CHANGES TO THE MANUAL 

FOR COURTS-MARTIAL OF 

INTEREST TO LAW 

ENFORCEMENT OFFICERS 

Keith Hodges 

Senior Legal Instructor 

On April 11, 2002, President Bush 

signed Executive Order 13262 amending the 

Manual for Courts-Martial (MCM). Those 

provisions of interest to law enforcement 

officers (LEOs) are summarized here. 

These changes are reflected in MCM 2002. 

CHANGES TO THE NATURE OF 

OFFENSES AND AVAILABLE 

DEFENSES

Elimination of “suspect exception” 

to False Official Statement Offenses 

(Article 107). Prior to the change, it was a 

possible MCM defense to a charge of 

making a false official statement that the 

statement was made by a suspect during an 

interrogation unless the suspect had an 

independent duty or obligation to speak. 

This defense has been eliminated. EFFECT 

ON LAW ENFORCEMENT: The MCM 

2000 suggested that the correct offense 

when a suspect lied to interrogators was 

false swearing if the statement was under 

oath. Now, when suspects lie to 

interrogators, charge false official statement. 

When the lie is made under oath, charge 

false swearing. 

Larceny Using ATM Cards or 

Electronic Transactions (Article 121). 

When an accused was charged with 

wrongfully using an ATM, credit, debit, or 

similar card or code to obtain goods or 

money, there was a split of opinion whether 

this larceny was a “taking” or “obtaining.” 

The change makes clear that this offense is 

an “obtaining” by false pretenses. EFFECT 

ON LAW ENFORCEMENT: This 

clarification affects primarily trial counsel 

and military judges who prefer or instruct 

upon charges. LEOs, however, should 

always consult the MCM for the elements of 

an offense, and their definitions, during an 

investigation and before interrogations. 

Adultery as Prejudicial to Good 

Order and Discipline or Service 

Discrediting (Article 134). Adultery, like 

most Article 134 offenses, requires the 

government to prove the act was to the 

prejudice of good order and discipline in the 

armed forces or of a nature to bring discredit 

upon the armed forces. Not every act of 

adultery can meet this test. MCM 2002 now 

provides general guidance and a list of 

factors to assist in deciding whether the 

adultery meets this element, including 

factors that focus on the facts and 

circumstances surrounding the relationship 

of the actors, the circumstances of the 

offense, and the effect the adultery had on 

the military. EFFECT ON LAW 

ENFORCEMENT: When LEOs are involved 

in investigating adultery cases, they should 

review the new MCM factors and collect 

evidence so commanders can make good 

decisions, and the trial counsel will be 

armed with sufficient evidence should the 

case be tried. 

The significance of separations 

and mistake of fact in adultery offenses. 

The change provides that a marriage exists 

until it is dissolved in accordance with the 

laws of a competent state or foreign 

jurisdiction. It is no defense that the married 

participant is legally separated at the time of 

the offense, although it may be a factor in 

whether the conduct was prejudicial or 

service discrediting. In addition, MCM 2002 

recognizes a defense of mistake of fact if the 

accused had an honest and reasonable belief 

either that the accused and the co-actor were 
both unmarried, or that they were lawfully 

married to each other. EFFECT ON LAW 

ENFORCEMENT: In adultery 

investigations, and especially in 

interrogations of a suspect, LEOs should 

determine whether the accused may assert a 

mistake of fact claim, and then develop 

evidence that confirms or refutes the claim. 

CHANGES IN COURTS-MARTIAL 

PROCEDURE

Gag orders. A military judge may 

now issue a protective order to prevent the 

counsel, the accused, and witnesses from 

making “extrajudicial statements that 

present a substantial likelihood of material 

prejudice to a fair trial by impartial 

members.” (R.C.M. 806(d)). EFFECT ON 

LAW ENFORCEMENT: LEOs must 

scrupulously obey a gag order. When there 

is a gag order and the investigation 

continues during the trial or while the trial is 

pending, LEOs should seek guidance from 

trial counsel on the effect of a gag order if 

the officer needs to discuss the offense with 

others. 

Sequestration of witnesses from 

the courtroom. Before the change, M.R.E. 

615 provided that, with some exceptions, a 

military judge “shall exclude” witnesses 

from a courts-martial if counsel for either 

side requests it. The old rule seemed to 

require sequestering crime victims who were 

to testify in the sentencing proceedings 

unless there was a statutory provision that 

permitted their presence. The change 

permits some victim-witnesses to be in the 

courtroom. EFFECT ON LAW 

ENFORCEMENT: LEOs with victimwitness responsibilities may have to 

reexamine their policies. Though the 

change might permit some victim-witnesses 

to remain in the courtroom, there may be 

instances where the trial counsel would still 

prefer to sequester the witness. Consult the 

trial counsel before telling a victim they may 

attend the proceedings. 

Defense not required to disclose 

certain information that is privileged 

under the psychotherapist-patient 

privilege. Under the reciprocal discovery 

provisions, the defense can be required to 

disclose certain information. A change to 

R.C.M. 701 makes clear that disclosure 

would not include privileged matters 

protected under the psychotherapist-patient 

privilege in M.R.E. 513. (R.C.M. 701.) 

EFFECT ON LAW ENFORCEMENT: Law 

enforcement must remember that 

communications between a patient and their 

psychotherapists are privileged and cannot 

be obtained until a claim of privilege is 

resolved. Use great caution when 

investigating cases that lead to reviewing or 

seizing medical records. 

Types of civilian convictions 

admissible during sentencing. Both 

military and civilian convictions are 

admissible during the sentencing phase of a 

trial. Civilian convictions include “any 

disposition following an initial 

determination or assumption of guilt, such 

as when guilt has been established by guilty 

plea, trial, or plea of no lo contendre, 

regardless of the subsequent disposition, 

sentencing procedure, or final judgment.” 

Deferred adjudications and the following are 

not convictions for sentencing purposes: “a 

diversion from the judicial process without a 

finding or admission of guilt; expunged 

convictions; juvenile adjudications; minor 

traffic violations; foreign convictions; tribal 

court convictions; or convictions reversed, 

vacated, invalidated or pardoned because of 

errors of law or because of subsequently 

discovered evidence exonerating the 

accused.” R.C.M. 1001(b)(3)(A). EFFECT 

ON LAW ENFORCEMENT: LEOs, not trial 
counsel, have the best sources to determine 

an accused’s criminal past. When NCIC or 

other sources of criminal information are not 

clear that there has been a finding of guilt (a 

conviction), LEOs should obtain the court 

records so the trial counsel may determine 

whether the matter is a conviction. In 

addition, LEOs should note that what is a 

conviction for purposes of impeachment 

(M.R.E. 609) is narrower than a conviction 

for sentencing purposes. 

CHANGES TO MAXIMUM 

PUNISHMENTS

Maximum confinement and 

forfeitures in a Special Court-Martial 

increased to 1 year. Prior to the change, 

the maximum confinement and period of 

forfeitures at a special court-martial was 

only 6 months. (R.C.M. 201(f)(2)(B)). 

EFFECT ON LAW ENFORCEMENT: 

LEOs can expect that some cases that would 

have been tried at a general court-martial 

will now be tried at a special. A special 

court-martial does not require an Article 32 

investigation. 

Both fines and forfeitures may be 

adjudged at any court-martial. Prior to 

the change, summary and special courtsmartial could adjudge fines or forfeitures, 

but not both. That limitation was removed. 

R.C.M. 1003(b)(3) 

 

Confinement for life without 

eligibility for parole. The MCM change 

incorporates an earlier U.C.M.J. change 

providing that a sentence of life without 

eligibility for parole is permitted in cases 

where confinement for life is authorized. 

Confinement for life without eligibility for 

parole is also available in cases where the 

death penalty is authorized, except for 

convicted spies under Article 106 where the 

death penalty is mandatory. R.C.M. 

1003(b)(7), R.C.M. 1004(e) 

CHANGES TO SENTENCING 

THRESHOLDS

EFFECT ON LAW ENFORCEMENT: In 

light of these changes, agencies may wish to 

reconsider policies on investigative 

jurisdiction. 

The following is not a modified table of 

maximum punishments, but only an 

illustration of changes made to certain 

offenses. The maximum punishments have 

not changed, just the thresholds. 
Offense Old Threshold New Threshold To impose a 

punishment of 

Article 103, Offenses involving captured 

or abandoned property 

$100 or less $500 or less BCD, 6 months 

Article 103, Offenses involving captured 

or abandoned property 

More than $100 More than $500 

or any firearm 

or explosive 

DD, 5 years 

Article 108, Military property offenses - 

Selling or disposing; willful damage, 

destruction, losing and willful suffering 

$100 or less $500 or less BCD, 1 year 

Article 108, Military property offenses - 

Selling or disposing; willful damage, 

destruction, losing and willful suffering 

More than $100 More than $500 DD, 10 years 

Article 108, Military property offenses - 

Neglect 

$100 or less $500 or less 6 months 

Article 108, Military property offenses - 

Neglect 

More than $100 More than $500 BCD, 1 year 

Article 109, Military property - Wasting 

etc. 

$100 or less $500 or less BCD, 1 year 

Article 109, Military property - Wasting 

etc. 

More than $100 More than $500 DD, 5 years 

Article 121, Larceny, Military property $100 or less $500 or less BCD, 1 year 

Article 121, Larceny, Military property More than $100 More than $500 DD, 10 years 

Article 121, Larceny, other than military 

property 

$100 or less $500 or less BCD 6 months 

Article 121, Larceny, other than military 

property 

More than $100 More than $500 DD, 5 years 

Article 121 

Wrongful appropriation 

$100 or less $500 or less 3 months 

Article 121 

Wrongful appropriation 

More than $100 More than $500 BCD, 6 months 

Article 123a, Check offenses, intent to 

defraud 

$100 or less $500 or less BCD 6 months 

Article 123a, Check offenses, intent to 

defraud 

More than $100 More than $500 DD, 5 years 

Article 126, Simple arson $100 or less $500 or less DD, 1 year 

Article 126, Simple arson More than $100 More than $500 DD, 5 years 

Article 132, False claims, false writings, 

papers, and oath 

$100 or less $500 or less BCD, 6 months 

Article 132, False claims, false writings, 

papers, and oath 

More than $100 More than $500 DD, 5 years 
Offense Old Threshold New Threshold To impose a 

punishment of 

Article 134, Obtaining services under 

false pretenses 

$100 or less $500 or less BCD, 6 months 

Article 134, Obtaining services under 

false pretenses 

More than $100 More than $500 DD, 5 years 

Article 134, Stolen property offenses $100 or less $500 or less BCD, 6 months 

Article 134, Stolen property offenses More than $100 More than $500 DD, 3 years