 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 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 slighi, 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 

contact" means the intentional touching, either 

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; 

A25-48 

(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, 

unless action to the contrary is taken by the President." 

Section 3. Part IV of the Manual for CourtsMartial, 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 front 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 fled from the 

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 
HISTORICAL EXECUTIVE ORDERS 

(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 herself 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 

herself from confinement before being released by 

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) Authority to apprehend. See R.C.M. 

302(b) concerning who may apprehend. Whether the 

status of a person authorized that person to apprehend the accused is a question of law to be decided 

by the military judge. Whether the person who attempted to make an apprehension had such a status 

is a question of fact to be decided by the factfinder. 

(c) Nature of the resistance. The resistance must be active, such as assaulting the person 

attempting to apprehend. 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) Authority to order arrest. See 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 cornrnitted when the person in arrest infringes the limits set 

by orders. The reason for the infringement is imrnaterial. For example, innocence of the offense with 

respect to which an arrest may have been imposed is 

not a defense. 

(e) Illegal arrest. A person may not be 

convicted of breaking arrest if the arrest is illegal. 

An arrest ordered by one authorized to do so is 

presumed to be legal in the absence of some evidence to the contrary. Ordinarily, the legality of an 

arrest is a question of law to be decided by the 

military judge. 

(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 (l)(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 

A25-49 
APPENDIX 25 

an apprehension is a question of law to be decided 

by the military judge. 

(e) Correctional custody. See paragraph 

70. 

(5) Escape front confinement. 

(a) Confinement. Confinement is physical 

restraint imposed under R.C.M. 305, 1101, or paragraph 5b, Part V, MCM. For purposes of the element of post-trial confinement (subparagraph 

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 without force or artifice, and either with or without the consent of the custodian. However, where a 

prisoner is released by one with apparent authority 

to do so, the prisoner may not be convicted of escape from confinement. See also paragraph 

20c.(l)(b). Any completed casting off of the restraint 

of confinement, before release 'by proper authority, 

is an escape, and lack of effectiveness of the restraint imposed is immaterial. An escape is not complete until the prisoner is momentarily free from the 

restraint. If the movement toward escape is opposed, 

or before it is completed, an immediate pursuit follows, there is no escape until opposition is overcome 

or pursuit is 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 means to prevent that prisoner from escaping, remains in confinement. 

(e) Legality of confinement. A person may 

not be convicted of escape from confinement if the 

confinement is illegal. Confinement ordered by one 

authorized to do so is presumed to be lawful in the 

absence of evidence to the contrary. Ordinarily, the 

legality of confinement is a question of law to be 

decided by the military judge. 

d. Lesser included offenses. 

(1) Resisting apprehension. Article 128-assault; assault consummated by a battery 

(2) Breaking arrest. 

A25-50 

(a) Article 134--breaking restriction 

(b) Article 80-attempts 

(3) Escape from custody. Article 80-attempts 

(4) Escape from confinemeitt. Article 80- 

attempts 

e. Maximum punishment. 

(1) Resisting apprehension. Bad-conduct discharge, 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 fror~t 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 l year. 

(5) Escape from post-ttinl confinement. Dishonorable discharge, forfeiture of all pay and 

allowancrs, and confinement for 5 years. 

f. Sample specifications. 

(1) Resisting apprehension. 

In that (personal jurisdiction data), did (adon board-location) (subject-matter jurisdiction data, if required), on or about 

19--, resist being apprehended by 

(an armed force policeman) ), a person 

authorized to apprehend the accused. 

(2) Flight from apprehension. 

In that (personal jurisdiction data), did (adon board-location) (subject-matter jurisdiction data, if required), on or about ~. 

19-, flee apprehension by ~-(an armed 

force policeman) ), 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, (adon 

board-location) on or about 19 

break said arrest. 

(4) Escape from custody. 

In that ~ (personal jurisdiction data), did, (atlon board-location) (subject-matter ju- 
HISTORICAL EXECUTIVE ORDERS 

risdiction data, if required), on or about---- 

19, escape from the custody of a 

person authorized to apprehend the accused. 

(5) Escape from con$nement. 

In that_.--.. (personal jurisdiction data), having been placed in (post-trial) confinement in 

(place of confinement), by a person authorized to 

order said accused into confinement did, (atJon 

board-location) (subject-matter jurisdiction data, if 

required), on or about 19, escape 

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 residence requirement stating where and 

with 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 court-martial sentence. In return for giving his 

or her "word of honor" to abide by a parole plan and 

conditions of parole, the prisoner is granted parole. 

d. Lesser included oflense. Article 80-attempts. 

e. Maximum punishment. Bad-conduct discharge, confinement for 6 months, and forfeiture of 

two-thirds pay per month for 6 months. 

f. Sar?zple specification. 

In that -(personal jurisdiction data), a prisoner on parole, did, (atfon board-location), on or about 19 violate the 

conditions of histher parole by--" 

c. Paragraph 45.a and b are amended to read as 

follows: 

"45. Article 12GRape 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)(l) 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)(l) 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 

A25-51 
APPENDIX 25 

done by force and without consent. 

(2) Camal 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 

(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) Camal knowledge. "Carnal knowledge" 

is sexual intercourse under circumstpnces 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, however, 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. 

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 carnal knowledge prosecutions is effective in 

all 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) 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 begm 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 

effect as if these amendments had not been 

prescribed. 

THE WHITE HOUSE 

May 27, 1998 
Subject Ref. Page 

Abandoned property. seizure of ......................... Mil. R. Evid. 316(d)(l) .......... 
 Abandoned property of enemy. offenses concerning ........ IV. Para. 27 .................... 
 Abandoning guard or watch ............................ N.Para. lOb(4) ................ 
 See also Sentinel or lookout . Abandonment or surrender of command. military property. 

place. unit or ship 

Shamefully ........................................ IV. Para. 23 .................... 
 Subordinate compelling .............................. IV. Para. 24 .................... 
 Abettor ...............................................IV. Para. la(l), b(1) ............. See also Principals. Absence 

Accused's 


After trial substitute service ...................... R.C.M. 1104(b)(l)(C) ............ 
 During pretrial conference ....................... R.C.M. 802(d) .................. 
 During pretrial investigation ...................... R.C.M. 405@)(4) ................ 
 During trial ....................................K.C.M. 804 .................... 
 Speedy trial. effect on .......................... R.C.M. 707 (c)(l) ............... 
 Defense counsel. during trial ......................... R.C.M. 805(c) .................. 
 Members ..........................................R.C.M. 805(b) .................. 
 Military judge .....................................R.C.M. 805(a) .................. Trial counsel. during trial ............................R.C.M. 805(c) .................. Absence without leave ..................................IV. Para. 10 .................... See also Desertion 

Accessory 

After the fact ...................................... IV. Para. 2 ..................... 
 Before the fact .....................................IV. Para Ib(1) .................. 
 Accident 

As defense ........................................R.C.M. 916(f) .................. 
 Fleeing scene of ...................................IV. Para. 82 .................... 
 Accomplices 

See also Conspiracy; Joint trial; Principals. Co-conspirators .....................................IV. Para 5c .................... 
 Joint charge .......................................R.C.M. 307(c)(5) ................ 
 Accused 

See nlso specitic topics . Absence of 


After trial substitute service ...................... R.C.M. 1104(b)(l)(C) ............ 
 During pretrial conference ....................... R.C.M. 802(d) .................. 
 During pretrial investigation ...................... R.C.M. 405(h)(4) ................ 
 During trial ....................................R.C.M. 804 .................... 
 Speedy trial. effect on .......................... R.C.M. 707(c)(l) ................ 
 Action. service of ..................................R.C.M. 1107(h) ................. 
 Announcement of presence in court ................... R.C.M. 813(a)(2) ................ 
 Appearance of. at trial ..............................R.C.M. 804(c)(l) ................ 
 Appellate rights. advice 


By defense counsel .............................R.C.M. 502(d)(6) ................ 
 By military judge .............................. R.C.M. 1010 ................... 
 Character evidence .................................. Mil. R. Evid. 404(a)(l). (b) ...... 
 Charges 


Notification of .................................R.C.M. 308 .................... 
 Service of ..................................... R.C.M. 602 .................... 
 Compositioli of court.martial. elections ................ R.C.M. 903 .................... 
 Conferences 


Presence at ....................................R.C.M. 802(d) .................. 
 Rights at ......................................R.C.M. 802(~).................. 
 Counsel 


See also Counsel; Defense counsel . Explanation at trial of right to ................... R.C.M. 901(d)(4) ................ 
 Rights to 


See also Self.Incrimination. 
 Appellate counsel ...............................R.C.M. 1202(b)(2) ............... 
 At general or special court-martial ................ R.C.M. 506 .................... 
 At interrogations ............................... Mil. R. Evid. 305(d). (e) ......... 


Index 1 

INDEX 

Subject Ref. 
 Other trial. ordering ................................R.C.M. 1 107(e)(2) ............... 
 Pretrial agreement. effect of .......................... R.C.M. 705(b)(2)@) ............. 
 Rehearing. ordering ................................. R.C.M. 1107(c)(2)(B), 


(e)(l). (f)(5) .................. 
 Sentence. action on .................................R.C.M. 1 107(d). (f)(4) ............ 
 Service on accused .................................R.C.hl. 1107(h) ................. 
 Suspension of sentence ..............................R.C.M. 1108 ................... 
 When taken .......................................R.C.M. 1107(b)(2) ............... 
 Who may take .....................................R.C.M. 1107(a) ................. 
 Withdrawal of .....................................R.C.M. 1107(f)(2) ............... 
 Additional charges .....................................R.C.M. 307(c)(2) ................ Adequate interest to challenge search and seizure ........ Mil. R. Evid. 311(a)(2) .......... Adjournment of courts-martial 

Generally ..........................................R.C.M. 1011 ................... 
 Sessions after ......................................R.C.M. 803; 1102 ............... 
 Administrative action. to dispose of offense ............... R.C.M. 306(c)(2) 


V. Para. ld(1) ................ Administrative proceeding. wrongful interference with ...... IV. Para. 96a ................... Admissions. See Self~incrimiiation. Admonition 

Of court.martial. member. military judge. or counsel .... R.C.M. 104(a)(l) ................ 
 Punishment. nonjudicial .............................. V. Para. 5c(l) .................. 
 Adultery ..............................................IV. Para. 62 .................... Advice. pretrial 

Contents ..........................................R.C.M. 406(b) .................. 
 Distribution ........................................R.C.M. 406(c) .................. 
 General court.martia1. requirement for ................. R.C.M. 601(d)(2)(B) ............. 
 Motion concerning ..................................R.C.M. 905(b)(l); 


906(b)(3) ..................... 
 Responsibility for ...................................R.C.M. 406(a) .................. 
 Waiver ............................................R.C.M. 601(d)(2)(B) ............. 
 When required .....................................R.C.M. 406(a) .................. 
 Affidavits 

Character of accused. proof by ....................... Mil. R. Evid. 405(c) ............. 
 Sentencing proceedings .............................. R.C.M. 1001(~)(3) ............... 
 Affirmation 

See also Oaths. Oath. included in ...................................R.C.M. 807(a) .................. Afirmative defenses . See Defenses. Aggravated assault . See Assault. Aggravating circumstances. capital cases ................. R.C.M. 1004(~) ................. See also Capital case . Aggravation. evidence in ...............................R.C.M. 1001(b)(4) ............... Agreement 

Pretrial. See Pretrial agreement . To commit offense . See Conspiracy. Aider and abettor .....................................IV. Para. 1 ..................... See also Principals. Aiding the enemy 

Attempts ..........................................IV. Paras. 4c(5)(d); 28 ........... 
 Generally ..........................................N. Para. 28 .................... 
 Aircraft. See Jet. 
 Aircraft carrier . See Vessel. 
 Alcohol. See Drunk; Intoxication . 
 Alibi 


Failure to disclose. effect of ......................... R.C.M. 701(g)(3) ................ Notice of. by defense ............................... R.C.M. 701(b)(l) ................ Notice of rebuttal witnesses by trial counsel ........... R.C.M. 701(a)(3)(B) ............. Withdrawal after disclosure. effect of .................. R.C.M. 701(b)(5) ................ Amending charges and specifications .................... R.C.M. 603 .................... See also Charges and specifications. 

Ammunition. casting away .............................. IV. Para 23 .................... Amphetamines. See Controlled substances. offenses involving . Analysis 

MCM.1998 

Page 


11-152 


11-69 


11-136 


11-77;139 


11-26; V-i 


IV-116 


11-5 


V-5 


IV-96 


11-40 


II4O 


11-53 


II-82; 11-95 


11-40 


11-53 


II-40 


II-19 


11-123 


11-81 


11-129 


11-122 


IV-1 


N-5; N-41 


IV-41 


11-59 


11-58 


11-57 


11-59 


11-55; 11-55 


IV-33 


Index 3 


INDEX 

Subject Ref. Page 

Motions ...........................................R.C.M. 801(a)(3) ................ ii-74 

Sentence ..........................................R.C.M. 1001(g) ................. II-124 


Statement. opening .................................. R.C.M. 913(b) .................. 11-107 


Armed forces. defined .................................. R.C.M. 103(20) ................. 11-2 

Arms. casting away ....................................IV. Para. 23 .................... 1v-33 

Arraignment 

Accused. presence required at ........................ R.C.M. 804 .................... 
 Additional charges. effect on referral of ............... R.C.M. 601(e)(2) ................ 
 Amending charges. effect on ......................... R.C.M. 603(b). (c) .............. 
 Generally ..........................................R.C.M. 904 .................... 
 Arrest 

Attachment of jurisdiction. effecting ................... R.C.M. 202(c)(2) ................ 
 Breaking ..........................................IV. Para. 19 .................... In quarters. as nonjudicial punishment ................. V. Para. 5b(l)(B)(i), c(3) ......... Members. disqualification while in .................... R.C.M. 912(Q(l)(L) ............. Pretrial 

See also Restraint. pretrial. 
 Defined .......................................R.C.M. 304(a)(3) ................ 
 Duties inconsistent with ......................... R.C.M. 304(a)(3) ................ 
 Grounds for ...................................R.C.M. 304(c) .................. 
 Notice to persons in ............................ R.C.M. 304(e) .................. 
 Procedure .....................................R.C.M. 304(d) .................. 
 Punishment prohibited ...........................R.C.M. 304(f) .................. 
 Release from 


Authority to grant ............................ R.C.M. 304(g) .................. 
 When required ...............................R.C.M. 707(d) .................. 
 Speedy trial. effect on .......................... R.C.M. 707(b)(l), (2) ............ 
 Who may order ................................ R.C.M. 304(b) .................. 
 Unlawful. as offense ................................IV. Para. 21 .................... 
 Arson 


See also Burning with intent to defraud . 
 Aggravated ........................................IV. Para 52 .................... 
 Murder while committing ........................IV. Para. 43 .................... 
 Assault with intent to commit ........................ IV. Para. 64 .................... 
 Simple arson ...................................... IV. Para. 52 .................... 
 Article 15.See Noqjudicial punishment . 
 Article 32. See Investigation. pretrial . 
 Article 39(a) session ...................................R.C.M. 803 .................... 
 Assault 


Aggravated ........................................ IV. Para. 54 .................... 
 Attempts .......................................... IV. Paras. 4c(5)(e); 54 ........... 
 Battery ............................................ IV. Para. 54 .................... Child. as victim .................................... IV. Para. 54 .................... Commissioned officer. as victim 

In execution of office ...........................IV. Para. 14 .................... 1v-18 


Not in execution of office ....................... IV. Para. 54 .................... 1v-80 


Of a friendly foreign power ..................... IV. Para. 54e(3) ................ 1v-85 


Defense of another ................................. R.C.M. 916(e)(5) ................ II-I 11 


Indecent ........................................... IV. Para. 63 .................... 1v-97 


Law enforcement official. as victim ................... IV. Para. 54 .................... 1v-81 


Maiming ..........................................IV. Para. 50 .................... 1v-77 


Noncommissioned. petty. or warrant officer. as victim 


In execution of office ........................... IV. Para. 15 .................... 
 Not in execution of office ....................... IV. Para. 54 .................... 
 Self-defense........................................ R.C.M. 916(e) .................. 
 Sentinel or lookout. as victim ........................ IV. Para. 54 .................... Simple assault ..................................... IV. Para. 54 .................... murder. rape. robbery. sodomy. or voluntary 

manslaughter ..................................... IV. Para. 64 ............... 
 Assembly of court-martial 

Announcement of ................................... R.C.M. 901(b); 911 ............. 
 Effect on 

Changing members .............................R.C.M. 505(c) .................. Changing military judge ......................... R.C.M. 505(e) .................. 

MCM. 1998 

Index 5 
MCM. 1998 INDEX 

Subject Ref . Page 

Enlisted members. request for .................... R.C.M. 903(a)(l). (d) ............ 11-90; ii-91 

Military judge alone. request for trial by .......... R.C.M. 903@)(2). (d) ............ 11-90; ii-91 

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) ............. 
 Attempts 


Aiding the enemy (Art . 104. UCMJ) .................. IV. Paras. 4c(5)(d); 28 ........... 
 Assault (Art . 128. UCMJ) ........................... IV. Paras. 4c(5)(e); 54 ........... 
 Desertion (Art . 85. UCMJ) .......................... IV. Paras. 4c(5)(a); 9 ............ 
 Generally (Art . 80. UCMJ) .......................... IV. Para. 4 ..................... 
 Mutiny (Art . 94. UCMJ) ............................IV. Paras. 4c(5)(b); 18 ........... 
 Subordinate compelling surrender (Art . 100. UCMJ) ..... IV. Paras. 4c(5)(c); 24 ........... 
 Attorney. See Counsel; Defense counsel; Trial counsel . Attorney-Lent relationship 

See also Counsel; Defense counsel . Availability of individual military counsel. effect on ..... R.C.M. 506(b)(2) ................ 
 Change of defense counsel. effect on ................. R.C.M. 505(d)(2) ................ 
 Privileged communications ........................... Mil. R. Evid. 502 ............... 
 Attorney General. grants of immunity ................... R.C.M. 704(c)(l), (2) ............ Authentication of 

Evidence ..........................................Mil. R. Evid. 901; 902 .......... 
 See also Evidence. Authentication and identification . 
 Promulgating orders .................................R.C.M. 1114(e) ................. 
 Record of trial 


Certificate of correction ......................... R.C.M. 1104(d) ................. 
 Examination preceding .......................... R.C.M. 1103(i) ................. 
 Generally ......................................R.C.M. 1104 ................... Summary courts-martial .......................... R.C.M. 1305(c) ................. 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) 


Summary courts-martial. not subject to trial by ......... R.C.M. 1301(c) ................. 
 Bad checks . See Checks. Bad-conduct discharge 

Multiple offenses. authorizing ........................ R.C.M. 1003(d)(3) ............... 
 Prior convictions authorizing ......................... R.C.M. 1003(d)(2) ............... 
 Punishment. generally ...............................R.C.M. 1003(b)(lO)(C) ........... 
 Special courts-martial. power to adjudge ............... R.C.M. 201(f)(2)(B) ............. 
 Summary courts-martial. power to adjudge ............. R.C.M. 1301(d) ................. 
 Bailiff 

Detailing .......................................... R.C.M. 501(c) .................. 
 Disqualification of ..................................R.C.M. 502(e)(2) ................ 
 Duties ............................................R.C.M. 502(e)(3)(C) ............. 
 Qualifications 


Generally ......................................R.C.M. 502(e)(l) ................ 
 Lack of. action on .............................R.C.M. 502(f) .................. 
 Battery. See Assault. Best evidence . See Evidence. Contents of writings. recordings. 

and photographs . Bias 

Ground for challenge of 


Member ...................................... R.C.M. 912(f)(l)(N) ............. 
 Military judge .................................R.C.M. 902(a). (b)(l) ............ 
 Impeachment of witness .............................Mil. R . Evid. 608(c) .............
 Bigamy ...............................................IV. Para. 65 .................... Bill of particulars .....................................R.C.M. 906@)(6) ................ 
 Blasting caps. included in explosives ..................... R.C.M. 103(11) ................. 
 Blood extraction. as evidence ............................ Mil. R. Evid. 312(d) ............ 
 Board, sanity .See Mental capacity; Mental responsibility . 
 Boat.See Ship. 
 Boat.See Vessel. 
 Bodily harm .See Assault. 


Index 6 

MCM. 1998 INDEX 

Subject Ref . Provoking speech and gestures. distinguished ........... IV. Para. 42c(l) ............. Certificate of correction ................................ R.C.M. 1104(d) .............. Challenges 

Control of. by military judge ........................ R.C.M. 801(a)(3) ................ Members 

For cause .....................................R.C.M. 912(f) .................. Generally ......................................R.C.M. 912 .................... 
 Peremptory ....................................R.C.M. 912(g) .................. 
 Presence of members during ..................... R.C.M. 805(b) .................. 
 Special court-martial without military judge ........ R.C.M. 91201) .................. 
 Military judge .....................................R.C.M. 902 .................... 
 Change of venue ......................................R.C.M. 906(b)(ll) ............... Chaplains. privileged communications ..................... Mil. R. Evid. 503 ............... Character. evidence . See Evidence. Character evidence; 

Resentencing procedure . Charges and specifications 

See also specific offenses . 
 Additional charges ..................................R.C.M. 307(c)(2)(B) ............. 
 Amendment of .....................................R.C.M. 603 .................... 
 Bill of particulars ..................................R.C.M. 906(b)(6) ................ 
 Charge Sheet ......................................Appendix 4 .................... Definitions 

Charge ........................................R.C.M. 307(c)(2) ................ Specification ...................................R.C.M. 307(c)(3) ................ 
 Dismissal of 

By commander .................................R.C.M. 306(c)(l); 401(c)(l) ....... By military judge .............................. R.C.M. 907 .................... Speedy trial ...................................R.C.M. 707(b)(2). (c) ............ 
 Disposition of ......................................R.C.M. 401 .................... 
 Duplicious .........................................R.C.M. 906(b)(5) ................ 
 Error in citation. effect of ...........................R.C.M. 307(d) .................. 
 Failure to state offense ..............................R.C.M. 907(b)(l)(B) ............. 
 Findings ..........................................R.C.M. 918(a) .................. 
 Fomat ............................................ R.C.M. 307(c)(l); Appendix 4 .... 
 Forwarding ........................................R.C.M. 401(c)(2) ................ 
 Investigation of . See Investigation, pretrial . 
 Joinder of .........................................R.C.M. 307(c)(4); 601(e)(2) ....... 
 Joint offenders .....................................R.C.M. 307(c)(5); 601(e)(3) ....... 
 Lesser included offenses . See Findings; Lesser included 


offenses. Motions as to defects in ............................R.C.M. 905(b)(2); 906(b)(4). (5). (6) 

Multiple offenders ..................................R.C.M. 307(c)(5) ................ Multiple offenses ...................................R.C.M. 307(c)(4) ................ Multiplicious .......................................R.C.M. 307(c)(4); 1003(c)(l)(C) ... Notification to accused of ........................... R.C.M. 308 .................... Papers. accompanying. discovery of ................... R.C.M. 701(a)(l) ................ Preemption ........................................R.C.M. 307(c)(2)(C) ............. Referral. See Preferral of charges . Reading of. as part of arraignment .................... R.C.M. 904 .................... Referral. See Referral of charges . Service of .........................................R.C.M. 602 .................... Severance of .......................................R.C.M. 905(b)(5) ................ 
 Staff judge advocate. advice as to .................... R.C.M. 406 .................... 
 Statute of limitations. tolling ......................... R.C.M. 403(a) .................. 
 War. effect on disposition of ......................... R.C.M. 401(d); 407(b) ........... 
 Withdrawal of .....................................R.C.M. 604 .................... 
 Pursuant to pretrial agreement .................... R.C.M. 705(b)(2)(C) ............. 
 Checks 

Dishonorable failure to maintain funds ................. IV. Para. 68 .................... Forged ............................................IV. Para. 48 .................... Making. drawing. or uttering check. draft. or order 

without sufficient funds ........................... IV. Para. 48a ................... 
 Child 

Assault consummated by battery on ................... IV. Para. 54b(3)(c) ........ 


Page 

iv-62 

11-145 

Index 8 






INDEX MCM. 1998 

Subject Ref. Page 

Individual counsel. effect of ..................... R.C.M. 506(b)(3) ................ 11-5 1 

Oath ..........................................R.C.M. 807(b)(l) ................ 11-8 1 

Qualifications ..................................R.C.M. 502(d)(2) ................ 11-43 

Change of 

Announcement .................................R.C.M. 813(c) .................. Grounds .......................................R.C.M. 505(d)(2); 506(b)(3). (c) ... Procedure .....................................R.C.M. 505(b) .................. Civilian 

Accused's right to 

Appellate review .............................R.C.M. 1202 ................... Court-martial .................. ............. R.C.M. 506 .................... During interrogation ........................... Mil. R. Evid. 305(d)(2) .......... Pretrial confinement ........................... R.C.M. 305(e)(3) ................ Pretrial investigation ..........................R.C.M. 405(d)(2)(C) ............. Advice to accused at trial concerning right to ...... R.C.M. 901(d)(4)(A) ............. Disqualification. action on ....................... R.C.M. 901(d)(3) ................ Qualifications ..................................R.C.M. 502(d)(3) ................ Deposition. detailed or assigned for ................... R.C.M. 702(d)(2) ................ Detailed 

Accused's right to .............................. R.C.M. 506(a) .................. Change of .....................................R.C.M. 505(a). (b). (d)(2) ........ Defined .......................................R.C.M. 103(10) ................. Different armed force. counsel from ............... R.C.M. 503(c)(3) ................ Disqualification. action on ....................... R.C.M. 901(d)(3) ................ Duties ........................................R.C.M. 502(d)(6) ................ Excusal .......................................R.C.M. 505(d)(2); 506(c) ......... General court-martial ............................R.C.M. 501(b) .................. Individual military counsel. effect of 

Generally ......................................R.C.M. 506(b)(3) ................ Investigation. pretrial ............................ R.C.M. 405(d)(2)(B) ............. Investigation. pretrial. right to ........................ R.C.M. 405(d)(2)(A) ............. Motion to retain 

Generally ......................................R.C.M. 506(b)(3) ................ Preserved for record ............................R.C.M. 906(b)(2) ................ When made ...................................R.C.M. 905(b)(6) ................ Orders ............................................R.C.M. 503(c)(2) ................ Pretrial confinement. right to ......................... R.C.M. 3050 .................. Qualifications of ....................................R.C.M. 502(d)(l) ................ Special court-martial ................................R.C.M. 501(b) .................. Withdrawal ........................................R.C.M. 505(d)(2)(B); 506(c) ...... Disqualification .....................................R.C.M. 502(d)(4); 901(d)(3) ...... Duties ............................................R.C.M. 502(d)(6) ................ Evaluation of ......................................R.C.M. 104(b)(l) ................ Identification. right to at ............................ Mil . R . Evid . 321(b)(2) .......... Individual military counsel 

Accused's right to request ....................... R.C.M. 506(a) .................. Advice at trial to accused concerning right to ...... R.C.M. 901(d)(4) ................ Attorney-client relationship affecting right to ....... R.C.M. 506(b)(2) ................ Availability to act as ........................... R.C.M. 506(b)(l), (2) ............ Detailed counsel. excusal of ..................... R.C.M. 506(b)(3) ................ Investigation. pretrial. right to at .................. R.C.M. 405(d)(2)(B) ............. Motion on request for ........................... R.C.M. 905(b)(6) ................ Pretrial confinement. no right to .................. R.C.M. 305(f) .................. Request for ....................................R.C.M. 506(b)(2) ................ Qualifications of ................................ R.C.M. 502(d)(3) ................ Interrogation. right to ............................... Mil. R. Evid. 305(d), (e) ......... Member. ineligible to serve as ....................... R.C.M. 912(f)(l)(E) ............. Military judge. disqualified to act as .................. R.C.M. 902(b)(2) ................ Nonlawyer presence at counsel table .................. R.C.M. 506(e) .................. Oath 

Announcement of status as to .................... R.C.M. 901(d)(2) ................ Generally ......................................R.C.M. 807@) .................. Requirement to take ............................ R.C.M. 901(d)(5) ................ Post-trial duties ....................................R.C.M. 502(d)(6) ................ 

Index 15 
MCM. 1998 INDEX 

Subject Ref. Presence of 

Article 39(a) sessions ...........................R.C.M. 803 .................... Findings announcement .......................... R.C.M. 922(a) .................. 
 Generally ......................................R.C.M. 805 .................... 
 Pretrial conferences ............................. R.C.M. 802 .................... 
 Sentence announcement .......................... R.C.M. 1007(a) ................. 
 Pretrial agreement, waiver not permitted ............... R.C.M. 705(c)(l)(B) ............. 
 Pretrial confinement, right to ......................... R.C.M. 3050 .................. 
 Privileged communications ........................... Mil. R. Evid. 502 ............... 
 Summary courts-martial, right to ...................... R.C.M. 1301(e) ................. 
 Waiver of appellate review, right to consult with ....... R.C.M. 11 10(b)(2) ............... 
 Waiver of right to, in courts-martial .................. R.C.M. 506(d) .................. 
 Withdrawal of appellate review, right to consult with .... R.C.M. 11 10(b)(3) ............... 
 Defense of another .....................................R.C.M. 916(e)(5) ................ 
 Defenses 


Accident ..........................................R.C.M. 916(f) .................. 
 Alibi. notice of ....................................R.C.M. 701(b)(2) ................ 
 Burden of proof ....................................R.C.M. 916(b) ................ 
 Coercion ..........................................R.C.M. 91601) .................. 
 Defense of another .................................R.C.M. 916(e)(5) ................ 
 Defined ...........................................R.C.M. 916(a) .................. 
 Duress ............................................R.C.M. 91601) .................. 
 Entrapment ........................................R.C.M. 916(g) .................. 
 Generally ..........................................R.C.M. 916 .................... 
 Ignorance of fact ...................................R.C.M. 9166) .................. 
 Ignorance of law ...................................R.C.M. 916(1)(1) ................ 
 Inability ...........................................R.C.M. 916(i) .................. 
 Instructions on .....................................R.C.M. 920(e)(3) ................ 
 Justitication ........................................R.C.M. 916(c) .................. Lack of mental responsibility 

Generally ......................................R.C.M. 916(k) .................. Notice of ......................................R.C.M. 701(b)(2) ................ 
 Mistake of fact ....................................R.C.M. 9166) .................. 
 Mistake of law .....................................R.C.M. 916(1)(1) ................ 
 Obedience to orders ................................R.C.M. 916(d) .................. 
 Self-defense ........................................R.C.M. 916(e) .................. 
 Voluntary intoxication ............................... R.C.M. 916(1)(2) ................ 
 Withdrawn, effect of notice .......................... R.C.M. 701(b)(5) ................ 
 Deferment of confinement 

Action of convening authority ........................ R.C.M. 1 l(n(f)(4)(E) ............ 
 Contempt cases ....................................R.C.M. 809(e) .................. 
 Generally ..........................................R.C.M. 1101(c) ................. 
 Orders ............................................R.C.M. 1101(c)(4); 11 14(c)(l) ..... 
 Termination of .....................................R.C.M. 1101(c)(6) ............... 
 Defraud 

See also Fraud. Burning with intent to ..............................IV, Para., 67 ................... Degrading questions ...................................Mil. R. Evid. 303 ............... Delay 

See also Continuances. Government appeals .................................R.C.M. 908(b)(l) ................ 
 Responsibility for, as offense ......................... IV. Para. 22 .................... 
 Speedy trial .......................................R.C.M. 707(c) .................. 
 Delegation 

Authority to impose pretrial restraint .................. R.C.M. 304(b)(3) ................ 
 Convening courts-martial, power to ................... R.C.M. 504(b)(4) ................ 
 Excusal of members ................................R.C.M. 505(c)(l)(B) ............. 
 Nonjudicial punishment ..............................V. Para. 2c .................... 
 Deliberations and voting 

Capital cases ....................................... R.C.M. 100-l(h)(7) ............... 
 Findings ..........................................R.C.M. 921 .................... Interlocutory questions, special court-martial without military 

judge ...........................................R.C.M. 801(e)(3) ................ M~htaryjudge, presence during ....................... R.C.M. 805(a) .................. 

Index 16 

Page 

11-77 

11-119 

11-79 

11-77 

11-134 

r1-69 

11-22 

IlI-23 

11-176 

11-159 

11-5 1 

II-159 

11-1 11 





MCM. 1998 INDEX 

Subject Ref. Classified information. privilege concerning ............. Mi. R. Evid. 505 .............. Clergyman 

Defined .......................................Mil. R. Evid. 503(b)(l) .......... Privileged communications to .................... Mil. R. Evid. 503(a) ............. Co.accused, statements at joint trial ................... Mil. R. Evid. 306 ............... Co.conspirator, statements of ......................... Mil. R. Evid. 801(d)(2)(E)........ Commercial publications ............................. Mil. R. Evid. 803(17) ........... Common law rules, applicability ...................... Mil. R. Evid. 101(b)(2) .......... Competency 

Court members as witnesses ..................... Mil. R. Evid. 606 ............... Military judge as witness ........................ Mil. R. Evid. 605 ............... Witnesses, generally ............................Mil. R. Evid. 601 ............... Compromise and offer to compromise ................. Mil. R. Evid. 408 ............... Concealing, as grounds for being accessory after the fact IV. Para. 2c(l) ................. Confessions. See Self-Incrimination. Confidential or privileged communications . See Privileges, 

this heading . Confusion of the issues, as grounds for, excluding relevant 

evidence ........................................Mi. R. Evid. 403 ............... Conspiracy, statement of co-conspirator ................ Mil. R. Evid. 801(d)(2)(E) ........ Contents of writings, recordings, and photographs 

Admissibility of duplicates ....................... Mil. R. Evid. 1003 .............. Admissibility of other evidence as proof ........... Mil. R. Evid. 1004 .............. Determination of fact issues related to ............. Mil. R. Evid. 1008 .............. Proof by testimony or written admission of party ... Mil. R. Evid. 1007 .............. Public records ..................................Mil. R. Evid. 1005 .............. Requirement of an original ...................... Mil. R. Evid. 1002 .............. Summaries ....................................Mil. R. Evid. 1006 .............. Continuance, determination by military judge ........... Mil. R. Evid. 104(a)............. Control, proof by subsequent remedial measures ........ Mil. R. Evid. 407 ............... Conviction of crime, impeachment by ................. Mil. R. Evid. 609 ............... Corroboration 

Confessions or admissions ....................... Mil. R. Evid. 304(g) ............ Witness' prior identification to corroborate in-court 

identification .................................Mil. R. Evid. 321(a)(l) .......... Court-martial, power to obtain evidence ............... R.C.M. 801(c) .................. Credibility or weight, right to introduce evidence concerning Mil. R. Evid. 104(e) ............. Cross-examination 

Scope .........................................Mil. R. Evid. 611(b) ............ Specific incidents of conduct to impeach .......... Mil. R. Evid. 608(b) ............ Cumulative, as grounds for excluding relevant evidence .. Mil. R. Evid. 403 ............... Death, statement under belief of impending ........... Mil. R. Evid. 804(b)(2) .......... Declarant 

Attacking and supporting credibility of 

hearsay declarant ............................. Mil. R. Evid. 806 ............... Defined ................................. ... Mil. R. Evid. 801(b) ............ Unavailability ..................................Mil. R. Evid. 804(a) ............. Degrading questions .................................Mil. R. Evid. 303 ............... Deliberations of courts and juries, privilege concerning .. Mil. R. Evid. 509; 606 .......... Disclosure, required 

Evidence of prior identification of the accused ..... Mil. R. Evid. 321(c)(l) .......... Evidence seized from the person or property of the 

accused .....................................Mil. R. Evid. 31 1 (d)(1) .......... Immunity or leniency granted to a witness ......... Mil. R. Evid. 301(c)(2) .......... Statements by accused .......................... Mil. R. Evid. 304(d)(l) .......... Divorce or annulment, effect on husband-wife privilege .. Mil. R. Evid. 504(c)(l) .......... Duplicate 

Admissibility of ................................ Mil. R. Evid. 1003 .............. Defined .......................................Mil. R. Evid. lOOI(4) ........... Dying declaration ...................................Mil. R. E~id. 804@)(2) .......... Exclusionary rules Mi. R. Evid. 803(2) ............ See also Privileges, this heading; Search and seizure; 

Self-incrimination. Eyewitness identification ......................... Mil. R. Evid. 321(a)(2) .......... 

Page 

111-25 

111-24 

1u-24 

111-8 

111-37 

1n-39 

III-I 

Ill-6 

Index 22 
INDEX MCM. 1998 

Subject Ref. Page 

Exclusion of. noncompliance with discovery requirements R.C.M. 701(g)(3)(C) ............. 11-59 

Existing mental. emotional. or physical condition ....... Mil. R. Evid. 803(3) ............ 111-37 

Experts 

Appointment by court ...........................Mil. R. Evid. 706 ............... 111-36 

Bases of opinion by ............................ Mil. R . Evid . 703 ............... 111-36 

Disclosure of facts or data underlying opinion ...... Mil. R. Evid. 705 ............... 111-36 

Employment at government expense ............... R.C.M. 703(d) .................. 11-64 

Opinion on ultimate issue ....................... Mil. R. Evid. 704 ............... 111-36 

Selection and employment by accused ............. Mi. R. Evid. 706(c) ............. III-37 

Use. generally .................................Mil. R. Evid. 702 ............... III-36 

Extenuation and mitigation ........................... R.C.M. 1001(c)(l)(A), (B) ........ 11-1 23 

Eyewitness identification ............................. Mil. R. Evid. 321 ............... 1d-16 

Facts. judicial notice of ............................. Mil . R . Evid . 201 ............... 111-2 

Family records ..................................... Mil . R . Evid . 803(13) ........... III-39 

Feasibility of precautionary measures. proof by subsequent 

remedial measures ................................Mil. R. Evid. 407 ............... Foreign law. judicial notice of ....................... Mil. R. Evid. 201A(b) ........... Former testimony ................................... Mil. R . Evid . 804(b)(l) .......... Government information. privilege concerning ........... Mil. R. Evid. 506 ............... Habit ............................................. Mil. R. Evid. 406 ............... Hearsay 

Defined .......................................Mil. R. Evid. 801 ............... General rule ...................................Mil . R . Evid . 802 ............... Exceptions. availability of declarant immaterial 

Absence of entry in records ................... Mil. R. Evid. 803(7) ............ Absence of public record of entry .............. Mil. R. Evid. 803(10) ........... Excited utterance ............................. Mil. R. Evid. 803(2) ............ Family records ...............................Mil. R. Evid. 803(13) ........... Government price lists ........................Mil. R. Evid. 803(17) ........... Judgment as to personal. family. or general 

history. or boundaries ....................... Mi. R. Evid. 803(23) ........... Judgment of previous conviction ................ Mil. R. Evid. 803(22) ........... Learned treatises .............................Mil. R. Evid. 803(18) ........... Market reports. commercial publications ......... Mil. R. Evid. 803(17) ........... Maniage. baptismal. and similar certificates ...... Mil. R. Evid. 803(12) ........... Other exceptions ............................. Mil. R. Evid. 803(24) ........... Present sense impressions ...................... Mil. R. Evid. 803(1) ............ Public records and reports ..................... Mi . R . Evid . 803(8) ............ Recorded recollection ......................... Mi. R. Evid. 803(5) ............ Records of documents affecting an Mil. R. Evid. 803(14) ........... interest in property ......................... Records of regularly conducted activity .......... Mil. R. Evid. 803(6) ............ Records of religious organizations ............... Mil. R. Evid. 803(11) ........... Records of vital statistics ...................... Mil. R. Evid. 803(9) ............ Reputation as to character ..................... Mi . R . Evid . 803(21) ........... Reputation concerning boundaries or general history Mil. R. Evid. 803(20) .......... Reputation concerning personal or family history . . Mil. R. Evid. 803(19) ........... Statements for purposes of medical diagnosis or 

treatment ..................................Mil. R. Evid. 803(4) ............ Statements in ancient documents ................ Mil. R. Evid. 803(16) ........... Statements in documents affecting an interest in 

property .................................. Mil. R. Evid. 803(15) ........... Then existing mental. emotional or physical condition Mil. R. Evid. 803(3) ............ Exceptions. declarant unavailable 

Former testimony ............................. Mi . R . Evid . 804(b)(l) .......... Other exceptions ............................. Mil. R. Evid. 804(b)(5) .......... Statement against interest ...................... Mil. R. Evid. 804(b)(3) .......... Statement of personal or family history .......... Mil. R. Evid. 804(b)(4) .......... Statement under belief of impending death ....... Mil. R. Evid. 804(b)(2) .......... Hearsay within hearsay ..............................Mil. R. Evid. 805 ............... History. statement of personal or family ............... Mil. R. Evid. 804(b)(4) .......... Husband-wife. privilege .............................. Mil. R. Evid. 504 ............... Identification 

Evidence of other crimes. wrongs. or acts as proof of Mil. R. Evid . 404(b) ............ 

Index 23 
MCM. 1998 INDEX 

Subject Ref. Eyewitness testimony as to ...................... Mil. R . Evid. 321 ............... Statements of. as non-hearsay .................... Mil . R 
. Evid. 801(d)(l)(C) ....... Immunity .......................................... R.C.M. 704 .................... 
 See also Self-incrimination. Impeachment 


By contradiction, using certain involuntary statements Mil. R. Evid. 304(b) ............ 
 By contradiction, using illegally seized evidence .... Mil. R. Evid. 311(b) ............ 
 Evidence of character. conduct, and bias ........... Mil. R. Evid. 608 ............... 
 Evidence of criminal conviction .................. Mil. R. Evid. 609 ............... 
 Juvenile adjudications ........................... Mil. R. Evid. 609(d) ........... 
 Prior statements of witnesses ..................... Mil . R 
. Evid. 613 ...............
 Religious beliefs or opinions ..................... Mil. R. Evid. 610 ............... 
 Subsequent remedial measures .................... Mil . R 
. Evid. 407 ...............
 Who may impeach .............................Mil. R. Evid. 607 ............... 
 Informant, identity of, privilege ....................... Mil. R. Evid. 507 ............... 
 Insanity ..........................................Mil. R. Evid. 302; R.C.M. 916(k) . 
 Intent, evidence of other crimes, wrongs, or acts, as proof of Mil. R. Evid. 404(b) ............ 
 Interest. statement against ............................ Mil. R. Evid. 804(b)(3) .......... 
 Interpreters ........................................Mil. R. Evid. 604 ............... 
 Interrogation. See Self-incrimination. 
 Involuntary statement . See Self-incrimination. 
 Joint clients, effect on lawyer-client privilege ........... Mil. R. Evid. 502(d)(5) .......... 
 Joint trial, statements of accused at ................... Mil. R. Evid. 306 ............... 
 Judgment 


As to personal, family, or general history, or boundaries Mil. R. Evid. 803(23) ........... 
 Previous conviction .............................Mil. R . Evid.
803(22) ........... 
 Judicial notice 

Adjudicative facts ..............................Mil. R. Evid. 201 ............... 
 Laws, domestic and foreign ...................... Mil. R. Evid. 201A ............. 
 Statements in learned treatises .................... Mil. R. Evid. 803(18) ........... 
 Juvenile adjudications, impeachment by ................ Mil. R. Evid. 609(d) ............ 
 Knowledge 

Evidence of other crimes, wrongs. or acts as proof of Mil. R. Evid. 404(b) ............ 
 Requirement for personal knowledge in order to testify Mil. R . Evid. 602 ............... 
 Law, domestic, judicial notice of ..................... Mil. R. Evid. 201(A)(a) .......... 
 Law enforcement personnel. records and reports of 

observations .....................................Mil. R. Evid. 803(8)(B) .......... 
 Lawyer-client privilege ..............................Mil. R. Evid. 502 ............... 
 Lawyer, defined for purposes of privilege .............. Mil. R. Evid. 502(b)(2) .......... 
 Learned treatises ................................... Mil. R. Evid. 803(18) ........... 
 Liability insurance, admissibility ...................... Mil. R. Evid. 41 1 ............... 
 Limited admissibility of ............................. Mil. R. Evid. 105 ............... 
 Lineups and other identification processes 


Right to counsel at .............................Mil. R . Evid.
321(b)(2) .......... 
 When unlawful .................................Mil. R . Evid.
321(b) ............ 
 Market reports .....................................Mil. R. Evid. 803(17) ........... Marriage certificates ................................Mil. R. Evid. 803(12) ........... Medical diagnosis or treatment, statement for purposes of Mil. R. Evid. 803(4) ............ Members 

As witnesses ...................................Mil. R. Evid. 606 ............... Hearings out of presence of ..................... Mil. R. Evid. 103(c); 104(c) ...... Mental examination of accused, privilege concerning . See Self-incrimination. Military judge 


As witness ....................................Mil. R . Evid.
605 ............... 
 Defined ....................................... Mil. R . Evid.
101(c) ............ 


Military records, authentication by attesting certificates ... Mi. R. Evid. 902(4a) ........... 
 Minister, privileged communication to ................. Mil. R. Evid. 503 ............... 
 Misconduct, acts of, admissibility ..................... Mil. R. Evid. 404(b) ............ 
 Mistake, admissibility of evidence of other crimes, 


wrongs, or acts to prove absence of ................ Mil. R. Evid. 404(b) ............ 
 Mistrial, as remedy for 


Failing to produce a writing used to refresh memory Mil. R. Evid. 612 ............... 
 Sustaining a claim of governmental privilege ....... Mil. R. Evid. 505(i)(4)(E)(ii)...... 


Page 

11-16 

111-37 

11-67 

Index 24 

MCM. 1998 INDEX 

Subject Ref. Impeachment by evidence of ..................... Mil. R. Evid. 609 ............... Judgment or evidence of ........................ Mil. R. Evid. 803(22) ........... Priest. privileged communications to ................... Mil. R. Evid. 503 ............... Prior statements of witnesses 

Impeachment by evidence of ..................... Mil. R. Evid. 613 ............... Prior consistent statement as non-hearsay .......... Mil. R. Evid. 801(d)(l)(B) ....... Prior inconsistent statement as non-hearsay ......... Mil. R. Evid. 801(d)(l)(A) ....... Prior statement of identification as non-hearsay ..... Mil. R. Evid. 801(d)(l)(C) ....... Privileges 

Applicability of rules concerning .................. Mil. R. Evid. 1101(b) ........... Classified information ...........................Mil. R. Evid. 505 ............... Comments upon or inference from claim of, at trial 

Limiting instruction ........................... Mil. R. Evid. 512(c) ............. Prohibited ...................................Mil. R . Evid. 512(a) ............. Communication of privileged information by electronic 

means ...................................... Mil. R. Evid. 51 1(b) ............ 
 Communication to clergy ........................ Mil. R. Evid. 503 ............... 
 Compelled or unintentional disclosure of infomation Mil. R. Evid. 511(a) ............. 
 Deliberations of courts and juries ................. Mil. R. Evid. 509 ............... 
 Exceptions ...................................Mil. R. Evid. 606 ............... 
 General rule ...................................Mil. R. Evid. 501 ............... 
 Government information ......................... Mil. R. Evid. 506 ............... 
 Husband-wife ..................................Mil. R. Evid. 504 ............... 
 Identify of informant ............................ Mil. R. Evid. 507 ............... 
 Lawyer-client .................................. Mil. R. Evid. 502 ............... 
 Medical officer or civilian physician, no privilege ... Mil. R. Evid. 501(d) ............ 
 Mental examination of accused . See Self-incrimination. 
 Political vote ..................................Mil. R. Evid. 508 ............... 
 Preliminary determinations concerning ............. Mil. R
. Evid. 104(a) ............. 
 Waiver by voluntary disclosure ................... Mil. R. Evid. 510 ............... Probable cause . See Search and seizure. Production of 

Motion for .................................... R.C.M. 905(b)(4); 906(b)(7) ...... 
 Procedure for ..................................R.C.M. 703(f)(4) ................ 
 Right to ......................................R.C.M. 7030 .................. 
 Property Records of documents affecting interest in ......... Mi. R . Evid. 803(14) ........... 
 Statements in documents affecting interest in ....... Mil. R. Evid. 803(15) ........... Public records and reports ...........................Mil. R. Evid. 803(8) ............ Qualifications to be a witness. determination by military 

judge ...........................................Mil. R. Evid. 104(a) ............. Rabbi, privileged communications to .................. Mil. R. Evid. 503 ............... 
 Reasonable doubt ................................. R.C.M. 91 8(c) .................. 
 RehuRal ......................................... R.C.M. 1001(d) ................. 
 Recollection recorded ...............................Mil. R. Evid. 803(5) ............ 
 Recordings, defined .................................Mil. R. Evid. 1001(1) ........... 
 Refreshing memory, by use of writings ................ Mil . R . Evid . 612 ............... 
 Regularly conducted activity, records of ............... Mil. R . Evid.
803(6) ............ Relaxation of rules, in sentencing proceedings .......... Mil. R. Evid. 1101(c)............ Relevancy 

Defined .......................................Mi. R. Evid. 401 ............... 
 Effect on admissibility .......................... Mil. R . Evid.
402 ............... 
 R 403 ............... 
 When conditioned on fact ....................... Mil. R. Evid. la@) ............ 
 Religious beliefs or opinions ......................... Mil. R. Evid. 610 ............... 
 Religious organizations. record of ..................... Mil. R. Evid. 803(11) ........... 
 Remainder of, or related, writings or recorded statements Mil. R. Evid. 106 ............... 
 Reputation 


Character ......................................Mil. R . Evid. 803(21) ........... 


Exclusion of relevant evidence ................... Mil. . Evid. 


Community, defined ............................ Mil. R. Evid. 405(d) ............ 
 Concerning boundaries or general history .......... Mil. R. Evid. 803(20) ........... 
 Concerning personal or family history ............. Mil. R. Evid. 803(19) ........... 
 Defined .......................................Mil. R . Evid.
405(d) ............ 
 Routine practice ....................................Mil. R. Evid. 406 ............... 


Page 

111-34 

m-39 

111-24 

Index 26 
INDEX MCM. 1998 

Subject 

Rule of completeness ............................... Rules of Evidence. Military 

Amendments to ................................ Analysis of .................................... 
 Applicability ................................... 
 Citation to .................................... 
 Inapplicability .................................. 
 Purpose and construction ........................ 
 Relaxation during sentencing proceedings .......... 
 Ruling admitting or excluding evidence 

Effect of erroneous ruling ....................... Plain error ..................................... Search. See Search and seizure. 
 Self-authentication .................................. 
 Self-incrimination. See Self-incrimination. 
 Sentencing proceedings 


Generally ...................................... 
 Relaxation of rules ............................. 
 Sexual offenses 

Nonconsensual ................................. Evidence of similar sexual crimes ................ Specific instances of conduct, to prove character ........ Spontaneous exclamations ............................ Stipulations 

Ref. Page 

Mil. R. Evid. 106 ............... 111-2 

Mil. R. Evid. 1102 .............. Appendix 21 ................... Mil. R. Evid. 101(a); 1101(a) ..... Mil. R. Evid. 1103 .............. Mil. R. Evid. 1101(d) ........... Mil. R. Evid. 102 ............... Mil. R . Evid. 1101(c) ............ 


Mil. R. Evid. 103(a) ............. 
 Mil. R. Evid. 103(d) ............ 


Mil. R. Evid. 902 ............... 


R.C.M. 1001 ................... 
 Mil. R. Evid. 1101(c) ............ 


Mil. R. Evid. 412 ............... Mil. R. Evid 413; 414 ........... Mil. R. Evid. 405(b) ............ Mil. R . Evid. 803(2) ............ 


Confessional ...................................R.C.M. 705(b)(l) ................ 
 Generally ...................................... 
 Striking testimony 

After witness asserts self-incrimination privilege ..... Writing to refresh memory. failure to produce ...... Subscribing witness' testimony. unnecessary for 

authentication .................................... 
 Subsequent remedial measures ........................ 
 Summary court-martial. applicability of rules ........... 


Telephonic transmissions of privileged information. effect of 

Testimony 

Failure to testify by accused. instruction concerning . Preliminary matter. by accused ................... Trial counsel. duty to disclose ....................... 
 Unavailability of declarant. defined .................... 
 Victim. character of ................................ 
 Vital statistics. records of ............................ 
 Vote. political. privilege concerning ................... 
 Waiver 


Failure to object ............................... 
 Guilty plea .................................... 


Privileges ..................................... Waste of time. as grounds for exclusion of relevant evidence 

Witnesses 

Advice concerning self4ncrimination ............... Availability determination ........................ Calling and interrogation by the couti-martial ....... Competency. general rule ........................ Court members as witnesses ..................... Exclusion from courtroom ....................... Impeachment of . See Impeachment. this heading . Military judge as a witness ...................... Mode and order of interrogation and presentation ... Oath or afhation ............................. Personal knowledge. requirement for .............. Production of 

Procedures for ............................... 
 Right to .................................... 


R.C.M. 811 .................... 


Mil. R . Evid. 301(f)(2) .......... 
 Mil. R. Evid. 612 ............... 


Mil. R. Evid. 903 ............... Mil. R. Evid. 407 ............... Mil. R. Evid. 101(a); R.C.M. 

1304(b)(2)(E) ................. 
 Mi. R. Evid. 511(b) ............ 


Mil. R. Evid. 301(g) ............ 
 Mil. R. Evid. 104(d) .......... 
 R.C.M. 701(a) .................. 
 Mil. R. Evid. 804(a) ............. 
 Mil. R. Evid. 404(a)(2) .......... 
 Mil. R. Evid. 803(9) ............ 
 Mi. R. Evid. 508 ............... 


R Evid .......... Mil. R. Evid. 304(d)(5); 31 1(i); 

321(g); R.C.M. 910(j) .......... Mil. R. Evid. 510 ............... 

Mil. . . 103(a)(l) 

Mi. R. Evid. 403 ............... 


R Evid .......... 
 Mi. R. Evid. 104(a) ............. 
 R Evid. 614 ............... 


Mil. . . 301(b)(2) 

Mil. . 
 Mil. R. Evid. 601 ............... 
 Mil. R. Evid. 606 ............... 
 Mil. R. Evid. 615 ............... 


Mil. R. Evid. 605 ............... 
 Mil. R. Evid. 611 ............... 
 Mil. R. Evid. 603 ............... 
 Mil . R. Evid. 602 ............... 


R.C.M. 703(e) .................. 
 R.C.M. 703(b) .................. 


Index 27 
MCM. 1998 INDEX 

Subject Ref. Page 


Qualification as ................................Mil. R. Evid. 104(a) ............. 111-1 


Writings and recordings 


Defined .......................................Mil. R. Evid. 1001(1) ........... 111-43 


Refresh memory. to .............................Mil. R. Evid. 612 ............... III-35 


Remainder of or related writings ................. Mil. R. Evid. 106 ............... ID-2 


Requirement of original to prove ................. Mil. R. Evid. 1002 .............. III-43 


Examination 


Members 


Generally ......................................R.C.M. 912(d) .................. 11-105 


Questionnaire. use of ...........................R.C.M. 912(a) .................. 11-104 


Record of trial before authentication .................. R.C.M. 1103(i) ................. 11-142 


Witnesses 


Deposition .....................................R.C.M. 702(g)(l)(B). (2)@) ...... I142 


Generally ......................................Mil. R. Evid. 614 ............... 111-36 


Pretrial investigation ............................R.C.M. 405(h)(l) ................ 11-38 


Exceptions and substitutions 


Findings by .......................................R.C.M. 918(a) .................. 
 Lesser included offenses ............................. IV. Para. Zb(3) ................. 
 Plea. enby by .....................................R.C.M. 910(a) .................. 
 Execution of sentence 

Action. statement as to .............................. R.C.M. 1107(f)(4)(B) ............ Deferment. effect on ................................ R.C.M. 1101(c)(6). (7) ........... Generally ..........................................R.C.M. 1113 ................... 
 Punishment which may be ordered executed in initial 


action ...........................................R.C.M. 1113(b) ................. 
 Punishment which may not be ordered executed in initial 


action ......................................... R.C.M. 1113(c) ........... 
 Suspension. See Suspension ofsentence . 
 Exhibits 


Generally ..........................................R.C.M. 913(c) .................. 11-107 


Members. use during deliberations .................... R.C.M. 921(b) .................. lI-118 


Expert witnesses 


See also Evidence. Experts . 
 Employment of ....................................R.C.M. 703(d) .................. 11-64


Opinion testimony by ............................... Mil. R. Evid. 702; 703; 704; 705 . III-36 


Explosive. defined ......................................R.C.M. 103(11) ................. m-1 


Exporting controlled substances ......................... IV. Para. 37 .................... IV-54 


Exposure. indecent .....................................1V. Para. 88 .................... IV-111 


Extenuation. matters in 


Investigation. pretrial ................................R.C.M. 405(f)(ll). (h)(l)(C) ...... 11-36; 11-38 


Presentencing procedure ............................. R.C.M. 1001(c)(l)(A). (2)(A). (3) . . 11-123 


Extortion ............................................. IV. Para. 53 .................... IV-80 


Extra duty ............................................V. Paras. 5b(2)!A)(v); (B)(v). c(6); 


6b(3) ........................ V-5; V-6; V-8 


Extraordinary relief. petition for 


Appellate counsel ...................................R.C.M. 1202(b) ................. 11-167 


Reviewed by 


Court of Military Appeals ....................... R.C.M. 1204(a) ................. 11-170 


Court of Military Review ........................ R.C.M. 1203(b) ................. 11-168 


Speedy trial. effect on .............................. R.C.M. 707(b)(3)(C) ............. 11-72


Eyewitness identifieation ................................Mil. R. Evid. 321 ............... III-16 


Failure to 


Afford all practical relief and assistance in combat ...... IV. Para. 23 .................... 
 Enforce or comply with code ........................ IV. Para. 22 .................... 
 Engage or do utmost to encounter enemy .............. N . Para. 23 .................... 
 Enter plea .........................................R.C.M. 910(b) .................. 
 Fulfill terms of pretrial agreement .................... R.C.M. 705(d)(4) ................ 
 Maintain funds. dishonorable .........................IV. Para. 68 .................... 
 Obey orders or regulations ...........................IV. Para. 16 .................... 
 Pay debts .........................................IV. Para. 71 .................... 
 Repair ............................................IV. Para. 10 .................... 
 Report, prevent. or suppress mutiny ................... IV. Para. 18 .................... 
 Secure or report captured or abandoned property ........ IV. Para. 27 .................... 
 False 

Index 28 





MCM. 1998 INDEX 

Subject Ref. Investigating officer 

Charges and specifications. no authority to change . . R.C.M. 603(b) .................. Detailing ......................................R.C.M. 405(d)(l) ................ Disqualitication. to act in any capacity in same trial R.C.M. 405(d)(l); 502(d)(4)(B); 

502(e)(2)(C); 902(b)(2); 

912(a)(l)(F) .................. Recommendation ...............................R.C.M. 4056) .................. Mental examination of the accused .................... 
 Military Rules of Evidence. not applicable ............. 
 Motions relating to ................................. 
 Objections ......................................... 
 Personnel .......................................... 
 Procedure ....................................... 


R.C.M. 706(a); 706(c)(3)(A) ...... R.C.M. 405(i) .................. 
 R.C.M. 905(b)(l); 906(b)(3) ...... R.C.M. 405(h)(2), 6)(4) .......... 
 R.C.M. 405(d) .................. 
 R.C.M. 405(h) .................. 
 Report of .........................................R.C.M. 4056); Appendix 5 ....... 
 Scope ............................................. R.C.M. 405(e) .................. 
 Spectator. access to ................................. R.C.M. 405(h)(3) ................ 
 Waiver ............................................R.C.M. 405(k); 705(c)(2)(E); 905(e) 


Failure to object to defects ...................... R.C.M. 905(e) .................. 
 Generally ......................................R.C.M. 405(k) .................. 
 Pretrial agreement provision ...................... Witness. production of .............................. Investigator. See Law enforcement oficial . Involuntary manslaughter .............................. Jeopardy. See Former jeopardy . Jet. See Plane. Joint. defined .......................................... 
 Joint command or task force. jurisdiction ................ 
 Joint offenses . Sce Accomplices; Conspiracy; Principals . 
 Joint trial 


Counsel representing more than one accused. inquiry 

R.C.M. 705(c)(2)(E) ............ 
 R.C.M. 405(g) .................. 


IV. Para. 44 .................... 


R.C.M. 103(13) ................. 
 R.C.M. 201(e)(2) ................ 


Page 

11-55 


11-34 


11-34; 


U-44; 11-46; 


11-89; 11-104 


11-39 


11-71 


11-39 


11-92; 11-92 


11-39; 11-39 


11-34 


11-3 8 


11-39; A5-1 


11-35 


11-38 


11-40; 11-70; 11-93 


11-93 


11-40 


11-70 


11-36 


required .........................................R.C.M. 901(d)(4)(D) ............. 
 Evidence of statement of accused ..................... Mil. R. Evid. 105; 306 .......... 
 Procedure .........................................R.C.M. 812 .................... 
 Referrals to ........................................R.C.M. 601(e)(3) ................ 
 Rights of accused .................................. R.C.M. 812 .................... 
 Sever. motion to ...................................R.C.M. 906(b)(9) ................ Joy riding ............................................IV. Para. 46 .................... Judge. See Military judge . Judge advocate 

Defined ........................................... Art. l(13). UCMJ; R.C.M. 103 ... Oaths. authority to administer ........................ Art 136(a)(l). UCMJ ............ Review of record of trial by ......................... R.C.M. 1112 ................... Judge Advocate General. The 

Cases examined by ................................. R.C.M. 1201 (b)(l) .............. Cases forwarded to Court of Military Review .......... R.C.M. 1201(a) ................. Cases reviewed by ..................................R.C.M. 1201(b)(2). (3) ........... Certification of military judge ........................ 
 Detailing military judge ............................. 
 Professional supervisor of military judge. counsel ....... 
 Remission and suspension of sentence ................. 
 Review of summary courts-martial .................... 
 Rules of court. authority to make ..................... 
 Waiver of review. by accused ........................ 
 Judgments of courts-martial. finality of .................. 
 See also Findings;Sentence. 
 Judicial notice 


Adjudicative facts .................................. Of law. foreign and domestic ........................ Jumping from vessel into water ......................... Jurisdiction 

Commander's ...................................... Courts-martial 

Accused from armed force different from convening 

authority .................................... 

R.C.M. 502(c) .................. 
 R.C.M. 503(b)(l) ................ 
 R.C.M. 104(a)(3)(C); 109 ......... 
 R.C.M. 1201(c) ................. 
 R.C.M. 1306(d) ................. 
 R.C.M. 108 .................. 
 R.C.M. 1110 ................... 
 R.C.M. 1209 ................... 


Mil. R. Evid. 201 ............... 
 Mil. R. Evid. 201A ............. 
 IV. Para. 91 .................... 


I. Para. 2(b)(4); V. Para. 2a ...... 

R.C.M. 201(e) .................. 


Index 34 

INDEX MCM. 1998 

Subject Ref. Page 

Attachment of .................................. R.C.M. 202(c) .................. 11-14 

Civilians ......................................R.C.M. 202(a) .................. 11-12 


Composition. affecting ........................... R.C.M. 201(b)(2) ................ n-9 


Constructive enlistment .......................... Art. 2(c), UCMJ; R.C.M. 202(a) .. A2-2; 11-12 


Contempt power ................................R.C.M. 201(c) .................. 11-9 


Convening. as affecting ......................... R.C.M. 201(b)(l) ................ 11-9 


Discharge. effect on ............................ R.C.M. 202(a), (c) .............. 11-12 11-14 


Dismissal of charges for lack of .................. R.C.M. 907(b)(l)(A) ............. 11-97 


Generally ......................................I. Para. 2(b)(l) ................. 1-1 


Joint command ................................. R.C.M. 201(e)(2) ................ 11-10 


Law of war. offense under ...................... R.C.M. 201(a)(3), (f)(l)(B) ....... 11-9; 11-11 


Military offense. exclusive jurisdiction ............. R.C.M. 201(d)(l) ................ 11-1 0 


Motion to dismiss for lack of 


Burden of proof .............................. R.C.M. 905(c )(2)(B) ............ 
 Generally .................................... R.C.M. 907(b)(l)(A) ............. 
 Not waived ..................................R.C.M. 905(b), (e); 907(b)(l)(A) .. 
 Nature of .....................................R.C.M. 201(a) .................. 
 Offenses subject to 


Civilian tribunals. trial in ...................... R.C.M. 201(d) .................. 
 Generally ....................................R.C.M. 203 .................... 
 Service connection of ......................... R.C.M. 203 .................... 
 Persons subject to 


Generally ....................................R.C.M. 202(a) .................. 
 Law of war. under ........................... R.C.M. 202(b) .................. 
 Reservists ...................................R.C.M. 204 .................... 
 Place of offense. effect on ....................... R.C.M. 201(a)(2) ................ 
 Place of trial. effect on ......................... R.C.M. 201(a)(3) ................ 
 Reciprocal. between service ...................... R.C.M. 201(e) .................. 
 Referral. as affecting ............................ R.C.M. 201(b)(3) ................ 
 Requisites of ..................................R.C.M. 201(b) .................. 
 Review of. accused in different armed force ....... R.C.M. 201(e)(5) ................ 
 Subject matter ................................R.C.M. 203 .................... 
 Courts of inquiry ...................................R.C.M. 201(g); I . Para. 2(b)(3) .... 
 Exercise of military ................................. I. Para. 2 ...................... 
 Foreign nation over visiting force ..................... R.C.M. 201(d) .................. 
 General courts-martial ...............................R.C.M. 201(f)(l) ................ 
 Kinds of military ...................................I. Para. 2(a) .................... 
 Memorandum of understanding concerning ............. Appendix 3 .................... 
 Military commission ................................ I. Para. 2(b)(2) ................. 
 Not waivable by 


Failure to raise at trial .......................... R.C.M. 905(e) .................. 
 Pretrial agreement ..............................R.C.M. 705(c)(l)(B) ............. 
 Provost courts ..................................... I. Para. 2(b)(2) ................. 
 Sources ...........................................I. Para. 1 ...................... 
 Special court-martial ................................ R.C.M. 201(f)(2) ................ 
 Summary courts-martial .............................. R.C.M. 1301(c) ................. Jury. See Members of a court-martial . Justification, as a defense ............................... R.C.M. 916(c) .................. Juvenile courts, conviction by. admissibility ............... Mil. R . Evid. 609(d) ............

Kidnapping ...........................................IV. Para. 92 .................... 
 Killing. See Homicide; Manslaughter; Murder . 
 Laboratory reports. admissibility ......................... Mil. R. Evid. 803(6). (8) ......... 
 Language. Indecent .................................... IV. Para. 89 .................... 
 Larceny 


Generally .......................................... IV. Para. 46 .................... 
 Of mail ........................................... IV. Para. 93 .................... Law. judicial notice of ..................................Mil. R. Evid. 201A ............. Law enforcement official 

Assault on ........................................IV. Para. 54 .................... 
 Civilian. authority to apprehend persons subject to code . R.C.M. 302(a)(2). (b)(3) .......... 
 Interrogations by ................................... Mil. R. Evid. 305 ............... 
 Military. authority to apprehend ...................... R.C.M 302(b)(l) ................ 
 Searches by ....................................... Mil. R. Evid 31 1(c) ............. 
 Law of war 

Index 35 



INDEX MCM. 1998 

Subject Ref. Page 

Interlocutory questions. rulings on .................... R.C.M. 801 (a)(4) ............... 11-74 

Investigation. pretrial. review of evidence and witness 

production by .................................... R.C.M. 405(g)(2) ................ 
 Mistrial ........................................... R.C.M. 915 .................... 
 Motions. See Motions. 
 New trial ..........................................R.C.M. 810(b)(2) ................ 
 Oath ..............................................R.C.M. 807(b)(l) ................ 
 Other trial .........................................R.C.M. 810(b)(2) ................ 
 Power to authorize search ...........................Mil. R . Evid.
315(d)(2) .......... 
 Presence of. required ................................ R.C.M. 805(a) .................. 
 Pretrial agreement inquiry ............................ R.C.M. 910(f) .................. 
 Questions of law, ruling on .......................... R.C.M. 801(a)(4) ................ 
 Rehearings .........................................R.C.M. 810(b)(2) ................ 
 Reopening case ....................................R.C.M. 913(c)(5) ................ 
 Restraint of accused at trial .......................... R.C.M. 804(c)(3) ................ 
 Review of pretrial confinements ...................... R.C.M. 3050) .................. 
 Rules of court .....................................R.C.M. 108 .................... 
 Rulings by ........................................R.C.M. 801(e)(l) ................ 
 Session, call to order ...............................R.C.M. 901(a) .................. 
 Special court-martial without ......................... R.C.M. 201(f)(2)(B)(ii) ........... 
 Stipulation .........................................R.C.M. 811 .................... 
 Supervision of .....................................R.C.M. 109 .................... Unavailability, effect on speedy trial .................. R.C.M. 707(c)(2) ................ Views or inspections ................................R.C.M. 913(c)(3) ................ Witness 

Disqualified from acting as ...................... R.C.M. 902(b)(3) ................ 
 Incompetent.................................... Mil. R . Evid. 605 ...............
 Military law 

Generally ..........................................I. Para. 2(a)(l) ................. 
 Nature and purpose .................................I. Para. 3 ...................... Military police . See Law enforcement official . Mitary property, sale, loss, damage, destruction, or wrongful 

disposition of ........................................IV. Para. 32 .................... 
 Military records, authentication of ....................... Mil. R. Evid. 901; 902 .......... 
 Mitary Rules of Evidence .............................Part m ......................... 
 See also Evidence. Military tribunals 

Concurrent jurisdiction .............................. R.C.M. 201(g) .................. 
 Kinds of ..........................................I. Para. 2(b) .................... 
 Minor offenses 

Generally ..........................................V. Para. le .................... 
 Prior punishment for, barring trial .................... R.C.M. 907(b)(2)(D)(iv) .......... 
 Minors, competence as witnesses ......................... Mil. R. Evid. 601 ............... 
 Misbehavior before the enemy .......................... IV. Para. 23 .................... 
 Misbehavior of sentinel or lookout ...................... IV. Para. 38 .................... Misconduct 

Prisoner of war .................................... IV. Para. 29 .................... Uncharged 

Action by court-martial on ....................... R.C.M. 801(d) .................. Admissibility of ................................Mil. R. Evid. 404(b) ............ 
 Instruction .....................................Mi . R. Evid. 105 ............... 
 Misprision of serious offense ............................IV. Para. 95 .................... 
 Missing movement .....................................IV. Para. 11 .................... Mistake of fact 

Checks, insufficient funds ............................ IV. Para. 49c(18) ............... 
 Generally .......................................... R.C.M. 9160) .................. Mistake of law ........................................ R.C.M. 9160)(1) ................ 

Mistrial 

Effect .............................................R.C.M. 915(c) .................. 
 Grounds for .......................................R.C.M. 915(a) .................. 
 Partial ...........................................R.C.M. 915(a) .................. 
 Procedure .........................................R.C.M. 915(b) .................. 
 Remedy for failure to produce statement ............... R.C.M. 914(e) .................. 
 Mitigation 

Index 39 




MCM. 1998 INDEX 

Subject Ref . Unit personnel diary ................................Mil. R. Evid. 803(6). (8) ......... Officials. contempt toward ..............................IV. Para. 12 .................... Official statement, false ................................IV. Para. 31 .................... 
 Opening mail .........................................IV. Para. 93 .................... 
 Opinion evidence . See Evidence. Opinion. 
 Orderly 


Detailing ..........................................R.C.M. 501(c) .................. 
 Disqualification .....................................R.C.M. 502(e)(2). (f) ............ 
 Duties ............................................R.C.M. 502(e)(3)(C) ............. 
 Qualifications ......................................R.C.M. 502(e)(l) ................ 
 Orders 

See also Convening orders; Promulgating orders . Failure to obey ....................................IV. Para. 16 .................... 
 General orders. disobedience of ....................... IV. Para. 16 .................... 
 Lawfulness ........................................IV. Para. 14c(2)(a) .............. 
 Obedience to. as defense ............................ R.C.M. 916(d) .................. 
 Willful disobedience ................................ IV. Paras. 14; 15 ............... 
 Other trial 

Action on .........................................R.C.M. 1107(f)(5)(A) ............ 
 Convening authority ordering ......................... R.C.M. 1 107(e)(2) ............... 
 Defined ...........................................R.C.M. 810(e) .................. 
 Procedure .........................................R.C.M. 810(a), (b). (c) ........... 
 Sentence limitations .................................R.C.M. 810(d) .................. 
 Overt acts 

Attempts ..........................................IV. Para. 4c(l). (2) .............. 
 Conspiracy ........................................IV. Para. 5c(4) ................. 
 Pandering 

Generally ..........................................IV. Para. 97 .................... 
 Solicitation distinguished .............................IV. Para. 6c(3) ................. 
 Pardon. motion to dismiss based on ...................... R.C.M. 907(b)(2)(D)(i) ........... 
 Parole. improper use of .................................IV. Para. 25 .................... 
 partyTo conspiracy ......................................IV. Para. 5c(l) ................. 
 To court.martia1. defined ............................ R.C.M. 103(16) ................. 
 To offense ........................................IV. Para. lb(1). (2) ............. 
 Pass. false or unauthorized ............................. IV. Para. 77 .................... 
 Patient.doctor. no privileged communication ............... Mil. R. Evid. 501(d) ............ 
 Peace. breach of .......................................IV. Para. 41 .................... 
 Peremptory challenges ..................................R.C.M. 912(g) .................. 
 Perjury 

See also False swearing. Generally ..........................................IV. Para. 57 .................... Guilty plea iuquiry. statements during ................. R.C.M. 910(c)(5) ................ Immunity. not extending to .......................... R.C.M. 704(b) .................. New trial. grounds for ..............................R.C.M. 1210(f)(3) ............... subornation of .....................................IV. Para. 98 .................... 
 Permits. false or unauthorized .......................... IV. Para. 77 .................... Perpetrator 

See also Principals. Defined ...........................................IV. Para. lb(2)(a) ............... 
 Personnel of courts-martial 

See also specific topics . 
 Announcement of ...................................R.C.M. 813 .................... 
 Censure of. prohibited ...............................R.C.M. 104 .................... 
 Changes of ........................................R.C.M. 505 .................... 
 Detail of ..........................................R.C.M. 503 .................... 
 Generally ..........................................R.C.M. 501 .................... 
 Qualification and duties ............................. R.C.M. 502 .................... Personnel records. admissibility .......................... Mil. R. Evid. 803(6), (8) ......... Petty oficer 

Apprehend. authority to ............................. R.C.M. 302(b)(2) ................ Assault on 

In execution of office ........................... IV. Para. 15 .................... Not in execution of office ....................... IV. Para. 54 .................... 


Page 

111-35; Ill-36 

iv-16 

1v-45 

IV-110 

1v-5 

11-2 

1v-1; IV-I 

IV-102 

111-21 

1v-59 

11-106 

Index 44 


INDEX MCM.1998 

Subject Ref. Page 

Evidence for 


Discovery of ................................... R.C.M. 701(a)(5) ................ 
 Production of .................................. R.C.M. 703(f) .................. 
 Generally ..........................................R.C.M. 1001 ................... 
 Production of witnesses .............................R.C.M. 1001(e) ................. 
 Prosecution. matters presented by ..................... R.C.M. 1001(b) ................. 
 Rebuttal ...........................................R.C.M. 1001(d) ................. 
 Rehearings .........................................R.C.M. 810(a)(2) ................ 
 Presenting false claim ..................................IV. Para. 58 .................... President of court-martial 

Duties 


Deliberations ...................................R.C.M. 921(a); 1006(c) .......... 
 Findings, announcing ............................ 
 Generally ...................................... 
 Sentence, announcing ........................... 
 Voting ........................................ 
 Qualifications ...................................... 
 Special court-martial without military judge 

R.C.M. 922(b) .................. 
 R.C.M. 502(b)(2) ................ 
 R.C.M. 1007(a) ................. 
 R.C.M. 921 (c)(5); 1006(d)(3)(B) ... R.C.M. 502(b)(l) ................ 


Conferences prohibited ..........................R.C.M. 802(fj .................. 
 Duties of ......................................R.C.M. 502(b)(2)(C) ............. 
 "Military judge" including ....................... R.C.M. 103(15); 502(b)(2)(C) ..... 
 Rulings of .....................................R.C.M. 801 (e)(2). (3) ............ 
 President of the United States 

Capital cases, approval of sentence ................... Contempt toward ................................... Cows-martial. power to convene ..................... Dismissal of officer, right to trial ..................... Military Rules of Evidence, action concerning amendments 

Presumption 

Innocence, instruction on ............................ Mental capacity ................................... 

R.C.M. 1207 ................... 
 IV. Para. 12 .................... Art. 22, UCMJ; R.C.M. 504(b)(l) . R.C.M. 107 .................... Mil. R . Evid. 1102 .............. 


R.C.M. 920(e)(5)(A) ............. 
 R.C.M. 909(b) .................. 
 Mental responsibility ................................ R.C.M. 916(k)(3)(A) ............. 
 Witness competency ................................Mil. R. Evid. 601 ............... 
 Pretense, false .........................................IV. Pxas. 46; 78 ............... 
 Pretrial advice ........................................ R.C.M. 406 .................... See also Advice, pretrial . Pretrial agreements 

Action pursuant to ..................................R.C.M. 705@)(2)(E) ............. 
 Authority to enter ..................................R.C.M. 705(a). (d)(4) ............ 
 Conditional guilty plea .............................. R.C.M. 910(a)(2) ................ 
 Confessional stipulation ..............................R.C.M. 705(b)(l) ................ Disclosure of 

Plea negotiations, prohibited ...................... Mil. R . Evid . 410 ............... To members, prohibited ......................... R.C.M. 705(e) .................. To military judge before plea .................... R.C.M. 910(f)(3) ................ Generally ..........................................R.C.M. 705 .................... 
 Inquiry by military judge ............................R.C.M. 910(f)(4), (h)(3) .......... 
 Nature of ......................................... R.C.M. 705@) .................. 
 Notice of, to military judge .......................... R.C.M. 910(f)(2) ................ 
 Procedure to obtain 

Acceptance .................................... Formal submission .............................. 
 Negotiation .................................... 
 Offer ......................................... 
 Referral pursuant to ................................. Sentence, effect at rehearing ......................... Terms and conditions 

Generally ...................................... 
 Permissible terms ............................... Prohibited terms ................................ Withdrawal of 

Charges pursuant to ............................. Parties to ..................................... Pretrial confinement . See Confinement, pretrial. 

R.C.M. 705(d)(4) ................ 
 R.C.M. 705(d)(3) ................ 
 R.C.M. 705(d)(2) ................ 
 R.C.M. 705(d)(l) ................ 
 R.C.M. 705(b)(2)(A), (B) ......... 
 R.C.M. 810(d)(2) .............. 


R.C.M. 705(c) .................. 
 R.C.M. 705(c)(2) ................ 
 R.C.M. 705(c)(l) ................ 


R.C.M. 705(b)(2)(C) ............. 
 R.C.M. 705(d) (4) ............... 


Index 47 
MCM. 1998 INDEX 

Subject Ref. Page 

Pretrial investigation ...................................R.C.M. 405 ................. 21-34 

See also Investigation. pretrial . Principal assistant. delegation to 

Excuse members ...................................R.C.M. 505(c)(l)(B) ............. 
 Nonjudicial punishment authority ..................... V. Para. 2c .................... 
 PMUP~S 

Accessory after the fact. relationship .................. IV . Para. 2c(l). (4). (5) .......... 
 Aider and abettor ...................................IV. Para. lb(1) ................. 
 Generally ..........................................IV. Para. 1 ..................... 
 Perpetrator .........................................IV . Para. lb(1). (2)(a) ........... 
 Pleading ..........................................R.C.M. 307(c)(3)(H)(i) ........... Prior testimony. admissibility ............................ Mil. R. Evid. 804(b)(l) .......... Prisoner 

See also Confinement. 

Authority to release 

From post-trial confinement ...................... R.C.M. 1101(b)(2) ............... From pretrial confinement ....................... R.C.M. 305(g) .................. 
 Drinking liquor with ................................IV. Para. 74 .................... 
 Drunk ............................................ IV. Para. 75 .................... 
 Jurisdiction over ....................................Art. 2(a)(7), UCMJ. R.C.M. 202(a) 


Release of. without proper authority ................... IV. Para. 20 .................... 
 Suffering to escape .................................IV. Para. 20 .................... 
 Prisoner of war 

Jurisdiction over ....................................Art. 2(a)(9). UCMJ. R.C.M. 202(a) 


Misconduct as .....................................IV. Para. 29 ................... Privileged matter .See Evidence, Privileges. Probable cause 

See also Search and seizure . Apprehension ......................................R.C.M. 302(c) .................. 
 Confinement 

Pending vacation of suspension ................... R.C.M. 1109(c)(3) ............... Pretrial ........................................R.C.M. 305(d). (h)(2)(B) ......... Restraint. pretrial ................................... R.C.M. 304(c) .................. 
 Mil. . Seizure ............................................Mil. R. Evid. 316(b) ............ Search ............................................ R Evid. 315(f) ............. 


Probation 

See also Suspension of sentence . Generally ..........................................R.C.M. 1108 ................... 
 Pretrial agreement .................................. R.C.M. 705(c)(2)(D) ............. Proceedings in revision .................................R.C.M. 1102(b)(l) ............... Procuring another to commit offense .................... IV. Para. 1 ..................... Production of witnesses and evidence 

See also Witness. Evidence ..........................................R.C.M. 703(a). (f) ............... 
 Expert witnesses ....................................R.C.M. 703(d) .................. 
 Generally ..........................................R.C.M. 703 .................... 
 Interlocutory questions ............................... R.C.M. 703(b). (c) .............. 
 Investigation. pretrial ................................R.C.M. 405(g) .................. 
 Merits ............................................R.C.M. 703(b). (c) .............. 
 Procedure .........................................R.C.M. 703(e); Appendix 7 ....... 
 Sentencing ......................................... R.C.M. 703(b)(2); 1001(e) ........ 
 Statements of witnesses .............................R.C.M. 914 .................... 
 Unavailable evidence ................................ R.C.M. 703(f)(2) ................ 
 Unavailable witness ................................. R.C.M. 703(b)(3) ................ 
 Professional supervision, militmy judges and counsel ...... R.C.M. 109 .................... Promulgating orders 

Authentication ......................................R.C.M. 1114(e) ................. 
 Classified information ...............................R.C.M. 1114(d) ................. 
 Contents ..........................................R.C.M. 1114(c) ................. 
 Distribution ........................................R.C.M. 1114(f) ................. 
 Forms for .........................................Appendix 17 ................... 
 Generally ..........................................R.C.M. 1114 ................... 
 Summary court-martial. not issued for ................. R.C.M. 1 1 14(a)(3) ............... 
 Who issues ........................................R.C.M. 1114(b) ................. 


Index 48 

MCM. 1998 INDEX 

Subject Ref . 
 Escort ............................................R.C.M. 502(e)(l) ................ 
 Individual counsel .................................. R.C.M. 502(d)(3) ................ 
 Interpreter ......................................... R.C.M. 502(e)(l); Mil . R. Evid. 604 


Lack of. action on discovery .........................R.C.M. 5020 .................. 
 Members ..........................................R.C.M. 502(a)(l) ................ 
 Military judge .....................................R.C.M. 502(c) .................. Orderly ...........................................R.C.M. 502(e)(l) ................ President of court-martial ............................R.C.M. 502(b)(l) ................ Reporter ...........................................R.C.M. 502(e)(l) ................ Trial counsel .......................................R.C.M. 502(d)(l), (2) ............ Quarantine. medical. breaking .......................... IV. Para. 100 ................... Questions 

See also Testimony; Witness . Ambiguous and misleading .......................... Mi. R. Evid. 611(a) ............. 
 Control by military judge ............................ Mil. R. Evid. 611(a) ............. 
 Degrading ......................................... Mil. R. Evid. 303;611(a) ......... 
 Improper. insulting ..................................Mil. R. Evid. 611(a) ............. 
 Interlocutory. See Interlocutory questions . 
 Leading ........................................... Mil. R. Evid. 611(c) ............. 
 Refusal to answer. as offense ........................ IV. Para. 108 ................... 
 Suggesting inadmissible matter ....................... Mil. R. Evid. 61 1(a) ............. 
 Questions of law, rulings on ............................ R.C.M. 801(a)(4), (e)(l), (2) ...... 
 Quitting guard ........................................N. Para. 10 .................... 
 See also Sentinel or lookout . 
 Quitting place of duty to avoid hazardous duty .......... IV. Para. 9 ..................... 
 Quitting place of duty to plunder or pillage ............. N. Para. 23 .................... 
 Radio. broadcasting from courtroom ...................... R.C.M. 806(c) .................. 
 Rape 


Assault with intent to commit ........................ IV. Para. 64 .................... 
 Evidence of similar crimes ........................... M.R.E. 413. 414 ................ 
 Generally ..........................................IV. Para. 45 .................. 
 Murder while committing ............................IV. Para. 43 .................... 
 "Rape shield" .........................................Mil. R. Evid. 412 ............... Reasonable doubt 

Guilt. basis for finding of ........................... R.C.M. 918(c) .................. Instruction on ......................................R.C.M. 920(e)(5) ................ Rebuttal. evidence in ...................................R.C.M. 913(c)(l)(C); 1001(d) ..... Receipt 

Delivering less than amount called for by ............. IV. Para. 58 .................... 
 False .............................................IV. Para. 58 .................... 
 Making or delivering. without knowledge of facts ....... IV. Para. 58 .................... 
 Receiving stolen property ...............................IV. Para. 106 ................... 
 Recess. announcement of personnel after ................... R.C.M. 813(b) .................. 
 Reciprocal jurisdiction .................................R.C.M. 201(e) .................. 
 Recklessly operating vehicle .............................IV. Para. 35 .................... 
 Recollection refreshed .................................. Mil. R. Evid. 612 ............... 
 Recommendation of staff judge advocate or legal officer on 


post-trial action 


Disqualification .....................................R.C.M. 1106(b) ................. 
 Fonn and content ..................................R.C.M. 1106(d) ................. 
 Generally .......................................... R.C.M. 1106 ................... 
 Guilty. no findings of ............................... R.C.M. 1106(e) ................. 
 Service on defense counsel .......................... R.C.M. 1106(f) ................. 
 Reconsideration 

Findings .......................................... R.C.M. 924 .................... 
 Rulings by military judge ........................... R.C.M. 905(f) .................. 
 Sentence ..........................................R.C.M. 1009 ................... 
 Record of nonjudicial punishment ....................... V. Para. 8 ..................... Record of trial 

Acquittal ..........................................R.C.M. 1103(e) ................. 
 Appeal by United States. prepared in ................. R.C.M. 908(b)(5) ................ 
 Audiotape .........................................R.C.M. 1103Q) ................. 
 Authentication ......................................R.C.M. 1104(a) ................. 
 Contempt proceedings ............................... R.C.M. 809(d) .................. 


Index 50 

Page 

11-46 

11-43 

11-46; 11-31 

11-46 

11-42 

11-43 

11-46 

11-43 

11-46 

11-43 

IV-119 

INDEX 

Subject Ref. Withholding. authority to ............................R.C.M. 601(b) .................. Refreshing recollection .................................Mil. R. Evid. 612 ............... 
 Refusal to testify. wrongful .............................IV. Para. 108 ................... 
 Regulations. failure to obey .............................IV. Para. 16 .................... 
 Rehearing 


Action on .........................................R.C.M. 1107(f)(5) ............... 
 Former testimony. admissibility at .................... Mil. R. Evid. 804(b)(l) .......... 
 Ordering ..........................................R.C.M. 1 107(c)(2)@). (e)(l) ...... Procedure 

Composition ...................................R.C.M. 8010) .................. Generally ......................................R.C.M. 810 .................... 
 Record. examination of ..........................R.C.M. 810(c) .................. 
 Sentence limitations ................................. R.C.M. 810(d) .................. 
 Pretrial agree men^ effect of ...................... R.C.M. 810(d)(2) ................ Releasing prisoner without proper authority .............. IV. Para. 20 ..................... Relevancy.See Evidence. Relief. not affording. before enemy ...................... IV. Para. 23 .................... Religious beliefs or opinions. not subject to inquiry ........ Mil . R. Evid. 610 ............... Remission of 

Nonjudicial punishment ..............................V. Para. 6c ................... Sentence 

Generally ......................................R.C.M. 1108(a) ................. Of suspension ..................................R.C.M. 1108(e) ................. Who may remit 

Convening authority .......................... R.C.M. 1108(b) ................. Judge Advocate General. The .................. R.C.M. 1201(c) ................. Service Secretary .............................R.C.M. 1206(b)(l) ............... Reopening case ........................................R.C.M. 913(c)(5) ................ Report of 

Offense 

Failure to make ................................ IV. Para. 2c(2) ................. Generally ...................................... R.C.M. 301 .................... 
 Result of trial ..................................... R.C.M. 1101(a) ................. Reporter 

Announcement of ...................................R.C.M. 813(a)(8) ................ At investigation. pretrial .............................R.C.M. 405(d)(3)(B) ............. Detailing ..........................................R.C.M. 501(c) .................. 
 Disqualif~cation.....................................R.C.M. 502(e)(2), (0 ............ 
 Duties ............................................R.C.M. 502(e)(3)@) ............. Oath 

Administered ................................... R.C.M. 807(b): 901(c) ........... Status as to ................................... R.C.M. 901(c) ................ 
 Payment of ........................................R.C.M. 502(e)(4) ................ 
 Qualifications ......................................R.C.M. 502(e)(l) ................ Record of trial. preparation .......................... R.C.M. 1103; 1104 .............. See also Record of trial . Reprimand 

Court-martial. military judge. member. counsel. prohibited R.C.M. 104(a)(l) ................ Nonjudicial punishment ..............................V. Para. 5c(l) .................. Sentence .......................................... R.C.M. 1003(b)(l) ............... 
 Reproachful speech or gestures ......................... IV. Para. 42 .................... 
 Reputation. See Evidence. Character. 
 Requesting commission of offense ....................... IV. Para. 101 ................... 
 Rescission of deferment of confinement .................. R.C.M. 1 10 1 (c)(6)(D). (7) ........ 
 Reserve personnel. eligibility for court-martial duty ....... R.C.M. 502(a)(l) ................ 
 Resignation. quitting post or duties before 


notification of acceptance, as desertion ................. IV. Para. 9 ..................... 
 Resisting apprehension ................................. IV. Para. 19 .................... 
 Res judicata ..........................................R.C.M. 905(g) .................. Restoration 

Generally ......................................... R.C.M. 1208 ................... To duty. as condonation of desertion .................. R.C.M. 907@)(2)(D)(iii) .......... Restraint 

Attachment of jurisdiction. effecting ................... R.C.M. 202(c)(2) ................ 

Index 52 

Page 

11-53 

in-35 

IV-127 

1v-23 

MCM. 1998 INDEX 

Subject Ref . Page 

Authorization to 

Apprehend. when required ....................... R.C.M. 302(e)(2) ............... 11-18 

Search 

Basis .......................................Mil. R. Evid. 315(f) ............. Defined .....................................Mil. R. Evid. 315(b)(l) .......... Execution of .................................Mil. R. Evid. 315(h) ............ Power to grant ...............................Mil. R. Evid. 315(d) ............ Power to search ..............................Mil. R. Evid. 315(e) ............. Rules of evidence not applicable to determination . Mil. R. Evid. 1101(d) ........... Scope .......................................Mil. R. Evid. 315(c) ............. Seize .......................................Mil. R. Evid. 3 16(d)(4)(A) ....... Automobile searches 

Based upon probable cause ...................... Mil. R. Evid. 315(g)(3) .......... Incident to apprehension ......................... Mil. R. Evid. 314(g)(2) .......... On less than probable cause ..................... Mil. R. Evid. 314(f)(3) .......... Blood samples . See Body views and intrusions. this heading . Body views and intrusions 

Extraction of body fluid ......................... Mil. R. Evid. 312(d) ............ Generally ......................................Mil. R. Evid. 312(a) ............. Inspections 

Body view during ............................ Mil. R. Evid. 312(b)(2) .......... Urine production .............................Mil. R. Evid. 313(b) ............ Intrusions for medical purposes ................... Mil. R. Evid. 312(f) ............. Intrusions. generally ............................. Mil. R. Evid. 312(c) ............. Intrusions into body cavities ..................... Mil. R. Evid. 312(c) ............. Medical qualifications ........................... Mil. R. Evid. 312(g) ............ Visual examination of the body .................. Mil. R. Evid. 312(b) ............ Border searches ....................................Mil. R. Evid. 314(b) ............ Burden of proof 

General ....................................... Mil. R. E31irl. 31 1(e) ............. Government's burden enhanced 

Consent, voluntariness .........................Mil. R. Evid. 314(e)(5) .......... Inspections .................................. Mil. R. Evid. 313(b) ............ On the accused 

Adequate interest. standing ..................... Mil. R. Evid. 31 1(a)(2) .......... False statements. challenging probable cause ...... Mil. R. Evid. 311(g)(2) .......... Commander 

Neutral and detached ............................ Mil. R. Evid. 3 15(d) ............ Power to authorize search ....................... Mil. R. Evid. 315(d)(l) .......... Confinement facilities. searches within ................. Mil. R. Evid. 31401) ............ Consent 

Body views ................................... Mil. R. Evid. 312(b)(l) .......... Entry to apprehend .............................R.C.M. 302(e)(2)(A) ............. To search .....................................Mil. R. Evid. 314(e) ............. To seize ......................................Mil. R. Evid. 316(d)(2) .......... Voluntariness. burden of proof ................... Mil. R. Evid. 314(e)(5) .......... Who can consent ...............................Mil. R. Evid. 314(e)(2) .......... Derivative evidence .................................Mil. R. Evid. 3 1 1 (e)(2) .......... Detention. investigative of 

Persons .......................................Mil. R. Evid. 314(f)(l) .......... Property .......................................Mil. R. Evid. 316(d)(5) .......... Disclosure .........................................Mil. R. Evid. 31 l(d)(l) .......... Eavesdropping ...................................... Mil . R . Evid . 317 ............... Emergency searches .................................Mil. R. Evid. 314(i) ............. Entry and exit points 

Inspections at ..................................Mil. R. Evid. 313(b) ............ Overseas. searches ..............................Mil. R. Evid. 314(c) ............. Entry to apprehend. requirements for .................. R.C.M. 302(e)(2) ................ Exclusionary rule 

General ....................................... Mil. R. Evid. 311(a) ............ Wire and oral communications ................... Mi. R. Evid. 317 .............. Exigent circumstances 

Entry to apprehend ............................. R.C.M. 302(e)(2)(B) ............. Search ........................................Mil. R. Evid. 315(g) ............ 

Index 54 





MCM. 1998 INDEX 

Subject Ref . Page 

Motions. generally ..............................R.C.M. 905(d) ............ 11-93 

Motions to suppress 

Confessions and admissions .................. Mil. R. Evid. 304(d)(4) .......... Evidence of eyewitness identification .......... Mil. R. Evid. 321(f) ............. Product of search and seizure ................ Mil. R. Evid. 311(d)(4) .......... Specifications. See Charges and specifications. Spectators 

Access to court-martial .............................. R.C.M. 806(a) .................. 
 Control of .........................................R.C.M. 806(b) .................. 
 Witnesses as .......................................Mil. R. Evid. 615 ............... Speech. provoking .....................................IV. Para. 42 .................... Speedy trial 

Accountability 

Inception of time period ......................... R.C.M. 707(b) (1) ............... 
 Termination of time period ...................... R.C.M. 707i.b) (1) ............... Arrest 

Effect of .....................................R.C.M. 707(a)(2) ................ Release from ..................................R.C.M. 707 (b)(3)(B) ............ Confinement. pretrial 

Effect of ......................................R.C.M. 707(a)(2) ................ 
 Release from ..................................R.C.M. 707(b) (3)(B) ............ 
 Dismissal of charges 


Effect of ......................................R.C.M. 707(b)(3)(A) ............. 
 Motion for ....................................R.C.M. 905(c)(2)(B); 907(b)(2)(A) . 
 Remedy for violation ........................... R.C.M. 707 (d) ................. 
 Excluded periods ...................................R.C.M. 707!c) .................. 
 Generally ......................................... R.C.M. 707 .................... Imposition of restraint. effect of ...................... R.C.M. 707(a)(2) ................ Mistrial. effect of ..................................R.C.M. 707(b)(3)(A) ............. Motion concerning 

Burden of proof ................................R.C.M. 905(c)(2)(B) ............. 
 Grounds .......................................R.C.M. 907(b)(2)(A) ............. 
 Multiple charges. effect of ........................... R.C.M. 707(b)(2) ................ 
 Referral of charges. effect of ........................ R.C.M. 707(b)(2) ................ 
 Pretrial agreement. waiver of right not permitted ....... R.C.M. 705(c)(l)(B) ............. 
 Remedy for denial of ...............................R.C.M. 707 (d) ................. 
 Time periods ......................................R.C.M. 707(a), (d) .............. 
 Spies.See Spying. 
 Spontaneous exclamation .............................. Mi. R . Evid . 803(2) ............
 Spouses. privilege as to .................................Mil. R. Evid. 504 ............... spyingGenerally ..........................................IV. Para. 30 .................... 
 Votes required to convict ............................ R.C.M. 921(c)(2)(A) ............. 
 Staff judge advocate 

See also Advice. pretrial . Charges and specifications. amendment by ............. R.C.M. 603(b) .................. 
 Communications with 

Convening authority ............................R.C.M. 105(a) .................. 
 Judge Advocate General. The .................... R.C.M. 105(b) .................. 
 Staff judge advocates ........................... R.C.M. 105(b) .................. 
 Defmed ...........................................R.C.M. 103(17) ................. 
 Execution of sentence. advice on ..................... R.C.M. 1113(c)(l) ............... 
 Member. ineligible to serve as ....................... R.C.M. 912(f)(l)(G). (H) ......... 
 Military judge. disqualified after acting as ............. R.C.M. 902(b)(2) ................ 
 Pretrial agreement. negotiations ....................... R.C.M. 705(d)(l) ................ 
 Recommendations. post-trial 


Disqualification .................................R.C.M. 1106(b) ................. 
 Form and content .............................. R.C.M. 1106(d) ................. 
 Generally ......................................R.C.M. 1106 ................... 
 No findings of guilty ........................... R.C.M. 1106(e) ................. 
 Not guilty. lack of mental responsibility ........... R.C.M. 1106(e) ................. 
 Service on defense counsel ...................... R.C.M. 1106(f) ................. 
 Standing. See Search and seizure; Self-incrimination. 

State law 

Index 60 

MCM. 1998 INDEX 

Subject Ref. Evidence. production of .............................R.C.M. 1301(f) ................. Function ......................................... R.C.M. 1301(b) ................ 
 Generally ..........................................II. Chapter XI11 ................. 
 Jurisdiction over persons and offenses ................. R.C.M. 1301(c) ................. 
 Military judge, included in definition of ............... R.C.M. 103(15) ................. 
 Noncapital offenses .................................R.C.M. 1301(c) ................. 
 Objection to trial by ................................R.C.M. 1303 ................... Procedural guide ...................................Appendix 9 .................... Procedure 

Post-trial ...................................... R.C.M. 1306 ................... Pretrial ........................................R.C.M. 1304(a) ................. 
 Trial ..........................................R.C.M. 1304(b) ................. 
 Punishments .......................................R.C.M. 1301(d) ................. Record of triai 

Authentication ..................................R.C.M. 1305(c) ................. Format ........................................Appendix 15 ................... 
 Forwarding copies .............................. R.C.M. 1305(d) ................. 
 Preparation ....................................R.C.M. 1103(d); 1305 ........... 
 Review by summary court-martial ................. R.C.M. 1103(i)(2); 1305(a) ....... 
 Referral of charges to ...............................R.C.M. 403(b)(4); 601(d)(l) ...... 
 Basis .........................................R.C.M. 601(d)(l) ................ 
 By general court-martial convening authority ....... R.C.M. 407(a)(4) ................ 
 By special court-martial convening authority ........ R.C.M. 404(d) .................. 
 By summary court-martial convening authority ...... R.C.M. 403(b)(4) ................ 
 Review 


By a judge advocate ............................R.C.M. 1306(c) ................. 
 By The Judge Advocate General ................. R.C.M. 1306(d) ................. 
 Subpoena, authority to issue ......................... R.C.M. 703(e)(2)(C); 1301(f) ...... 
 Vacation of suspended sentence ...................... R.C.M. 11 09(e) ................. 
 Witnesses, production ............................... R.C.M. 1301(f) ................. 
 Supreme Court, Appeal of courts-martial (Art.67(h), UCMJ) . R.C.M. 1205 ................... 
 Surrender 


Shameful (Art . 99, UCMJ) ........................... IV. Para. 23 .................... 
 Subordinate compelling (Art . 100, UCMJ) .............. IV. Para. 24 .................... 
 Suspension of military judge, counsel .................... R.C.M. 109 .................... 
 Suspension of nory'udicial punishment ................... V. Para. 6a .................... 
 Suspension of sentence 


Conditions of suspension ............................R.C.M. 1108(c) ................. 
 Generally ..........................................R.C.M. 1108 ................... 
 Limitations ........................................R.C.M. 1108(d) ................. Termination by remission ............................ R.C.M. 1108(e) ................. Vacation of suspension 

Confinement pending ............................ R.C.M. 11 09(c) ................. Generally ......................................R.C.M. 1109 ................... 
 Procedure .....................................R.C.M. 1109(d), (e) ............. 
 Report of proceedings ........................... Appendix 18 ................... 
 Time for ......................................R.C.M. 1109(b) ................. 
 Who may suspend ..................................R.C.M. 1108(b) ................. 
 Swearing 

See also Oaths. False .............................................IV. Para. 79 .................... 
 Taking, wrongful ......................................IV. Para. 46 .................... See also Larceny. Telephone, tapping .....................................Mil. R. Evid. 317 ............... Television, broadcasting from courtroom prohibited .......... R.C.M. 806(c) .................. Testify 

Accused, failure to .................................Mil. R. Evid. 301(f)(l), (g) ....... 
 Wrongful refusal ...................................IV. Para. 108 ................... 
 Testimony 

Expert. See Evidence, Expert. False .............................................IV. Para. 57 .................... See also Perjury. How taken in court-martial ..........................R.C.M. 913(c)(2) ................ 
 Interpreter, given through ............................Mil. R. Evid. 604 ............... 


Index 62 

Page 

11-177 

11-176 

11-176 

11-177 

11-2 

11-177 

Il-177 

A9-1 

11-180 

11-177 

11-178 

11-176 

MCM. 1998 INDEX 

Subject Ref. Page 

For courts-martial 

Accused. responsibility for ....................... R.C.M. 804(c)(l) ................ Military judge. determination ..................... R.C.M. 801(a)(l) ................ Wearing unauthorized insignia. badge. ribbon. device. IV. Para. 113 ................... 
 or lapel button ................................... 
 Uniform Code of Military Justice (UCMJ) ............... Appendix 2 .................... 
 Failure to enforce or comply with .................... IV. Para. 22 .................... 
 Unit. separate or detached. defined ...................... R.C.M. 504(b)(2)(A) ............. 
 Unlawful apprehension ................................. IV. Para. 21 .................... 
 Unlawful detention .....................................IV. Para. 21 .................... 
 Unlawful enlistment. appointment. separation ............. IV. Paras. 7; 8 ................. 
 Unlawful entry ........................................IV. Para. 111 ................... 
 Unsworn charges 


Amendment resulting in ............................. R.C.M. 603(d) .................. 
 Prefemal ...........................................R.C.M. 307(b) .................. 
 Unsworn statement 

Accused 

h~vestigation. pretrial. right to make ............... R.C.M. 1001(c)(2)(C) ............ Presentencing proceeding. right to make ........... R.C.M. 405(f)(12) ............... Investigation. pretrial. objection to use at .............. R.C.M. 405(g)(4)(A)(vi) ......... 
 Use. wrongful. of controlled substance ................... IV. Para. 37 .................... 
 Uttering forged instrument ............................. IV. Para. 48 .................... 
 Uttering worthless check ...............................IV. Para. 49 .................... Vacation of suspended punishment 

Confinement. pending ...............................R.C.M. 1109(c) ................. 
 General court-martial sentence ........................R.C.M. 1109(d) ................. 
 Generally ..........................................R.C.rq!. 1109 ................... 
 Nonjudicial punishment ..............................V. Para. 6a(4) .................. 
 Report of proceedings ...............................Appendix 18 ................... 
 Special court.martial. bad-conduct discharge ............ R.C.M. 1109(d) ................. 
 Special court-martial sentence. no bad-conduct discharge . R.C.M. 11W(e) ................. 
 Summary court-martial ..............................R.C.M. 1109(e) ................. Value. discussed under larceny ...........................IV. Para. 46c(l)(g) .............. Vehicle 

Defined ...........................................R.C.M. 103 .............. 
 Driving recklessly or while drunk ..................... IV. Para. 35 .............. Venue. See Place of court.martia1 . Veracity. impeachment of witnesses . See Evidence. 

Impeachment. Verbatim record .......................................R.C.M. 1103(b)(2)@). (c)(l) ...... Verdict.See Findings. Vessel 

Hazarding .........................................IV. Para. 34 .................... 
 Jumping from ......................................IV. Para. 91 .................... 
 Videotaped record of trial .............................. R.C.M. 1103(j) ................. Views and inspections. by court-martial ................... R.C.M. 913(c)(3) ................ Violence. offering to superior commissioned officer ....... IV. Para. 14 .................... Voir dire 

See also Challenges. 
 Members ..........................................R.C.M. 912(d) .................. 
 Military judge .....................................R.C.M. 902(d)(2) ................ 
 Use of questionnaire ................................ R.C.M. 912(a)(l) ................ Voluntary manslaughter ................................ 1V. Para. 44 .................... Voting. See Deliberations and voting . Charges and specifications 

Defects in .................................... R.C.M. 905(b)(2) ................ Reading ....................................... R.C.M. 904 .................... 
 ullsworn ...................................... R.C.M. 603(d) .................. 
 Waiver 

Appellate review ................................... R.C.M. 1110 ................... 
 Form for waiver ...............................Appendix 19 ................... 
 Argument. objections to .............................R.C.M. 919(c) .................. By pretrial agreement ...............................R.C.M. 705(c)(2)(E) ............. Challenges 

Index 64 

MCM. 1998 INDEX 

Subject Ref. Page 

Appear. neglect or refusal to ......................... R.C.M. 703(e)(2)(G) ............. 11-66 

Competency .......................................Mil. R. Evid. 601 ............... 111-33 

Discovery. See Disclosure and discovery. Examination. See Questions; Testimony . Expert. employment of .............................. R.C.M. 703(d) ............. Failure to call ..................................... R.C.M. 701(c) ............. Immunity. See Immunity. Impeachment. See Evidence. Impeachment. Members. disqualified as ............................R.C.M. 912(f)(l)(D) ............. Military judge. disqualified as ........................ R.C.M. 902(b)(3) ................ Oath ............................................. R.C.M. 807(b) .................. 
 Pejury ............................................IV. Para. 57 .................... 
 Pretrial agreement concerning ........................ R.C.M. 705(c)(2)(B), (E) ......... 
 Privileges. See Evidence, Privileges. 
 Production of 


Determination ..................................R.C.M. 703(c) .................. 
 Generally ......................................R.C.M. 703 .................... 
 Motion for ....................................R.C.M. 905(b)(4); 906(b)(7) ...... 
 Pretrial investigation ............................R.C.M. 405(g) .................. 
 Procedure for .................................. R.C.M. 703(e); Appendix 7 ....... 
 Rights of parties. court-martial ................... R.C.M. 703@) .................. 
 Sentencing .....................................R.C.M. 1001(e) ................. 
 Subpoena ......................................R.C.M. 703(e)(2); Appendix 7 


Trial counsel. responsibility ...................... R.C.M. 703(c)(l), (2)(D) ......... Statements of. production ............................ R.C.M. 914 .................... Unavailable 

Court-martial ................................... R.C.M. 703(b)(3) ................ 
 Pretrial investigation ............................ R.C.M. 405(g)(l) ................ 
 Worthless checks . See Checks. Writings 

Authentication of ...................................Mil. R. Evid. 901; 902 .......... Best evidence rule . See Evidence, Contents of writings. 

recordings. and photographs . Used to refresh memory ............................. Mil. R. Evid. 612 ............... 
 Wrongful appropriation ................................iV . Para. 46 .................... 
 Wrongful cohabitation .................................IV. Para. 69 .................... 


4 U.S. GOVERNMENT PRINTING OFFICE: 1998 - 448 -023 190912 

Index 66